Even before the Igor Danchenko trial, Billy Barr declared victory in defeat — arguing that if John Durham could just “fill in a lot of the blanks as to what was really happening,” the inevitable acquittal would still give Durham an opportunity to spin fairy tales about what Durham imagines happened.

“What these cases show is that these are difficult cases to win,” Barr said. “There’s a reason it takes so long, and you have to build up the evidence because at the end of the day, you’re going before these juries that aren’t going to be disposed to side with the people they view as supporting Trump.”

Danchenko is slated to go on trial next month on charges of lying to the FBI about the Steele dossier, for which he was the main source. The dossier claimed that Trump and members of his campaign and company had established extensive ties to the Russian government and had colluded during the 2016 election.

The trial is widely expected to be the final criminal prosecution from Durham’s investigation before he submits a report of his findings to Attorney General Merrick Garland.

But despite Durham’s limited success in the courtroom, Barr defended the investigation he ordered, saying the courtroom was allowing Durham to establish a record of what had occurred with the so-called Russiagate investigation.

“I think Durham got out a lot of important facts that fill in a lot of the blanks as to what was really happening,” Barr said. “My expectation is … the Danchenko trial will also allow for a lot of this story to be told, whether or not he’s ultimately convicted. I hope he’s convicted, but if he isn’t, I still think it provides an avenue to tell the story of what happened.”

Like an obedient puppy, Durham did use the trial as an opportunity to get extraneous details into the public record. On top of the $1 million dollar offer that Brian Auten said, vaguely, Christopher Steele might have gotten if he had corroborated the dosser — which has been treated like an FBI attempt to bribe a source for dirt on Trump and as the most exonerating possible detail, rather than an effort to investigate a real threat to the country — Durham went out of his way to give the full names of people at various meetings so Carter Page and Donald Trump can add them to lawsuits.

Mind you, along the way, the trial also revealed the FBI’s own assessment of Danchenko’s cooperation, which contributed to 25 investigations and which Barr burned to a crisp by exposing him, with Lindsey Graham’s help, as a source in 2020.

Q. And you were concerned, in July of 2020, when you became aware that Attorney General Barr was going to release a redacted version of Mr. Danchenko’s interview in January of 2017?

A. Yes.

Q. You were upset about that?

A. I was.

Q. You found out about that during a telephone conference, right?

A. I did.

Q. And you disagreed with that decision?

A. I did.

Q. The OIG had already completed a report on that investigation, correct?

A. Yes.

Q. And you thought that the release of that document was dangerous?

A. Yes.

Q. You even wrote up a memo of that phone call you were on in July of 2020 where you learned that they were going to publish a redacted version of his interview, correct?

A. I did.

[snip]

Q. And within an hour of Mr. Danchenko’s January interview being released to the senate judiciary committee, the senate judiciary committee, I won’t say who, released it to the public?

A. They did.

[snip]

Q. So, Agent Helson, you wrote in October of 2020 that from 2017 until present day, Mr. Danchenko had provided information on at least 25 FBI investigations assigned to at least six field offices?

A. Correct.

Q. In addition, he aided the United States Government by introducing the United States Government to a sub-source who had provided additional information separate to his report, correct?

A. Correct.

[snip]

Q. And it’s noted that he — his reporting contributed to at least 25 active FBI investigations.

[snip]

Q. In July of 2020 his identity became public after the release of the redacted version of his interview in January of 2017. Since that public disclosure, he has received threatening messages via social media and email. It’s resulted in significant damage to his reputation from false and baseless claims aimed to undermine his credibility. Those are your words, correct?

A. Correct.

Q. The Washington Field Office had assessed that this will have negative ramifications with respect to his ability to provide for his family via personal income for the foreseeable future, correct?

A. Correct.

Q. And while the FBI cannot promise complete anonymity to anyone who provides information, his identity became public only after the decision was made to release the redacted version of his interview, correct?

A. Correct.

Q. As a result of that act, his ability to continue to provide information viable to the FBI is diminished as is his ability to provide financial support to his family.

After the trial, Barr has been spending time on Fox News declaring — as much of the frothy right has — that this record, of how he deliberately harmed national security for revenge, exposed the corruption of what Barr calls “Russiagate,” the moniker frothers use to distract from the real substance of the Russian investigation.

I was disappointed, obviously. I think they did a good job prosecuting the case. Their ability to put evidence on, in a very difficult case, was limited by some rulings, and they weren’t able to get access to some witnesses overseas. So it was a tough — it was a tough case, so this should show people that it’s hard to win these cases, and sometimes it takes time to … to achieve justice. But as people say — I think Andy McCarthy said — the real public interest being served here was exposing the full extent of the corruption that was involved in Russiagate [sic] and the abuse by the FBI in that whole episode. And I think Durham is going to get a report out that’s gonna lay out all the facts.

Barr and everyone else are pointing to the exposures they and Durham made to justify their actions because they didn’t have evidence to support their claims.

Barr is whining that getting false statements convictions is hard. But Robert Mueller was able to prove that:

• Alex Van der Zwaan lied to cover up his efforts, in conjunction with Konstantin Kilimnik and Rick Gates, to cover up Manafort’s effort to spin Ukraine’s politicized Yulia Tymoshenko prosecution during the 2016 election
• George Papadopoulos lied to cover up his advance knowledge of the Russian effort to help Trump
• Mike Flynn lied to cover up his back channel calls with Sergei Kislyak to undermine Obama Administration policy (and also that he was a paid agent of Turkey during the campaign)
• Michael Cohen lied to hide the secret negotiations he had directly with the Kremlin about an impossibly lucrative real estate deal
• Paul Manafort conspired to cover up a front organization he set up with Konstantin Kilimnik and (at a preponderance of the evidence standard) lied to cover up his August 2016 meeting with Kilimnik
• Roger Stone lied and intimidated Randy Credico to cover up his real back channel to the Russian operation

I mean, Robert Mueller had no problem getting convictions, whether from guilty pleas, jury verdicts, or (in the case of Manafort’s lies about the August 2, 2016 meeting) a judge’s ruling.

One reason he had no problem was that these defendants were generally guilty of a lot more than just lying. It’s a lot easier to get Flynn to admit he lied about his back channel discussions with the Russian Ambassador, after all, when he was also on the hook for secretly being an agent of Turkey. It’s lot easier to get Papadopoulos to admit he lied about his advance warning of the Russian operation when he’s trying to stave off foreign agent charges tied to Israel. It’s a lot easier to get a jury verdict against Stone when he spent months plotting out his lies with multiple people on emails.

Mueller wasn’t able to get false statement verdicts from everyone, mind you. For example, because Steve Bannon and Erik Prince deleted their texts from early January 2017, Mueller did not charge them for false statements made to cover up meetings to set up a back channel with UAE and Russia. That’s one lesson that Durham should have taken to heart: Absent the mobile app records from Sergei Millian and Igor Danchenko, he had no way of knowing whether Millian called Danchenko on July 26, 2016.

That’s not the only evidentiary complaint Barr makes here. He’s complaining that Durham was unable to get hearsay admitted against Danchenko. He’s angry that Durham was not permitted to introduce Millian’s wild Twitter boasts as evidence without requiring Millian to show up and make those claims under oath. And he’s complaining that Durham wasn’t able to introduce his pee tape conspiracies without charging it.

But the most alarming of the former Attorney General’s statements — before and after the trial — embrace the notion that it is a proper goal of failed prosecutions to expose information that does not rise to the level of criminality.

As I’ll show in a follow-up, the Durham fiasco is part of a piece of Barr’s larger actions, both his other failed prosecutions — most notably, that of Greg Craig — but also his efforts to undo the convictions for which there was no reasonable doubt of guilt.

It’s not enough to talk about Durham’s unprecedented failure … it’s not enough to note that Durham and his prosecutors repeatedly failed to take basic investigative steps before embracing and charging conspiracy theories that juries didn’t buy … it’s not enough to note how, in an attempt to prove those conspiracy theories, Durham and his prosecutors and abused the prosecutorial system.

Durham’s entire project is a continuation of Barr’s unprecedented politicization of DOJ, one that not only places Republicans attempting to secretly work for hostile nations above the law, but that has made the country far less safe in many other ways.

It’s not just Durham prosecuted two men without any real hope of winning conviction, all to expose things that aren’t crimes. It’s that Billy Barr hired him to do just that.

Update: Judge Carl Nichols has sentenced Steve Bannon to four months in jail but has, as I predicted, stayed the sentence pending Bannon’s appeal. 

Twice in a matter of hours, filings were submitted to PACER in which lawyers interacting with Trump claimed the former President still exercised the power of President, well past January 20, 2021.

Accompanying a response to DOJ’s sentencing memo for Steve Bannon, for example, his lawyer Robert Costello submitted a declaration claiming that because Bannon had appeared before Congressional committees three times to testify (in part) about things he did while at the White House, he was right to expect that the January 6 Committee would treat him the same way — for events that long postdated his service in the White House — as they had for topics that included his White House service,

It’s not just that Costello is claiming that Bannon is claiming actions he took three years after he left the White House could be privileged. Just as crazy is Costello’s claim that this subpoena came “during the Trump Administration.”

Nuh uh. That guy was not President anymore in October 2021, when Bannon was subpoenaed.

More interesting are DOJ’s explanations for disputes between them and Trump over the documents he stole.

Best as I understand, this table shows the disputes, thus far.  (Trump’s attorney-client claims are those documents not mentioned here, though I’ve put question marks for the last three documents because there’s a Category C that may include some of those.)

As the government notes in its dispute of Trump’s claims, he identified most of these as personal, even documents that were solidly within his duties as President. This extends even so far as a letter the Air Force Academy baseball coach sent Trump, item 4.

The last of the nine documents (4) is a printed e-mail message from a person at one of the military academies addressed to the President in his official capacity about the academy’s sports program and its relationship to martial spirit. The message relates at a minimum to the “ceremonial duties of the President” (44 U.S.C. § 2201(2)) if not to his Commander-in-Chief powers.

The most important of those may be the clemency packages.

Six of the nine documents (2, 3, 7, 8, 12, 13), are clemency requests with supporting materials and relate to the President’s “Power to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.” U.S. CONST. Art. II, § 2, cl. 1. Those requests were received by Plaintiff in his capacity as the official with authority to grant reprieves and pardons, not in his personal capacity.

For reasons I’ll return to, I think DOJ now believes that whatever document had classification markers in the packet that included clemency for Roger Stone and some kind of information about a French President is no longer classified. So the determination regarding whether Trump can treat pardons as personal gifts is likely to affect the ultimate resolution regarding the Stone clemency document, too.

But for those before the parties, Trump is claiming that people made personal requests for pardons of him, not requests to him in his role as President. That’s a dangerous premise.

More contentious still are Trump’s claims of Executive Privilege over four documents. Two pertain to his immigration policies. With that claim of Executive Privilege, he’s basically attempting to keep deliberative discussions about immigration out of the hands of the government.

Crazier still, though, are two documents that must reflect the operation of his post-presidential office. Both sides agree that item 15 — “meeting requests for your approval” — and item 16 — “Molly’s questions for POTUS approval” — are personal, even in spite of the reference to “POTUS.” Likely, they reflect the fact that Molly Michael, who had been Trump’s Executive Assistant at the end of his term, and who continued to work for him at Mar-a-Lago, continued to refer to him as “POTUS” after he had been fired by voters. That’s not unusual — all the flunkies surrounding Trump still call him President. But that means those two documents actually reflect the workings of Trump’s office since he left the White House.

And Trump has claimed Executive Privilege over them.

That’s ridiculous. But it’s tantamount to trying to suggest that anything involving him, personally, still cannot be accessed for a criminal investigation. Or maybe it reflects that he really, really doesn’t want the government to retain these two seemingly innocuous records.

As DOJ notes in their filing, even if both sides agree that these records are personal, DOJ can still argue they have cause to retain the documents for evidentiary purposes.

Although the government offers its views on the proper categorization of the Filter A documents as Presidential or personal records as required by the Order Appointing Special Master (ECF 91, at 4) and Amended Case Management Plan (ECF 125, at 4), that categorization has no bearing on whether such documents may be reviewed and used for criminal investigative purposes and does not dictate whether such documents should be returned to Plaintiff under Criminal Rule 41(g). Personal records that are not government property are seized every day for use in criminal investigations. And the fact that more than 100 documents bearing classification markings were commingled with unclassified and even personal records is important evidence in the government’s investigation in this case.

As DOJ noted in their 11th Circuit Appeal (filed after reviewing these records),

Moreover, unclassified records that were stored in the same boxes as records bearing classification markings or that were stored in adjacent boxes may provide important evidence as to elements of 18 U.S.C. § 793. First, the contents of the unclassified records could establish ownership or possession of the box or group of boxes in which the records bearing classification markings were stored. For example, if Plaintiff’s personal papers were intermingled with records bearing classification markings, those personal papers could demonstrate possession or control by Plaintiff.

Second, the dates on unclassified records may prove highly probative in the government’s investigation. For example, if any records comingled with the records bearing classification markings post-date Plaintiff’s term of office, that could establish that these materials continued to be accessed after Plaintiff left the White House.

These two documents, which both sides seem to agree reflected Trump’s office workings after he had left the Presidency, were probably intermingled with classified records. As DOJ notes, that likely shows that either Trump and/or Molly Michael had access to these classified records after neither had clearance to do so anymore.

Which might explain why Trump is trying to withhold these documents: because it is evidence not just that he continued to access stolen classified documents after he left the Presidency, but that he treated classified documents in such a way that someone else was able to too, which could be charged as another crime under the Espionage Act.

As I noted, Trump is now claiming that DOJ got some of these wrong, so it’s possible they’re rethinking their claim that Trump continued to be entitled to Executive Privilege as a private citizen. The claim of Executive Privilege over something both sides agree doesn’t pertain to the Presidency would just be another form of obstruction.

But in all phases of his post-Presidential efforts to avoid accountability, all those around Trump continue to indulge his fantasy that he still retains the prerogatives of the office.

Update: Trump has filed his dispute about DOJ’s filing. The highlighted cells in the table above reflect the changed determinations. Notably, Trump has withdrawn privilege claims regarding the likely office records that post-date his move to MAL. But he added EP designations to clemency packages.

My suspicion is that this reflects a changed strategy about how to avoid accountability for the most things, not any real dispute raised before DOJ filed.

At the beginning of a status hearing before Raymond Dearie the other day, Jim Trusty suggested they had until November 12 to submit their designations on privilege for the remaining 21,792 pages of documents. DOJ attorney Julie Edelstein corrected him, and said their deadline was November 2.

Per Aileen Cannon’s order throwing out much of Dearie’s proposed work plan and extending deadlines, that appears to be right. That order set that deadline for 21 days after DOJ issued a notice of completion to indicate Trump had the documents with a spreadsheet to track everything.

No later than twenty-one (21) calendar days after the receipt of Defendant’s Notice of Completion, Plaintiff shall provide the Special Master and Defendant with one comprehensive, annotated copy of the spreadsheet described above that specifies, for each document, whether Plaintiff asserts any of the following:

a. Attorney-client communication privilege;

b. Attorney work product privilege;

c. Executive Privilege;

d. Presidential Record within the meaning of the Presidential Records Act; and

e. Personal record within the meaning of the Presidential Records Act.

Plaintiff’s designations shall be on a document-by-document basis.

On paper, at least, it seems that Edelstein is correct. DOJ submitted their notice of completion on October 12 (two days before Cannon’s deadline). The deadlines that trigger off that should be November 2 (for Trump to submit designations) and November 12 (to submit disputes to Dearie).

It’s worth keeping that deadline dispute in mind as you consider what Jim Trusty did last night.

First, DOJ submitted a letter purporting to summarize the disputes between the two sides about the privilege determinations for fifteen documents that Dearie must issue a ruling on. I’ll come back to those in a follow-up; the important detail is the document shows Trump making ridiculous claims. As a reminder, this page has links to most documents from the stolen document case and my posts.

Hours later, Jim Trusty filed a letter saying that Trump’s team believed both sides were going to file a joint document, and because DOJ hadn’t and because Trump doesn’t agree with some of DOJ’s designations, they’re not going to file their disputed items until October 24, Monday.

As noted in the Defendant’s October 20, 2022 submission (ECF 150) the parties met and conferred regarding Filter A documents on October 19, 2022. Up until receipt of the Defendant’s October 20, 2022 filing, we anticipated that there would be a joint submission and an exchange between the parties preceding that joint submission to confirm both parties’ positions. This is consistent with the process that was undertaken for the October 3, 2022 joint submission with the Filter Team. Instead, the government filed its own log and presented its legal positions on the documents for which there is dispute between the parties.

Unfortunately, the log submitted by the government is not fully accurate as to the Plaintiff’s position on various documents.

In light of these facts, the Plaintiff will file our position on the documents that remain in dispute by the close of business on October 24, 2022.

Since Aileen Cannon decided to override Dearie and start changing deadlines randomly and unilaterally, it has been unclear what the deadlines or workplan will be on this case — the single certain thing is that, in the end, Trump will complain about Dearie’s designations and Cannon will review them de novo. Both Cannon’s original order and her Calvinball order overriding Dearie set initial deadlines for privileged determinations, but have no follow-up deadlines.

But in an October 7 order, Dearie did set deadlines. Trump’s 5-day deadline to complain about any orders has passed, and unless the Cannon Calvinball has gotten really tricksy, I’m not aware of anything overriding that deadline.

And that deadline was yesterday.

Trusty had enough time to review the DOJ filing and disagree and at least note about which items there’s a disagreement. There are only 15 documents here!!

But instead, Trump responded to the public docketing of his absurd claims by spending the time to write up a letter announcing he was taking his toys and going home for the weekend to pout. The best way to understand this action is that Trump simply doesn’t believe Judge Dearie has any authority to require actions of him.

And so Dearie could take the DOJ report and issues rulings, which might result in a report that came out early enough before the election for Cannon to have to overrule them before it. But if that happens, Trump will simply say he wasn’t part of that process.

Update: Dearie has noted that Trump’s response is untimely and given him until end of business today.

Dates

October 7: Dearie issues order on filter team materials, sets October 10 and October 20 deadlines (in bold)

October 10: Deadline to return originals of Category B documents to Trump

October 11: DOJ Reply to Trump Emergency Motion at SCOTUS

October 12: Deadline to complain to Cannon about Dearie’s October 7 order; Notice of Completion submitted

October 13: DOJ provides materials to Trump

By October 14: DOJ provides notice of completion that Trump has received all seized documents

On or before October 14: DOJ revised deadline to 11th Circuit

October 18: Phone Special Master conference

October 20: Deadline for disputes about Executive Privilege and Presidential Records Act on filtered material

October 24: Date Trump unilaterally declares his deadline to comply with Dearie’s order

November 2 (21 days after notice of completion): Trump provides designations for all materials to DOJ

November 8: Election Day

November 10, 2022: Trump revised deadline to 11th Circuit

November 12 (10 days after notice of complete): Both sides provide disputes to Dearie

November 17, 2022: DOJ revised reply to 11th Circuit

December 16: Dearie provides recommendations to Cannon

January 3: New Congress sworn in

No deadline whatsoever: Cannon rules on Dearie’s recommendations

Seven days after Cannon’s no deadline whatsoever ruling: Trump submits Rule 41(g) motion

Fourteen days after Cannon’s no deadline whatsoever ruling: DOJ responds to Rule 41(g) motion

Seventeen days after Cannon’s no deadline whatsoever ruling: Trump reply on Rule 41(g)

DOJ rolled out two sanctions-related indictments targeting Russia yesterday. One, charged in Connecticut, accuses some Latvians and a Ukranian of attempting to purchase and re-export a jig grinder to “individuals in Russia.”

The indictment alleges that, beginning in 2018, Eriks Mamonovs, 33, and Vadims Ananics, 46, both citizens of Latvia who operated CNC Weld, a Latvia-based corporation, conspired with Stanislav Romanyuk, 37, a citizen of Ukraine and resident of Estonia who operated Estonia-based BY Trade OU, and others, including Janis Uzbalis, 46, of Latvia, and individuals in Russia and a Russia-based company, to violate U.S. export laws and regulations and smuggle a jig grinder that was manufactured in Connecticut to Russia. A jig grinder is a high-precision grinding machine system that does not require a license to export to European Union countries, but does require a license for export and reexport to Russia because of its potential application in nuclear proliferation and defense programs. [my emphasis]

The Latvians accused were arrested Tuesday; Ukranian Stanislav Romanyuk was arrested in Estonia on June 13. The actual indictment — described as a superseding indictment — was obtained on July 7, but is not yet publicly docketed.

The other indictment, which was charged in Brooklyn, charges five Russians — one of whom was arrested in Germany, the other in Italy, both on Monday — along with a Spaniard and a Venezuelan, for sanctions violations and money laundering.

Payment for NDA GmbH’s illicit activities was often consummated in U.S. dollars routed through U.S. financial institutions and correspondent bank accounts.  To facilitate these transactions, Orekhov and his coconspirators used fictitious companies, falsified “Know Your Customer” documentation and bank accounts in high-risk jurisdictions, causing U.S. banks to process tens of millions of dollars in violation of U.S. sanctions and other criminal laws.  In one conversation with Soto, Orekhov bragged that “there were no worries…this is the shittiest bank in the Emirates…they pay to everything.”  The scheme also utilized bulk cash drops with couriers in Russia and Latin America, as well as cryptocurrency transfers worth millions of dollars, to effectuate these transactions and launder the proceeds.

It, too, focuses on the military aspect of the scheme — and even claims to have found components obtained through this network on the battlefield in Ukraine.

As alleged, Orekov has served as the part owner, Chief Executive Officer and Managing Director of Nord-Deutsche Industrieanlagenbau GmbH (NDA GmbH), a privately held industrial equipment and commodity trading company located in Hamburg, Germany.  The other owner of NDA GmbH is Artem Uss, the son of the governor of Russia’s Krasnoyarsk Krai region.  Kuzurgasheva served as the Chief Executive Officer of one of the scheme’s shell companies and worked for NDA GmbH under Orekhov.  Using NDA GmbH as a front company, Orekhov and Kuzurgasheva sourced and purchased sensitive military and dual-use technologies from U.S. manufacturers, including advanced semiconductors and microprocessors used in fighter aircraft, missile systems, smart munitions, radar, satellites and other space-based military applications.  These items were shipped to Russian end users, including sanctioned companies controlled by Telegin and Tulyakov, such as Radioavtomatika, Radioexport and Abtronics, that serviced Russia’s defense sector.  Some of the same electronic components obtained through the criminal scheme have been found in Russian weapons platforms seized on the battlefield in Ukraine.

But there’s a significant component of the Brooklyn indictment that focuses on Oleg Deripaska and Rusal. The lead defendant, Yury Orekhov, is described as a former procurement manager for what the indictment makes clear is Deripaska and Rusal. [Note, the indictment variably transliterates his name Orekov and Orekhov; I’ll use the latter.]

OREKHOV previously worked as a procurement manager for a publicly-traded Russian aluminum company (the “Aluminum Company”) controlled by a Russian billionaire and industrialist (the “Oligarch”), an individual whose identity is known to the Grand Jury.

The identify of Rusal (and therefore Derispaska) is confirmed in a paragraph that describes the period of Rusal’s sanctions (which Reuters noted here).

On August 3, 2021, USS sent OREKHOV a draft communication to the Aluminum Company regarding business dealings with NDA GmbH. The letter began, “During the sanctions period, the Company [NDA GmbH] began to supply fuel oil for [the Aluminum Company in Guinea].” Notably, the Aluminum Company was included in the SDN List from on or about April 6, 2018 through on or about January 27, 2019.

For example, Orekhov and Artem Uss are accused of laundering money to purchase oil from Venezuela’s sanctioned PDVSA for the use of Rusal. The indictment cites communications from Orekhov to a trader Juanfe Serrano, referencing the sanctions against Deripaska.

Indeed, as reflected in numerous documents from the Aluminum Company and NDA GmbPI, the defendants YURY OREKOV and ARTEM USS repeatedly purchased oil from PDVSA, causing U.S. financial institutions to process U.S. dollar-denominated payments, and supplied it to the Aluminum Company. For example, in a March 2020 draft letter addressed to a Deputy of the State Duma (one of the chambers of Russian parliament), who was an associate of the Oligarch, NDA GmbH proposed alternate sources of supply for “[Aluminum Company] procurement,” including using a “small, aggressive trader” that “conducts high-risk transactions in the Caribbean region, including with the Venezuelan state-owned company PDVSA, which is under sanctions, [and] has excess profits due to a 40% discount on the selling price of oil.” On or about December 4, 2021, in a series of electronic communications between OREKHOV and the defendant JUAN FERNANDO SERRANO PONCE, OREKHOV wrote, “this is our mother company pasting a link to the Aluminum Company’s website and a link to the Oligarch’s Wikipedia page. OREKHOV stated, “He [the Oligarch] is under sanctions as well. That’s why we [are] acting from this company [NDA GmbH]. As fronting.” SERRANO responded, “My partner also haha … he is very close to the government. He is one of the influence people in Venezuela. Super close to the Vice President.” SERRANO pasted a link showing search results for a Venezuelan lawyer and businessman who was currently wanted by U.S. authorities for bribery and money laundering, an individual whose identity is known to the Grand Jury. Later, in a series of communications between OREKHOV and SERRANO in or about March 2022, OREKHOV sought a “term contract with [PDVSA]” for “1 million [barrels of oil] per month,” and clarified that, “with [the Aluminum Company] it’s an annual contract, every month, every month … this is stable for sure.” [my emphasis]

As described, the smuggling involved spans Germany, Venezuela, Dubai, Malaysia, Panama, China, and Australia, among other countries. Seven US companies are identified. In addition, there’s an Individual 1 tied to a “California-based consulting and logistics company” who met with Orekhov in Europe in 2019.

The entire indictment — and the timeline laid out in the conspiracy part — almost feels like two indictments: one that spans 2018 through January 2020 (when Bill Barr was trying to shut down inconvenient investigations) and a second one that restarted after Russia’s Ukraine invasion.

In two different paragraphs pages apart, the indictment describes a conversation that Uss and Orekhov had on March 30 of this year, after the expanded invasion of Ukraine started. While much of the context seems left out, it seems that Orekhov was getting cold feet on Russia.

28. On March 30, 2022, the defendant YURY OREKHOV asked the defendant ARTEM USS, “Have you decided to leave Russia?” USS joked in response, “[Y]ou want to be an international fugitive? It’s too much.” OREKHOV replied, “[A]nd you? Would you like to? 1 can arrange, very easy.”

[snip]

37. In a March 30, 2022 message exchange between the defendants YURY OREKHOV and ARTEM USS regarding NDA GmbH’s business with the Aluminum Company, USS wrote to OREKHOV, “[I]f you’re serious … I will meet with [the Oligarch’s initials] when 1 return to Moscow . . . and I will convey to him personally your desire to pay off all debt… if you don’t want to work with Russia now and it’s really toxic, then don’t work. I will follow this closely.”

That’s the kind of person who might be willing to make a deal.

As I said above, this is the third indictment of Deripaska-linked figures obtained in late September. The timeline looks like this:

September 21: Deripaska property manager Graham Bonham-Carter indicted in SDNY

September 26: Orekhov et al indicted in EDNY

September 28: Superseding indictment obtained against Olga Shriki, Deripaska, and others

September 29: Deripaska’s US-based associate Shriki arrested

October 11: Bonham-Carter arrested in the UK

October 17: Yury Orekhov and Artem Uss arrested in Germany and Italy, respectively

In less than a month, then, DOJ has charged Deripaska, both a US and UK based manager, and someone involved in illicit procurement for Deripaska and the Russian government, with arrests of those three key associates.

The announcements for all three describe the involvement in National Security Division’s Counterintelligence and Export Control Section — the spying section (the Connecticut announcement lists an NSD trial attorney, but it’s unclear whether he is specifically in the CECS section). The Orekhov indictment even describes that a CECS prosecutor will play a part in the prosecution. That implies DOJ’s interest goes beyond just sanctions violations.

It’s fairly impressive work and no doubt unbelievably complicated coordination, given all the other countries involved. But it feels like there might be a few more things in the work. As noted, while the indictment charging Deripaska personally moves for forfeiture of Deripaska’s three US-based properties, Shriki is not described as the primary person running those properties.

Fifteen years ago, during the Scooter Libby trial, I had lunch with James Gordon Meek, a national security reporter then at NY Daily News. I remember I was bitching that journalists at the trial continued to treat Robert Novak as credible even though his testimony about what led to his exposure of Valerie Plame’s identity had changed four times by that point. He explained, very matter of factly, that “sometimes we fall in love with our sources,” particularly intelligence sources.

I had little contact with him after that until 2018 or 2019, when we spoke several times about the Russian investigation.

Meek’s comment has, obviously, stuck with me over the years. All the more so as I read Rolling Stone’s story describing how — over the course of ten minutes on April 27 — Meek’s home had been searched, and we’re only hearing about it almost six months later. There’s even a version of what Meek told me years ago in the story: “To his detractors within ABC, Meek was something of a “military fanboy.'” Meek got a lot of stories by being very close to his military sources.

The story has, predictably, generated a lot of concern about Meek’s treatment at the hands of Merrick Garland’s DOJ.

But there are details in the story that offer at least part of an explanation.

First, his attorney is quoted, complaining that this story is out there.

“Mr. Meek is unaware of what allegations anonymous sources are making about his possession of classified documents,” his lawyer, Eugene Gorokhov, said in a statement. “If such documents exist, as claimed, this would be within the scope of his long career as an investigative journalist covering government wrongdoing. The allegations in your inquiry are troubling for a different reason: they appear to come from a source inside the government. It is highly inappropriate, and illegal, for individuals in the government to leak information about an ongoing investigation. We hope that the DOJ [Department of Justice] promptly investigates the source of this leak.”

Meek’s lawyer, at least, is not trying to generate the kind of media attention that would immediately raise questions about his treatment as a journalist the way — say — Project Veritas’ lawyers did when James O’Keefe and others were searched. If he had concerns about Meek’s treatment or the propriety of the search, I highly doubt he would respond this way, by complaining that the search was made public.

Details in the story suggest Meek responded to the search differently than Project Veritas in other ways, too. He appears to have moved.

In the raid’s aftermath, Meek has made himself scarce. None of his Siena Park neighbors with whom Rolling Stone spoke have seen him since, with his apartment appearing to be vacant.

He withdrew from a project recounting the rescue of former US intelligence partners in Afghanistan around the time of the search.

“He contacted me in the spring, and was really distraught, and told me that he had some serious personal issues going on and that he needed to withdraw from the project,” Mann tells Rolling Stone. “As a guy who’s a combat veteran who has seen that kind of strain — I don’t know what it was — I honored it. And he went on his way, and I continued on the project.”

Mann says he hasn’t heard from Meek since.

And — first — his producer on a documentary about four Special Forces guys killed in Niger by ISIS, and then he himself resigned from ABC “abruptly.”

“He fell off the face of the Earth,” says one. “And people asked, but no one knew the answer.”

An ABC representative tells Rolling Stone, “He resigned very abruptly and hasn’t worked for us for months.”

[snip]

Adding intrigue, sources say another ABC News investigative journalist, Brian Epstein, also abruptly and inexplicably left the network a few months before Meek. Epstein also worked as a director, producer, and cinematographer on 3212 Un-Redacted (Hulu stopped Emmy campaigning after Meek apparently went AWOL, and the documentary ultimately failed to receive a nomination). Epstein told Rolling Stone, “I’m not commenting on this story,” before abruptly hanging up. 

Short of ABC turning the two reporters in themselves, resigning while under legal investigation would be the last thing you’d do, in part for the legal protection a big media outlet can offer.

All of which suggests there’s something about this story — or perhaps follow-ups — that led Meek and Epstein to withdraw.

As alluded to above, the story claims — citing “sources familiar” — that FBI found classified information on a laptop.

Sources familiar with the matter say federal agents allegedly found classified information on Meek’s laptop during their raid. One investigative journalist who worked with Meek says it would be highly unusual for a reporter or producer to keep any classified information on a computer.

I’m not sure I buy that it’s unusual for reporters to keep classified information on a computer — a laptop, after all, can be air-gapped, and fully encrypted information stored in digital form can be safer than papers lying around. But if it wasn’t air-gapped, it could make the classified information available, even unwittingly, to hostile entities. In the wake of the Nghia Pho compromise, the government has focused renewed attention on such possible modes of compromise. If Meek had obtained classified information in the course of reporting and the government believed the real goal — one he may not have understood — was its compromise, you might see something like this.

Meek and his attorney have, for whatever reason, chosen not to make a public case out of this search. But “sources familiar” just did so whether Meek wanted it to happen or not.

The January 6 Committee and John Eastman continue to fight over how many of his emails he can withhold from the Committee under a claim of attorney-client (and related) privilege.

Judge David Carter just ruled on what may be the last 500-so emails.

He ordered Eastman to turn over eight additional emails under a crime-fraud exception.

The more interesting set of four involve discussions about whether Trump should fix numbers he knew to be false before he filed a Federal lawsuit in Georgia.

Four emails demonstrate an effort by President Trump and his attorneys to press false claims in federal court for the purpose of delaying the January 6 vote. The evidence confirms that this effort was undertaken in at least one lawsuit filed in Georgia.

On December 4, 2020, President Trump and his attorneys alleged in a Georgia state court action that Fulton County improperly counted a number of votes including 10,315 deceased people, 2,560 felons, and 2,423 unregistered voters.69 President Trump and his attorneys then decided to contest the state court proceeding in federal court, 70 and discussed incorporating by reference the voter fraud numbers alleged in the state petition. On December 30, 2020, Dr. Eastman relayed “concerns” from President Trump’s team “about including specific numbers in the paragraph dealing with felons, deceased, moved, etc.”71 The attorneys continued to discuss the President’s resistance to signing “when specific numbers were included.”72 As Dr. Eastman explained the next day:

Although the President signed a verification for [the state court filing] back on Dec. 1, he has since been made aware that some of the allegations (and evidence proffered by the experts) has been inaccurate. For him to sign a new verification with that knowledge (and incorporation by reference) would not be accurate.73

President Trump and his attorneys ultimately filed the complaint with the same inaccurate numbers without rectifying, clarifying, or otherwise changing them. 74 President Trump, moreover, signed a verification swearing under oath that the incorporated, inaccurate numbers “are true and correct” or “believed to be true and correct” to the best of his knowledge and belief.75

The emails show that President Trump knew that the specific numbers of voter fraud were wrong but continued to tout those numbers, both in court and to the public. The Court finds that these emails are sufficiently related to and in furtherance of a conspiracy to defraud the United States. Accordingly, the Court ORDERS Dr. Eastman to disclose these four communications to the Select Committee.76

69 As discussed in the previous orders, President Trump’s own U.S. Attorney General said that his investigators found no evidence of fraud on a scale that would have changed the outcome of the election, but President Trump and his attorneys continued to file dozens of lawsuits in states he lost, seeking to overturn the results. First Order at 5. By early January, more than sixty court cases alleging fraud had been dismissed for lack of evidence or lack of standing. Id. at 6. See also J. M. Luttig et al., Lost, Not Stolen: The Conservative Case that Trump Lost and Biden Won the 2020 Presidential Election (July 2022) (examining every count of every case of election irregularities brought by President Trump’s team in six battleground states and concluding that “Donald Trump and his supporters had their day in court and failed to produce substantive evidence to make their case”), https://perma.cc/MKC4-BV3Q.

70 See Trump v. Kemp, 511 F. Supp. 3d 1325, 1330 (N.D. Ga. 2021) (“Plaintiff’s motion for expedited declaratory and injunctive relief asks this Court to take the unprecedented action of decertifying the results of the presidential election in Georgia and directing the Georgia General Assembly to appoint presidential electors.”)

71 59643.

72 59390.

73 60742.

74 See generally Model Rules of Pro. Conduct r. 3.3 cmt. 5 (Am. Bar Ass’n 1983) (noting that the duty requiring “that the lawyer refuse to offer evidence that the lawyer knows to be false, regardless of the client’s wishes” is “premised on the lawyer’s obligation as an officer of the court to prevent the trier of fact from being misled by false evidence”), https://perma.cc/3PB5-CGRM; see also Christensen, 828 F.3d at 805 (“[C]onduct by an attorney that is merely unethical, as opposed to illegal, may be enough to vitiate the work product doctrine.”).

75 In an attempt to disclaim his responsibility over the misleading allegations, President Trump’s attorneys remove the numbers from the body of complaint (but nonetheless incorporate them by reference) and add a footnote that states President Trump is only relying on information that was provided to him. See 61108. But, by his attorneys’ own admissions, the information provided to him was that the alleged voter fraud numbers were inaccurate. See 60742.

76 59643; 59390; 60742; 61108. For document 59643, only the first page (Chapman059643) requires disclosure. For document 60742, Dr. Eastman may redact emails sent before Thursday, December 31, 2020 12:00 PM MST. For document 61108, Dr. Eastman may redact emails sent before Thursday, December 31, 2020 7:43 AM.

These emails are going to have all sorts of ramifications — in Fani Willis’ investigation and the DOJ investigation. And they’ll likely make it easier for both Willis and Thomas Windom (who is leading the Trump fraud investigation) to obtain related emails that were seized from Mar-a-Lago.

In both his opening and closing statements, John Durham prosecutor Michael Keilty described the materiality of the alleged lies Igor Danchenko told the FBI about Sergei Millian by pointing to the role the Steele report on Millian played in getting FISA warrants targeting Carter Page.

The evidence in this trial will show that the Steele dossier would cause the FBI to engage in troubling conduct that would ultimately result in the extended surveillance of the United States citizens. And the defendant’s lies played a role in that surveillance.

[snip]

So let’s now talk about why the defendant’s lies matter. The defendant’s lies about Sergei Millian mattered because the information he allegedly received from Millian ended up in a FISA warrant against a U.S. citizen, one of the most intrusive tools the FBI has at its disposal. The FBI gets to listen to your calls and read your emails. It’s a really significant thing.

You heard Brian Auten testify that that Millian information — alleged Millian information was contained in every single FISA application on four different occasions. The FBI surveilled a U.S. citizen for nearly a year based on those lies.

Even accepting the problems of the FISA warrants, the claim never made any sense.

According to the trial record, Danchenko’s information didn’t end up in FISA applications. Language Christopher Steele wrote based on Danchenko’s information did. Danchenko claimed that Steele had exaggerated it, and even after interviewing Steele twice, the FBI believed Danchenko.

Keilty was accusing Danchenko of doing something that — no one has contested — that Steele did, not Danchenko.

Plus, two of the alleged lies took place after the FBI had ceased surveilling Page, in October and November 2017. Even if Danchenko did lie, it would defy the laws of physics to blame those alleged lies for surveillance that ended in September.

Crazier still, one reason why DOJ retroactively withdrew the probable cause claims for the last two FISA orders on Page, obtained in April and June 2017, is because FBI didn’t integrate the warnings Danchenko gave them about the report in the applications. Danchenko is the last person you should blame for the FISA surveillance of Page. He claims he didn’t even know the reports were being shared with the FBI!

The obvious problems with this claim have not stopped stupid propagandists like Margot Cleveland from repeating the nonsensical claim.

It all the weirder, though, when you consider that John Durham was himself responsible for obtaining senseless search warrants against two American citizens.

First, there are the warrants Durham served to obtain Chuck Dolan’s communication, as Stuart Sears had Dolan explain on cross examination.

Q You’re aware, Mr. Dolan, aren’t you, that the government was investigating you at some point?

A Yes.

Q You’re aware that they issued search warrants and subpoenas for your email communications?

A Yes.

Q You’re aware that they issued subpoenas for your phone records?

A Yes.

Q Your work email records?

A Yes.

Q Your Facebook records?

A Yes.

As Sears had Dolan explain, those warrants yielded nothing to refute his claim never to have “talked” to Danchenko about anything that appeared in the dossier.

Q And I think you have already testified to this, but even knowing everything that the government has done to look into you, it’s still your testimony today that you’ve never talked to Mr. Danchenko about anything that ended up in the dossier, correct?

A Correct.

Last Friday, in dismissing the single count pertaining to Dolan, Judge Trenga ruled that any evidence these warrants targeting Dolan yielded did not prove a crime.

And Durham also obtained warrants targeting Sergei Millian — one of his purported victims! — who at least in 2016 had dual citizenship. Durham had his case agent, Ryan James, describe all the surveillance Durham did of Millian.

Q With respect to those documents, tell the ladies and gentlemen of the jury whether you personally have been involved in sorting through those records.

A Yes, I have.

Q Travel records, the travel records relating to Sergei Millian was brought to the jury’s attention. Who obtained those records?

A Our team did.

[snip]

Q The jury has heard testimony relating to a number of telephone numbers involved with a fellow by the name of Sergei Millian. Would you tell the jury, sir, whether or not you have any knowledge about records and information being retrieved concerning Sergei Millian.

A Our team requested legal process on some of his numbers that we’ve identified that belong to him.

Q When you say legal process, just so the jurors have an understanding of that, what kind of legal process would typically be involved in getting those records?

A In this particular case, subpoenas.

Q All right. And in addition to subpoenas, do you know if Facebook records and the like were retrieved using the leal process?

A Yes.

Q And what kind of legal process was used to obtain those records?

A Those would be via search warrants.

Even more than the Facebook warrant, Durham’s collection of Millian’s travel records — all the way through current day! — are probably more intrusive on Millian’s privacy.

Q Now, let me start, if I might then. With regard to the records in this matter, you’ve told the jurors that among those records that you obtained were travel records for Sergei Millian, correct?

A Yes.

Q And with respect to Millian’s travel records, how would you describe them? Were they plentiful or there was one or two? What’s your best recollection as to Millian’s travel records?

A I would say he frequently comes in and out of this country.

Q Based on your review of all the travel records, has he been in the country anytime recently?

A No.

It’s too early to say whether any of these records included evidence of a crime. After all, DOJ’s KleptoCapture complaint against Elena Branson shows that one of Millian’s colleagues at the Russian-American Chamber of Commerce viewed the requirement to register under FARA as a “problem” way back in 2013.

But according to an EDVA jury, any evidence the warrants and subpoenas targeting Millian obtained did not prove Danchenko committed a crime.

Durham unpacked the digital lives of two American citizens, plus Danchenko, partly through search warrants that he attacked Mueller’s investigators for not obtaining.

And unless the evidence obtained ends up being used to show that Millian was an illegal foreign agent of Russia, that evidence did not provide that anyone committed a crime.

The right wing is defending John Durham today because he avenged an American who was unfairly targeted by a warrant. And along the way, they seem to have missed that Durham himself obtained a bunch of apparently pointless search warrants targeting American citizens, including Trump fan Sergei Millian.

There’s a detail from yesterday’s Raymond Dearie hearing that I’ve seen no other journalist cover: that filter team attorney Anthony Lacosta described sending a public link of this document to Trump attorney Jim Trusty on September 30.

If it’ll help the parties, I sent email to Trusty on 9/30 that sent a copy of letter at issue. I sent link, they appear to be the same, all that’s missing is signature.

We know from the privilege inventory that was accidentally docketed that it’s an 11-page letter from then Trump attorney Marc Kasowitz to Robert Mueller.

Lacosta mentioned that the letter had been published. That must mean the letter is this one, published by the NYT on June 2,2018 (here’s the text for those who can’t access the NYT).

As I noted weeks ago, this document from the same inventory also is almost certainly a letter released publicly years ago, too.

Harold Bornstein, who was then Trump’s personal physician, released a one-page letter dated September 13, 2016 as part of Trump’s campaign for President.

In other words, two of the documents that Judge Aileen Cannon pointed to in order to claim that Trump was suffering a grave harm that justified enjoining an ongoing criminal investigation into some of the most sensitive documents in US government have probably been public for years. Indeed, the Bornstein letter was released by Trump himself.

Here’s how the government described the harm Judge Cannon caused to the United States by enjoining DOJ’s access to these documents in their appeal to the 11th Circuit.

a. The government has a “demonstrated, specific need” for the records bearing classification markings

The government’s need for the records bearing classification markings is overwhelming. It is investigating potential violations of 18 U.S.C. § 793(e), which prohibits the unauthorized retention of national defense information. These records are not merely evidence of possible violations of that law. They are the very objects of the offense and are essential for any potential criminal case premised on the unlawful retention of the materials. Likewise, these records may constitute evidence of potential violations of 18 U.S.C. § 2071, which prohibits concealment or removal of government records.

The records bearing classification markings may also constitute evidence of potential violations of 18 U.S.C. § 1519, prohibiting obstruction of a federal investigation. As described above, on May 11, 2022, Plaintiff’s counsel was served with a grand-jury subpoena for “[a]ny and all documents or writings in the custody or control of Donald J. Trump and/or the Office of Donald J. Trump bearing classification markings.” DE.48-1:11. In response, Plaintiff’s counsel produced an envelope containing 37 documents bearing classification markings, see MJ-DE.125:20-21, and Plaintiff’s custodian of records certified that “a diligent search was conducted of the boxes that were moved from the White House to Florida” and that “[a]ny and all responsive documents accompany this certification,” DE.48-1:16. As evidenced by the government’s subsequent execution of the search warrant, all responsive documents did not in fact accompany that certification: more than 100 additional documents bearing classification markings were recovered from Plaintiff’s Mar-a-Lago Club. Those documents may therefore constitute evidence of obstruction of justice.

The government’s compelling need for these records is not limited to their potential use as evidence of crimes. As explained in the stay proceedings, the government has an urgent need to use these records in conducting a classification review, assessing the potential risk to national security that would result if they were disclosed, assessing whether or to what extent they may have been accessed without authorization, and assessing whether any other classified records might still be missing. The district court itself acknowledged the importance of the government’s classification review and national security risk assessment. DE.64:22-23. The government has further explained, including through a sworn declaration by the Assistant Director of the FBI’s Counterintelligence Division, why those functions are inextricably linked to its criminal investigation. DE.69-1:3-5. For example, the government may need to use the contents of these records to conduct witness interviews or to discern whether there are patterns in the types of records that were retained. The stay panel correctly concluded that a prohibition against using the records for such purposes would cause not only harm, but “irreparable harm.” Trump, 2022 WL 4366684, at *12; see also id. at *11. Plaintiff has never substantiated any interest that could possibly outweigh these compelling governmental needs, and none exists.

b. The government has a “demonstrated, specific need” for the remaining seized records The government also has a “demonstrated, specific need” for the seized unclassified records. The FBI recovered these records in a judicially authorized search based on a finding of probable cause of violations of multiple criminal statutes. The government sought and obtained permission from the magistrate judge to search Plaintiff’s office and any storage rooms, MJ-DE.125:37, and to seize, inter alia, “[a]ny physical documents with classification markings, along with any containers/boxes (including any other contents) in which such documents are located, as well as any other containers/boxes that are collectively stored or found together with the aforementioned documents and containers/boxes,” MJ-DE.125:38. The magistrate judge thus necessarily concluded that there was probable cause to believe those items constitute “evidence of a crime” or “contraband, fruits of crime, or other items illegally possessed.” Fed. R. Crim. P. 41(c)(1), (2); see MJ-DE.57:3.

That is for good reason. As an initial matter, the unclassified records may constitute evidence of potential violations of 18 U.S.C. § 2071, which prohibits “conceal[ing]” or “remov[ing]” government records. Moreover, unclassified records that were stored in the same boxes as records bearing classification markings or that were stored in adjacent boxes may provide important evidence as to elements of 18 U.S.C. § 793. First, the contents of the unclassified records could establish ownership or possession of the box or group of boxes in which the records bearing classification markings were stored. For example, if Plaintiff’s personal papers were intermingled with records bearing classification markings, those personal papers could demonstrate possession or control by Plaintiff.

Second, the dates on unclassified records may prove highly probative in the government’s investigation. For example, if any records comingled with the records bearing classification markings post-date Plaintiff’s term of office, that could establish that these materials continued to be accessed after Plaintiff left the White House. Third, the government may need to use unclassified records to conduct witness interviews and corroborate information. For example, if a witness were to recall seeing a document bearing classification markings next to a specific unclassified document (e.g., a photograph), the government could ascertain the witness’s credibility and potentially corroborate the witness’s statement by reviewing both documents.

In short, the unclassified records that were stored collectively with records bearing classification markings may identify who was responsible for the unauthorized retention of these records, the relevant time periods in which records were created or accessed, and who may have accessed or seen them. [my emphasis]

The government needs to figure out whether Trump’s negligence caused any compromise of highly sensitive documents.

But Judge Cannon decided that letters Trump released to impress voters are more important.

Something odd happened in the Josh Schulte case yesterday.

He still has to submit his Rule 29 motion for acquittal and Rule 33 motion for a new trial for his trial. Before the government seized his laptop in a search, they were originally due September 23.

But since the FBI allegedly found Child Sexual Abuse Material on his discovery laptop — the FBI suspects he copied it from the materials allegedly on his home computer via a thumb drive brought into the SCIF storing his discovery — he has been restricted to a typewriter, and so will be given more time to write the filings.

On October 6, Judge Jesse Furman ordered the two sides to come up with a new schedule for those motions by Friday to accommodate that restriction.

The FBI is also investigating Schulte for having contraband on his discovery laptop. Back in September, Schulte insisted that “the only material on the laptop was provided by the government or my attorneys.”

So early yesterday, the government filed a letter, effectively pre-empting one they said that Schulte’s attorney, Sabrina Shroff, had written but not yet docketed. They did so, they said, because hers was inaccurate and did not reflect consultation with Schulte, who is representing himself pro se on the last trial.

Counsel’s letter, which asks the Court to order the means by which the parties carry out their obligation to meet-and-confer about a proposed motions schedule, (i) is materially inaccurate, (ii) seeks unnecessarily burdensome and delay-laden restrictions on what should be a straightforward conversation about a schedule, and (iii) inappropriately attempts to speak on the defendant’s behalf with respect to an issue for which the defendant is pro se. Defense counsel’s letter falsely claims, for example, that the Government previously refused to have calls with the defendant while he was in the MDC and has “repudiated” this practice; when, in fact, the Government previously arranged meet-and-confer calls with the defendant during his courthouse SCIF days because doing so was logistically simpler. Here, where the defendant is no longer produced to the SCIF, the Government proposed a telephone call from the MDC, which defense counsel has been invited to join. When counsel objected to the call, the Government noted that the defendant is pro se and entitled to decide for himself whether or not to participate in the call and, if he declined to do so, the Government would attempt to confer through other means. The Government also offered to respond to a proposed schedule from the defendant conveyed by counsel. Rather than pursue either option or allow the defendant to speak for himself on this pro se matter,1 defense counsel submitted today’s letter to the Court.

1 Counsel’s letter does not assert that the defendant is incompetent to act for himself pro se and makes no representation that the defendant was consulted on the letter.

When Shroff’s letter was finally docketed (with two redactions describing Schulte’s current status, apparently something pertaining to having been moved from his prior cell), it became clear that she’s insisting on using the meet-and-confer as an opportunity to meet with him in person, rather than with her on the call, or barring that, ensuring that anything Schulte say not be used against him.

In the past, the government has fulfilled its meet and confer obligations by calling Mr. Schulte in the SCIF, where one or more of his standby counsel could be physically present and beside Mr. Schulte as he spoke with opposing counsel. During the time Mr. Schulte was entirely pro se, the government refused to have calls with him while he was at MDC-Brooklyn, insisting the calls take place while he was at the SCIF. Each call was recorded by the government and an FBI agent was present for the call.

In repudiation of this prior practice, the government now seeks to meet and confer with Mr. Schulte by arranging a telephone call with him at the MDC, meaning no defense counsel would be physically present next to Mr. Schulte during the call.1 Given (i) the hybrid representation in place; (ii) Mr. Schulte [redacted];2 and (iii) such a setup is not necessary, it would not be prudent for defense counsel to agree to such a meet and confer.

In lieu of the government’s proposal, defense counsel has offered to (i) take the government’s proposed briefing schedule to Mr. Schulte to get his sign-off;3 (ii) allow the meet and confer at the MDC, provided the government can arrange for Mr. Schulte’s counsel to be there physically with him in the same room; (iii) have Mr. Schulte produced at the 500 Pearl Street pens on the 4th floor for the meet and confer; or (iv) if the Court allows the meet and confer to take place outside the physical presence of counsel as the government demands, that the government agree not to use any purported spontaneous statements or questions that may come out during the call against Mr. Schulte at any future legal proceeding. The government has rejected each of these four proposals.

Given this impasse, and the importance of defense counsel being physically next to Mr. Schulte when the Government speaks with him, we respectfully ask the Court to Order the government to adopt one of the four proposals, so the meet and confer can proceed in a manner that allows defense counsel to step in and ensure that Mr. Schulte’s right against self-incrimination and right to counsel are protected.

1 Defense counsel has apprised the government of her unavailability on the government’s chosen date and time of October 19, 2022, and asked at the very least, the call be re-scheduled should the Court not grant the requested relief.

2 Neither the government nor the BOP informed counsel for Mr. Schulte [redacted] The BOP did not provide (for three days in row) the requested emergency legal calls. In person visits were also made unavailable. Counsel was told that the in-person visit could not take place as the room in the SAMs unit was occupied by other counsel, when in fact Mr. Schulte was not on his regular unit.

3 I twice offered to go to the MDC and vet with Mr. Schulte the government’s proposed briefing schedule for the Rule 29 and 33 motion. The government declined to provide its proposed timeline/schedule to me.

While Shroff’s letter sounds sketchy in light of Schulte’s own observation that any contraband had to have come from the government or his lawyers, Shroff is too smart to facilitate Schulte’s crimes. That said, the record suggests that he manipulates every single human being he comes into contact with, including his own family. I think the most likely explanation for any contraband is that he made a seemingly reasonable request for something from his lawyers, and then repurposed it.

The government, meanwhile, has used the recent developments to propose a long delay — with briefing to begin two months from now — on Schulte’s pretrial motions. Now they’re proposing he submit his motions on December 16.

I’ve been wondering how Schulte would respond to being accused of reaccessing CSAM material, something that, if proven, would make proving his pending charges on that easier to prove and also dramatically increase his potential sentence. He’s at the point where he has to be contemplating life in prison.

However he has and will respond, Shroff is worried about him speaking with the government without being present.

NYT, Politico, and HuffPo are all reporting that the jury has acquitted Igor Danchenko on all four remaining charges against them.

Shortly before they did so, the jury had asked for a report that had been used to refresh Danchenko handling agent’s memory about why Danchenko had not corrected Christopher Steele’s incorrect memories about their conflicting Millian stories in 2017. There was an extended exchange before Danchenko’s lawyers noted — having won a fight to exclude Christopher Steele’s testimony pre-trial — that this was hearsay.

Q. If you take a look at Government’s Exhibit 103 and see if that refresh your recollection as to whether or not there was yet another occasion that you raised or asked questions of Mr. Danchenko relating to these matters?

A. Yes.

Q. And when was it that you met with Mr. Danchenko and Millian came up again?

A. I’m looking at the wrong —

Do you have Government’s Exhibit 103 there?

A. I have one — oh, here we go, yes.

Q. Okay.

A. So it’s November the 2nd.

Q. Okay. So why don’t you just take a moment and look at that and see if that refreshes your recollection as to the date which you met with Mr. Danchenko and the Millian matter came up yet again?

A. Yes.

Q. And what was the date?

A. November the 2nd, 2017.

Q. All right. And on November 2nd, 2017, was that some kind of telephone connection or was that a face-to-face meeting?

A. That was a face-to-face.

Q. So you are with him? He’s not like — no interference in the phone or anything, right?

A. Correct.

Q. Do you recall, sir, why it was that you had occasion to go back to, yet again, ask about this Millian piece in November of 2017?

A. There had been — this, I think, goes to the fact that Brian was still saying there was inconsistency in what Mr. Danchenko was saying as opposed to what Mr. Steele was saying with respect to Millian’s — his connection or his contact with Millian.

Q. And so tell the ladies and gentlemen of the jury on November 2nd now, of 2017 — on October 24th, he now says that there were a couple of calls. Now, on November 2nd, you’re confronting him now about what he told Steele regarding him actually meeting with Millian, correct?

A. Correct.

Q. And with respect to what you were asking Mr. Danchenko on November 2nd, what is it that Mr. Danchenko told you regarding Steele and what he had told Steele or not told Steele about meeting with Millian?

A. He said that Steele had the idea — that Steele believes that Mr. Danchenko had met in person and he never corrected Mr. Steele’s thought in that, is that he was pretty much tired of talking about it. He — Steele was pressuring him to answer questions that Steele — that Millian could potentially answer. So the pressure was get with Millian, get a report, and Igor was — I let him have what I — I told him what I know and he still believed that I was in — it was an in-person meeting and I never corrected him because I was tired of talking about it.

MR. SEARS: Your Honor, I apologize to interrupt, but to the extent Mr. Steele’s comments are coming in, my understanding is that they would not be for the truth of the matter asserted —

THE COURT: Correct.

MR. SEARS: — just because the agent heard —

THE COURT: Right.

MR. SEARS: It might be appropriate to inform the jury.

And then minutes later they came back with an acquittal on all charges.

Here’s a comparison about Durham’s work compared to Mueller’s:

WaPo has this from a juror:

The jury in Danchenko’s case deliberated for about nine hours over two days. Juror Joel Greene said in an interview that there were no holdouts in the deliberations and that the decision was “pretty unanimous.”

“We looked at everything really closely,” said Greene, who declined to comment on the politics of the case. “The conclusion we reached was the conclusion we all were able to reach.”

And from Danchenko:

After the verdict was announced, Danchenko choked up and embraced his defense attorneys, Stuart A. Sears and Danny C. Onorato. Danchenko declined to comment, but Sears said outside the courthouse “we’ve known all along that Mr. Danchenko is innocent.”

“We’re happy now that the American public knows that as well,” he said.

Politico’s Kyle Cheney caught Durham making the same canned comment after this face-planting loss as he did after the Sussmann acquittal.

emptywheel coverage of the Danchenko case

John Durham’s Last Word: An Outright Lie about the Mueller Conclusions

John Durham’s Missing Signals (and FaceTime and WhatsApp and iPad)

John Durham Created a False Pee Tape Panic Based Off a “Literally True” Alleged Lie

As John Durham Preps for his Closing Report, His Own Withholdings become Key

“It Certainly Sounds Creepy:” John Durham Adopts the “Coffee Boy” Defense

John Durham Twice Misread Steele Dossier Sourcing to Invent a Partisan Claim

John Durham’s Re-Virgined Birth of the Carter Page and Sergei Millian Investigations

Igor Danchenko Would Have Been a Crucial Witness to Understanding the Disinformation in the Dossier

Anthony Trenga Smothers the Frothers’ Hopes for a Pee Tape Trial … But Not the Damage Done by Credulous Press

FBI Approved Igor Danchenko as a Source before It Stopped Doing Back-Door FISA Searches to Vet Informants

John Durham Wants to Lecture EDVA Jurors about Being Played by Foreign Spies

On the Belated Education of John Durham

Durham Admits He Has No Real Evidence on Four Millian Counts against Igor Danchenko

“Desperate at Best:” Igor Danchenko Starts Dismantling John Durham’s Case against Him

John Durham’s Igor Danchenko Case May Be More Problematic than His Michael Sussmann Case

The Disinformation that Got Told: Michael Cohen Was, in Fact, Hiding Secret Communications with the Kremlin

On CIPA and Sequestration: Durham’s Discovery Deadends

In Story Purporting to “Reckon” with Steele’s Baseless Insinuations, CNN Spreads Durham’s Unsubstantiated Insinuations

Aleksej Gubarev Drops Lawsuit after DOJ Confirms Steele Dossier Report Naming Gubarev’s Company Came from His Employee

John Durham’s Cut-and-Paste Failures — and Other Indices of Unreliability

John Durham: Destroying the Purported Victims to Save Them

Source 6A: John Durham’s Twitter Charges

Daisy-Chain: The FBI Appears to Have Asked Danchenko Whether Dolan Was a Source for Steele, Not Danchenko

“Yes and No:” John Durham Confuses Networking with Intelligence Collection

John Durham May Have Made Igor Danchenko “Aggrieved” Under FISA