SSCI’s Timidity on Trump Tower Moscow

/36 Comments/in , /by

The SSCI Report on Russia is better, in some ways, than I expected (though weak in others).

But on a key issue — the multiple Trump Tower deals floated during the course of the election — it is inexcusably timid.

The report lays out the three offers we know from the Mueller Report:

  • A Trump Tower deal negotiated through Felix Sater, involving sanctioned banks and GRU-linked middle men and the involvement of people close to Putin
  • A deal brokered by Georgian-American Giorgi Rtskhiladze that included buy-off from the Mayor of Moscow
  • Outreach — in which Ivanka was a party — from the Director of a large energy company, Dmitry Klokov, which was tied to a meeting with Putin

Along the way, the report notes that Felix Sater (whose colorful background it lays out) was not entirely forthcoming even in his April 4, 2018 interview, long after he appears to have cleaned up some discrepancies with the Mueller team (though his later Mueller 302s have been withheld, in part for source endangerment issues, and it’s not clear the committee obtained them). Specifically, Sater was not clear who was involved in scheduling a possible trip for Cohen in December 2015, Felix Shmykov (who had ties to GRU) or Felix Dvoskin (who had ties to FSB and ran a bank operating in Crimea).

Sater told the Committee that although he never had direct communication with Kostin, Kostin was indirectly contacted about the project “through people in Moscow.”2719 Sater recalled that a contact in Moscow, whom he identified only as “Danny,” “indicated that he [Danny] spoke to people at VTB and that they would be on board.”2720 Sater also told the Committee that he used Evgeny Shmykov, the former Russian intelligence officer, as a conduit to VTB.2721

[snip]

On December 19, 2015, Sater emailed and sent a text message to Cohen requesting that Cohen call him because he had “Evgeny on the other line.”2778 Sater told the Committee in his interview prior to the release of the SCO Report that his references to Evgeny were, to his recollection, Evgeny Shmykov. According to the SCO, however, Sater’s reference to “Evgeny” on the December 19 message was a reference to Evgeny Dvoskin, who at the time was associated with a Russian bank operating in Crimea.2779 Through counsel, Sater later represented to the Committee that he may have used both Shmykov and Dvoskin at varying times.2780 As a result, while·this particular outreach appears to involve Dvoskin, the identity behind Sater’s other references to “Evgeny” remains unclear.

(U) Dvoskin is strongly connected to Russian organized crime and the Russian intelligence services, particularly the FSB.2781

There’s no unredacted discussion of whether Cohen was asked about the wisdom of pitching real estate deals with people involved in Russian intelligence. He was, however, asked about the wisdom of pitching real estate deals with sanctioned banks.

He didn’t much care.

As noted infra, both VTB Bank and GenBank were sanctioned by the U.S. Government under its Ukraine-related sanctions program targeting Russian government-connected entities. Cohen was unaware of these sanctions targeting either bank, and stated that, in addition, it “didn’t matter to me” whether the banks were sanctioned. Cohen explained that he believed the Russian developer, not the Trump Organization, would be responsible for financing the deal, and thus Cohen did not think that any sanctions “would have been a problem.”

And while the report twice laid out that the committee did not receive key emails showing high level Russian involvement in the deal, it didn’t chase down Cohen’s claim that Trump Organization managed that document request, not even when the report elsewhere admits that other documents were withheld from Trump Organization.

(U) On other matters, multiple emails between Michael Cohen and Russian government officials-which were responsive to the Committee’s document request-were never produced to the Committee. The withheld emails included outreach to the Kremlin’s press office seeking to speak with Putin’s chief of staff, Sergei Ivanov, as well as a response from Dmitri Peskov’ s assistant seeking to discuss the Trump Moscow project. During Cohen’s initial interview, , Cohen’s then-counsel Stephen Ryan told the Committee that Cohen was not involved in the production of documents to the Committee.3009 Ryan stated that Cohen’s emails from his Trump Organization account were produced to Cohen and his counsel by the Trump Organization “off the Trump [Organization] server.”3010 During that same interview, Cohen made false statements to the Committee about these communications with Russian government officials.3011 Cohen also transmitted his false statements about his outreach to the Kremlin on the project to the press and to the public generally; giving the false impression that Cohen had not communicated in a substantive way with the Russian government regarding the project.3012

(U) Cohen eventually pleaded guilty to making intentionally false statements to this Committee and to the HPSCI related to the Trump Tower project.3013 Cohen eventually admitted to receiving an email response from a Russian government employee; ultimately, he admitted contacting her and conducting a substantive conversation about the Trump Moscow project in January 2016.3014 Cohen told the Committee that the email response, which he never produced to the Committee, was never provided to him by the Trump Organization, another member of the alleged JDA.3015 The Committee was unable to determine the accuracy of this claim. However, if true, this lends support to the conclusion that Cohen’s initial false statements to the Committee were aided by other members of the alleged IDA, namely the Trump Organization.

The report also doesn’t address (as it does in the WikiLeaks section) Trump’s demonstrable lies about Trump Tower, even though those lies are even more clear cut than his lies on WikiLeaks. After Trump claimed to have no recollection of any of this, he went out to the press and said stuff that made it clear he had very clear recollections about the real estate deals he was negotiating while running for President.

In addition to the three well known deals, the SSCI Report describes a fourth, one pitched by Boris Epshteyn to Eric Trump.

Virtually the entire description of this deal is redacted in the report, suggesting either that it’s something Trump has ongoing interest in covering up or it’s something that the Intelligence Community believes has sensitive counterintelligence import.

In addition to the Epshteyn to Eric Trump channel, however, three details are not redacted:

Like the Rtskhiladze pitch, this one included involvement from the Moscow city government.

In the spring of 2016, Epshteyn received the proposal from contacts he had in the Moscow city government, and shared it with Eric Trump, with whom Epshteyn had long been friends.

[snip]

In early 2016, these same individuals affiliated with the Moscow city government reengaged Epshteyn about a potential Trump deal in Russia, ultimately sending him blueprints for a hotel.2998 According to the email chain produced by Epshteyn, the blueprints originated with a secretary for Cheremin in April 2016. Cheremin’s secretary forwarded the plans to an email address that included the name Shutenko, likely affiliated with Oleg Shutenko, Cheremin’s deputy in the Moscow city government.2999

According to a heavily redacted bullet, it appears to involve two people thrown out of the US in 2018 as part of sanctions imposed after the Skripal assassinations, which may suggest they were believed to be spies.

Finally, the deal had some tie to Rossotrudnichestvo, an NGO implicated in the false claims about a Michael Cohen meeting in Prague.

The Rossotrudnichestvo reference came in the last and most inflammatory dossier report:

[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 interlocutores 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.

This doesn’t mean the Cohen reference is true!! But it is another tidbit that suggests that, to the extent the dossier was filled with disinformation, it served to muddle actual events that happened.

According to the SSCI Report, Eric Trump wasn’t all that enticed by this offer (which appears to have had none of the improbable grandeur of the Sater deal).

Except they didn’t bother to get him on the record saying that personally. It relied exclusively on Epshteyn’s representation of the deal.

(U) Epshteyn recalled sharing these blueprints with Eric Trump and discussing the offer with him. 3000 According to Epshteyn, Eric Trump said that he would “take a look” and that the opportunity “[c]ould be interesting,” but that his overall reaction was “extremely tepid.”3001 Epshteyn claimed that nothing ever came of the offer.3002

(U) The Committee did not seek to interview Eric Trump. The Committee does not have further information related to what action, if any, was taken by the Trump Organization on the proposal.

And it did so even though it had evidence that Trump Organization was part of an organized effort to lie to the committee about a different Russian real estate deal, in part by withholding responsive documents.

So it’s not, just, that SSCI declined to explain why it was so problematic from a counterintelligence standpoint that a Presidential candidate kept entertaining the kind of real estate deal in Russia he had been chasing for over a decade during the election, and at least two of those deals involved Russian intelligence operatives.

It’s that for one of the deals — a deal that, if the redactions are any indication, poses significant counterintelligence concern — SSCI just didn’t bother checking.

Ron Wyden has complained that the committee refused to follow the money of any of this. And with this fourth Trump Tower deal, they weren’t even willing to demand they got the paper trail.

SSCI Confirms that Mueller Considered CFAA Charges for Don Jr.

/28 Comments/in , , /by

One of the most useful things about the SSCI Report is how much content from the interviews and redacted portions of the Mueller Report it made public.

I’ll have several follow-ups talking about what it shows (beyond that DOJ is badly abusing the FOIA process to suppress damaging information) and what the difference choices about story-lines say about the investigation into Trump.

But for now, this disclosure is predictable, but important. Mueller considered CFAA charges for Don Jr’s use of a password obtained from WikiLeaks to access a non-public website.

WikiLeaks contacted the Trump Campaign directly, through Donald Trump Jr., on sev:eral occasions. On September 21, WikiLeaks used a direct message on Twitter to reach out to Trump Jr. for a comment about a website, “putintrump.org,” and provided Trump Jr. a password to access the website before it launched.1725 Trump Jr. responded, “Off the record I don’t know who that is, but I’ll ask around.”1726 He then forwarded the message to senior Campaign officials in an email, and asked for their thoughts, indicating that he had visited the website:

Guys I got a weird Twitter DM.from wikileaks. See below. I tried the password and it works and the about section they reference contains the next pie in terms of who is behind it. Not sure if this is anything but it seems like it’s really wikileaks asking me as /follow them and itis a DM Do you know the people mentioned and what the conspiracy they are looking for could be? These are just screen shots but it’s a fully built out page claiming to be a PAC let me know your thoughts and if we want to look into it. 1727

Trump Jr. expressed concern about the webpage, though not about WikiLeaks itself: “The way they asked the question it almost seemed like there was some connection we should be aware of though. Do any of the political people recognize the names there?”1728 Some members of the Campaign responded to Trump Jr., but he did not communicate further with Wik1Leaks on the topic. 1729

(U) Email, Trump Jr. to Conway, Bannon, Kushner, Bossie, and Parscale, September 21, 2016 (DJTFP00023909-23911) (attaching screenshots of Twitter direct message from WikiLeaks). The email garnered some responses. Brad Parscale suggested setting up a competing website so that “searches come to us.” Email, Parscale to Trump Jr. et al., September 21, 2016 (DJTFP00023912). Jared Kushner forwarded the email to Hope Hicks without comment. Email, Kushner to Hicks, September 21, 2016 (DJTFP00023916-23918). The SCO declined to charge Trump Jr. for violating the Computer Fraud and Abuse Act based on his unauthorized use of the password to access the website. See SCO Report, Vol. I, p. 179.

Let me be clear: It would have been a gross abuse of the CFAA to charge this, the kind of thing DOJ has tried in rare instances, to be rightly rebuked in legal commentary. Mueller made the right decision not to charge this.

But, as SSCI’s success at releasing this information makes clear, there’s no reason to redact this information (or other information discussing the various criminal theories used with the failson). Don Jr is not — as Billy Barr claimed when he described his privacy redactions — in any way a tangential third party to his father’s campaign. And the underlying conduct here has long been public. There’s no reason to hide the discussion of why Mueller (correctly) decided not to charge this conduct.

Trump Tried to Claim Privilege Over a Document Flynn Claimed to Not Remember

/23 Comments/in , /by

I’m beginning to read the SSCI Russia Report. I’m sure I’ll have a running slew of posts as I go.

SSCI was quite peeved about Trump’s expansive claims of Executive Privilege, extending even to its Transition members (SSCI noted that Obama officials were all willing to share details of communications directly with Obama).

One example of a crazy-ass privilege claim came pertained to Mike Flynn’s aide during the Transition, Sarah Flaherty. The White House claimed privilege over a document and provided this description of the document to the committee, which omitted even that it pertained to Russia.

One of these documents was described to Committee counsel as an undated eight-paragraph memorandum with a sticky note dated January 9, 2017, from Flynn to McFarland stating: “re: [a foreign nation] for your consideration.” The paragraphs were further summarized as follows:

(U) 1: Discussion identifying foreign government internal personnel movements.

(U) 2: Recitation of the author’s assessment of the foreign government’s view of areas ,of long-term strategic concern shared with the U.S.

(U) 3: ·Assessment of the foreign government’s view concerning the effect ofpost-1992 U.S. policies for both countries.

(U) 4: Discussion of the author’s view of challenges facing the President (broad), especially in the national security area:

(U) 5: List of issues for the U.S. involving the foreign government and the author’s observation regarding the degree of connection or non-conriection to the foreign government:

(U) 6: Expresses a need for a plan to make progress on strategic matters, not specifically tied to the foreign government.

(U) 7: Author’s assessment that the foreign-government and the people of the foreign nation have substantial goodwill towards the President-elect.

(U) 8: Suggestion/proposal for possibilities of engagement with the foreign government. 32

Don McGahn claimed it was privileged because it had been prepared for a top official and concerned foreign policy.

But SSCI figured out what the document was. It was a memo provided by Robert Foresman, who adapted it from one an oligarch’s associate did.

Based on the description, the Committee identified the memorandum as- a document already in its possession, produced by Robert Foresman-who· was not a member of the Campaign nor the Transition Team-and written to Flynn.34 The Committee also knew from its investigation that Foresman had adapted a substantial part of the memorandum from another document shared by Allen Vine, who is an associate of the Putin-linked Russian oligarch Suleiman Keriniov.35 The Committee’s position was that the document could not be privileged: it was not drafted by a member of the Transition Team and had, in part, originated with a close associate of a Kremlin insider. Committee counsel informed the WHCO of the general contours of these facts (though not specific names or the details of how it had acquired the information). WHCO subsequently dropped its claim of potential executive privilege and produced the document to the Committee.

What makes this expansive claim of privilege all the nuttier is when Mueller asked Flynn about the two meetings he had with Foresman, in what was the last known question Mueller (as opposed to EDVA) asked of him, Flynn claimed he didn’t remember either one.

It’s really not clear Flynn ever really cooperated with Mueller. Which is, I guess, why Billy Barr is going to such lengths to ensure he’ll be rewarded for not doing so.

“These Actions Have Targeted Not Only against Russia, But Also Against the President Elect”

/19 Comments/in , , , /by

Given the news that Donald Trump is considering pardoning Edward Snowden, there has been a lot of discussion about why Trump would do this.

It’s actually not a deviation from past actions. Just seven days after the election, Trump’s rat-fucker started working on a pardon for Julian Assange, something that Trump offered a very circumscribed answer to Mueller about. He continued to entertain such proposals, and even ordered then CIA Director Mike Pompeo to consider a theory purporting to undermine the Russian attribution of the hack, one understood to be tied to an Assange pardon.

And on March 15, 2017, Trump shared information with Tucker Carlson that would have tipped off Joshua Schulte that the FBI considered him the culprit behind the Vault 7 leaks. While Trump shared that information hours before the FBI searched Schulte’s residence and seized his passports (including a diplomatic passport he never returned to CIA), there’s no evidence that information was made public before the FBI confronted Schulte that night. Had it, though, Trump’s comments might have led Schulte to accelerate a trip to Mexico he already had scheduled. John Solomon would even go on to blame Jim Comey for not pardoning Assange in advance of the Vault 7 releases.

So Trump has repeatedly undermined the prosecution of people who released large amounts of intelligence community secrets. Snowden would just be part of a pattern.

There’s some complaint that Trump opponents — including Adam Schiff — have suggested Trump would do this (dramatically altering his prior stance) because of Putin.

In fact, Russia has deliberately encouraged Trump to believe Russia and Trump were on the same side, opposed to the US intelligence community, since weeks before he was even inaugurated.

When, on December 31, 2016, Sergey Kislyak called Mike Flynn to tell him that his intervention to undermine sanctions on Russia for interfering in the 2016 election had succeeded in persuading Putin to take no action, Kislyak told Flynn that Russia considered the sanctions — for a hostile attack on this country!!! — to be an attack targeting not just Russia, but Trump himself.

KISLYAK: Uh, you know I have a small message to pass to you from Moscow and uh, probably you have heard about the decision taken by Moscow about action and counter-action.

FLYNN: yeah, yeah well I appreciate it, you know, on our phone call the other day, you know, I, I, appreciate the steps that uh your president has taken. I think that it is was wise.

KISLYAK: I, I just wanted to tell you that our conversation was also taken into account in Moscow and …

FLYNN: Good

KISLYAK: Your proposal that we need to act with cold heads~ uh, is exactly what is uh, invested in the decision.

FLYNN: Good

KISLYAK: And I just wanted to tell you that we found that these actions have targeted not only against Russia, but also against the president elect.

FLYNN: yeah, yeah.

“Yeah, yeah,” Trump’s weak-kneed National Security Advisor with 30 years intelligence experience said in reply.

We don’t need to speculate about whether Russia has encouraged Trump to view Russia as an ally against a hostile American Intelligence Community. We have proof. And even Mike Flynn, with a victim complex only a fraction as Yuge as Trump’s own, simply nodded along.

I mean, if Trump does pardon Snowden, by all means he should accept it — it likely would save his life.

But if you believe Trump is considering this out of any belief in whistleblowing or transparency — or even opposition to the surveillance that has ratcheted up and gotten less accountable under his Administration — you’re simply deceiving yourself.

And, yes, there is concrete evidence that Russia has cultivated Trump’s antagonism against the IC — well before Trump’s own actions led the FBI investigate him personally — so much that he might pardon Snowden to harm them.

Billy Barr’s DOJ Throws the Book at Someone Not Named Mike Flynn for Reneging on a Plea Agreement

/10 Comments/in , , /by

Last week, the government moved to vacate the guilty plea of Minh Quang Pham because, in violation of his plea agreement, Pham tried to get one of the counts against him thrown out based on an intervening Supreme Court precedent. On top of a new development in a controversial counterterrorism case (one that, because Pham’s admitted actions for AQAP were primarily contributing his graphic design skills, could have interesting implications for Julian Assange’s extradition), the development is an example of what Bill Barr’s DOJ does when defendants not named Mike Flynn renege on the terms of their plea agreement.

Pham is a Vietnamese-Brit who, for a brief period, helped Samir Khan produce Inspire Magazine. Theresa May, while Home Secretary, tried to strip him of his British citizenship, presumably so he could be expelled and drone killed like some other immigrants to the UK with ties to terrorism. When it became clear that effort might fail, the US indicted Pham on Material Support, obtaining military training from a terrorist organization, and possessing a weapon.

There have always been some unexplained aspects of Pham’s story. He claims that he willingly left AQAP, returned to the UK with help from the government, where he lived peaceably until he was arrested. Nevertheless, in four FBI interviews he had while in custody but not recorded (the FBI claimed that because he was still in transit, he was not covered by an FBI rule requiring custodial interviews be recorded), he admitted to getting a bomb-making lesson from Anwar al-Awlaki. He later contested those interviews, but the government used testimony from Ahmed Warsame (another AQAP affiliate was also interrogated in custody while “in transit”) against him. In 2016, Pham pled guilty to three of the charges against him: conspiring to provide material support, conspiring to receive military training, and possessing a weapon. He was sentenced to forty years in prison, of which 30 were tied to the weapons charge, and sent to Florence SuperMax.

Last year in US v Davis, the Supreme Court held that the law used to impose the possessing a weapons charge and with it the long prison sentence against Pham was constitutionally vague.

Over the course of months, Pham worked to get representation to have his case reconsidered under US v Davis, an effort that was badly delayed both by his incarceration in SuperMax and COVID.

Which, after some negotiations between Pham and the government, led to last week’s action. Because US v Davis means Pham’s conviction for the weapons charge must be dismissed, the government argues they are entitled to throw out Pham’s plea deal, and move towards a trial, including new charges.

As set forth in more detail below, the Government respectfully submits that the Court should reinstate the charges contained in the Indictment. The Government dismissed those charges at sentencing pursuant to the Plea Agreement, and only as consideration for the defendant’s guilty plea to the subset of offenses set forth in the Plea Agreement. Neither the terms of the Plea Agreement nor controlling law in this Circuit prevent the Government from reinstating the previous charges against Pham under these circumstances. To the contrary, the defendant’s Plea Agreement expressly preserved the Government’s right to do so should the defendant’s “convictions” be “vacated for any reason.” (Ex. A. at 8). Accordingly, the Government seeks to vacate Pham’s convictions, reinstate the charges in the Indictment, and proceed to trial.

[snip]

Although it is axiomatic that “when a defendant breaches his plea agreement, the Government has the option to . . . treat it as unenforceable,” United States v. Cimino, 381 F.3d 124, 128 (2d Cir. 2004), the Court need not decide whether Pham’s filing of a Section 2255 motion constituted a breach of the plea agreement to grant the Government’s motion. “Whether [Pham] breached his contract or acted properly in negating it is largely irrelevant to this issue. Despite the change in law, [Pham] remained free to comply with the plea bargain. By taking advantage of the opportunity to vacate his conviction under [Davis], [Pham] chose to void his agreement with the government. That choice relieved the government from its contractual obligations, and explains why double jeopardy does not apply.” Podde, 105 F.3d at 821 n.6 (internal citations omitted).

In addition to moving to try Pham on the five existing charges (presumably, on the four that remain after Davis), the government plans to charge Pham with an attempted terrorist attack, in part to make sure they can charge Pham with something if the existing plea deal is upheld.

Separate from the application for reinstatement of charges, the Government respectfully informs the Court and defense counsel that the Government intends to file additional charges against Pham based on additional evidence secured following his conviction and sentencing.

The evidence at issue includes (1) video recordings showing the defendant constructing and detonating a test explosive device virtually identical to the one Pham told law enforcement was to be used in his planned suicide attack on Americans and Israelis at Heathrow International Airport; (2) video recordings of Pham associating with high-ranking members of AQAP; (3) a video recording of Pham describing his goal of waging jihad and his desire to martyr himself; and (4) a document containing instructions for executing the attack upon Pham’s return to London. The Government reviewed this evidence with defense counsel during a meeting on December 5, 2019, and produced a copy of the evidence to the defense on or about March 24, 2020.

Based on this evidence, the Government expects to seek additional charges related to the defendant’s attempted attack at Heathrow, including a violation of Section 924(c) predicated on the use and possession of a destructive device in furtherance of one or more additional crimes of violence committed in connection with the plot. This conduct, and the anticipated charges based upon it (which are subject both to approval by other components of the Department of Justice and presentation to the grand jury), are not covered by the provisions of the Plea Agreement defining the conduct for which “the defendant will not be further prosecuted criminally by this Office.” (Ex. A at 2). Accordingly, while the Government will not proceed with a superseding Indictment until after the Court rules on the reinstatement of the original charges of the Indictment, the Government expects to seek those additional charges whether or not it is also able to proceed on the previously dismissed counts.

Now, I’m not suggesting, at all, that there’s an equivalence in the actions of Pham and Mike Flynn. Even assuming some of Pham’s complaints about his interrogation and the disproportionate responsibility the government attributed to him over Warsame are true, he still admits he sought to participate in a terrorist organization.

But where a comparison is apt is the plea agreement. Like Pham, the government included language in Flynn’s plea agreement that if his conviction were vacated for any reason, he can be charged for the uncharged conduct tied to his plea agreement — which in Flynn’s case are the Foreign Agent charges that carry a possible sentence of 15 years. Flynn is arguing that he has not yet been convicted, though that’s currently among the many issues under dispute.

And the comparison is apt because (the government has argued, though Flynn disagrees) Flynn reneged on the cooperation included in his plea agreement.

For other people, Bill Barr’s DOJ has thrown the book when a defendant has reneged on his plea deal. In Flynn’s case, however, Barr’s DOJ is doing back flips to try to blow up the existing conviction.

Pham’s case will be quite interesting in any case, if it goes to trial (and the government has effectively already told him they intend to keep him in prison for life anyway, so he has no incentive not to contest this aggressively). But it’s also a worthy lesson in what normally happens when a defendant blows up a plea deal like Mike Flynn has.

Page’s Intelligence Officers, Plural, Versus His Serial Willingness to Be Recruited

/46 Comments/in , /by

One last post on the John Durham Criminal Information charging Kevin Clinesmith with one count of false statements (for making and using a false document). It appears that John Durham, DOJ IG, and CIA are placing a different emphasis on Carter Page’s ties with the CIA than the FBI did, based on a differential focus on a number of contacts Page had versus Page’s willingness to be recruited.

The FISA applications for Carter Page refer to three different interactions with Russians to establish probable cause that Page was willing to be recruited by Russian intelligence officers:

  • A year long relationship with Aleksandr Bulatov (2007 to 2008), during which Bulatov used Page to network and in at least one case obtain non-public information
  • A longer relationship with Victor Podobnyy (lasting at least from January 2013 to April 2014), during which Page again provided information and networking leads
  • A 2015 exchange, after the complaint against Podobnyy was unsealed, during which Page told a Russian Minister he was the person referenced in the complaint, seeming to confirm that Page knew he was being recruited

On quick read, the DOJ IG Report and the Criminal Information seem to suggest that on August 17, 2016, CIA informed FBI that they knew of both these relationships with Page and were collecting information through him. That’s because DOJ IG Report and the Information say that the CIA informed FBI that Page had shared information about “certain Russian intelligence officers.”

Here’s how it appears in the Information.

On August 17, 2016, prior to the approval of FISA #1, the OGA provided certain members of the Crossfire Hurricane team a memorandum (“August 17 Memorandum”) indicating that Individual #1 had been approved as an “operational contact” for the OGA from 2008 to 2013 and detailing information that Individual #1 had provided to the OGA concerning Individual #1’s prior contacts with certain Russian intelligence officers. [my emphasis]

That’s nearly a direct quotation from the DOJ IG Report.

On or about August 17, 2016, the Crossfire Hurricane team received a memorandum from the other U.S. government agency detailing its prior relationship with Carter Page, including that Page had been approved as an operational contact for the other agency from 2008 to 2013 and information that Page had provided to the other agency concerning Page’s prior contacts with certain Russian intelligence officers.

In other words, a quick read of both would suggest that those plural Russian intelligence officers are Bulatov and Podobnyy.

Except that’s not right. Indeed, logically that means Page was providing information on more known or suspected Russian intelligence officers in the years immediately after he returned from Moscow. It’s also the case that Page has provided at least three different stories about Bulatov, and that he does not appear to have (indeed, arguably could not have) told CIA about Podobnyy.

Partly in an interest in challenging some of the misinformation on this point, I’ve put a timeline of Page’s known interactions with CIA, FBI, and Russian intelligence officers below. That shows, first of all, that while the CIA continued to treat Page as an approved “operational contact” until 2013, the last time CIA spoke to him was in July 2011.

That means Page couldn’t have told them about Podobnyy, because he didn’t meed Podobnyy until 2013.

Indeed, the DOJ IG twice says, subtly, that the CIA did not provide any evidence that they knew about Page’s tie with Podobnyy.

The other agency did not provide the FBI with information indicating it had knowledge of Page’s reported contacts with another particular intelligence officer. The FBI also relied on Page’s contacts with this intelligence officer in the FISA application.

[snip]

As further described in Chapter Five, the other agency’s memorandum did not provide the FBI with information indicating it had knowledge of Page’s reported contacts with another particular intelligence officer. The FBI also relied on Page’s contacts with this intelligence officer in the FISA application.

But that means there must be other suspected Russian spooks about whom Page provided information in that earlier period. Indeed, in one place the DOJ IG Report appears to confirm that, too.

Page had disclosed to the other agency contacts that he had with Intelligence Officer 1 and certain other individuals,

There’s a reference in one of Page’s FBI interviews to his NYU students, whom he likened to Podobnyy, so perhaps that’s related.

In any case, as I noted, Page told at least three different stories about Bulatov, the person about whom he shared information with both FBI and CIA. According to the DOJ IG Report, CIA only knew (so presumably got told) that his ties extended back only to 2008. The FBI maintains, however, that his relationship with Bulatov extends back to 2007. In a March 2017 interview, in addition to obfuscating about telling the Russian Minister he was Male-1, Page claimed to not even remember Bulatov, even when pushed, claimed he had only met Bulatov for lunch once, even though in one of his earlier interviews with the FBI, he said he had contact with Bulatov after he had returned to Moscow in 2008. A few weeks later, Page still affirmed that he thought “the more immaterial non-public information I give them, the better for this country,” even while resisting when an FBI agent observed that this basically was a source-handler relationship.

I don’t necessarily think Page was lying (though on his later FISA applications, FBI pointed to this discrepancy). By March 2017, Page had been driven mostly nuts by this process. I think it possible he really misremembered his earlier, acknowledged ties by then.

Still, even on the one topic that overlapped — Bulatov — Page’s stories appear inconsistent (or at least had become inconsistent after the pressure of 2017).

Ultimately, one thing that appears to have happened is CIA, DOJ IG, and Durham have focused on Page’s sharing of information about multiple people of interest to CIA in 2010 and earlier. Meanwhile, FBI focused on Page’s seeming willingness to be cultivated by known Russian spies.

Understanding that different focus helps to understand a lot of what has gone on since.

Timeline

2004-2007: Carter Page lives in Russia. [IG Report 157]

2007: Carter Page’s ties with Aleksandr Bulatov begin. [IG Report 158]

April 2008: Carter Page first meets with CIA. CIA assesses, in contradistinction to FBI’s belief, that Page’s ties to Bulatov began in 2008. [IG Report 156]

June 2008: Bulatov returns to Moscow. [June 2017 Application 14]

August 2008: Per Carter Page interview, his last contact with Bulatov (who returned to Moscow two months earlier). [June 2017 Application 14]

June 18, 2009: FBI interviews Carter Page about contact with Bulatov. Page says he has been in contact with CIA, but FBI doesn’t ask about that. [DOJ IG 61, 158]

October 2010: Page tells CIA he met with Bulatov four times and that Bulatov asked him for information about another American. [IG Report 158]

July 2011: Final meeting between Page and CIA. [IG Report 159]

December 2012: Podobnyy arrives at UN mission. [June 2017 Application 15]

2013: Intelligence Officer 1 hands off Page to Victor Podobnyy [DOJ IG 61 In a June 2013 interview, Page told the FBI he met Podobnyy at an energy conference, and had subsequently provided Podobnyy information about the energy business. [Complaint 13]

April 8, 2013: FBI intercepts conversation between Podobnyy and Sporyshev about recruiting Page. [Complaint 12]

June 13, 2013: FBI interviews Page about Podobnyy. After FBI suggests that Podobnyy is an intelligence officer, Page says his acquaintance with Podobnyy was positive for him. Page says he hadn’t spoken with CIA in “about a year or so” (it was July 2011). CIA did not provide evidence that Page told them about Podobnyy. [Buryakov Complaint 12-13, IG Report 156, 158]

August 2013: FBI interviews Page about Podobnyy, who admits he has met with Podobnyy since their interview in June. [IG Report 62]

September 2013: Podobnyy leaves UN mission. [June 2017 Application 15]

January 23, 2015: Buryakov, Prodobnyy, and Igor Sporyshev charged. The complaint refers to an informant, CS-1, who is not Page. It also includes the transcript of an intercepted conversations about how Podobnyy tried to recruit Male-1, Page. [Complaint]

February 19, 2015: Buryakov et all indicted.

March 2, 2016: FBI interviews Page in preparation for Victor Podonyy trial and learns he informed a Russian Minister and others at the UN he was identified in the indictment in “the spirit of openness.” [IG Report 62]

March 21, 2016: Trump formally names Page a foreign policy advisor.

April 1, 2016: Counterespionage Section advises NYFO to open an investigation on Page. [IG Report 62]

April 6, 2016: NYFO opens investigation into Page (note, one reference to this says the investigation was opened on April 4). [IG Report 63]

May 16, 2016: Page requests permission from campaign to make trip to Russia

July 3 to 9, 2016: Page in Moscow

July 11 or 12, 2016: Page first meets Stefan Halper at a conference in London, though DOJ IG says that was not part of an FBI tasking. Page recruits Halper to join Trump campaign.

July 31, 2016: FBI opens Crossfire Hurricane.

Previous posts

In this post, I explained how John Durham likely gets to intent with Clinesmith even though the former FBI lawyer claims he didn’t intend to mislead about Carter Page’s ties to CIA. In this post, I explained why Durham’s description of Crossfire Hurricane as a “FARA” investigation suggests he may misunderstand very basic aspects of his investigation. And in this post, I noted that Billy Barr’s approval of the timing of this guilty plea undermines Barr and Trump’s complaints about the swifter pace of the Mueller investigation.

How Durham Gets to Intent on False Statements with Kevin Clinesmith

/64 Comments/in , /by

A lot of skeptics of the John Durham investigation have raised questions about the false statements charge against Kevin Clinesmith and intent.

Clinesmith claimed to DOJ IG that he did not intend to mislead when he altered an email saying that Carter Page was a “source” for CIA, but that he did so because he believed Page not to be a recruited asset but instead some kind of sub-source.

The OGC Attorney told us that- his belief that Page had never been a source for the other U.S. government agency, but instead interacted with a source-was based on telephone conversations with the Liaison. He said he recalled the Liaison “saying that [Page] was not a source of theirs,” but rather “incidentally reporting information via a source of theirs” and that they “ended up not actually opening him.”396

[snip]

We asked the OGC Attorney about this instant message exchange with SSA 2 in which he told SSA 2 that Carter Page was never a source. The OGC Attorney stated, “That was my, the impression that I was given, yes.” We also asked why he told SSA 2 in the instant message exchange that the other U.S. government agency “confirmed explicitly that he was never a source.” The OGC Attorney explained that his statement was just “shorthand” for the information provided by the other agency about Page and that he had no particular reason to use the word “explicitly.”

[snip]

We asked the OGC Attorney about the alteration in the email he sent to SSA 2. He initially stated that he was not certain how the alteration occurred, but subsequently acknowledged that he made the change. He also stated it was consistent with his impression of the information that he had been provided by the Liaison.

Clinesmith’s lawyer told a similar story to the NYT, so he either still believes that or has settled on that story to avoid further legal exposure.

Mr. Clinesmith’s argued that he did not change the document in an attempt to cover up the F.B.I.’s mistake. His lawyers argued that he had made the change in good faith because he did not think that Mr. Page had been an actual source for the C.I.A.

Neither Michael Horowitz nor Durham appear to believe this story. Durham quotes the CIA liaison saying that Clinesmith had no basis to formulate that belief.

The Liaison focused on the portion of the exchange in which the 0GC Attorney stated that Page “was never a source.” The Liaison told us that this statement was wrong, as was the 0GC Attorney’s statement that Page “was a U.S. sub-source of a source.” The Liaison said that such an assertion is “directly contradictory to the [documents]” the agency provided to the FBI. The Liaison also said it was inaccurate to describe Carter Page as “like a sub-source of [a digraph]” and to state that the other agency had “confirmed explicitly that [Page] was never a source.” We asked the Liaison whether the Liaison ever told the 0GC Attorney that Page was not a source. The Liaison said that, to the best of the Liaison’s recollection, the Liaison did not and would not have characterized the status of a “[digraph]” without either first reaching out to the other agency’s experts responsible for the underlying reporting, or relying on the proper supporting documentation for an answer. The Liaison stated, “I have no recollection of there being any basis for [the 0GC Attorney] to reach that conclusion, and it is directly contradicted by the documents.”

And Horowitz subtly suggested that Clinesmith formulated this belief without reading the documents that the CIA liaison had told him to refer to to understand Page’s tie with the CIA.

The Liaison responded that same day by providing the OGC Attorney with a list of documents previously provided by the other agency to the FBI mentioning Page’s name, including the August 17 Memorandum.

[snip]

We asked the OGC Attorney if he read the documents identified by the Liaison in her June 15, 2017 email. The OGC Attorney told the OIG that he “didn’t know the details of…the content of the [documents]” and did not think he was involved in reviewing them. He also said he “didn’t have access to the [documents] in the OGC space,” but that the investigative team was provided the list of documents and that they would have been reviewing them.

This is a detail that Durham repeated in the Criminal Information charging Clinesmith.

Later that same day, the OGA Liaison responded by email in which the liaison provided the defendant with a list (but not copies) of OGA documents.

Both seem to suggest that Clinesmith provided no credible explanation for how he came to conclude that Page was not a source, even if he maintains that he believed in good faith that an operational contact was not a source.

Still, the only proof of that is (at least as far as the public record goes) the CIA liaison’s imperfect memory of that conversation. He says, she says. Not a strong case that Clinesmith intentionally changed the email to mislead.

So how, a number of Durham skeptics are rightly asking, will Clinesmith allocute to guilt in changing the document, when he has consistently claimed he did not intend to mislead anyone by changing the email.

That’s not how Durham has formulated this false statements charge.

Clinesmith is not charged with lying about whether Page was a source. Rather, he’s charged under 18 USC 1001(a)(3), which reads:

(a) Except as otherwise provided in this section, whoever, in any matter within the jurisdiction of the executive, legislative, or judicial branch of the Government of the United States, knowingly and willfully—

(3) makes or uses any false writing or document knowing the same to contain any materially false, fictitious, or fraudulent statement or entry;

shall be fined under this title, imprisoned not more than 5 years or, if the offense involves international or domestic terrorism (as defined in section 2331), imprisoned not more than 8 years, or both. If the matter relates to an offense under chapter 109A, 109B, 110, or 117, or section 1591, then the term of imprisonment imposed under this section shall be not more than 8 years.

That is, he’s not charged with lying, but instead with using a false document that he knew to contain a materially false statement.

The Information explains that,

Specifically, on or about June 19, 2017, the defendant altered the OGA Liaison’s June 15, 2017 email by adding that Individual #1 “was not a source” and then forwarded the email to the SSA, when in truth, and in fact, and as the defendant well knew, the original June 15, 2017 email from the OGA Liaison did not contain the words “not a source.”

This shifts the burden on intent significantly, because while Clinesmith contends he did not intend to mislead, he doesn’t deny altering the email, for whatever purpose. SSA 2 (SSA in the Information) has already testified to the IG (and presumably said the same thing to Durham) that that altered verbiage was material to him.

We discussed the altered email with SSA 2, who told us that the OGC Attorney was the person he relied upon to resolve the issue of whether Carter Page was or had been a source for the other U.S. government agency. SSA 2 told us that the statement inserted into the Liaison’s email-that Page was “not a source”- was the most important part of the email for him. SSA 2 said “if they say [he’s] not a source, then you know we’re good.” SSA 2 also said that if the email from the Liaison had not contained the words “not a source” then, for him, the issue would have remained unresolved, and he would have had to seek further clarification. SSA 2 stated: “If you take out ‘and not a source,’ it’s not wrong, but it doesn’t really answer the question.” He also said that something lesser, such as a verbal statement from the Liaison through the OGC Attorney, would not have resolved the issue for him. SSA 2 also told us it was important to him that the OGC Attorney had first sent the Liaison’s response email to the 01 Attorney, because if they discussed the issue and they have “decided we don’t have to do a footnote that he’s not a source … we’ve resolved this. We’re good to move forward.” He also said that he “would assume that the [OI Attorney]. .. received exactly what [SSA 2] received since it was a forward.”

SSA 2 has testified, then, that Clinesmith’s alteration of the email was material to his understanding of Page’s status; anything less than those words would have led him to include a footnote in the fourth Page application.

While I know a lot of Durham skeptics (including bmaz, who’ll promptly call me and yell at me) think Durham has a problem with allocution here, I think by crafting this under 18 USC 1001(a)(3), Durham avoids those problems. It doesn’t matter why Clinesmith altered the email (whether you believe him or not — and again, I don’t think Durham does). All Clinesmith is charged with is intentionally altering the email, which he has already admitted to.

One more point about intent. The frothy right has falsely claimed Clinesmith newly implicated his colleagues in altering this email. There’s nothing new here. The DOJ IG Report stated that Clinesmith forwarded the email, unaltered, to people who weren’t the affiants on the FISA application.

That same day, the OGC Attorney forwarded the Liaison’s email response to Case Agent 6 and an FBI SSA assigned to the Special Counsel’s Office, without adding any explanation or comment. The SSA responded by telling Case Agent 6 that she would “pull these [documents] for you tomorrow and get you what you need.”

This passage doesn’t get the frothy right where they think it does, either, at least not yet. They forget, for example, that Mueller has testified that he was not involved in the FISA process. And the information about Page’s role with the CIA was important to Mueller’s team for different reasons — most notably because in June 2017, Mueller’s team would be trying to assess what to make of FBI 302s where Page is recorded as equivocating about whether he had told anyone he was Male-1 in the Victor Podobnyy indictment, which would amount to an attempt to deny that he had gone out of his way to maintain contact with Russia even after it became clear those contacts were with intelligence officers.

It’s possible Durham thinks that something these two people did led Clinesmith to start lying about what kind of source Page was. But in addition to working with them, he also immediately told his boss that Page was a subsource–the explanation he has offered since.

The Clinesmith Information Suggests that John Durham Misunderstands His Investigation

/54 Comments/in , /by

Paragraph 2 of the Kevin Clinesmith Criminal Information reads:

On July 31, 2016, the FBI opened a Foreign Agents Registration Act (“FARA”) investigation known as Crossfire Hurricane into whether individual(s) associated with Donald J. Trump for President Campaign were witting of and/or coordinating activities with the Russian government. By August 16, 2016, the FBI had opened individual cases under the Crossfire Hurricane umbrella on four United States persons including a United States person referred to herein as “Individual 1.”

That paragraph is, at a minimum, deeply dishonest.

But I believe — and four experts I asked on the topic (which does not include Andrew Weissmann, who has since tweeted about this) agree — that it may be something worse. It appears to be evidence that John Durham doesn’t understand his own investigation.

The paragraph is dishonest because it suggests that the investigation into Carter Page arose exclusively out of the Crossfire Hurricane predication. That’s false.

As the DOJ IG Report made clear, the NY Field Office opened an investigation into Page during the spring of 2016 upon discovering that, when he was identified in the indictment of one of the Russians trying to recruit him in 2013, he went to other Russians and apparently tried to reassure them that he had not told the FBI about their efforts (and when interviewed by the FBI, Page repeatedly said sharing non-public economic information with known Russian intelligence officers was a positive for him).

On March 2, 2016, the NYFO CI Agent and SDNY Assistant United States Attorneys interviewed Carter Page in preparation for the trial of one of the indicted Russian intelligence officers. During the interview, Page stated that he knew he was the person referred to as Male-1 in the indictment and further said that he had identified himself as Male-1 to a Russian Minister and various Russian officials at a United Nations event in “the spirit of openness.” The NYFO CI Agent told us she returned to her office after the interview and discussed with her supervisor opening a counterintelligence case on Page based on his statement to Russian officials that he believed he was Male-1 in the indictment and his continued contact with Russian intelligence officers.

The FBI’s NYFO CI squad supervisor (NYFO CI Supervisor) told us she believed she should have opened a counterintelligence case on Carter Page prior to March 2, 2016 based on his continued contacts with Russian intelligence officers; however, she said the squad was preparing for a big trial, and they did not focus on Page until he was interviewed again on March 2. She told us that after the March 2 interview, she called CD’s Counterespionage Section at FBI Headquarters to determine whether Page had any security clearances and to ask for guidance as to what type of investigation to open on Page. 183 On April 1, 2016, the NYFO CI Supervisor received an email from the Counterespionage Section advising her to open a [redacted] investigation on Page.

[snip]

On April 6, 2016, NYFO opened a counterintelligence [redacted] investigation on Carter Page under a code name the FBI assigned to him (NYFO investigation) based on his contacts with Russian intelligence officers and his statement to Russian officials that he was “Male-1” in the SONY indictment. Based on our review of documents in the NYFO case file, as well as our interview of the NYFO CI Agent, there was limited investigative activity in the NYFO investigation between April 6 and the Crossfire Hurricane team’s opening of its investigation of Page on August 10. The NYFO CI Agent told the OIG that the steps she took in the first few months of the case were to observe whether any other intelligence officers contacted Page and to prepare national security letters seeking Carter Page’s cell phone number(s) and residence information. The NYFO CI agent said that she did not use any CHSs to target Page during the NYFO investigation. The NYFO investigation was transferred to the Crossfire Hurricane team on August 10 and became part of the Crossfire Hurricane investigation.

Carter Page was the subject of a legitimate counterintelligence investigation months before Crossfire Hurricane got opened, based off conduct that continued three years after CIA had ended approval for Page as an operational contact, based off conduct with multiple Russians — at least one a known intelligence officer — that Page did not share with the CIA. Carter Page was the subject of a counterintelligence investigation started irrespective of all ties Page had formerly had with the CIA that is the issue at the core of the Clinesmith Information.

By pretending that every investigation into Trump’s flunkies (including the ongoing Money Laundering investigation into Paul Manafort) got opened by Crossfire Hurricane, Durham creates a narrative that is every bit as dishonest as the worst stories about Crossfire Hurricane.

Durham is doing precisely what he is tasked with investigating others for.

But Durham’s mischaracterization of the investigation as a “FARA” investigation is far more troubling. Either he doesn’t know what he’s doing — replicating an error that DOJ IG had to fix in its Carter Page investigation — or he’s deliberately misrepresenting what was a counterintelligence investigation that, at the start, envisioned the possibility that Page was unwittingly being cultivated.

And from this error, paragraph 4 of the Information creates the (again, false) impression that the suspicions that Carter Page might be a willing agent of Russia all came from the Crossfire Hurricane team.

Each of these FISA applications allege there was probable cause that Individual #1 was a knowing agent of a foreign power, specifically Russia.

Again, that’s false! Page told the FBI, repeatedly, that he thought it was a good thing to share non-public information with people he knew to be Russian intelligence officers. He told the FBI that well before Kevin Clinesmith got involved at all. He told the FBI that years after CIA no longer considered him an approved operational contact. That was the basis for investigating him, long before any of the people Durham is investigating got involved.

As I’ve noted, it took DOJ IG eleven days after publishing its report in December before it discovered that it didn’t know what FBI was investigating. After those eleven days, it issued a correction for some (but not all) of the references where it incorrectly portrayed the investigation as limited to FARA.

On page 57, we added the specific provision of the United States Code where the Foreign Agents Registration Act (FARA) is codified, and revised a footnote in order to reference prior OIG work examining the Department’s enforcement and administration of FARA.

But there remain incorrect treatments of this nuance, and the IG Report conducted a First Amendment analysis about Carter Page that should have been mooted as soon as he admitted he was sharing information — economic information with no political tie — with people he knew to be Russian intelligence officers.

Still, at least DOJ IG explained the source of confusion: for any investigation involving registering as a foreign agent, the FBI uses the same case file number.

Crossfire Hurricane was opened by CD and was assigned a case number used by the FBI for possible violations of the Foreign Agents Registration Act (FARA), 22 U.S.C. § 611, et seq., and 18 U.S.C. § 951 (Agents of Foreign Governments). 170 As described in Chapter Two, the AG Guidelines recognize that activities subject to investigation as “threats to the national security” may also involve violations or potential violations of federal criminal laws, or may serve important purposes outside the ambit of normal criminal investigation and prosecution by informing national security decisions. Given such potential overlap in subject matter, neither the AG Guidelines nor the DIOG require the FBI to differently label its activities as criminal investigations, national security investigations, or foreign intelligence collections. Rather, the AG Guidelines state that, where an authorized purpose exists, all of the FBI’s legal authorities are available for deployment in all cases to which they apply . 171

That’s why the EC opening the investigation — which has subsequently been released — calls this a “FARA” investigation; because it’s a bureaucratic detail that in no way circumscribes the scope of the investigation. But the EC opening the investigation into Flynn — and assuredly, the EC opening the investigation into Page, though no one has released that yet — specifically names 18 USC 951 as well.

[See the update below for the evolution of the case ID# 97 that was used with Crossfire Hurricane.]

From the start, this was about more than doing political work for Russians.

People who know how FBI filing systems work, or know how FARA overlaps with 951, or know what the “COUNTERINTELLIGENCE” label appearing before the designation of this as a FARA case, would understand that FARA’s not a description of the actual investigation.

Apparently, Durham and his team (which does not include any National Security Division personnel, at least on the Clinesmith Information) don’t know or don’t care about any of that. His spokesperson did not return a call asking for clarification.

The point is, these were all counterintelligence investigations. As DOJ IG explained, the FBI may believe the investigation focuses on threats to national security and/or it may believe the investigation focuses on potential crimes. As one person I spoke with characterized this error, it’s like not knowing that the wall between intelligence and criminal investigations came down after 9/11.

And yet, Durham — who in December suggested he didn’t believe this investigation that he still treats as a criminal investigation was not properly predicated as a full investigation — appears not to understand that very basic fact about this investigation.

If Durham believes, erroneously, that the FBI opening a criminal investigation into Page into something that overlaps with First Amendment protected activity, it might explain why he hasn’t just closed up shop right now. It may explain why he claimed this was not a properly predicated full investigation. It may explain why he doesn’t understand why FBI continued the investigation based on behavior entirely unrelated to the Steele dossier.

But now Durham has made an assertion that likely arises from a total misunderstanding of what he’s investigating. He has betrayed that his entire investigation appears premised on a misunderstanding.

Update: I’ve fixed a reference to “operational contact,” which I originally had as “operational conduct.”

Update: Per a recently released Mike Flynn file, we know the case ID# for Crossfire Hurricane was 97F-HQ-063661. NARA describes how that case ID # started as a way to codify the Foreign Agents Registration Act. But then in 1950 it also came to include those who had knowledge of espionage, counter-espionage, or sabotage from a foreign country. Likewise, the FBI itself makes it clear that 97 covers both FARA and 18 USC 951. Durham only had to refer to a public FOIA document to understand his error.

There’s Lots of Reason to Think Steve Bannon Lied; But He May Also Have Told the Truth, Once

/23 Comments/in , , /by

The LAT has a big scoop on some criminal referrals the Senate Intelligence Committee made on July 19, 2019. The biggest news is that SSCI referred Steve Bannon for his unconvincing story about his Russian back channel — though it’s likely that Bannon cleaned up that testimony in January 2019.

Don Jr

The LAT describes that the Committee believed that the Trump spawn lied about when they learned about the Aras Agalarov meeting.

In the two page-letter, the committee raised concerns that testimony given to it by the president’s family and advisors contradicted what Rick Gates, the former deputy campaign chairman, told the Special Counsel about when people within the Trump campaign knew about a June 9 meeting at Trump tower with a Russian lawyer.

This conflict in stories was previously known; it shows up in the Mueller Report.

It’s interesting primarily because the referral took place after Don Jr’s second SSCI interview, which was on June 12, 2019. It stands to reason that the failson’s willingness to sit for a second interview with SSCI — but not any interview with Mueller — strongly suggests that he had reason to know that Mueller had evidence that SSCI did not. If the only thing that SSCI believed Don Jr lied about was the June 9 meeting, then it suggests they did not know Mueller’s full focus.

Sam Clovis

LAT also says that SSCI believes Clovis lied about his relationship with Peter Smith, the old Republican rat-fucker who made considerable effort to find Hillary’s deleted emails.

The committee also asked the Justice Department to investigate Sam Clovis, a former co-chairman of the Trump campaign, for possibly lying about his interactions with Peter W. Smith, a Republican donor who led a secret effort to obtain former Secretary of State Hillary Clinton’s missing emails.

Clovis could not be reached.

That Clovis lied is not surprising — it’s obvious from the interview reports released thus far in the BuzzFeed FOIA that his story changed radically over the course of a few hours. Notably, however, SSCI only referred Clovis for lying about Peter Smith. It’s pretty clear that Clovis also lied, at least at first, about the campaign’s willingness to cozy up to Russia.

There are four redacted descriptions of people who lied to Mueller in the Report; one of those may explain why Clovis was not charged.

Note that Clovis’ lack of candor about other topics makes his denials that George Papadopoulos told him about the email warning equally dubious.

Erik Prince and Steve Bannon

Finally, the story says SSCI referred Erik Prince and Steve Bannon for their conflicting stories about their back channel to Kirill Dmitriev.

According to the letter, the committee believed Bannon may have lied about his interactions with Erik Prince, a private security contractor; Rick Gerson, a hedge fund manager; and Kirill Dmitriev, the head of a Russian sovereign fund.

It is well-established that Prince lied (indeed, HPSCI also referred his testimony). His lawyer made similar denials to the LAT as he has made elsewhere.

Matthew L. Schwartz, a lawyer for Prince, defended his client’s cooperation with Capitol Hill and Mueller’s office.

“There is nothing new for the Department of Justice to consider, nor is there any reason to question the Special Counsel’s decision to credit Mr. Prince and rely on him in drafting its report,” he said.

Given that DOJ turned over an email from Schwartz to Aaron Zelinsky in response to a FOIA in the Stone case, it’s clear both that Prince was being investigated for issues beyond just his lies about the Russian back channel, but also that it’s likely that Billy Barr interfered with that investigation while he was “fixing” the Mike Flynn and Roger Stone ones, as well.

That’s interesting because SSCI referred Bannon as well.

Like everyone else, it’s not news that he shaded the truth at first. Bannon was scripted by the White House to deny discussing sanctions prior to Mike Flynn’s call to Sergei Kislyak. Bannon’s efforts to shade the trute were apparent from one of his early 302s. A Stone warrant affidavit describes Bannon denying his conversations with Roger Stone about WikiLeaks before he admitted at least one.

When BANNON spoke with investigators during a voluntary proffer on February 14, 201’8, he initially denied knowing whether the October 4, 2016 email to STONE was about WikiLeaks. Upon further questioning, BANNON acknowledged that he was asking STONE about WikiLeaks, because he had heard that STONE had a channel to ASSANGE, and BANNON had been hoping for releases of damaging information that morning.

And for Bannon’s fourth known Mueller interview, he got a proffer, suggesting his testimony changed in ways that might have implicated him in a crime.

What’s most interesting, given how everyone agrees his testimony and Prince’s materially differ, is that he testified to things before the grand jury he subsequently tried to back off. More interesting still, only the relevant parts of Bannon’s grand jury testify got shared with Stone. That means other parts — presumably, given the proffer agreement, the more legally damning parts — remain secret.

SSCI believes that Bannon may have lied to the committee.

But unlike all the others listed here, there’s reason to believe Bannon may also have told the truth to the grand jury, once, possibly relating to his actions involving Erik Prince.

That all may be moot if Barr managed to squelch any Prince investigation while he was negating the Stone and Flynn prosecutions. But he can’t entirely eliminate grand jury testimony.

Bill Barr Deems 11 Months to Charge False Statements, “the Proper Pace”

/45 Comments/in , /by

Last night, in response to Sean Hannity pressuring Billy Barr to be (as Trump stated earlier), “the greatest of all time” with respect to the John Durham investigation, Barr violated DOJ guidelines to reveal there would be a development today (and further developments before the election) in the John Durham investigation.

Perhaps in an attempt to shut down Hannity’s time pressure, Barr said whatever that development was, “the proper pace, as dictated by the facts in this investigation.”

HANNITY: The president said today that he hopes that the Durham report and that you, as attorney general, won’t be politically correct.

I hope that too. Mr. Attorney General, I have spent three years unpeeling the layers of an onion, in terms of premeditated fraud on a FISA court. You have deleted subpoenaed e-mails. You have knowledge we know that they were warned in August of 2016 not to trust that dossier, which was the bulk of information for the FISA warrants.

The sub source in January 2017 confirms, none of that was true, and it was bar talk.

I guess, just as the wheels of justice turn slowly, I feel impatience over it. Can you give us any update?

BARR: Yes, Sean.

Well, first, as to the political correctness, if I was worried about being politically correct, I wouldn’t have joined this administration. As I made clear…

HANNITY: That’s actually a good line, too. OK.

BARR: Yes.

Well, as I made clear, I’m going to call them as I see them. And that’s why I came in. I thought I’m in a — I think I’m in a position to do that.

There are two different things going on, Sean. One, I have said that the American people need to know what actually happened. We need to get the story of what happened in 2016 and ’17 now out. That will be done.

The second aspect of this is, if people cross the line, if people involved in that activity violated the criminal law, they will be charged.

And John Durham is an independent man, highly experienced. And his investigation is pursuing apace. There was some delay because of COVID. But I’m satisfied with the progress.

And I have said there are going to be developments, significant developments, before the election. But we’re not doing this on the election schedule. We’re aware of the election. We’re not going to do anything inappropriate before the election.

But we’re not being dictated to by this schedule. What’s dictating the timing of this are developments in the case. And there will be developments. Tomorrow, there will be a development in the case.

You know, it’s not an earth-shattering development, but it is an indication that things are moving along at the proper pace, as dictated by the facts in this investigation.

That development happened to be the charge of a single False Statements charge against Kevin Clinesmith, the lawyer who altered an email — he said, “to clarify facts for a colleague” — in the Carter Page investigation.

There’s an aspect of the Criminal Information I’ll return to.

But for the moment, consider that Billy Barr has said this Criminal Information, for one count of False Statements, was “moving along at the proper pace.” Per the DOJ IG Report, Clinesmith’s actions were referred to DOJ and FBI in June 2018. That means it has taken DOJ at least 13 months to charge a fairly clearcut false statements case.

[Note: I’ve reread this. DOJ IG referred Clinesmith to FBI for his politicized texts in June 2018. It’s unclear when they referred his alteration of an email. He resigned from FBI on September 21, 2019, so it would have happened before then. I’ve changed the headline accordingly.]

George Papadopoulos was charged, in an investigation that Barr’s boss Donald Trump said was far too long, just over eight months after he lied to the FBI.

Mike Flynn was charged, in an investigation that Trump claims was far too long, just over ten months after he lied to the FBI.

Even in the Roger Stone case, the longest lasting of the investigations into Trump’s flunkies, Mueller charged obstruction just over eight months after Mueller’s team discovered how Stone was threatening Randy Credico and other witnesses.

In short, Billy Barr has now said that the pace Mueller worked at was better than what he thinks is proper.

Billy Barr probably didn’t realize it, but the only thing his politicized Durham investigation has to show thus far is that Trump is wrong when he assails Mueller for the length of his investigation.

image_print