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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.

About the Oleg Deripaska Reference in the Mueller Memo

As I promised in my general summary of the Mueller memo and my assertion that there are more memos from DAG Rosenstein authorizing expanded scope on Mueller’s investigation, I want to comment on the reference to Oleg Deripaska in the memo.

The memo, remember, ostensibly only needs to lay out how Mueller’s appointment “to investigate Russian interference with the 2016 presidential election and related matters” authorizes him to prosecute a bunch of money laundering used to hide the fact that Paul Manafort was lobbying for the interests of the Party of Regions, the Russian backed effort to keep its favored oligarchs in power in Ukraine, when he was pretending to represent an independent entity.

But at the end of a long paragraph explaining how Rosenstein’s appointment order alone would justify that prosecution — because Manafort played a key role in Trump’s campaign, and because Manafort resigned after his extensive ties to Yanukovych were exposed — Mueller drops in a reference to “open source reporting” tying Manafort to Deripaska.

The Appointment Order itself readily encompasses Manafort’s charged conduct. First, his conduct falls within the scope of paragraph (b)(i) of the Appointment Order, which authorizes investigation of “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” The basis for coverage of Manafort’s crimes under that authority is readily apparent. Manafort joined the Trump campaign as convention manager in March 2016 and served as campaign chairman from May 2016 until his resignation in August 2016, after reports surfaced of his financial activities in Ukraine. He thus constituted an “individual associated with the campaign of President Donald Trump.” Appointment Order ¶ (b) and (b)(i). He was, in addition, an individual with long ties to a Russia-backed Ukrainian politician. See Indictment, Doc. 202, ¶¶ 1-6, 9 (noting that between 2006 and 2015, Manafort acted as an unregistered agent of Ukraine, its former President, Victor Yanukovych—who fled to Russia after popular protests—and Yanukovych’s political party). Open-source reporting also has described business arrangements between Manafort and “a Russian oligarch, Oleg Deripaska, a close ally of President Vladimir V. Putin.”8 [my emphasis]

There’s no explicit reference to Deripaska in Manafort’s indictment. The only public references to him in the Manafort prosecution I’m aware of are instead to Deripaska’s crony, Konstantin Kilimnik, laying out his efforts to spin the indictment in an op-ed in the Kyiv Post, which Mueller’s prosecutors argued was an attempt to skirt the gag rule in the case. There’s admittedly more detailed reference to Kilimnik — referred to as Person A — in the same team’s sentencing memo for Alex Van der Zwaan, including the assertion that,

[T]he lies and withholding of documents were material to the Special Counsel’s Office’s investigation. That Gates and Person A were directly communicating in September and October 2016 was pertinent to the investigation. 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.2

2 Person A worked with Manafort and Gates in connection with their Ukraine lobbying work. Person A is a foreign national and was a close business colleague of Manafort and Gates. He worked in Ukraine at Manafort’s company Davis Manafort International, LLC (DMI). Up until mid-August 2016, Person A lived in Kiev and Moscow

But thus far, nothing specifically relating to Deripaska or Kilimnik has been charged, even while a different open source report describing Manafort’s offer to give private briefings to Deripaska via Kilimnik laid out a much closer tie between Deripaska and election tampering, and another open source report described FBI scrutiny of Kilimnik’s role in changing the GOP platform.

As noted, instead of referencing those more damning open source reports, Mueller instead points to the August 15, 2016 NYT article that precipitated Manafort’s resignation from the Trump campaign. The report, sourced to investigators in “Ukraine’s newly formed National Anti-Corruption Bureau” laid out the secret ledgers showing that Manafort may have received $12.7 million in off-the-book payments for his consulting services that tampered with Ukraine’s electoral process.

The report goes on to lay out the general logic of the money laundering prosecution at issue — how Manafort’s money laundering prevented others from understanding how much he actually made for his services to Yanukovych and the Party of Regions.

Mr. Manafort never registered as a foreign agent with the United States Justice Department — as required of those seeking to influence American policy on behalf of foreign clients — although one of his subcontractors did.

It is unclear if Mr. Manafort’s activities necessitated registering. If they were limited to advising the Party of Regions in Ukraine, he probably would not have had to. But he also worked to burnish his client’s image in the West and helped Mr. Yanukovych’s administration draft a report defending its prosecution of his chief rival, Yulia V. Tymoshenko, in 2012.

Whatever the case, absent a registration — which requires disclosure of how much the registrant is being paid and by whom — Mr. Manafort’s compensation has remained a mystery.

From there, it turns to the Pericles Open Market fund that Manafort, Gates, and others got Deripaska to fund. The story doesn’t describe any direct tie between the secret ledgers at issue in the story and the Deripaska investments. Rather,the Deripaska lawsuit against Manafort made details of the fund available to Ukraine’s special prosecutor, who cited them as an example of how Yanukovych’s cronies laundered money.

In a recent interview, Serhiy V. Gorbatyuk, Ukraine’s special prosecutor for high-level corruption cases, pointed to an open file on his desk containing paperwork for one of the shell companies, Milltown Corporate Services Ltd., which played a central role in the state’s purchase of two oil derricks for $785 million, or about double what they were said to be worth.

“This,” he said, “was an offshore used often by Mr. Yanukovych’s entourage.”

[snip]

Mr. Deripaska agreed to commit as much as $100 million to Pericles so it could buy assets in Ukraine and Eastern Europe, including a regional cable television and communications company called Black Sea Cable. But corporate records and court filings show that it was hardly a straightforward transaction.

The Black Sea Cable assets were controlled by a rotating cast of offshore companies that led back to the Yanukovych network, including, at various times, Milltown Corporate Services and two other companies well known to law enforcement officials, Monohold A.G. and Intrahold A.G. Those two companies won inflated contracts with a state-run agricultural company, and also acquired a business center in Kiev with a helicopter pad on the roof that would ease Mr. Yanukovych’s commute from his country estate to the presidential offices.

The Deripaska reference in a memo describing why Mueller was authorized to prosecute Manafort for related (but not explicitly) money laundering would otherwise be a non-sequitur. Because it appears in an article that not only lays out the basis for the underlying charges, but does so in an article that had an impact on Manafort’s role in the campaign, it doesn’t seem so obviously tangential. Plus, it has the added benefit (unlike the open source reporting deriving from leaks from Congress or law enforcement) of being an on-the-record source from someone perfectly entitled to the talk to the press about Ukraine’s investigation into Manafort. This, then, was a legally permissible way to insert Deripaska into a filing where he otherwise might not have belonged.

Plus, that same open source report lays out that Ukraine’s National Anti-Corruption Bureau can’t prosecute suspects, but instead has to rely on entities like the FBI — with which it has an evidence sharing agreement — to do so.

The bureau, whose government funding is mandated under American and European Union aid programs and which has an evidence-sharing agreement with the F.B.I., has investigatory powers but cannot indict suspects. Only if it passes its findings to prosecutors — which has not happened with Mr. Manafort — does a subject of its inquiry become part of a criminal case.

During Jim Comey’s March 20, 2017 testimony (which is cited explicitly in the Mueller memo to lay out the initial unclassified scope of the investigation), Jim Himes tried to get the then FBI Director to admit that DOJ had not responded to seven requests for MLAT assistance to secure Manafort’s cooperation in their inquiry.

HIMES: And the reason I bring all this up with you is because the story also says and it appears to have been confirmed by the Department of Justice that the current Ukraine regime, hardly a friend of the Russians. And very much targeted by the Russians has made seven requests to the United States government’s — the United States government for assistance under the MLA treaty in securing the assistance of Paul Manafort as part of this on anti-corruption case. And in fact, the story says that you were presented personally with a letter asking for that assistance.

So my question Director Comey is, is that all true? Have you been asked to provide assistance to the current Ukrainian government with respect to Paul Manafort? And how do you intend to respond to that request?

COMEY: It’s not something I can comment on. I can say generally, we have a very strong relationship and cooperation in the criminal and national security areas with our Ukrainian partners, but I can’t talk about the particular matter.

Comey, while not confirming the report, instead suggested that the FBI continued to cooperate closely with Ukraine on this issue — a strong suggestion that Ukraine ultimately had asked an entity that could take prosecutorial action to do so.

To sum up thus far: this reference to Deripaska is, to the best of my knowledge, the first explicit reference to him anywhere in the Manafort docket. It has no obvious place in a memo explaining why Mueller is authorized to prosecute Manafort for money laundering tied to the Party of Regions. But there it is, in the middle of a paragraph explaining why Manafort’s prosecution follows logically even from the original grant of authority, to say nothing of any unredacted or redacted bullet points explicitly including Manafort’s alleged and documented ties to Deripaska in the scope of Mueller’s authority. By including it in the memo, Mueller effectively includes Deripaska in the ongoing discussions of the things Judge Amy Berman Jackson will likely soon agree Mueller has the authority to prosecute.

It is, then, the most telling line in the entire memo, and the most clever. It uses the opportunity of this memo to pre-authorize where Mueller is going, without having to reveal what evidence Mueller is sitting on to go there.

Of course, where he’s going — to this oligarch and his crony’s role in Trump’s election — is very obviously tied to the case in chief, the Russian tampering in the US election.

Update: Later today Mueller’s team requested permission to file one of the exhibits from their filing — which given Judge Berman Jackson’s description has to be the Rosenstein memo — under seal. Which suggests they want him to know what else he’s being investigated for, which is probably the Deripaska stuff.

There Are Almost Certainly Other DAG Rosenstein Memos

As I noted in this post, Robert Mueller’s team of “Attorneys for the United States of America” responded to Paul Manafort’s claim that Rod Rosenstein’s grant of authority to the Special Counsel did not extend to the money laundering he is currently being prosecuted for by revealing an August 2, 2017 memo from Rosenstein authorizing Mueller to investigate, along with a bunch of redacted stuff,

Allegations that Paul Manafort:

  • Committed a crime or crimes by colluding with Russian government officials with respect to the Russian government’s efforts to interfere with the 2016 election for President of the United States, in violation of United States law;
  • Committed a crime or crimes arising out of payments he received from the Ukrainian government before and during the tenure of President Viktor Yanukovych.

As the filing notes, this memo has not been revealed before, neither to us nor to Manafort.

That’s all very interesting (and has the DC press corps running around claiming this is a big scoop, when it is instead predictable). More interesting, however, is the date, which strongly suggests that there are more of these memos out there.

Mueller is unlikely to have waited two and a half months to memorialize his scope

I say that, first of all, because Rosenstein wrote the August 2 memo two and a half months after he appointed Mueller. Given Trump’s raging attacks on the investigation, it’d be imprudent not to get memorialization of the scope of the investigation at each step. Indeed, as I’ve noted, in the filing Mueller points to the Libby precedent, arguing that this memo “has the same legal significance” as the two memos Jim Comey used to (publicly) memorialize the scope of Patrick Fitzgerald’s investigation.

The August 2 Scope Memorandum is precisely the type of material that has previously been considered in evaluating a Special Counsel’s jurisdiction. United States v. Libby, 429 F. Supp. 2d 27 (D.D.C. 2006), involved a statutory and constitutional challenge to the authority of a Special Counsel who was appointed outside the framework of 28 C.F.R. Part 600. In rejecting that challenge, Judge Walton considered similar materials that defined the scope of the Special Counsel’s authority. See id. at 28-29, 31-32, 39 (considering the Acting Attorney General’s letter of appointment and clarification of jurisdiction as “concrete evidence * * * that delineates the Special Counsel’s authority,” and “conclud[ing] that the Special Counsel’s delegated authority is described within the four corners of the December 30, 2003 and February 6, 2004 letters”). The August 2 Scope Memorandum has the same legal significance as the original Appointment Order on the question of scope.

The first of those Comey letters, dated December 30, 2003, authorized Fitz to investigate the leak of Valerie Plame’s identity. The second of those, dated February 6, 2004, memorialized that Fitz could also investigate,

federal crimes committed in the course of, and with intent to interfere with, your investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses; to conduct appeals arising out of the matter being investigated and/or prosecuted; and to pursue administrative remedies and civil sanctions (such as civil contempt) that are within the Attorney General’s authority to impose or pursue.

It’s the second memo that memorialized Fitz’ authority to prosecute Scooter Libby for protecting Dick Cheney’s role in outing Valerie Plame.

Mueller, then the acting FBI Director, would presumably have been in the loop of the Fitz investigation (as Christopher Wray is in Mueller’s) and would have known how these two letters proceeded. So it would stand to reason he’d ask for a memo from the start, particularly given that the investigation already included multiple known targets and that Trump is even more hostile to this investigation than George Bush and Dick Cheney were to Fitz’s.

Admittedly, unlike the Comey memo, which was designed for public release, there’s no obvious, unredacted reference to a prior memo. Though something that might imply a prior memo is redacted at the top of the released memo (though this is probably a classification marking).

And, given that this memo was designed to be secret, Rosenstein may have written the memo to obscure whether there are prior ones and if so how many.

The memo closely follows two key dates

That said, the date of the memo, August 2, is mighty curious. It is six days after the July 27 Papadopoulos arrest at Dulles airport. And seven days after the July 26 no knock search of Paul Manafort’s Alexandria home.

That timing might suggest any of several things. It’s certainly possible (though unlikely) the timing is unrelated.

It’s possible that Rosenstein wrote the memo to ensure those two recent steps were covered by his grant. That wouldn’t mean that the search and arrest wouldn’t have been authorized. The memo itself notes that Mueller would be obliged to inform Rosenstein before each major investigative step.

The Special Counsel has an explicit notification obligation to the Attorney General: he “shall notify the Attorney General of events in the course of his or her investigation in conformity with the Departmental guidelines with respect to Urgent Reports.” 28 C.F.R. § 600.8(b). Those reports cover “[m]ajor developments in significant investigations and litigation,” which may include commencing an investigation; filing criminal charges; executing a search warrant; interviewing an important witness; and arresting a defendant.

Both Papadopoulos’ arrest and that dramatic search would fit this criteria. So it’s virtually certain Rosenstein reviewed Urgent Memos on both these events before they happened. Plus, his memo makes it clear that the allegations included in his memo “were within the scope of the Investigation at the time of your appointment and are within the scope of the Order,” meaning that the inclusion of them in the memo would retroactively authorize any activities that had already taken place, such as the collection of evidence at Manafort’s home outside the scope of the election inquiry.

As I noted, the memo also asserts that Special Counsels’ investigative authority, generally, extends to investigating obstruction and crimes the prosecutor might use to flip witnesses.

The filing is perhaps most interesting for the other authorities casually asserted, which are not necessarily directly relevant in this prosecution, but are for others. First, Mueller includes this footnote, making it clear his authority includes obstruction, including witness tampering.

The Special Counsel also has “the authority to investigate and prosecute federal crimes committed in the course of, and with intent to interfere with, the Special Counsel’s investigation, such as perjury, obstruction of justice, destruction of evidence, and intimidation of witnesses” and has the authority “to conduct appeals arising out of the matter being investigated and/or prosecuted.” 28 C.F.R. § 600.4(a). Those authorities are not at issue here.

Those authorities are not at issue here, but they are for the Flynn, Papadopoulos, Gates, and Van der Zwaan prosecutions, and for any obstruction the White House has been engaging in. But because it is relevant for the Gates and Van der Zwaan prosecutions, that mention should preempt any Manafort attempt to discredit their pleas for the way they expose him.

The filing includes a quotation from DOJ’s discussion of special counsels making it clear that it’s normal to investigate crimes that might lead someone to flip.

[I]n deciding when additional jurisdiction is needed, the Special Counsel can draw guidance from the Department’s discussion accompanying the issuance of the Special Counsel regulations. That discussion illustrated the type of “adjustments to jurisdiction” that fall within Section 600.4(b). “For example,” the discussion stated, “a Special Counsel assigned responsibility for an alleged false statement about a government program may request additional jurisdiction to investigate allegations of misconduct with respect to the administration of that program; [or] a Special Counsel may conclude that investigating otherwise unrelated allegations against a central witness in the matter is necessary to obtain cooperation.”

That one is technically relevant here — one thing Mueller is doing with the Manafort prosecution (and successfully did with the Gates one) is to flip witnesses against Trump. But it also makes it clear that Mueller could do so more generally.

Mueller used the false statements charges against Papadopoulos to flip him. He surely hopes to use the money laundering charges against Manafort to flip him, too. Both issues may have been at issue in any memo written to newly cover the events of late July.

Mueller may not have revealed the scope of the Manafort investigation at that time

Now consider this detail: the second bullet describing the extent of the investigation into Manafort has a semi-colon, not a period.

It’s possible Mueller used semi-colons after all these bullets (of which Manafort’s is the second or third entry). But that, plus the resumption of the redaction without a double space suggests there may be another bulleted allegation in the Manafort allegation.

There are two other (known) things that might merit a special bullet. First, while it would seem to fall under the general election collusion bullet, Rosenstein may have included a bullet describing collusion with Aras Agalarov and friends in the wake of learning about the June 9 Trump Tower meeting with his employees. More likely, Rosenstein may have included a bullet specifically authorizing an investigation of Manafort’s ties with Oleg Deripaska and Konstantin Kilimnik.

The Mueller memo actually includes a specific reference to that, which as I’ve noted I will return to.

Open-source reporting also has described business arrangements between Manafort and “a Russian oligarch, Oleg Deripaska, a close ally of President Vladimir V. Putin.”

The latter might be of particular import, given that we know a bunch of fall 2017 interviews focused on Manafort’s ties to Deripaska and the ongoing cover-up with Kilimnik regarding the Skadden Arps report on the Yulia Tymoshenko prosecution.

All of which is to say that this memo may reflect a new expansion of the Manafort investigation, perhaps pursuant to whatever the FBI discovered in that raid on Manafort’s home. If so, that should be apparent to him, as he and his lawyers know what was seized.

Still, I wouldn’t be surprised if he inquired about what authorized that July 26 raid, if for no other reason than to sustain his effort to make more information on Mueller’s investigation public.

The redactions almost certainly hide two expansions to the investigation as it existed in October 2016

Now let’s turn to what else (besides another possible Manafort bullet) the redactions might show, and what may have been added since.

The unredacted description of the Manafort investigation takes up very roughly about one fifth of the section describing allegations Mueller was pursuing.

The Schiff Memo revealed that DOJ had sub-investigations into four individuals in October 2016.

Endnote 7 made it clear that, in addition to Page, this included Flynn and Papadopoulos, probably not Rick Gates, and one other person, possibly Roger Stone.

In August 2017, all four of those would have been included in a Rosenstein memo, possibly with a bullet dedicated to Gates alone added. That said, not all of these would require two or more bullets (and therefore as much space as the Manafort description). Papadopoulos’ description might include two, one dedicated to the collusion and one to the lying about collusion, or just one encompassing both the collusion and the lying. Flynn’s might include three, one dedicated to the collusion, one to the lying about it, and one to the unregistered foreign agent work, including with Turkey, that we know Mueller to have been investigating; or, as with Papadopoulos, the lying about the collusion might be incorporated into that bullet. Stone’s bullet would likely have only reflected the collusion, an investigation that is currently very active. Carter Page’s suspected role as a foreign agent might be one bullet or two.

That suggests, though doesn’t confirm, that there are a few other things included in those redacted bullets, things not included in the investigation in October 2016 as reflected in the Schiff memo.

Indeed, we should expect two more things to be included in the bullet points: First, the name of any suspect, including the President, associated with the obstruction of justice. Rosenstein himself had already been interviewed with respect to that aspect of the investigation by August 2, so surely Rosenstein had already authorized that aspect of the investigation.

The redactions most likely also include the names of Don Jr and Jared Kushner (and Paul Manafort), for their suspected collusion with Russia as reflected in the June 9 meeting. At least according to public reporting, Mueller may have first learned of this in June when Manafort and Kushner confirmed it in turning over evidence to Congress and Mueller. The first revelations that Mueller was obtaining subpoenas from a dedicated grand jury were on August 3, just one day after this memo. That same day, reports described Mueller issuing subpoenas related to the June 9 meeting.

Indeed, it’s quite possible Rosenstein issued this memo to memorialize the inclusion of the President’s spawn among the suspects of the investigation.

Rosenstein has almost certainly updated this memo since August 2

All that said, there’s not enough redacted space to include the known expanded current scope of the investigation, and given that the newly expanded scope gets closer to the President, Rosenstein has surely issued an update to this memo since then. These things are all definitively included in the current scope of the investigation and might warrant special mention in any update to Rosenstein’s authorizing memo:

Many of these — particularly the ones that affect only Russians — might be included under a generic “collusion with Russia” bullet. The closer scrutiny on Jared, however, surely would get an update, as would any special focus on the Attorney General.

More importantly, to the extent Mueller really is investigating Trump’s business interests (whether that investigation is limited just to Russian business, or more broadly) — the red line the NYT helpfully set for the President — that would necessarily be included in the most up-to-date memo authorizing Mueller’s activities. There is no way Mueller would take actions involving the President personally without having the authorization to do so in writing.

Which is why we can be virtually certain the August 2 memo is not the last memo Rosenstein has written to authorize Mueller’s actions.

Mind you, Mueller probably wouldn’t want to release a memo with several pages of redacted allegations. Which may be why we’re looking at the redacted version of an almost certainly superseded memo.

Updated: Later today Mueller’s team asked to file a copy of an exhibit–which given Judge Berman Jackson’s description of it as released in redacted form, has to be the Rosenstein memo–under seal. Which suggests they’re going to show Manafort what else they’re investigating (which I bet is the Deripaska stuff).

Alex Van Der Zwaan: “Gone Native”

Tomorrow, Alex Van der Zwaan, the former Skadden associate who unsuccessfully attempted to hide ongoing conversations between him, Rick Gates, Konstantin Kilimnik, and (presumably) Greg Craig that took place in September and October 2016 will be sentenced. The government is seeking prison time, his lawyers are seeking probation (in part to keep him out of our nightmarish deportation process).

In advance of the sentencing (and today’s filing explaining how all this is authorized under the Special Counsel mandate Rod Rosenstein gave to Mueller), I wanted to lay out a few more details revealed by the public documents in this case, including the prosecution and defense arguments on sentencing.

Taken together, the documents reveal a few interesting wrinkles.

First, the defense argues that Van der Zwaan didn’t hide the communications he had with Rick Gates and Konstantin Kilimnik in fall 2016 to hide the ongoing relationship Trump’s onetime campaign manager had with someone the FBI still believed had ties to GRU, the Russian intelligence agency behind the hack-and-leak of the DNC emails. Rather, his defense lawyers claim Van der Zwaan hid those things (or rather, attempted to hide them, using means it’s shocking a lawyer would believe might work) because he didn’t want to reveal to the Skadden lawyers who represented him in his first interview with Mueller’s team that he had recorded his conversations in that time period with Greg Craig.

He knew it was improper to have recorded his conversation with the Skadden senior partner; indeed, he understood that he could be fired for having done so. He also knew that a truthful disclosure about his September 2016 calls with Gates and Person A would almost inevitably lead to questioning that could quickly get to the existence of the recordings. During the interview, Alex was keenly aware that he was not speaking only to OSC. Alex was represented by Skadden lawyers, and anything he shared with the OSC would simultaneously be heard by Skadden. In his mind, his boss was listening to every word.

The explanation is unconvincing (so is his lawyers’ claim that Van der Zwaan couldn’t read the Ukrainian document he received). After all, Craig knew (and presumably has also told Mueller’s team unless he’s at legal jeopardy himself) of some of those emails. So Van der Zwaan was bound to be asked the same kinds of questions in any case. Which he was. Which is how he came to confess to making the recordings (and keeping his own notes) in the first place.

It’s not entirely clear why he made that recording. The defense filing claims he didn’t tell anyone about them. But given another detail laid out by all this paperwork, I at least wonder whether he intended to share it with Gates or Kilimnik.

Consider the “going native” claim made about Van der Zwaan by an unnamed witness (who might be Greg Craig).

Yet, although he had been instructed not to share advance copies of the report with the public relations firm retained by the Government of Ukraine, van der Zwaan had, in the words of one witness, “gone native”—that is, he had grown too close to Manafort, Gates, and Person A.

While we knew that Van der Zwaan had shared the Skadden report with Gates and Kilimnik back in 2012, in direct violation of Skadden’s wishes, the defense filing reveals another key detail. In 2012, either while he was moonlighting while being paid by Skadden to help Manafort, Gates, and Kilimnik spin the Skadden report to make the prosecution of Tymoshenko look kosher or just after, Van der Zwaan was talking about working for Manafort and Gates.

That’s another good reason to hide all this: Van der Zwaan was ignoring Skadden Arps instructions at a time when he was considering a job with Gates and Manafort, who weren’t technically the client, but who were laundering the money to pay Skadden with.

Finally, while I don’t make as much of the tie between Van der Zwaan and his father-in-law, Alfa Bank founder German Khan, as others do, the defense filing provides more details on when Van der Zwaan joined the family. He and Eva Khan first met in “spring” 2016; elsewhere that gets described as a year before their marriage, which took place in June 2017.

Which is to say, the entirety of Van der Zwaan’s relationship with the Khan family has taken place during the Russian operation and attempt to cover up the tampering in the US election.

Just for fun: Back in 2008, American diplomats passed on complaints about Khan’s heavy-handedness in the operations of BP Russia, including the anecdote that Khan said he considers The Godfather to be his “manual for life.”

At dinner that evening, Khan had told a stunned Summers that The Godfather was his favorite movie, that he watched it every few months, and that he considered it a “manual for life.”

There’s actually no reason to believe that Van der Zwaan would have become a valuable enough resource that Khan would marry off his daughter to him, Godfather like.

But Van der Zwaan’s behavior in 2016 may make better sense considering the full context of that “going native” comment.

Update: I see from Zoe Tillman’s coverage of Van der Zwaan’s sentencing (where he was given a month in jail) that his lawyers fibbed a bit when they said his second grand jury appearance was entirely voluntary.

[Andrew] Weissmann refuted the idea that van der Zwaan voluntarily came back to tell the truth, saying he had been served with a grand jury subpoena after his first meeting in November 2017 and would have been required to return to the United States anyway.


2012: Van der Zwaan working on Tymoshenko report in facilitating role

July to early August 2012: Van der Zwaan provides unauthorized copy of Skadden report on Yulia Tymoshenko to PR firm engaged by Ukraine’s Ministry of Justice

September 2012: Van der Zwaan provides Rick Gates talking points to spin Skadden report

2012-2013: Van der Zwaan conducts discussions over Gmail about working directly for Gates and Manafort; these were among the other materials Van der Zwaan attempted to destroy in advance of his Mueller interview

2014: Eva Khan moves to London to study art (she is 11 years younger than Van der Zwaan)

Spring 2016: Van der Zwaan and Eva Khan meet

September 2016: First public allegations of spam traffic between Trump marketing account and Alfa bank

September and October 2016:

Rick Gates contacts Van der Zwaan, urges him to contact Kliminik and sends him a document in Ukrainian

September 12, 2016: Van der Zwaan emails Konstantin Kilimnik, who asks him to contact him on Telegraph or WhatsApp

Van der Zwaan reports this to (presumably) Greg Craig

Van der Zwaan reports back to Gates

[These communications continue as a series]

January 2017: Paul Manafort provides Trump a strategy to rebut the Russian investigation by discrediting the Steele dossier

January 2017: Brian Benczkowski leaves transition team and returns to Kirkland & Ellis

March to May 2017: Pending Assistant Attorney General nominee Brian Benczkowski advises Alfa Bank on lawsuit against Buzzfeed

April 2017: Jeff Sessions asks Benczkowski if he wants to be AAG for Criminal Division

May 26, 2017: After months of consultation with Alfa Bank (and German Khan by name) sue Buzzfeed over the Steele dossier

June 2017: Van der Zwaan and Khan married; she applies for permanent residency as his spouse

Prior to November 3, 2017: Van der Zwaan gives Skadden his laptop from the 2012 time frame

October 3, 2017: Alfa Bank lawsuit is moved to federal jurisdiction

November 3, 2017: Van der Zwaan participates in eight hour voluntary interview, represented by Skadden Arps lawyers; during that interview, FBI confronts him with an email he withheld from Skadden’s discovery

November 16, 2017: Van der Zwaan returns to the US

November 17, 2017: Van der Zwaan surrenders his passport to the FBI and retains new counsel (this is probably when Skadden fired him)

November 29, 2017: Kilimnik emails Manafort for review of purportedly exonerating op-ed

December 1, 2017: Van der Zwaan’s second interview with FBI

February 14, 2018: Van der Zwaan agrees to plea deal

February 20, 2018: Van der Zwaan pleads guilty

February 23, 2018: Gates pleads guilty

May 2018: Date Van der Zwaan would have made partner

August 2018: Due date of Van der Zwaan son