Sam Patten Reminds Us Cooperation Deals Are Not Cookie Cutters

One of the last filings of 2018 in the cases I keep track of here was a three line joint motion in Sam Patten’s case, noting that the parties had filed a joint status report under seal. Sam Patten, recall, is the sleazy influence peddler who (like Paul Manafort) was a business partner with alleged GRU operative Konstantin Kilimnik who first proffered information to Mueller’s office on May 22 of last year, but who didn’t plead guilty until August 31. He pled guilty to lying on FARA registration, lying to the Senate Intelligence Committee and withholding documents from them, in part about setting up straw purchasers to let foreigners donate money to Trump’s inauguration. He’s also got ties to Cambridge Analytica, though that did not show up in his plea at all.

So rather than a routine status report — either telling the court that Patten continued to cooperate with Mueller, the DC US Attorney’s Office, and other law enforcement entities with which his deal required him to cooperate — or rather than moving towards sentencing, the government instead filed something under seal.

When asked what this might mean, I’ve deferred any answer, because it could be so many things and there’s so little to go on.

But CNN’s Katelyn Polantz has what (for any straight news outlet — and I mean that as a genre issue, not a competence one) is remarkably good analysis. She points to the timing of Patten’s plea (just before Paul Manafort was set to go to trial on his own FARA crimes, and thus just weeks before Manafort decided to flip) and to Patten’s multi-office cooperation obligations to suggest this sealed plea may have to do with Mueller’s case.

Patten agreed to cooperate with the Mueller investigation and other Justice Department actions before Manafort pleaded guilty to criminal charges in September. Manafort had been Mueller’s target for almost a year before his plea deal — and the Mueller team initially charged him with a host of financial crimes and foreign lobbying violations. A jury found Manafort guilty of tax and bank fraud related to his Ukrainian lobbying proceeds, then Manafort flipped and agreed to help prosecutors in September to avoid a second trial related to his foreign lobbying operation.

Patten was lined up by prosecutors as a person involved in that planned second trial against Manafort.

Typically, in a plea deal such as Patten’s, once prosecutors no longer need his cooperation for an upcoming trial or to put pressure on a criminal target, they would move the case to the sentencing phase. No date has been set yet by the court for Patten’s sentencing, and it’s still not determined when that process would even begin.

What she doesn’t say, but I would add, is that we’ve heard remarkably little about Manafort’s fate since a hearing on December 11 where Manafort’s lawyers pushed to begin adjudicating this month (in advance of his sentencing in the EDVA case) whether they agreed that Manafort had lied to the government while supposedly cooperating, even while saying they were having ongoing discussions with the government about those lies. Judge Amy Berman Jackson set a deadline for next Monday, January 7, for Manafort’s lawyers to file some kind of statement about whether they agree with the government or not. Sure, the holidays happened in the middle of that. But throughout the period before that, we got regular updates from Rudy Giuliani and Manafort’s lawyers making the extent of Manafort’s cooperation clear; we’ve gotten nothing since December 11.

Polantz also notes something most reporters covering the Mueller investigation forget: prosecutors don’t just hold off on sentencing until a cooperating witness testifies (note, the same mob of reporters also falsely suggest that Michael Cohen’s cooperation with Mueller is done, misunderstanding that Mueller will reward Cohen’s cooperation with a sentencing adjustment if it continues). Indeed, the only Mueller cooperating witness who has thus far testified before sentencing has been Rick Gates, and he remains under a cooperation agreement over five months later. Prosecutors also use (and Mueller seems to have especially) cooperating witnesses to pressure other witnesses. Indeed, that seems to be the significance of this passage from the addendum describing Mike Flynn’s cooperation.

Mueller used Flynn to get all the other people — starting with but by no means limited to KT McFarland — who originally lied about the Russian conspiracy to testify, and to do so as witnesses who clarified their testimony rather than sustained a lie and therefore got branded a liar making them less useful as witnesses at trial.

In other words, Polantz seems to suggest that Mueller rolled out Patten’s cooperation agreement just before Manafort’s trial in a bid to get him to flip. That worked. But not well enough to get Manafort to really cooperate.

Which may explain why his current status is such a big secret: because no one wants to give Manafort — or Trump — any hints about his status until Manafort decides what he’s going to do this week.

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. 

If Trump Is So Concerned that a DOJ Contractor Failed to Archive Texts, Why Not Hold the Contractor Accountable?

In yet another attempt to project criminal wrong-doing on those investigating criminal wrong-doing, both Rudy …

… And his client, Individual 1, have repeated a false claim that Robert Mueller deleted 19,000 Peter Strzok and Lisa Page texts.

The claim is, like so much else emanating from these two men’s twitter thumbs, an either willful or ignorant misstatement, this one based on a DOJ IG Report on efforts to collect Strzok-Page texts that, because of a technical malfunction, didn’t get collected by an FBI contractor. It conflates efforts to replace texts sent using their FBI-issued Samsung Galaxy phones (where some 19,000 texts did not get archived, though the number itself is inflated because it would necessarily include a lot of overlap) with a belated effort to check their Mueller-issued iPhones. Worse still, it talks about texts that actually were recovered.

OIG digital forensic examiners used forensic tools to recover thousands of text messages from these devices, including many outside the period of collection tool failure (December 15, 2016 to May 17, 2017) and many that Strzok and Page had with persons other than each other. Approximately 9,311 text messages that were sent or received during the period of collection tool failure were recovered from Strzok’s S5 phone, of which approximately 8,358 were sent to or received from Page. Approximately 10,760 text messages that were sent or received during the period of collection tool failure were recovered from Page’s S5 phone, of which approximately 9,717 were sent to or received from Strzok. Thus, many of the text messages recovered from Strzok’s S5 were also recovered from Page’s S5.

The only thing to blame Mueller’s office for is that, after reviewing Strzok’s phone and finding no substantive text messages, his Records Officer freed up the phone to be factory reset and issued to someone else.

According to SCO’s Records Officer, Strzok was removed from SCO-related work in late July 2017, and he completed his Exit Clearance Certificate on August 11, 2017. As part of an office records retention procedure, the SCO Records Officer stated that she reviewed Strzok’s phone on September 6, 2017. She told the OIG that she determined it did not contain records that needed to be retained. She noted in her records log about Strzok’s phone: “No substantive texts, notes or reminders.”

The Records Officer appears not to have realized that Page had a Mueller iPhone, so it was only subsequently checked for content, after which point it, too, had been factory reset.

But there’s no reason to think hers would have anything more substantive than Strzok’s phone. That’s because they appear to have kept using their Samsungs in the period they were assigned with Mueller (which is where their interesting texts were sent).

On May 17, 2017, the Special Counsel’s Office (SCO) was established to investigate alleged Russian interference in the 2016 Presidential election. Strzok and Page were assigned to the SCO shortly thereafter (Strzok in early June; Page on May 28) and were provided DOJ JMD iPhones during their SCO assignment. Based on OIG’s examination of their FBI mobile devices, Page and Strzok also retained and continued to use their FBI mobile devices. Specifically, on or about May 18, 2017, Page received an FBI-issued Samsung Galaxy S7 mobile device to replace her previously-issued FBI Samsung Galaxy S5. On or about July 5, 2017, Strzok received an FBl•issued Samsung Galaxy S7 mobile device to replace his previously-issued FBI Samsung Galaxy S5.

So what the President and his plays-a-lawyer-on-TV-flack are complaining about is that the federal government reissued government devices when users no longer needed those government devices, something bureaucracies of all types do all the time. With Strzok, at least, before doing so, the Records Officer checked the device to make sure no important content would be overwritten.

And in trying to invent an obstruction claim out of normal bureaucratic thriftiness, they are ignoring the really damning part of the IG Report. The government contractor whose “bug” was responsible for the text messages that weren’t originally archived (but which were later recovered) still can’t ensure more than 90% of FBI’s texts are recovered.

Among the other excuses FBI offers for implementing a fix to a 20% failure with one that still results in a 10% failure is to say, “complete collection of text messages is neither required nor necessary to meet the FBI’s legal preservation obligations” (which goes back to how they’re requiring retention via policy, but not technologically-assisted procedure). The FBI also says that it “is not aware of any solution that closes the collection gap entirely on its current mobile device platforms,” which makes me wonder why they keep buying new Samsungs if the Samsungs aren’t serving their needs? Aside from the question of why we’d ask FBI Agents to use less secure Korean phones rather than more secure American ones (note, Mueller’s team is using iPhones)?

This story — particularly the contractor’s squirreliness when asked about what privileges its retention function accesses…

As DOJ IG was trying to puzzle through why they couldn’t find all of Strzok and Page’s texts, the unnamed vendor got squirrelly when asked how the retention tool interacts with administrative privileges.

Upon OIG’s request, ESOC Information Technology Specialist [redacted] consulted with the FBl’s collection tool vendor, who informed the FBI that the collection application does not write to enterprise.db. [Redacted] further stated that ESOC’s mobile device team and the vendor believed enterprise.db is intended to track applications with administrative privileges and may have been collecting the logs from the collection tool or another source such as the Short Message Service (SMS) texting application. The collection tool vendor preferred not to share specific details regarding where it saves collected data, maintaining that such information was proprietary; however, [redacted] represented that he could revisit the issue with the vendor if deemed necessary.

Maybe it’s me, but I find it pretty sketchy that this unnamed collection tool vendor doesn’t want to tell the FBI precisely what they’re doing with all these FBI Agents’ texts. “Proprietary” doesn’t cut it, in my opinion.

… Seems like what happens in government when a unit has made inappropriate purchase and contracting decisions, but even two years after discovering that fact, nevertheless doubles down with new investments in the same inappropriate purchase decisions.

If Trump really cared that FBI wasn’t archiving all its texts and continues to fail to do so, he should command Big Dick Toilet Salesman Matt Whitaker to ensure that FBI make purchasing decisions (perhaps starting by replacing the Samsungs with more secure iPhones) that will result in full archival records.

But he didn’t do that. Perhaps it’s time for journalists to start asking why he’s not demanding better of DOJ and FBI going forward?

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

Someone Has Already Been Charged for Most of the Actions the Steele Dossier Attributes to Michael Cohen

Because of a McClatchy story claiming two new details corroborating a Steele dossier claim that Michael Cohen had a meeting with people serving the interests of Putin’s Administration, people have gotten themselves into a tizzy again about what a smoking gun it would be if the allegations in the Steele dossier were proven true.

It’s an utterly bizarre tizzy, both because the allegations in the Steele dossier not only don’t match some more damning allegations Cohen has already pled guilty to, but because Mueller has already charged other people for some of the allegations about Cohen made in the dossier. In other words, the McClatchy story has people excited about the wrong allegations, rather than focusing on the damning things Cohen (and others) have already been charged with.

Indeed, most functional allegations made in the Steele dossier have already been publicly explained in either court filings or sworn testimony. That doesn’t rule out that Cohen had a role in some of them, however. Indeed, one detail from Cohen’s SDNY plea — that among the things Trump Organization reimbursed Cohen for in January 2017 was a $50,000 payment to a tech services company — actually could confirm a detail made in the dossier. But generally, Mueller and other entities have already explained away many of the allegations made against Cohen in the dossier.

I’ve put the substantive claims the Steele dossier made about Cohen below. I’ll take each and show public reporting that explains who did something attributed to Cohen in the dossier.

Cohen met with Russian Presidential Administration Legal Department officials

The central allegation involving Cohen is that he met with people from Putin’s Presidential Administration’s legal department or, in a later version, someone acting on their behalf.

By the time that allegedly happened in August or maybe September, however, Cohen had already established a paper trail with someone more central than some anonymous lawyers. Cohen’s Mueller plea describes Cohen receiving an email on January 20, 2016 from Dmitry Peskov’s personal assistant and shortly thereafter calling her. Somehow Mueller knows that the assistant “asked detailed questions and took notes.” The day after Cohen spoke with the personal assistant, someone from Putin’s office called Felix Sater.

Given that Cohen made reservations to travel to St. Petersburg (for a possible meeting directly with Putin) on June 9, then canceled those reservations on June 14 (after Russia’s role in the DNC hack was made public), those communications about a Trump Tower deal surely tie to the hack-and-leak operation.

It’s certainly possible that, later in the summer (or in the fall, during Cohen’s known trips to London), Cohen would attempt to reschedule that meeting, though the purpose was originally and probably would remain more central to a quid pro quo trading a Trump Tower and election assistance for sanctions relief and policy considerations. But having already exchanged easily collectable communications directly with Peskov’s office (whom the dossier calls “the main protagonist” in the operation), it’s not clear how helpful using Rossotrudnichestvo would be to hide the Trump role. Furthermore, there are other known cut-outs for related matters, including Steele dossier source Sergei Millian and the Agalrovs.

Cohen aimed to contain the Paul Manafort scandal

The three Cohen reports in October all claim that Cohen got involved to tamp down scandals connecting Trump to Russia. That’s not, at all, far-fetched. After all, Cohen was Trump’s fixer and he told a bunch of lies to Congress in an effort to hide Trump’s Moscow Project.

That said, a filing explaining why Mueller might have to mention the Trump campaign in Manafort’s aborted DC trial and a filing in Alex Van der Zwaan’s prosecution show that Manafort and Rick Gates themselves — with the direct involvement of Oleg Deripaska associate Konstantin Kilimnik — worked to contain this scandal.

As Mueller laid out in numerous ways, the Manafort-Gates-Kilimnik team went on a crime spree in the fall trying to cover up their past activities with Russian-backed oligarchs.

Indeed, that a claim that Cohen managed this pushback (and its timing) appeared in the dossier is particularly tantalizing for two reasons. First, one of the things Manafort reportedly lied about after agreeing to cooperate with Mueller pertained a boat trip he took with Tom Barrack; Mueller seems to know that Kilimnik joined the two men. If that happened, then it would show that someone did indeed hold a meeting in August to contain the damage of Manafort’s burgeoning scandals, but that meeting would have been between a key Trump funder, Manafort himself, and someone suspected of ongoing ties with GRU, the agency that conducted the DNC hack.

More intriguing still, as I noted above, Kilimnik was Manafort’s go-between with Oleg Deripaska. That’s interesting because in 2016, Christopher Steele was attempting to convince DOJ’s Bruce Ohr that Deripaska could be a useful source on Russian organized crime. If Steele thought Deripaska would be a useful source for DOJ, he may well have been relying on Deripaska himself. If so, the report that Cohen (who in fact did have communications with Peskov!) was containing the damage of Manafort’s ties to Russian oligarchs might be an attempt to distract from the way that a Russian oligarch was actually working through his handler, Kilimnik, to minimize that damage himself.

Cohen aimed to contain the Carter Page scandal

It likewise seems unlikely that Cohen was the one to try to contain the Carter Page scandal. While he shouldn’t be relied on for anything, several claims in Page’s testimony to HPSCI provide an alternate explanation about who was containing the scandal tied to him.

Page denied ever speaking to Cohen.

But he did describe Keith Kellogg discussing the allegations with him. And he did describe Steve Bannon, both by himself and with the assistance of Trump’s election lawfirm, Jones Day, trying to minimize the Page scandal.

That’s consistent with a number of on-the-record claims from the campaign in the days following Page’s resignation in September. Which is to say, minimizing the Page scandal fell to the campaign itself.

The people who carried out the information operation had been paid by Russia and Trump

The three initial reports on Cohen came, in suspiciously quick succession, in October, after the number of reporters briefed on the Steele dossier started to expand.

The one other report implicating Cohen was the December 13 report, based on intelligence Steele claimed he obtained for “free.”

The report is most notable for the legal battle it caused. The allegations most clearly resemble what Adrian Chen had identified and attributed to the Internet Research Agency year earlier and there had been extensive reporting on it all through the campaign. But instead of blaming Internet Research Agency, the report blames all that on Webzilla. And Webzilla’s owner, Aleksei Gubarev was sufficiently comfortable facing the prospect of discovery to sue BuzzFeed right away (though he lost his lawsuit a few weeks back).

There’s another reference in the report to a long debunked claim made by the Russians — that a Romanian hacker was involved, presumably an allusion to Guccifer 2.0’s half-hearted claim to be Romanian.

Still, much of that last report instead presented the most inflammatory claim in the entire dossier: that Trump’s campaign had helped pay for the information operation targeting Hillary.

On its face, that claim makes zero sense. The scenario as a whole assumes that the hack was done by independent hackers coerced to work for the FSB — perhaps people like Yevgeniy Nikulin, who had already been arrested in Prague by this point. As far as Mueller has shown publicly, however, the information operation was instead done by two entities: Russians in the employ of Putin crony Yevgeniy Prigozhin’s Internet Research Agency and officers in the employ of Russia’s military intelligence agency, GRU. In indictments of both conspirators, Mueller provided details about how the money was handled.

So we’ve already got explanations for how the information operation was funded: by Prigozhin and the Russian state, using a range of money laundering techniques to hide Russia’s role. We even have evidence that — contrary to the claim about information warriors’ loyalty to Sergei Ivanov — Prighozhin’s employees even sucked up to him in one of their dry runs getting Americans to perform IRL actions.

Cohen arranged deniable cash payments to hackers working in Europe against the Clinton campaign

As noted, the December report involving Cohen made the most incendiary claim of all: that the Trump organization planned to pay for some of the hackers that targeted Hillary.

In spite of the fact that Mueller has already explained how the two main groups of participants in the information operation got funded, this allegation gets more interesting given details laid out in Cohen’s SDNY plea. Several of his SDNY crimes, after all, involving making deniable payments, in that case to Stormy Daniels and Karen McDougal.

That shows Cohen’s modus operandi for paying off Trump’s illicit debts. Mind you, it shows that he didn’t use cash. He laundered the funds using more sophisticated money laundering. But it does show that Cohen was the guy who did that kind of thing.

Which makes this detail included — but not explained — in the same plea document intriguing.

Cohen paid some tech company $50,000 in connection with the campaign.

That’s not a whole lot of money, in any case. And if it went to pay off part of the information operation, it would have to have involved some part of the operation not yet publicly identified. Even the one known instance of Trump supporters reaching out to hackers in Europe — Peter Smith’s reported consultation of Weev — is known to have been paid for by other means (in that case, Smith’s own fundraising).

Still, it’s certainly possible that that $50,000 went to some still unidentified entity that played a role in the information operation that, for some reason, didn’t get paid for by Putin’s cronies or the Russian state.

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


18 October

Speaking separately to the same compatriot in mid-October 2016, a Kremlin insider with direct access to the leadership confirmed that a key role in the secret TRUMP campaign/Kremlin was being played by the Republican candidates personal lawyer Michael COHEN. [redacted line]

19 October

1. Speaking in confidence to a longstanding compatriot friend in mid-October 2016, a Kremlin insider highlighted the importance of Republican presidential candidate Donald TRUMP’s lawyer, Michael COHEN, in the ongoing secret liaison relationship between the New York tycoon’s campaign and the Russian leadership. COHEN’s role had grown following the departure of Paul MANNAFORT as campaign manager in August 2016. Prior to that MANNAFORT had led for the TRUMP side.

2. According to the Kremlin insider, COHEN now was heavily engaged in a cover up and damage limitation operation in the attempt to prevent the full details of relationship with Russia being exposed. In pursuit of this aim, COHEN had met secretly with several Russian Presidential Administration (PA) Legal Department officials in an EU country in August 2016. The immediate issues had been to contain further scandals involving MANNAFORT’s commercial and political role in Russia/Ukraine and to limit the damage arising from exposure of former TRUMP foreign policy advisor, Carter PAGE’s secret meetings with Russian leadership figures in Moscow the previous month. The overall objective had been to “to sweep it all under the carpet and make sure no connections could be fully established or proven”

3. Things had become even “hotter” since August on the TRUMP-Russia track. According to the Kremlin insider, this had meant that direct contact between the TRUMP team and Russia had been farmed out by the Kremlin to trusted agents of influence working in pro-government policy institutes like that of Law and Comparative Jurisprudence. COHEN however continued to lead for the TRUMP team.

[snip]

The Kremlin insider was unsure of the identities of the PA officials with whom COHEN met secretly in August, or the exact date/s and locations of the meeting/s. There were significant internal security barriers being erected in the PA as the TRUMP issue became more controversial and damaging. However s/he continued to try to obtain these.

20 October

1. Speaking to a compatriot and friend on 19 October 2016, a Kremlin insider provided further details of reported clandestine meeting/s between Republican presidential candidate, Donald lawyer Michael COHEN and Kremlin representatives in August 2016. Although the communication between them had to be cryptic for security reasons, the Kremlin insider clearly indicated to his/her friend that the reported contact/s took place in Prague, Czech Republic.

2. Continuing on this theme, the Kremlin insider highlighted the importance of the Russian parastatal organisation, Rossotrudnichestvo, in this contact between TRUMP campaign representative/3 and Kremlin officials. Rossotrudnichestvo was being used as cover for this relationship and its office in Prague may well have been used to host the COHEN Russian Presidential Administration (PA) meeting/s. It was considered a “plausibly deniable” vehicle for this, whilst remaining entirely under Kremlin control.

3. The Kremlin insider went on to identify leading pro-PUTIN Duma figure, Konstantin KOSACHEV (Head of the Foreign Relations Committee) as an important figure in the TRUMP campaign-Kremlin liaison operation. KOSACHEV, also “plausibly deniable” being part of the Russian legislature rather than executive, had facilitated the contact in Prague and by implication, may have attended the meeting/s with COHEN there in August.

Company Comment

We reported previously, in our Company Intelligence Report 2016/135 of 19 October 2016 from the same source, that COHEN met officials from the PA Legal Department clandestinely in an EU country in August 2016. This was in order to clean up the mess left behind by western media revelations of TRUMP ex-campaign manager corrupt relationship with the former pro-Russian YANUKOVYCH regime in Ukraine and TRUMP foreign policy advisor, Carter secret meetings in Moscow with senior regime figures in July 2016. According to the Kremlin advisor, these meeting/s were originally scheduled for COHEN in Moscow but shifted to what was considered an operationally “soft” EU country when it was judged too compromising for him to travel to the Russian capital.

13 December

1. We reported previously (2016/135 and /136) on secret meeting/s held in Prague, Czech Republic in August 2016 between then Republican presidential candidate Donald TRUMP’s representative, Michael COHEN and his interlocutors from the Kremlin working under cover of Russian ‘NGO’ Rossotrudnichestvo.

2. [two lines redacted] provided further details of these meeting/s and associated anti- CLINTON/Democratic Party operations. COHEN had been accompanied to Prague by 3 colleagues and the timing of the visit was either in the last week of August or the first week of September. One of their main Russian interlocutors was Oleg SOLODUKHIN operating under Rossotrudnichestvo cover. According to [redacted] the agenda comprised questions on how deniable cash payments were to be made to hackers who had worked in Europe under Kremlin direction against the CLINTON campaign and various contingencies for covering up these operations and Moscow’s secret liaison with the TRUMP team more generally.

3. [redacted] reported that over the period March-September 2016 a company called XBT/Webzilla and its affiliates had been using botnets and porn traffic to transmit viruses, plant bugs, steal data and conduct “altering operations” against the Democratic Party leadership. Entities linked to one Aleksei GUBAROV were involved and he and another hacking expert, both recruited under duress by the FSB, Seva KAPSUGOVICH, were significant players in this operation. In Prague, COHEN agreed contingency plans for various scenarios to protect the Operation, but in particular what was to be done in the event that Hillary CLINTON won the presidency. It was important in this event that all cash payments owed were made quickly and discreetly and that cyber and other operators were stood down/able to go effectively to ground to cover their traces. (We reported earlier that the involvement of political operatives Paul MANAFORT and Carter PAGE in the secret TRUMP-Kremlin liaison had been exposed in the media in the run-up to Prague and that damage limitation of these also was discussed by COHEN with the Kremlin representatives).

In terms of practical measures to be taken, it was agreed by the two sides in Prague to stand down various “Romanian hackers” (presumably based in their homeland or neighboring eastern Europe) and that other operatives should head for a bolt-hole in Plovdiv, Bulgaria where they should “lay low”. On payments, IVANOV’s associate said that the operatives involved had been paid by both TRUMP’s team and the Kremlin, though their orders and ultimately loyalty lay with IVANOV, as Head of the PA and thus ultimately responsible for the operation, and his designator successor/s after he was dismissed by president PUTIN in connection with the anti-CLINTON operation in mid August.

Mueller Would Not Have Needed a Foreign Intelligence Agency to Geolocate Michael Cohen’s Phone

The same McClatchy team that has long been chasing the Steele dossier allegation that Michael Cohen was in Prague in (the first two reports said) August or maybe (the last report said) September has a new story reporting two new details about the allegation, sourced to four people reporting anonymously and secondhand about what “foreign intelligence connections” told them.

I’ll get to the substance of the report in a second, but first I want to point to a claim they make.

If the foreign intelligence intercepts are accurate, the big questions now are whether Cohen has acknowledged to investigators that a meeting in Prague occurred, informed them what transpired and revealed what, if anything, he told Trump about it.

It’s a remarkable claim from reporters trying to cover a part of the Russian investigation (but who have covered very little aside from the Cohen in Prague allegation). Because no, the big questions are not and have not been for some time whether Cohen told investigators of this.

That’s true, in part, because if one of these claims — that Cohen’s phone showed up near Prague in August or maybe September — is true, then Mueller would have had this since April at the latest, and probably significantly earlier. Here’s the allegation:

A mobile phone traced to President Donald Trump’s former lawyer and “fixer” Michael Cohen briefly sent signals ricocheting off cell towers in the Prague area in late summer 2016, at the height of the presidential campaign, leaving an electronic record to support claims that Cohen met secretly there with Russian officials, four people with knowledge of the matter say.

Weirdly, the reporters writing up this story show no awareness of whether Mueller has obtained Cohen’s records.

Mueller’s investigators, some of whom have met with Steele, likely also pursued Cohen’s cell phone records. It would be a common early step in such an investigation for a prosecutor to obtain a court warrant for all U.S. and foreign phone company records of key subjects, even those dating back more than 18 months.

Cohen is likely to be one of the five people who had the information from their AT&T phones (or a likely comparable number who probably had information their Verizon phones) obtained back on March 9 in the wake of the Rick Gates plea. In any case, we know that the FBI seized a whole slew of Cohen’s phones on April 9 and were able to fully exploit all of them save an old Blackberry.

So we don’t have to rely on extrapolating from what are often common first steps, because we know that Mueller has already obtained Cohen’s actual phones (to say nothing of his phone records).

If any of Cohen’s phones were in the vicinity of Prague in 2016 — whether August or maybe September — Mueller knew about it when he told Judge William Pauley that,

Cohen provided the SCO with useful information concerning certain discrete Russia-related matters core to its investigation that he obtained by virtue of his regular contact with Company executives during the campaign.

That’s the one description of Cohen’s cooperation that might incorporate covering up for Manafort in August or maybe September 2016. Perhaps a Prague meeting is included in that bullet — as I noted in April, Cohen’s then lawyer avoided addressing the issue (though Lanny Davis, working as a flack yet being employed as a lawyer, claimed repeatedly after April that Cohen had not been in Prague).

If it was, however, Mueller nevertheless chose to focus on Cohen’s lies about a Trump Tower deal in Cohen’s allocution.

The defendant lied to Congress about a business project (the “Moscow Project”) that he worked on during the 2016 presidential campaign, while he served as Executive Vice President at a Manhattan-based real estate company (the “Company”) and as Special Counsel to the owner of the Company (“Individual 1”).

Nor was a Prague meeting described to be among the things that Cohen lied about at his first proffer session so as to avoid conflicting with lies he told Congress (and if Cohen did go to Prague, he would have lied to Congress about that).

This initial meeting with the SCO, on August 7, 2018, was set up at Cohen’s request. In that meeting, Cohen voluntarily provided information relevant to other aspects of the SCO’s ongoing investigation, but when asked questions about the Moscow Project, Cohen provided false answers in what he later explained was an effort not to contradict his congressional testimony.

And Mueller didn’t include Cohen’s claims about Prague in a footnote describing Cohen’s other lies about contacts with Russians.

The defendant, without prompting by the SCO, also corrected other false and misleading statements that he had made concerning his outreach to and contacts with Russian officials during the course of the campaign. For example, in a radio interview in September 2015, the defendant suggested that Individual 1 meet with the President of Russia in New York City during his visit for the United Nations General Assembly. When asked previously about these events, the defendant claimed his public comments had been spontaneous and had not been discussed within the campaign or the Company. During his proffer sessions, the defendant admitted that this account was false and that he had in fact conferred with Individual 1 about contacting the Russian government before reaching out to gauge Russia’s interest in such a meeting. The meeting ultimately did not take place.

None of that rules out the McClatchy report that Cohen was in Prague. If Cohen was in Prague, Mueller might well want to keep that secret.

But thus far, Mueller seems to think that Cohen’s role in brokering a Trump Tower deal (including, per BuzzFeed’s reporting, with a banker tied to GRU, the intelligence agency that carried out the election year operation) was a more important lie than anything that got reported in the Steele dossier.

All of which is to say that I still stand by this post, in which I argue that it’s high time for reporters to stop focusing primarily on whether details of the Steele dossier have proven true (particularly if that’s all you do on the Russian investigation, as it substantially is with these reporters), and instead look to laying out the implications of the conspiracy that Mueller has already provided corroboration of.

There is growing evidence that Trump conspired with Russians in 2016. That evidence, however, comes increasingly from Mueller, not from Christopher Steele.

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

Tit-for-Tat: What Mike Flynn’s 302 Reveals about the Lies He Told

Last week, I wrote this post arguing that Mike Flynn’s 302 (FBI interview report) shows what Flynn was hiding when he lied to the FBI: In addition to his most fundamental lie — that he and Sergei Kislyak had talked about Russia moderating its response to new Obama sanctions, Flynn lied about his coordination with KT McFarland, who was with Trump at Mar-a-Lago.

Since people are still wondering why Flynn lied, I thought I’d write it up to make it even more plain. This post relies on these sources:

As Flynn’s Statement of the Offense lays out, Obama signed the Executive Order imposing new sanctions on December 28, 2016.

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”).

Flynn admitted that Kislyak contacted him the day Obama imposed the sanctions.

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

Flynn told the FBI that was a text that, because of poor connectivity in Dominican Republic, he didn’t see for a day. (I suspect this is also a lie, but it is possible.)

Shortly after Christmas, 2016, FLYNN took a vacation to the Dominican Republic with his wife. On December 28th, KISLYAK sent FLYNN a text stating, “Can you call me?”

Sometime in the day after Obama imposed the sanctions, Lisa Monaco gave her successor, Tom Bossert, a heads up about how angry the Russians were, making it clear the Obama Administration had formally contacted them.

Obama administration officials were expecting a “bellicose” response to the expulsions and sanctions, according to the email exchange between Ms. McFarland and Mr. Bossert. Lisa Monaco, Mr. Obama’s homeland security adviser, had told Mr. Bossert that “the Russians have already responded with strong threats, promising to retaliate,” according to the emails.

That suggests that the Obama Administration formally alerted the Russians before Kislyak’s text and alerted the Trump Transition not long after. That is, the Flynn-Kislyak contacts occurred after Obama had informed both sides, if not Flynn directly.

In spite of that formal notification, Flynn attributed any delay in responding to Kislyak to Dominican Republic’s poor cell phone reception. He claims (probably assuming the only communications the FBI would ever review would be Kislyak’s communications) that he saw the text on the 29th, took a bit of time, then called the Russian Ambassador.

FLYNN noted cellular reception was poor and he was not checking his phone regularly, and consequently did not see the text until approximately 24 hours later. Upon seeing the text, FLYNN responded that he would call in 15-20 minutes, and he and KISLYAK subsequently spoke.

What Flynn didn’t tell the FBI is that, per his allocution, he spoke with KT McFarland immediately before his call with Kislyak (importantly, this is true whether he really didn’t find out until the 29th or if there was a longer conversation with McFarland).

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 PTT 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.

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.

The account of the timing of discussions both at Mar-a-Lago and with advisors who were dispersed across the globe in the NYT story is vague. Though NYT makes it clear that one email, at least, described the Flynn call with Kislyak prospectively.

As part of the outreach, Ms. McFarland wrote, Mr. Flynn would be speaking with the Russian ambassador, Mr. Kislyak, hours after Mr. Obama’s sanctions were announced.

One of those emails, importantly, included the following talking points.

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. [my emphasis]

Per the NYT, that email appears to have been forwarded to — among others — Flynn.

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.

One thing makes it more likely that Flynn received McFarland’s email (or at least equivalent talking points via phone), and received it before he returned the call to Kislyak. When the Agents moved to the stage of the interview where — per Peter Strzok’s later description — “if Flynn said he did not remember something they knew he said, they would use the exact words Flynn used,” they quoted that “tit-for-tat” language.

The interviewing agents asked FLYNN if he recalled any conversation with KISLYAK in which the expulsions were discussed, where FLYNN might have encouraged KISLYAK not to escalate the situation, to keep the Russian response reciprocal, or not to engage in a “tit-for-tat.” FLYNN responded, “Not really. I don’t remember. It wasn’t, “Don’t do anything.” [my emphasis]

So whether Flynn saw this language in an email first, it seems clear he spoke to McFarland — who was coordinating all this from Mar-a-Lago, where Trump was — before he spoke with Kislyak. And that’s important, because Flynn claimed he had no idea that the US had expelled a bunch of Russian diplomats “until it was in the media.”

The U.S. Government’s response was a total surprise to FLYNN. FLYNN did not know about the Persona-Non-Grata (PNG) action until it was in the media.  KISLYAK and FLYNN were starting off on a good footing and FLYNN was looking forward to the relationship. With regard to the scope of the Russians who were expelled, FLYNN said he did not understand it. FLYNN stated he could understand one PNG, but not thirty-five.

It’s possible that Flynn didn’t learn about the expulsions until Obama’s press releases on the 29th, if he didn’t check with McFarland before that. Except he also claimed the FBI that he didn’t have access to TV news in DR.

FLYNN noted he was not aware of the then-upcoming actions as he did not have access to television news in the Dominican Republic and his government BlackBerry was not working.

In context in his 302, though, that seems to be offered as a substantiating detail to support his claim that he didn’t know about the expulsions before he spoke with Kislyak — or, indeed, the even crazier claim that Kislyak didn’t raise it on that call, regardless of what Flynn knew going into the call.

The interviewing agents asked FLYNN is he recalled any conversation with KISLYAK surrounding the expulsion of Russian diplomats or closing of Russian properties in response to Russian hacking activities surrounding the election. FLYNN stated that he did not. FLYNN reiterated his conversation was about [Astana peace conference] described earlier.

Consider how ridiculous this lie is: Flynn wanted the FBI to believe that, having asked Flynn to contact him after Russia was informed of Obama’s sanctions, Kislyak didn’t even mention the sanctions to him.

That’s obvious nonsense. But it was a necessary to hide two things. First, that he had spoken with Kislyak about sanctions — which is what the focus has been on until now.

But claiming that he hadn’t heard about the expulsions before he called Kislyak also served to hide an equally critical detail: Flynn had not only heard of the sanctions (if he hadn’t already heard) from his deputy, KT McFarland, who was at Mar-a-Lago with Trump, but she and he and a number of other people had coordinated what he would say to Kislyak before the call. And they did do based off the belief that Obama’s actions against Russia were all a political set-up and not a sound response to Russia’s involvement in the election.

Flynn not only coordinated his messaging with McFarland, but he used language she offered, writing from Mar-a-Lago: “tit-for-tat.”

After Flynn pled guilty, McFarland spent some time cleaning up what she had told the FBI the previous summer (at a time when everyone seemed to believe their emails recording all this would never be reviewed by the FBI). According to WaPo’s coverage, McFarland,

walked back her previous denial that sanctions were discussed, saying a general statement Flynn had made to her that things were going to be okay could have been a reference to sanctions, these people said.

Flynn’s statement of the offense actually reflects two conversations that McFarland may have initially lied about — one on December 29, when Flynn reported back on his call with Kislyak, and another after his December 31 call with Kislyak, when Flynn reported back to “senior members of the Presidential Transition Team.”

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.

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.

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.

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

It appears that Flynn tried to hide the entire existence of the call on December 31 (unless that’s why he claimed he had to keep calling back to Kislyak because of connectivity issues).

The interviewing agents asked FLYNN if he recalled any conversation with KISLYAK in which KISLYAK told him the Government of Russia had taken into account the incoming administration’s position about the expulsions, or where KISLYAK said the Government of Russia had responded, or chosen to modulate their response, in any way to the U.S.’s actions as a result of a request by the incoming administration. FLYNN stated it was possible that he talked to KISLYAK on the issue, but if he did, he did not remember doing so. FLYNN stated he was attempting to start a good relationship with KISLYAK and move forward. FLYNN remembered making four to five calls that day about this issue, but that the Dominican Republic was a difficult place to make a call as he kept having connectivity issues. FLYNN reflected and stated that he did not think he would have had a conversation with KISLYAK about the matter.

The point, however, is multiple people in the Transition lied about this back-and-forth involving people at Mar-a-Lago with Trump.

Their correction of those stories is probably one thing described in this redaction in Flynn’s sentencing addendum.

The fact that Flynn’s lies attempted to hide coordination with Mar-a-Lago and the Transition team generally is significant for several reasons.

First, it appears that at least KT McFarland and probably Sean Spicer were in on at least part of Flynn’s cover story. If that’s right, it would require more coordination than we’ve seen reported based on emails. It’s still unclear how much those who lied about Flynn’s conversations early in January 2017 — including Spicer but especially Mike Pence, who has not been named as receiving the emails among the Transition team — knew about Flynn’s conversations.

A perhaps more important detail, legally, is one that Ty Cobb — at the time, still working for Trump — tried to deny: at least one person in the Trump camp had assured the Obama Administration that they would not undercut Obama’s efforts to retaliate against Russia.

The Trump transition team ignored a pointed request from the Obama administration to avoid sending conflicting signals to foreign officials before the inauguration and to include State Department personnel when contacting them. Besides the Russian ambassador, Mr. Flynn, at the request of the president’s son-in-law, Jared Kushner, contacted several other foreign officials to urge them to delay or block a United Nations resolution condemning Israel over its building of settlements.

Mr. Cobb said the Trump team had never agreed to avoid such interactions. But one former White House official has disputed that, telling Mr. Mueller’s investigators that Trump transition officials had agreed to honor the Obama administration’s request.

This puts a totally different spin on Susan Rice’s role in unmasking intercepts involving Trump transition officials exhorting the Russian Ambassador to blow off Obama’s sanctions and working with Mohammed bin Zayed al-Nahyan to keep a face-to-face meeting in NY secret (and probably also other intercepts assuring Bibi Netanyahu the Trump Transition would do all they could to undercut an Obama effort to punish Israeli settlements).

Rice would have unmasked those conversations having some reason to believe that the people involved in those discussions (Flynn and Kushner) were blowing off a Trump Transition commitment not to undercut Obama policy.

Such actions, then, would appear to go beyond a mere Logan Act violation. That is, Flynn and Kushner would have appeared to be pursuing their own foreign policy agenda, not just undercutting Obama’s policy, but also undercutting Trump’s (contested) agreement not to undercut Obama’s policies at least through the transition. And they would be doing so, by appearances, in pursuit of their own personal profit.

And those seeming instances of free-lancing would have accompanied Flynn’s request (in the days before it would be exposed that his Transition calls had been intercepted) to Rice to delay arming the Kurds, at a time when he was still legally hiding this relationship with Turkey.

Ultimately, we’re almost certainly going to learn all this was done with Trump’s explicit approval.

But because Flynn made such an effort to hide that his efforts to placate the Russians (and help the Turks and carry out undisclosed conversations with the Emirates and Israel) were done on the specific direction of Trump and Kushner, it would have looked like he was undermining both the Trump Administration and the interests of the United States.

It turns out he was only doing the latter.

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

Putin’s Chef, Evgeniy Prigozhin, Says He Needs Discovery So He Can Figure Out if He’s Putin’s Boss or His Chef

Among the more trollish arguments in Yevgeniy Prigozhin’s latest troll argument in defense of his troll attack on the 2016 election is that Prigozhin has to get all the discovery turned over to Concord’s lawyers because only he can tell whether he’s Putin’s boss, or his chef.

[T]he documents that the government appears to contend are statements of Concord under Fed. R. Civ. P. 16(C)(i) and (ii) are primarily in Russian. While defense counsel has engaged translators to begin its review of the discovery materials, the only way to get fully accurate translations and prepare for trial is to speak to the individuals who allegedly wrote the documents. See United States v. Archbold-Manner, 577 F. Supp. 2d 291, 292-93 (D.D.C. 2008) (noting the need for translations of voluminous foreign language discovery in ruling relating to Speedy Trial Act). This is particularly true with respect to Russian, which is highly dissimilar to English and literal translations of words often result in lost meaning or context. See, e.g., https://www.state.gov/m/fsi/sls/c78549.htm (Department of State’s Foreign Service Institute School of Language Studies identifying Russian as a Category III Language “with significant linguistic and/or cultural differences from English”). Again, by way of example, certain allegedly sensitive documents contain the Russian word “шеф.” This word can be translated into the English words “chief,” “boss” or “chef”—a distinction that is critically important since international media often refers to Mr. Prigozhin as “Putin’s Chef.”

Each logical step in this paragraph is nonsense, because it’s clear the documents in question are getting translated by people who do not suffer from the “significant linguistic and cultural differences” cited by the State Department in an off-point citation. Ultimately, this argument amounts to Prigozhin claiming that only he knows whether — all this time! — has has actually been Putin’s boss, not his chef, as usually claimed.

That said, the argument is telling, because it suggests that Prigozhin has to get discovery because documents turned over in discovery directly implicate his relationship with Putin.

“The Russian national who controls the Defendant but has not personally appeared”

The main gist of this filing, however, is an attempt to revisit an earlier order in this case and force the government (the troll lawyers pretend this case is being exclusively prosecuted by Mueller and not also by lawyers from two other DOJ components) to turn over 3 million pages in discovery to Prigozhin, even though he hasn’t appeared before the court personally.

Since the entry of the Protective Order, the Special Counsel has produced nearly 4 million documents, 3.2 million of which it has designated as “sensitive.” The Special Counsel has not explained to defense counsel the reason for the designation of any particular document or category of documents, nor has he explained why—with non-classified material—defense counsel should not have access to his secret communications with the Court.

Remember, Prigozhin made himself General Manager of Concord Management after it got indicted in the same indictment in which he got indicted so he could insist that he get this discovery in his corporate form, even while dodging prosecution in his natural form (it’s sort of the reverse effect of the Trump Organization consubstantiation that is going to get Trump in trouble). As a result, Concord argues (for the second time) that Prigozhin must get discovery because he is the defendant, and not a co-defendant currently avoiding any court appearance.

Undersigned counsel has been unable to identify a single reported case where a corporate defendant was prohibited from viewing discovery,

[snip]

Second, co-defendant Mr. Prigozhin is the only person directly affiliated with Concord identified in the Indictment. As such, Concord cannot be expected to make informed decisions regarding its defense or meaningfully confer with its counsel unless it—and specifically Mr. Prigozhin—understands the evidence the Special Counsel intends to use against it at trial. Maury, 695 F.3d at 248 (recognizing that “[a]n organization has no self-knowledge of its own Undersigned counsel has been unable to identify a single reported case where a corporate defendant was prohibited from viewing discovery,

Yet the troll lawyers don’t address the issue that proved key the last time: that this an attempt for Prigozhin, who because he has not made an appearance is not bound by the protective order, to obtain discovery as a defendant without risking his neck. Indeed, it turns that scenario on its head, searching for instances where corporations have been denied discovery as opposed to where indicted co-conspirators obtain discovery without showing up in court first.

In a related filing, the government calls Prigozhin “the Russian national who controls the Defendant but has not personally appeared” and cite national security concerns about “certain facts regarding Prigozhin and other Russian nationals associated with him.” Perhaps the government needs to present details to Friedrich about just what Putin’s chef has cooked up for him.

The troll lawyers also don’t address the terms of the discovery order. Prigozhin has a means of getting the discovery he wants: he only needs to come to the United States and enter into the protective order to do that. Indeed, two of the cases Concord cites seem to support the existing protective order, which requires those who access this information to be bound by the court before they do so and prohibits discovery from being removed from the US.

United States v. Carriles, 654 F. Supp. 2d 557, 562, 570 (W.D. Tex. 2009) (rejecting the government’s proposed protective order related to sensitive but unclassified discovery which would have prevented defendant from disseminating any sensitive discovery material to prospective witnesses without first obtaining court approval, and instead allowing defendant to disclose materials necessary for trial preparation after obtaining a memorandum of understanding related to the protective order); Darden, 2017 WL 3700340, at *3 (rejecting the government’s proposed protective order that prohibited the defendants from reviewing discovery materials unless in the presence of counsel and adopting a less restrictive protective order which specified precisely which discovery materials defense counsel could review with the defendants but could not provide or leave with the defendants).

Admittedly, Judge Dabney Friedrich invited Concord to return to these issues (albeit at a slightly later stage than where we’re at). But Concord doesn’t even address that there are means for Prigozhin to access materials under the existing protective order.

There are two more interesting sub-arguments here.

Concord argues that because the US government has charged accountant Elena Khusyaynova — but not in this case — the ongoing investigation is done

First, Concord uses the fact that Eastern District of VA charged Concord accountant in a parallel case, the “ongoing investigation” the government cited to justify its secrecy has ended.

Nevertheless, the Special Counsel has publicly invoked—in the Protective Order itself and its briefing—both an “ongoing investigation” and “sensitive investigatory techniques” as grounds for preventing disclosure, neither of which should apply here.

Undersigned counsel must assume for now that the “ongoing investigation” referred to in the Protective Order is related to the criminal complaint recently unsealed in the Eastern District of Virginia. Ex. A. Because this complaint is now unsealed, and the ongoing investigation has been publicly revealed, there is no further need to protect this investigation from disclosure.

It later says that some of the documents cited in the affidavit submitted in Elena Khusyaynova’s case are “the very same documents” turned over in discovery here.

Relatedly, the government itself has described some of the “sensitive” discovery in great detail in public filings, yet has made no effort to subsequently re-categorize those very same documents as no longer sensitive. For example, in an affidavit in support of a criminal complaint filed under seal on September 28, 2018 in the Eastern District of Virginia and unsealed on October 19, 2018, an FBI Special Agent described “detailed financial documents that tracked itemized Project Lakhta expenses” allegedly transmitted between an employee of Concord and an employee of its co-defendant, Internet Research Agency. See Ex. A, Criminal Compl., United States v. Elena Khusyaynova, 1:18-mj-464 (E.D. Va.) (filed Sept. 28, 2018; unsealed Oct. 19, 2018) (“the Holt Affidavit”). The Holt Affidavit goes on to state that “[b]etween at least January 2016 and July 2018, these documents were updated and provided to Concord on approximately a monthly basis,” and provides “illustrative examples” of these documents, including identifying the individual who sent the document (the defendant identified in the complaint); describing the date on which the documents were allegedly sent and the approximate dollar value contained in the document; and even quoting from the documents. Id. ¶ 21. To the extent that these very same documents are among those designated by the Special Counsel as “sensitive,” it is impossible to understand why they cannot be shared with Concord in order to defend itself against criminal charges in this case. [my emphasis]

The argument that any investigation into Concord is complete is undermined by the other motion Concord submitted the same day they submitted this motion. It complains that Mueller prosecutor Rush Atkinson somehow took investigative action on information a week after Concord provided  the same information to the Firewall Counsel, on August 30.

On August 23, 2018, in connection with a request (“Concord’s Request”) made pursuant to the Protective Order entered by the Court, Dkt. No. 42-1, Concord provided confidential information to Firewall Counsel. The Court was made aware of the nature of this information in the sealed portion of Concord’s Motion for Leave to Respond to the Government’s Supplemental Briefing Relating to Defendant’s Motion to Dismiss the Indictment, filed on October 22, 2018. Dkt. No. 70-4 (Concord’s “Motion for Leave”). Seven days after Concord’s Request, on August 30, 2018, Assistant Special Counsel L. Rush Atkinson took investigative action on the exact same information Concord provided to Firewall Counsel. Undersigned counsel learned about this on October 4, 2018, based on discovery provided by the Special Counsel’s Office. Immediately upon identifying this remarkable coincidence, on October 5, 2018, undersigned counsel requested an explanation from the Special Counsel’s Office, copying Firewall Counsel on the e-mail. The Special Counsel’s Office responded to the email on October 7, 2018, but did not explain how it obtained the confidential information, stating instead that the trial team was unaware that undersigned counsel was in communication with Firewall Counsel and that “[n]o criminal process that has been turned over in discovery is derived from [those] communications.”

Having received no further explanation or information from the government, undersigned counsel raised this issue with the Court in a filing made on October 22, 2018 in connection with the then-pending Motion to Dismiss. In response to questions from the Court, Firewall Counsel denied having any communication with the Special Counsel’s Office.

In a footnote, Concord makes the kind of vague claim I expect to be corrected by Mueller, suggesting that its one request to Firewall Counsel hasn’t gotten a response.

Concord initially requested authorization from the Court pursuant to the Protective Order to disclose a small number of specifically identified allegedly sensitive documents to particular Russian individuals, but to date the Court had not required the Firewall Counsel to respond to that request in writing.

While it’s certainly possible Atkinson’s investigative action fed into the September 28 charges against Khusyaynova, one way or another, it suggests the parts of the Concord investigation under Mueller also remain ongoing.

Interestingly, Atkinson wasn’t on October 23 and  November 27 filings in this case, though he was on yesterday’s brief; during October and November, however, Atkinson was dealing with red-blooded American trolls like Jerome Corsi.

In any case, the complaint about Atkinson feels like a parallel construction issue to me. After all, Concord surely remains under close surveillance by the US government, and so long as Progozhin does not have a lawyer who files an appearance for him personally in this matter, he likely remains a legitimate surveillance target. So Atkinson might have means to obtain such information independent of the Firewall Counsel.

Reverse engineering the parallel construction on 3 million documents

Indeed, that’s what this entire thing feels like: an attempt to obtain the non-classified discovery from US providers to reverse engineer it to understand what surveillance the underlying investigation is conducting. As Concord describes, its lawyers are seeing millions of documents obtained via subpoena.

The Special Counsel has explicitly acknowledged that none of the discovery is classified. Moreover, the allegedly “sensitive” discovery appears to have been collected exclusively through the use of criminal subpoenas, search warrants, and orders issued pursuant to 18 U.S.C. § 2703, as opposed to any classified collection method.

It then goes on to suggest that what US tech companies turn over in response to legal process is all laid out in public. It also helpfully names a bunch of providers from which discovery has been provided: Google, Facebook, Twitter, Apple, Microsoft, Yahoo!, Instagram, WhatsApp, Paypal, and Verizon.

With respect to “sensitive investigatory techniques,” the discovery produced to date comes from legal process issued to various companies, including email providers, internet service providers, financial institutions, and other sources. See Government’s Mot. For a Protective Order Under Federal Rule of Criminal Procedure 16(d)(1) at 2, Dkt. 24. But any person anywhere in the world connected to the Internet already knows that law enforcement agencies can and do gather evidence from these types of companies through legal process in criminal matters, and specifically what can be gathered through those various processes is widely known and is not in need of protection. For example, Google explains in detail on its website precisely what information it will disclose in response to legal process in the form of a subpoena, court order, or search warrant. See https://support.google.com/transparencyreport/answer/ 7381738?hl=en. Google specifically publicizes that in response to a subpoena for Gmail data, it can be compelled to disclose subscriber registration information (e.g., name, account creation information, associated email addresses, phone number), and sign-in IP addresses and associated time stamps. Id. In response to a court order for Gmail data, Google may provide “non-content information (such as non-content email header information)” and in response to a search warrant Google can be compelled to produce email content, in addition to the data produced in response to a subpoena or court order. Id. Facebook publishes similar information, explaining that in response to a subpoena, it may disclose “basic subscriber records,” which may include name, length of service, credit card information, email addresses, and recent login/logout IP addresses. See https://www.facebook.com/safety/groups/law/guidelines/. In response to a court order, Facebook may disclose message headers and IP addresses, as well as basic subscriber records. Id. In response to a search warrant, Facebook may disclose stored contents of the account, including messages, photos, videos, timeline posts, and location information. Id.

Twitter, Apple, Microsoft, Yahoo!, Instagram, and WhatsApp, all publish similarly detailed information about the types of data available to law enforcement through subpoenas, court orders, and search warrants. See https://help.twitter.com/en/rules-and-policies/twitter-lawenforcement-support (explanation from Twitter that obtaining non-public information requires valid legal process like a subpoena, court order, or other legal process and that requests for the contents of communications require a valid search warrant or equivalent); https:// www.apple.com/privacy/government-information-requests/ (explanation from Apple, Inc. of what government and law enforcement agencies can obtain through legal process); https:// www.microsoft.com/en-us/corporate-responsibility/lerr (explanation from Microsoft that a subpoena is required for non-content data, and a warrant or court order is required for content data); https://r.search.yahoo.com/_ylt=A0geK.OJvA5cPPUAkCJXNyoA;_ylu= X3oDMTEyaDM4Z2dkBGNvbG8DYmYxBHBvcwMxBHZ0aWQDQjQ4NTNfMQRzZWMDc3I-/RV=2/ RE=1544498442/RO=10/RU=https%3a%2f%2fwww.eff.org%2ffiles%2ffilenode%2fsocial_net work%2fyahoo_sn_leg-doj.pdf/RK=2/RS=sXU4pB1SMj3WwjZBx3ltlU4S6v w- (explanation from Yahoo of precisely what data may be disclosed in response to a subpoena, 2703(d) order, or Search Warrant); https://faq.whatsapp.com/en/android/26000050/?category=5245250 (explanation from WhatsApp detailing what information is available through various forms of legal process); https://help.instagram.com/494561080557017 (explanation from Instagram describing the information it will disclose in response to subpoenas, search warrants, and court orders). Financial institutions and internet service providers also openly describe what information is available to law enforcement through various legal process. See, e.g., https://www.paypal.com/us/webapps/mpp/law-enforcement (explanation from PayPal describing the type of data it collects and when that data is made available to law enforcement as required by law); https://www.verizon.com/about/portal/transparency-report/faqs/ (explanation from Verizon of the types of information it is required to disclose when properly requested by law enforcement or court order).

Thus, if it is the so-called “manner of collection” of the discovery that the Special Counsel seeks to protect—that is, the fact that law enforcement agencies can collect a certain type of data—that fact is widely known and does not justify the burdens the Protective Order imposes on Concord’s right to present a defense.3

Concord goes on to dismiss the concerns of exposing “witnesses.”

3 To the extent that the government argues that limiting access to discovery will ensure the safety of witnesses, there is no valid basis for such argument. Specifically, even in cases where there is such a risk (and undersigned counsel knows of no such risk here), there must be more than “broad allegations of harm, unsubstantiated by specific examples or articulated reasoning.” Johnson, 314 F. Supp. 3d at 251. In those instances, courts are still willing to allow a defendant to review the evidence, subject to certain parameters. See, e.g., id., at 254 (requiring government redaction of discovery materials); Darden, 2017 WL 3700340, at *3 (adopting less-restrictive measure to ensure witness safety). If the government has a legitimate concern about witness safety, the burden is on it to specifically articulate the concern, identify precisely the documents that would lead to the identification of a witness, and redact that information or propose an alternative means of restricting disclosure.

The FBI hides a great deal of detail about precisely what it can obtain from providers by deeming service providers witnesses, and this feels like the same.

Still, even the public record in past dockets reveals that discovery from providers can be vastly more extensive than the public imagines.

Which is, I imagine, what Concord is trying to provide Putin’s chef.

The troll lawyers implicitly troll Judge Freidrich’s past rulings

Don’t get me wrong. What kind of protective order Friedrich sustains against Concord so long as it insists co-defendant Prigozhin is the only one at Concord who can handle that discovery is an interesting legal question.

That said, Concord’s signature style might start wearing on Friedrich’s patience given claims that seemingly defy her decision on the last major challenge to the Mueller prosecution.

In this first-of-its-kind prosecution of a make-believe crime, the Office of Special Counsel maintains that it can unilaterally—and for secret reasons disclosed only to the Court— categorize millions of pages of non-classified documents as “sensitive,” and prohibit defense counsel from sharing this information with Defendant Concord for purposes of preparing for trial. This, apparently only because the Defendant and its officers and employees are Russian as opposed to American. The Special Counsel’s unique argument appears rooted in the maxim, “Happy the short-sighted who see no further than what they can touch.”1

Maillart, Ella K., The Cruel Way (1947).

Friedrich has already ruled that this is not a made-up crime.

In Concord’s view, that omission is dispositive: the indictment cannot accuse Concord of conspiring to obstruct lawful government functions “without any identified or recognized statutory offense” because a conspiracy conviction cannot be “based strictly on lawful conduct” even if that conduct is “concealed from the government.” Id. (emphasis omitted).

Concord is correct that the indictment must identify the lawful government functions at issue with some specificity. And it does. See Indictment ¶¶ 9, 25–27. A defraud-clause conspiracy need not, however, allege an agreement to violate some statutory or regulatory provision independent of § 371. 3

[Citations of 5 cases demonstrating the point]

Put simply, conspiracies to defraud the government by interfering with its agencies’ lawful functions are illegal because § 371 makes them illegal, not because they happen to overlap with substantive prohibitions found in other statutes.

Similarly, as part of a complaint that the prosecutors haven’t had to bear any burden of this protective order, Concord says they should have to redact Personally Identifiable Information rather than deeming materials including it “sensitive.”

But rather than impose on the government the burden of identifying the materials that actually contain PII, so that the specific documents or information can be redacted or restricted, the Special Counsel has used the Protective Order to designate the entirety of various data productions to completely restrict Concord’s ability to view the vast majority of discovery regardless of whether specific documents contain PII.

This is another issue that Friedrich has already ruled against the defense on, ruling against their request to make Mueller strip the PII.

Friedrich already seemed predisposed to honor the government’s security concerns, which they just teed up again. If she feels like she’s the one being trolled, as opposed to Democratic voters or Special Counsel lawyers, she may not look too kindly on this request.

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

We Will Not Get Peace from the People Who Dismember Dissidents Alive

In the wake of Trump’s announcement that the US will withdraw from Syria and James Mattis’ subsequent resignation, Jeremy Scahill captured the ambivalence of the moment this way:

I agree with much of what Scahill says: I welcome withdrawing troops from overseas. We should never forget that Mattis earned his name, Mad Dog, nor that he got fired by Obama for being too belligerent. The panicked response of a bunch of warmongers is telling. Trump cannot be trusted.

But I think Scahill is too pat in saying “the chaos presents opportunity,” in part because (as he suggests) there doesn’t yet exist “an alternative vision for US foreign policy.”

And while I appreciate that Scahill really does capture this ambivalence, far too many others welcoming a potential troop withdrawal are not recognizing the complexity of the moment.

While we don’t yet fully understand the complex dynamics that led to it, Trump decided to withdraw from Syria during a phone call with a man who has spent two months embarrassing Trump, Trump’s son-in-law, and the corrupt Saudi prince whose crackdown Trump has enthusiastically backed by releasing details of how that prince lulled an American resident dissident to a third country so he could be chopped up with a bone saw while still breathing. And even while Erdogan was embarrassing Trump with those details about Khashoggi’s assassination, he was pressuring Trump to extend the same favor to him by extraditing Fethullah Gulen so he could be chopped up in some grisly fashion.

It is a mistake to think we will get peace from men who dismember dissidents alive.

All that said, Trump will do what he wants and unless the simmering revolt at DOD changes his mind, he will withdraw from Syria and drawdown in Afghanistan.

And if that happens those who would like peace had damn well be better prepared  for that “opportunity” than by simply hoping a future alternative US foreign policy arises. It will take immediate tactical actions to prevent any withdrawal from creating more chaos and misery both in the US and overseas. After all, Trump says he wants to bring troops home, but he has already come perilously close to violating posse comitatus by deploying troops domestically, and that was even with Mattis pushing back against that campaign stunt.

At a minimum, those who want peace need to answer some of the following questions immediately:

What person would both be willing to work for Trump and pursue a policy of peace?

I could not think of any person who could be confirmed by the Senate — even one where nutjobs like Marsha Blackburn have replaced people like Bob Corker — that would be willing to work for Donald Trump and might pursue some kind of alternative foreign policy.

In fact, the only person I could think of for the job (ruling out Erik Prince for a variety of reasons) would be Tom Cotton.

So job number one, for people who hope to use this as an opportunity, is to start coming up with names of people who could replace Mattis and anyone else who quits along with him.

How to prevent the refugee crisis from getting worse?

Multiple accounts of the events leading up to Trump’s decision make it clear that Erdogan would like to use US withdrawal to massacre the Kurds. It’s possible we’ll see similar massacres in Assad-held Syria and Afghanistan as those left try to consolidate their victory.

For all the years the refugee crisis has been mostly a political prop here in the US, it has posed a real threat to the European Union (indeed, I went to several meetings with EUP members in the weeks before Trump’s election where they said it was the greatest threat to the EU). So we need to start thinking seriously about how to prevent genocide and other massacres and the inevitable refugee crises that would result.

How to counter Trump’s fondness for fossil fuels and arms sales?

No withdrawal is going to lead to “peace” or even a retreat of the US empire so long as Trump exacerbates an already unforgivable US addiction to fossil fuels and reliance on arms sales. Particularly with Saudi Arabia but also with Turkey, Trump has excused his fondness for authoritarianism by pointing to arms sales.

And on these issues, Trump actually agrees with the “war party in DC,” which will make it far harder to counter them. Yes, many of the new Democrats entering Congress — most of all Alexandria Ocasio-Cortez — don’t have these horrible habits. So what can you do to make sure her Green New Deal not only isn’t squelched by party leadership, but is seen as the alternative to Trump by centrists?

Nukes. How to prevent Trump from using them?

It’s not that Trump is opposed to violence. He’s opposed to engagement and complexity and long term engagement.

Which means, particularly as more and more so-called adults leave, the chance he’ll turn a tantrum into a nuclear strike skyrocket. Mattis won’t be there to stop him.

How to balance accountability for the mistakes that got us here with accountability for Trump?

The movement that brands itself as “The Resistance” has long made a grave mistake of embracing whatever warmed over anti-Trump centrist wanted to loudly denounce the President.

As a result, the mistakes of many of those people — people like John Brennan and Jim Comey and David Frum and David Brooks — were ignored, even when those mistakes created the vacuum that Trump (and Vladimir Putin) have filled.

Trump would not be President if George Bush had not invaded Iraq, abetted by Frum’s nifty tagline, Axis of Evil. Trump would not be President if the banks that crashed the economy in 2008 had been accountable by people like former Bridgewater Associates executive and HSBC board member then FBI Director Jim Comey.

Again, this is about complexity. But so long as those who would keep Trump accountable ignore what made Trump possible, we will make no progress.

How to preserve democracy long enough to pursue a new foreign policy?

Finally, an increasingly real challenge. Trump sides with Putin and Erdogan and Mohammed bin Salman and Abdel Fattah el-Sisi not because it serves US interests (which is the excuse American politicians usually offer for tolerating Saudi and Egyptian authoritarianism). He does so because he genuinely loves their authoritarianism.

And as Republicans in the Senate begin to push back against Trump, Democrats in the House try to hold him accountable, and the so-called adults leave his Administration, it raises the chances that Trump will embrace increasingly desperate measures to implement his policies. We can’t just assume that Mueller and SDNY and NY State will prevent a Trump authoritarian power grab, particularly not as he continues to pack the courts.

While numerous State Attorneys General and NGOs are having reasonable success at constraining Trump, thus far, in the courts, eventually we’re going to need a bipartisan commitment in DC to constraining Trump. Eventually we’re going to need to convince a bunch of Republican Senators that Trump is doing permanent damage to this country. That’s going to take building, not severing, relationships with some Republicans, even while finding some means to persuade them that Trump can no longer benefit them.

To some degree, we have no choice but to find answers to these questions, one way or another. It is especially incumbent on those celebrating a withdrawal to acknowledge, and try to answer, them.

The Moving Parts: The Walls Come Down around Trump

The other day (I forget which day it was, to be honest) I wondered aloud whether, as it became clear the walls were collapsing around Trump, he’d make a rash move to pay off his debts, perhaps to salvage something for his post-Presidenting life.

I’m not sure we’re quite at that point yet. But in recent days, a ton has happened it’s hard to make sense of.

This post doesn’t pretend to offer answers. I just want to write down everything I think is happening in one place — blogger’s prerogative, call it.

Mattis resigns, citing Trump’s fondness for authoritarians

The most alarming news is not that James Mattis resigned, but how he did so. In his resignation letter, he cited the importance of NATO, and China and Russia’s authoritarianism that leads them to promote their interest over that of their neighbors, America, and our allies, before he made it clear that Trump disagrees with Mattis in rejecting those authoritarian values.

One core belief I have always held is that our strength as a nation is inextricably linked to the strength of our unique and comprehensive system of alliances and partnerships. While the US remains the indispensable nation in the free world, we cannot protect our interests or serve that role effectively without maintaining strong alliances and showing respect to those allies. Like you, I have said from the beginning that the armed forces of the United States should not be the policeman of the world. Instead, we must use all tools of American power to provide for the common defense, including providing effective leadership to our alliances. NATO’s 29 democracies demonstrated that strength in their commitment to fighting alongside us following the 9-11 attack on America. The Defeat-ISIS coalition of 74 nations is further proof.

Similarly, I believe we must be resolute and unambiguous in our approach to those countries whose strategic interests are increasingly in tension with ours. It is clear that China and Russia, for example, want to shape a world consistent with their authoritarian model — gaining veto authority over other nations’ economic, diplomatic, and security decisions — to promote their own interests at the expense of their neighbors, America[,] and our allies. That is why we must use all the tools of American power to provide for the common defense.

My views on treating allies with respect and also being clear-eyed about both malign actors and strategic competitors are strongly held and informed by over four decades of immersion in these issues. We must do everything possible to advance an international order that is most conducive to our security, prosperity and values, and we are strengthened in this effort by the solidarity of our alliances.

Because you have the right to have a Secretary of Defense whose views are better aligned with yours on these and other subjects, I believe it is right for me to step down from my position. [my emphasis]

The precipitating event, though, was Trump’s decision to pull out of Syria.

Officials said Mr. Mattis went to the White House on Thursday afternoon in a last attempt to convince Mr. Trump to keep American troops in Syria, where they have been fighting the Islamic State. He was rebuffed, and told the president that he was resigning as a result.

One source says that Trump’s decision to close the Special Forces base in Syria is part of the problem.

The US is set to shut a special forces base in Syria that has been the subject of repeated Russian complaints, and that some US officials have cast as a key part of US efforts not just to defeat ISIS but to counter Iranian influence in the country.

Muhannad al-Talla, a rebel commander at al-Tanf, a US base near the Syrian border with Jordan, told BuzzFeed News that the base would see the withdrawal of the US troops who have trained and fought alongside rebels there.

I’m wondering if this base was involved in the shellacking of Putin ally Yevgeniy Prigozhin’s mercenaries.

Another is Erdogan’s threat (or promise) to massacre our longstanding Kurdish allies.

Defense officials tell me Mattis went to the White House to discuss Syria & that he was livid after reading reports that Turkey’s Defense Minister threatened to kill US-backed Kurds & put them in ditches once the US withdrew. He was incensed at this notion of betrayal of an ally.

Effectively, it seems, Mattis told Trump, “it’s me or Vladimir Putin” … and Trump chose Putin.

Erdogan exercises leverage — or is he the messenger boy?

But it wasn’t exactly — or just — Putin that finally got Trump to deliver on the payback he started delivering 14 hours after polls closed in 2016. It was Recep Tayyip Erdogan. As I noted, Trump met with Erdogan in Argentina but not — after the Michael Cohen allocution made it clear Putin was enticing Trump with a Tower deal in 2016 — Putin.

Multiple reports say a call Trump had with Erdogan on Friday was the precipitating factor. Here’s a really alarming account of that call.

That leads me to wonder what leverage Turkey, specifically, has over Trump, such that he’d pull out of Syria in response to a threat to massacre the Kurds, which will make it easy for Turkey to massacre the Kurds.

And I have to believe Turkey’s ploy with the Jamal Khashoggi execution is part of it. Erdogan never gave a shit that the Saudis lured a dissident to their soil to dismember alive. Erdogan himself pursues such repression, even if he conducts it with a bit more cover.

Indeed, whatever Erdogan has over Trump also has him considering extraditing Fethullah Gulen to Turkey for what would certainly be similar treatment — the payoff Turkey was requesting back in December 2016 when Trump’s chosen National Security Advisor was still hiding that he had been an unregistered agent for Turkey.

Perhaps Turkey has proof not just implicating Mohammed bin Salman in the execution, but Jared Kushner in green-lighting it, or possibly even Trump?

Mueller’s moves toward endgame

It’s hard — particularly given comments from people like Nancy Pelosi — to separate all this from what feels like an approaching Mueller (attempted) endgame. The lead-up to Flynn’s aborted sentencing featured the following:

  • Flynn makes an ill-considered attack on the legitimacy of the Mueller probe
  • Emmet Sullivan orders the release of the documents with which Flynn was attempting to undercut Mueller
  • Sullivan orders the far more damning Flynn 302 that, among other things, reveals that Turkey and Russia both had compromising information on Trump and Flynn
  • DOJ indicts Flynn’s business partners for hiding how Turkey angled to force DOJ to extradite Gulen
  • At Flynn’s sentencing hearing, Sullivan emphasizes that Flynn had been an agent of Turkey while ostensibly working for Trump and mentions the word treason

Plus there’s evidence that Jared Kushner — who has been the boy plaything for all these ruthless players — probably tried to attack Flynn even while he was having a grocery store tabloid pimp the Saudis.

And it was revealed that the Mystery Appellant refusing to provide information to Mueller is a foreign-owned corporation, probably a Russian or Middle Eastern bank or sovereign wealth fund funneling money to Trump or Jared. The company appears to have asked for an en banc review today.

Mueller also asked for and got the House Intelligence Committee to release its transcript of Roger Stone’s testimony. The timing of this is the interesting thing: Mueller chose to do this when Republicans had to (and did) vote to expose Trump’s top political advisor to indictment. He could have waited, but didn’t. That suggests either he wanted Republican buy-in, or he needs the transcripts now, to finalize his case against Stone before Democrats take over in a few weeks.

The day after SSCI released materials on James Wolfe, he was indicted.

So things are moving to a head in the Mueller probe, and in a way that both Russia and Turkey may be implicated.

Matt Whitaker performs a headfake before taking the corrupt step he was hired to take

Then there was the news today on big dick toilet salesman Matt Whitaker. This morning, multiple outlets reported that DOJ had told Whitaker he didn’t have to recuse from the Mueller probe. After that became the headline, however, multiple outlets revealed that the truth was the opposite: an ethics advisor had told Whitaker he should recuse, and having heard that, Whitaker consulted a hand-picked committee that predictably told him not to.

Within days of the president’s announcement in early November that he had put Whitaker in the role on a temporary basis, Whitaker tapped a veteran U.S. attorney to become part of a four-person team of advisers on his new job, according to a senior Justice Department official. Their guidance included the question of whether Whitaker should recuse himself from Mueller’s investigation because of his past statements regarding that probe and because of his friendship with one of its witnesses, the official said.

Whitaker never asked Justice Department ethics officials for a formal recommendation, nor did he receive one, this official said.

However, after Whitaker met repeatedly with Justice Department ethics officials to discuss the facts and the issues under consideration, a senior ethics official told the group of advisers on Tuesday that it was a “close call” but that Whitaker should recuse himself to avoid the appearance of a conflict of interest, the official said. Whitaker was not present at that meeting, they said.

Those four advisers, however, disagreed with the ethics determination and recommended to Whitaker the next day not to recuse, saying there was no precedent for that, and doing so now could create a bad precedent for future attorneys general.

That big dick toilet salesman Whitaker did this is not surprising.

That he chose to roll out this admission today is worth noting. One outlet reported that, up until today, Whitaker had not been briefed on the Mueller probe. Apparently, in the wake of a judge raising treason concerns after having reviewed Mike Flynn’s behavior, Whitaker has made the move to become Trump’s mole on the Mueller probe.

Update: BuzzFeed got a hold of the DOJ letter here. It makes it very clear Whitaker ignored advice to recuse.

Update: Marty Lederman notes that this letter fails to conduct a key part of the recusal analysis: why he would make a more appropriate supervisor for Mueller than Rod Rosenstein.

Trump prepares to shut down government

All this is happening as Trump prepares to shut down the government because Fox News laughed at him for getting pantsed by Nancy Pelosi.

Fox & Friends co-host Steve Doocy said the Democrats had won the showdown, and Trump had lost.

He launched into a tirade saying the president “loses, and the Democrats will win everything” based on his apparent decision to compromise with House Speaker Nancy Pelosi and Sen. Chuck Schumer.

Doocy said Trump’s defeat would not only risk his campaign commitment to build the wall, but also bring into question his electoral promises to curb the rest of the government’s spending.

In response, over the course of today, Trump told Republicans he’d veto any continuing resolution that didn’t include $5 billion for his steel slat wall, making it much more likely we’ll have a shutdown as Trump skedaddles to Mar-a-Lago to take calls from his authoritarian buddies.

This may be entirely unrelated. After all, Fox and Friends is Trump’s bubble, that’s the only place where he considers losses to matter, and after the truth that Pelosi had bested him started to seep through, the narcissist-in-chief had no choice but to make a rash demand that Republican politicians sacrifice their careers in deference to his tantrum.

Which is to say that this behavior is precisely what we should expect when a narcissist’s mirror tells his he has been bested by someone he must demean.

Or maybe it is related?

Putin — or someone else — is calling in receipts

As I’m thinking about these things, I keep thinking back to an argument I made in August. I argued that Putin had compromised Trump not with a pee tape, but by ensuring his people kept receipts every time Trump got sucked deeper and deeper into a deal with Russia.

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.

It has since become clear that not just Russia, but at least also Turkey and whatever bank is fighting a demand from Mueller that it turn over evidence of Trump’s graft, also have receipts.

Nevertheless, at the moment where it has become increasingly clear that Mueller knows much of whatever blackmail these partners have over Trump, Trump has chosen, instead, to alienate the Senators who might keep him from being impeached by evacuating from Syria and, later reports make clear, Afghanistan.

Trump is, on a dime and without warning to our closest allies, rolling up the American Empire. And he’s doing it not because he’s a peacenik — as far too many self-described progressives are trying to claim — but because ruthless, committed authoritarians have convinced him he needs their continued approval more than he needs the approval of even the Republican hawks in the Senate.

Update: I forgot to mention that the stock market is crashing. It started in response to Trump’s trade wars and bullying of the Fed, but accelerated given his threats to shut down the government.

Emmet Flood Steps in It Again: William Barr’s Memo Makes Compelling Case that Trump Must Be Impeached

Back when Emmet Flood got Jeff Sessions replaced with big dick toilet salesman Matt Whitaker, I asked why the normally superb White House Counsel had done something that posed such a likelihood of causing chaos.

Maybe it’s just the Trump effect, in which normally competent people become bumblers in Trump’s aura, or maybe it’s just the unique difficulties of trying to defend the guy, but I think Flood has fucked up again. 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.

Even if Barr hadn’t indicted the President on page one of his memo, on page three he completely invalidates the rest of his argument when he argues he would be wrong if Trump actually had engaged in “illegal collusion.”

[E]ven if one were to indulge [what Barr invents as] Mueller’s obstruction theory, in the particular circumstances here, the President’s motive in removing Comey and commenting on Flynn could not have been “corrupt” unless the President and his campaign were actually guilty of illegal collusion.

Much later he says that obstruction becomes ripe after the underlying conspiracy (which he again calls collusion) has been established.

[T]he predicate for finding any corruption would be first finding that the President had engaged in the wrongdoing he was allegedly trying to cover up. Under the particular circumstances here, the issue of obstruction becomes ripe after the alleged collusion by the President or his campaign is established first.

By June 2018, by the time Barr wrote this, I’m fairly certain Mueller had the goods on an illegal conspiracy between Trump and the Russians, even if all the witnesses to it had not yet signed up as cooperating witnesses against the President. So again, because he writes about something he doesn’t understand, he has accidentally made the case that the President has broken the law and should be investigated for doing so.

And I’m not the only one who seems to think that. After giving the WSJ an anodyne quote on all this last night, Rod Rosenstein gave a far more interesting statement today, saying, “Our decisions are informed by our knowledge of the actual facts of the case, which Mr. Barr didn’t have.” The only way Mueller’s known obstruction inquiry could be consistent with Rosenstein’s comment is if my two observations are correct: that Mueller had reason to pursue Trump for obstruction, and that he has evidence that Trump’s campaign entered into an illegal conspiracy.

Which is a bummer for the President because, over and over, Barr points to the role of impeachment in a case where the President abuses his plenary prosecutorial powers like Trump has. Most notably, he tries to distinguish the Nixon and Clinton impeachments (the latter, bizarrely, given that it doesn’t remotely fit his standards for acceptable investigations of the President) from Trump’s behavior by arguing that, “the acts of obstruction alleged against Presidents Nixon and Clinton in their respective impeachments were all such ‘bad acts’ involving the impairment of evidence.” While the evidence suggests Trump is also exposed in the conspiracy case, Barr argues here that just Trump’s acts of obstruction are sufficient to impeach him.

And here’s why I blame this all on Emmet Flood. As the updated WSJ story now makes clear, Barr sent a copy to Emmet Flood.

But people familiar with the matter said Mr. Barr did send a copy to Emmet Flood, the White House lawyer handling the Mueller probe.

If Flood read this memo (at a time, mind you, when Barr was under consideration to serve on Trump’s defense team), then it is malpractice to then appoint Barr, knowing the memo would come out.

Then there’s the fact that the memo got reported and released now. Apparently, while Trump has not yet officially appointed Barr (he may be trying to play games with Matt Whitaker’s status as Acting Attorney General), the White House has started to share background information, which may be how this memo got liberated. While White House Counsel Pat Cipollone presumably has resumed control over nominations process, but since Flood was involved in finding a new AG (and since so much of the AG hiring seems to be focused on getting Trump out of his legal problems with Mueller), Flood was likely in the loop on that decision.

Whatever the case, the fact that Barr wrote all this down and then it got liberated will make it a lot harder for Barr to invent some other reason to do what he helped Poppy Bush do, pardon his way out of a serious legal problem with Iran-Contra.

Indeed, the hullabaloo around this memo now — and Democrats’ opportunity to get Barr to confirm that if there is evidence that Trump told Flynn what lies to tell about the Russian sanctions conversation (more evidence is likely to be public by that point) — then an obstruction investigation would be valid and impeachment would be the logical recourse. That may make Barr problematic for Trump. If Dems on Senate Judiciary Committee are worth their salt (and several of them are more than up to this task), they will be able to talk the incoming Attorney General into backing the logic of the Mueller probe and impeachment in a very public way.

Trump might try to prevent that by failing to nominate Barr, but if he did, it’d make it more clear that his sole criterion for an Attorney General at this point is someone who’ll help him out of his legal woes.

That may be why Matt Whitaker has finally taken the Hail Mary step of — six weeks into his tenure as “Acting” Attorney General — decide to forgo the ethical review for recusal on the Mueller probe that DOJ’s ethical advisor told him would result in a recommendation that he recuse.

Update: This post has been updated to reflect WSJ’s clarification that Emmet Flood did receive the memo. Earlier, WSJ subsequently quietly added a sentence (which it has subsequently removed, though it a google search on the sentence still brings up the article) noting that Barr had shared his treatise with “the top lawyer representing the White House in the Mueller probe,” which in context would seem to mean Emmet Flood.

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

Why It Mattered (and Still Matters) that Flynn Continued to Hide His True Relationship with Turkey

The guy who managed the first steps of the process that led to Trump announcing a withdrawal of troops from Syria yesterday was hiding secret ties to both Russia and Turkey when that process started. That’s one of the reasons why it matters that Mike Flynn lied about his relationship with Turkey for so long. It means that both Russia and Turkey have always known Flynn and Trump were vulnerable because they were hiding lies about their ties with those countries.

In this post, I noted that while the work Flynn did as an unregistered foreign agent for Turkey reportedly ended not long after election day (though WSJ reported that he and his spawn met with representatives of Turkey in mid-December to speak further about Fethullah Gulen), that relationship with Turkey would remain unregistered — that is, Flynn would continue to lie about the true nature of it — all the way through his guilty plea on December 1, 2017. For some reason, virtually everyone reporting on Flynn is getting this wrong, claiming that his March 7, 2017 registration — the one he has pled guilty to lying on — constitutes full disclosure about his ties to Turkey. It did not, because it hid that he was working, knowingly, for Turkey.

That’s important because, as I described in a post on what the redactions in the published version of the 302 (“302” is what the FBI calls their interview reports) memorializing Flynn’s January 24, 2017 interview with the FBI hide, he explained away the conversations by claiming that he and Sergei Kislyak discussed the Trump Administration’s plans on working with Russia and Turkey.

The redactions in Flynn’s 302 included two passages on Flynn’s December 29, 2016 phone calls with Ambassador Kislyak. In the first, Flynn offered up that he and Kislyak had discussed two things: a phone call with Vladimir Putin that would take place on January 28, and whether the US would send an observer to Syrian peace talks Turkey and Russia were holding in Kazakhstan the next month.

Later in Flynn’s FBI interview, as Agents were quoting bits of the transcript back to Flynn, he again denied he and Kislyak had discussed expulsions of Russia’s diplomats. He appears to have, again, claimed they talked about sending representatives to Astana.

For some reason, the government considers the specific description Flynn used with the FBI to remain too sensitive to publicly release, either because they don’t want co-conspirators to know precisely what Flynn said, and/or they don’t want the Russians and Turks to know.

The claim that those Kislyak phone calls discussed a later call with Putin and the Astana conference is the same one the Transition would offer to the WaPo the day after David Ignatius made clear that the FBI had recordings of the call. Mueller’s reply to Flynn’s sentencing memo describes that Flynn asked a subordinate to feed this information to the WaPo.

The defendant asked a subordinate member of the Presidential Transition Team to contact the Post on the morning of January 13 and convey false information about the defendant’s communications with the Russian ambassador. The “UPDATE” included at the end of the Post story later reported that two members of the Presidential Transition Team stated that the defendant “didn’t cover” sanctions in his conversation with the Russian ambassador.

As Mueller laid out, after Flynn told this cover story about his calls publicly, he continued to double down on it, such that by the time the FBI came to his office on January 24, he had to stick to that story.

Over the next two weeks, the defendant repeated the same false statements to multiple members of the Presidential Transition Team, including Vice President-Elect Michael Pence, incoming White House Chief of Staff Reince Priebus, and incoming White House Press Secretary Sean Spicer. Those officials then repeated the defendant’s false statements on national television. See, e.g., Face the Nation transcript January 15, 2017: Pence, Manchin, Gingrich, CBS NEWS (Jan. 15, 2017) (Vice President Pence recounting that defendant told him he did not discuss sanctions with the Russian ambassador); Meet The Press 01/15/17, NBC NEWS (Jan. 15, 2017) (Priebus recounting that he had talked to the defendant and “[t]he subject matter of Case 1:17-cr-00232-EGS Document 56 Filed 12/14/18 Page 2 of 7 -3- sanctions or the actions taken by the Obama [sic] did not come up in the conversation [with the Russian ambassador.]”); White House Briefing by Sean Spicer – Full Transcript, Jan. 23, 2017, CBS NEWS (Jan. 24, 2017) (Spicer recounting that he had spoken with the defendant the day before, who again stated that he (the defendant) had not spoken to the Russian ambassador about the sanctions). Thus, by the time of the FBI interview, the defendant was committed to his false story.

Flynn’s lies to cover the discussion about sanctions and expulsions were not entirely invented; he’s a better liar than that. The Transition really was struggling over its decision of whether to join in a Syrian peace plan that would follow Russia (and Turkey’s lead) rather than the path the Obama Administration had pursued in the previous year. As he noted to the FBI, the Trump Administration had only decided not to send a senior delegation to Astana earlier that week. It was announced on January 21.

These lies compromised Flynn in two ways. As Sally Yates noted when she described the problem with Flynn’s lies to Don McGahn two days after his interview, because Flynn was saying something publicly that Russia knew to be false, Russia could hold that over him (and the Administration).

But by staking his lies on the Astana conference — and the Trump Administration’s willingness to join a Syrian effort that deviated from existing US policy — Flynn also raised the stakes of his past paid relationship with Turkey. It became far more damaging that Flynn had still been on the Turkish government payroll through the early transition, when Trump directed him to conduct early outreach on Syria. So even while DOJ was repeatedly telling Flynn he had to come clean on his Turkish lobbying ties, he lied about that, thereby hiding that the early days of Trump Administration outreach had been conducted by a guy still working for Turkey.

Since that time, both Flynn and Trump were stuck, because they had told lies to the US government that Russia and Turkey knew were lies.

Indeed, Trump may have started telling his own lies right away. Three days after Flynn’s FBI interview, in a conversation with Jim Comey after he had already learned of Sally Yates’ conversation with Don McGahn telling him of DOJ’s concerns about the FBI interview, Trump offered what was probably a bullshit cover story about Flynn’s communications with Russia, possibly bullshit invented to hide what Trump knew about ongoing discussions with Russia. [Here’s version of this story fed to the NYT.]

He then want on to explain that he has serious reservations about Mike Flynn’s judgment and illustrated with a story from that day in which the President apparently discovered during his toast to Teresa May that [Vladimir Putin] had called four days ago. Apparently, as the President was toasting PM May, he was explaining that she ad been the first to call him after his inauguration and Flynn interrupted to say that [Putin] had called (first, apparently). It was then that the President learned of [Putin’s] call and he confronted Flynn about it (not clear whether that was in the moment of after the lunch with PM May). Flynn said the return call was scheduled for Saturday, which prompted a heated reply from the President that six days was not an appropriate period of time to return a call from the [president] of a country like [Russia].

Since his first days as President, Trump (and Mike Flynn, until he pled guilty) has been trying to hide the true substance of the relationship he had with both Russia and Turkey.

As it happens, it appears that Turkey was the country that ultimately exploited that leverage. While Trump did little more than greet Putin at the G20 in Argentina as more details of his negotiations with Russia over a Trump Tower have become clear, he did meet with Recep Tayyip Erdogan. And he spoke with Erdogan by phone yesterday last Friday before he unexpectedly announced that American troops were withdrawing from Syria.

In the wake of yesterday’s decision, Nancy Pelosi (who as a Gang of Eight member, may know non-public information about all this) tied Trump’s announcement to the Flynn sentencing hearing and his work for Turkey; she suggested Trump had made the decision to serve his own personal or political objectives.

It is premature for the President to declare a sweeping victory against ISIS when, just a few weeks ago, our military led more than 250 coalition-conducted airstrikes against targets in Iraq and Syria. All Americans should be concerned that this hasty announcement was made on the day after sentencing in criminal proceedings began against the President’s former National Security Advisor Michael Flynn, who admitted that he was a registered foreign agent for a country with clear interests in the Syrian conflict.

[snip]

“When we take the gavel, our Democratic Majority will uphold the Congress’ constitutional oversight responsibilities to ensure that the President’s decisions advance our national security interests, not his personal or political objectives.

I don’t know whether Pelosi is correct (and I actually hope that we do get out of Syria, though perhaps congressional oversight can force Trump to do this in a way that doesn’t result in genocide for our longtime Kurdish allies).

But I know that when Trump ordered a guy who was still on Turkey’s payroll to initiate the negotiations that resulted in yesterday’s announcement, then tried to sustain lies those negotiations, he effectively ceded a lot of control over how negotiations would proceed to the countries that shared his and Flynn’s secrets.

And, of course, Trump’s Treasury Department also announced yesterday that it was reversing sanctions on Oleg Deripaska’s company (though not Deripaska himself, and restrictions on his ownership are quite significant).

Update: Corrected date of call with Erdogan. See this story for significance of that call.

Timeline

November 8, 2016: “Flynn’s” Fethullah Gulen op-ed

November 18: Elijah Cummings writes Mike Pence with concerns about conflicts in Flynn’s lobbying business

November 30: NSD contacts Flynn about registering under FARA

December 1: Flynn ends contract with Inovo

Mid-December: Reported meeting at 21 Club in NYC to discuss rendering Fethullah Gulen

December 29: Flynn discusses attending Syrian peace talks hosted by Turkey and Russia with Sergei Kislyak

January 10: Flynn asks Susan Rice to hold off on assault on Raqqa

January 11, 2017: Flynn tells DOJ he’ll “probably” be registering under FARA

January 12: David Ignatius column makes it clear FBI had intercepted Sergei Kislyak conversation discussing peace process

January 13: Based in part on White House cover story for Flynn-Kislyak call, WaPo reports discussions about participation in Astana conference

After inauguration: Flynn tells Trump Administration he will definitely register

January 21: State Department announces US Ambassador to Kazakhstan, not Flynn, will attend Russian-Turkish peace talks

January 23: Astana conference starts

January 24: Flynn interviews with FBI, and explains away the December 29 call, in part, by saying they discussed an observer to Astana

January 27: Trump tells Comey he questions Flynn’s judgment because he took six days to return a call to Vladimir Putin (he references a Putin call, the first call of congratulations from a foreign leader, but it’s not clear whether it came on January 22, 23, or 24)

January 28: Conference call with Vladimir Putin allegedly discussed on December 29

March 7: Flynn submits FARA filing that still hides true relationship with government of Turkey

December 1: Flynn pleads guilty, in part, to lying in that FARA filing

December 18, 2018: Flynn sentencing hearing

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

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