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Mike Flynn Seizes the Rope to Hang Himself With: Pick Your Perjury

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As I noted Wednesday, Mike Flynn’s legal team and the government submitted a bunch of filings.

In this post, I suggested (controversially) that prosecutors may have had a different purpose for raising probation in their reply to Flynn’s sentencing memo, to remind Judge Emmet Sullivan how pissed he gets when powerful people demand special treatment that the little people go to prison for. In this post, I suggested that Flynn’s motion to dismiss would be better suited if Sidney Powell were representing Carter Page, not Flynn.

In this post, I’ll cover the meat of the issue, Flynn’s attempt to withdraw his guilty plea, made twice, under oath.

Before I get into that meat, though, note that with a sworn declaration Flynn submitted with this filing, he has given four sworn statements in this matter:

  • December 1, 2017: Mike Flynn pled guilty before Judge Rudolph Contreras to lying in a January 24, 2017 FBI interview.
  • December 18, 2018: Mike Flynn reallocuted his guilty plea before Judge Emmet Sullivan to lying in a January 24, 2017 FBI interview.
  • June 26, 2018: Mike Flynn testified to an EDVA grand jury, among other things, that “from the beginning,” his 2016 consulting project “was always on behalf of elements within the Turkish government,” he and Bijan Kian would “always talk about Gulen as sort of a sharp point” in relations between Turkey and the US as part of the project (though there was some discussion about business climate), and he and his partner “didn’t have any conversations about” a November 8, 2016 op-ed published under his name until “Bijan [] sent me a draft of it a couple of days prior, maybe about a week prior.” The statements conflict with a FARA filing submitted under Flynn’s name.
  • January 29, 2020: Mike Flynn declared, under oath that, “in truth, I never lied.”

Understand that from the moment Judge Emmet Sullivan picks up this motion to withdraw his plea, Sullivan will be faced with Flynn claiming he lied, at least once, under oath. Take your pick which one of these statements under oath Flynn now claims to be a lie, but at least one of them necessarily is. And Sullivan has made it clear he plans to put Flynn back under oath to resolve all this.

That’s the hole that Sidney Powell has crafted for her client to dig his way out of, a sworn statement that conflicts with two earlier ones, and sworn testimony that conflicts with her primary basis for withdrawing this plea.

Almost no mention of his lies about Russia

From there, she provides her client little help from the primary task before him: explaining why he is withdrawing his guilty plea that primarily relates to his January 24, 2017 FBI interview. In the first paragraph of her motion, she asserts that Mike Flynn does maintain he did not lie on January 24, 2017, meaning he lied under oath before both Contreras and Sullivan when he said he did.

Michael T. Flynn (“Mr. Flynn”) does maintain that he is innocent of the 18 U.S.C. §1001 charges; and he did not lie to the FBI agents who interviewed him in the White House on January 24, 2017.

She offers several different explanations for why her client apparently perjured himself twice before judges. The most sustained one — one Flynn fans have made persistently — is that he now thinks the agents didn’t actually believe he lied because they “saw no indications of deception” from Flynn, meaning that he didn’t act like he was lying. Bizarrely, one of the things Flynn includes in his sworn declaration is that he has a history of not being candid about sensitive and classified subjects with anyone who is not his superior (though I would imagine that his former superior James Clapper would argue even this is not true).

My baseline reaction to questions posed by people outside of my superiors, immediate command, or office of responsibility is to protect sensitive or classified information, except upon “need to know” and the proper level of security clearance. That type of filter is ingrained in me and virtually automatic after a lifetime of honoring my duty to protect the most important national and military secrets.

In short, Flynn claims under oath that he has a habit of not telling the truth about classified or sensitive matters. He doesn’t quite say that’s what happened here, but since he has stated under oath he knew that it was a crime to lie to the FBI and he knew the people interviewing him would have had access to transcripts of his calls with Sergei Kislyak, has has provided evidence, under oath, that he knew these FBI agents were people he had to tell the truth to and were included among those with the “need to know” about what he said to Kislyak. But the explanation that he has a virtually automatic filter that leads him not to tell the truth about sensitive information does explain why agents might observe that he had a sure demeanor even while knowing he lied: Flynn has had a lot of practice lying.

Now, this by itself surely can’t get him out of his conflicting sworn statements that he didn’t lie but he did.

So Flynn blames his former lawyers.

As part of a broader strategy to claim that Flynn’s Covington team was incompetent, Sidney Powell claims (relying on Flynn’s declaration) that when the government made it clear to his lawyers they knew he had been lying, Flynn asked his lawyers “to make further inquiry with the SCO prosecutors about whether the FBI agents believed I had lied to them” (Flynn’s declaration is internally contradictory on this point, because he claims he heard rumors they didn’t believe this by November 30 but then, seven paragraphs later, he claims he never heard those rumors before he pled guilty on December 1). His attorney inquired and came back with the truthful response that the “agents stand by their statements.” Flynn claims that his attorneys did not tell him what he claims to be a critical detail, that the agents thought he sounded like he was telling the truth even though abundant other evidence (including Peter Strzok’s texts to Lisa Page, written before any draft 302s) make it clear they knew he was lying.

The information that counsel withheld concerned prior statements that the two FBI agents who interviewed Mr. Flynn in the White House had made about his “sure demeanor,” the lack of “indicators of deception,” and similar observations. Exs. Michael Flynn Declaration;Lori Flynn Declaration.

In an earlier round of briefing in this case, the government represented that it had communicated this information to the defendant on the day that the plea agreement was signed, November 30, 2017 [Gov’t’s Opp’n, ECF No. 122 at 16]. In its December 16, 2019 Opinion, moreover, this Court accepted and relied on that representation [Memorandum Opinion, ECF No. 144 at 32].As the Flynn Declarations demonstrate, however, that representation was mistaken: the government almost certainly made a disclosure to the defendant’s counsel on that day, but Covington did not then communicate the information to the defendant himself. Of course, in the vast majority of cases, communication to counsel is communication to the client, but it was not that day.

Flynn now claims it would have changed his mind to plead guilty if he learned that the FBI agents thought he was a pretty convincing liar, but his lawyers incompetently didn’t share that detail with him.

But wait.

There’s more.

Powell also suggests that the way the FBI investigated Flynn — first by monitoring how he responded to Trump’s first national security briefing (the one Flynn attended while secretly signing up to work for the Turkish government) and then by interviewing him in the White House — is proof they weren’t really investigating him.

Meanwhile, on January 24, 2017, as we have briefed elsewhere, FBI Director Comey and Deputy Director McCabe dispatched Agents Strzok and “SSA 1” to the White House— deliberately contrary to DOJ and FBI policy and protocols—without notifying DOJ.9

9 This was actually the FBI’s second surreptitious interview of Mr. Flynn—without informing him even so much as that he was the subject of their investigation. SSA 1 had “interviewed him” in a “sample Presidential Daily Briefing” (“PDB”) on August 17, 2016—unbeknownst to anyone outside the FBI or DOJ until revealed in the recent Inspector General Report of December 9, 2019.

This also goes to Mr. Flynn’s claim of actual innocence. Against the baseline interview the FBI surreptitiously obtained under the guise of the PDB (in August 2016), the agents conducted the White House interview and immediately reported back in three extensive briefings during which both agents assured the leadership of the DOJ and FBI they “saw no indications of deception,” and they believed so strongly that Mr. Flynn was shooting straight with them that Strzok pushed back against Lisa Page’s disbelief and Deputy Director McCabe’s cries of “bullshit.” ECF No. 133-2 at 4. This development is addressed in Flynn’s Motion to Dismiss for Egregious Government Misconduct filed contemporaneously herewith.

[snip]

The electronic communication written by SSA 1 arising from the presidential briefing was approved by Strzok. It was uploaded into Sentinel August 30, 2016. IG Report at 343 and n. 479. In truth, but unknown to Mr. Flynn until the release of this Report, SSA1 was actually there because he was investigating the candidate’s national security advisor as being “an agent of Russia.” This report of that interaction including purported statements by Mr. Flynn was put it in a sub-file of the Crossfire Hurricane file. That, and the DOJ document completely exonerating Mr. Flynn of that slanderous assertion, has never been produced to Mr. Flynn. This was extraordinary Brady and Giglio information that should have been provided to Mr. Flynn by Mr. Van Grack no later than upon entry of this Court’s Brady order

[snip]

With every disclosure and IG Report of the last eighteen months, it has become increasingly clear the FBI was not trying to learn facts from Mr. Flynn on January 24, 2017. Rather, the Agents were executing a well-planned, high-level trap that began at least as far back as August 15, 2016, when Strzok and Page texted about the “insurance policy” they discussed in McCabe’s office, opened the “investigation” on Mr. Flynn the next day, and inserted SSA 1 surreptitiously into the “sample PDB” the next day to investigate and assess Mr. Flynn.

Even if these assertions were true, none of it rebuts that Flynn told lies in that interview.

Which is probably why Powell goes on to argue that the answers that Flynn claims weren’t lies weren’t material to the FBI investigation, based in part on Judge Sullivan’s comments from the December 2018 sentencing hearing that probably were more indication that he wanted prosecutors to lay out how bad Flynn’s lies were.

Finally, the Court was not satisfied with the factual basis for the plea. It said it had “many, many, many questions.” Hr’g Tr. Dec. 18, 2018 at 20. The Court, sensing the materiality issues in the case, specifically left those questions open for another day. Id. at 50. 40

40 The element of materiality boils down to whether a misstatement “has a natural tendency to influence, or was capable of influencing, the decision of the decision-making body to which it was addressed.” United States v. Gaudin, 515 U.S. 506, 522-23 (1995). In applying this rule, courts analyze the statement that was made and the decision that the agency was considering. Universal Health Services, Inc. v. U.S. ex rel. Escobar, 136 S. Ct. 1989, 2002-03 (2016). For a misstatement to be material, the agency must show that it would have made a different decision had the defendant told the truth.

The government alleges misstatements that were not material because the FBI agents did not come to the White House for a legitimate investigative purpose; they did not come to investigate an alleged crime. Instead, they came to get leverage over Mr. Flynn at a time when they felt the new administration was still disorganized. So they ignored policies and procedures. They went around the Department of Justice and the White House Counsel’s office, and they walked into the National Security Advisor’s office under false pretenses. They decided not to confront Mr. Flynn with any alleged misstatement not for a legitimate law enforcement purpose, but rather because they did not know if the effort to purge him from his office would be successful. If it was not, they wanted to maintain a collegial working relationship with him. If Mr. Flynn had answered the questions the way in which they imagine he should, nothing at all would have changed in the actions the FBI would have taken.

Powell, of course, presents no evidence for these wild claims. Moreover, she ignores the evidence of materiality that prosecutors submitted in their own sentencing memo.

The topic of sanctions went to the heart of the FBI’s counterintelligence investigation. Any effort to undermine those sanctions could have been evidence of links or coordination between the Trump Campaign and Russia.

She ignores, too, that prosecutors put her on notice that they’re going to show that Flynn continued to lack candor in his first meetings with Mueller’s team, a team that did not include either of the FBI agents she says had it in for her client.

Based on filings and assertions made by the defendant’s new counsel, the government anticipates that the defendant’s cooperation and candor with the government will be contested issues for the Court to consider at sentencing. Accordingly, the government will provide the defendant with the reports of his post-January 24, 2017 interviews. The government notes that the defendant had counsel present at all such interviews.

Flynn’s declaration actually accords with this. He describes how, after his first interview with Mueller’s prosecutors, “my attorneys told me that the first day’s proffer did not go well.” It wasn’t until several more meetings before Mueller’s team gave Flynn’s attorneys his first 302, which made it clear how dramatically he had lied.

All of which is to say that Powell’s most robust support for Flynn’s claim that he didn’t lie is that FBI agents believed he had lied well, which probably isn’t going to convince Sullivan to let him withdraw his sworn plea that he did in fact lie.

Cursory consideration of Cray

That makes it all the more problematic that Powell barely addresses what Judge Sullivan told both sides to: a hearing with sworn witnesses and to address US v Cray. True, she does say that if the government doesn’t agree with this motion Sullivan should maybe hold a hearing.

No hard and fast rule governs whether an evidentiary hearing is required before a court can properly adjudicate ineffective assistance of counsel claims, including those undergirding a motion to withdraw a guilty plea. Much depends on exactly what is being contested and what materials the court will have to consider in deciding the merits. In Taylor, 139 F.3d at 932-33, this Circuit wrote:

Ordinarily, when a defendant seeks to withdraw a guilty plea on the basis of ineffective assistance of trial counsel the district court should hold an evidentiary hearing to determine the merits of the defendant’s claims. . . . On the other hand, some claims of ineffective assistance of counsel can be resolved on the basis of the trial transcripts and pleadings alone.3

But she doesn’t commit to putting her client (and his former attorney) under oath, which is where this is heading.

And her briefing on Cray is cursory. She deals with the standard under which that defendant tried to withdraw his plea.

United States v. Cray, 47 F.3d 1203 (D.C. Cir. 1995), which this Court requested counsel address, denied withdrawal of a guilty plea because there was no violation of Rule 11. As more recent circuit decisions hold, Rule 11 violation is only one of the reasons that warrants granting a motion to withdraw a plea. Here, Sixth Amendment violations taint Mr. Flynn’s plea, and it cannot stand.38 United States v. McCoy, 215 F.3d 102, 107 (D.C. Cir. 2000) (“A plea based upon advice of counsel that ‘falls below the level of reasonable competence such that the defendant does not receive effective assistance’ is neither voluntary nor intelligent.”) (internal citation omitted).

Moreover, she claims there was a Rule 11 violation in the reallocution before Judge Sullivan, because he didn’t ask Flynn whether there were other promises to induce him to plead.

That plea colloquy did not, however, inquire into whether any undisclosed promises or threats induced the plea agreement. Moreover, the Court specifically expressed its dissatisfaction with the underlying facts supposedly supporting the factual basis for the plea. United States v. Cray, 47 F.3d 1203, 1207 (D.C. Cir. 1995) (“Where the defendant has shown his plea was taken in violation of Rule 11, we have never hesitated to correct the error.)”

But Judge Contreras did allocute to that (in addition to making Flynn attest that he was happy with the advice Rob Kelner gave him).

THE COURT: Have any threats or promises other than the promises made in the plea agreement been made to you to induce you to give up your right to the indictment?

THE DEFENDANT: No.

Flynn now claims that he pled to ensure Mueller would not prosecute his failson, but he didn’t raise it on December 1, 2017 when asked if there any more promises made to him.

Moreover, Powell does not address another part of Cray: that when the judge put him under oath, he revealed that his claims of innocence related to other charges, something Flynn is doing here.

Powell claims Covington did not give Flynn notice of their conflict but provides evidence they did

Rather than making a robust case that Flynn did not commit the crime that he pled guilty to, lying about Russia, she instead argues that Covington was fatally conflicted when they advised Flynn to plead guilty. She argues that Flynn told the entire truth to his Covington attorneys while they were preparing his FARA filing, they didn’t include the information he had provided them, and so they made him plead guilty to get out of trouble they had created themselves.

Before I explain the problems with this, recall that I raised questions about a conflict immediately after the December 2018 sentencing hearing. So I’m actually sympathetic to the argument.

But there are two problems with her argument.

First, she’s obscuring the nature of the lies in Flynn’s FARA filing in an effort to pretend that Flynn did not lie to Covington when preparing the filing. I debunked some of her claims here, but one bears repeating. Flynn’s statement of offense described one of the false statements on the filing as “an op-ed by FLYNN published in The Hill on November 8, 2016 was  written at his own initiative.” Powell pretends this is a dispute over whether Flynn actually wrote the op-ed himself. Flynn did tell Covington, truthfully, that Kian had drafted the op-ed, which Powell notes repeatedly.

But Covington’s notes also show that Flynn told Covington the op-ed had nothing to do with the Turkish contract, and that he did it solely to prove that the Trump campaign was serious about fighting Islamic terrorism.

That is, he not only lied about whether it was his idea to write it, but lied about it being the deliverable for the Turkish contact altogether. As noted above, Flynn testified under oath he didn’t even know this op-ed was coming until Kian delivered it in full draft form to him. And, as DOJ has already made clear, Covington’s lawyers will testify that Flynn didn’t tell them the truth about the op-ed, as this interview report from Rob Kelner makes clear.

(U//FOUO) KELNER was informed by FLYNN the published 11/8/2016 Op-Ed article in The Hill was something he, FLYNN, had wanted to do out of his own interest. FLYNN wanted to show how Russia was attempting to create a wedge between Turkey and the United States. FLYNN informed KELNER the Op-Ed was not on behalf of FIG’s project with INOVO.

So the public record — including notes released by Powell — shows that Flynn (and Kian) were responsible for the false statements in the FARA filing, not Covington.

Moreover, documents submitted by Powell on Wednesday make it clear Covington informed Flynn of the conflict. Flynn (and his wife, who submitted a declaration that now makes it possible for prosecutors to breach spousal privilege) suggests he was only informed of the conflict twice — once in August and once in November after his first proffers. He describes the August advice as a 15-minute conversation he had after pulling over on the side of a road.

The call then occurred while we were driving to have dinner with some friends. It was an approximately 15-minute phone call, where we had pulled off to the side of a highway. They informed us that there was a development regarding a conflict of interest. They also mentioned the possibility of Bijan being indicted. Speaking to the conflict of interest, they stated that they were prepared to defend as vigorously, if the conflict became an issue. We told them we trusted them.

The government has, in the past, noted they raised a potential conflict with Covington twice, on November 1 and November 16, before they ever spoke with Flynn. An exhibit Powell included Wednesday shows that on November 20, 2017, Flynn responded to a Covington email stating the description of the conflict “is very clearly stated” but that “we’re good going forward with you all and very much trust that you will continue to guide us through this difficult time.” The email reflected at least three warnings from Covington:

  • August 30, where they informed him of the conflict and suggested he “obtain advice from a lawyer independent of Covington”
  • A later conversation where they suggested the name of another lawyer with expertise in legal ethics who had already determined he had no conflict who was “willing to be engaged by you for a reduced, fixed fee”
  • The warning on November 19, which for the third time advised him to “seek advice from an independent lawyer about this”

Flynn did not contest their representation of those (at least) three warnings. Powell now claims they cited the wrong rule of professional conduct — about the only claim in the filing that might have merit. And — in a passage denying their (at least) third warning to Flynn — she also suggests that the Covington lawyers faced criminal liability themselves for repeating what their client told them.

What had begun as a simple mistake in doing the FARA filing suddenly had the potential of exposing the Covington lawyers to civil or criminal liability, significant headlines, and reputational risk. That the Covington lawyers thought that a “drive-by” cell-phone chat, while their client was on his way to dinner with his wife, was sufficient disclosure in these dire circumstances revealed their cavalier attitude and presaged far worse. [emphasis original]

She doesn’t note, of course, that Covington’s possible exposure on FARA, and the ability of the government to get them to testify, remained the same whether or not they remained Flynn’s lawyer.

And all that’s before Covington starts producing other records that are less complimentary to Flynn.

Remember: A key part of Sidney Powell’s argument here is that Covington — the lawyers who advised Flynn that if he withdrew his plea in December 2018 he’d only be giving Judge Sullivan more rope to hang himself with — provided obviously incompetent legal advice.

Be careful what you wish for

Way back when Flynn first got cute in advance of his December 2018 sentencing, I warned him, be careful what you wish for. Raising the circumstances of his FBI interview was likely, I predicted, to get Sullivan to ask for those details.

Which he subsequently did, resulting in damning new information about Flynn’s lies to be released.

I feel like that’s bound to happen here. For example, Powell keeps complaining that DOJ won’t provide her Flynn’s DIA briefings regarding his trips to Russia. She has raised what happened in Flynn’s proffers, but not provided the 302s which even Flynn’s declaration suggests was a disaster. The government has already telegraphed they may release this stuff.

There’s even the possibility that if Judge Sullivan asks to have witnesses, DOJ will ask that Don McGahn, John Eisenberg, or Reince Priebus testify. According to the Mueller Report, they all believed he was lying to them about what he remembered he had said to Kislyak.

So in addition to not heeding the advice about giving a judge more rope to hang you with, I feel like someone should have warned Flynn to be careful of what he wishes for. Again.

A number of people have pointed to Bill Barr’s sudden installation of a loyal aide at DC US Attorney and assumed it means the fix is in for the Flynn sentencing.

Attorney General William P. Barr on Thursday named former federal prosecutor Timothy Shea as the District’s interim U.S. attorney.

Shea, 59, currently serves as a counselor to Barr at the Justice Department. He will oversee the nation’s largest U.S. attorney’s office with 300 prosecutors.

The announcement comes just a day before Jessie K. Liu, the city’s current U.S. attorney, leaves office on Friday.

Liu, 47, has served in the post for a little over two years. President Trump on Jan. 6 nominated her to become the Treasury Department’s undersecretary for terrorism and financial crimes, and her nomination is pending before the Senate Banking Committee.

I absolutely don’t discount the possibility that Barr did this to better retaliate against Andrew McCabe and shut down the remaining investigations of Trump’s aides being conducted by the DC US Attorney’s office. As I may get around to showing, I think the risk is particularly acute for Roger Stone’s sentencing, where Trump has far more untapped exposure than Flynn. And it may well be the case that Barr and Shea force prosecutors to submit a half-hearted response to this motion to withdraw (though some of them are actually NSD attorneys who report up through other channels).

But at this point, the damage has already been done. There is no way to change the fact that Flynn has sworn to statements, under oath, before Judge Sullivan that materially conflict.

SDNY Prosecutors Protect Trump’s Privacy to Enter into a Joint Defense Agreement with the Russian Mob

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Whooboy is there an interesting flurry of motions over in the Ukrainian grifter prosecution. Effectively, SDNY prosecutors and (two of) Lev Parnas’ co-defendants want to slow him from sharing information with HPSCI. The letters include:

  • January 17: Parnas asks to modify the protective order a third time
  • January 22: Igor Fruman lawyer Todd Blanche says he has an attorney-client interest in some of what Parnas wants to and has already shared
  • January 22: Andrey Kukushkin lawyer Gerald Lefcourt says he just wants a privilege review
  • January 23: SDNY says Parnas should not be able to share iCloud information he obtained via discovery without review
  • January 24: Parnas lawyer Joseph Bondy makes a quick argument asserting they should be able to share the information
  • January 24: Bondy responds to Fruman letter at more length
  • January 27: Blanche responds again, invoking Dmitry Firtash to speak on behalf of unnamed others

The dispute started when Parnas asked to share content that the FBI seized from Parnas’ iCloud account and then provided to him in discovery. He listed just 11 Bates stamp numbers in the initial request, but it’s unclear what kind of files these are. In response, the lawyer that Fruman shares with Paul Manafort, Todd Blanche, objected to that request, and also asked to “claw back” any privileged materials that Parnas already produced to HPSCI (remember that Victoria Toensing has already complained that Parnas has violated privilege). Blanche makes a dig at Parnas’ media tour:

My obvious concern is that Mr. Bondy’s hasty efforts to find a forum (beyond MSNBC and CNN) for someone —  anyone — to listen to his client’s version of events caused him to irresponsibly produce privileged materials to the HPSCI.

One of the two other co-defendants, Andrey Kukushkin, weighed in — having been alerted by SDNY that, “its filter team identified materials in Mr. Parnas’ iCloud account that may fall within a common-interest attorney-client privilege held jointly by Mssrs. Kukushkin, Parnas, and aothers” — and stated that he did not object to Parnas sharing information “if all privileged materials can be removed from Mr. Parnas’ iCloud account prior to production to HPSCI.”

Having thus cued Parnas’ co-defendants to submit complaints, SDNY then weighed in, objecting to Parnas’ request. They invoke two reasons for their objection. The first poses interesting Fourth Amendment considerations; effectively SDNY argues that Parnas’ warrant return from Apple includes material that Parnas never possessed (and some material he deleted that only still exists because prosecutors obtained a preservation request).

The materials at issue include records that, as far as the Government knows, were never in Parnas’s possession. For instance, the data produced by Apple includes deleted records (which may only exist because of the Government’s preservation requests), account usage records, and other information to which a subscriber would not necessarily have access. The form of the report, which was created by the FBI, was also never in Parnas’s possession.

[snip]

Additionally, to the extent Parnas seeks to produce his own texts, emails, photographs or other materials, he should have access to the content stored on his iCloud account through other means: he can simply download his own iCloud account and produce it to HPSCI (and in fact, it appears he has already done so).

[snip]

To the extent that Parnas has deleted materials from his iCloud account, the Government is willing to work with counsel to ensure that Parnas can produce his own materials that are responsive to the Congressional request to HPSCI. To that end, the Government respectfully submits that Parnas’s counsel should identify for the Government any specific chats, emails, photographs, or other content Parnas is unable to access from his iCloud currently, but whic exist within the discovery that has been produced to him and in his view are responsive to the Congressional subpoena.

I find that stance interesting enough — basically a reverse Third Party doctrine, saying that subscribers aren’t the owners of the information Apple has collected on them, at least not in the former that FBI reports it out.

It’s the other objection I find most interesting. SDNY prosecutors — including one of the ones who argued against broad claims of privilege in the Michael Cohen — objects because the data from Parnas’ iCloud,

[I]t public disclosure still has the potential to implicate the privacy and privilege interests of third parties and co-defendants.

It then argues that requiring Parnas to specifically request content that he already deleted,

would also permit his co-defendants to raise any concerns with respect to their privilege or privacy interest prior to the materials’ release.

SDNY’s prosecutors are arguing that Parnas can’t release his own iCloud material because of other people’s privacy interests!! As if it is the place for SDNY’s prosecutors to decide what HPSCI considers proper levels of disclosure!!

I’ve been giving SDNY the benefit of the doubt on this prosecution, assuming that as prosecutors they would push back against any Bill Barr attempt to protect Rudy (though not the President). But this alarms me. It seems like SDNY is using Fruman — who is in a Joint Defense Agreement with Rudy — to speak for Rudy’s interests.

After making a cursory response to SDNY, Bondy responded in more detail to Fruman. In it, Bondy makes the kind of argument about the limits of privilege you’ll almost never see a lawyer make.

[T]he burden is on the party asserting the attorney-client privilege to first establish that there was: 1) a communication; 2) made in confidence; 3) to an attorney; 4) by a client; 5) for the purpose of seeking or obtaining legal advice. The part asserting attorney-client privilege has the burden of conclusively proving each element, and courts strongly disfavor blanket assertions of the privilege as “unacceptable.” In addition, the merre fact that an individual communicates with an attorney does not make the communication privileged.

There are also instances in which the attorney-client privilege is waived, including when the substance of otherwise privileged communications are shared with third parties, when the communications reflect a criminal or fraudulent intent between the parties, when the communications are part of a joint–yet conflicted–representation, and in cases where the parties to a joint defense have become adverse in their interests. 

Bondy then goes on to add that HPSCI “does not recognize attorney-client privilege,” which may be why, at about the time these letters were breaking, Jay Sekulow was on the floor of the Senate haranguing Democrats for not respecting that privilege (which Sekulow suggested was in the Bill of Rights). He uses that stance to suggest SDNY is making a claim that violates separation of powers.

From there, Parnas goes on to disavow any privilege shared in his brief Joint Defense Agreement with the Russian mob, in part based on discussions about his initial response to the HPSCI subpoena having been shared more widely.

Mr. Parnas waives all privilege with respect to the communications he had with Mssrs. Dowd and Downing. Furthermore, the substance of his and Mr. Fruman’s legal representation appears to have been shared with third parties, including Jay Sekulow, Rudolf Giuliani, John Sale, Jane Raskin, and others. … As the Court may know, Mssrs. Sekulow, Raskin, and Giuliani are also attorney for President Trump. Mr. Giuliani and the President have interests divergent from Mr. Parnas’s wish to cooperate with Congress and the Government. Mr. Parnas believes that his and Mr. Fruman’s ostensibly joint representation by Attorneys Dowd and Downing was conflicted and intended from its inception to obstruct the production of documents and testimony responsive to lawful congressional subpoena.

[snip]

Here, Attorney Dowd undertaking a joint representation of Mr. Parnas and Mr. Fruman — with the President’s explicit permission — constituted an actual conflict of interest at the time and appears designed to have obstructed Mr. Parnas’s compliance with HPSCI’s subpoenas and any ensuring efforts to cooperate with congressional investigators or federal prosecutors.

Bondy ends by saying it’s up to those claiming a conflict to invoke it.

Bondy makes it fairly clear: he believes the privilege SDNY has set Fruman up to object to involves Rudy and Trump, neither of whom are in a position to object, particularly given that if they do, Bondy will argue that Parnas believes their grift might be criminal and therefore the privilege doesn’t apply.

So instead of the President and his lawyer claiming that Parnas’ release of this material will violate privilege, Fruman does.

Mr. Fruman has reason to believe that the Production Material contains privileged information belonging to Mr. Fruman and others.

He invokes only the consultation of their shell company, Global Energy Producers, with [Rudy’s former firm] Greenberg Traurig in conjunction to substantiate a common attorney-client interest, then nods to more:

This is but one example, and there are many more, but certainly the privilege issues implicated by the repeated amendments to the Protective Order are far more expansive than the attorney-client relationships identified in Mr. Bondy’s letter.

Fruman then complains that he cannot — as Parnas has said he must do — invoke privilege because he’s not in possession of the materials (just the taint team and Parnas have them).

The best part is where, still faced with the problem that the people whose privilege is at issue (Rudy and Trump) cannot politically invoke it, Fruman finds someone else whose privilege, he says, has been violated: Dmitry Firtash.

Mr. Fruman is not the only person whose privilege information is at risk. For example, Mr. Parnas has represented that he was employed as a translator for Victoria Toensing and Joseph DiGenova in connection with their representation of Dymitry Firtash. Clearly, any materials Mr. Parnas received as a translator assisting attorneys in the representation of Mr. Firtash would be protected by attorney-client privilege. And that privilege would be held by Mr. Firtash, the client, not Mr. Parnas.

It’s increasingly clear what Parnas and Bondy are up to: They’re trying to make it politically (and given the OLC memo prohibiting the indictment of the President) bureaucratically impossible to pursue further charges. If everything recent Parnas did was done for the President, he shouldn’t be the only one facing prosecution for it.

Fruman, meanwhile, seems to be the sole member of the Joint Defense Agreement with the Russian Mob who is a party here, trying to prevent his position from deteriorating by speaking for all the affected parties, only without naming Rudy or Trump (presumably backed by the same old pardon promises Trump always uses to get witnesses against him to take the fall).

What’s not clear is what SDNY is up to. Because it sure seems like they’ve used Fruman to protect Trump’s and even Rudy’s interests.

Judge Oetken scheduled a hearing for Thursday to resolve all this. Which may be too late for Parnas’ play.

The Whack-a-Mole Cover Story: Bill Barr’s Knowing Complicity Moved a Month Earlier

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Attentive readers of yesterday’s NYT Bolton story have noted that Bolton says that by August, Trump’s demand in the quid pro quo was not just the announcement of an investigation, but “all materials they had about the Russia Investigation that related to Mr. Biden and supporters of Mrs. Clinton in Ukraine.”

In his August 2019 discussion with Mr. Bolton, the president appeared focused on the theories Mr. Giuliani had shared with him, replying to Mr. Bolton’s question that he preferred sending no assistance to Ukraine until officials had turned over all materials they had about the Russia investigation that related to Mr. Biden and supporters of Mrs. Clinton in Ukraine.

That is, in August of last year, Trump was extorting Ukraine to obtain materials about 2016.

Some have suggested this is new news. But it’s not. It came up at Mick Mulvaney’s October 17, 2019 press conference. As he told it, the hold was primarily because of corruption and to press the rest of Europe to provide their fair share of funding for Ukraine. Mulvaney made a statement that — given that we now know DOD reviewed how much Europe provided and concluded they were providing more than the US — is fairly breathtaking in retrospect. Mulvaney gets away with this by claiming it’s just about lethal aid.

So we actually looked at that, during that time, before — when we cut the money off, before the money actually flowed, because the money flowed by the end of the fiscal year — we actually did an analysis of what other countries were doing in terms of supporting Ukraine.  And what we found out was that — and I can’t remember if it’s zero or near zero dollars from any European countries for lethal aid.  And you’ve heard the President say this: that we give them tanks and other countries give them pillows.  That’s absolutely right, that the — as vocal as the Europeans are about supporting Ukraine, they are really, really stingy when it comes to lethal aid.  And they weren’t helping Ukraine, and then still to this day are not.

From those two excuses — corruption and European support — Mulvaney then adds, as what he probably intends to be a throwaway comment, that part of this was investigating the DNC server, all the while trying to pretend that an investigation into the DNC server (he can never seem to label this the Crowdstrike conspiracy theory) pertains to corruption.

Did he also mention to me in pass the corruption related to the DNC server?  Absolutely.  No question about that.  But that’s it.  And that’s why we held up the money.

Now, there was a report —

Q    So the demand for an investigation into the Democrats was part of the reason that he ordered to withhold funding to Ukraine?

MR. MULVANEY:  The look back to what happened in 2016 —

Q    The investigation into Democrats.

MR. MULVANEY: — certainly was part of the thing that he was worried about in corruption with that nation.  And that is absolutely appropriate.

[snip]

Did he also mention to me in pass the corruption related to the DNC server?  Absolutely.  No question about that.  But that’s it.  And that’s why we held up the money.

Now, there was a report —

Q    So the demand for an investigation into the Democrats was part of the reason that he ordered to withhold funding to Ukraine?

MR. MULVANEY:  The look back to what happened in 2016 —

Q    The investigation into Democrats.

MR. MULVANEY: — certainly was part of the thing that he was worried about in corruption with that nation.  And that is absolutely appropriate.

Someone latches on to Mulvaney’s admission that Trump was demanding an investigation into his opponents, and raises “the Bidens.” Someone else notes that even if you’re just talking about the DNC, it still means Trump engaged in a quid pro quo to investigate his prospective opponents, since the DNC is also involved in 2020.

Q    Mr. Mulvaney, what about the Bidens, though, Mr. Mulvaney?  Did that come into consideration when that money was held up?

MR. MULVANEY:  I’m sorry, I don’t know your name, but he’s being very rude.  So go ahead and ask your question.

Q    Just to clarify, and just to follow up on that question: So, when you’re saying that politics is going to be involved —

MR. MULVANEY:  Yeah.

Q    — the question here is not just about political decisions about how you want to run the government.  This is about investigating political opponents.  Are you saying that —

MR. MULVANEY:  No.  The DNC — the DNC server —

[snip]

Q    Are you saying that it’s okay for the U.S. government to hold up aid and require a foreign government to investigate political opponents of the President?

MR. MULVANEY:  Now, you’re talking about looking forward to the next election.  We’re talking —

Q    Even the DNC.  The DNC is still involved in this next election.  Is that not correct?

Mulvaney starts to panic, and to get out of that panic, invokes the Durham investigation. To defer from 2020, Mulvaney says Trump was just obtaining information for an ongoing investigation.

MR. MULVANEY:  So, wait a second.  So there’s —

Q    So are you saying —

MR. MULVANEY:  Hold on a second.  No, let me ask you —

Q    But you’re asking to investigate the DNC, right?

MR. MULVANEY:  So, let’s look at this —

Q    Is the DNC political opponents of the President?

MR. MULVANEY:  There’s an ongoing — there’s an ongoing investigation by our Department of Justice into the 2016 election.  I can’t remember that person’s name.

Q    Durham.

MR. MULVANEY:  Durham.  Durham, okay?  That’s an ongoing investigation, right?  So you’re saying the President of the United States, the chief law enforcement person, cannot ask somebody to cooperate with an ongoing public investigation into wrongdoing?  That’s just bizarre to me that you would think that you can’t do that.

In other words, in Mulvaney’s presser, he excused the political aspect of Trump’s quid pro quo by claiming the President was pressing Ukraine to cooperate in the Durham investigation. He claimed that this wasn’t about Biden but instead about 2016.

Of course, that had to have caused all sorts of heartache over at DOJ, because they had been saying for almost a month that Bill Barr had no clue about any of this and here Mulvaney was saying that the quid pro quo was about the investigation Barr set up and was micromanaging.

After DOJ pushed back, the White House adopted the line that this was about Burisma’s corruption.

To be sure, the impeachment witnesses didn’t always support that. Kurt Volker, for example, invented a story that when he pushed Ukraine to investigate Burisma, he meant they should investigate the corrupt company, not Biden and that the request to investigate 2016. He discounted the request for an investigation into 2016 by suggesting Ukrianians might be trying to buy influence.

SCHIFF: Ambassador, let me also ask you about the allegations against Joe Biden, because that has been a continuing refrain from some of my colleagues, as well. Why was it you found the allegations against Joe Biden, related to his son or Burisma, not to be believed?

VOLKER: Simply because I’ve known Vice President — former Vice President Biden for a long time, I know how he respects his duties of higher office and it’s just not credible to me that a Vice President of the United States is going to do anything other than act as how he sees best for the national interest.

[snip]

SCHIFF: I take it since you say that — you acknowledge that asking for an investigation of the Bidens would have been unacceptable and objectionable, that had the President asked you to get Ukraine to investigate the Bidens, you would have told him so?

VOLKER: I would have objected to that. Yes, sir.

SCHIFF: Mr. Goldman?

GOLDMAN: Thank you, Mr. Chairman. Just one follow up on that, Ambassador Volker. When — when you say thread the needle, you’re — you mean that you understood the relationship between Vice President Biden’s son on — and Burisma but you were trying to separate the two of them in your mind? Is that right?

VOLKER: Well I believe that they were separate, that — and I — this references the conversation I had with Mr. Giuliani as well, where I think the allegations against Vice President Biden are self-serving and not credible.

A separate question is whether it is appropriate for Ukraine to investigate possible corruption of Ukrainians that may have tried to corrupt things or buy influence. To me, they are very different things. As I said, I think the former is unacceptable, I think the latter in this case is …

[snip]

GOLDMAN: Now he was insisting from a public commitment from President Zelensky to do these investigations, correct?

VOLKER: Now, what do we mean by these investigations?

GOLDMAN: Burisma and the 2016 election.

VOLKER: Burisma and 2016, yes.

GOLDMAN: And, at the time that you were engaged in coordinating for this statement, did you find it unusual that there was such an emphasis on a public statement from President Zelensky to carry out the investigations that the president was seeking?

VOLKER: I didn’t find it that unusual. I think when you’re dealing with a situation where, I believe the president was highly skeptical about President Zelensky being committed to really changing Ukraine after this entirely negative view of the country, that he would want to hear something more from President Zelensky to be convinced that — OK, I’ll give this guy a chance.

GOLDMAN: And he — perhaps he also wanted a public statement because it would lock President Zelensky in to do these investigations that he thought might benefit him?

VOLKER: Well again, we’re — when we say these investigations what I understood us to be talking about was Ukrainian corruption.

GOLDMAN: Well, what we’re talking about is Burisma and the 2016 election, let’s just —

VOLKER: Correct, correct — yes, right.

[snip]

VOLKER: I do remember having seen some of the testimony of Mr. Kent, a conversation in which he had asked me about the conspiracy theories that were out there in Ukraine. I don’t remember what the date of this conversation was.

And my view was, well, if there are things like that, then why not investigate them? I don’t believe that there’s anything to them. If there is — 2016 election interference is what I was thinking of — we would want to know about that. But I didn’t really there was — believe there was anything there to begin with.

It was a thin story, but necessary to explain why Volker did something he knew to be utterly corrupt, and then got caught doing it. While not explicitly, he was endorsing the possibility that Ukraine might have had a corrupt role in 2016.

All that said, Bolton’s certainty that Trump was also asking for Ukraine to provide the US with information on 2016 raises the import of this detail: Bolton claims (and DOJ has been releasing conflicting comments since yesterday) that he warned Bill Barr about this shadow Ukraine policy in July.

Mr. Bolton also said that after the president’s July phone call with the president of Ukraine, he raised with Attorney General William P. Barr his concerns about Mr. Giuliani, who was pursuing a shadow Ukraine policy encouraged by the president, and told Mr. Barr that the president had mentioned him on the call. A spokeswoman for Mr. Barr denied that he learned of the call from Mr. Bolton; the Justice Department has said he learned about it only in mid-August.

After releasing an initial denial yesterday, today DOJ has issued a non-denial confirmation.

A Justice Department official familiar with the matter said Mr. Bolton did call Mr. Barr to express concerns about Mr. Giuliani and his shadow foreign policy in Ukraine. It wasn’t clear what, if anything, the attorney general did with that information.

Department spokeswoman Kerri Kupec denied that Mr. Barr learned of the Ukraine call from Mr. Bolton. The department has repeatedly said he learned about it in mid-August.

We don’t know for sure, but the difference in timeline may be utterly critical to Barr’s implication in this conspiracy. For starters, Bolton’s warning to Barr undoubtedly came before Barr stopped into a meeting in September with Rudy Giuliani about the Venezuelan who happened to be funding some of the Ukrainian grift. Bolton’s warning may make DOJ’s efforts to bracket off the Parnas and Fruman investigation, which Barr undoubtedly knew about, from the whistleblower complaint far more suspect.

Most importantly, we don’t know when multiple Ukrainians offered John Durham dirt (much less who they are). But if happened between Bolton’s warning in July and when Barr has previously claimed to have learned that Trump told Zelensky that he, Bill Barr, would happily receive the dirt he was extorting, it would make Durham’s acceptance of that dirt part of the conspiracy itself. That is, it would make Barr’s efforts to use DOJ to investigate Trump’s opponents a key part of both a conspiracy being investigated in SDNY, from which Barr has irresponsibly not recused, as well as an impeachment investigation, from which Barr has also not recused.

Bolton’s certainty that Trump wanted Ukraine to provide materials for a US investigation into Trump’s foes is not at all new. But the fact that Barr should have known he was part of this conspiracy a month earlier than he had previously admitted is.

FISC Reveals DOJ Has Withdrawn Probable Cause Assertion for Two of Carter Page Applications

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The FISA Court just declassified an order — issued on January 7 — revealing that along with the previously released December 9 order listing problems with the Carter Page applications, DOJ also reassessed its previous probable cause assessment.

DOJ assesses that with respect to the applications in Docket Number 17-375 and 17-679, “if not earlier, there was insufficient predication to establish probable cause to believe that [Carter] Page was acting as an agent of a foreign power.”

[snip]

The Court understands the government to have concluded, in view of the material misstatements and omissions, that the Court’s authorizations in Docket Numbers 17-375 and 17-679 were not valid. The government apparently does not take a position on the validity of the authorizations in Docket Numbers 16-1182 and 17-52, but intends to sequester information acquired pursuant to those dockets in the same manner as information acquired pursuant to the subsequent dockets.

The function of this January 7 order is to demand that FBI follow up on a previous agreement to “sequester all collection the FBI acquired pursuant to the Court’s authorizations in the above-listed four docket numbers targeting [Carter] Page pending further review of the OIG Report and the outcome of related investigations and any litigation,” to explain how it is doing so, how it has chased down all information collected pursuant to the Page orders, and why it needs to keep the data at all.

The reason it needs to keep the data, incidentally, is in case it is sued or John Durham decides to prosecute someone (including Kevin Clinesmith, who altered an email that was used as back-up to the final renewal application) or Page decides to sue. Indeed, one of the most unprecedented aspects of this order is that the docket numbers have been declassified, which will make FOIAing the records far easier.

Which is probably what the only substantive redaction remaining in the order pertains to: the possibility that someone will be held liable under FISA for illegal surveillance.

A lot of people are assuming that DOJ took this stance only because Bill Barr wanted to prove that Trump was illegally wiretapped (which would only be true if he was in direct contact with Page, which everyone has denied). That’s certainly possible!

But it’s quite possible that DOJ and FBI feel the need to be proactive on this point and FISC — particularly given the letters it has received from Congress — feels the need to look stern. Moreover, it is in everyone’s interest for DOJ to withdraw at least the last application (the one influenced by Clinesmith’s actions). It’s an important precedent, and there’s no reason Carter Page’s personal data should be floating around the FBI after discovering he was improperly surveilled. This doesn’t mean the FBI didn’t have reason to investigate Page. In a March 23, 2017 interview, after all, Carter Page was quite clear he knew he was being recruited by Russian intelligence officers and he believed the more immaterial non-public information he gives them, the better off we are.

But, first of all, he wasn’t hiding his happiness to share information with Russian spies, meaning he wasn’t acting in the clandestine matter that would merit a FISA order. And by April 2017, it was pretty clear that the Russians had lost all interest in recruiting Page.

In any case, FISC’s demand for what the government is doing with the data is not unusual. Similar things have happened virtually every other time the government did something improper.

There’s one more important lesson, though: Even from the start, people raised questions about whether the applications targeting Page were prudential. By the third application — the first one being withdrawn — there were not only real questions about whether it would yield anything more, but whether Page was central enough to their investigation to want to surveil him. Had the FBI simply not pursued surveillance it questioned whether it really needed, the worst revelations of the IG Report would have been avoided.

So one of the lessons of this whole fiasco is that the FBI would benefit from giving greater consideration about whether its most intrusive methods are necessary.

Lev Parnas Says Bill Barr Should Recuse … But Doesn’t Say Why

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In this post, I laid out why Lev Parnas’ current publicity tour may not be as insane, from a defense standpoint, as it seems. I laid out how Barr would have significant ability to protect potential co-conspirators of Parnas — starting with Rudy and extending to Rudy’s client. I explained how Barr’s veto authority over some of this might limit Parnas’ ability to cooperate his way out of his legal problems, and at the very least increases the chance he’s stuck holding the bag for various plots that include far more powerful people. Most interesting, however, were the ways Parnas hinted at but stopped short of implicating Barr in the plot by suggesting,

  • He had been told, by Rudy and others, they had spoken to Barr about all this
  • He had witnessed Rudy and others speaking to Barr about all this
  • He might have texts proving Barr’s involvement, but couldn’t remember whether that was the case or not

To be clear: Parnas is obscuring the degree to which he insinuated himself in Trump’s circles to make all this possible. He is pretending everything he did was ordered by powerful Americans, when the evidence suggests otherwise. So it might not serve justice for him to try to cooperate with prosecutors (because he could well be the most responsible). But I’m beginning to understand how pursuing this angle might be a reasonable defensive approach.

Today, Parnas’ lawyer Joseph Bondy just sent a request to Barr requesting his recusal, copying it to his docket.

It actually flubs the argument it tries to make about how impeachment relates to this criminal case, describing how both the July 25 Trump-Zelensky call transcript and the whistleblower complaint mention Barr over and over, without mentioning that Parnas and Igor Fruman were also incorporated in the whistleblower complaint by repeated reference to this article, which includes the influence peddling for which the grifters were already indicted. That is, the case is far stronger than this letter lays out, because both Parnas and Barr were named in the whistleblower complaint.

Worse still, this letter doesn’t talk about any of the things Bill Barr’s DOJ has done that obstructed full investigation of the complaint:

  • Scoping the assessment of the complaint to specifically avoid connecting the complaint to the investigation of Parnas and Fruman
  • Not sharing the complaint, as required by MOU, with the FEC, which would have led the FEC to tie the complaint to the pre-existing investigation it had of Parnas and Fruman
  • Getting OLC to invent reason to withhold the complaint from Congress, which if it had been successful would have prevented all investigation of these activites

In short, the actions of DOJ overseen by Barr, not just his mention in the complaint and ties to Victoria Toensing and Joe DiGenova, mandate his recusal. But for some reason (perhaps because that would be more aggressive than even Bondy is willing to go), Bondy doesn’t include those actions.

Most interestingly, Bondy doesn’t include any of the allegations Parnas had made publicly about Barr’s potential more direct role. Nor does he answer the question of whether or not Parnas has texts more directly implicating Barr.

What Bondy does do, in the wake of the press blitz he has choreographed, is note that “evidence has been brought to light linking you further to your long-time colleagues Victoria Toensing and Joseph DiGenova, as well as to Mr. Giuliani, which undoubtedly creates at least the public appearance of a conflict of interest.” I mean, there is, absolutely, the appearance of a conflict of interest, but Bondy was the one who brought all that evidence to light!

Finally, though, Bondy suggests, with uncertain veracity, that SDNY has done things that suggest a purported conflict has already harmed Parnas.

In addition to harmful perceptions, this conflict of interest appears to have caused actual harm to Mr. Parnas who, given delays in the production of discovery in his federal case, was rendered unable to comply with a duly-issued congressional subpoena in time for congressional investigators to make complete use of his materials or properly assess Mr. Parnas as a potential witness. Furthermore, prosecutors have, thus far, refused to meet with Mr. Parnas and to receive his information regarding the President, Mssrs. Giuliani, Toensing, DiGenova and others–all of which would potentially benefit Mr. Parnas if he were ever to be convicted and sentenced in his criminal case.

For better and worse, getting FBI to image a bunch of phones and return them to a defendant within three months including two major holidays is not that long a wait. It took two months before Special Master Barbara Jones first started making privilege designations in the Michael Cohen case (involving one of the same prosecutors), and that was an even more politically sensitive case than this one. So while mentioning the delay is useful for Democrats (especially when the Senate tries to refuse to hear Parnas’ testimony because it didn’t get turned over in time), and valuable from a defense standpoint as it lays groundwork for appeal, it’s not a real injury on the part of prosecutors.

With regards to prosecutors’ refusal to meet with Parnas about cooperating against his possible co-conspirators, as the WSJ reported yesterday, late last year Bondy failed to convince SDNY that Parnas was not — as accused in his indictment — directed by a still-unnamed Ukrainian official to try to oust Marie Yovanovitch.

At a meeting with prosecutors from the Manhattan U.S. attorney’s office late last year, people familiar with the matter say, Mr. Parnas’s attorney disputed that he pushed for the removal of the U.S. ambassador to Ukraine at the behest of a Ukrainian official—one of the charges in the campaign finance indictment.

This is another way of saying that Parnas is unwilling to plead to the allegations in the existing indictment, and may also suggest that while Parnas is happy to incriminate Rudy and his American buddies, he’s not willing implicate his original boss, whoever that might be. So prosecutors likely have good reason not to meet with Parnas to hear him implicate Rudy and friends (not least, because they already have this documentary evidence that implicates them anyway, and now Parnas is providing whatever testimony they might need on the Rachel Maddow Show).

Bondy is absolutely right: Bill Barr should have recused from this — and all review of the whistleblower complaint — back in August when it was clear he was named. Even assuming Barr took no action on any of this influence peddling, this goes well beyond just the appearance of conflict to known participation in known events — such as the meeting with Rudy that DOJ admitted to only last week after covering it up for months — that merit recusal.

But Bondy is also being less than candid with his letter, playing the public docket as much as he is making a real legal request.

Lev Parnas Wouldn’t Reveal Whether He Has Receipts on Bill Barr

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I suggested in this post that Lev Parnas appears to believe that how and when he was arrested was an attempt to silence him and force him to take the fall for Trump.

With that in mind, I want to reexamine why he might believe that coming forward now might help his defense.

Obviously, one thing he is trying to do — thus far unsuccessfully — is make it clear that in his actions regarding Ukraine, he is a co-conspirator with the President, Victoria Toensing, Joe DiGenova, and, of course, Rudy Giuliani. That doesn’t mean he didn’t insert himself into that role — by all appearances he did; that’s what his existing indictment is about, how he spent big money to insinuate himself into Trump’s immediate circle.

But since that time, Rudy, Toensing, and DiGenova took actions that might be deemed an overt act of a conspiracy. So did Trump, not least on July 25, 2019, on a call with President Zelensky. Implicating powerful Americans in his influence-peddling is particularly important because, if he can’t do that, he may be exposed to further charges. WSJ reports that, late last year, Parnas’ lawyer Joseph Bondy tried to convince prosecutors that Parnas did not “push[] for the removal of the U.S. ambassador to Ukraine at the behest of a Ukrainian official—one of the charges in the campaign finance indictment.” If Parnas can claim that anything he did after some point in 2018 — which otherwise might be deemed to be FARA violations, suborning perjury, Foreign Corrupt Practices Act violations, bribery, and more — he did with the approval of the President of the United States, he might be able to claim that those actions were the official foreign policy of the United States, which would basically be the same claim Trump is using to defend against impeachment.

None of that may matter, however, depending on what SDNY plans or is allowed to do.

After all, Barr had been briefed on this investigation since shortly after he was confirmed, probably indicating that SDNY deemed it a significant matter reflecting the sensitivities of an investigation into political figures including Pete Sessions, some Las Vegas politicians, Ron DeSantis, and the President’s SuperPAC. As such, Barr would receive advance notice before SDNY took steps against any of these political figures (and it would have to happen before pre-election blackouts kick in in August). The Criminal Division would need to approve any search or prosecution of an attorney, covering Rudy, Toensing, and DiGenova. Barr would have to approve any legal process targeting media figures like John Solomon or Sean Hannity, as he would have to approve their treatment as subjects of the investigation. And, just on Monday, Barr stated he will require Attorney General approval before DOJ or FBI can open a counterintelligence investigation into a presidential campaign (and Trump started his reelection campaign almost immediately upon inauguration).

In short, for SDNY to go after any of Parnas’ other known potential co-conspirators, aside from Fruman, Bill Barr or Criminal Division head Brian Benczkowski would have to approve.

That gives Barr veto power over including most of Parnas’ potential co-conspirators in an indictment with him. And he has made no secret that he was brought in to protect Trump from facing any legal consequences for his crimes.

For a time, it looked like Barr believed he couldn’t protect Rudy. But then Rudy loudly announced he had insurance.

“I’ve seen things written like he’s going to throw me under the bus,” Giuliani said in an interview with Fox News’ Ed Henry about the characterizations and comments made in the media about him and his relationship with the president. “When they say that, I say he isn’t, but I have insurance.”

And if Rudy’s actions are beyond legal sanction, then Parnas is left holding the bag, just like Michael Cohen appears to have been for hush payments he made on the orders of Trump. Indeed, while Parnas expressed some interest in cooperating with prosecutors, if prosecutors are barred from pursuing anyone more senior than Parnas, then there’s little for Parnas to offer.

Which brings us to Parnas’ expressed fear of Barr.

In the second installment of his Maddow interview, Parnas claimed he was doing all of this because he fears Barr — or deems Trump too powerful when he is protected by Barr.

PARNAS: The only reason – if you’ll take a look, and you know very well because you have been following, the difference between why Trump is so powerful now, and he wasn’t as powerful in ’16 and ’17 –

MADDOW: Uh-huh.

PARNAS: – he became that powerful when he got William Barr.

MADDOW: Yes.

PARNAS: People are scared. Am I scared? Yes, and because I think I`m more scared of our own Justice Department than of these criminals right now, because, you know, the scariest part is getting locked in some room and being treated as an animal when you did nothing wrong and – or when you’re not, you know, and that’s the tool they’re using.

I mean, just – because they’re trying (ph) to scare me into not talking and with God’s help, and with my lawyer next to me that I know will go bat for me no matter what, with the truth –

MADDOW: Yes.

PARNAS: – and I’m taking a chance.

That comment makes sense whether he believes Barr had him arrested to silence him or even just worries that Barr will protect everyone else. It would even make sense if — as is quite possible — Parnas is working for powerful Russians or Ukrainians who’ve been trying to control Trump by making him vulnerable.

There’s no doubt that abundant evidence can be shown that Barr is not just covering up, but actively obstructing any investigation into Trump’s actions. As I’ve noted repeatedly, Barr or one of his subordinates:

  • Scoped the assessment of the whistleblower complaint to ensure it wasn’t tied to the ongoing investigation of Parnas and Fruman in SDNY
  • Failed to share the whistleblower complaint with the FEC, which (if it were functional) could have imposed civil penalties for the illegal solicitation of campaign help
  • Had OLC invent a bullshit reason to withhold the complaint from Congress
  • Had Kerri Kupec exonerate Trump publicly, reportedly in response to a demand from Trump

Mind you, I’m the only one harping on this obstruction, but they’re still details that deserve more attention.

But that’s not how Parnas is focusing on Barr.

In his interview with Maddow, Parnas twice alleged that he had seen Barr receiving calls from Rudy and others on this stuff. First, he said that Rudy and Toensing and DiGenova had told him they were engaging Barr on this project.

MADDOW:  Did Rudy Giuliani tell you he had spoken to the attorney general specifically about Ukraine?

PARNAS:  Not only Rudy Giuliani. I mean, Victoria and Joe, they were all best friends. I mean, Barr was – Attorney General Barr was basically on the team.

He then expanded on that to say, first, that he witnessed conversations between the lawyers and Barr, and then, less convincingly, claimed that “Barr had to have known everything. I mean, it’s impossible.”

PARNAS:  I personally did not speak to him, but I was involved in lots of conversations that Joe diGenova had with him in front of me, Rudy had with him in front of me, and setting up meetings with Dmytro Firtash’s team. I was involved in that.

MADDOW:  Do you know if Rudy Giuliani was ever in contact with Mr. Barr, specifically about the fact that he was trying to get Ukraine to announce these investigations into Joe Biden?

PARNAS:  Oh, absolutely.

MADDOW:  Mr. Barr knew about it?

PARNAS:  Mr. Barr had to have known everything. I mean, it’s impossible.

MADDOW:  Did Rudy Giuliani tell you he had spoken to the attorney general specifically about Ukraine?

PARNAS:  Not only Rudy Giuliani. I mean, Victoria and Joe, they were all best friends. I mean, Barr – Barr was – Attorney General Barr was basically on the team.

Claiming “Barr had to have known everything,” while seemingly consistent with the public actions of Barr’s DOJ, is not going to be strong enough to get Barr, personally, in trouble.

Though it is worth noting that (in the same way that Devin Nunes unforgot speaking to Parnas as Parnas started rolling out receipts), CNN reported that Barr had attended a meeting where Rudy pitched the case of the Venezuelan paying for the grift long after he had to have known Rudy was under criminal investigation.

The Giuliani meeting at the Justice Department in September became public months ago in the wake of the arrest of two Giuliani associates, Lev Parnas and Igor Fruman, who were working on Giuliani’s Ukraine mission for the President.

Brian Benczkowski, assistant attorney general for the criminal division, issued a public statement at the time expressing regret for holding the meeting and saying he wouldn’t have met with Trump’s personal lawyer had he known about Giuliani’s role in the ongoing investigation.

But department officials didn’t mention then that Barr was also in the meeting. Barr was at the meeting for about 10 minutes and had dropped in to greet other lawyers who worked alongside Giuliani to represent the Venezuelan businessman, according to a Justice Department official. His presence is also notable because Justice officials have said he was briefed after taking office in February on the investigation by Manhattan federal prosecutors into Parnas and Fruman, and the connections with Giuliani.

There’s almost certain to be more, though. When Maddow asked Parnas whether he knew whether Barr ever spoke with any of the Ukrainians that Parnas was grifting (the question I’ve been asking for some time), he claimed not to recall, even though the entire point of his interview was to talk about how he had come forward out of fear of Bill Barr.

MADDOW:  Do you know if Attorney General William Barr every [sic] spoke with any Ukrainian officials?

PARNAS:  I don’t recall at this moment. I’d have to look at my text messages and see.

There is absolutely no way that Parnas did not know, when he gave this answer, whether he has proof that Barr was personally involved with the three Ukrainians who have spoken to John Durham. None.

Which likely means Parnas does have proof that, contrary to every denial DOJ has issued since they started issuing very carefully crafted denials since September 25, Barr did interact with the corrupt Ukrainians Rudy was teeing up.

Parnas kept receipts, for just the moment when his grifting on behalf of Trump and his associates can do damage. Those receipts might, conservatively, make additional charges from SDNY more difficult. They might even make a cooperation deal possible.

But it sure sounds like something even crazier. Parnas apparently believes Barr makes Trump something he hadn’t been before, protecting Trump in a way he hadn’t been. But that’s only true if Parnas can’t produce proof that Barr is part of this conspiracy.

In other words, whatever the reality, Parnas appears to be dribbling out the receipts implicating the people that SDNY prosecutors work for in an attempt to either increase the chances of cooperating out of his indictment or at least raising the costs of any further charges.

Perhaps a more interesting question is why SDNY prosecutors permitted Parnas to launch this media campaign. They didn’t have to: Parnas got permission to modify the protective order on this stuff so he could release it, and they may have had to question Robert Hyde earlier than they otherwise intended to because of the publicity surrounding Parnas’ texts with Hyde. SDNY might be doing it to encourage a criminal target to run his mouth and say something incriminating. They might have done it for counterintelligence reasons, to see who responded to this media campaign. But it’s also possible that SDNY is happy for Parnas to expand the possible scope of their own investigation by making it harder for Barr to protect Rudy and others.

The suspense, though, has to do with that non-committal answer Parnas gave about whether he has any texts directly implicating the Attorney General of the United States. A defendant being prosecuted by the Department of Justice was asked whether he had proof that the top law enforcement officer in the country was personally implicated in his corrupt influence peddling.

And Parnas is not telling. Yet.

It Was All [Fruman’s] Contacts in Ukraine

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During his media blitz, Lev Parnas has focused mostly on the people he needs to implicate to better his own outcome: President Trump, Rudy Giuliani, Victoria Toensing, and Joe DiGenova, along with Bill Barr who — Parnas seems to be suggesting — is protecting the others in the SDNY investigation, if not Barr himself.

There’s been virtually no mention of his primary alleged co-conspirator, Igor Fruman. Indeed, in the first of two Maddow broadcasts, Fruman’s name only appears twice, when Maddow raised it.

But Parnas made a single very provocative mention of Fruman in his otherwise unremarkable Anderson Cooper interview that aired last night.

In discussing who he was speaking to in Ukraine, he suggested those people were all Fruman’s contacts.

COOPER: You’ve been described — the position you ended up with Giuliani, you’ve described as a fixer for Giuliani in his efforts to dig up dirt on the Bidens. Is that accurate?

PARNAS: I don’t know what you call a fixer. I mean, I was —

COOPER: Arrange meetings, conduct meetings —

PARNAS: Yes. I mean, that’s exactly what I did. I mean, I was the middleman between two worlds.

Here I was, I had a partner in Igor Fruman that grew up in Ukraine, had extensive business there. And because of his businesses, he knew all kinds of people that were, you know, politicians —

COOPER: He had — he had the contacts.

PARNAS: It was all his contacts. I didn’t have any contacts in Ukraine. I don’t have any contacts in Ukraine. [my emphasis]

Parnas goes immediately from claiming he was relying on Fruman’s comments to telling the story that he otherwise has stuck to: these people took his calls because he would claim he was calling on behalf of the most powerful man in the world, the President of the United States, then put the President’s lawyer on speaker phone to verify himself.

COOPER: For a guy who does not have contacts in Ukraine, you were able to get meetings with a lot of very important people in Ukraine. Why was that?

PARNAS: Well, I mean, if the president of the United States tells them to meet with you, I think anybody will meet with you.

Fruman is virtually absent from Parnas’ media blitz narrative except for that moment where Parnas hinted that Fruman’s contacts were a key part of the grift.

This WaPo story from yesterday provides one hint about what kind of contacts Fruman might have. As Fruman tells it (rather dubiously), he “happened to” run into someone in a lobby in Kyiv — who by implication though the story doesn’t make this 100% clear, appears to be Dmytro Firtash’s associate and alleged Moldovan fraudster Dmitry Torner  — which led to a meeting with Rudy in Paris.

Giuliani’s introduction to Firtash’s network began in May. That’s when Fruman told a person familiar with his account that he happened to run into a friend in the lobby of a Kyiv hotel who could get to Firtash.

Torner worked as the head of the analytics department at an electricity and gas distribution company in Ukraine owned by Firtash, according to public records and information he later provided election officials in Ukraine when he launched a bid for the parliament as part of a pro-Russian political party.

Representatives of Firtash declined to comment on Torner’s role.

On the eve of parliamentary elections in July, Ukrainian authorities announced that Torner had been disqualified because officials had discovered that he held multiple fraudulent Ukrainian passports under various names.

According to Ukraine’s Security Service, Torner is a citizen of Moldova named Dmitry Nekrasov who was wanted for escaping incarceration in his home country and changed his name to start a new life in Ukraine.

[snip]

In late May, a few weeks after Fruman told an associate that he encountered Torner in Kyiv, Giuliani met with the Firtash executive in the private cigar bar of the luxury hotel Le Royal Monceau Raffles Paris, according to people familiar with the encounter.

That led to the June meeting that Fruman and Parnas had in Vienna with Firtash himself, where they offered a quid pro quo on behalf of the President of the United States, trading some kind of cure for Firtash’s criminal problems in the US in exchange for dirt on Joe Biden and Paul Manafort.

The OCCRP report included in the whistleblower complaint speaks at more length about the kinds of contacts Fruman has in Ukraine.

Fruman, 53, has spent much of his career in Ukraine, and has ties to a powerful local businessman reputed to be in the inner circle of one of the country’s most infamous mafia groups.

[snip]

His network of businesses extends from the United States to the city of Odesa, a Ukrainian Black Sea port notorious for corruption and organized crime.

Reporters found that Fruman has personal ties to a powerful local: Volodymyr “The Lightbulb” Galanternik, a shadowy businessman commonly referred to as the “Grey Cardinal” of Odesa.

Galanternik is described by local media and activists as a close associate of Gennadiy Trukhanov, the mayor of Odesa who was shown in the late 1990s to be a senior member of a feared organized criminal group involved in fuel smuggling and weapons trading.

Galanternik also owns a luxury apartment in the same London building as the daughter of another leader in the gang, Aleksander “The Angel” Angert, OCCRP has previously reported.

Vitaly Ustymenko, a local civic activist, describes Galanternik as an overseer of the clique’s economic domination of the city.

“[Galanternik] is not ‘one of the’ — he is actually the most powerful guy in Odesa, and maybe in the region,” Ustymenko said.

Fruman’s recent ex-wife, Yelyzaveta Naumova, is the self-declared best friend of Galanternik’s wife, Natasha Zinko, according to her Instagram posts. Galanternik and Zinko also celebrated the New Year in 2016 with the Frumans in South Florida, according to a photo posted online by an acquaintance of Fruman.

Galanternik’s name is seldom tied directly to his businesses. Instead he operates via a network of offshore companies and trusted proxy individuals. But there are signs that either Fruman or his long-standing local partner, Serhiy Dyablo, may have a business relationship with Galanternik via two Odesa firms (see box).

This suggests that Parnas’ role in the grift was creating the echo chamber, while Fruman’s — who reportedly is in a joint defense agreement with Rudy — was in connecting Rudy to the network of sketchy characters, including organized crime, who would be willing to lie to reverse efforts to combat corruption in Ukraine.

But the role of Furman’s network of sketchy businessmen may explain a few other details. It may explain, for example, why Parnas was spreading false rumors about Marie Yovanovitch nine months before he created the echo chamber on the frothy right that he now blames for his negative comments about her.

Lev Parnas has a story to tell in which everything he did, he did at the behest of the President of the United States, working through the President’s addled lawyer Rudy Giuliani. In that story, there is no network in Ukraine, and it’s only the heft of the President of the United States that gets him meetings with some very powerful, but very corrupt, characters.

But that story ignores the events — at the center of his existing indictment — by which Parnas and Fruman bought their way into being key players in Trump’s network. It ignores hows they donated $325,000 to Trump’s SuperPAC immediately after first inciting Trump to fire Marie Yovanovitch, long before Joe Biden had announced he was running for President.

And it ignores that network of mobbed up Ukrainian businessmen who would have real incentive to reverse anti-corruption efforts in Ukraine.

Lev Parnas, Creator of Echo Chambers

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Last night, Lev Parnas gave the first half of a very explosive interview to Rachel Maddow.

I’ll go back and dig into it in more detail later. But for now, I’d like to make one observation about what the texts from Parnas released over the last few days show (though a large volume, because they’re in Russian, will escape close crowdsourced analysis).

Over and over, we see Parnas feeding very well placed people links to (usually) frothy media stories, many of those stories based on false claims he is getting Ukrainians and others to tell. Parnas claims — a claim that is only partly true — that these stories are all about the Bidens, though he admits they are partly about 2016. As such, Parnas presents himself as creating, then magnifying, the stories that President Trump wants to tell. He has positioned himself to be a gatekeeper because he serves as translator for Rudy, who is mentally unstable and probably desperate for other reasons but also believes he’s pursuing stories that will help his ostensible client, Donald Trump, though Trump is not the one paying to have these stories told. But he’s also the translator for John Solomon. Parnas is the only one on the American side who can assess what kind of prices Rudy (and Victoria Toensing and Joe DiGenova) are paying to create these stories. Indeed, a key part of this economy involved removing the people — not just Marie Yovanovitch, but also Fiona Hill and Bill Taylor — who could warn about the costs being incurred along the way.

In short, for the last 18 months, Parnas has played a key part in creating the right wing echo chamber, one that — particularly because the addled Rudy is a trusted advisor — forms a key part of how Trump understands the world. One way Parnas did that was by recruiting Ukrainians who were, for very crass reasons, willing to tell Trump and the rest of the frothy right what they wanted to hear, even though it was assuredly not true.

Remarkably, we really don’t know why Parnas decided to play a key cog in the right wing echo chamber in the first place. He’s a grifter, but even with a recent cash infusion from Dmitro Firtash, he’s not getting rich. He was in a powerful position, the one sober person at Trump’s hotel bar, spinning up the drunk Trump sycophants. But that “power” got him indicted for the influence peddling that first landed him in this position. Before answering why he’s telling his story now, without immunity and while facing down still more charges, we’d want to understand that primary motivation, and we don’t know it yet.

Last night’s interview continued that grift, only he moved to spin an echo chamber for the left this time. He emphasized — and Maddow predictably responded — some of the key allegations Democrats most want to be true. Mike Pence is closely involved, Parnas revealed, and while nothing he revealed would amount to impeachable conduct, Democrats immediately latched onto the possibility it would be. Everyone was involved, Parnas confirmed, including Devin Nunes and Bill Barr. It was all about Biden, Parnas almost certainly lied.

In short, doing what he appears to be very good at, Parnas is telling us what we want to hear, whether true or not.

On key parts of his story, however, he got — with the help of MSNBC’s editors — notably more reserved or deceitful. We didn’t learn the full terms of his relationship with Firtash, even though Firtash is the guy paying for the defense strategy that includes telling us these stories. Parnas describes, “we were tasked” to spin these stories, leaving the subject of the tasking unknown. Parnas dubiously claims he’s sorry about targeting Marie Yovanovitch, even while he shows no remorse at similar shivs in service of the grift. Parnas claims to have been more concerned by the breakdown Robert Hyde had at Doral than he was about Hyde’s claims to have Yovanovitch under surveillance and possible contract.

Parnas is telling us what we want to hear. And we listen, even though we all recognize that the stories he spun for the frothy right were false, but those false stories were all it took to work up half the country. We also recognize, though Parnas didn’t lay this out and it’ll take days before people have an adequate understanding of what he promised in Russian, that he made commitments on Rudy’s and Trump’s behalf but without any way for them to verify what he was promising.

Perhaps he’s doing this to pressure Bill Barr, the one guy who can constrain what SDNY does with his prosecution, and likewise can authorize criminal targets against whom Parnas might be able to cooperate against. Perhaps he believes he’ll get immunity from Adam Schiff, though as a former prosecutor, it’s unlikely Schiff will make that happen. Perhaps Parnas believes Trump will panic and pardon him. Or perhaps the corrupt oligarchs and prosecutors in whose debt Parnas has put Rudy and Trump have decided that — since they didn’t get what they wanted out of the deal — it’s now worth their while to expose those debts.

But until we understand why Parnas is doing what he’s doing — why he inserted himself into the right wing echo chamber in the first place, and why he’s so insistent on telling us what we want to hear now — we would do well to exercise caution about the stories he’s telling.

Update: Made some minor rewrites for clarity.

Update: Fixed location of Hyde’s breakdown.

The Parnas Files Raise the Import of DOJ’s Failure to Connect-the-Dots on the Whistleblower Complaint

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Last night, HPSCI released some of Lev Parnas’ files that were seized as part of the investigation into Rudy Giuliani and his grifters.

The most important document, for the legal impeachment case against Donald Trump, is a letter Rudy sent to Volodymyr Zelensky stating clearly that he was contacting the Ukrainian president as Trump’s personal lawyer, not a government lawyer.

Just to be precise, I represent him as a private citizen, not as President of the United States.

It makes it clear that — contrary to the Republican cover story — Rudy and Zelensky both knew they were negotiating a personal benefit for Trump, not a benefit to the US.

But the most important files showing Trump’s abuse of power are texts between Parnas and a thoroughly American grifter, Robert F. Hyde, who appears to have had people on the ground in Kyiv surveilling Marie Yovanovitch in the days before she was recalled. He not only appears to have known precisely where she was, but he seemed to suggest to Parnas that he could have her assassinated for a price. “Guess you can do anything in the Ukraine with money,” he quipped.

Viewed in isolation, these comments are (at least) a chilling indication of the lengths to which Trump supporters will go to push his conspiracies.

But viewed in light of Trump’s comment to Zelensky about Yovanovitch — “Well, she’s going to go through some things” — it suggests a direct tie between Trump and the more sordid things that Parnas was doing.

Which makes DOJ’s remarkable failure to connect the dots on the whistleblower complaint all the more damning.

As I have laid out, by August 15, top people at DOJ knew of the complaint and knew that Trump had invoked the Attorney General in his comments to Zelensky. Perhaps ten days later, DOJ got the full complaint from the whistleblower, discussing the call itself but also the larger context. Based on a claim that there was no first hand reporting in the complaint, DOJ evaluated just the MEMCON in their review of whether or not a crime was committed, not the complaint as a whole. (Not only was the claim that the whistleblower offered no first hand information false — he was in the loop on the July 18 call and July 23 and 26 meetings about withholding aid — but the complaint included concerns about withholding funding not mentioned on the call.) They quickly publicly declared that the call did not constitute a campaign finance violation, and then did not share the complaint with the FEC (which could have imposed civil penalties) and tried to prevent Congress from obtaining the complaint.

By reviewing the MEMCON instead of the full complaint, DOJ avoided doing what would be normal connect-the-dots database searches on all the names included in it, which — because the whistleblower included multiple references to and a link to this article, would have included searches on Parnas and Igor Fruman. As this table makes clear, if DOJ had done that basic connect-the-dots work they do when assessing tips, they would have found the investigation at SDNY — which Bill Barr had been briefed on when he was confirmed as AG and Jeffrey Rosen probably knew about as well.

And had DOJ tied the call to Zelensky — with its reference to potential violence targeting Yovanovitch — it would have immediately implicated Trump far more deeply in some really corrupt shit.

As if by magic, DOJ failed to do those searches, and therefore failed to obtain official notice that the President was personally involved with a grift that SDNY was close to indicting.

Is Bill Barr Picking a Fight with Apple to Distract from the Failure of Trump’s Social Media Vetting?

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To some degree, recent disclosures about Ahmed Mohammed al-Shamrani’s killing of three sailors in Pensacola make it seem like a mirror of the San Bernardino attack in 2015 in 2015. A man, steeped in Islamic propaganda, used a moment of vulnerability to attack Americans. He is killed in the attack, but not before he destroys a phone. At first, DOJ asks Apple for help getting the easier things from the phone, such as the materials stored in the iCloud account. Then, after a delay makes the most obvious work-arounds impossible, DOJ asks Apple to hack the phone, which would thereby make not just that phone accessible to law enforcement, but all iPhones vulnerable to cops, authoritarian governments, and criminals.

There’s even some reason to believe that the law enforcement officer grandstanding to use a terrorist attack as an opportunity to force Apple to weaken its products is lying both about what Apple and DOJ have respectively done, but about how certain it is that Apple is the only available option.

But investigators have been stymied in trying to access two key pieces of evidence — the gunman’s iPhones. Standing before giant photographs of two severely damaged devices, the attorney general publicly urged Apple to act.

“So far, Apple has not given us any substantive assistance,” Barr said, though aides later clarified that Apple had, in fact, given investigators access to cloud data linked to the gunman. “This situation perfectly illustrates why it is critical that investigators be able to get access to digital evidence once they have obtained a court order.”

[snip]

In a lengthy statement, Apple disputed the attorney general’s description of its role, saying the company began responding within hours of the first FBI request on Dec. 6, and has turned over “many gigabytes” of data in the case.

“Our responses to their many requests since the attack have been timely, thorough and are ongoing,” the company said. “The FBI only notified us on January 6th that they needed additional assistance — a month after the attack occurred. . . . Early outreach is critical to accessing information and finding additional options.”

[snip]

Asked Monday whether the FBI’s technical experts on cellphones had agreed with the decision to send the letter pressing Apple to open the phones, Bowdich said he did not know.

An FBI spokesperson later said the bureau’s “technical experts — as well as those consulted outside of the organization — have played an integral role in this investigation. The consensus was reached, after all efforts to access the shooter’s phones had been unsuccessful, that the next step was to reach out to start a conversation with Apple.”

But the more important comparison may pertain to the role of social media in the attack.

Almost immediately after the 2015 attack, the FBI discovered that the woman involved in the attack, Tashfeen Malik, had pledged loyalty to Abu Bakr al-Baghdadi just before the attack. That led Congress to suggest the Obama Administration hadn’t vetted Malik’s immigration processing closely enough, even though nothing in place at the time would have identified her past extremist writing.

In response, Customs and Border Patrol started laying the groundwork for a policy that seemed like dangerous overkill at the time, but that Trump nevertheless adopted: requiring visa applicants to list their social media handles so their social media activity can be vetted.

Somehow, in spite of that requirement, 17 Saudis in the US for military training were found to have jihadist material on their social media accounts, on top of al-Shamrani, and 15 of them had child porn on their social media accounts.

Barr said investigators had found evidence that 17 Saudis had through social media shared ­jihadist or anti-American material and 15 — including some of those who had shared anti-American material — were found to have had contact with or possessed child pornography.

It’s one thing for CBP to have missed Malik’s Facebook comments before they used social media to vet visa applicants.

It’s an entirely different thing to institute social media vetting, but then somehow miss that 18 people admitted onto our military bases to be trained are anti-American or pro-jihadist. All the more so given that Trump’s Muslim ban excluded Saudi Arabia — the origin of most of the 9/11 hijackers and other attempted terrorists since — even while focusing closely on Muslims from country without a history of terrorism against the US.

Plus, in spite of Barr’s vague comments explaining how a “US Attorney” reviewed child porn engaged well beyond that which George Nader pled guilty to yesterday and decided that person could return home to Saudi Arabia.

Barr said only one of those people had a “significant number” of [CP] images, and U.S. attorneys had reviewed each case and determined such people would not normally be charged with federal crimes. He said 21 cadets from Saudi Arabia had been disenrolled from their training and would be returning to the kingdom later Monday. Justice Department officials said 12 were from the Pensacola base, and nine were from other military bases.

[snip]

U.S. attorneys had independently determined the child porn did not warrant charges. Justice Department officials said the most significant case involved a cadet who possessed more than 100 images of child porn and had searched terms for child porn, according to his browser history — but even that fell below the normal threshold for a case deemed worthy of prosecution by a U.S. attorney’s office.

This seems to be part of a pattern that Ron Wyden has already complained about, the serial impunity of Saudi students who commit crimes in this country.

Normally, I oppose politicizing the response to terrorist attacks. You can’t prevent all terrorism, and the drive to do so has eroded our civil liberties.

But if you’re going to erode our civil liberties, then you better be damn sure you’re doing so for a reason. And it seems like CBP (and DOD) failed to ensure we weren’t inviting Saudis to our country to train them to be better terrorists against us in the future.

Barr wants this to be about Apple. First, however, he should be asked why the vetting Trump championed failed to work in this case.

If DOJ is going to complain that Apple isn’t degrading security, it should first explain why the last policy it took that traded privacy for security failed.