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But Her Emails: How Trump Trained the GOP to Hate Rule of Law 1

Note: I haven’t quite finished spinning my Ball of Thread out of which I will explain how Trump trained the GOP to hate rule of law. But for a number of reasons — this great Heather Cox Richardson piece marking the Maidan anniversary and Paul Manafort’s role in it, the arrest of Alexander Smirnov in conjunction with a 2020 attempt, assisted by Bill Barr, to frame Joe Biden, and the heightened urgency of the fate of Ukraine — I thought I’d publish this now.

In an alternate reality, the final report laying out how Trump knowingly requested and accepted help — help he may have denied, but which did come from Russia — to win the 2016 election might have started with a nod to these exhibits, submitted in conjunction with Paul Manafort’s guilty plea on September 14, 2018.

The criminal information and exhibits describe Manafort’s efforts to help Viktor Yanukovych neutralize his pro-Western female opponent, Yulia Tymoshenko, first by prosecuting her for corruption, then by launching an increasingly complex transnational influence operation to “plant some stink on Tymo” to justify the prosecution. The exhibits describe how Manafort tried to spin a Skadden Arps report finding that Tymoshenko’s criminal intent “is almost non-existent,” and then how Manafort criminally covered up that effort at spin. There’s even a passage describing how Manafort manufactured a claim that Tymoshenko was antisemitic by getting an Israeli to make a statement to the NYPost.

“Bada bing bada boom,” Manafort bragged about his success in manufacturing a fake election scandal.

It was all an effort, Manafort described, to claim Ukraine was building a “‘rule of law’ democracy” so the EU and US would ignore Yanukovich’s human rights violations.

In that same alternate reality, Manafort would have honored his plea deal, and in the days following Manafort’s September 14 plea, he would have elaborated on the things he told prosecutors in the days leading up to it and some others they likely wanted to know. He might have explained how his Ukrainian backers and probably Konstantin Kilimnik — who a number of people, but not Manafort, admitted might be a Russian spy — seemed to know by December 2015 that Manafort would run Donald Trump’s campaign. Manafort might have revealed more about his meeting with Kilimnik on August 2, 2016, at which he reviewed polling that showed the key to winning was driving up Hillary’s negatives; Manafort might also have explained the relationship between that election discussion and two other topics discussed that night: how he would get paid millions and Kilimnik’s plan to carve up Ukraine for Russia’s benefit. If Manafort had fulfilled his plea deal, he might have explained what his long-time friend Roger Stone pitched to him on August 3, the day after that secret cigar bar meeting, as a way to “save Trump’s ass.”

He might have said more than he otherwise did about how Stone learned, within a few weeks after that August 3 conversation, that WikiLeaks would be dropping emails stolen from John Podesta that would show, Stone hoped, that Hillary’s campaign manager had the same kind of Russian exposures that Manafort did.

Manafort would be vindicated because he had to leave the campaign for being too pro-Russian, and this would show that Podesta also had links to Russia and would have to leave.

None of that happened.

Manafort seems to have decided — perhaps after a conversation his attorney had with Rudy Giuliani around the same day he flipped — to string out Mueller’s prosecutors until after the midterms. After the election Trump fired Jeff Sessions and ultimately replaced him with someone who would shut down the investigation and see to it that Manafort’s imprisonment remained comfortable, and not just comfortable, but amenable to further collusion with Rudy on schemes that would frame Hunter Biden for tax and influence peddling crimes in Ukraine, until such time as Trump could pardon his former campaign manager for tax and influence peddling crimes in Ukraine.

In this alternate reality, then, the story of how Trump taught Republicans to hate rule of law might start with a story of how his campaign manager had spun corruption as rule of law in the past, in Ukraine, and how the 2016 election did something similar in the US.

But then, Republicans didn’t need Paul Manafort’s help to demonize Hillary Clinton. That had been a core focus of the Republican party since her spouse’s presidency. That unrelenting focus on criminalizing the Clintons (and via that narrative, dehumanizing Democrats, thereby heightening polarization) had been nourished over three decades in an increasingly airtight Fox News bubble, one newly challenged by even sloppier, more radical propaganda outlets.

In the years before the election contest with Trump, the right wing propaganda machine manufactured two criminal investigations into Hillary to “plant some stink” on her.

In January 2016 — fifteen years after DOJ first investigated the Clinton Foundation  — three different FBI offices opened investigations into the Clinton Foundation based entirely or substantially on Peter Schweizer’s Clinton Cash. Notably. At least one of the FBI agents handling an informant on that investigation was affirmatively pro-Trump. “I saw a lot of scared MFers on … [my way to work] this morning,” one gloated the day after the election. “Start looking for new jobs fellas. Haha.” As NYT first reported, that investigation remained open until after Trump left office.

And by the time Manafort joined Trump’s campaign in March 2016, House Republicans were three years into their endless Benghazi investigations. After years of pushing, that had morphed into the investigation into Hillary’s private server, which would merge right into the public and private pursuit of Hillary’s deleted emails. “Russia, if you’re listening,” Trump begged a hostile country to find those deleted emails for him, even as his ascendant National Security Advisor worked with a Senate staffer to find out of hostile powers had gotten copies.

Details of both investigations into Hillary leaked, with a slew of stories (one, two, three) fed through Devlin Barrett (then still at WSJ) in the days before the election.

Of course it was Jim Comey who did the real damage, first by usurping DOJ’s authority to issue a prosecutorial decision and then planting some stink on Hillary while doing so. That led to a series of congressional hearings, and ultimately to the reopening of the investigation, predictably leaking days before the election.

Among the many but-fors that decided that election, Comey’s actions were easily the most important. Comey did this — made repeated attempts to stave off claims of partisanship — in a naive bid he could convince the hoards chanting “Lock her up!” of the legitimacy of the decision not to charge.

We’ll never know, but that effort, the orchestrated campaign to criminalize Hillary followed by a ham-handed effort to convince right wingers of the legitimacy of a considered prosecutorial decision, by itself, may have been enough to carry Trump to victory.

This, then, was the raw material Russia exploited in 2016 — stoking both sides of a deep partisan divide fueled by two decades of a propaganda focused on criminalizing Hillary Clinton.

The Republicans proved in that election (or reconfirmed the Whitewater test) that if only they repeated allegations often enough, loudly enough, preferably over and over again in Congress, eventually some criminal investigation would result, a criminal investigation that Republicans could then amplify.

The Republicans came to that election with an unshakeable belief that Hillary was a criminal and if DOJ said she wasn’t, there must be something wrong with DOJ, not any shortcomings in the evidentiary case.

And then Russia dropped a match on that already flaming bonfire.

Seth DuCharme’s Information Operation

Former Bill Barr aide Seth DuCharme did something funny in his two sentencing memos for former FBI counterintelligence professional Charles McGonigal.

Secret meetings

In his SDNY sentencing memo, he redacted a long paragraph which, by context, purported to describe cooperation.

SDNY was having none of that.

They explained that the redacted passage described a single meeting he had in which he shared — per a participant — “insignificant” information, not anything that merited a bonus for cooperation.

McGonigal describes an interview with other government agencies, at which he answered questions about misconduct others may have committed and his own conduct. (Br. 15- 16). The U.S. Attorney’s Office conducting this prosecution did not request that meeting, did not attend that meeting, and has little knowledge of what was said there, beyond a brief summary from one of its participants—who characterized the contents of McGonigal’s statements as, in substance, insignificant. There thus appears to be no basis for McGonigal to “presume” that his statements were “of some assistance.” (Br. 16).11 Nor can McGonigal seek sentencing credit for this meeting by citing United States v. Fernandez, 443 F.3d 19, 33 (2d Cir. 2006), abrogated by Rita v. United States, 551 U.S. 338 (2007). As McGonigal notes, that case states that a sentencing court could consider a defendant’s efforts to cooperate with the Government even if those efforts did not result in a cooperation agreement. (Br. 16). But its holding was that the district court was within its discretion to conclude “that the cooperation was fitful and that it should not be used to lighten [the defendant’s] sentence.” Fernandez, 443 F.3d at 34 (internal quotation marks omitted). This Court should reach the same conclusion with respect to McGonigal’s attempt to obtain a lenient sentence by attending a single meeting.

In a footnote, they tattled on DuCharme for trying to inflate the value of it by unilaterally redacting it.

11 The Court should not infer from McGonigal’s sealing of the corresponding paragraph in his submission that he has provided information of any value. The Government did not ask that this paragraph be sealed. Rather, McGonigal’s attorney informed the undersigned and the Washington, D.C. prosecutors that he intended to seal the paragraph, and neither objected.

DuCharme didn’t even attempt this ploy in DC. This time he left the paragraph unsealed.

When the United States presented him with a reasonable plea offer during the discovery phase of this case, Mr. McGonigal swiftly agreed to accept responsibility for his actions. In addition, he agreed to meet with representatives from seven different DOJ offices after his plea and provided truthful information to the government during a seven-hour interview session.

[snip]

Moreover, after Mr. McGonigal entered his plea, on November 17, 2023, at the request of the United States, Mr. McGonigal met with seven components28 of the Justice Department simultaneously in Manassas, Virginia, where he answered all questions presented to him on a wide variety of topics, including detailed discussions of his understanding of certain events, and his considered assessment of what the FBI can do to improve its compliance policies and practices to detect and deter improper conduct within the organization. We have been informed that the United States found the information that Mr. McGonigal provided during the full-day interview to be truthful and, we presume, of some assistance given the length and detail of the discussions.

Though by feigning coy about which parts of DOJ he met with, he again tried to fluff the import of it.

28 The specific components represented are not listed here, out of respect for sensitivities related to their specific areas of responsibility, but that information is available upon request if it is material to Court’s consideration.

DC USAO, which must have set up the meeting, didn’t mention it. Instead, they described the extensive effort FBI has made to make sure McGonigal didn’t drum up investigations into other people to help friends overseas, as he seems to have done for Albania.

Moreover, given the defendant’s senior and sensitive role in the organization, the FBI has been forced to undertake substantial reviews of numerous other investigations to insure that none were compromised during the defendant’s tenure as an FBI special agent and supervisory special agent. The defendant worked on some of the most sensitive and significant matters handled by the FBI. PSR ¶¶ 98-101. His lack of credibility, as revealed by his conduct underlying his offense of conviction, could jeopardize them all. The resulting internal review has been a large undertaking, requiring an unnecessary expenditure of substantial governmental resources.

This may be the only passage, in either DOJ sentencing memo, that discussed what a lasting harm having a top spymaster team up with foreigners seeking favors is for the FBI.

It suggests that DOJ might trust McGonigal to discuss “compliance policies,” but no longer the counterintelligence investigations in which he played a role.

Non-spy charges against the spy chief

I thought DuCharme’s ploy to provide the appearance of cooperation via evasion and redaction made an amusing introduction to something else I’ve been meaning to write, as part of my Ball of Thread series.

There was some consternation when McGonigal got sentenced in December to (just) 50 months for working for Oleg Deripaska. The complaint was, I think, that McGonigal hadn’t been labeled a spy, with some belief that would have changed the outcome.

I’d like to explain why, I suspect, DOJ did what they did.

I think they got a similar outcome as they would have had they called what he did “spying,” but deprived McGonigal — and just as importantly, DuCharme, who tried to pitch the “insignificant” information he shared as some great cooperation — from conducting an information operation to undercut the prosecution.

McGonigal was prosecuted for two schemes.

In DC, he was charged for secretly getting paid by, and traveling with, top Albanians, and ultimately predicating a FARA investigation into a Republican lobbyist with ties to a rival Albanian faction. For that, McGonigal was charged with a bunch of disclosure violations, making the secrecy the crime, not the scheming with Albania. The government is asking Judge Colleen Kollar-Kotelly to sentence him on February 16 to 30 months; they have not explicitly asked her to impose the sentence consecutively, which is the only way this sentence would extend his detention.

In NY, he was charged for secretly working with Oleg Deripaska. For that, he was charged with sanctions violations and money laundering. After he pled to conspiracy, the government had asked Judge Jennifer Rearden to sentence him to the max 60 months; she gave him the aforementioned 50 month sentence.

The government has not claimed to have proof that McGonigal shared any sensitive information with Deripaska or the Albanians, whether they have it and aren’t telling, or whether there is none. Without it, you would not expand McGonigal’s potential sentence by charging him with the crimes that might label him a spy: Foreign Agent crimes in DC, since he was working for a foreign state, or FARA in NY, since Deripaska is not quite the same thing as the Russian state. By larding on the disclosure violations in DC and asking for an obstruction enhancement, DOJ has raised total possible exposure there. And no FARA charges would carry a tougher sentence than the potential 20 year money laundering sentence that McGonigal avoided by pleading out in SDNY.

That is, DOJ charged McGonigal in such a way that the punishment would be the same, the 20 years on the money laundering charge or five-plus on disclosure violations, without giving McGonigal a cause to demand information exposing his operations at FBI.

But he did try.

Deripaska’s visit

Before I explain how, let’s situate things a bit.

According to Business Insider, a tip from the UK is one of the things that led to the investigation into McGonigal. They picked him up via the surveillance of a Russian in London they were tracking.

In 2018, Charles McGonigal, the FBI’s former New York spy chief, traveled to London where he met with a Russian contact who was under surveillance by British authorities, two US intelligence sources told Insider.

The British were alarmed enough by the meeting to alert the FBI’s legal attaché, who was stationed at the US Embassy. The FBI then used the surreptitious meeting as part of their basis to open an investigation into McGonigal, one of the two sources said.

Whether the UK picked him up in 2018 or 2019, according to the indictment his meetings with Deripaska — including in London — were in 2019.

In or about 2019, after McGONIGAL had retired from the FBI, SHESTAKOV and McGONIGAL introduced [Evgeny Fokin] to an international law firm [Kobre & Kim] with an office in Manhattan, New York (the “Law Firm”). [Fokin] sought to retain the Law Firm to work in having the OFAC Sanctions against Deripaska removed, a process often referred to as “delisting.”

During negotiations to retain the Law Firm, McGONIGAL traveled to meet Deripaska and others at Deripaska’s residence in London, and in Vienna. In electronic communications exchanged as part of these negotiations, McGONIGAL, SHESTAKOV, [Fokin] and others did not refer to Deripaska by his surname, but rather used labels such as “the individual,” “our friend from Vienna,” and “the Vienna client.”

DuCharme asserted at McGonigal’s SDNY sentencing that working with a law firm on delisting Deripaska in 2019, “would have been legal.”

After Charlie left the FBI, he met Oleg Deripaska. He met him in London in a prestigious international law firm with a lawyer. But I think the government agrees that that part would have been legal, because there is the carve-out for certain legal representations.

That didn’t go through.

It’s true that there’s a carve out for legal services that would make that, in general, legal. Probably far less so if you know that the guy you’re working with is a Russian spy.

DuCharme claims McGonigal did not, at least with regards to Fokin.

So this person, Fokin, reaches out to Charlie after that at some point. And just to be clear, as far as Mr. McGonigal knows, Fokin is not, as I guess is rumored in the media, to be a Russian intelligence officer. That’s not his understanding. But he certainly knows him to be associated with Oleg Deripaska; and he certainly knows that Deripaska is on the sanctions list.

The indictment and government sentencing memo, however, describe that McGonigal told a subordinate that Fokin was a spy.

McGonigal also told a subordinate that he wanted to recruit Fokin, who was, according to McGonigal, a Russian intelligence officer.

Let’s situate where things were in 2019. McGonigal was, without question, retired from the FBI. But at the time, DuCharme was working for Bill Barr, among other things, setting up an investigation to undermine the Russian investigation that disclosed how a close Deripaska associate, Konstantin Kilimnik, used Paul Manafort’s debt to Deripaska as leverage to learn how Trump planned to beat Hillary Clinton and also discuss carving up Ukraine to Russia’s liking. DuCharme would go on from there to set up a back channel via which Rudy Giuliani could channel dirt, including from a known Russian spy, into the Hunter Biden investigation.

A meeting with a law firm would have been legal. And also, DuCharme and his boss were working hard to blame the 2016 Russian operation on Hillary rather than Deripaska, recklessly chasing leads to those involved all over the world.

In fact, among the leads that DuCharme was chasing in 2019 as he and John Durham (he of the studied ignorance about what really happened) dreamt up ways to undermine results showing Trump welcomed help from Russia — along with the Russian-backed Ukrainians and Joseph Mifsud — involved Deripaska.

On July 3, 2019, DuCharme emailed Durham about a Fox News report that FBI had worked with Oleg Deripaska in an attempt to get Robert Levinson released and returned by Iran.

To be sure, unlike Mifsud and the Ukrainians, there’s no record DuCharme and Durham and Barr did chase the possibility that Deripaska would have damning information on Andy McCabe.

Though two months before DuCharme sent Durham a lead on Deripaska, on May 1, 2019, Bill Barr’s face melted when Ben Sasse asserted that Deripaska was a “bottom-feeding scum-sucker.”

Anyway, back to McGonigal and his charges for secretly working for Deripaska.

The investigation into McGonigal went overt in November 2021 and after that point, DuCharme described, McGonigal’s counsel, presumably DuCharme himself, remained in contact with the government.

More than a year before his arrest, on November 21, 2021, FBI agents conducted a recorded, voluntary interview of Mr. McGonigal at Newark airport when he returned home from an overseas business trip. While he was speaking to agents at the airport, another team of agents visited Mr. McGonigal’s home in lower Manhattan and met with his wife. Over the following year, Mr. McGonigal was aware of the ongoing investigation into his business dealings and remained in communication with the United States through his counsel.

So as SDNY and DC USAO were contemplating how to charge their former spymaster leading up to his January 2023 indictments, they knew that they would have to contend not just with McGonigal’s former Top Secret clearance, but also that of his attorney, the guy who in at least two cases facilitated the intake of spy dirt for partisan purposes on behalf of the former Attorney General.

Graymail

DuCharme was well aware of that.

In his DC sentencing memo, for example, he described how, by pleading guilty relatively quickly, McGonigal saved the government from engaging in the Classified Information Procedures Act process, the process by which the judge acts as an intermediary to make sure that defendants can get classified information that would be helpful to a defense without unnecessarily compromising information that would be of no help.

In contrast to Mr. Saffarinia, Mr. McGonigal quickly accepted responsibility for a single count of false statements through his guilty plea, avoiding any further expenditure of government resources, including potential Classified Information Procedures Act (“CIPA”) litigation.

It’s not true, however, that McGonigal spared SDNY of using the CIPA process. Though something very funky happened in that process in SDNY, which I believe is a big testament to the reason why they treated McGonigal’s exposure there the way they did, by charging him with crimes that would carry the same punishment without charging with a foreign agent crime. I first wrote about this funkiness here.

It seems like SDNY pre-empted a full-blown CIPA practice by having select documents, dating to well before McGonigal got into discussions with Deripaska’s people, that made clear that Deripaska was, “associated with a Russian intelligence agency” that must be GRU, which meant nothing that happened downstream of that knowledge would be all that helpful to McGonigal’s defense. That is, DuCharme may claim, evidence to the contrary, that McGonigal didn’t believe Fokin is a spy, but SDNY declassified a very small subset of documents making it clear McGonigal had to have known Deripaska was associated with GRU.

That’s part of the story that would have been told had this gone to trial: that when McGonigal secretly went to work for Deripaska, he knew of his ties to Russian intelligence.

SDNY must have planned this from the start.

It started on February 8, 2023, shortly after his indictment, when SDNY filed a CIPA letter, requesting a CIPA 2 conference.

Often, these CIPA letters review the entire CIPA process. The one Jay Bratt submitted in the Trump stolen documents case, for example, went through Section 1, Section 2, Section 3, Section 4, Section 5, Section 6 (broken down by sub-section), Section 7, Section 8, Section 9, and Section 10.

Not the SDNY one in the McGonigal case. It went through Section 2 — asking for a conference — and then stopped.

The Government expects to provide the Court with further information about whether there will be any need for CIPA practice in this case, and to answer any questions the Court may have, at the CIPA Section 2 conference.

In response, on March 1, DuCharme submitted his own CIPA letter, laying out Sections 1 through 8. Along the way, DuCharme promised that as part of CIPA 4, he would submit a memo telling Judge Jennifer Rearden what kind of information would be helpful to Charlie McGonigal’s defense, much later describing surveillance that must exist.

Under Section 4, upon a “sufficient showing” by the government, the Court may authorize the government to “delete specified items of classified information from documents to be made available to the defendant . . . , to substitute a summary of the information for such classified documents, or to substitute a statement admitting relevant facts that the classified information would tend to prove.” 18 U.S.C. § App. III § 4. The government makes a sufficient showing that such alternatives are warranted through an ex parte submission to the Court. See id; see also United States v. Muhanad Mahmoud Al-Farekh, 956 F.3d 99, 109 (2d Cir. 2020). Of critical importance to the fairness of the process, the Court may review, ex parte and in camera, the classified information at issue to determine whether and in what form the information must be disclosed to the defendant, and whether the government has truly satisfied its discovery obligations. See, e.g., United States v. Aref, No. 04 CR 402, 2006 WL 1877142, at *1 (N.D.N.Y. July 6, 2006). To assist the Court in this analysis, the defense will provide the Court with its initial view of the scope of material that will be relevant and helpful in the preparation of the defense at the upcoming conference and will supplement that information as appropriate.

[snip]

In the present case, there is far more than a trivial prospect, and in fact there is a high likelihood if not certainty, that the IC possesses information that is relevant and helpful to the preparation of the defense. The indictment charges violations of IEEPA based on an alleged agreement to provide services on behalf of Oleg Deripaska, a foreign national with allegedly close ties to a foreign government, who, it is reasonable to assume, may have been a target of surveillance by the United States during the relevant time frame. Moreover, the indictment makes specific references to previously-classified information that was in the possession of the IC, to which Mr. McGonigal had access by virtue of his position as Special Agent in Charge of the Counterintelligence Division of the New York Field Office. [my emphasis]

Seth DuCharme set out to know, among other things, what kind of surveillance FBI obtained on McGonigal, including whatever surveillance the Brits picked up when they first grew concerned about McGonigal meeting certain Russians in London.

Things never got to CIPA 4.

On March 3, Judge Rearden confirmed she would hold two separate CIPA conferences. The SDNY conference was held on March 6. On March 7, the day after SDNY’s CIPA conference and the day before McGonigal’s, SDNY responded to McGonigal’s CIPA letter. It suggested that any investigation the Intelligence Community did of McGonigal’s “corruption” by Deripaska would not be helpful to his defense. But if McGonigal wanted to make a list of things he specifically wanted, he should put that in writing.

McGonigal’s letter repeatedly asserts that the intelligence community must possess information that is helpful to his defense, without specifying what that information must be or what agencies must possess it. (See, e.g.¸ Dkt. 30 at 6 (claiming that the intelligence community writ large “may be presumed to have been involved” in the investigation of this matter); id. at 7 (asserting that “in fact there is a high likelihood if not certainty, that the IC possesses information that is relevant and helpful to the defense”)). At best, he has suggested that the general subject of this case—a recently retired FBI intelligence official being corrupted by a Russian oligarch—is of the type that might be of interest to intelligence agencies.2 Even if that claim is true, however, it is a far cry from suggesting that those agencies possess anything helpful to the defense.

[snip]

Finally, McGonigal suggests that he will “identify categories of classified information that will be material to his defense at the defendant’s ex parte Section 2 conference.” (Dkt. 30 at 7). But it is unclear why he needs to do this in an ex parte conference. As he elsewhere acknowledges, CIPA establishes procedures for the defense to identify classified information it wishes to offer, and those procedures are not ex parte.

[snip]

The Government thus trusts that McGonigal will identify any classified information he claims is relevant to the Government, as CIPA elsewhere expressly provides. See id. § 5 (“If a defendant reasonably expects to disclose or to cause the disclosure of classified information in any manner in connection with any trial or pretrial proceeding involving the criminal prosecution of such defendant, the defendant shall, within the time specified by the court or, where no time is specified, within thirty days prior to trial, notify the attorney for the United States and the court in writing.” (emphasis added)).3

On May 8, SDNY filed a short letter informing Judge Rearden that they had declassified the material they had told her they would in their own CIPA 2 hearing and provided it to the defense.

At the March 6, 2023 ex parte conference held pursuant to Section 2 of the Classified Information Procedures Act (“CIPA”) in the above-referenced case, the Government described to the Court certain materials that the Government was seeking to declassify. The Government writes to confirm that those materials have been declassified and produced to the defendants. At this time, the Government does not anticipate making a filing pursuant to Section 4 of CIPA and believes it has met its discovery obligations with respect to classified information.

It seems likely that this declassified material includes the document, which McGonigal received in May 2017, identifying Deripaska’s ties to (what must be) GRU disclosed in the government’s sentencing memorandum. Effectively, SDNY was saying that, once you understand Deripaska was GRU (and whatever else also got declassified), anything that came after that would not be helpful to your defense.

DuCharme was not yet done. On June 23, he submitted another letter describing that it was perplexing and puzzling and concerning and hard to imagine that there wasn’t more.

With respect to the way forward as it pertains to classified discovery, as we noted at our last court appearance, the government has indicated that it “does not anticipate making a filing pursuant to Section 4 of CIPA and believes it has met its discovery obligations with respect to classified information.” See ECF No. 44 at 1. In a subsequent series of conversations, the government informed us, in a general way, that it has satisfied its discovery obligations relating to classified information. The government’s position is perplexing. While it is not surprising that the government does not wish to account for its each and every step in satisfying its constitutional obligations, it is puzzling and concerning that the government would, at this stage, determine that no CIPA Section 4 presentation to the Court is appropriate, when we are a year away from trial and the government’s discovery obligations with respect to Rule 16, the Jencks Act, Brady and Giglio are ongoing. The indictment and the U.S. Attorney’s press release include accusations that foreseeably implicate classified information within each of the four categories of discoverable information. With respect to the category of impeachment material alone, it is hard to imagine a world in which there are no classified materials that touch on the credibility of the government’s trial witnesses (or alleged unindicted coconspirator hearsay declarants), and which would require treatment under Section 4 of CIPA.

DuCharme suggested that maybe the problem was that the information helpful to McGonigal’s defense was simply super duper classified, but that it still had to be turned over.

As an initial matter, the classification level of information in the possession of the United States is wholly irrelevant as to whether or not it is discoverable. Classification rules appropriately exist to safeguard the national defense of the United States by limiting the dissemination of such information in the normal course. See Exec. Order No. 13526, 75 Fed. Reg. 707, (2009) (prescribing a uniformed system for classifying national security information). But once a defendant is indicted, the government is obligated to consider whether information within its holdings is discoverable under the applicable rules, statutes and constitutional caselaw

The letter explained that both McGonigal and Seth DuCharme could be trusted with the government’s classified information — after all, McGonigal was only indicted for cozying up to the Russian oligarch he had hunted for years, not mishandling classified information. And Seth DuCharme was, until recently, trusted with Bill Barr’s most sensitive secrets, including about the side channels ingesting dirt from known Russian agents.

Further, it is hard to understand why the government is so reluctant to be more transparent in explaining its discovery practices to the defense in this case. While many national security cases involve defendants with no prior clearances or experience with the U.S. Intelligence Community, and may involve only recently-cleared defense counsel who may be new to navigating the burdens and responsibilities of handling classified information, here, those concerns do not apply. Mr. McGonigal was one of the most senior and experienced national security investigators in the FBI with significant direct professional experience in the areas germane to his requests for assurances about the thoroughness of the government’s discovery analysis. In addition, before moving to private practice, the undersigned counsel served as the Chief of the National Security Section, the Chief of the Criminal Division and the Acting United States Attorney in the U.S. Attorney’s Office in the Eastern District of New York as well as the Senior Counselor to the Attorney General of the United States for National Security and Criminal matters, and has responsibly held TS/SCI clearances with respect to some of the United States government’s most sensitive programs. As the Department of Justice has concluded in re-instating defense counsel’s clearances for the purpose of this case, we are trustworthy. So, here, we have a defendant and defense counsel who are highly respectful and experienced with regard to the protocols for handling and compartmentalizing sensitive classified information, and simply request comfort that the government has indeed done everything it would normally do in a case such as this, with sufficient detail to assess the credibility of the government’s position.

Notably, Mr. McGonigal has not been accused of mishandling classified information in the cases brought against him, and he maintains respect for the national security interests of the United States, as of course do we. In addition, we are not asking the government to disclose to the defense any sensitive sources and methods by which discoverable information was collected—only to provide greater transparency to us, and to the Court, as to how it views its procedural obligations, so that we may consider the fairness and reasonableness of the government’s approach. Mr. McGonigal is personally familiar with this process from his time at the FBI, and it is reasonable for him to expect to be treated no worse than the other defendants who have come before him. To adequately represent Mr. McGonigal, it seems only fair that we be allowed to hold the United States government to the same standards that the defendant upheld as a national security and law enforcement professional, and to make a record of the government’s position.

Then DuCharme made a helpful offer to meet in a secure hearing or to submit a more highly classified brief — perhaps taking SDNY up on their instruction to put it in writing — again suggesting he had something specific in mind.

In sum, if the government could explain, in an appropriate setting, how it determined that it had obviated the need for a CIPA Section 4 proceeding, we likely can avoid speculative motion practice, and the parties and this Court may be assured that we can continue to litigate this case fairly and with the level of confidence to which we are entitled.

[snip]

To the extent the Court would like more detailed briefing on these issues prior to the conference, the CISO has provided to cleared defense counsel access to facilities that would allow us to draft a supplemental submission at a higher classification level.

I don’t want to minimize the problem CIPA presents for defendants, nor the kind of prosecutorial dickishness that can roil discovery discussions. But this entire exchange was, in my experience, pretty remarkable. The arguments, for example, are little different from ones Trump is making in the stolen documents case, but McGonigal’s arguments always seemed more targeted than Trump’s, which are a mad splay attempting to review the entire Intelligence Community.

Then it was over.

On June 23, DuCharme doubled down on his certainty there were secrets that would help McGonigal. On July 10, Judge Rearden scheduled a hearing for updates on classified discovery. That same day, the government described making a discovery production four days after DuCharme’s letter, then said it planned to file a response to the letter before the hearing, which it said was scheduled for July 18. Judge Rearden gave them four days to file the response, until July 14. That day, July 14, the day SDNY would otherwise have filed another public letter about classified discovery, McGonigal withdrew his request for a status hearing. A month later McGonigal pled guilty to the one count of conspiracy.

To be sure, the deal was pretty sweet, given that it took the onerous money laundering exposure off the table. But the 50 months is the kind of sentence he might have faced for Foreign Agent charges — anything that stopped short of alleging that McGonigal had shared FBI secrets with Oleg Deripaska, of which, again, there is no hint in any of the charging documents.

Yet SDNY successfully prosecuted the former FBI spymaster for working for Oleg Deripaska without (apparently) sharing anything more than the first notices McGonigal got of the spook ties the Intelligence Community found Oleg Deripaska to have.

 

 

 

John Durham Feigns Totally Dumb about Russian “Collusion”

The day the entire GOP refuses to pursue really draconian immigration legislation because Donald Trump has demanded they not do so — and especially not pass any more funding for Ukraine — seems like a good day to resume my effort to roll out a Ball of Thread in advance of explaining how Trump trained Republicans to hate rule of law.

This post is very simple. Under grilling from Adam Schiff during his House Judiciary Committee testimony last summer, John Durham played dumb — really, really dumb — about what Trump actually did in 2016 (there were a few more examples during the hearing, usually in exchange with Schiff).

It’s not surprising. But it is very similar to the way Scott Brady played dumb when quizzed (in a deposition, by House Judiciary Committee staffers) about what really happened in 2016. Again, not surprising. Just another example where key sycophants who played a central role in this process rigidly parroted the false cover story even when confronted with the truth.

 

Mr. Schiff. I thank you for yielding. One of my colleagues in the Republican side of the aisle took issue with my saying that the Trump Campaign invited Russian help, received Russian help, made use of it, and then lied about it. So, let’s break this down.

Let’s go to invited Russian help. Mr. Durham, you’re aware of Donald Trump’s public statements along the lines of, hey, Russia, if you’re listening, hack Hillary’s emails. You’ll be richly awarded by the press. Are you aware of that?

Mr. Durham. I’m aware of that.

Mr. Schiff. You’re aware that Mueller found that hours after he made that plea for Russian help, the Russians, in fact, tried to hack one of the email servers affiliated with the Clinton Campaign or family.

Mr. Durham. If that happened, I’m not aware of that.

Mr. Schiff. You’re not–

Mr. Durham. It could very well. I just don’t know.

Mr. Schiff. –aware of that in the Mueller Report? When you’re saying you’re not aware of evidence of collusion in the Mueller Report, it’s because apparently you haven’t read the Mueller Report every well if you’re not aware of that fact. Let me ask you about something else.

Mr. Durham. Sure.

Mr. Schiff. Don Jr. when offered dirt as part of what was described as Russian government effort to help the Trump Campaign said, “if it’s what you say, I love it;” Would you call that an invitation to get Russian help with dirt on Hillary Clinton?

Mr. Durham. The words speak for themselves, I supposed.

Mr. Schiff. I think they do. In fact, he said, especially late in summer. Late in summer was around when the Russians started to dump the stolen emails, wasn’t it?

Mr. Durham. Late in the summer, there was information that was disclosed by WikiLeaks in mid to late July. I think there had been some in June, and then there was maybe some later in October was it, I think. Don’t hold me to those dates.

Mr. Schiff. This gets to the receipt of help, second thing I mentioned, receiving Russian help. The dumping of those emails by the way just as forecast by what Papadopoulos told
the Australian diplomat. That is that the Russians would help by leaking dirt anonymously through cutouts like WikiLeaks and DCLeaks.

Mr. Durham. I don’t think that’s exactly what he told the Australians.

Mr. Schiff. Well, he said that he was informed that the Russians could anonymously release this information, right?

Mr. Durham. Release what?

Mr. Schiff. By anonymously releasing information damaging to Hillary Clinton, right?

Mr. Durham. I think if you read what’s in the cable and what’s in the report as to what the diplomats reported there was a suggestion of a suggestion that the Russians could help. They have damaging information as to Ms. Clinton.

Mr. Schiff. By releasing it anonymously, right? That’s exactly what happened, isn’t it?

Mr. Durham. I don’t–

Mr. Schiff. You really don’t know?

Mr. Durham. I’m not sure–when you say exactly what happened–

Mr. Schiff. Well, the Russians released stolen emails through cutouts, did they not?

Mr. Durham. There were emails that were released by WikiLeaks.

Mr. Schiff. It’s a very simple question. Did they release information, stolen information, through cutouts, yes or no?

Mr. Durham. I’m not sure that–

Mr. Schiff. You really don’t know the answer to that? The answer is yes, they did. Through DCLeaks–

Mr. Durham. In your mind, it’s yes.

Mr. Schiff. Well, Mueller’s answer is yes. More important than mine, Mueller’s answer was yes. Now, that information, of course, was helpful to the Trump Campaign, wasn’t it?

Mr. Durham. I don’t think there’s any question that Russians intruded into hacked into the systems.

Mr. Schiff. Well, I just want to get–

Mr. Durham. They released information.

Mr. Schiff. That was helpful to Trump Campaign, right?

Mr. Durham. The conclusion in the ICA and in the Mueller investigation was that the Russians intended to assist–

Mr. Schiff. Can you answer my question, Mr. Durham? That was helpful to Trump Campaign, right?

[Crosstalk.]

Mr. Schiff. Trump made use of that, as I said, didn’t he, by touting those stolen documents on the campaign trail over 100 times?
Mr. Durham. Like I said, I don’t really read the newspapers or listen to the news.

Mr. Schiff. You were totally–

Mr. Durham. I don’t find them reliable, so I don’t know that.

Mr. Schiff. Mr. Durham, you were totally oblivious to Donald Trump’s use of the stolen emails on the campaign trail more than 100 times?

Mr. Durham. I’m not aware of that.

Mr. Schiff. Did that escape your attention?

Mr. Durham. I am not aware of that.

Mr. Schiff. Are you aware of the final prong that I mentioned, that he lied about it, that the Trump Campaign covered it up? It’s the whole second volume of the Mueller Report. I hope you’re familiar with that.

Mr. Durham. Yes, that’s a section of the report, the second volume relating to their obstruction of justice.

Mr. Schiff. Well, thank you for confirming what my Republican colleague attacked me about. He also criticized the use of the word collusion. Apparently giving private polling data to the Russians while the Russians are helping your campaign, they don’t want to call it collusion.

Maybe there’s a better name for it. Maybe they would prefer we just call it good old fashioned GOP cheating with the enemy. Maybe that would be a little bit more accurate description.

Mr. Durham. Yes.

Scott Brady Admitted He “Was in the Room” for One Partisan Errand; Was There for a Second?

It should surprise no one that in Scott Brady’s deposition before House Judiciary Committee last October, he refused to say whether he believes that voter fraud undermined the 2020 election.

Q Okay. All right. I think we’re almost done. You were U.S. attorney in Pittsburgh through, I think, you said the end of February 2021, correct?

A Correct.

Q So you were there during the 2020 election, correct?

A Yes.

Q Are you aware of allegations that there was widespread voter fraud in 2020?

Mr. [Andrew] Lelling. You’re a little outside the scope.

Q All right. So he’s declining. It’s fine. I’m just making a record. You’re declining to answer?

Mr. Lelling. He’s declining to answer.

Q Are you aware of allegations that President Biden was not fairly elected in 2020?

Mr. Lelling. Same. He’s not going to answer questions on that subject. [] Okay.

Q And do you believe that President Biden was fairly elected in 2020?

Mr. Lelling. He’s not going to answer that question.

This shouldn’t be a surprise because, in 2022, DOJ IG rebuked Brady for impugning a career prosecutor whose spouse signed a letter (also signed by Hunter Biden prosecutor Leo Wise, by the way) calling on Bill Barr to adhere to past practice regarding interference in voter fraud investigations.

The Department of Justice (DOJ) Office of the Inspector General (OIG) initiated an investigation after receiving a complaint regarding a then U.S. Attorney’s response, during a press conference on an unrelated case, to a reporter’s question about a letter signed by a number of Assistant U.S. Attorneys (AUSA) that was critical of a voting fraud investigations memorandum issued by then Attorney General William Barr. The complaint alleged that the U.S. Attorney responded to the reporter’s question about whether the U.S. Attorney’s Office (USAO) had signed the letter by personally attacking the AUSA from that USAO who signed the letter.

The OIG investigation substantiated the allegation. The investigation determined that the U.S. Attorney, in response to the reporter’s question, sought to undermine the AUSA’s professional reputation by referencing that the spouse of the AUSA who signed the letter had previously worked for two U.S. Attorneys General of the previous administration, thereby inappropriately suggesting that partisan political considerations motivated the AUSA to sign the letter.

As with much of his testimony before House Judiciary, the Brady comment in question spun the adherence to norms as political interference.

“I can’t comment on any existing investigations,” Brady said. “To the second [question], one of our two district election officers, who was married to the former chief of staff of [Attorneys General] Eric Holder and Loretta Lynch, did sign onto that unbeknownst to anyone in leadership before he signed onto that and did not talk about that with his fellow district election officer, who’s also our ethics advisor.”

Nadler’s staffers elicited Brady’s predictable non-answer about whether Joe Biden was fairly elected just as the deposition ended. Perhaps they asked the question to demonstrate Brady’s partisanship if he were ever to testify in impeachment.

But it’s worthwhile background to something Brady said that did shock me — more than his refusal to affirm that Joe Biden was fairly elected President, more than his blasé description of ingesting information from at least one Russian spy to be used in an investigation of Donald Trump’s rival.

Brady, the one-time US Attorney for Pittsburgh, similarly dodged when asked whether he believed that Russia had interfered in the 2016 election.

Q Okay. And were you aware of Mr. Giuliani’s claim that Ukraine had interfered in the 2016 Presidential election?

A I don’t believe I was aware of that.

Q Okay. And just were you aware of the intelligence community’s conclusion that Russia actually interfered in the 2016 Presidential election?

A Wait. Let’s unpack that. So could you ask that again, please?

Q Are you aware of the U.S. intelligence community’s conclusion that Russia interfered in the 2016 Presidential election?

A I am aware of allegations of Russian interference. Conclusive determinations by the entire intelligence community of the United States, I’m not certain, especially in light of the Crossfire Hurricane investigation.

Q Have you read the Mueller report?

A The whole Mueller report? Parts of it. I have read parts of it.

Because of that answer, Nadler’s staffers asked Brady if he was familiar with the Intelligence Community Assessment that Russia had interfered in 2016. After first suggesting that Barr’s stunts to undermine the Mueller investigation had raised doubts for him, Brady then admitted that the office he oversaw had investigated GRU both before and after Mueller did.

Q Okay. And so you don’t have any opinion of whether the findings, the conclusions of this report are true and accurate or not?

A Well, I don’t know what the findings are. I am generally aware of allegations of Russian interference in U.S. elections. My office has investigated Russian investigations I’m sorry. My office has investigated Russian interference in French elections, Georgian elections.

Q Uhhuh.

A So I have no doubt that Russia and other adversaries attempt to interfere in our elections on a regular basis.

Q And you have no evidence to dispute the findings of the Director of National Intelligence in this report?

A Other than what is publicly available given Mr. Mueller’s report and then his appearance before Congress and then General Barr’s disposition of that matter.

Q But you have no personal knowledge. In other words, you have not personally investigated the matter.

A Could I have a moment, please?

[Discussion off the record.]

Mr. Brady. I am aware of this.

Q Uhhuh.

Mr. Brady. The Pittsburgh office, the U.S. Attorney’s Office in the Western District of Pennsylvania, had an investigation into the hacking of the DNC.

Q Uhhuh.

Mr. Brady. We were investigating that until it was transmitted to Director Mueller’s office for part of his investigation. So, yes, I am I am aware.

Andrew Weissmann has described that after Mueller’s team started, first Jeanie Rhee and then he asked for a briefing on the investigation into the hack-and-leak, only to discover no one was investigating the dissemination of the stolen documents.

As soon as the Special Counsel’s Office opened up shop, Team R inherited work produced by other government investigations that had been launched before ours: These included the Papadopoulos lead, the National Security Division’s investigation into Russian hacking, and the Intelligence Community’s written assessment on Russian interference.

Ingesting this information was the domain of Team R, and Jeannie had quickly gotten to work untangling and synthesizing the facts. A few weeks after I arrived, I asked attorneys in the National Security Division of the Department of Justice to give me the same briefing they had given Jeannie, so I could familiarize myself with the investigation they’d been conducting into Russian hacking.

The meeting was in a SCIF at Justice’s imposing art deco headquarters on Pennsylvania Avenue.

[snip]

Because my debriefing with the National Security Division involved classified information, I cannot discuss its content substantively here. It took a couple of hours, as a team of NSD lawyers graciously walked me through what they had been up to and answered all my questions. As soon as I got back to our offices, however, I made a beeline to Jeannie’s office and immediately asked her: “What the fuck?”

“I know,” she said. She didn’t need me to finish my thought.

We had both been shocked by something we’d heard in our briefings—but it was less the substance of the Justice Department’s investigation than its approach. Jeannie knew that she was going to inherit some evidence that Russia had hacked the DNC and DCCC emails, but she was astonished that the National Security Division was not examining what the Russians had done with the emails and other documents they’d stolen from those servers—how the release of that information was weaponized by targeted release, and whether the Russians had any American accomplices. More alarmingly, the Department was not apparently looking beyond the hacking at all, to examine whether there had been other Russian efforts to disrupt the election. It was staggering to us that the Justice Department’s investigation was so narrowly circumscribed. Election interference by a foreign power was, inarguably, a national security issue; we expected the National Security Division to undertake a comprehensive investigation. Once again, Jeannie and I were left to speculate as to whether this lapse was the result of incompetence, political interference, fear of turning up answers that the Department’s political leaders would not like, or all of the above. The Intelligence Community’s investigation had assessed that Russia was behind the hacking, but remained seemingly incurious as to everything else. “The rest is going to be up to us,” Jeannie explained. [my emphasis]

The failures to investigate before Mueller got involved couldn’t have been Brady’s doing. He wasn’t nominated (in the same batch as the Jones Day attorney who represented him here, Andrew Lelling, in his deposition) until after this happened, on September 8, 2017; he wasn’t confirmed until December 14, 2017.

But his answer seems to reflect exposure to the investigation after the fact.

That makes sense, for two reasons. First, in October 2018, his office indicted some of the GRU hackers for their hack of the World Anti-Doping Agency. As I’ve noted in a post comparing the two indictments, that hack used some of the same infrastructure as the DNC hack did, though the WADA indictment adopted a different approach to describing the dissemination of the hacked materials.

Then, weeks before the 2020 election, his office indicted GRU hackers again, focused largely on NotPetya and the hack of the Pyeongchang Olympics, but also including the French and Georgian hacks that Brady mentioned. The primary hacker involved in the French and Georgia hacks, Anatoliy Kovalev was also charged in the DNC indictment.

The 2020 indictment adopted a different approach, a third one, to discussing the dissemination of the stolen files as I describe below.

But those later two indictments are one reason it’s so surprising that Brady would suggest any doubt on the DNC attribution. If you believe what was in the 2018 and 2020 indictments, if you signed your name to them, it’s hard to see how you could doubt the 2018 DNC indictment. They involved some of the same people and infrastructure.

The other reason I was alarmed by Brady’s comment is that he described these GRU indictments, along with the Rudy laundering project and the response to the Tree of Life synagogue attack, as the three events where Brady was in the room for the prosecutorial decisions.

Q Is it unusual for a United States attorney to participate in witness interviews directly, personally?

A No. It depends on the scope and sensitivity of the matter.

Q Okay. And have you, as a U.S. attorney, ever participated in a witness interview in an investigation or matter under your direction?

A As U.S. attorney, I have been involved in many meetings with the line AUSAs and agents, including our Tree of Life prosecution for the synagogue shooting. We had a number of highlevel investigations and indictments of the Russian intelligence directorate of the GRU, and I was in the room and a part of those meetings. I can’t remember if we had a witness interview that I was involved in, but I may have been.

This is where I took notice.

Particularly given my observation that one way in which the Macron hack-and-leak, the French hack Brady mentioned, differed from the DNC indictment released by Mueller is in the claimed failure to discover how the stolen Macron files got disseminated.

The Olympic Destroyer indictment obtained weeks before the election held Kovalev (and the GRU) accountable for the spearphish and communications with some French participants.

27. From on or about April 3, 2017, through on or about May 3, 2017 (during the days leading up to the May 7, 201 7, presidential election in France), the Conspirators conducted seven spearphishing campaigns targeting more than 100 individuals who were members of now-President Macron’s “La Republique En Marche!” (“En Marche!”) political party, other French politicians and high-profile individuals, and several email addresses associated with local French governments. The topics of these campaigns included public security announcements regarding terrorist attacks, email account lockouts, software updates for voting machines, journalist scoops on political scandals, En Marche! press relationships, and En Marchel internal cybersecurity recommendations.

28. KOVALEV participated in some of these campaigns. For example, on or about April 21, 2017, KOVALEV developed and tested a technique for sending spearphishing emails themed around file sharing through Google Docs. KOVALEV then crafted a malware-laced document entitled “Qui_peut_parler_ aux journalists.docx” (which translates to “Who can talk to journalists”) that purported to list nine En Marche! staff members who could talk to journalists about the previous day’s terrorist attack on the Champs-Elysees in Paris. Later that day, the Conspirators used an email account that mimicked the name of then-candidate Macron’s press secretary to send a Google Docs-themed spearphishing email to approximately 30 En Marche! staff members or advisors, which purported to share this document.

29. From on or about April 12, 2017, until on or about April 26, 2017, a GRU-controlled social media account communicated with various French individuals offering to provide them with internal documents from En Marche! that the user(s) of the account claimed to possess.

But it professed utter and complete ignorance about how the stolen documents started to get leaked.

30. On or about May 3 and May 5, 2017, unidentified individuals began to leak documents purporting to be from the En Marche! campaign’s email accounts.

But they weren’t unidentified, at least not all of them! As a DFIR report released 15-months before this indictment laid out, while there was a Latvian IP address that hadn’t been publicly identified at that point (one the FBI surely had some ability to unpack), the American alt-right, including Stone associate Jack Posobiec, made the campaign go viral, all in conjunction with WikiLeaks.

[snip]

MacronLeaks was, openly and proudly, a joint venture between the GRU, far right influencers in Stone’s immediate orbit, and WikiLeaks. It was an attempt to repeat the 2016 miracle that elected Donald Trump, by supporting the Russian-supporting Marine Le Pen by damaging Macron.

That is, one of the three investigations in which Brady said he had a more involved role is the one where an indictment happened not to name the far right figures known to have “colluded” with Russian spook hackers.

On October 19, Scott Brady’s office released an indictment that pulled its punches regarding the Trump boosters who were involved in a Russian hack-and-leak operation. On October 23, his team laundered an uncorroborated accusation of bribery into the Hunter Biden investigation. Then less than a month after that, on November 18, Brady ignored a warning about protected speech and made a baseless accusation of politicization.

Scott Brady thought to raise questions regarding things to which others signed their name. But his HJC testimony raises far more questions about things to which he signed his name.

This post is part of a Ball of Thread I’m putting together before I attempt to explain how Trump trained Republicans to hate rule of law. See this post for an explanation of my Ball of Thread.

The Non-Visible Networks behind the More Visible Networks of Fascism

There’s an RT posted at the Guccifer 2.0 Twitter account in 2016 that has always puzzled me: a stupid meme, posted on Labor Day, about what unemployed people do on Labor Day.

Virtually all Guccifer 2.0’s other public Tweets served to sustain a cover story about the hack-and-leak operation and its tie to WikiLeaks, disseminate stolen documents, or network with those who might be used to disseminate stolen documents. This RT does not do that — at least not obviously — and it deviates from the BernieBro culture adopted by the Guccifer persona up to that point. It suggests either there was an unseen tie to far right meme culture, or that someone had access to this account who was part of it.

The RT is especially interesting given that three different GRU indictments (DNC, Anti-Doping, Macron Leaks) adopt different approaches in discussing the dissemination of the documents stolen by GRU, which I’ve addressed here and here. In 2016, the Guccifer persona cultivated ties with Roger Stone and Alex Jones and released select files (on Black Lives Matter) to then-Breitbart, future-Sputnik writer Lee Stranahan. By the time of the Macron Leaks in May 2017, Jack Posobiec played an even more central, overt role in the leak part of the operation, via still unidentified Latvian account. But this meme suggests some other tie in real time.

Keep this RT in mind as you read the following discussion, about the extent to which much of what we visibly see in the Republican slide to fascism is just the public manifestation of a far more instrumental and far uglier infrastructure that exists in chat rooms.

Some of what we know about the 2016 state of that infrastructure comes from exhibits introduced at the Douglass Mackey trial. On the very same day Guccifer 2.0 RTed that meme, for example, the trolls in the Madman Twitter DM list were pushing memes to push a narrative, one picked up from Trump, that Hillary Clinton was unwell and might not make the election — a narrative about a Democrat replicated, with far greater success, in this election.

White nationalists plotted in private about how to get minorities to turn on Democrats. They explicitly focused on ways to affect turnout in ways that could swing the election.

As I’ve written here and here, the far right efforts to set a narrative that would (and did) help Trump win the presidency started over a year before the election. Both Andrew “Weev” Auernheimer — the webmaster for Daily Stormer — and Microchip worked hard in early months to professionalize the effort. They planned campaigns that would bridge from reddit, 4Chan, and The Donald onto Twitter, including efforts that started at Daily Stormer. This effort was transnational: the trolls reached back to efforts made during Brexit and looked ahead to EU elections, and planned to build a bigger bot army. They complained about Twitter’s shoddy efforts to moderate and plotted ways to defeat any moderation.

The effort by far right trolls to hijack the virality of Twitter to get mainstream journalists to echo their far right themes had at least two direct ties to Trump’s campaign. Anthime “Baked Alaska” Gionet, whom Microchip alerted when the FBI first came calling, claimed to be part of a Trump campaign Slack, to which he invited others.

More importantly, Don Jr has confessed he was part of this network (curiously, when the Mackey took the stand at trial, he claimed to know nothing about the identities of his unindicted co-conspirators. As I have noted, there’s a troll in that channel who used the moniker P0TUSTrump and whom other trolls called Donald that was pushing hashtags pushing stolen documents on the same days Don Jr was doing so on his eponymous Twitter account. From there, trolls like Microchip made them go viral. If P0TUSTrump is Don Jr, then, it shows that he was a key channel between WikiLeaks through this far right channel to make things go viral.

Between 2016 and 2020, people associated with this far right group orchestrated PizzaGate, may have had a hand in QAnon, and helped disseminated documents stolen by GRU from Emmanuel Macron. PizzaGate and QAnon served as powerful recruiting narratives. I’ve shown how Doug Jensen, the QAnoner who chased Officer Eugene Goodman up the Senate stairs on January 6, went from a lifelong union Democrat to hating Hillary to throwing away his life in QAnon to attacking the Capitol via that process of radicalization. Early prosecutions, at least, suggested that QAnon was actually more successful at getting bodies where they could obstruct the vote certification than the militias.

But even as that cult narrative of QAnon was radicalizing people from all walks of life, the same network was replicating networks of more overtly partisan, paramilitary mobilization.

I suppose I or someone else should draw a network map of this.

But we know that Roger Stone had a Signal list call Friends of Stone, which included among its 47 members Stewart Rhodes, Enrique Tarrio, Ali Alexander, and Owen Shroyer, along with anti-vaxxers, Bundyists, Mike Flynn associate Ivan Raiklin, and longtime aides Jacobs Engels and Tyler Ziolkowski (who, along with Tarrio, were both implicated in the meme targeting Amy Berman Jackson during Stone’s prosecution).

Both Rhodes and Tarrio ran parallel sets of communication leading up to the insurrection — more public, accessible communications, and more select lists (on Signal in Rhodes’ case and on Telegram in Tarrio’s) that planned for the operation. Unlike Twitter, Signal and Telegram would only be accessible to law enforcement after exploiting the phones on which they were used, and only then if the comms hadn’t been successfully deleted.

Tarrio would also be networked into the Latinos for Trump group, along with Bianca Gracia and Oath Keeper Kellye SoRelle, with whom he visited the White House in December 2020 and both of whom were present for the parking garage meeting Tarrio had with Rhodes on January 5, 2021. One court filing submitted in advance of the trial of the cop who allegedly tipped off Tarrio to his arrest shows Tarrio also has a “Christian Nationalist” group that officer Shane Lamond joined on November 9, 2020. Another filing shows how Lamond warned Tarrio about investigations into Harry’s Bar and the Proud Boys organizing on Parler.

Ali Alexander and Brandon Straka provided the January 6 Committee (entirely unreliable) descriptions of the all-important Stop the Steal threads on which Alexander organized — first — early mob scenes at state capitols and then events around January 6 itself (though unlike Alexander, who fully attributed getting the brand from Roger Stone, Straka disclaimed knowledge of all that). Straka did acknowledge that Paul Gosar had ties to the Stop the Steal effort. The sentencing memorandum for Alan Hostetter, a key player in the SoCal anti-vax community with ties to 3Percenters, actually contacted Alexander on December 16, 2020, to suggest Stop the Steal organize a rally for January 6, though it’s not clear via what channel he knew him. While the leaders of the Stop the Steal effort were on Twitter until a late move to Signal (again, if we can believe unreliable J6C testimony), it spawned a massive viral effort on other platforms, including Facebook.

In addition to being the big draw for the donation from Publix heir Julie Fancelli, Alex Jones has his own media infrastructure. Organizers claim some percentage — a fifth or a third — of those at the Capitol were there for Jones, not Trump. Like Alexander, he also mobilized the earlier mobs in the states.

It’s not entire clear how Baked Alaska continues to fit into this network. But in order to avoid felony charges (as Straka had earlier), he reportedly agreed to share the kind of network information that would further elucidate these networks.

And that network of lists and threads maps onto this one, the list of people who, in 2020, were the most effective at spreading disinformation on Twitter.

We just don’t know via what chat rooms and threads they map, who else is in that map, and what international ties they have.

What kind of chat rooms did Don Jr inhabit, four years after he networked with Douglass Mackey, that helped him direct a broader network to make false claims go viral? Today, as Ric Grenell — Trump’s troll turned Ambassador to Germany turned Acting Director of National Intelligence — returns from supporting a coup attempt in Guatemala, what international networks was he mobilizing?

I’m always most fascinated by the role of Mike Roman on this list, punching well above his modest Twitter following of 29,610 people. Roman, a charged co-conspirator in Trump’s Georgia indictment, is claiming Fani Willis has a conflict arising from a personal relationship with one of the prosecutors she brought in for the case. He’s often thought of someone who ferried documents from fake electors around, but before that he was a kind of internal intelligence service for Trump targeting Republicans, and before that, the Kochs. Like Grenell, he has branched out to push far right policies internationally, in Canada. None of those activities, however, explain what chat rooms he was in that allowed him to help spread the Big Lie in 2020. They must exist, and yet they’re not yet visible.

Mike Roman is one of the Trump associates whose phone DOJ seized before Jack Smith was appointed. To the extent he didn’t delete them, that should disclose his networks to prosecutors.

As I noted above, increasingly, these networks have moved to platforms, especially Telegram and Signal, that are harder to investigate, particularly without advance notice. It took years (starting before January 6, with the seizure of Tarrio’s phone, which nevertheless took a full year to exploit) before the government had collected at least three sets of the Friends of Stone list.

That’s true even though some network effect — whether including anyone named here or not — likely explains a swatting campaign that has targeted:

While not all targets are seen as adversaries of Trump, or even Democrats, his top adversaries have been targeted. The swatting campaign is, at a minimum, terrorism (and could be part of a campaign to do real violence).

And there’s a non-zero chance that behind it is the same kind of non-visible infrastructure the far right has been professionalizing for a decade.

My effort to describe how Trump trained the Republican party to hate rule of law will describe the visible aspects of that effort. But behind it all, these non-visible networks form an integral part of the effort.

Update: Took out reference to Pepe.

This post is part of a Ball of Thread I’m putting together before I attempt to explain how Trump trained Republicans to hate rule of law. See this post for an explanation of my Ball of Thread.

The First Time Trump “Colluded” with Russia Was To Help Bibi Netanyahu

The first time Donald Trump worked via back channel with Russia to undermine Barack Obama’s foreign policy, it was to help Bibi Netanyahu dodge repercussions for illegal settlements in the West Bank.

And yet that effort — and the way that Jared Kushner mobilized a group of countries to undermine the sitting President’s foreign policy decision — has gone unmentioned in recent months, even as Bibi blows off Joe Biden’s requests for moderation in advance of the November election, even as Vladimir Putin holds overt meetings with Hamas, even as Kushner — effectively an employee of Mohammed bin Salman at this point — meets with Qatar and tours Kfar Aza.

The Mueller Report actually soft-pedaled what happened in December 2016.

On December 21, 2016, Egypt submitted a resolution to the United Nations Security Council calling on Israel to cease settlement activities in Palestinian territory.1208 The Security Council, which includes Russia, was scheduled to vote on the resolution the following day.1209 There was speculation in the media that the Obama Administration would not oppose the resolution.1210

According to Flynn, the Transition Team regarded the vote as a significant issue and wanted to support Israel by opposing the resolution.1211 On December 22, 2016, multiple members of the Transition Team, as well as President-Elect Trump, communicated with foreign government officials to determine their views on the resolution and to rally support to delay the vote or defeat the resolution.1212 Kushner led the effort for the Transition Team; Flynn was responsible for the Russian government.1213 Minutes after an early morning phone call with Kushner on December 22, Flynn called Kislyak.1214 According to Flynn, he informed Kislyak about the vote and the Transition Team’s opposition to the resolution, and requested that Russia vote against or delay the resolution.1215 Later that day, President-Elect Trump spoke with Egyptian President Abdel Fattah al-Sisi about the vote.1216 Ultimately, Egypt postponed the vote.1217

On December 23, 2016, Malaysia, New Zealand, Senegal, and Venezuela resubmitted the resolution.1218 Throughout the day, members of the Transition Team continued to talk with foreign leaders about the resolution, with Flynn continuing to lead the outreach with the Russian government through Kislyak.1219 When Flynn again spoke with Kislyak, Kislyak informed Flynn that if the resolution came to a vote, Russia would not vote against it.1220 The resolution later passed 14-0, with the United States abstaining.1221 [my emphasis]

1208 Karen DeYoung, How the U.S. Came to Abstain on a U.N. Resolution Condemning Israeli Settlements, Washington Post (Dec. 28, 2016).

1209 Karen DeYoung, How the U.S. Came to Abstain on a U.N. Resolution Condemning Israeli Settlements, Washington Post (Dec. 28, 2016).

1210 Michelle Nichols & Lesley Wroughton, U.S. Intended to Allow Passage of U.N. Draft Critical of Israel, Reuters (Dec. 21, 2016).

1211 Flynn 11/16/17 302, at 12; Flynn 11/17/17 302, at 2.

1212 Flynn 11/16/17 302, at 12-14; Flynn 11/17/17 302, at 2.

1213 Flynn 11/16/17 302, at 12-14; Flynn 11/17/17 302, at 2; Kushner 11/1/17 302, at 3; 12/22/16 Email, Kushner to Flynn; 12/22/16 Email, McFarland to et al.

1214 Flynn 11/16/17 302, at 13; Call Records of Michael T. Flynn

1215 Statement of Offense ¶ 3(d), United States v. Michael T. Flynn, No. 1:17-cr-232 (D.D.C. Dec. 1, 2017), Doc. 4 (“Flynn Statement of Offense”); Flynn 11/16/17 302, at 12-13.

1216 Flynn 11/17/17 302, at 2; Flynn 11/16/17 302, at 13.

1217 U.N. Vote on Israeli Settlement Postponed, “Potentially Indefinitely”, Reuters (Dec. 22, 2016).

1218 Somini Sengupta & Rick Gladstone, Rebuffing Israel, U.S. Allows Censure Over Settlements, New York Times (Dec. 23, 2016).

1219 Flynn 11/16/17 302, at 12-14; Kushner 11/1/17 302, at 3; 12/23/16 Email, Flynn to Kushner et al.

1220 Flynn Statement of Offense ¶ 3(g).

1221 Israel’s Settlements Have No Legal Validity, Constitute Flagrant Violation of International Law, Security Council Reaffirms, 7853rd Meeting (PM), United Nations Security Council (Dec. 23, 2016).

This account separates the description of the December 1, 2016 meeting including Sergey Kislyak and Flynn at which Jared suggested setting up a back channel via secure Russian channels, as well as the December 13, 2016 meeting with sanctioned banker Sergey Gorkov at Tom Barrack’s office, a meeting Jared claimed was diplomatic but Gorkov claimed pertained to business.

The Report doesn’t reveal which Senator’s office alerted Flynn to the risk that Obama would allow Israel be sanctioned.

The Report doesn’t describe all the calls that took place on December 22. In a warrant affidavit targeting Flynn, multiple calls are described as taking place on Flynn’s phone — suggesting the possibility that Trump used Flynn’s phone to call al-Sisi. McFarland later noted that Flynn, “worked it all day with trump from Mara lago.”

The Report did not mention that Jared asked toand did — release a false report claiming that Egypt had initiated this effort.

Can we make it clear that Al Sisi reached out to DJT so it doesn’t look like we reached out to intercede? This happens to be the true fact patter and better for this to be out there.

Because it remained under investigation, the Report doesn’t mention the suspected $10 million payment an Egyptian bank had given Trump in September 2016, important background to Trump’s call to al-Sisi.

It doesn’t describe that KT McFarland had likened the effort to undercut Obama’s foreign policy to Richard Nixon’s effort to forestall peace in Vietnam and Ronald Reagan’s effort to delay the release of hostages from Iran.

Based on her study of prior presidential transitions, McFarland believed the sorts of things Flynn did were not unusual. She cited Richard Nixon’s involvement in Vietnam War peace talks and Ronald Reagan’s purported dealings with Iran to free American hostages during an incoming administration. Most incoming administrations did similar things. No “red light” or “alarm bells” went off in her head when she heard what Flynn was doing. The President-elect made his support for Israel very clear during the campaign and contrasted his position with President Obama, who he believed had not treated Israel fairly.

And Mueller — likely working under the normally safe assumption that the call intercepts with Sergey Kislyak would never be released — left out several damning details revealed when John Ratcliffe did release the transcripts in May 2020.

First, Mueller implies that Egypt, by itself, decided to delay the vote, but on their second call, Sergey Kislyak told Flynn that they would push for a delay too.

Kislyak: Uh, I just wanted as a follow up to share with you several points. One, that, uh, your previous, uh, uh, telephone call, I reported to Moscow and it was considered at the highest level in Russia. Secondly, uh, uh, here we are pointing [PH], uh, taking into account, uh, entirely your, uh, arguments.

Flynn: Yes.

Kislyak: To raise a proposal or an idea of continued consultations in New York. We will do it.

Flynn: Okay.

Kislyak: Uh, to give time for working out something, uh, that would be, would be, uh, less controversial.

Flynn: Okay. That. .. That’s good news.

[snip]

Kislyak: But, uh, responding to your, uh, telephone call and our conversations, we will try to help, uh, to~ uh~ postpone the vote and to allow for consultations.

Flynn: Okay. That’s .. that’s good.

In Kislyak’s call with Flynn (in which he had to cut off the blubbering General to make his carefully scripted points), he made it clear that he had discussed the topic with “the highest level in Russia,” which can only mean Putin.

When Flynn called Kislyak back on December 29, the Russian Ambassador told him that they were not going to support Obama’s other framework for the Middle East at the time.

KISLYAK: Oh, General, thank you very much for calling me back. I was trying to reach you for quite a while because I have several, uh, issues to raise with you —

FLYNN: Uh huh.

KISLYAK: – rather to inform you. If you’ll allow me, one by one.

FLYNN: Please.

KISLYAK: One, uh, since you were interested in the issue of the Middle East and you called me on that issue

FLYNN: Uh huh.

KISLYAK: We wanted to convey to you and through you to the President Elect that we had uh significant reservations about the idea of adopting now the principles for the Middle East, uh, that our American colleagues are pushing for. So we are not going to support it to — in the quartet, or in the Security Council. And we have conveyed to our American colleagues. So in the spirit of full transparency I was asked to inform you as well.

FLYNN: Okay.

KfSLYAK: So it’s not something that we – Russia – are going to support.

FLYNN: Okay that’s good.

Kislyak tied that, implicitly, to a demand to reverse Obama’s sanctions; he used Flynn’s discussion about cooperating on counterterrorism to note that GRU and FSB would need to be part of the cooperation.

FLYNN: We have to eliminate the common threat.

KISLYAK: We agree. One fo the problems among the measures that have been announced today is that now FSB and GRU are sanctions, are sanctioned, and I ask myself, uh, does it mean that the United States isn’t willing to work on terrorist threats?

FLYNN: Yeah, yeah.

KISLYAK: Because that’s the people who are exactly, uh, fighting the terrorists.

Most importantly, a point utterly inconsistent with the conclusion in the Mueller Report that it was never clear if Trump knew of this back channel, on their December 31 call, Flynn told Kislyak that “boss is aware” of an invite that Kislyak had extended.

Remember that a pro-Trump FBI agent was pushing the conclusion that all this was a big misunderstanding, a conclusion that largely held the day.

And that’s just what is included. Ratcliffe didn’t release the December 22 transcript, the one that started this discussion.

Flynn was in Mar-a-Lago on December 22 — and the December 29 transcript suggests that Flynn may have been on speaker phone (he made the call from his hotel phone, and so could have had his own phone connected back to MAL). So it’s not impossible that Trump was actually involved in the calls placed on December 22. As bolded above, in the Report, Mueller didn’t describe what he knew from the transcripts; instead, he attributed his version of the December 22 calls to Flynn.

At a time when Trump was advised — at least partly — by adults, he didn’t hesitate to intervene back channel to undercut his Democratic predecessor in order to help Bibi Netanyahu. Per KT McFarland, it was all in the tradition of Nixon and Reagan intervening in foreign policy to help win an election.

This post is part of a Ball of Thread I’m putting together before I attempt to explain how Trump trained Republicans to hate rule of law. See this post for an explanation of my Ball of Thread.

Ball of Thread: Trump’s Narcissism Makes Him Easy to Trigger

This post is part of a Ball of Thread I’m putting together before I attempt to explain how Trump trained Republicans to hate rule of law. See this post for an explanation of my Ball of Thread.

Discussions of Trump’s cultivation by Russia (and other authoritarian countries) always founder on discussions of his formal recruitment.

There is abundant evidence that Russia, like other countries, did at least attempt to recruit Trump. Craig Unger has written two good books on the subject.

But many attempts to describe why and whether that happened, particularly in the hands of pundits, are easily discredited. That’s true, in significant part, because people imagine recruitment is an either/or thing: that people come fully recruited spies one day and from that point forward they are puppets of their handlers. The reality, as I understand it, is a gradual process of creating the preconditions via which people can be persuaded to act in ways that benefit another country.

On top of being an all around annoyance, for example, Jonathan Chait’s consideration of whether Trump had long been recruited was sloppy and made the entire Russian investigation easier to discredit.

And the thing is, such efforts are unnecessary.

All you need to explain Trump’s actions (and all I’ll rely on for this series) is Trump’s narcissism. Trump is such an epic narcissist, and narcissists’ reactiveness and paranoia and pathological need to feed their own ego are so predictable, that the only explanation you need for how Trump could be manipulated is that narcissism. So long as you could reliably trigger Trump’s narcissism, you could fairly reliably trigger a predictable narcissistic response to a given trigger.

Trump’s habit of releasing highly classified documents is a great example. Trump almost blew the Vault 7 investigation by revealing details that made it clear FBI considered Josh Schulte as the prime suspect to Tucker Carlson the day of his first search; Trump did so to try to blame Obama for the compromise. Trump burned an Israeli counterterrorism program by giving it to Russia, which he did to show off. Trump burned the satellite imagery targeting Iran, which he did so to dickwag Iran. Trump attempted to release all the backup materials to the Russian investigation because some dopey advisor convinced him that it would help to disprove his critics. Trump shared details of DOD’s plans to attack Iran with Mark Meadows’ ghost writer because he thought it would help him discredit Mark Milley. A master spy might have asked Trump to release all this intelligence for him. Maybe one day we’ll learn the documents that went missing from Mar-a-Lago were specifically requested. But you don’t even need that master spy request (and if there were a master spy, he might not ask for documents in the form of a request): because all it takes to get Trump to release highly classified documents is to suggest that in some way doing so will harm his detractors.

The Trump Tower Moscow deal — or really, any deal — is another example. It is not important whether the Trump Tower Moscow deal pitched to Michael Cohen (or any of the several other Russian Trump Tower deals) to be real, or plausible. Russia could, with great certainty, dangle offers for free money and the biggest tower in Russia, and Trump was bound to act irresponsibly, as he did.

There certainly could be more: but there doesn’t have to be. All you need to manipulate Donald Trump is to trigger his narcissism.

Ball of Thread: Introduction

In my post on Elise Stefanik’s decline into fascism, I described that I’ve been meaning to lay out how Trump used his legal cases to train Republicans to hate rule of law, which has been a key part of how the Republican party has come to embrace fascism. I’ve been dreading and therefore putting off writing that, in large part because it’ll involve rehashing the Russian investigation, and the counter-propaganda to the Russian investigation has been so effective that even addressing the reality of the Russian investigation at this point is always a real chore.

One other reason I’ve been putting it off is because there are a lot of things I want to have in the background — what I’ll call a Ball of Thread. These are not so much related points. Rather, they’re just things that I want to have in the background so I can pull on one or another thread without distracting from the main argument.

So I’m going to first try to write those up fairly quickly, so they’re out there, my Ball of Thread. Some of these posts will be more observation than detailed collection of facts. Others will not show my proof to the extent I normally do. Some will update things I’ve already said. Still others would not normally merit their own post, but I want to have it out there, as part of my Ball of Thread.

Plus, I’m going to try to do this while continuing to cover two Trump prosecutions, multiple Hunter Biden dick pic sniffing campaigns, 1,200 January 6 cases, and some other things that will come up. You know? My day job. All while learning to walk again, after foot surgery.

Happy New Year!

As of now, I anticipate that my Ball of Thread will include:

These will hopefully be quick; they may be sloppy; they likely will not be in this order. But hopefully I can spin my Ball of Thread then move onto the larger task.

On the image: The featured image for this post comes from the Library of Congress’ Farm Services Administration set.