Posts

Paul Manafort’s Ongoing Conspiracy with Suspected Russian Agent Konstantin Kilimnik

Update: The NYT had it correct the first time. They got — badly — played.

Because the NYT corrected an error (noting that Paul Manafort instructed Konstantin Kilimnik to pass on Trump polling data to pro-Russian Ukrainian oligarchs Serhiy Lyovochkin and Rinat Akhmetov, not Russian oligarch Oleg Deripaska), the usual suspects are claiming that the really damning disclosures revealed by Paul Manafort’s filing of the other day don’t yet prove Trump’s campaign manager conspired with Russia.

Manafort already pled guilty to conspiring with Russian Konstantin Kilimnik

I saw claims as recently as the other day that no Trump associate has been charged or pled guilty to conspiring with a Russian. That’s false.

As part of his plea agreement in September, Manafort pled guilty to conspiring with Kilimnik, a Russian citizen, to witness tamper.  Admittedly, this particular conspiracy took place in 2018, not 2016, and it served not to tamper with the 2016 election, but to hide the ways in which Manafort kept secret that he was an agent of Ukraine spending millions to influence US policy. But, as Mueller has described it, Manafort committed a series of crimes designed to hide his ongoing ties to Russian-backed Ukrainian oligarchs after being fired from the Trump campaign in significant part to sustain lies he and Rick Gates told while still working for Donald Trump.

In other words, one purpose of his conspiracy with Kilimnik was to hide the fact that Trump’s campaign manager — who, in spite of being broke, worked for “free” throughout the campaign — had been a paid agent of Ukraine.

The Russian Manafort conspired with, Konstantin Kilimnik is suspected of ties to the same agency that hacked the DNC

Past Mueller filings have made it clear that Kilimnik is suspected to have ties to a Russian intelligence agency. The FBI thinks so.

Federal Bureau of Investigation Special Agents assisting the Special Counsel’s Office assess that [Kilimnik] has ties to a Russian intelligence service and had such ties in 2016

And Rick Gates knew of those ties.

During his first interview with the Special Counsel’s Office, [Alex] van der Zwaan admitted that he knew of that connection, stating that Gates told him [Kilimnik] was a former Russian Intelligence Officer with the GRU.

The GRU, of course, is the Russian intelligence agency that hacked the Democrats in 2016. So Manafort has pled to conspiring not just with any Russian, but a Russian believed to have ties with the agency that hacked the DNC.

Akhmetov was named — in the same interview as Deripaska — in the affidavit for a 2017 probable cause search warrant targeting Manafort

Akhmetov, one of the oligarchs with whom NYT’s correction say Manafort did share data, was described in the probable cause warrant the FBI used to raid Manafort’s condo in July 2017. Indeed, Manafort described working for both Akhmetov and Deripaska in the same period he was supporting Viktor Yanukoych.

This suggests it’s difficult to separate Manafort’s historical criminal behavior involving Akhmetov from that involving Deripaska. And Kilimnik was involved in both.

Akhmetov and Lyovochkin were paying Manafort while he was working for Trump for “free”

As part of Manafort’s spox’s “clarifications” about the disclosures made clear in the redacted filing, he admitted that a $2.4 million payment Manafort anticipated — in an August 2016 email to his accountant — that he would receive in November was from Akhmetov and Lyovochkin. While that payment is understood to be debts owed for past work, his decision to share campaign data with the oligarchs seems to have been tied to ensuring he did get that payment.

If that’s right, it suggests that that $2.4 million payment, at a time when Manafort was broke but nevertheless working for “free,” had some tie to his work on the campaign.

Lyovochkin made an illegal donation to Donald Trump’s inauguration fund

Another Kilimnik business partner, Sam Patten, pled guilty (in part) to laundering a $50,000 donation to Trump’s inauguration fund for tickets to his inauguration.

To circumvent the foreign donation restriction, PATTEN, with the knowledge of Foreigner A, solicited a United States citizen to act as a “straw” purchaser so that he could conceal from the [Presidential Inauguration Committee] that the tickets for the inauguration were being paid for from a foreign source. The straw purchaser paid $50,000 for four inauguration tickets. The straw purchaser paid that sum one day after receiving from [Begemot Ventures] a check signed by PATTEN in the sum of $50,000. In turn, [Lyovochkin] had paid [Begemot] for the tickets though a Cypriot account. [Kilimnik and Lyovochkin] another Ukrainian, and PATTEN were allocated the four inauguration tickets. Thereafter, PATTEN attended a PIC event in Washington, D.C. with [Lyovochkin].

Thus, in addition to paying Trump’s campaign manager during the campaign, Lyovochkin made an illegal donation to Trump’s inauguration (and remember, there are outstanding questions about where all the inauguration funds went).

Manafort discussed Ukraine every time he spoke with Kilimnik during the campaign; those discussions included a Russian-friendly “peace plan”

Among the other lies Manafort told when he was supposed to be cooperating with Mueller pertained to his repeated conversations with Kilimnik. And while Manafort tried to minimize the persistence with which they discussed such things, suggesting he may have discussed a Ukraine peace plan more than once.

After being shown documents, Mr. Manafort “conceded” that he discussed or may have discussed a Ukraine peace plan with Mr. Kilimnik on more than one occasion

But Mueller maintains they have detailed descriptions showing the peace plan came up “at each” meeting they had, which suggests it was a key part of why the Russians and Ukrainians in touch with Manafort through Kilimnik were in touch with him.

And, again, both these lies and Manafort’s lies in 2018 and Manafort’s lies in 2016 and 2017 were all intended to hide these ongoing relationships, in significant part to hide Trump’s campaign ties to all of this.

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

The Significance of the James Wolfe Sentence for Mike Flynn, Leak Investigations, and the Signal Application

Yesterday, Judge Ketanji Brown Jackson sentenced former SSCI head of security James Wolfe to two months in prison for lying to the FBI. In her comments announcing the sentence, Jackson explained why she was giving Wolfe a stiffer sentence than what George Papadopoulos and Alex van der Zwaan received: because Wolfe had abused a position of authority.

“This court routinely sentences people who come from nothing, who have nothing, and whose life circumstances are such that they really don’t have a realistic shot of doing anything other than committing crimes,” Jackson said. “The unfortunate life circumstances of those defendants don’t result in a lower penalty, so why should someone who had every chance of doing the right thing, a person who society rightly expects to live up to high moral and ethical standards and who has no excuse for breaking the law, be treated any better in this regard.”

[snip]

Wolfe’s case was not part of special counsel Robert Mueller’s investigation, but the judge compared his situation to two defendants in the Mueller probe who also pleaded guilty to making false statements — former Trump campaign adviser George Papadopoulos, who spent 12 days in prison, and Dutch lawyer Alex van der Zwaan, who was sentenced to 30 days. Jackson concluded that Wolfe’s position as head of security for the Intelligence Committee was an “aggravating” factor.

The public shame he had endured, and the loss of his job and reputation, were not punishment enough, the judge said, but were rather the “natural consequence of having chosen to break the law.”

“You made blatant false statements directly to FBI agents who questioned you about matters of significance in the context of an ongoing investigation. And if anything, the fact that you were a government official tasked with responsibility for protecting government secrets yourself seems to make you more culpable than van der Zwaan and Papadopoulos, who held no such positions,” Jackson said.

While the resolution of this case is itself notable, it has likely significance in three other areas: for Mike Flynn, for DOJ’s leak investigations, and for encrypted messaging apps.

Emmet Sullivan will cite this sentence as precedent

It’s still far from clear that Emmet Sullivan will be sentencing Mike Flynn three months from now. Given Trump’s increasingly unstable mood, Flynn might get pardoned. Or, Flynn might try to judge shop, citing Sullivan’s invocation of treason Tuesday.

But if Sullivan does eventually sentence Flynn and if he still feels inclined to impose some prison time to punish Flynn for selling out his country, he can cite both this sentence and the language Jackson used in imposing it. Like Wolfe, Flynn occupied a (arguably, the) position of great responsibility for protecting our national security. Sullivan seems to agree with Jackson that, like Wolfe, Flynn should face more consequences for abusing the public trust. So Wolfe’s sentence might start a countertrend to the David Petraeus treatment, whereby the powerful dodge all responsibility.

(Note, this is a view that Zoe Tillman also expressed yesterday.)

DOJ may rethink its approach to using false statements to avoid the difficulties of leak cases

I have zero doubt that DOJ prosecuted Wolfe because they believe he is Ellen Nakashima’s source for the story revealing that Carter Page had been targeted with a FISA order, which is how they came to focus on him in the first place. But instead of charging him with that, they charged him for lying about his contacts with Nakashima, Ali Watkins, and two other journalists (and, in their reply to his sentencing memo, made it clear he had leaked information to two other young female national security reporters). In the sentencing phase, however, the government asked for a significant upward departure, a two year sentence that would be equivalent to what he’d face if they actually had proven him to be Nakashima’s source.

While the government provided circumstantial evidence he was Nakashima’s source — in part, her communications to him in the aftermath of the story — he convincingly rebutted one aspect of that claim (a suggestion that she changed her email footer to make her PGP key available to him). More importantly, he rightly called out what they were doing, trying to insinuate he had leaked the FISA information without presenting evidence.

The government itself admitted no fewer than four times in its opening submission that it found no evidence that Mr. Wolfe disclosed Classified Information to anyone. See infra Part I.A. Nonetheless, the government deploys the word “Classified” 58 times in a sentencing memorandum about a case in which there is no evidence of disclosure of Classified Information—let alone a charge.

[snip]

The government grudgingly admits that it lacks evidence that Mr. Wolfe disclosed Classified Information to anyone. See, e.g., Gov. Mem. at 1 (“although the defendant is not alleged to have disclosed classified information”); id. at 6 (“notwithstanding the fact that the FBI did not uncover evidence that the defendant himself disclosed classified national security information”); id. at 22 (“[w]hile the investigation has not uncovered evidence that Wolfe disclosed classified information”); id. at 25 n.14 (“while Wolfe denied that he ever disclosed classified information to REPORTER #2, and the government has no evidence that he did”).

The Court should see through the government’s repetition of the word “Classified” in the hope that the Court will be confused about the nature of the actual evidence and charges in this case and sentence Mr. Wolfe as if he had compromised such information.1

1 Similarly, the government devotes multiple pages of its memorandum describing the classified document that Mr. Wolfe is not accused of having disclosed. And although the government has walked back its initial assertion that Mr. Wolfe “received, maintained, and managed the Classified Document” (Indictment ¶ 18) to acknowledge that he was merely “involved in coordinating logistics for the FISA materials to be transported to the SSCI” (Gov. Mem. at 10), what the government still resists conceding is the fact that Mr. Wolfe had no access to read that document, let alone disclose any part of it. Beyond providing an explanation of how the FBI’s investigation arose, that document has absolutely no relevance to Mr. Wolfe’s sentencing, but it and its subject, an individual under investigation for dealings with Russia potentially related to the Trump campaign, likely have everything to do with the vigor of the government’s position.

It’s unclear, at this point, whether the government had evidence against Wolfe but chose not to use it because it would have required imposing on Nakashima’s equities (notably, they appear to be treating Nakashima with more respect than Ali Watkins, though it may be that they only chose to parallel construct Ali Watkins’ comms) and introduce classified evidence at trial. It may be that Wolfe genuinely isn’t the culprit.

Or it may be that Wolfe’s operational security was just good enough to avoid leaving evidence.

Whatever it is, particularly in a culture of increasing aggressiveness on leaks, the failure to get Wolfe here may lead DOJ to intensify its other efforts to pursue leakers using the Espionage Act.

DOJ might blame Signal and other encrypted messaging apps for their failure to find the Carter Page FISA culprit

And if DOJ believes they couldn’t prove a real case against Wolfe because of his operational security, they may use it to go after Signal and other encrypted messaging apps.

That’s because Wolfe managed to hide a great deal of his communications with journalists until they had sufficient evidence for a Rule 41 warrant to search his phone (which may well mean they hacked his phone). Here’s what it took to get Wolfe’s Signal texts.

Once the government discovered that Wolfe was dating Watkins, they needed to find a way to investigate him without letting him know he was a target, which made keeping classified information particularly difficult. An initial step involved meeting with him to talk about the leak investigation — purportedly of others — which they used as an opportunity to image his phone.

The FBI obtained court authority to conduct a delayed-notice search warrant pursuant to 18 U.S.C. § 3103a(b), which allowed the FBI to image Wolfe’s smartphone in October 2017. This was conducted while Wolfe was in a meeting with the FBI in his role as SSCI Director of Security, ostensibly to discuss the FBI’s leak investigation of the classified FISA material that had been shared with the SSCI. That search uncovered additional evidence of Wolfe’s communications with REPORTER #2, but it did not yet reveal his encrypted communications with other reporters.

Imaging the phone was not sufficient to discover his Signal texts.

Last December and this January, the FBI had two more interviews with Wolfe where they explicitly asked him questions about the investigation. At the first one, even after he admitted his relationship with Watkins, Wolfe lied about the conversations he continued to have on Signal.

The government was able to recover and view a limited number of these encrypted conversations only by executing a Rule 41 search warrant on the defendant’s personal smartphone after his January 11, 2018 interview with the FBI. It is noteworthy that Signal advertises on its website that its private messaging application allows users to send messages that “are always end-to-end encrypted and painstakingly engineered to keep your communication safe. We [Signal] can’t read your messages or see your calls, and no one else can either.” See Signal Website, located at https://signal.org. The government did not recover or otherwise obtain from any reporters’ communications devices or related records the content of any of these communications.

Then, in a follow-up meeting, he continued to lie, after which they seized his phone and found “fragments” of his Signal conversations.

It is noteworthy that Wolfe continued to lie to the FBI about his contacts with reporters, even after he was stripped of his security clearances and removed from his SSCI job – when he no longer had the motive he claimed for having lied about those contacts on December 15. During a follow-up voluntary interview at his home on January 11, 2018, Wolfe signed a written statement falsely answering “no” to the question whether he provided REPORTER #2 “or any unauthorized person, in whole or in part, by way of summary, or verbal [or] non-verbal confirmation, the contents of any information controlled or possessed by SSCI.” On that same day, the FBI executed a second search warrant pursuant to which it physically seized Wolfe’s personal telephone. It was during this search, and after Wolfe had spoken with the FBI on three separate occasions about the investigation into the leak of classified information concerning the FISA application, that the FBI recovered fragments of his encrypted Signal communications with REPORTERS #3 and #4.

They specify that this second warrant was a Rule 41 warrant, which would mean it’s possible — though by no means definite — that they hacked the phone.

The government was able to recover and view a limited number of these encrypted conversations only by executing a Rule 41 search warrant on the defendant’s personal smartphone after his January 11, 2018 interview with the FBI. It is noteworthy that Signal advertises on its website that its private messaging application allows users to send messages that “are always end-to-end encrypted and painstakingly engineered to keep your communication safe. We [Signal] can’t read your messages or see your calls, and no one else can either.” See Signal Website, located at https://signal.org.

Mind you, this still doesn’t tell us much (surely by design). In another mention, they note Signal’s auto-delete functionality.

Given the nature of Signal communications, which can be set to delete automatically, and which are difficult to recover once deleted, it is impossible to tell the extent of Wolfe’s communications with these two reporters. The FBI recovered 626 Signal communications between Wolfe and REPORTER #3, and 106 Signal communications between Wolfe and REPORTER #4.

Yet it remains unclear (though probably likely) that the “recovered” texts were Signal (indeed, given that he was lying and the only executed the Rule 41 warrant after he had been interviewed a second time, he presumably would have deleted them then if not before). DOJ’s reply memo also reveals that Wolfe deleted a ton of his texts to Watkins, as well.

The defendant and REPORTER #2 had an extraordinary volume of contacts: in the ten months between December 1, 2016, and October 10, 2017, alone, they exchanged more than 25,750 text messages and had 556 phone calls, an average of more than 83 contacts per day. The FBI was unable to recover a significant portion of these text messages because they had been deleted by the defendant.

All of this is to say two things: first, the government would not pick up Signal texts — at least not deleted ones — from simply imaging a phone. Then, using what they specify was a Rule 41 warrant that could indicate hacking, they were able to obtain Signal. At least some of the Signal texts the government has revealed pre-date when his phone was imaged.

That’s still inconclusive as to whether Wolfe had deleted Signal texts and FBI was able to recover some of them, or whether they were unable to find Signal texts that remained on his phone when they imaged it in October.

Whichever it is, it seems clear that they required additional methods (and custody of the phone) to find the Signal texts revealing four relationships with journalists he had successfully hidden until that point.

Which is why I worry that the government will claim it was unable to solve the investigation into who leaked Carter Page’s FISA order because of Signal, and use that claim as an excuse to crack down on the app.

Rob Kelner–the Guy Who Signed Mike Flynn’s FARA Filings–Continued to Be Insubordinate in Yesterday’s Hearing

Most of the attention in yesterday’s Mike Flynn sentencing hearing has focused on Judge Emmet Sullivan’s invocation of treason, which I addressed at length here. But — particularly since I have belatedly realized that Rob Kelner is one of the lawyers referred to in the Bijan Kian indictment who filed a FARA registration that, because of lies attributed to Flynn and Ekim Alptekin, ended up being a false statement, I want to look at two bullshit answers Kelner offered yesterday about his little ploy of introducing language on Peter Strzok and Andrew McCabe in Flynn’s sentencing memo.

Taking the second one first, Sullivan asked Kelner to explain why he chose to cite Peter Strzok’s August 22, 2017 302, which had some language about what a successful liar Flynn can be, and not Flynn’s own utterly damning January 24, 2017 302. This was a question directing counsel to explain why he tried to pull a fast one over on the judge. Any responsive answer would have to address that January 24 302 (and wouldn’t need to address the McCabe memo, at all).

But instead of answering that question, Kelner instead tried to use it to attack the Mueller team.

THE COURT: The other puzzling question I have is this: Can you explain for the record why Mr. Flynn was interviewed by the FBI on January the 24th but the 302 cited in his sentencing memorandum is dated August the 22nd, 2017? There’s no reference, and the January 24th is not highlighted at all.

MR. KELNER: Yes, Your Honor. Thank you for the opportunity to address that. I think there’s been some public confusion about that. The original draft of our brief cited specifically to the FD-302 for the interview of Special Agent Strozk and cited it specifically to the McCabe memorandum, and actually originally we intended to include those documents with the filing. Prior to the filing, we shared a draft copy of our brief with the Special Counsel’s Office really for two purposes: One was to make sure that we weren’t including anything covered by the protective order, which they objected to our including, which would, perhaps, have to be redacted or filed under seal; and the other reason, frankly, was generally to understand what their reaction might be to particular points in the filing. After that, the Special Counsel’s Office discussed it with us and asked that we consider removing the Strozk 302, and the McCabe memorandum from the brief and to simply cite to them. Given our position as cooperating in the investigation, we acceded to that. We then sent them a draft of the footnotes that we would use to cite to the relevant documents, and originally those footnotes, as drafted by us, named the McCabe memorandum specifically and named the Strozk 302 specifically so that it would be clear to the reader which documents we were talking about. The Special Counsel’s Office requested that we change those citations to simply reference the memorandum and date and the FD-302 and date without the names. We acceded to that request, and I would add would not have acceded to it if in any way we felt it was misleading, but we respected the preferences of the Special Counsel’s Office.

THE COURT: All right. Any objection to what counsel said? Anything that you wish to add to that?

MR. VAN GRACK: Judge, just one point of clarification.

THE COURT: Sure.

MR. VAN GRACK: Which is what we’ve represented to defense counsel in terms of what to and not to include, what we indicated was anything in the Strozk 302 and the McCabe memorandum that they thought was relevant can and should be included in their submissions. What we asked was that they not attach the documents because, as the Court is aware, there are other considerations in the material there that we wanted to be sensitive to.

Look closely: Kelner never actually answers Sullivan’s question, at all. Instead, he blames the decisions surrounding how those materials were cited in Flynn’s memo (which was not Sullivan’s question) on Mueller’s office.

Mueller’s team probably withheld the filings because there are legal proceedings involving both McCabe and Strzok. You can argue that those legal proceedings served as an excuse to hide embarrassing information and you might even be right. But that doesn’t give you permission to just blow off a legitimate question from the judge.

The second one is, given Kelner’s tenure of representation for Flynn, even more egregious.

Sullivan unsurprisingly expressed difficulty squaring the suggestion that there were extenuating circumstances to Flynn’s brazen lies in his FBI interview with Flynn’s claim that he was accepting responsibility for his actions. So the judge asked Kelner why he included them.

THE COURT: The references that I’ve mentioned that appear in your sentencing memorandum raise some concerns on the part of the Court. And my question is, how is raising those contentions about the circumstances under which Mr. Flynn lied consistent with acceptance of responsibility?

MR. KELNER: Your Honor, the principle reason we raised those points in the brief was to attempt to distinguish the two cases in which the Special Counsel’s investigation has resulted in incarceration, the Papadopoulos and Van der Zwaan cases in which the Special Counsel had pointed out as aggravating factors the fact that those defendants had been warned and the fact that those defendants did have counsel and lied anyway, and we felt it was important to identify for the Court that those aggravating circumstances do not exist in this case relevant to sentencing.

Kelner — the guy who signed a FARA registration that he might have faced his own legal consequences for if it weren’t for his client’s guilty plea accepting responsibility for the lies told in the registration himself — completely ignored Flynn’s FARA lies, both in his answer to this question and the brief generally. Flynn not only had benefit of counsel when he told one of the lies he pled guilty, again, to telling yesterday, Flynn had benefit of his, Rob Kelner’s, counsel.

And Kelner is only avoiding consequences for those FARA filings himself because (the existing story goes) his client is such an egregious liar, he has also lied to him, his lawyer, in the past.

That seems like a pretty major aggravating factor.

Much later in the hearing, when Kelner realized his client was facing prison time, he tried to take responsibility for all the things that showed up in that sentencing memo. Rather than leaving well enough alone, Kelner renewed his bullshit claim that what George Papadopoulos and Alex Van Der Zwaan did was worse than lying to the FBI and hiding your paid ties to a frenemy government. That led to Sullivan pointing out why even just Flynn’s lies to the FBI were, because he was in such an important role, worse than those of Mueller’s other false statements defendants.

MR. KELNER: Your Honor, with your indulgence, if I could make a few points.

THE COURT: Sure.

MR. KELNER: First of all, let me make very clear, Your Honor, that the decisions regarding how to frame General Flynn’s sentencing memorandum made by counsel, made by me, made by Mr. Anthony, are entirely ours and really should not and do not diminish in any way General Flynn’s acceptance of responsibility in this case. And I want to make that —

THE COURT: That point is well taken, but you understand why I had to make the inquiry?

MR. KELNER: I do.

THE COURT: Because I’m thinking, this sounds like a backpedaling on the acceptance of responsibility. It was a legitimate area to inquire about. And I don’t want to be too harsh when I say this, but I know you’ll understand.

[snip]

MR. KELNER: Right. We understand the Court’s reason for concern. I just wanted to make very clear the very specific reasons that those sections in the brief were included, to distinguish the Papadopoulos and Van der Zwaan cases, which did result in incarceration, we think are meaningfully distinguishable in many respects.

THE COURT: Let me stop you on that point, because I’m glad you raised that, and I was going to raise this point at some point. We might as well raise it now since you brought up Papadopoulos and Van der Zwaan. The Court’s of the opinion that those two cases aren’t really analogous to this case. I mean, neither one of those individuals was a high-ranking government official who committed a crime while on the premises of and in the West Wing of the White House. And I note that there are other cases that have been cited in the memorandum with respect to other individuals sentenced in 2017, I believe, for 1001 offenses, and the point being made — and I think it’s an absolutely good point — the point being made that no one received a jail sentence. My guess is that not one of those defendants was a high-ranking government official who, while employed by the President of the United States, made false statements to the FBI officers while on the premises of and in the West Wing of the White House. That’s my guess. Now, if I’m wrong, then you can point me to any one or more of those cases. This case is in a category by itself right now, but I understand why you cited them. I appreciate that.

MR. KELNER: Your Honor, we don’t disagree. We recognize that General Flynn served in a high-ranking position, and that is unique and relevant. But I —

THE COURT: Absolutely.

But Kelner took that comment, and kept digging, claiming that Flynn’s cooperation should be worth more because his cooperation was more “consequential” than that of the little people.

MR. KELNER: But I would submit to you a couple of points in response for the Court’s consideration. Number one, because of his high rank and because of his former high office, when it came time to deal with this investigation and to deal with the Special Counsel’s Office, that, too, set a higher standard for him, and he did understand that as a three-star general and a former National Security Advisor, what he did was going to be very consequential for the Special Counsel’s investigation, and very consequential for the nation, so he made decisions early on to remain low profile, not to make regular public statements, as some other people did. That was acknowledged by the Special Counsel’s Office when we did first hear from them, the value of that silence. And then he made the decision publicly and clearly and completely and utterly to cooperate with this investigation, knowing that, because of his high rank, that was going to send a signal to every other potential cooperator and witness in this investigation, and that was consequential, and we appreciate the fact that the Special Counsel memorialized that in his brief. That did make a decision, and that was another kind of high standard that was set for him and that he rose to and met decisively. In addition, there have been other cases —

Sullivan interrupted Kelner at this point, perhaps in an effort to get him to stop damaging his client. It didn’t work though, because having argued that Flynn’s efforts to undo his lies were worth more than that of the little people, Kelner then … brought up David Petraeus.

THE COURT: Can I just stop you right now? Is — How do you wish to proceed? Do you wish to proceed with sentencing today or do you want to defer it?

MR. KELNER: Thank you, Your Honor.

THE COURT: Or are you leading up to that point?

MR. KELNER: I’m leading up to that.

THE COURT: No, that’s fine.

MR. KELNER: Just a bit of indulgence, if I may.

THE COURT: No, no. Go ahead. That’s fine.

MR. KELNER: And let me just finish that last point.

THE COURT: No, no, no. I’m not trying to curtail you. I just wanted to make sure I didn’t miss anything.

MR. KELNER: I’m building up to it. I’m building up to it, Your Honor.

THE COURT: All right.

MR. KELNER: In addition, I would note there have been other high profile cases, one involving a four-star general, General Petraeus.

THE COURT: I don’t agree with that plea agreement, but don’t —

MR. KELNER: It’s a classic —

THE COURT: He pled to a misdemeanor?

Right before Sullivan closed the hearing, he expressed his disapproval of that sentence once again with Kelner, presumably as a warning not to argue Flynn should get light treatment, like Petraeus did, because he’s an important decorated general.

While bringing up the double standard the Obama Administration used with Petraeus is totally fair game, especially in Espionage-charged leak cases (which this is not), this was an instance where Kelner either couldn’t hear or didn’t give a fuck about what the judge had already told him, which is that, having read all the sealed underlying documents, he believes the stuff Flynn lied about “is in a category by itself.”

Honestly, if I were Mike Flynn and I had the money I’d fire Kelner after recent events, because — even if Kelner is not responsible for the ploy that badly backfired (and I suspect he’s not, at least not entirely) — by returning to sentencing with a different lawyer, you can try to start fresh with Sullivan, whom you’ve already pissed off.

But it’s not clear that Flynn can do that.

Because while firing Kelner might permit Flynn to claim he had nothing to do with this disavowal of responsibility that Kelner is now claiming responsibility for, Kelner’s still required to claim that Flynn is responsible for the false statements submitted in a document signed by Kelner back in 2017.

More importantly, according to Kelner, the Kian trial is the only thing left for Flynn to offer as far as cooperation.

Nothing has been held back. That said, it is true that this EDVA case that was indicted yesterday is still pending, and it’s likely, I would think, that General Flynn may be asked to testify in that case. We haven’t been told that, but I think it’s likely, and he’s prepared to testify. And while we believe that the Special Counsel’s Office views his cooperation as having been very largely complete, completed at this point, it is true that there’s this additional modicum of cooperation that he expects to provide in the EDVA case, and for that reason, we are prepared to take Your Honor up on the suggestion of delaying sentencing so that he can eke out the last modicum of cooperation in the EDVA case to be in the best position to argue to the Court the great value of his cooperation.

It seems likely that if Kian goes to trial, it will be Kelner’s testimony, not Flynn’s, that might be most important.

Kelner and Flynn are yoked together, Kelner to the lies Flynn told him to file in that FARA filing, and Flynn to the insubordinate effort to dismiss the importance of Flynn’s lies.

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. 

Paul Manafort’s Modus Operandi: Accuse the Female Politician of Crimes She Didn’t Commit, Then Dodge Sanctions

As Paul Manafort’s plea was being unveiled yesterday, a number of legal observers were shocked by how detailed the criminal information was, complete with 38 pages of exhibits. Hopefully, this will stop me from having to bitch incessantly about how many journalists have swallowed Rudy Giuliani’s claims about Mueller writing up a report. As I keep saying (and as Mueller’s boss Rod Rosenstein has said in testimony), there won’t be a report, there will be indictments.

Ostensibly, the exhibits are there to prove the assertion that Paul Manafort lied to DOJ about what kind of work he was doing for Ukraine.

Although MANAFORT had represented to the Department of Justice in November 2016 and February 2017 that he had no relevant documents, in fact MANAFORT had numerous incriminating documents in his possession, as he knew at the time. The Federal Bureau of Investigation conducted a court-authorized search of MANAFORT’S home in Virginia in the summer of 2017. The documents attached hereto as Government Exhibits 503, 504, 517, 532, 594, 604, 606, 616, 691, 692, 697, 706 and 708, among numerous others, were all documents that MANAFORT had in his possession, custody or control (and were found in the search) and all predated the November 2016 letter.

But I don’t think that’s why they’re there.

They’re there to show what Paul Manafort does when he’s running a campaign.

Because they show that for the decade leading up to running Trump’s campaign, Manafort was using the very same sleazy strategy to support Viktor Yanukovych that he used to get Trump elected.

In other words, these exhibits are a preview of coming attractions.

Take out the female opponent by prosecuting her

The criminal information provided far more detail about something we had only seen snippets of in the Alex Van der Zwaan plea: Manafort’s use of Skadden Arps to whitewash Yanukovych’s prosecution of Yulia Tymoshenko.

It describes how Manafort used cut-outs to place stories claiming his client’s female opponent had murdered someone.

MANAFORT took other measures to keep the Ukraine lobbying as secret as possible. For example, MANAFORT, in written communications on or about May 16, 2013, directed his lobbyists (including Persons D1 and D2, who worked for Company D) to write and disseminate within the United States news stories that alleged that Tymoshenko had paid for the murder of a Ukrainian official. MANAFORT stated that it should be “push[ed]” “[w]ith no fingerprints.” “It is very important we have no connection.” MANAFORT stated that “[m]y goal is to plant some stink on Tymo.”

And it shows Manafort seeding lies that his client’s female opponent had criminal intent when he knew there was no proof to back the claim.

MANAFORT directed lobbyists to tout the report as showing that President Yanukovych had not selectively prosecuted Tymoshenko. But in November 2012 MANAFORT had been told privately in writing by the law firm that the evidence of Tymoshenko’s criminal intent “is virtually non-existent” and that it was unclear even among legal experts that Tymoshenko lacked power to engage in the conduct central to the Ukraine criminal case. These facts, known by MANAFORT, were not disclosed to the public.

This propaganda effort against Manafort’s client’s female opponent included placing stories in Breitbart.

Sanctions will backfire

Manafort placed so much effort on inventing stories about Tymoshenko in part to take her out as a political opponent (and to create an opportunity to pitch Yanukovych’s corruption as a tolerable partner to Europe). But he did so, too, to undermine support for sanctions against Yanukovych for human rights abuses, of which Tymoshenko was the poster child.  Particularly after John Kerry replaced Hillary, Manafort undermined sanctions by promising raw material exploitation opportunities. (This bullet point, at PDF 25, is dated February 24, 2013).

We’ll learn more about what role Manafort himself played in Trump’s policy on sanctions (even aside from any quid pro quo that may have come out of the June 9 Trump Tower meeting), but we know that Trump’s view on sanctions is among the questions Mueller wants to ask Trump, and we know that in an op-ed encouraged by the Trump campaign (and highlighted to Ivan Timofeev), George Papadopoulos argued that sanctions had hurt the US.

Obama lost Ukraine

Manafort was even using some of the very same lines that Trump still uses, such as blaming Obama for “losing” Ukraine (this quarterly memo for Yanukovych, at PDF 21-, is dated April 22, 2013).

Electoral irregularities are my opponents’ fault

Shortly after Yanukovych won in 2010, Manafort boasted that he had established a baseline to be able to claim that Tymoshenko’s complaints about election irregularities were disinformation. (This memo, at PDF 6, is dated February 20, 2010.)

Manafort also prepared a full court press to influence the electoral observers in advance of Ukraine’s 2012 parliamentary election (this document, at PDF 5, is dated as October 9, 2012 in the trial exhibit list).

One thing we’re going to see in former Manafort partner Roger Stone’s eventual indictment is a focus on the work of his Stop the Steal PAC, both just after Manafort arrived to manage the Convention, and his voter suppression efforts (which paralleled Russian ones) during the general election.

Hillary Clinton is the enemy

Finally, as early as February 2013 (see PDF 14), Paul Manafort was advising his client that replacing Hillary Clinton with someone who would value raw material deals over human rights would be a positive development.

As it happens, in 2016, Paul Manafort could please all his clients by offering a man who valued raw material deals over human rights as a positive development.

As I disclosed 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. 

Sometimes a Plea Is Just a Plea: The Ongoing Criminal Exposure of Mueller’s “Cooperating” Witnesses

One of the most interesting details from the government’s George Papadopoulos Sentencing Memo released last night is this passage, stating that Papadopoulos’ plea was not a standard cooperation agreement.

The plea agreement entered into by the government and the defendant was not a standard cooperation agreement, and the government did not agree to make a motion under U.S.S.G. § 5K1.1 based on cooperation by the defendant. Nevertheless, the government agreed to “bring to the Court’s attention at sentencing the defendant’s efforts to cooperate with the Government, on the condition that [the defendant] continues to respond and provide information regarding any and all matters as to which the Government deems relevant.” (Plea Agreement p. 4). Pursuant to this agreement, the Government provides the Court with the following information.

[snip]

The defendant did not provide “substantial assistance,” and much of the information provided by the defendant came only after the government confronted him with his own emails, text messages, internet search history, and other information it had obtained via search warrants and subpoenas well after the defendant’s FBI interview as the government continued its investigation. The defendant also did not notify the government about a cellular phone he used in London during the course of the campaign – that had on it substantial communications between the defendant and the Professor – until his fourth and final proffer session.

While there had been some discussion about what kind of plea deal Papadopoulos got, this statement seems to say that Papadopoulos didn’t offer up any specific cooperation against co-conspirators. Rather, the deal was simply that if he offered up his cooperation about his own actions, the government would tell the court that he did so, with no obligation to ask the court for any downward sentencing. The deal, then, was to limit his exposure to just one false statements charge, rather than the multiple false statements and obstruction charge he could have gotten for trying to confuse the FBI.

Importantly, the deal only applied to conduct specified in the offense — that is, the lies to the FBI and the obstruction of justice by hiding his Facebook and cell phone data. While his statement of offense includes much of his discussion with Russian assets about setting up a meeting, it says nothing about other conduct, such as accepting $10,000 from a suspected Israeli asset, or his ongoing negotiations with Sergei Millian, basically to spy on the Trump administration in exchange for a monthly payment (which was conditioned on getting a job in the administration, which is one of the reasons — the government suggests in the memo — why Papadopoulos may have lied to the FBI in January 2017).

That is, Papadopoulos not only faces prison time if the court accepts the government’s recommended sentence, but he may have ongoing exposure for foreign agent or conspiracy charges not covered by this plea agreement.

He made a deal to get several false statements and obstruction charges turned into one, but he didn’t even capitalize on that deal, and may still face additional legal risk tied to the Russian tampering.

That led me to compare the language for all the other plea deals Mueller’s team has made (something NYCSouthpaw started to do in this thread in February). It’s clear that Alex van der Zwaan got the least out of his plea deal (though he may have cooperated more in getting to that deal, which would have been important given his foreign status). That’s significant, because the prosecutor compared van der Zwaan to Papadopoulos in their memo.

The other three plea deals — Mike Flynn, Richard Pinedo (for identity theft tied to the Internet trolls), and Rick Gates — do obligate the government to submit a 5K statement for downward departure on sentencing if the person provides substantial cooperation.

But Pinedo and Flynn’s deals are limited just to the statement of offense. In Flynn’s case, his statement includes several lies to the FBI and his failure to register under FARA, but not a lot of other known conduct, even aside from any conspiracy involving Russia.

Only Gates’ plea includes broad forgiveness for criminal conduct (though the charges he pled to also include more significant penalties than Flynn and Papadopoulos). That’s yet another sign that he offered quite a bit in his proffer, well beyond incriminating Paul Manafort.

I’ve been nudging the attentive lawyers to explain what this means in terms of ongoing exposure. But if I were Mike Flynn, the Papadopoulos example might really incentivize me to be more cooperative.


George Papadopoulos:

In consideration of your client’s guilty plea to the above offense, your client will not be further prosecuted criminally by this Office for the conduct set forth in the attached Statement of the Offense.

No government obligation section beyond,

agreeing to bring to the Court’s attention at sentencing the defendant’s efforts to cooperate with the Government, on the condition that your client continues to respond and provide information regarding any and all matters as to which the Government deems relevant.

Mike Flynn:

In consideration of your client’s guilty plea to the above offense, your client will not be further prosecuted criminally by this Office for the conduct set forth in the attached Statement of the Offense.

5K language included.

Alex van der Zwaan:

In consideration of your client’s guilty plea to the above offense, your client will not be further prosecuted criminally by this Office for the conduct set forth in the attached Statement of the Offense, for any other false statements made by him to the Office on November 3 and December 1, 2017, any destruction, deletion, and withholding of documents and evidence in connection with requests by this Office or his law firm, and any violations of the Foreign Agent Registration Act or other law arising from the preparation and/or roll out of the Tymoshenko report for the Ukraine Ministry of Justice.

No government obligation section.

Richard Pinedo:

In consideration of your client’s guilty plea to the above offense, your client will not be further prosecuted crininally by this Office for the conduct set forth in the attached Statement of the Offense.

5K language included.

Rick Gates:

In consideration of your client’s guilty plea to the above offenses, and upon the completion of full cooperation as described herein, no additional criminal charges will be brought against the defendant for his heretofore disclosed participation in criminal activity, including money laundering, false statements, personal and corporate tax and FBAR offenses, bank fraud, and obstruction of justice. In addition, subject to the terms of this Agreement, at the time of sentence, the Government will move to dismiss the remaining counts of the Indictment in this matter. In addition, the Office will move promptly to dismiss without prejudice the charges brought against your client in the Eastern District of Virginia and your client waives venue as to such charges in the event he breaches this Agreement.

5K language included.

August 2016: When Paulie’s Panic Set In

As I disclosed last month, 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. 

Back in June, Eric Trump made news when he claimed that, “My father’s life became exponentially worse the minute he decided to run for president.”

That’s not yet clear — though I think it possible that conspiring with Russians to get elected may yet bring down the Trump empire and put at least one of his family members in prison.

The case may be easier to make for Paul Manafort however. As evidence laid out in his trial has made clear this week, it is true that when Viktor Yanukovych was ousted in Ukraine, he started going broke. Yet somehow, he tried to trade up the oligarch ladder, to do for Donald Trump what he had done for his Russian client in Ukraine. In doing so, however, Manafort made himself far more vulnerable to having his influence peddling and corruption exposed.

In August 2016, things started to fall apart. That’s a story increasingly told in the collective legal proceedings revealed by the Mueller inquiry.

First, recall that the Mueller team appears to have the communications between Manafort and Konstantin Kilimnik since March 2016, as this spreadsheet that appears to show a parallel constructed source of such communications suggests.

That would suggest the government has a good deal of background on the two meetings Kilimnik and Manafort had during the campaign, including the one that took place on August 2.

In August, as tension mounted over Russia’s role in the U.S. presidential race, Donald Trump’s campaign chairman, Paul Manafort, sat down to dinner with a business associate from Ukraine who once served in the Russian army.

Konstantin Kilimnik, who learned English at a military school that some experts consider a training ground for Russian spies, had helped run the Ukraine office for Manafort’s international political consulting practice for 10 years.

At the Grand Havana Room, one of New York City’s most exclusive cigar bars, the longtime acquaintances “talked about bills unpaid by our clients, about [the] overall situation in Ukraine . . . and about the current news,” including the presidential campaign, according to a statement provided by Kilimnik, offering his most detailed account of his interactions with the former Trump adviser.

[snip]

Kilimnik said his meetings with Manafort were “private visits” that were “in no way related to politics or the presidential campaign in the U.S.” He said he did not meet with Trump or other campaign staff members, nor did he attend the Republican National Convention, which took place shortly before the Grand Havana Room session. However, he said the meetings with Manafort included discussions “related to the perception of the U.S. presidential campaign in Ukraine.”

Meanwhile, as much of the evidence presented in Manafort’s EDVA case last week makes clear, he was in deep financial trouble. That’s why, prosecutors allege, he submitted fraudulent numbers to get loans fromThe Federal Savings Bank of Chicago and Citizen’s Bank, among other banks. Next week, prosecutors will probably present exhibits 268 and 269, emails to an employee, Dennis Raico (who will be granted immunity if he testifies) of TFSBC asking for the professional details of his boss, Stephen Calk. (h/t pinc)

268 2016.08.03 Email D. Raico to P. Manafort re Need S. Calk Resume

269 2016.08.04 Email P. Manafort to S. Calk re S. Calk- Professional Bio

The next day, Trump named Calk to his financial advisory committee.

Last week, prosecutors showed that, on August 10, Manafort told his tax preparer, Cindy LaPorta, that she should claim he’d be paid $2.4 million for work in Ukraine in November. (h/t NYCSouthpaw for this observation)

Even as he was allegedly engaging in bank fraud to stay afloat, Manafort (and his daughter) would get what appear to be blackmail attempts — threats to release details of his corrupt actions in Ukraine — details of which were later leaked on the dark web.

A purported cyberhack of the daughter of political consultant Paul Manafort suggests that he was the victim of a blackmail attempt while he was serving as Donald Trump’s presidential campaign chairman last summer.

The undated communications, which areallegedly from the iPhone of Manafort’s daughter, include a text that appears to come from a Ukrainian parliamentarian named Serhiy Leshchenko, seeking to reach her father, in which he claims to have politically damaging information about both Manafort and Trump.

Attached to the text is a note to Paul Manafort referring to “bulletproof” evidence related to Manafort’s financial arrangement with Ukraine’s former president, the pro-Russian strongman Viktor Yanukovych, as well as an alleged 2012 meeting between Trump and a close Yanukovych associate named Serhiy Tulub.

[snip]

In a Tuesday interview, Manafort denied brokering a 2012 meeting between Trump and Tulub and also pointied out that he wasn’t working for Trump at the time.

However, Manafort did confirm the authenticity of the texts hacked from his daughter’s phone. And he added that, before the texts were sent to his daughter, he had received similar texts to his own phone number from the same address appearing to be affiliated with Leshchenko.

He said he did not respond directly to any of the texts, and instead passed them along to his lawyer. He declined to provide the texts to POLITICO.

[snip]

Manafort said that the first of the texts arrived shortly before The New York Times published an August exposé revealing that the National Anti-Corruption Bureau of Ukraine had obtained documents — which have since come under scrutiny — that appeared to show $12.7 million in cash payments earmarked for Manafort.

That NYT story came out on August 14, just 3 days after he promised a bank he had millions more coming from Ukraine around the same time as the presidential election. The very next day, the AP would pile on, asking for comment on a story about Manafort’s undisclosed lobbying for Yanukovych that it would publish on August 17. As prosecutors pointed out in a filing in the DC case, this exchange with the AP — and the Manafort-Gates effort to sustain a lie about their lobbying campaign — is a big part of the reason they lied when DOJ asked them to register under FARA that fall.

For example, on August 15, 2016, a member of the press e-mailed Manafort and copied a spokesperson for the Trump campaign to solicit a comment for a forthcoming story describing his lobbying. Gates corresponded with Manafort about this outreach and explained that he “provided” the journalist “information on background and then agreed that we would provide these answers to his questions on record.” He then proposed a series of answers to the journalist’s questions and asked Manafort to “review the below and let me know if anything else is needed,” to which Manafort replied, in part, “These answers look fine.” Gates sent a materially identical message to one of the principals of Company B approximately an hour later and “per our conversation.” The proposed answers Gates conveyed to Manafort, the press, and Company B are those excerpted in the indictment in paragraph 26.

An article by this member of the press associating Manafort with undisclosed lobbying on behalf of Ukraine was published shortly after Gates circulated the Manafort-approved false narrative to Company B and the member of the press. Manafort, Gates, and an associate of Manafort’s corresponded about how to respond to this article, including the publication of an article to “punch back” that contended that Manafort had in fact pushed President Yanukovych to join the European Union. Gates responded to the punch-back article that “[w]e need to get this out to as many places as possible. I will see if I can get it to some people,” and Manafort thanked the author by writing “I love you! Thank you.” Manafort resigned his position as chairman of the Trump campaign within days of the press article disclosing his lobbying for Ukraine.

Manafort’s role with the Trump campaign is thus relevant to his motive for undertaking the charged scheme to conceal his lobbying activities on behalf of Ukraine. Here, it would be difficult for the jury to understand why Manafort and Gates began crafting and disseminating a false story regarding their Ukrainian lobbying work nearly two years after that work ceased—but before any inquiry by the FARA Unit—without being made aware of the reason why public scrutiny of Manafort’s work intensified in mid-2016. Nor would Manafort’s motives for continuing to convey that false information to the FARA Unit make sense: having disseminated a false narrative to the press while his position on the Trump campaign was in peril, Manafort either had to admit these falsehoods publicly or continue telling the lie.

The day the article came out, August 17, Trump gave Steve Bannon and Kellyanne Conway larger roles in the campaign. Two days later, Manafort would resign, though he would remain in the loop with Trump. Indeed, according to the hacked texts from his daughter, he remained involved and actually “hired [Bannon and Conway]. Interviewed them in trump towers.” (h/t ee)

But according to leaked texts allegedly hacked from the phone of his daughter Andrea Manafort Shand, Manafort’s resignation was all for show, and he continued to wield influence in the campaign.

On August 19, when Paul Manafort officially resigned, the allegedly hacked texts show that Manafort Shand wrote to one her contacts:

So I got to the bottom of it, as I suspected my dad resigned from being the public face of the campaign. But is still very much involved behind the scenes.

He felt he was becoming a distraction and that would ultimately take a toll on the campaign.

Several hours later, a different contact appears to have texted Andrea Manafort to say, “Thoughts go out to your pops—I can only imagine that he’s relieved, angry, hurting, a combination of a lot of emotions. Wishing you and your fam the best.” To which Andrea responded: “Hahaha you’re so silly. It’s all just pr.”

But — as the Mueller filing makes clear — the pushback on the AP and NYT stories didn’t end Manafort and Gates’ efforts to lie about their activities in Ukraine. A filing in the Alex van der Zwaan prosecution details that on September 12, 2016, in the wake of the Kyiv Post’s exposure of new details about this work (h/t ms), Kilimnik would contact van der Zwaan, leading to a series of communications between the two of them and Skadden Arps’ Greg Craig regarding how Manafort and Gates laundered money and its sources to pay Skadden for a report on Yulia Tymoshenko’s prosecution.

Instead of truthfully answering questions about his contacts with Gates and Person A, van der Zwaan lied. He denied having substantive conversations with Gates and Person A in 2016. When confronted with an email dated September 12, 2016, sent by Person A to van der Zwaan, the defendant again lied. The email was sent to the defendant’s email address at his law firm, though the Special Counsel’s Office had obtained the email from another source. The email said, in Russian, that Person A “would like to exchange a few words via WhatsApp or Telegram.” van der Zwaan lied and said he had no idea why that email had not been produced to the government, and further lied when he stated that he had not communicated with Person A in response to the email.

[snip]

Further, van der Zwaan in fact had a series of calls with Gates and Person A—as well as the lead partner on the matter—in September and October 2016. The conversations concerned potential criminal charges in Ukraine about the Tymoshenko report and how the firm was compensated for its work. The calls were memorable: van der Zwaan had taken the precaution of recording the conversations with Gates, Person A, and the senior partner who worked on the report. In van der Zwaan’s recorded conversation with Person A, in Russian, Person A suggested that “there were additional payments,” that “[t]he official contract was only a part of the iceberg,” and that the story may become a blow for “you and me personally.”

[snip]

Federal Bureau of Investigation Special Agents assisting the Special Counsel’s Office assess that Person A has ties to a Russian intelligence service and had such ties in 2016. During his first interview with the Special Counsel’s Office, van der Zwaan admitted that he knew of that connection, stating that Gates told him Person A was a former Russian Intelligence Officer with the GRU.

These are the contacts van der Zwaan hid, at first, from Mueller’s investigators. Van der Zwaan would claim he wasn’t hiding those contacts because he knew Kilimnik was a former GRU officer, but instead to hide that he recorded the conversation with Craig from the Skadden lawyers who represented him in the first interview with the FBI. But it’s still not clear why he made the recording. It sure feels like blackmail to me, though may also have been an effort to stay on track on his quest to make partner at Skadden (remember that van der Zwaan was being romanced into the family of Alfa Bank founder German Khan during 2016; he would marry Khan’s daughter in 2017).

Indeed, Paul Manafort’s life looks like a series of blackmail attempts during that period.

Which makes the stakes of the question Carrie Johnson asked in her Manafort trial round-up all the greater.

Left unanswered so far, Scott, is why Manafort joined the Trump campaign in 2016 for no money when he was bleeding. He was bleeding money and got no salary from that Trump campaign.

Why was Manafort, badly underwater at the time, willing to work for Trump for “free”? What was the $2.4 million he expected to be paid in November for?

And given all the publicly known things Manafort did out of desperation at the time, what kind of non-public desperate things could he also be coerced into doing?

Update: Added the Kyiv Post and Andrea Manafort details.

Update: Added Calk and TFSBC details.

Timeline

August 2: Manafort has an in-person meeting with Kilimnik where they discussed “the perception of the U.S. presidential campaign in Ukraine”

August 3: Manafort asks Dennis Raico for the resume of his boss, Stephen Calk

August 4: Manafort asks Raico for Calk’s professional biography

August 5: Trump named Calk to his financial advisory committee

August 10: To obtain a fraudulent bank loan, Manafort tells his tax preparer to claim $2.4 million in payments from Ukraine for which he had no documentation

Before August 14: Manafort is blackmailed, allegedly by Ukrainian politician Serhiy Leshchenko

August 14: NYT publishes “Secret Ledger in Ukraine Lists Cash for Donald Trump’s Campaign Chief”

August 15: In advance of an AP story on their undisclosed lobbying, Manafort and Gates work out a false story with Mercury Consulting and the Podesta Group

August 17: AP publishes “Paul Manafort helped a pro-Russia political party in Ukraine secretly route at least $2.2M to DC lobbyists”; Trump gives Bannon and Conway larger roles in the campaign

August 19: Manafort resigns from campaign

September 12: Kilimnik contacts van der Zwaan regarding cover-up regarding payments to Skadden Arps

How to Charge Americans in Conspiracies with Russian Spies?

As I laid out a few weeks ago, 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. 

In general, Jack Goldsmith and I have long agreed about the problems with charging nation-state spies in the United States. So I read with great interest his post laying out “Uncomfortable Questions in the Wake of Russia Indictment 2.0 and Trump’s Press Conference With Putin.” Among other larger normative points, Goldsmith asks two questions. First, does indicting 12 GRU officers in the US expose our own nation-state hackers to be criminally prosecuted in other countries?

This is not a claim about the relative moral merits of the two countries’ cyber intrusions; it is simply a claim that each side unequivocally breaks the laws of the other in its cyber-espionage activities.

How will the United States respond when Russia and China and Iran start naming and indicting U.S. officials?  Maybe the United States thinks its concealment techniques are so good that the type of detailed attribution it made against the Russians is infeasible.  (The Shadow Brokers revealed the identities of specific NSA operators, so even if the National Security Agency is great at concealment as a matter of tradecraft that is no protection against an insider threat.)  Maybe Russia and China and Iran won’t bother indicting U.S. officials unless and until the indictments actually materialize into a trial, which they likely never will.  But what is the answer in principle?  And what is the U.S. policy (if any) that is being communicated to military and civilian operators who face this threat?  What is the U.S. government response to former NSA official Jake Williams, who worked in Tailored Access Operations and who presumably spoke for many others at NSA when he said that “charging military/gov hackers is dumb and WILL eventually hurt the US”?

And, how would any focus on WikiLeaks expose journalists in the United States to risks of prosecution themselves.

There is a lot of anger against WikiLeaks and a lot of support for indicting Julian Assange and others related to WikiLeaks for their part in publishing the information stolen by the Russians.  If Mueller goes in this direction, he will need to be very careful not to indict Assange for something U.S. journalists do every day.  U.S. newspapers publish information stolen via digital means all the time.  They also openly solicit such information through SecureDrop portals.  Some will say that Assange and others at WikiLeaks can be prosecuted without threatening “real journalists” by charging a conspiracy to steal and share stolen information. I am not at all sure such an indictment wouldn’t apply to many American journalists who actively aid leakers of classified information.

I hope to come back to the second point. As a journalist who had a working relationship with someone she came to believe had a role in the attack, I have thought about and discussed the topic with most, if not all, the lawyers I consulted on my way to sitting down with the FBI.

For the moment, though, I want to focus on Goldsmith’s first point, one I’ve made in the past repeatedly. If we start indicting uniformed military intelligence officers — or even contractors, like the trolls at Internet Research Agency might be deemed — do we put the freedom of movement of people like Jake Williams at risk? Normally, I’d absolutely agree with Goldsmith and Williams.

But as someone who has already written extensively about the ConFraudUs backbone that Robert Mueller has built into his cases, I want to argue this is an exception.

As I’ve noted previously, while Rod Rosenstein emphasized that the Internet Research Agency indictment included no allegations that Americans knowingly conspired with Russians, it nevertheless did describe three Americans whose activities in response to being contacted by Russian trolls remain inconclusive.

Rod Rosenstein was quite clear: “There is no allegation in the indictment that any American was a knowing participant in the alleged unlawful activity.” That said, there are three (presumed) Americans who, both the indictment and subsequent reporting make clear, are treated differently in the indictment than all the other Americans cited as innocent people duped by Russians: Campaign Official 1, Campaign Official 2, and Campaign Official 3. We know, from CNN’s coverage of Harry Miller’s role in building a cage to be used in a fake “jailed Hillary” stunt, that at least some other people described in the indictment were interviewed — in his case, for six hours! — by the FBI. But no one else is named using the convention to indicate those not indicted but perhaps more involved in the operation. Furthermore, the indictment doesn’t actually describe what action (if any) these three Trump campaign officials took after being contacted by trolls emailing under false names.

On approximately the same day, Defendants and their co-conspirators used the email address of a false U.S. persona, [email protected], to send an email to Campaign Official 1 at that donaldtrump.com email account, which read in part:

Hello [Campaign Official 1], [w]e are organizing a state-wide event in Florida on August, 20 to support Mr. Trump. Let us introduce ourselves first. “Being Patriotic” is a grassroots conservative online movement trying to unite people offline. . . . [W]e gained a huge lot of followers and decided to somehow help Mr. Trump get elected. You know, simple yelling on the Internet is not enough. There should be real action. We organized rallies in New York before. Now we’re focusing on purple states such as Florida.

The email also identified thirteen “confirmed locations” in Florida for the rallies and requested the campaign provide “assistance in each location.”

[snip]

Defendants and their co-conspirators used the false U.S. persona [email protected] account to send an email to Campaign Official 2 at that donaldtrump.com email account.

[snip]

On or about August 20, 2016, Defendants and their co-conspirators used the “Matt Skiber” Facebook account to contact Campaign Official 3.

Again, the DOJ convention of naming makes it clear these people have not been charged with anything. But we know from other Mueller indictments that those specifically named (which include the slew of Trump campaign officials named in the George Papadopoulos plea, KT McFarland and Jared Kushner in the Flynn plea, Kilimnik in the Van der Zwaan plea, and the various companies and foreign leaders that did Manafort’s bidding, including the Podesta Group and Mercury Public Affairs in his indictment) may be the next step in the investigation.

In the GRU indictment, non US person WikiLeaks is given the equivalent treatment.

On or about June 22, 2016, Organization I sent a private message to Guccifer 2.0 to “[s]end any new material [stolen from the DNC] here for us to review and it will have a much higher impact than what you are doing.” On or about July 6, 2016, Organization 1 added, “if you have anything hillary related we want it in the next tweo [sic] days prefable [sic] because the DNC [DemocraticNationalConvention] is approaching and she Will solidify bernie supporters behind her after.” The Conspirators responded,“0k . . . i see.” Organization I explained,“we think trump has only a 25% chance of winning against hillary . . . so conflict between bernie and hillary is interesting.”

But the activities of other American citizens — most notably Roger Stone and Donald Trump — are discussed obliquely, even if they’re not referred to using the standard of someone still under investigation. Here’s the Roger Stone passage.

On or aboutAugust 15,2016, the Conspirators,posing as Guccifer 2.0,wrote to a person who was in regular contact with senior members of the presidential campaign of Donald J. Trump, “thank u for writing back. . . do u find anyt[h]ing interesting in the docs i posted?” On or about August 17, 2016, the Conspirators added, “please tell me if i can help u anyhow . . . it would be a great pleasureto me.” On or about September 9, 2016,the Conspirators, again posing as Guccifer 2.0, referred to a stolen DCCC document posted online and asked the person, “what do u think of the info on the turnout model for the democrats entire presidential campaign.” The person responded,“[p]retty standard.”

The Trump one, of course, pertains to the response GRU hackers appear to have made when he asked for Russia to find Hillary’s emails on July 27.

For example, on or about July 27, 2016, the Conspirators attempted after hours to spearphish for the first time email accounts at a domain hosted by a third‑party provider and used by Clinton’s personal office. At or around the same time, they also targeted seventy‐six email addresses at the domain for the Clinton Campaign.

Finally, there is yesterday’s Mariia Butina complaint, which charges her as an unregistered Russian spy and describes Aleksandr Torshin as her boss, but which also describes the extensive and seemingly willful cooperation with Paul Erickson and another American, as well as with the RNC and NRA. Here’s one of the Americans, for example, telling Butina that her Russian bosses should take the advice he had given her about which Americans she needed to meet.

If you were to sit down with your special friends and make a list of ALL the most important contacts you could find in America for a time when the political situation between the U.S. and Russia will change, you could NOT do better than the list that I just emailed you. NO one — certainly not the “official” Russian Federation public relations representative in New York — could build a better list.

[snip]

All that you friends need to know is that meetings with the names on MY list would not be possible without the unknown names in your “business card” notebook. Keep them focused on who you are NOW able to meet, NOT the people you have ALREADY met.

Particularly as someone whose communications (including, but not limited to, that text) stand a decent chance of being quoted in an indictment in the foreseeable future, let me be very clear: none of these people have been accused of any wrong-doing.

But they do suggest a universe of people who have attracted investigative scrutiny, both by Mueller and by NSD, as willing co-conspirators with Russian spies.

Granted, there are three different kinds of Russian spies included in these three documents:

  • Uniformed military intelligence officers working from Moscow
  • Civilian employees who might be considered intelligence contractors working from St. Petersburg (though with three reconnaissance trips to the US included)
  • Butina and Torshin, both of whom probably committed visa fraud to engage as unregistered spies in the US

We have a specific crime for the latter (and, probably, the reconnaissance trips to the US by IRA employees), and if any of the US persons and entities in Butina’s indictment are deemed to have willingly joined her conspiracy, they might easily be charged as well. Eventually, I’m certain, Mueller will move to start naming Americans (besides Paul Manafort and Rick Gates) in conspiracy indictments, including ones involving Russian spies operating from Russia (like Konstantin Kilimnik). It seems necessary to include the Russians in some charging documents, because otherwise you’ll never be able to lay out the willful participation of everyone, Russian and American, in the charging documents naming the Americans.

So while I generally agree with Goldsmith and Williams, this case, where we’re clearly discussing a conspiracy between Russian spies — operating both from the US and from Russia (and other countries), wearing uniforms and civilian clothing –and Americans, it seems important to include them in charging documents somewhere.

The Crimes with which NSD Envisions Charging Those Attacking Elections

The Senate Judiciary Committee had a hearing on how to protect our elections today. Among others, Deputy Assistant Attorney General Adam Hickey from DOJ’s National Security Division testified. He gave a list of some of the crimes he thought might be used to charge people who tampered with elections.

Foreign influence operations, though not always illegal, can implicate several U.S. Federal criminal statutes, including (but not limited to) 18 U.S.C. § 371 (conspiracy to defraud the United States); 18 U.S.C. § 951 (acting in the United States as an agent of a foreign government without prior notification to the Attorney General); 18 U.S.C. § 1001 (false statements); 18 U.S.C. § 1028A (aggravated identity theft); 18 U.S.C. § 1030 (computer fraud and abuse); 18 U.S.C. §§ 1343, 1344 (wire fraud and bank fraud); 18 U.S.C. § 1519 (destruction of evidence); 18 U.S.C. § 1546 (visa fraud); 22 U.S.C. § 618 (Foreign Agents Registration Act); and 52 U.S.C. §§ 30109, 30121 (soliciting or making foreign contributions to influence Federal elections, or donations to influence State or local elections).

In their testimony, Ken Wainstein (someone with extensive experience of national security prosecutions, but less apparent focus on the available evidence in this investigation) and Ryan Goodman (who doesn’t have the prosecutorial experience of Wainstein, but who is familiar with the public facts about the investigation) also list what crimes they think will get charged.

I find a comparison of what each raised, along with what has already been charged, to be instructive. I believe that comparison looks like this:

I’m interested, in part, because Hickey, who likely has at least a sense of the Mueller investigation (if not personal involvement), sees the case somewhat differently than two differently expert lawyers. Two charges — agent of a foreign power (basically, being a foreign spy in the US not working under official cover) and CFAA (hacking) seem obvious to both National Security Division prosecutors, but have not yet been publicly charged. Illegal foreign contributions seems obvious to those paying close attention, but also has not been charged. We might expect to see all three charges before we’re done.

Neither Wainstein nor Goodman mentioned false statements, but of course that’s what we’ve seen charged most often so far.

Then there are the two crimes Hickey mentions that the others don’t, but that have not yet been charged (both have been alleged as overt acts in the Internet Research Agency indictment): Visa fraud (alleged against the trolls who came to the US to reconnoiter in 2014) and destruction of evidence (again, alleged against IRA employees destroying evidence after Facebook’s role was discovered). Mueller also described George Papadopoulos destroying evidencec when he deleted his Facebook account, but like the Russian trolls, he didn’t get charged for it. Visa fraud, in particular, is something that multiple figures might be accused of — Alexander Torshin and others reaching out via NRA, Natalia Veselnitskaya, and even Brits who worked illegally during the election for Cambridge Analytica.

I confess I’m most interested in Hickey’s mention of destruction of evidence, though. That’s true, in part, because SDNY seems to think Michael Cohen might destroy evidence.

Hope Hicks, too, reportedly thought about hiding evidence from authorities. Then there’s the report that Mueller is checking encrypted messaging apps as people turn in phones when they arrive for interviews.

Huckey seems to think some of the people being investigated — beyond Papadopoulos and IRA troll Viktorovna Kaverzina — may have been destroying evidence.

I wonder if he has reason to suspect that.

Manafort Renewed His Outreach to FBC Group after Mueller’s Early April Revelations

As I noted, last night Mueller’s team moved to revoke Paul Manafort’s bail because — they allege — he has been attempting to suborn perjury from witnesses associated with the FBC Group PR firm. In addition to a declaration laying out the evidence for that claim, Mueller’s team included a list of contacts between Manafort himself and Konstantin Kilimnik with people at FBC Group. Amy Berman Jackson has scheduled a hearing for June 15 to consider the motion.

As the declaration lays out, person D1 (likely Alan Friedman) hadn’t spoken to Manafort since last July, probably before his public raid by the FBI and around the time Friedman started cooperating with the government. He hung up when Manafort called him in February and regarded the outreach as an effort to suborn perjury.

Person D1 told the government that in or around this period, Manafort called Person D1, and that the two had not spoken since July of the previous year. Person D1 stated that after answering the call and after the caller identified himself as Manafort, Manafort stated that he wanted to give Person D1 a heads-up about Hapsburg. Person D1 immediately ended the call because he was concerned about the outreach.

[snip]

Person D1 told the government that Person D1 understood Manafort’s messages to be an effort to “suborn perjury” by influencing Person D1’s potential statements. Person D1 well knew and believed from frequent interactions with its members that the Hapsburg group in fact lobbied in the United States, and that Manafort and Person A knew that fact.

Most of the declaration focuses on a set of communications immediately in the wake of Rick Gates’ plea deal, which made it clear Mueller had expanded Manafort’s prosecution to include actions of the Hapsburg Group — a bunch of European bigwigs Manafort hired to lie about Ukraine publicly and to Congress. I noted the day of Manafort’s first call that Friedman was surely cooperating with Mueller, but apparently I’m smarter than Manafort.

What I’m interested in, however, is that on April 4, Kilimnik tried again, with WhatsApp and Telegram outreach to both D1 and the PR person on the project.

Unlike the Hapsburg specific outreach, the declaration offers no explanation for Kilimnik’s April outreach.

Approximately one month later, Person A reached out to Person D1 directly as well. On April 4, 2018, Person A sent a message to Person D1: “Hi. This is [Person A’s first initial]. My friend P is looking for ways to connect to you to pass you several messages. Can we arrange that.” Person A reached out to Person D2 the same day, and reiterated his need for help in connecting Person D1 with Manafort. Person A added in his text to Person D2: “I tried him [i.e., Person D1] on all numbers.”

This outreach is non-specific. Kilimnik just appears to have an urgent need to reach out to (presumably) Friedman, in Manafort’s name, on April 4.

The timing is particularly interesting to me. The outreach happens in the wake of the Alex Van Der Zwaan sentencing filings, which provided more detail on Skadden Arp’s involvement in the Yulia Tymoshenko whitewash, and as such may have concerned the Hapsburg players. In addition, the prosecution filing for the first time made (and repeated Rick Gates’ indirect) allegations that Kilimnik himself was and might still be a Russian intelligence officer.

Federal Bureau of Investigation Special Agents assisting the Special Counsel’s Office assess that Person A has ties to a Russian intelligence service and had such ties in 2016. During his first interview with the Special Counsel’s Office, van der Zwaan admitted that he knew of that connection, stating that Gates told him Person A was a former Russian Intelligence Officer with the GRU.

The outreach also happened in the wake of Mueller’s filing of the Rosenstein Memo, as well as public claims that included Oleg Deripaska in the scope of the investigation.

So it’s likely that Paul Manafort and Konstantin Kilimnik regarded those early April filings as impacting in some way on FBC Group, and possibly on Alan Friedman personally.

Of course, Friedman wasn’t playing Manafort’s games by that point, and hadn’t been already for over a month (and probably over 8 or 9 months).

Whatever else Manafort learned with yesterday’s filings, he likely also confirmed that. Whatever added risk those early April filings posed to Manafort, FBC Group is probably part of the risk, not part of his efforts to dodge the risk.

Update: I made an error in this post originally, by saying that it pertains to Mercury (Company A or B in Mueller’s findings). Josh Gerstein correctly IDs the company as FBC Media, which would make D1 Alan Friedman.

The Access Hollywood Search Doesn’t Mean Trump Coordinated with Assange

As I noted, yesterday several outlets reported that among the things included in the FBI warrant for Michael Cohen’s premises was communications between Trump, Cohen, and others (whom I suspect to include Steve Bannon and Marc Kasowitz) “regarding the infamous ‘Access Hollywood'” video.

FBI agents who raided the home, office and hotel of Donald Trump’s personal lawyer sought communications that Trump had with attorney Michael Cohen and others regarding the infamous “Access Hollywood” tape that captured Trump making lewd remarks about women a month before the election, according to sources familiar with the matter.

[snip]

The search warrant also sought communications between then-candidate Trump and his associates regarding efforts to prevent disclosure of the tape, according to one of the sources. In addition, investigators wanted records and communications concerning other potential negative information about the candidate that the campaign would have wanted to contain ahead of the election. The source said the warrant was not specific about what this additional information would be.

From that, people on both the right and the left have assumed, without presenting hard evidence, that this means there must be a tie to Russia. Most often, people assume this must mean Trump somehow managed the events of October 7, when the Intelligence Committee report blaming Russia for the DNC hack, the Access Hollywood video, and the first Podesta emails all came out in quick succession.

That’s certainly possible, but thus far there’s no reason to believe that’s the case.

Mueller and Rosenstein referred this

That’s true, first of all, because after consulting with Rod Rosenstein, Robert Mueller referred this to the Southern District of New York for execution and prosecution, rather than dealing with it himself. He did that surely knowing what a sieve for leaks SDNY is, and therefore knowing that doing so would undercut his remarkably silent teamwork thus far.

In spite of a lot of reporting on this raid this week, we don’t yet have a clear understanding of why the two chose to refer it (or, tangentially, why interim SDNY US Attorney Geoffrey Berman recused himself from this matter).

There are two options. The first is that Rosenstein believed hush payments and taxi medallion money laundering sufficiently attenuated to the Russian investigation that it should properly be referred. In which case, the fact that it was referred is itself reason to believe that Mueller — even while he had abundant evidence supporting the search warrant — has no reason to believe those releases were orchestrated with Wikileaks, and therefore have no direct interest to his investigation (though they may cough up one to three witnesses who will be more willing to cooperate when faced with their own fraud indictments). In which case, the Access Hollywood video would be just another example, like the Stormy Daniels and the Karen McDougal payoffs, of Trump’s efforts to bury embarrassing news, using whatever means necessary.

The other option is that Mueller does have evidence that Trump in some way managed the October 7 events, which would be one of the most inflammatory pieces of evidence we would have heard of so far, but that there was some other reason to refer the matter.

Michael Cohen wasn’t serving as an attorney for much of the reported documents

The really good reason to refer the warrant would be so that SDNY would serve as a natural clean team, sorting through seized items for privileged communications, only to hand them back to Mueller’s team in DC once they’ve sorted through them. It’s an idea Preet Bharara and Matt Miller, among others, have floated.

Before we conclude that SDNY is only serving as a clean team for Mueller’s team here, consider that coverage has vastly overstated the degree to which the items being searched will fall under attorney-client privilege.

The search also sought information on Cohen’s taxi medallions, a business in which he has had really corrupt partners, some Russian, with their own legal problems, and one that has reportedly left Cohen with some debt problems that make his purported personal payment to Stormy Daniels all the more sketchy.

In addition, as soon as Trump claimed to know nothing of the hush payment to Daniels last Friday, the government could credibly claim that either Cohen was not representing Trump when paying off Daniels, or involved in fraud.

The NYT has reported that the raid also sought all communications between Cohen and National Enquirer’s top brass, communications that would in no way be privileged.

Even the reported communications about the Access Hollywood video may not be privileged. If they involved four people, then the only way they’d be covered by privilege is if they counted as campaign emails and Marc Kasowitz, not Cohen, was the attorney providing privileged advice in question. In that case, Cohen would have been playing the press contact role he often did during the campaign.

Still, just because Cohen was not playing the role of an attorney during most of the activities the FBI is interested in doesn’t mean the FBI won’t be really careful to make sure they don’t violate privilege, and I’m sure they’ll still use a taint team.

Mueller has already dealt with (at least) two sensitive attorney-client relationships in his investigation

Even on top of the eight members of the White House Counsel’s office who have spoken with the Special Counsel, Mueller’s team has dealt with (at least) two other sensitive attorney-client relationships.

The first was Melissa Laurenza, a lawyer for Paul Manafort whom he had write false declarations for FARA registry. Judge Amy Berman Jackson permitted Mueller’s team to ask her seven of eight proposed question after proving Manafort had used her services to engage in fraud.

More recently, we’ve gotten hints — but only hints — of what must be extensive cooperation from Skadden Arps and its partner Greg Craig, describing how Manafort and Gates laundered money to pay the firm loads of money to write a report they hoped would exonerate Ukraine’s persecution of Yulia Tymoshenko. While the cooperation of Skadden itself was probably effusive in its voluntary nature (the firm seems determined to avoid the taint that Tony Podesta’s firm has acquired in this process), Mueller did subpoena Alex Van der Zwaan and it’s unclear what methods the FBI used to obtain some of the materials he tried to hide from prosecutors.

Neither of those exchanges involves a search warrant. But they do show that Mueller is willing to take on the tricky issue of attorney testimony first-hand. Using SDNY as a clean team still may be the easiest option in the Cohen case, but Mueller clearly isn’t shying away from managing all such issues in-house in other cases.

The other possible explanations for the Access Hollywood search and the October 7 timing

Which brings us finally to the other possibilities behind the Access Hollywood search.

It’s certainly possible that the coincidental release of all these things was coordination, entirely orchestrated by the Trump campaign. But there are a number of reasons — on top of the fact that Mueller isn’t keeping this search far tighter under his own control — I think that’s not the most likely explanation.

Consider this story, arguing that the real story of Access Hollywood isn’t that it leaked on October 7 — the piece notes that David Farenthold had only received it that day — but that it didn’t leak earlier in the process, when it might have led Trump to lose the primary.

t is just impossible to believe that the tape not coming out at the start of Trump’s campaign, when logic dictates that it would have blown Trump instantly out of the water (before he was in a position where Republicans had no choice other than to keep backing him against the evil Hillary Clinton), was anything but a highly unethical political decision by someone at NBC. The fact that no one has ever even gotten an answer from NBC about how this could have happened is equally unfathomable and yet, given the news media’s overall incompetence, kind of expected.

[snip]

It has always struck me as EXTREMELY odd that it was the Washington Post, not NBC, who first released the tape on Friday Oct. 7, 2016, barely beating NBC which, it should be noted, was clearly ready to go with it immediately after the Post did. I presumed that perhaps NBC wanted this to be the case because it might take some of the focus off why they had not released it during the primaries (and thus chose not to prematurely kill off the media’s Golden Goose which was Trump’s ratings-friendly campaign).

However, there is another aspect of the Post being the outlet which got the big scoop that has always struck me as potentially very significant. The Post’s reporter, David Fahrenthold, has said that he was only made aware of the tape, via an unnamed source, THAT day — which is a clear indication that whomever was trying to get the Post to release it had decided to do so in tremendous haste. After all, if the source had planned it sooner they would have made contact with Fahrenthold well before then because he might have been out of pocket that day.

[snip]

For instance, what if it was actually someone from the TRUMP team who leaked the tape. At first glance, this seems ludicrous because no one thought that Trump would be anything but greatly harmed by the tape (though he clearly was not). But what if someone in Trump World got wind that the tape was about to be released and decided that stepping all over the Russia news (which would normally have dominated the narrative for the remainder of the campaign) would at least create the least bad outcome for them?

I don’t agree that the release was released when it was to distract from the Russia announcement that day. As I’ve long noted, in reality, the Access Hollywood distracted from the Podesta emails, effectively burying the most damning release in the bunch, the excerpts of Hillary’s speeches that even Democrats had been demanding she release since the primary. And while the Trump team might claim they didn’t control the release of the Podesta emails directly — and Roger Stone’s predictions that Wikileaks would release Clinton Foundation rather than Podesta emails were dead wrong — the Trump team at least knew something was coming (indeed, Wikileaks had made that clear themselves). So there’s little reason they would stomp on what they had long welcomed with the Access Hollywood tape. As this post alludes, I also think the Trump team and Russians or Wikileaks may have been squabbling over whether Wikileaks would release possibly faked Clinton Foundation emails that week, only to scramble when Wikileaks refused to release whatever the Peter Smith effort had gotten dealt to them.

Like the Mediate piece, I’m interested in the way that Steve Bannon had Clinton accusers all lined up to go that weekend (indeed, I noted how quickly Stone moved to that after having raised expectations for a Clinton Foundation release). But I also think there are some reasons to believe that attack was in the works for other reasons (though I agree it might reflect advance knowledge that the video might come out, or even that Stormy Daniels might come forward).  Finally, I don’t think the release came from Trump because of all the reports of Republicans trying to convince Trump to step down (though it’s possible the GOP dropped the video in one last bid to get him to do so).

One alternative narrative, then, is that the real story about the Access Hollywood suppression goes back months or years earlier, as one of the things Trump managed to suppress throughout the campaign, but something happened internally to breach that agreement. And, separately, that either Assange by himself, with Russian help, or with Trump assistance, timed the Podesta emails to come out as the Russian attribution was coming out. That is, it could be that the real story remains that whoever orchestrated the Wikileaks release did so in an attempt to bury the Russian attribution, but that the coincidental release of the Access Hollywood video in turn buried the Podesta emails.

Finally, it’s possible that Democrats got ahold of the Access Hollywood video and they released it to (successfully) drown out the Podesta emails, which they (and the intelligence community) also would have known were coming, but by doing so, they also drowned out the all-important Russian attribution in the process.

The point is, we don’t know. And nothing we know thus far about the process leading to this warrant or about the suppression and release of either the video or the women’s stories suggest it all took place that week of October. Trump’s usual m.o. is about suppression, not timing.

That said, I’m curious if this raid will reveal details about one other item Trump probably tried to suppress: the nude Melania photos that NYPost released on July 31, 2016, just as campaign season got going in earnest.