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“Was Wiped:” A Grammar Lesson for the Frothers

The frothy right is in a tizzy again.

Judicial Watch got a FOIA response that the frothers are reading out of context — without even reading the existing public record much less asking the question they now claim to want to answer — and claiming that Mueller’s attorneys kept wiping their phones.

The FOIA was for records pertaining to Lisa Page and Peter Strzok’s use of DOJ-issued mobile phones while assigned to Mueller’s team. The FOIA was not for a description of the record-keeping in the Mueller office. The FOIA was not for a final accounting of every text that every Mueller team member sent while working for Mueller. If a document mentions Page or Strzok’s phones, it is included here; if it does not, it was withheld.

That said, the frothy right is largely ignoring what the documents show, and instead referring to a single tracking sheet in isolation from the rest, to conclude that multiple Mueller officials wiped their own phones.

To understand what the documents show, it’s best to separate it into what the documents show about Page and Strzok, and then what they show about everyone else.

Mueller’s Office discovered too late that Page and Strzok’s phones had been reset according to standard procedure

The documents show, first of all, that the available paper trail backs the explanations around what happened to Page and Strzok’s Mueller iPhones, which both used for less than 3 months in 2017 while they also used (and sent damning texts on) their FBI issue Samsung phones.

The documents show that Lisa Page was among the first people assigned a Mueller iPhone. Justice Management Department’s Christopher Greer asked for iPhones specifically to deploy a standard mobile technology (though a later document reflects Adam Jed appears to have gotten an Android). Then, after a 45-day assignment, Page left. As the first person to leave the team, she left before processes were put into place to document all that; Page is actually the one who initiated the bureaucratic process of leaving. “Since we have our first detail employee leaving us, it is time to roll out our first form/policy,” Mueller’s administrative officer explained. Mueller’s Records Officer noted she didn’t have to be at the meeting, but provided an Exit Checklist to use on Page’s out-processing. The Records Officer further directed, weeks before anyone discovered Page’s damning texts with Strzok,

Please make sure [Page] doesn’t delete any text messages off her DOJ iPhone, if any.

Everything else should be saved on her H drive on JCON and in her email. This will be good for me as the RSO to go behind and see how that function works.

Mueller’s Administrative Officer also couldn’t make the meeting. But he noted that Page had a laptop “which may already been in [redacted] area, a DOJ cell phone & charger” and noted that “All equipment that I need will be covered as you go through the form.”

The FOIAed documents don’t reveal this, but a DOJ IG Report released in December 2018 reveal that Page left her devices on a shelf in the office she was using.

The SCO Executive Officer completed Page’s Exit Clearance Certification, but said that she did not physically receive Page’s issued iPhone and laptop. During a phone call, Page indicated to SCO that she had left her assigned cell phone and laptop on a bookshelf at the office on her final day there.

On July 17, two days after she left, that Administrative Officer confirmed that, “I have her phone and laptop.”

That is, everyone involved was trying to do it right, but Page was the first person put through this process so everyone admitted they were instituting procedures as they went.

Out-processing of Peter Strzok in August, in the wake of the discovery of Strzok’s texts with Page, was a good deal more terse. That said, the Records Officer did review his phone for anything that had to be saved on September 6, 2017, and found nothing of interest.

Still, their Exit Forms show both returned their iPhone. (Strzok; Page)

It’s only in January 2018, as DOJ IG started to look into their texts, that Mueller’s office discovered they couldn’t account for Page’s iPhone. JMD ultimately found it, but not until September 2018. The phone showed that it had been reset to factory settings, which was standard DOJ policy, on July 31, 2017, two weeks after Page turned it over and left SCO.

In fall 2018 and again in January 2019, numerous people at DOJ tried to find alternative ways to reconstruct any texts Page and Strzok sent on their Mueller iPhones. Because the effort started over a year after they had stopped using the phones, neither DOJ nor Verizon had even log files from the texts anymore. So a DOJ official reviewed Strzok’s phone and found nothing, may not have reviewed Page’s phone, but nevertheless found no evidence Page tried to evade review.

That is, for the subject Judicial Watch was pursuing, the FOIA was a bust.

In response to the Page-Strzok scandal, Mueller appears to have adopted a standard higher than DOJ generally

The Page-Strzok files also suggest certain things about what Mueller did as his investigation was roiled by claims focusing on the two former FBIers.

  • It appears that, after the shit started hitting the fan, Mueller engaged in record-keeping above-and-beyond that required by DOJ guidelines (that’s what the frothers are complaining about)
  • When things started hitting the fan, Mueller’s Chief of Staff Aaron Zebley seems to have started taking a very active role in the response
  • FBI continued to issue Page and Strzok updated phones even while they had Mueller iPhones, which is probably the case for at least the FBI employees on Mueller’s team, making confusion about phones more likely
  • Both DOJ and Verizon would have some ability to reconstruct any texts for phones with problems identified in real time, as opposed to the year it took with Page and Strzok

Here’s the standard DOJ adopts with regards to the use of texts on DOJ-issued phones. DOJ guidelines for retaining texts all stem from discovery obligations — and DOJ, unlike FBI, puts the onus on the user to retain texts.

The OIG reviewed DOJ Policy Statement 0801.04, approved September 21, 2016, which establishes DOJ retention policy for email and other types of electronic messaging, to include text messages. Policy 0801.04 states that electronic messages related to criminal or civil investigations sent or received by DOJ employees engaged in those investigations must be retained in accordance with the retention requirements applicable to the investigation and component specific policies on retention of those messages.

OIG also reviewed DOJ Instruction 0801.04.02, approved November 22, 2016, which provides guidance and best practices on component use of electronic messaging tools and applications for component business purposes.

Section C of 0801.04.02 (Recordkeeping Guidance for Electronic Messaging Tools in Use in the DOJ) subsection 9 (Text Messaging), states that text messaging may be used by staff only if it has been approved by the Head of the Component and in the manner specifically permitted by written component policies. Additional guidance was provided in a memo from the Deputy Attorney General dated March 30, 20 I I, titled ‘Guidance on the Use, Preservation, and Disclosure of Electronic Communications in Federal Criminal Cases.’ The memo states that electronic communications should be preserved if they are deemed substantive. Substantive communications include:

    • Factual information about investigative activity
    • Factual information obtained during interviews or interactions with witnesses (including victims), potential witnesses, experts, informants, or cooperators
    • Factual discussions related to the merits of evidence
    • Factual information or opinions relating to the credibility or bias of witnesses, informants and potential witnesses; and
    • Other factual information that is potentially discoverable under Brady, Giglio, Rule 16 or Rule 26.2 (Jencks Act).

So people using DOJ phones are only required to keep stuff that is case related. DOJ IG had, in 2015, complained about DOJ’s retention of texts, but the standard remained unchanged in 2018.

In January 2018, after someone had leaked news of the Page-Strzok texts to the NYT and after DOJ released their texts to the press (possibly constituting a privacy violation and definitely deviating from the norm of not releasing anything still under investigation by DOJ IG) and after Senator Chuck Grassley and Ron Johnson started making unsubstantiated claims about the texts, Mueller’s Chief of Staff, Aaron Zebley appears to have taken a very active role in the response. That’s when Mueller Executive Officer Beth McGarry Mueller’s Chief of Staff sent Page and Strzok’s Exit Paperwork to Zebley. And that’s when Mueller and DOJ IG discovered no one could find Page’s phone.

Not said in any of these documents, but revealed in the DOJ IG Report, is that Page and Strzok continued to use their FBI Samsung phones, and indeed were issued updated Samsungs after being assigned to Mueller’s team.

Based on OIG’s examination of their FBI mobile devices, Page and Strzok also retained and continued to use their FBI mobile devices. Specifically, on or about May 18, 2017, Page received an FBI-issued Samsung Galaxy S7 mobile device to replace her previously-issued FBI Samsung Galaxy SS. On or about July 5, 2017, Strzok received an FBl-issued Samsung Galaxy S7 mobile device to replace his previously-issued FBI Samsung Galaxy S5.

This was already known, because that’s where all their compromising texts were. But among other things, it makes it clear that some Mueller team members (especially the FBI employees, virtually all of whose names are redacted), may also have continued to use their existing FBI issue phone even while using the Mueller iPhone. With the exception of the 70-something year old James Quarles, whose phone “wiped itself without intervention from him” in April 2018 and who did not use text or have any photos on it when it was wiped, the suspicious events Republicans are complaining about came from DOJ employees, who might be most likely to juggle multiple phones and passwords.

Finally, one more detail of note in the Page and Strzok documents pertains to the other revelations. As noted, as part of the effort to find any texts they might have sent, DOJ reached out to Verizon, to try to figure out what kind of text traffic had been on their phones. Verizon responded that it only keeps texting metadata for 365 days, with rolling age-off, so it couldn’t help (in fall 2018 and January 2019) to access what Page and Strzok had done with their phones in summer 2017. As part of that discussion, however, JMD’s Greer noted that “our airwatch logs may only go back 1 year.” Airwatch is the portal via which corporate users of iPhones track the usage of their employees. It means that so long as something happens with a phone within a year, some data should be available on Airwatch. That is to say, DOJ had two means by which to reconstruct the content of a phone with a problem discovered in real time, means not available given the delay in looking for Page and Strzok’s phones.

The log of phone reviews covering all Mueller personnel

Ultimately, Judicial Watch’s FOIA showed that the documents they were after — the paper trail on the Page and Strzok phones — backs up what has always been claimed about the phones. They were treated via routine process, but as a result there were no texts to review when DOJ IG got around to review them.

So they instead made a stink about just four pages in the release, what appears to be a log — probably started in January 2018, as the Page and Strzok issues continued to roil — of every instance where a Mueller staff phone got reviewed.

The log starts with Page, Strzok, and two other people whose identities are redacted. It has an additional number of entries interspersed with ones from January 2018 which may be those out-processed under DOJ’s normal terms, prior to the initiation of this log. After that, though, the log seems to show meticulous record-keeping both as people were out-processed and any time something went haywire with a phone.

Here, for example, is the entry showing that Kevin Clinesmith’s phone was reviewed on March 5, 2018, and two texts and three photos that were not required to be kept as a DOJ record were emailed to him.

Here, for example, is a record showing that the phone of Uzo Asonye, a local prosecutor added to Manafort’s tax cheat trial in EDVA, got cleared of ten voice mails that pre-dated his involvement with the Mueller team when he was out-processed from the Mueller team.

In other words, Mueller’s team made sure phones were clean, even if they hadn’t been when the came into the team.

Some of what the frothers are pointing to as suspicious is someone wiping their phone when they get it — good security practice and, since the phone is new to them, nothing that will endanger records.

In others of the instances the frothers are complaining about, the log shows that someone immediately alerted record-keepers when they wiped their phone, which (if there were a concern) would provide DOJ an opportunity to check Airwatch.

One thing Republicans are focusing most closely on is that Andrew Weissmann twice “accidentally” wiped his phone, having done so on March 8 and September 27, 2018.

Note, both these instances involve the same phone, and also the same phone he had in what appears to be the final inventory. So while this is not entirely above suspicion, it’s not the case that Weissmann kept wiping phones before DOJ had a chance to check what he had on there before he got a new one. Rather, it appears he wiped the same phone twice and told the record-keepers about it in real time. Moreover, the wipes do not correlate to one possible damning explanation of them, that Weissmann was trying to cover up leaks to the press that Manafort would later accuse him and the Mueller team generally of.

There appears to have been nothing unusual about Weissmann’s out-processing review in March 2019.

So when DOJ had a chance to look at how Weissmann had used his phone for the last six months he used a Mueller phone, it found nothing.

Another of the things Republicans find particularly suspicious is that the phones of Kyle Freeny and Rush Atkinson were both wiped within days of each other (Freeny is a woman, which some of the self-described experts on the Mueller investigation got wrong in their stories on this). For Freeny and one other person (likely an FBI agent), this appears to have been an out-processing review.

Note that here and in many other cases, the description uses the passive voice. “Was [accidentally] wiped,” with no subject identified. There’s good reason to believe — based on the Records Officer retroactive descriptions about Strzok’s phone, the occasional use of the first person, and multiple references to the Administrative Officer — that these are written from the voice of the Records Officer, not the lawyer or agent in question. That is, many of the incidences of descriptions that a phone “was wiped” in no way suggest the person used the phone wiped it. Rather, it seems to be the Records Officer or someone else in the review process. And for a number of those instances there’s a clear explanation why the phone was wiped, which would be normal process for most DOJ transitions in any case.

It does appear Atkinson’s phone was wiped just days after Freeny’s phone, though it was identified in plenty of time to obtain the metadata, if needed.

But like Weissmann, Atkinson’s out-processing review (curiously, the very last one from the entire Mueller team) showed nothing unusual.

In short, what the frothy right appears to have worked themselves up about is that after the conduct of Page and Strzok raised concerns, Mueller imposed record-keeping that DOJ would not otherwise have done, record-keeping that attempted (even though it is not required by DOJ policy) to track every single personal text sent on those phones. And for many of the instances that frothers look at with suspicion, they’re actually seeing, instead, a normal DOJ treatment of a phone.

Timeline

May 20, 2017: Add four accounts, give them iPhones, including Lisa Page and Brandon Van Grack.

May 31, 2017: Page and Strzok first logged into SCO laptops.

June 15, 2017: What kind of tracking do we need for phones? Answer: IMEI. [Includes non-exempt team through that date.]

July 13, 2017: Out-processing of Lisa Page, for whom the process was invented. [Includes list of admin personnel.]

July 17, 2017: Page had handed over her devices, SCO still working with JMD to figure out how to back up common drive.

July 27, 2017: Michael Horowitz tells Mueller of Page-Strzok texts he discovered.

July 31, 2017: Page phone reset to factory settings.

August 9, 2017: Strzok sends exit checklists.

August 10, 2017: Strzok separates from office.

September 6, 2017: Records Officer reviews Strzok’s phone.

November 30, 2017: Mike Flynn informed of Strzok’s texts.

December 2, 2017: NYT reports on Strzok’s texts.

December 13, 2017: DOJ releases first batch of Page-Strzok texts, while trying to hide they were the source.

January 19, 2018: Stephen Boyd informs Chuck Grassley of archiving problems.

January 22, 2018: Strzok’s Mueller iPhone located.

January 23, 2018: Attempt to get texts from Verizon, but both content and metadata no longer stored.

January 25, 2018: Beth McGarry sends Aaron Zebley exit forms from Strzok and Page.

January 26, 2018: LFW notes that they’ve lost Page’s phone, but hands the search off to JMD. Greer notes, specifically, however, that “SCO policy was to reuse them and not hold.”

Late January 2018: FBI Inspection Division finds FBI Samsung phones, provide to DOJ IG.

February 8, 2018: Trump supporter Cesar Sayoc starts plotting attack on Strzok and others.

March 5, 2018: Kevin Clinesmith’s out-processing shows nothing unusual.

March 8, 2018: Andrew Weissmann wipes his phone.

May 4, 2018: Page resigns from FBI.

June 2018: DOJ IG discovers more texts, changes conclusion of Midyear Exam report.

June 14, 2018: Release of Midyear Exam report.

August 10, 2018: Strzok fired from FBI.

Early September 2018: Justice Management Division finds Page’s Mueller iPhone, provides to DOJ IG.

September 13, 2018: SCO Records Officer contacts DOJ IG about what status they got Page’s phone in.

September 21, 2018: Draft language between records officer and Aaron Zebley for DOJ IG Report. Also an attempt to check Airwatch for backups to the phones, but they only go back one year.

September 27, 2018: Andrew Weissmann wipes his phone.

October 17, 2018: DOJ IG informs SCO Records Officer that they have the phone, but that it had been reset to factory settings.

October 22, 2018: DOJ IG Cyber Agent follows up about DOJ IG Report language.

November 15, 2018: FBI Data Collection tool not archiving texts reliably.

November 27, 2018: Kyle Freeny’s phone wiped as part of out-processing.

November 29, 2018: Rush Atkinson’s phone accidentally wiped.

Late December 2018: DOJ IG releases report on archiving of DOJ phones.

December 27, 2018: Zebley responds to Rudy Giuliani claim about destruction of evidence.

January 18, 2019: JMD asks Verizon for texting data for Page and Strzok’s phones, but Verizon’s metadata records only go back 365 days.

January 30-31, 2019: LFW asks to cancel Strzok’s phone.

March 28, 2019: Andrew Weissmann’s out-processing review shows nothing unusual.

June 11, 2019: Rush Atkinson’s out-processing review shows nothing unusual.

December 9, 2019: DOJ IG releases Carter Page IG Report.

Unclear date: Inventory of all phones.

The Clinesmith Information Suggests that John Durham Misunderstands His Investigation

Paragraph 2 of the Kevin Clinesmith Criminal Information reads:

On July 31, 2016, the FBI opened a Foreign Agents Registration Act (“FARA”) investigation known as Crossfire Hurricane into whether individual(s) associated with Donald J. Trump for President Campaign were witting of and/or coordinating activities with the Russian government. By August 16, 2016, the FBI had opened individual cases under the Crossfire Hurricane umbrella on four United States persons including a United States person referred to herein as “Individual 1.”

That paragraph is, at a minimum, deeply dishonest.

But I believe — and four experts I asked on the topic (which does not include Andrew Weissmann, who has since tweeted about this) agree — that it may be something worse. It appears to be evidence that John Durham doesn’t understand his own investigation.

The paragraph is dishonest because it suggests that the investigation into Carter Page arose exclusively out of the Crossfire Hurricane predication. That’s false.

As the DOJ IG Report made clear, the NY Field Office opened an investigation into Page during the spring of 2016 upon discovering that, when he was identified in the indictment of one of the Russians trying to recruit him in 2013, he went to other Russians and apparently tried to reassure them that he had not told the FBI about their efforts (and when interviewed by the FBI, Page repeatedly said sharing non-public economic information with known Russian intelligence officers was a positive for him).

On March 2, 2016, the NYFO CI Agent and SDNY Assistant United States Attorneys interviewed Carter Page in preparation for the trial of one of the indicted Russian intelligence officers. During the interview, Page stated that he knew he was the person referred to as Male-1 in the indictment and further said that he had identified himself as Male-1 to a Russian Minister and various Russian officials at a United Nations event in “the spirit of openness.” The NYFO CI Agent told us she returned to her office after the interview and discussed with her supervisor opening a counterintelligence case on Page based on his statement to Russian officials that he believed he was Male-1 in the indictment and his continued contact with Russian intelligence officers.

The FBI’s NYFO CI squad supervisor (NYFO CI Supervisor) told us she believed she should have opened a counterintelligence case on Carter Page prior to March 2, 2016 based on his continued contacts with Russian intelligence officers; however, she said the squad was preparing for a big trial, and they did not focus on Page until he was interviewed again on March 2. She told us that after the March 2 interview, she called CD’s Counterespionage Section at FBI Headquarters to determine whether Page had any security clearances and to ask for guidance as to what type of investigation to open on Page. 183 On April 1, 2016, the NYFO CI Supervisor received an email from the Counterespionage Section advising her to open a [redacted] investigation on Page.

[snip]

On April 6, 2016, NYFO opened a counterintelligence [redacted] investigation on Carter Page under a code name the FBI assigned to him (NYFO investigation) based on his contacts with Russian intelligence officers and his statement to Russian officials that he was “Male-1” in the SONY indictment. Based on our review of documents in the NYFO case file, as well as our interview of the NYFO CI Agent, there was limited investigative activity in the NYFO investigation between April 6 and the Crossfire Hurricane team’s opening of its investigation of Page on August 10. The NYFO CI Agent told the OIG that the steps she took in the first few months of the case were to observe whether any other intelligence officers contacted Page and to prepare national security letters seeking Carter Page’s cell phone number(s) and residence information. The NYFO CI agent said that she did not use any CHSs to target Page during the NYFO investigation. The NYFO investigation was transferred to the Crossfire Hurricane team on August 10 and became part of the Crossfire Hurricane investigation.

Carter Page was the subject of a legitimate counterintelligence investigation months before Crossfire Hurricane got opened, based off conduct that continued three years after CIA had ended approval for Page as an operational contact, based off conduct with multiple Russians — at least one a known intelligence officer — that Page did not share with the CIA. Carter Page was the subject of a counterintelligence investigation started irrespective of all ties Page had formerly had with the CIA that is the issue at the core of the Clinesmith Information.

By pretending that every investigation into Trump’s flunkies (including the ongoing Money Laundering investigation into Paul Manafort) got opened by Crossfire Hurricane, Durham creates a narrative that is every bit as dishonest as the worst stories about Crossfire Hurricane.

Durham is doing precisely what he is tasked with investigating others for.

But Durham’s mischaracterization of the investigation as a “FARA” investigation is far more troubling. Either he doesn’t know what he’s doing — replicating an error that DOJ IG had to fix in its Carter Page investigation — or he’s deliberately misrepresenting what was a counterintelligence investigation that, at the start, envisioned the possibility that Page was unwittingly being cultivated.

And from this error, paragraph 4 of the Information creates the (again, false) impression that the suspicions that Carter Page might be a willing agent of Russia all came from the Crossfire Hurricane team.

Each of these FISA applications allege there was probable cause that Individual #1 was a knowing agent of a foreign power, specifically Russia.

Again, that’s false! Page told the FBI, repeatedly, that he thought it was a good thing to share non-public information with people he knew to be Russian intelligence officers. He told the FBI that well before Kevin Clinesmith got involved at all. He told the FBI that years after CIA no longer considered him an approved operational contact. That was the basis for investigating him, long before any of the people Durham is investigating got involved.

As I’ve noted, it took DOJ IG eleven days after publishing its report in December before it discovered that it didn’t know what FBI was investigating. After those eleven days, it issued a correction for some (but not all) of the references where it incorrectly portrayed the investigation as limited to FARA.

On page 57, we added the specific provision of the United States Code where the Foreign Agents Registration Act (FARA) is codified, and revised a footnote in order to reference prior OIG work examining the Department’s enforcement and administration of FARA.

But there remain incorrect treatments of this nuance, and the IG Report conducted a First Amendment analysis about Carter Page that should have been mooted as soon as he admitted he was sharing information — economic information with no political tie — with people he knew to be Russian intelligence officers.

Still, at least DOJ IG explained the source of confusion: for any investigation involving registering as a foreign agent, the FBI uses the same case file number.

Crossfire Hurricane was opened by CD and was assigned a case number used by the FBI for possible violations of the Foreign Agents Registration Act (FARA), 22 U.S.C. § 611, et seq., and 18 U.S.C. § 951 (Agents of Foreign Governments). 170 As described in Chapter Two, the AG Guidelines recognize that activities subject to investigation as “threats to the national security” may also involve violations or potential violations of federal criminal laws, or may serve important purposes outside the ambit of normal criminal investigation and prosecution by informing national security decisions. Given such potential overlap in subject matter, neither the AG Guidelines nor the DIOG require the FBI to differently label its activities as criminal investigations, national security investigations, or foreign intelligence collections. Rather, the AG Guidelines state that, where an authorized purpose exists, all of the FBI’s legal authorities are available for deployment in all cases to which they apply . 171

That’s why the EC opening the investigation — which has subsequently been released — calls this a “FARA” investigation; because it’s a bureaucratic detail that in no way circumscribes the scope of the investigation. But the EC opening the investigation into Flynn — and assuredly, the EC opening the investigation into Page, though no one has released that yet — specifically names 18 USC 951 as well.

[See the update below for the evolution of the case ID# 97 that was used with Crossfire Hurricane.]

From the start, this was about more than doing political work for Russians.

People who know how FBI filing systems work, or know how FARA overlaps with 951, or know what the “COUNTERINTELLIGENCE” label appearing before the designation of this as a FARA case, would understand that FARA’s not a description of the actual investigation.

Apparently, Durham and his team (which does not include any National Security Division personnel, at least on the Clinesmith Information) don’t know or don’t care about any of that. His spokesperson did not return a call asking for clarification.

The point is, these were all counterintelligence investigations. As DOJ IG explained, the FBI may believe the investigation focuses on threats to national security and/or it may believe the investigation focuses on potential crimes. As one person I spoke with characterized this error, it’s like not knowing that the wall between intelligence and criminal investigations came down after 9/11.

And yet, Durham — who in December suggested he didn’t believe this investigation that he still treats as a criminal investigation was not properly predicated as a full investigation — appears not to understand that very basic fact about this investigation.

If Durham believes, erroneously, that the FBI opening a criminal investigation into Page into something that overlaps with First Amendment protected activity, it might explain why he hasn’t just closed up shop right now. It may explain why he claimed this was not a properly predicated full investigation. It may explain why he doesn’t understand why FBI continued the investigation based on behavior entirely unrelated to the Steele dossier.

But now Durham has made an assertion that likely arises from a total misunderstanding of what he’s investigating. He has betrayed that his entire investigation appears premised on a misunderstanding.

Update: I’ve fixed a reference to “operational contact,” which I originally had as “operational conduct.”

Update: Per a recently released Mike Flynn file, we know the case ID# for Crossfire Hurricane was 97F-HQ-063661. NARA describes how that case ID # started as a way to codify the Foreign Agents Registration Act. But then in 1950 it also came to include those who had knowledge of espionage, counter-espionage, or sabotage from a foreign country. Likewise, the FBI itself makes it clear that 97 covers both FARA and 18 USC 951. Durham only had to refer to a public FOIA document to understand his error.

In Previously Undisclosed December 2018 Interview, Jared Kushner Got Warned Falsely Claiming to Not Recall Is Still a Lie

BuzzFeed released another tranche of Mueller documents the other night. Generally, they’re as interesting for the small details as for any blockbuster reveals.

Someone got interviewed in October 2018 about recordings he made of Jay Sekulow’s conversations with him. A woman voluntarily allowed the FBI to take a forensic image of her refurbished iPhone 7 in October 2018, apparently so they could try to get the comms of its previous owner. The 302 for Brittany Kaiser (the Cambridge Analytica whistleblower) shows no b7A redactions for ongoing investigation, even though other 302s with CA related information do.

But I’m particularly intrigued that Jared Kushner had a previously undisclosed December 19, 2018 interview that didn’t even show up on the master list of Mueller interviews. It was conducted by Andrew Goldstein, Andrew Weissmann, and Zainab Ahmad, so it definitely was a (high profile) Mueller interview. (One Paul Manafort lie Meuller’s team was trying to sort through at the time likely pertained to Kushner, though I’m not sure Ahmad would be involved in an interview on that topic.)

Most of the interview, like the other Kushner interviews, is redacted, mostly under b5 (deliberative) redactions, though there are some b7A ones.

About the only thing left unredacted is this warning from Goldstein:

SASC Goldstein advised Kushner that the interview was being conducted under the same terms as the prior interview. SASC Goldstein advised Kushner that it was a crime to lie during the interview. SASC Goldstein advised Kushner that answering a question with “I don’t recall,” when you do recall, is a lie.

Which doesn’t say much about what Kushner said in this interview. It does reveal what he had said in past interviews.

In other words, Kushner at least attempted to pursue the same strategy his father-in-law did, by not recalling really damning information.

Admitted Former Foreign Agent Mike Flynn Demands More Classified Information

According to Mike Flynn’s Fox News lawyer, Sidney Powell, to “defend” himself in a guilty plea he has already sworn to twice under oath, he needs to obtain unredacted versions of a Comey memo showing he was not targeted with a FISA warrant and a FISA order showing that people who were targeted with FISA warrants might have been improperly scrutinized while they were overseas.

That’s just part of the batshittery included in a request for Brady material submitted to Emmet Sullivan last Friday.

The motion is 19 pages, most of which speaks in gross generalities about Brady obligations or repeats Ted Stevens Ted Stevens Ted Stevens over and over again, apparently a bid to convince Judge Emmet Sullivan that this case has been subject to the same kind of abuse that the late Senator’s was.

After several readings, I’ve discovered that Powell does make an argument in the motion: that if the government had provided Flynn with every damning detail it has on Peter Strzok, Flynn might not have pled guilty to lying to Strzok about his conversations with Russian Ambassador Sergey Kislyak or admitted that he used a kickback system to hide that he was a paid agent of Turkey while getting Top Secret briefings with candidate Trump.

They affirmatively suppressed evidence (hiding Brady material) that destroyed the credibility of their primary witness, impugned their entire case against Mr. Flynn, while at the same time putting excruciating pressure on him to enter his guilty plea and manipulating or controlling the press to their advantage to extort that plea. They continued to hide that exculpatory information for months—in direct contravention of this Court’s Order—and they continue to suppress exculpatory information to this day.

One of the things Powell argues Flynn should have received is unredacted copies of every text Strzok sent Lisa Page.

The government’s most stunning suppression of evidence is perhaps the text messages of Peter Srzok and Lisa Page. In July of 2017, (now over two years ago), the Inspector General of the Department of Justice advised Special Counsel of the extreme bias in the now infamous text messages of these two FBI employees. Mr. Van Grack did not produce a single text messages to the defense until March 13, 2018, when he gave them a link to then-publicly available messages. 14

Mr. Van Grack and Ms. Ahmad, among other things, did not disclose that FBI Agent Strzok had been fired from the Special Counsel team as its lead agent almost six months earlier because of his relationship with Deputy Director McCabe’s Counsel—who had also been on the Special Counsel team—and because of their text messages and conduct. One would think that more than a significant subset of those messages had to have been shared by the Inspector General of the Department of Justice with Special Counsel to warrant such a high-level and immediate personnel change. Indeed, Ms. Page left the Department of Justice because of her conduct, and Agent Strzok was terminated from the FBI because of it.

14 There have been additional belated productions. Each time more text messages are found, produced, or unredacted, there is more evidence of the corruption of those two agents. John Bowden, FBI Agent in Texts: ‘We’ll Stop’ Trump From Becoming President, THE HILL (June 14, 2018), https://thehill.com/policy/national-security/392284-fbi-agent-in-texts-well-stop-trumpfrom-becoming-president; see also U.S. Dept. of Justice, Office of the Inspector General, A Review of Various Actions by the Federal Bureau of Investigation and Department of Justice in Advance of the 2016 Election. Redacted Ed. Washington, D.C. (2018) (https://www.justice.gov/file/1071991/download). But the situation is even worse. After being notified by the Inspector General of the Department of Justice of the extraordinary text communications between Strzok and Page (more than 50,000 texts) and of their personal relationship, which further compromised them, Special Counsel and DOJ destroyed their cell phones. U.S. Dept. of Justice, Office of the Inspector General, Report of Investigation: Recovery of Text Messages From Certain FBI Mobile Devices, Redacted Ed. Washington, D.C. (2018), https://www.justice.gov/file/1071991/download. This is why our Motion also requests a preservation order like the one this Court entered in the Stevens case.

As is true of most of this filing, Powell gets some facts wrong here. The public record says that as soon as Mueller got the warning from Michael Horowitz about the texts, he started moving Strzok off the team. He didn’t need to see the texts, that they were there was issue enough. And Lisa Page remained at FBI until May 2018, even after the texts were released to the public.

And while, if Sullivan had taken Flynn’s initial guilty plea rather than Rudy Contreras, one might argue that Van Grack should have alerted Flynn’s lawyer Rob Kelner of the existence of the Strzok-Page texts, DOJ was not required to turn them over before Flynn’s guilty plea. Moreover, the problem with claiming that withholding the Strzok-Page texts prevented Flynn from taking them into account, is that they were made public the say day Emmet Sullivan issued his Brady order and Flynn effectively pled guilty again a year after they were released, in sworn statements where he also reiterated his satisfaction with his attorney, Kelner. Any texts suggesting bias had long been released; what remains redacted surely pertains either to their genuine privacy or to other counterintelligence investigations.

Finally, at least as far as public evidence goes, Strzok was, if anything, favorable to Flynn for the period he was part of the investigation. He found Flynn credible in the interview, and four months later didn’t think anything would come of the Mueller investigation. So the available evidence, at least, shows that Flynn was treated well by Strzok.

The filing also complains about information just turned over on August 16.

For example, just two weeks ago, Mr. Van Grack, Ms. Curtis, and Ms. Ballantine produced 330 pages of documents with an abject denial the production included any Brady material.6 Yet that production reveals significant Brady evidence that we include and discuss in our accompanying Motion (filed under seal because the prosecutors produced it under the Protective Order).

6 “[T]he government makes this production to you as a courtesy and not because production of this information is required by either Brady v. Maryland, 373 U.S. 83 (1963), or the Court’s Standing Order dated February 16, 2018.” Letter from Mr. Brandon Van Grack to Sidney K. Powell, Aug. 16, 2019.

Given the timing, it may well consist of the unclassified materials showing that Turkey (and possibly Russia) believed Flynn to be an easy mark and expected to be able to manipulate Trump through him. I await either the unsealing of Powell’s sealed filing or the government response to see if her complaints are any more worthy than this filing.

That’s unlikely. Because the rest of her memo makes a slew of claims that suggest she’s either so badly stuck inside the Fox bubble she doesn’t understand what the documents in question actually say, or doesn’t care. In her demand for other documents that won’t help Flynn she,

  • Misstates the seniority of Bruce Ohr
  • Falsely claims Bruce Ohr continued to serve as a back channel for Steele intelligence when in fact he was providing evidence to Bill Priestap about its shortcomings (whom the filing also impugns)
  • Suggests the Ohr memos pertain to Flynn; none of the ones released so far have the slightest bit to do with Flynn
  • Falsely suggests that Andrew Weissmann was in charge of the Flynn prosecution
  • Claims that Weissman and Zainab Ahmad had multiple meetings with Ohr when the only known meeting with him took place in fall 2016, before Flynn committed the crimes he pled guilty to; the meeting likely pertained to Paul Manafort, not Flynn
  • Includes a complaint from a Flynn associate that pertains to alleged DOD misconduct (under Trump) to suggest DOJ prosecutors are corrupt

In short, Powell takes all the random conspiracy theories about the investigation and throws them in a legal filing without even fact-checking them against the official documents, or even, at times, the frothy right propaganda outlets that first made the allegations.

Things get far weirder when it comes to her demands relating to FISA information. In a bid to claim this is all very pressing, Powell demands she get an unredacted version of the Comey IG Report.

Since our initial request to the Department by confidential letter dated June 6, 2019, we have identified additional documents that we specify in our Motion. Now, with the impending and just-released reports of the Inspector General, there may be more. The Report of the Inspector General regarding James Comey’s memos and leaks is replete with references to Mr. Flynn, and some information is redacted. There may also be a separate classified section relevant to Mr. Flynn. U.S. Dept. of Justice, Office of the Inspector General, Report of Investigation of Former Federal Bureau of Investigation Director James Comey’s Disclosure of Sensitive Investigative Information and Handling of Certain Memoranda, Oversight and Review Division Report 19-02 (Aug. 29, 2019), https://oig.justice.gov/reports/2019/o1902.pdf

The only redacted bits in the report are in Comey’s memos themselves — the stuff that the frothy right is currently claiming was so classified that Comey should have been prosecuted for leaving them in a SCIF at work. Along with unclassified sections quoting Trump saying he has “serious reservations about Mike Flynn’s judgment” (the redacted bit explains that the President was pissed that Flynn didn’t tell him about Putin’s congratulatory call right away) and “he had other concerns about Flynn,” there’s this section that redacts the answer to Reince Priebus’ question about whether the FBI has a FISA order on Flynn (PDF 74).

The answer, though, is almost certainly no. Even if the FBI obtained one later, there was no way that Comey would have told Priebus that Flynn was targeted; the FBI became more concerned about Flynn after this February 8 conversation, in part because of his continued lies about his work with Turkey.

Flynn’s team also demands an unredacted copy of this 2017 FISA 702 Rosemary Collyer opinion, though Powell’s understanding of it seems to based off Sara Carter’s egregiously erroneous reporting on it (here’s my analysis of the opinion).

Judge Rosemary Collyer, Chief Judge of the FISA court, has already found serious Fourth Amendment violations by the FBI in areas that likely also involve their actions against Mr. Flynn. Much of the NSA’s activity is in direct violation of the Fourth Amendment. Not only did the last administration—especially from late 2015 to 2016—dramatically increase its use and abuse of “about queries” in the NSA database, which Judge Collyer has noted was “a very serious Fourth Amendment issue,” it also expanded the distribution of the illegally obtained information among federal agencies.10 Judge Collyer determined that former FBI Director Comey gave illegal unsupervised access to raw NSA data to multiple private contractors. The court also noted that “the improper access granted the [redacted] contractors was apparently in place [redacted] and seems to have been the result of deliberate decision making” including by lawyers.11, 12

10 See also Charlie Savage, NSA Gets More Latitude to Share Intercepted Communications, THE N.Y. TIMES (Jan. 12, 2017) (reporting that Attorney General Loretta Lynch signed new rules for the NSA that permitted the agency to share raw intelligence with sixteen other agencies, thereby increasing the likelihood that personal information would be improperly disclosed), https://www.nytimes.com/2017/01/12/us/politics/nsa-gets-more-latitude-to-share-interceptedcommunications.html; See also Exec. Order No. 12,333, 3 C.F.R. 200 (1982), as amended by Exec. Order No. 13,284, 68 Fed. Reg. 4075 (Jan. 23, 2003).

11 FISC Mem. and Order, p. 19, 87 (Apr. 26, 2017) www.dni.gov/files/documents/icotr/51117/2016_Cert_FISC_Memo_Opin_Order_Apr_2017.pdf (noting that 85% of the queries targeting American citizens were unauthorized and illegal).

12 This classified and heavily redacted opinion is one of the documents for which defense counsel requests a security clearance and access.

As a threshold matter, Powell gets virtually everything about the Collyer memo wrong. Collyer didn’t track any increase in “about” searches (it was one of the problems with her memo, that she didn’t demand new numbers on what NSA was doing). It tracked a greater number of certain kinds of violations than previously known. The violation resulting in the 85% number she cited was on US persons targeted between November 2015 and May 2016, but the violation problem existed going back to 2012, when Flynn was still part of the Deep State. What Collyer called a Fourth Amendment violation involved problems with 704/705b targeting under FISA, which are individualized warrants usually tied to individualized warrants under Title I (that is, the kind of order we know targeted Carter Page), and probably a limited set of terrorism targets. Given that the Comey memo almost certainly hides evidence that Flynn was not targeted under FISA as of February 8, 2017, it means Flynn would have had to be a suspected terrorist to otherwise be affected. Moreover, the NSA claimed to have already fixed the behavioral problem by October 4, 2016, even before Carter Page was targeted. I had raised concerns that the problems might have led to problems with Page’s targeting, but since I’ve raised those concerns with Republicans and we haven’t heard about them, I’m now fairly convinced that didn’t happen.

At least some of the FBI violation — letting contractors access raw FISA information — was discontinued in April 2016, before the opening of the investigation into Trump’s flunkies, and probably all was discontinued by October 4, 2016, when it was reported. One specific violation that Powell references, however, pertains to 702 data, which could not have targeted Flynn.

Crazier still, some of the problems described in the opinion (such as that NSA at first only mitigated the problem on the tool most frequently used to conduct back door searches) cover things that happened on days in late January 2017 when a guy named Mike Flynn was National Security Advisor (see PDF 21).

Powell should take up her complaints with the guy running National Security at the time.

Craziest still, Powell describes data collected under EO 12333 as “illegally obtained information” (Powell correctly notes that the Obama Administration permitted sharing from NSA to other agencies, but that EO would not affect the sharing of FISA information at all). If EO 12333 data, which lifetime intelligence officer Mike Flynn used through his entire career, is illegally obtained, then it means lifetime intelligence officer Mike Flynn broke the law through his entire government career.

Sidney Powell is effectively accusing her client (incorrectly) of violating the law in a motion that attempts to argue he shouldn’t be punished for the laws he has already admitted breaking.

In short, most of the stuff we can check in this motion doesn’t help Flynn, at all.

And at least before Powell submitted this, Emmet Sullivan seemed unimpressed with her claims of abuse.

The government and Flynn also submitted a status report earlier on Friday. In the status report, the government was pretty circumspect. Flynn’s cooperation is done (which is what they said almost a year ago), they’d like to schedule sentencing for October or November, and they’ve complied with everything covered by Brady. Anything classified, like Powell is demanding, would be governed by CIPA and only then discoverable if it is helpful to the defense.

Powell made more demands in the status report, renewing her demand for a security clearance and insisting there are other versions of the Flynn 302.

To sort this out, the government suggested a hearing in early September, but Powell said such a hearing shouldn’t take place for another month (during which time some of the IG reports she’s sure will be helpful will come out).

The parties are unable to reach a joint response on the above topics. Accordingly, our respective responses are set forth separately below. Considering these disagreements, the government respectfully requests that the Court schedule a status conference. Defense counsel suggests that a status conference before 30 days would be too soon, but leaves the scheduling of such, if any, to the discretion of the Court. The government is available on September 4th, 5th, 9th or 10th of 2019, or thereafter as the Court may order. Defense counsel are not available on those specific dates.

Judge Sullivan apparently sided with the government (and scheduled the hearing for a date when Flynn’s attorneys claim to be unable to attend).

Every time Flynn has tried to get cute thus far, it has blown up in his face. And while Sullivan likely doesn’t know this, the timing of this status hearing could be particularly beneficial for the government, as they’ll know whether Judge Anthony Trenga will have thrown out Bijan Kian’s conviction because of the way it was charged before the hearing, something that would make it far more likely for the government to say Flynn’s flip-flop on flipping doesn’t amount to full cooperation.

And this filing isn’t even all that cute, as far as transparent bullshit goes.

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. 

Konstantin Kilimnik Shared Stolen Data Laundered Through Bannon’s Propaganda with State Department

John Solomon is feeding the frothy right with faux scandals based off dubious propaganda again.

What John Solomon’s document really shows

“Konstantin Kilimnik Shared Stolen Data Laundered Through Bannon’s Propaganda with State Department.”

That’s what the title of an article based off a document propagandist John Solomon turned into the latest frothy right shiny object. After all, the fragment of the email exchange between Kilimnik and a guy at State named Eric Schultz that Solomon includes ends with Kilimnik attributing the narrative that Trump is dangerously close to Russia to Hillary solely because Ken Vogel, who wrote an article critical of Manafort, once shared an article critical of Hillary with her team before publishing it. He cites a Breitbart story that, the same day the DNC emails stolen by Russia were released, focused on Vogel.

First, it is definitely HRC and her HQ who launched this shitstorm trying to use construction of Putin=very bad, Putin=Manafort, Manafort=Trump, therefore Trump=Putin=very bad.” If you Google Ken Vogel who wrote the original BS piece — it turns out he is the same journalist who created a controversy a month or so ago by clearing his stories with the DNC prior to submission. http://www.breitbart.com/big-journalism/2016/07/22/ken-vogel-politico-dnc-emails/ .

Just twenty days before Kilimnik wrote this, he had snuck into a cigar bar to meet Paul Manafort and discuss how Manafort planned to win Michigan in the same meeting where they discussed carving up Ukraine. At the time, Manafort’s childhood buddy Roger Stone was wandering around claiming he had advance knowledge of what WikiLeaks had, claims he interspersed with Steve Bannon propaganda. In fact, just the day before Kilimnik wrote this, Stone correctly predicted that WikiLeaks would ultimately drop John Podesta’s emails, which for Stone meant that Trump would have opposition material to counter the attacks on Manafort at the time.

The Mueller Report shows that four days earlier, Kilimnik had told Schultz what Trump’s internal polling data looked like, which is one of the ways the government proved that Manafort lied when he claimed he had only been sharing public data with Kilimnik.

[redacted] with multiple emails that Kilimnik sent to U.S. associates and press contacts between late July and mid-August of 2016. Those emails referenced “internal polling,” described the status of the Trump Campaign and Manafort’s role in it, and assessed Trump’s prospects for victory. 895

895 8/18/16 Email, Kilimnik to Dirkse; 8/18/16 Email, Kilimnik to Schultz; 8/18/ 16 Email, Kilimnik to Marson; 7/27/16 Email, Kilimnik to Ash; 8/18/16 Email, Kilimnik to Ash; 8/ 18/ 16 Email, Kilimnik to Jackson; 8/18/16 Email, Kilimnik to Mendoza-Wilson; 8/19/16 Email, Kilimnik to Patten. [my emphasis]

So at a time when Kilimnik had recently been trading Ukraine for Michigan, he wrote someone at the State Department and offered him up Steven Bannon’s remarkably quick attack on Hillary based off emails stolen by GRU to help Trump (remember, Bannon ran Breitbart at the time).

The latest GOP spin about Kilimnik is that he did not have ties to GRU (even though his Oleg Deripaska contact was sanctioned last year with all the other GRU people behind the 2016 attack), because he was actually a State Department informant. So what Solomon is showing — again, using GOP standards for scandal — is that someone he claims was a State Department informant was stovepiping information from the stolen documents, via Bannon, to State, perhaps in an effort to ratchet up attention on Hillary.

But that’s not the story Solomon tells (nor does Solomon give us the entire document to see what else Kilimnik was stovepiping into State as an alleged informant).

Solomon’s propaganda laundry sources and methods

Before I describe what Solomon’s latest fiction does claim, let’s talk about his sources and methods, which are fairly well-established at this point. Solomon has consistently been used in the effort to undermine the investigation into Trump this way:

  1. Executive or Congressional sources dump documents to Solomon
  2. Solomon writes a logically ridiculous story based off documents, without releasing the entirety of the documents so he can be fact-checked
  3. Congressional sources use Solomon’s story to make claims unsubstantiated by the actual evidence he got leaked but about which they can nevertheless submit bogus legal complaints
  4. The frothy right goes nuts over the latest pseudo scandal

This particular pseudo-scandal is based off the cherry-picked document showing Kilimnik doing what the frothy right accuses Christopher Steele of doing and a misreading of two warrant applications. In addition to the cherry-picked fragment from the Kilimnik email to Schultz, Solomon relies on the following documents:

In recent iterations, Solomon’s modus operandi has also been to make claims about what Mueller didn’t use. To that end, this story relies on the assertion that Mueller’s office got the Kilimnik email, sourced to three “sources familiar with the documents.”

Special counsel Robert Mueller’s team and the FBI were given copies of Kilimnik’s warning, according to three sources familiar with the documents.

Those three sources sound awfully similar to the three sources Solomon based his earlier story claiming Kilimnik was a State informant on.

Three sources with direct knowledge of the inner workings of Mueller’s office confirmed to me that the special prosecutor’s team had all of the FBI interviews with State officials, as well as Kilimnik’s intelligence reports to the U.S. Embassy, well before they portrayed him as a Russian sympathizer tied to Moscow intelligence or charged Kilimnik with participating with Manafort in a scheme to obstruct the Russia investigation.

Manafort obtained all these documents in discovery, so it would be unsurprising if that discovery found its way to Solomon.

So this fits the John Solomon propaganda laundry pattern:

  1. Sources that may have access to Manafort’s discovery dump documents to Solomon
  2. Solomon writes a logically ridiculous story, in this case hiding part of a document that might show more of how Kilimnik himself was laundering documents stolen by Russia and magnified by Steve Bannon into the State Department
  3. According to an update to Solomon’s story, Mark Meadows, “is asking the Justice Department inspector general to investigate the FBI and prosecutors’ handling of the Manafort warrants, including any media leaks and evidence that the government knew the black ledger was potentially unreliable or suspect evidence”
  4. The frothy right goes nuts (and Don Jr. goes even more nuts) (Update: Matt Gaetz just entered this into the record)

Solomon’s illogical misreading

Now that we’ve established that this is yet another instance of Trump supporters using Solomon as a tool to launder illogical propaganda to fire up the frothy right, let’s look at how he misreads the evidence.

Solomon argues that the “Black Ledger” allegedly showing that Paul Manafort received illicit payments from his Ukrainian paymasters was the excuse the FBI used to “resurrect” the criminal case against him, and that they used it after having been “warned repeatedly” that it was fake.

In search warrant affidavits, the FBI portrayed the ledger as one reason it resurrected a criminal case against Manafort that was dropped in 2014 and needed search warrants in 2017 for bank records to prove he worked for the Russian-backed Party of Regions in Ukraine.

There’s just one problem: The FBI’s public reliance on the ledger came months after the feds were warned repeatedly that the document couldn’t be trusted and likely was a fake, according to documents and more than a dozen interviews with knowledgeable sources.

[snip]

For example, agents mentioned the ledger in an affidavit supporting a July 2017 search warrant for Manafort’s house, citing it as one of the reasons the FBI resurrected the criminal case against Manafort.

“On August 19, 2016, after public reports regarding connections between Manafort, Ukraine and Russia — including an alleged ‘black ledger’ of off-the-book payments from the Party of Regions to Manafort — Manafort left his post as chairman of the Trump Campaign,” the July 25, 2017, FBI agent’s affidavit stated.

So there are two steps to his argument:

  1. The ledger served as an important reason behind the “resurrection” of the investigation into Manafort
  2. FBI Agents knew the ledger was fake but used it anyway

In addition, Solomon recycles a claim the very Manafort-friendly TS Ellis found unpersuasive about an FBI/Andrew Weissmann role in the AP story cited in the warrant application.

The FBI did not claim that the ledger served as an important reason behind the “resurrection” of the investigation into Manafort

Logically, all the documents Solomon have been leaked only matter if it is true that the ledger was a key reason why the investigation into Manafort remained ongoing in 2017.

But neither of the warrants show that.

The July warrant is to search Manafort’s condo in conjunction with FBAR, FARA, bank fraud, money laundering, and foreign national donations (this is the first known warrant tied to the June 9 meeting). The reference to the Black Ledger stories comes in a paragraph specifically introduced as “by way of background.” It’s background — critical background for why Manafort still didn’t want to properly register under FARA — but not submitted as proof at all.

6. By way of background concerning Manafort, based on publicly available information, in March of 2016, Manafort officially joined Donald J. Trump for President, Inc. (the ‘Trunp) Campaign”), the presidential campaign of then candidate Trump, in order to, among other things, help.manage the delegate process for the Republican National Convention. In May of 2016, Manafort became chairman of the Trump Campaign. In June of 2016, Manafort reportedly became de facto manager for the Trun^ Campaign with the departure of prior campaign manager Corey Lewandowski. On August 19, 2016, after public reports regarding connections between Manafort, Ukraine, and Russia – including an alleged “black ledger” of off-the-book payments from the Party of Regions to Manafort – Manafort left his post as chairman of the Trump Campaign.

The very next paragraph includes a transition marking the beginning of the guts of the proof of probable cause:

Portions of the information set forth below

In other words, the ledger reference only serves to explain why Manafort got fired, which is important background for why he was hiding his sleazy influence peddling. It is not part of the probable cause proof at all.

In any case, the reference is actually to both the NYT and AP’s stories, the latter of which only reported on the extent of Manafort’s undisclosed lobbying and didn’t reference the ledger at all. (Note, Vogel was not involved in any of this, which makes Kilimnik’s claim that all the ties of Trump to Putin came from him tough to understand.)

Notably, Solomon doesn’t mention the May 2017 affidavit to search Manafort’s storage unit, which, because it comes earlier, is a better read of how the government came to focus on Manafort (in significant part because it was not part of Mueller’s investigation), and which was incorporated by reference in the paragraph following the one mentioning Manafort’s resignation and attached to the July affidavit. That affidavit describes the ledger as something the FBI was actively investigating.

20. In addition, law enforcement agents are investigating whether or not all income received by Manafort and Gates was properly reported as required under U.S. law. In the summer of 2016, investigators from Ukraine’s National Anti-Corruption Bureau obtained a handwritten ledger said to belong to the Party of Regions (“ledger”). The ledger contains hundreds of pages of entries purporting to show payments made to numerous Ukrainians and other officials

21. The ledger contained entries indicating that Manafort had been paid $ 12.7 million by the Party of Regions in 22 separate payments that occurred between 2007 and 2012. U.S. law enforcement is investigating whether any of these sums we paid to Manafort or (jates or others for their benefit.

So when Theresa Buchanan approved the July warrant, she was reminded that she had already approved the May warrant describing the ledger as still under investigation.

The October warrant was to seize the bank accounts Manafort got from the Federal Savings Bank in Chicago — these are the loans that Manafort got by trading a Trump campaign position to Steve Calk. The passage in question appears in a section titled, “Evidence of DMI’s work on behalf of the Party of Regions in the United States in 2005,” following a discussion of how under the Bush Administration, Manafort secretly shared details from NSC discussions about Ukraine with Rinat Akhmetov to show that “Our strategy in the United States is working.”

As released, it’s not actually clear how the FBI Agent is using the April AP story, which confirms Manafort received a payment  in 2007 that may be associated with the 2005 and 2006 lobbying described in the section. The probable cause assertion remains redacted, which might mean it involved sensitive intelligence. The only thing unredacted, however, is that there are payments in the ledger that match known payments Manafort got in 2007 and 2009, which is a way to introduce Manafort’s claim, in 2017, that he got paid according to his clients’ wishes.

That quote comes from this non-denial denial that the ledger could be true based off the fact that Manafort never got paid in cash.

In a statement to the AP on Tuesday, Manafort did not deny that his firm received the money but said “any wire transactions received by my company are legitimate payments for political consulting work that was provided. I invoiced my clients and they paid via wire transfer, which I received through a U.S. bank.”

Manafort noted that he agreed to be paid according to his “clients’ preferred financial institutions and instructions.”

On Wednesday, Manafort’s spokesman Jason Maloni provided an additional statement to the AP, saying that Manafort received all of his payments via wire transfers conducted through the international banking system.

“Mr. Manafort’s work in Ukraine was totally open and appropriate, and wire transfers for international work are perfectly legal,” Maloni said.

He noted that Manafort had never been paid in cash. Instead, he said Manafort’s exclusive use of wire transfers for payment undermines the descriptions of the ledger last year given by Ukrainian anti-corruption authorities and a lawmaker that the ledger detailed cash payments.

Manafort has pled guilty to the two key details included in this passage in the affidavit: that he was lobbying for the Party of Regions as early as 2006, and that he was trying to hide that relationship (see ¶¶4, 6, and 7 for those admissions). So the assertion in question — that Manafort was lobbying for Akhmetov in 2006 and got paid for it in 2007 — was not faulty. Moreover, the AP story in question specifically said that it hard confirmed those two payments, which would seem to raise questions about 2016 claims that the ledger was totally unreliable.

So to sum up:

  • The May 2017 warrant Solomon doesn’t mention but which was incorporated by reference and attachment into the July one describes the FBI still investigating the ledger
  • The July 2017 warrant doesn’t rely on either the ledger or the story about it as proof; rather, the story about it (but not the ledger) is described as background that explains why Manafort continued to lie about his ties to Ukraine
  • What the FBI used the ledger for in October 2017 not only had been corroborated after the 2016 evidence claiming the ledger was totally bunk, but Manafort has since pled guilty to the substance it addresses

The key claim behind Solomon’s breathless propaganda is bullshit.

FBI Agents knew the ledger was fake but used it anyway

How the FBI actually used the ledger each of those three times is important to Solomon’s claim that the FBI “knew” the ledger was fake but used it anyway. Solomon claims that “documents and more than a dozen interviews with knowledgeable sources” prove that “the feds were warned repeatedly that the document couldn’t be trusted and likely was a fake.” But he only provides two pieces of evidence. First, he cites Nazar Kholodnytsky’s claims about the ledger (but not records of how those he spoke with responded).

Ukraine’s top anticorruption prosecutor, Nazar Kholodnytsky, told me he warned the U.S. State Department’s law enforcement liaison and multiple FBI agents in late summer 2016 that Ukrainian authorities who recovered the ledger believed it likely was a fraud.

“It was not to be considered a document of Manafort. It was not authenticated. And at that time it should not be used in any way to bring accusations against anybody,” Kholodnytsky said, recalling what he told FBI agents.

Kholodnytsky has been at the center of Trump-related and his own scandals in recent months, so I’m interested in when Solomon interviewed him (and whether Rudy Giuliani was involved). But assuming his representation of what he told the FBI is true and was confirmed (which, if true, Manafort would have gotten in discovery, but which Solomon doesn’t mention), it doesn’t change that the ledger was not used to bring accusations against anyone — though was still being investigated in 2017.

Nor does Solomon’s reliance on Kilimnik’s claims help. Kilimnik, after all, said, “I am pretty sure Paul is not vulnerable on either black cash or Fara stuff.” Not only was Kilimnik wrong about both Manafort and his other American partner Sam Patten’s vulnerability on FARA, but he took a number of actions over the course of the investigation into Manafort — working with Alex van der Zwaan to suppress evidence of FARA violations back in 2012 and reaching out to other consultants to hide their US lobbying for Manafort — that led to criminal charges for himself and others specifically on FARA. That is, Kilimnik made these claims during a period when he was involved in several crimes to try to save Manafort from FARA crimes, so there’s no reason to treat what he says as reliable.

Further, the same email makes claims about Ukraine — notably, that “nobody will do anything for Ukraine other than Ukrainians” — that are in striking contrast to the actions he had taken 3 weeks earlier to get both the US and Russia to impose a solution on Ukraine, with Manafort’s help.

And ultimately, Kilimnik makes the same non-denial denial that Manafort was still making the following year.

I know for a fact that he did not know about the black cash existence — he never focused on such things, and could not have possibly taken large amounts of cash across three borders. It was always a different arrangement — payments were in wire transfers to his companies, which is not a violation (sort of SuperPAC scheme) and then he took his personal fee and fully paid his taxes etc.

Denying that Manafort knew of any cash payments is meaningless, since he also tried to keep plausible deniability about his Cayman shell companies. But it’s also now proven (in part by Manafort’s guilty pleas) that the shell companies he used weren’t a SuperPAC, his transfer of funds for payment weren’t all legal, and he didn’t pay his taxes.

In short, the smoking gun document Solomon has the right wing all frothy over actually shows that Kilimnik was at best ignorant and more likely willfully lying.

Solomon makes claims that even TS Ellis found unpersuasive

But as is his wont, Solomon doesn’t stop there. He tries to resuscitate a claim Manafort tried as part of his EDVA trial that Manafort friendly judge TS Ellis already ruled was bogus, suggesting that FBI and DOJ illegally leaked to the AP reporters behind one of these stories.

There are two glaring problems with that assertion.

First, the agent failed to disclose that both FBI officials and Department of Justice (DOJ) prosecutor Andrew Weissmann, who later became Mueller’s deputy, met with those AP reporters one day before the story was published and assisted their reporting.

An FBI record of the April 11, 2017, meeting declared that the AP reporters “were advised that they appeared to have a good understanding of Manafort’s business dealings” in Ukraine.

So, essentially, the FBI cited a leak that the government had facilitated and then used it to support the black ledger evidence, even though it had been clearly warned about the document.

In April 2018, Manafort’s team tried to argue that prosecutors had been illegally leaking about him, based in part on the April 2017 AP story. The government noted that nothing in the stories reflected grand jury information, the accusation lodged by Manafort. On June 29, Judge Ellis held a motions hearing including testimony from one of the FBI agents involved in the meeting with the AP, Jeffrey Pfeiffer. Pfeiffer covered both the AP meeting and the search of the storage facility, meaning Judge TS Ellis heard his testimony on both these issues at once. Pfeiffer described that he and others at the AP meeting actually no commented most questions, but did get investigative information regarding the storage unit from the AP.

Q. Now, you testified earlier that you searched the storage unit. How did you come to understand that Mr. Manafort used a storage unit?

A. I don’t recall exactly. It was either through my investigative efforts or through a meeting that occurred with reporters of the Associated Press.

[snip]

Q. And how did the Government representatives respond?

A. Generally, no comment as far as questions involving any sort of investigation.

Q. And based on the meeting, did it appear as though the reporters had conducted a substantial investigation with respect to Mr. Manafort?

A. They had.

Q. During that meeting, did one of the reporters mention a storage unit in Alexandria, Virginia, associated with Mr. Manafort?

A. He did.

Under cross-examination, Pfeiffer reiterated that the government mostly gave no comment to the AP, and he didn’t remember a comment that said the AP had a good understanding of Manafort’s business.

Q. So in reviewing some of the Jencks material that I was just provided, I wanted to ask you about a specific section, which is at the end of one of the memos that was written with respect to that meeting, and I want your comment on it. It says, “at the conclusion of the meeting, the AP reporters asked if we would be willing to tell them if they were off base or on the wrong track, and they were advised that they appear to have a good understanding of Manafort’s business dealings.” Now, you would agree that’s not “no comment,” correct?

A. Correct.

Q. Okay. And when it says, “they were advised,” who on the Government’s side was advising these AP reporters with respect to the nature of Mr. Manafort’s business dealings?

A. I don’t recall that being said, so I don’t — I wouldn’t be able to tell you who said it.

Solomon provides just one of the two Electronic Communications associated with that meeting. The one by Pfeiffer has a different focus than the one by Karen Greenaway that Solomon links, with much less focus on the ledger and much more on Manafort’s financial crimes. It describes the FBI giving no comment over and over. But both ECs make it clear that the AP came in with the ledger story. But the one Solomon does link shows the AP reporters raising two issues that show up in the warrant application: how Manafort first got introduced to Rinat Ahmetov and that Manafort shared a classified NSC document with Akhmetov.

The redaction shows that the FBI had some comment on the Brit who had introduced Akhmetov to Manafort, but didn’t tell the AP that. Nothing in these documents show that the FBI provided substantive information to the AP — they show the opposite, that AP provided information to the FBI and the FBI repeatedly offered no comment. They also definitively show that the AP came into the meeting with information about the ledger.

At the end of the hearing with Pfeiffer, TS Ellis took the leak issue under advisement, meaning he didn’t find Manafort’s case all that persuasive. A week later, Manafort tried to interest Ellis again, to no avail. In short, a very Manafort friendly judge has looked at both these questions and found them insufficiently persuasive to rule on. Solomon doesn’t mention that fact to his readers.

There’s abundant evidence to refute Solomon’s frothy claims. More importantly, there’s evidence that his smoking gun evidence, the email from Kilimnik to Schwartz, actually shows that Kilimnik was actively lying about both Ukraine and Manafort in the period when Republicans claim he was an honest informant to the State Department.

But it’s not John Solomon’s job to tell what the evidence actually shows.

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

Did Rod Rosenstein Pressure Mueller to Enter the Plea Deal with Paul Manafort?

Bill Barr’s admission the other day that he and Rod Rosenstein started talking about how to deny that Trump obstructed justice on March 5, long before even getting the Mueller Report, has raised real questions about whether the two men pushed Mueller to finish his investigation (even though the Mystery Appellant and Andrew Miller subpoenas were still pending).

But I’ve started wondering whether Rosenstein — the guy who promised Trump he’d “land the plane” while he was trying to keep his job — hasn’t been pressuring Mueller to finish up even longer than that.

At the beginning of Manafort’s breach hearing, Andrew Weissmann described how this plea deal was different from most normal plea deals.

There were two points that I wanted to make to the Court. There are a number of subparts to them.

But, the first point has to do with sort of the context in which we operated at the time that we entered into the agreement. As the Court will recall, the agreement was entered into just shortly before the trial was to commence before this Court, and it was after three proffer sessions. And then, of course, there were many debriefings after that. And a couple things about that timing that are relevant.

One, at the end of the third proffer session, before entering into the agreement, we had made clear to the defense that we were willing to go forward. But, that given the limited opportunity, and yet the need to make a decision because of the eminent [sic] trial, we wanted to make clear to the defense that, of course, we were going in with good faith.

But we could not say at that point that we either could say the defendant was being truthful or that the defendant was going to be able to meet the substantial assistance prong. In other words, two parts of the agreement.

Of course, I think everyone was hopeful that all of that would be met. But we wanted to make it clear to the defense that they weren’t being misled in any way as to what we were thinking.

And the second component of that is, I think, something unusual — there were two factors that were unusual in this case compared to, I think, the cases that all of us at this table have had in the past. One was, there’s enormous interest in what I will call — for lack of a better term — the intelligence that could be gathered from having a cooperating witness in this particular investigation. And that would account for the Government agreeing to have Mr. Manafort cooperate, even though it was after a trial. Because that’s certainly an — not — not — it’s not that that never happens, but it’s more atypical.

By the same token, there was an unusual factor — the second unusual factor, which was [redacted] the normal motives and incentives that are built into a cooperation agreement.

To sum up, it was unusual because:

  • They didn’t do all the vetting they would normally do before entering into a plea deal,
  • There was a big push to avoid the September 2018 trial
  • They entered a plea deal when they weren’t sure about Manafort’s reliability in part to get intelligence, not prosecutorial information
  • Another factor, which is redacted, which by context is likely to be Trump’s floating of a pardon

In other words, there was great pressure to enter into this plea deal that led them not to do the vetting they would normally have.

We already know from the breach determination that Manafort said some things during his proffers that led prosecutors to give him the plea deal, but about which he promptly changed his story. Those subjects include, at a minimum, the degree to which his business associate Konstantin Kilimnik had formally entered into a conspiracy with him, how his kickback system worked, and the criminality of some Trump associate who tried something in August 2016 to save Trump’s campaign.

But the breach determination also revealed that Manafort was always lying about his ongoing discussions with Kilimnik about a “peace” deal. Over the course of his “cooperation,” he came to admit some parts of it after being shown evidence, but he never offered up those details.

That means that when Mueller entered into that plea deal, they knew Manafort was lying to them, at least about the Ukrainian “peace” deals and his coordination with Kilimnik.

But the Mueller Report also reveals were also two details Manafort told them during his proffers that the prosecutors didn’t believe. Manafort told prosecutors that he could not recall “anyone informing candidate Trump of the [June 9] meeting, including Trump Jr;” prosecutors already had other testimony suggesting this was false, and the day after Manafort told them this on September 11, 2018 (and before they actually finalized the deal), Michael Cohen described Don Jr discussing a meeting secretly with Trump in this time period.  That same day, Manafort also told prosecutors, “that he did not believe Kilimnik was working as a Russian ‘spy,'” even though several other Kilimnik colleagues, including Rick Gates, had told Mueller’s team he was.

So Mueller knew Manafort was lying, and yet still gave him a plea deal, which had the effect of averting a trial that would have been a key focus of press attention during the midterm elections. I laid out how Manafort’s failed plea ended up providing cover during the election season in this post.

Rudy Giuliani, remember, repeatedly said that Mueller would have to wrap up the entire investigation before DOJ’s 90 day election season.

I know there are a lot of DOJ beat reporters trying to chase down whether Barr told Mueller he had to finish up as soon as he got cleared to oversee the investigation in March. But I wonder whether Rosenstein wasn’t already pressuring Mueller to finish, going back to August. If he was, that would change the import of Trump’s tactic to avoid testifying — first stalling through the election, and then refusing any real cooperation — significantly.

It would also change the import of the fact that prosecutors still claim that the investigation into Manafort is ongoing.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THE COURT: All right.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

THE COURT: You meant no downside to him?

MR. WEISSMANN: Yes.

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

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

THE COURT: That was where I got confused.

MR. WEISSMANN: Sorry.

THE COURT: All right.

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

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

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

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

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

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

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

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

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

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

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

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

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

And here’s why that’s interesting.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Rod Rosenstein Didn’t Even Clear Trump on All the Topics He Hired Mueller to Investigate

As I have noted, the William Barr memo everyone is reading to clear Trump and his flunkies of a conspiracy with Russia actually only clears the Trump campaign and those associated with it of conspiring or coordinating with the Russian government in its efforts to hack into computers and disseminate emails for purposes of influencing the election. The exoneration doesn’t even extend to coordinating with WikiLeaks, as Roger Stone is alleged to have done (though that, by itself, is not a crime).

More significantly, it is silent about whether Trump and his flunkies conspired with Russia in a quid pro quo trading election assistance and a real estate deal for policy considerations, the very same kind of election year shenanigans Barr has covered up once before with Iran-Contra.

And that’s important, because it means Barr and Rod Rosenstein haven’t even cleared Trump of what Rosenstein hired Mueller to investigate.

Jim Comey first described the investigation to include:

  1. The Russian government’s efforts to interfere in the 2016 election
  2. The nature of any links between individuals associated with the Trump campaign and the Russian government
  3. Whether there was any coordination between the campaign and Russia’s efforts

When Rosenstein appointed Mueller, he referenced Comey’s statement, but specifically mentioned just bullets 2 and 3 in his mandate, combining those two bullets into one that (unlike Comey’s original statement) was limited to just the Russian government, not Russia’s efforts generally.

  • any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and

In May 2017 when Rosenstein hired Mueller (and, according to public reports, through November 2017), the investigation into the hack-and-leak remained elsewhere at DOJ (significantly, but not entirely, in Pittsburgh and San Francisco).

When the FBI raided Paul Manafort on July 27, 2017 — a raid Rosenstein almost certainly approved personally —  they were looking for evidence (among other things) on the June 9, 2016 meeting in support of an investigation into accepting campaign contributions from a foreigners or a conspiracy to do so; there was no mention whatsoever of probable cause that Manafort had helped Russia hack Hillary Clinton. Six months after that raid, Mueller would learn that two months after the June 9 meeting, on August 2, 2016, Manafort shared Trump’s polling data with Konstantin Kilimnik at a meeting where he also discussed a Ukrainian peace deal that would amount to sanctions relief. Manafort lied about what happened at that meeting. In Andrew Weissmann’s opinion, he lied in hopes of getting a Trump pardon.

When the Mueller Report states, “the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities,” it does so after Manafort refused to explain why he shared that polling data, or whether he knew whom Konstantin Kilimnik was sharing it with, and significantly, whether he had reason to believe that either Kilimnik himself or Oleg Deripaska — neither themselves part of the Russian government but Deripaska unquestioningly with close ties to it — would share the data with the GRU hackers who were still hacking Hillary Clinton.

And yet the only “links and/or coordination” that Barr and Rosenstein addressed involved  an, “agreement–tacit or express–between the Trump Campaign and the Russian government on election interference.”

Because of Trump’s obstruction, we don’t know whether Manafort entered into an agreement with Kilimnik to trade sanctions relief for election assistance, but even if he did, it would not qualify as “coordination with the Russian government.” It would qualify as coordination with a cut-out for the Russian government.

Likewise, we know if Don Jr agreed to revisit sanctions relief after Natalia Veselnitskaya and the Agalarov family offered dirt on Hillary. But Don Jr wasn’t even officially part of the campaign, and while Veselnitskaya and Agalarov both have almost inseparable from the Russian government, they are not the Russian government and therefore would not qualify under this standard.

The nature of Manafort’s links to the Russian government via Kilimnik and Don Jr’s links to the Russian government via Veselnitskaya and Agalarov are squarely within Mueller’s mandate as laid out by Rosenstein. And those links are pretty fucking sketchy and possibly criminal, but quite possibly for reasons distant from the hack-and-leak. But by limiting the evaluation of the memo to whether the campaign coordinated directly with Russia on the hack-and-leak and not whether the links to Russia that Mueller discovered were criminally suspect, Rosenstein, with Barr, is not addressing one part of the job he hired Mueller to do.

That’s all the more true given the way that Barr, in consultation with Rosenstein, determined that Trump did not obstruct justice. An explicit part of Mueller’s mandate was to investigate the links between his campaign and Russia, including the link through Kilimnik to Deripaska and through him the Russian government. According to Weissmann, Trump’s actions led Manafort to refuse to explain those links.

In “conspiring” with Barr to give Trump the all-clear, Rosenstein didn’t address a significant part of the job he gave Mueller.

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. 

After Mueller: An Off-Ramp on Russia for the Venal Fucks

We don’t know what the Mueller report says, though given William Barr’s promise to brief the Judiciary Committee leaders this weekend and follow it with a public summary, it’s not likely to be that damning to Trump. But I can think of five mutually non-exclusive possibilities for the report:

  • Mueller ultimately found there was little fire behind the considerable amounts of smoke generated by Trump’s paranoia
  • The report will be very damning — showing a great deal of corruption — which nevertheless doesn’t amount to criminal behavior
  • Evidence that Manafort and Stone conspired with Russia to affect the election, but Mueller decided not to prosecute conspiracy itself because they’re both on the hook for the same prison sentence a conspiracy would net anyway, with far less evidentiary exposure
  • There’s evidence that others entered into a conspiracy with Russia to affect the election, but that couldn’t be charged because of evidentiary reasons that include classification concerns and presidential prerogatives over foreign policy, pardons, and firing employees
  • Mueller found strong evidence of a conspiracy with Russia, but Corsi, Manafort, and Stone’s lies (and Trump’s limited cooperation) prevented charging it

As many people have pointed out, this doesn’t mean Trump and his kin are out of jeopardy. This NYT piece summarizes a breathtaking number of known investigations, spanning at least four US Attorneys offices plus New York state, but I believe even it is not comprehensive.

All that said, we can anticipate a great deal of what the Mueller report will say by unpacking the lies Trump’s aides told to hide various ties to Russia: The report will show:

  • Trump pursued a ridiculously lucrative $300 million real estate deal even though the deal would use sanctioned banks, involve a former GRU officer as a broker, and require Putin’s personal involvement at least through July 2016.
  • The Russians chose to alert the campaign that they planned to dump Hillary emails, again packaging it with the promise of a meeting with Putin.
  • After the Russians had offered those emails and at a time when the family was pursuing that $300 million real estate deal, Don Jr took a meeting offering dirt on Hillary Clinton as “part of Russia and its government’s support for Mr. Trump.” At the end (per the sworn testimony of four people at the meeting) he said his father would revisit Magnitsky sanctions relief if he won. Contrary to the claim made in a statement authored by Trump, there was some effort to follow up on Jr’s assurances after the election.
  • The campaign asked rat-fucker Roger Stone to optimize the WikiLeaks releases and according to Jerome Corsi he had some success doing so.
  • In what Andrew Weissmann called a win-win (presumably meaning it could help Trump’s campaign or lead to a future business gig for him), Manafort provided Konstantin Kilimnik with polling data that got shared with Ukrainian and Russian oligarchs. At the same meeting, he discussed a “peace” plan for Ukraine that would amount to sanctions relief.
  • Trump undercut Obama’s response to the Russian hacks in December 2016, in part because he believed retaliation for the hacks devalued his victory. Either for that reason, to pay off Russia, and/or to pursue his preferred policy, Trump tried to mitigate any sanctions, an attempt that has (with the notable exception of those targeting Oleg Deripaska) been thwarted by Congress.

We know all of these things — save the Stone optimization detail, which will be litigated at trial unless Trump pardons him first — to be true, either because Trump’s aides and others have already sworn they are true, and/or because we’ve seen documentary evidence proving it.

That’s a great deal of evidence of a quid pro quo — of Trump trading campaign assistance for sanctions relief. All the reasons above may explain why Mueller didn’t charge it, with the added important detail that Trump has long been a fan of Putin. Trump ran openly on sanctions relief and Presidents get broad authority to set their own foreign policy, and that may be why all this coziness didn’t amount to criminal behavior: because a majority of the electoral college voted (with Russia’s involvement) to support those policies.

Whatever reason this didn’t get charged as a crime (it may well have been for several involved, including Trump), several things are clear.

First, consider all this from the perspective of Russia: over and over, they exploited Trump’s epic narcissism and venality. Particularly with regards to the Trump Tower deal, they did so in a way that would be especially damaging, particularly given that even while a former GRU officer was brokering the deal, the GRU was hacking Trump’s opponent. They often did so in ways that would be readily discovered, once the FBI decided to check Kilimnik’s Gmail account. Russia did this in ways that would make it especially difficult for Trump to come clean about it, even if he were an upstanding honest person.

Partly as a result, partly because he’s a narcissist who wanted to deny that he had illicit help to win, and partly because he’s a compulsive liar, Trump and his aides all lied about what they’ve now sworn to be true. Over and over again.

And that raised the stakes of the Russian investigation, which in turn further polarized the country.

As I noted here, that only added to the value of Russia’s intervention. Not only did Trump’s defensiveness make him prefer what Putin told him to what American Russian experts and his intelligence community would tell him, but he set about destroying the FBI in an effort to deny the facts that his aides ultimately swore were true. Sure, Russia hasn’t gotten its sanctions relief, yet. But it has gotten the President himself to attack the American justice system, something Putin loves to do.

We don’t know what the Mueller report will say about Trump’s role in all this, and how that will affect the rest of his presidency. We do know he remains under investigation for his cheating (as an unindicted co-conspirator in the ongoing hush money investigation) and his venality (in the inauguration investigation, at a minimum).

We do know, however, that whatever is in that report is what Mueller wants in it; none of the (Acting) Attorneys General supervising him thwarted his work, though Trump’s refusal to be interviewed may have.

But we also know that Russia succeeded wildly with its attack in 2016 and since.

Democrats and Republicans are going to continue being at each other’s throats over Trump’s policies and judges. Trump will continue to be a venal narcissist who obstructs legitimate oversight into his mismanagement of government.

Both sides, however, would do well to take this report — whatever it says — as the final word on this part of the Russian attack in 2016, and set about protecting the country from the next attack it will launch.

An unbelievable swath of this country — including the denialists who say all those things that Trump’s own aides swore to doesn’t amount to evidence of wrongdoing — have chosen for tribal reasons (and sometimes venal ones) to side with kleptocratic Russians over the protection of America. Now that the report is done, it’s time to focus on protecting the United States again.

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.