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Four Sentences: What the Legal System Has Said about the Suspect Loyalty of Trump’s Aides

In an attempt to undercut Andrew McCabe’s publicity tour, the President is on a tear, attacking what he claims was McCabe and Rod Rosenstein’s “treasonous” insurance policy.

We’re at a point where both sides are making claims of treason, which only serves to feed the intensity of both sides, without convincing Trump’s supporters (and other denialists) that the concerns about Trump’s loyalty — and therefore the investigation that McCabe opened into him — are well-grounded.

But there are neutral third party observers here, weighing the claims of loyalty. Four different sentencing processes have sided with those questioning the loyalty of Trump and those close to him.

George Papadopoulos

In the first two cases where Trump flunkies have been sentenced, the flunkies themselves have pointed to how their own misplaced loyalties caused them to commit crimes. In George Papadopoulos’ sentencing memo, he attributed the actions that led to his prosecution — his attempts to broker a meeting between Putin and Trump — to a desire to curry Trump’s favor.

Eager to show his value to the campaign, George announced at the meeting that he had connections that could facilitate a foreign policy meeting between Mr. Trump and Russian President Vladimir Putin. While some in the room rebuffed George’s offer, Mr. Trump nodded with approval and deferred to Mr. Sessions who appeared to like the idea and stated that the campaign should look into it.

George’s giddiness over Mr. Trump’s recognition was prominent during the days that followed the March 31, 2016 meeting. He had a sense of unbridled loyalty to the candidate and his campaign and set about trying to organize the meeting with President Putin.

Papadopoulos says he lied to the FBI out of loyalty to Trump.

Mr. Papadopoulos misled investigators to save his professional aspirations and preserve a perhaps misguided loyalty to his master.

[snip]

George explained that he was in discussions with senior Trump administration officials about a position and the last thing he wanted was “something like this” casting the administration in a bad light. The agents assured him that his cooperation would remain confidential.

More specifically, he lied to avoid tainting the Trump campaign with any tie to Russia.

George found himself personally conflicted during the interrogation as he felt obligated to assist the FBI but also wanted to distance himself and his work on the Trump campaign from that investigation. Attempting to reconcile these competing interests, George provided information he thought was important to the investigation while, at the same time, misleading the agents about the timing, nature, and extent of his contacts with Professor Mifsud, Olga, and Ivan Timofeev. In his answers, George falsely distanced his interactions with these players from his campaign work. At one point, George told the agents that he did not want to “get too in-depth” because he did not know what it would mean for his professional future. He told the agents he was “trying to help the country and you guys, but I don’t want to jeopardize my career.”

George lied about material facts central to the investigation. To generalize, the FBI was looking into Russian contacts with members of the Trump campaign as part of its larger investigation into Russian interference with the 2016 election. This issue had dominated the news for several months with stories concerning Carter Page and Paul Manafort. The agents placed this issue squarely on the table before George and he balked. In his hesitation, George lied, minimized, and omitted material facts. Out of loyalty to the new president and his desire to be part of the administration, he hoisted himself upon his own petard.

I have argued that this memo served the dual purpose of accepting responsibility while signaling others and reaffirming his loyalty to Trump, and I stand by that. Given his efforts to reverse his sentence, Papadopoulos show of contrition at his hearing was just that, a ruse. But it was one of the things that convinced Judge Randolph Moss to impose just two weeks. Another, however, were the comments of Papadopoulos’ lawyer, Thomas Breen, who argued Trump had obstructed the Mueller investigation far more than his client had.

Trump, Breen said, “hindered this investigation more than George Papadopoulos ever could,” by calling the FBI’s Russia inquiry a “witch hunt” and casting doubt on credible allegations of wrongdoing by his associates.

“The president of the United States, the commander in chief, told the world that this was fake news,” Breen said, contrasting this with Mueller’s “professional” and “well-prepared” team.

In imposing prison time, Moss emphasized that Papadopoulos lied about a manner of grave importance.

The judge noted that most defendants convicted on a false-statement charge don’t get any prison time, but he said he considered the Mueller investigation “a matter of enormous importance.” Moss, an appointee of President Barack Obama who served as a top Justice Department official under President Bill Clinton, described the inquiry as an attempt to investigate an “effort to interfere in our democracy.”

“It’s important that the public know there are real consequences when you mislead and tell lies to the FBI about a matter of grave national importance,” he said.

[snip]

Breen said his client was trying to preserve his job prospects in the Trump administration, but Moss told the lawyer that those were “not noble reasons to tell a lie.”

“This was fairly calculated,” the judge said. “It took six months for Mr. Papadopoulos to correct the record.”

So Papadopoulos’ lawyers agreed his loyalties were misplaced and Judge Moss judged that Papadopoulos’ lies pertained to something that strikes at the integrity of our democracy.

Michael Cohen

As Papadopoulos did, Michael Cohen attributed his obstruction to his blind loyalty to Trump and a desire to sustain Trump’s false narrative denying ties to Russia.

I made these misstatements to be consistent with Individual 1’s political messaging and out of loyalty to Individual 1.

In his cynical, Lanny Davis-crafted statement at sentencing, Cohen talked about how he put loyalty to Trump over that to his family, ending with an apology to the US.

 I blame myself for the conduct which has brought me here today, and it was my own weakness, and a blind loyalty to this man that led me to choose a path of darkness over light. It is for these reasons I chose to participate in the elicit act of the President rather than to listen to my own inner voice which should have warned me that the campaign finance violations that I later pled guilty to were insidious.

Recently, the President Tweeted a statement calling me weak, and he was correct, but for a much different reason than he was implying. It was because time and time again I felt it was my duty to cover up his dirty deeds rather than to listen to my own inner voice and my moral compass. My weakness can be characterized as a blind loyalty to Donald Trump, and I was weak for not having the strength to question and to refuse his demands.

[snip]

I stand behind my statement that I made to George Stephanopoulos, that my wife, my daughter, my son have my first loyalty and always will. I put family and country first. My departure as a loyal soldier to the President bears a very hefty price.

For months now the President of the United States, one of the most powerful men in the world, publicly mocks me, calling me a rat and a liar, and insists that the Court sentence me to the absolute maximum time in prison. Not only is this improper; it creates a false sense that the President can weigh in on the outcome of judicial proceedings that implicate him.

[snip]

I want to apologize to the people of the United States. You deserve to know the truth and lying to you was unjust.

In sentencing Cohen, Judge William Pauley pointed to how his ties to Trump and the access that gave him led him to lose his moral compass.

[H]is entire professional life apparently revolved around the Trump organization. He thrived on his access to wealthy and powerful people, and he became one himself.

[snip]

But somewhere along the way Mr. Cohen appears to have lost his moral compass and sought instead to monetize his new-found influence. That trajectory, unfortunately, has led him to this courtroom today.

Cohen’s guilty plea — particularly the way he tried to cabin off cooperation implicating his family — is cynical as hell. But to the extent he is willing to help prosecutors, it entails being treated as a traitor by the President.

Mike Flynn

The other two Trump flunkies who’ve gotten close to sentencing are even more striking — in part because they have been less successful at crafting a fiction about setting their loyalty to Trump or other paymasters aside.

Flynn was set to get probation until he and his lawyer used their own sentencing memo to continue the line all the other loyal Trump flunkies have, suggesting that the investigation was illegitimate.

There are, at the same time, some additional facts regarding the circumstances of the FBI interview of General Flynn on January 24, 2017, that are relevant to the Court’s consideration of a just punishment.

At 12:35 p.m. on January 24, 2017, the first Tuesday after the presidential inauguration, General Flynn received a phone call from then-Deputy Director of the FBI, Andrew McCabe, on a secure phone in his office in the West Wing.20 General Flynn had for many years been accustomed to working in cooperation with the FBI on matters of national security. He and Mr. McCabe briefly discussed a security training session the FBI had recently conducted at the White House before Mr. McCabe, by his own account, stated that he “felt that we needed to have two of our agents sit down” with General Flynn to talk about his communications with Russian representatives.21

Mr. McCabe’s account states: “I explained that I thought the quickest way to get this done was to have a conversation between [General Flynn] and the agents only. I further stated that if LTG Flynn wished to include anyone else in the meeting, like the White House Counsel for instance, that I would need to involve the Department of Justice. [General Flynn] stated that this would not be necessary and agreed to meet with the agents without any additional participants.”22

Less than two hours later, at 2:15 p.m., FBI Deputy Assistant Director Peter Strzok and a second FBI agent arrived at the White House to interview General Flynn.23 By the agents’ account, General Flynn was “relaxed and jocular” and offered to give the agents “a little tour” of the area around his West Wing office. 24 The agents did not provide General Flynn with a warning of the penalties for making a false statement under 18 U.S.C. § 1001 before, during, or after the interview. Prior to the FBI’s interview of General Flynn, Mr. McCabe and other FBI officials “decided the agents would not warn Flynn that it was a crime to lie during an FBI interview because they wanted Flynn to be relaxed, and they were concerned that giving the warnings might adversely affect the rapport,” one of the agents reported.25 Before the interview, FBI officials had also decided that, if “Flynn said he did not remember something they knew he said, they would use the exact words Flynn used, . . . to try to refresh his recollection. If Flynn still would not confirm what he said, . . . they would not confront him or talk him through it.”26 One of the agents reported that General Flynn was “unguarded” during the interview and “clearly saw the FBI agents as allies.”27

While Emmet Sullivan — ever on guard against prosecutorial misconduct — might have done so anyway, this led the judge to ask for the paperwork behind Flynn’s claims. Which in turn led to the production of really damning details of Flynn’s lies. That, in turn, led Sullivan to hesitate before sentencing Flynn, in part because the “great deal of nonpublic information in this case” he read led him to grow disgusted about what Flynn had done. Sullivan, as the first judge to read in detail about Mueller’s underlying investigation, said some absolutely remarkable things (and note, at least some of this language pertains to Flynn selling out to Turkey, not Russia).

I’m going to also take into consideration the aggravating circumstances, and the aggravating circumstances are serious. Not only did you lie to the FBI, but you lied to senior officials in the Trump Transition Team and Administration. Those lies caused the then-Vice President-Elect, incoming Chief of Staff, and then-Press Secretary to lie to the American people. Moreover, you lied to the FBI about three different topics, and you made those false statements while you were serving as the National Security Advisor, the President of the United States’ most senior national security aid. I can’t minimize that.

Two months later you again made false statements in multiple documents filed pursuant to the Foreign Agents Registration Act. So, all along you were an unregistered agent of a foreign country, while serving as the National Security Advisor to the President of the United States.

[snip]

COURT: All right. I really don’t know the answer to this question, but given the fact that the then-President of the United States imposed sanctions against Russia for interfering with federal elections in this country, is there an opinion about the conduct of the defendant the following days that rises to the level of treasonous activity on his part?

[snip]

I mean, arguably, that undermines everything this flag over here stands for (indicating). Arguably, you sold your country out. The Court’s going to consider all of that. I cannot assure you that if you proceed today you will not receive a sentence of incarceration. But I have to also tell you that at some point, if and when the government says you’ve concluded with your cooperation, you could be incarcerated.

It could be that any sentence of incarceration imposed after your further cooperation is completed would be for less time than a sentence may be today. I can’t make any guarantees, but I’m not hiding my disgust, my disdain for this criminal offense.

So in this case, Flynn’s bid to discredit the investigation instead led to remarkable comments about how Flynn’s underlying crimes — the ones he lied to cover-up — amount to selling out his country.

Paul Manafort

Which brings us to Paul Manafort, who is currently facing what amount to be several life sentences because he refused to cooperate, even after promising to do so, against Trump and his Ukrainian and Russian paymasters. As I have noted, Manafort’s lies served to avoid giving the government evidence that Trump conspired with Russia to get elected.

But don’t take my word for it. In announcing her ruling in the breach determination last week, Amy Berman Jackson paid special attention to Manafort’s lies about Konstantin Kilimnik. The most important lie, it seems, pertains to Manafort sharing of detailed polling data with Kilimnik at a meeting where they also discussed sanctions relief in the guise of a Ukrainian peace detail. The description of whom Manafort intended that data to be shared with is redacted. But ABJ moved directly from describing the intended recipients to judging that sharing the data amounts to a link with Russia.

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.

[snip]

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.

She continued by saying that she didn’t even have to determine whether — as the government claims — Kilimnik has active ties to GRU. Whatever Kilimnik’s ties to Russian military intelligence, ABJ still considers his relationship with Manafort to implicate coordination with the Russian government.

I also want to say we’ve now spent considerable time talking about multiple clusters of false or misleading or incomplete or needed-to-be-prodded-by-counsel statements, all of which center around the defendant’s relationship or communications with Mr. Kilimnik. This is a topic at the undisputed core of the Office of Special Counsel’s investigation into, as paragraph (b) of the appointment order put it, Any links and/or coordination between the Russian government and individuals associated with the campaign.

Mr. Kilimnik doesn’t have to be in the government or even be an active spy to be a link. The fact that all of this is the case, that we have now been over Kilimnik, Kilimnik, and Kilimnik makes the defense argument that I should find the inaccurate statements to be unintentional because they’re all so random and disconnected, which was an argument that was made in the hearing, is very unpersuasive.

ABJ’s most striking comments, however, came in language introducing why, even though she didn’t find that Mueller’s team had proven Manafort’s lies about conspiring with Kilimnik to be proven by a preponderance of the evidence, it nevertheless was obvious that what Manafort was trying to do in disclaiming a conspiracy with Kilimnik was to “shield his Russian conspirator.”

Mr. Manafort doesn’t just say to the agents, Kilimnik doesn’t believe he was pressuring the witness, or Kilimnik didn’t think he was suborning perjury, he didn’t intend to violate U.S. law, he makes the affirmative assertion that Kilimnik believed the project was a European project, when Manafort plainly knew that Kilimnik knew it wasn’t and the documents plainly reflect that it wasn’t, and that was the basis for the conspiracy count to which he pled guilty in the first place.

To me, this is definitely an example of a situation in which the Office of Special Counsel legitimately concluded he’s lying to minimize things here, he’s not being forthcoming, this isn’t what cooperation is supposed to be. This is a problematic attempt to shield his Russian conspirator from liability and it gives rise to legitimate questions about where his loyalties lie.

We have yet to get Mueller’s sentencing memo in the DC case or ABJ’s response to any claims they may make about why Manafort chose to face a life sentence rather than tell the truth about his conspiracies with Konstantin Kilimnik.

But it’s pretty clear that ABJ believes Manafort’s lies suggest he has suspect loyalties.

Four times so far in this investigation, Trump’s aides have started the sentencing process for their crimes designed to obstruction Robert Mueller’s investigation. All four times, before four different judges, their misplaced loyalty to Trump above country has come up. And with both Flynn and Manafort — where the judges have seen significant amounts of non-public information about the crimes they lied to cover-up — two very reasonable judges have raised explicit questions about whether Trump’s aides had betrayed their country.

Trump wants this to be a case of contested claims of betrayal. But the judges who have reviewed the record have used striking language about who betrayed their country.

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. 

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

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

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

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

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

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

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

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

THE COURT: Sure.

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

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

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

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

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

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

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

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

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

That seems like a pretty major aggravating factor.

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

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

THE COURT: Sure.

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

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

MR. KELNER: I do.

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

[snip]

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

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

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

THE COURT: Absolutely.

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

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

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

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

MR. KELNER: Thank you, Your Honor.

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

MR. KELNER: I’m leading up to that.

THE COURT: No, that’s fine.

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

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

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

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

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

THE COURT: All right.

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

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

MR. KELNER: It’s a classic —

THE COURT: He pled to a misdemeanor?

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

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

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

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

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

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

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

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

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

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

On Emmet Sullivan’s Order for Mike Flynn’s 302s: Be Careful What You Ask For

In his sentencing memorandum, Mike Flynn waved the following in front of Judge Emmet Sullivan, like a red cape before a bull.

There are, at the same time, some additional facts regarding the circumstances of the FBI interview of General Flynn on January 24, 2017, that are relevant to the Court’s consideration of a just punishment.

At 12:35 p.m. on January 24, 2017, the first Tuesday after the presidential inauguration, General Flynn received a phone call from then-Deputy Director of the FBI, Andrew McCabe, on a secure phone in his office in the West Wing.20 General Flynn had for many years been accustomed to working in cooperation with the FBI on matters of national security. He and Mr. McCabe briefly discussed a security training session the FBI had recently conducted at the White House before Mr. McCabe, by his own account, stated that he “felt that we needed to have two of our agents sit down” with General Flynn to talk about his communications with Russian representatives.21

Mr. McCabe’s account states: “I explained that I thought the quickest way to get this done was to have a conversation between [General Flynn] and the agents only. I further stated that if LTG Flynn wished to include anyone else in the meeting, like the White House Counsel for instance, that I would need to involve the Department of Justice. [General Flynn] stated that this would not be necessary and agreed to meet with the agents without any additional participants.”22

Less than two hours later, at 2:15 p.m., FBI Deputy Assistant Director Peter Strzok and a second FBI agent arrived at the White House to interview General Flynn.23 By the agents’ account, General Flynn was “relaxed and jocular” and offered to give the agents “a little tour” of the area around his West Wing office. 24 The agents did not provide General Flynn with a warning of the penalties for making a false statement under 18 U.S.C. § 1001 before, during, or after the interview. Prior to the FBI’s interview of General Flynn, Mr. McCabe and other FBI officials “decided the agents would not warn Flynn that it was a crime to lie during an FBI interview because they wanted Flynn to be relaxed, and they were concerned that giving the warnings might adversely affect the rapport,” one of the agents reported.25 Before the interview, FBI officials had also decided that, if “Flynn said he did not remember something they knew he said, they would use the exact words Flynn used, . . . to try to refresh his recollection. If Flynn still would not confirm what he said, . . . they would not confront him or talk him through it.”26 One of the agents reported that General Flynn was “unguarded” during the interview and “clearly saw the FBI agents as allies.”27

He cited a memo that fired FBI Deputy Director Andrew McCabe wrote the day of Flynn’s interview and the interview report (called a “302”) that fired FBI Special Agent Peter Strzok had a hand in writing up in August 2017, some seven months after the interview.

In response, the judge in his case, Emmet Sullivan, issued an order asking not just for those two documents, but any documents related to the matters Flynn writes up, to be filed by tomorrow, along with the government’s reply to his memorandum.

And so it is that on the one year anniversary of the order Sullivan issued to ensure that Flynn got any exculpatory information relating to his plea, that the hopes among the frothy right that Flynn’s prosecution (including for lying about his sleazy influence peddling with Turkey) will be delegitimized and with it everything that happened subsequent to Flynn’s plea might be answered.

Or maybe not.

For those unfamiliar with his background, back in the waning years of the Bush Administration, Sullivan presided over the Ted Stevens’ prosecution. After Stevens was convicted, DOJ started ‘fessing up to a bunch of improprieties, which led Sullivan (on newly confirmed Eric Holder’s recommendation) to throw out the conviction. Sullivan demanded a report on the improprieties, which ended up being a scathing indictment of DOJ’s actions (that nevertheless didn’t lead to real consequences for those involved). Since that time, Sullivan has been wary of DOJ’s claims, which has led him to do things like routinely issue the order he did with Flynn’s case, making sure that defendants get any exculpatory evidence they should get.

Regardless of how this request works out, you should applaud Sullivan’s diligence. He’s one of just a few judges who approaches the government with the skepticism they deserve. And to the extent that problems with our criminal justice system only get noticed when famous people go through it, it’s important that this one be treated with such diligence.

Still, those problems include both abuse, like we saw in the Stevens case, and special treatment, like David Petraeus got, and it’s actually unclear whether Sullivan’s request will uncover one or the other (or neither). I say that for several reasons.

First, because the public evidence suggests that — if anything — Obama’s appointees demanded FBI proceed cautiously in their investigation of Trump’s people, delaying what in any other case would have been routine early collection. When FBI discovered Flynn making suspicious comments to Sergei Kislyak, concerns about how to proceed went all the way up to Obama.

Moreover, contrary to most reporting on this interview, the FBI’s suspicions about Flynn did not arise exclusively from his calls to Kislyak. The interview happened after a counterintelligence investigation into Flynn had been open for months, as laid out by the House Intelligence Committee Russia report.

Director Comey testified that he authorized the closure of the CI investigation into general Flynn by late December 2016; however, the investigation was kept open due to the public discrepancy surrounding General Flynn’s communications with Ambassador Kislyak. [redacted] Deputy Director McCabe stated that, “we really had not substantiated anything particularly significant against General Flynn,” but did not recall that a closure of the CI investigation was imminent.

If McCabe believed the CI investigation into Flynn had produced mostly fluff, it might explain why he would approach setting up an interview with him with less than the rigor that he might have (as arguably happened with Hillary in the analogous situation). He didn’t expect there to be a there there, but then there was (remember, Jim Comey has repeatedly said that the one thing that might have led the Hillary investigation to continue past her interview as if they caught her lying; the difference is that Flynn told obvious lies whereas Hillary did not).

Finally, there’s one other, major reason to think this ploy may not work out the way Flynn might like. That’s because the frothy right, its enablers in Congress, and the White House itself has pursued this line for most of a year. Particularly in the wake of Flynn’s cooperation agreement, claiming that Flynn was just confused or forgetful when he spoke to the FBI has been central to Trump’s serial cover stories for why he fired Flynn.

So Republicans hoping to find the smoking gun have looked and looked and looked and looked and looked at the circumstances of Mike Flynn’s interview. Already by March of last year, they had resorted only to misstating Comey’s testimony about what happened in the HPSCI report.

Director Comey testified to the Committee that “the agents … discerned no physical indications of deception. They didn’t see any change in posture, in tone, in inflection, in eye contact. They saw nothing that indicated to them that he knew he was lying to them.”

Nothing in the report — which now includes a section substantially declassified to reveal more purportedly incriminating details about Flynn — suggests real impropriety with his interview.

Even in that very same paragraph, they quote McCabe (the guy who wrote up a memo that same day, which is probably what Sally Yates relied on when she suggested to the White House they needed to fire Flynn) stating very clearly that the FBI agents recognized that Flynn had lied.

McCabe confirmed the interviewing agent’s initial impression and stated that the “conundrum that we faced on their return from the interview is that although [the agents] didn’t detect deception in the statements that he made in the interview … the statements were inconsistent with our understanding of the conversation that he had actually had with the ambassador.”

The degree to which, after looking and looking and looking and looking for some smoking gun relating to the Flynn interview but finding very little is perhaps best indicated by where that search has gotten after looking and looking and looking and looking — as most recently exhibited in Jim Comey’s questioning from a week ago, by the Republicans’ best prosecutor, Trey Gowdy. After (apparently) hoping to catch Comey lying about what investigators thought when the lifetime intelligence officer managed to lie without any tells but instead leading him through a very cogent explanation of it, Gowdy then resorts to sophistry about what day of the week it is.

Mr. Gowdy. Who is Christopher Steele? Well, before I go to that, let me ask you this.

At any — who interviewed General Flynn, which FBI agents?

Mr. Comey. My recollection is two agents, one of whom was Pete Strzok and the other of whom is a career line agent, not a supervisor.

Mr. Gowdy. Did either of those agents, or both, ever tell you that they did not adduce an intent to deceive from their interview with General Flynn?

Mr. Comey. No.

Mr. Gowdy. Have you ever testified differently?

Mr. Comey. No.

Mr. Gowdy. Do you recall being asked that question in a HPSCI hearing?

Mr. Comey. No. I recall — I don’t remember what question I was asked. I recall saying the agents observed no indicia of deception, physical manifestations, shiftiness, that sort of thing.

Mr. Gowdy. Who would you have gotten that from if you were not present for the interview?

Mr. Comey. From someone at the FBI, who either spoke to — I don’t think I spoke to the interviewing agents but got the report from the interviewing agents.

Mr. Gowdy. All right. So you would have, what, read the 302 or had a conversation with someone who read the 302?

Mr. Comey. I don’t remember for sure. I think I may have done both, that is, read the 302 and then spoke to people who had spoken to the investigators themselves. It’s possible I spoke to the investigators directly. I just don’t remember that.

Mr. Gowdy. And, again, what was communicated on the issue of an intent to deceive? What’s your recollection on what those agents relayed back?

Mr. Comey. My recollection was he was — the conclusion of the investigators was he was obviously lying, but they saw none of the normal common indicia of deception: that is, hesitancy to answer, shifting in seat, sweating, all the things that you might associate with someone who is conscious and manifesting that they are being — they’re telling falsehoods. There’s no doubt he was lying, but that those indicators weren’t there.

Mr. Gowdy. When you say “lying,” I generally think of an intent to deceive as opposed to someone just uttering a false statement.

Mr. Comey. Sure.

Mr. Gowdy. Is it possible to utter a false statement without it being lying?

Mr. Comey. I can’t answer — that’s a philosophical question I can’t answer.

Mr. Gowdy. No, I mean, if I said, “Hey, look, I hope you had a great day yesterday on Tuesday,” that’s demonstrably false.

Mr. Comey. That’s an expression of opinion.

Mr. Gowdy. No, it’s a fact that yesterday was —

Mr. Comey. You hope I have a great day —

Mr. Gowdy. No, no, no, yesterday was not Tuesday.

Then Gowdy tries a new tack: suggesting that Flynn should have gotten the agents’ finding that he lied without any physical tells provided as some kind of Brady evidence.

Mr. Gowdy. And, again — because I’m afraid I may have interrupted you, which I didn’t mean to do — your agents, it was relayed to you that your agents’ perspective on that interview with General Flynn was what? Because where I stopped you was, you said: He was lying. They knew he was lying, but he didn’t have the indicia of lying.

Mr. Comey. Correct. All I was doing was answering your question, which I understood to be your question, about whether I had previously testified that he — the agents did not believe he was lying. I was trying to clarify. I think that reporting that you’ve seen is the product of a garble. What I recall telling the House Intelligence Committee is that the agents observed none of the common indicia of lying — physical manifestations, changes in tone, changes in pace — that would indicate the person I’m interviewing knows they’re telling me stuff that ain’t true. They didn’t see that here. It was a natural conversation, answered fully their questions, didn’t avoid. That notwithstanding, they concluded he was lying.

Mr. Gowdy. Would that be considered Brady material and hypothetically a subsequent prosecution for false statement?

Mr. Comey. That’s too hypothetical for me. I mean, interesting law school question: Is the absence of incriminating evidence exculpatory evidence? But I can’t answer that question.

I mean, maybe there are some irregularities explaining why it took seven months to write up Flynn’s 302 and how information about the interview was shared within DOJ in the interim; if there is I’d like to know what those are. But what everyone seems to agree is that there was no dispute, from the very beginning, that Flynn lied.

And Flynn’s statement actually makes things worse for himself (and, importantly, for one of the White House cover stories that his firing was immediately precipitated by Don McGahn confronting him with the transcript of his conversation with Kislyak). Flynn’s own sentencing memo makes it clear the FBI Agents were quoting directly from the transcript about what he said.

FBI officials had also decided that, if “Flynn said he did not remember something they knew he said, they would use the exact words Flynn used, . . . to try to refresh his recollection. If Flynn still would not confirm what he said, . . . they would not confront him or talk him through it.”

So Flynn would have known, way back when the White House was trying to find excuses to keep him on, precisely what he had been caught saying.

Finally, remember two more details. While we can’t read it, Sullivan (and Flynn’s team) know what’s behind this redaction:

That means Sullivan knows, even if we don’t, why Mueller thinks it so important that Flynn lied, and so may have a very different understanding about the import of those lies.

Finally, note that along with requiring the government to turn over all the filings relating to his interview (not just the two Flynn selectively quoted from), Sullivan also instructed the government to file their reply to Flynn’s sentencing memo by the same time.

DOJ has never had the opportunity to write its own explanation for what happened with Flynn’s interview. By inviting a reply specifically in the context of this Flynn claim, Sullivan has given DOJ the opportunity to do just that, finally.

DOJ may have a very interesting explanation for why they approached a counterintelligence interview with a guy they might have considered one of them with jocularity.

Sure, there may yet be damning details. As I’ve said, I really look forward to learning why it took seven months to formally memorialize this interview.

But the GOP has been looking for a smoking gun for a year and have not apparently found one. It’s quite possible we’ll learn something else tomorrow, that Mike Flynn actually got special treatment that none of us would get if we were suspected of being recruited by Russian intelligence.

At the very least, Sullivan’s order may result in documentation that reveals just how shoddy all the claims irregularity surrounding Flynn’s interview have been all this time.

Update: Elevating this from pinc’s comment. If DOJ chooses to tell a story that at all resembles Greg Miller’s account of the meeting (including that Flynn specifically said he didn’t want to have a lawyer of any type present), then this could spectacularly backfire.

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

James Baker Channels a Road Map He and Comey and Andrew McCabe Might Navigate

Some weeks ago, I used Leon Jaworski’s Road Map to imagine what an equivalent Robert Mueller Road Map, packaging grand jury information to share with the House Judiciary Committee, might look like.

Among other things I showed the close parallel between John Dean’s attempt to craft a cover story and Don McGahn’s attempts to do the same. That section included how Nixon worked Henry Petersen, then Assistant Attorney General for Criminal Division, to try to influence the investigation.

After substantiating what would have been the indictment against Nixon, the Watergate Road Map showed how Nixon had John Dean and others manufacture a false exonerating story. The Road Map cited things like:

  • Nixon’s public claims to have total confidence in John Dean
  • Nixon’s efforts to falsely claim to the Attorney General, Richard Kleindienst, that former AG John Mitchell might be the most culpable person among Nixon’s close aides
  • Nixon’s instructions to his top domestic political advisor, John Ehrlichman, to get involved in John Dean’s attempts to create an exculpatory story
  • Press Secretary Ron Ziegler’s public lies that no one knew about the crime
  • Nixon’s efforts to learn about what prosecutors had obtained from his close aides
  • Nixon’s private comments to his White House Counsel to try to explain away an incriminating comment
  • Nixon’s ongoing conversations with his White House Counsel about what he should say publicly to avoid admitting to the crime
  • Nixon’s multiple conversations with top DOJ official Henry Petersen, including his request that Petersen not investigate some crimes implicating the Plumbers
  • Nixon’s orders to his Chief of Staff, HR Haldeman, to research the evidence implicating himself in a crime

This is an area where there are multiple almost exact parallels with the investigation into Trump, particularly in Don McGahn’s assistance to the President to provide bogus explanations for both the Mike Flynn and Jim Comey firings — the former of which involved Press Secretary Sean Spicer and Chief of Staff Reince Priebus, the latter of which involved Trump’s top domestic political advisor Stephen Miller. There are also obvious parallels between the Petersen comments and the Comey ones. Finally, Trump has made great efforts to learn via Devin Nunes and other House allies what DOJ has investigated, including specifically regarding the Flynn firing.

One key point about all this: the parallels here are almost uncanny. But so is the larger structural point. These details did not make the draft Nixon indictment. There were just additional proof of his cover-up and abuse of power. The scope of what HJC might investigate regarding presidential abuse is actually broader than what might be charged in an indictment.

The equivalent details in the Mueller investigation — particularly the Comey firing — have gotten the bulk of the press coverage (and at one point formed a plurality of the questions Jay Sekulow imagined Mueller might ask). But the obstruction was never what the case in chief is, the obstruction started when Trump found firing Flynn to be preferable to explaining why he instructed Flynn, on December 29, to tell the Russians not to worry about Obama’s sanctions. In the case of the Russia investigation, there has yet to be an adequate public explanation for Flynn’s firing, and the Trump team’s efforts to do so continue to hint at the real exposure the President faces on conspiracy charges. [my emphasis]

Another section showed how Nixon was commenting on what he had said to Petersen and Attorney General Kleindienst was like Trump’s comments on Jim Comey and other DOJ officials.

That was all written from the outside.

Today, former FBI General Counsel James Baker performs the same task. He doesn’t describe the effort as such. Rather, he just says he finds certain things — particularly those having to do with Henry Petersen — attracted his (and Sarah Grant’s, with whom he wrote this) attention.

One of the aspects of the recently released Watergate “road map” and related documents that attracted our attention is the set of materials pertaining to interactions, direct and indirect, between President Richard M. Nixon and two senior Department of Justice officials.

The whole post starts with a description of how Petersen told Nixon that Haldeman and Ehrlichman were implicated in the break-in and advised him to fire them, only to have the President respond that he would not.

One of the officials later testified: “He said he couldn’t believe it. You know, just these are fine upstanding guys. Just couldn’t be, you know.” He impressed on the president, “We are here to alert you. We think we’ve got something. We could be wrong, but we are telling you it’s time for you to move to protect yourself and the presidency.” And he urged the president to “get rid” of the staffers in question; the president responded, “‘Yeah, and I don’t think I should. I’ve got to think about this and that and a thousand other things.’”

The parallel here, of course, is Mike Flynn, whom Sally Yates recommended Trump fire, but whom Trump kept on for almost two weeks because he had ordered him to engage in the suspect behavior in question.

The post goes on to describe how Nixon got that top DOJ figure to provide information on a DOJ investigation investigating him personally.

In addition, on two occasions President Nixon asked Petersen for written summaries of aspects of the Justice Department’s investigation, including information regarding Haldeman and Ehrlichman: “[H]e asked for a full exposition. Having got into it this far, he felt he needed all the information, and I said I would undertake to . . . try to do that.” The president asked Petersen “to be kept informed of these things” but did not expect Petersen to divulge grand jury material. Petersen said that he ultimately determined that he could not provide any additional information at that time because it would have involved disclosing grand jury material; the president accepted that conclusion. In the following two weeks, however, Petersen did provide the president with “very general” information about the investigation, and the president on one occasion asked him, “‘Well, what else is new?’”

According to the president’s logs, between March 13, 1973, and April 30, 1973, President Nixon had seven meetings and initiated 19 phone calls with Petersen. These calls included four on April 15, 1973, after Kleindienst and Petersen met with the president to recommend that he fire Haldeman and Ehrlichman, including one call from 11:45 p.m. to 11:53 p.m. It is difficult to recount concisely the details of all of these communications to the extent that they are reflected in the information that we reviewed. Suffice it to say that these communications and other information in the attachments to the road map indicate that the Justice Department provided the White House with certain information about the course of the investigation on an ongoing basis.

The president, in short, was using a senior Justice Department official to gather intelligence about an ongoing criminal investigation in which he was personally implicated.

The post also explains how Nixon tried to influence Petersen to speed up the investigation and by offering promotions.

On at least one occasion, President Nixon commented to Petersen on the pace of the investigation. Petersen testified: “Well, there was some discussion about the need for, you know—‘Hurry up and get this over with.’ ‘Yes. We’ll make haste as reasonably as we can.’”

President Nixon also discussed Petersen’s future role with him, as they concurrently discussed a live investigative matter. Petersen testified: “there were statements, during the course of the President’s conversations with me, ‘Now, you’ll have to serve as White House counsel,’ or, ‘You’re the adviser to the President now,’ which I, frankly, thought was a little heavy handed.”

It lays out how Nixon asked the top DOJ official whether he, personally, was under investigation.

Similarly, the Watergate Task Force report referenced above states that on April 27, 1973, “the President asked Petersen if he had any information implicating the President himself. Petersen said he did not.” The president, in other words, was asking the head of the Criminal Division whether he was personally under investigation.

And then it shows how HJC included such abuses in its articles of impeachment.

How was all of this presidential contact with the Justice Department understood in the context of Watergate? Pretty harshly. For example, Article II, paragraph 5, of the House Judiciary Committee’s July 27, 1974, Articles of Impeachment states in part that President Nixon:

In disregard of the rule of law, . . . knowingly misused the executive power by interfering with agencies of the executive branch, including the Federal Bureau of Investigation, the Criminal Division, and the Office of Watergate Special Prosecution Force, of the Department of Justice, and the Central Intelligence Agency, in violation of his duty to take care that the laws be faithfully executed.

President Nixon resigned on Aug. 9, 1974, and was pardoned by President Gerald Ford on Sept. 8, 1974.

As I noted in the post where I drew these parallels, we’re not in 1974 anymore, and there are a lot of reasons to doubt Trump will be impeached for acting in a similar manner as Nixon did.

But James Baker definitely seems to think the parallels are there.

NYT Gives Trump His Excuse to Fire Rod Rosenstein

The NYT has an inflammatory article claiming that Rod Rosenstein floated recording the President and/or invoking the 25th Amendment in the days after Trump fired Jim Comey. Here’s how they describe their sources for that allegation.

Several people described the episodes, insisting on anonymity to discuss internal deliberations. The people were briefed either on the events themselves or on memos written by F.B.I. officials, including Andrew G. McCabe, then the acting bureau director, that documented Mr. Rosenstein’s actions and comments.

Not a single one of these people, by this description, was actually a witness to the episodes. Indeed, by description, none of them have even read the memos memorializing the events directly, but have instead simply been briefed secondhand.

Which means the NYT gives far, far greater weight in this story on people who are third-hand from the story than, for example, either Rod Rosenstein himself or a person who was present and issued a statement, who says this whole story takes a sarcastic comment and treats it as truth.

Rosenstein disputed this account.

“The New York Times’s story is inaccurate and factually incorrect,” he said in a statement. “I will not further comment on a story based on anonymous sources who are obviously biased against the department and are advancing their own personal agenda. But let me be clear about this: Based on my personal dealings with the president, there is no basis to invoke the 25th Amendment.”

A Justice Department spokeswoman also provided a statement from a person who was present when Mr. Rosenstein proposed wearing a wire. The person, who would not be named, acknowledged the remark but said Mr. Rosenstein made it sarcastically.

All that leads the NYT to the paragraph where they let a bunch of third hand sources to the events claim this is proof that Rosenstein was acting erratically when he made the decision to appoint Robert Mueller.

[T]hey called Mr. Rosenstein’s comments an example of how erratically he was behaving while he was taking part in the interviews for a replacement F.B.I. director, considering the appointment of a special counsel and otherwise running the day-to-day operations of the more than 100,000 people at the Justice Department.

Finally, in a week where Trump is desperate to release documents that will discredit the investigation closing in on himself, Andrew McCabe’s attorney, Michael Bromwich raises real questions about how the NYT might get memos McCabe wrote documenting Rosenstein’s behavior.

His memos have been turned over to the special counsel investigating whether Trump associates conspired with Russia’s election interference, Robert S. Mueller III, according to a lawyer for Mr. McCabe. “A set of those memos remained at the F.B.I. at the time of his departure in late January 2018,” the lawyer, Michael R. Bromwich, said of his client. “He has no knowledge of how any member of the media obtained those memos.”

The insinuation is clear: in an attempt to accuse Rosenstein of things known to set off the President (notably, being recorded), someone took memos McCabe wrote and read them to people who would then leak them to the NYT.

I hope the clicks and access are worth giving third hand sources more weight than actual witnesses.

Update: And Jim Jordan pipes up, sounding very much like he could be one of the sources for this story.

Trump Wants Voters — and Russia — to Know What the Russia Investigation Looked Like on August 1, 2017, not September 14, 2018

Between setting the first status hearing in Paul Manafort’s case as November 16, and setting the Mike Flynn sentencing for no earlier than November 28 (with the reports submitted on November 14), Mueller’s office seems to be suggesting they’ll wait until after election day to roll out the case they just added Trump’s Campaign Manager’s testimony to.

Not long after the release of the Flynn status hearing, Trump ordered the release of yet more stuff on the Steele dossier (the stuff in the first paragraph), plus unredacted texts on what the investigation looked like before August 1, 2017.

At the request of a number of committees of Congress, and for reasons of transparency, the President has directed the Office of the Director of National Intelligence and the Department of Justice (including the FBI) to provide for the immediate declassification of the following materials: (1) pages 10-12 and 17-34 of the June 2017 application to the FISA court in the matter of Carter W. Page; (2) all FBI reports of interviews with Bruce G. Ohr prepared in connection with the Russia investigation; and (3) all FBI reports of interviews prepared in connection with all Carter Page FISA applications.

In addition, President Donald J. Trump has directed the Department of Justice (including the FBI) to publicly release all text messages relating to the Russia investigation, without redaction, of James Comey, Andrew McCabe, Peter Strzok, Lisa Page, and Bruce Ohr.

Depending on how much the various parties put into these texts (I doubt Comey was much of a texter, for example), this will show unbelievable detail on how FBI runs counterintelligence investigations.

But it will also show voters what the investigation looked like before some key evidence came in, such as the communications surrounding the June 9 meeting and whatever the FBI seized from Paul Manafort’s home. Andrew McCabe was the last person in a key role on this investigation, and Christopher Wray took over that role on August 1.

It’s a desperate gambit, I think, throwing the last of the Steele dossier details out there, plus a picture of what the investigation looked like before the FBI learned that the President’s son entered into a conspiracy with Russians exchanging Hillary emails for sanction relief.

Which I take as yet more confirmation that that conspiracy — and whatever Manafort just gave the government — would (will, eventually) utterly damn the President.

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

Two Details about DOJ IG’s Leak Investigations, Plural, Including the One into Rudy Giuliani’s Sources

Amid the discussions about the NY office’s rampant leaks to Rudy Giuliani back in 2016, HuffPo confirmed that he was interviewed by two FBI Agents who, he said, were investigating on behalf of the IG.

Giuliani told HuffPost that he spoke with [James] Kallstrom as well as one other former FBI official he would not identify.

But Giuliani said he told the FBI agents who interviewed him that he had neither inside knowledge of the Clinton probe’s status nor advance warning of Comey’s Oct. 28 announcement. He was merely speculating that FBI agents were so upset by Comey’s earlier decision not to charge the Democratic nominee with any crimes that they would “revolt,” either by leaking damaging information about her or by resigning en masse.

“Did I get any leaks from the FBI? I said no,” Giuliani said, adding that the “surprise” that he promised in 2016 was a 20-minute national television ad he was urging Trump to buy to deliver a speech “hitting very hard on the Comey decision.”

[snip]

The agents did not record the interview and did not offer him the opportunity to review their report before they submitted it to their supervisor. One of Giuliani’s private security guards was also present, he said.

“They seemed like straight kids,” he said of the agents.

He added that he was unconcerned that his inquisitors were from the FBI, which conducts criminal investigations, rather than investigators from Horowitz’s office. “They definitely told me they were investigating for the IG,” Giuliani said. “I wasn’t surprised at all.”

I’d like to add two data points from Inspector General Horowitz’s testimony about leaks.

First, while it should have been obvious, this exchange with North Carolina Congressman Mark Walker (particularly Horowitz’ lovely agreement self-correction) made me realize that there are leak investigations, plural.

Horowitz: Looking at the charts here you can see that these are not, generally speaking, one call. So, I would leave it at that. We’re looking at the, that deeper question.

Walker: When you say you’re looking at it, does that mean there may be warrant–it may warrant more investigation for some of those who’ve been players in this situation?

Horowitz: There is — there are, there are active investigations ongoing by our office.

As I said, that should have been clear: the IG Report refers to them as investigations.

Chapter Twelve describes the text messages and instant messages expressing political views we obtained between certain FBI employees involved in the Midyear investigation and provides the employees’ explanations for those messages. It also briefly discusses the use of personal email by several FBI employees, and provides an update on the status of the OIG’s leak investigations.

[snip]

In addition to the significant number of communications between FBI employees and journalists, we identified social interactions between FBI employees and journalists that were, at a minimum, inconsistent with FBI policy and Department ethics rules. For example, we identified instances where FBI employees received tickets to sporting events from journalists, went on golfing outings with media representatives, were treated to drinks and meals after work by reporters, and were the guests of journalists at nonpublic social events. We will separately report on those leak investigations as they are concluded, consistent with the Inspector General (IG) Act, other applicable federal statutes, and OIG policy. [my emphasis]

As a footnote notes, we learned of one result — the Andrew McCabe investigation — when it got referred for criminal investigation.

Between two hearings and three committees, not a single person asked about the methodology of the link clusters I complained about the other day, but I wonder whether they each represent a separate leak investigation?

The far more interesting exchange, however, came yesterday, between Horowitz and Dianne Feinstein. After she laid out Rudy’s claims back in 2016, she asked Horowitz if he was investigating. As he did repeatedly when asked about Rudy, he deferred. But after she asked if such leaks were lawful, and then followed up about whether the investigation was ongoing, he said something interesting.

Horowitz: I’m not in a position at this point to speak to any investigative outcomes.

Feinstein: Do you believe disclosures of this sort, especially during an election are appropriate, are they lawful?

Horowitz: I don’t believe disclosures of this sort are appropriate at any point in time in a criminal investigation. I was a former prosecutor. Worked extensively with FBI Agents, in my prior capacity, and all of us would have thought that was entirely inappropriate.

Feinstein: The report says that you, and I quote, will separately report on those investigations as they are concluded. Does this mean that this leak investigation is ongoing?

Horowitz: Our work remains ongoing and when we can do that consistent with the IG Act, the law, policy, we will do so.

Horowitz suggested that the reason they haven’t reported out the conclusions to these other leak investigations, plural, including the Rudy one is (in part) because it would be inconsistent with the IG Act.

There are specific restrictions on the DOJ IG in the IG Act, but the key one — which permits the Attorney General to halt an investigation for a variety of reasons — itself requires notice to the two committees that were in today’s hearing.

Which leaves the general restrictions on disclosing information in the IG Act. In both the specific DOJ IG language and here, the key restriction is on disclosing information that is part of an ongoing criminal investigation.

(1) Nothing in this section shall be construed to authorize the public disclosure of information which is—
(A) specifically prohibited from disclosure by any other provision of law;
(B) specifically required by Executive order to be protected from disclosure in the interest of national defense or national security or in the conduct of foreign affairs; or
(C) a part of an ongoing criminal investigation.

(2) Notwithstanding paragraph (1)(C), any report under this section may be disclosed to the public in a form which includes information with respect to a part of an ongoing criminal investigation if such information has been included in a public record.

Which would say that, as with the firing of Comey (which Horowitz explained they’ve halted because an ongoing investigation is investigating it), DOJ IG might have been unable to further report the results of its leak investigations because it referred them, plural.

Mind you, that’s not what happened with Andrew McCabe. The DOJ IG completed its investigation, concluded McCabe lied, and then referred him. But it does seem likely that the hold-up on explaining all those link clusters has to do with criminal investigations.

The Most Irresponsible Thing Michael Horowitz Has Done as DOJ IG

As you likely know, I’m a big fan of Michael Horowitz. I think he has routinely discovered key aspects of DOJ and FBI’s behavior that needs improvement. I think he has stood up to FBI pushback reasonably well, if not always successfully. That other professional IGs look to him as their leader reflects the great respect he has earned among his peers.

I’ve already mentioned, in passing, that I think Horowitz’ treatment of the NY field office leaks in the IG Report on the Hillary investigation to be really problematic. The report, and the Andrew McCabe report before it, makes it very clear the rampant leaking from NY motivated a lot of the defensive behavior at FBI and DOJ (not to mention the decision to take an overt act in advance of the election in violation of standing policy). Among other passages, the report cites this very long response (it starts on report page 385 if you want to read the whole thing) from Loretta Lynch, describing how much hatred towards Hillary there was in NY.

I said, but this has become a problem. And he said, and he said to me that it had become clear to him, he didn’t say over the course of what investigation or whatever, he said it’s clear to me that there is a cadre of senior people in New York who have a deep and visceral hatred of Secretary Clinton. And he said it is, it is deep. It’s, and he said, he said it was surprising to him or stunning to him. You know, I didn’t get the impression he was agreeing with it at all, by the way. But he was saying it did exist, and it was hard to manage because these were agents that were very, very senior, or had even had timed out and were staying on, and therefore did not really feel under pressure from headquarters or anything to that effect. And I said, you know, I’m aware of that…. I said, I wasn’t aware it was to this level and this depth that you’re talking about, but I said I’m sad to say that that does not surprise me. And he made a comment about, you know, you understand that. A lot of people don’t understand that. You, you get that issue. I said, I get that issue. I said I’m, I’m just troubled that this issue, meaning the, the New York agent issue and leaks, I am just troubled that this issue has put us where we are today with respect to this laptop.

The report makes clear that the NY leaks played a key role in Comey’s disastrous decision to announce the reopening of the investigation into Hillary.

Comey denied that a fear of leaks influenced his decision to send the October 28 letter to Congress. However, other witnesses told us that a concern about leaks played a role in the decision. As Baker stated, “We were quite confident that…. [I]f we don’t put out a letter, somebody is going to leak it. That definitely was discussed….” Numerous witnesses connected this concern about leaks specifically to NYO and told us that FBI leadership suspected that FBI personnel in NYO were responsible for leaks of information in other matters. Even accepting Comey’s assertion that leaks played no role in his decision, we found that, at a minimum, a fear of leaks influenced the thinking of those who were advising him.

In spite of the magnitude that these leaks had, Horowitz did not seize the FBI phones of the presumed leakers to find out what kind of damning texts they sent among themselves. This is a point made by NYCSouthpaw in a thread the day the report came out. The asymmetric focus on bias against Trump and not against Hillary is a real problem with this report.

I’m sympathetic with the IG’s explanations for why it didn’t find the source of leaks and hopeful by its promise to follow up.

Against this backdrop, and as noted at the time the OIG announced this review, we examined allegations that Department and FBI employees improperly disclosed non-public information. We focused, in particular, on the April/May and October 2016 time periods. We have profound concerns about the volume and extent of unauthorized media contacts by FBI personnel that we have uncovered during our review. Our ability to identify individuals who have improperly disclosed non-public information is often hampered by two significant factors. First, we frequently find that the universe of Department and FBI employees who had access to sensitive information that has been leaked is substantial, often involving dozens, and in some instances, more than 100 people. We recognize that this is a challenging issue, because keeping information too closely held can harm an investigation and the supervision of it. Nevertheless, we think the Department and the FBI need to consider whether there is a better way to appropriately control the dissemination of sensitive information.

Second, although FBI policy strictly limits the employees who are authorized to speak to the media, we found that this policy appeared to be widely ignored during the period we reviewed.221 We identified numerous FBI employees, at all levels of the organization and with no official reason to be in contact with the media, who were nevertheless in frequent contact with reporters. The large number of FBI employees who were in contact with journalists during this time period impacted our ability to identify the sources of leaks. For example, during the periods we reviewed, we identified dozens of FBI employees that had contact with members of the media. Attached to this report as Attachments G and H are link charts that reflects the volume of communications that we identified between FBI employees and media representatives in April/May and October 2016.222

In addition to the significant number of communications between FBI employees and journalists, we identified social interactions between FBI employees and journalists that were, at a minimum, inconsistent with FBI policy and Department ethics rules. For example, we identified instances where FBI employees received tickets to sporting events from journalists, went on golfing outings with media representatives, were treated to drinks and meals after work by reporters, and were the guests of journalists at nonpublic social events. We will separately report on those investigations as they are concluded, consistent with the Inspector General (IG) Act, other applicable federal statutes, and OIG policy. [my emphasis]

Though I would like more details about what the IG discovered when it tried to chase down FBI leaks. We know they grilled McCabe (and discovered the source of one leak that damaged Hillary). Who else did they grill, and how many were in NY?

But here’s the part I find totally irresponsible.

This is, of course, one of the totally decontextualized link analyses the IG includes in the report to substantiate its claim that the FBI leaks like a sieve. By context, this one (of two) probably reflects communications from October, a period we know (from the McCabe report) that DOJ investigated heavily, based in part off an effort to identify Devlin Barrett’s sources and those of other journalists who created a panic right before the election. The IG has gone through the effort to identify (between the two link analyses, assuming no overlap of journalists, though I suspect there may be some) the FBI sources for seven different journalists. At least the two or three journalists with more sources likely recognize they’ve been burned, as might their sources.

But the IG released these two link analyses without telling us information that it surely knows. That is: how many members of these clusters were sitting in NY, and how many in DC? Is the prolific one here Barrett (which is virtually the only way the IG would be able to claim there were too many calls to ID sources for a story we know they examined closely)? If so, then the IG already knows whether it’s true that NY started leaking about both the Weiner emails and the Clinton Foundation investigation with the purpose of pressuring DC to make certain decisions.

That is, having done this analysis, the IG knows the answer to a critical question: did leakers in NY have a significant role in forcing decisions that played a key role the outcome of the election?

If most of these leakers are in NY, then the answer is clear. But the IG didn’t tell us that information.

Worse still, by withholding this information, the IG allowed these two pages to be used (as released) out of context. They were waved around on TV all morning, with the clear suggestion that each of these leaks reflected someone trying to do in Trump. But the reality is possibly (likely even!) precisely the opposite — that a good chunk of these leakers were trying to help Trump.

And they may well have succeeded.

Michael Horowitz owes us at least that context. And I hope Democrats on the Senate Judiciary Committee demand that answer when Michael Horowitz shows up to testify.

Update: One more question I’ve got — how DOJ IG decided to stop the analysis at October, and not at the election. After all, the most damaging fake news story of the election, IMO, was the false leak to Bret Baier, attributed to “two sources inside the FBI,” that Hillary was going to be indicted.

 

What Got Added to Sekulow’s List: Further Obstruction (Including Consideration of Firing Mueller), and “Collusion”

As bmaz noted, the NYT just published the most batshit letter, written on January 29 by John Dowd and Jay Sekulow, trying to dodge testimony for Trump. Here’s what, according to Dowd and Sekulow, Mueller had told them on January 8 he wanted to ask about.

  1. Former National Security Advisor Lt. Gen. Michael Flynn — information regarding his contacts with Ambassador Kislyak about sanctions during the transition process;
  2. Lt. Gen. Flynn’s communications with Vice President Michael Pence regarding those contacts;
  3. Lt. Gen. Flynn’s interview with the FBI regarding the same;
  4. Then-Acting Attorney General Sally Yates coming to the White House to discuss same;
  5. The President’s meeting on February 14, 2017, with then-Director James Comey;
  6. Any other relevant information regarding former National Security Advisor Michael Flynn;
  7. The President’s awareness of and reaction to investigations by the FBI, the House and the Senate into possible collusion;
  8. The President’s reaction to Attorney General Jeff Sessions’ recusal from the Russia investigation;
  9. The President’s reaction to Former FBI Director James Comey’s testimony on March 20, 2017, before the House Intelligence Committee;
  10. Information related to conversations with intelligence officials generally regarding ongoing investigations;
  11. Information regarding who the President had had conversations with concerning Mr. Comey’s performance;
  12. Whether or not Mr. Comey’s May 3, 2017, testimony lead to his termination;
  13. Information regarding communications with Ambassador Kislyak, Minister Lavrov, and Lester Holt;
  14. The President’s reaction to the appointment of Robert Mueller as Special Counsel;
  15. The President’s interaction with Attorney General Sessions as it relates to the appointment of Special Counsel; and,
  16. The statement of July 8, 2017, concerning Donald Trump, Jr.’s meeting in Trump Tower.

On March 5, Trump’s lawyers had a heated meeting with Mueller’s team, where Mueller floated a subpoena. In the wake of that meeting, Mueller provided a new list of topics of interest, which resulted in the Sekulow list leaked a month ago.

In the wake of the testy March 5 meeting, Mueller’s team agreed to provide the president’s lawyers with more specific information about the subjects that prosecutors wished to discuss with the president. With those details in hand, Trump lawyer Jay Sekulow compiled a list of 49 questions that the team believed the president would be asked,

Here’s that list, as presented by the NYT (there are fewer than the 49 described by the NYT because of how they combined questions). I’ve bolded the ones that appear to be entirely new in the later list.

  1.  What did you know about phone calls that Mr. Flynn made with the Russian ambassador, Sergey I. Kislyak, in late December 2016?
  2. What was your reaction to news reports on Jan. 12, 2017, and Feb. 8-9, 2017?
  3. What did you know about Sally Yates’s meetings about Mr. Flynn?
  4. How was the decision made to fire Mr. Flynn on Feb. 13, 2017?
  5. After the resignations, what efforts were made to reach out to Mr. Flynn about seeking immunity or possible pardon?
  6. What was your opinion of Mr. Comey during the transition?
  7. What did you think about Mr. Comey’s intelligence briefing on Jan. 6, 2017, about Russian election interference?
  8. What was your reaction to Mr. Comey’s briefing that day about other intelligence matters?
  9. What was the purpose of your Jan. 27, 2017, dinner with Mr. Comey, and what was said?
  10. What was the purpose of your Feb. 14, 2017, meeting with Mr. Comey, and what was said?
  11. What did you know about the F.B.I.’s investigation into Mr. Flynn and Russia in the days leading up to Mr. Comey’s testimony on March 20, 2017?
  12. What did you do in reaction to the March 20 testimony? Describe your contacts with intelligence officials.
  13. What did you think and do in reaction to the news that the special counsel was speaking to Mr. Rogers, Mr. Pompeo and Mr. Coats?
  14. What was the purpose of your calls to Mr. Comey on March 30 and April 11, 2017?
  15. What was the purpose of your April 11, 2017, statement to Maria Bartiromo?
  16. What did you think and do about Mr. Comey’s May 3, 2017, testimony?
  17. Regarding the decision to fire Mr. Comey: When was it made? Why? Who played a role?
  18. What did you mean when you told Russian diplomats on May 10, 2017, that firing Mr. Comey had taken the pressure off?
  19. What did you mean in your interview with Lester Holt about Mr. Comey and Russia?
  20. What was the purpose of your May 12, 2017, tweet?
  21. What did you think about Mr. Comey’s June 8, 2017, testimony regarding Mr. Flynn, and what did you do about it?
  22. What was the purpose of the September and October 2017 statements, including tweets, regarding an investigation of Mr. Comey?
  23. What is the reason for your continued criticism of Mr. Comey and his former deputy, Andrew G. McCabe?
  24. What did you think and do regarding the recusal of Mr. Sessions?
  25. What efforts did you make to try to get him to change his mind?
  26. Did you discuss whether Mr. Sessions would protect you, and reference past attorneys general?
  27. What did you think and what did you do in reaction to the news of the appointment of the special counsel?
  28. Why did you hold Mr. Sessions’s resignation until May 31, 2017, and with whom did you discuss it?
  29. What discussions did you have with Reince Priebus in July 2017 about obtaining the Sessions resignation? With whom did you discuss it?
  30. What discussions did you have regarding terminating the special counsel, and what did you do when that consideration was reported in January 2018?
  31. What was the purpose of your July 2017 criticism of Mr. Sessions?
  32. When did you become aware of the Trump Tower meeting?
  33. What involvement did you have in the communication strategy, including the release of Donald Trump Jr.’s emails?
  34. During a 2013 trip to Russia, what communication and relationships did you have with the Agalarovs and Russian government officials?
  35. What communication did you have with Michael D. Cohen, Felix Sater and others, including foreign nationals, about Russian real estate developments during the campaign?
  36. What discussions did you have during the campaign regarding any meeting with Mr. Putin? Did you discuss it with others?
  37. What discussions did you have during the campaign regarding Russian sanctions?
  38. What involvement did you have concerning platform changes regarding arming Ukraine?
  39. During the campaign, what did you know about Russian hacking, use of social media or other acts aimed at the campaign?
  40. What knowledge did you have of any outreach by your campaign, including by Paul Manafort, to Russia about potential assistance to the campaign?
  41. What did you know about communication between Roger Stone, his associates, Julian Assange or WikiLeaks?
  42. What did you know during the transition about an attempt to establish back-channel communication to Russia, and Jared Kushner’s efforts?
  43. What do you know about a 2017 meeting in Seychelles involving Erik Prince?
  44. What do you know about a Ukrainian peace proposal provided to Mr. Cohen in 2017?

The additions are instructive. The one new bit on Flynn involves Trump’s offer of a pardon.

The new bits on obstruction pertain to ongoing efforts to obstruct the investigation, including consideration of firing Mueller and ongoing efforts to discredit Jim Comey and Andrew McCabe.

But the most interesting are the 14 or so questions on Trump’s involvement in and awareness of election tampering. Given the timing of Rick Gates’ plea on February 23 and the subsequent focus on Roger Stone and Michael Cohen, I’m particularly interested in the addition of questions involving both of them (as well as the question about Manafort’s efforts to get Russia’s help).

Trump would have been far better off having an interview in January. Because the questions are getting harder — and Mueller’s interest in his involvement in “collusion” is getting more apparent.

The Sekulow Questions, Part Six: Trump Exacerbates His Woes

In this series, it feels like time is marked by big Russian meetings and key firings.

I’m talking, of course, about my efforts to use the Mueller questions as imagined by Jay Sekulow to map out what the structure of the investigation (at least as it pertains to Trump personally) might be. Thus far, I’ve shown:

  • Russians, led by the Aras Agalarov and his son, cultivated Trump for years by dangling two things: real estate deals and close ties with Vladimir Putin.
  • During the election, the Russians and Trump appear to have danced towards a quid pro quo agreement, with the Russians offering dirt on Hillary Clinton in exchange for a commitment to sanctions relief, with some policy considerations thrown in.
  • During the transition period, Trump’s team took a series of actions that moved towards consummating the deal they had made with Russia, both in terms of policy concessions, particularly sanctions relief, and funding from Russian sources that could only be tapped if sanctions were lifted. The Trump team took measures to keep those actions secret.
  • Starting in January 2017, Trump came to learn that FBI was investigating Mike Flynn. His real reasons for firing Flynn remain unreported, but it appears he had some concerns that the investigation into Flynn would expose him personally to investigation.
  • After a failed attempt to quash the investigation into his Administration by firing Flynn, Trump grew increasingly angry that Jim Comey wouldn’t provide a quick exoneration without conducting an investigation first, leading to his firing.

May 10, 2017: What did you mean when you told Russian diplomats on May 10, 2017, that firing Mr. Comey had taken the pressure off?

Trump fired Comey just in time to report to Russian Ambassador Sergey Kislyak and Foreign Minister Sergey Lavrov in a meeting the next day that doing took the pressure off he felt because of Russia.

“I just fired the head of the F.B.I. He was crazy, a real nut job. I faced great pressure because of Russia. That’s taken off.” Remarkably, he also felt the need to reassure the Russians that, “I’m not under investigation.”

The reports that Trump’s lawyers need to have clearance because of the inclusion of this meeting in the list of questions suggests Mueller wants to learn more about the meeting beyond the public reports. That may include Trump’s sharing of classified information provided by the Israelis.

May 11, 2017: What did you mean in your interview with Lester Holt about Mr. Comey and Russia?

The day after meeting with the Russians, he told Lester Holt he was going to fire Comey regardless of what Rod Rosenstein recommended. [These are excerpts and a little rough; here’s a partial transcript that leaves out a lot of the Russian comments]

He’s a showboat, he’s a grand-stander, the FBI has been in turmoil, you know that. I know that. Everybody knows that. You take a look at the FBI a year ago, it was in virtual turmoil. Less than a year ago. It hasn’t recovered from that.

[in response to a question about Rosenstein’s recommendation] What I did was I was going to fire Comey. My decision. I was going to fire Comey. There’s no good time to do it, by the way. I was going to fire regardless of recommendation. [Rosenstein] made a recommendation, he’s highly respected. Very good guy, very smart guy. The Democrats like him. The Republicans like him. But regardless of recommendation I was going to fire Comey. Knowing there was no good time to do it.

And in fact when I decided to just do it, I said to myself, I said you know, this Russia thing with Trump and Russia is a made-up story, it’s an excuse by the Democrats for having lost an election that they should have won. And the reason they should have won it is the electoral college is almost impossible for a Republican to win. Very hard. Because you start off at such a disadvantage. So everybody was thinking, they should have won the election. This was an excuse for having lost an election.

I just want somebody that’s competent. I’m a big fan of the FBI. I love the people of the FBI.

As far as I’m concerned, I want that [investigation] to be absolutely done properly. When I did this now, I said I’ll probably, maybe confuse that. Maybe I’ll expand that, you know, lengthen the time because it should be over with, in my opinion, should have been over with a long time ago. ‘Cause all it is, is an excuse but I said to myself, I might even lengthen out the investigation, but I have to do the right thing for the American people.

[in response to question about why he put he was not under investigation in his termination letter] Because he told me that, I mean he told me that. I’ve heard that from others. I had a dinner him, he wanted to have dinner because he wanted to stay on, we had a very nice dinner at the White House very early on. [He asked to have dinner?] A dinner was arranged. I think he asked for the dinner. And he wanted to stay on as the FBI head. And I said, I’ll consider, we’ll see what happens. We had a very nice dinner. And at that time he told me you’re not under investigation. I knew anyway. First of all, when you’re under investigation, you’re giving all sorts of documents and everything. I knew I wasn’t under — and I heard it was stated at the committee, at some committee level, number one. Then during the phone call he said it, then during another phone call he said it. He said it at dinner, and then he said it twice during phone calls.

In one case I called him, in one case he called me.

I actually asked him, yes. I said, if it’s possible, would you let me know, am I under investigation? He said you are not under investigation. All I can tell you is that I know that I’m not under investigation. Personally. I’m not talking about campaigns, I’m not talking about anything else. I’m not under investigation.

[did you ask him to drop the investigation] No. Never. I want the investigation speeded up. Why would we do that? Iw ant to find out if there was a problem with an election having to do with Russia, or anyone else, any other country, I want it to be so strong and so good.

I want somebody that’s going to do a great job.

I think that looking into me and the campaign, I have nothing to do, his was set up by the Democrats. There’s no collusion between me and my campaign and the Russians. The other things is the Russians did not affect the vote.

If Russia hacked, If Russia had to anything to do with our election, I want to know about it. If Russia or anybody elseis trying to interfere with our elections I want to make sure that will never ever happen

[wiretapping] I was surprised [Comey said no spying] but I wasn’t angry. There’s a big thing going on right now, spying, to me that’s the big story.

I want a great FBI Director. I expect that [they will continue investigation].

[Flynn’s access to secrets] My White House Counsel it did not sound like an emergency. She didn’t make it sound that way either in the hearings the other day. It didn’t sound like it had to be done immediately. This man has served for many years. He’s a general. In my opinion a very good person. It would be very unfair to hear from someone we don’t even know to immediately run out and fire a general. We ultimately fired, but we fired for a different reason. Everything plays into it. We fired him because he said something to the Vice President that wasn’t true. He had clearance from the Obama Administration. I think it’s a very unfair thing that the media doesn’t talk about that.

I just sent a letter from one of the most prestigious law firms in the country that I have nothing to do with Russia, I have no investments in Russia, I don’t have property in Russia. I’m in total compliance in every way.

I had the Miss Universe Pageant in Moscow a long time ago. I have a certified letter. I’m not just saying that. I assume he’s gonna give the letter out. No loans, no nothing.

I never thought about it [optics of Lavrov meeting]. What difference does it make.

When I spoke with Putin he asked me whether I’d see Lavrov. I think we had a great discussion having to do with Syria, having to do with the Ukraine. Maybe that discussion will lead to peace.

Ultimately, Trump said several things here (aside from putting into the public record the meetings with Comey, though he got details that can almost certainly be proved wrong wrong). He differentiated between an investigation into himself personally and others, denied asking to halt the investigation into Flynn, provided his bogus self-exoneration claim of not having business ties with Russians. He also reiterated the claim he had been spied on.

May 12, 2017: What was the purpose of your May 12, 2017, tweet?

By this point, Trump and Comey were in a war of credibility. And Trump suggested that he might have tapes of his meetings with Comey.

The White House answers about whether there were tapes have dodged some, so it’s possible.

May 17, 2017: What did you think and what did you do in reaction to the news of the appointment of the special counsel?

In the wake of reporting that Comey had documented a request from Trump to halt the investigation into Flynn, on May 17, Rod Rosenstein appointed Robert Mueller to investigate any links between the Russian government and individuals associated with Trump’s campaign and “any matters that arose or may arise directly from the investigation.” The latter phrase made it clear that by firing Comey, Trump had put himself under investigation for obstructing the investigation in chief.

In the middle of a meeting with Sessions, Don McGahn, Mike Pence, and several others on replacing Comey, Rosenstein called McGahn and told him he had appointed Mueller. Trump took it out on Sessions, calling him an idiot and telling him he should resign. Sessions left and sent a resignation letter, but Pence, Steve Bannon, and Reince Priebus convinced him to hold off on accepting it. This piece describes Priebus’ side of that story.

May 31, 2017: Why did you hold Mr. Sessions’s resignation until May 31, 2017, and with whom did you discuss it?

Mueller has received testimony from most of the people who counseled Trump not to fire Sessions, including McGahn, Bannon, and Priebus (but not Pence). He has also gotten Sessions’ testimony on this point.

I’m particularly interested in whether Trump consulted with people not listed in the NYT story on this, such as Jared Kushner and Stephen Miller (who had counseled him to fire Comey in the first place). I also suspect that Trump had already reached out Flynn by this point to talk pardons.

June 8, 2017: What did you think about Mr. Comey’s June 8, 2017, testimony regarding Mr. Flynn, and what did you do about it?

On June 8, Comey testified to SSCI. The night before, he released a statement that reviewed much of what appeared in his memos. The hearing consisted of senators from each party trying to spin Comey’s report of being asked to drop the Flynn investigation, with little news  — though Comey did make clear the investigation covered false statements.

BLUNT: On the Flynn issue specifically, I believe you said earlier that you believe the president was suggesting you drop any investigation of Flynn’s account of his conversation with the Russian ambassador. Which was essentially misleading the vice president and others?

COMEY: Correct. I’m not going to go into the details but whether there were false statements made to government investigators, as well.

Comey refuted Trump’s claim that he didn’t ask him to stop the investigation into Flynn.

KING: In his press conference May 18th, the president responded, quote, no, no, when asked about asking you to stop the investigation into general Flynn. Is that a true statement?

COMEY: I don’t believe it is.

Comey said he viewed the Flynn investigation and the Russian one as touching, but separate, though raised the possibility of flipping Flynn.

KING: Back to Mr. Flynn. Would the — would closing out the Flynn investigation have impeded the overall Russian investigation?

COMEY: No. Well, unlikely, except to the extent — there is always a possibility if you have a criminal case against someone and squeeze them, flip them and they give you information about something else. But I saw the two as touching each other but separate.

Comey also revealed that he had shared memos memorializing his conversations with Trump with a friend.

BLUNT: You said something earlier and I don’t want to fail to follow up on, you said after dismissed, you gave information to a friend so that friend could get that information into the public media.

COMEY: Correct.

BLUNT: What kind of information was that? What kind of information did you give to a friend?

COMEY: That the — the Flynn conversation. The president had asked me to let the Flynn — forgetting my exact own words. But the conversation in the Oval Office.

Much of the hearing covered Sessions’ non-involvement. Comey deferred a number of questions to the closed session.

Trump used the Comey hearing — and his confirmation that at the time he left the president wasn’t under investigation — to have Marc Kasowitz make a statement claiming Trump never impeded the investigation and never demanded loyalty.

I am Marc Kasowitz, Predisent Trump’s personal lawyer.

Contrary to numerous false press accounts leading up to today’s hearing, Mr. Comey has now finally confirmed publicly what he repeatedly told the President privately: The President was not under investigation as part of any probe into Russian interference. He also admitted that there is no evidence that a single vote changed as a result of any Russian interference.

Mr Comey’s testimony also makes clear that the President never sought to impede the investigation into attempted Russian interference in the 2016 election, and in fact, according to Mr. Comey, the President told Mr. Comey “it would be good to find out” in that investigation if there were “some ‘satellite’ associates of his who did something wrong.” And he did not exclude anyone from that statement. Consistent with that statement, the President never, in form or substance, directed or suggested that Mr. Comey stop investigating anyone, including suggesting that that Mr. Comey“let Flynn go.” As he publicly stated the next day, he did say to Mr. Comey, “General Flynn is a good guy, he has been through a lot” and also “asked how is General Flynn is doing.”

Admiral Rogers testified that the President never “directed [him] to do anything . . . illegal, immoral, unethical or inappropriate” and never “pressured [him] to do so.” Director Coates said the same thing. The President likewise never pressured Mr. Comey. .

The President also never told Mr. Comey, “I need loyalty, I expect loyalty” in form or substance. Of course, the Office of the President is entitled to expect loyalty from those who are serving in an administration, and, from before this President took office to this day, it is overwhelmingly clear that there have been and continue to be those in government who are actively attempting to undermine this administration with selective and illegal leaks of classified information and privileged communications.

Kasowitz also accused Comey of leaking in order to lead to a special counsel investigation.

Mr. Comey has now admitted that he is one of these leakers. Today, Mr. Comey admitted that he unilaterally and surreptitiously made unauthorized disclosures to the press of privileged communications with the President. The leaks of this privileged information began no later than March 2017 when friends of Mr. Comey have stated he disclosed to them the conversations he had with the President during their January 27, 2017 dinner and February 14, 2017 White House meeting. Today, Mr. Comey admitted that he leaked to friends his purported memos of these privileged conversations, one of which he testified was classified. He also testified that immediately after he was terminated he authorized his friends to leak the contents of these memos to the press in order to “prompt the appointment of a special counsel.” Although Mr. Comey testified he only leaked the memos in response to a tweet, the public record reveals that the New York Times was quoting from these memos the day before the referenced tweet, which belies Mr. Comey’s excuse for this unauthorized disclosure of privileged information and appears to entirely retaliatory. We will leave it the appropriate authorities to determine whether this leaks should be investigated along with all those others being investigated. .

In sum, it is now established that there the President was not being investigated for colluding with the or attempting to obstruct that investigation. As the Committee pointed out today, these important facts for the country to know are virtually the only facts that have not leaked during the long course of these events.

This sort of kicked off the official campaign to discredit Comey and those who would back his story.

June 12, 2017: What did you think and do in reaction to the news that the special counsel was speaking to Mr. Rogers, Mr. Pompeo and Mr. Coats?

Public reports date Rogers and Coats’ interviews with Mueller to the week of June 12, 2017, so Pompeo’s must have been around that same time. Rogers and Coats, at least, testified that Trump tried to get them to state publicly that there was no collusion. They said the interaction was odd and uncomfortable, but that he did not order them to interfere.

Clearly, Trump responded to public reports of their being called as witnesses, though we don’t know what the response was. It’s possible that’s when Trump threatened to fire Mueller, only to back off when Don McGahn threatened to quit.

July 7, 2017: What involvement did you have in the communication strategy, including the release of Donald Trump Jr.’s emails?

I’ve laid out that I believe the evolving June 9 story is a limited hangout orchestrated by Agalarov lawyer Scott Balber. The strategy would have begun when Jared Kushner wrestled with the need to disclose the meeting, both in response to congressional investigations and for his clearance. Manafort, too, turned over emails backing the event about a month before the story came out publicly. This post talks about the response the weekend of the G-20 in Hamburg, including Ivanka sitting in on a meeting so Trump could strategize, and Hope Hicks suggesting the emails would never come out.

As a reminder, on the same day Trump had a second hour long meeting with Putin, he dictated Putin’s propaganda line that the meeting pertained to adoptions. Importantly, he hid what I’ve suggested was the quo in the quid pro quo, sanctions relief. Mueller undoubtedly would like to know if Putin helped him come up with that message, which would be really damning.

Mueller also wants to know about the decision to leak Don Jr’s emails. Bannon suspects that a Jared aide leaked the emails (his then lawyer Jamie Gorelick would cut back her work with him shortly thereafter). But remember: in a DM, Assange proposed that he give Wikileaks the email.

There’s clearly far more back story to the leaked email we don’t know yet.

If Trump’s involvement here involves coordination with Russians (like the Agalrovs, to say nothing of Putin) or Assange, it would provide damning evidence not of obstruction, but of collusion, an effort to coordinate a story about a key meeting. Trump’s lawyers have always suggested questions about Trump’s role in this statement are improper, which is itself a telling indicator that they don’t understand (or want to spin) the risk of the original June 9 meeting.

July 20, 2017: After the resignations, what efforts were made to reach out to Mr. Flynn about seeking immunity or possible pardon?

Mike Flynn tried to get Congressional immunity in March 2017, with Trump’s backing the effort in a tweet.

Mueller’s question seems to suggest even at that earlier period, someone from Trump’s camp reached out and discussed immunity with Flynn. Shortly before April 25, Trump also sent Flynn a message to “stay strong.” (h/t TC)

On July 20, the WaPo reported that Trump’s team was researching pardons. The NYT report first revealing that Trump offered pardons to Mike Flynn (and Manafort, who is curiously not mentioned in this question) describes it happening after John Dowd took over, in the wake of the revelation of the June 9 meeting and the Kasowitz firing. Dowd denied any such thing was happening on July 21, which is probably a good sign such discussions were taking place.

July 25, 2017: What was the purpose of your July 2017 criticism of Mr. Sessions? What discussions did you have with Reince Priebus in July 2017 about obtaining the Sessions resignation? With whom did you discuss it?

In late July, 2017, Trump accused Sessions of several sins: failing to crack down on leaks, failing to prosecute Hillary, and failing to fire Andrew McCabe. That must be the same time when Trump ordered Priebus to get Sessions’ resignation, which he dodged by stalling, which probably answers the “what was the purpose” question: to lay predicate to fire Sessions.

I’m particularly interested in the question about who Trump discussed this with, particularly given the provocative timing — the days before George Papadopoulos’s July 26 arrest and Paul Manafort’s July 27 condo search (using a warrant that, unlike a warrant from a May 27 storage unit search, invoked the June 9 meeting). It’s possible Trump had advance knowledge of this stuff (which would be alarming), but likely it’s a coincidence.

In any case, Mueller clearly has reason to believe Trump learned something about the investigation and discussed it with people that led him to try, again, to stop it by firing someone.

What was the purpose of the September and October 2017 statements, including tweets, regarding an investigation of Mr. Comey?

On September 1, Trump responded to reports that because Comey had a declination written before interviewing Hillary, he rigged the outcome of the investigation. In mid-October, in the wake of the Manafort indictment and George Papadopoulos plea, Trump returned to this attack. Rudy Giuliani has renewed this attack in recent days, which is presumably an attempt to undercut Comey’s credibility.

What discussions did you have regarding terminating the special counsel, and what did you do when that consideration was reported in January 2018?

The NYT report that Trump tried to fire Mueller in June 2017 made it clear that Mueller had received testimony about it (presumably from McGahn and others). Clearly, Mueller has reason to know that Trump did something else in response. Note that this report came out in the wake of the Michael Wolff book, which would give Mueller an excuse to call several of the relevant witnesses (such as Mark Corallo and Steve Bannon) as witnesses. This time period also closely follows the increasingly aggressive response in Congress.

What is the reason for your continued criticism of Mr. Comey and his former deputy, Andrew G. McCabe?

The assumption is that Trump continues to attack Comey and McCabe because doing so might harm their credibility with regards to an obstruction investigation, and that’s surely true (made all the worse by McCabe’s firing and his criminal referral).

But I increasingly believe (particularly given that the other contemporaneous witnesses to Comey’s concerns, like James Baker, are not named) that’s not the only reason Trump is doing this. My guess is it’s an attempt to undermine their decision to investigate Flynn. We now know, for example, that McCabe set up the interview with Flynn on Comey’s direction. So in addition to discrediting key witnesses against him, it seems possible that Trump is also trying to discredit the decision, at a time when  FBI was about to close a counterintelligence investigation into Flynn, to instead interview him, leading to the exposure of Trump’s efforts to undermine US policy during the transition period.

RESOURCES

These are some of the most useful resources in mapping these events.

Mueller questions as imagined by Jay Sekulow

CNN’s timeline of investigative events

Majority HPSCI Report

Minority HPSCI Report

Trump Twitter Archive

Jim Comey March 20, 2017 HPSCI testimony

Comey May 3, 2017 SJC testimony

Jim Comey June 8, 2017 SSCI testimony

Jim Comey written statement, June 8, 2017

Jim Comey memos

Sally Yates and James Clapper Senate Judiciary Committee testimony, May 8, 2017

NPR Timeline on Trump’s ties to Aras Agalarov

George Papadopoulos complaint

George Papadopoulos statement of the offense

Mike Flynn statement of the offense

Internet Research Agency indictment

Text of the Don Jr Trump Tower Meeting emails

Jared Kushner’s statement to Congress

Erik Prince HPSCI transcript

THE SERIES

Part One: The Mueller Questions Map Out Cultivation, a Quid Pro Quo, and a Cover-Up

Part Two: The Quid Pro Quo: a Putin Meeting and Election Assistance, in Exchange for Sanctions Relief

Part Three: The Quo: Policy and Real Estate Payoffs to Russia

Part Four: The Quest: Trump Learns of the Investigation

Part Five: Attempting a Cover-Up by Firing Comey