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Hillary Clinton’s Devious Plot to Get Oleg Deripaska to Install Paul Manafort as Trump’s Campaign Manager

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Out of curiosity and a good deal of masochism, I listened to the latest podcast of “The Corner,” the frothy right wingers who spend their time spinning conspiracy theories about the Durham investigation.

It was painful.

At every step, these men simply assert evidence must exist — like a Democratic order to bring dirt to the FBI — for which there’s no evidence. They ignore really basic facts, such as that Sussmann was necessarily working with the FBI because his client was being systematically hacked, and therefore it wasn’t just Christopher Steele who had ongoing ties to the Bureau. They make a huge deal about the fact that the US government’s Russian experts know each other, and that Christopher Steele persistently reported on topics — like Rosneft — that really were and are important to British and US national security and on which he had legitimate expertise.

They’re already starting to make excuses for Durham (such as that Durham chose not to obtain privileged emails the same way Mueller and SDNY did, without noting that Mueller had probable cause of a crime, which Durham admits he does not, much less that Mueller got them in a different way and a different time then they believe he did).

They keep making much of the coincidence of key dates in 2016 — “We continue to have a very, very tight timeline that that accelerates” — but never mention either the WikiLeaks dump of the DNC emails or Trump’s request that Russia hack Hillary some more, a request that was followed closely by a new wave of attacks. Those two events in July 2016 explain most of the actions Democrats took in that period, and these men don’t even exhibit awareness (or perhaps the belief?) that the events happened.

Worse still, they are ignorant of, or misrepresent, key details.

For example, all but Hans Mahncke assert that John Brennan must have been acting on some kind of corrupt intelligence in July 2016, rather than real intelligence collected from real Russian sources. They do so even though Billy Barr described in his book bitching at Trump after Trump complained that Durham found that, “the CIA stayed in its lane in the run-up to the [2016] election.”

Emblematic of the fraying relationship between the President and me was a sharp exchange at the end of the summer in the Oval Office. To give the President credit, he never asked about the substance of the investigation but just asked pointedly when there might be some sign of progress. On this occasion, we had met on something else, but at the end he complained that the investigation had been dragging on a long time. I explained that Durham did not get the Horowitz report until the end of 2019, and up till then had been look- ing at questions, like any possible CIA role, that had to be run down but did not pan out.

“What do you mean, they didn’t pan out?” the President snapped.

“As far as we can tell, the CIA stayed in its lane in the run-up to the election,” I said.

The President bristled. “You buy that bullshit, Bill?” he snarled. “Everyone knows Brennan was right in the middle of this.”

I lost it and answered in a sarcastic tone. “Well, if you know what happened, Mr. President, I am all ears. Maybe we are wasting time do- ing an investigation. Maybe all the armchair quarterbacks telling you they have all the evidence can come in and enlighten us.”

Durham looked for this evidence for years. It’s not there (and therefore the intelligence Brennan viewed is something other than the dossier or even the Russian intelligence product that the frothers also spin conspiracies on).

All but Fool Nelson misrepresent a July 26, 2016 email from Peter Fritsch to WSJ reporter Jay Solomon, which says, “call adam schiff, or difi for that matter. i bet they are concerned about what page was doing other than giving a speech over 3 days in moscow,” suggesting that that must be proof the top Democrats on the Intelligence Committees had the Steele dossier, rather than proof that it was a concern to see an advisor to a Presidential campaign traveling to Russian and saying the things Page was saying. (Jeff Carlson makes the same complaint about former Ambassador to Russia Michael McFaul’s observations about something that all experienced Russia watchers believed was alarming in real time.)

They get the evidence against Carter Page wrong, among other ways by misstating that all his time in Moscow had been accounted for and that the rumor he met with Igor Sechin was ever entirely debunked. “Of course it’s impossible. He was chaperoned. He had a hotel. He had a driver. Without people noticing.” For example, the son of the guy who brought Page to Russia, Yuval Weber, told the FBI that they weren’t with Page 100% of the time and there was a rumor that he had met with Sechin.

In July, when Page had traveled to give the commencement speech at NES, Weber recalled that it was rumored in Moscow that Page met with Igor Sechin. Weber said that Moscow is filled with gossip and people in Moscow were interested in Page being there. It was known that a campaign official was there.

Page may have briefly met with Arkady Dvorkovich at the commencement speech, considering Dvorkovich was on the board at NES. But Weber was not aware of any special meeting.

[redacted] was not with Page 100% of the time, he met him for dinner, attended the first public presentation, but missed the commencement speech. They had a few other interactions. Page was very busy on this trip.

This testimony was consistent with Mueller’s conclusion about Page’s trip: given boasts he made to the campaign, “Page’s activities in Russia — as described in his emails with the Campaign — were not fully explained.”

They badly misrepresent emails between a handful of journalists and Fusion GPS, spinning real skepticism exhibited by journalists as journalists somehow conspiring with Fusion. Indeed, they repeatedly point to an email from WaPo’s Tom Hamburger pushing back on the Sechin claim, “That Page met with Sechin or Ivanov. ‘Its bullshit. Impossible,’ said one of our Moscow sources.” They claim that Hamburger nevertheless reported the story after that. They’re probably thinking of this story, which reported Page’s 2014 pro-Sechin comments, not that he had met with the man in 2016.

After the Obama administration added Rosneft Chairman Igor Sechin to its sanctions list in 2014, limiting Sechin’s ability to travel to the United States or do business with U.S. firms, Page praised the former deputy prime minister, considered one of Putin’s closest allies over the past 25 years. “Sechin has done more to advance U.S.-Russian relations than any individual in or out of government from either side of the Atlantic over the past decade,” Page wrote.

In other words, they’re claiming journalists doing actual journalism and not reporting what Fusion fed them is somehow corrupt, when it is instead an example, among many, of failed attempts by Fusion to get journalists to run with their tips.

They complain that Fusion was pointing journalists to Felix Sater, in spite of the fact that Sater really was central to tying Trump Organization to Russian funding and really did pitch an impossibly lucrative real estate deal in the year before the campaign that involved secret communications with the Kremlin and sanctioned banks and a former GRU officer, a deal that Michael Cohen and Trump affirmatively lied to cover up for years.

They grossly misrepresent a long text to Peter Strzok reflecting someone else’s early inquiries on the DNS allegation to Cendyn, imagining (the redaction notwithstanding) that it reflects the FBI concluding already at that point that there was nothing to the DNS allegations and not that the FBI inquiry instead explains why Trump changed its own DNS records shortly thereafter (addressing one but not both of the questions raised by NYT reporting).

Obviously, none of them seem interested in the nearly-contemporaneous text from Strzok noting that “Russians back on DNC,” presumably reflecting knowledge of the serial Russian effort to steal Hillary’s analytics stored on an AWS server, a hack that — because it involved an AWS server, not a DNC-owned one — not only defies all the favorite right wing claims about what went into the Russian attribution, but also explains why Sussmann would be so concerned about seeming evidence of ongoing covert communication between Trump and a Russian bank. The Russians kept hacking, both in response to Trump’s request in July, and in the days before and after Sussmann met with James Baker in September.

Crazier still, none of these men seem to have any understanding of two details of the back-and-forth between Sussmann, the FBI, and NYT, one that is utterly central to the case against Sussmann. They conflate a request FBI made to NYT days after Sussmann’s meeting with the FBI to kill the story — one made with the assent of Sussmann and Rodney Joffe — with later follow-up reporting by the NYT reporting that the FBI had not substantiated the DNS allegation. Those were at least two separate calls! Durham had chased down none of them before he indicted Sussmann. It wasn’t until almost six months after charging Sussmann that Durham corroborated Sussmann’s HPSCI testimony that Sussmann and Joffe agreed to help kill the initial NYT story, which provides a lot of weight to Sussmann’s explanation for his meeting with James Baker, that he wanted to give the FBI an opportunity to investigate the allegation before the press reported on it. As a result, Mahncke states as fact that Sussmann’s September 18 text telling Baker, “I’m coming on my own – not on behalf of a client or company – want to help the Bureau,” (even ignoring the temporal problem it creates for Durham’s charge) proves Sussmann lied, when in fact, his and Joffe’s efforts to help the Bureau kill the story strongly supports Sussmann’s public story.

If you don’t know that Sussmann and Joffe helped the FBI to kill what would have been a damning story about Trump, you’re not assessing the actual evidence against Sussmann as opposed to Durham’s conspiracy theories.

All that said, laying out all the ways the supposed experts on the frothy right prove they’re unfamiliar with the most basic details about events in 2016 and since is not why I wrote this post.

I wrote this post because of the way Fool attempted to explain away the inconvenience of Paul Manafort to his narrative. Fool went on at length showing how (a possible Russian fabrication claiming) Hillary’s plan to focus on Trump’s ties to Russia must have predicated an investigation that started before that point. He ignored, entirely, that an FBI investigation had already been opened on Page by then (and all four frothers ignore that Fusion started focusing on Page when Paul Singer was footing the bill). But Fool does acknowledge that the money laundering investigation into Manafort had already been opened before Crossfire Hurricane started. He treats Manafort’s very real corrupt ties to Putin-backed oligarchs as a lucky break for what he imagines to be Hillary’s concocted claims, and not a fact that Trump ignored when he hired the man to work for him “for free.” “Luckily, I don’t know if this was a coincidence or not, Manafort joined the Trump campaign and that gave them a reason to look deeper.” In other words, Fool suggests Manafort’s hiring might be part of Hillary’s devious plot, and not the devious plot of Oleg Deripaska to get an entrée to Trump’s campaign or the devious alleged plot of Mohammed bin Zayed to direct Trump policy through Tom Barrack.

Because I expect the circumstances of Manafort’s hiring may become newsworthy again in the near future and because Deripaska was pushing an FBI investigation into Manafort before Hillary was, I wanted to correct this detail.

According to Gates, the effort to install Manafort as campaign manager started earlier than most people realize, in January 2016, not March.

In January 2016, Gates was working mostly on [redacted] film project. Gates was also doing some work on films with [redacted] looking for new DMP clients, and helping Manafort pull material together to pitch Donald Trump on becoming campaign manager. Roger Stone and Tom Barrack were acting as liaisons between Manafort and Trump in an effort to get Manafort hired by the campaign. Barrack had a good relationship with Ivanka Trump.

Tom Barrack described to Mueller how Manafort asked for his help getting hired on Trump’s campaign in that same month, January 2016.

But Manafort may have started on this plan even before January 2016. Sam Patten told SSCI Kilimnik knew of the plan in advance. Patten’s explanation of his involvement in the Mueller investigation describes Ukrainian Oligarch Serhiy Lyovochkin asking him about it in late 2015.

In late 2015, Lyovochkin asked me whether it was true that Trump was going to hire Manafort to run his campaign. Just as I told Pinchuk that Putin’s perception of America’s capabilities was ridiculous, I told Lyovochkin that was an absurd notion; that Trump would have to be nuts to do such a thing.

In any case, even before his hiring was public, on March 20, Manafort wrote his Ukrainian and Russian backers to let them know he had installed himself with the Trump campaign. He sent one of those letters to Oleg Deripaska, purportedly as a way to get the lawsuit Deripaska had filed against Manafort dropped.

Gates was shown an email between Gates and Kilimnik dated March 20, 2016 and four letters which were attached to this email. Gates stated he was the person who drafted the letters on Manafort’s behalf. Manafort reviewed and approved the letters.

Manafort wanted Gates to draft letters announcing he had joined the Trump Campaign. Manafort thought the letters would help DMP get paid by OB and possibly help confirm that Deripaska had dropped his lawsuit against Manafort. Manafort wanted Kilimnik to let Deripaska know he had been hired by Trump and he needed to make sure there were not lawsuits against him.

Gates was asked why Manafort could not have employed counsel to find out of the Deripaska lawsuit had been dropped. Gates stated Manafort wanted to send Deripaska a personal note and to get a direct answer from Deripaska. Gates also thought this letter was a bit of “bravado on Manafort’s part.”

Gates was asked if the purpose of the letter to Deripaska was to determine if the lawsuit had been dropped, why didn’t the letter mention the lawsuit. Gates stated that Manafort did not want to put anything about the lawsuit in writing.

This explanation, true or not (and it’s pretty clear the FBI didn’t believe it), is critical to the frothers because even before Christopher Steele started collecting information on Trump, he was collecting information on Manafort at the behest of Deripaska in conjunction with this lawsuit. And Steele was feeding DOJ tips about Deripaska’s lawsuit before he started feeding the FBI dirt paid for by Hillary’s campaign. The first meeting at which Steele shared dossier information with Bruce Ohr, for example, Steele also pushed the Deripaska lawsuit, and not for the first time.

Either the Deripaska lawsuit was a cover story Manafort used consistently for years (including through his “cooperation” with Mueller in 2018), or it was real. Whichever it was, it bespeaks some kind of involvement by Deripaska long before Hillary got involved. Viewed from that perspective, the dossier (and Deripaska’s presumed success at filling it with disinformation) was just part of a brutal double game that Deripaska was playing with Manafort, one that led Manafort to share campaign strategy and participate in carving up Ukraine, another event the frothers are trying to blame on the ever-devious Hillary. Whichever it is, the process by which a bunch of Putin allies in Ukraine knew Trump was going to hire Manafort before Trump did is a big part of the story.

But according to the frothers, Hillary Clinton is just that devious that she orchestrated all of this.

Josh Marshall’s “Team on the Field:” Putting GOP on Defense Over Russia Requires Reversing Their Offense

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Josh Marshall argued yesterday that the Democratic Party needs to start going on offense on the GOP’s complicity in Russia’s attack on Ukraine.

A new AP poll says that 54% of Americans think President Biden has been “not tough enough” on Russia for its invasion of Ukraine. These kinds of public perceptions can be shaped by perceptions of a leader as much as they drive them. So you think Biden is weak as your starting point and therefore you think he’s not being tough enough on Russia rather than the other way around. Also notable, Americans’ hawkishness over Ukraine has dipped a bit from a month ago. But the first, second and third most important thing about this poll is that this is what you get when you’re not reminding Americans every day — and I mean every god-damned day — that the GOP has spent the last 7 years boosting, allying with and even conspiring with Russia.

[snip]

Will pushing the GOP’s guilt and complicity on Russia make people stop caring about inflation? Of course not. But if you’re not even putting that team on the field you are simply not doing the simplest blocking and tackling of politics. It’s that bad. [my emphasis]

I don’t disagree with him. But for a guy with his own media outlet, he needs to start taking his own advice. That’s because his site has done little to undercut the flood of disinformation that the GOP has used to hide their own complicity.

Between the tag, “Durham,”

And “John Durham,” Marshall’s site shows four stories this year.

The tag, “Hunter Biden,” returns just two things this year.

While I haven’t focused on undermining the ridiculous claims the GOP are making about the “Hunter Biden” “laptop” — I have written just three stories this year (one, two, three), though that number would be far more if you count my focus on the investigation into Rudy — I’ve written 28 stories on the Durham investigation this year. Among other things, I have shown that:

One of the only other reporters covering this stuff with any attention, Charlie Savage, has to cater to a general audience. Meanwhile, an absolute torrent of propaganda from the frothy right has ignored the accumulated evidence not just of prosecutorial abuse, but shocking sloppiness. Instead, they spin Durham’s unsubstantiated conspiracy theories as fact, and from that, conclude that Trump wasn’t really badly implicated by Russia, but instead that was all made up by Hillary ahead of time.

If I weren’t alone swimming against this tide, Durham’s rank ignorance would actually be a great vehicle to correct the frothers. As I’ve noted, Durham and his rubes appear entirely unaware that the suspicions of the researchers trying to understand the Alfa Bank anomalies — that Trump had back channel communications with the Kremlin, that people close to Trump were laundering payments from oligarchs close to Trump, and that a family member of an Alfa Bank oligarch might be helping — all proved to be true.

The story of the Durham investigation is that he has criminalized people investigating reasonable inferences that turned out to be true. And yet the story that has gotten told, largely because other reporters are largely silent about it, is that he continues to chase Russian-seeded conspiracy theories in defiance of the evidence obtained as part of the Mueller investigation.

Josh Marshall has been far more successful than me in the two decades we’ve done this online journalism thing, so I’m in no place to tell him how to run his business.

But people believe that Biden is weak on Ukraine not just because Democrats aren’t screaming about how complicit Trump and his enablers are. They believe it because Trump has seeded two screaming conspiracy theories that have filled that void with false denials that all the suspicions about Trump turned out to be true.

Update: Added a third “Hunter Biden” “laptop” story.

Tom Barrack Appears to Claim Trump Knew Barrack Was Catering US Foreign Policy to the Emirates

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In this post, I described the import of the false statement and obstruction charges against Tom Barrack. While Barrack may have been honest about his ties to the Emirates in a 2017 interview with Robert Mueller’s prosecutors, he is accused of lying about those ties in 2019, which — if DOJ has the goods on those later lies — will make it clear he was affirmatively hiding his role at that point.

[A]ssuming the FBI didn’t charge a billionaire with false statements without having him dead to rights on the charges, by June 2019, the FBI foreclosed several of the defenses that Barrack might offer going forward: that he was doing all this as a legal commercial transaction (which is exempt from the foreign agent charges) or that he wasn’t really working for UAE, he just thought the alliance really served US interests and indulged the Emiratis by referring to MbZ as “boss.” By denying very basic things that the FBI appears to have records for, then, Barrack made it a lot harder to argue — in 2021 — that’s there’s an innocent explanation for all this.

[snip]

This case will sink or swim on the strength of the false statements charges, because if Barrack’s alleged lies in June 2019 were clearcut, when he presumably believed he would be protected by Barr and Trump, then it makes several likely defenses a lot harder to pull off now.

The government made the same argument in a filing last month responding to Barrack’s motion to dismiss: If Barrack did not know his back channel with the Emirates was a problem, why did he (allegedly) lie about it?

Although not dispositive to Barrack’s vagueness challenge, if Barrack actually believed that he had done nothing wrong, it is unclear why he allegedly lied to FBI special agents during his voluntary June 20, 2019 interview as set forth in Counts Three through Seven of the Indictment.

It’s now clear that Barrack’s alleged false statements are even more important than that.

That’s because Barrack is now arguing that, because the Trump Administration approved of how Barrack was peddling US policy to the Emirates, Barrack could not have been a secret foreign agent under 18 USC 951.

That revelation has slowly become clear over the course of a dispute over discovery (motion, response, reply) pertaining to Barrack’s demand, among other things, for, “all communications between Mr. Barrack and the Trump Campaign and Administration regarding the Middle East.”

In the government’s response, they note that 18 USC 951 requires notice to the Attorney General, not to members of a private political campaign.

The defendants argue that evidence of Barrack’s disclosure of his UAE connections to members of the Trump Campaign are exculpatory. But Section 951 requires notice to the Attorney General, not to private citizens affiliated with the Trump Campaign. See 18 U.S.C. § 951(a). This makes sense, since the Attorney General is the official charged with enforcing the law and the senior official in charge of the FBI, the agency responsible for investigating and responding to unlawful foreign government activity inside the United States. By contrast, members of the Trump Campaign have no such responsibilities with respect to the internal national security of the United States and had no authority to sanction or bless the defendants’ illegal conduct. They are not government officials, and even if they were, they are not the Attorney General or a representative thereof.

According to the indictment, Paul Manafort not only knew that Barrack was working for the Emirates, but was cooperating with Barrack’s efforts.

In Barrack’s reply, after a heavily redacted passage, he complains about DOJ’s claim — made in the press conference announcing his arrest — that he had deceived Trump about what he was doing.

The government’s position is particularly astonishing in light of its public claim at the time of Mr. Barrack’s arrest that he had deceived Mr. Trump and the administration. Specifically, the then-Acting Assistant Attorney General for the National Security Division announced that the “conduct alleged in the indictment is nothing short of a betrayal of those officials in the United States, including the former President,” and that this indictment was needed to deter such “undisclosed foreign influence.” [citation removed] In that same press release, the Assistant Director in Charge of the FBI NY Field Office asserted that the indictment was about “secret attempts to influence our highest officials.” Id. When Mr. Barrack raised concerns with the government about these false statements in the press release, the government responded that these statements were a fair representation of the conduct alleged in the indictment. [citation removed] Thus, in one breath the government claims that Mr. Barrack deceived Mr. Trump and the administration and that such evidence is part of its case, but in the next breath contends that contrary evidence is neither relevant nor exculpatory and apparently withheld such discovery on that basis.

Barrack’s lawyers include the 2021 comments about whether Trump knew of all this as exhibits, but more recent correspondence about it remains sealed.

In other words, Barrack seems to be arguing, he didn’t betray Trump; Trump wanted him to cater American foreign policy to rich Gulf Arab nations.

Barrack spends four pages of his reply making the same kinds of complaints about the documentation of his 2019 FBI interview that Mike Flynn made in 2020, even complaining that the fact that the AUSAs prosecuting the case were in the room makes them conflicted on the case. It’s clear why he did so: because if Barrack did lie to an FBI run by Trump’s appointed FBI Director and ultimately overseen by Bill Barr in 2019, then he was continuing to hide his influence-peddling from the one person that mattered under the law, Bill Barr (though given what we know of Barr’s interference in Ukraine investigations, I would be unsurprised if Barr knew that Trump knew of Barrack’s ties to the Emirates, which would explain why he swapped out US Attorneys in EDNY at the time).

Remember: Barrack is alleged to have been pursuing policies pushed by Mohammed bin Zayed. But among the things he is accused of doing for the Emirates was to “force” the White House to elevate Saudi Crown Prince Mohammed bin Salman (then just the Deputy Crown Prince) during a visit to DC in March 2017. At the time the FBI interviewed Barrack in June 2019, Trump was under significant pressure for his possible complicity in the Jamal Khashoggi assassination.

And now — at a time when EDNY is talking about indicting Barrack’s not-yet indicted co-conspirators — we learn that MbS invested $2 billion dollars in Jared Kushner’s brand new firm even in spite of all the reasons not to.

Six months after leaving the White House, Jared Kushner secured a $2 billion investment from a fund led by the Saudi crown prince, a close ally during the Trump administration, despite objections from the fund’s advisers about the merits of the deal.

A panel that screens investments for the main Saudi sovereign wealth fund cited concerns about the proposed deal with Mr. Kushner’s newly formed private equity firm, Affinity Partners, previously undisclosed documents show.

Those objections included: “the inexperience of the Affinity Fund management”;the possibility that the kingdom would be responsible for “the bulk of the investment and risk”; due diligence on the fledgling firm’s operations that found them “unsatisfactory in all aspects”; a proposed asset management fee that “seems excessive”; and “public relations risks” from Mr. Kushner’s prior role as a senior adviser to his father-in-law, former President Donald J. Trump, according to minutes of the panel’s meeting last June 30.

But days later the full board of the $620 billion Public Investment Fund — led by Crown Prince Mohammed bin Salman, Saudi Arabia’s de facto ruler and a beneficiary of Mr. Kushner’s support when he worked as a White House adviser — overruled the panel.

Barrack’s apparent claim that Trump knew exactly what he was doing does nothing to change his legal posture before Trump became President, and DOJ indicted this before the statute of limitation expired on that conduct.

But the apparent claim that Trump knew about this — and the possibility that Barr did too, at least after the fact — would change the kind of crime that happened in 2017, after Trump became President. And, possibly, the culprit.

Bill Barr’s Legal Exposure May Lead Him to Lie about the Hunter Biden Laptop

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In case you missed it on Twitter, I am currently reading the former Attorney General’s fictional autobiography, which is predictably awful. I’ll write it up at more length in the days ahead.

The most newsworthy detail — by far! — in the parts I’ve read thus far is this admission describing how he “had” to open the Durham investigation, not because there was a suspected crime, but because Barr believes Trump’s “adversaries” pushed it to hobble his Administration.

I saw the way the President’s adversaries had enmeshed the Department of Justice in this phony scandal and were using it to hobble his administration. Once in office, it occupied much of my time for the first six months of my tenure. It was at the heart of my most controversial decisions. Even after dealing with the Mueller report, I still had to launch US Attorney John Durham’s investigation into the genesis of this bogus scandal.

[snip]

I always suspected that the preelection peddling of Steele’s dossier and other similar collusion claims comprised an attempt to carry out a classic campaign dirty trick: first, develop scurrilous allegations about one’s opponent, then get them into the hands of an investigative authority, and, finally, leak the “fact” that the allegations are being investigated. This way, unverified allegations are publicized and given instant credibility on the theory that authorities thought them worthy enough to investigate. News organizations can justify publishing dubious allegations by claiming they are really just reporting the facts of a pending investigation. Before Election Day, the Clinton campaign had a good motive for instigating the collusion narrative: besides hurting Trump, it diverted attention from her own e-mail server scandal, which seemingly came to a head in early July when FBI director Comey held a news conference sharply criticizing Clinton for her mishandling of classified e-mails. [my emphasis]

Over and over, Billy situates in advance — sometimes even before he returned to government — his belief in conspiracy theories that John Durham is currently chasing. The book goes a long way to substantiating that Durham is and always was using a criminal investigation to tell a story developed before either Barr or Durham had looked at any evidence.

This entire three year investigation was started because Billy Barr wanted to get revenge, not because he wanted to investigate a crime.

That’s important background for a recent appearance Barr made to claim that the decision by social media companies not to allow the NY Post story on an unverified laptop go viral swung the election.

So when former staffer Larry Kudlow on Thursday interviewed former attorney general William P. Barr for his Fox Business show, the conversation operated from shared assumptions about Trump’s successes and the toxicity of the political left. The result was that Barr outlined a remarkable hierarchy of importance for actions that might have affected the results of a presidential contest.

Russian interference in 2016, he said, was just “some embarrassing emails about Hillary Clinton and Bernie.” The effort to “suppress” information about Hunter Biden’s laptop, meanwhile, was “probably even more outrageous” and “had much more effect on an election.”

Philip Bump lays out all the evidence that Barr’s claim the media ignored the story is false and links to a contemporaneous analysis of the uncertainties about the laptop — though not this recent, overlooked WaPo article that revealed “the data contained on the drive [that purportedly comes from Hunter Biden’s laptop] was so compromised by a variety of factors that definitive conclusions about most of its contents were impossible.”

Bump is wrong, in my opinion, to treat this recent Hunter laptop surge as a mere political conversation on the right. It’s not. It is part of a plan to undermine the investigation — and likely, by then, prosecution — of Rudy Giuliani’s efforts to obtain dirt that is believed to closely if not exactly resemble what he ended up releasing under the guise of a discovered abandoned Hunter Biden laptop. If Republicans win the House, Jim Jordan will dedicate the resources of the House Judiciary Committee full time to investigating this “story,” and will use it to sabotage whatever legal proceedings are working against Rudy at that point.

And that’s why it’s important that a once respected lawyer is going on TV endorsing conspiracy theories.

After all, Barr is legally implicated himself.

As I said, I’ll write far more about the lies Barr told in his narrative. But one key detail is his explanation for appointing Richard Donoghue as a gate-keeper over any Ukraine investigations.

In January, as the impeachment process headed toward conclusion, Deputy Attorney General Rosen issued a memo to all US attorneys’ offices designating Richard Donoghue, the US attorney in the Eastern District of New York, to coordinate Ukraine-related cases. This was done not just for efficiency but also to protect the department from manipulation by foreign interests. As we headed into an election year, we had good reason to worry that Ukraine—a hotbed of political intrigue and conspiracy theories—posed a special concern. It was a channel through which all sides could inject disinformation into our system. This could be done by feeding spurious “evidence” of supposed criminality to US law enforcement authorities. This vulnerability was compounded in a Justice Department in which any one of ninety-three US attorneys’ offices around the country can initiate an investigation based on information it receives. In addition to ensuring information sharing and avoiding conflicts, we wanted to ensure that Ukrainian actors couldn’t instigate cases willy-nilly in different jurisdictions around the country. For this reason, we selected one office to take the lead and also serve as a “traffic cop,” coordinating existing and any new cases. Rich Donoghue was chosen for this role because he already had related matters pending in his Brooklyn office and was one of the most experienced and respected US attorneys in the department.

This is not entirely a lie. It is true that Jeffrey Rosen wrote a memo giving Donoghue veto authority over any investigations pertaining to Ukraine. But the move had the exact opposite effect of what Barr claimed in his narrative.

It had the effect of ensuring that Rudy could continue to chase disinformation from a known Russian agent, Andrii Derkach, to use in the election with no legal consequences.

On November 4, 2019, SDNY executed searches — searches that Main Justice would have had to be informed about — on Rudy and Victoria Toensing’s cloud accounts. In subsequent months, SDNY would execute searches on Yuri Lutsenko and several other Ukrainians, but not Andrii Derkach, not even after Rudy flew to Ukraine to meet with Derkach personally on December 5, 2019.

In the wake of those searches, on January 17, 2020, Jeffrey Rosen issued a memo putting his trusted deputy, Richard Donoghue, in charge of all Ukraine-related investigations.

As has been publicly reported, there currently are several distinct open investigations being handled by different U.S. Attorney’s Offices and/or Department components that in some way potentially relate to Ukraine. In addition, new information potentially relating to Ukraine may be brought to the attention of the Department going forward. The Department has assigned Richard Donoghue, the U.S. Attorney in the Eastern District of New York (EDNY), who currently is handling certain Ukraine-related matters, to coordinate existing matters and to assess, investigate, and address any other matters relating to Ukraine, including the opening of any new investigations or the expansion of existing ones.

[snip]

Any and all new matters relating to Ukraine shall be directed exclusively to EDNY for investigation and appropriate handling.

[snip]

Any widening or expansion of existing matters shall require prior consultation with and approval by my office and EDNY.

Now that we know about the Rudy search in November 2019, the effect of this memo is clear: it limited the SDNY investigation to the scope of the investigation as it existed at that time, into the Lutsenko attempt to fire Yovanovitch (which was included in the original Parnas indictment), but not Rudy’s meeting with a Russian agent to help Trump win re-election.

Instead, EDNY presided over all the Ukraine goings-on during the election, during which time they could have done something about ongoing tampering. Indeed, after Geoffrey Berman succeeded in ensuring that Audrey Strauss would replace him after Barr fired him to try to shut down ongoing investigations (including, undoubtedly, the one into Rudy and Barr’s friend Victoria Toensing), Barr and Rosen replaced Donoghue with another trusted flunky, Seth DuCharme. Under DuCharme, then, EDNY sat and watched while Derkach interfered in the election and did nothing until — per yesterday’s NYT story — “the final months of the Trump administration.” According to the public timeline, it appears that they just let a known Russian agent play around in our democracy.

This step didn’t protect American democracy from Russian tampering. It protected the Russian tampering.

And now Barr is out there claiming that an effort by social media companies to protect democracy was the real crime.

The Guy Investigating the Claimed Politicized Hiring of a Special Counsel Insists that the Hiring of a Special Counsel Cannot Be Political

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On Monday, both John Durham and Michael Sussmann submitted their motions in limine, which are filings to argue about what can be admitted at trial. They address a range of issues that I’ll cover in several posts:

Sussmann:

Durham wants to:

  • Admit witnesses’ contemporaneous notes of conversations with the FBI General Counsel
  • Admit emails referenced in the Indictment and other, similar emails (see this post)
  • Admit certain acts and statements (including the defendant’s February 2017 meeting with a government agency, his December 2017 Congressional testimony, and his former employer’s October 2018 statements to the media) as direct evidence or, alternatively, pursuant to Federal Rule of Evidence 404(b)
  • Exclude evidence and preclude argument concerning allegations of political bias on the part of the Special Counsel (addressed in this post)
  • Admit an October 31, 2016 tweet by the Clinton Campaign

I will link my discussions in serial fashion.

Here’s how John Durham moved to exclude any evidence that his team was ordered to produce results in time for the 2020 election, bullied witnesses, or treated Hillary Clinton as a more dangerous adversary than Russia.

The Government expects that defense counsel may seek to present evidence at trial and make arguments that depict the Special Counsel as politically motived or biased based on his appointment by the prior administration. Notwithstanding the patently untrue nature of those allegations, such matters are irrelevant to this case and would create a substantial danger of unfair prejudice, confusion, and delay. In particular, the government seeks to preclude the defendant from introducing any evidence or making any argument concerning the circumstances surrounding the appointment of the Special Counsel and alleged political bias on the part of the Special Counsel’s Office. Indeed, the defendant has foreshadowed some of these arguments in correspondence with the Special Counsel and others, and their assertions lack any valid basis.

Only relevant evidence is admissible at trial. Fed. R. Evid. 402. The definition of relevance is inclusive, see Fed. R. Evid. 401(a), but depends on the possibility of establishing a fact that “is of consequence in determining the action,” Fed. R. Evid. 401(b). Evidence is therefore relevant only if it logically relates to matters that are at issue in the case. E.g., United States v. O’Neal, 844 F. 3d 271, 278 (D.C. Cir. 2016); see Sprint/United Management Co. v. Mendelsohn, 552 U.S. 379, 387 (2008). The party seeking to introduce evidence bears the burden of establishing relevancy. Dowling v. United States, 493 U.S. 342, 351 n.3 (1990).

Here, the defendant is charged with making a false statement to the FBI General Counsel in violation of 18 U.S.C. § 1001. A jury will have to decide only whether the defendant knowingly and willfully made a materially false statement to the FBI General Counsel. Nothing more, nothing less. Baseless political allegations are irrelevant to the crime charged. See, e.g., United States v. Regan, 103 F. 3d 1072, 1082 (2d Cir. 1997) (claims of Government misconduct are “ultimately separate from the issue of [a defendant’s] factual guilt”); United States v. Washington, 705 F. 2d 489, 495 (D.C. Cir. 1983) (similar). Evidence or argument concerning these issues should therefore be excluded. See Fed. R. Evid. 402; see, e.g., O’Neal, 844 F,3d at 278; United States v. Stone, 19 CR 18 (D.D.C. Sept. 26, 2019) ECF Minute Order (granting the government’s motion in limine to exclude evidence or argument regarding alleged misconduct in the government’s investigation or prosecution of Roger Stone).

The only purpose in advancing these arguments would be to stir the pot of political polarization, garner public attention, and, most inappropriately, confuse jurors or encourage jury nullification. Put bluntly, the defense wishes to make the Special Counsel out to be a political actor when, in fact, nothing could be further from the truth.11 Injecting politics into the trial proceedings is in no way relevant and completely unjustified. See United States v. Gorham, 523 F. 2d 1088, 1097-1098 (D.C. Cir. 1975) (upholding trial court’s decision to preclude evidence relevant only to jury nullification); see also United States v. Rushin, 844 F. 3d 933, 942 (11th Cir. 2016) (same); United States v. Castro, 411 Fed. App’x 415, 420 (2d Cir. 2011) (same); United States v. Funches, 135 F.3d 1405, 1408-1409 (11th Cir. 1998) (same); United States v. Cropp, 127 F.3d 354, 358-359 (4th Cir. 1997). With respect to concerns about jury nullification, this Circuit has opined:

[Defendant’s] argument is tantamount to the assertion that traditional principles concerning the admissibility of evidence should be disregarded, and that extraneous factors should be introduced at trial to become part of the jury’s deliberations. Of course a jury can render a verdict at odds with the evidence and the law in a given case, but it undermines the very basis of our legal system when it does so. The right to equal justice under law inures to the public as well as to individual parties to specific litigation, and that right is debased when juries at their caprice ignore the dictates of established precedent and procedure.

Gorham, 523 F.2d at 1098. Even if evidence related to the defendant’s anticipated allegations had “marginal relevance” to this case (which it does not), the “likely (and presumably intended) effect” would be “to shift the focus away from the relevant evidence of [the defendant’s] wrongdoing” to matters that are, at most, “tangentially related.” United States v. Malpeso, 115 F. 3d 155, 163 (2d Cir. 1997) (upholding exclusion of evidence of alleged misconduct by FBI agent). For the foregoing reasons, the defendant should not be permitted to introduce evidence or make arguments to the jury about the circumstances surrounding the appointment of the Special Counsel and alleged political bias on the part of the Special Counsel.

11 By point of fact, the Special Counsel has been appointed by both Democratic and Republican appointed Attorneys General to conduct investigations of highly-sensitive matters, including Attorneys General Janet Reno, Michael Mukasey, Eric Holder, Jeff Sessions and William Barr. [my emphasis]

Durham stuck the section between an extended section arguing that Judge Christopher Cooper should treat the interlinked investigations — by those working for the Hillary campaign and those, working independently of the campaign, who believed Donald Trump presented a grave risk to national security — into Trump’s ties to Russia as a unified conspiracy and another section asking that Clinton Campaign tweets magnifying the Alfa Bank allegations be admitted, even though the argument to include them is closely related.

Even ignoring how Durham pitches this issue, the placement of this argument — smack dab in the middle of an effort to treat protected political speech he admits is not criminal like a criminal conspiracy — seems like a deliberate joke. All the more so coming from prosecutors who, with their conflicts motion,

stir[red] the pot of political polarization, garner[ed] public attention, and, most inappropriately, confuse[d potential] jurors

It’s pure projection, presented in the middle of just that kind of deliberately polarizing argument. From the moment the Durham team — which relied heavily on an FBI Agent who reportedly sent pro-Trump texts on his FBI phone — tried to enhance Kevin Clinesmith’s punishment for altering documents because he sent anti-Trump texts on his FBI phone, Durham has criminalized opposition to Trump.

And Durham himself made his hiring an issue by claiming that the guy who misrepresented his conflicts motion by using it to suggest that Sussmann and Rodney Joffe should be executed, Donald Trump, is a mere third party and not the guy who made him a US Attorney.

But it’s also misleading, for multiple reasons.

The initial bias in question pertains to covering up for Russia, not helping Republicans

Sussmann’s likely complaints at trial have little to do with the fact that Durham was appointed by a Republican. Rather, a key complaint will likely have to do with the fact that Durham was appointed as part of a sustained campaign to misrepresent the entire set of events leading up to the appointment of his predecessor as Special Counsel, Robert Mueller, by a guy who auditioned for the job of Attorney General based on his claims — reflecting his warped Fox News understanding of the investigation — that the confirmed outcome of that investigation was false.

You cannot separate Durham’s appointment from Billy Barr’s primary goal in returning as Attorney General to undermine the evidence of improper Trump ties to Russia. You cannot separate Durham’s appointment, in the same days as Mueller acquired key evidence in two investigations (the Egyptian bank donation and Roger Stone) that Barr subsequently shut down, from Barr’s attempt to undermine the past and ongoing investigation. You cannot separate Durham’s appointment from what several other DC District judges (Reggie Walton, Emmet Sullivan, and Amy Berman Jackson — the latter, twice) have said was Barr’s improper tampering in the Russian investigation.

That is, Durham was appointed to cover-up Trump’s confirmed relationship with Russia, not to attack Democrats. But in order to cover up for Russia, Durham will, and has, attacked the Democrats who were first victimized by Russia for viewing Russia as a threat (though I believe that Republicans were victimized, too).

That bias has exhibited in the following ways, among others:

  • Treating concern about Trump’s solicitation of further hacks by Russia and his confirmed ties to Russian money laundering as a partisan issue, and not a national security issue (something Durham continues with this filing)
  • Treatment, in the Danchenko case, of Charles Dolan’s involvement in the most accurate report in the Steele dossier as more damning that the likely involvement of Dmitri Peskov in the most inflammatory reports that paralleled the secret communications with Dmitry Peskov that Trump and Michael Cohen lied to cover up
  • Insinuations from Andrew DeFilippis to Manos Antonakakis that it was inappropriate for DARPA to ask researchers to investigate ongoing Russian hacks during an election
  • A prosecutorial decision that risks making sensitive FISA information available to Russia that will, at the same time, signal that the FBI won’t protect informants against Russia

There are other indications that Durham has taken probable Russian disinformation that implicates Roger Stone as instead reliable evidence against Hillary.

Durham’s investigation into an investigation during an election was a key prop during an investigation

Another thing Durham may be trying to stave off is Sussmann calling Nora Dannehy as a witness to explain why she quit the investigation just before the election. Even assuming Durham could spin concerns about pressure to bring charges before an election, that pressure again goes to Billy Barr’s project.

When Durham didn’t bring charges, some of the same documents Durham was reviewing got shared with Jeffrey Jensen, whose team then altered several of them, at least one of them misleadingly, to present a false narrative about Trump’s opponent’s role in the investigation. Suspected fraudster Sidney Powell seems to have shared that false narrative with Donald Trump, who then used it in a packaged attack in the first debate.

This is one of the reasons why Durham’s submission of Bill Priestap’s notes in such a way as to obscure whether those notes have some of the same indices of unreliability as the altered filings in the Mike Flynn case matters.

In other words, Durham is claiming that scrutinizing the same kind of questions that Durham himself has been scrutinizing for years is improper.

The bullying

I find it interesting that Durham claims that, “the defendant has foreshadowed some of these arguments in correspondence with the Special Counsel and others,” without citing any. That’s because the only thing in the record is that Sussmann asked for evidence of Durham bullying witnesses to alter their testimony — in response to which Durham provided communications with April Lorenzen’s attorneys.

On December 10, 2021, the defense requested, among other things, all of the prosecution team’s communications with counsel for witnesses or subjects in this investigation, including, “any records reflecting any consideration, concern, or threats from your office relating to those individuals’ or their counsels’ conduct. . . and all formal or informal complaints received by you or others” about the conduct of the Special Counsel’s Office.” Although communications with other counsel are rarely discoverable, especially this far in advance of trial, the Government expects to produce certain materials responsive to this request later this week. The Government notes that it is doing so despite the fact that certain counsel persistently have targeted prosecutors and investigators on the Special Counsel’s team with baseless and polemical attacks that unfairly malign and mischaracterize the conduct of this investigation. For example, certain counsel have falsely accused the Special Counsel’s Office of leaking information to the media and have mischaracterized efforts to warn witnesses of the consequences of false testimony or false statements as “threats” or “intimidation.”

And this set of filings reveals that Durham is still trying to force Rodney Joffe to testify against Sussmann, even though Joffe says his testimony will actually help Sussmann.

In other words, this may be a bid by Durham to prevent evidence of prosecutorial misconduct under the guise of maintaining a monopoly on the right to politicize the case.

Normally, arguments like this have great merit and are upheld.

But by making the argument, Durham is effectively arguing that the entire premise of his own investigation — an inquiry into imagined biases behind an investigation and later appointment of a Special Counsel — is illegitimate.

As we’ll see, what Judge Christopher Cooper is left with is nothing more than competing claims of conspiracy.

The Lesson Marina Ovsyannikova Offers to Chuck Todd and Lester Holt

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Yesterday, an editor at Russia’s official Channel One news, Marina Ovsyannikova, came onto a live broadcast and held up a sign condemning Russia’s war on Ukraine.

Predictably, she was quickly detained; thus far, her attorneys have been unable to locate her (though one outlet has said she’ll be charged under Russia’s new crackdown law).

Shortly after her detention, a pre-recorded video was released, in which she explained her actions. She spoke of the shame she feels about her past involvement in Putin’s lies.

What is happening right now in Ukraine is a crime and Russia is the aggressor. And the responsibility for this aggression lies on the conscience of only one person. This man is Vladimir Putin. My father is Ukrainian. My mother is Russian. And they were never enemies. And this necklace on my neck is a symbol of the fact that Russia must immediately stop the fratricidal war and then our brotherly peoples will still be able to reconcile.

Unfortunately, in recent years I have been working on Channel One, working for Kremlin’s propaganda. And I am very ashamed of it. I am ashamed that I was letting them tell those lies from the screen. I’m ashamed that I allowed to “zombify” the Russian people.

We kept silent in 2014, when all this was just in the beginning. We didn’t go to rallies when the Kremlin poisoned Navalny. We just silently watched this inhumane regime.

And now the whole world has turned away from us, and even 10 generations of our descendants will not be enough to wash away the shame of this fratricidal war. We are Russian people — thoughtful and smart. It’s up to us to stop this madness. Come out to rallies. Don’t be afraid of anything. They can’t imprison all of us.

It was an incredibly brave — and because she planned her actions in advance — well-executed protest.

But make no mistake. Ovsyannikova is not, like another brave journalist who spoke up this week, Yevgenia Albats, someone who has criticized the regime in the past, someone whose witness now is a continuation of years of brave reporting.

Rather, Ovsyannikova is someone who, a profile describes, “was a cog in a big machine of Channel One’s news production.” She was part of the the production of official truth. And as she describes, hers is the lesson of regret for that complicity, someone who will forever own a part of Putin’s crimes because she took the comfortable route of contributing to and participating in Putin’s exercise of power. She will almost certainly pay a stiff price for her speech, but she is also someone who did nothing, up till now, as Putin kept raising the price of speaking freely.

While Ovsyannikova’s protest will likely resonate for some time, I would hope that complicit journalists in countries where it’s not too late to defend democracy reflect seriously on Ovsyannikova’s shame. Even as Russia rains bombs down on Ukraine, journalists like Chuck Todd and Lester Holt invited Bill Barr onto their TV to tell lies about Russia’s attack on democracy in the United States, to tell lies about Trump’s extortion of Ukraine, to tell lies about his role in an attack on democracy. Like Ovsyannikova, Todd and Holt sit, comfortable, polished, and complicit, as Barr told lies that were a direct attack on democracy and rule of law.

And like Ovsyannikova, they are doing nothing to rebut the lies of authoritarianism before it’s too late.

Update: Ovsyannikova has surfaced and is thus far facing only administrative crimes, so days, not years, in jail.

Update: Ovsyannikova was fined 30,000 rubles and released, but that apparently only covers the social media video, not the protest on TV.

“The Whole Idea Was to Intimidate Congress:” Bill Barr Continues to Minimize Witness Tampering

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In a supine interview to help Bill Barr rehabilitate his reputation, Lester Holt asked the former Attorney General about intervening to lessen Roger Stone’s sentence. According to the summary thus far posted, Barr claims it was made to look bad, but really he just thought it was right to halve the sentencing recommendation for the guy hiding the President’s knowledge of Russian interference during the 2016 election.

As for his decision to soften a prison sentence for longtime Trump adviser Roger Stone that Trump had repeatedly blasted as unfair, Barr said: “I knew it would be made to look bad. At the end of the day, all you can do is what you think is right.”

Barr’s intervention was an ominous precursor to the January 6 riot. In slashing Stone’s sentencing recommendation, Barr affirmatively said that threats by Roger Stone and the Proud Boys on judge Amy Berman Jackson were just a technicality unworthy of a sentencing enhancement. He similarly suggested that the threat of militia violence against Randy Credico that, in summer 2018, was serious enough that the FBI gave him a warning, did not merit a full 8-point enhancement for threats of violence.

Less than a year before two Stone-connected militias led an attack on Congress, the Attorney General let it be known he didn’t find those threats to be all that serious.

That’s likely one factor that led the FBI to treat the Proud Boys as intelligence partners against Antifa rather than a dangerous gang to be infiltrated.

And Barr continues that approach to militia-assisted witness tampering. Holt asked Barr whether Trump was responsible for the mob led by Stone’s militia buddies at the Capitol. Barr responded by describing, effectively, witness tampering.

Do you think that President Trump was responsible for what happened here, ultimately?

I do think he was responsible in the broad sense of that word in that, it appears that part of the plan was to send this group up to the Hill. I think the whole idea was to intimidate Congress. And I think that that was wrong.

“Part of the plan,” the former top law enforcement officer in the US said, “was to send this group up to the Hill … to intimidate Congress.”

In describing January 6 that way, Barr better understands how the insurrection worked than so many TV lawyers. He described it as an attempt to corruptly convince Congress to do something illegal and, in asserting that sending the mob was part of the plan, describes it as pre-mediated obstruction. This is, by all appearances, the crime for which that DOJ is investigating the former President.

But then, having described the same crime, witness tampering and obstruction, achieved in partnership with the same militias, the Oath Keepers and Proud Boys, as Barr minimized with Stone, Barr then suggests Trump hasn’t committed the crime of incitement.

But, he added, he hasn’t seen evidence that Trump committed an actual crime. “I haven’t seen anything to say he was legally responsible for it in terms of incitement,” Barr said.

And Holt let him.

Barr is going to keep saying that mob violence by the Proud Boys is no big thing until someone like Lester Holt calls him out for coddling crime.

Questions for Bill Barr about His Cover-Ups Pertaining to Ukraine and Russia, Starting with: Who Withdrew the Red Notice for Yevgeniy Prigozhin?

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Billy Barr’s effort to launder his reputation with a book tour has started, kicked off with a supine WSJ review that includes just one “some said” clause treating as debatable the provably false claims he made in his book about intervening to eliminate all consequences for Trump’s top associates for lying to cover up their interactions with Russia during the 2016 election.

During much of Mr. Barr’s time in the Trump administration, some said he protected the president at the expense of the Justice Department’s independence, especially over his handling of special counsel Robert Mueller’s investigation of Russian interference in the 2016 election.

Mr. Barr issued his own summary of Mr. Mueller’s investigative report depicting the results in a way that Mr. Mueller and others described as misleading or overly favorable to Mr. Trump. He also worked in the ensuing months to undermine some of the prosecutions spawned by the Mueller investigation. An example was his decision to drop the criminal case against Michael Flynn, Mr. Trump’s former national security adviser.

Mr. Barr has said that he intervened to correct what he saw as overreach by the prosecutors and flaws in the department’s approach to those cases, a stance he maintains in his book.

Barr’s book tour happens at the same time, the Times reports, as 400 Wagner mercenaries sent by Putin to Kyiv are trying to hunt down the elected President of Ukraine.

More than 400 Russian mercenaries are operating in Kyiv with orders from the Kremlin to assassinate President Zelensky and his government and prepare the ground for Moscow to take control, The Times has learnt.

The Wagner Group, a private militia run by one of President Putin’s closest allies and operating as an arm-length branch of the state, flew in mercenaries from Africa five weeks ago on a mission to decapitate Zelensky’s government in return for a handsome financial bonus.

Information about their mission reached the Ukrainian government on Saturday morning and hours later Kyiv declared a 36-hour “hard” curfew to sweep the city for Russian saboteurs, warning civilians that they would be seen as Kremlin agents and risked being “liquidated” if they stepped outside.

This makes me wonder whether Viktor Medvedchuk — the guy Putin would like to install as a puppet — had help escaping from house arrest.

People’s deputy from the Opposition Platform – Pri Life party, Putin’s godfather Viktor Medvedchuk, escaped from arrest.

Source : information from the ZN.UA edition , obtained from the Office of the Prosecutor General, Advisor to the Minister of Internal Affairs Anton Gerashchenko

Details : According to sources, on February 26, the Prosecutor General’s Office instructed the National Police to check the presence of Medvedchuk at the address where he is under house arrest.

The National Police fulfilled the order: Medvedchuk was not at the scene.

The coincidence of Putin’s invasion with Barr’s attempt to launder his reputation led me to put together a partial list of questions Barr should be asked (hopefully by Lester Holt) as he attempts to pretend he didn’t pervert justice — in part — to protect Trump from his attempt to extort Ukraine. For example:

  • Why didn’t Barr recuse himself from the review of the whistleblower complaint against Trump given that Trump told Zelenskyy Barr would contact him during the Perfect Phone Call? (This post provides more details of how Barr’s DOJ mishandled that referral.)
  • Why did Barr only refer the transcript of the call, and not the entire whistleblower complaint, the latter of which would have led Public Integrity to see the tie between Trump’s call and Rudy’s successful effort to get Maria Yovanovich fired (for which Rudy remains under active investigation)?
  • Why did OLC, first, write a memo refusing to share the whistleblower complaint and, once they did, overclassify passages of the call to hide Barr’s own role?
  • Why did Barr personally warn Rupert Murdoch before Sean Hannity got on a plane to fly to Vienna as part of Rudy’s grift?
  • Why did Barr try to fire Geoffrey Berman at a time it was investigating Rudy Giuliani’s role in all this?
  • Why did Barr ask one of his most politicized US Attorneys, Scott Brady, to serve as an intake point for Russian disinformation from Andrii Derkach?
  • Why did Barr separate the investigation into Derkach from the one in which Rudy, who met with Derkach after he had been IDed as a Russian agent, was already under investigation?

Had Barr not intervened in all these ways, the US would have been better able to protect its own democracy from Trump (and Giuliani’s) attempt to corrupt Ukraine’s democracy. Instead, Ukraine is schooling America about what it takes to defend democracy.

But given the assassins hunting down Zelenskyy even as Barr attempts to launder his reputation, there’s perhaps a more urgent question. Why did Bill Barr’s DOJ let the Red Notice for Yevgeniy Prigozhin’s arrest drop in September 2020?

In March 2020, DOJ dismissed the case against two of Prigozhin’s companies that had interfered in the 2016 election, but not Prigozhin himself. As I wrote, the decision was not as suspect as some of Barr’s other interventions in Mueller prosecutions (though it happened at the same time). Because Prigozhin’s corporate persons, but not his biological person, showed up to contest the charges, the Prigozhin defense became substantially an effort to learn FBI’s sources and methods. A Dabney Friedrich decision on the protective order exacerbated that, and another required DOJ to start naming US persons affected. Dropping the case against two corporate persons was not, itself, suspect. DOJ did not drop the case against Prigozhin or his trolls.

Even though the charges against the biological person Prigozhin had not been dropped, in September 2020, Interpol removed Prigozhin from the list of those who could be arrested, citing the dismissal against his corporate persons. This allowed Prigozhin to make several trips to jurisdictions, including Germany, from which he could have been extradited.

It’s certainly possible Billy Barr had no role in this decision and that DOJ tried to point out that, in fact, the charges against Prigozhin remained (and still remain). But given that he gave a screed that seemed to attack the prosecution as a whole at the time, perhaps DOJ affirmatively let Prigozhin slide.

But as his book tour takes place against the backdrop of assassins hunting for Zelenskyy, it seems like a good time to ask him if he did intervene to let the owner of Putin’s paid killers travel free from any risk of direct legal consequences for his intervention in America’s own democracy.

On Unrealistic Expectations for Mueller Report Obstruction Charges

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Among those whinging that Merrick Garland hasn’t imprisoned Donald Trump yet, there is an apparent belief that the Mueller Report left obstruction charges all wrapped up in a bow, as if the next Administration could come in, break open the Report, and roll out fully-formed charges.

Even among those with a more realistic understanding of the Mueller Report, people continue to call for some public resolution of the obstruction charges, as Randall Eliason did here and Quinta Jurecic did here. Jurecic even updated her awesome heat map of the obstruction charges, with the date the statute of limitations (if an individual act of obstruction were charged outside a continuing conspiracy) would expire for each.

None of that is realistic, for a whole range of reasons.

The obstruction-in-a-box belief is based on a misunderstanding of the Mueller Report

First, the belief that Merrick Garland could have come into office 11 months ago and rolled out obstruction charges misunderstands the Mueller Report. Many if not most people believe the report includes the entirety of what Mueller found, describes declination decisions on every crime considered, and also includes a volume entirely dedicated to Trump’s criminal obstruction, a charging decision for which Mueller could not reach on account of the OLC memo prohibiting it. None of that is true.

As I laid out in my Rat-Fucker Rashomon series, the Mueller Report is only a description of charging decisions that the team made. My comparison of the stories told in the Report with those told in the Stone warrant affidavits, Stone’s trial, and the SSCI Report show that Mueller left out a great deal of damning details about Stone, including that he seemed to have advance notice of what the Guccifer 2.0 persona was doing and that Stone was scripting pro-Russian tweets for Trump in the same period when Trump asked Russia, “if you’re listening — I hope you are able to find the 30,000 emails that are missing.”

And, as DOJ disclosed hours before the 2020 election, Mueller didn’t make a final decision about whether Stone could be charged in a hack-and-leak conspiracy. Instead, he referred that question to DC USAO for further investigation. In fact the declinations in the Mueller Report avoid addressing any declination decision for Stone on conspiring with Russia. The declination in the report addresses contacts with WikiLeaks (but not Guccifer 2.0) and addresses campaign finance crimes. The section declining to charge any Trumpsters with conspiracy declines to charge the events described in Volume I Section II (the Troll operation) and Volume I Section IV (contacts with Russians), in which there is no Stone discussion. Everything Stone related — even his contacts with Henry Greenberg, which is effectively another outreach from a Russian — appears in Section III, not Section IV. The conspiracy declinations section doesn’t mention Volume I Section III (the hack-and-leak operation) at all and (as noted) in the section that specifically addresses hack-and-leak decisions, a footnote states that, “Some of the factual uncertainties [about Stone] are the subject of ongoing investigations that have been referred by this Office to the D.C. U.S. Attorney’s Office.” This ongoing investigation would have been especially sensitive in March 2019, because prosecutors knew that Stone kept a notebook recording all his conversations with Trump during the campaign, many of which (they did have proof) pertained to advance notice of upcoming releases. That is, the ongoing investigation into Stone was also an ongoing investigation into Trump, which is consistent with what Mueller told Trump’s lawyers in summer 2018.

That’s not the only investigation into Trump that remained ongoing at the time Mueller closed up shop. The investigation into a suspected infusion of millions from an Egyptian bank during September 2016 continued (per CNN’s reporting) until July 2020, which is why reference to it is redacted in the June 2020 Mueller Report but not the September 2020 one. I noted both these ongoing investigations in real time.

The Mueller Report also doesn’t address the pardon discussions with Julian Assange, even though that was included among Mueller’s questions to Trump.

So contrary to popular belief, Volume II does not address the totality of Trump’s criminal exposure.

That ought to change how people understand the obstruction discussion in Volume II. For all the show of whether or not Mueller could make a charging decision about Trump, the discussion provably did not include the totality of crimes Mueller considered with Trump.

All the more so given the kinds of obstructive acts described in Volume II. The biggest tip-off that this volume was about something other than criminal obstruction charges, in my opinion, is the discussion of Trump’s lies about the June 9 meeting in Trump Tower. As Jurecic’s heat map, her extended analysis, and my own analysis at the time show, the case that this was obstruction was weak. “Mueller spent over eight pages laying out whether Trump’s role in crafting a deceitful statement about the June 9 meeting was obstruction of justice when, according to the report’s analysis of obstruction of justice, it was not even a close call.” At the time, I suggested Mueller included it because it explained what Trump was trying to cover up with his other obstructive actions during the same months. But I think the centrality of Vladimir Putin involvement in Trump’s deceitful statement — which gets no mention in the Report, even though the Report elsewhere cites the NYT interview where that was first revealed — suggests something else about this incident. Because of how our Constitution gives primacy in foreign affairs to the President, DOJ would have a very hard time charging the President for conversations he had with a foreign leader (Trump’s Ukraine extortion was slightly different because Trump refused to inform Congress of his decision to blow off their appropriation instructions). But Congress would (in a normal time, should) have no difficulty holding the President accountable for colluding with a foreign leader to invent a lie to wield during a criminal investigation. Trump’s June 9 meeting lie is impeachable; it is not prosecutable.

Similarly, several of the other obstructive acts — asking Comey to confirm there was no investigation into him, firing Comey, and threatening to fire Mueller — would likewise be far easier for Congress to punish than for DOJ to, because of how expansively we define the President’s authority.

That is, these ten obstructive acts are best understood, in my opinion, as charges for Congress to impeach, not for DOJ to prosecute. The obstruction section — packaged up separately from discussion of the other criminal investigations into Trump — was an impeachment referral, not a criminal referral. I think Mueller may have had a naive belief that Congress would be permitted to consider those charges for impeachment, such an effort would succeed, and that would leave DOJ free to continue the other more serious criminal investigation into Trump.

It didn’t happen.

But that doesn’t change that a number of these obstructive acts are more appropriate for Congress to punish than for DOJ to.

Bill Barr did irreparable damage to half of these obstruction charges

Bill Barr, of course, had other things in mind.

Those wailing that Garland is doing nothing in the face of imminently expiring obstruction statutes of limitation appear to have completely forgotten all the things Billy Barr did to make sure those obstruction charges could not be prosecuted as they existed when Mueller released his report.

That effort started with Barr’s declination of the obstruction charges.

Last year, Amy Berman Jackson forced DOJ to release part of the memo Barr’s flunkies wrote up the weekend they received the Mueller Report. The unsealed portions show that Rod Rosenstein, Ed O’Callaghan, and Steven Engel signed off on the conclusion that,

For the reasons stated below, we conclude that the evidence described in Volume II of the Report is not, in our judgment, sufficient to support a conclusion beyond a reasonable doubt that the President violated the obstruction-of-justice statutes. In addition, we believe that certain of the conduct examined by the Special Counsel could not, as a matter of law, support an obstruction charge under the circumstances. Accordingly, were there no constitutional barrier, we would recommend, under the Principles of Federal Prosecution, that you decline to commence such a prosecution.

This was unbelievably corrupt. There are a slew of reasons — from Barr’s audition memo to the way these officials include no review of the specific allegations to the fact that some of these crimes were crimes in progress — why this decision is inadequate. But none of those reasons can make the memo go away. So unless DOJ were to formally disavow this decision after laying out the reasons why the process was corrupt (preferably via analysis done by a quasi-independent reviewer like the Inspector General), any prosecution of the obstruction crimes laid out in the Mueller Report would be virtually impossible, because the very first thing Trump would do would be to cite the memo and call these three men as witnesses that the case should be dismissed.

But Barr’s sabotage of these charges didn’t end there. At his presser releasing the heavily-redacted report, Barr excused Trump’s obstruction because (Barr claimed) Trump was very frustrated he didn’t get away with cheating with Russia unimpeded, thereby deeming his motives to be pure.

In assessing the President’s actions discussed in the report, it is important to bear in mind the context.  President Trump faced an unprecedented situation.  As he entered into office, and sought to perform his responsibilities as President, federal agents and prosecutors were scrutinizing his conduct before and after taking office, and the conduct of some of his associates.  At the same time, there was relentless speculation in the news media about the President’s personal culpability.  Yet, as he said from the beginning, there was in fact no collusion.  And as the Special Counsel’s report acknowledges, there is substantial evidence to show that the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency, propelled by his political opponents, and fueled by illegal leaks.  Nonetheless, the White House fully cooperated with the Special Counsel’s investigation, providing unfettered access to campaign and White House documents, directing senior aides to testify freely, and asserting no privilege claims.  And at the same time, the President took no act that in fact deprived the Special Counsel of the documents and witnesses necessary to complete his investigation. Apart from whether the acts were obstructive, this evidence of non-corrupt motives weighs heavily against any allegation that the President had a corrupt intent to obstruct the investigation.

These claims were, all of them, factually false, as I laid out at the time. But because he was the Attorney General when he made them, they carry a great deal of weight, legally, in establishing that Trump had no corrupt motive for obstructing the investigation into his ties to Russia.

And after that point, Barr made considerable effort to manufacture facts to support his bullshit claims. Most obviously, he sicced one after another after another investigator on the Russian investigation to try to substantiate his own bullshit claims. In the case of Barr’s efforts to undermine the Mike Flynn prosecution — which investigation lies behind four of the obstruction charges laid out in the Mueller Report — the Jeffrey Jensen team literally altered documents to misrepresent the case against Flynn. Similarly, a Barr-picked prosecutor installed to replace everyone who was fired or quit in the DC US Attorney’s Office, Ken Kohl, stood before Judge Sullivan and claimed (falsely) that everyone involved with the Flynn prosecution had no credibility.

If we move forward in this case, we would be put in a position of presenting the testimony of Andy McCabe, a person who our office charged and did not prosecute for the same offense that he’s being — that we would be proceeding to trial against with respect to Mr. Flynn.

So all of our evidence, all of our witnesses in this case as to what Mr. Flynn did or didn’t do have been — have had specific findings by the Office of Inspector General. Lying under oath, misleading the Court, acting with political motivation. Never in my career, Your Honor, have I had a case with witnesses, all of whom have had specific credibility findings and then been pressed to go forward with the prosecution. We’re never expected to do so.

Again, so long as this testimony remains credible, you can’t pursue obstruction charges remotely pertaining to Flynn, meaning four of the obstruction charges are off the table.

Barr also chipped away at the other charges underlying the obstruction charges, intervening to make it less likely that Roger Stone or Paul Manafort would flip on Trump and help DOJ substantiate that, yes, Trump really did cheat with Russia to get elected. Barr also got OLC to undercut the analysis behind charging Michael Cohen for the hush payments (which may have made it impossible for SDNY to charge Trump with the same charges).

Meanwhile, John Durham toils away, trying to build conspiracy charges to substantiate the rest of Barr’s conspiracy theories. Along the way, Durham seems to be tainting other evidence that would be central to any obstruction charges against Trump. For example, in the most recent BuzzFeed FOIA release, all parts of Jim Comey’s memos substantiating Trump’s obstruction that mentioned the Steele dossier were protected under a b7(A) exemption, which is almost certainly due to Durham’s pursuit of a theory that Trump’s actions with Comey were merely a response to the Steele dossier, not an attempt to hide his Flynn’s very damning conversations with the Russian Ambassador during the transition. That is, Durham is as we speak making evidence unavailable in his efforts to invent facts to back Barr’s claims about Trump’s pure intent in obstructing the Mueller investigation.

As noted, all of these efforts are fairly self-obviously corrupt, and most don’t withstand close scrutiny (as the altered documents did not when I pointed them out). But before DOJ could pursue the obstruction charges as they existed in the Mueller Report, they would first have to disavow all of this.

Inspector General Michael Horowitz was reportedly investigating at least some of this starting in 2020. And I trust his investigators would be able to see through much of what Barr did. But even assuming Horowitz was investigating the full scope of all of them, because of the pace of DOJ IG investigations, the basis to disavow Barr’s efforts would not and will not come in time to charge those obstruction counts before the statutes of limitation expires.

The continuing obstruction statutes have barely started

In addition to obstructing the punishment of Paul Manafort and Roger Stone and undermining the theory behind the Michael Cohen hush payment charges, Bill Barr also worked relentlessly to undermine the prosecution of Rudy Giuliani.

There were undoubtedly a lot of reasons Barr needed to do that. If he didn’t, he might have to treat Trump’s extortion of Ukraine (which was the follow-up to Manafort’s Ukraine ties in 2016). Rudy was central to Trump’s own obstruction of the Mueller investigation. And if Rudy were shown to be an Agent of Russian-backed Ukrainians, it would raise significant questions about Trump’s larger defense (questions for which there is substantiation in Mueller’s 302s).

I understand there was a sense, in the middle of Barr’s efforts, that prosecutors believed they could just wait those efforts out.

And then, literally on Lisa Monaco’s first day on the job, DOJ obtained warrants to seize 16 devices from Rudy. During all the months that people have been wailing for Garland to act, Barbara Jones has been wading through Rudy’s phones to separate out anything privileged (and, importantly, to push back on efforts to protect crime-fraud excepted communications). Almost the first thing Lisa Monaco did was approve an effort to go after the key witness to the worst of Trump’s corruption.

There are many reasons I keep coming back to that seizure to demonstrate that Garland’s DOJ (in reality, Monaco would be the one making authorizations day-to-day) will not back off aggressive investigations of Trump. Even if DOJ only had warrants for the Ukraine investigation, it would still get to larger issues of obstruction, because of how it relates to impeachment. But even if it were true those were the only warrants when DOJ raided Rudy, there’s abundant reason to believe that’s no longer true. If DOJ got warrants covering the earlier obstruction or Rudy’s role in the attempted coup, no one outside that process would know about it.

Then, in recent days, DOJ made another audacious seizure of a lawyer’s communications, a seizure that only makes sense in the context of a larger obstruction investigation, this time of the January 6 investigation, yet more evidence that DOJ it not shying away from investigating Trump’s crimes.

Indeed, DOJ currently has investigations into all the nodes of the pardon dangles, too: Sidney Powell’s work for Trump on a thing of value (the Big Lie) while waiting for a Mike Flynn pardon; Roger Stone’s coordination with militias before and after he got his own pardon; promises to the Build the Wall crowd — promises kept only for Bannon — tied to efforts to help steal the election; and Rudy’s role at the center of all this.

There would be no reason to charge the pardon dangles from 2019 (the balance of the obstruction charges that Barr didn’t hopelessly sabotage) when DOJ has more evidence about pardon bribes from 2020, including the devices of the guy at the center of those efforts, and the direct tie to the January 6 coup attempt to tie it to. Indeed, attempting to charge the earlier dangles without implicating everything Trump got out of the pardons in his attempted coup would likely negatively impact an investigation into the more recent actions.

Even assuming Mueller packaged obstruction charges for DOJ to indict, rather than Congress to impeach, the deliberate sabotage Barr did in the interim makes most of those charges impossible. The exceptions — the pardon dangles — all have additional overt acts to include that sets aside Barr’s past declination.

DOJ cannot charge the Mueller obstruction charges. But they also cannot explain why not, partly because of the institutional necessity to move beyond Barr’s damage, but partly because doing so would damage the possibility of charging the continuation of that very same obstruction.

One obstruction crime is actually a conspiracy crime

I forgot one more detail that’s really important: One of the listed acts of obstruction, Trump’s efforts to have Jeff Sessions shut down the investigation, appears to be a Stone-related conspiracy crime. As I noted, that effort started nine days after Roger Stone told Julian Assange, “I am doing everything possible to address the issues at the highest level of Government.”

Especially given that it is among the weaker obstruction crimes, this is one that would be better pursued as a conspiracy crime (though it would be tangled up in the Assange extradition).

Update: As Jackson noted on Twitter, DC Circuit should soon weigh in on ABJ’s efforts to liberate more of Barr’s declination memo.

The John Durham Investigation Turns 1,000 Days Old Today

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By my math, today marks the 1,000th day after Bill Barr first appointed John Durham to undermine the Russian investigation on May 13, 2019. Today marks a major new milestone in Durham’s effort to substantiate the conspiracy theories Barr sent him off chasing years ago.

The Durham investigation has now lasted 326 days longer than the Mueller investigation, not quite half again as long. But I’m sure Durham will last the 11 days required to hit that milestone, too.

At this stage in the aftermath of the Mueller investigation, Billy Barr had started his campaign to undo all punishment arising from it. January 2020 was the month when Barr took the first steps to protect Flynn from the new crimes he had committed in his effort to blow up his past prosecution by appointing Jeffrey Jensen to review the Flynn prosecution — an effort that would end with DOJ admitting that they had altered some notes.

Durham, by contrast, has had a productive last month. Four months after indicting Michael Sussmann, he learned that Sussmann had provided at least one other anonymous tip on behalf of Rodney Joffe, in addition to the one Durham has labeled a crime. Durham also discovered two phones used by James Baker, which he had never before bothered to look for in DOJ IG custody, precisely where he had been told one of them was years earlier.

At the rate Durham is discovering basic things he should have learned years before indicting Sussmann (and, probably, Igor Danchenko), he might be prepared to make a responsible prosecutorial decision about whether to charge these cases in another two years or so.

Update: Typo in table fixed.