A Less Obvious Question about NYT’s Reporting on Trump-Russia

[NB: As always, check the byline. /~R.]

Over the last several years, one thing has bothered me about The New York Times, something not immediately obvious in these related pieces of what may be the most important work the paper published since the early 2000s and the Iraq War. By “important” I don’t mean effective, nor do I mean constructive.

October 31, 2016

Investigating Donald Trump, F.B.I. Sees No Clear Link to Russia
POLITICS By Eric Lichtblau and Steven Lee Myers

WASHINGTON — For much of the summer, the F.B.I. pursued a widening investigation into a Russian role in the American presidential campaign. Agents scrutinized advisers close to Donald J. Trump, looked for financial connections with Russian financial figures, searched for those involved in hacking the computers of Democrats, and even chased a lead — which they ultimately came to doubt — about a possible secret channel of email communication from the Trump Organization to a Russian bank.

Law enforcement officials say that none of the investigations so far have found any conclusive or direct link between Mr. Trump and the Russian government. And even the hacking into Democratic emails, F.B.I. and intelligence officials now believe, was aimed at disrupting the presidential election rather than electing Mr. Trump. …

January 20, 2017

Trump, Russia, and the News Story That Wasn’t
PUBLIC EDITOR By Liz Spayd

LATE September was a frantic period for New York Times reporters covering the country’s secretive national security apparatus. Working sources at the F.B.I., the C.I.A., Capitol Hill and various intelligence agencies, the team chased several bizarre but provocative leads that, if true, could upend the presidential race. The most serious question raised by the material was this: Did a covert connection exist between Donald Trump and Russian officials trying to influence an American election?

One vein of reporting centered on a possible channel of communication between a Trump organization computer server and a Russian bank with ties to Vladimir Putin. Another source was offering The Times salacious material describing an odd cross-continental dance between Trump and Moscow. The most damning claim was that Trump was aware of Russia’s efforts to hack Democratic computers, an allegation with implications of treason. Reporters Eric Lichtblau and Steven Lee Myers led the effort, aided by others. …

May 16, 2018

Code Name Crossfire Hurricane: The Secret Origins of the Trump Investigation
POLITICS By Matt Apuzzo, Adam Goldman and Nicholas Fandos

WASHINGTON — Within hours of opening an investigation into the Trump campaign’s ties to Russia in the summer of 2016, the F.B.I. dispatched a pair of agents to London on a mission so secretive that all but a handful of officials were kept in the dark.

Their assignment, which has not been previously reported, was to meet the Australian ambassador, who had evidence that one of Donald J. Trump’s advisers knew in advance about Russian election meddling. After tense deliberations between Washington and Canberra, top Australian officials broke with diplomatic protocol and allowed the ambassador, Alexander Downer, to sit for an F.B.I. interview to describe his meeting with the campaign adviser, George Papadopoulos.

The agents summarized their highly unusual interview and sent word to Washington on Aug. 2, 2016, two days after the investigation was opened. Their report helped provide the foundation for a case that, a year ago Thursday, became the special counsel investigation. But at the time, a small group of F.B.I. officials knew it by its code name: Crossfire Hurricane. …

January 11, 2019

F.B.I. Opened Inquiry Into Whether Trump Was Secretly Working on Behalf of Russia
POLITICS By Adam Goldman, Michael S. Schmidt and Nicholas Fandos

WASHINGTON — In the days after President Trump fired James B. Comey as F.B.I. director, law enforcement officials became so concerned by the president’s behavior that they began investigating whether he had been working on behalf of Russia against American interests, according to former law enforcement officials and others familiar with the investigation.

The inquiry carried explosive implications. Counterintelligence investigators had to consider whether the president’s own actions constituted a possible threat to national security. Agents also sought to determine whether Mr. Trump was knowingly working for Russia or had unwittingly fallen under Moscow’s influence.

The investigation the F.B.I. opened into Mr. Trump also had a criminal aspect, which has long been publicly known: whether his firing of Mr. Comey constituted obstruction of justice. …

I can’t help wondering what NYT’s former former executive editor Jill Abramson would have done in 2016 when presented with a draft of what would become the October 31st article.

I can’t help wondering yet again, a handful of years later, what the real reasons were that Abramson was fired in May 2014 — during a mid-term election year — after a mere 32 months in that role. Her predecessor Bill Keller had been in that same role for eight years.

Admittedly, I don’t think much of current executive editor Dean Baquet‘s decisions, and not just about this particular story arc. But it’s this arc which really gives me pause about NYT’s editorial management, as does the irrational amount of coverage the NYT focused during the 2016 campaign season on Hillary Clinton’s emails.

Did we end up with this mess because a traditional media company had difficulty with a woman’s editorial management style? Or because she might be sympathetic to women running for public office?

You’ve got a lot to say about the NYT’s reporting on this topic. Go for it.

Paul Manafort’s Ongoing Conspiracy with Suspected Russian Agent Konstantin Kilimnik

Because the NYT corrected an error (noting that Paul Manafort instructed Konstantin Kilimnik to pass on Trump polling data to pro-Russian Ukrainian oligarchs Serhiy Lyovochkin and Rinat Akhmetov, not Russian oligarch Oleg Deripaska), the usual suspects are claiming that the really damning disclosures revealed by Paul Manafort’s filing of the other day don’t yet prove Trump’s campaign manager conspired with Russia.

Manafort already pled guilty to conspiring with Russian Konstantin Kilimnik

I saw claims as recently as the other day that no Trump associate has been charged or pled guilty to conspiring with a Russian. That’s false.

As part of his plea agreement in September, Manafort pled guilty to conspiring with Kilimnik, a Russian citizen, to witness tamper.  Admittedly, this particular conspiracy took place in 2018, not 2016, and it served not to tamper with the 2016 election, but to hide the ways in which Manafort kept secret that he was an agent of Ukraine spending millions to influence US policy. But, as Mueller has described it, Manafort committed a series of crimes designed to hide his ongoing ties to Russian-backed Ukrainian oligarchs after being fired from the Trump campaign in significant part to sustain lies he and Rick Gates told while still working for Donald Trump.

In other words, one purpose of his conspiracy with Kilimnik was to hide the fact that Trump’s campaign manager — who, in spite of being broke, worked for “free” throughout the campaign — had been a paid agent of Ukraine.

The Russian Manafort conspired with, Konstantin Kilimnik is suspected of ties to the same agency that hacked the DNC

Past Mueller filings have made it clear that Kilimnik is suspected to have ties to a Russian intelligence agency. The FBI thinks so.

Federal Bureau of Investigation Special Agents assisting the Special Counsel’s Office assess that [Kilimnik] has ties to a Russian intelligence service and had such ties in 2016

And Rick Gates knew of those ties.

During his first interview with the Special Counsel’s Office, [Alex] van der Zwaan admitted that he knew of that connection, stating that Gates told him [Kilimnik] was a former Russian Intelligence Officer with the GRU.

The GRU, of course, is the Russian intelligence agency that hacked the Democrats in 2016. So Manafort has pled to conspiring not just with any Russian, but a Russian believed to have ties with the agency that hacked the DNC.

Akhmetov was named — in the same interview as Deripaska — in the affidavit for a 2017 probable cause search warrant targeting Manafort

Akhmetov, one of the oligarchs with whom NYT’s correction say Manafort did share data, was described in the probable cause warrant the FBI used to raid Manafort’s condo in July 2017. Indeed, Manafort described working for both Akhmetov and Deripaska in the same period he was supporting Viktor Yanukoych.

This suggests it’s difficult to separate Manafort’s historical criminal behavior involving Akhmetov from that involving Deripaska. And Kilimnik was involved in both.

Akhmetov and Lyovochkin were paying Manafort while he was working for Trump for “free”

As part of Manafort’s spox’s “clarifications” about the disclosures made clear in the redacted filing, he admitted that a $2.4 million payment Manafort anticipated — in an August 2016 email to his accountant — that he would receive in November was from Akhmetov and Lyovochkin. While that payment is understood to be debts owed for past work, his decision to share campaign data with the oligarchs seems to have been tied to ensuring he did get that payment.

If that’s right, it suggests that that $2.4 million payment, at a time when Manafort was broke but nevertheless working for “free,” had some tie to his work on the campaign.

Lyovochkin made an illegal donation to Donald Trump’s inauguration fund

Another Kilimnik business partner, Sam Patten, pled guilty (in part) to laundering a $50,000 donation to Trump’s inauguration fund for tickets to his inauguration.

To circumvent the foreign donation restriction, PATTEN, with the knowledge of Foreigner A, solicited a United States citizen to act as a “straw” purchaser so that he could conceal from the [Presidential Inauguration Committee] that the tickets for the inauguration were being paid for from a foreign source. The straw purchaser paid $50,000 for four inauguration tickets. The straw purchaser paid that sum one day after receiving from [Begemot Ventures] a check signed by PATTEN in the sum of $50,000. In turn, [Lyovochkin] had paid [Begemot] for the tickets though a Cypriot account. [Kilimnik and Lyovochkin] another Ukrainian, and PATTEN were allocated the four inauguration tickets. Thereafter, PATTEN attended a PIC event in Washington, D.C. with [Lyovochkin].

Thus, in addition to paying Trump’s campaign manager during the campaign, Lyovochkin made an illegal donation to Trump’s inauguration (and remember, there are outstanding questions about where all the inauguration funds went).

Manafort discussed Ukraine every time he spoke with Kilimnik during the campaign; those discussions included a Russian-friendly “peace plan”

Among the other lies Manafort told when he was supposed to be cooperating with Mueller pertained to his repeated conversations with Kilimnik. And while Manafort tried to minimize the persistence with which they discussed such things, suggesting he may have discussed a Ukraine peace plan more than once.

After being shown documents, Mr. Manafort “conceded” that he discussed or may have discussed a Ukraine peace plan with Mr. Kilimnik on more than one occasion

But Mueller maintains they have detailed descriptions showing the peace plan came up “at each” meeting they had, which suggests it was a key part of why the Russians and Ukrainians in touch with Manafort through Kilimnik were in touch with him.

And, again, both these lies and Manafort’s lies in 2018 and Manafort’s lies in 2016 and 2017 were all intended to hide these ongoing relationships, in significant part to hide Trump’s campaign ties to all of this.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Oleg Deripaska Met Sergei Millian at the St. Petersburg Forum Michael Cohen Would Have Met Putin

In a piece puzzling through why Oleg Deripaska — who wrote a deceptive op-ed that was published at his outlet — would get polling data from Trump’s campaign manager [Note, NYT has updated reporting to specify that Manafort sent the data to Serhiy Lyovochkin and Rinat Akhmetov], Chuck Ross mentions something that has entirely new meaning given recent disclosures. Oleg Deripaska met with Sergei Millian at the St. Petersburg Economic Forum in June 2016.

Deripaska has denied through intermediaries being a source for Steele, though he was spotted in June 2016 at an economic forum in St. Petersburg with Sergei Millian, an alleged source for the dossier.

Here’s a photo of the meeting, which Wendy Siegelman found.

Of course, Ross mostly cares about all this because Millian was allegedly a source for the Christopher Steele dossier, not for all the other events this one intersects with.

Consider the timeline of some key events below.

It shows that the email hacks paralleled Manafort’s increased responsibility on the campaign.

But even as Russia’s operation to release dirt on Hillary was proceeding (and Russians were reaching out to George Papadopoulos to dangle emails as well), Michael Cohen was negotiating a Trump Tower deal, via Felix Sater, which was premised on a meeting between him — and then later, Trump — and Vladimir Putin. On June 9 — the same day that Don Jr told Aras Agalarov’s representatives that the Trumps would revisit sanctions if Trump was elected — Cohen even started to book his travel for that meeting. He canceled those plans, however, on the same day Russia’s role in hacking the DNC became public.

But two key figures in the operation did meet at the St. Petersburg Forum: Deripaska and Millian. And Millian would pick up the Trump Tower deal after the RNC Convention, laundering it, at that point, through a junior staffer who had proven to be a useful go-between for the Russians.

We don’t know whether Deripaska, whom Steele was pitching as a viable partner to counter Russian organized crime, was a source for Steele’s dossier. We do know that Manafort is the one who pushed Trump to discredit the Russian investigation by attacking the dossier.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Timeline

January 12, 2016: Steele writes Bruce Ohr to say Oleg Deripaska may obtain a visa for later that year

January 20: Michael Cohen speaks with Dmitry Peskov’s personal assistant for 20 minutes about Trump Tower deal

January 21: Putin’s office contacts Felix Sater about Trump Tower deal

February 21: Steele sends Ohr Orbis reporting claiming Deripaska was not a tool of the Kremlin

February 29: Manafort drafts proposal to work for “free” for Trump

March 19: GRU hacks John Podesta

March 29: After the intervention of Roger Stone and Tom Barrack, Manafort joins the Trump campaign, initially only as Convention Chair

April: Manafort asks Kilimnik,”How do we use to get whole?”

April 18: GRU hacks into DNC via DCCC

April 26: George Papadopoulos learns Russians are offering election assistance in form of leaked emails

April 27: In first foreign policy speech Papadopoulos includes signal to Russians to meet

May 4: Cohen tells Sater he’ll do a trip to Russia before the Convention; Trump will do one after

May 5: Sater passes on Peskov invite to Cohen to attend St. Petersburg Forum to meet Putin or Medvedev

May 19: Manafort formally named campaign chair

May 21: Manafort forwards request for Trump meeting to Rick Gates, warning against sending a signal

June 3: Rob Golstone starts arranging meeting with Don Jr.

June 7: Manafort meets with Trump and Trump announces he’ll have an announcement about Hillary

June 8: GRU releases first emails via dcleaks

June 9: Trump Tower meeting presents dirt for sanctions relief; Cohen makes plans for trip to St. Petersburg Forum

June 14: WaPo reveals Russia hacked DNC; Cohen cancels plan for St. Petersburg trip

June 15: Guccifer 2.0 created

June 16-19: St. Petersburg forum (Putin does attend)

June 20: First Steele report, allegedly relying on Millian as one source

July 7: Manafort tells Kilimnik he’s willing to provide Deripaska private briefings; Ohr call with Steele about Deripaska

Week of July 15: Trump campaign prevents change making platform more belligerent to Ukraine

July 21: Sater visits Trump Tower

July 22: George Papadopoulos asks Ivan Timofeev to help prep for a meeting with Sergei Millian; Millian would eventually pitch Papadopoulos on Trump Tower Moscow deal

August 3: Manafort and Kilimnik meet in New York

August 17: Manafort fired from campaign

August: Manafort and Tom Barrack take boat trip, meet Kilimnik

October 18: Steele and Ohr discuss dispute between Ukraine and RUSAL

January 11 or 12, 2017: Manafort contacts Reince Priebus to tell him how to use the Steele dossier to discredit Russian investigation (remember, Manafort insists he didn’t lie about meeting with Trump officials, because those meetings happened before inauguration)

January 27: Papadopoulos agrees to meet FBI without a lawyer, in part in hopes of sustaining possibility of a job with Trump Admin and possibly a deal with Millian

January or February 2017: Manafort meets Kilimnik in Madrid

Manafort Claims He Can’t Be a Witness to Trump’s Conspiracy with Russia because He Managed the Campaign

As more detail has come out about the events about which Paul Manafort lied to Mueller’s prosecutors, the method of his lie becomes more clear: it serves to excuse anything that might taint Trump’s campaign with conspiracy with Russia; it excuses that by claiming forgetfulness caused by the busyness of that campaign. Manafort cannot be a witness to the Trump campaign’s conspiracy with Russia, you see, because his memory of those events is too garbled because he was campaign manager at the time.

Only that excuse doesn’t work.

In their redaction fail submission the other day, Manafort’s lawyers addressed each of the subjects about which Mueller accused Manafort of lying in what appears to be the same order as Mueller’s prosecutors laid them out in their own submission last month:

  1. Interactions with Kilimnik
    • Issue a (page 4-5)
    • Issue b (page 5-6)
    • Issue c (page 6)
  2. Kilimnik’s role in the obstruction conspiracy
  3. Payment to a firm working for Manafort
  4. Another DOJ investigation
  5. Contact with the Administration

But rather than dealing with Issues a, b, and c separately, Manafort lumps all three into one discussion, like this:

It is accurate that after the Special Counsel shared evidence regarding Mr. Manafort’s meetings and communications with Konstantin Kilimnik with him, Mr. Manafort recalled that he had – or may have had – some additional meetings or communications with Mr. Kilimnik that he had not initially remembered. The Government concludes from this that Mr. Manafort’s initial responses to inquiries about his meetings and interactions with Mr. Kilimnik were lies to the OSC attorneys and investigators. (See, e.g., Doc. 460 at 5 (After being shown documents, Mr. Manafort “conceded” that he discussed or may have discussed a Ukraine peace plan with Mr. Kilimnik on more than one occasion); id. at 6 (After being told that Mr. Kilimnik had traveled to Madrid on the same day that Mr. Manafort was in Madrid, Mr. Manafort “acknowledged” that he and Mr. Kilimnik met while they were both in Madrid)).

It is not uncommon, however, for a witness to have only a vague recollection about events that occurred years prior and then to recall additional details about those events when his or her recollection is refreshed with relevant documents or additional information. Similarly, cooperating witnesses often fail to have complete and accurate recall of detailed facts regarding specific meetings, email communications, travel itineraries, and other events. Such a failure is unsurprising here, where these occurrences happened during a period when Mr. Manafort was managing a U.S. presidential campaign and had countless meetings, email communications, and other interactions with many different individuals, and traveled frequently. In fact, during a proffer meeting held with the Special Counsel on September 11, 2018, Mr. Manafort explained to the Government attorneys and investigators that he would have given the Ukrainian peace plan more thought, had the issue not been raised during the period he was engaged with work related to the presidential campaign. Issues and communications related to Ukrainian political events simply were not at the forefront of Mr. Manafort’s mind during the period at issue and it is not surprising at all that Mr. Manafort was unable to recall specific details prior to having his recollection refreshed. The same is true with regard to the Government’s allegation that Mr. Manafort lied about sharing polling data with Mr. Kilimnik related to the 2016 presidential campaign. (See Doc. 460 at 6). The simple fact that Mr. Manafort could not recall, or incorrectly recalled, specific events from his past dealings with Mr. Kilimnik – but often (after being shown or told about relevant documents or other evidence) corrected himself or clarified his responses – does not support a determination that he intentionally lied.

The way in which Manafort’s lawyers cite from Mueller’s text (which I’ve bolded above) even makes it clear which discussion is which, with “issue a” including the “conceded” quotation on the correct page to be Ukraine.

“Issue b” includes the “acknowledged” quotation on the correct page to pertain to the Madrid meeting.

That — plus the page number — makes it clear that “issue c” is the sharing of polling data.

By submitting this filing with failed redactions — whether intentionally or not — Manafort’s lawyers have told co-conspirators precisely what events Mueller asked questions about during proffer sessions, as well as what kind of evidence Mueller had obtained to learn about those events. Mueller has electronic communications, drafts, and travel records proving multiple discussions about a Ukraine peace plan, he has evidence of Kilimnik’s travel to Madrid, and he has email and testimonial evidence describing how he and Gates shared polling data with Kilimnik.

And while Manafort doesn’t think a hearing in which Mueller could provide more evidence that Manafort lied about conspiring with a former or current GRU officer is necessary, he would like witness statements about which he could find some opportunity to fail to redact in the future.

While a hearing regarding the Government’s “good faith” in declaring a breach of the plea agreement is not necessary, to the extent that there are witness statements that the OSC contends demonstrate Mr. Manafort’s intentional falsehoods, these should be produced to the defense. After having an opportunity to review such statements and any other documentary evidence, the defendant would then suggest that the issues be narrowed during the usual sentencing process in the parties’ submissions to the U.S. Probation Office in the preparation of the PSR.

By treating all three of his Kilimnik lies as one, Manafort excuses the lie about the Madrid meeting — which Manafort’s spox issued a “clarification” to explain happened in January or February 2017 — the same way he excuses the lies about events that happened during the campaign — he was too busy running a campaign to remember them all.

[T]hese occurrences happened during a period when Mr. Manafort was managing a U.S. presidential campaign and had countless meetings, email communications, and other interactions with many different individuals, and traveled frequently.

This is, of course, nonsense! Even the Ukrainian discussions (which Manafort’s lawyers try to minimize as maybe having been discussed on more than one occasion, but which Mueller has reason to believe got discussed “at each meeting” Kilimnik had with Manafort) appears to have extended beyond the time when Manafort was ousted from the campaign, as Kilimnik was still talking about it (though trying to distance Manafort from it) in February 2017, around the time he met Manafort in Madrid.

Kilimnik also said that he had drafted a plan to bring peace to Ukraine in the nearly three-year-old conflict with Russia.

He referred to it as a “Mariupol plan,” a reference to the southeastern port city that abuts the current line of conflict between government forces and Russia-backed separatist fighters.

It would bring Yanukovych back to Ukraine as a regional leader in the Donetsk and Luhansk provinces, where fighting has raged on and off for nearly three years, or possibly involve others such as the current separatist leaders there.

That plan, which Kilimnik said Manafort was not involved with, would face almost certain opposition in Kyiv since it calls for Yanukovych returning to Ukraine from Russia, where he fled in February 2014.

It is nonsense to claim that the daily grind of a campaign he had exited at least five months earlier, or protective confinement in jail, or gout can explain why Manafort forgot a meeting that involved flying to a European city to attend.

Nevertheless, that’s the explanation Manafort’s lawyers offered in their attempt to claim that Manafort really had good intentions while he was supposed to be cooperating with Mueller, he just had a bad memory of all his ongoing conspiring with a former or current officer from the same Russian intelligence service that hacked Trump’s opponent.

Yet, in spite of the defense claim that “there is no identifiable pattern to Mr. Manafort’s purported misrepresentations – no specific individual or potential crime is identified in the Government’s submission,” there actually is. On top of trying to dissociate a guy with whom he conspired from the conspiracy he pled guilty to, Manafort is excusing his forgetfulness about anything that might show a conspiracy between him, while he was campaign manager for the Trump campaign, and Kilimnik, by saying his activities as campaign manager prevent him from remembering conspiring with Kilimnik while working for the campaign.

Only, for that to be true, whatever “campaign” Manafort was running would have had to extend well into 2017.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Manafort’s Redaction Fail Tells Trump that Mueller Caught Him Lying about His Russian Handler, Konstantin Kilimnik

Boy do I look stupid! This morning, I suggested that Robert Mueller had finally found a way to shut Paul Manafort up. Then I went away for a few hours, and come back to discover Manafort’s filing on the lies he got caught telling about the information he shared with Konstantin Kilimnik. The redactions covering up details of that information-sharing are easily reversible, showing the following:

Manafort lied about three communications with Kilimnik

Two redactions in a section on Manafort’s interactions with Kilimnik hide that he went to Madrid and listened to a Kilimnik pitch on a peace plan for Ukraine.

(See, e.g., Doc. 460 at 5 (After being shown documents, Mr. Manafort “conceded” that he discussed or may have discussed a Ukraine peace plan with Mr. Kilimnik on more than one occasion); id. at 6 (After being told that Mr. Kilimnik had traveled to Madrid on the same day that Mr. Manafort was in Madrid, Mr. Manafort “acknowledged” that he and Mr. Kilimnik met while they were both in Madrid)).

[snip]

In fact, during a proffer meeting held with the Special Counsel on September 11, 2018, Mr. Manafort explained to the Government attorneys and investigators that he would have given the Ukrainian peace plan more thought, had the issue not been raised during the period he was engaged with work related to the presidential campaign. Issues and communications related to Ukrainian political events simply were not at the forefront of Mr. Manafort’s mind during the period at issue and it is not surprising at all that Mr. Manafort was unable to recall specific details prior to having his recollection refreshed. The same is true with regard to the Government’s allegation that Mr. Manafort lied about sharing polling data with Mr. Kilimnik related to the 2016 presidential campaign. (See Doc. 460 at 6).

He excuses this lie by saying that he was just so busy with the campaign that he didn’t pay attention to the requests his Russian handler was making of him during the campaign.

Perhaps more damning still — given that the Russians were stealing Hillary’s analytics well into September — is the revelation that Manafort shared polling data with Kilimnik, a lie about which Manafort offers no real excuse.

Update: I believe the filing means to say Manafort lied about three things:

  • Sharing polling data from the campaign
  • Discussing a Ukraine peace deal multiple times
  • Meeting in Madrid

Only the first definitively happened in 2016; the confusion regarding the rest stems from Manafort’s excuse that he forgot about it all because he was running a campaign. But a number of his other excuses are stupid so it wouldn’t be surprising if this was.

Manafort claims his pattern of covering for Kilimnik doesn’t amount to a pattern of covering for Kilimnik

Most remarkable, in a brief that addresses three lies about Konstantin Kilimnik and one about Tom Barrack (who is believed to have been in the loop on at least one of their meetings), Manafort’s lawyers claim there’s no pattern here.

Notably, there is no identifiable pattern to Mr. Manafort’s purported misrepresentations – no specific individual or potential crime is identified in the Government’s submission.

I guess, sure, you could say there’s no pattern to the many other people he attempted to protect with his obstruction.

But it’s clear that Kilimnik is a key one, especially given Manafort’s embarrassing lawyer that in spite of Kilimnik’s agreement to help him tamper with witnesses, he can’t say that Kilimnik entered into a conspiracy with him.

Mr. Manafort was asked to agree that Mr. Kilimnik, too, possessed the requisite state of mind to legally establish his guilt. Mr. Manafort balked at this characterization, because he did not believe he could confirm what another person’s internal thoughts or understandings were, i.e., another individual’s state of mind.

Manafort doesn’t much care that Mueller caught him lying

Manafort’s lawyers don’t offer much by way of explanation for his lies. They note he was being held in solitary, suffered from gout, and did not have an opportunity to review documents before telling these lies. But they concede that given the “good faith” standard on breaching the plea agreement they consented to, there’s not much to argue about. So long as Mueller doesn’t charge Manafort further, they won’t contest the finding he breached the agreement, even while claiming the breach was not intentional.

Despite Mr. Manafort’s position that he has not made intentional misstatements, he is not requesting a hearing on the breach issue. As discussed further below – given the highly deferential standard that applies to the Government’s determination of a breach and the Government’s stated intention to limit the effect of the breach determination to its advocacy at sentencing in this case1 – Mr. Manafort suggests that any necessary factual determinations are better addressed as part of the presentencing report (“PSR”) process.

1 Based upon discussions occurring after the November 30 and December 11 hearings, the OSC has advised that the only remedies it currently plans to seek related to the alleged breach relate to its position regarding sentencing in this matter. Should the Government seek to bring additional charges or take any other adverse action beyond its sentencing position, the defendant reserves his right to challenge the Government’s breach determination at that time.

Manafort demands to have more witness testimony before he’ll respond to other details on his lies

In a section on how Tom Barrack paid him via a third party contractor — for what is not yet clear — Manafort suggests he can’t respond because the government hasn’t shared the witness statements of others alleging to the fact.

The Government has indicated that Mr. Manafort’s statements about this payment are inconsistent with those of others, but the defense has not received any witness statements to support this contention.

Then, in a section rebutting his lies about whether or not he had contacts with the Trump Administration, he claims the two instances that Mueller raised don’t really count. He again demands more witness statements.

The first alleged misstatement identified in the Special Counsel’s submission (regarding a text exchange on May 26, 2018) related to a text message from a third-party asking permission to use Mr. Manafort’s name as an introduction in the event the third-party met the President. This does not constitute outreach by Mr. Manafort to the President. The second example identified by the Special Counsel is hearsay purportedly offered by an undisclosed third party and the defense has not been provided with the statement (or any witness statements that form the basis for alleging intentional falsehoods).

Then, even as agreeing there’s no need to have a breach hearing, Manafort asks for more witness statements again.

While a hearing regarding the Government’s “good faith” in declaring a breach of the plea agreement is not necessary, to the extent that there are witness statements that the OSC contends demonstrate Mr. Manafort’s intentional falsehoods, these should be produced to the defense. After having an opportunity to review such statements and any other documentary evidence, the defendant would then suggest that the issues be narrowed during the usual sentencing process in the parties’ submissions to the U.S. Probation Office in the preparation of the PSR.

This mistaken non-redaction conveniently lets co-conspirators know what Mueller shared

I have no idea whether this non-redaction was a colossal mistake or whether this was a cute way to disclose what evidence Mueller has shared with Manafort (remember: these five lies were not the only ones that Manafort told; just the only ones that Mueller wanted to describe).

But even ignoring the redaction fail, the filing feels very contemptuous, as if they’re still playing for a pardon.

Effectively, they’re admitting their client maybe lied or just conveniently forgot to minimize his ongoing conspiracy with someone even Rick Gates has said has ties to Russian intelligence — the same Russian intelligence agency that hacked Democrats. But they don’t think that’s a big deal. They’re just going to double down on obtaining more information on the evidence Mueller has while they wait for the pardon.

Update: Per CNN, Manafort says this Madrid meeting was after the campaign. Okay. That makes the explanation all the more ridiculous. Took out references to the campaign accordingly.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Robert Mueller Finally Found a Way to Get Paul Manafort to Keep a Secret

Update: Or not. Manafort’s lawyers did submit a filing, with all their redactions easily reversed, showing that Manafort lied about his cooperation with his Russian handler Konstantin Kilimnik. I’ll do another post on that filing.

On one of the last days of last year, Rudy Giuliani repeated a refrain he made in August, dick-wagging Mueller to “put up or shut up” and release the report that Rudy has spun fables about. That taunt happened ten days after the House Intelligence Committee voted to release Roger Stone’s testimony transcript to Mueller. It happened eight days before Paul Manafort failed to submit a filing (at least in unsealed form) explaining whether it contests the government’s claims that he lied while purportedly cooperating with the Special Counsel. In between, Sam Patten submitted a status report in his own cooperation agreement — cooperation that would surely have covered some of the same questions about his Russian partner Konstantin Kilimnik that Manafort lied about — under seal.

I raise all these together because — while it’s a safe bet that something happened at some point with Manafort that remains under seal — any explanation about what that might be may have as much to do with Mueller’s request for Stone’s transcripts as it does Manafort’s own actions. After all, Adam Schiff has already committed to releasing all the HPSCI transcripts to Mueller; it’ll be only a matter of days until he constitutes the committee and has the new Democratic majority on it vote that through. So something has to explain why Mueller couldn’t wait — why Mueller needed Stone’s transcript on December 20 and not January 10.

Back when he was pretending to cooperate, Manafort did get questions about his lifelong buddy Roger Stone. Mueller put Manafort before the grand jury twice after that, possibly locking in the lies he had told. Notably, however, lies about Stone were not among those Mueller publicly aired (in heavily redacted form) last month. For that matter, neither were any responses Manafort made about Trump’s foreknowledge of the June 9 meeting, which we also know came up between Manafort and Mueller.

If I’m right that this is all connected, that still leaves several possibilities. Perhaps Mueller — as Andrew Weissmann suggested they might — charged Manafort for these additional lies or perhaps charged him in the conspiracy-in-chief, finally. Perhaps Manafort made yet another deal with prosecutors, proffering answers to the questions about Stone and Trump they really need him to answer for them, in an attempt to limit his own punishment for that conspiracy in chief.

Whatever it is, it has produced unusual silence from Manafort’s camp.

Whatever it is, we may find out in the next month. Sam Patten’s status report was extended for just one month. Perhaps we’re waiting on SCOTUS’ response to the Mystery Appellant’s plea. Perhaps we’re waiting on the DC Circuit’s response to Andrew Miller’s challenge.

Until then … silence.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Will the Press Recognize They Also Deserve a Scolding for Parroting Eric Dubelier’s Nude Selfie Stunt?

According to Google, there are almost 4 million results for a search on “nude selfie Mueller.” All the top results report on a recent filing from Concord Management objecting to Robert Mueller’s request to submit an ex parte filing explaining why Concord should not be able to share the unclassified but sensitive information obtained in discovery with their boss, Yevgeniy Prigozhin. None of the reports I read considered why and how Mueller’s team would have obtained a nude selfie along with the rest of the vast amounts of social media data it obtained as part of its effort to investigate how trolls paid by Prigozhin operated (one explanation might be that Prigozhin employees sent a nude selfie of themselves via a US-based provider which then got turned over as part of a content request, which contributed to the process of identifying the employees).

In other words, rather than reporting on the mention of the nude selfie as part of covering a legal case, the press instead treated it largely as Concord lawyer Eric Dubelier presumably intended, as a means of making and calling attention to a legally frivolous but politically damning insinuation about Mueller’s investigation. Tellingly, the coverage of the nude selfie claim came only after Dubelier included it in the short response filing rather than the legally more interesting initial request to amend the protective order, which complained that Mueller had turned over “irrelevant data ranging from promotional emails for airlines to personal correspondence, even including personal naked selfie photographs” (which also provides context that might explain why the selfie(s) was discoverable).

All that is useful background, in my opinion, to reports from the hearing that Judge Dabney Friedrich scheduled for today on Friday, before she permitted Mueller to submit a related filing under seal today.

By all appearances, Friedrich brought Concord’s lawyers in (when effectively all she did was schedule a follow-up hearing for March and — apparently — review Mueller’s claims about grand jury proceedings separately) to yell at them for their trollish filings.

A judge publicly slammed the defense lawyers for a Russian company criminally charged by special counsel Robert Mueller, accusing the firm’s attorneys of submitting unprofessional and inappropriate court filings attacking Mueller’s office and of unwisely peppering legal briefs with jarring quotes taken from movies like Animal House.

“I’ll say it plain and simple: knock it off,” U.S. District Court Judge Dabney Friedrich told lawyers for the Russian company, Concord Management and Consulting, at a brief court hearing in Washington Monday morning.

[snip]

A stern-faced Friedrich, the newest of President Donald Trump’s three appointees to the district court in Washington, made clear Monday that she was not amused by what she called the “clever quotes.” She also chastised Dubelier for ad hominem attacks on Mueller’s attorneys and other prosecutors in the case.

“I found your recent filings, in particular your reply brief filed Friday, unprofessional, inappropriate and ineffective,” the judge said. She suggested the submissions were an effort to bully her into granting pending defense motions to give the owners and officers of Concord greater access to materials Mueller’s office has turned over to permit the defense to prepare for trial.

Here’s the filing from Friday that appears to have caused her to finally lose patience with Dubelier’s stunts.

The issues presented by the Concord case — particularly the question about whether Prigozhin, who made himself a Director after Concord got indicted (a parallel move to one he appears to have made to set up a Facebook lawsuit), can obtain discovery without showing up in the US to get it — are legally interesting and potentially important as precedents.

But even the legal press that knows better — and especially the political journalists covering the Mueller investigation as part of their White House coverage — are playing willing tools for Dubelier’s trolling.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

It Is False and Defamatory to Accuse WikiLeaks of a Bunch of Things that Aren’t the Key Allegations against It

WikiLeaks decided it was a good idea to release a long list of claims about Julian Assange and WikiLeaks that it considers defamatory. Emma Best obtained and liberated the list. Given that the list clearly attempts (unsuccessfully in some places, and hilariously in other places where they deem matters of opinion defamatory) to be factually correct, I’m interested in the way WikiLeaks uses the list to try to deny a bunch of things that might end up in a US criminal indictment.

The US is only angry with Assange because Ecuador has lots of debt

Pretty far down the list, WikiLeaks denies being gagged for claims made about Sergey Skripal in such a way as to falsely suggest the only concerns the US had over Assange came to do with debt pressure.

It is false and defamatory to suggest that Ecuador isolated and gagged Mr. Assange due to his comments on Sergei Skripal [in fact, he was isolated over his refusal to delete a factually accurate tweet about the arrest of the president of Catalonia by Spain in Germany, along with U.S. debt pressure on Ecuador. The president of Ecuador Lenin Moreno admitted that these two countries were the issue, see https://defend.wikileaks.org/about-julian/].

It’s nonsensical to claim that Assange was gagged just because of debt pressure, but it’s a good way to hide how the timing of his gag correlated with actions he took to piss of the US government, including by releasing a live CIA malware file.

The US charged Assange for actions it already decided not to charge him for, on which statutes of limitation have expired

The rest of the list is sprinkled with efforts to spin the US government’s legal interest in Assange. There’s an extended series of items that attempt to claim, as WikiLeaks has since DOJ accidentally revealed the existence of a recently filed complaint against Assange, that the charges instead relate to long-past publications (like Cablegate).

It is false and defamatory to deny that Julian Assange has been formally investigated since 2010 and charged by the U.S. federal government over his publishing work [it is defamatory because such a claim falsely imputes that Mr. Assange’s asylum is a sham and that he is a liar, see https://defend.wikileaks.org/].

It is false and defamatory to suggest that such U.S. charges have not been confirmed [in fact, they have, most recently by Associated Press (AP) and the Washington Post in November 2018].
– It is false and defamatory to suggest that the U.S. government denies the existence of such charges.
– It is false and defamatory to suggest that Julian Assange is not wanted for extradition by the U.S. government [in fact, public records from the Department of Justice show that the U.S. government says it had been intentionally concealing its charges against Mr. Assange from the public specifically to decrease his ability to “avoid arrest and extradition”].
– It is false and defamatory to suggest that the U.S. government has not publicly confirmed that it has an active grand jury, or pending or prospective proceedings, against Julian Assange or WikiLeaks, each year since 2010.

These claims are all true. WikiLeaks has been under investigation since well before 2010. There are charges that the US would like to extradite Assange for.

But all the public evidence suggests those charges relate to WikiLeaks’ recent actions, almost certainly involving Vault 7 and probably involving Russia’s election year operation.

Julian Assange is not a hacker, which is different from being someone who solicits or assists in hacks

WikiLeaks makes repeated claims that might appear to deny that the organization has solicited or assisted in hacks. The list denies that the DNC (which doesn’t have all the evidence Mueller does) has accused Assange of soliciting hacks of the DNC or Podesta. (Everywhere, this list is silent about the DCCC and other election year targets).

It is false and defamatory to suggest that the Democratic National Committee has claimed that Julian Assange directed, conspired, or colluded to hack the Democratic National Committee or John Podesta [in fact, the DNC makes no such claim: https://www.courthousenews.com/wp-content/uploads/2018/12/WikiLeaksDNC.pdf].

It denies that France has claimed that the MacronLeaks came from Russia (which again stops short of saying that the MacronLeaks came from Russia).

It is false and defamatory to suggest that the French government found that “MacronLeaks” were hacked by Russia [in fact, the head of the French cyber-security agency, ANSSI, said that they did not have evidence connecting the hack with Russia, see https://wikileaks.org/macron-emails/].

It denies that Assange has hacked the state of Ecuador (but not the Embassy of Ecuador or other states, including the US or Iceland).

It is false and defamatory to suggest that Julian Assange has ever hacked the state of Ecuador.

And it denies that Assange is, himself, a hacker.

It is false and defamatory to suggest that Julian Assange is a “hacker”.

All of these hacking denials stop well short of denying that WikiLeaks has solicited hacks before, including by publicizing a “most wanted” list that Russian hackers might respond to.

Mueller described WikiLeaks as an unindicted co-conspirator but that doesn’t mean Mueller has any interest in the organization

Close to the top of the list, WikiLeaks makes two claims to suggest the organization and Assange are not targets in the Mueller investigation.

It is false and defamatory to suggest that WikiLeaks or Julian Assange has ever been contacted by the Mueller investigation.

It is false and defamatory to suggest that there is any evidence that the U.S. charges against Julian Assange relate to the Mueller investigation.

This is misdirection hiding a great deal of evidence that WikiLeaks is a target in the Mueller investigation. The list is silent, for example, on whether Congressional investigators have contacted Assange, whether Assange ultimately did accept SSCI’s renewed request last summer to meet with Assange, and whether Assange demanded immunity to travel to the US to respond to such inquiries.

Nor does WikiLeaks deny having been described — in a fashion usually reserved for unindicted co-conspirators — in a Mueller indictment.

WikiLeaks doesn’t deny that WikiLeaks denied Russians were its source for 2016 materials

WikiLeaks twice denies, in very similar language, that it suggested that Seth Rich was its source for the DNC emails.

It is false and defamatory to suggest that WikiLeaks or Julian Assange claimed that any person or entity was their source for WikiLeaks’ 2016 U.S. election publications [it is defamatory because Julian Assange’s professional reputation is substantially based on source protection].

[snip]

It is false and defamatory to suggest that WikiLeaks or Julian Assange has ever stated or suggested that any particular person was their source for any publication, including Seth Rich.

A good lawyer would be able to sustain a claim that Assange had indeed “suggested” that Rich was his source, though it would make an interesting legal battle.

But when WikiLeaks denies feeding Seth Rich conspiracies, it does so only by denying the most extreme conspiracy, that the Democrats had Rich killed.

It is false and defamatory to suggest that WikiLeaks or Julian Assange has ever published, uttered or tried to promote alleged conspiracy theories claiming “John Podesta engaged in satanic rituals”, the “Democratic Party had Seth Rich Killed”, “Clinton wore earpieces to the 2016 US election debates”, on “Clinton’s health” or “Clinton kidnapping children”.

All of this, of course, dodges the way that WikiLeaks repeatedly tried to claim that Russia was not its ultimate source for the 2016 files.

Should we take the silence on this point as an admission?

Marcy Wheeler is false and defamatory

Finally, there are four claims relating to Vault 7, three of which pertain to my coverage of the way WikiLeaks attempted to leverage the Vault 7 releases in conversations with the Trump Administration. WikiLeaks denies that the two times Assange suggested to the President’s spawn that he should be made an ambassador to the US constituted an effort by WikiLeaks to get Trump to appoint Assange ambassador (note, this is also a denial that Assange tried to serve in another diplomatic role, which is different than being Ambassador).

It is false and defamatory to suggest that WikiLeaks tried to have the Trump administration appoint Julian Assange as an ambassador or to have any other person or state appoint him as an ambassador.

I find it notable that this claim departs from the form used in many of these denials, speaking for both Assange and WikiLeaks.

Then the list twice denies that Assange suggested he wouldn’t release the Vault 7 files if the Trump Administration provided him immunity.

It is false and defamatory to suggest that Julian Assange has ever extorted the United States government.

It is false and defamatory to suggest that Julian Assange has ever proposed that he not publish, censor or delay a publication in exchange for any thing.

Assange would and will claim that the discussions with Adam Waldman where just this arrangement was floated are protected by Attorney-Client privilege. But Waldman may have said enough to people at DOJ to refute this denial regardless.

Finally, WikiLeaks insisted it has never retracted any of the bullshit claims it made about its Vault 7 files.

It is false and defamatory to suggest that any of WikiLeaks’ claims about its 2017 CIA leak, Vault 7, “were later retracted”.

Given that one of the claims directly parroted the bullshit claims Shadow Brokers was making, a claim it made in a release that will probably be part of the charges against it, this non-retraction doesn’t necessarily help it much.

Note that one other thing WikiLeaks is silent about here are its public statements about Joshua Schulte, whose attempts to continue leaking from jail the FBI got on video. I find that interesting both for WikiLeaks’ attempt to corroborate Schulte’s thin excuse for using Tor after he was charged, and for its relative silence about whether he would be a whistleblower if he were its source for CIA’s hacking tools.

Update: WikiLeaks has released a revised version that takes out, among other things, the Ambassador claim, the Seth Rich claims, and also a denial that it is close to Russia.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The William Barr Case for Impeaching Donald Trump: From Whom Did Trump Suborn False Statements?

Last month, I argued that a memo William Barr wrote that many say disqualifies him to be Attorney General in fact (or perhaps, “also”) should make him utterly toxic to Trump, because he (unknowingly) makes the case for impeaching Trump.

That’s because of the specific content of a William Barr memo sent to Rod Rosenstein, first reported by WSJ last night. While I’m certain Barr didn’t intend to do so, the memo makes a compelling case that Trump must be impeached.

The memo is long, lacks pagination, and presents an alarming view of unitary executive power. Barr also adopts the logically and ethically problematic stance of assuming, in a memo that states, “I realize I am in the dark about many facts” in the second sentence, that he knows what Mueller is up to, repeating over and over claims about what theory of obstruction he knows Mueller is pursuing.

Yet even before Barr finishes the first page, he states something that poses serious problems for the White House.

Obviously, the President and any other official can commit obstruction in this classic sense of sabotaging a proceeding’s truth-finding function. Thus, for example, if a President knowingly destroys or alters evidence, suborns perjury, or induces a witness to change testimony, or commits any act deliberately impairing the integrity or availability of evidence, then he, like anyone else, commits the crime of obstruction.

Probably by the time Mueller’s office captured Peter Strzok’s testimony on July 19, 2017 — and almost certainly by the time they obtained Transition emails on August 23, 2017 (perhaps not coincidentally the day after Strzok’s 302 was formalized) showing Trump’s orchestration of Mike Flynn’s calls with Sergei Kislyak — Mueller has almost certainly had evidence that Trump suborned false statements from Mike Flynn. So even before he finishes the first page, Trump’s hand-picked guy to be Attorney General has made the argument that Trump broke the law and Mueller’s obstruction investigation is appropriate.

Today, as part of a rebuttal to Daniel Hemel and Eric Posner’s comments about the memo, Jack Goldsmith reviews an OLC memo they rely on to back my argument.

Barr’s invocation and application of the presidential plain-statement rule, far from shocking, is quite ordinary. It is so ordinary, in fact, that I doubt Mueller is pursuing the theory that Barr worries about, even though press reports have sometimes suggested that he is. (For similar doubts, see the analyses of Mikhaila Fogel and Benjamin Wittes and of Marty Lederman.) Deputy Attorney General Rod Rosenstein implied that Barr misunderstood Mueller’s theory when he stated that Barr did not have the “actual facts of the case.” One can read Rosenstein’s statement, as Marcy Wheeler does, to mean that Mueller possesses facts—including evidence that Trump suborned false statements from Flynn—to show that Trump has obstructed justice under Barr’s “evidence impairment” theory and that, under the Barr memorandum’s separate discussion of impeachment, Trump can be impeached.

If Wheeler is right, then the Barr memorandum is more likely to be cited in support of an article of impeachment of President Trump for obstruction of justice than it is to be cited, as Hemel and Posner suggest, to immunize Trump from obstruction. We will see if the Democrats presiding over Barr’s confirmation hearings are clever enough not to take Hemel and Posner’s suggestion that Barr’s memo is extreme, and instead use Barr’s memo, as Wheeler counsels, “to talk the incoming Attorney General into backing the logic of the Mueller probe and impeachment in a very public way.”

Given the stakes on all this, I wanted to focus on why I think the public record suggests strongly that Trump suborned perjury (actually, false statements), meaning that Barr has already made the case for impeachment.

Mike Flynn lied to hide consultations with the Transition Team at Mar-a-Lago

First, let’s consider what Mike Flynn lied about, which I lay out in detail here. In addition to lies about being a foreign agent for Turkey and trying to undercut an Obama foreign policy decision pertaining to Israeli settlements, Flynn admitted to lying about whether he discussed sanctions during a series of conversations with Sergey Kislyak. The focus in reporting has always been on the conversations with Kislyak, but as the statement of the offense makes clear, Flynn’s conversations with other Transition Team members — most notably his Deputy, KT McFarland — got almost as much emphasis.

On or about January 24, 2017, FLYNN agreed to be interviewed by agents from the FBI (“January 24 voluntary interview”). During the interview, FLYNN falsely stated that he did not ask Russia’s Ambassador to the United States (“Russian Ambassador”) to refrain from escalating the situation in response to sanctions that the United States had imposed against Russia. FLYNN also falsely stated that he did not remember a follow-up conversation in which the Russian Ambassador stated that Russia had chosen to moderate its response to those sanctions as a result of FL YNN’s request. In truth and in fact, however, FLYNN then and there knew that the following had occurred:

a. On or about December 28, 2016, then-President Barack Obama signed Executive Order 13757, which was to take effect the following day. The executive order announced sanctions against Russia in response to that government’s actions intended to interfere with the 2016 presidential election (“U.S. Sanctions”).

b. On or about December 28, 2016, the Russian Ambassador contacted FLYNN.

c. On or about December 29, 2016, FLYNN called a senior official of the Presidential Transition Team (“PTT official”), who was with other senior ·members of the Presidential Transition Team at the Mar-a-Lago resort in Palm Beach, Florida, to discuss what, if anything, to communicate to the Russian Ambassador about the U.S. Sanctions. On that call, FLYNN and the PTT official discussed the U.S. Sanctions, including the potential impact of those sanctions on the incoming administration’s foreign policy goals. The PIT official and FLYNN also discussed that the members of the Presidential Transition Team at Mar-a-Lago did not want Russia to escalate the situation.

d. Immediately after his phone call with the PTT official, FLYNN called the Russian Ambassador and requested that Russia not escalate the situation and only respond to the U.S. Sanctions in a reciprocal manner.

e. Shortly after his phone call with the Russian Ambassador, FLYNN spoke with the PTT official to report on the substance of his call with the Russian Ambassador, including their discussion of the U.S. Sanctions.

f. On or about December 30, 2016, Russian President Vladimir Putin released a statement indicating that Russia would not take retaliatory measures in response to the U.S. Sanctions at that time.

g. On or about December 31, 2016, the Russian Ambassador called FLYNN and informed him that Russia had chosen not to retaliate in response to FL YNN’s request.

h. After his phone call with the Russian Ambassador, FLYNN spoke with senior members of the Presidential Transition Team about FLYNN’s conversations with the Russian Ambassador regarding the U.S. Sanctions and Russia’s decision not to escalate the situation. [my emphasis]

And the 302 (302s are what the FBI calls interview reports) makes this even more clear: Flynn was not only lying about the content of his calls with Kislyak, he was lying about his consultations with McFarland, and through her, the rest of the Transition Team, almost certainly including Trump. Flynn was lying about using language, “tit-for-tat,” that came right out of those consultations.

He was lying to hide that his interactions with Kislyak reflect a deliberate Trump Transition policy choice, rather than his own choice to freelance foreign policy.

Flynn got other people to lie — to the public and to the FBI

But it’s not just Flynn’s lies. It’s also the lies others in the Administration told. According to the NYT story of the relevant emails, at a minimum both McFarland and Sean Spicer would have known that Flynn got instructions ahead of his call with Kislyak and reported positively afterwards.

Mr. Bossert forwarded Ms. McFarland’s Dec. 29 email exchange about the sanctions to six other Trump advisers, including Mr. Flynn; Reince Priebus, who had been named as chief of staff; Stephen K. Bannon, the senior strategist; and Sean Spicer, who would become the press secretary.

That’s important because both McFarland and Spicer lied to the press about the call in early 2017.

Early on the morning of Jan. 13, 2017, McFarland phoned one of the authors of this article to rebut a column in The Washington Post, which said Flynn and Kislyak had spoken “several times” on Dec. 29, the day the Obama administration announced it was expelling 35 Russian officials and taking other punitive measures.

The column, by David Ignatius, questioned why Flynn was engaging in sensitive foreign policy discussions with Russia when Trump had yet to take office.

McFarland insisted in an on-the-record conversation that Flynn and Kislyak had never discussed sanctions and that they had actually spoken before the administration’s announcement on Dec. 29.

[snip]

McFarland’s earlier account from the on-the-record conversation also matches public statements from Sean Spicer, the transition team’s spokesman and future White House press secretary.

Spicer said that Flynn and Kislyak spoke Dec. 28, before the sanctions were announced, and that “the call centered around the logistics of setting up a call with the president of Russia and the president-elect after he was sworn in.”

“That was it, plain and simple,” he said.

Most of the focus on public statements about the Kislyak calls has been on Mike Pence, but there’s no public record that he was in the loop on discussions about the Kislyak call (nor is there a record of him being interviewed by either the FBI or Mueller, which is one of the reasons I keep saying there’s no public record of him doing anything for which he could or should be indicted).

With McFarland and Spicer, however, we can be sure they both knowingly lied when they told the press that sanctions had not come up.

That’s why I keep pointing to two passages from the addendum to Flynn’s sentencing memo describing the significance of his cooperation. This passage makes it clear there’s some significance to the fact that Transition Team people repeated Flynn’s lies.

This passage makes it clear that, in the wake of Flynn’s cooperation, several other people decided to cooperate.

We know that McFarland is included among the people who decided to be forthcoming with Mueller; Sean Spicer probably is too and others (like Reince Priebus) may be as well. Importantly, we know they decided to be forthcoming after not having been at first. McFarland, at a minimum, lied not just to the press, but also in her first interview with the FBI, after which she made a concerted effort to unforget what really transpired.

Note, too, that that redaction is the last line of the Flynn addendum. While we don’t know what it says, it’s likely that the addendum as a whole reflects something that Mueller seems to be doing with his cooperating witnesses: either finding ways to rehabilitate liars (as he did with Michael Cohen) or using their testimony to pressure others to tell the truth, resulting in witnesses who will be more credible on the stand (which is what I suspect he has done with a number of witnesses with Flynn).

Trump has changed stories about what his Administration knew about Flynn’s lies at least twice

The public record doesn’t actually say how it happened that McFarland and Spice lied about something they should have known to be false. As I’ve laid out, it’s clear that Flynn was not free-lancing when he discussed sanctions with Kislyak, but the record is still unclear about whether he was freelancing when he ordered others to lie about it or not.

But two things strongly suggest he was not.

First, nothing yet has come close to explaining Trump’s actions with Jim Comey, first asking for his loyalty, then, after firing Flynn, asking him to let Flynn’s lies go. That’s all the more true if, as is likely but not publicly proven yet, Pence also knew he was lying when he claimed sanctions didn’t come up in the Flynn-Kislyak call, because lying to Pence is the only explanation Trump has offered for firing Flynn.

It is virtually certain Flynn was following orders — Trump’s orders — when he engaged in discussions about sanctions with Kisylak. And so it is virtually certain that Trump knew, from before he was inaugurated, that his top aides were lying to the press. Yet Trump didn’t find those lies to be a fireable offense until it became clear the lies would lead to a sustained FBI investigation into why Flynn had Kislyak hold off on responding to sanctions.

And over the course of the Mueller investigation, Trump has struggled to come up with a credible explanation for why Flynn’s lies became a fireable offense only after the FBI started looking more closely at his plans for sanctions relief.

Don McGahn wrote a report inventing one explanation for the firing just after it happened (akin to the way he later orchestrated a paper trail justifying Comey’s firing). But even when he wrote the report, it was inconsistent with what Sally Yates told McGahn.

Then, after Flynn flipped and it became clear Comey also documented his side of events (and shared those events contemporaneously with others in DOJ and FBI), Trump’s lawyers tried to massage the story one more time.

Mike Flynn, KT McFarland, Sean Spicer, Don McGahn, and John Dowd (at a minimum — possibly Reince Priebus and others, too) have all had to revise the stories they told the press and even, for some, FBI or Mueller after the fact to try to come up with a non-incriminating explanation for why everyone lied, first to the press, and then to the government.

There’s really only one thing that might explain why at least five top Donald Trump aides or lawyers had to revise stories to try to come up with innocent explanations for non-credible stories they were willing to tell the government from the start. And that’s if Trump were involved in all these lies.

It may well be that Trump didn’t formally suborn false statements before Mike Flynn interviewed with the FBI on January 24, 2017. Perhaps he just instructed Flynn to lie to the press and Flynn sustained the story he had been ordered to tell when the FBI came calling (Trump may well be more involved in the lies that Michael Cohen told to Congress).

But there is little else that can explain why so many people were willing to tell bullshit stories about Flynn (both his conversation with Kislyak and his firing) except that Trump was involved in orchestrating those stories.

Mueller’s obstruction investigation was likely always premised on a theory of obstruction that Trump’s presumed Attorney General nominee William Barr has argued does merit investigation and impeachment: that Trump ordered his subordinates to lie to obstruct an investigation.

 As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Impeachment and the Narcissist’s Off-Ramp

Welcome to the 116th Congress, where Democrats in the House will finally exert some check on the unmanageable man sitting the Oval Office.

There’s a lot I’m excited about in the new Congress: the unprecedented diversity, some rules and agreements that should give progressives more sway in the House, and a fierce, talented leader holding the Speaker’s gavel (even if I disagree with some of Nancy Pelosi’s moves, such as Pay-Go).

Pelosi is taking a really aggressive approach with Trump. In an interview on NBC this morning, Pelosi suggested he doesn’t know how to deal with women in power or women with strength. She dinged Trump because he “may not know this, but Hawaii is part of the United States,” and wondered whether Trump actually “observed the religious holiday of Christmas.” (Here’s the actual interview; I have yet to find a transcript.)

Remarkably, given the way Pelosi categorically ruled it out in 2006, she spoke at length about impeachment (partly, though not entirely, because Savannah Guthrie pushed her repeatedly on this point). After agreeing with her past comments that an impeachment would be “sad and divisive” to impeach the president, Pelosi suggested that the law does not prohibit indicting a sitting president.

Asked if Mueller could legally indict a sitting president, Pelosi said: “Let’s just see what Mueller does. Let’s spend our time on getting results for the American people.”

The Office of Legal Counsel’s guidance, issued in 2000, says, “The indictment or criminal prosecution of a sitting President would unconstitutionally undermine the capacity of the executive branch to perform its constitutionally assigned functions.”

“It’s not the law,” Pelosi told Guthrie. “Everything indicates that a president can be indicted after he is no longer president of the United States.”

Guthrie asked, “What about a sitting president?”

“Well, a sitting president when he is no longer president of the United States,” Pelosi answered.

Guthrie pressed again, asking, “A president who’s in office? Could Robert Mueller come back and say, ‘I am seeking an indictment?'”

“I think that is an open discussion,” Pelosi said. “I think that’s an open discussion in terms of the law.”

She also did not rule out impeachment proceedings against Trump.

“We have to wait and see what happens with the Mueller report,” Pelosi said. “We shouldn’t be impeaching for a political reason, and we shouldn’t avoid impeachment for a political reason.”

I’m totally okay with Pelosi making comments that will emasculate Trump in front of his base, particularly when it highlights his failed campaign promises, starting with his idiotic promise that Mexico would pay for his wall. I think making him appear as the weak coward he is is a necessary step to begin to chip away at unquestioning support among his supporters.

But I keep thinking back to something I raised in this post, where I pointed out that the increasing likelihood Trump Organization might be targeted by prosecutors might change Trump’s calculus as he tries to retain power.

If I’m right, there are a whole slew of implications, starting with the fact that (as I laid out on a Twitter rant this morning), it utterly changes the calculation Nixon faced as the walls started crumbling. Nixon could (and had the historical wisdom to) trade a pardon to avoid an impeachment fight; he didn’t save his presidency, but he salvaged his natural person. With Trump, a pardon won’t go far enough: he may well be facing the criminal indictment and possible financial ruin of his corporate person, and that would take a far different legal arrangement (such as a settlement or Deferred Prosecution Agreement) to salvage. Now throw in Trump’s narcissism, in which his own identity is inextricably linked to that of his brand. And, even beyond any difference in temperament between Nixon and Trump,  there’s no telling what he’d do if his corporate self were also cornered.

In other words, Trump might not be able to take the Nixon — resign for a pardon — deal, because that may not be enough to save his corporate personhood.

For virtually every other legal situation, it seems to me, existing in both natural and corporate form offers protection that can save both. But if you’re the President of the United States, simultaneously existing — and criminally conspiring — in corporate form may create all sorts of additional exposure any normal President would normally be protected from.

I think this is true not just of the presidency, though. I think it was almost immediately true of the Russian investigation, as exhibited by the emails KT McFarland sent from Mar-a-Lago as the Trump Transition responded to Obama’s sanctions on Russia.

Obama is doing three things politically:

  • discrediting Trump’s victory by saying it was due to Russian interference
  • lure trump into trap of saying something today that casts doubt on report on Russia’s culpability and then next week release report that catches Russia red handed
  • box trump in diplomatically with Russia. If there is a tit-for-tat escalation trump will have difficulty improving relations with Russia which has just thrown USA election to him.

There are many reasons that might explain why Trump responded to punishment of Russia the way he did: because he knew the Russians did have some role in his win, because he is a paranoid freak who always suspects an ulterior motive to hurt him.

Ultimately, though, it’s about his narcissism. Trump cannot admit any failures, any weakness. And admitting that he didn’t win the election fair and square would be like admitting that he had fewer inauguration visitors than Obama did.

I’m fairly confident that Trump thoroughly compromised himself with his eagerness to deal with the Russians for a Tower, for election help, for whatever else they demanded in response. I’m fairly confident that Putin has receipts from that compromise which creates a real dilemma for Trump on whether Mueller or Putin poses the biggest threat.

Trump and the Russians were engaged in a call-and-response, a call-and-response that appears in the Papadopoulos plea and (as Lawfare notes) the GRU indictment, one that ultimately did deal dirt and got at least efforts to undermine US sanctions (to say nothing of the Syria effort that Trump was implementing less than 14 hours after polls closed, an effort that has been a key part of both Jared Kushner and Mike Flynn’s claims about the Russian interactions).

At each stage of this romance with Russia, Russia got a Trump flunkie (first, Papadopoulos) or Trump himself to publicly engage in the call-and-response. All of that led up to the point where, on July 16, 2018, after Rod Rosenstein loaded Trump up with a carefully crafted indictment showing Putin that Mueller knew certain things that Trump wouldn’t fully understand, Trump came out of a meeting with Putin looking like he had been thoroughly owned and stood before the entire world and spoke from Putin’s script in defiance of what the US intelligence community has said.

People are looking in the entirely wrong place for the kompromat that Putin has on Trump, and missing all the evidence of it right in front of their faces.

Vladimir Putin obtained receipts at each stage of this romance of Trump’s willing engagement in a conspiracy with Russians for help getting elected. Putin knows what each of those receipts mean. Mueller has provided hints, most obviously in that GRU indictment, that he knows what some of them are.

For example, on or about July 27, 2016, the Conspirators  attempted after hours to spearphish for the first time email accounts at a domain hosted by a third-party provider and used by Clinton’s personal office. At or around the same time, they also targeted seventy-six email addresses at the domain for the Clinton Campaign.

But Mueller’s not telling whether he has obtained the actual receipts.

And that’s the kompromat. Trump knows that if Mueller can present those receipts, he’s sunk, unless he so discredits the Mueller investigation before that time as to convince voters not to give Democrats a majority in Congress, and convince Congress not to oust him as the sell-out to the country those receipts show him to be. He also knows that, on the off-chance Mueller hasn’t figured this all out yet, Putin can at any time make those receipts plain. Therein lies Trump’s uncertainty: It’s not that he has any doubt what Putin has on him. It’s that he’s not sure which path before him — placating Putin, even if it provides more evidence he’s paying off his campaign debt, or trying to end the Mueller inquiry before repaying that campaign debt, at the risk of Putin losing patience with him — holds more risk.

Trump knows he’s screwed. He’s just not sure whether Putin or Mueller presents the bigger threat.

But ultimately there is one other factor that makes Trump more self-destructively defensive about this investigation than he otherwise would be: his narcissism.

And while I’d welcome his utter humiliation before the world stage, I also believe that any single-minded pursuit of that humiliation will only increase the likelihood he’ll dig in, regardless of the damage that doing so will do to the country.

Even if we do get to the point where indictment or impeachment became viable (and I’m not sure we will), it’s worth thinking about whether pursuing either one might just trigger a narcissistic response that will only lead Trump to do further damage to this country. If we provide Trump an off-ramp that allows him to preserve some of his destructive ego, it may do less damage to the country.

Update: Fixed Guthrie’s first name–apologies to her for the error. h/t jk

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

image_print