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Did Jared Kushner Try to Preemptively Undercut Mike Flynn at the Enquirer?

One thing about the Mueller investigation I’ve gone back and forth on is the degree to which Jared Kushner is in legal trouble. While he left the June 9, 2016 meeting before any agreement to enter a conspiracy might be said to have been reached, his efforts to set up a back channel during the transition period — and the degree to which he appeared to be self-dealing rather than representing the interests of the United States — seemed to expose him to different legal problems.

Then there’s the record on Mike Flynn. A key CNN report dated November 30, the day before Flynn flipped, had suggested — given the then publicly known events — that Mueller interviewed Jared in advance of Flynn’s plea agreement, in what might have been a last ditch effort to allow Jared to exonerate Flynn.

Mueller’s team specifically asked Kushner about former national security advisor Michael Flynn, who is under investigation by the special counsel, two sources said. Flynn was the dominant topic of the conversation, one of the sources said.

[snip]

The conversation lasted less than 90 minutes, one person familiar with the meeting said, adding that Mueller’s team asked Kushner to clear up some questions he was asked by lawmakers and details that emerged through media reports. One source said the nature of this conversation was principally to make sure Kushner doesn’t have information that exonerates Flynn.

But Flynn’s sentencing memo revealed that he had five proffer meetings before he signed the agreement.

He participated in five pre-plea proffer sessions with the Special Counsel’s Office and fourteen additional meetings with the Government pursuant to the Plea Agreement entered on December 1, 2017.

And, per CNN, Mueller was asking other witnesses about Jared at the time, too.

The meeting took place around the same time the special counsel asked witnesses about Kushner’s role in the firing of former FBI Director James Comey and his relationship with Flynn, these people said.

That (plus reports that Flynn cooperated shortly after he was asked) suggests the meeting with Kushner may well have come after some of those proffer meetings involving Flynn, which would in turn suggest that Mueller was locking in Jared’s testimony with that short interview before revealing that Flynn was cooperating.

Still, Jared is one of the few people involved in this scandal with a very competent defense attorney, and after Abbe Lowell announced that Jared had had a much longer interview with Mueller in April and had gotten a (Trump-demanded) security clearance, I started to believe that Lowell had performed another master stroke as a defense attorney.

Then, in mid-April, Kushner sat for six to seven hours of questions that covered many topics, including his work on the Trump campaign, the transition and in the White House and about Trump’s decision in May 2017 to fire Comey.

The special counsel’s questioning focused on Kushner’s work with Trump and did not include topics such as Kushner’s personal finances or those of his family business, Kushner Companies, according to the person familiar with the matter.

Which brings us to this story from the Daily Beast, revealing that Jared (who worked the press assiduously when he owned the Observer) took over Michael Cohen’s duties of planting stories in the National Enquirer after Cohen was denied a job in the Administration.

During the early months of the Trump era, Kushner performed the task admirably, discussing with Pecker various issues over the phone, including everything from international relations to media gossip, according to four sources familiar with the situation. Pecker, for his part, bragged to people that he was speaking to the president’s son-in-law and, more generally, about the level of access he had to the upper echelons of the West Wing, two sources with knowledge of the relationship recounted.

TDB focuses on Trump’s threat to deal dirt on Scarborough and Mika (I had been wondered who had orchestrated that threat) and, rightly, the big propaganda piece that Mohamed bin Salman’s unregistered assassination crisis repair agent, Jared, planted.

Starting in late 2016, AMI’s priorities shifted from a potential business deal with Kushner to one focused on access to political power. Shortly after the Trump presidency began, Kushner and Pecker talked repeatedly, on subjects ranging from relations with the Saudi regime, to possible dirt that the Enquirer had on Morning Joe’s Mika Brzezinski and Joe Scarborough, according to the four sources who spoke on the condition of anonymity to discuss sensitive matters.

AMI, like Kushner, cozied up to the despotic Saudi government, which included the production of a glossy propaganda magazine boosting Saudi Crown Prince Mohammed bin Salman.

Last year, Brzezinski and Scarborough, who had increasingly become Trump critics, made the explosive allegation that three senior aides to President Trump “warned” the couple that the Enquirer would publish a negative story on them unless they “begged” Trump to intervene on their behalf. The couple’s account was disputed by White House officials, who said the conversations were far more cordial than the TV hosts described.

As The Daily Beast reported last year, Kushner was one of the senior officials who privately spoke to Scarborough about the matter. According to two White House officials, Scarborough had “calmly sought” advice from Kushner, who “recommended he speak with the president.” Scarborough did not know that Kushner had also been directly in touch with the Enquirer’s publisher at the time, according to a source familiar with the matter.

But I’m just as interested in the spread, from the same period as the Saudi propaganda, seemingly pre-empting a Flynn cooperation agreement with Mueller by attacking him as “the Russian spy in Trump’s midst.”

The claim that “Trump catches Russia’s White House spy” — clearly an attempt to smear Mike Flynn — actually got me to drop the $4.99 for a copy of the National Enquirer to read the hit job. And it’s actually more than a contrived effort to claim Flynn is a Russian spy: it’s a four-page spread, implicating Hillary and Mike Pence, too.

[snip]

While the Flynn story has been viewed — particularly alongside unsubstantiated claims that Flynn is cooperating with the FBI — as an attempt to damage him for snitching, it almost certainly dates to earlier than more recent attacks on Flynn, and in conjunction with stories of loyalty oaths from Pence appears tame by comparison.

If he did, the newly cooperative David Pecker has probably already made that clear to authorities.

If Jared — the guy whom Flynn witnessed trying to set up a back channel with Russia — planted a smear attempting to paint Flynn as a Russian infiltrator, it suggests he had reason all the way back in March to try to undercut Flynn. And then, in November, when he had chance to help Flynn out of his legal woes in November, he reportedly did not do so.

It still never pays to bet against the legal skills of Abbe Lowell. Jared is still likely to skate.

But these details sure change my understanding about which collusion egg Mueller cracked first.

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

Trump Is Willing to Pay for Joint Defense for Hope Hicks, But Not for France

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

I keep coming back to this exchange between Dana Bash and Rudy Giuliani over the weekend.

BASH:  But let’s just focus on one of the things that you said…

GIULIANI: Go.

BASH: … that there is no evidence — you say that the special counsel hasn’t produced evidence.

But they haven’t said that they have no evidence. They have — you say that there have been leaks. They have been remarkably tight-lipped, aside from what they have had to do with indictments and such.

GIULIANI: No, they haven’t. They leaked reports. They leaked reports. They leaked meetings. They’re leaking on Manafort right now. They leaked Cohen before it happened.

BASH: But this is an ongoing investigation. We don’t really know what they have and what they don’t have. That’s fair, right?

GIULIANI: Well, I have a pretty good idea because I have seen all the documents that they have. We have debriefed all their witnesses. And we have pressed them numerous times.

BASH: You have debriefed all of their witnesses?

GIULIANI: Well, I think so, I mean, the ones that were — the ones that were involved in the joint defense agreement, which constitutes all the critical ones.

They have nothing, Dana. They wouldn’t be pressing for this interview if they had anything. [my emphasis]

Rudy asserts that every critical witness is a member of a Joint Defense Agreement involving Trump.

That’s a big Joint Defense Agreement. It also suggests that if Mueller can learn who is in it, he’s got a map of everyone that Trump himself thinks was involved in the conspiracy with Russia.

Some people will be obvious — not least, because they share lawyers. Witnesses with shared lawyers include:

Erik Prince, Sam Clovis, Mark Corallo (represented by Victoria Toensing)

Reince Priebus, Steve Bannon, Don McGahn (represented by William Burck)

Don Jr, Rhona Graff (represented by Trump Organization lawyer Alan Futerfas)

Almost certainly, it includes the key witnesses who’ve been moved onto various parts of the Reelection campaign, including 2020 convention security head Keith Schiller (represented by Stuart Sears) and Brad Parscale (defense attorney unknown).

Others are obvious because we know they’re centrally involved — people like Jared Kushner (represented by Abbe Lowell) and Hope Hicks (represented by Robert Trout). Indeed, Hicks may also fall into the category of shared lawyers — at least from the same firm — as Trout Cacheris & Janis got paid $451,779 by the RNC in April for representing Hope and two other witnesses.

One implication from this (which would be unbelievable, if true) is that Paul Manafort remains a part of the Joint Defense Agreement. But that is the only way that Trump can assess his vulnerability — as he has in the past, and appears to have shared with the Russians — to go exclusively through Manafort.

There are other implications of claiming that every critical witness is part of the Joint Defense Agreement — including that the Attorney General (represented by Iran-Contra escape artist lawyer Charles Cooper) must be part of it too. So, too, must Stephen Miller (defense attorney unknown).

But here’s the really telling thing. A key part of Trump’s foreign policy — one he’ll be focusing on relentlessly in advance of next week’s NATO summit — is that other members of the United States’ alliances are freeloaders. He’s demanding that NATO members all start paying their own way for our mutual defense.

But Trump is willing to make sure that those protecting him get paid (even if he’s not willing to pay himself). (I stole this observation from an interlocutor on Twitter.)

Which is saying something about what Trump is willing to do when he, himself, is at risk.

The Mueller Subpoena Starts at the Moment a Real Estate Deal in Moscow Might Get Trump Elected

Axios got a copy of a subpoena someone got from Robert Mueller last month. It asks for all communications (including handwritten notes) “this witness sent and received regarding the following people.” The list of people includes a lot of people you’d expect, but it’s missing a few:

  1. Carter Page
  2. Corey Lewandowski
  3. Donald J. Trump
  4. Hope Hicks
  5. Keith Schiller
  6. Michael Cohen
  7. Paul Manafort
  8. Rick Gates
  9. Roger Stone
  10. Steve Bannon

Cooperating witnesses George Papadopoulos and Mike Flynn aren’t on this list, but cooperating witness Rick Gates is (which may date the subpoena to before Gates flipped on February 23). The order is of particular interest (or, maybe they’re just alpha order by first name): Page, the long term suspected Russian asset, followed immediately by Lewandowski, who was in the loop on the stolen email offer, followed by the President and those closest to him, followed by Manafort and his closest aide. Then Stone and then — in the same month he gave 20 hours of testimony — Bannon.

Neither Don Jr nor Kushner is on this list. Given the emphasis on communications “regarding” the listed people, and given the way that Abbe Lowell purposely avoided giving “about”communications to Congress (and possibly to Mueller), and also given that Jonathan Swan is Axios’ key White House scoopster, I actually don’t rule out the witness being Jared. Or, as I joked on Twitter, like Flynn and Papadopoulos, maybe he has already flipped and so isn’t on this list.

Whoever it is, the absences on the list are probably a function of who is legitimately in this person’s circle.

Perhaps most telling, however, is the timing: November 1, 2015, to the present. Recall that on November 3, sometime FBI informant Felix Sater sent Michael Cohen (on the list) an email promising that a real estate deal in Moscow might lead to Trump becoming President. (Here’s the original WaPo scoop on the story.)

On November 3, 2015, two months before the GOP primary started in earnest and barely over a year before the presidential election, mobbed up real estate broker and sometime FBI informant Felix Sater emailed Trump Organization Executive Vice President and Special Counsel to Trump, Michael Cohen. According to the fragment we read, Sater boasts of his access to Putin going back to 2006 (when the Ivanka incident reportedly happened), and said “we can engineer” “our boy” becoming “President of the USA.”

[snip]

Mr. Sater, a Russian immigrant, said he had lined up financing for the Trump Tower deal with VTB Bank, a Russian bank that was under American sanctions for involvement in Moscow’s efforts to undermine democracy in Ukraine. In another email, Mr. Sater envisioned a ribbon-cutting ceremony in Moscow.

“I will get Putin on this program and we will get Donald elected,” Mr. Sater wrote.

That’s the start date Mueller uses for potential communications among people including Trump’s closest aides, including Cohen (but not including Sater) in the Russian investigation.

Update: Adding, we know that on October 21, 2016, the FBI had investigations into Manafort, Page, Stone, and possibly Gates. Is it possible this list is the sum of all those against whom sub-investigations have been opened (or were at the time this subpoena was issued)?

Kushner Floats! Was Trump’s Witch Hunt Outburst about Jared Losing Clearance?

President Trump had one of his regular tweetbursts this morning about the Mueller investigation, culminating in an all caps tweet WITCH HUNT!

These outbursts are admittedly routine. But there was something unusual about this one. As MMFA’s Lis Starr noted, the three tweets leading up to this, citing Judge Napolitano, Johnathan Turley, and Ken Starr, were all reruns of Fox coverage from the last several days.

In other words, Trump resorted to the DVR to be able to justify his rant this morning. Clearly, he’s even more obsessed today than normal.

That, plus one more detail, makes me wonder whether Trump was reacting to new approaches put in place after Jared (and probably Ivanka) had his clearance downgraded to Secret on Friday.

A memo sent Friday downgraded the presidential son-in-law and adviser and other White House aides who had been working on interim clearances.

Presidential son-in-law and adviser Jared Kushner has had his security clearance downgraded — a move that will prevent him from viewing many of the sensitive documents to which he once had unfettered access.

Kushner is not alone. All White House aides working on the highest-level interim clearances — at the Top Secret/SCI-level — were informed in a memo sent Friday that their clearances would be downgraded to the Secret level, according to three people with knowledge of the situation.

The SCI acronym stands for sensitive compartmentalized information, a category of information that comes from sensitive intelligence sources and must be walled off.

The memo was not signed by chief of staff John Kelly, but it comes as the retired Marine general and other top White House aides are grappling with the fallout of a scandal involving former White House staff secretary Rob Porter, which revealed that dozens of White House aides had yet to receive permanent clearances but nonetheless had access to some of the country’s deepest secrets.

There are several interesting tidbits about the Politico story reporting that Jared has finally been stripped of his TS/SCI interim clearance. First, John Kelly didn’t sign the memo, even though that’s who Trump put in charge of over-riding typical clearance process to protect his spawn. If Don McGahn signed it, it might mean Friday’s memo came after a follow-up to Robert Mueller’s boss, Rod Rosenstein, informing him, back on February 9, of significant new information that required review before he could be cleared.

Also, Politico cites a statement from Abbe Lowell, Jared’s defense attorney.

Kushner’s attorney Abbe Lowell said in a statement that Kushner “has done more than what is expected of him in this process.”

Lowell added that the changes would “not affect Mr. Kushner’s ability to continue to do the very important work he has been assigned by the president.”

But the statement is just the same one he used back on February 16, when news of Jared’s impending clearance problems first came out. Lowell still has yet to issue any new bravado since he went silent in the face of last week’s more serious reports.

Meanwhile, Jared is not staying out of trouble. The Trump 2020 campaign announced that Brad Parscale — one of the people most suspect for coordinating data analysis with the Russians — would run his 2020 re-election campaign. The announcement included this quote from Kushner.

Jared Kushner, Senior Advisor and Assistant to the President, and President Trump’s son-in-law, said, “Brady was essential in bringing a disciplined technology and data-driven approach to how the 2016 campaign was run. His leadership and expertise will be help [sic] build a best-in-class campaign.”

Even aside from the typo, this is a no-no, as it ties Kushner’s official White House role to a campaign document.

I almost wonder whether all their fundraising is about paying lawyers at this point. On Friday, CNBC reported that when RNC stopped paying the legal defense of people like Don Jr, it started paying rent at Trump Tower. And the legal defense to pay Trump aides’ legal fees also just went active. Increasingly, it seems, the Trump “campaign” is all about staying out of prison.

Meanwhile, the Kushner family’s partner on the underwater 666 Fifth Avenue is negotiating to get out.

Kushner Cos. says it’s negotiating to buy the 49.5 percent of a debt-laden office tower on Manhattan’s Fifth Avenue that it doesn’t already own from partner Vornado Realty Trust.

Christine Taylor, a spokeswoman for Kushner Cos., declined to elaborate on terms for either the purchase or a restructuring of the building’s debt. A Vornado representative didn’t immediately respond to a request for comment. The talks were first reported Tuesday by the Wall Street Journal.

Earlier this month, Vornado recategorized how it accounts for the property, 666 Fifth Ave., because “we do not intend to hold this asset on a long-term basis,” it said in an annual report. That language typically means the company plans to unload an asset within a year, a person familiar with Vornado’s thinking said at the time.

That’s going to shine a lot more light on Kushner’s finances, and his efforts to abuse his position as his father-in-law’s “peace” negotiator to get bailed out by any number of slimy foreign oligarchs.

Jared’s in real trouble. It’s a wonder he can stay afloat amid this witch hunt.

Update: Bingo.

Officials in at least four countries have privately discussed ways they can manipulate Jared Kushner, the president’s son-in-law and senior adviser, by taking advantage of his complex business arrangements, financial difficulties and lack of foreign policy experience, according to current and former U.S. officials familiar with intelligence reports on the matter.

Among those nations discussing ways to influence Kushner to their advantage were the United Arab Emirates, China, Israel and Mexico, the current and former officials said.

It is unclear if any of those countries acted on the discussions, but Kushner’s contacts with certain foreign government officials have raised concerns inside the White House and are a reason he has been unable to obtain a permanent security clearance, the officials said.

[snip]

White House officials said [National Security Advisor HR] McMaster was taken aback by some of Kushner’s foreign contacts.

“When he learned about it, it surprised him,” one official said. “He thought that was weird…It was an unusual thing. I don’t know that any White House has done it this way before.”

Meanwhile, the normally loquacious Abbe Lowell is outsourcing the no-commenting to a spokesperson.

“We will not respond substantively to unnamed sources peddling second-hand hearsay with rank speculation that continue to leak inaccurate information,” said Peter Mirijanian, a spokesman for Kushner’s lawyer.

Update: Let’s look more closely at something loquacious Abbe Lowell had to say the last time he wanted to go on the record about his client, on February 16.

Lowell said Kushner’s job is “to talk with foreign officials, which he has done and continues to do properly.”

He was denying, 11 days ago, something only now being aired: that Kushner wasn’t properly alerting the NSC of his contacts with foreign leaders. But now we know, he wasn’t properly alerting the National Security Advisor — the one that replaced the one who lied to the FBI about his contacts with foreigners, I mean.

No wonder Lowell has gone silent.

Abbe Lowell’s Unusual Silence in the Face of Jared Kushner’s Clearance Woes

Abbe Lowell’s a very good defense attorney. He’s also of the ilk that works the press.

As one example, note Lowell’s false bravado quotes from one of the first stories to contemplate how John Kelly’s new rules about long term clearance problems would (not) affect Jared’s work.

Abbe Lowell, an attorney for Kushner, said Kelly’s directive “will not affect Mr. Kushner’s ability to continue to do the very important work he has been assigned by the president.” White House officials declined to comment on how the new policies would specifically affect Kushner.

[snip]

Lowell, Kushner’s attorney, said Kushner had disclosed more information on his security forms than was required out of an abundance of caution.

“My inquiries to those involved again have confirmed that there are a dozen or more people at Mr. Kushner’s level whose process is delayed, that it is not uncommon for this process to take this long in a new administration, that the current backlogs are being addressed, and no concerns were raised about Mr. Kushner’s application,” he said in a statement.

[snip]

Lowell said Kushner’s job is “to talk with foreign officials, which he has done and continues to do properly.”

Which is, in my opinion, why the following detail, in three different stories about the “important new information” DOJ obtained that would delay Jared’s clearance, is so significant. Lowell declined to comment to the original story in WaPo.

Kushner’s lawyer, Abbe Lowell, declined to comment.

Then there was this NYT story which seems to reflect White House officials and Jared’s lawyers realizing (for the first time?!?!?!) that he’s not just a witness in this investigation.

The White House was not told what the issues were involving Mr. Kushner, President Trump’s son-in-law and senior adviser. But the notification led White House lawyers and aides to believe that they were more problematic than the complexity of his finances and his initial failure to disclose contacts with foreign leaders.

[snip]

The interview led Mr. Kushner’s lawyers to believe that he was considered a witness, not a target, in the special counsel investigation.

For that story, too, Lowell went silent.

[A] lawyer for Mr. Kushner, Abbe D. Lowell, declined to comment.

With Axios, Lowell appears to have just blown off the request for comment.

Kushner’s lawer, Abbe Lowell, did not immediately respond to Axios’ request for comment.

I don’t mean to make light of this. It’s no laughing matter. But Lowell’s silence appears to indicate either that he is sussing out second-hand — or he has since the February 16 story learned directly — that his client is in deeper shit than he realized.

Jared’s Clearance and the Foreign Policy Version of Conspiracy to Defraud America


I confess there is no multi-day Trump story I’ve looked forward to more than the problem with Jared Kushner’s clearance. And it is officially here. Last night, the NYT described how Jared is butting heads with John Kelly over whether he’ll lose clearance under Kelly’s post-Rob Porter mandate that people who can’t be cleared won’t be kept around anymore.

Kushner, frustrated about the security clearance issue and concerned that Mr. Kelly has targeted him personally with the directive, has told colleagues at the White House that he is reluctant to give up his high-level access, the officials said. In the talks, the officials say, Mr. Kushner has insisted that he maintain his current level of access, including the ability to review the daily intelligence briefing when he sees fit.

Today CNN and WaPo weigh in, with CNN nodding towards the conflict this will present Trump.

Though a source familiar with the situation said Kushner has not yet appealed to the President directly about his access to highly classified information, those close to Trump believe he would be inclined to grant his son-in-law access if asked. This source pointed to the fact that Kushner is part of the President’s family and has outlasted all of his rivals in Trump’s inner circle, including former chief of staff Reince Priebus, former chief strategist Steve Bannon, former campaign manager Corey Lewandowski and former deputy campaign manager David Bossie.

Trump, however, has given Kelly his full support in efforts to reform the White House’s system of security clearances, and has told his chief of staff that changes need to be made to bring the system into order, according to a person who has spoken to him about the matter. Kelly has interpreted that as a wide-ranging mandate that would include Kushner, a person familiar with the matter said. The person said Trump and Kelly would likely discuss the matter this week, if they haven’t already, before Kelly’s self-imposed Friday deadline.

WaPo brings the appropriate level of skepticism over whether Kushner can really do his Fake Peace Plan job without clearance.

It is not clear how Kushner could perform his job without a high-level security clearance.

He holds a broad range of responsibilities, from overseeing peace efforts in the Middle East to improving the efficiency of the federal government. And he is the administration’s interlocutor with key allies, including China and Saudi Arabia, where he has developed a personal relationship with the young crown prince, Mohammed bin Salman.

[snip]

And apart from staff on the National Security Council, he issues more requests for information to the intelligence community than any White House employee, according to a person with knowledge of the situation, who spoke on the condition of anonymity to describe private discussions.

More importantly, WaPo includes a series of false bravado quotes from Jared’s defense attorney, Abbe Lowell, who bizarrely offered up his judgement that Jared is speaking with foreign officials “properly.”

“My inquiries to those involved again have confirmed that there are a dozen or more people at Mr. Kushner’s level whose process is delayed, that it is not uncommon for this process to take this long in a new administration, that the current backlogs are being addressed, and no concerns were raised about Mr. Kushner’s application,” he said in a statement.

[snip]

Lowell said Kushner’s job is “to talk with foreign officials, which he has done and continues to do properly.”

I’ve come to think of Kushner’s clearance process in similar terms to the way I’ve thought of the bail process Mueller has used with Paul Manafort and Rick Gates: While Gates ultimately did make bail, Manafort is still (!) almost four months after his arrest, struggling to show enough liquidity free of taint from his money laundering to alter his release conditions. The process of making bail (and having to serially beg to attend his kids’ soccer events) seems to have been one of the factors that brought Gates to the point of flipping, but along the way, he probably gave Mueller’s team far more leverage in plea negotiations, because they know how little Gates actually has to pay a defense attorney to oversee the flip (indeed, that may lie behind the confusion over Gates’ current legal representation).

Kushner’s liquidity problems are literally an order of magnitude greater than these men. But unlike them, he made the idiotic decision to work in the White House, and thereby to undergo the scrutiny of sworn statements laying out all the financial vulnerabilities and foreign entanglements that might make him susceptible to blackmail.

Which brings me back to my description of how Mueller is leveraging “conspiracy to defraud the United States” (what I will henceforward refer to as ConFraudUS*) charges to prosecute political influence peddling for which our regulatory system has completely collapsed. With the Internet Research Agency indictment, Mueller charged ConFraudUS because the trolls bypassed a campaign finance system that no longer works. With Manafort and Gates, Mueller charged ConFraudUS because they bypassed Foreign Agents Registration Act requirements that have never been enforced.

In the old days, to pursue the kind of quid pro quo we see outlines of, in which Trump officials (from George Papadopoulos’ proposed business with Sergei Millian to the possibility Kushner might get bailed out by the Russian Direct Investment Fund, which is itself a cut-out for the sanctioned Vnesheconombank, whose head, Sergey Gorkov, Kushner met in December 2016), you’d pursue bribery. But post-Bob McDonnell, bribery is a far tougher charge to make stick, as Mueller prosecutor Andrew Goldstein, who worked on the Sheldon Silver prosecution team, knows well.

What if, however, you could charge people whose meetings seamlessly tie the foreign policy decisions of the United States with discussions of their own financial interests, with ConFraudUS? That might make it easier to charge someone whose foreign policy decisions don’t serve the US interest but might enrich them for the quid pro quo entailed.

Which is why I’m interested in the report that Mueller has shown increased interest (almost certainly tied to Steven Bannon’s public pronouncements that, “It goes through Deutsche Bank and all the Kushner shit”) in Jared’s foreign financial dealings, how he has mixed his business interests and US foreign policy.

One line of questioning from Mueller’s team involves discussions Kushner had with Chinese investors during the transition, according to the sources familiar with the inquiry.
A week after Trump’s election, Kushner met with the chairman and other executives of Anbang Insurance, the Chinese conglomerate that also owns the Waldorf Astoria hotel in New York, according to The New York Times.

At the time, Kushner and Anbang’s chairman, Wu Xiaohui, were close to finishing a deal for the Chinese insurer to invest in the flagship Kushner Companies property, 666 Fifth Avenue. Talks between the two companies collapsed in March, according to the Times.

Mueller’s team has also asked about Kushner’s dealings with a Qatari investor regarding the same property, according to one of the sources. Kushner and his company were negotiating for financing from a prominent Qatari investor, former prime minister Hamad bin Jassim Al Thani, according to The Intercept. But as with Anbang, these efforts stalled.

Lowell’s false bravado in this report is even more ridiculous than that in the clearance stories.

A representative for Kushner declined to comment prior to the publication of this story. After publication, Kushner attorney Abbe Lowell told CNN in a statement, “Another anonymous source with questionable motives now contradicts the facts — in all of Mr. Kushner’s extensive cooperation with all inquiries, there has not been a single question asked nor document sought on the 666 building or Kushner Co. deals. Nor would there be any reason to question these regular business transactions.”

Lowell may not have turned over any documents relating to 666 Fifth Avenue. But Deutsche Bank got subpoenas even before Bannon started running his mouth (albeit in a separate EDNY probe). Moreover, the key detail under my imagined ConFraudUS charge would be whether Kushner did things — like try to get Chinese investors visas — that didn’t serve or indeed violated the interests of the United States. Admittedly, the President gets largely unfettered control over the foreign policy of the United States (though Trump has defied Congress in areas where they do have some control). But to the extent Jared pursued his own business interests during the transition, he wouldn’t be able to claim to rely on presidential prerogative.

Which brings me back to Jared’s long struggle to get a security clearance.

Abbe Lowell may not have turned over the financial documents on 666 Fifth Avenue that would show how susceptible Jared’s debt woes make him to foreign influence. But he has serially provided that evidence in support of Jared’s almost certainly futile attempt to convince the FBI he should get a permanent TS/SCI security clearance.

I laid this out yesterday at the very end of my Democracy Now appearance:

I think—the reason why Kushner’s business deals are important, we’ve talked—and in the intro, this wasn’t the only example of—there’s the Don Jr. We’ve talked about how poorly Trump’s people have separated his business interests from the interests of the country. The same is even more true for Jared Kushner, whose family business is basically bankrupt. And over and over again, he’s been shown to be in negotiations with entities, including Russians, but also Chinese and Middle Eastern. So, you know, he’ll go in and say, “OK, we’ll talk about this grand peace plan,” which is not about peace at all, “but, oh, by the way, can you bail out our 666 Park Avenue building, which is badly underwater?” And I think Mueller could make the same argument he’s made with the IRA indictment and the Manafort indictment, and say that Jared Kushner is pretending to be serving America’s foreign policy interests, but in fact he is just doing his own bidding. He’s just trying to bail out his own company. So I wouldn’t be surprised if he’s moving towards a very similar indictment on conspiracy to defraud the United States, having to do with his conflicts of interest.

AMY GOODMAN: And, of course, interesting that Kushner also hasn’t managed to get top security clearance, when he’s a senior adviser to President Trump, as Porter didn’t because he beat his wives, etc. And then you’ve got Donald Jr. now in India promoting Trump businesses, as, of course, Donald Trump is the president of the United States. And he’s standing with the prime minister of India as he does this, promoting the Trump brand, Marcy.

MARCY WHEELER: Exactly. I mean, if Trump and his son and his son-in-law are pretending to be doing the business of the United States but are instead just trying to enrich themselves, again, I don’t think it’s a—you know, we’ve talked about the Emoluments Clause and how you go after the Trump campaign—the Trump officials for their egregious conflicts of interest. And, frankly, it extends into his Cabinet. But what Mueller seems to be doing, with some very good appellate lawyers, by the way, is to be laying out this framework that if you are pretending to be doing something in the interest of the United States but are actually doing something else, serving somebody else’s bidding, whether it’s Russia, pro-Russian Ukrainian political party, or whether it’s your own family business, then they’re going to go after you for a conspiracy charge. And I wouldn’t be surprised if these conspiracy charges all kind of link up at the end, in this kind of grand moment of—I think that’s where he’s headed.

Remember, Trump and his spawn never really thought they’d win the election. Instead, they seemed interested in, among other things, a Trump Tower in Moscow and refinancing 666 Fifth Avenue. But if they made deals with Russians in hopes such personal financial benefits would result, a ConFraudUS charge might be a way to prosecute them for it.

*I originally shortened this “CTDTUS,” but following Peter Crowley’s suggestion, I’m instead using “ConFraudUS.”

 

[Note: At the top of this post there is an embedded video of Marcy’s interview with Democracy Now. It isn’t rendering properly on all browsers and operating systems and may appear as a blank space. You can watch the video or listen to audio at this link. /~R]

Why Republicans Launched the GSA Email Attack Now

I think most people are missing the significance of why the Republicans launched their attack on the GSA over the weekend (this post is a summary of what we know, with updates).

That’s true, in part, because people are misunderstanding what the Trump for America team recently learned. It’s not — as many have claimed — that they only recently learned Mueller had emails beyond what TFA had turned over to Congress and through that to Mueller. As Axios reported, “Trump officials discovered Mueller had the emails when his prosecutors used them as the basis for questions to witnesses, the sources said.” That is, Mueller has been asking questions based off these emails for months.

The timing of this complaint — not the complaint itself — is key

What TFA only discovered last week, according to their letter, at least, is how Mueller obtained them — by asking, just like prosecutors reviewing government communications in the course of investigating possible violations of the Espionage Act always do, especially if the subjects of the investigation have access to classified documents.

We discovered the unauthorized disclosures by the GSA on December 12 and 13, 2017. When we learned that the Special Counsel’s Office had received certain laptops and cell phones containing privileged materials, we initially raised our concerns with Brandon Van Grack in the Special Counsel’s Office on December 12, 2017. Mr. Van Grack confirmed that the Special Counsel’s Office had obtained certain laptops, cell phones, and at least one iPad from the GSA – but he assured us that the Special Counsel’s investigation did not recover any emails or other relevant data from that hardware. During this exchange, Mr. Van Grack failed to disclose the critical fact that undercut the importance of his representations, namely, that the Special Counsel’s Office had simultaneously received from the GSA tens of thousands of emails, including a very significant volume of privileged material, and that the Special Counsel’s Office was actively using those materials without any notice to TFA.1 Mr. Van Grack also declined to inform us of the identities of the 13 individuals whose materials were at issue.

The government has great leeway to access government communications, as Peter Strzok, the former counterintelligence FBI Agent who just had his own communications leaked and then released to the world, would probably be all too happy to tell you. All the more so given allegations that files went missing from the Transition SCIF, just as Jared Kushner was talking about back channel communications with the Russians.

So what’s new is not that Mueller had the emails (about which no one has complained before). But that he obtained the email inboxes of 13 people, including Jared, from GSA without letting the Transition do their own review of what to turn over.

Trump’s team may face obstruction charges

As I made clear here, it appears that one reason the Trump people are so angry is that Mueller has probably caught them failing to turn over emails that are absolutely material to the investigation, such as KT McFarland’s “Thrown election” email. Whoever did these document reviews may now be exposed to obstruction charges for withholding such material, which in turn would give Mueller leverage over them for their own further cooperation.

[Update: I should have said, withholding emails will only be a problem if the Transition was otherwise obligated (say, by subpoena) to turn them over. Mueller did subpoena the campaign for a similar set of emails; but since he didn’t need to from GSA, he may not have here.]

Mueller has far more damning information on Jared than Trump’s folks expected

Just as importantly, Axios explicitly said the emails include Jared Kushner’s emails (indeed, given his public claims about how many people he spoke to during the transition, I wouldn’t be surprised if his was the email box that had 7,000 emails).

As I have shown, Jared has been approaching disclosure issues (at least with Congress) very narrowly, ignoring clear requests to turn over his discussions about the topic of the investigation, and not just with the targets of it. If Mueller obtained all his emails, he’d have those “about” emails that Jared purposely and contemptuously has withheld from others.

We know that Jared is a key interim Mueller target here (and Abbe Lowell’s search for a crisis communications firm to help sure suggests Jared’s defense team knows that too). We know he felt the need to explain how he went from responding to a personalized Vladimir Putin congratulatory email on November 9 to asking Dmitri Simes for Sergei Kislyak’s name.

Take, for example, the public statement prepared for testimony to congressional committees by the president’s son-in-law and adviser Jared Kushner. There, he revealed that on the day after the election, in response to a congratulatory email from Russian President Vladimir Putin, he asked the publisher of The National Interest, Dimitri Simes, for the name of Russia’s ambassador to the United States. “On November 9, the day after the election, I could not even remember the name of the Russian ambassador,” Kushner claimed. “When the campaign received an email purporting to be an official note of congratulations from President Putin, I was asked how we could verify it was real. To do so, I thought the best way would be to ask the only contact I recalled meeting from the Russian government, which was the ambassador I had met months earlier, so I sent an email asking Mr. Simes, ‘What is the name of the Russian ambassador?’”

We also know that Mueller’s team has expressed some skepticism about Kushner’s previous public claims — and I would bet money this includes that email.

CNN recently reported, however, that in an interview conducted in the weeks before Flynn’s plea deal, “Mueller’s team asked Kushner to clear up some questions he was asked by lawmakers and details that emerged through media reports.” So Mueller’s team may now have doubts about the explanation Kushner offered for his interest in speaking with Kislyak as one of the first things he did after his father-in-law got elected.

If Mueller has all Jared’s emails and those emails disclose far more about the negotiations with all foreign powers conducted during the transition (including with Bibi Netanyahu on settlements, but obviously also with Russia), and Trump’s people recognize those emails expose Jared to serious charges, then of course they’re going to complain now, as the expectation that Mueller might soon indict Kushner grows.

Mueller has an outline of places where Trump was personally involved

Most importantly, consider what those morons laid out: they want to claim that these emails from the transition period — emails they insist were not government emails — are protected by Executive Privilege.

The legal claim is ridiculous; as I and far smarter people have noted, you don’t get Executive Privilege until you become the actual Executive on inauguration day.

But that they made the claim is telling (and really fucking stupid).

Because that tells us which emails Trump officials believe involve communications directly with Trump. The KT McFarland email, which we know was written from Mar-a-Lago, is a case in point. Did they withhold that because they believe it reflects a conversation with Trump? If so, then we know that Trump was personally involved in the orders to Mike Flynn to ask the Russians to hold off on retaliating for Obama’s sanctions. It might even mean that the language attributed to McFarland — about Russia being the key that unlocks doors, efforts to “discredit[] Trump’s victory by saying it was due to Russian interference, “thrown elections,” and Obama boxing Trump in — is actually Trump’s own language. Indeed, it does sound like stuff he says all the time.

And given that the emails include “speculation about vulnerabilities of Trump nominees, strategizing about press statements, and policy planning on everything from war to taxes,” it might even reflect Trump’s own explanations of why — for example — he couldn’t nominate Flynn to be CIA Director because of his ties to Russia and Turkey.

In the wake of his plea agreement, Flynn’s surrogate made it clear that Trump ordered him to carry out certain actions, especially with Russia. That’s likely a big reason why, in the wake of the Flynn plea, Trump’s people are now squawking that Mueller obtained these emails, emails that may lay out those orders.

Heck. These emails might even reflect Trump ordering Flynn to lie about his outreach to Russia.

Maybe that’s why Trump’s aides have promised to demand Mueller return the emails in question.

All of which is to say, there are things about these emails that explain why this attack is coming now, beyond just a generalized effort to discredit Mueller. The attack is designed to discredit specific avenues of investigation Mueller clearly has in hand. And those avenues reveal far more about the seriousness of the investigation than anything Ty Cobb is willing to claim to appease the President.

That said, the attack is probably too little, too late.

Abbe Lowell’s “No Apparent Evidence” of Jared Kushner Involvement Defense

The other day I examined how Abbe Lowell’s non-responsive answer to Senate Judiciary Committee concerns about the disclosure of his client Jared Kushner revealed that the Intelligence Committees are conducting thoroughly inadequate investigations. He claimed the disclosures to SJC matched those to the ICs, yet he totally blew off the request for documents “about” people and topics of interest. That means the ICs didn’t get Jared’s documents pertaining to people and topics of interest — which is a pretty good way of hiding what Jared knew about Russian tampering.

[C]heck out Lowell’s more general excuse for not turning over such documents:

With respect to the substance of your letter, let me start with the so-called “Missing Documents.” They are not missing at all. As you will note, after I spoke to your staff, I wrote a cover letter with our production. In that letter, I wrote: “We believe that our prior production [to the intelligence committees] contains the most pertinent documents to your inquiry into the June 9, 2016 meeting at Trump Tower, and related matters, and undercut any notion that there was collusion (or even any extensive interaction) between Mr. Kushner and Russia concerning the 2016 election.” The documents provided to those committees fully responded to their requests. That was why we said we would provide those documents to you first to see if anything else was relevant or new, and try to determine whether those documents satisfy your inquiry as well.

This production, which doesn’t include any documents about designated topics (including the June 9 meeting), satisfied the intelligence committees. That means the intelligence committees could not have asked for “about” documents (which is particularly ironic given that they’re both trying to find a way to help NSA turn “about” 702 collection back on). Which in turn means the intelligence committees likely have huge gaps in their understanding of Jared’s awareness of the Russian discussions.

And in addition to all his other contemptuous non-answers to Feinstein’s letter, Lowell says Jared shouldn’t have to sit for an interview with SJC because he already sat for 6 hours with the other committees, the committees that didn’t ask for “about” documents and therefore don’t have a complete picture of Jared’s involvement.

It turns out Adam Schiff now agrees that they didn’t have the documents necessary to provide adequate preparation to question Jared.

Rep. Adam Schiff (D., Calif.), the top Democrat on the House Intelligence Committee, said in an interview that Mr. Kushner had been interviewed “prematurely,” when the committee was “not ready.”

“We didn’t have the advantage of documents that we would have wanted to ask [him] about,” he said.

A failure to obtain and review the documents necessary to understand Jared’s action seems to be a trend.

Which is why I’m so interested in this comment, from Lowell, about whether Jared — widely reported to have been a key player in convincing Trump to fire Comey —

At the Oval Office meeting on Monday, May 8, Trump described his draft termination letter to top aides who wandered in and out of the room, including then-Chief of Staff Reince Priebus, White House Counsel Donald McGahn and senior adviser Hope Hicks. Pence arrived late, after the meeting had begun. They were also joined by Miller and Trump’s son-in-law, Jared Kushner, both of whom had been with Trump over the weekend in Bedminster. Kushner supported the president’s decision.

— Seems to have not heard of such thing. (See also this post.)

Mr. Lowell said in an interview, “When the president made the decision to fire FBI Director Comey, Mr. Kushner supported it.” A White House attorney added that Mr. Kushner had “no meaningful role” in the decision: “There’s no apparent evidence of Jared’s involvement in any decision-making process having to do with Mr. Comey’s firing.”

“No apparent evidence” sounds like the line of a lawyer that’s not budging beyond what he has seen in document review. But if he has designed all his document review — even to the point of ignoring the instructions from Congress — to avoid turning over any communications that reflect Kushner’s thinking about events he wasn’t personally involved in, then he’s not going to have stumbled across the most pertinent documents.

Which is to say, there may well be a good deal of evidence. But it does’t seem like Lowell’s working very hard to find out if there is.

In any case, while you’re reading this, about Mueller’s interest in Jared’s contacts, even beyond those with Russian bankers, this post on Jared’s so-called peace plan is on point.

Abbe Lowell Reveals the Complete Inadequacy of the Intelligence Committee Russian Investigations

As noted, the press has been focused on the Senate Judiciary Committee’s revelation that Jared Kushner failed to turn over several documents known to exist, which has led to more details about efforts by Aleksander Torshin to meet with people associated with the campaign.

Here are the things identified to be missing from Jared’s production to SJC.

In addition, there are several documents that are known to exist but were not included in your production. For example, other parties have produced September 2016 email communications to Mr. Kushner concerning WikiLeaks, which Mr. Kushner then forwarded to another campaign official. Such documents should have been produced in response to the third request but were not. Likewise, other parties have produced documents concerning a “Russian backdoor overture and dinner invite” which Mr. Kushner also forwarded. And still others have produced communications with Sergei Millian, copied to Mr. Kushner.

In response to the Feinstein letter revealing these details, Jared’s lawyer, the very capable Abbe Lowell, wrote back, scolding Feinstein (though the letter is also addressed to Chuck Grassley) for releasing her letter to the press. But in fact, Lowell’s letter is not responsive to four of the items laid out in Feinstein’s letter. And the way in which Lowell doesn’t respond reveals the complete inadequacy of the Intelligence Committee Russian investigations.

The four things (I noticed that) Lowell doesn’t address are:

  • A request for a copy of Jared’s own copy of his SF-86 applications
  • A privilege log
  • Call records pertaining to some of the requests
  • Communications “about” certain individuals

A request for a copy of Jared’s own copy of his SF-86 applications

Feinstein’s letter notes that Jared should have a copy of his SF-86 applications and asks for them.

However, if Mr. Kushner or his counsel retained copies of the forms, you should produce them. The SF-86 instructions explicitly advise the applicant to “retain a copy of the completed form for your records.” Moreover, with regard to your claim that the documents are confidential, while the Privacy Act limits the government’s authority to release the information provided to it, there is no restriction on your client’s ability to provide that information to Congress.

Lowell simply notes that SJC is pursuing this, and scoffs that Jared’s serially incomplete SF-86 forms might be relevant to the inquiry.

I explained to your staff that documents concerning the SF-86 are deemed government personnel records, and I know the Committee is pursuing these (again with whatever relevance they could possibly have to any real inquiry) from the proper channels.

A privilege log

Feinstein also asked that Jared work with the White House so he could release “certain documents” that might implicate executive privilege, with an eye towards providing a privilege log.

You also raised concerns that certain documents might implicate the President’s Executive Privilege and declined to produce those documents. We ask that you work with White House counsel to resolve any questions of privilege so that you can produce the documents that have been requested or provide a privilege log that describes the documents over which the President is asserting executive privilege.

While Lowell addresses documents that post-date the inauguration, he makes no comment about executive privilege at all.

Call records pertaining to some of the requests

Feinstein’s letter also notes that Jared included no phone records pertaining to some of the requests (she doesn’t say which ones).

You also have not produced any phone records that we presume exist and would relate to Mr. Kushner’s communications regarding several requests.

Lowell does not address that request at all.

Communications “about” certain individuals

Finally, and most interesting to me, even before Feinstein listed the known documents that Jared had failed to turn over, she noted that he had failed to search for communications about certain things.

For example, you limited your production in response to our second request in a manner that eliminates communications about the individuals identified in that request.[1] If, as you suggest, Mr. Kushner was unaware of, for example, any attempts at Russian interference in the 2016 presidential election, then presumably there would be few communications concerning many of the persons identified in our second request, and the corresponding burden of searching would be small.

[1] The Committee requested “[a]ll communications to, form, or copied to you relating to” certain individuals, but you stated that you “found no communications in which these individuals also appear in the to, from, or copy to lines of the communications.”

In fact, the three missing documents all might be considered such “about” communications, as they consist of forwarded emails adding further commentary.

Here’s where Lowell’s response gets really interesting. As with the request for call records, he doesn’t address the failure to search on communications “about” people at all. He doesn’t mention that he has failed to search for documents in the manner directed by the committee.

But for each of the missing documents, he explains why they wouldn’t be relevant in such a way that completely dodges the fact that, as communications “about” the persons in question, they definitely are.

A communication in which he was a copied recipient and was not about Russia contacts by him (or apparently by anyone else) was not responsive to any request about Mr. Kushner’s own contacts.

[snip]

The “Millian” email between Mr. Millian and a reporter, in which Mr. Millian is actually conferring with Michael Cohen and confirming that Mr. Millian has no relationship with the President, is also not one about contacts that Mr. Kushner, or really anyone, had that would be responsive to any relevant request.

[snip]

[of the Torshin email] Again, this was not any contact, call or meeting in which Mr. Kushner was involved.

[snip]

You can see there would be no reason for us not to provide such a clear expression that Mr. Kushner had no contacts with, nor was in collusion with, nor was pursuing any such relationship with Russia except that it was not responsive.

So not only does he offer disingenuous explanations for each of the missing documents — one after another he explains that these emails don’t involve any contact between Jared and the designated person — but he completely ignores that under the terms of the request, they were obviously responsive.

Of course, the only reason SJC learned of these emails is because the other participants in the email chains turned them over. But there are undoubtedly other emails or documents that are “about” these and presumably other requested individuals that others wouldn’t have been party to. And by ignoring the request for “about” documents, Lowell is basically completely blowing off providing those other documents, which would likely be even more interesting.

Just as an example, Jared could very well have had 100 other discussions “about” Wikileaks or Julian Assange with some unknown person, and Lowell’s incomplete search would have hidden it.

Now check out Lowell’s more general excuse for not turning over such documents:

With respect to the substance of your letter, let me start with the so-called “Missing Documents.” They are not missing at all. As you will note, after I spoke to your staff, I wrote a cover letter with our production. In that letter, I wrote: “We believe that our prior production [to the intelligence committees] contains the most pertinent documents to your inquiry into the June 9, 2016 meeting at Trump Tower, and related matters, and undercut any notion that there was collusion (or even any extensive interaction) between Mr. Kushner and Russia concerning the 2016 election.” The documents provided to those committees fully responded to their requests. That was why we said we would provide those documents to you first to see if anything else was relevant or new, and try to determine whether those documents satisfy your inquiry as well.

This production, which doesn’t include any documents about designated topics (including the June 9 meeting), satisfied the intelligence committees. That means the intelligence committees could not have asked for “about” documents (which is particularly ironic given that they’re both trying to find a way to help NSA turn “about” 702 collection back on). Which in turn means the intelligence committees likely have huge gaps in their understanding of Jared’s awareness of the Russian discussions.

And in addition to all his other contemptuous non-answers to Feinstein’s letter, Lowell says Jared shouldn’t have to sit for an interview with SJC because he already sat for 6 hours with the other committees, the committees that didn’t ask for “about” documents and therefore don’t have a complete picture of Jared’s involvement.

This is the scam that’s been going on for almost a year (which is probably why Michael Cohen has been dodging an interview with SJC too).

While his letter is otherwise totally unhelpful, it’s nice of Lowell to so clearly make evidence the inadequacies of the other congressional investigations.

Update: Perhaps Mueller is facing the same problem, because he just subpoenaed the Trump campaign for more documents, by keyword.

The subpoena, which requested documents and emails from the listed campaign officials that reference a set of Russia-related keywords, marked Mr. Mueller’s first official order for information from the campaign, according to the person. The subpoena didn’t compel any officials to testify before Mr. Mueller’s grand jury, the person said.

The subpoena caught the campaign by surprise, the person said. The campaign had previously been voluntarily complying with the special counsel’s requests for information, and had been sharing with Mr. Mueller’s team the documents it provided to congressional committees as part of their probes of Russian interference into the 2016 presidential election.

David Petraeus’ Defense Attorney Argues Mistress-Biographers Have More Legal Privilege than Defense Attorneys

In a letter to the NYT complaining that the paper compared his client, David Petraeus, with Stephen Kim and John Kiriakou, defense attorney David Kendall implicitly makes the argument that mistress-biographers have a better recognized privilege to access classified information than defense attorneys. (h/t Steven Aftergood via Josh Gerstein)

Now, far be it for me to criticize Kendall’s lawyering ability. After all, his firm, Williams & Connolly, has developed quite the expertise for getting well-connected Republicans off for leaking covert officers’ identities, having done so for Ari Fleischer, Dick Cheney, and now David Petraeus.

But his letter is ridiculous on both the facts and his rebuttal of the comparison, at least as it pertains to John Kiriakou.

First, Kendall omits key facts in his depiction of Petraeus’ crimes.

General Petraeus’s case is about the unlawful removal and improper storage of classified materials, not the dissemination of such materials to the public. Indeed, a statement of facts filed with the plea agreement and signed by both General Petraeus and the Justice Department makes clear that “no classified information” from his “black books” (personal notebooks) that were given to his biographer, Paula Broadwell, appeared in the biography.

He notes the plea deal “makes clear that ‘no classified information’ from his ‘black books’ … appeared in the biography.” That’s a very different thing than claiming that no classified information Petraeus shared with Broadwell appeared in her fawning biography of his client — and the record seems to suggest that it does.

Kendall also neglects to mention that this case is also about his client, just days after applauding Kiriakou’s plea, lying to the FBI. While, through the good grace of Kendall’s lawyering, Petraeus has gotten off scot free for a crime that others do years of prison time for, Petraeus nevertheless admitted that he committed that crime.

Indeed, as Abbe Lowell has made clear, that’s what prevented Kim from getting precisely the sweet deal that Petraeus has gotten, his alleged lies to the FBI.

But I’m even more disgusted by Kendall’s cynical treatment of Kiriakou’s crime.

By contrast, Stephen J. Kim arranged for the publication of highly sensitive classified information from an intelligence report on North Korea’s military capabilities, and John C. Kiriakou revealed the identities of covert C.I.A. agents, a betrayal of colleagues “whose secrecy is their only safety,” in the words of a government attorney.

[snip]

Reporters, like biographers, are frequently given access to sensitive information on the understanding that they will not publicize it, and it is hypocritical for The Times to argue for leniency for Mr. Kim and Mr. Kiriakou and harshness for General Petraeus.

Note how Kendall doesn’t describe to whom Kiriakou “revealed the identities of covert C.I.A. agents” [a factual error — Kiriakou was only accused of leaking one covert officer’s identity]? The answer is he revealed the identity of a torturer to a journalist who was working for defense attorneys defending people that torturer had tortured.

Now, clearly, Kendall does defend the right of journalists to receive such classified information if they don’t publicly disclose it. That’s what he argues Petraeus’ mistress has done (the evidence notwithstanding). So according to Kendall’s lawyering, providing that covert officer’s identity to a reporter who didn’t disclose it publicly — which is what happened in Kiriakou’s case —  should have gotten Kiriakou probation.

Ultimately though, Kendall doesn’t even deal with the fact that, whatever scant privilege journalists and mistress-biographers have been granted in this country, defense attorneys have generally been granted more, for good reason. Thus, by all measures, Kiriakou made no worse, and arguably a much more legally defensible disclosure of a CIA officer’s identity than the multiple covert officers’ identities Petraeus exposed to his mistress and anyone else who decided to peruse his unlocked desk drawer.

I mean, I never really expect people in Petraeus’ vicinity to do anything but fluff his reputation; Petraeus has an infallible ability in eliciting that from people he permits to get close (or closer, in the case of Broadwell).

But I am rather surprised that a defense attorney is arguing he should have fewer privileges than a mistress-biographer.