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Two Factors that May Change the Impeachment Calculus, Part Two: Criminalizing a Roger Stone Pardon

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In this post, I described how recent developments in Michael Cohen’s case give Congress a number of reasons to use it as a basis for impeachment. The neat fit of so many details might affect the calculus on whether Democrats carry out an impeachment inquiry on Trump.

In this post, I’ll point to a cynical electoral reason to begin impeachment: to prevent Trump from preempting Stone’s pre-election trial which, if it takes place in November 2019 as scheduled, will be utterly damning to the President. Don’t get me wrong — Democrats should move to stop Trump from using pardons to suborn perjury as a basic rule of law thing. But the timing of Stone’s trial and the extent to which it will implicate the President makes that imperative electorally beneficial for Democrats as well.

Even as currently charged, Stone’s case implicates the President directly

As I’ve noted, because everything in the Mueller Report pertaining to Roger Stone got redacted to (appropriately) preserve Stone’s right to a fair trial, lots of details on how Trump himself was involved in pushing Stone to optimize the WikiLeaks releases is redacted.

[I]t seems highly likely that some of the information in these redacted passages is stuff that would only prejudice Stone’s case by raising the import of it to Trump.

Consider, for starters, that (unless I’m mistaken) not a word from Stone’s indictment appears in this Report. [For example,] the indictment makes it clear that Stone was talking to the campaign about WikiLeaks releases.

ROGER JASON STONE, JR. was a political consultant who worked for decades in U.S. politics and on U.S. political campaigns. STONE was an official on the U.S. presidential campaign of Donald J. Trump (“Trump Campaign”) until in or around August 2015, and maintained regular contact with and publicly supported the Trump Campaign through the 2016 election.

During the summer of 2016, STONE spoke to senior Trump Campaign officials about Organization 1 and information it might have had that would be damaging to the Clinton Campaign. STONE was contacted by senior Trump Campaign officials to inquire about future releases by Organization 1.

[snip]

By in or around June and July 2016, STONE informed senior Trump Campaign officials that he had information indicating Organization 1 had documents whose release would be damaging to the Clinton Campaign. The head of Organization 1 was located at all relevant times at the Ecuadorian Embassy in London, United Kingdom.

After the July 22, 2016 release of stolen DNC emails by Organization 1, a senior Trump Campaign official was directed to contact STONE about any additional releases and what other damaging information Organization 1 had regarding the Clinton Campaign. STONE thereafter told the Trump Campaign about potential future releases of damaging material by Organization 1.

We see outlines of precisely who those references are to in the report.

Most notably, after describing Trump’s enthusiasm after Stone told Trump while Michael Cohen was listening on the speaker phone that the DNC emails would drop in a few days just before they did (which Cohen described in his testimony to Oversight), these two paragraphs, appear to to describe Manafort and Trump’s enthusiasm after the DNC release, with Manafort telling both Stone directly and Gates that he wanted to be kept informed via Stone of what was coming. And having gotten some indication of what was coming, the campaign started making plans to optimize those releases. It appears that Gates, like Cohen before him, witnessed a Stone-Trump call where the rat-fucker told the candidate what was coming.

These pages also have more background about how important all this was to Trump, who was frustrated that Hillary’s deleted emails hadn’t been found (something also told, in Flynn’s voice, in the Peter Smith section).

The references to Stone in these passages may well be appropriately redacted. But the descriptions of conversations between Trump and Manafort or Gates should not impact Stone’s defense — unless you want to argue that Trump’s personal involvement in Stone’s rat-fucking might change the deliberations for a jury. They don’t serve to hide Stone’s actions. They hide Trump’s enthusiasm for using materials stolen by Russia to win.

So the part of the 2016 operation that clearly amounted to coordination but was not charged because of First Amendment considerations, and the part of the 2016 operation for which (perhaps because witnesses learned it would not be charged as a conspiracy) there’s the most evidence of Trump’s direct involvement, remains hidden from view out of concerns for Stone’s due process rights.

Right now, Stone’s trial is scheduled to start on November 5. A recent status report on Rick Gates’ cooperation makes it clear he is likely to be a witness at Stone’s trial. While Gates’ testimony is probably not necessary to prove that Stone lied to HPSCI, it would be useful to explain Stone’s motive: significantly, protecting Trump.

If Andrew Miller’s testimony leads to new charges, the tie to Trump may be still more damning

Tuesday, the DC Circuit Court issued its final order in Stone associate Andrew Miller’s challenge to a grand jury subpoena.

Yesterday — technically minutes after Mueller’s press conference announcing the investigation was completed and he’s going home — Judge Beryl Howell rejected another attempt by Miller to challenge the subpoena. Multiple outlets report that he has agreed to testify Friday at 9:30.

Miller’s testimony Friday is premised on potential new charges against Stone and before Howell rejected Miller’s challenge, Aaron “Zelinsky and Jonathan Kravis from the US Attorney’s Office in DC told the judge privately why they still needed Miller.”

Last night, Howell released some of the details behind Miller’s most recent challenge. Along with a useful timeline from Miller’s lawyers on their challenge, it makes it pretty clear that prosecutors are still looking for information on (as Miller lawyer Paul Kamenar describes it) “Roger Stone’s actions during the 2016 election and his involvement in WikiLeaks, Julian Assange, and the hacking of Hillary Clinton’s and the DNC’s emails and any collusion with Russia” or (as Aaron Zelinsky has described it), “Roger Stone’s connection to WikiLeaks, Julian Assange, Guccifer 2.0, Russia.”

In other words, it appears that prosecutors might still indict Stone with new crimes pertaining to the core issues that were under investigation.

That’s one reason I find the timing of Mueller’s announcement so interesting. The Howell hearing yesterday was technically after Mueller’s statement finished. I don’t know when yesterday’s announcement will become official, but it would seem to be final before Friday’s Miller grand jury appearance.

That would mean any charges that former Mueller prosecutor Aaron Zelinsky (as well as DC AUSA Jonathan Kravis, who has picked up the bulk of the ongoing matters from Mueller’s team) might decide to pursue after Friday would be subject neither to the logic of the Mueller investigation — which decided not to charge Stone for some WikiLeaks-related crimes in part based on First Amendment considerations, nor to the direct supervision of Attorney General Barr.

As I’ve noted, the logic EDVA used in its superseding indictment of Assange is in direct conflict with the logic Mueller used in deciding that WikiLeaks’ and Trump’s “wish lists” for Hillary emails do not establish a basis for a conspiracy charge in the same way WikiLeaks’ wish list for classified materials was used. That might mean that decisions made after Miller’s testimony Friday would work out differently than decisions on Stone’s charges in January. Mueller’s off the case. It’s DC US Attorney Jesse Liu’s decision now.

All of which is to say, even assuming Friday’s testimony doesn’t lead to new charges, unless Trump finds a way to pre-empt Stone’s trial, it will mean some of the most damning information about Trump’s involvement in what Mueller didn’t charge as conspiracy but which by most definitions would count as “collusion” will get aired less than a year before the 2020 election.

Given how rock solid that Stone indictment is, there are just two ways to avoid that: for Stone to flip on Trump or others (though prosecutors are unlikely to give Stone a deal without vetting his claims after the way Paul Manafort abused the process, and it would be too late to flip on Assange). Or for Trump to pardon Stone.

Some of the clearest evidence of obstruction of justice in the Mueller Report pertains to Trump floating pardons, including a 2.5 page redacted passage (Volume II pages 128-130) pertaining to Stone himself. Even Bill Barr says it would be a crime to float pardons to prevent someone from testifying truthfully. Note, too, that Mueller asked Trump whether he considered pardoning Assange before he was inaugurated (to which Trump gave a typically contemptuous non-answer), and Stone was involved in an attempt to pardon Assange as recently as January 2018, which has been the subject of Mueller’s questioning.

The political hit from a Stone trial — and the kind of pardon-related obstruction that Barr himself conducted to kill the Iran-Contra investigation — might well be enough for Trump to prefer the political hit of pardoning Stone. Democrats have one way of altering that calculus to ensure the Stone trial — with all the damning details of Trump’s actions it’ll reveal — happens as scheduled.

While I’m not, at all, a fan of gaming trials for political effect, the fact of the matter is that if Stone’s trial goes forward, it would present as damning a case against Trump’s cheating as any impeachment trial could do. But to ensure that happens, Democrats need to make it clear that pardoning his way out of this will incur even greater costs for the President.

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

For Three of the Four Early FBI Subjects Tied to the Trump Campaign, the Campaign Agreed with the Mueller Report Conclusions

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Of the first four people tied to Trump’s campaign who were investigated by the FBI — Carter Page, George Papadopoulos, and Paul Manafort — the Mueller Report came to remarkably similar conclusions as the campaign did when all three were fired in 2016. As I’ll show in a follow-up post, the FBI’s concerns about the fourth — Mike Flynn — have proven even better founded.

This shows how ridiculous it is for Bill Barr to go after the origins of the investigation. The Trump campaign itself, institutionally, agreed in real time with the conclusion of the investigation.

On August 19, 2016, Trump forced his campaign manager, Paul Manafort, to resign. Sources told the press he was ousted because of his “involvement with Russia” and the fact that “he hadn’t been entirely forthright about his activities overseas.”

In recent days, Manafort had lost the confidence of Jared Kushner, Trump’s son-in-law and one of his closest advisers, and other members of Trump’s family, according to a source close to the campaign. Kushner had once been a major backer of Manafort and was instrumental in his elevation — and the downfall of Corey Lewandowski, Trump’s former campaign manager.

The family was particularly troubled by reports of Manafort’s involvement with Russia and felt he hadn’t been entirely forthright about his activities overseas, the source said. Family members were also unhappy about changes made to the GOP platform that were seen as beneficial to Russia, which they felt Manafort played a role in, the source added.

On February 13, Judge Amy Berman Jackson ruled that Paul Manafort had lied — both to the FBI and to the grand jury — about his interactions and communications with Konstantin Kilimnik. Among the things Manafort lied about, according to the Mueller Report, was an August 2, 2016 meeting where Manafort told Kilimnik how the campaign planned to win Michigan and two other swing states, Kilimnik pitched Manafort on a plan to carve up Ukraine, and also told ways he could be paid by his Ukrainian and Russian paymasters. Mueller ultimately, “could not reliably determine Manafort’s purpose in sharing internal polling data with Kilimnik during the campaign period” and raised his lies to question whether he spoke to people on the campaign about the plan to carve up Ukraine.

In other words, the Trump family members who ousted Manafort came to precisely the same conclusion Mueller did: Manafort was lying about his suspicious ties to Russia.

On September 24, 2016, the Trump campaign severed all ties with unpaid foreign policy advisor Carter Page. The next day, Hope Hicks sent out an email instructing that, “Page was announced as an informal adviser in March. Since then he has had no role or official contact with the campaign. We have no knowledge of activities past or present and he now officially has been removed from all lists etc.”

It was untrue that the campaign had no knowledge of Page’s activities. After all, on July 9, 2016, he wrote Sam Clovis about his activities in Moscow.

Russian Deputy Prime minister and NES board member Arkady Dvorkovich also spoke before the event. In a private conversation, Dvorkovich expressed strong support for Mr. Trump and a desire to work together toward devising better solutions in response to the vast range of current international problems. Based on feedback from a diverse array of other sources close to the Presidential Administration, it was readily apparent that this sentiment is widely held at all levels of government.5

That said, even after surveilling Page for at least a year, the Mueller investigation likewise only gained limited understanding of Page’s activities. “Page’s activities in Russia–as described in his emails with the Campaign–were not fully explained.” And a redaction explaining why Page wasn’t charged as a foreign agent suggests it had been a close call.

In other words, Mueller came to the same conclusion that the Trump campaign did when they severed all ties with Page.

The Mueller Report is more circumspect about why George Papadopoulos got fired.

Papadopoulos was dismissed from the Trump Campaign in early October 2016, after an interview he gave to the Russian news agency Inter/ax generated adverse publicity.492

492 George Papadopoulos: Sanctions Have Done Little More Than to Turn Russia Towards China, Interfax (Sept. 30, 2016).

But a recent profile reveals that Papadopoulos has been lying about the campaign response to his Interfax column.

The book claims that Trump headquarters informed him of an interview request from Russian news service Interfax and gave him instructions about what to say, complimenting him afterward. In reality, Interfax contacted Papadopoulos directly, and though the campaign okayed the interview, the feedback afterward apparently wasn’t positive. Papadopoulos wrote to campaign official Michael Glassner to ask if he was, as others had told him, “off the campaign because of an interview I gave.”

This is the column that Papadopoulos shared with Joseph Mifsud (though that is not discussed in the report), and then lied about to the FBI.

On or about October 1, 2016, PAPADOPOULOS sent Foreign Contact 1 a private Facebook message with a link to an article from Interfax.com, a Russian news website. This evidence contradicts PAPADOPOULOS’s statement to the Agents when interviewed on or about January 27, 2017, that he had not been “messaging” with Foreign Contact 1 during the campaign while “with  Trump.”

It’s unclear whether the campaign distanced itself from Papadopoulos because of the press coverage of this article or because of what he said (an earlier WaPo report on it reveals how enthusiastic the pre-approval for it was, including the promise that Trump would work with Russia on Syria). If they fired him because he misrepresented the campaign’s friendliness with Russia, then it would support the Mueller Report’s conclusion that there was evidence to investigate but not to charge.

In particular, the Office did not find evidence likely to prove beyond a reasonable doubt that Campaign officials such as Paul Manafort, George Papadopoulos, and Carter Page acted as agents of the Russian government-or at its direction, control, or request-during the relevant time period. 1282

If the campaign fired Papadopoulos because he said things that were inconvenient, it would support the worth of his obstruction charge, which he of course pled guilty to.

Given the seriousness of the lies and omissions and their effect on the FBI’s investigation, the Office charged Papadopoulos with making false statements to the FBI, in violation of 18 U.S.C. § 1001. Information, United States v. George Papadopoulos, No. l:17-cr-182 (D.D.C. Oct. 3, 2017), Doc. 8. On October 7, 2017, Papadopoulos pleaded guilty to that charge pursuant to a plea agreement.

In either case, the campaign didn’t want to be associated with Papadopoulos’ pro-Russian public comments.

Update, 5/27/19: Papadopoulos actually told HJC/OGR that he never left the campaign.

Mr. Ratcliffe. How did you leave the campaign? First of all, when did you leave the campaign?

Mr. Papadopoulos. I don’t know if I ever really left the campaign. I think I was involved throughout the whole way in different ways. I mean, one — in one manner I’m helping edit the first foreign policy speech and I’m setting up, helping set up this meeting with the Egyptian President, and then I’m kind of just feeding information into the campaign from March until — all through the transition, quite frankly. So I don’t think I really ever left the campaign, if that makes sense.

Mr. Ratcliffe. Okay.

Mr. Papadopoulos. I was considering leaving, but I don’t think I ever submitted some sort of resignation to the campaign that would — that would suggest I would formally abdicate my duties on the campaign.

The Attorney General is carrying out an unprecedented investigation into a counterintelligence investigation targeting the suspected infiltration of a campaign by men working on behalf of Russia. In real time, the campaign acted to distance itself from all three men for precisely that reason.

In other words, Bill Barr is targeting the intelligence agencies for agreeing with the Trump campaign about the suspect ties of three of the initially predicated subjects of the investigation.

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

Did Some Republican in Congress Leak Details of the Mueller Report to Roger Stone?

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There’s a passage from a recent Roger Stone filing I’ve been puzzling over. In a motion asking for discovery on selective prosecution — an effort that started out by arguing no one else had been prosecuted for false statements to Congress before that became ridiculous — Stone claims that

Yet, he was ruled out as a conspirator with the Russian state and WikiLeaks before his transcript from HPSCI was transmitted.

This effort parallels an effort to get the whole Mueller Report and this motion asks for all the declination memos on top of that.

Prosecuting Stone because of his arbitrary classification requires discovery, including the declination memos sent to the Attorney General, so that it may be determined who the government thinks lied to Congress or the Special Counsel, but were not prosecuted.

The claim that Stone was ruled out as a co-conspirator with Russia or WikiLeaks is probably true (though not necessarily all that helpful for his case). I’m just trying to figure out how he knows that, if he does. It seems there are four possibilities:

  1. His lawyers, who are fairly careless and who have made false claims in other briefs, are just making this up
  2. He got something in discovery that makes this clear
  3. He’s basing this off Jerome Corsi’s public claims
  4. Someone who has seen an unredacted copy of the Mueller Report (which currently includes the White House and at least 7 of the 8 Republicans who had been given an opportunity to read it before yesterday) told him what those passages of the report say
  5. He learned of this decision in real time, via reporting to the White House and then some channel from the White House

As noted, his lawyers have not been above making shit up, so it’s possible this is what this claim is. But it feels too specific for that.

It’s also possible he got something in discovery to support this claim, except the prosecutors are fighting to provide precisely this kind of information to him in their fight against releasing the Mueller Report.

Such an assertion could be intuited from Jerome Corsi’s crazed rants. Corsi has said that he believes the true source of his/their knowledge that WikiLeaks would release John Podesta’s emails was the cornerstone to Mueller’s “collusion” case (though of course he was assessing conspiracy, as Stone correctly notes here.

It’s certainly possible this is reflected in the less redacted Mueller Report, which would explaining the timing of this claim, which by my reading is new in this filing. Republicans in Congress have tampered with the criminal cases against Trump’s people on at least two occasions (when Richard Burr told the White House who had been targeted, and whoever reached out to Mike Flynn to discourage his cooperation). Given DOJ’s warnings about how sensitive the report is, it would be fairly damning if one of just 5 Republicans who had seen it already ran to Stone to tell him what’s in it. (Those 5 are: Mitch McConnell, Richard Burr, Lindsey Graham, Kevin McCarthy, and Doug Collins; it’s not clear whether Devin Nunes has reviewed the report yet.)

I’m most interested whether Stone learned in real time — perhaps last fall — that Mueller had decided not to charge him in a conspiracy with WikiLeaks and Russia. That would be particularly interesting given that Paul Manafort actually told what resembles the truth about the campaign’s outreach, through Stone, to WikiLeaks.

Amy Berman Jackson currently has unredacted parts of the Mueller Report pertaining to Stone, so if this information does come from leaks about the Mueller Report, she may recognize that.

As I said, even if Mueller decided not to charge Stone in a conspiracy because, with the witness tampering charges, he may face the same kind of sentence without some of the evidentiary hurdles, it doesn’t amount to selective prosecution.

But Stone sure seems to have a specific idea of what he’s looking for, even if it only helps his (and Trump’s) political case, not his criminal one.

Update: Corrected the number of Republicans known to have reviewed the report to 5.

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

The Mueller Report Redactions and the Claims about “Collusion”

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On Volume II page 121 of the Mueller Report, a partial transcript of the call Trump’s lawyer (WaPo says this is John Dowd) placed to Mike Flynn’s lawyer on November 22, 2017 appears, along with even more damning details about a follow-up call from the following day.

In late November 2017, Flynn began to cooperate with this Office. On November 22, 2017, Flynn withdrew from a joint defense agreement he had with the President.833 Flynn’s counsel told the President’s personal counsel and counsel for the White House that Flynn could no longer have confidential communications with the White House or the President.834 Later that night, the President’s personal counsel left a voicemail for Flynn’s counsel that said:

I understand your situation, but let me see if I can’t state it in starker terms. . . . [I]t wouldn’t surprise me if you’ve gone on to make a deal with … the government. … [I]f . .. there’s information that implicates the President, then we’ve got a national security issue, . . . so, you know, . . . we need some kind of heads up. Um, just for the sake of protecting all our interests ifwe can …. [R]emember what we’ve always said about the ‘ President and his feelings toward Flynn and, that still remains …. 835

On November 23, 2017, Flynn’s attorneys returned the call from the President’s personal counsel to acknowledge receipt of the voicemail.836 Flynn ‘s attorneys reiterated that they were no longer in a position to share information under any sort of privilege.837 According to Flynn’s attorneys, the President’s personal counsel was indignant and vocal in his disagreement.838 The President’s personal counsel said that he interpreted what they said to him as a reflection of Flynn’s hostility towards the President and that he planned to inform his client of that interpretation.839 Flynn’s attorneys understood that statement to be an attempt to make them reconsider their position because the President’s personal counsel believed that Flynn would be disturbed to know that such a message would be conveyed to the President.840

This is, of course, the call referenced in Flynn’s less redacted cooperation addendum released last week. A whole slew of reporters who have claimed to have read the Mueller Report over the last month claimed that this passage had been redacted in the report, which is something that Quinta Jurecic and I had a bit of a laugh about on Chris Hayes’ show Friday night.

In fact, there’s likely to be very little of great interest submitted when the government complies with Judge Emmet Sullivan’s order to submit an unclassified version of the Flynn passages of the report by May 31.

The revelation in Flynn’s cooperation addendum that he provided information on close-hold discussions about WikiLeaks means some of those conversations may be unsealed in that production. But aside from that, this redaction on Volume I page 183 — footnoting a discussion of the consideration of whether Flynn was a foreign agent and probably discussing an ongoing counterintelligence investigation into Russians, not Flynn — is the one of the only Flynn-related passages that might be of any interest that is not otherwise grand jury material.

With just a few notable exceptions, the redactions aren’t that nefarious.

Using Grand Jury redactions to protect the President from political pressure

I’ve noted two exceptions to that. One is the way DOJ used grand jury redactions to hide the details of how both Donald Trumps refused to testify (even while Jr continues to be willing to testify before congressional committees that don’t have all the evidence against him).

There are two redactions hiding details of what happened when Jr was subpoenaed.

Volume I page 117 on the June 9 meeting:

Volume II page 105 on President Trump’s involvement in writing the June 9 statement.

And there are two redactions hiding the discussion of subpoenaing Trump.

Volume II page 12 introducing the obstruction of justice analysis.

Appendix C introducing Trump’s non-responsive answers.

These redactions are all ones that Congress should ask more about. If Don Jr told Mueller he would invoke the Fifth, we deserve to know that (particularly given his willingness to appear with less informed committees). More importantly, the role of Trump’s refusal to answer questions (as well as any concerns he had about Don Jr’s jeopardy) are necessary parts to any discussion of obstruction of justice.

Plus, the President of the United States should not be able to hide his unwillingness to cooperate with an investigation into his own wrong-doing by claiming it’s grand jury material.

The use of “Personal Privacy” to hide central players

In his description of the four types of redactions in the report, Bill Barr described the fourth — “personal privacy” — as relating to “peripheral third parties.”

As I explained in my letter of April 18, 2019, the redactions in the public report fall into four categories: (1) grand-jury information, the disclosure of which is prohibited by Federal Rule of Criminal Procedure 6(e); (2) investigative techniques, which reflect material identified by the intelligence and law enforcement communities as potentially compromising sensitive sources, methods, or techniques, as well as information that could harm ongoing intelligence or law enforcement activities; (3) information that, if released, could harm ongoing law enforcement matters, including charged cases where court rules and orders bar public disclosure by the parties of case information; and (4) information that would unduly infringe upon the personal privacy and reputational interests of peripheral third parties, which includes deliberation about decisions not to recommend prosecution of such parties.

Some of the PP redactions do pertain to genuinely peripheral players.

For example, sometimes they hide the random people with whom Russian trolls communicated.

In others, they hide the names of other victims of GRU hacking (including Colin Powell, who is not a private person but is peripheral to this discussion).

In other places, they hide the names of genuinely unrelated people or businesses.

But as I have noted, Mueller treated this category as a declinations decision, not a privacy one.

I previously sent you a letter dated March 25, 2019, that enclosed the introduction and executive summary for each volume of the Special Counsel’s report marked with redactions to remove any information that potentially could be protected by Federal Rule of Criminal Procedure 6(e); that concerned declination decisions; or that related to a charged case. [my emphasis]

Among the people Barr claims are “peripheral” players who have been investigated but not charged are Don Jr in the second redaction in this passage:

Carter Page on page 183.

And KT McFarland and several other key players on page 199.

Don’t get me wrong: I think these redactions are absolutely proper. The description of them, however, is not. Barr is pretending these people are “peripheral” to avoid having to admit, “in addition to Trump’s Campaign Manager, Deputy Campaign Manager, Personal Lawyer, Life-Long Rat-Fucker, National Security Advisor, and Foreign Policy Advisor who have either pled guilty to, been found by a judge to have, or been indicted for lying in an official proceeding, Mueller seriously considered charging at least three other Trump associates with lying.”

The expansive redactions pertaining to WikiLeaks and Roger Stone

So aside from the grand jury redactions hiding how Trump Sr and Jr dodged testifying and the way Barr describes the declinations redactions, I think the redactions are generally pretty judicious. I’m less certain, though, about the redactions pertaining to Roger Stone, the bulk of which appear in Volume I pages 51 to 59, 188 to 191, 196 to 197. and Volume II, pages 17 to 18 and 128 to 130.

There are two reasons to redact this information: most importantly, to comply with the gag order imposed by Amy Berman Jackson that prohibits lawyers on either side from making statements that “pose a substantial likelihood of material prejudice” to Stone’s case, or to hide information from Stone that he doesn’t otherwise know.

Except that we know he has already gotten the latter category of information in discovery. In a filing opposing Stone’s bid to get an unredacted copy of the Mueller Report, prosecutors noted that “disclosable information that may have been redacted from the public version of the Special Counsel’s report to the Attorney General is already being provided to the defendant in discovery.”

And it seems highly likely that some of the information in these redacted passages is stuff that would only prejudice Stone’s case by raising the import of it to Trump.

Consider, for starters, that (unless I’m mistaken) not a word from Stone’s indictment appears in this Report. For example, the descriptions of how Stone asked Jerome Corsi to ask Ted Malloch to find out what WikiLeaks had coming and a follow-up email reflecting knowledge that John Podesta would be targeted must be reflected on pages 55 and 56.

On or about July 25, 2016, STONE sent an email to Person 1 with the subject line, “Get to [the head of Organization 1].” The body of the message read, “Get to [the head of Organization 1] [a]t Ecuadorian Embassy in London and get the pending [Organization 1] emails . . . they deal with Foundation, allegedly.” On or about the same day, Person 1 forwarded STONE’s email to an associate who lived in the United Kingdom and was a supporter of the Trump Campaign.

On or about July 31, 2016, STONE emailed Person 1 with the subject line, “Call me MON.” The body of the email read in part that Person 1’s associate in the United Kingdom “should see [the head of Organization 1].”

On or about August 2, 2016, Person 1 emailed STONE. Person 1 wrote that he was currently in Europe and planned to return in or around mid-August. Person 1 stated in part, “Word is friend in embassy plans 2 more dumps. One shortly after I’m back. 2nd in Oct. Impact planned to be very damaging.” The phrase “friend in embassy” referred to the head of Organization 1. Person 1 added in the same email, “Time to let more than [the Clinton Campaign chairman] to be exposed as in bed wenemy if they are not ready to drop HRC. That appears to be the game hackers are now about. Would not hurt to start suggesting HRC old, memory bad, has stroke – neither he nor she well. I expect that much of next dump focus, setting stage for Foundation debacle.”

Page 56 actually includes new proof that Stone and Corsi had confirmed that Podesta’s emails were coming. Malloch describes Corsi telling him about Podesta’s emails, not vice versa.

Malloch stated to investigators that beginnin in or about Au ust 2016, he and Corsi had multiple Face Time discussions about WikiLeaks [redacted] had made a connection to Assange and that the hacked emails of John Podesta would be released prior to Election Day and would be helpful to the Trump Campaign. In one conversation in or around August or September 2016, Corsi told Malloch that the release of the Podesta emails was coming, after which “we” were going to be in the driver’s seat.221

Likewise, the indictment makes it clear that Stone was talking to the campaign about WikiLeaks releases.

ROGER JASON STONE, JR. was a political consultant who worked for decades in U.S. politics and on U.S. political campaigns. STONE was an official on the U.S. presidential campaign of Donald J. Trump (“Trump Campaign”) until in or around August 2015, and maintained regular contact with and publicly supported the Trump Campaign through the 2016 election.

During the summer of 2016, STONE spoke to senior Trump Campaign officials about Organization 1 and information it might have had that would be damaging to the Clinton Campaign. STONE was contacted by senior Trump Campaign officials to inquire about future releases by Organization 1.

[snip]

By in or around June and July 2016, STONE informed senior Trump Campaign officials that he had information indicating Organization 1 had documents whose release would be damaging to the Clinton Campaign. The head of Organization 1 was located at all relevant times at the Ecuadorian Embassy in London, United Kingdom.

After the July 22, 2016 release of stolen DNC emails by Organization 1, a senior Trump Campaign official was directed to contact STONE about any additional releases and what other damaging information Organization 1 had regarding the Clinton Campaign. STONE thereafter told the Trump Campaign about potential future releases of damaging material by Organization 1.

We see outlines of precisely who those references are to in the report.

Most notably, after describing Trump’s enthusiasm after Stone told Trump while Michael Cohen was listening on the speaker phone that the DNC emails would drop in a few days just before they did (which Cohen described in his testimony to Oversight), these two paragraphs, appear to to describe Manafort and Trump’s enthusiasm after the DNC release, with Manafort telling both Stone directly and Gates that he wanted to be kept informed via Stone of what was coming. And having gotten some indication of what was coming, the campaign started making plans to optimize those releases. It appears that Gates, like Cohen before him, witnessed a Stone-Trump call where the rat-fucker told the candidate what was coming.

These pages also have more background about how important all this was to Trump, who was frustrated that Hillary’s deleted emails hadn’t been found (something also told, in Flynn’s voice, in the Peter Smith section).

The references to Stone in these passages may well be appropriately redacted. But the descriptions of conversations between Trump and Manafort or Gates should not impact Stone’s defense — unless you want to argue that Trump’s personal involvement in Stone’s rat-fucking might change the deliberations for a jury. They don’t serve to hide Stone’s actions. They hide Trump’s enthusiasm for using materials stolen by Russia to win.

This affects the “collusion” discussion

All of this has particular import given the basis on which Attorney General Bill Barr tried to exonerate the President for obstruction. In Barr’s 4-page summary of the report, Barr emphasized that Trump did not conspire or coordinate with the Russian government, even going so far as to suggest that no Trump associate “conspired or coordinated with the Russian government on these efforts,” efforts which in context include, “publicly disseminat[ing hacked] materials through various intermediaries, including WikiLeaks.”

As the report states: “[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

[snip]

In assessing potential conspiracy charges, the Special Counsel also considered whether members of the Trump campaign “coordinated” with Russian election interference activities. The Special Counsel defined “coordinated” as an “agreement–tacit or express–between the Trump Campaign and the Russian government on election interference.”

[snip]

The second element involved the Russian government’s efforts to conduct computer hacking operations designed to gather and disseminate information to influence the election. The Special Counsel found that Russian government actors successfully hacked into computers and obtained emails from persons affiliated with the Clinton campaign and Democratic Party organizations, and publicly disseminated those materials through various intermediaries, including WikiLeaks. Based on these activities, the Special Counsel brought criminal charges against a number of Russian military officers for conspiring to hack into computers in the United States for purposes of influencing the election. But as noted above, the Special Counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in these efforts, despite multiple offers from Russian-affiliated individuals to assist the Trump campaign.

Of course, that leaves off coordinating with WikiLeaks because WikiLeaks is not the Russian government, even while in context it would be included.

Similarly, in Barr’s “no collusion” press conference, he again emphasized that Trump’s people were not involved in the hacking. Then he made a remarkable rhetorical move [I’ve numbered the key sentences].

But again, the Special Counsel’s report did not find any evidence that members of the Trump campaign or anyone associated with the campaign conspired or coordinated with the Russian government in its hacking operations.  In other words, there was no evidence of Trump campaign “collusion” with the Russian government’s hacking.

The Special Counsel’s investigation also examined Russian efforts to publish stolen emails and documents on the internet.  The Special Counsel found that, after the GRU disseminated some of the stolen materials through its own controlled entities, DCLeaks and Guccifer 2.0, the GRU transferred some of the stolen materials to Wikileaks for publication.  Wikileaks then made a series of document dumps.  [1] The Special Counsel also investigated whether any member or affiliate of the Trump campaign encouraged or otherwise played a role in these dissemination efforts.  [2] Under applicable law, publication of these types of materials would not be criminal unless the publisher also participated in the underlying hacking conspiracy.  [3] Here too, the Special Counsel’s report did not find that any person associated with the Trump campaign illegally participated in the dissemination of the materials.

Given what we know to be in the report, those three sentences look like this:

  1. Mueller asked, did any Trump affiliate encourage or otherwise play a role in WikiLeaks’ dissemination?
  2. By the way, if a Trump affiliate had played a role in the dissemination it wouldn’t be illegal unless the Trump affiliate had also helped Russia do the hacking.
  3. After finding that a Trump affiliate had played a role in the dissemination, Mueller then determined that that role was not illegal.

Again, “collusion” is not a legal term. It describes coordination — legal or not — in sordid activities. What these three sentences would say, if Barr had been honest, is that Mueller did find coordination, but because Stone (via yet unidentified means) coordinated with WikiLeaks, not Russia itself, Mueller didn’t find that the coordination was illegal.

Note that even Bill Barr, who’s a pretty shameless hack, still qualified the “no collusion” judgment on which he presents his obstruction analysis as pertaining to Russia.

After finding no underlying collusion with Russia, the Special Counsel’s report goes on to consider whether certain actions of the President could amount to obstruction of the Special Counsel’s investigation.  As I addressed in my March 24th letter, the Special Counsel did not make a traditional prosecutorial judgment regarding this allegation.  Instead, the report recounts ten episodes involving the President and discusses potential legal theories for connecting these actions to elements of an obstruction offense.

After carefully reviewing the facts and legal theories outlined in the report, and in consultation with the Office of Legal Counsel and other Department lawyers, the Deputy Attorney General and I concluded that the evidence developed by the Special Counsel is not sufficient to establish that the President committed an obstruction-of-justice offense.

Barr bases his obstruction analysis on “collusion,” not conspiracy. But his 1-2-3 gimmick above lays out that non-criminal “collusion” did happen, only that it happened with WikiLeaks.

For his part, Mueller points to those same passages that get redacted in the first discussion in his background discussion for the obstruction volume.

Importantly, the redaction in this footnote makes it clear that the campaign was relying on what they were learning from Stone to plan their communication strategy for upcoming releases.

Remember, in his charging decisions on campaign finance, Mueller didn’t actually say no crime had been committed. He said the evidence was not sufficient to obtain and sustain a criminal conviction.

The Office similarly determined that the contacts between Campaign officials and Russia-linked individuals either did not involve the commission of a federal crime or, in the case of campaign-finance offenses, that our evidence was not sufficient to obtain and sustain a criminal conviction.

There are multiple places where the report makes it clear that, in addition to the June 9 meeting, the campaign finance crimes reviewed included the WikiLeaks releases, including the Table of Contents.

Indeed, the paragraph describing why Trump may have wanted to fire Jim Comey focuses closely on the campaign’s response to the WikiLeaks releases.

In addition, the President had a motive to put the FBI’s Russia investigation behind him. The evidence does not establish that the termination of Comey was designed to cover up a conspiracy between the Trump Campaign and Russia: As described in Volume I, the evidence uncovered in the investigation did not establish that the President or those close to him were involved in the charged Russian computer-hacking or active-measure conspiracies, or that the President otherwise had an unlawful relationship with any Russian official. But the evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns. Although the President publicly stated during and after the election that he had no connection to Russia, the Trump Organization, through Michael Cohen, was pursuing the proposed Trump Tower Moscow project through June 2016 and candidate Trump was repeatedly briefed on the progress of those efforts.498 In addition, some witnesses said that Trump was aware that [redacted] at a time when public reports stated that Russian intelligence officials were behind the hacks, and that Trump privately sought information about future WikiLeaks releases.499 More broadly, multiple witnesses described the President’s preoccupation with press coverage of the Russia investigation and his persistent concern that it raised questions about the legitimacy of his election.500 [my emphasis]

And a more general discussion of Trump’s motives later in the obstruction discussion raises it — and the possibility that it would be judged to be criminal — explicitly.

In this investigation, the evidence does not establish that the President was involved in an underlying crime related to Russian election interference. But the evidence does point to a range of other possible personal motives animating the President’s conduct. These include concerns that continued investigation would call into question the legitimacy of his election and potential uncertainty about whether certain events–such as advance notice of WikiLeaks’s release of hacked information or the June 9, 2016 meeting between senior campaign officials and Russians–could be seen as criminal activity by the President, his campaign, or his family. [my emphasis]

The most damning revelations about the President’s own actions during the campaign in this report pertain to his exploitation of the WikiLeaks releases. They go directly to the question of criminal liability (which Mueller says he couldn’t charge for evidentiary reasons, not because he didn’t think it was a crime), and if you want to talk “collusion” as opposed to “conspiracy” — as the President does — it goes to “collusion.”

And in the guise of protecting Roger Stone’s right to a fair trial — and possibly with an eye towards preserving the President’s ability to pardon Stone before a trial reveals even more of these details — DOJ used a heavy hand on the redactions pertaining to Trump’s own personal involvement in exploiting the benefit his campaign received from WikiLeaks releasing emails that Russia stole from Hillary. These details are the bulk of what DOJ is hiding by offering just a small number of members of Congress to review the less-redacted version of the report.

Perhaps Mueller agreed with all these redactions; it’s a question I hope he gets asked when he finally testifies. But the redactions serve to hide what was clearly a close call on prosecution and one of the most damning explanations for Trump’s obstruction, an explanation that involved his own actions on the campaign.

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

Paul Manafort Violated Campaign Policy in Risking a Meeting with Konstantin Kilimnik on August 2, 2016

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When Don Jr testified before the Senate Judiciary Committee, he defended accepting a meeting from a bunch of Russians offering dirt, in part, by noting that he took the meeting before there was such a focus on “Russian activities.”

Nonetheless, at the time I thought I should listen to what Rob and his colleagues had to say. To the extent that they had information concerning the fitness, character, or qualifications of any presidential candidate, I believed that I should at least hear them out. Depending on what, if any, information that they had, I could then consult with counsel to make an informed decision as to whether to give it any further consideration. I also note at this time  there was no focus on Russian activities that there is today.

The guy who Mueller decided was too stupid to be charged with a campaign finance violation basically explained away doing so (as he has elsewhere): that because the public wasn’t yet aware of the efforts Russia was making to get his dad elected — and the suspicious ties between key campaign figures and Russians — it was reasonable for him to take dirt from Russians.

And the Mueller Report actually does show that the campaign passed up offers from Russians they otherwise seemed to find attractive later in the summer, after the release of the DNC emails made Russia’s intentions clear.

For example, after Sergei Millian reached out to George Papadopoulos promising to help him reach leaders of the Russian-American community, the “Coffee Boy” was instructed to decline the offer because too many stories were accurately telling voters how pro-Russian both the campaign and — especially — Paul Manafort was.

On July 31, 2016, following his first in-person meeting with Millian, Papadopoulos emailed Trump Campaign official Bo Denysyk to say that he had been contacted “by some leaders of Russian-American voters here in the US about their interest in voting for Mr. Trump,” and to ask whether he should “put you in touch with their group (US-Russia chamber of commerce).”507 Denysyk thanked Papadopoulos “for taking the initiative,” but asked him to “hold off with outreach to Russian-Americans” because “too many articles” had already portrayed the Campaign, then-campaign chairman Paul Manafort, and candidate Trump as “being pro-Russian.”508

Similarly when, after JD Gordon twice emphasized with Sergei Kislyak at the Convention that he had meant what he said in his speech — that the US should have better relations with Russia (see pages 123-4) — Kislyak invited Gordon to breakfast at his residence. Gordon would have been happy to take the invite, according to an email he sent in response to the invitation. But he said he’d take a raincheck for when “things quiet down a bit.”

On August 3, 2016, an official from the Embassy of the Russian Federation in the United States wrote to Gordon ” [o]n behalf of’ Ambassador Kislyak inviting Gordon “to have breakfast/tea with the Ambassador at his residence” in Washington, D.C. the following week.818 Gordon responded five days later to decline the invitation. He wrote, “[t]hese days are not optimal for us, as we are busily knocking down a constant stream of false media stories while also preparing for the first debate with HRC. Hope to take a raincheck for another time when things quiet down a bit. Please pass along my regards to the Ambassador.” 819

While Gordon doesn’t say the “false media stories” were explicitly about Russia, that is where the focus was at the time (indeed, the defeat of the Ukraine amendment in the platform that Gordon himself had carried out was one focus of that media attention). Update: In the obstruction section, the report confirms this was about Russia:

For example, in August 2016, foreign policy advisor J.D. Gordon declined an invitation to Russian Ambassador Sergey Kislyak’s residence because the timing was “not optimal” in view of media reports about Russian interference.46

46 DJTFP00004953 (8/8/16 Email, Gordon to Pchelyakov) (stating that “[t]hese days are not optimal for us, as we are busily knocking down a stream of false media stories”).

So it seems clear that in the wake of the DNC dump and revelations about the platform, Carter Page, and Manafort, the campaign did make a conscious effort to “take a raincheck” on any more approaches from Russia.

It’s against that background that the August 2 meeting between Manafort, Rick Gates, and someone Gates believed was a Russian spy, Konstantin Kilimnik, is all the more remarkable.

As the report describes, at the same time other campaign staffers were being told to turn down approaches from Russia, the campaign manager set up a late night meeting with the same Russian employee who was involved in so much of the scandal (and to whom he had been sending internal polling data since the spring). At the meeting, the campaign manager discussed at least three things: how Trump planned to win the three states that would ultimately make the difference in the election — Pennsylvania, Wisconsin, and Michigan (along with Minnesota, which also was unexpectedly close), a plan that required Manafort and Trump’s buy-off to give Russia part of Ukraine, and a way for Manafort (who was working for Trump for “free”) to get paid by Ukrainian oligarchs and to get Oleg Deripaska to forgive a huge debt.

The events leading to the meeting are as follows. On July 28, 2016, Kilimnik flew from Kiev to Moscow.912 The next day, Kilimnik wrote to Manafort requesting that they meet, using coded language about a conversation he had that day.913 In an email with a subject line “Black Caviar,” Kilimnik wrote:

I met today with the guy who gave you your biggest black caviar jar several years ago. We spent about 5 hours talking about his story, and I have several important messages from him to you. He asked me to go and brief you on our conversation. I said I have to run it by you first, but in principle I am prepared to do it. … It has to do about the future of his country, and is quite interesting.914

Manafort identified “the guy who gave you your biggest black caviar jar” as Yanukovych. He explained that, in 2010, he and Y anukovych had lunch to celebrate the recent presidential election. Yanukovych gave Manafort a large jar of black caviar that was worth approximately $30,000 to $40,000.915 Manafort’s identification of Yanukovych as “the guy who gave you your biggest black caviar jar” is consistent with Kilimnik being in Moscow-where Yanukovych resided-when Kilimnik wrote “I met today with~ a December 2016 email in which Kilimnik referred to Yanukovych as “BG,”-916 Manafort replied to Kilimnik’s July 29 email, “Tuesday [August 2] is best . .. Tues or weds in NYC.”917

Three days later, on July 31, 2016, Kilimnik flew back to Kiev from Moscow, and on that same day, wrote to Manafort that he needed “about 2 hours” for their meeting “because it is a long caviar story to tell.”918 Kilimnik wrote that he would arrive at JFK on August 2 at 7:30 p.m., and he and Manafort agreed to a late dinner that night.919 Documentary evidence- including flight, phone, and hotel records, and the timing of text messages exchanged920-confirms the dinner took place as planned on August 2.921

As to the contents of the meeting itself, the accounts of Manafort and Gates — who arrived late to the dinner — differ in certain respects. But their versions of events, when assessed alongside available documentary evidence and what Kilimnik told business associate Sam Patten, indicate that at least three principal topics were discussed.

First, Manafort and Kilimnik discussed a plan to resolve the ongoing political problems in Ukraine by creating an autonomous republic in its more industrialized eastern region of Donbas,922 and having Yanukovych, the Ukrainian President ousted in 2014, elected to head that republic.923 That plan, Manafort later acknowledged, constituted a “backdoor” means for Russia to control eastern Ukraine.924 Manafort initially said that, if he had not cut off the discussion, Kilimnik would have asked Manafort in the August 2 meeting to convince Trump to come out in favor of the peace plan, and Yanukovych would have expected Manafort to use his connections in Europe and Ukraine to support the plan.925 Manafort also initially told the Office that he had said to Kilimnik that the plan was crazy, that the discussion ended, and that he did not recall Kilimnik asking Manafort to reconsider the plan after their August 2 meeting.926 Manafort said [redacted] that he reacted negatively to Yanukovych sending — years later — an “urgent” request when Yanukovych needed him.927 When confronted with an email written by Kilimnik on or about December 8, 2016, however, Manafort acknowledged Kilimnik raised the peace plan again in that email.928 Manafort ultimately acknowled ed Kilimnik also raised the eace Ian in ~ary 2017 meetings with Manafort [grand jury redaction] 929

Second, Manafort briefed Kilimnik on the state of the Trump Campaign and Manafort’s plan to win the election.930 That briefing encompassed the Campaign’s messaging and its internal polling data. According to Gates, it also included discussion of “battleground” states, which Manafort identified as Michigan, Wisconsin, Pennsylvania, and Minnesota.931 Manafort did not refer explicitly to “battleground” states in his telling of the August 2 discussion, [grand jury redaction]

Third, according to Gates and what Kilimnik told Patten, Manafort and Kilimnik discussed two sets of financial disputes related to Manafort’s previous work in the region. Those consisted of the unresolved Deripaska lawsuit and the funds that the Opposition Bloc owed to Manafort for his political consulting work and how Manafort might be able to obtain payment.933

Eight days after that meeting at which Manafort described how they might win Rust Belt swing states, where Kilimnik pitched a plan to break up Ukraine, and where Kilimnik also explained what Manafort would have to do to get paid by his Ukrainian paymasters, Manafort told his accountant to book that Ukrainian money, which he said would be paid in November.

Here’s the thing about this meeting, which Trump’s campaign manager and his deputy attended even while the campaign was telling other associates to “take a rain check” on outreach from Russia. They, too, recognized the problem of being caught accepting such outreach. They just tried to avoid getting caught.

After the meeting, Gates and Manafort both. stated that they left separately from Kilimnik because they knew the media was tracking Manafort and wanted to avoid media reporting on his connections to Kilimnik.934

This is a point Amy Berman Jackson made when she ruled that Manafort had lied about this meeting (and the sharing of polling data).

If he was, as he told me, so single-mindedly focused on the campaign, then the meeting he took time to attend and had [redacted] had a purpose [redacted]. Or, if it was just part of his effort to [redacted], well, in that case he’s not being straight with me about how single-minded he was. It’s not good either way.

Plus, his asserted inability to remember rings hollow when the event we are discussing involving [redacted] not only [redacted] but he’s [redacted] with a specific understanding and intent that [redacted] at a meeting in which the participants made it a point of leaving separate because of the media attention focused at that very time on Manafort’ relationships with Ukraine.

Manafort had claimed he was so busy trying to win a campaign that he forgot the meeting at which he discussed carving up Ukraine in the same two hour discussion where he talked about the import of Pennsylvania, Michigan, and Wisconsin in winning that campaign. And to attend the meeting, he risked public scrutiny on precisely the Russian ties that every other member of the campaign was being told to discourage.

Update: This Amy Berman Jackson order reveals a little more about how Rick Gates’ updated testimony changes the story. It sounds like when Gates heard that prosecutors used Manafort’s order to Gates to print out polling data on August 2 to prove that he had shared it with Kilimnik, he contacted prosecutors and told them that they had, in fact, used it at the staff meeting that morning, which is the explanation Manafort gave for the order. He says he arrived late so doesn’t know if Manafort shared that particular polling data with Kilimnik.

But ABJ refused Manafort’s request for reconsideration of her judgment that he lied about that for several reasons:

  • He still lied about sharing polling data to be passed on to Ukrainian and Russian oligarchs
  • He still lied about the Ukraine “peace” deals
  • She still gave him credit for his plea

Given those details, the Manafort bid for reconsideration must just be an attempt to discredit what is one of the most damning details in the Mueller Report.

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

The Many Sided Stone: The Investigation Is Not Over

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While we have been talking about how good and done Robert Meuller’s investigation is, a slew of filings and other reports relating to Roger Stone in the last few days remind us that the fruits of his investigation are definitely not done.

Roger Stone’s cry for help

As background, consider this cry for help, in a local, as opposed to the kind of national media outlets that had recently hung on Roger’s every word. In it, he describes the burden of spending all his money on defense attorneys.

“The worst part of this is being broke,” he said on the SiriusXM program that airs weekdays on the Faction Talk channel 103.

“I’ve lost my home, my insurance, what little savings I had, my ability to make a living because people pay me to write and talk, and of course the things they want me to write and talk about are the very things I’m not allowed to talk and write about. In the blink of an eye you can lose everything.

“I have to pay everything I have to lawyers. And I could no longer pay the rent in the property that I was in. I moved from a nine-bedroom house to a one-bedroom apartment. Had to do the move myself with my wife renting a truck. On the last day of the move in kind of a freak accident the truck slips out of gear and rolls over my wife’s ankle, breaking it.”

More interestingly, Stone claims he hasn’t spoken with Donald Trump for almost two years (he doesn’t say whether his attorneys have spoken to Trump’s attorneys).

“I’ve known him for 40 years. We’re very good friends. I don’t agree with everything he does, I agree with a lot of what he does,” Stone said. Stone said Trump was at his wedding, and he at two of Trump’s weddings; he was at the funerals for Trump’s parents, and is friendly with his sister. “I do miss him.”

He also complains that Alex Jones is not selling T-shirts for him.

“I am grateful for Alex Jones for giving me a platform. He is a friend of mine. I like the guy, I like hanging out with him. I do not agree with everything he says, I agree with some of the things he says. He probably doesn’t agree with everything I say. But you know, the check would be nice.”

While I’m sure Stone exaggerates his financial straits, I’m also sure they’re considerable. These two specific calls for help, though (especially in the wake of allegations that InfoWars may have been providing hush money to Jerome Corsi), are especially interesting.

Stone’s throw of the dice

Meanwhile, the lawyers that are bankrupting Stone have been busy, filing six challenges to his indictment last night, several of them meritorious, the others not. The motions include:

  1. A bid to throw out the prosecution on several grounds designed to appeal to William Barr’s prejudices
  2. A demand for the full Mueller report based on some specious (appeals to Bill Barr) and some justified bases (prosecutorial decisions on Jerome Corsi and Randy Credico)
  3. A motion to enjoin his prosecution based on a claim that Congress hadn’t funded this Special Counsel investigation
  4. A motion to dismiss based on the claim that Mueller violated separation of powers by charging him for lying to HPSCI without a formal referral
  5. A request for discovery to support a selective prosecution claimed designed, in large part, to accuse Randy Credico of lying to the grand jury
  6. A renewed objection to having his case judged by Amy Berman Jackson along with the GRU hackers

He seems to be pursuing several strategies (beyond just throwing a bunch of spaghetti against the wall).

Embarrass Credico

The first is to use the motions process to discredit the witnesses against him. That’s most true of a passage of his selective prosecution motion that accuses Credico of lying to the grand jury.

Another witness, Randy Credico lied about speaking to Assange and Assange’s lawyer to federal agents. It is curious that the Special Counsel found one aspect of Credico’s interactions with Stone so compelling that it made its way into Stone’s Indictment. In Paragraph 14(e) of the Indictment, the Special Counsel quotes the conversation between Stone and Credico from Credico’s radio show of August 23, 2016. Stone and Credico have a discussion regarding communications with the “head of Organization 1.” Yet, astonishingly, in Credico’s testimony to the Grand Jury (DOJ-3500-RC-000111) Transcript Page 44, Lines 7-22, Credico tells the Grand Jury that on the very show they quote, Stone and Credico never discussed the head of Organization 1. For unknown reasons and the precise reason why discovery is mandated in these situations, the Special Counsel elected not to charge Credico with lying to the Grand Jury, something expressly within their regulatory authority.

Later in his testimony, Credico says that prior to his interview with presidential candidate Gary Johnson on September 10, 2016, that he had never spoken to Stone about WikiLeaks or Assange.3 This is a demonstrated lie as according to the text messages between Stone and Credico that Stone voluntarily released, and the Special Counsel possessed. As early as August 19, 2016, Credico was bragging to Stone that he had a connection to Assange and that it was through Margaret Kunstler, Esq., an attorney represented to be on Julian Assange’s legal team. There is no indication based on the initial review of discovery provided by the government that the Grand Jury was ever informed of Credico’s lies regarding the August 23d radio interview.

It’s unclear whether Stone’s representation of Credico’s grand jury testimony is fair. But if it is, the selective prosecution claim provides a way to discredit Credico.

Appeal to Barr and Trump

Then there’s a series of arguments that appear to be an attempt to appeal to Bill Barr’s prejudices, and through him, Trump. There’s the separation of powers argument about the lack of a criminal referral that suggests — incorrectly — that Mueller would have needed to rely on Adam Schiff’s testimony to assess whether and how Stone lied in his testimony (as a matter of courtesy, HPSCI shared informal copies of the transcripts with the IC) and claims — probably ridiculously — that an equivalent example of Barr’s contention that the president can’t be guilty of obstruction without committing the underlying crime is also true for the President’s rat-fucker. Stone repeats this argument in his demand for the full Mueller report, claiming that it will show there was no “collusion,” which therefore means he couldn’t obstruct anything.

The most novel of these arguments, however, is that the President — and his campaign from before he was elected!! — can’t be investigated under the Take Care Clause. This is mostly bullshit, a dime store version of Bill Barr’s own opininion excusing many kinds of obstruction for the President. Trump will like it best where Stone argued that investigating all links with Russia inhibited Trump’s ability to conduct foreign policy.

The Mueller Appointment grants the Special Counsel the authority to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” Accordingly, every action taken by President Trump since he formed his campaign with regard to the United States’ relationship with Russia has been second guessed as evidence of “collusion,” or a conspiracy between Trump and Putin.20 Many have asserted that Putin has some form of control over Trump.21 The Special Counsel investigation has stimulated this second guessing, significantly undermining the President’s ability to conduct foreign policy with regard to Russia. The Special Counsel investigation hog-ties the President in the execution of his foreign policy.

The Mueller Appointment not only hobbles the President’s ability to conduct a rational foreign policy with regard to Russia, it undermines his ability to deal with every world leader. No President can deal effectively with the heads of other nations when he is the subject of a Department of Justice investigation that is prominently being portrayed in the press as imminently removing him from office. Counterparts will be inhibited in reliance on a President who may not serve out his term

This is bait for the frothy right. More importantly, it treats Roger Stone as the President for investigative purposes when according to both him and the President he wasn’t even formally part of the campaign for the key periods under investigation.

This is mostly spaghetti throwing for the frothy right, but there’s no telling what will happen if some of the nuttier GOP judges latch on to one of these strands of spaghetti.

Engage in graymail

Stone repeats his demand for the full Mueller report in several ways — first in a bid for the report itself, then as the “prologue” to a bunch of mostly spurious attacks on Mueller’s authority (some of which have already been rejected in the larger Mueller investigation). This is graymail. Of course Stone is not going to get the full report, which includes grand jury material unrelated to his prosecution and descriptions of ongoing investigations likewise unrelated to his prosecution. But he probably does have a good case to claim that he should get the parts that will be redacted for us that pertain to him.

Misstate Barr’s citation of Mueller’s findings

I’m perhaps most interested in the way Stone engages in Russian hack trutherism. For example, his first justification for needing the full Mueller report — even before he claims to need to know why Credico and Corsi weren’t charged — is to understand Mueller’s “assumption” that Russia hacked the Democrats (something that Stone himself admitted until August 2016, when it became inconvenient).

His lawyers must be allowed to review the Report in its entirety because it contains the government’s evidence and conclusions on matters essential to Stone’s defense. Starting with the base assumptions by the Special Counsel that Russians hacked the Democratic National Committee, Democratic Congressional Campaign Committee, and Clinton Campaign email databases (see Indictment, ¶¶ 1-3, 7, 18, 20, 39);

And in Stone’s bid to get his case reassigned, he makes several misrepresentations of the public record. For example, he claims Barr’s representation of Mueller’s finding said there was no evidence of “collusion” between Trump’s associates and Russia.

The Office of the Special Counsel has since concluded its investigation and has found that there is no evidence of collusion between Russia and those associated with the presidential campaign of Donald J. Trump.

Barr addressed only conspiracy and coordination, and all the language is consistent with Mueller not finding enough evidence to charge it, while finding some evidence.

Stone also claims that prosecutors have claimed that his case is associated with the GRU indictment only because communications between Stone and Guccifer 2.0 were obtained with the GRU warrants.

Previously, however, opposing counsel designated this case as related to that of United States of America v. Netyksho, et al. (1:18-cr-00215-ABJ), because the government claimed that communications between Guccifer 2.0 and Stone were obtained from the Netyksho search warrant.

If they said specifically that, then it was in private. In public, the government said this:

The defendant’s false statements did not arise in a vacuum: they were made in the course of an investigation into possible links between Russian individuals (including the Netyksho defendants), individuals associated with the dumping of materials (including Organization 1), and U.S. persons (including the defendant).

[snip]

In the course of investigating that activity, the government obtained and executed dozens of search warrants on various accounts used to facilitate the transfer of stolen documents for release, as well as to discuss the timing and promotion of their release. Several of those search warrants were executed on accounts that contained Stone’s communications with Guccifer 2.0 and with Organization 1.

Even ignoring that Stone seems to cede that at least one of the number of warrants referred to in that filing included his communications with Guccifer 2.0, it’s even more amusing that Stone ignores WikiLeaks — I wonder if they took it out after Julian Assange got arrested?

Stone then misstates another thing Barr said, claiming he claimed no American citizens conspired with “Russian agents.”

[T]he Department of Justice has concluded that there was no conspiracy between Russian agents and any American citizen, including Roger Stone, this “connection” is unsubstantiated.

What the Barr memo actually says about the hack-and-leak operation is,

Special Counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in these efforts, despite multiple offers from Russian-affiliated individuals to assist the Trump campaign.

Barr’s statement only refers to the Russian government, not possible Russian cut-outs like WikiLeaks, and only discusses Americans with ties to Trump.

Stone then claims that the GRU indictment claims no American was part of the conspiracy.

Additionally, the only document filed in Netyksho, the Indictment, states no American was part of the conspiracy charged. There is nothing left to “connect” Roger Stone to.

It doesn’t name any Americans, but also doesn’t say no Americans were part of the conspiracy. Here’s what it says about the conspirators.

[The defendants] were GRU officers who knowingly and intentionally conspired with each other, and with persons known and unknown to the Grand Jury (collectively the “Conspirators”),

Stone’s effort to get a new judge is not going to work in any case. Which leads me to wonder why he repeatedly misstates the public record.

In any case, assuming normal judicial review, Stone’s request for more of the Mueller report might have promise and he could get some thoughtful briefing on a few of the other claims. But most of this is wall-splat for specific audiences: Trump, Barr, and the frothy right.

Andrew Miller claims he has been mooted

Meanwhile, as expected, Stone associate Andrew Miller just requested an en banc review of the DC Circuit ruling that he needs to testify against Stone. Along with the arguments he already lost on, he is now asking the court to find out whether the government really still needs his testimony, arguing (in part) that Mueller’s authority has expired.

Since the subpoena issued to Mr. Miller was for the purpose of obtaining evidence related to Mr. Stone’s connection with WikiLeaks, Julian Assange, and Guccifer 2.0, it would appear that the Special Counsel would no longer need Mr. Miller’s testimony regarding that subject matter. Nevertheless, the next business day, Monday, January 28, 2019, undersigned counsel was advised by the Special Counsel’s office that it believed the case to be a live controversy since the grand jury was still active, though it was not apparent whether the grand jury or its foreperson was consulted as to any continued interest in hearing Mr. Miller’s testimony. 3

On March 22, 2019, Special Counsel submitted his final report to Attorney General Barr pursuant to the Special Counsel regulations, 28 C.F.R. 600.8(c), concluding his investigation, explaining his prosecutions and declinations, and finding that no conspiracy or coordination took place between the Trump campaign or any aides associated with the campaign and Russia regarding interference with the 2016 campaign or hacking the emails of Hillary Clinton or the DNC. 4 No further indictments are expected. According to Justice Department spokesperson Kerri Kupec, “The investigation is complete.”5 Thus, like Cinderella’s carriage that turned into a pumpkin at midnight, Special Counsel Mueller’s authority expired. Accordingly, the intervening events described above that have occurred since the issuance of the subpoena in question over nine months ago, strongly, if not definitively, demonstrate Mr. Miller’s testimony regarding Mr. Stone is no longer required nor can be legally obtained. Thus, this Court should invite the government’s views to verify whether this case continues to be a live controversy or is moot to assure itself that it continues to possess judicial power to adjudicate the instant petition for rehearing and suggestion for rehearing en banc and any subsequent action in this appeal

3 Notably, while the mandate was stayed as is the usual practice until 7 days after the time for the filing a petition for rehearing had expired or after disposition of any timely filed petition (45 days from the decision, or April 12), the Special Counsel had the right to ask the Court to issue the mandate ever since February 26 if Mr. Miller’s testimony was needed. The Special Counsel declined to do so. [my emphasis]

This is really just decoration on an en banc review that will be denied, but along the way he’s fishing for information about where else prosecutors (including the DC AUSAs who’ve been involved since Stone’s indictment, at least) are headed.

Mueller may be done but prosecutors are not

Which brings us, finally, to this response from prosecutors (signed by two DC AUSAs, Jonathan Kravis and Michael Marando, from the Stone team and Aaron Zelinsky from the Mueller team) in response to what is fairly characterized as a media request for all outstanding warrant materials in the Mueller investigation, with a focus on Stone. After getting two extensions, one because the attorneys involved in it were involved in a press of other work, one to transition to the DC AUSAs who’d take over because Mueller was done, the government today issued a narrowly targeted (to Stone) response.

After introducing the scope of the investigation as it proceeded from Comey’s March 20, 2017 scope to Mueller’s May 17, 2017 scope to his March 22, 2019 closure, the government response then stated the media request in remarkably narrow terms, focused just on Stone.

The movants seek to unseal search warrant materials related to the Stone prosecution. Specifically, the movants seek unsealing of “warrants, applications, supporting affidavits, and returns relating to all search or seizure warrants relevant to the prosecution of Roger J. Stone, Jr.” Doc. 4, at 2 (Order) (quoting Media Coalition Mem. 1). 2 It is unclear whether the movant’s request is limited to warrants issued pursuant to Rule 41 or also includes warrants under the SCA. In an abundance of caution, the government is treating the request as covering both categories. It is similarly unclear whether the reference to “warrants relevant to the Prosecution of Roger J. Stone, Jr.” means only warrants to search Stone’s property and facilities or includes other warrants that were executed as part of the same line of investigation. Again, in an abundance of caution, the government is treating the request as covering both categories.3

2 In places, the movant more broadly references warrant materials pertaining to “the Russia investigation” (Mot. 1, 4; Mem. 4) and once references “Manafort records” (Mot. 3). Consistent with this Court’s March 1, 2019 order (Doc. 4, at 2), and the movants’ detailed description of the records sought, see Mem. 4-5, the government understands those references as context for this specific request to unseal records related to the prosecution of Stone. See Mot. 1, 3, 4; Mem. 1, 4, 5.

Yes, it makes a big show of interpreting the media request broadly to interpret the request as both a request for Rule 41 and Stored Communication Act warrants and both Stone’s property and others (though again, they remarkably blow off all requests for anyone but Stone). But then they get to footnote 3, which reveals that there were warrants targeting entirely different people that ended up “merely happen[ing] to yield evidence that concerns Stone.”

3 The government does not understand the request to include warrants that were not related to Stone or that line of investigation but that merely happened to yield evidence that concerns Stone and is being provided to him in discovery.

This is a fairly remarkable disclosure, that the government obtained warrants thinking they were getting one thing that “merely happened to yield evidence that concerns Stone.” Particularly when you consider the earlier discussion of the “multiple lines” of Mueller’s investigation, some of which have been spun off.

The Special Counsel’s investigation has involved multiple lines of inquiry. Many have been handled in the Special Counsel’s Office. But the Special Counsel has also referred a number of matters to other offices in the government for investigation.

[snip]

On March 22, 2019, the Special Counsel notified the Attorney General that he had completed his investigation into Russian interference in the 2016 presidential election. The Special Counsel, however, referred a number of matters to other offices in the Department of Justice. Those matters remain ongoing.

The filing claims, again, that this is an ongoing investigation, with stuff still being handled by “other offices and entities,” plural,

As explained, although the Special Counsel has concluded his work, the Special Counsel referred a number of matters that are ongoing and are being handled by other offices and entities. Disclosure of the warrant materials threatens the harms that courts have catalogued in holding that the First Amendment provides no right of access to search warrant materials in ongoing investigations.

Nor would it make sense to recognize a right of access automatically once any indictment has been returned. In complex investigations, such as this one, where a single warrant may have relevance to interconnected lines of investigation, that test would fail to take into account tangible investigative harms from disclosure. An indictment does not end an overall investigation, for example, when a defendant is potentially involved in activities with other subjects or targets, and the warrant in question seeks evidence bearing on that joint activity, but the defendant has been charged only with a subset of his conduct under investigation. The probability of a continuing investigation post-indictment grows when the search targets are linked to other persons of interest by ties to a single organization, common associates, or coordinated activities. Disclosure of warrant materials could reveal sources, methods, factual and legal theories, and lines of investigation extending beyond the charged conduct.

It suggests a “single warrant may have relevance to interconnected lines of investigation” (I assume those targeting Rick Gates are one example), then specifically says an indictment, like that targeting Stone, “does not end an overall investigation” perhaps because the “defendant has been charged only with a subset of his conduct under investigation” and he “is potentially involved in activities with other subjects or targets … linked to other persons of interest by ties to a single organization, common associates, or coordinated activities.”

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

The Parallel Tracks of Disclosure on Why Manafort Shared Campaign Polling Data with His Russian Co-Conspirator

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No one knows what the first half of this sentence says:

[redacted] the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.

But it almost certainly includes language acknowledging evidence that might support (but ultimately was not enough to indict on) a conspiracy charge.

I have twice before demonstrated that the Barr Memo — and so this full sentence — is nowhere near as conclusive with respect to exonerating Trump as a number of people have claimed (and Trump’s equivocations about releasing the report). This post showed how little Barr’s Memo actually incorporates from the Mueller Report. And this post shows that the memo ignores Stone’s coordination with WikiLeaks, presumably because he didn’t coordinate directly with the Russian government.

But (as I’ve said elsewhere), the public record on Paul Manafort’s conduct also makes it clear that the Mueller Report includes inconclusive information on whether the Trump campaign conspired with Russians. This came up extensively, in the discussion of Manafort’s sharing of polling data at his August 2, 2016 meeting with Konstantin Kilimnik, at the February 4 breach hearing.

At the beginning of that discussion, ABJ asked whether Manafort had lied to the grand jury about his motives for sharing polling data. [Throughout this, I’m bolding the redactions but including the content where it’s obvious.]

JUDGE AMY BERMAN JACKSON: I think we can go on to the question of the [redacted; sharing of polling data]. And I don’t have that many questions, mainly because I think it’s pretty straightforward what you’re saying.

So, I would want to ask you whether it’s part of your contention that he lied about the reason [redacted; he shared the data]. I know initially he didn’t even agree that that [redacted; he had shared private polling data], and he didn’t even really agree in the grand jury. He said it just was public information. But, I think there’s some suggestion, at least in the 302, as to what the point was of [redacted].

And so, I’m asking you whether that’s part of this, if he was lying about that?

Because Mueller’s team only needed ABJ to rule that Manafort lied, Andrew Weissmann explained they didn’t need her to reach the issue of motive. But they did discuss motive. Weissmann describes that it wasn’t just for whatever benefit sharing the polling data might provide the campaign, but it would also help Manafort line up his next gig and (probably) get out of debt to Deripaska.

MR. WEISSMANN: So, I don’t think the Court needs to reach that issue, and I don’t know that we’ve presented evidence on the — that issue.

THE COURT: You didn’t. So you just don’t want me to think about it, that’s okay.

MR. WEISSMANN: No. No. No. I’m going to answer your question.

THE COURT: All right.

MR. [WEISSMANN]: I’m just trying to, first, deal with what’s in the record. And I think that in the grand jury, Mr. Manafort said that from his perspective, [redacted], which he admitted at that point was with — he understood that it was going to be given by [redacted] to the [redacted; Ukrainian Oligarchs] and to Mr. [redacted; possibly Deripaska], both. That from his perspective, it was — there was no downside — I’m paraphrasing — it was sort of a win-win. That there was nothing — there was no negatives.

And I think the Government agrees with that, that that was — and, again, you’re just asking for our — if we are theorizing, based on what we presented to you, that we agree that that was a correct assessment.

But, again, for purposes of what’s before you on this issue, what his ultimate motive was on what he thought was going to be [redacted] I don’t think is before you as one of the lies that we’re saying that he told.

It’s more that what he specifically said was, he denied that he had told Mr. Gates [redacted; to bring the polling data to the meeting]. That he would not, in fact, have [redacted] and that he left it to [redacted].

Weissmann then goes on to allege that Manafort lied about sharing this polling data because if he didn’t, it would ruin his chance of getting a pardon.

And our view is, that is a lie. That that is really under — he knew what the Gates 302s were. It’s obviously an extremely sensitive issue. And the motive, I think, is plain from the [redacted], is we can see — we actually have — we can see what it is that he would be worried about, which is that the reaction to the idea that [long redaction] would have, I think, negative consequences in terms of the other motive that Mr. Manafort could have, which is to at least augment his chances for a pardon.

And the proof with respect to that is not just Mr. Gates. So that I will say there’s no contrary evidence to Mr. Gates, but you don’t have just Mr. Gates’s information. You have a series of emails where we know that Mr. Kilimnik, in fact, is reporting [redacted]

And probably the best piece of evidence is you have Mr. Manafort asking Mr. Gates to [redacted; print out polling data]. So, it’s — there’s — from three weeks ago, saying: [redacted].

In an effort to understand why this lie was important, ABJ returns to Manafort’s motive again, which leads Weissmann to point out that the question of why Manafort shared the polling data goes to the core of their inquiry.

THE COURT: I understand why it’s false. And I’m not sure I understand what you said at the beginning, that you — and I understand why you’ve posited that he might not want to be open about this, given the public scrutiny that foreign contacts were under at the time. But, I’m not sure I understand what you’re saying where you say you agree with him when he said it had no downside.

So, this is an important falsehood because it was false? Or is there some larger reason why this is important?

MR. WEISSMANN: So — so, first, in terms of the what it is that the special counsel is tasked with doing, as the Court knows from having that case litigated before you, is that there are different aspects to what we have to look at, and one is Russian efforts to interfere with the election, and the other is contacts, witting or unwitting, by Americans with Russia, and then whether there was — those contacts were more intentional or not. And for us, the issue of [redacted] is in the core of what it is that the special counsel is supposed to be investigating.

My answer, with respect to the Court’s question about what it is — what the defendant’s intent was in terms of what he thought [redacted] I was just trying to answer that question, even though that’s not one of the bases for saying there was a lie here. And so I was just trying to answer that question.

And what I meant by his statement that there’s no downside, is that can you imagine multiple reasons for redacted; sharing polling data]. And I think the only downside —

Weissmann ultimately explains that there was no downside to Manafort to sharing the polling data during the campaign, but there was a downside (angering Trump and therefore losing any hope of a pardon) to the information coming out now.

THE COURT: You meant no downside to him?

MR. WEISSMANN: Yes.

THE COURT: You weren’t suggesting that there was nothing — there’s no scenario under which this could be a bad thing?

MR. WEISSMANN: Oh, sorry. Yes. I meant there was no downside — Mr. Manafort had said there was no downside to Mr. Manafort doing it.

THE COURT: That was where I got confused.

MR. WEISSMANN: Sorry.

THE COURT: All right.

MR. WEISSMANN: And meaning all of this is a benefit. The negative, as I said, was it coming out that he did this.

In her breach ruling, ABJ agreed that Manafort’s sharing of polling data was a key question in Mueller’s inquiry, as it was an intentional link to Russia. She establishes this by noting that Manafort knew the polling data would be shared with someone in Russia (probably Deripaska; though note, this is where ABJ gets the nationality of the two Ukranian oligarchs wrong, which Mueller subsequently corrected her on).

Also, the evidence indicates that it was understood that [redacted] would be [redacted] from Kilimnik [redacted] including [redacted], and [redacted]. Whether Kilimnik is tied to Russian intelligence or he’s not, I think the specific representation by the Office of Special Counsel was that he had been, quote, assessed by the FBI, quote, to have a relationship with Russian intelligence, close quote. Whether that’s true, I have not been provided with the evidence that I would need to decide, nor do I have to decide because it’s outside the scope of this hearing. And whether it’s true or not, one cannot quibble about the materiality of this meeting.

In other words, I disagree with the defendant’s statement in docket 503, filed in connection with the dispute over the redactions, that, quote, the Office of Special Counsel’s explanation as to why Mr. Manafort’s alleged false statements are important and material turns on the claim that he is understood by the FBI to have a relationship with Russian intelligence.

I don’t think that’s a fair characterization of what was said. The intelligence reference was just one factor in a series of factors the prosecutor listed. And the language of the appointment order, “any links,” is sufficiently broad to get over the relatively low hurdle of materiality in this instance, and to make the [redacted] Kilimnik and [redacted] material to the FBI’s inquiry, no matter what his particular relationship was on that date.

Elsewhere, in discussing Manafort’s efforts to downplay Kilimnik’s role in his own witness tampering, ABJ refers to Kilimnik as Manafort’s “Russian conspirator.”

Earlier in the hearing ABJ notes that Manafort’s excuse for why he forgot details of the August 2 meeting only reinforce the likelihood that he shared the polling data to benefit the campaign.

You can’t say you didn’t remember that because your focus at the time was on the campaign. That relates to the campaign. And he wasn’t too busy to arrange and attend the meeting and to send Gates [redacted] that very day. It’s problematic no matter how you look at it.

If he was, as he told me, so single-mindedly focused on the campaign, then the meeting he took time to attend and had [redacted] had a purpose [redacted; to benefit the campaign]. Or, if it was just part of his effort to [redacted; line up the next job], well, in that case he’s not being straight with me about how single-minded he was. It’s not good either way.

She further notes that Manafort took this meeting with his Russian partner in Ukrainian influence peddling even though he was already under press scrutiny for those Ukrainian ties.

[T]he participants made it a point of leaving separate because of the media attention focused at that very time on Manafort’ relationships with Ukraine.

Her ruling also explains at length why sharing polling data would be useful to Kilimnik, citing from Rick Gates’ 302s at length.

In other words, these two filings — to say nothing of the backup provided in the January 15 submission, which includes all but one of Gates’ 302s describing the sharing of the polling data — lay out in some detail the evidence that Manafort clandestinely met with Konstantin Kilimnik on August 2, 2016, in part to share polling data he knew would be passed on to at least one other Russian, probably Deripaska.

And here’s why that’s interesting.

Back in early March, the WaPo moved to liberate all the documents about Manafort’s breach determination. On March 19, Mueller attorneys Adam Jed and Michael Dreeben asked for an extension to April 1, citing the “press of other work.”

The government respectfully requests an extension of time—through and including April 1, 2019—to respond to the motion. The counsel responsible for preparing the response face the press of other work and require additional time to consult within the government.

Three days later, Mueller announced he was done, and submitted his report to Barr. Then, on March 25, all of Mueller’s attorneys withdrew from Manafort’s case, which they haven’t done in other cases (the main pending cases are Mike Flynn, Concord Management, and Roger Stone). Then, on March 27, Mueller and Jonathan Kravis, the AUSA taking over a bunch of Mueller’s cases, asked for another extension, specifically citing the hand-off to Kravis and two others in the DC US Attorney’s Office.

The government respectfully requests a further two-week extension of time—to and including April 15, 2019—to respond to the motion. The Special Counsel’s Office has been primarily handling this matter. On March 22, the Special Counsel announced the end of his investigation and submitted a report to the Attorney General. This matter is being fully transitioned to the U.S. Attorney’s Office. Because of this transition, additional time will be required to prepare a response.

On March 29, Barr wrote the Judiciary Leadership and told them he’d release his redacted version of the Mueller report — which he’ll be redacting with the Mueller’s team — by mid-April, so around April 15.

So there are currently two parallel efforts considering whether to liberate the details of Manafort’s sharing of polling data with Kilimnik and through him Russia:

  • The Barr-led effort to declassify a report that Mueller says does not exonerate Trump for obstruction, including the floating of a pardon to Manafort that (in Weissmann’s opinion) led Manafort to lie that and why he shared Trump campaign polling data to be passed on to Russians, which will be done around April 15
  • The DC USAO-led effort to unseal the materials on Manafort’s lies, for which there is a status report due on April 15

Kevin Downing — the Manafort lawyer whose primary focus has been on preserving Manafort’s bid for a pardon — already expressed some concern about how the breach documents would be unsealed, to which ABJ sort of punted (while suggesting that she’d entertain precise the press request now before her.

MR. DOWNING: Your Honor, just one other general question: How are we going to handle the process of unredacted down the road? I mean, there’s been a lot of redactions in this case, and the law enforcement basis for it or ongoing grand jury investigations. What is going to be the process to — is the Office of Special Counsel going to notify the Court that the reason stated for a particular redaction no longer exists, or still survives? Is it going to be some sort of process that we can put in place?

THE COURT: Well, in one case, I know with all the search warrants, it was an evolving process. There were things that were withheld from you and then you got them but they were still withheld from the press and then the press got them. But usually things have to be triggered by a motion or request by someone. There may be reasons related to the defense for everything to stay the way it is.

I, right now, without knowing with any particularity what it is that you’re concerned about, or if — and not having the press having filed anything today, asking for anything, I don’t know how to answer that question. But I think that is something that comes up in many cases, cases that were sealed get unsealed later. And if there’s something that you think should be a part of the public record that was sealed and there’s no longer any utility for it, obviously you could first find out if it’s a joint motion and, if not, then you file a motion.

But for now, the prosecutors in DC will be in charge of deciding how much of the information — information that Barr might be trying to suppress, not least because it’s the clearest known evidence how a floated pardon prevented Mueller from fully discovering whether Trump’s campaign conspired with Russia — will come out in more detail via other means.

Update: And now, over a month after Mueller’s correction, three weeks after sentencing, and a week after the entire Mueller team moved on, Manafort submitted his motion for reconsideration from Marc. They’re still fighting about redactions.

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

Judge Amy Berman Jackson Lays the Precedent for FARA

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I said while following yesterday’s live tweets of the Paul Manafort sentencing that, because so few FARA cases have been criminally prosecuted, Manafort’s will set some precedent going forward, as DOJ moves to put some prosecutorial teeth behind the law. So I wanted to look at the various things she said yesterday about it.

First, there’s the way she characterizes Manafort’s own actions. After calling out the way Manafort claims his entire life’s work has been about spreading democracy without actually presenting evidence to support the case (and leaving unstated the obvious fact that in fact he was more often serving dictators), she then notes that ultimately it was easier for him to get a win for his clients if he hid who he was working for.

The sentencing memorandum also states: Mr. Manafort has spent his life advancing American ideals and principles. It starts with his work on numerous political campaigns and positions within some of the administrations, and it goes on to say during his years outside of government service, Mr. Manafort also worked with world leaders. He has spent a lifetime promoting American democratic values and assisting emerging democracies to adopt reforms necessary to become a part of Western society.

At times he interacted with politicians and business people in emerging countries to assist in the development of American beliefs of equal justice, human rights, and free markets. There aren’t really any exhibits or letters that go along with that, so I don’t have the facts or the record before me that would permit me to either accept or question what is a very general description. It will fall to others in other settings to assess whether the way the defendant chose to market the access he gained during political campaigns and the work he did for the clients he represented has been characterized accurately. So it doesn’t factor into my consideration of the history and characteristics of the defendant.

[snip]

It may have been that in addition to thinking of his own finances, he had his clients’ ability to win in mind. He knew that revealing the true source behind the lobbying activities would have made those activities ineffective and unsuccessful, as the prosecutor said. Secrecy was integral. But that willingness to win at all costs was contrary to laws designed to ensure transparency in the political process and the legislative process. So it cannot possibly justify the behavior, particularly when there’s no question that this defendant knew better and he knew exactly what he was doing.

This is important background for how she distinguishes lobbying, even for sleazy clients, and lobbying without disclosing it.

It is important to note, in case there’s any confusion, notwithstanding the use of the word “agent,” an unregistered foreign agent is not a spy. He is a lobbyist. Lobbying is not illegal. Being paid to do it, even on behalf of clients who others might view as unseemly or odious or even tyrannical is not illegal, if you follow the laws that govern foreign financial transactions and pay your taxes. But this defendant kept his money offshore and under wraps so he wouldn’t have to pay.

[snip]

So what remains to be considered here? According to the defendant, it’s just an administrative matter, a regulatory crime, a violation of the Foreign Agent Registration Act. And that’s not a fair description. He was hiding the truth of who he represented from policymakers and the public, and that’s antithetical to the very American values that he told me he championed. And this was after he knew and already had been warned not to do it.

What becomes clear from this record is that defendant’s approach in his career, and what he didn’t abandon even after he was indicted, was that it’s all about strategy, positioning, public relations, spin. And you could say, well, there’s nothing wrong with that, at least if you’re not a journalist. But there is something wrong with it if you’re not simply advancing a position as part of a PR campaign.

It’s okay to say: Members of Congress, the government of the Ukraine, President Victor Yanukovych, would like you to consider the following when you consider how to respond to his actions, when you determine what the foreign policy of the United States should be. But what you were doing was lying to members of Congress and the American public, saying, look at this nice American PR firm, look at this nice U.S.-based law firm, look at this nice group of prominent former European officials, isn’t it great how they’ve all voluntarily stepped forward to stand up for Yanukovych and the new administration, when all along you were hiding that you and the Ukrainians actually had them on the payroll. This deliberate effort to obscure the facts, this disregard for truth undermines our political discourse and it infects our policymaking. If the people don’t have the facts, democracy can’t work.

That’s key background for how she treats Manafort’s specific violations of FARA. She dismisses Manafort’s claims that this is a mere registration violation in several ways that may lay important precedent: she invokes the money laundering (which prosecutors said was an important part of hiding the lobbying he was doing), the serial lies to DOJ — including lies told to his lawyer preparing his registration, and his efforts to get others (Tony Podesta, Vin Weber, and Greg Craig) to lie as well.

The other thing the sentencing statute tells me I’m supposed to do is I’m supposed to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct. With respect to sentencing disparities, the defense points primarily to other regulatory cases. But those involve, ordinarily, just a plain failure to register, or a plain failure to reveal a foreign bank account. They’re not analogous. They don’t involve, as here, a failure to register — to hide the existence of — multiple foreign bank accounts for the purpose of laundering millions of dollars, shielding millions of dollars from the IRS.

[snip]

I’ve got the regulatory FARA piece of Count 1 and the money laundering. And I don’t believe that’s covered by the Eastern District sentence and I think it has to be addressed. As I noted earlier, it’s not a mere oversight, it’s not a missing piece of paper. To the extent it could or should have been treated as a mere administrative matter, I think the defendant forfeited being able to rely on that sort of discretion on the part of law enforcement by having his lawyer lie to the Department of Justice twice on his behalf.

I do note that the Eastern District of Virginia found 30 months to be an appropriate sentence for the other single regulatory disclosure violation. And here, it wasn’t just a single failure to register; the defendant prevailed upon others in the scheme not to register either, and he admitted under oath at the plea that he caused them not to register.

Those three factors (the second of which was present in Mike Flynn’s FARA violation as well), are all likely to be aggravating factors that may got into criminal prosecution of FARA in the future.

Finally, there’s the timing. To rebut claims that these prosecutions were simply about long passed lobbying efforts, ABJ clearly describes the crime as persisting through the time Manafort twice lied to DOJ about his lobbying.

Furthermore, this conduct is not, as the defendant would have me conclude, old news. It’s not just some ancient failure to comply with a couple of regulations, something that took place so long before the campaign it’s just unfair and inappropriate to charge him for it in 2017. He pled guilty to laundering of funds through 2016. He pled guilty to a lobbying campaign in the United States for the government of Ukraine, Victor Yanukovych, and when he was out of office, his Party of Regions and the Opposition Bloc from 2005 to 2015. And the defense says, well, yes, but the government investigated and wrapped it all up and there wouldn’t have been a prosecution but for the appointment of the special counsel.

I’m not exactly sure what that prediction — which they’ve made to me repeatedly — is actually based on. I don’t believe there is evidence that a formal final determination was made. Prior to the time when anybody was even thinking about a special counsel, the Department of Justice was already looking into this matter. And when the Department of Justice — not the Office of Special Counsel — was looking into the matter, it asked Mr. Manafort questions. He lied to his own lawyers and he lied to the Department of Justice. He had them submit not one, but two letters, falsely stating that he had not performed lobbying activities in the United States on the part of the Ukraine.

That first lie was in November of 2016, after he resigned as campaign chair but well before the appointment of the special counsel. The second, in February, was after the special counsel investigation was underway. So it’s not entirely clear that a civil resolution would still have been possible at that point.

This, too, would have big implications for Flynn’s actions, since he lied to DOJ while he was at the White House.

Particularly given Manafort’s example, people are unlikely to wrack up these many aggravating factors in the future. But they do lay out a clear map for what a criminal FARA violation would look like in the future.

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

Paulie’s Very Bad Day: “If the People Don’t Have the Facts, Democracy Can’t Work.” 

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Recently, I got a new makeup artist for my TV appearances (which, of course, all have to do with the Russian investigation). She came to the US from Ukraine in the wake of Yanukovych’s ouster. When I told her I was talking about the Manafort the first time I met her, she expressed her hope that he would pay a price, here, for what he helped Yanukovych do to her country.

I like to think today is for her. Amy Berman Jackson sentenced Paul Manafort to an additional 43 in months in prison on top of the 47 from EDVA for crimes were tied to Manafort’s efforts to whitewash a brute, in Ukraine, Western Europe, and the US, and then hide the “blood money” (as his daughter called it) from tax authorities.

Immediately after the sentencing ended, Cy Vance announced a 16-count indictment in New York State, on charges that Trump cannot pardon. Whatever you think of Vance’s grandstanding, the NY indictment immediately shifts Manafort’s incentives for a pardon, because prison in NY State would be significantly less comfortable than FCI Cumberland, where Manafort will serve his federal charges. So any pardon might just hasten a move to less comfortable surroundings.

That means the entire strategy Manafort has pursued for the last 18 months, refusing to cooperate and then, when he did enter a plea deal, using it only to waste prosecutors’ time and share information with Trump, will serve no purpose.

Which is why I think today can best be summed up by the contrast between two statements. In the middle of a long judgment that was not televised but was superbly livetweeted by Zoe Tillman, Andrew Prokop, Ryan Reilly, and others, ABJ observed the gravity of Manafort’s FARA crimes by noting that, “If the people don’t have the facts, democracy can’t work.”

Immediately after the sentencing, Kevin Downing — the Manafort lawyer who, more than the others, has been cultivating Manafort’s pardon strategy — stepped out on the courtroom stairs and made a false statement that serves that pardon strategy (as he did last week) “Judge Jackson conceded that there was absolutely no evidence of Russian collusion in this case.” Protestors immediately called him a liar, and noted that that’s not what ABJ had said, hopefully to be picked up by every TV feed filming Downing.

Indeed, ABJ had just criticized that ploy in the courtroom.

During Wednesday’s sentencing, Jackson slammed Manafort and his lawyers for their focus on the fact that he was not charged in connection with his work on the Trump campaign or accused of colluding with the Russian government. She said that the “non-collusion mantra was a non sequitor,” unrelated to what sentence Manafort should receive, and that his lawyers made the “unsubstantiated” claim that Manafort was only charged with financial crimes predating his campaign work because Mueller’s office couldn’t charge him with anything to do with Russia.

The live-tweeting is what made it possible for protestors to spoil Downing’s effort to perform as Trump wanted him to, undermining Downing’s (and with it, Trump’s) effort to spin this verdict as an exoneration in the case in chief.

Today’s verdict was about Paul Manafort’s efforts to prevent voters in both Ukraine and the US from obtaining real facts.

And it turns out that President Trump isn’t going to be able to help Manafort avoid the consequences for that.

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

Roger Stone’s Seemingly Credible Excuse Starts Falling Apart Well before Bruce Rogow Asks for a Note from His Doctor

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On February 21, Roger Stone and his attorneys walked into Amy Berman Jackson’s court room with the swagger of apparent certainty they were going to convince her not to impose a gag on the rat-fucker. As I’ve laid out, that swagger was misplaced. ABJ got both Stone and his lead attorney, Bruce Rogow, to lay out the case for a gag themselves, on public safety grounds.

On the way back to Florida after that hearing, the swaggering rat-fucker and his lawyers now claim, Roger Stone reminded his lawyer, Grant Smith (who had negotiated his book contracts, edited the new introduction [see page 49], and even arranged some of the right wing media publicity for it, post-indictment), that he had a second edition of a book coming out — for which he had just received his advance copies three days earlier — that might violate the expanded gag she had just imposed. Stone then forwarded the email attaching the new introduction to Smith [update: or maybe not–see below], who forwarded it on to Bruce Rogow, who reacted with alarm. Once Stone told his lawyers, they scrambled to respond, they claim. Ultimately they “clarified” that the book was coming out to ABJ on March 1, a week later.

That’s the story that Stone’s lawyers told in a response to an angry order about all this from ABJ, which they submitted last night. It seems credible, if you don’t look too closely at the details or the arrogant close.

There was/is no intention to hide anything. The new introduction, post February 21, 2019, presented a question we tried, obviously clumsily, to address. Having been scolded, we seek only to defend Mr. Stone and move ahead without further ado.1

1 Bruce Rogow may not be able to attend the March 14, 2019 status conference because he is under a physician’s care for a temporary disorder impeding his ability to travel.

There are, however, a few problems with the story.

Multiple claims they make in their new filing are doubtful, some rely on legal gimmicks, and at least some are outright false. I’ll deal with them one by one, ending with the first claim (about publicity) last.

Roger Stone and Grant Smith had no confusion that his book was being released on March 1

Stone claims when he first submitted his “clarification” on March 1, there was confusion about when the book would be published.

That the New Introduction “had been sent to a publisher in January and was scheduled for release in February” (Order, p. 3, n. 2), is now certain. See Composite Exhibit B. There was confusion. We apologize for the confusing representation about publication.

This refers to a discrepancy about what Stone variously claimed with regards to the release date of his book. In his lawyers’ initial “motion to clarify,” which remains under seal, they appear to have referred to its “imminent general release.” Stone’s March 4 motion states,

The book, with the [new introduction], was published by the Publisher on February 19, 2019. Copies were distributed by the Publisher to hundreds of retailers nationwide in late January 2019.

[snip]

the imminent general relase [sic] of the book’s contents, including the [new introduction], Defendant respectfully requests that the publication of this book (together with the ) should not be viewed as contravening the Court’s prohibitions because these prohibitions were not extant and could not have been known prior to February 21, 2019.

The government pointed out on March 4 that the book was available as an ebook, but was silent about any existing paperback edition.

So Stone claims the paperwork he submitted proved that the book was scheduled for release in February. In fact, they appear to be conflating the online and hard copy release.

In fact, Stone’s publisher Tony Lyons told him in January the release date was March 5 (PDF 65).

And while an editor told Stone that the paperbacks were being printed “soon” on January 24 (remarkably, the very day he was indicted, though he should not have known about the sealed indictment at that point), Stone didn’t actually tell him where to send his own review copies until February 15, after his attorneys had already submitted the first filing regarding a gag. (PDF 84)

In his response that same day (PDF 96), Mike Campbell talked about forthcoming plans for media appearances relating to the book. In response, Stone specifically mentioned that ABJ might gag him “any day now” (she issued the first gag sometime that day, just days before Stone threatened her).

According to the Instagram posts submitted with the filing, as recently as February 18 — notably, the day Stone now claims the book was “published” — Stone understood the books would be “In stores March 1!” (PDF 111)

And on February 21, immediately after Stone got gagged, Grant Smith (who negotiated the deal, edited the new material, and helped with publicity) reflected the understanding that the book would come out on March 1. (PDF 9)

At least one of Stone’s lawyers did not believe publicity would wane

Stone’s lawyers claim they believed  — and still believe — what they submitted to ABJ on February 8, that publicity in the case would wane after his initial arrest on January 25.

But, the February 8 representation that “‘[t]hat first wave of publicity surrounding the indictment . . . will subside. To be sure, the interest in this case will continue, but nothing compels the conclusion that the Court’s present expressed confidence in seeking an unbiased jury will, in months hence, be compromised by the press or Mr. Stone as we move forward.’” (Order at 3, n. 2, quoting February 8 submission), is still true. The Court views the New Introduction as “entirely  inconsistent with the assurances,” but those “assurances” were not made in an effort to conceal anything. They reflected a belief in both waning publicity and the ability of the Court to seat a jury. That opinion still holds.

But in an email chain from January 28 setting up a publicity appearance for the book on Hannity, Smith received an email from Kristin Davis stating she was “looking forward to making another New York Times Bestseller.” (PDF 100)

Authors selling NYT times bestsellers spend a lot of time on publicity. And Smith was part of an effort to garner whatever publicity for this book they could get.

The entirety of Paragraph 3 seems only to relate to Bruce Rogow

Then, there’s this paragraph, which serves to deny they’re trying to pull a fast one over on ABJ (I’ve numbered the sentences and bolded the apparent subject of each sentence to make the following discussion more clear):

[1] That the lawyers who submitted the Notice of Apology, and who condemned the posting which prompted it, “did not seek an exception for a recently revised introduction to a book that was in the hands of retailers as he spoke” (Opinion at 3-4) is true. [2] But any suggestion that not doing so was intended to mislead, is not true. [3] Even if it had crossed counsel’s mind to raise the new introduction (and it did not), it seems a bit awkward to have sought to introduce the New Introduction at that very moment during argument. [4] As the 6:33 p.m. February 21, 2019 email exchange reflects, reading for the first time the New Introduction, while waiting for a plane back to Fort Lauderdale, brought the issue home and led to the Motion to Clarify.

Read quickly, you might assume the paragraph has just one subject: “the lawyers,” plural, meaning Stone’s entire legal team.

Not so.

First, note that just two of his attorneys signed the Notice of Apology referenced in sentence 1: Peter Farkas (through whom all the rest have their pro hac vice in DC), and Bruce Rogow (that’s true of the February 8 gag filing as well).

That’s important, because (as noted) Smith was not only involved in every step of this publication process, but helped Stone set up publicity for the book after he had been indicted. I’m guessing that he doesn’t feel any regret about Stone’s incitement.

Sentence 2 of paragraph 3 has no human subject — it refers to the action the counsels in the previous sentence took, or not (in this case, not disclosing the publication of Stone’s book).

The next human subject, in sentence 3, “counsel,” is referred to in the singular, perhaps speaking exclusively for the single lawyer who spoke on Stone’s behalf at the gag hearing, Rogow.

Sentence 4 may appear to use a gerund as its subject (as the second sentence does), reading for the first time. But in fact, that gerund actually modifies the unstated subject. That subject, too, is singular, given that the email referenced is not Smith’s (which was sent at 5:58PM), but Rogow’s (sent at 6:33PM).

The claims made in this paragraph may apply only to Rogow, and they definitely do not apply to Smith, about whom all the claims would probably be false, and the claim he had only read the new introduction for the first time on February 21 (which, again, he edited on January 15) would absolutely be false.

Stone may not have turned over all relevant communication

Stone’s lawyer’s claim that all records regarding publication date appear in Exhibit B.

Perhaps they do. But that exhibit shows Stone forwarding emails he believed to be relevant to Smith. All the ones he sent on March 7 and 8 are numbered, like the first of those emails. (PDF 19)

Only, assuming Stone numbered consecutively, around 8 of the emails he seems to have found relevant are missing: 3, 5, 6, 7, 9, 12, 15, and 16.

Stone sent some more on March 11 that weren’t numbered, so it’s unclear if there were still more emails that didn’t make this exhibit.

Stone’s lawyers are obfuscating about online availability

Stone claims that his publisher answered definitively.

DEFENDANT MUST INFORM THE COURT OF THE EXACT DATE THE BOOK WAS FIRST MADE AVAILABLE FOR PURCHASE ONLINE, AND THE INTRODUCTION WAS MADE AVAILABLE FOR VIEWING, AT AMAZON.COM AND GOOGLE BOOKS OR ANY OTHER ONLINE VENDOR.

Response:

As provided by the Publisher, the exact date the book was first made available for purchase online, and the Introduction was made available for viewing to Amazon.com and Google books or any other online vendor was on January 18, 2019. They could choose to make them publicly available any time after they received them.

Both times the publisher answers the question, however, the answer is not that clear. The first time Tony Lyons answers the question (knowing he has to answer correctly to keep Stone out of jail), he says “both” were live before the gag order, which could refer to both e-book versions, Amazon and Google, or both kinds of availability.

Lyons answers the question again the next day, again using an unspecified February 19 in spite of being asked two questions.

As proof that Tara Campion did not take this date to refer to hard copies, she asked him a follow-up the next day.

Stone professes to have no idea what he posted in his own Instagram

In spite of all the details I’ve posted above showing that Stone believed, as late as February 18, that the book would be in stores on March 1, he now claims to know none of that.

DEFENDANT MUST INFORM THE COURT WHETHER AND WHEN HE BECAME AWARE OF: THE FACT THAT THE NEW EDITION OF THE BOOK HAD BEEN PRINTED BY THE PUBLISHER; THE FACT THAT COPIES OF THE BOOK HAD BEEN SHIPPED FROM THE PRINTER; THE FACT THAT COPIES WERE AVAILABLE AT BOOKSTORES; THE FACT THAT RETAIL BOOKSTORES WERE SELLING THE BOOK; AND THE FACT THAT THE BOOK WAS AVAILABLE FOR PURCHASE OR VIEWING ONLINE.

Response:

1) Mr. Stone became aware of the fact that the New Edition of the book had been printed in early February, exact date unknown, when an acquaintance of Mr. Stone reached out to him to say he had purchased and had in-hand a copy of the book.

2) Mr. Stone knew books had been shipped from the printer as late as February 18, when Mr. Stone received two boxes of approximately 30 books each at his home delivered to him by the publisher which he began giving to friends and family. See also, Composite Exhibit B.

3) Mr. Stone does not have any recollection of when he specifically knew they were available at bookstores.

4) Mr. Stone does not have any recollection of when he specifically knew they were being sold at retail bookstores.

5) Mr. Stone does not recall when he learned that the book was available for purchase or viewing online.

Stone claims he made no public statement about the book even though he booked a Hannity appearance to talk about it

Stone says he don’t remember pitching the book, ever.

To the best of Mr. Stone’s knowledge or records, he made no public statements regarding the publication of the book from January 15th to the present.

As noted above, Roger Stone booked an appearance on Hannity on January 28 specifically to pitch the book (and Smith appears to have spoken to folks there about it).

On top of messaging Trump (he said on the show he would not testify against Trump), the Hannity appearance was about adding to the media blitz and attacking Mueller.

Grant Smith, who edited the introduction, needed no reminder it existed

Stone’s filing claims he needed to “remind” counsel of the existence of the new introduction that violated the gag.

Immediately following the February 21 hearing, Mr. Stone reminded counsel about the existence of the New Introduction which covered topics now subject to restriction and that it could be construed as being written after the date for the February 21 Order because the various platform and location releases were not immediately known to him, although he had knowledge they had been printed and that there had been at least one commercial sale. Mr. Stone instructed Mr. Smith to send the new introduction to the others on his team for review.

As I keep noting, on January 15, Smith shared his own edits with the publisher — and Stone approved both the ones the publisher made and those Smith made (meaning he knows Smith did make edits).

Update: On Twitter, Reed Morris convinced me what happened is even worse than this. Smith, of course, didn’t need Stone to forward him this copy of the new introduction because he already had a copy. He was on the distribution list when it was originally sent!

Stone was included in direct communications with the publishers between February 21 and March 1, and continued to contact them directly after that

Stone’s lawyers claim he did not have “direct communications” with his publisher between the imposition of the gag and the first “clarification” to ABJ.

Mr. Stone did not have any direct communications with the publisher or any retailer between February 21 and March 1, all communications were indirect through counsel. To be completely transparent, Mr. Stone has authorized counsel to provide these communications to the Court.

Only here he was, being included in the conversations with the publishers on February 26. (PDF 121)

And while Stone’s lawyers don’t make any representations on this topic, it’s clear that Stone continued to be in direct contact with the publishers after that. Indeed, it appears the two-step process of forwarding relevant emails to Smith actually amounted to first sending them to Mike Campbell at the publisher, evidence to which got left in on this email and at least one other one. (PDF 96)

This is true, in spite of his lawyers’ claims that the publisher was keeping proprietary information from him.

As is reflected in this email exchange, Mr. Stone no longer had a “joint venture” with the publisher and the publisher viewed the information Mr. Stone was requesting to be proprietary as Mr. Stone neither participated in setting the schedule or any printing or distribution decisions.

For some reason, Stone’s lawyers don’t want to talk about Bruce Rogow’s communications with the publisher

Stone’s lawyers end this filing with claims about how serious they were because they took a week to present misleading data to ABJ.

On the morning of February 22, Mr. Smith sent an email to the publisher requesting, in light of the Court’s Order, a detailed explanation of where the books stood in the release/publishing process.

On February 26th, in preparation for the March 1 filing by Defendant, Mr. Smith requested additional information from the publisher to be able to accurately represent the status of the book to the Court. As is reflected in this email exchange, Mr. Stone no longer had a “jointventure” with the publisher and the publisher viewed the information Mr. Stone was requesting to be proprietary as Mr. Stone neither participated in setting the schedule or any printing or distribution decisions. The publisher ultimately provided the information requested in preparation for the Defendant’s filing.

The Defendant also asks the Court to take notice of the immediacy with which this was addressed by Mr. Stone and that the serious tone in the emails reflects the seriousness with which Mr. Stone took the Court’s February 21 order.

Curiously, they only mention the first two email threads, involving Grant Smith. After having gotten answers, sort of, to the questions they were seeking, Smith then emailed Tony Lyons and said that Lyon had to speak to Rogow immediately. He cc’s Tara Campion, another lawyer in Rogow’s office. (PDF 127)

Lyons says he’s too busy to talk but can respond to emailed questions (they’ve been emailing questions for 5 days at this point). Campion gets the same answers Smith already got, equally ambiguous about the hard copy print date as the earlier round. She asks Lyons when the books were sent out and he says, “I’ll put a call in to our sales director but usually 2-3 weeks before pub date.”

Remember: Everyone believed the “pub date” was March 1, which would put distribution of the books around February 18, which is when Stone himself received his copies.

When Campion follows up again about whether he has spoken with the sales director, he doesn’t say he has! but claims that he now knows they were sent in late January. (PDF 125)

Once again, on January 24, Michael Campbell told Stone the books were “printing soon.” He did not give Campbell the address to receive the books until February 15, in a conversation specifically referencing the expected gag order. And while Campbell’s response reflects review copies having been sent out by February 15, that’s different than actual retail copies. (PDF 96-97 shows this, which happens to be one of the ones Stone definitely shared directly with the publisher.)

Which means this exchange — which happened after Smith told Lyons he needed to speak to Rogow — probably is bullshit, but it provided dates that weren’t utterly damning for ABJ.

The thing is, they’re probably not true, and ABJ may well delve into all this on Thursday.

Stone claims this isn’t a publicity stunt

In a follow-up, I hope to look at why these people decided Stone had to update his book, which was a flop the first time he published it.

The March 1, 2019 Motion to Clarify (Dkt. # 51) was not “intended to serve as a means to generate additional publicity for the book.” Order of March 5, 2019 (Dkt. # 56), p. 2 n. 1. It was intended to address the fact that the “new” introduction was, after the February 21, 2019 hearing, recognized to be a potential problem. See Exhibit A, email exchange of February 21, 2019 at 6:33 p.m. We regret that the Court drew a contrary impression.

As noted above, the reference to the 6:33 email refers to what Rogow — who was rightly alarmed by Stone’s attacks on Mueller in the new introduction — believed.

It says nothing about what Grant Smith, who orchestrated this entire deal, believes.

Which is why I find it so interesting that Rogow plans to have a note from his doctor excusing him from attendance.

There was/is no intention to hide anything. The new introduction, post February 21, 2019, presented a question we tried, obviously clumsily, to address. Having been scolded, we seek only to defend Mr. Stone and move ahead without further ado.1

1 Bruce Rogow may not be able to attend the March 14, 2019 status conference because he is under a physician’s care for a temporary disorder impeding his ability to travel.

I have no idea whether this will result in Stone being jailed. As I noted, at first glance it looks pretty convincing Once you look closer, it’s pretty clear the lawyers — Grant Smith in particular — sign onto claims that cannot be true. And that’s before you look at the 8 emails Stone thought were relevant but don’t appear in this filing, some of which the FBI probably seized along with everything else on January 25.

No wonder Rogow doesn’t want to be the one on the stand on Thursday.

Update: Corrected incorrect claim that Tara Campion was not admitted in this case.

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