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Andrew Miller Was [Probably] Questioned about Someone He Knew Under a Different Name

Among the FBI 302s BuzzFeed just liberated appears to be the 302 from the original FBI interview of Andrew Miller. The date matches, the interview was conducted (as Miller’s was) by agents showing up to serve a subpoena, the location is redacted, the name is six characters, and the interview closely focuses on Roger Stone. In this post, I will generally use “Miller” as the interviewee here, with the understanding that identification of this as him is not 100%.

The interview confirms something I have long suspected: Miller was a witness to details about a person he did not know by proper name. This was the last person the FBI agents asked Miller about (see below for the others). The 302 describes that Miller, “did not immediately recognize the name [redacted] but after discussion, determined he knew the individual in question as [redacted].” After two and a half redacted paragraphs, the 302 records that Miller “had never met [redacted] but had seen a photo of him.” The rest of the discussion of this person is redacted.

Given everything else we know about Miller’s testimony — and how, after extensive discussions with Stone in the wake of this interview — Miller fought his subpoena to the DC Circuit, it is highly likely that Miller knows that Stone met this person at the RNC, where Miller was running Stone’s schedule. Shortly after Stone met with this person, at least according to Michael Cohen, Stone gave Trump advance knowledge that the DNC emails would be dropping days later.

That’s the most interesting detail from this interview, but 302 has other key details.

After two paragraphs laying out whom Miller worked for, his interview included the following:

  • Almost 20 paragraphs describing his relationship with Stone, virtually all of it redacted under [dubious] privacy redactions. The unredacted bits describe:
    • Miller hadn’t seen Stone for three or four weeks and didn’t know whether he was in NY or FL
    • Stone was not a tech guy
    • Stone ran his own Twitter account
    • Stone traveled to NYC for several days every week
    • A claim he had never been to Stone’s current home
    • A (false) claim that he had done “nothing really” for Stone over the previous two years, as well as an explanation that no one continued to work for Stone once they had a family because Stone demanded too much time
  • About ten paragraphs commenting on Stone’s relationship with Trump, including the following claims, most dubious:
    • Miller did not think Stone “was a lawbreaker, nor would he break the law for Trump”
    • Stone mostly talked about Hillary incessantly because he was selling a book
    • Miller did not really remember talking to Stone about the DNC hack
    • Miller spoke to Stone about the media coverage of him since the election
    • Stone was “all about Twitter,” and focused on the retweets he got, but did not pay for them (this conflicts with details in the Facebook takedown of Stone’s accounts and other testimony)
    • Miller had not been in contact with any Russians himself
  • Three paragraphs about Alex Jones (who was raised significantly before Corsi in this interview), including:
    • Miller didn’t like Jones
    • Miller thought Stone worked there for the money and the reach to areas of the country that “the left has forgotten”
    • Miller didn’t know who did InfoWar’s IT and digital strategy, but it was better than Stone’s because they had more money
  • Discussions of two people whose names are redacted (one of these is likely Sam Nunberg):
    • Of the first person, Miller suggested that Stone took credit for things he didn’t do and lied to people to get credibility with them
    • Of the second, Miller described he and Stone having a “love-hate” relationship
  • A paragraph about Michael Caputo, describing their relationship as “complicated”
  • Just one paragraph about Jerome Corsi, though Miller appears to have testified that he wasn’t aware of what the two were up to
  • Miller also claimed not to know if Stone used encrypted apps to communicate (the record actually shows he started using them more later in 2016) and made a false claim that he and Stone primarily communicated via email (Miller turned over texts between him and Stone, and Stone was an avid texter, though all of his texts from 2017 disappeared)

Miller was given the opportunity to correct any lies he told in the interview, but he chose not to.

Roger Stone Assistant Andrew Miller Fought His Subpoena Far More Aggressively than His Former Boss

I want to look at a notable asymmetry in the way Roger Stone and his former assistant Andrew Miller responded to being subpoenaed by Robert Mueller’s team.

As I noted in an update to this post, in November 2018, Mueller’s team subpoenaed Stone after Chuck Ross published texts Stone gave the journalist so he would publish a bullshit claim that Randy Credico was Stone’s back channel.

Pointing to the text messages, Stone asserts that Credico “lied to the grand jury” if he indeed denied being Stone’s contact to Assange.

“These messages prove that Credico was the source who told me about the significance of the material that Assange announced he had on Hillary. It proves that Randy’s source was a woman lawyer,” Stone told TheDCNF.

Ross published five sets of texts, four of which he clearly attributed to Stone.

The text showing Credico reminding Stone that he had an earlier source by itself actually undermined Stone’s claim to HPSCI that Credico was his source. Emails FBI already had in possession showed Credico’s comms with Stone post-dated Stone’s public claims to have had an intermediary to Julian Assange.

By providing texts to Ross Stone had told HPSCI he didn’t have, he provided all the evidence needed to be found guilty of one charge in his eventual indictment. In addition, unbeknownst to Stone, Credico didn’t have some of his own texts, including some of the ones that Stone had retained. So by providing them to Ross, Stone made it clear he had texts that were otherwise unavailable.

The fact that Stone had those texts, from a phone he stopped using in 2016, also contributed to the probable cause that the phone would be in one of Stone’s homes when the FBI searched them.

The affidavit supporting the search of Stone’s homes makes it clear that Stone did comply when the FBI subpoenaed him for texts he was freely willing to share with Chuck Ross, though the description of it as “recent[]” may suggest that Stone stalled a bit.

The government has only recently obtained text messages between Stone and Credico during some period of the campaign in 2016 from Stone’s subpoena production, issued after media reports in November 2018 stated that Stone’s attorneys were able to extract text messages between Stone and Credico from a phone Stone stopped using in 2016.

Still, Stone complied with a Mueller subpoena with nary a public squawk.

Compare that with a new detail the files released last week make clear about Andrew Miller’s year long fight of a Mueller subpoena. We knew that, after Miller agreed to an FBI interview with no counsel on May 9, 2018, he then commenced a year-long subpoena fight to avoid testifying before the grand jury, with an inordinate amount of legal fuckery. We knew that the very last thing that occurred under Mueller’s authority was the final negotiation for Miller’s testimony — though the grand jury Miller appeared before was actually not Mueller’s, suggesting Miller’s testimony was needed for the ongoing investigations still hidden in court filings released last week. (Prosecutors subpoenaed Miller to be available for Stone’s trial but never called him, so his testimony did pertain in some way to the lies Stone told HPSCI.)

What we didn’t know before last week is how much Stone communicated with Miller while the former assistant launched this subpoena challenge. After he met with the FBI, an August 2018 warrant makes clear, Stone and Miller spoke by phone. They did the next day too, when Mueller subpoenaed Miller. Miller stalled in a variety of ways for a month. Then, on June 14, after Mueller moved to force Miller to testify, Stone and Miller emailed five times. That’s the period when Miller got a new lawyer, Paul Kamenar, who led Miller’s subpoena challenge to the Supreme Court, all the while claiming Miller was challenging the subpoena it for libertarian reasons. Between May 23, 2018 and August 3, 2018, as that challenge was proceeding, Stone and Miller exchanged over 100 emails. (Chief DC Judge Beryl Howell, who authorized the August 3 warrant, had just ordered Miller to testify as soon as possible, which led directly to his appeal.)

The difference in response to the subpoena may simply reflect that Miller launched the challenge to Mueller’s authority that Stone otherwise might have made. Or it may reflect that there’s no defense to a subpoena if you’re selectively feeding the subpoenaed materials to the press.

But it also might suggest that Stone viewed whatever testimony Miller provided to be more damning to Stone than turning over texts that would prove that Stone’s claim that Credico was his back-channel to Assange was bullshit.

On April 24, Kamenar filed a notice of appearance as Stone’s lawyer in his prosecution and will represent Stone for the appeal.

The Roger Stone Prosecution Was One Step in an Ongoing Investigation

I’ve spent the last few days going through the warrants released the other day in detail. This post attempts to summarize what they show about the Stone investigation.

First, understand the scope of this release. According to a filing the government submitted a year ago, they considered the media request to apply to, “warrants to search Stone’s property and facilities [and] other warrants that were executed as part of the same line of investigation” obtained under both Rule 41 and Stored Communication Act.  It does not include warrants from other lines of investigation that happened to yield information on Stone. That said, there is good reason to believe there are either filings that were entirely withheld, or that DOJ’s interpretation of what constitutes the “same line of investigation” is fluid.

In his order to release the files, Judge Christopher Cooper said that the individual redactions hide, “the private information of non-parties, financial information, and non-public information concerning other pending criminal investigations.” In the hearing on the release, the media coalition suggested that people who had testified at Stone’s trial should not be protected under the guise of privacy, and that seems to have been the standard adopted on redactions of names. In general, then, this post assumes that the redaction of names (such as Ted Malloch) protects the privacy of people who did not testify at trial, but the redaction of entire paragraphs (such as 7 paragraphs of boilerplate describing why Malloch was suspected to be involved) was done to protect ongoing investigations. In the list of warrants below, I’ve marked with an asterisk those that — either because they weren’t for Stone’s property or because they didn’t yield evidence relevant to the the obstruction charges he was prosecuted for — were not provided to Stone in discovery; I’ve based that on the list in this order (see footnote 2).

This investigation may well have started as a box-checking exercise, effectively checking whether John Podesta’s allegations that Roger Stone had learned of the hack targeting Hillary’s campaign manager ahead of time. It appears that Mueller’s team slowly came to believe that Roger Stone had gotten advance notice — and possibly advanced possession — of the Podesta email drop. Along the way, it ruled out one after another theory of how he did so.

Two of the most fascinating applications — one pertaining to an Israeli contact and another regarding someone apparently introduced to Stone by Charles Ortel — seem to have fully (the Israeli lead) or partly (the Ortel one) fizzled. (I base that on whether communications described in the affidavits continue to show up in later applications and whether entire paragraphs remain redacted.)

But the government still seems to believe that Stone worked with Corsi and Malloch on these issues. The government is obviously still trying to figure out whether the rat-fuckers and hoaxsters managed to optimize the release of the Podesta emails on October 7, 2016 to drown out the Access Hollywood drop. Mueller’s uncertainty on this point is something explained in redacted sections of the Mueller Report.

Along the way, Mueller developed two side prongs to the investigation: an examination of how Stone used social media to advertise WikiLeaks documents (it’s likely that investigation came to include ads that may have replicated themes being pushed by Russia and may have involved improper collaboration with the campaign), and the obstruction and witness tampering investigation Stone was prosecuted for.

More interesting still, in fall 2018, Mueller’s team started pursuing several leads (including the Ortel one), most of which — if the rule that entirely redacted paragraphs reflect ongoing investigation — continue to be investigated. Indeed, it appears that the prosecution of Stone for obstruction served partly as a means to initiate a prosecution against him, possibly entice him to flip against Trump or others, but perhaps mainly to obtain Stone’s devices in an attempt to get texts from 2016 to 2017 he had deleted, as well as the content of the encrypted communications he had sent using those devices. That is, the search, arrest, and prosecution of Stone appears to have been just one step in an ongoing investigation, an investigation that may be targeting others (including Julian Assange).

Identify the Malloch and Corsi connection (May 2017 to July 2018)

From May (when Mueller’s team first obtained subscriber records on Stone’s Twitter account) until November 2017, the investigation may have been little more than an effort to assess the spat between Stone and John Podesta over Stone’s August 21, 2016 “time in the barrel tweet.” After the team obtained Stone’s Twitter accounts, they moved to obtain the email accounts on which he conducted conversations started on Twitter. In November, Mueller got a warrant for his own team to access Julian Assange’s Twitter accounts (though the government surely already had obtained that). By December, Stone’s email accounts would have led Mueller’s team to believe that Ted Malloch, who was in London, could have been the back channel Stone kept bragging about, and so got his Gmail account. Mueller gagged Google to prevent Malloch from learning that. As a result, Malloch was presumably surprised when he arrived at Logan airport in March and was searched — a search conducted to obtain his phones, partly in an attempt to get to his UK-hosted email.

After Steven Bannon was interviewed in February 2018, Mueller’s team used that to obtain Stone’s Apple account; while not indicated anywhere in these applications, that’s where they would discover Stone and Michael Caputo had responded to a Russian offering dirt on Hillary.

In July, Mueller’s team obtained Jerome Corsi’s email and Apple accounts (there’s no record of them obtaining his Gmail account, but Corsi’s description of Mueller’s knowledge of his August 2016 searches suggests they got it). These affidavits begin to include a 7-page redaction that may indicate ongoing investigation into whether Stone or Corsi optimized the October 7 Podesta email release.

In this phase, the crimes being investigated expanded from just hacking to conspiracy to aiding and abetting. When Mueller got the Assange warrant, he added the illegal  foreign contribution charge (one he declined to prosecute in a long redacted passage of the Mueller Report).

Collect materials on Stone’s overt social media campaigns (August 2018)

On May 18, 2018, Mueller’s team interviewed John Kakanis, who had worked on tech issues for Stone during the election. Afterwards, Mueller’s team obtained a series of warrants to collect the social media campaigns Stone had conducted on issues related to the Russian hack-and-leak. Those warrants included one for several Facebook accounts, a Gmail and Twitter account Stone used for such issues, and a Facebook and Gmail account under the Brazilian name Falo Memo Tio. Stone apparently did not receive the Facebook Falo Memo Tio account, and that warrant included a gag.

Track Stone’s efforts to obstruct the investigation (August 2018)

As Mueller’s team started interviewing people loyal to Stone, they became aware that Stone was communicating with witnesses. In May, Mueller obtained a pen register on Stone’s email accounts, allowing them to track with whom Stone was communicating. An August 3, 2018 warrant describes how investigators used those toll records to track such communications:

  • In the wake of Michael Caputo’s interview, he and Stone communicated via his Hotmail account (this would have been obvious from the story Stone seeded with the WaPo not long after)
  • After FBI Agents approached Andrew Miller, Stone emailed him via Gmail at least 10 times and a over a hundred times after he started challenging his subpoena
  • Stone emailed both Corsi and Credico in May 2018
  • Stone hired a private investigator to conduct a background investigation into someone who had done IT work for him during the campaign and research where he could serve Credico with legal process; in a June 2018 interview, the PI told investigators he and Stone primarily communicated via iPhone text messages

This affidavit included a section (¶¶64-77), based off texts with Credico stored in Stone’s iCloud account and texts published by the media, describing Stone’s threats to Credico.

In response to Stone’s overt efforts to thwart the investigation, Mueller obtained new warrants on Stone’s Hotmail, Gmail, and Apple accounts, which would yield a great deal of evidence for the obstruction and witness tampering charges against Stone. From this point forward, those charges would be included on warrants targeting Stone. In addition, from that point forward, the government appears to have sought to obtain Stone’s communications with those whose testimony he was obstructing (though the names of others besides Credico are redacted).

Starting with the next warrant, affidavits would include a section (¶¶87-89) comparing what Stone had told the House Intelligence Committee with what his own communication records showed, language that would form the backbone for the obstruction indictment.

Investigate the spooky stuff (May to August 2018)

There’s a number of things in these warrants that are difficult to assess. They didn’t show up in Stone’s trial, and it’s unclear whether they were leads that fizzled or reflect far more damning evidence. For example, the Israeli source who kept trying (and ultimately succeeded, once) to use Stone to get a meeting with Donald Trump doesn’t appear to have amounted to much, at least not with respect to the WikiLeaks releases.

A far more intriguing detail is the FBI claim — that lacks details that would be necessary to assess its accuracy — that Stone was searching for details of the Russian operation before those details were made public. The FBI made that claim twice. First, in a July 28, 2018 affidavit, they described that someone conducted searches on dcleaks and “guccifer june” using IP addresses that might be Stone, starting on May 17, 2016. The suggestion is that Stone may have had advance notice of those parts of the Russian operation. But some journalists learned of dcleaks after it got launched in early June and before it got more attention later in the summer. And the original Guccifer, Marcel Lazar, signed a plea agreement in late May 2016. Given Lazar’s claim to have hacked a Hillary server, it’s not unreasonable to think Stone would be researching him. A later warrant discusses someone — who again could be Stone — searching on Guccifer the day that the site would go up, but before it was public.

During the course of its investigation, the FBI has identified a series of searches that appear to relate to the persona Guccifer 2.0, which predate the public unveiling of that persona. In particular, on or about June 15, 2016 (prior to the publication of the Guccifer 2.0 WordPress blog), records from Google show that searches were conducted for the terms “guccifer” and “guccifer june,” from an IP address within the range 107. 77 .216.0/24.

The same rebuttal may be made — that this was about Marcel Lazar and not Guccifer 2.0. But evidence submitted at the trial suggests that Stone started anticipating the June 2016 dump on June 13, not June 15, making the claim more credible.

That July 28 warrant also describes several accounts that look like the FBI suspect Stone of sophisticated operational security. These include:

  • A Gmail account created on July 28, 2016 (right in the thick of Stone’s effort to find out what WikiLeaks had coming next) and used until July 5, 2017
  • A Gmail account created on October 26, 2016 and used until August 8, 2017
  • A Gmail account created on June 27, 2016 and used in conjunction with Craigslist to communicate

The latter effort may suggest some serious OpSec, a way for Stone to communicate publicly without using his own comms.

Finally, there are matching Gmail and Facebook accounts the government obtained warrants for on August 28, 2018. These were old accounts with the Brazilian name Falo Memo Tio. It appears the government was interested in activity on this account from the last four days before the election. They obtained a gag for the Facebook warrant.

Seal warrants investigating an Agent of Foreign Power (August to September 2018)

The government tried to obtain proof that it was Stone doing those searches on Guccifer — as well as evidence about whom he may have met with in early August 2016 when he told Sam Nunberg he had dined with Assange — by obtaining his cell site location for June 14 through November 15 of that year.

Minutes after FBI Agent Andrew Mitchell (who had been the primary affiant on Stone warrants starting in May 2018) obtained that cell site warrant, FBI Agent Patrick Myers obtained a warrant for a mail.com account that Guccifer 2.0 had created on July 23, 2016 and used until October 18, 2016 (the account kept receiving traffic until February 2017). There are several remarkable things about this warrant. While FBI Agents in San Francisco obtained a warrant for it in August 2016, and someone — possibly Mueller’s team — obtained the headers from the account in September 2017, the government had never before obtained a full warrant on the account for the entire span of its activity. So Myers, seven weeks after Mueller released an indictment against the GRU, obtained that information in hopes it would provide more information about how the Guccifer persona had shared files.

The other FBI Agents investigating Stone, to the extent they described such things, were located in either Washington Field Office or FBI Headquarters in DC. Myers, however, was stationed in Pittsburgh, where the investigation into GRU had been moved (they were also working on an indictment for GRU’s hacking of WADA).

Myers’ involvement with Stone extended beyond this curious warrant for Guccifer 2.0’s account. Over the course of the next month, he obtained warrants for:

  1. Stone’s Liquid Web server storing old communications
  2. A Twitter account obtained for redacted reasons
  3. Multiple Twitter accounts obtained for redacted reasons
  4. Multiple Facebook and Instagram accounts obtained for redacted reasons
  5. Multiple Microsoft and Skype accounts obtained for redacted reasons
  6. Multiple Google accounts obtained for redacted reasons
  7. A Twitter account for someone, probably referred by Charles Ortel, whose name ends in R and who traveled back and forth from the UK who Stone suggested, in October 2016, was his intermediary
  8. Multiple Google accounts obtained for redacted reasons

All those warrants, as well as the Guccifer 2.0 account one, included a gag. One of those gag requests — for a warrant for some Twitter accounts — explains,

It does not appear that Stone is currently aware of the full nature and scope of the ongoing FBI investigation. Disclosure of this warrant to Stone could lead him to destroy evidence or notify others who may delete information relevant to the investigation.

Almost all of the warrants (not the R Apple one or the last Google one, though the R Apple one lists perjury) list FARA and 18 USC 951 (Agent of a Foreign Power) as crimes under investigation somewhere in the warrant, though often only in the gag request. To be clear, that doesn’t mean the FBI was investigating Stone as an Agent of a Foreign Power. The Guccifer 2.0 gag says FBI “is investigating WikiLeaks and others” for the listed crimes.

And those gags say the complexity of the investigation means it may extend more than a year from late September 2018. That is, in September 2018, the government took steps in an investigation they expected to last until around the time that Stone would eventually be tried, in November 2019.

Use the obstruction charges to seize Stone’s phones (January to February 2019)

The existence of those mystery warrants, none of which were provided to Stone in discovery and all but the R Apple one which appear to be ongoing, puts what happened in January 2019 in a very different light. At a time when Bill Barr promised to shut down the Mueller investigation as soon as he was confirmed yet while Mueller was still pursuing Andrew Miller’s testimony, the government obtained warrants to search Stone’s two homes, his office, and three devices seized in those searches (the affiants for those warrants had filed for earlier warrants in the investigation).

Unlike all the other warrants, those 2019 warrants listed only the obstruction, false statements, and witness tampering charges against Stone, largely tracking the indictment against him.

Those warrants emphasize the government’s interest in obtaining texts that might be accessed only via a forensic search of Stone’s phone, including texts sent via Apple, but also Signal, Wickr, and WhatsApp texts, as well as ProtonMail emails.

Which is to say, in the context of the warrants released this week, the prosecution of Roger Stone appears to be just one step in a far more serious investigation, one that may well be ongoing.


The warrants

August 7, 2017: Stone’s Twitter Accounts

This warrant only lists CFAA as the suspected crime, and doesn’t allege that Stone was the suspect in it. It also relies on Stone’s own public comments about DMing with Guccifer 2.0 rather than materials already obtained from the account, just the first of an insane number of instances where Stone’s comments to the press formed the basis for probable cause.

September 11, 2017: Stone’s Hotmail Account

When people DMed Stone, he’d refer them to this Hotmail account for further discussion. This affidavit incorporates DMs to Assange (including the June 10, 2017 one discussing a pardon) obtained with the August 7 warrant. It also describes investigating information to be used in the Republican primary. This warrant extended the timeframe of the Stone investigation back to January 1, 2015.

October 17, 2017: Stone’s Gmail

This warrant builds on emails between Corsi and Stone about getting the WikiLeaks releases — including Stone’s “get to Assange” one — to establish the probable cause to get Stone’s Gmail account. Because Corsi would sometimes discuss Podesta related business via both Stone’s Hotmail and Gmail accounts, Mueller’s team was able to get Stone’s Gmail account. This warrant makes it clear the investigation focused on Corsi and Stone’s evolving attacks against John Podesta (which I’ve covered in real time from early on) from the beginning. It also includes a detail about Malloch — that he made a reference in January 2017 about phishing Podesta — that almost certainly remains in the redacted sections pertaining to Malloch.

*November 6, 2017: WikiLeaks and Assange’s Twitter Accounts

This affidavit uses Assange’s DMs with Stone — including another one about a pardon and migration from the WikiLeaks to the Assange account– as well as his sharing of a password with Don Jr to get Mueller his own copy of the WikiLeaks and Assange Twitter accounts, which the government surely already had. The affidavit includes new details on initial communications between Guccifer 2.0 and WikiLeaks, some of which I laid out here. One detail that’s critical is WikiLeaks asked Guccifer 2.0 for Clinton Foundation documents from early on, meaning WikiLeaks and Trump’s people agreed about what they considered the best possible dirt.

*December 19, 2017: Ted Malloch’s Gmail

In addition to extra details about campaign communications (both between Stone and the campaign, and with Malloch and the campaign), this includes details of Turkish dirt Malloch was offering. It reveals that Stone got RNC credentials for Malloch (where, evidence suggests, Stone had meetings where upcoming releases may have been discussed). In addition, because Stone’s order to Corsi to reach out to Malloch is so important, this affidavit has previously unknown details about those days. The affidavit describes Malloch writing Stone on November 13, 2016 while with Jerome Corsi, a detail that may get redacted in subsequent affidavits.

This warrant included a gag on the provider.

This is the first application that introduces Stone, Corsi, and Malloch at the beginning of each affidavit, a practice that would generally continue (though some of these changes reflect different FBI agents writing the affidavit).

March 14, 2018: Two Apple Accounts used by Stone

In February, Steve Bannon was interviewed for two long days. He was asked questions and shared texts with Stone. This application uses some of what he testified about to justify getting Stone’s Apple accounts. Stone had his iCloud account set to full backup, but later warrants would make clear that he had deleted some of his texts from 2016 and 2017. Stone would later blame Sam Nunberg for revealing that he had claimed to have “dined” with Julian Assange while visiting Los Angeles in early August 2016, but this application began to incorporate that email into boilerplate application language (a footnote on what Nunberg told investigators about this is redacted in later warrants).

This application added wire fraud to Stone’s potential charges; it’s not at all clear why.

*March 27, 2018: Malloch’s person and his baggage

This warrant allowed the FBI to search Malloch as he landed in Logan airport. It incorporated details from Malloch’s Gmail obtained in December and was at least in part an effort to get to his UK-based email.

*May 4, 2018: Mystery Israeli Gmail

Over the course of the year, an Israeli exploited a seeming pre-existing relationship with Jerome Corsi to get close to Stone and through him to Trump. The person appeared to offer Stone dirt to save Trump (this story provides some background on potential players). Stone seems to have been reluctant to meet at multiple times, as when he said, in May 2016, “I am uncomfortable meeting without Jerry,” claimed, in June, “to have been poisoned,” in July, came down “with a nasty cold and too ill to travel,” followed later with, “I have pneumonia and may be hospitalized later today,” claimed, “Matters complicated” in August. When, in early November, they tried again, the Israeli deferred claiming, “HAVING a TIA. Early Stroke. … Blury Virson.” These exchanges never show up in later filings, so it’s quite likely Mueller determined they were nothing (or at least, that Stone and Corsi had done nothing wrong) after obtaining the emails. Alternately, a redaction in the affidavit may suggest the Israeli in question got referred and some kind of investigation is ongoing. This warrant included a gag on the provider.

*July 12, 2018: Jerome Corsi’s CSC Holdings, Windstream, and Apple accounts (second version)

This adds language about Russian hacking after the initial compromise (including the September hack of the AWS server). It includes 7 paragraphs of language from after the election that is redacted, possibly because it remains under investigation. This Stone filing describes four of those paragraphs as pertaining to Corsi taking credit for optimizing the Podesta release and Malloch introducing Corsi to Assange after the election (see this post). Some of the redactions (probably the Malloch introduction) repeats the “phishing Podesta” quip. This warrant included a gag on the provider. It limited the scope of the warrant to June 15 through November 10, 2016 and included only CFAA and conspiracy in the crimes being investigated.

July 27, 2018: Roger Stone’s OpSec emails

This warrant obtains the search histories for 3 Gmail accounts Roger Stone set up, possibly for OpSec purposes. They include:

  • Target Account 1 created on July 28, 2016 and used until July 5, 2017
  • Target Account 2 created on October 26, 2016 and used until August 8, 2017
  • Swash Buckler Account created on June 27, 2016 and used to communicate via Craigslist ads

Between May 17, 2016 and June 15, 2016, the affidavit suggests, Stone may have conducted Google searches for DCLeaks and Guccifer (which could be 1 or 2) prior to the publication of the Guccifer 2.0 blog. The FBI connected them to Stone via the IP addresses he used to access Twitter and Facebook, something they would continue to investigate. The affidavit also reveals that Stone deleted the search history for a different Google account between January 18 and July 23, 2016.

August 2, 2018: Roger Stone marketing Facebook accounts

This warrant gets three of Stone’s Facebook accounts, two of which include advertisements pertaining to WikiLeaks or Russia (the description of the third is redacted). Stone used this warrant when signaling to his co-conspirators what was in his warrants, so redacted details are available here. The biggest redaction for an ongoing investigation pertains to whether Corsi and Stone affected the release of the Podesta emails and Malloch offering to set Corsi up with Assange after the election.

August 3, 2018: Renewed warrants for Apple, Hotmail, and Gmail

Partly because the way Stone worked the press and aired the threats he had made against Randy Credico, it became clear he was tampering or comparing notes with witnesses (also including Jerome Corsi, Michael Caputo, and Andrew Miller, as well as one other witness that Stone hired a private investigator to investigate). That gave Mueller the excuse to get new warrants on Stone’s main email and text accounts to get those conversations. This request expanded the focus to include Credico and others (the names of the others are redacted but are likely those with whom Stone was trying to tamper). This warrant also adds obstruction and witness tampering to the crimes being investigated.

August 8: Warrants for a Gmail and Twitter account Stone used for social media campaigns (Twitter)

On May 18, 2018, Mueller’s team interviewed John Kakanis about work he did for Stone during the campaign. He described how Stone conducted social media campaigns — including materials relating to WikiLeaks and the Russian investigation — which both of these accounts played a role in.

August 20, 2018: Warrant for Stone’s cell site information from June 15 to November 15, 2016

Citing the searches probably made by Stone for Guccifer and dcleaks information before those accounts were made public, the government obtained cell site information for the period from the day that the Guccifer 2.0 account first started to a day the week after the election. The affidavit also explained wanting to know if Stone was with the Trump campaign at various times and where he was in Los Angeles when he told Sam Nunberg he had dined with Assange. Note, this affidavit suggests Stone did a Google search on “Guccifer” on June 15, 2016 before the site went up.

*August 20, 2018: Warrant for Guccifer 2.0’s second email account

The same day the government got a warrant to find out where Stone had been when during the election, they got a renewed warrant for one of the email accounts associated with the Guccifer 2.0 site. They had previously gotten everything from that email account in “approximately” August 2016, and then gotten headers for any emails sent in “approximately” September 2017. Getting the full content would give it additional details on any activity with the account between the original warrant — August 2016 — and the final login on October 18, 2016, as well as any email traffic subsequent to that. The stated purpose for obtaining this information was to “assist in identifying additional means by which Guccifer 2.0 shared stolen documents with WikiLeaks and others.” Patrick Myers, an FBI agent located in Pittsburgh (and therefore presumably someone more closely involved in the GRU investigation) obtained this warrant. This warrant included a gag on the provider. Parts of this warrant invoke 18 USC 951 — agent of a foreign power charges — in addition to the other crimes under investigation.

*August 28, 2018: Warrant for Stone’s Falo Memo Tio Facebook account

August 28, 2018: Warrant for Stone’s Falo Memo Gmail account

This incorporates details about Stone’s Facebook accounts used to push the hack-and-leak, found in the earlier August Facebook warrants. It seeks to obtain an old Stone Facebook account that got advertising traffic right before the election. These were Stone-specific warrants that was not turned over in discovery, suggesting it returned nothing pertaining to his prosecution. The Facebook warrant, but not the Gmail one, included a gag on the provider; it also was not included in the warrants provided to Stone in discovery.

August 28, 2018: Warrant for Stone’s [email protected] account

This email account–and the fact that he had been using it to tell his cover story about WikiLeaks–showed up in his Gmail account.

*September 24, 2018: Warrant for Stone’s Liquid Web server

This was a server Stone used to encrypt and back up his data in case the government seized his computers. It was not provided to Stone in discovery so may not have revealed any interesting information. This is the first of these affidavits written by Patrick Myers, an FBI agent located in Pittsburgh.

*September 26, 2018: Mystery Twitter Account

*September 27, 2018: Mystery Facebook and Instagram Accounts

*September 27, 2018: Mystery Microsoft include Skype

*September 27, 2018: Mystery Google

On September 26 and 27, Mueller’s team obtained a bunch of new warrants. All were obtained by Myers, the Pittsburgh FBI agent. All included gags on the provider. Most entirely redact the description of why the FBI needed the accounts, suggesting these investigations are ongoing. They also invoke 951 and FARA in the sealing request.

*September 27, 2018: Mystery Twitter Accounts 2

Like the other warrants obtained on September 27, the explanation for targeting these Twitter accounts is sealed. Like them, Myers obtained the warrant. Like those, it includes a request for sealing that lists 18 USC 951 — acting as an unregistered foreign agent — and FARA. Unlike the other warrants from that day, the justification for sealing this one explains that “It does not appear that Stone is fully aware of the full scope of the ongoing FBI investigation.”

*September 27, 2018: Mystery Apple ends in R

Then there’s another odd September 27 warrant application. Like the other warrants obtained on September 27, Myers wrote the affidavit for this one, and it included a gag. Unlike the others, however, the explanation for targeting this account is not entirely redacted. The affidavit explains that,

  • On August 17, 2016, someone (Charles Ortel?) introduced Stone and R
  • Between that introduction and November 3, 2016, Stone and R were in contact 60 times
  • On October 7, R and Stone spoke during the time between when WaPo alerted him to the Access Hollywood Video and the time it dropped
  • On October 10, R and Stone probably met for pizza on the Upper East Side
  • On October 12, Stone claimed that he had met his intermediary, who traveled back and forth to London, on October 10

The list of information targeted includes an additional name, probably that of Charles Ortel.

*October 5, 2018: Mystery Multiple Googles

Like the September 27 warrants, the explanation for targeting these accounts remains entirely redacted. Like them, the affidavit was written by Myers and sealed under a Kyle Freeny request. Unlike those, however, this one does not list 951 and FARA in the request to seal. This affidavit also does not include the contacts with “R” in the narrative about October 7, suggesting that lead may have fizzled.

January 24, 2019: Stone’s NY property

January 24, 2019: Stone’s FL property

January 24, 2019: Stone’s FL office

February 13, 2019: Three of Stone’s devices

The warrants for the searches in conjunction with Stone’s arrest on January 24 are fairly similar (one agent wrote the one in NY, another did the two in FL), except for the descriptions of the premises, facilitated by how much media Stone has done at these locations.

The affidavits themselves largely track the indictment, though showing where the government had sourced the evidence that ultimately got introduced at evidence at trial. The affidavits add people named in the indictment — Rick Gates, Steve Bannon, and Erik Prince (whose description is redacted) — premised on the import of proving that Stone had lied about telling these people about his purported link to WikiLeaks. As compared to the earlier warrants, these affidavits have a closer focus on the release (and reliance, exclusively, on the Crowdstrike and GRU indictment attribution, which is something Stone litigated and which I may return to).

These warrants make it clear that one of the things the government was doing was searching Stone’s homes for all his electronic devices in hopes of getting texts from 2016 to 2017 he deleted and his encrypted communications, which include:

  • WhatsApp, downloaded on October 5, 2016 to talk to Erik Prince
  • Signal and ProtonMail downloaded on August 18, 2016; Stone used Signal to talk to Margaret Kunstler
  • Wickr downloaded on August 5, 2017

Update: One detail I forgot to add about the 2019 search warrants: They explain that Stone responded to a grand jury subpoena in November 2018 asking for the texts he had with Credico, after he told the press — specifically, Chuck Ross, for a credulous story that spun Stone’s like — that his attorney had them. It’s one of the most hilarious ways that Stone’s blathering to the press hurt him.

Update: One more detail about the 2019 search warrants. The FBI was specifically looking for a “file booklet” recording a meeting Stone had with Trump at Trump Tower during the 2016 election.

60. On or about May 8, 2018, a law enforcement interview of [redacted] was conducted. [redacted] was an employee of Stone’s from approximately June 2016 through approximately December 2016 and resided in Stone’s previous New York apartment for a period of time. [redacted] provided information technology support for Stone but was not formally trained to do so. [redacted] was aware that Stone communicated with Trump during the 2016 presidential campaign, and afterward, both in person and by telephone. [redacted] provided information about a meeting at Trump Tower between Trump and Stone during the time [redacted] worked for him, to which Stone carried a “file booklet” with him. Stone told [redacted] the file booklet was important and no one should touch it. [redacted] also said Stone maintained the file booklet in his closet.

61. On or about December 3,2018, law enforcement conducted an interview of an individual (“Person 2”) who previously had a professional relationship with a reporter who provided Person 2 with information about Stone. The reporter relayed to Person 2 that in or around January and February 2016, Stone and Trump were in constant communication and that Stone kept contemporaneous notes of the conversations. Stone’s purpose in keeping notes was to later provide a “post mortem of what went wrong.”

The Slow Firing of Robert Mueller[‘s Replacement]

On December 5, I suggested that Speaker Pelosi delay the full House vote on impeachment until early February. I intimated there were public reasons — the possibility of a ruling on the Don McGahn subpoena and superseding charges for Lev Parnas — I thought so and private ones. One of the ones I did not share was the Stone sentencing, which at that point was scheduled for February 6. Had Pelosi listened to me (!!!) and had events proceeded as scheduled, Stone would have been sentenced before the final vote on Trump’s impeachment.

But things didn’t work out that way. Not only didn’t Pelosi heed my suggestion (unsurprisingly), but two things happened in the interim.

First, Stone invented a bullshit reason for delay on December 19, the day after the full House voted on impeachment. The prosecutors who all resigned from the case yesterday objected to the delay, to no avail, which is how sentencing got scheduled for February 20 rather than the day after the Senate voted to acquit.

Then, on January 6, Trump nominated Jessie Liu, then the US Attorney for DC, to be Undersecretary for Terrorism and Financial Crimes, basically the person who oversees the process of tracking criminal flows of finance. She won’t get that position — her nomination was pulled yesterday in advance of a Thursday confirmation hearing. But her nomination gave Barr the excuse to install a trusted aide, Timothy Shea, at US Attorney for DC last Thursday, the day after the impeachment vote and in advance of the now-delayed Stone sentencing.

Liu, who is very conservative and a true Trump supporter, had been nominated for a more obvious promotion before. On March 5, Trump nominated her to be Associate Attorney General, the number 3 ranking person at DOJ. But then she pulled her nomination on March 28 because Senators objected to her views on choice.

But let’s go back, to late August 2018. Michael Cohen and Sam Patten had just pled guilty, and Cohen was trying to find a way to sort of cooperate. Rudy Giuliani was talking about how Robert Mueller would need to shut down his investigation starting on September 1, because of the election. I wrote a post noting that, while Randy Credico’s imminent grand jury appearance suggested Mueller might be close to finishing an indictment of Stone, they still had to wait for Andrew Miller’s testimony.

Even as a I wrote it, Jay Sekulow was reaching out to Jerome Corsi to include him in the Joint Defense Agreement.

During the entire election season, both Paul Manafort and Jerome Corsi were stalling, lying to prosecutors while reporting back to Trump what they were doing.

Then, the day after the election, Trump fired Jeff Sessions and installed Matt Whitaker. Whitaker, not Rosenstein, became the nominal supervisor of the Mueller investigation. Not long after, both Manafort and Corsi made their game clear. They hadn’t been cooperating, they had been stalling to get past the time when Trump could start the process of ending the Mueller investigation.

But Whitaker only reactively kept Mueller in check. After Michael Cohen’s December sentencing made it clear that Trump was an unindicted co-conspirator in a plot to cheat to win, Whitaker started policing any statement that implicated Trump. By the time Roger Stone was indicted on January 24, 2019 — after Trump’s plan to replace Whitaker with the expert in cover ups, Bill Barr — Mueller no longer noted when Trump was personally involved, as he was in Stone’s efforts to optimize the WikiLeaks releases.

But then, when Barr came in, everything started to shut down. Mueller moved ongoing prosecutions to other offices, largely to DC, under Jessie Liu’s supervision. As Barr came to understand where the investigation might head, he tried to promote Liu out of that position, only to have GOP ideology prevent it.

Barr successfully dampened the impeach of the Mueller Report, pretending that it didn’t provide clear basis for impeaching the President. It was immediately clear, when he did that, that Barr was spinning the Stone charges to minimize the damage on Trump. But Barr did not remove Mueller right away, and the Special Counsel remained up until literally the moment when he secured Andrew Miller’s testimony on May 29.

The next day, I noted the import of raising the stakes for Trump on any Roger Stone pardon, because Stone implicated him personally. That was more important, I argued, than impeaching Trump for past actions to try to fire Mueller, which Democrats were focused on with their attempt to obtain Don McGahn’s testimony.

Still, those ongoing investigations continued under Jessie Liu, and Stone inched along towards trial, even as Trump leveraged taxpayer dollars to try to establish an excuse to pardon Manafort (and, possibly, to pay off the debts Manafort incurred during the 2016 election). As Stone’s trial laid out evidence that the President was personally involved in optimizing the release of emails Russia had stolen from Trump’s opponent, attention was instead focused on impeachment, his more recent effort to cheat.

In Stone’s trial, he invented a new lie: both Randy Credico and Jerome Corsi had falsely led him to believe they had a tie to WikiLeaks. That didn’t help Stone avoid conviction: Stone was found guilty on all counts. But it gave Stone yet another cover story to avoid revealing what his ties to WikiLeaks actually were and what he did — probably with Trump’s assent — to get it. For some reason, prosecutors decided not to reveal what they were otherwise prepared to: what Stone had really done.

Immediately after his conviction, Stone spent the weekend lobbying for a pardon. His wife appeared on Tucker Carlson’s show and someone got inside White House gates to make the case.

But, as impeachment proceeded, nothing happened, as the Probation Office started collecting information to argue that Stone should go to prison for a long while. The day Democrats finished their case against Donald Trump, though, Bill Barr made his move, replacing Liu before she was confirmed, removing a very conservative Senate confirmed US Attorney to install his flunkie, Timothy Shea. But even that wasn’t enough. Prosecutors successfully convinced Shea that they should stick to the probation office guidelines recommending a stiff sentence. When Timothy Shea didn’t do what Barr expected him to, Barr intervened and very publicly ordered up the cover up he had promised.

Effectively, Bill Barr is micro-managing the DC US Attorney’s office now, overseeing the sentencing of the man who could explain just how involved Trump was in the effort to maximize the advantage Trump got from Russia’s interference in 2016, as well as all the other prosecutions that we don’t know about.

Trump has, finally, succeeded in firing the person who oversaw the investigations into his role in the Russian operation in 2016. Just as Stone was about to have reason to explain what that role was.

Timeline

August 21, 2018: Michael Cohen pleads guilty

August 31, 2018: Sam Patten pleads guilty

September 5, 2018: Jay Sekulow reaches out to Corsi lawyer to enter into Joint Defense Agreement

September 6, 2018: In first Mueller interview, Corsi lies

September 17, 2018: In second interview, Corsi invents story about how he learned of Podesta emails

September 21, 2018: In third interview, Corsi confesses to establishing a cover story about Podesta’s emails with Roger Stone starting on August 30, 2016; NYT publishes irresponsible story that almost leads to Rod Rosenstein’s firing

October 25, 2018: Rick Gates interviewed about the campaign knowledge of Podesta emails

October 26, 2018: Steve Bannon admits he spoke with Stone about WikiLeaks

October 31, 2018: Prosecutors probably show Corsi evidence proving he lied about source of knowledge on Podesta emails

November 1 and 2, 2018: Corsi continues to spew bullshit in interviews

November 6, 2018: Election day

November 7, 2018: Jeff Sessions is fired; Matt Whitaker named Acting Attorney General

November 9, 2018: Corsi appears before grand jury but gives a false story about how he learned of Podesta emails; Mueller threatens to charge him with perjury

November 15, 2018: Trump tweets bullshit about Corsi’s testimony being coerced

November 23, 2018: Corsi tells the world he is in plea negotiations

November 26, 2018: Corsi rejects plea

December 7, 2018: Trump nominates Bill Barr Attorney General

January 18, 2019: Steve Bannon testifies to the grand jury (and for the first time enters into a proffer)

January 24, 2019: Roger Stone indicted for covering up what really happened with WikiLeaks

February 14, 2019: Bill Barr confirmed as Attorney General

March 5, 2019: Jessie Liu nominated to AAG; Bill Barr briefed on Mueller investigation

March 22, 2019: Mueller announces the end of his investigation

March 24, 2019: Bill Barr releases totally misleading version of Mueller results, downplaying Stone role

March 28, 2019: Liu pulls her nomination from AAG

April 19, 2019: Mueller Report released with Stone details redacted

May 29, 2019: As Mueller gives final press conference, Andrew Miller testifies before grand jury

November 12, 2019: Prosecutors apparently change Stone trial strategy, withhold details of Stone’s actual back channel

November 15, 2019: Roger Stone convicted on all counts

January 6, 2020: Jessie Liu nominated to Treasury

January 16, 2020: Probation Office issues Presentence Report calling for 7-9 years

January 30, 2020: Bill Barr replaces Liu with Timothy Barr, effective February 3; DOJ submits objection to Presentence Report

February 3, 2020: Timothy Shea becomes acting US Attorney

February 5, 2020 : Senate votes to acquit Trump

February 6, 2020: Initial sentencing date for Roger Stone

February 10, 2020: Stone sentencing memoranda submitted

February 11, 2020: DOJ overrules DC on Stone sentencing memorandum, all four prosecutors resign from case

February 20, 2020: Current sentencing date for Roger Stone

Loose Ends as the Stone Trial Moves to Closing Arguments

Somewhat unexpectedly, the government announced this morning it would rest after testimony from Rick Gates and the FBI Agent, Michelle Taylor. My overall take is that Stone is likely to be found guilty on a number of the false statements charges, though may skate on witness tampering. But that nevertheless will be a win for him, because he has been playing for a pardon, not acquittal, and he retreated to a new cover story — that he had no intermediary with WikiLeaks — which is what Trump needed him to say. I think the smartest thing Stone has done in the last several years was not to take the stand and I half wonder whether prosecutors tried to bait him to do so by finishing early.

Stone filed for an acquittal, which is fairly normal. By my read, it misstated the indictment, pretending that Stone was accused of lying about having an interlocutor with WikiLeaks rather than lying about who his was (which, again, serves his goal of getting a pardon). Amy Berman Jackson seemed to adhere to my reading as well, noting that none of the charges require that Stone actually have an interlocutor (though she did warn prosecutors they need to be very specific about what language in the transcript they’re saying are lies). Nevertheless, ABJ reserved judgment on that motion.

I’ll say more about what I think really went down once the final exhibits are released to journalists and after closing arguments tomorrow.

But I wanted to capture a number of loose threads from the trial (and this is based off live tweeting, so it’s more vague than I would wish):

  • Prosecutors made sure to get Steve Bannon to explain the relationship between Ted Malloch and Erik Prince and the campaign, yet Prince did not testify and Malloch’s testimony wasn’t entered. So why include that detail?
  • The government tried to enter Bannon’s grand jury testimony, unsuccessfully, after he had to be held to his prior testimony. Was there a discrepancy or a different articulation prosecutors were trying to hold him to?
  • Footnote 989 of Volume I of the Mueller Report seems to suggest that Bannon’s testimony came in under a proffer agreement (and his first interview clearly stretched the truth). But that proffer did not get introduced into evidence. Why not?
  • The defense did not raise the most obvious challenge to Gates’ testimony, that his claim Stone knew of hacked emails in April 2016 might represent a confusion with Hillary’s FOIAed emails. Since they could only make this argument with Gates’ testimony, I’m curious why they didn’t raise it.
  • The defense spent a lot of time talking to Gates about Stone’s role in compiling voter rolls. Why?
  • Prosecutors named a bunch of Stone’s flunkies as witnesses, and subpoenaed and flew in Andrew Miller. They seem to have first informed Miller he’d be testifying at what would be the end of a full week trial (what they initially said they expected), then held him through Stone’s defense, suggesting they might use him as a rebuttal witness. But he never testified. Why not?
  • The government never presented something they had planned to as 404b information — that Stone also lied about whether the campaign knew of his campaign finance shenanigans. They didn’t do so. Why not? (This may related to the Miller question.)
  • Prosecutors made a point of having Gates describe Stone asking for Jared Kushner’s contact so he could brief him on stolen emails. But that point was dropped. That loose end is particularly interesting given that they had Bannon testify about the July 18 email Stone sent him, which probably pertains to an investigation that was ongoing in March.

Update: I’ve reviewed the acquittal motion and actually think Stone may win on this point:

COUNT 6 – FALSE STATEMENT

STONE testified falsely that he had never discussed his conversations with the person he referred to as his “go-between,” “mutual friend,” and “intermediary” with anyone involved in the Trump Campaign.

Evidence as to Count 6 suffers from the same infirmity as Counts 4 and 5. The count fails because of the government’s failure to prove the conversations with the Trump Campaign contained, or specifically related to, information Mr. Stone received from Mr. Credico. There was no evidence presented that any of the information was not already available in the public domain. Furthermore, there was no evidence presented that the conversation were about, or relating to, Russian interference. “And did you discuss your conversations with the intermediary with anyone involved in the Trump campaign?” HPSCI transcript, at 102 (emphasis added). No, the conversation had nothing to do with Randy Credico. Even if, arguendo, Stone spoke to a Campaign official, Bannon, Trump, or if Stone had non-public information from an intermediary, but did not cite to Credico in those communications, then the answer is not false. The government must live with the imprecise wording of Count VI.

Stone absolutely did lie about speaking to Trump people about what he knew about WikiLeaks. But in doing so, as far as we know, he always attributed his information to Assange directly, not to Credico or Corsi (though I’m fairly certain he could prove that he gave Corsi credit). So I actually think that’s why ABJ reserved on this front: because Stone is right. The government fucked up the wording on this.

 

The Mueller Report Was Neither about Collusion Nor about Completed Investigation(s)

In the days since BuzzFeed released a bunch of backup files to the Mueller Report, multiple people have asserted these 302s are proof that Robert Mueller did an inadequate investigation, either by suggesting that the information we’re now seeing is incredibly damaging and so must have merited criminal charges or by claiming we’re seeing entirely new evidence.

I’ve had my own tactical complaints about the Mueller investigation (most notably, about how he managed Mike Flynn’s cooperation, but that might be remedied depending on how Emmet Sullivan treats Sidney Powell’s theatrics).  But I have yet to see a complaint that persuades me.

You never know what you can find in the Mueller Report if you read it

Let’s start with claims about how the release revealed details we didn’t previously know. Virtually all of these instead show that people haven’t read the Mueller Report attentively (though some don’t understand that two of the six interview reports we’ve got record someone lying to Mueller, and all are interviews of human beings with imperfect memories). Take this Will Bunch column, which claims that Rick Gates’ claims made in a muddled April 10, 2018 interview reveal information — that Trump ordered his subordinates to go find Hillary emails — we didn’t know.

Rick Gates, the veteran high-level political operative who served as Donald Trump’s deputy campaign manager in 2016, told investigators he remembers exactly where he was — aboard Trump’s campaign jet — when he heard the candidate’s desires and frustrations over a scheme to defeat Hillary Clinton with hacked, stolen emails boil over. And he also remembered the future president’s exact words that day in summer 2016.

Gates’ disclosure to investigators was a key insight into the state of mind of a campaign that was willing and eager to work with electronic thieves — even with powerful foreign adversaries like Russia, if need be — to win a presidential election. Yet that critical information wasn’t revealed in Mueller’s 440-page report that was supposed to tell the American public everything we needed to know about what the president knew and when he knew it, regarding Russia’s election hacking.

The passage in question comes from an interview where a redacted section reflecting questions about what Gates knew in May 2016 leads into a section on “Campaign Response to Hacked Emails.” What follows clearly reflects a confusion in Gates’ mind — and/or perhaps a conflation on the part of the campaign — between the emails Hillary deleted from her server and the emails stolen by Russia. The passage wanders between these topics:

  • People on the campaign embracing the Seth Rich conspiracy
  • Don Jr asking about the emails in “family meetings
  • The campaign looking for Clinton Foundation emails
  • Interest in the emails in April and May, before (per public reports) anyone but George Papadopoulos knew of the stolen emails
  • The June 9 meeting
  • Trump exhibiting “healthy skepticism” about some emails
  • The anticipation about emails after Assange said they’d be coming on June 12
  • The fact that the campaign first started coordinating with the RNC because they had details of upcoming dates
  • RNC’s media campaigns after the emails started coming out
  • Trump’s order to “Get the emails” and Flynn’s efforts to do so
  • Details of who had ties to Russia and the Konstantin Kilimnik claim that Ukraine might be behind the hack
  • China, Israel, Kyrgyzstan
  • Gates never heard about emails from Papadopoulos
  • Sean Hannity

This seems to be more Gates’ stream of consciousness about emails, generally, then a directed interview. But Gates’ claim that 1) he didn’t know about emails from Papadopoulos but nevertheless 2) was party to discussions about emails in April and May is only consistent with some of these comments pertaining to Hillary’s deleted emails.

Once you realize that, then you know where to look for the “Get the emails” evidence in the Mueller Report: in the description of Mike Flynn making extensive efforts to get emails — albeit those Hillary deleted.

After candidate Trump stated on July 27, 2016, that he hoped Russia would “find the 30,000 emails that are missing,” Trump asked individuals affiliated with his Campaign to find the deleted Clinton emails.264 Michael Flynn-who would later serve as National Security Advisor in the Trump Administration- recalled that Trump made this request repeatedly, and Flynn subsequently contacted multiple people in an effort to obtain the emails.265

264 Flynn 4/25/18 302, at 5-6; Flynn 5/1/18 302, at 1-3.

265 Flynn 5/1/18 302, at l-3.

The footnotes make it clear that in the weeks after Mueller’s team heard from Gates that Flynn used his contacts to search for emails, they interviewed Flynn several times about that effort, only to learn that that incredibly damning effort to find emails involved potentially working with Russian hackers to find the deleted emails. And to be clear: Bunch is not the only one confused about this detail–several straight news reports have not been clear about what that April 10 interview was, as well.

A November 5, 2016 email from Manafort — which the newly released documents show Bannon wanting to hide that Manafort remained a campaign advisor — is another thing that actually does show up in the Mueller Report, contrary to claims.

Later, in a November 5, 2016 email to Kushner entitled “Securing the Victory,” Manafort stated that he was “really feeling good about our prospects on Tuesday and focusing on preserving the victory,” and that he was concerned the Clinton Campaign would respond to a loss by “mov[ing] immediately to discredit the [Trump] victory and claim voter fraud and cyber-fraud, including the claim that the Russians have hacked into the voting machines and tampered with the results.”937

In other words, there is little to no evidence that the most damning claims (save, perhaps, the one that RNC knew of email release dates, though that may not be reliable) didn’t make the Report.

The Mueller Report is an incredibly dense description of the details Mueller could corroborate

The FOIAed documents are perhaps more useful for giving us a sense of how dense the Mueller Report is. They show how several pages of notes might end up in just a few paragraphs of the Mueller Report. The entirety of the three Gates’ interviews released Saturday, for example, show up in just four paragraphs in the Mueller Report: two in Volume I describing how the campaign made a media campaign around the leaks and how Trump once told him on the way to the airport that more emails were coming.

And two paragraphs in Volume II repeating the same information.

Worse still, because the government has released just six of the 302s that will be aired at the Roger Stone trial starting this week, much of what is in those interviews (undoubtedly referring to how Manafort and Gates coordinated with Stone) remains redacted under Stone’s gag order, in both the 302 reports and the Mueller Report itself.

Shocked — shocked!! — to find collusion at a Trump casino

Then there are people who read the 302s and were shocked that Mueller didn’t describe what the interviews show to be “collusion” as collusion, the mirror image of an error the denialists make (up to and including Bill Barr) in claiming that the Mueller Report did not find any collusion.

As I’ve pointed out since March 2017, this investigation was never about collusion. Mueller was tasked to report on what crimes he decided to charge or not, so there was never a possibility he was going to get into whether something was or was not collusion, because that would fall outside his mandate (and the law).

Worse still, in his summary of the investigation, Barr played a neat game where he measured “collusion” exclusively in terms of coordination by the campaign itself with Russia. It was clear from that moment — even before the redacted report came out — that he was understating how damning Mueller’s results would be, because Roger Stone’s indictment (and communications of his that got reported via various channels) made it crystal clear that he at least attempted to optimize the releases, but that involved coordination — deemed legal in part out of solid First Amendment concerns — with WikiLeaks, not Russia, and so therefore wouldn’t be covered by Barr’s narrow definition of “collusion.”

Of late, I’ve found it useful to use the definition of “collusion” Mark Meadows used in a George Papadopoulos hearing in 2018. In an exchange designed to show that in an interview where George Papadopoulos lied about his ongoing efforts to cozy up to Russia his denial that Papadopoulos, the coffee boy, knew about efforts to benefit from Hillary Clinton’s stolen emails, Meadows called that — optimizing the Clinton releases — “collusion.”

Mr. Papadopoulos. And after he was throwing these allegations at me, I —

Mr. Meadows. And by allegations, allegations that the Trump campaign was benefiting from Hillary Clinton emails?

Mr. Papadopoulos. Something along those lines, sir. And I think I pushed back and I told him, I don’t know what the hell you’re talking about. What you’re talking about is something along the lines of treason. I’m not involved. I don’t know anyone in the campaign who’s involved. And, you know, I really have nothing to do with Russia. That’s — something along those lines is how I think I responded to this person.

Mr. Meadows. So essentially at this point, he was suggesting that there was collusion and you pushed back very firmly is what it sounds like. [my emphasis]

One of the President’s biggest apologists has stated that if the campaign did make efforts to optimize the releases, then they did, in fact, collude.

The Roger Stone trial, which starts Tuesday, will more than meet that measure. It astounds me how significantly the previews of Stone’s trials misunderstand how damning this trial will be. WaPo measures that Mueller failed to find anything in Roger Stone’s actions, which is not what even the indictment shows, much less the Mueller Report or filings submitted in the last six months.

The Stone indictment suggests that what prosecutors found instead was a failed conspiracy among conspiracy theorists, bookended by investigative dead ends and unanswered questions for the team of special counsel Robert S. Mueller III.

And MoJo hilariously suggests we might only now, in the trial, establish rock solid proof that Trump lied to Mueller, and doesn’t even account for how some of its own past reporting will be aired at the trial in ways that are far more damning than it imagines.

Here’s why I’m certain these outlets are underestimating how damning this trial will be.

Along with stipulating the phone and email addresses of Erik Prince and Steve Bannon (meaning communications with them could be entered into evidence even without their testimony, though Bannon has said he expects to testify), the government plans to present evidence pertaining to four direct lines to Trump and three to his gatekeepers.

One way prosecutors will use this is to show that, when Trump told Rick Gates that more emails were coming after getting off a call he got on the way to Laguardia, he did so after speaking directly to Roger Stone. They’ll also date exactly when a call that Michael Cohen witnessed happened, after which Trump said the DNC emails would be released in upcoming days got put through Rhona Graff.

It’s not so much that we’ll get proof that Trump lied to Mueller (and not just about what he said to Stone), though we will absolutely get that, but we’ll get proof that Trump was personally involved in what Mark Meadows considers “collusion.”

The Mueller Report and the ongoing criminal investigations

Both Mueller critics and denialists are also forgetting (and, in some cases, obstinately ignorant) about what the Mueller Report actually represented.

We don’t know why Mueller submitted his report when he did — though there is evidence, albeit not yet conclusive, that Barr assumed the position of Attorney General planning to shut the investigation down (indeed, he even has argued that once Mueller decided he could not indict Trump — which was true from the start, given the OLC memo prohibiting it — he should have shut the investigation down).

A lot has been made of the investigative referrals in the Mueller Report, of which just 2 (Cohen and Greg Craig) were unredacted. We’ve seen just one more of those thus far, the prosecution of George Nader for child porn, a prosecution that may lead Nader to grow more cooperative about other issues. Some of the (IMO) most revealing details in the weekend’s dump were b7ABC FOIA exemptions for materials relating to Alexander Nix and Michael Caputo. Normally, that redaction is used for upcoming criminal prosecutions, so it could be that Nix and Caputo will have a larger role in Stone’s trial than we know. But it also may mean that there is an ongoing investigation into one or both of them.

In addition, investigations of some sort into at least three of Trump’s aides appear to be ongoing.

It is a fact, for example, that DOJ refused to release the details of Paul Manafort’s lies — covering the kickback system via which he got paid, his efforts to implement the Ukraine plan pitched in his August 2, 2016 meeting, and efforts by another Trump flunkie to save the election in the weeks before he resigned — because those investigations remained ongoing in March. There’s abundant reason to think that the investigation into Lev Parnas and Igor Fruman and Rudy Giuliani, whether it was a referral from Mueller or not, is the continuation of the investigation into Manafort’s efforts to help Russia carve up Ukraine to its liking (indeed, the NYT has a piece on how Manafort played in Petro Poroshenko’s efforts to cultivate Trump today).

It is a fact that the investigation that we know of as the Mystery Appellant started in the DC US Attorney’s office and got moved back there (and as such might not even be counted as a referral). What we know of the challenge suggests a foreign country (not Russia) was using one of its corporations to pay off bribes of someone.

It is a fact that Robert Mueller testified under oath that the counterintelligence investigation into Mike Flynn was ongoing.

KRISHNAMOORTHI: Since it was outside the purview of your investigation your report did not address how Flynn’s false statements could pose a national security risk because the Russians knew the falsity of those statements, right?

MUELLER: I cannot get in to that, mainly because there are many elements of the FBI that are looking at different aspects of that issue.

KRISHNAMOORTHI: Currently?

MUELLER: Currently.

That’s consistent with redaction decisions made both in the Mueller Report itself and as recently as last week.

It is a fact that when Roger Stone aide Andrew Miller testified, he did so before a non-Mueller grand jury. When Miller’s lawyer complained, Chief Judge Beryl Howell reviewed the subpoena and agreed that the government needed Miller’s testimony for either investigative subjects besides Stone or charges beyond those in his indictment. Indeed, one of the most interesting aspects of Mueller’s statement closing his investigation is the way it happened as Miller was finally agreeing to testify, effectively ensuring that it would happen under DC, not Muller.

Again, these are all facts. No matter how badly Glenn Greenwald desperately wants to — needs to — spin knowing actual facts about ongoing investigations as denial, it is instead basic familiarity with the public record (the kind of familiarity he has never bothered to acquire). At least as of earlier this year — or last week! — there has been reason to believe there are ongoing investigations into three of Trump’s closest advisors and several others who helped him get elected.

At least two of those investigations continue under grand juries, impaneled in March 2019, that Chief Judge Beryl Howell can extend beyond January 20, 2021.

Why Mueller closed up shop

Nevertheless, it is indeed the case that Mueller closed his investigation after producing a report that showed abundant obstruction by the President, but stated that his investigation “did not establish” that the Trump campaign engaged in coordination or conspiracy with Russia, including regarding a quid pro quo.

In particular, the investigation examined whether these contacts involved or resulted in coordination or a conspiracy with the Trump Campaign and Russia, including with respect to Russia providing assistance to the Campaign in exchange for any sort of favorable treatment in the future. Based on the available information, the investigation did not establish such coordination.

I’d like to end this post with speculation, one not often considered by those bitching about or claiming finality of the Mueller investigation.

In his closing press conference, Mueller emphasized two things: he saw his job as including “preserving evidence” against the President, and he noted that under existing DOJ guidelines, the President cannot be charged until after he has been impeached.

First, the opinion explicitly permits the investigation of a sitting President because it is important to preserve evidence while memories are fresh and documents are available. Among other things, that evidence could be used if there were co-conspirators who could now be charged.

And second, the opinion says that the Constitution requires a process other than the criminal justice system to formally accuse a sitting President of wrongdoing.

In Mueller’s explanation of why he didn’t hold out for an interview with Trump, he said that he weighed the cost of fighting for years to get that interview versus the benefit of releasing a report  with “substantial quantity of information [allowing people] to draw relevant factual conclusions on intent and credibility” when he did.

Beginning in December 2017, this Office sought for more than a year to interview the President on topics relevant to both Russian-election interference and obstruction-of-justice. We advised counsel that the President was a ” subject” of the investigation under the definition of the Justice Manual-“a person whose conduct is within the scope of the grand jury’s investigation.” Justice Manual § 9-11.151 (2018). We also advised counsel that”[ a]n interview with the President is vital to our investigation” and that this Office had ” carefully considered the constitutional and other arguments raised by . .. counsel, and they d[id] not provide us with reason to forgo seeking an interview.” 1 We additionally stated that “it is in the interest of the Presidency and the public for an interview to take place” and offered “numerous accommodations to aid the President’s preparation and avoid surprise.”2 After extensive discussions with the Department of Justice about the Special Counsel’s objective of securing the President’s testimony, these accommodations included the submissions of written questions to the President on certain Russia-related topics. 3

[snip]

Recognizing that the President would not be interviewed voluntarily, we considered whether to issue a subpoena for his testimony. We viewed the written answers to be inadequate. But at that point, our investigation had made significant progress and had produced substantial evidence for our report. We thus weighed the costs of potentially lengthy constitutional litigation, with resulting delay in finishing our investigation, against the anticipated benefits for our investigation and report. As explained in Volume II, Section H.B., we determined that the substantial quantity of information we had obtained from other sources allowed us to draw relevant factual conclusions on intent and credibility, which are often inferred from circumstantial evidence and assessed without direct testimony from the subject of the investigation.

I take that to mean that Mueller decided to end the investigation to prevent Trump’s refusals to testify to delay the release of the report for two years.

In his testimony, Mueller agreed, after some very specific questioning from former cop Val Demings, that Trump was not truthful in his answers to Mueller.

DEMINGS: Director Mueller, isn’t it fair to say that the president’s written answers were not only inadequate and incomplete because he didn’t answer many of your questions, but where he did his answers show that he wasn’t always being truthful.

MUELLER: There — I would say generally.

She laid out what I have — that Trump refused to correct his lies about Trump Tower Moscow, as well as that he obviously lied about his coordination on WikiLeaks. So lies are one of the things the Mueller Report documents for anyone who reads it attentively.

But Trump’s obstruction extends beyond his lies. His obstruction, as described in the Report, included attempts to bribe several different witnesses with pardons, including at minimum Manafort, Flynn, Cohen, and Stone (those aren’t the only witnesses and co-conspirators the evidence shows Mueller believes Trump bribed with promises of pardons, but I’ll leave it there for now).

So here’s what I think Mueller did. I suspect he ended his investigation when he did because he was unable to get any further so long as Trump continued to obstruct the investigation with promises of pardons. So long as Trump remains President, key details about what are egregious efforts to cheat to win will remain hidden. The ongoing investigations — into Manafort and Stone, at a minimum, but possibly into others up to and including the President’s son — cannot go further so long as any prosecutorial effort can be reversed with a pardon.

That said, some of those details will be revealed for the first time starting this week, in the Stone trial. And, if the Parnas and Fruman influence operation is, indeed, related to Manafort’s own, then Trump’s personal criminal involvement in that influence operation is being revealed as part of a parallel impeachment inquiry.

Which is to say that I suspect Mueller got out of the way to allow investigations that cannot be fully prosecuted so long as Trump remains President to continue, even as Congress starts to do its job under the Constitution. And Congress has finally started doing so.

The Guy Who Defended Roger Stone’s Campaign Finance Shenanigans Did Not Testify to the Grand Jury

In response to an order from DC Chief Judge Beryl Howell, the government has revealed the two witnesses of interest to Congress who did not testify to the grand jury. The first, Don Jr, should not surprise anyone who has been following closely, as that was clear as soon as the Mueller Report came out.

The other–Don McGahn–is far more interesting, especially since he was interviewed on five different occasions: November 30, December 12, December 14, 2017; March 8, 2018; and February 28, 2019.

Most likely, the reason has to do with privilege, as McGahn’s testimony, more than almost anyone else’s, implicated privilege (in part because many witnesses’ testimony cut off at the transition). McGahn ended up testifying far more than Trump knew, and it’s possible he did that by avoiding a subpoena, but had he been subpoenaed, it would provide the White House opportunity to object.

Elizabeth De la Vega said on Twitter it likely had to do with how valuable McGahn was in his five interviews. By not making him testify to the grand jury, she argued, you avoid creating a transcript that might undermine his credibility in the future. That’s certainly consistent with the Mueller Report statement finding McGahn to be “a credible witness with no motive to lie or exaggerate given the position he held in the White House.” But that reference is footnoted to say, “When this Office first interviewed McGahn about this topic, he was reluctant to share detailed information about what had occurred and only did so after continued questioning.” Plus, while McGahn testified more than any other witness not under a cooperation agreement, Steve Bannon and Hope Hicks testified a bunch of times, too (four and three times respectively), but were almost certainly put before the grand jury.

But there is a different, far more intriguing possibility.

First, remember that Roger Stone was investigated for more than lying to Congress (indeed, just the last four warrants against him, all dating to this year, mentioned just false statements and obstruction). Which crimes got named in which warrants is not entirely clear (this government filing and this Amy Berman Jackson opinion seem to conflict somewhat). Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(2)(C), was named in all Stone’s warrants before this year. But at least by August 3, 2018, the warrants against Stone listed a slew of other crimes:

  • 18 U.S.C. § 3 (accessory after the fact)
  • 18 U.S.C. § 4 (misprision of a felony)
  • 18 U.S.C. § 371 (conspiracy)
  • 18 U.S.C. §§ 1505 and 1512 (obstruction of justice)
  • 18 U.S.C. § 1513 (witness tampering)
  • 18 U.S.C. § 1343 (wire fraud)
  • 18 U.S.C. § 1349 (attempt and conspiracy to commit wire fraud)
  • 52 U.S.C. § 30121 (foreign contribution ban)

For whatever reason, the government seems to have decided not to charge CFAA (if, indeed, Stone was the actual target of that investigation). They may have given up trying to charge him for encouraging or acting as an accessory after the fact.

The Mueller Report explains — albeit in mostly redacted form — what happened with the 52 U.S.C. § 30121 investigation. First Amendment and valuation concerns about a prosecution led Mueller not to charge it, even though he clearly seemed to think the stolen emails amounted to an illegal foreign campaign donation.

But that leaves wire fraud and conspiracy to commit wire fraud. During the month of August 2018, DOJ obtained at least 8 warrants relating to Stone including wire fraud. Beryl Howell — who in her order requiring the government unseal McGahn’s name, expressed puzzlement about why Don McGahn didn’t testify before the grand jury — approved at least five of those warrants. Rudolph Contreras approved one and James Boasberg approved two. So apparently, very late in the Stone investigation, three different judges thought there was probable cause Stone and others engaged in wire fraud (or tried to!).

And it’s not just those judges. Roger Stone’s aide, Andrew Miller, was happy to testify about WikiLeaks and Guccifer 2.0. But at least when his subpoena first became public, he wanted immunity to testify about the campaign finance stuff he had done for Stone.

Miller had asked for “some grant of immunity” regarding financial transactions involving political action committees for which he assisted Stone, according to Alicia Dearn, an attorney for Miller.

On that issue, Miller “would be asserting” his Fifth Amendment right to refuse to answer questions, Dearn said.

I’d like to consider the possibility that McGahn, Donald Trump’s campaign finance lawyer before he became White House counsel, was happy to testify about Trump’s attempt to obstruct justice, but less happy to testify about campaign finance issues.

Mind you, McGahn is not one of the personal injury lawyer types that Stone runs his campaign finance shenanigans with. Whatever else he is, McGahn is a professional, albeit an incredibly aggressive one.

That said, there are reasons it’s possible McGahn limited what he was willing to testify about with regards to work with Stone.

At Roger Stone’s trial the government plans (and has gotten permission) to introduce evidence that Stone lied about one additional thing in his HPSCI testimony, one that wasn’t charged but that like one of the charged lies, involves hiding that Stone kept the campaign in the loop on something.

At the pretrial conference held on September 25, 2019, the Court deferred ruling on that portion of the Government’s Notice of Intention to Introduce Rule 404(b) evidence [Dkt. # 140] that sought the introduction of evidence related to another alleged false statement to the HPSCI, which, like the statement charged in Count Six, relates to the defendant’s communications with the Trump campaign. After further review of the arguments made by the parties and the relevant authorities, and considering both the fact that the defendant has stated publicly that his alleged false statements were merely accidental, and that he is charged not only with making individual false statements, but also with corruptly endeavoring to obstruct the proceedings in general, the evidence will be admitted, with an appropriate limiting instruction. See Lavelle v. United States, 751 F.2d 1266, 1276 (D.C. Cir. 1985), citing United States v. DeLoach, 654 F.2d 763 (D.C. Cir. 1980) (given the defendant’s claim that she was simply confused and did not intend to deceive Congress, evidence of false testimony in other instances was relevant to her intent and passed the threshold under Rule 404(b)). The Court further finds that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

A September hearing about this topic made clear that it pertains to what Stone’s PACs were doing.

Assistant U.S. Attorney Michael J. Marando argued that Stone falsely denied communicating with Trump’s campaign about his political-action-committee-related activities, and that the lie revealed his calculated plan to cover up his ties to the campaign and obstruct the committee’s work.

It sounds like Stone cleared up this testimony (Stone sent two letters to HPSCI in 2018, and one of those would have come after Steve Bannon testified about emails that included a Stone demand that Rebekah Mercer provide him funding), which may be why he didn’t get charged on that front.

As I’ve suggested, if Stone was actively trying to deny that the work of his PACs had any interaction with the Trump campaign, it might explain why he threatened to sue me when I laid out how McGahn’s continued work for Trump related to Stone’s voter suppression efforts in 2016.

And remember: when Stone aide Andrew Miller did finally testify — after agreeing to at virtually the moment Mueller announced he was closing up shop — he did so before a new grand jury, after Beryl Howell agreed with prosecutors that they were in search of evidence for charges beyond what Stone had already been indicted on or against different defendants.

McGahn’s campaign finance work for Stone and Trump is one of the things he’d have no Executive Privilege claims to protect (though barring a showing of crime-fraud exception, he would have attorney-client privilege), since it all happened before inauguration.

Again, there are lot of more obvious explanations for why he didn’t testify before the grand jury. But we know that Mueller investigated these campaign finance issues, and we know McGahn was right in the thick of them.

Remember Roger the Rat-Fucker?

I’d like to point to three data points on Roger Stone, who is scheduled to go on trial on November 5, 364 days before the 2020 Presidential election.

Andrew Miller will testify against his former boss

First, Natasha Bertrand reported yesterday that Andrew Miller — the Roger Stone aide who fought a grand jury subpoena for a year — has been called as a government witness in Stone’s trial.

Andrew Miller, a longtime aide to Stone, received a subpoena in early August to appear as a government witness, said Miller’s lawyer, Paul Kamenar. Kamenar said he was “puzzled” as to why prosecutors wanted Miller as a government witness — he said earlier this year that he did not think Miller would be called — but confirmed that Miller plans to comply.

The result is that one of Stone’s closest aides will be testifying about him at his trial in November for lying to Congress about his dealings with WikiLeaks during the 2016 election. He has pleaded not guilty.

Miller worked with Stone for over a decade, managing his schedule and travel. Miller accompanied Stone to the Republican National Convention in 2016, meaning he might have insight into Stone’s activity around this time.

It’s clear that Miller’s lawyer doesn’t understand how his client’s testimony helps the government’s case. But it’s worth considering that we still don’t know how Roger Stone was learning of WikiLeaks’ plans. WikiLeaks claims they never spoke to him directly until later in the process, and Jerome Corsi does not appear to learn anything until weeks later (and I don’t rule out Corsi learning some of it from Stone, not vice-versa).

But, at least according to Michael Cohen’s testimony (which he suspects was corroborated by other sources), Stone called Donald Trump on either July 18 or 19 and told the candidate that WikiLeaks was about to drop a massive dump of emails that would damage Hillary’s campaign.

As I earlier stated, Mr. Trump knew from Roger Stone in advance about the WikiLeaks drop of emails. In July 2016, days before the Democratic Convention, I was in Mr. Trump’s office when his secretary announced that Roger Stone was on the phone. Mr. Trump put Mr. Stone on the speaker phone. Mr. Stone told Mr. Trump that he had just gotten off the phone with Julian Assange, and that Mr. Assange told Mr. Stone that within a couple of days, there would be a massive dump of emails that would damage Hillary Clinton’s campaign.

Mr. Trump responded by stating to the effect, Wouldn’t that be great.

[snip]

Ms. WASSERMAN SCHULTZ. Roger Stone says he never spoke with Mr. Trump about WikiLeaks. How can we corroborate what you are saying?

Mr. COHEN. I don’t know, but I suspect that the special counsel’s office and other government agencies have the information that you are seeking.

[snip]

Mr. COHEN. Yes. I’m sorry. I thought you were talking about a different set of documents that got dumped. So I was in Mr. Trump’s office. It was either July 18th or 19th. And, yes, he went ahead. I don’t know if the 35,000—or 30,000 emails was what he was referring to, but he certainly had knowledge.

Stone would have been calling from the RNC. It’s likely he learned about the emails not from Assange (he was just fluffing his value on that point), but someone whom he met with at the RNC — there has long been speculation this was Nigel Farage. Andrew Miller would be able to corroborate precisely who Stone was meeting before he called the candidate and gave him foreknowledge of the dump.

How Stone learned about WikiLeaks’ plans may be 404(b) information

Mind you, when and from whom Stone learned of WikiLeaks’ plans isn’t necessary to prove that he knowingly lied to the House Intelligence Committee in 2017.

But I suspect Miller’s subpoena comes after some sealed discussions in his case that started in June. On June 26, Judge Amy Berman Jackson permitted the government to file a 404(b) notice under seal as sealed docket item #139.

The Court grants the government’s motion to file under seal but notes it may revisit the need for the seal after it has reviewed the materials more closely. The Clerk of Court is directed to file under seal [139-1] Government’s Notice of Intention to Introduce Evidence Under Federal Rule of Evidence 404(b).

Then, on July 9, ABJ permitted Stone to file the response, as sealed docket item #143 (with two exhibits) under seal.

The Court grants defendant’s motion to file under seal but notes it may revisit the need for the seal after it has reviewed the materials more closely. The Clerk of Court is directed to file under seal [143-1] Defendant’s Response to Government’s Notice of Intention to Introduce Evidence Under Federal Rule of Evidence 404(b), [143-2] Exhibit A to the response, and [143-3] Exhibit B to the response.

On July 26, ABJ permitted the government to file, as sealed docket item #152 (with two exhibits) under seal as part of the motion in limine process deciding what will and will not be admitted.

The Clerk of Court is directed to file under seal [152-2] the Government’s Motion in Limine to Admit Two Newspaper Articles as Part of the Government’s Rule 404(b) Evidence, [152-3] Exhibit A, and [152-4] Exhibit B. Signed by Judge Amy Berman Jackson on 7/26/19.

There’s no sign of an order on 404(b) material (though there are other unexplained sealed docket items). But the fact that the government moved to pre-clear some newspaper articles as evidence under 404(b) may suggest ABJ has ruled.

Rule 404(b) governs whether or not you can introduce evidence that addresses character, other crimes, or other acts, beyond the scope of the indictment.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

It is often done to explain a defendant’s purported motive (as it was with Craig). So the government is seeking to provide other evidence of Stone’s rat-fuckery that is not, however, central to the charges against him, lying to Congress.

Which raises the question of what this 404(b) material might be and why it was submitted under seal. On the question of a seal, for comparison sake, the government sealed neither their request to submit evidence on Ukrainian procurement in Paul Manafort’s (aborted) trial under ABJ nor their request to submit evidence that Greg Craig was trying to curry favor with Manafort by hiring his daughter in the former White House’s (unsuccessful) prosecution under ABJ. Those weren’t hugely damning, sure, though the Craig detail was political damaging. Though this is obviously something more sensitive, either because the government still treats it as sensitive or because it would impair Stone’s ability to get a fair trial.

Details about how Stone learned of WikiLeaks’ plans would qualify as the former, and that’s something that Miller’s testimony is likely directly relevant to.

Details of how Stone kept candidate Trump informed of his plans at every step would qualify as the latter (and that’s a detail that is not spelled out in the indictment, even though it should have been).

Both would explain his motive to lie — whatever source he’s been hiding inside a nesting Matryoshka doll of lies constructed with Jerome Corsi, and the degree to which Donald Trump was pushing his rat-fucker to optimize the release of emails stolen by Russian military intelligence to help Trump get elected.

Aside from the detail that Miller’s accounting of Stone’s schedule at the RNC might explain who the source is, the rest of this is all speculative: these are possible answers, but just guesses.

Roger Stone’s birthday party for his freedom

Which brings us to the fundraising birthday card Stone sent out on August 27.

Sent by email and bitching about press coverage, especially the dig against CNN for covering his arrest live, the fundraiser risks falling afoul of ABJ’s gag again.

Nevertheless, Stone risks sanctions for violating the gag to remind his readers, one of whom — President Trump — he names twice, that his trial is quickly approaching. He reminds his readers of the cost he has already paid for not pleading guilty. He reassures his readers, including the named one, that he will not “testify falsely about anyone or anything,”

It’s unclear whether this is a demand for a pre-trial pardon (which would save Trump the embarrassment of the trial), or whether it’s an attempt to call Trump’s attention to his plight. But it’s little different from the messaging back and forth on pardons that Mueller laid out in his report.

Certainly Stone has seen something that makes him want to remind Trump of his oncoming trial.

 

Questions for Robert Mueller (and His Prosecutors) that Go Beyond the Show

I generally loathe the questions that people are drafting for Robert Mueller’s July 17 testimony before the House Judiciary and Intelligence Committees, largely because those questions are designed for a circus and not to learn information that’s useful for understanding the Mueller investigation. Here are the questions I’d ask instead (I’ll update these before Mueller testifies).

  1. Can you describe how you chose which “links between the Russian government and individuals associated with the campaign of President Donald Trump” to focus your investigation on?
  2. The warrants released in Michael Cohen’s case and other public materials show that your grand jury conducted investigations of people before Rod Rosenstein formally expanded the scope to include them in October 2017. Can you explain the relationship between investigative steps and the Rosenstein scope memos?
  3. Lisa Page has explained that in its initial phase, the investigation into Trump’s aides was separate from the larger investigation(s) into Russian interference. But ultimately, your office indicted Russians in both the trolling and the hack-and-leak conspiracies. How and when did those parts of DOJ’s investigation get integrated under SCO?
  4. An FD-302 memorializing a July 19, 2017 interview with Peter Strzok was released as part of Mike Flynn’s sentencing. Can you describe what the purpose of this interview was? How did the disclosure of Strzok’s texts with Lisa Page affect the recording (or perceived credibility) of this interview? Strzok was interviewed before that disclosure, but the 302 was not finalized until he had been removed from your team. Did his removal cause any delay in finalizing this 302?
  5. At the beginning of the investigation, your team investigated the criminal conduct of subjects unrelated to ties with Russia (for example, Paul Manafort’s ties with Ukraine, Mike Flynn’s ties to Turkey). Did the approach of the investigation change later in the process to immediately refer such issues to other offices (for example, Michael Cohen’s hush payments and graft)? If the approach changed, did your team or Rod Rosenstein drive this change? Is the Mystery Appellant related to a country other than Russia?
  6. Did your integration of other prosecutors (generally from DC USAO) into your prosecution teams stem from a resourcing issue or a desire to ensure continuity? What was the role of the three prosecutors who were just detailees to your team?
  7. Your report describes how FBI personnel shared foreign intelligence and counterintelligence information with the rest of FBI. For more than a year, FBI agents were embedded with your team for this purpose. Were these agents focused just on Russian activities, or did their focus include the actions of other countries and Americans? If their focus included Americans, did it include Trump associates? Did it include Trump himself?
  8. Can you describe the relationship between your GRU indictment and the WDPA one focused on the WADA hacks, and the relationship between your IRA indictment and the complaint against a Yevgeniy Prigozhin employee in EDVA? Can you describe the relationship between the Maria Butina prosecution and your investigation?
  9. Do you regret charging Concord Management in the IRA indictment? Do you have any insight on how indictments against Russian and other state targets should best be used?
  10. In discussions of Paul Manafort’s plea deal that took place as part of his breach hearing, Andrew Weissmann revealed that prosecutors didn’t vet his testimony as they would other cooperators. What led to this lack of vetting? Did the timing of the election and the potential impact Manafort’s DC trial might have play into the decision?
  11. What communication did you receive from whom in response to the BuzzFeed story on Trump’s role in Michael Cohen’s false testimony? How big an impact did that communication have on the decision to issue a correction?
  12. Did Matt Whitaker prevent you from describing Donald Trump specifically in Roger Stone’s indictment? Did you receive any feedback — from Whitaker or anyone else — for including a description of Trump in the Michael Cohen plea?
  13. Did Whitaker, Bill Barr, or Rosenstein weigh in on whether Trump should or could be subpoenaed? If so what did they say? Did any of the three impose time constraints that would have prevented you from subpoenaing the President?
  14. Multiple public reports describe Trump allies (possibly including Mike Flynn or his son) expressing certainty that Barr would shut down your investigation once he was confirmed. Did this happen? Can you describe what happened at the March 5, 2019 meeting where Barr was first briefed? Was that meeting really the first time you informed Rosenstein you would not make a determination on obstruction?
  15. You “ended” your investigation on March 22, at a time when at least two subpoena fights (Andrew Miller and Mystery Appellant) were ongoing. You finally resigned just minutes before Andrew Miller agreed to cooperate on May 29. Were these subpoenas for information critical to your investigation?
  16. If Don Jr told you he would invoke the Fifth if subpoenaed by the grand jury, would that fact be protected by grand jury secrecy? Are you aware of evidence you received involving the President’s son that would lead him to be less willing to testify to your prosecutors than to congressional committees? Can congressional committees obtain that information?
  17. Emin Agalarov canceled a concert tour to avoid subpoena in your investigation. Can you explain efforts to obtain testimony from this key player in the June 9 meeting? What other people did you try to obtain testimony from regarding the June 9 meeting?
  18. Did your investigation consider policy actions taken while Trump was President, such as Trump’s efforts to overturn Russian sanctions or his half-hearted efforts to comply with Congressional mandates to impose new ones?
  19. Can you describe how you treated actions authorized by Article II authority — such as the conduct of foreign policy, including sanctions, and the awarding of pardons — in your considerations of any criminal actions by the President?
  20. The President did not answer any questions about sanctions, even the one regarding discussions during the period of the election. Do you have unanswered questions about the role of sanctions relief and the Russian interference effort?
  21. Your report doesn’t include several of the most alarming interactions between Trump and Russia. It mentions how he told Sergey Lavrov and Sergey Kislyak he had fired Comey because of the Russian investigation, but did not mention that he shared classified Israeli intelligence at the meeting. Your report doesn’t mention the conversations Trump had with Vladimir Putin at the G-20 in Hamburg, including one pertaining to “adoptions,” while he was working on the June 9 meeting. The report doesn’t mention the Helsinki meeting. Did your investigation consider these interactions with Russia? If not, are you aware of another part of the government that did scrutinize these events?
  22. Why did you include Trump’s efforts to mislead the public about the June 9 meeting when it didn’t fit your team’s own terms for obstructive acts?
  23. You generally do not name the Trump lawyers who had discussions, including about pardons, with subjects of the investigation. How many different lawyers are described in your report to have had such discussions?
  24. You asked — but the President provided only a partial answer — whether he had considered issuing a pardon for Julian Assange prior to the inauguration. Did you investigate the public efforts — including by Roger Stone — to pardon Assange during Trump’s Administration?
  25. The cooperation addendum in Mike Flynn’s case reveals that he participated in discussions about reaching out to WikiLeaks in the wake of the October 7 Podesta releases. But that does not appear in the unredacted parts of your report. Is the entire scope of the campaign’s interactions with WikiLeaks covered in the Roger Stone indictment?
  26. Hope Hicks has claimed to be unaware of a strategy to coordinate the WikiLeaks releases, yet even the unredacted parts of the report make it clear there was a concerted effort to optimize the releases. Is this a difference in vocabulary? Does it reflect unreliability on the part of Hicks’ testimony? Or did discussions of WikiLeaks remain partially segregated from the communications staff of the campaign?
  27. How many witnesses confirmed knowing of conversations between Roger Stone and Donald Trump about WikiLeaks’ upcoming releases?
  28. The President’s answers regarding the Trump Tower Moscow match the false story for which Michael Cohen pled guilty, meaning the President, in his sworn answers, provided responses you have determined was a false story. After Cohen pled guilty, the President and his lawyer made public claims that are wholly inconsistent with his sworn written answer to you. You offered him an opportunity to clean up his sworn answer, but he did not. Do you consider the President’s current answer on this topic to be a lie?
  29. Did Trump Organization provide all the emails pertaining to the Trump Tower Moscow deal before you subpoenaed the organization in early 2018? Did they provide those emails in response to that subpoena?
  30. In his answers to your questions, President Trump claimed that you received “an email from a Sergei Prikhodko, who identified himself as Deputy Prime Minister of the Russian Federation … inviting me to participate in the St. Petersburg International Economic Forum.” But the footnotes to your discussion of that exchange describe no email. Did your team receive any email? Does the public record — showing that Trump never signed the declination letter to that investigation — show that Trump did not decline that invitation?

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. 

Beryl Howell’s Whack-a-Mole Grand Juries

Coverage of the May 29 court hearing that led Roger Stone aide Andrew Miller to testify before a different grand jury describes how his attorney, Paul Kamenar, tried to argue it would be an abuse of the grand jury, because Stone has already been indicted. But after prosecutors (including former Mueller prosecutor Aaron Zelinsky) explained why they needed Miller’s testimony ex parte, Howell upheld the contempt order. (See also CNN and ABC’s coverage.)

Miller, of St. Louis, was on speakerphone Wednesday for the hearing at which U.S. District Chief Judge Beryl A. Howell denied a last-ditch motion by Miller’s attorney, Paul D. Kamenar, to block his client’s grand jury appearance.

Kamenar argued it is an abuse of grand jury process for prosecutors to seek pretrial testimony from a witness about a subject who has already been indicted, also noting that Mueller has issued his final report.

[snip]

Howell said it was long-settled law that prosecutors can properly obtain grand jury testimony to develop additional charges against an indicted target, or to investigate individuals not yet facing charges. Prosecutors can also use evidence against Stone in his pending November trial if it was collected incidentally and not the primary focus of Miller’s questioning, she said.

“The government is not abusing the grand jury process in this case, and the government has need of Mr. Miller’s testimony,” Howell ruled from the bench, upholding her August contempt finding when Miller failed to testify.

“If Mr. Miller does not appear before the grand jury on Friday, he will be in contempt and there will be an arrest warrant issued for him. Do you understand, Mr. Miller?” Howell asked.

“Yes, your honor,” Miller answered over speakerphone.

Prosecutors told the judge in a sealed bench conversation about the ongoing matters in which they seek Miller’s help, but not before Kamenar said that in a May 6 email prosecutors confirmed that one question would regard “what work he did for Stone from 2016 on.”

Presumably, Howell would have known (because she has presided over Mueller’s grand jury from the start) that Miller would testify before a different grand jury.

We now know that Howell had a similar conversation over two months earlier in a hearing (starting at PDF 166) in the Mystery Appellant’s somewhat successful effort to withhold information the government wanted about a state-owned bank. At the hearing, DC Assistant US Attorney Zia Faruqui had replaced Zainab Ahmad as lead prosecutor on the issue (he had started to take over earlier in March, certainly by March 21).

Howell started the hearing by asking why the subpoena was still pending given that Mueller had announced the end of his investigation a week earlier.

Howell: [T]he first question I am going to ask the Government is in the last paragraph of their reply which is: What are we doing here? Why isn’t this whole matter over as of 5 p.m., March 22, when Mr. Mueller delivered his report?

Faruqui: Your Honor, I can say with absolute certainty that the case is robust, ongoing; we are working within our office. The matter was transferred back in fact to the U.S. Attorney’s Office. We have met numerous times with agents. We have reviewed materials, and our plan is to go forward with our investigative steps. We are in constant communication with the special counsel’s office.

It’s very different, I think, to the outside world; but, within the Government, theoretically we are one Government. One AUSA may leave, one prosecutor; but, when there is a case of this import, there is no reason that it would stop because a separate focused matter has been presented with a letter and report.

In response, Howell makes it very clear that this subpoena — for which she would have seen abundant sealed description — was originally presented to her as part of the investigation into Russian influence in the 2016 election, which leads her to be really confused about why the government would still need the information.

Howell: Well, correct me if I’m wrong, but this matter was presented to the Court as one part of the investigation into whether there was Russian influence with the 2016 election, presidential election; and that’s been resolved by the — at least the summary of the special counsel’s report. So there are other aspects of that investigation that led in other directions. So I thought this part — this particular subpoena and leg of the investigation was also related precisely to what Mr. Mueller said he resolved in his report delivered at 5 p.m. on March 22.

So are you saying that this is a different aspect of this investigation related to different inquiries than that?

Faruqui: Yes. That’s correct, Your Honor. I am happy to approach. I think it’s —

Howell: Well, there’s been nothing submitted that — in the Government’s opposition papers that provides any detail about how these records have continuing relevancy to something subject to investigation by the grand jury to warrant continued fines to coerce additional compliance, which we’re going to get to in a minute, or whether there is anything all relevant to an ongoing grand jury investigation from these records that the Government’s continuing to seek.

Faruqui then explains that this matter started in the DC US Attorney’s Office, got bumped to Mueller, and has now been passed back to DC.

Faruqui: So if we can have an opportunity now, or we can refer to portions of the ex parte prior affidavits of the special counsel, I think we can either now or file supplemental briefing to Your Honor to try to further elucidate that. Certainly, the special counsel’s remit, I think, allowed them to take this investigation in.

The investigation initially came into our office and was passed to the special counsel at that time because I think there was a question within the realm of their remit. However, I think it’s very clear I think the matter —

Howell: So are you saying that this investigation started with the D.C. U.S. Attorney’s Office, spent some time within the special counsel’s jurisdiction, so to speak, and is now being given back to the U.S. Attorney’s Office?

Faruqui describes the investigation as being very time consuming and resource-intensive.

Faruqui: That is correct, Your Honor. And it does in fact involve issues that have not or are in any way close to being resolved and very much is a live issue that requires, I think, a great deal of resources, time, and attention by the Government, which is why we believe the subpoena is in fact still a live controversy that requires, I think, a great of [sic] deal resources, time, and attention by the Government, which is why we believe the subpoena is in fact still a live controversy that requires contempt because it goes to the core of the question in this investigation.

Howell: All right. Well, before I got the Government’s opposition, I didn’t know whether the Government’s opposition was going to be, oh, forget the whole thing. I have read all of the ex parte filings, and I am puzzled.

Faurqui: We can supplement —

Howell: What’s still going on here?

Faruqui: We can certainly supplement, Your Honor, with an additional ex parte supplement that will go into greater detail explaining what is being investigated and how it is in no way resolved by what may or may not be in the Mueller report or in AG Barr’s letter to Congress and the public.

These are live issues that require immediate attention from the U.S. Attorney’s Office and from which the grand jury — because the grand jury matter is still alive and being thoroughly investigated, we require the Court to intervene and assist us as we try to force the contemnor to comply fully with our subpoena.

Howell then makes sure the government still is really using a grand jury and Faruqui — in a detail that probably parallels and precedes what happened with Stone’s case — explains that they’re still using the existing grand jury but plan to move onto a new one when the Mueller one expires.

Howell: So you are still presenting evidence to this grand jury that was being used by the special counsel’s office?

Faruqui: We — yesterday, anticipating that the grand jury may or may not — what its life cycle is, it’s a little unclear.

Howell: Well, I am very aware of its life cycle.

Faruqui: We are unaware. I apologize, Your Honor, Yes. It’s your grand jury; you certainly know.

We are trying to sort those issues out with the special counsel. However, we have reopened it yesterday in the grand jury, understanding that the current grand juries that are soon to expire; but with the intention that, when those expire, we will reopen a new one. We do plan to seek additional records, both in — and, potentially, additional testimony as well.

This exchange has significance beyond the Mystery Appellant matter, to Stone and (because the government insists there is are ongoing investigations pertaining to the stuff covered in Paul Manafort’s plea breach hearing) Manafort as well. This case might not even be considered a referral in Mueller’s report, given that it started in DCUSAO. But from Faruqui’s description — and Mystery Appellant’s invocations, at times, to only being bound by Presidential sanctions and turning this into a diplomatic incident — this is a very significant and serious investigation.

Howell, having read multiple secret filings that led her to believe this was about Russian interference in the US election, got really confused after reading Bill Barr’s 4-page memo declaring victory and then learning that something this big, that must, in some way, relate to Russian interference, is still pending.

Aside from being a testament to just how misleading Barr’s memo was, that such confusion was possible for someone privy to the details of the investigation should focus far more attention on the limited scope of Barr’s exonerations. They pertain just to Russian election interference (not, say, graft), and just conspiring with the Russian government (though, if it’s a Russian bank, the Mystery Appellant clearly counts as that). And even the election-related events continue only through the Transition, not afterwards.

The Mueller Investigation is over and Trump has declared victory, but it appears that what Mueller achieved was protecting significant aspects of it long enough to see them metastasize to new grand juries.

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.