The Cat Moves onto Pounce on its Paul Manafort Cat Toy

On November 17, I said this about Manafort’s efforts to make bail.

I feel like Mueller’s prosecutors are playing with these two men as cats play with balls, just patiently batting them around, waiting for the inevitable admission that they can’t make bail because they don’t have assets they can put up because everything they own has been laundered. At which point, after getting the judge rule over and over that they’re flight risks, I suppose the government will move to throw them in the pokey, which will finally get them to consider flipping.

On May 18, Judge Amy Berman Jackson ruled that Manafort had show sufficient liquidity that she would move towards granting him bail, pending certain interviews.

After that order, Manafort pledged the last properties he’d need to pledge to make bail (probably the last of his liquid possessions). Then Mueller’s team posted a cryptic filing asking to file something by June 4 — today — in response to Manafort’s last, finally successful!!!!, attempt to post bond.

Here’s that filing. Basically, Mueller’s team says that as soon as Rick Gates made a move to flip, Manafort tried to tamper with witnesses (largely Mercury Group, the Vin Weber lobbying firm) on new criminal evidence raised in the Gates plea — their efforts to use the “Hapsburg Group” to lobby in favor of pro-Russian views. Because Manafort broke the law while out on bail, Mueller argues, the whole process needs to be reevaluated.

Manafort may finally be headed to the pokey. Which may be why Trump was so worried about his poor corrupt campaign manager yesterday.

I’ll have more to say about the filing and the means they used to obtain the WhatsApp and Telegram evidence behind it — suffice it to say there has been parallel construction going on in the casino.

But for now, know that Mueller’s team has been sitting on this evidence since May 4 — probably since February 28.

They’ve just been waiting for Manafort to pledge the last little bits of his liquidity before they move to throw him in prison.

And somehow, it’s almost as if Donald Trump knew the guy he once suggested was his firewall might be in legal peril.

The 58 Second Gap: Did Emin Agalarov Tell Rob Goldstone Putin Talked to His Father about the June 9 Meeting?

Neither of the Agalarov employees — Ike Kaveladze and Rob Goldstone — involved in the June 9 meeting were fully responsive to the Senate Judiciary Committee. Kaveladze, who worked with Aras Agalarov to implement the meeting, at first failed to tell SJC that he got on a plane the day after the meeting and flew to Moscow. Even in a second appearance, he had not looked up whose Russian mobile phones he spoke to the day after the meeting, while he was still in NY, and never explained the timing of his last minute trip to NY and then Moscow.

Goldstone had to do a second appearance to talk through efforts to set up a meeting with Putin in 2013, and also to walk through newly complete versions of the WhatsApp texts he had with Emin as the June 9 story broke last summer. And Goldstone — an independent businessman who surely needs such records for tax purposes — ultimately never provided phone records that would show whom he called when during key periods.

I’d like to look at the circumstances surrounding a piece of evidence newly turned over and discussed in Goldstone’s second interview, which took place on March 29. At issue is a WhatsApp voice message Emin left Goldstone at 9:17 AM on July 10, 2017, in the midst of Goldstone’s panic as he increasingly became the focus of press attention and even (he claims) started to lose business over having set up the June 9 meeting. It takes place shortly after this exchange, in which Goldstone complains about being depicted as “some mysterious link to Putin,” to which Emin (a good Russian) responds, “That should give you mega PR.” (PDF 21)

According to Goldstone’s testimony, after he texted, “Forget it,” he and Emin spoke by phone, and the latter told Goldstone he should be happy because the scandal was making him one of the most famous people in the world.

I think there was a call between us as some point before these [voice mails]. After I said, “Forget it,” I believe we did have a really brief call that I hung up on. And, yes, there was. It was, again, him saying, “I still don’t understand. This is mega” — you know I think at one point he said to me, “This is making you one of the most famous people in the world,” and the reason I remember it is because I said to him, “You know, Jeffrey Dahmer was famous. I don’t think he got a lot of work out of it,” and hung up.

What follows are three WhatsApp voicemails left from 9:17-18 on July 10 (while this is taking place, Emin is in Moscow and Goldstone is in Greece; as this exchange was taking place, Kaveladze was landing in Moscow, having had a call with Don Jr’s lawyers on July 7, the day Putin and Trump talked about adoptions as the Trump camp was struggling to come up with a statement about the June 9 meeting).

In the first call, Emin tried to downplay his own role in things, suggesting Goldstone should work with Kaveladze and his father.

Rob, I understand your frustration and no way I’m trying to downsize what’s happening. But as you know, as the meeting happened through Ike and my Dad, I was not involved, and I was also against all possibilities. The same way right now, any comments should go through them. Just figure out with Ike what the strategy should be. I don’t mind you commenting anything. There’s no problem from my side, as you understand.

Goldstone didn’t provide a very convincing explanation for what Emin meant by “I was also against all possibilities.”

Then Emin calls back again (it’s pretty obvious Goldstone is still angry and ignoring these three calls). He offers to ask his father whether Goldstone should comment.

And if you want, I can speak to my father and ask him directly if he minds or doesn’t mind, wants you to comment, doesn’t want you to comment.

Which brings us to the third voicemail, which WhatsApp shows to be 1:10 long, but which Goldstone’s lawyer, Bernard Ozarowski, says was only 12 seconds long. In addition to that discrepancy (which Ozarowski claims is a WhatsApp error), the first word of even the 12 second voicemail — describing someone contacting Aras — is cut off. (PDF 59-61)

MR. PRIVOR: Before the break, we were discussing one of the voicemail messages that appears to be cut off, and, Counsel, you were going to explain sort of what you had in your files and what has been produced, and we’d invite you to make a statement on the record about that.

MR. OZAROWSKI: Sure. Our best understanding at this point is that all of the audio files that we’ve produced to the Committee are complete. I myself helped get the files off of Rob’s phone, and they are complete files to the best of our knowledge. Our general understanding is that the 1 minute and 10 second time stamp is an error on WhatsApp. It appears maybe to be related to the minute and 10 second voicemail that comes later in the string of texts. This message, as best we can tell, is approximately 12 seconds. And, also, when looking at Rob’s phone more recently and replaying it, the message appears to be 12 seconds long.

MR. PRIVOR: Very well. We appreciate that clarification, and let’s now continue with that particular message.

BY MR. PRIVOR: Q. So as noted — and we understand that the file you have is shorter — it nevertheless appears to be cut off slightly at the beginning. It sounds like Emin is saying someone was in direct contact with him. The “him” I think is a reference to Aras Agalarov. Is that your understanding, Mr. Goldstone?

A. Could I ask that that be played again? Just because there’ s been a little time in between.

MR. PRIVOR: Yes, of course. Again, the file is Bates RG-000253.

[Voicemail message played]

MR. AGALAROV: — is in direct contact with him, but I haven’t spoken on the matter recently to him, but I can. Let me know if you want me to.

MR. GOLDSTONE : I can’t make out what that first word is, but it obviously relates to somebody being in direct contact with him. And as it relates to the previous voice message, I would agree that it’s with his father, Aras.

BY MR. PRIVOR :  Q. Do you recall having any conversation with Emin about who was in direct contact with his father?

A. I do not.

Q. Emin says in that message that he hasn’t “spoken on the matter recently to him, but I can.  Let me know if you want me to.” That, again, sounds like an offer to speak to his father. The “him” is a reference to Aras. Do you agree with that?

A. I agree with that.

Q. Did you ever follow up with Emin to ask him to follow up with his father?

A. No.

Q. And did you yourself directly follow up with Aras?

A. No.

Now, there are likely some non-scandalous explanations for who of interest might have reached out to Aras Agalarov, but the most likely explanations are almost certainly wrong. The most likely reference would be to Kaveladze. He generally dealt directly with Aras, Goldstone dealt directly with Emin, Aras and Emin dealt directly with each other, and Kaveladze and Goldstone dealt with each other.

Except that’s highly unlikely because earlier in this same exchange, Emin and Goldstone had discussed that Kaveladze was in the air on the way to Moscow.

And after Kaveladze lands (I’m still trying to figure out the real time of this text, but it temporally slides into the discussion of statements Goldstone and Emin started, as the larger string of Kaveladze’s texts show), Kaveladze texts Emin and asks to talk. (PDF 31)

The next exchange of texts seems to suggest Emin and Kaveladze meet to talk about a statement. First Goldstone says that Kaveladze has told him he — either Emin alone or with Kaveladze — is drafting a statement.

And Emin responds, “meeting now.”

Emin calls shortly thereafter and tweaks Goldstone’s speech.

So the missing name doesn’t appear to be Kaveladze.

The only other person in the loop on these issues — Emin’s assistant Roman Beniaminov — worked through Emin and Kaveladze, just like Goldstone did.

There are, presumably, other possibilities we wouldn’t know about. For example, Emin could be suggesting that the Agalarovs throw business to Goldstone via some other means.

But the context suggests one possibility. The last thing Goldstone texted before the phone call he hung up on and Emin’s three voice mails was a complaint that he was being perceived as having a link to Putin, with earlier complaints about losing work from it. By Goldstone’s own description, on the call he complained again about losing work, and analogized what he had just raised — a purported link to Putin — with being a serial killer.

In the third of three voicemails that Emin leaves to try to placate Goldstone for suggesting he should be thrilled about a link to Putin rather than horrified by it, Emin starts by saying someone — the missing name — “is in direct contact with” his father, Aras Agalarov. “I haven’t spoken on the matter recently to him,” — Emin doesn’t say what matter, which might either relate to the June 9 meeting or something discussed on the phone call. But he offers to speak to (apparently) his father about this. “but I can. Let me know if you want me to.”

Again, that’s in no way definitive. But in context, it’s possible. It certainly might explain why these texts weren’t fully turned over in the first round, why at least the first word of the voicemail, if not 58 seconds, is missing, and why Goldstone hasn’t, apparently, turned over his phone records (which would show how long this call was).

At the very least, Mueller has Goldstone’s phone records. He may well have a copy of the WhatsApp chats from Facebook. He also surely has the other information Kaveladze didn’t turn over to SJC. So he may well know the answer to this.

The Documents the White House Turned Over

I wanted to pull this information, from the John Dowd’s letter to Robert Mueller, to lay out how the White House has categorized document requests from Mueller. Dowd boast the “Records voluntarily produced to your office by the White House total over 20,000 pages.” Here’s what those records like, arranged by Bates series.

The Flynn documents

The categories start with Flynn, including an astounding 2,572 pages related to Sean Spicer’s comments to the press on Jim Comey from May 3, 2017 (in the press briefing that day Spicer downplayed the threat Russia posed to the US).

  • FBI Interview of Michael Flynn at the White House on January 24, 2017 (SCR001), 9 documents, 66 pages;
  • Communications of DAG Sally Yates, DOJ, FBI, & WH regarding Michael Flynn (SCR002), 28 documents, 64 pages;
  • Communications between White House staff regarding the FBl’s investigation into Russian interference or James Comey (SCR003), 53 documents, 248 pages;
  • The resignation of Michael Flynn (SCR004), 311 documents, 762 pages;
  • Sean Spicer’s May 3, 2017, statements to the press regarding James Comey (SCR005), 445 documents, 2,572 pages;

The George Papadopoulos documents

There’s just one bullet point of communications pertaining to Papadopoulos. This list must reflect the list of those who might be of interest in the Russian inquiry. Note that Jeff Sessions is not included.

  • White House communications concerning campaign and transition communications between Manafort, Gates, Gordon, Kellogg, Page, Papadopoulos, Phares, Clovis and Schmitz (SCR006), 75 documents, 978 pages;

A second tranche of Mike Flynn documents

Then there are two more bullets of Mike Flynn documents, first seeking campaign and transition communications involving Russian Federation officials, and then seeking the 2,990 pages on the May 10, 2017 meeting with Sergei Lavrov. We should expect a ton of prep work in advance of such a meeting, so the number might not be that surprising. But it is the largest set of documents.

  • White House communications regarding campaign and transition communications between Michael Flynn and Sergey Kislyak or other Russian Federation officials (SCR007), 303 documents, 912 pages;
  • May 10, 2017, White House meeting with Russian Federation officials (SCR008), 808 documents, 2,990 pages;

The June 9 meeting documents

Only after those Flynn related comms did Mueller ask for June 9 meeting documents. They asked for three things: Documents pertaining to the June 9 meeting (note, this doesn’t include a request for the follow-up discussions in November). Then, a list of those who were involved in Don Jr’s press statements. Finally, all the comms from those people. The number of these documents is suspiciously small, particularly as compared to the volume turned over to SJC.

  • June 9, 2016, meeting between Donald Trump, Jr., and Natalia Veselnitskaya (SCR009), 117 documents, 1,821 pages;
  • July 8, 2017, Air Force One participants regarding Donald Trump, Jr., press statements concerning Veselnitskaya meeting (SCR010), 1 document, 1 page;
  • Communications of individuals identified in category number 10 (SCR011), 141 documents, 284 pages.

Jim Comey documents

Finally, there are documents pertaining to Jim Comey’s firing. This suggests Mueller didn’t ask for these documents until at least July 2017.

  • Meetings between the President and James Comey (SCR012), 109 documents, 725 pages;
  • The decision to terminate James Comey (SCR013), 442 documents, 1,455 pages;

The Giant Holes in Trump’s Mike Flynn Story Point to “Collusion,” Not Obstruction

I wanted to look more closely at the story the President’s lawyers told Mueller’s team about Flynn’s firing in January, both for what it reveals about the White House’s response to the Sally Yates warning, and for its claims about how it interprets DOJ actions. The letter reveals the following:

  • The White House claims, Sally Yates’ public comments (which they entirely ignore) to the contrary, that they got DOJ permission to release the Mike Flynn intercept; given the timing of the story as laid out, and Trump’s question about FBI leaking, I actually think it possible if not likely that the White House was a source for the February 9 story leaking the intercept. If that’s true, it totally undermines the Trump letter.
  • Don McGahn wrote a memo on the lead-up to Flynn’s firing two days after the firing, and one day after Trump’s “let it go” conversation with Jim Comey. It appears to be inconsistent with Transition materials, particularly an email showing (among other things) that Reince Priebus knew in real time what Flynn told Kislyak on December 29. Firing Comey would have been an effort to prevent FBI from discovering those transition period communications.
  • The Trump letter didn’t address two of the questions asked about Flynn’s firing. In addition to remaining silent about what Trump really knew about what Flynn said to Pence, it doesn’t address Trump’s involvement in the transition period communications with Sergey Kislyak. That’s important because that’s the question that Flynn’s initial interview should have revealed. Contrary to what the letter claims, then, Flynn’s plea and Trump’s silence in the letter about the substance of the plea is proof not that Trump didn’t obstruct, but that Trump continues to refuse to explain why Flynn asked Kislyak to hold off on responding to sanctions, to say nothing of whether Flynn did so on his orders.

The section (less the Comey and McCabe testimony) and associated footnotes follow, with my comments.

Mueller asked for six Flynn related things; Trump only responded to four

Here are the things Mueller asked Trump to explain pertaining to the Flynn firing.He said

  1. Former National Security Advisor Lt. Gen. Michael Flynn — information regarding his contacts with Ambassador Kislyak about sanctions during the transition process;
  2. Lt. Gen. Flynn’s communications with Vice President Michael Pence regarding those contacts;
  3. Lt. Gen. Flynn’s interview with the FBI regarding the same;
  4. Then-Acting Attorney General Sally Yates coming to the White House to discuss same;
  5. The President’s meeting on February 14, 2017, with then-Director James Comey;
  6. Any other relevant information regarding former National Security Advisor Michael Flynn;

In our most recent meeting, you mentioned the possibility of obstruction in connection with the case of former National Security Advisor and Lt. Gen. Michael Flynn (Ret.) “Lt. Gen. Flynn”), and that you desired to speak with the President specifically regarding his conversation with then-Director Comey one day after the President fired Lt. Gen. Flynn for lying to the Vice President.

Note, at the outset, how Trump’s lawyers have taken 6 questions about the specifics of communications about Flynn and turned that into a question that focuses on the meaning of the February 14 “Let it go” meeting? So as you’re reading the following, watch how Trump’s lawyers redefine the scope of the questions — I’ll revisit this at the end.

Also as you read this, remember that this response happens in the wake of (and may be the first meeting after) Mike Flynn flipping in part because Jared Kushner hung him out to dry in testimony.

You have already been provided the testimony of White House Counsel and his extensive internal file memo as well as the testimony and notes of the President’s Chief of Staff, Reince Priebus “Mr. Priebus”), and other members of the White House Counsel’s office.

Again, Mueller has asked specifically about Flynn’s comments to Pence. Pence is not included here.

Trump complains that Mueller hasn’t turned over Comey’s memos; the memos seriously undermine some claims made in the letter

According to former Mr. Comey, the following occurred at a February 14, 2017, meeting between him and the President:

The President then returned to the topic of Mike Flynn, saying, “He is a good guy and has been through a lot.” He repeated that Flynn hadn’t done anything wrong on his calls with the Russians, but had misled the Vice President. He then said, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” I replied only that “he is a good guy.” … I did not say I would “let this go.”16

The White House denied and refuted that the President said these words to Mr. Comey.17 We decline to recommend to the President that he be interviewed on this subject for many reasons.

16 We note that you have declined our request on several occasions to share the classified notes of Mr. Comey, which have been leaked to the press and given to members of Congress and publicly disclosed. As Chief Executive Officer, the President has every right to have them. You provided them to While House Counsel. In addition, we note that Mr. Comey has had to correct his testimony on multiple occasions.

17 See infra p. 11 and n. 30.

One of the questions added to Sekulow’s list in March addressed Trump’s tweet suggesting there might be recordings of this meeting, which makes this response all the more interesting. In any case, you’ll see that in January Trump’s lawyers made a number of claims that Comey’s memos solidly refuted.

I’m also confused by the apparent contradiction — both the demand that Mueller turn over Comey’s memos (I’ll return to what Mueller was likely withholding in a bit) followed by the claim that he has given them to Don McGahn.

The sources cited for claims about Flynn don’t support those claims and have since been undermined further

What follows is a non-exhaustive list:

  • First, the President was not under investigation by the FBI;
  • Second, there was no obvious investigation to obstruct since the FBI had concluded on January 24, 2017, that Lt. Gen. Flynn had not lied, but was merely confused.18Director Comey confirmed this in his closed-door Congressional testimony on March 2, 2017.19

18 Evan Perez, Flynn Changed Story to FBI; No Charges Expected, CNN (Feb. 17, 2017)

19 The Editorial Board, The Flynn Information, WALL STREET JOURNAL (Dec. I, 2017) “A Congressional source also tells us that former FBI director James Comey told the House Intelligence Committee on March 2 that his agents had concluded that Mr. Flynn hadn’t lied but had forgotten that had been discussed.”).

I suspect the first of these bullets — that the President was not under investigation — will come back to haunt him. That is, Trump wasn’t investigation yet in part because by firing Flynn he separated the investigation that would soon subsume him, in part because of his own role in the actions Flynn was fired for.

As for the claims about Flynn. First, notice that the first source Trump’s lawyers cite doesn’t support their claims. The story says nothing about Flynn being confused. Rather, it says that, when challenged, Flynn claimed not to remember.

Flynn initially told investigators sanctions were not discussed. But FBI agents challenged him, asking if he was certain that was his answer. He said he didn’t remember.

The FBI interviewers believed Flynn was cooperative and provided truthful answers. Although Flynn didn’t remember all of what he talked about, they don’t believe he was intentionally misleading them, the officials say.

In addition, the CNN story cited notes that the investigation was only done, “barring new information that changes what they know.” A lot would transpire in the weeks after that story, including disclosure of a meeting at which sanctions were raised, that would change how Flynn’s skilled lying looked after the fact.

The second source isn’t any better — it supports the “forgot” claim too. And the GOP HPSCI report makes it clear that even that claim is inaccurate. What Comey said was that the interviewing agents saw no signs of deception.

Director Comey testified to the Committee that “the agents … discerned no physical indications of deception. They didn’t see any change in posture, in tone, in inflection, in eye contact. They saw nothing that indicated to them that he knew he was lying to them.”

From a lifetime intelligence official like Flynn, that’s not that surprising.

Trump’s lawyers get the law on obstruction wrong

Note, in the following section, I’m putting the initial bullet, the argument, and the footnotes all together. The footnotes will appear out of order as a result.

  • Third, as a matter of law, even if there had been an FBI investigation there could have been no actionable obstruction of said investigation under 18 U.S.C. § 1505, since an FBI investigation is not a “proceeding” under that statute. Since there is no cognizable offense, no testimony is required;

To briefly review the relevant law and facts, § 1505 of Title 18, United States Code, as amendedby the Victim and Witness Protection Act of 1982, forbids anyone from corruptly, or by threats of force or by any threatening communication, influencing, obstructing, or impeding any pending proceeding before a department or agency of the United States, or Congress.22Under § 1505, a “pending proceeding” is limited only to agencies with rule-making or adjudicative authority. The investigation of Lt. Gen. Flynn was being conducted by the FBI, which possesses only investigative authority, not adjudicative; it cannot conduct “proceedings” within the cognizance of§ 1505.23No court has ever held than an FBI investigation constitutes a § 1505 proceeding, and the U.S. Attorney’s Manual makes clear that “investigations by the Federal Bureau of Investigation (FBI) are not §1505 proceedings.”24The DOJ has even expressly acknowledged as much to the United States Court of Appeals for the Fourth Circuit.25As a matter of law, then, the FBI’s investigation of Lt. Gen. Flynn was not, at the time of the President’s comments as recalled by Mr. Comey, within the scope of § 1505.

22 In 1996, Congress enacted a clarifying amendment to 18 U.S.C. § 1515, which defines the term “corruptly” as used in § 1505 to mean “acting with an improper purpose, personally or by influencing another, including making a false or misleading statement, or withholding, concealing, altering, or destroying a document or other information.” False Statements Accountability Act of 1996, Pub. L. No. I 04-292, §3, I IO Stat. 3459, 3460.

23 Courts have explained it this way.

25 United States v. Adams, 335 Fed. Appx. 338, 342 (4th Cir. 2009) (Government conceded that criminal investigation by FBI or DEA was not pending proceeding within the scope of 18 U.S.C. § I 505, and requested defendant’s conviction on that count be vacated).

As numerous people have noted (including the NYT in an annotation of this), the President’s crack lawyers get which obstruction of justice statute might be at issue wrong.

Trump’s lawyers never address what Sally Yates has stated publicly — which badly undermines the Don McGahn narrative of these issues

The following section is the one I’m most interested in, because it probably added to the evidence that the White House obstructed. Because this argument is so muddled, I’m repeating the “second” point because it’s necessary to make what follows sensible. Having argued that obstructing an FBI investigation is not obstructing justice, Trump’s lawyers are now going to set out to suggest there was no way they could have known that Flynn was under investigation. (Note, for reasons of length, I don’t deal with Comey and McCabe’s testimony; suffice it to say that Comey’s testimony, including him entertaining the investigation of Trump, reportedly led directly to his firing, so the hearing actually proves the opposite of what the White House claims.)

  • Second, there was no obvious investigation to obstruct since the FBI had concluded on January 24, 2017, that Lt. Gen. Flynn had not lied, but was merely confused.18Director Comey confirmed this in his closed-door Congressional testimony on March 2, 2017.19
  • Fourth, both Mr. Comey and Mr. McCabe subsequently testified under oath that there was “no effort to impede” the investigation.20Mr. McCabe’s testimony followed Mr.Comey’s testimony on May 3, 2017, just six days before his termination, that “it would be a big deal to tell the FBI to stop doing something . . . for a political reason. That would be a very big deal. It’s not happened in my experience.”21

The following facts are taken from information voluntarily provided to your office or from information that is publicly available. These facts further demonstrate that the President did not obstruct justice in any manner concerning Lt. Gen. Flynn.

According to Acting Attorney General Sally Yates (“Ms. Yates”), on January 24, 2017, Lt. Gen. Flynn was interviewed by the FBI. According to reports, “The FBI interviewers believed Flynn was cooperative and provided truthful answers. Although Flynn didn’t remember all of what he talked about, they don’t believe he was intentionally misleading them, the officials say.”26

This account of the FBl’s interview and subsequent conclusions was later confirmed by the closed-door congressional testimony of Mr. Comey.27 Mr. Comey also confirmed in his May 3, 2017, Senate Intelligence Committee testimony that he “did participate in conversations about that matter” with Ms. Yates, referring to the FBl’s interview of Lt. Gen. Flynn. before she conveyed the information to the White House in the days that followed.28

27 “A Congressional source also tells us that former FBI director James Comey told the House Intelligence Committee on March 2 that his agents had concluded that Mr. Flynn hadn’t lied, but had forgotten what had been discussed.” The Editorial Board, The Flynn Information, WALL STREET JOURNAL (Dec. 1, 2017).

28 Read the Full Testimony of FBI James Comey in Which He Discusses Clinton Email Investigation, supra n.21.

This repeats what was already said, that the FBI at first came away thinking that Flynn had shown no signs of deception. Trump’s lawyers choose to source these claims to the same CNN and WSJ pieces they had already cited instead of 1) Flynn’s guilty plea 2) Comey’s testimony or 3) what Yates told McGahn. Only after having relied on the press that Trump otherwise demonizes does the letter cite what Yates actually said.

On January 26, 2017, Ms. Yates met with White House Counsel Don McGahn (“Mr. McGahn”). As outlined by Mr. McGahn in his White House Counsel’s Office memo dated February 15, 2017,29“Yates expressed two principal concerns during the meeting: (1) that Flynn may have made false representations to others in the Administration regarding the content of the calls; and (2) that Flynn’s potentially false statements could make him susceptible to foreign influence or blackmail because the Russians would know he had lied.” “Yates further indicated that on January 24, 2017, FBI agents had questioned Flynn about his contacts with Kislyak. Yates claimed that Flynn’s statements to the FBI were similar to those she understood he had made to Spicer and the Vice President.”3029 This confidential and privileged memorandum was provided to your office as part of the White House’s voluntary production, and is identified as SCR002b_SCR002b000000001.30 Recall that Lt. Gen. Flynn had previously been asked questions by other transition team personnel concerning his conversations with Ambassador Kislyak via an email chain of January 12, 2017. See DJTFP00027478. The response provided by Lt. Gen. Flynn was vague, and appears to imply that sanctions were not discussed. DOJ leadership would not advise the White House that transcripts of the calls existed, and of concerns about the content of those transcripts, until January 26, 2017, and even then, when asked by the White House, the DOJ refused to confirm that an investigation was underway.

Three things about this passage. First, whereas elsewhere the letter relies on public testimony (of Comey and McCabe), the letter doesn’t cite Yates’ public testimony. Instead, the White House relies on a narrative that Don McGahn drew up the day after the “let it go” conversation — that is, after such time as Flynn’s firing might be a problem. Here’s what they would have had to include had they actually included Yates’ testimony (which they don’t dispute).

We also told the White House Counsel that General Flynn had been interviewed by the FBI on February 24. Mr. McGahn asked me how he did and I declined to give him an answer to that. And we then walked through with Mr. McGahn essentially why we were telling them about this and the first thing we did was to explain to Mr. McGahn that the underlying conduct that General Flynn had engaged in was problematic in and of itself.

Secondly, we told him we felt like the vice president and others were entitled to know that the information that they were conveying to the American people wasn’t true. And we wanted to make it really clear right out of the gate that we were not accusing Vice President Pence of knowingly providing false information to the American people.

And, in fact, Mr. McGahn responded back to me to let me know that anything that General Flynn would’ve said would have been based — excuse me — anything that Vice President Pence would have said would have been based on what General Flynn had told him.

We told him the third reason was — is because we were concerned that the American people had been misled about the underlying conduct and what General Flynn had done, and additionally, that we weren’t the only ones that knew all of this, that the Russians also knew about what General Flynn had done.

And the Russians also knew that General Flynn had misled the vice president and others, because in the media accounts, it was clear from the vice president and others that they were repeating what General Flynn had told them, and that this was a problem because not only did we believe that the Russians knew this, but that they likely had proof of this information.

And that created a compromise situation, a situation where the national security adviser essentially could be blackmailed by the Russians. Finally, we told them that we were giving them all of this information so that they could take action, the action that they deemed appropriate.

Yates’ public testimony (to which Mary McCord would also be a witness) adds several elements to McGahn’s: she said the sanction discussion itself was wrong (elsewhere HPSCI has claimed she raised Logan Act violations). She talked about concerns about Pence’s credibility (remember–the White House doesn’t address getting Pence’s side of this story at all). And she claims she specifically suggested the White House should take action — that is, fire Flynn.

Finally, note that this passage cites an email chain dated January 12 — what was treated as campaign production with the Bates stamp “DJTJFP.” This is the only time the letter cites that production; they don’t, for example, cite the email chains referenced in Flynn’s plea that make it clear how hard it would have been to forget the Kislyak call because he was basically acting on orders from the President. In any case, the letter remarkably describes nothing about this chain of emails, not even who participated in it. But given the timing, it almost certainly was a response to the January 12 Ignatius story, and therefore was likely a press response chain. It may have also been prep for this all-important Pence appearance.

McGahn’s narrative reveals Trump knew of the Flynn interview before he demanded loyalty from Comey on January 27

Resuming … This is a detail that has gotten far too little attention. After Yates spoke to McGahn, he had a meeting with Trump and Priebus and others.

On January 26, 2017, Mr. McGahn briefed the President concerning the information conveyed by Ms. Yates. Additional advisors were brought in, including White House Chief of Staff Mr. Priebus. It was agreed that additional information would be needed before any action was taken. As recorded by Mr. McGahn, “Part of this concern was a recognition by McGahn that it was unclear from the meeting with Yates whether an action could be taken without jeopardizing an ongoing investigation.” At that time “President Trump asked McGahn to further look into the issue as well as finding out more about the calls.”

Note how important it is that the letter ignore Yates’ public statements? She claims she suggested the White House should take action, meaning they should fire Flynn. The White House claimed (in a piece written after the “let it go” conversation) that they didn’t know whether they could fire Flynn because there might be an ongoing investigation. And Trump used that as an excuse to get more information on the investigation.

McGahn’s narrative claims Yates said DOJ would not mind if the White House publicly revealed the intercept on Kislyak

Which is what leads to the January 27 meeting with Yates and McGahn.

On January 27, 2017, at Mr. McGahn’s request, Ms. Yates and Mr. McGahn had another meeting. Importantly, DOJ leadership declined to confirm to the White House that Lt. Gen. Flynn was under any type of investigation. According to Mr. McGahn’s memo:

During the meeting, McGahn sought clarification regarding Yates’s prior statements regarding Flynn’s contact with Ambassador Kislyak. Among the issues discussed was whether dismissal of Flynn by the President would compromise any ongoing investigations. Yates was unwilling to confirm or deny that there was an ongoing investigation but did indicate that the DOJ would not object to the White House taking action against Flynn. (Emphasis added.)

Further supporting the White House’s understanding that there was no FBI investigation that could conceivably have been impeded, “Yates also indicated that the DOJ would not object to the White House disclosing how the DOJ obtained the information relayed to the White House regarding Flynn’s calls with Ambassador Kislyak.” In other words, the DOJ expressed that the White House could make public that Lt. Gen. Flynn’s calls with Ambassador Kislyak had been surveilled. It seems quite unlikely that if an ongoing DOJ investigation of Lt. Gen. Flynn was underway, the DOJ would approve its key investigation methods and sources being publicized.

Key to the White House argument, then, are two details: first, that Yates didn’t confirm for McGahn that there was an ongoing investigation, but also his claim that, “DOJ would not object to the White House disclosing how the DOJ obtained the information relayed to the White House regarding Flynn’s calls with Ambassador Kislyak” Yates’ testimony portrays that very differently. First of all, she describes talking about the crimes that Flynn might be prosecuted for — surely a tip-off he was being investigated. More interestingly, what McGahn portrayed as DOJ’s assent for releasing news of the FISA wiretap publicly, Yates seems to have taken it to mean DOJ was willing to share the wiretap intercept privately, with the White House; she even implies she meant they could come to DOJ to review the intercept.

WHITEHOUSE: Did you discuss criminal prosecution of Mr. Flynn — General Flynn?

YATES: My recollection is that did not really come up much in the first meeting. It did come up in the second meeting, when Mr. McGahn called me back the next morning and asked the — the morning after — this is the morning of the 27th, now — and asked me if I could come back to his office.

And so I went back with the NSD official, and there were essentially four topics that he wanted to discuss there, and one of those topics was precisely that. He asked about the applicability of certain statutes, certain criminal statutes and, more specifically,

[snip]

And there was a request made by Mr. McGahn, in the second meeting as to whether or not they would be able to look at the underlying evidence that we had that we had described for him of General Flynn’s conduct. And we told him that we were inclined to allow them to look at that underlying evidence, that we wanted to go back to DOJ and be able to make the logistical arrangements for that. This second meeting on the 27th occurred late in the afternoon, this is Friday the 27th. So we told him that we would work with the FBI over the weekend on this issue and get back with him on Monday morning. And I called him first thing Monday morning to let him know that we would allow them to come over and to review the underlying evidence.

That McGahn is spinning this as permission to release the intercept publicly is remarkable, given that it leaked. Want to bet this means FBI determined the leaks about the Flynn wiretap were leaked by the White House?

Trump’s initial loyalty demand from Comey closely followed him learning about Flynn interview

That’s particularly significant given the weird dinner Trump had with Comey that night, which Comey documented at the time. I describe that meeting and its significance as follow-up to the second Yates meeting here. But the key details are that Trump:

  • Invited the FBI to investigate the pee tape to prove it was inaccurate (which I assume was an explicit request for public exoneration)
  • Asked if the FBI leaks (given the White House claim that DOJ said the FISA intercept could be released, the question is all the more interesting)
  • Asked, for the third time, if Comey wanted to keep his job
  • Asked for loyalty
  • Made this remarkable comment suggesting he didn’t trust Flynn that among other things pretended that Trump didn’t know of the impending Putin call

He then went 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 had 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 or 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]. (“This isn’t [redacted] we are talking about.”) He said that if he called [redacted] and didn’t get a return call for six days he would be very upset. In telling the story, the President pointed his fingers at his head and said “the guy has serious judgment issues.” I did not comment at any point during this topic and there was no mention or acknowledgement of any FBI interest in or contact with General Flynn.

All of which is to say that McGahn’s narrative conflicts in very key ways with the contemporaneous documentation of DOJ.

For some reason (McGahn claims) Reince Priebus grilled Mike Flynn about question he already knew the answer to

Which brings us to the claims that McGahn recorded the day after the conversation but which, in the wake of Flynn’s plea, are remarkable.

Your office is also aware that, in the week leading up to Lt. Gen. Flynn’s termination and the President’s alleged comments to Mr. Comey, Lt. Gen. Flynn had told both White House Counsel and the Chief of Staff at least twice that the FBI agents had told him he would not be charged. The first instance occurred during a discussion at the White House on February 8, 2017, between Mr. McGahn, Mr. Priebus, Mr. John Eisenberg and Lt. Gen. Flynn. “Priebus led the questioning” and “asked Flynn whether Flynn spoke about sanctions on his call with Ambassador Kislyak.” Lt. Gen. Flynn’s “recollection was inconclusive” and he responded that “he either was not sure whether he discussed sanctions, or did not remember doing so.” “Priebus specifically asked Flynn whether he was interviewed by the FBI. Flynn stated that FBI agents met with him to inform him that their investigation was over.” The second occurred on a telephone call on February 10, 2017, wherein Mr. McGahn, Mr. Priebus, and the Vice President confronted Lt. Gen. Flynn concerning his discussions with Ambassador Kislyak. As recorded in Mr. McGahn’s memo, “On the phone, Flynn is asked about the FBI investigation to which he says that the FBI told him they were closing it out.”

On February 10, 2017, upon confirming the true content and nature of Lt. Gen. Flynn’s three telephone calls with Ambassador Kislyak, and in light of his statements to them and the Vice President, White House Counsel Don McGahn and Chief of Staff Reince Priebus advised the President that Lt. Gen. Flynn “had to be let go.” As a result, on February 13, 2017, the President accepted Lt. Gen. Flynn’s resignation.

So the White House counsel says that a memo he wrote on February 15 said that on February 8, he, Reince Priebus, John Eisenberg, and Pence quizzed Flynn about whether he asked Kislyak about sanctions.

That same day, per Jim Comey, Flynn had chummed up to Comey while he was waiting for a meeting with Priebus. And Priebus had asked Comey if there was a FISA order targeting Flynn personally. So already, the White House story doesn’t make sense. They weren’t trying to find out what Flynn had done, but rather how much scrutiny the White House was under as a result.

And it makes far, far less sense however when you consider that Reince Priebus would have learned in real time that Flynn spoke about sanctions with Kislyak. Tom Bossert forwarded the KT McFarland email detailing her (almost certainly relayed from Trump) instructions to Priebus (and Sean Spicer). What this meeting appears to be is not so much an effort to find out what Flynn said to Kislyak, it’s to find out how damning his lies to the FBI were. To which Flynn twice claimed (according to McGahn) that the FBI had dropped the inquiry.

The White House letter (and apparently McGahn’s narrative) are suspiciously silent on the February 9 WaPo story

The White House claims it got notice about what really happened with Flynn on February 10. The WaPo story revealing what those transcripts said came out after 9PM on February 9. Given the White House claim that DOJ had given permission to leak this, I think it quite possible the White House was the source for this story. Whether or not that’s true, the report in the story — in one of the most sensational stories of the Trump presidency — that “the FBI is continuing to examine Flynn’s communications with Kislyak” completely undermines the White House claim that they had no way of knowing that Flynn remained under investigation.

One way or another by Friday, February 10, the White House had gotten the information McGahn requested of Yates on January 27; given the delay and WaPo’s report, that might include the 302, as well as the intercepts. If it included the 302, it would have made it clear that, whatever the FBI agents believed about Flynn’s demeanor, the investigation hadn’t been  concluded.

Which is why Trump fired Flynn. Not because of anything he told Pence (remember: this letter completely blows off the request to learn about Flynn’s communications with Pence). But because keeping Flynn around meant remaining under scrutiny by FBI. Perhaps, too, Flynn had to be fired because retaining him would sustain the focus on precisely why Flynn (almost certainly operating under orders from Trump) intervened with the Russians about sanctions.

Nevertheless, that’s the opposite of what this letter argues. It uses that February 15 memo from McGahn, a memo that appears to be undermined by the Transition period discovery the White House knew to be in Mueller’s possession (not least because it was cited in Flynn’s plea), that claims no one had any way of knowing that Flynn was under investigation.

According to Mr. Comey’s testimony, the next day, on February 14, 2017, the President made comments expressing his “hope” that Mr. Comey “could see [his] way to letting this go” in reference to the situation with Lt. Gen. Flynn. The White House disputed Mr. Comey’s recollection of that conversation. Regardless, the White House Counsel and Chief of Staff, as well as others surrounding the President, had every reason to believe at that time that the FBI was not investigating Lt. Gen. Flynn, especially in light of the fact that Lt. Gen. Flynn was allowed to keep his active security clearance.

Even as Trump tries to claim he facilitated justice by firing Flynn, he continues to hide the same thing Flynn hid by lying

The letter ends with a bunch of claims that are barely supported, if at all.

  • Fifth, the investigation of Lt. Gen. Flynn proceeded unimpeded and actually resulted in a charge and a plea;
  • Sixth, assuming, arguendo, that the President had made a comment to Mr. Comey that Mr. Comey claimed to be a direction, as the chief law enforcement official pursuant to Article II of the United States Constitution, the President had every right to express his view of the case;
  • Seventh, your office already has an ample record upon which to base your findings of no obstruction. As such there is no demonstrated, specific need for the President’s responses; and,
  • Eighth, by firing Lt. Gen. Flynn, the President actually facilitated the pursuit of justice. He removed a senior public official from office within seventeen days, in the absence of any action by the FBI and well before any action taken by your office.

For all intents, purposes, and appearances, the FBI had accepted Flynn’s account; concluded that he was confused but truthful; decided not to investigate him further; and let him retain his clearance. As far as he could tell, the President was the only one who decided to continue gathering and reviewing the facts in order to ascertain whether Lt. Gen. Flynn’s actions necessitated severe and consequential action — removal from office. The President ordered his White House Counsel to continue its review of the situation, which ultimately concluded that Lt. Gen. Flynn had misled the Vice President. The President did not obstruct justice. To the contrary, he facilitated it.

We emphasize these points because even if an FBI investigation constituted a ‘’proceeding” under the statute, which it does not, the statute also requires intent to obstruct. There could not possibly have been intent to obstruct an “investigation” that had been neither confirmed nor denied to White House Counsel, and that they had every reason (based on Lt. Gen. Flynn’s statements and his continued security clearance) to assume was not ongoing. Further, by insisting on and accepting Lt. Gen. Flynn’s public resignation as national security adviser, the President expedited the pursuit of justice while the DOJ and the FBI were apparently taking no action.

So, to reiterate, within seventeen days of first being advised by DOJ leadership concerning Lt. Gen. Flynn, and within just three days of the President’s senior team confirming the requisite facts, the President took decisive action and directed Lt. Gen. Flynn, his highest ranking national security advisor, to resign. The President did so in spite of the fact that the FBI had, apparently, decided not to pursue the case further. The President did so in spite of the great political cost to himself. Far, far, from obstructing justice, the only individual in the entire Flynn story that ensured swift justice was the President. His actions speak louder than any words.

Let’s work backwards from where Trump claims he was helping justice by waiting 17 days, through a number of classified meetings (including the Putin one), before letting someone go that Yates has suggested should have been fired from the start. I suspect the McGahn letter tries to work backwards to spin the delay in better light.

There’s a good reason why Mueller’s team didn’t give Trump Comey’s memo before they wrote this letter. Because his account of the January 27 and February 8 interactions undermine the White House narrative, quite severely in the case of the January 27 dinner. And those earlier interactions can’t be viewed as Trump just commenting on a case.

That brings us to bullet five and seven: Trump’s claim that Mueller charged Flynn in spite of Trump’s efforts to obstruct and that Mueller has enough information without his testimony.

Both bullets obscure the nature of the inquiry. After all, Flynn got a plea because Mueller needed it to understand what was really going on with his communications with Kislyak (and Israel). That is, it took ten months until Mueller finally got at the jist of the issue, which is whether Flynn’s deferral of sanctions, almost certainly on orders from Trump, was part of a quid pro quo.

And in addition to the Pence questions I’ve focused on, this letter does absolutely nothing to address bullet point one: “information regarding his contacts with Ambassador Kislyak about sanctions during the transition process.” Which is to say that in January, Mueller asked Trump to finally come clean about why he was undercutting Obama’s policy on sanctions (and why Flynn lied about it).

That’s the “collusion” question behind the obstruction one. Trump refused to answer it then, and he continued to refuse to answer it when Mueller asked again (and added a slew more “collusion” questions) in March.

Which is to say, the more Trump refuses to answer Mueller’s questions, the bigger the “collusion” questions get.

Update: Subtitles added for clarity.

The Evasion in Trump’s Response on the June 9 Meeting Statement: Did Putin Dictate the Statement?

As early as January 8, Robert Mueller’s team was asking Donald Trump what his role in this statement on the June 9 Trump Tower meeting with Russians offering dirt on Hillary was; Don Jr’s lawyer released the statement  on July 8, 2017.

It was a short introductory meeting. I asked Jared and Paul to stop by. We primarily discussed a program about the adoption of Russian children that was active and popular with American families years ago and was since ended by the Russian government, but it was not a campaign issue at that time and there was no follow up. I was asked to attend the meeting by an acquaintance, but was not told the name of the person I would be meeting with beforehand.

The answer Trump’s lawyers gave in January seems to admit Trump dictated the statement.

You have received all of the notes, communications and testimony indicating that the President dictated a short but accurate response to the New York Times article on behalf of his son, Donald Trump, Jr. His son then followed up by making a full public disclosure regarding the meeting, including his public testimony that there was nothing to the meeting and certainly no evidence of collusion.56

This subject is a private matter with the New York Times. The President is not required to answer to the Office of the Special Counsel, or anyone else, for his private affairs with his children. In any event, the President’s son, son-in-law, and White House advisors and staff have made a full disclosure on these events to both your office and the congressional committees.57

Note: the statement is assuredly not accurate. The SJC materials show the Russian participants in the meeting spent weeks in November 2016 trying to follow-up, but the follow-up got deferred (maybe, or maybe not) because of new difficulties in scheduling.

In any case, saying that the notes, communications, and testimony “indicate” that Trump dictated the statement stops short of saying that he did so.

As a reminder, here’s the timeline of events leading up to that statement getting released.

Early July 7: NYT approaches WH officials and lawyers; WH schedules a conference call w/NYT for next morning.

July 7: Trump chats up Putin at dinner. (Note, whenever Melania decides it’s time to get revenge on Trump for treating her like shit, she can go tell Mueller what she overheard of this conversation.)

July 8, morning: Conference call doesn’t happen. NYT submits 14 questions about the meeting to the WH and lawyers of Trump campaign aides who attended the meeting (do these aides include all of Don Jr, Kushner, and Manafort?); Trump and his aides develop a response on Air Force One, with Hicks coordinating with Don Jr and his lawyer Alan Garten, who were both in NY, via text message.

July 8, afternoon: Jamie Gorelick provides a statement describing his revisions to his security clearance forms.

He has since submitted this information, including that during the campaign and transition, he had over 100 calls or meetings with representatives of more than 20 countries, most of which were during transition. Mr. Kushner has submitted additional updates and included, out of an abundance of caution, this meeting with a Russian person, which he briefly attended at the request of his brother-in-law Donald Trump Jr. As Mr. Kushner has consistently stated, he is eager to cooperate and share what he knows.

July 8, evening: Garten issues a statement in Don Jr’s name stating,

It was a short introductory meeting. I asked Jared and Paul to stop by. We primarily discussed a program about the adoption of Russian children that was active and popular with American families years ago and was since ended by the Russian government, but it was not a campaign issue at that time and there was no follow up. I was asked to attend the meeting by an acquaintance, but was not told the name of the person I would be meeting with beforehand.

Right in the middle of this heated effort to respond to the NYT, Trump bizarrely spent an hour chatting Vladimir Putin up over dinner at the G-20 (yeah, I wrote that comment about Melania in February!). The question here is not just “why did you release such a partial statement that the documentary record proves is inaccurate?” Nor is it, “why did you emphasize adoptions — Russian code for sanctions — rather than the sanctions that were at the core of the meeting?”

It’s also the unstated question: “Did you dictate that statement? Or did Vladimir Putin?”

Here’s the nutty bit. We don’t actually have to speculate about whether that spin — adoptions rather than sanctions — came up in the chat between Putin and Trump. In an interview not long after news of the June 9 meeting broke, Trump actually told the NYT he and Putin were talking about adoptions.

TRUMP: She was sitting next to Putin and somebody else, and that’s the way it is. So the meal was going, and toward dessert I went down just to say hello to Melania, and while I was there I said hello to Putin. Really, pleasantries more than anything else. It was not a long conversation, but it was, you know, could be 15 minutes. Just talked about — things. Actually, it was very interesting, we talked about adoption.

HABERMAN: You did?

TRUMP: We talked about Russian adoption. Yeah. I always found that interesting. Because, you know, he ended that years ago. And I actually talked about Russian adoption with him, which is interesting because it was a part of the conversation that Don [Jr., Mr. Trump’s son] had in that meeting. As I’ve said — most other people, you know, when they call up and say, “By the way, we have information on your opponent,” I think most politicians — I was just with a lot of people, they said [inaudible], “Who wouldn’t have taken a meeting like that?” They just said——

HABERMAN: The senators downstairs?

TRUMP: A lot of them. They said, “Who wouldn’t have taken a meeting like that?”

By his own admission, Trump went from the July 7 dinner chat about adoptions with Putin and “dictated” a statement that just happened to focus, misleadingly, on adoptions.

So, yeah, the big question in this entire list is the unstated one: did you dictate that statement? Or did Putin?

What Got Added to Sekulow’s List: Further Obstruction (Including Consideration of Firing Mueller), and “Collusion”

As bmaz noted, the NYT just published the most batshit letter, written on January 29 by John Dowd and Jay Sekulow, trying to dodge testimony for Trump. Here’s what, according to Dowd and Sekulow, Mueller had told them on January 8 he wanted to ask about.

  1. Former National Security Advisor Lt. Gen. Michael Flynn — information regarding his contacts with Ambassador Kislyak about sanctions during the transition process;
  2. Lt. Gen. Flynn’s communications with Vice President Michael Pence regarding those contacts;
  3. Lt. Gen. Flynn’s interview with the FBI regarding the same;
  4. Then-Acting Attorney General Sally Yates coming to the White House to discuss same;
  5. The President’s meeting on February 14, 2017, with then-Director James Comey;
  6. Any other relevant information regarding former National Security Advisor Michael Flynn;
  7. The President’s awareness of and reaction to investigations by the FBI, the House and the Senate into possible collusion;
  8. The President’s reaction to Attorney General Jeff Sessions’ recusal from the Russia investigation;
  9. The President’s reaction to Former FBI Director James Comey’s testimony on March 20, 2017, before the House Intelligence Committee;
  10. Information related to conversations with intelligence officials generally regarding ongoing investigations;
  11. Information regarding who the President had had conversations with concerning Mr. Comey’s performance;
  12. Whether or not Mr. Comey’s May 3, 2017, testimony lead to his termination;
  13. Information regarding communications with Ambassador Kislyak, Minister Lavrov, and Lester Holt;
  14. The President’s reaction to the appointment of Robert Mueller as Special Counsel;
  15. The President’s interaction with Attorney General Sessions as it relates to the appointment of Special Counsel; and,
  16. The statement of July 8, 2017, concerning Donald Trump, Jr.’s meeting in Trump Tower.

On March 5, Trump’s lawyers had a heated meeting with Mueller’s team, where Mueller floated a subpoena. In the wake of that meeting, Mueller provided a new list of topics of interest, which resulted in the Sekulow list leaked a month ago.

In the wake of the testy March 5 meeting, Mueller’s team agreed to provide the president’s lawyers with more specific information about the subjects that prosecutors wished to discuss with the president. With those details in hand, Trump lawyer Jay Sekulow compiled a list of 49 questions that the team believed the president would be asked,

Here’s that list, as presented by the NYT (there are fewer than the 49 described by the NYT because of how they combined questions). I’ve bolded the ones that appear to be entirely new in the later list.

  1.  What did you know about phone calls that Mr. Flynn made with the Russian ambassador, Sergey I. Kislyak, in late December 2016?
  2. What was your reaction to news reports on Jan. 12, 2017, and Feb. 8-9, 2017?
  3. What did you know about Sally Yates’s meetings about Mr. Flynn?
  4. How was the decision made to fire Mr. Flynn on Feb. 13, 2017?
  5. After the resignations, what efforts were made to reach out to Mr. Flynn about seeking immunity or possible pardon?
  6. What was your opinion of Mr. Comey during the transition?
  7. What did you think about Mr. Comey’s intelligence briefing on Jan. 6, 2017, about Russian election interference?
  8. What was your reaction to Mr. Comey’s briefing that day about other intelligence matters?
  9. What was the purpose of your Jan. 27, 2017, dinner with Mr. Comey, and what was said?
  10. What was the purpose of your Feb. 14, 2017, meeting with Mr. Comey, and what was said?
  11. What did you know about the F.B.I.’s investigation into Mr. Flynn and Russia in the days leading up to Mr. Comey’s testimony on March 20, 2017?
  12. What did you do in reaction to the March 20 testimony? Describe your contacts with intelligence officials.
  13. What did you think and do in reaction to the news that the special counsel was speaking to Mr. Rogers, Mr. Pompeo and Mr. Coats?
  14. What was the purpose of your calls to Mr. Comey on March 30 and April 11, 2017?
  15. What was the purpose of your April 11, 2017, statement to Maria Bartiromo?
  16. What did you think and do about Mr. Comey’s May 3, 2017, testimony?
  17. Regarding the decision to fire Mr. Comey: When was it made? Why? Who played a role?
  18. What did you mean when you told Russian diplomats on May 10, 2017, that firing Mr. Comey had taken the pressure off?
  19. What did you mean in your interview with Lester Holt about Mr. Comey and Russia?
  20. What was the purpose of your May 12, 2017, tweet?
  21. What did you think about Mr. Comey’s June 8, 2017, testimony regarding Mr. Flynn, and what did you do about it?
  22. What was the purpose of the September and October 2017 statements, including tweets, regarding an investigation of Mr. Comey?
  23. What is the reason for your continued criticism of Mr. Comey and his former deputy, Andrew G. McCabe?
  24. What did you think and do regarding the recusal of Mr. Sessions?
  25. What efforts did you make to try to get him to change his mind?
  26. Did you discuss whether Mr. Sessions would protect you, and reference past attorneys general?
  27. What did you think and what did you do in reaction to the news of the appointment of the special counsel?
  28. Why did you hold Mr. Sessions’s resignation until May 31, 2017, and with whom did you discuss it?
  29. What discussions did you have with Reince Priebus in July 2017 about obtaining the Sessions resignation? With whom did you discuss it?
  30. What discussions did you have regarding terminating the special counsel, and what did you do when that consideration was reported in January 2018?
  31. What was the purpose of your July 2017 criticism of Mr. Sessions?
  32. When did you become aware of the Trump Tower meeting?
  33. What involvement did you have in the communication strategy, including the release of Donald Trump Jr.’s emails?
  34. During a 2013 trip to Russia, what communication and relationships did you have with the Agalarovs and Russian government officials?
  35. What communication did you have with Michael D. Cohen, Felix Sater and others, including foreign nationals, about Russian real estate developments during the campaign?
  36. What discussions did you have during the campaign regarding any meeting with Mr. Putin? Did you discuss it with others?
  37. What discussions did you have during the campaign regarding Russian sanctions?
  38. What involvement did you have concerning platform changes regarding arming Ukraine?
  39. During the campaign, what did you know about Russian hacking, use of social media or other acts aimed at the campaign?
  40. What knowledge did you have of any outreach by your campaign, including by Paul Manafort, to Russia about potential assistance to the campaign?
  41. What did you know about communication between Roger Stone, his associates, Julian Assange or WikiLeaks?
  42. What did you know during the transition about an attempt to establish back-channel communication to Russia, and Jared Kushner’s efforts?
  43. What do you know about a 2017 meeting in Seychelles involving Erik Prince?
  44. What do you know about a Ukrainian peace proposal provided to Mr. Cohen in 2017?

The additions are instructive. The one new bit on Flynn involves Trump’s offer of a pardon.

The new bits on obstruction pertain to ongoing efforts to obstruct the investigation, including consideration of firing Mueller and ongoing efforts to discredit Jim Comey and Andrew McCabe.

But the most interesting are the 14 or so questions on Trump’s involvement in and awareness of election tampering. Given the timing of Rick Gates’ plea on February 23 and the subsequent focus on Roger Stone and Michael Cohen, I’m particularly interested in the addition of questions involving both of them (as well as the question about Manafort’s efforts to get Russia’s help).

Trump would have been far better off having an interview in January. Because the questions are getting harder — and Mueller’s interest in his involvement in “collusion” is getting more apparent.

How the Mueller Team Thinks of ConFraudUs

I’ve written before how I think Conspiracy to Defraud the United States (ConFraudUs) provides Mueller a way to charge a variety of conduct with conspiracy charges that additional defendants can be dropped into, all of which might form an interlocking series of ConFraudUs indictments that map out the entire election crime. In this post, I observed how the charge worked in the Manafort and Internet Research Agency indictments. In this one, I described how it might work to charge Jared (and everyone else) for pretending to be serving US foreign policy interests while actually making bank.

In response to a challenge from Concord Consulting in the IRA indictment, the Mueller team has laid out how they think of ConFraudUs. The filing hints at how and why they may be using this as a backbone for their pursuit of the 2016 election tampering culprits.

In a blustery motion claiming that Mueller only charged Concord with ConFraudUs because he needed to charge some Russians, any Russians, to justify his appointment, Concord demanded access to the grand jury instructions on the ConFraudUs charge, claiming that the charge requires willfulness. (Click through to read the footnotes here, which include a gratuitous Casablanca reference and complaints about US tampering in elections.)

Now, some twenty years later, the Deputy Attorney General acting for the recused Attorney General has rejected the history and integrity of the DOJ, and instead licensed a Special Counsel who for all practical political purposes cannot be fired, to indict a case that has absolutely nothing to do with any links or coordination between any candidate and the Russian Government.2 The reason is obvious, and is political: to justify his own existence the Special Counsel has to indict a Russian – any Russian. 3 Different from any election case previously brought by the DOJ, the Special Counsel used the catch-all provision of the federal criminal code, the defraud prong of conspiracy, 18 U.S.C. § 371, to allege that a foreign corporate defendant with no presence in the United States and having never entered the United States, engaged in the make-believe crime of conspiring to “interfere” in a United States election. Indictment, Dkt. 1, ¶ 2. Presumably to bolster these allegations (which have a strong odor of hypocrisy) 4 , the Special Counsel has pleaded around the knowledge requirements of all related substantive statutes and regulations by asserting that Concord conspired to obstruct the functions of the United States Departments of Justice (“DOJ”) and State (“DOS”), and the Federal Election Commission (“FEC”).5 But violations of the relevant federal campaign laws and foreign agent registration requirements administered by the DOJ and the FEC require the defendant to have acted “willfully,” a word that does not appear anywhere in Count One of the Indictment. See 52 U.S.C. § 30109(d) and 22 U.S.C. § 618(a).6

Violations of the federal campaign laws and foreign agent registration … require the defendant to have acted “willfully,” say the Russians who trolled our election.

That’s true, Mueller concedes.

Then points out they haven’t charged those underlying crimes. They’ve just charged ConFraudUs. And the standard for ConFraudUs is “intent to defraud the US;” there’s no “willfullness” standard required.

As an initial matter, the government agrees that the plain language of the statutory provisions Concord Management has identified in the Federal Election Campaign Act, 52 U.S.C. § 30109(d), and the Foreign Agent Registration Act 22 U.S.C. § 618(a), set forth a “willfulness” standard with respect to knowledge. The government, however, did not charge Concord Management with substantive violations of FECA, FARA, or for that matter, visa fraud — an offense that requires only a “knowing” standard. See 18 U.S.C. § 1546. Concord Management is alleged to have conspired to defraud the United States, in violation of 18 U.S.C. § 371. As described in more detail below, the mens rea for that offense is intent to defraud the United States, not to willfully commit substantive offenses that are not charged in the Indictment

Which brings them to where they lay out precisely what ConFraudUs requires:

The essential elements of a conspiracy to defraud the United States consist of the following: (1) two or more persons formed an agreement to defraud the United States; (2) the defendant knowingly participated in the conspiracy with the intent to defraud the United States; and (3) at least one overt act was committed in furtherance of the common scheme. See United States v. Treadwell, 760 F.2d 327, 333 (D.C. Cir. 1985); United States v. Coplan, 703 F.3d 46, 61 (2d Cir. 2012), cert. denied, 571 U.S. 819 (2013). The agreement to defraud must be one to obstruct a lawful function of the Government or its agencies by deceitful or dishonest means. Coplan, 703 F.3d at 60–61; see United States v. Davis, 863 F.3d 894, 901 (D.C. Cir. 2017) (explaining that a charge under the defraud clause requires proof that a defendant “knowingly agreed with [the codefendant] (or another person) to defraud the federal government of money or to deceptively interfere with the lawful functions of” a particular government agency). The mens rea is a specific intent to defraud the United States, not willfulness. See United States v. Khalife, 106 F.3d 1300, 1303 (6th Cir. 1997), cert. denied, 522 U.S. 1045 (1998); United States v. Jackson, 33 F.3d 866, 871–72 (7th Cir. 1994), cert. denied, 514 U.S. 1005 (1995). The mens rea requirements of particular substantive crimes, in short, do not carry over to defraud-clause prosecutions. See, e.g., Jackson, 33 F.3d at 870–72 (government need not establish the level of willfulness required to prove a “structuring” offense when it charges the same behavior as a conspiracy to defraud); Khalife, 106 F.3d at 1303 (same).4

So,

(1) two or more persons formed an agreement to defraud the United States;

(2) [each] defendant knowingly participated in the conspiracy with the intent to defraud the United States; and

(3) at least one overt act was committed in furtherance of the common scheme.

Basically, the Mueller team argues, Concord and all its trolls only have to agree to pull a fast one on the American electoral regulatory apparatus, with at least one overt act like … a trollish tweet. They don’t have to individually willfully violate the underlying law.

We’ll see what Judge Dabney Friedrich has to say about this argument (though as far as I understand it, the Mueller argument is not at all controversial). As a reminder, Rick Gates has already pled guilty to this charge.

However Friedrich rules, however, you can how this would apply to a number of other known actions. Did Don Jr conspire with Aras Agalarov and his surrogates to defraud the fair management of elections when he stated, in the context of receiving dirt on Hillary Clinton, that he would revisit the Magnitsky Act sanctions when his father won the election (several witnesses gave sworn testimony that this happened)? Did Roger Stone conspire with Guccifer 2.0 when they (as reported but not yet substantiated with evidence) discussed how to find Russian hackers who had stolen Hillary’s emails? Did Brad Parscale conspire with Cambridge Analytica, not just to permit foreigners to illegally provide assistance to the Trump campaign, but also to use stolen models to heighten discontent among Democratic voters?

Importantly, Mueller would not have to prove that all participants in all these conspiracies had the mens rea required by the underlying charges. It’s enough that they’re trying to deceitfully thwart the lawful functioning of a government process.

Obviously, Mueller hasn’t yet charged any of these ConFraudUs conspiracies, if indeed they happened. But you can see why he might use ConFraudUs to do so.

Rudy 9/11’s Latest Outrageous Attempts to Obstruct the Mueller Probe

I’ve been noting Trey Gowdy’s expressed support for Mueller’s investigation since he announced his retirement back in February.

On Sunday, on one of the Sunday shows, Trey—I think it was a Fox show—Trey Gowdy said, “You know, this memo should come out. It’s important. But my side should not use it to undermine the Mueller investigation.” And the reason he gave is that what is not being seen about the Mueller investigation is there’s a whole counterintelligence side to it. There’s a whole side of it investigating how the Russians tampered in our election. And according to Gowdy, who has seen these underlying documents, he thinks that’s an important and legitimate investigation.

This Sunday, in the wake of last week’s briefing on Stefan Halper’s role in the investigation of Carter Page and George Papadopoulos (and, possibly, other aspects of the Russian investigation), Gowdy did it again, explaining that the FBI did precisely what they should have done in response to identifying counterintelligence concerns in Trump’s campaign.

GOWDY: [I]t was President Trump, himself who said, number one, “I didn’t collude with the Russia but if anyone connected with my campaign did, I want the FBI to find that out.” It looks to me like the FBI was doing what President Trump said I want you to do, find it out. He is not the target. So, when Schiff and others don’t make that clear, they’re doing the disservice to our fellow citizens. He is not the target.

MACCALLUM: But this raises the question that the president raised in this — in this one of those tweets, there were a lot of them. In which we talked about quite a bit here last week, is if that were the case, why didn’t they give him a little briefing?

So, here is what we found out. You know, we do have somebody who asked some questions of George Papadopoulos. We do have somebody who’s asked questions of Carter Page. Here’s what you need to know.

GOWDY: I think, defensive briefings are done a lot. And why the Comey FBI didn’t do it? I don’t know, but Chris Wray and Rod Rosenstein have at least made it clear to us, Donald Trump was never the target of the investigation. He is not the current target of the investigation. Now, keep in mind that can all change depending on what a witness says.

But as of now, I think Chris Wray and Rod Rosenstein are stunned whenever people think Trump is the target of their investigation. I’ll leave it up to them how to brief the president, or how to brief his lawyers.

MACCALLUM: Was that point of view that you’re talking about right now, was that strengthened when you went into this briefing last week?

GOWDY: Yes, I am — I am even more convinced that the FBI did exactly what my fellow citizens would want them to do when they got the information they got. And that it has nothing to do with Donald Trump.

MACCALLUM: All right. So, given the things that were over here on your right hand, all the frustrations, do you think it’s problematic the way the president has — is tweeting about this all the time? Because he feels like he needs to get — he needs to vent. He’s got to get his message out there. Is it legally problematic in your mind what he is doing?

GOWDY: I think any time you create prior statements, you give Mueller or other folks a chance to question you on them and ask what was your factual basis, why did you say that? The president should have access to the best legal minds in the country. And I think he should take advantage of those. And he has got some really good communicators that are on his staff and at his — at his call. If I were his lawyer, and I never will be, I would tell him to rely on his lawyers and his comes folks.

MACCALLUM: All right, here is one of them, Rudy Giuliani, speaking with Bill Hemmer over the holiday weekend. Watch this.

(BEGIN VIDEO CLIP)

BILL HEMMER, FOX NEWS CO-ANCHOR: What’s wrong with the government trying to figure out what Russia was up to?

RUDY GIULIANI, ATTORNEY TO PRESIDENT DONALD TRUMP: Nothing wrong with the government doing that. Everything wrong with the government spying on a candidate of the opposition party, that’s a Watergate, a spy gate. I mean, and without any warning to him. And now, to compound that, to make it into a criminal investigation bill? That’s why this is a rigged investigation.

(END VIDEO CLIP)

GOWDY: There are two things wrong with what the former U.S. attorney said. Number one, no one knows whether this is a criminal investigation. Mueller was told to do a counterintelligence investigation into what Russia did. And number two, President Trump himself in the Comey memos said if anyone connected with my campaign was working with Russia, I want you to investigate it.

And it sounds to me like that is exactly what the FBI did, I think when the president finds out what happened, he is going to be not just fine, he’s going to be glad that we have an FBI that took seriously what they heard. He was never the target, Russia is the target.

MACCALLUM: So, it sounds to me as if you would advise him that there’s no problem with him sitting down with Robert Muller.

GOWDY: Oh, absolutely no. I have always said, I think you want to sit down with Bob Mueller. You’ve told us publicly there was no collusion, you’ve told us publicly there was no obstruction. Say in private what you’ve said publicly, limit the scope to exactly what the — what the Mueller memo is, but if he were my client and I’d say if you’ve done nothing wrong, then you need to sit down and tell Mueller what you know.

Mind you, Gowdy wasn’t the only one who said this. Mitch McConnell came out of the briefing (I’m still not sure whether Gowdy was in the Gang of Eight briefing or just the one with Devin Nunes) and said he supports Mueller. Nunes has gone silent, either because he, too, believes the FBI’s actions were proper, or because because he attended a briefing with the rest of the Gang of Eight, he’ll be more constrained about any bullshit claims he makes.

Nevertheless, Rudy is now targeting Gowdy in the same way Republicans have targeted Adam Schiff for supporting the investigation, even attacking him for running a never-ending investigation into Hillary.

Giuliani lashed out at Gowdy — who isn’t running for reelection — for his comments, saying that his constituents “would probably be outraged at what he’s doing.”

He then veered off-topic, adding that those constituents “probably want to figure out what the hell he did with Benghazi.” Gowdy was the chair of the House committee that looked into the attack on the US diplomatic mission in Benghazi, Libya, that left four dead, including Christopher Stevens, the US Ambassador to Libya.

“He sure screwed that one up. You got four families that do not think that Trey Gowdy did his job,” Giuliani said.

Rudy did something else in that interview with BuzzFeed’s Chris Geidner that Geidner didn’t emphasize, but deserves closer focus. He asserted that Trump’s legal team would still demand to see the files on Halper.

“We want to review all of the documentation they have for the investigation of what they call the spying on Russia and the spying — that led to the spying on the Trump campaign,” he said. He said the president’s attorneys have no plans to ask for the alleged informant’s identity — which has been reported in multiple outlets to be Professor Stefan Halper.

“Once we see what they’ve revealed,” Giuliani said of the documents, “I think we’ll need his identity even less, because I think it revealed bullshit. Which is why they don’t want to show it to us. This informant was a total waste of money, a total lark, a complete attempt to try to frame Trump, and it’s gonna show that he did nothing wrong. And that’s why they concealed it for a year.”

As Adam Schiff noted, this move demolishes any claim that the document request is about oversight; it makes it clear this request — and, I agree with Schiff, the prior ones — are all about giving Trump a peek into the investigation.

“Rudy Giuliani has effectively admitted that [House Intelligence Committee] Chairman [Devin] Nunes’ demand for information about the investigation is a charade designed only to obtain material for the Trump legal defense team,” Schiff said. “He now seeks to use the improper effort to obtain information about an investigation implicating the president as a justification to refuse to allow the president to testify.

Meanwhile, I’ve got new questions about whether Trump already has gotten information on the investigation.

Among the things Rudy has said of late, he mocked the Internet Research Agency indictment, suggesting it’s phony.

Even those Russians, the phony indictment they have of the Russians who will never come here for trial, they colluded with each other. Russians colluding. Oh wow that’s big news. Russians have been colluding since the Soviet Union to interfere in our elections.

Mind you, as I’ve noted, Yevgeniy Prigozhin’s firm, Concord Consulting, is mounting a defense. Even there, Concord and the government just jointly proposed a schedule to lead towards trial (which would take place sometime after November). So that’s happening, at least until the US butts up against evidence it refuses to share even with Concord’s US lawyers (the parties are still discussing a protection order now).

But I’m interested in Rudy’s comment for another reason. While a lot of attention has been paid to the news that the government and George Papadopoulos have moved towards sentencing, a similar announcement came this week in the Richard Pinedo case — the guy who sold identities that IRA used to create troll accounts. I have no idea what the Papadopoulos move means, but with Pinedo, I’ve wondered what cooperation he offered to get the plea in the first place. And I’ve wondered whether the move to sentencing actually means Mueller has finished any investigation of Campaign Official 1, 2, and 3 named in the indictment.

Which is to say that I find the timing of Rudy’s mockery of the IRA indictment, which is a real description of the damage Russia did, to be of interest.

On Those Five AT&T Phones Manafort Wanted To Learn About

Yesterday, Amy Berman Jackson rejected Paul Manafort’s effort to get the last of the affidavits used to get warrants against him unsealed. The challenge started as an effort to get seven warrant affidavits unsealed; along the way, Manafort got a completely unredacted copy of the affadavit behind the search of his condo (which would have been the first one reflecting the government’s knowledge of his role in the June 9 meeting), and the name of a confidential source — actually a known former employee of his — behind the warrant to search his storage facility.

Along with some other government disclosure, that left two affidavits. A warrant to search his email account.

In the Matter of the Search of Information Associated with Email Account [email protected] (D.D.C.) (17-mj-00611).

Based on the DC docket, I think this warrant would have been obtained sometime between August 14 and 18 of last year. This is the email address that Mueller’s team caught Manafort using to conduct ongoing discussions with Konstantin Kilimnik last November (though Kilimnik’s side would have been accessible via a Section 702 served on Google).

The other warrant is one to obtain information relating to five AT&T phones.

In the Matter of the Search of Information Associated with Five Telephone Numbers Controlled by AT&T (D.D.C.) (18-sc-609).

In her order, ABJ explained that the government is only withholding the names of confidential sources and stuff pertaining to investigations other than the money laundering investigations currently pending against Manafort.

The government argues that the information that is currently being withheld fell within two categories: the names of confidential sources who had provided information to the government, and information relating to ongoing investigations that does not bear upon the allegations in either of the two cases now pending against Manafort.

An earlier filing explained that the second, AT&T, affidavit was obtained on March 9 and it covers “ongoing investigations that are not the subject of either of the current prosecutions involving Manafort.”

On April 4, 2018, the government produced in redacted form, and for the first time, an affidavit supporting a search warrant that had been obtained on March 9, 2018. That affidavit likewise contains redactions—albeit more substantial ones—relating to ongoing investigations that are not the subject of either of the current prosecutions involving Manafort.

As I believe others pointed out at the time, this would put it just a few weeks after Rick Gates pled on February 23, and so might reflect information obtained with his cooperation.

In her ruling, ABJ cited the last week’s hearing, suggesting that the phones still redacted in the affidavit materials might not be Manafort’s.

THE COURT: What if — I think one of them is about phone information. What if the redacted phones are not his phone?

MR. WESTLING: I don’t have a problem with that. I think we’re talking about things that relate to this defendant in this case.

Since just before this phone data was obtained, Mueller’s team has focused closely on Roger Stone, starting with the Sam Nunberg meltdown on March 5, including a retracted claim that Trump knew of the June 9 meeting the week beforehand (there’s a phone call Don Jr placed on June 6 that several committees think may have been to Trump, something Mueller presumably knows). Ted Malloch was stopped at the border and interviewed (and had his phone seized) on March 30, and scheduled for a since aborted grand jury appearance on April 13. Stone assistants John Sullivan and Jason Kakanis were subpoenaed earlier in May. Of particularly interest, Michael Caputo was interviewed about meetings he and Stone had with Gates before and during the campaign.  Stone’s finances have been probed. Stone says he expects an indictment, but claims it would pertain to issues unrelated to colluding with Russia.

These details may, of course, be entirely unrelated. But Mueller sure has focused closely on Stone in the wake of obtaining information on those phones that don’t belong to Manafort.

Meanwhile, Manafort has started a fund to pay what must be astronomical legal bills. He may make bail this week, or Mueller’s team may move the goalposts.

Update: Jason Sullivan appeared before the grand jury today (Friday June 1), though he was originally subpoenaed to appear on May 18. That, plus the Ted Malloch detail, suggests Mueller is juggling the Stone witnesses.

Three Data Points on George Papadopoulos

The frothy right has grabbed ahold of this Chuck Ross story, thinking it helps their case, without realizing that the main finding in it actually confirms something Adam Schiff noted in February (which Ross struggled to understand at the time). So I’d like to point out what Papadpoulos said when.

May 10: “Russians might use material that they have on Hillary Clinton in the lead-up to the election, which may be damaging”

Per Ross’ quotes from Alexander Downer’s April 28 interview, here’s what Papadopoulos told Downer on May 10, 2016.

“During that conversation, [Papadopoulos] mentioned the Russians might use material that they have on Hillary Clinton in the lead-up to the election, which may be damaging,” Downer told The Australian.

Downer said he felt the information “seemed quite interesting” and “was worth reporting.”

That’s mostly consistent with a redacted passage of the Schiff memo, which as I noted at the time must say something to the effect of Russia said it had materials that that it would release to help Trump, though given the public record I suspect there’s a dispute about whether hurting Hillary in a two-person race amounts to helping Trump.

George Papadopoulos revealed [redacted] that individuals linked to Russia, who took interest in Papadopoulos as a Trump campaign foreign policy adviser, informed him in late April 2016 that Russia [two lines redacted]. Papadopoulos’s disclosure, moreover, occurred against the backdrop  of Russia’s aggressive covert campaign to influence our elections, which the FBI was already monitoring.

That Papadopoulos had not told Downer in May they were emails was made clear by the next line in the Schiff memo, which made it clear HPSCI (but not the US government) only learned Russians had said the damaging material was email (which, if Papadopoulos can be trusted, he took to be the 30,000 emails that Hillary deleted, which the Russians would only have had if they had previously hacked her) when Papadopoulos’ plea was released.

We would later learn in Papadopoulos’s plea that the information the Russians could assist by anonymously releasing were thousands of Hillary Clinton emails.

In any case, Downer’s public statements, as summarized by Ross, confirm what Schiff claimed back in February: Papadopoulos told a virtual stranger in May 2016 that someone had recently approached him, a newly-minuted Trump advisor, and told him Russia had damaging material on Hillary that they were thinking of releasing closer to the election.

Downer makes it clear he reported the Papadopoulos within 48 hours because it “seemed quite interesting” and “was worth reporting.” The Australians didn’t tell the US, however, until July, after the DNC release made it look like Papadopoulos had predicted that event several months earlier. In response, the FBI opened a CI investigation, and Peter Strzok  got on a plane and interviewed Downer. It’s possible he checked in with Stefan Halper, who had been chatting up Carter Page, about whom the FBI had had enough concern to interview him back in March, for a few weeks. It’s also possible Strzok asked the Brits what they knew about Joseph Mifsud (or it’s possible NSA started targeting Mifsud and captured his communications with the Russians). It’s also possible that the anonymous “Trump campaign policy adviser [who] testified [to SJC] that Mr. Papadopoulos informed him that he had information on Hillary Clinton from the Russians,” went to the FBI in the wake of the DNC release, so before the FBI (presumably) asked Halper to ask Papadopoulos more questions.

Whatever happened, in September, Halper met with Sam Clovis and from that basically created a reason to invite Papadopoulos to London to do research.

Mid-September: “Hacking emails would be treason”

In mid-September, after his assistant Azra Turk had already broached the subject (I’m not aware that Ross has ever revealed how Papadopoulos responded to her) Halper asked Papadopoulos whether he was involved in the release of the emails. According to one version among several, Ross reports that Papadopoulos said that “hacking” the emails would be treason.

Sources familiar with Papadopoulos’ version of events say that during one conversation, Halper asked Papadopoulos whether he was involved in the release of DNC emails. Papadopoulos denied it, telling Halper that hacking emails would be treason.

Of course, that answer is nonsensical. Hacking emails is a CFAA violation, among other things. Absent knowing cooperation with Russian spies, it’s not treason. Moreover, as Ross depicts the question, Halper asked if he “was involved in the release of DNC emails,” which is different than hacking them. Did Papadopoulos instead suggest that being “involved in the release of DNC emails” hacked by Russia would be treason?

It’s a good question because, in spite of that answer and his subsequent lies to FBI, Papadopoulos doesn’t believe he “colluded” with Russia because he, “did not see, handle or disseminate Clinton emails, according to the source with information on the Downer meeting.” Note, he’s pointedly not denying that he told the campaign about the damaging material in the context of efforts to set up increasingly senior-level  meetings with the Russians.

January 27, 2017: Mifsud “actually told [Papadopoulos] that the Russians had emails of Clinton. That guy told me [the Russians] have dirt on her [and that] they have thousands of emails.”

When the FBI interviewed Papadopoulos on January 27, 2017, he provided a detail he hadn’t to Downer (but which FBI may have already confirmed elsewhere): that Mifsud had specified, even before the Democrats knew about it, that the Russians had thousands of emails.

Now, at least according to the public record, up until this point (and even later), the FBI hadn’t done one of the most basic things they do in investigations, which they can do on a relevance standard (meaning the person in question need not be suspected of any wrong-doing). They had not yet obtained Papadopoulos’ call records, nor had they searched already collected Section 702 data to see if Papadopoulos had had communications with any foreigner already under a full FBI investigation. The latter would have definitely alerted the FBI to something that Papadopoulos hid in his interviews with the FBI (and tried to hide by deleting his Facebook account, something Ross always leaves out of his efforts to spin Papadopoulos’ honesty): in addition to Mifsud and the fake Putin niece, he had been communicating with (and passing communications onto the campaign) Ivan Timofeev, someone Papadopoulos believed to be employed by the Russian government.

DOJ’s public Papadopoulos documents are curiously silent about whether he admitted that Mifsud had told him the Russians planned on releasing the emails to hurt Hillary (though I guarantee you his case file makes it clear).

Amid the squeals of surveillance, that point is worth noting. Again, at least according to the public record, it was some time after Papadopoulos had told Downer that the Russians had damaging material they might release closer to the election to hurt Hillary and after Papadopoulos had told the FBI that the damaging material in question was “thousands of emails” before the FBI took one of the most basic investigative steps, figuring out whom Papadopoulos had been talking to during that period. Though FBI put a preservation order on his campaign cell phone in March, it’s even possible, given Papadopoulos’ arrest in the wake of the disclosure of the June 9 meeting earlier in July 2017, that FBI didn’t take that step until after the later Russian offer of dirt on Hillary became known.

Trump may well think this amounts to spying. But given the year of concern about Russian meddling, it looks even more like an effort to bend over backwards to avoid touching materials that might impact campaign issues.

Update: Thanks to Mark S for this link to the Downer piece. Ross did not include this stronger language that the material definitely would be damaging to Clinton. Note the bolded stronger language.

Of the conversation at the upmarket Kensington Wine Bar, Downer recalls: “We had a drink and he (Papadopoulos) talked about what Trump’s foreign policy would be like if Trump won the election.

“He (Trump) hadn’t got the nomination at that stage. During that conversation he (Papadopoulos) mentioned the Russians might use material that they have on Hillary Clinton in the lead-up to the election, which may be damaging.’’

Did Downer think, “Oh boy, this is intriguing?”

“Well, it was worth reporting,’’ he said. “It wasn’t the only thing we reported. We reported (back to Australia) the following day or a day or two after … it seemed quite interesting.’’

Did you realise you were one of the first people to have known about this dirt?

Downer doesn’t hesitate: “He didn’t say dirt, he said material that could be damaging to her. No, he said it would be damaging. He didn’t say what it was.’’

[snip]

“For us we were more interested in what Trump would do in Asia. By the way, nothing he (Papadopoulos) said in that conversation indicated Trump himself had been conspiring with the Russians to collect information on Hillary Clinton. It was just that this guy (Papadopoulos) clearly knew that the Russians did have material on Hillary Clinton — but whether Trump knew or not? He didn’t say Trump knew or that Trump was in any way involved in this. He said it was about Russians and Hillary Clinton; it wasn’t about Trump.”

[my emphasis]

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