Refusing to Take Yes for an Answer: Remember the Pardons in the Desk Drawer

One notable aspect of yesterday’s hearing on Trump’s absolute immunity claims is the fact that James Pearce — and through him, Jack Smith — refused to take yes for an answer.

They refused to accept what Judge Florence Pan, at least, seemed to suggest would be the quickest way to get to trial.

Throughout the hearing, Judges Michelle Childs and Pan seemed persuaded by American Oversight’s amicus argument that Midland Asphalt prohibits this appeal. While Childs never seemed to fully concede that point, after Pearce responded to a Childs’ argument by stating that because this involves a President, the immunity analysis is different, Pan asked Pearce why he wasn’t adopting the American Oversight argument. Pearce responded, first, by emphasizing the goal of “doing justice” and so getting the law right, and only secondarily getting to trial quickly.

Judge Pan: Why aren’t you taking the position that we should dismiss this appeal because it’s interlocutory? Doesn’t that advance your interests?

Pearce: Our interests are two-fold. One, as in United States versus Nixon, it is in doing justice. And the second is to move promptly to satisfy the public’s and the defendant’s interest in a prompt resolution of this trial. But doing justice means getting the law right, and our view is even if a dismissal on jurisdiction might move this case faster — actually, empirically, that’s hard to know — we just don’t think that’s the right analysis here, on either immunity or the second claim.

So Pan set about figuring out how they could use the hypothetical statutory jurisdiction to reach the merits even if she and, especially, Childs still had doubts they were allowed to do that.

Pan: If we have discretion to reach the merits versus just dismissing this case under Midland Asphalt, which I think is a strong precedent which which suggests that this appeal is interlocutory and does not fall under the collateral order doctrine, how should we determine how to exercise that jurisdiction, about whether or not we should reach the merits?

Pearce: So I think in the American Hospitals decision, the 2020 decision, the court said, the formulation was something like, we’re doubtful as to our jurisdiction but nonetheless, invoking the line of cases you’ve just described, went on to decide the merits. We would urge the court to do the same here, even if it entertains doubts with respect to the jurisdiction. Yes, hypothetical statutory jurisdiction is available under the law of the circuit. The court should use that to reach the merits.

At least some of the panelists on this worthwhile Lawfare Podcast about the hearing took that “doing justice” line to be fluff, and took the “empirical” questions about whether rejecting this appeal on jurisdictional grounds would really speed things up.

But I’m not so sure.

Granted, later in the hearing, Pearce provided some explanation for why a rejection on jurisdictional grounds might not help move things along. It came as part of a discussion of two questions: Childs’ question about whether the panel should rule on the broad question of presidential immunity, as Judge Chutkan had, or whether — as Judge Henderson at least entertained — they should assess whether a president was immune from prosecution for the crimes, as charged in the indictment, as most Motions to Dismiss are treated. In the same discussion, Henderson asked twice about how to apply the Blassingame decision in this context. Both these questions are about whether Trump can be prosecuted only because of the nature of the charges in the indictment, or whether as an ex-President he can be charged, regardless of what the charges are.

But as the discussion proceeded, Pearce voiced some of the concerns about what a more narrow ruling would do to the prosecution.

Childs: Are we to look at the broader question that was dealt with by Judge Chutkan with respect to Presidential immunity, no, absolutely immunity for no criminal prosecution of official acts, versus looking at this indictment and accepting as true the allegations that are brought there. Or both?

James Pearce: So we have a strong preference that the court adopts the former view, and looks at the question — in the way, as the District Court did, which is to say, based on questions of separation of powers, of constitutional text, history, precedent, Is there, in fact, immunity for a former President?

We think the answer to that is no, for of course all the reasons we put in the brief and I’m happy to sort of address here. Candidly, I think if the court gets to that second question, there are some hard questions about the nature of official acts. And frankly, as I think Judge Pan’s hypothetical described, I mean, what kind of world are we living in if, as I understood my friend on the other side to say here, a President orders his Seal team to assassinate his political rival and resigns, for example, before an impeachment? Not a criminal act.

President sells a pardon. Resigns, or is not impeached? Not a crime.

I think that is [an] extraordinarily frightening future, and that is the kind — if we’re talking about a balancing and a weighing of the interests — I think that should weigh extraordinarily heavily in the court’s consideration.

Henderson: Let me ask you about the effect of Blassingame. How does it either bind us. How is it persuasive to us.

Pearce: So, I think it, formally, has no application at all, because of course very early on in the opinion, the court says, “we’re not dealing with any questions of immunity in the criminal context.” I tend to agree with my friend on the other side that in many respects, it does reinforce the nature of the Fitzgerald standard outer perimeter standard. It says, you don’t look at intent, or you don’t look at purpose. Context plays a more important role than — often — the content of communications. I think the significant change of course is the acknowledgement of looking at a President — whether that President is acting in his or her role as office-seeker or office-holder.

But, again, to go back to my response to Judge Childs’ question, although that would change the nature of whether — it may change the nature of whether certain things are or are not official acts in the indictment, we just think that’s entirely the wrong paradigm to use. We think that under Fitzgerald — in fact, that would be inconsistent with Fitzgerald’s reasoning — and it’s also just irreconcilable with the nature of how criminal law works. I mean, to say that we’re not going to take account of motive or intent? There are plenty of acts that, everyday, I mean, for example, if I were going to encourage someone not to testify at trial because I wanted to go on a hike with that person, it’s not a crime. If I were to encourage someone not to go on a hike because their testimony a trial — sorry, encourage them to skip their trial testimony because their testimony was going to incriminate me?

It’s the same underlying act.

And now, when you map that onto the criminal–onto the Presidential context, you come up with some of the frightening hypotheticals where as long as something is plausibly official, even if it involves assassinating a prominent critic, or a business rival? That would seem to then, be exempt, potentially, from criminal prosecution, we certainly wouldn’t concede that. If that’s the world we need to live in. I think we would advance plenty of arguments below, but we really — but those arguments themselves would create satellite litigation that are an additional reason not to go down this route.

Childs: But looking, and thinking about your answer about potentially not looking at, your argument about motive and intent, when there is a criminal prosecution, that mens rea and that intent is part of the actual statute charged criminally.

Pearce: Yes. Precisely. And that’s why it wouldn’t make sense to use this non-motive — as I understand how Fitzgerald outer perimeter standard might work, it could say, “those types of official acts, official conduct, that is something from which a President is immune.” You don’t ever get to that second question of, well, did that person act with mens rea, can we prove it beyond a reasonable doubt, because at least under a theory where it’s not available at trial, then there’s no way to reach that conduct.

Childs: When we’re looking at this indictment, though — back to Judge Henderon’s question about the use of Blassingame. Some of the acts are the same or similar, and there was direct discussion of that in that opinion as determining whether it was office-seeker versus office-holder. So do we use Blassingame, at least for that?

Pearce: So if this court decides the case the way the district court does — did, pardon me — then I don’t think Blassingame has any role to play at all. Because there is no question of whether, you know, is this act official, or were these sets of allegations official? The question is, based on a Fitzgerald analysis and history, precedent, et cetera, is there any quantum of immunity for a former President. We think the answer to that question is no. There’s no reason, as the district court also found, to turn to the indictment and consider the outer perimeter, this civil outer perimeter standard.

Henderson: How about if you don’t decide it? On the Blassingame. [inaudible]

Pearce: If you don’t, [inaudible, cross talk] so there are a lot of different ways this court could not decide it that way. I think, to pick up on my response to Judge Childs, we certainly stand by our view in the brief that some substantial number of allegations would fall outside of an outer perimeter, and that, I think, is enough to affirm, I think either party is encouraging the court at that point to send the case back to the District Court. I think that would then create a series of challenging questions that I mentioned earlier: What are the evidentiary theories under which that evidence could potentially come in? And, but it would be our strong view and we would want, if the court followed that route, which we would urge the court not to, to make clear that immunity is an on-off switch. Right? This is the immunity appeal. If the court says, we affirm, we send it back, there’s no immunity. Then other things become evidentiary questions, or questions of jury instructions, which any appeal is then an appeal from a final judgment, if any final judgment.

Childs: And the immunity defense is never lost?

Pearce: Um, well, I don’t think it’s immunity at that point. I think this court, in what I’ve just described, will have said there is no immunity. There may be some other types of challenges, as evidence comes in at trial, but again, I think that would lead to this extraordinarily complicated litigation that is, not the topline reason, but certainly among the reasons why the court should not go down that path. [emphasis added]

As Childs and Pearce laid out, one problem with defining immunity in the criminal context with regards to official (in Blassingame, actions taken as an office-holder) and non-official (in Blassingame, actions taken as an office-seeker) acts is that criminal law, including the laws charged here, pivot on mens rea. Trump can’t be convicted of obstructing the vote certification, for example (assuming SCOTUS sustains its adoption with January 6), unless prosecutors can prove he had “corrupt purpose” in doing so, however that ends up being defined.

But also, if you’re going to split presidential immunity based on a categorization about official and unofficial acts, the evidentiary disputes become impossible. It would draw out that phase of litigation, probably requiring several hearings, but also would create expansive basis for appeal.

One argument John Sauer made yesterday, for example, is that because in Knight, the Second Circuit held that Trump’s Twitter account was a public forum on which he could not conduct viewpoint discrimination, it made his Tweets official acts. If the DC Circuit rules on an official/unofficial split, Trump would undoubtedly argue that under Knight none of his Tweets could come in as evidence, at least three of which are among the most critical pieces of evidence in the case.

But, as Pearce said, the difficulties such a split would create was not the topline concern here. They want DC Circuit to reach the merits, and they want DC Circuit to rule broadly, as Chutkan did.

I don’t think that “doing justice” comment is fluff. Immediately after Pearce presented his not-topline concern about how a categorical ruling would affect the prosecution, he and Pan returned to the theme of the hearing: The Seal Team Six assassination.

And also, selling pardons.

Immediately after that exchange — which was close to the end of Pearce’s time — Pan came back to what, as this really accessible George Conway column lays out, she had stripped things down to be the key issue.

Pan: Since President Trump concedes that a President can be criminally prosecuted under some circumstances — he says that is true only if he is first impeached and convicted by Congress, do you agree that this appeal largely boils down to whether he’s correct in his interpretation of the Impeachment Judgment Clause? That is, if he’s correct, that the Impeachment Judgment Clause includes this impeachment-first rule, then he wins, and if he’s wrong, if we think the Impeachment Judgement Clause does not contain an impeachment-first rule, then he loses?

Pearce: So I think that’s basically right. I mean, the defendant’s theory over the course of this litigation has evolved a bit, and I think, now, before this court, I understand the argument to be the principle submission to be as you’ve just described — what we call in our brief the conditioned precedent argument. That there is only liability — criminal liability for a former president — if that President has been impeached and convicted.

And that is wrong for textual, structural, historical reasons, and a host of practical ones, one of which I’ll start with again, to just amplify the point. It would mean that if a former President engages in assassination, selling pardons, these kinds of things, and then isn’t impeached and convicted? There is no accountability for that, for that individual. And that is frightening. [my emphasis]

While Pearce addressed Sauer’s historical argument briefly, this was close to the end of Pearce’s argument, and really the key point of the hearing. Pan had (as Conway laid out) stripped the issues down to whether Trump’s view on impeachment is correct, and then Pan had demonstrated, using hypotheticals, how impossibly absurd that outcome would be.

James Pearce and Florence Pan don’t want to give Joe Biden an easy way to legally assassinate Trump, only Trump is asking for that.

Pan’s laser focus on those hypotheticals provided Pearce opportunity to repeatedly do what he did far more subtly starting in October. As I argued then, the five hypotheticals that Pearce floated in October were all near analogues for Trump’s known actions.

  • Trading pardons to dissuade criminal associates from testifying against someone
  • Ordering the National Guard to murder his critics
  • Ordering an FBI agent to plant evidence on his political enemy
  • Taking a bribe in exchange for a family member getting a lucrative contract
  • Selling nuclear secrets to America’s adversaries

Todd Blanche (one of the lawyers representing Trump in both the stolen election and stolen documents cases, and so someone who is intimately familiar what kind of paperwork DOJ discovered, along with hundreds of classified documents, that Trump took with him when he left office) responded to this line of argument by calling the hypotheticals treason and suggesting they might be private acts, but arguing, as Sauer did yesterday that there would still be a remedy: impeachment.

10 Ignoring actual lessons from history, the Government provides a list of lurid hypotheticals that have never happened—including treason and murder. Response, at 20 (speculating that a President might “murder his most prominent critics” or “sell[] nuclear secrets to a foreign adversary”). Some or all of these hypotheticals, depending on the facts, would likely involve purely private conduct, rendering them irrelevant here. See id. Yet even if such examples somehow were within the outer perimeter of a President’s duties, it is overwhelmingly likely the House impeach and the Senate would convict, and the offending President would then be subject to “Indictment, Trial, Judgment and Punishment” by criminal prosecution. U.S. CONST. art. I, § 3, cl. 7. That is the process the Constitution provides, and the prosecution may not ignore it here. [my emphasis]

As Pan had laid out, though, one part of Trump’s argument for immunity is actually bigger than that, arguing for immunity regardless. Indeed, that’s how Pearce presented this very same argument in his appellate response. He took Trump’s claims of absolute immunity at his word, describing that these scenarios — but not the pardon one — would be flat-out legal.

The implications of the defendant’s broad immunity theory are sobering. In his view, a court should treat a President’s criminal conduct as immune from prosecution as long as it takes the form of correspondence with a state official about a matter in which there is a federal interest, a meeting with a member of the Executive Branch, or a statement on a matter of public concern. That approach would grant immunity from criminal prosecution to a President who accepts a bribe in exchange for directing a lucrative government contract to the payer; a President who instructs the FBI Director to plant incriminating evidence on a political enemy; a President who orders the National Guard to murder his most prominent critics; or a President who sells nuclear secrets to a foreign adversary, because in each of these scenarios, the President could assert that he was simply executing the laws; or communicating with the Department of Justice; or discharging his powers as Commander-in-Chief; or engaging in foreign diplomacy. Under the defendant’s framework, the Nation would have no recourse to deter a President from inciting his supporters during a State of the Union address to kill opposing lawmakers—thereby hamstringing any impeachment proceeding—to ensure that he remains in office unlawfully. See Blassingame v. Trump, 87 F.4th 1, 21 (D.C. Cir. 2023) (President’s delivery of the State of the Union address is an official act). Such a result would severely undermine the compelling public interest in the rule of law and criminal accountability. [my emphasis]

An analogue for Pan’s (more vivid) Seal Team Six hypothetical was in there: the National Guard order. And an analogue for her military secrets was in there: selling nuclear secrets.

But pardons aren’t in that brief. The only discussion of pardons in it pertained to the Nixon pardon.

Indeed, it was Sauer who briefed pardons, not Pearce. In an attempt to “prove” that presidents had committed crimes that had not been charged before, he cited the Marc Rich pardon — or rather an Andy McCarthy paywalled column about it — to imply that Bill Clinton committed a crime that had not been prosecuted.

The government argues that the absence of any prior criminal prosecution of a President in American history merely “reflects … the fact that most presidents have done nothing criminal.” Resp.Br.37 (citation omitted). This claim is untenable. App.Br.17 (citing examples of Presidents accused of crimes in official acts, from John Quincy Adams to Barack Obama). American history contains many such examples—President Reagan’s alleged involvement in Iran-Contra, President Clinton’s pardon of Marc Rich, President Bush’s claims of “weapons of mass destruction,” President Nixon’s firing of Archibald Cox, etc. 5 None of the above conduct was prosecuted. “Perhaps the most telling indication of a severe constitutional problem” with this prosecution “is a lack of historical precedent to support it.” Seila Law LLC v. CFPB, 140 S. Ct. 2183, 2201 (2020) (cleaned up).

5 Tim Arango, Ex-Prosecutor’s Book Accuses Bush of Murder, N.Y. TIMES (July 7, 2008), https://www.nytimes.com/2008/07/07/business/media/07bugliosi.html; Andrew C. McCarthy, The Wages of Prosecuting Presidents for their Official Acts, NAT’L REVIEW (Dec. 9, 2023), https://www.nationalreview.com/2023/12/the-wagesof-prosecuting-presidents-over-their-official-acts/; The Editors, Iran-Contra Scandal Begins with Shredded Documents, HISTORY (Nov. 13, 2009), at https://www.history.com/this-day-in-history/oliver-north-starts-feeding-documentsinto-the-shredding-machine.

With regards to Iran-Contra, Pearce noted that “in Chapter 27” of Special Prosecutor Lawrence Walsh’s report, “assumes that President Reagan is subject to prosecution and says, but we didn’t get there evidentiarily.”

In response to Judge Pan’s hypotheticals yesterday, he returned to noted authority, Andy McCarthy’s opinion, about Marc Rich, then said again that pardons had come up historically and not been charged. Pan raised it as a hypothetical, but Sauer wanted to make good and sure that pardons could not be charged because, he said, Andy McCarthy says so.

But then both times Pearce mocked the implications of Sauer’s logic, he did raise selling pardons, even though he left it off his response brief. And he added the scenario of corruptly getting someone not to testify against oneself by inviting them on a hike!

Incidentally, according to Anna Bower, Walt Nauta — the aide who has refused to explain what he knows about what happened to the stolen classified documents that got brought to Bedminster in 2022 — along with his attorney Stan Woodward (and of course Boris Epshteyn), were at yesterday’s hearing.

But the reason — one reason — why I find the way the way pardons have gotten floated repeatedly in this claim of absolute immunity is that, along with hundreds of documents, including nuclear secrets, found at Mar-a-Lago on August 8, 2022, DOJ found documentation about clemency granted by Donald Trump, probably including that of:

Oh, and also, some kind of clemency document — one that has some tie to Emmanuel Macron and therefore possibly a pardon beyond the one we know about — for Roger Stone, the guy who was convicted after refusing to disclose the substance of conversations he had with Donald Trump about advance knowledge of the Russian hack-and-leak. The same guy who, in 2020, was allegedly plotting assassinations with his former NYPD buddy Sal Greco.

It’s certainly possible that James Pearce — and so Jack Smith — want to have a clear decision that presidents can be prosecuted for their official acts simply out of getting the law right.

But both sides in this argument seem to understand there’s something more going on.

The First Time Trump “Colluded” with Russia Was To Help Bibi Netanyahu

The first time Donald Trump worked via back channel with Russia to undermine Barack Obama’s foreign policy, it was to help Bibi Netanyahu dodge repercussions for illegal settlements in the West Bank.

And yet that effort — and the way that Jared Kushner mobilized a group of countries to undermine the sitting President’s foreign policy decision — has gone unmentioned in recent months, even as Bibi blows off Joe Biden’s requests for moderation in advance of the November election, even as Vladimir Putin holds overt meetings with Hamas, even as Kushner — effectively an employee of Mohammed bin Salman at this point — meets with Qatar and tours Kfar Aza.

The Mueller Report actually soft-pedaled what happened in December 2016.

On December 21, 2016, Egypt submitted a resolution to the United Nations Security Council calling on Israel to cease settlement activities in Palestinian territory.1208 The Security Council, which includes Russia, was scheduled to vote on the resolution the following day.1209 There was speculation in the media that the Obama Administration would not oppose the resolution.1210

According to Flynn, the Transition Team regarded the vote as a significant issue and wanted to support Israel by opposing the resolution.1211 On December 22, 2016, multiple members of the Transition Team, as well as President-Elect Trump, communicated with foreign government officials to determine their views on the resolution and to rally support to delay the vote or defeat the resolution.1212 Kushner led the effort for the Transition Team; Flynn was responsible for the Russian government.1213 Minutes after an early morning phone call with Kushner on December 22, Flynn called Kislyak.1214 According to Flynn, he informed Kislyak about the vote and the Transition Team’s opposition to the resolution, and requested that Russia vote against or delay the resolution.1215 Later that day, President-Elect Trump spoke with Egyptian President Abdel Fattah al-Sisi about the vote.1216 Ultimately, Egypt postponed the vote.1217

On December 23, 2016, Malaysia, New Zealand, Senegal, and Venezuela resubmitted the resolution.1218 Throughout the day, members of the Transition Team continued to talk with foreign leaders about the resolution, with Flynn continuing to lead the outreach with the Russian government through Kislyak.1219 When Flynn again spoke with Kislyak, Kislyak informed Flynn that if the resolution came to a vote, Russia would not vote against it.1220 The resolution later passed 14-0, with the United States abstaining.1221 [my emphasis]

1208 Karen DeYoung, How the U.S. Came to Abstain on a U.N. Resolution Condemning Israeli Settlements, Washington Post (Dec. 28, 2016).

1209 Karen DeYoung, How the U.S. Came to Abstain on a U.N. Resolution Condemning Israeli Settlements, Washington Post (Dec. 28, 2016).

1210 Michelle Nichols & Lesley Wroughton, U.S. Intended to Allow Passage of U.N. Draft Critical of Israel, Reuters (Dec. 21, 2016).

1211 Flynn 11/16/17 302, at 12; Flynn 11/17/17 302, at 2.

1212 Flynn 11/16/17 302, at 12-14; Flynn 11/17/17 302, at 2.

1213 Flynn 11/16/17 302, at 12-14; Flynn 11/17/17 302, at 2; Kushner 11/1/17 302, at 3; 12/22/16 Email, Kushner to Flynn; 12/22/16 Email, McFarland to et al.

1214 Flynn 11/16/17 302, at 13; Call Records of Michael T. Flynn

1215 Statement of Offense ¶ 3(d), United States v. Michael T. Flynn, No. 1:17-cr-232 (D.D.C. Dec. 1, 2017), Doc. 4 (“Flynn Statement of Offense”); Flynn 11/16/17 302, at 12-13.

1216 Flynn 11/17/17 302, at 2; Flynn 11/16/17 302, at 13.

1217 U.N. Vote on Israeli Settlement Postponed, “Potentially Indefinitely”, Reuters (Dec. 22, 2016).

1218 Somini Sengupta & Rick Gladstone, Rebuffing Israel, U.S. Allows Censure Over Settlements, New York Times (Dec. 23, 2016).

1219 Flynn 11/16/17 302, at 12-14; Kushner 11/1/17 302, at 3; 12/23/16 Email, Flynn to Kushner et al.

1220 Flynn Statement of Offense ¶ 3(g).

1221 Israel’s Settlements Have No Legal Validity, Constitute Flagrant Violation of International Law, Security Council Reaffirms, 7853rd Meeting (PM), United Nations Security Council (Dec. 23, 2016).

This account separates the description of the December 1, 2016 meeting including Sergey Kislyak and Flynn at which Jared suggested setting up a back channel via secure Russian channels, as well as the December 13, 2016 meeting with sanctioned banker Sergey Gorkov at Tom Barrack’s office, a meeting Jared claimed was diplomatic but Gorkov claimed pertained to business.

The Report doesn’t reveal which Senator’s office alerted Flynn to the risk that Obama would allow Israel be sanctioned.

The Report doesn’t describe all the calls that took place on December 22. In a warrant affidavit targeting Flynn, multiple calls are described as taking place on Flynn’s phone — suggesting the possibility that Trump used Flynn’s phone to call al-Sisi. McFarland later noted that Flynn, “worked it all day with trump from Mara lago.”

The Report did not mention that Jared asked toand did — release a false report claiming that Egypt had initiated this effort.

Can we make it clear that Al Sisi reached out to DJT so it doesn’t look like we reached out to intercede? This happens to be the true fact patter and better for this to be out there.

Because it remained under investigation, the Report doesn’t mention the suspected $10 million payment an Egyptian bank had given Trump in September 2016, important background to Trump’s call to al-Sisi.

It doesn’t describe that KT McFarland had likened the effort to undercut Obama’s foreign policy to Richard Nixon’s effort to forestall peace in Vietnam and Ronald Reagan’s effort to delay the release of hostages from Iran.

Based on her study of prior presidential transitions, McFarland believed the sorts of things Flynn did were not unusual. She cited Richard Nixon’s involvement in Vietnam War peace talks and Ronald Reagan’s purported dealings with Iran to free American hostages during an incoming administration. Most incoming administrations did similar things. No “red light” or “alarm bells” went off in her head when she heard what Flynn was doing. The President-elect made his support for Israel very clear during the campaign and contrasted his position with President Obama, who he believed had not treated Israel fairly.

And Mueller — likely working under the normally safe assumption that the call intercepts with Sergey Kislyak would never be released — left out several damning details revealed when John Ratcliffe did release the transcripts in May 2020.

First, Mueller implies that Egypt, by itself, decided to delay the vote, but on their second call, Sergey Kislyak told Flynn that they would push for a delay too.

Kislyak: Uh, I just wanted as a follow up to share with you several points. One, that, uh, your previous, uh, uh, telephone call, I reported to Moscow and it was considered at the highest level in Russia. Secondly, uh, uh, here we are pointing [PH], uh, taking into account, uh, entirely your, uh, arguments.

Flynn: Yes.

Kislyak: To raise a proposal or an idea of continued consultations in New York. We will do it.

Flynn: Okay.

Kislyak: Uh, to give time for working out something, uh, that would be, would be, uh, less controversial.

Flynn: Okay. That. .. That’s good news.

[snip]

Kislyak: But, uh, responding to your, uh, telephone call and our conversations, we will try to help, uh, to~ uh~ postpone the vote and to allow for consultations.

Flynn: Okay. That’s .. that’s good.

In Kislyak’s call with Flynn (in which he had to cut off the blubbering General to make his carefully scripted points), he made it clear that he had discussed the topic with “the highest level in Russia,” which can only mean Putin.

When Flynn called Kislyak back on December 29, the Russian Ambassador told him that they were not going to support Obama’s other framework for the Middle East at the time.

KISLYAK: Oh, General, thank you very much for calling me back. I was trying to reach you for quite a while because I have several, uh, issues to raise with you —

FLYNN: Uh huh.

KISLYAK: – rather to inform you. If you’ll allow me, one by one.

FLYNN: Please.

KISLYAK: One, uh, since you were interested in the issue of the Middle East and you called me on that issue

FLYNN: Uh huh.

KISLYAK: We wanted to convey to you and through you to the President Elect that we had uh significant reservations about the idea of adopting now the principles for the Middle East, uh, that our American colleagues are pushing for. So we are not going to support it to — in the quartet, or in the Security Council. And we have conveyed to our American colleagues. So in the spirit of full transparency I was asked to inform you as well.

FLYNN: Okay.

KfSLYAK: So it’s not something that we – Russia – are going to support.

FLYNN: Okay that’s good.

Kislyak tied that, implicitly, to a demand to reverse Obama’s sanctions; he used Flynn’s discussion about cooperating on counterterrorism to note that GRU and FSB would need to be part of the cooperation.

FLYNN: We have to eliminate the common threat.

KISLYAK: We agree. One fo the problems among the measures that have been announced today is that now FSB and GRU are sanctions, are sanctioned, and I ask myself, uh, does it mean that the United States isn’t willing to work on terrorist threats?

FLYNN: Yeah, yeah.

KISLYAK: Because that’s the people who are exactly, uh, fighting the terrorists.

Most importantly, a point utterly inconsistent with the conclusion in the Mueller Report that it was never clear if Trump knew of this back channel, on their December 31 call, Flynn told Kislyak that “boss is aware” of an invite that Kislyak had extended.

Remember that a pro-Trump FBI agent was pushing the conclusion that all this was a big misunderstanding, a conclusion that largely held the day.

And that’s just what is included. Ratcliffe didn’t release the December 22 transcript, the one that started this discussion.

Flynn was in Mar-a-Lago on December 22 — and the December 29 transcript suggests that Flynn may have been on speaker phone (he made the call from his hotel phone, and so could have had his own phone connected back to MAL). So it’s not impossible that Trump was actually involved in the calls placed on December 22. As bolded above, in the Report, Mueller didn’t describe what he knew from the transcripts; instead, he attributed his version of the December 22 calls to Flynn.

At a time when Trump was advised — at least partly — by adults, he didn’t hesitate to intervene back channel to undercut his Democratic predecessor in order to help Bibi Netanyahu. Per KT McFarland, it was all in the tradition of Nixon and Reagan intervening in foreign policy to help win an election.

This post is part of a Ball of Thread I’m putting together before I attempt to explain how Trump trained Republicans to hate rule of law. See this post for an explanation of my Ball of Thread.

Ball of Thread: Introduction

In my post on Elise Stefanik’s decline into fascism, I described that I’ve been meaning to lay out how Trump used his legal cases to train Republicans to hate rule of law, which has been a key part of how the Republican party has come to embrace fascism. I’ve been dreading and therefore putting off writing that, in large part because it’ll involve rehashing the Russian investigation, and the counter-propaganda to the Russian investigation has been so effective that even addressing the reality of the Russian investigation at this point is always a real chore.

One other reason I’ve been putting it off is because there are a lot of things I want to have in the background — what I’ll call a Ball of Thread. These are not so much related points. Rather, they’re just things that I want to have in the background so I can pull on one or another thread without distracting from the main argument.

So I’m going to first try to write those up fairly quickly, so they’re out there, my Ball of Thread. Some of these posts will be more observation than detailed collection of facts. Others will not show my proof to the extent I normally do. Some will update things I’ve already said. Still others would not normally merit their own post, but I want to have it out there, as part of my Ball of Thread.

Plus, I’m going to try to do this while continuing to cover two Trump prosecutions, multiple Hunter Biden dick pic sniffing campaigns, 1,200 January 6 cases, and some other things that will come up. You know? My day job. All while learning to walk again, after foot surgery.

Happy New Year!

As of now, I anticipate that my Ball of Thread will include:

These will hopefully be quick; they may be sloppy; they likely will not be in this order. But hopefully I can spin my Ball of Thread then move onto the larger task.

On the image: The featured image for this post comes from the Library of Congress’ Farm Services Administration set. 

Former WikiLeaks Task Force Member Charles McGonigal Didn’t Take Credit for the Josh Schulte Investigation

There’s something about the second Josh Schulte trial I’ve always meant to go back and lay out. It pertains to what I think of as Schulte’s “Guccifer Gotcha.”

Throughout the trial, Schulte, who was representing himself, often got caught up in proving — right there in the courtroom — that he was the smartest guy in the room. That often (particularly with prosecutors’ technical expert and a former supervisor) led Schulte to get entirely distracted from proving his innocence. He focused on proving he was smart, rather than not guilty.

A particularly revealing instance came with Richard Evanchec who, as a member of New York Field Office’s Counterintelligence Squad 6 that focused on insider threats, was one of the lead FBI agents on the Schulte investigation.

On direct, Evanchec had described how before, August 2016, Schulte had only done three searches — ever — on WikiLeaks, but he did 39 searches between August 2016 and January 2017, when WikiLeaks announced Vault 7. (This exhibit is from Schulte’s first, 2020 trial; because the exchange below describes the August 16 search as the first one, I believe the one from his 2020 trial may not have included the Snowden search.)

Schulte started his cross on this topic by asserting that Evanchec had “made [a] grave mistake” in calculating Schulte’s Google searches.

[Reminder: these transcripts were paid for by Wau Holland foundation, which has close ties to WikiLeaks.]

Q. Additionally, sir, did you realize that you made the grave mistake in calculating the Google searches during this time period?

A. I don’t.

Q. You don’t recall that.

A. No.

[snip]

Q. Did you not realize, sir, that 80 percent of the searches you claim that I conducted for WikiLeaks were not actually searches at all?

A. I don’t know that, sir, again.

Q. Sir, are you familiar with the service Google offers called Google News?

A. I am not. I don’t use Google regularly or gmail regularly so I don’t know what that is.

Schulte then walked Evanchec through how a Google News search and a related page visit search show up differently in the logs, demonstrating the concept with some activity from early morning UTC time on August 17, 2016 on Schulte’s Google account.

Q. Did you know that Google makes a special log in its search history when you are using Google News?

A. I don’t. I am not aware of that.

[snip]

Q. OK. Entry no. 12954.

A. Your question, sir?

Q. Can you read just the date that this search is conducted?

A. Appears to be August 17 of 2016 at 2:45:07 UTC.

Q. Can you read what the search is?

A. Searched for pgoapi.exceptions.notloggedinexception. Then there is: (https://www.Google.com/?Q=pgoapi.exceptions.notloggedinexception).

Q. OK. And then the search after it, Google has it, produces it in the opposite direction so the one after that. Can you read that?

A. You are referring to line 12953?

Q. Yes. I’m sorry. Thank you.

A. Tease [sic] OK. Again August 17, 2016, 2:35:27 https://www.google.com/search?Q=WikiLeaks&TBM=NWS).

Schulte then got Evanchec to admit that the FBI agent didn’t consult with any FBI experts on Google before he did his chart of Google searches.

Q. So you basically, just as a novice, opened up this document and just based on no experience, you just picked out lines; correct?

A. No.

Q. No. You did more?

A. Yes. I queried for every time this history set searched for and then included the search terms. That’s what I culminated in my summary.

Q. OK, but you didn’t run that by any of the technical experts at the FBI, did you?

A. Not that I recall.

Q. And you said you didn’t reach out to Google or anyone with expertise, correct?

In his close, Schulte claimed that the exchange showed that all the Google searches he did between August 2016 and January 2017 were based off a Google news alert, and what drove the number of searches was the degree to which WikiLeaks was in the news because of the DNC hack-and-leak.

Mr. Lockard then brings up the Google searches for WikiLeaks, but of course, as Agent Evanchec testified, there were multiple news events that occurred in the summer of 2016. WikiLeaks dumped the Clinton emails. Really? Come on. Everyone was reading that news — Guccifer 2.0. The Shadow brokers released data, and even WikiLeaks claimed to have that code.

No doubt Schulte did demonstrate clearly to Evanchec that he didn’t did look closely at the logs of these searches and that he — Schulte — knew more about Google searches than one of the agents who had led the investigation into him did.

He was the smartest guy in the room.

But in the particular search in question — one that would have been before midnight on August 16, 2016 on the East Coast — what Schulte appears to have shown is that among all the Google news alerts reporting on a flood of news about WikiLeaks, one of the only alerts that he clicked through was one reporting WikiLeaks’ claim to have a tie to ShadowBrokers.

WikiLeaks on Monday announced plans to release a collection of “cyber weapons” purportedly used by the National Security Agency following claims that hackers have breached a division of the NSA said to deal in electronic espionage.

“We had already obtained the archive of NSA cyber weapons released earlier today and will release our own pristine copy in due course,” WikiLeaks said through its official Twitter account Monday.

Individuals calling themselves the “Shadow Broker” claimed earlier in the week to have successfully compromised Equation Group — allegedly a hacking arm of the NSA — and offered to publicly release the pilfered contents in exchange for millions of dollars in bitcoins.

At a threshold level, Schulte’s gotcha doesn’t show what he claimed it did. It showed that among the flood of news about WikiLeaks — almost all focused on the DNC hack-and-leak — he clicked through on stories about an upcoming code release. “Everyone was reading that news — Guccifer 2.0,” Schulte said. But he wasn’t. He clicked on one Guccifer story. He was sifting past the Guccifer news and reading other stuff. Schulte caught Evanchec misreading the Google logs, but then went on to misrepresent the significance of what they showed, which is that amid a flood of news about the DNC hack-and-leak, he was mostly interested in other stuff.

More importantly, once you realize that Evanchec hadn’t looked closely at the logs of these Google searches, something about his first demonstrative — showing just these three searches before August 2016 — becomes evident.

July 29, 2010: Searched for “WikiLeaks”

  • Visited Wikileaks.org webiste [sic]

July 30, 2010: Searched for “WikiLeaks ‘Bastards’”

  • Visited website titled “WikiLeaks Plans to Post CIA Chiefs Hacked Emails” on The Hill

July 6, 2016: Searched for “WikiLeaks Clinton Emails”

  • Visited website titled “WikiLeaks Dismantling of DNC Is Clear Attack By Putin on Clinton” on The Observer

For at least two of these searches, the date in Evanchec’s demonstrative cannot reflect the actual date of the search.

The story, “WikiLeaks Dismantling of DNC Is Clear Attack By Putin on Clinton” — one of the first ones concluding from the DNC hack that Putin was involved — was not posted until July 25, 2016, yet Evanchec’s demonstrative says the search happened weeks earlier.

The story, “WikiLeaks Plans to Post CIA Chiefs Hacked Emails,” describing the Crackas With Attitude hacks of top intelligence community figures in advance of the 2016 operation, dates to October 21, 2015. Evanchec described Google records that say the search happened five years before the article was posted.

Neither of those searches could possibly have been done on the date in Evanchec’s demonstrative, which Schulte — in spite of his obsession with being the smartest guy in the room — undoubtedly knew but didn’t point out at trial.

Schulte got his gotcha. It didn’t help him secure acquittal (or even another hung jury). And it got me, at least, to look more closely at what it proves, which is that at least two of the manual searches Schulte did, searches that sought out very select stories, seemed to obscure the date of the search.

As I said, I’ve been meaning to post this ever since it happened at trial.

I’m revisiting it, though, because of something remarkable about Charles McGonigal’s sentencing memo. Unsurprisingly,  his attorney, former Bill Barr flunkie Seth DuCharme, lays out a bunch of the important FBI investigations that McGonigal was a part of over his 22-year FBI career to describe what service he has done for US security: TWA Flight 800, the 1997 investigation into attempted subway bombers Gazi Ibrahim Abu Mezer and Lafi Khalil, the investigation into the 1998 bombings of US embassies in Africa, the 9/11 attack, the 2002 abduction of a Wooster County, OH girl, the Sandy Berger investigation, the RICO investigation of Huawei Technologies Co.

The government, in their own sentencing memo, includes a footnote suggesting that McGonigal is fluffing his role in at least one of these investigations.

The law enforcement and counterintelligence agents who reviewed McGonigal’s cited exploits noted that he often claims credit for operations in which his personal involvement was less significant than the operation itself. For example, in both his classified and unclassified submissions, McGonigal may describe a significant investigation where he—along with many other officials—was simply somewhere in a lengthy chain of command. (See PSR ¶ 82). Thus, to the extent this Court is inclined to parse McGonigal’s career achievements, the Government respectfully submits that it should limit its analysis to the specific actions that McGonigal personally took. See United States v. Canova, 412 F.3d 331, 358-59 (2d Cir. 2005) (Guidelines departure for exceptional public service warranted where defendant served as volunteer firefighter “sustaining injuries in the line of duty three times,” “entering a burning building to rescue a threeyear old,” “participated in the successful delivery of three babies,” and administered CPR to persons in distress both while volunteering as a firefighter and as a civilian).

One example where McGonigal claimed credit for being in a lengthy chain of commend must be the Huawei investigation, one that Seth DuCharme would also have worked on in the period when he and McGonigal overlapped in NY, from 2016 until 2018. The 2020 press release that DuCharme links to about that investigation, from over a year after McGonigal retired, includes two paragraphs of recognition, including units far afield from counterintelligence.

But one investigation included in McGonigal’s sentencing memo where he did have more involvement is the original WikiLeaks Task Force.

Mr. McGonigal later led the FBI’s WikiLeaks Task Force investigating the release of over 200,000 classified documents to the WikiLeaks website—the largest in U.S. history—ultimately resulting in the 20-count conviction of Chelsea Manning for espionage and related charges.

Charles McGonigal did have a significant role in the first criminal investigation of WikiLeaks, one conducted five years before his retirement.

And that’s why it’s weird that McGonigal doesn’t describe that, in the 18 months before he retired, including in the period between May 2017, when he received a report describing Oleg Deripaska’s ties to GRU, and the period, starting in March 2018, when McGonigal first started interacting with Deripaska’s deputy, Yevgeny Fokin, whom McGonigal allegedly identified as a Russian intelligence officer and claimed to want to recruit, a unit McGonigal supervised solved a WikiLeaks compromise even more damaging and complex than Chelsea Manning’s had been four years before.

Charles McGonigal doesn’t claim credit for the arrest of Josh Schulte and charges filed, over two years after the compromise, for the Vault 7 attack, something in which his team had a more central role than in the Huawei case, something that was every bit as important to national security.

By that point, WikiLeaks had ties to Russia not just through Israel Shamir but also — at least through a shared lawyer — with Oleg Deripaska. That shared lawyer almost negotiated immunity for Assange in exchange for holding off on the Vault 7 leaks.

Now, I’m not at all suggesting that McGonigal was responsible for that fucked up Google analysis, which Schulte would mock five years later. There would have been several levels of management between McGonigal and that analysis. Evanchec simply didn’t look closely enough at the Google metadata, and so didn’t see that those searches were even more interesting than he understood.

But what McGonigal would have known, when he was meeting Deripaska personally in 2019, was that the FBI hadn’t discovered that Schulte had somehow obscured when he did his search on WikiLeaks’ role in embarrassing CIA Director John Brennan and National Security Director James Clapper in 2015, in advance of the 2016 election attack, that he had likewise obscured the date when he searched on Putin’s role in the DNC hack-and-leak. The FBI didn’t even know that in 2022, by the second trial.

McGonigal may also have known what someone associated with WikiLeaks told me, in 2019, that the FBI had learned about Schulte: that he had somehow attempted to reach out to Russia.

To be clear: None of this is charged. There’s no evidence that McGonigal shared details he learned as NYFO’s counterintelligence head, about the WikiLeaks investigation, to say nothing about NYFO’s investigation of oligarchs like Deripaska. McGonigal’s case has been treated as a public corruption case, not an espionage case. So it may be that SDNY has confidence that McGonigal didn’t do anything like that.

But this risk — the possibility that McGonigal could have shared investigative information with Deripaska — doesn’t show up in SDNY’s sentencing memo. SDNY makes no mention of how obscene it is that DuCharme wants his client to get probation when any witnesses implicated in the investigations McGonigal oversaw would never know whether he had shared that information with Deripaska.

That includes me: As I have written, in August 2018, the month before McGonigal retired, someone using one of the ProtonMail accounts Schulte and his cellmate used reached out to me. I have no idea why they did that. But I’d love to know. I’d also love to know whether McGonigal learned of it and shared it.

It makes sense that McGonigal doesn’t emphasize what SDNY did on their own sentencing memo: That McGonigal went from supervising investigations into Deripaska to working for him, allegedly knowing full well he had ties to Russian intelligence. But the tie between WikiLeaks and Deripaska is more obscure, and so he could have bragged that twice in his career he led substantial investigations into WikiLeaks. Schulte’s third trial, for Child Sexual Abuse Material, even happened after Judge Jennifer Rearden became a judge in October 2022.

McGonigal could have bragged that twice in his career, in 2014 and in 2018, teams he oversaw solved critical WikiLeaks compromises. He only claimed credit for the first of those.

Update: Corrected Fokin’s first name.

The May 2017 Report Tying Oleg Deripaska to Russian Intelligence

I’m working on a longer post about the sentencing submissions (McGonigal; SDNY) for Charles McGonigal’s SDNY case — the former head of counterintelligence for FBI’s New York Field Office. He will be sentenced in that case on Friday; he will be sentenced in his DC case in February.

The submission for McGonigal submitted by former Bill Barr flunkie Seth DuCharme argued that McGonigal’s crime, researching a rival oligarch for Oleg Deripaska after he retired in 2018, is no big deal because DOJ has sanctioned Deripaska’s rival, Vladimir Potanin, since that time.

[W]hen compared to other conduct for which the government has brought criminal charges, it bears repeating that here the crime was clearly malum prohibitum rather than malum in se—in other words, the defendant’s intent in agreeing to provide an SDN with information to be used for business competition purposes is far less serious than the criminal conduct in other IEEPA-related cases. [links added]

DuCharme asks for a probation sentence.

As you can imagine, SDNY has a lot to say about that in response. DuCharme, whom PACER does not show as having taken many, if any defendant, through sentencing since he left DOJ in 2021, really invited SDNY to throw a lot of damaging information at McGonigal.

One thing SDNY did was explain why McGonigal knew working for Deripaska was more damaging than that. One thing they note is that in January 2018, before he left the FBI, McGonigal reviewed a list of oligarchs, including Deripaska, under consideration for sanctions.

McGonigal knew full well that Deripaska was sanctioned. As SAC, McGonigal supervised and participated in investigations of Russian oligarchs, including Deripaska. (PSR ¶ 19).

[snip]

And in January 2018, McGonigal received and reviewed a then-classified list of Russian oligarchs with close ties to the Kremlin who would be considered for sanctions to be imposed as a result of Russia’s 2014 attack on Ukraine. (PSR ¶ 19).

That detail was in the indictment.

As SAC, McGonigal supervised and participated in investigations of Russian oligarchs, incl uding Deripaska . Among other things, in 2018, McGONIGAL , while acting as SAC, received and reviewed a then-classified list of Russian oligarchs with close ties to the Kremlin who would be considered for sanctions to be imposed as a result of Russia ‘ s 2014 conflict with Ukraine .

But there’s a detail DOJ has since gotten declassified, one of those “other things” only alluded to in the indictment: before McGonigal started pursuing ties with Albania while still at FBI, he received a report “stating that Deripaska was associated with a Russian intelligence agency.”

Among other things, in May 2017, McGonigal received a then-classified email stating that Deripaska was associated with a Russian intelligence agency, and possibly involved in that agency’s coup attempt in another country. (PSR ¶ 19).

By context, the agency must be GRU and the attempted coup must be Montenegro, a country implicated in McGonigal’s other prosecution — one where Paul Manafort had an extensive history with Deripaska and one mentioned in Andrew Weissmann’s Team M report. See also this post Rayne wrote on related topics.

In other words, this strongly suggests that in the same month when Rod Rosenstein appointed Robert Mueller to investigate how GRU tampered in the 2016 election, McGonigal received a report tying Deripaska to the GRU.

Then he went on to agree to work for Deripaska anyway, hoping to make millions from a guy with a key role in the 2016 attack on American democracy.

And Bill Barr’s flunkie, Seth DuCharme — the guy who helped set up a way for Rudy Giuliani to share information from Russian-backed Ukrainians to be funneled to the Hunter Biden investigation — thinks that McGonigal should be sentenced to probation as a result.

NYT Covers Up the Still-Ongoing Trump-Russian Effort to Frame Joe Biden

The reason I have so little patience for NYT’s decision to dedicate the resources of three senior reporters to warn about the dangers of a second Trump term is not that I disagree about the second term. They’re right that it would be far worse.

It’s that the same reporters continue to downplay Trump’s past corruption — some of which Maggie Haberman specifically enabled — and outright ignore the ongoing effects of it.

Imagine how much healthier American democracy would be if the NYT dedicated just half of the time and space that went into the eight, often repetitive stories on this topic to instead lay out how the ongoing effort to impeach Biden is a continuation of Trump’s efforts, made with the assistance of men now deemed to be Russian spies by both the US and Ukraine, to frame Joe Biden?

  1. December 4: Why a Second Trump Presidency May Be More Radical Than His First
  2. November 15/December 2: How Trump and His Allies Plan to Wield Power in 2025
  3. November 11: Sweeping Raids, Giant Camps and Mass Deportations: Inside Trump’s 2025 Immigration Plans
  4. November 1: Some of the Lawyers Who May Fill a Second Trump Administration
  5. October 31: If Trump Wins, His Allies Want Lawyers Who Will Bless a More Radical Agenda
  6. July 17: Trump and Allies Forge Plans to Increase Presidential Power in 2025
  7. June 21: Few of Trump’s G.O.P. Rivals Defend Justice Dept. Independence
  8. June 15: The Radical Strategy Behind Trump’s Promise to ‘Go After’ Biden

NYT appears not to have assigned a single reporter to chase down the following allegations that have come out of the GOP impeachment effort:

  • Bill Barr’s DOJ shut down a corruption investigation into Mykola Zlochevsky — which had been opened in January 2016, while Biden was VP and Hunter was on the board of Burisma — in December 2019, right in the middle of an impeachment defense claiming to prioritize the investigation of Burisma’s corruption.
  • Days later, Barr set up a rickety effort to ingest the dirt Rudy Giuliani had obtained, including from known Russian agent Andrii Derkach and possibly from Burisma itself, without being forced to prosecute Rudy for soliciting dirt from known Russian agents. One of several details we’ve learned since NYT’s superb past reporting on this effort (besides that Scott Brady’s testimony completely conflicts with that past NYT report), is that Brady mined information from the newly closed Zlochevsky investigation to obtain an FD-1023 recording Zlochevksy making new claims about Joe Biden around the same time in 2019 as Barr shut down the investigation into Zlochevsky, claims that were utterly inconsistent with what he had said months earlier.
  • Hunter Biden’s lawyer claims, backed by newly disclosed communications, that Tony Bobulinski falsely told the FBI on October 23, 2020 that he had personally attended a February 2017 meeting at which he saw CEFC’s Chair hand Hunter Biden an enormous diamond. That meeting with the FBI took place one day after attending the October 22, 2020 debate with Donald Trump. Weeks later, according to Cassidy Hutchinson, Bobulinski and Mark Meadows had a covert meeting at a campaign stop; she claims she saw Trump’s chief of staff hand Bobulinski, “what appeared to be a folded sheet of paper or a small envelope.”
  • Separately, Hunter Biden partner Rob Walker described the concerns he and Hunter had about Bobulinski’s business ties to Russians, possibly including Viktor Vekselberg.
  • In addition to the informant report on Zlochevsky’s changed claims about Biden, there were three other dodgy informant reports shared with the Hunter Biden team: from two Ukrainians that seem tied to the Rudy effort, from Gal Luft at meetings where — he has since been accused — he lied about his ties to CEFC, and from Bannon associate Peter Schweizer (the latter of which this important NYT story on Tim Thibault did address).
  • Throughout this period, the IRS supervisor on the investigation documented repeated examples of improper influence on the investigation. In a recent subpoena request, Hunter’s attorney noted that Trump’s improper effort to influence the investigation continues to this day.

In short, basic reporting on Republican efforts to impeach Biden show that it, along with key parts (though not necessarily all) of the investigation into Hunter Biden, are simply a continuation of an effort Trump started in 2018 to frame Joe Biden. That is an effort that involved people that both the US and Ukraine have labeled as Russian spies.

Aside from some key articles (linked above), NYT has covered none of this.

Instead, NYT claims the exact opposite. It claims that the effort to gin up a criminal investigation into Joe Biden didn’t succeed.

And neither effort for which he was impeached succeeded. Mr. Trump tried to coerce Ukraine into opening a criminal investigation into Mr. Biden by withholding military aid, but it did not cooperate.

It’s right there, the full-time pursuit of three different House committees, ongoing, with an FD-1023 about Zlochevsky’s changed claims about Biden and Bobulinksi’s FBI report that seems to have close ties to Trump (in which Bobulinski was represented by a known Maggie Haberman source).

NYT tells you the first term wasn’t that bad, because Trump’s efforts failed. Yet what failed was NYT’s reporting on ongoing events.

NYT tells this fairy tale even as they continue to whitewash Bill Barr’s efforts. In a recent 4,000-word story, in which they claimed that the commutation of Jonathan Braun’s sentence “stood out” more than the pre-trial pardon of Steve Bannon issued the same day, NYT gives Barr two paragraphs to claim he tried to clean up pardons.

William P. Barr, a Trump attorney general who had left by the time of the Braun commutation, said when he took over the Justice Department he discovered that “there were pardons being given without any vetting by the department.”

Mr. Barr added that he told Trump aides they should at least send over names of those being considered so the department could thoroughly examine their records. While the White House Counsel’s Office tried to do so, the effort fell apart under the crush of pardon requests that poured in during the final weeks before Mr. Trump left office, according to people with direct knowledge of the process.

It is true that of the eight pardons given before he arrived, there were some doozies, including Joe Arpaio, Dinesh D’Souza, Scooter Libby, and the ranchers whose arson cases sparked the Malheur occupation.

But Barr was utterly complicit in the most abusive pardons Trump gave. Less than two months after he was confirmed based off repeated assurances that giving a pardon in exchange for false testimony was obstruction, Bill Barr wrote a memo declining to prosecute a crime in process, the effort to use pardons to ensure that Paul Manafort, Roger Stone, Mike Flynn, and others continued to lie to cover up Trump’s ties to Russia in the 2016 campaign. The Barr memo did not once mention pardons, even though that was a key thrust of the second volume of the Mueller Report (something Charlie Savage has also noted).

Of course, NYT joins Barr in that complicity. This story finally mentions one of those pardons in its discussion of Trump’s abuse.

His lawyers floated a pardon at his campaign chairman, whom Mr. Trump praised for not “flipping” as prosecutors tried unsuccessfully to get him to cooperate as a witness in the Russia inquiry; Mr. Trump later did pardon him.

But it does not mention that Manafort specifically lied about why he briefed Konstantin Kilimnik campaign information, an act that the Intelligence Community later stated as fact resulted in the sharing of campaign information with Russian intelligence. This is a topic about which NYT has a still uncorrected story, hiding the tie to Oleg Deripaska.

It’s not that Trump pardoned Manafort for “not flipping.” It’s that he pardoned Manafort after he lied about why the campaign manager shared information that Russian spies could use in their attack on US democracy.

And the very link NYT relies on here mentions the Stone pardon, a commutation and then pardon that halted a still ongoing CFAA conspiracy investigation between Trump’s rat-fucker and the Russians (another detail NYT has never reported).

Yes, I absolutely agree. A second Trump term would be worse.

But repeating that, over and over, even while misinforming readers about the ongoing five year effort to frame Joe Biden is not the best way to prevent a second term.

The Suspected 2019 Exposure of Johnathan Buma’s Source

One of several reasons why I’ve been cautious about FBI counterintelligence agent Johnathan Buma’s claims of whistleblower retaliation is how little care he has shown to protect his former informants.

Since the summer, multiple outlets have reported on Buma’s story, most focusing on Buma’s claim that his supervisors are retaliating because he shared source reporting with the FBI implicating Rudy Giuliani. After a right winger posted his statement, Insider did a story, followed by New Yorker, then MoJo, followed by an on-screen interview with Insider. The other day, MoJo reported that the FBI had searched his home for classified documents.

Buma submitted two complaints to Congress: A shorter one to Jim Jordan’s weaponization committee, and a more detailed one — which was released in redacted form in Insider’s first story on Buma — to the Senate Judiciary Committee. Between the two of them and a follow-up report from Insider, the reporting on Buma described six informants:

  • Dynamo: A US-based businessman with close ties to Ukraine and Russia and, seemingly, a real gripe with Pavel Fuks
  • Rollie: A former KGB agent who evolved into a clandestine operative in the Security Bureau of Ukraine (SBU) after the Soviet Union collapsed and then started a successful real estate business and a foundation that promotes the rule of law in society with stated purpose that includes holding criminal oligarchs accountable or pilfering Ukrainian state funds
  • The Economist: A highly educated academic with expertise in international business and economics who consulted with Ukraine’s Prosecutor General’s Office and Rollie’s foundation
  • Mr. X: A foreign informant with information about specific money laundering transactions pertaining to Ihor Kolomoyskyi
  • Genius: Chuck Johnson, whom Buma had recruited in 2020
  • Peter Thiel

At least four of these informants have been shut down.

Buma describes that his managers shut down Johnson as a source — for what Buma attributes to Johnson’s expression of white supremacist views on social media — in 2021, while the FBI agent was on vacation. Buma dismissed those far right postings as Johnson’s means to retain his credibility among other white supremacists. But Buma doesn’t mention any of the other fifty or so reasons why Johnson was totally inappropriate to be an FBI source, nor does he describe the larger context of FBI’s recognition, after January 6, that they had made a number of key members of militia groups informants to report on topics other than those militia groups. Buma’s treatment of Johnson seriously discredits his claims as it is, but that shocking lapse of judgement is not the point of this post.

Buma described that Rollie and The Economist were only briefly FBI informants in early 2019. He makes it clear they were fairly quickly identified to be part of the larger information operation targeting Joe Biden. While Buma acknowledges that they were part of an info op, he nevertheless claims that information they shared on Hunter Biden was the primary reason the Delaware investigation turned to examine influence peddling and tax crimes. Buma’s claims about the Hunter Biden investigation are among those that don’t match the public record (but which would be interesting, if true, because it might suggest Bill Barr funneled that report to Delaware like he funneled other dodgy allegations).

By contrast, Buma boasts of Dynamo’s productivity, crediting him with a range of critical reporting on organized crime and money laundering. He specifically cites Dynamo’s import in subsequent legal action against Ihor Kolomoyskyi and Serhiy Kurchenko and what he describes to be largely unresolved reporting on Fuks. Buma doesn’t describe Dynamo providing any reporting on Andrii Derkach; indeed, he blames Fuks for Andriy Telizhenko’s information op, not Derkach. Nor does Buma describe Dynamo reporting on Mykola Zlochevsky or which Ukrainians and Russians Dynamo reported on in conjunction with the Mueller investigation.

Buma attributes some reporting Dynamo did, in 2020, on Rudy Giuliani’s fundraising for his Hunter Biden movie as the source of his troubles with his supervisors. While that’s a credible claim, given Barr’s known interference in investigations into Rudy in 2020, Buma’s description of the complexities of DOJ’s interest in Rudy similarly does not match the public record.

As Buma describes it, the Foreign Influence Task Force first recommended he shut down Dynamo after Rollie and the Economist were determined to be an information operation, which he dates to around June 2019. He fought that recommendation successfully. But then following Russia’s invasion of Ukraine in 2022, FITF renewed the recommendation and won that battle. Buma complains that one of his best sources was shut down in spite of his continued productivity.

I don’t doubt there’s some real retaliation against Buma going on. His description of being moved to a surveillance crew on the other side of Los Angeles is the kind of petty thing vindictive bosses do. We will have to wait and see what predicated the search from earlier this week.

But what I don’t get is how Buma ignores the exposure of his sources in all this. Whether or not Dynamo was part of Rollie and the Economist’s information operation (or, as seems likely, Dynamo had started handling Buma to accomplish his own objectives, something that makes Buma’s reported use of his own phone and car to work sources a bigger problem), he would have been burned by his contact with it.

As Buma describes it, Rollie and the Economist came to LA in January 2019 and, thanks to the intervention of Dynamo, presented their claims at the US Attorney’s Office. If that weren’t already enough for a former KGB agent like Rollie to figure out that Dynamo might be an informant, Dynamo’s ties to Rollie led the White House to ask for background information on Dynamo in June 2019.

On June 26, 2019, I recieved request for any/all known information related to the true name of my most sensitive confidential source, DYNAMO. This request for information originated from the White House/Special Events/Intelligence Agencies national name check program, which was sent to me through the FBI New York Field Office (NYFO). Ostensibly, the purpose or this request was to vet DYNAMO’s attendance at special event, To me this appeared to be an attempt to discover if DYNAMO was an FB recruited source. This was deep concern for me, since DYNAMO had direct access to and had reported on individuals connected to the White House related to the Special Counsel investigation. I later learned DYNAMO had taken ROLLIE and THE ECONOMIST to a special event, during which time ROLLIE gave the same thumb drive with derogatory information on it concerning Burisma to Secretary of State Mike Pompeo (Pompeo).

It makes perfect sense that FITF recommended the FBI shut down Dynamo at that point, because from that point forward, the FBI would have had to assume Russia was tracking everything Dynamo was doing and using him to plant disinformation.

But it’s Buma’s carelessness about Dynamo — and all his other sources, even including Chuck Johnson — that I find especially suspect.

As part of his complaint against the FBI, Buma sat down and catalogued a bunch of recent investigations in which he says Dynamo played an instrumental role, I guess in an effort to show how stupid the FBI was to shut him down. By his description, Dynamo has informed on all manner of organized crime, money launderers, and foreign spies. And while Insider made a big show of redacting some of the sensitive references in Buma’s more detailed statement, unsurprisingly — given that Buma shared it with a committee with a few notorious right wing Senators willing to burn anything down — it has circulated in unredacted form freely.

I’m no expert but I’ve got some guesses as to who Dynamo, Rollie, and the Economist are. Even casual members of the Ukrainian exile community in the US no doubt know exactly who they are (the New Yorker spoke with Dynamo for its story, describing him as “a businessman well connected in both Eastern European and American political circles”). Russian spooks are going to know even more.

FBI handling agents don’t do that kind of thing. It’s the kind of thing that can get someone killed.

If Dynamo really had been as valuable as Buma says he was, I can’t imagine Buma would put all this in one report, not even one sent securely to the Intelligence Committees, much less a noted fountain of leaks like SJC. It’s not a question of classified information or not (Buma’s attorney has told the press that the statement, which was seized in the search, did not include classified information). Indeed, the initial right wing blog post, about a different topic entirely, seems just like the kind of vehicle to leak such a document. If Buma believed what he says about Dynamo, his actions seem inexplicable to me.

There’s plenty that is dodgy about the FBI’s own conduct, at least as described. But there are big holes in Buma’s story, starting with his seeming lack of concern for Dynamo’s confidentiality.

Update: Corrected misspelling of Buma’s first name.

In His House Judiciary Committee Testimony, John Durham Confessed that Michael Horowitz Was Right

Given all the discussion of Trump ordering prosecutors to go after his political enemies, I want to go back — way back — to comment on something John Durham said at his House Judiciary Committee testimony in June.

Adam Schiff observed that Durham violated DOJ policy when, in December 2019, he publicly disagreed with the conclusion DOJ’s Inspector General had made in the Carter Page investigation.

Schiff: Mr. Durham, DOJ policy provides that you don’t speak about a pending investigation, and yet you did, didn’t you?

Durham: Um, I’m not exactly sure what–

Schiff: When the Inspector General issued a report saying that the investigation was properly predicated, you spoke out, in violation of Department of Justice, Department of Justice policy, to criticze the Inspector General’s conclusions, didn’t you?

Durham: I issued a public statement. I didn’t do it anonymously, I didn’t do it through third persons, there were —

Schiff: Nonetheless, you violated Department policy by issuing a statement while your investigation was ongoing, didn’t you?

Durham: I don’t know that. If I did, then I did. But I was not aware that I was violating some policy.

Schiff: And you also sought to get the Inspector General to change his conclusion, did you not, when he was concluding that the investigation was properly predicated. Did you privately seek to intervene to change that conclusion?

Durham: This is outside the scope of the report but if you want to go there, we asked the Inspector General to take a look at the intelligence that’s included in the classified appendix that you looked at, and said that that ought to affect portions of his report.

The classified appendix, recall, pertained to what Durham called the “Clinton Plan,” details Dutch intelligence found in purportedly hacked materials at GRU. That included documents purportedly stolen from a top Hillary Foreign Policy Advisor, on which a Russian intelligence product based a claim that,

Hillary Clinton had approved a campaign plan to stir up a scandal against U.S. Presidential candidate Donald Trump by tying him to Putin and the Russians’ hacking of the Democratic National Committee.

From that allegation, Durham appears to have simply made up out of thin air a claim that Hillary planned to fabricate things to tie Trump to Russia, rather than just point to him begging Russia to hack the United States.

First, the Clinton Plan intelligence itself and on its face arguably suggested that private actors affiliated with the Clinton campaign were seeking in 2016 to promote a false or exaggerated narrative to the public and to U.S. government agencies about Trump’s possible ties to Russia. [my emphasis]

In another exchange with Schiff at the hearing, Durham professed to be utterly ignorant of all the things confirmed in the Mueller investigation that provided abundant reason to tie Trump to Russia. There was no need to invent anything.

In any case, what Durham revealed in his testimony is that he shared this information with Michael Horowitz, expecting it would change his mind about the predication of Crossfire Hurricane.

That’s not all that surprising. After all, Durham described as the first mandate of his investigation to determine whether any personnel at the FBI violated federal law by not fully considering potential Russian disinformation before opening an investigation into Trump.

[D]id the FBI properly consider other highly significant intelligence it received at virtually the same time as that used to predicate Crossfire Hurricane, but which related not to the Trump campaign, but rather to a purported Clinton campaign plan “to vilify Donald Trump by stirring up a scandal claiming interference by Russian security services,” which might have shed light on some of the Russia information the FBI was receiving from third parties, including the Steele Dossier, the Alfa Bank allegations and confidential human source (“CHS”) reporting? If not, were any provable federal crimes committed in failing to do so?

To put it bluntly, Bill Barr told John Durham to figure out whether he could charge Peter Strzok (and presumably, Jim Comey and Bill Priestap) for not letting a Russian intelligence report dictate American investigative decisions. And either in an attempt to preempt Horowitz’ conclusion that the investigation was legally predicated or in an attempt to stave off any determination on criminality, Durham pitched him on this theory before publicly attacking his conclusion.

And Durham did so even though — accepting all his conspiracy theories about inventing false claims about Trump were true — that theory never made sense. As Phil Bump (onetwo) and Dan Friedman showed when the report came out, Hillary’s concerns about Trump couldn’t have been the cause of the investigation into Trump. By the time (a Russian intelligence product claimed) that Hillary approved a plan to tie Trump to Russia on July 26, 2016, the events that would lead FBI to open an investigation were already in place. Here’s Friedman:

This isn’t just false. It would require time travel. Durham himself confirms that the FBI launched its investigation into Trump and Russia based on events that occurred months prior to Clinton’s alleged July 26 approval of the plan. In April 2016, George Papadopoulos, a foreign policy adviser to the Trump campaign, met with a professor with Kremlin ties, who informed him that Russia “had obtained ‘dirt’ on…Clinton in the form of thousands of emails,” as Robert Mueller’s final report noted.  A week later, according to Mueller, Papadopoulos “suggested to a representative of a foreign government that the Trump Campaign had received indications from the Russian government that it could assist the Campaign through the anonymous release” of damaging material. When hacked Democratic emails were indeed published—by WikiLeaks on July 22—this foreign diplomat alerted US officials about what Papadopoulos had said. The FBI quickly launched an official investigation into the Trump campaign’s Russia ties in response to that tip, Durham notes, while arguing they should have begun only a “preliminary investigation.”

It was the same Russian hack, not Hillary Clinton, that drove media attention, even before the documents were leaked to the public.

There’s another problem with telling Horowitz that his Clinton conspiracy theory should have changed Horowitz’ conclusions. At the earliest, analysts and Priestap only became aware of the intelligence (though probably without Durham’s spin on it) on September 2, well after the opening of Crossfire Hurricane.

When interviewed by the Office, Auten recalled that on September 2, 2016 – approximately ten days after Headquarters Analyst-2’s email – the official responsible for overseeing the Fusion Cell briefed Auten, Moffa, and other FBI personnel at FBI Headquarters regarding the Clinton Plan intelligence. 411 Auten did not recall any FBI “operational” personnel (i.e., Crossfire Hurricane Agents) being present at the meeting. 412 The official verbally briefed the individuals regarding information that the CIA planned to send to the FBI in a written investigative referral, including the Clinton Plan intelligence information. 413

[snip]

Separate and apart from this meeting, FBI records reflect that by no later than that same date (September 2, 2016), then-FBI Assistant Director for Counterintelligence Bill Priestap was also aware of the specifics of the Clinton Plan intelligence as evidenced by his hand-written notes from an early morning meeting with Moffa, DAD Dina Corsi and Acting AD for Cyber Eric Sporre. 415

And despite looking for four years, Durham never confirmed that CIA’s formal referral memo got shared with Peter Strzok, to whom it was addressed.

In spite of never acquiring such proof, not even after four years of searching, recently confirmed Connecticut Supreme Court Justice Nora Dannehy has confirmed that Barr pushed Durham to release an interim report on those claims. NYT described that plan this way:

By summer 2020, with Election Day approaching, Mr. Barr pressed Mr. Durham to draft a potential interim report centered on the Clinton campaign and F.B.I. gullibility or willful blindness.

On Sept. 10, 2020, Ms. Dannehy discovered that other members of the team had written a draft report that Mr. Durham had not told her about, according to people briefed on their ensuing argument.

Ms. Dannehy erupted, according to people familiar with the matter. She told Mr. Durham that no report should be issued before the investigation was complete and especially not just before an election — and denounced the draft for taking disputed information at face value. She sent colleagues a memo detailing those concerns and resigned.

By that point, Durham hadn’t yet interviewed Priestap and others who might inform him of what they actually learned.

From the start, Durham was pursuing this conspiracy theory. He tried to forestall the damning but inconvenient conclusions of the Horowitz report to sustain his conspiracy theory. And he tried to interfere with the 2020 election with his physics-defying conspiracy theory.

Bill Barr didn’t just order John Durham to investigate Hillary Clinton and all the FBI agents who had deigned to investigate Trump’s ties to Russia. He did so based on a conspiracy theory rooted in Russian intelligence.

Gary Shapley’s Handlers Revisit Past Leak Investigations into Chuck Grassley’s Staff

According to a press release on the website for Empower Oversight–the group handling Gary Shapley’s now-debunked media tour–Empower’s founder, Jason Foster, was the subject of an FBI subpoena to Google in 2017.

Google first alerted Foster to the September 12, 2017 subpoena on October 19, 2023. That’s one of the reasons I find this FOIA so interesting. The notice came more than six years after the subpoena, suggesting FBI likely continued to investigate someone tied to the investigation for at least a year longer than statutes of limitation would normally extend.

Empower seems to suggest there’s a tie between the subpoena and one served on Google pertaining to Kash Patel’s personal email two months later, on November 20, 2017, as does Margot “Federalist Faceplant” Cleveland in this propaganda piece reporting on the subpoenas. While Empower says that this subpoena asked for information on other staffers, it only cites Kash to substantiate its claim that other staffers had also gotten notice of a past subpoena (Cleveland does report that a HPSCI staffer was also included).

Empower Oversight has information indicating that the other accounts listed in the subpoena belonged to other staffers, both Republicans and Democrats, for U.S. House and Senate committees also engaged in oversight investigations of the Justice Department at the time pursuant to their authorities under the U.S. Constitution.

[snip]

Other former staffers have publicly referenced receiving similar notices, including former U.S. House of Representatives Permanent Select Committee on Intelligence (“HPSCI”) staffer Kashyap Patel.

They’re from the same grand jury (16-3). But they not only have different file numbers, but the one on Kash’s subpoena — that is, the later subpoena, by two months — has a lower file number, 2017R01887, as compared to 2017R01896.

Kash is suing roughly the same people over his subpoena as Empower is FOIAing: Empower is asking about former DC US Attorney Jessie Liu, Rod Rosenstein, his one-time Principal Associate Robert Hur (currently the Special Counsel investigating Joe Biden’s classified documents), and Ed O’Callaghan, who replaced Hur, along with then DOJ Spox Sarah Isgur. Kash is suing Liu, Rosenstein, Hur, and O’Callahan, plus FBI Director Chris Wray and the two AUSAs behind the subpoena.

There are problems with both of their target sets. For example, Liu wasn’t even sworn in as US Attorney until September 25, 2017 — after the Foster subpoena (though before the Kash one). So Empower’s suggestion that Liu had some influence on the subpoena on him is nonsense. Rosenstein wasn’t sworn in until April 26, 2017, almost five months after the request for conversations with the press starts.

Similarly, Ed O’Callaghan, whom Kash describes as, “the Principal Associate Deputy Attorney General for Mr. Rosenstein at the time in question,” didn’t move from the National Security Division to Rosenstein’s office until April 2018, after Hur was confirmed as US Attorney for Maryland and long after both the subpoena implicating Kash and his blow-up with Rosenstein. Though if these were really sensitive leak investigations, NSD may have had a role in them. (Empower includes NSD within its FOIA.)

Those details don’t seem to matter for their projects: both men appear to be using the subpoenas as an excuse to settle scores.

Kash, ever the conspiracy theorist, brought a Bivens claim insinuating that Rosenstein and others violated Kash’s Fourth Amendment rights because DOJ served a subpoena — something not requiring probable cause under the Fourth Amendment — to obtain the subscriber information for a list of around 14 identifiers, of which his personal email was just one. There’s nothing on the face of the subpoena to suggest that DOJ knew his email was tied to someone who was a Congressional staffer at the time of the subpoena (though again, Federalist Faceplant seems to know at least one other person listed was a staffer). In fact, the subpoena asked for contact information going back to April 2016, a year before Kash moved from DOJ to HPSCI, so it could have pertained to a leak internal to DOJ.

Nevertheless, Kash spins a tale where the November 2017 subpoena is in some way connected with what he claims is Rosenstein’s threat, over a month later, to subpoena HPSCI staffers.

5. The illegitimate grounds for the subpoena were made clear when, shortly after the FBI and DOJ previewed what would become the “Nunes Memo,” which outlined significant issues with FBI’s and the DOJ’s manner of opening and conducting the Crossfire Hurricane investigation, then-Deputy Attorney General Rod Rosenstein (“DAG Rosenstein”) threatened to subpoena the records of the House Permanent Select Intelligence Committee staff, including Mr. Patel, during a closed-door meeting about producing documents requested by the Committee for their investigation into DOJ’s and the FBI’s, its subagency, conduct in the Crossfire Hurricane investigation.

6. The Department of Justice attempted to defend against the allegation of this threat to Legislative Branch employees, but admitted, at a minimum, that DAG Rosenstein did threaten to subpoena records of Congressional staff in contempt proceedings over the DOJ’s noncompliance with multiple subpoenas. Regardless, this characterization was disputed by multiple Committee staffers, and the matter was referred to the House General Counsel and Speaker of the House as a threat to subpoena records of staffers to halt their investigation.

7. DAG Rosenstein made this threat in January of 2018, approximately one month after his Department of Justice had already subpoenaed Mr. Patel’s email records from Google. This confrontation establishes that DAG Rosenstein and other Defendants were searching for a reason to subpoena Mr. Patel’s official accounts as well as the personal ones that DOJ was already improperly pursuing.

Contrary to Kash’s claim, DOJ didn’t concede Rosenstein threatened to subpoena the HPSCI records. According to a Fox News article Kash himself cites in his suit, DOJ said that Rosenstein was advising staffers to retain their emails so he could use them to defend against any accusation of contempt. Though Rosenstein did threaten to ask the House General Counsel to investigate Kash and whoever else was involved.

A DOJ official told Fox News that Rosenstein “never threatened anyone in the room with a criminal investigation.” The official said the department and bureau officials in the room “are all quite clear that the characterization of events laid out here is false,” adding that Rosenstein was responding to a threat of contempt.

“The Deputy Attorney General was making the point—after being threatened with contempt — that as an American citizen charged with the offense of contempt of Congress, he would have the right to defend himself, including requesting production of relevant emails and text messages and calling them as witnesses to demonstrate that their allegations are false,” the official said. “That is why he put them on notice to retain relevant emails and text messages, and he hopes they did so. (We have no process to obtain such records without congressional approval.)”

Further, the official said that when Rosenstein returns to the United States from a work trip, “he will request that the House General counsel conduct an internal investigation of these Congressional staffers’ conduct.”

This all seems like a retroactive attempt to politicize the investigation into some contact Kash had, potentially even before he joined HPSCI with a lawsuit claiming a violation of the Fourth Amendment under Bivens for a subpoena for toll records that a former DOJ prosecutor, especially, should know are not entitled to any expectation of privacy.

Foster’s claim, which is only a FOIA, not a lawsuit, is a bit less ridiculous (so long as you ignore his demand for communications involving Liu before she started as US Attorney and Rosenstein before he was DAG).

He seems certain that the subpoena for his phone (which he says was used by his spouse) pertained to a leak investigation. He’s filing it to find out if Rosenstein’s office ever got the same scrutiny in leak investigations that (he seems sure) some Congressional staffers got in 2017.

It begs the question of whether DOJ was equally zealous in seeking the communication records of its own employees with access to any leaked information.

[snip]

(5) All communications exchanged between members of the press and DAG Rosenstein, Robert Hur, Edward O’Callaghan, Sarah Isgur, aka Sarah Isgur Flores, and/or Jessie Liu for the period from December 1, 2016 to September 26, 2017, regarding (a) communications between Michael Flynn and Sergey Kislyak, (b) Carter Page, (c) Joe Pientka, (d) Bill Priestap, (e) congressional oversight requests, (f) Senator Charles Grassley, (g) Jason Foster, and/or (h) the Crossfire Hurricane investigation.

(6)All grand jury subpoenas issued for personal communications of DAG Rosenstein, Robert Hur, Edward O’Callaghan, and/or Jessie Liu between May 1, 2017 and May 1, 2018.

(7) All communications exchanged between the U.S. Attorney’s Office for the District of Columbia, the National Security Division, the Deputy Attorney General’s Office and/or the FBI and Verizon between March 15, 2016, and the present regarding obtaining communications data associated with devices that Verizon serviced for U.S. House Representatives or U.S. Senate. [my emphasis]

The time range of the Foster subpoena, December 1, 2016 to May 1, 2017, covers the period of the known leaks about Mike Flynn and Carter Page — the former, especially, one of the leaks Republicans have never stopped bitching because it wasn’t charged. Yet here, a key Republican is complaining there was “no legitimate predicate” in investigating people who were briefed on information that subsequently got leaked.

There appears to have been an extensive and far-reaching effort to use grand jury subpoenas and perhaps other means to gather the personal communications records of innocent congressional staffers and their families with little or no legitimate predicate.

Empower’s mention of Carter Page also situates the subpoena temporally. The subpoena that included a number associated with Foster was served in precisely the same time period that — the Statement of the Offense and sentencing memo for James Wolfe case show — FBI was investigating the leak of the Carter Page FISA. DOJ opened that investigation in April 2017. They had shown enough probable cause against Wolfe to obtain a warrant to covertly image his cell phone by October 2017. No one complained that Wolfe was prosecuted for his presumed role in leaking some of these stories, and his prosecution alone shows that the subpoena had predicate.

Foster may have other specific stories in mind too: In addition to the leaked stories about Flynn undermining US foreign policy with the Russian Ambassador, the FOIA asks about other Russian investigation stories, including Joe Pientka, whose role in briefing Mike Flynn Grassley made into a personal crusade.

Curiously, the Steele dossier is not on here, even though that was another personal crusade of Chuck Grassley.

All that said, the timeline included in the FOIA is broader than that. Here’s how the various timelines overlap, or don’t:

  • Scope of Foster subpoena: December 1, 2016 through May 1, 2017
  • Rosenstein sworn in as DAG: April 26, 2017
  • Date of Foster subpoena: September 12, 2017
  • Jessie Liu sworn in as US Attorney: September 25, 2017
  • Scope of Foster’s FOIA for DAG communications with the press: December 1, 2016 through September 26, 2017
  • Date of Kash subpoena: November 20, 2017
  • Scope of Kash subpoena: May 1, 2016 through November 20, 2017
  • Scope of Foster’s FOIA for grand jury subpoenas targeting DAG: May 1, 2017 through May 1, 2018
  • Scope of Foster’s FOIA for Verizon records of Congressional staffers March 15, 2016 through October 24, 2023

Foster is FOIAing Rosenstein’s office, first, for conversations with the press — including about him — starting on December 1, 2016, before Trump was inaugurated and months before Rosenstein was sworn in on April 26, 2017. He is FOIAing conversations with the press that continue through the day after Liu was sworn in September 2017, still months before O’Callaghan was part of DAG.

Then he’s asking for any grand jury subpoenas (which he knows would be protected under grand jury secrecy rules and so won’t get) from the end date of the subpoena targeting him, after which point both the Flynn and Page investigations were underway, until May 1, 2018 — still four months before Legistorm shows Foster leaving his SJC job on September 4, 2018, but perhaps not coincidentally ending before the time when the Mueller investigation started to more closely probe fellow SJC staffer Barbara Ledeen’s role in Mike Flynn’s 2016 rat-fucking and two weeks shy of an interview when Mueller asked Flynn about Ledeen’s investigation of the investigation. A September 17, 2018 interview asked very specific questions about people leaking claimed details of the investigation to Flynn, as well as Flynn’s contacts with unidentified Congressional staffers.

Again, this request is a test about whether Rosenstein’s office was targeted for leaks, but the leaks that Foster suggest this subpoena pertains to — Mike Flynn’s contacts with Sergey Kislyak and Carter Page’s FISA — happened before any of these people were in DAG. Foster seems interested in leaks about leak investigations, not the leaks themselves.

It’s the final bullet I find the most interesting though. None of the subpoenas he raises in his FOIA — not the subpoena of Kash’s personal email, not the subpoena of his own Google voice phone, and not the subpoena to Apple targeting HPSCI members — target official phone records. But Foster FOIAs for official records as well: All communications between DC USAO, NSD, DAG, and FBI with Verizon — communications that might be something other than a grand jury subpoena — about obtaining phone records for the Congressional devices serviced by Verizon. He’s asking for a much broader period of time, too: March 15, 2016 — early enough to include the start date of Kash’s subpoena, but also to include some of Barbara Ledeen’s rat-fucking with Mike Flynn — through the present, late enough to include any contacts in which Chuck Grassley staffers used their official devices to share information about the Hunter Biden investigation with the press.

This last request is not about Rosenstein; Rosenstein was only DAG for two of the seven and a half years covered by this part of the FOIA.

This FOIA is, on its face, totally uncontroversial (though it attempts to do with a FOIA what DOJ IG is already doing, which it notes). It purports to test whether Rod Rosenstein exempted his own top deputies from the kind of investigative scrutiny to which Rosenstein — always a leak hawk — subjected Congressional staffers. Hell, I’m fairly certain Rosenstein and his top deputies were key undisclosed sources for a bunch of bullshit comments (though most of them were false, and therefore not criminal leaks). Some of those anonymous comments were to the same stable of journalists who also happen to serve as mouthpieces for Chuck Grassley propaganda (and as such, Foster may have specific reason to believe that Rosenstein teed up journalists’ questions to or about him).

And the FOIA for contacts with Verizon gets at important separation of powers issues: under what terms the Executive Branch can investigate the official business of the Legislative Branch, including times when the Legislative Branch is screaming for investigations into leaks that probably (and provably, in the case of Carter Page) include Legislative Branch staffers.

But it also serves as a fishing expedition, by the entity that championed the now debunked claims of Gary Shapley, into potential investigations into transparent ongoing efforts by Chuck Grassley to release details of criminal investigations in the guise of oversight.

In a meeting agenda sent September 3, 2020, Joseph Ziegler included the Senate investigation led by Chuck Grassley and Ron Johnson among topics for discussion.

No later than December 2020, a document shared by Empower Oversight client Gary Shapley reveals, the IRS agents running this investigation cared more about catering to demands from Congress, including from Chuck Grassley, than preserving the investigation.

The USAO and FBI received congressional inquiries concerning this investigation and have repeatedly ignored their requests, openly mocking the members of congress who made the request.

Another document shared by Empower Oversight client Gary Shapley shows that, in May 2021, the IRS agents running the investigation continued to be aware of — and interested in catering to — requests from Congress.

The USAO and FBI received congressional inquiries concerning this investigation and it’s believed they have ignored their requests.

A document released by Empower Oversight client Gary Shapley reflecting a January 6, 2023 call with IRS’ Deputy Field Officer Michael Batdorf alerting him — among other things — that he expected the Delaware US Attorney to make “nefarious” allegations against him, also recorded that by the time, two days after he notified IRS and DOJ IG Inspectors General he was seeking formal whistleblower status which happens to have happened on the day the GOP took the House, his attorney had already, “participated in calls and/or meetings” with “the Congressional Judiciary committees.”

DFO asked about the process and Shapley responded that the Congressional Judiciary committees, OSC, IRS OGC and TIGTA have been notified and have participated in calls and/or meetings with my counsel.

Yet when one of Shapley’s attorneys, Mark Lytle, formally contacted the Chairs and Ranking Members of those same “Congressional Judiciary committees,” the Chairs and Ranking Members of the relevant finance committees, along with Chuck Grassley on April 19, 2023, he did not treat those contacts with the judiciary committees as protected disclosures. The letter mentions that Grassley is a member of the Finance Committee, but doesn’t mention that Grassley is a member and former Chair of the Judiciary Committee.

That was the first moment, publicly at least, that Empower Oversight client Gary Shapley sought protection to share IRS protected information with Congress. That is, even according to Lytle, if Shapley shared any IRS protected information — to say nothing of grand jury protected information — prior to that, by the plain terms of his letter it was not under a grant of protection.

A month after Gary Shapley’s claims — facilitated by Empower Oversight — were soundly debunked by his own documentation and his colleagues, Empower Oversight filed a FOIA that would, among other things, attempt to learn whether the FBI was conducting any investigation of leaks to the press from Chuck Grassley’s staffers, covering the period in 2016 when a Chuck Grassley staffer attempted to reach out to hostile intelligence services to find dirt on Hillary Clinton, the period when a Grassley staffer was seeding press stories — some that were fabrications — about the Russian investigation, and the period of time when those investigating Hunter Biden were more solicitous of requests from members of Congress like Chuck Grassley than they were in protecting the ongoing investigation.

Donald Trump Raises Conflict Concerns about His Mike Flynn Pardon

The data mules for Trump’s latest tirade seem to think his claims that Sidney Powell was never his lawyer are all an attempt to deny he ever took legal advice from Powell in the wake of her plea deal in Georgia.

But the substance of his tirade is far more interesting than that.

Trump doesn’t just claim that Sidney Powell was never his attorney — a claim that conflicts with claims Trump made in real time.

He says she would have been conflicted.

Immediately after Trump claims Sidney Powell would have been conflicted (because of what? Trump doesn’t say), the former President turns to the Thanksgiving pardon he gave to confessed agent of Turkey, Mike Flynn.

Trump implies he gave Flynn a pardon because, “He was an innocent man, much like many other innocent people who are being persecuted by this now Fascist government of ours.” But as we’ve just reviewed thanks to Flynn’s stupid lawsuit against DOJ, the pardon itself did not make that claim. Only a White House press release about the pardon did.

Plus, the pardon couldn’t have been based on innocence, not entirely, anyway, because Flynn made false statements in the process of reneging off his prior guilty plea to making false statements. It is quite literally impossible for Flynn to have been innocent of making any unlawful false statements, because the things he said in the process of reneging on his plea deal completely contradicted things he had said under oath earlier. The Flynn pardon was easily the most expansive of any pardons Trump gave (perhaps save the clemency for Roger Stone found in Trump’s desk drawer, which could pardon Stone for murdering someone on Fifth Avenue for all we know). It had to be written that broadly to prevent Judge Sullivan from referring Flynn for perjury before his court. The pardon covered not just the lies Flynn told the FBI on January 24, 2017, it also covered claims Flynn made before an EDVA grand jury and in plea colloquies before Sullivan.

So here we are, just days after DOJ submitted a response to Trump’s claim of absolute immunity that argued — among other things — that a presidential pardon given as part of a quid pro quo would be unlawful, and Trump is offering up not just that Sidney Powell wasn’t his attorney in November 2020 when he claimed she was, but that she would have been conflicted — apparently because of her representation of Mike Flynn! — from being his attorney.

In real time, I addressed the possibility that Trump’s public claims about whether Sidney Powell was or was not his attorney may have been an attempt to eliminate the conflict problem with Flynn’s pardon.

I wonder whether some smart lawyer grew concerned that Sidney Powell was claiming to represent the President even while she was representing someone asking for a pardon.

On November 15, Trump explicitly named Powell as part of his team. On November [19], Powell appeared at Rudy the Dripper’s press conference. On November 22, Rudy and Jenna Ellis made a show of cutting ties with her.

Sidney Powell is practice law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity.

According to Maggie Haberman, either he didn’t like her appearance and/or advisors convinced Trump to separate himself from her nutjobbery. Three days later, November 25, Trump pardoned Powell’s client. The next day, after days of promising to Bring the Kraken, Powell finally started releasing her epically batshit suits. Trump has promoted them.

Indeed, it even appears some Administration lawyers are still associated with Powell’s efforts.

I’m not sure I understand whether there would be a conflict between Powell representing Trump (for free, inevitably, as all lawyers do), making desperate efforts to overturn the election at the same time she was trying to ensure her client did no prison time. If that’s a conflict, it may still exist anyway given Powell’s admission to Judge Sullivan that she had repeatedly discussed Flynn with Trump’s campaign lawyer, Jenna Ellis. The fact that DOJ packaged up altered documents to support a Trump attack on Biden may make those ties more important anyway (or lead to more details about them becoming public).

That was the publicly available timeline (and Maggie Haberman’s public explanation) when I wrote the post on November 27, 2020, just two days after the pardon.

But Trump’s January 6 indictment adds a few details to that timeline in the single solitary paragraph addressing Powell’s overt acts, which happens to be tucked away in the section on Georgia, the state where Powell just pled guilty.

On November 16, 2020, on the Defendant’s behalf, his executive assistant sent CoConspirator 3 and others a document containing bullet points critical of a certain voting machine company, writing, “See attached – Please include as is, or almost as is, in lawsuit.” CoConspirator 3 responded nine minutes later, writing, “IT MUST GO IN ALL SUITS IN GA AND PA IMMEDIATELY WITH A FRAUD CLAIM THAT REQUIRES THE ENTIRE ELECTION TO BE SET ASIDE in those states and machines impounded for non-partisan professional inspection.” On November 25, Co-Conspirator 3 filed a lawsuit against the Governor of Georgia falsely alleging “massive election fraud” accomplished through the voting machine company’s election software and hardware. Before the lawsuit was even filed, the Defendant retweeted a post promoting it. The Defendant did this despite the fact that when he had discussed CoConspirator 3’s far-fetched public claims regarding the voting machine company in private with advisors, the Defendant had conceded that they were unsupported and that Co-Conspirator 3 sounded “crazy.” Co-Conspirator 3’s Georgia lawsuit was dismissed on December 7.

Here’s how the timeline looks with the details from the indictment added in:

  • November 15: Trump says publicly Powell was part of his team
  • November 16: Nine minutes after Trump demanded lawsuits include attacks on Dominion, Powell orders that all forthcoming lawsuits include it: “IT MUST GO IN ALL SUITS IN GA AND PA IMMEDIATELY WITH A FRAUD CLAIM THAT REQUIRES THE ENTIRE ELECTION TO BE SET ASIDE”
  • November 19: Powell appears at the Rudy the Dripper press conference, looking far less embarrassing than the President’s lawyer, which didn’t stop Maggie Haberman from claiming that Powell’s appearance was the reason Trump was cutting Powell from his legal team
  • November 22: Jenna Ellis and Rudy make a big show of cutting ties with Powell
  • November 25: Having ordered that all lawsuits include the Dominion attack Trump ordered, Sidney Powell then files the first lawsuit including such an attack; on the very same day, Trump pardons her client and then starts disseminating her bullshit attacks on Dominion

At least according to the indictment, it all happens on the same day: The lawsuit attacking Dominion, the pardon, Trump’s celebration of the lawsuit attacking Dominion.

The indictment focuses on Trump’s claims that Powell was crazy — and up until now I have believed that’s in there as a guaranteed way to show that Trump was pushing lies he had disavowed.

But with Trump ranting about cooperating witness Sidney Powell’s conflicts, I’m no longer so sure.

Update: Fixed date of hair dye presser, h/t critter.

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