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After Engaging in Multiple Overt Acts Benefitting a Conspiracy, Bill Barr Had Kerri Kupec Commit the Most Overt Act

Before I get into how gullible DOJ reporters continue to be in this WaPo story relaying how Bill Barr refused to publicly announce that the President broke no law in his July 25 phone call with Volodymyr Zelensky, let me review a series of overt acts that might fairly be deemed part of what DOJ has already charged as a conspiracy.

DOJ fails to do the most basic “connect-the-dots” assessment implemented after 9/11

First, after John Demers went to the White House and discovered that his boss was implicated in a phone call that a whistleblower had complained about, when the Intelligence Community Inspector General sent a more formalized complaint to DOJ, DOJ limited the scope of their review of the complaint to one small part of it, just the TELCON, not the full complaint. This had the effect of preventing anyone from doing what the entire surveillance apparatus of FBI has been designed to do since 9/11, which is to search in their databases for all the people mentioned in a lead to find out if that lead connects to other known criminals. Here’s some of what DOJ knew when on the Ukraine investigation.

Had anyone followed the standard connect-the-dot rules in reviewing the whistleblower complaint, they would have searched on all the names in the references in the complaint, including those in this OCCRP piece, which was mentioned multiple times in the complaint.

That piece is a profile of Igor Fruman and Lev Parnas.

So if any person reviewing the whistleblower complaint had followed the approach put into place to protect the nation after 9/11, that person would have discovered:

  • Fruman and Parnas were making big donations to Republicans tied to certain policy outcomes and paying for those donations through a shell company
  • Parnas was also involved in propaganda sent, on White House stationery, to State in support of the same policy outcomes
  • The money for the shell company came from a lawyer who specializes in laundering money through real estate for foreigners
  • One policy issue Fruman and Parnas were pushing with their donations was one of the policy outcomes described in the Trump-Zelensky call, the withdrawal of Marie Yovanovitch

In short, there is no way a competent investigator would have done a connect-the-dots assessment on the whistleblower complaint and not realized it was closely related to a Full Investigation bearing down on an indictment in SDNY.

Instead of doing that marginally competent assessment, DOJ instead gave the whistleblower complaint the all-clear, in part by severing the transcript (which was damning enough) from the backup (which described OMB withholding funds, which is a separate crime, but also included the reference to the profile on suspects against whom SDNY had a fully predicated investigation into related actions). The decision to consider only the transcript affirmatively prevented DOJ from doing the kind of dot-connecting everything since 9/11 has claimed to support.

Whoever made that decision — whether willfully or unknowingly — prevented DOJ from formally realizing that the President’s call was closely tied to behavior that DOJ would indict less than two months later.

DOJ fails to share the whistleblower complaint with the FEC

At that point in late August, having decided that no crimes were committed, DOJ should have shared the whistleblower complaint — which even DOJ acknowledged raised possible election related crimes — with the Federal Election Commission under the terms of a Memorandum of Understanding they have. As of October 18, according to a letter from Ellen Weintraub responding to questions from Amy Klobuchar, DOJ had not done so.

This is the second time that you, as Ranking Member of the Senate Rules Committee with jurisdiction over federal elections, have written to commissioners of the Federal Election Commission to get a simple Yes or No answer to the question: Did the Department of Justice (DOJ) notify the FEC about or refer to the FEC a campaign finance complaint regarding potential violations of the foreign national political-spending ban by the President? Your October 2 letter specifically referenced a New York Times op-ed referring to a complaint reportedly originating with the Office of the Inspector General of the Intelligence Community.1 As noted in the Commission’s October 8 response, the FEC does not generally confirm or deny the agency’s receipt of notice or a referral from DOJ.2 However, you have asked me an important question in the exercise of your oversight authority, and commissioners should be responsive if it is legal for us to do so. It is.

For these reasons, I am answering your question: No. The FEC has not received a notification or referral from DOJ regarding the complaint you reference.

While DOJ is empowered to make any decisions about whether the call involved a crime, FEC is empowered to make decisions about whether it merits a civil penalty. And FEC might have connected the dots DOJ failed to. They would have seen that the phone call related to a campaign finance complaint plus follow-up it had already received on Parnas and Fruman, so it would have known almost as much as DOJ, had DOJ tried to connect the dots.

It turns out, it is a crime to prevent the FEC from learning information it needs to do its job. It’s not only the crime DOJ is about to charge the Russian Internet Research Agency trolls with a superseding indictment for, but it’s the crime that SDNY charged Parnas and Fruman with even before Weintraub sent her letter.

DOJ might have decided that they didn’t need to forward the complaint because Republican Matthew Petersen resigned from the FEC on the suspiciously timed August 26 and so ensured FEC couldn’t conduct any official business. But as the timing of the Parnas and Fruman indictment — which Bill Barr knew about — makes clear, DOJ still believes it can charge people for withholding information from FEC.

DOJ delays notifying Congress and hides Bill Barr’s involvement by overclassifying their OLC memo

Then, having prevented FEC from receiving information that would alert them that the President had a dodgy call that related to an existing campaign finance complaint, OLC tried to prevent Congress from learning of this — as required by whistleblower laws — by writing an OLC memo saying that this complaint did not amount to an official action.

OLC head Steve Engel wrote that memo on September 3, by which day DOJ should have alerted the Intelligence Committees of the complaint. That memo was used as an excuse to delay informing Congress. That delay included over a week during which the Administration continued to illegally withhold duly authorized security funding from Ukraine without explaining to Congress why it was doing so, a delay that Bill Taylor said (in his testimony to Congress) did real harm to Ukraine. All told, the OLC memo succeeded in delaying sharing the complaint with Congress for 23 days, something that DOJ’s own Inspector General noted (in a letter written on behalf of 70 Inspectors General) was a clear violation of the Intelligence Community Whistleblower Protection Act.

As Congress has done in every other whistleblower law passed since 1978, it entrusted IGs to play a central role in the evaluation of the information provided. Specifically, the ICWPA requires an IG to make within 14 days a factual determination as to whether an alleged urgent concern provided to the IG “appears credible.” If the IG determines that the allegation appears credible, which necessarily includes a determination by the IG that it involves an “urgent concern,” the IG is required to forward the allegation to the head of the agency and the agency head “shall” forward it to Congress within 7 days “with any comments.” The ICWPA’s use of the word “shall” makes it clear that the statute does not authorize the agency head, or any other party for that matter, to review or second-guess an IG’s good faith determination that a complaint meets the ICWPA’s statutory language.

Worse still, DOJ tried to delay informing Congress that Bill Barr was personally implicated by this call by overclassifying the OLC memo — in part by treating Barr’s implication in it, which the White House had deemed Secret, as Top Secret — and having done so, sharing a water-downed version of its own OLC memo with Congress on September 24 that hid Barr’s role and other key details.

Bill Barr continues to engage in overt acts in a conspiracy to provide John Durham propaganda to support an investigation into those who investigated Trump

And all this while — in the period while DOJ was scoping its own investigation to avoid connecting the dots and while DOJ was preventing FEC from learning of the whistleblower complaint and while DOJ was preventing Congress from receiving the complaint (the latter two acts in contravention of the law) — Bill Barr continued to engage in overt acts in the broader conspiracy to collect and provide to John Durham corroboration (no matter how sketchy or obviously coerced) that the investigation into Trump’s ties to Russia was ginned up by the Deep State.

Mind you, Barr may have already committed an overt act in the Ukrainian side of this conspiracy. By September 25, according to a DOJ statement, individual Ukrainians had already “volunteered” information to Durham.

A Department of Justice team led by U.S. Attorney John Durham is separately exploring the extent to which a number of countries, including Ukraine, played a role in the counterintelligence investigation directed at the Trump campaign during the 2016 election,” DOJ spokeswoman Kerri Kupec said Wednesday. “While the Attorney General has yet to contact Ukraine in connection with this investigation, certain Ukrainians who are not members of the government have volunteered information to Mr. Durham, which he is evaluating.”

Barr is micromanaging Durham’s investigation, so there’s little chance that these “volunteers” got from Rudy Giuliani to Durham without Barr’s own involvement.

In addition, Barr took a meeting with Victoria Toensing and Joe DiGenova to talk about their client, the mobbed up Dmitry Firtash, which was something valuable the lawyers could offer to the Firtash in exchange for him funding the Parnas and Fruman influence operation. To be sure, the Supreme Court has determined that taking a meeting does not amount to a thing of value amounting to bribery. But their ability to get such a meeting was nevertheless one of the reasons Firtash replaced Lanny Davis with Toensing and DiGenova and, in exchange, helped them feed propaganda to the Durham investigation.

The head of the Criminal Division, Brian Benczkowski, also took a meeting with Rudy in this time period (it’s unclear which client Rudy was pitching), but he claims to be unaware of the investigation into Rudy that was ongoing at SDNY, which may well be true but if so is tantamount to a confession that Benczkowski did not attempt to connect any dots on the whistleblower complaint.

But as to Barr, even as this story was breaking, Barr was in Italy pretending to be a Line FBI Agent, watching movies created by the Russian linked lawyer for Joseph Mifsud, in hopes of getting Italy to tell him and Durham that Mifsud was actually a Western intelligence asset and not the Russian one that Mueller (and abundant public evidence) suggested him to be.

In other words, by September 25, someone had already shared “evidence” with the Barr-micromanaged Durham investigation from the Ukrainian side of this information operation, and Barr was in Italy looking for more propaganda, to say nothing of how his meeting with Dmitry Firtash’s lawyers helped fund the information operation.

Barr did not publicly exonerate Trump personally — he had Kerri Kupec do it for him

I apologize for being long-winded. But all that is the necessary context that DOJ beat reporters should bring to a story on what Barr did in response to a request from Trump to make a public statement exonerating the President. Here’s the news in the WaPo piece, amid a bunch of Barr’s past PR and absent most of the details I’ve laid out above.

President Trump wanted Attorney General William P. Barr to hold a news conference declaring that the commander in chief had broken no laws during a phone call in which he pressed his Ukrainian counterpart to investigate a political rival, though Barr ultimately declined to do so, people familiar with the matter said.

The request from Trump traveled from the president to other White House officials and eventually to the Justice Department. The president has mentioned Barr’s declination to associates in recent weeks, saying he wished Barr would have held the news conference, Trump advisers say.

[snip]

The request for the news conference came sometime around Sept. 25, when the administration released a rough transcript of the president’s July phone call with Ukrainian President Volodymyr Zelensky.

[snip]

As the rough transcript was released, a Justice Department spokeswoman said officials had evaluated it and the whistleblower complaint to see whether campaign finance laws had been broken, determined that none had been and decided “no further action was warranted.”

It was not immediately clear why Barr would not go beyond that statement with a televised assertion that the president broke no laws, nor was it clear how forcefully the president’s desire was communicated. A Justice Department spokeswoman declined to comment. A senior administration official said, “The DOJ did in fact release a statement about the call, and the claim that it resulted in tension because it wasn’t a news conference is completely false.”

So, at a time after someone had already shared Ukrainian information with the Barr-micromanaged Durham investigation, after Barr had met with lawyers who were trading that access for propaganda to feed Durham, after Barr’s DOJ had scoped the whistleblower complaint to ensure it would not tie the complaint to the fully predicated criminal investigation in SDNY, after DOJ failed to turn over the complaint to FEC as required by a memorandum of understanding, after DOJ created an excuse to delay sharing the whistleblower complaint with Congress as mandated by law, after DOJ tried to hide Barr’s own involvement from Congress by overclassifying that fact … after all those overt acts that, depending on Barr’s understanding of what he got briefed way back in February and learned in multiple different ways since then, might amount to overt acts in the conspiracy SDNY has already charged Parnas and Fruman in, Barr declined to go out before cameras and comment on an ongoing investigation (which is, remember, what Jim Comey was ostensibly fired for) by publicly exonerating the President.

Instead, he had DOJ’s spox Kerri Kupec do so, in a statement that offered up excuses for why DOJ failed to connect the dots on a complaint that tied to a fully predicated investigation being conducted by SDNY.

Had Barr made that public comment, with his knowledge that the subject of the complaint connected to an ongoing investigation in SDNY into the underlying information operation that led up to the President’s call, his involvement in the Durham investigation that had already been fed by that information operation, and his meeting with lawyers that helped to provide a payoff for some of that information operation, it would have been an overt act that even Barr, with his abundant flair for PR (as witnessed by this WaPo article), could not deny was an overt act in a conspiracy being investigated by his subordinates.

So instead, he had a different subordinate (there is no evidence Kupec had any knowledge of these other acts) do that.

But that is not — as portrayed by the WaPo — evidence of distance between Barr and the White House. Rather, it’s evidence that Barr recognizes his own risk of becoming an active member of the conspiracy his DOJ went to great lengths to avoid investigating.

And all that’s before Barr slinked into a meeting with Rupert Murdoch as Sean Hannity was about to become part of the conspiracy.

Main Justice Now Looking for the Evidence in Plain Sight They Ignored in August

Along with more background about Rudy Giuliani’s legal troubles, Politico reports that Main Justice is now getting more involved in SDNY’s investigation of Rudy’s sleazy influence peddling.

According to a person close to the investigation, DOJ’s criminal division and SDNY have been pressed to more proactively work together in light of public confusion surrounding the department’s past statements on the campaign finance non-charging decision and the Giuliani meeting. This “happens all the time at DOJ, just usually not in such a high-profile case,” the person said. “It will lead to a natural decision to bring the resources together and to make sure they act at least in parallel and probably in coordination and not antagonistic to each other.”

A DOJ spokesperson declined to comment when asked about SDNY and the criminal division working in tandem.

A move to bring department headquarters — “Main Justice” as its widely known — deeper into the Giuliani probe is causing heartburn at SDNY, which is widely known for its autonomy and reputation as the “Sovereign District of New York.”

“You lose a certain amount of nimbleness and a certain amount of independence because now you are answering to someone above you,” explained a former senior SDNY official who said there’s “no way that Main Justice is not involved.”

As the quote from SDNY makes clear, this is probably partly an attempt by Bill Barr and Brian Benczkowski to limit the damage that the Lev Parnas and Igor Fruman prosecution can do to the President, even though it’s crystal clear their crimes tie to the extortion the President was engaged in on his July 25 call with Volodymyr Zelensky. The focus on Rudy suggests he may be the scapegoat, who must be aggressively prosecuted as a way to avoid prosecuting the President, which probably explains why the man who, 18 months ago, was brokering a pardon to keep Michael Cohen silent, is now publicly campaigning for his own pardon.

But Main Justice’s bigfooting into SDNY probably serves another purpose: it helps Benczkowski and others avoid obstruction charges for actions they took to ensure that the August assessment of the whistleblower complaint wouldn’t discover the obvious ties between the crimes that SDNY was about to charge and the President’s behavior.

As I have laid out, if the people at Main Justice had followed the protocols put into place after 9/11 — which includes a search of FBI’s existing holdings every time it gets a tip, particularly if the tip might indicate a tie to national security, as this one did — they would have found all the evidence of an influence campaign in DOJ’s possession.

At the time DOJ reviewed the whistleblower complaint, DOJ knew:

  • Lev Parnas and Igor Fruman were funded by big money from a lawyer who specializes in laundering money through real estate for foreigners
  • They were spending those funds, via a shell company, to make big donations to Republicans (including $325,000 to Trump’s SuperPAC)
  • Those donations were tied to specific asks about Ukraine
  • Rudy was working with Parnas and Fruman to share disinformation with multiple parts of government
  • One goal of that disinformation — a successful one — was to get Marie Yovanovitch recalled

A search on Rudy’s name (or that of Parnas and Fruman, who were not named in the complaint but were included by multiple references in it to a profile on their operation), DOJ would have found all of this evidence, making it impossible to render the verdict — that no crime had been committed — that DOJ did. There’s simply no way a marginally competent assessment could have rendered that verdict.

And finding that evidence would have made it clear that Trump’s mention of Rudy’s shenanigans and Yovanovitch on the call tie his extortion to the crime SDNY was investigating (and has now charged).

Since that is public and obvious to anyone who knows how FBI is supposed to work, Main Justice has no choice but to show some interest in these crimes now or risk being part of the conspiracy.

Which is why DOJ is now telling Politico that the things they’ve previously said (which I’ve used to show that they affirmatively avoided connecting the dots in August) didn’t really mean what they obviously did mean at the time.

Additional attention to these issues has come from DOJ headquarters, which in August was tasked with examining Trump’s phone call asking Ukrainian President Volodymyr Zelensky to dig up dirt on the American leader’s political rivals. A statement released by DOJ spokeswoman Kerri Kupec in late September said the department’s criminal division reviewed the official record of the call “and determined, based on the facts and applicable law, that there was no campaign finance violation and that no further action was warranted.”

“All relevant components of the department agreed with this legal conclusion, and the department has concluded the matter,” Kupec said at the time.

A senior Justice Department official who spoke on condition of anonymity said Kupec’s Sept. 25 statement was limited to the campaign finance issue raised by a referral from the Intelligence Community Inspector General and was not intended to rule in or out the possibility of Justice officials examining any other legal issues related to the Trump-Zelensky call, if warranted.

If I were HJC, I’d submit a document request around the actions (not) taken in August — including DOJ’s failure to share the whistleblower complaint with the FEC, the same kind of conspiracy to prevent FEC from doing its job that the Russian trolls and Parnas and Fruman are being prosecuted for — and ask Michael Horowitz to review them. Because the efforts Main Justice is making now cannot undo the actions taken and not taken in August to prevent a thorough investigation of that complaint.

How DOJ Worked Overtime to Avoid Connecting the Dots in the Whistleblower Complaint

As the legal saga of Lev Parnas and Igor Fruman plays out against the background of an impeachment inquiry launched when DOJ tried to bury a whistleblower complaint, DOJ has been forced to offer a series of increasingly inconsistent explanations about who at DOJ knew what when. I’ve been working on a timeline examining What Did Bill Barr Know and When Did He Know It (that work in progress appears below). While I’m not ready to answer that question, one thing is clear: the personnel under Brian Benczkowski who reviewed and dismissed the complaint in August could not have followed normal process on assessing a referral if NYT’s reporting and Benczkowski’s most recent claims are true.

Benczkowski tries to prevent Rudy Giuliani from implicating him in his crimes

I’m speaking of a comment that Benczkowski had released to NYT for an October 20 story explaining why Benczkowski and fraud investigators would be willing to hear Rudy Giuliani pitch a client’s case when he was under active investigation for influence peddling in SDNY himself.

“When Mr. Benczkowski and fraud section lawyers met with Mr. Giuliani, they were not aware of any investigation of Mr. Giuliani’s associates in the Southern District of New York and would not have met with him had they known,” said Peter Carr, a department spokesman.

That comment was a response to this Rudy-sourced Ken Vogel story that revealed the meeting, though without any of the answers as to Who What When questions that normally appear in finished news stories. The story may have been Rudy’s attempt to do the same thing he did as his shenanigans at State became public, raise the costs of making him the sole scapegoat by making it clear that his activities had high level knowledge and approval by Trump officials at the agency in question. That is, Rudy may have been making sure that if he gets in trouble for influence peddling, Brian Benzckowski will be implicated as well.

Importantly, both NYT stories on the meeting say the meeting happened a few weeks before October 18, a timeline that DOJ sources may be walking back in time considerably to “earlier this summer” included in this CNN article. One of the only ways for all these descriptions of timing be true is if the meeting took place around September 20, which would make it highly likely it involved Victoria Toensing, since Rudy was pictured meeting her and Lev Parnas across the street from DOJ that same day. (h/t DK for that insight) If it did (or if the descriptions of the meeting taking place a few weeks before October 18 are correct), then it means the meeting happened after DOJ reviewed and dismissed the whistleblower complaint about Trump’s July 25 call with Volodymyr Zelensky in late August.

As I’ll show below, the Peter Carr quote to the NYT might be true. But if it is, it means that well-connected Republicans can get a meeting with the Assistant Attorney General with almost no due diligence.

But if the Carr quotation is true (and if the timing of the meeting described to NYT is correct), then it is an on-the-record admission on behalf of Benczkowski that investigators working underneath him who reviewed and dismissed the whistleblower complaint did not follow procedures designed to keep our nation safe that have been codified since 9/11.

Benczkowski’s claim he didn’t know ignores what DOJ knew

Benczkowski’s explanation in the October 20 NYT story is based on a further one that suggests the only way he could have known about the criminal investigation into Parnas, Fruman, and Rudy is if a subordinate informed him directly.

While the Southern District of New York has been investigating Mr. Giuliani’s associates — an inquiry that may be tied to a broader investigation of Mr. Giuliani himself — prosecutors there had not told Mr. Benczkowski of the Criminal Division of the case, as he does not oversee or supervise their work. The United States attorney’s offices report to the deputy attorney general, Jeffrey A. Rosen.

Prosecutors in Manhattan informed Attorney General William P. Barr about the investigation of Mr. Parnas and Mr. Fruman soon after he was confirmed in February, according to a Justice Department official.

DOJ has locked into a statement that Bill Barr had been briefed on this investigation shortly after he was confirmed in February and repeatedly thereafter since the day the arrest of the Ukrainian grifters became public. But Benczkowski claims he didn’t know about it because he’s not in that chain of command. SDNY reports to the Deputy Attorney General, which would have been Rod Rosenstein when Barr was initially briefed, but would be Jeffrey Rosen in any of the briefings DOJ has admitted to since.

This table attempts to summarize what DOJ learned of Parnas, Fruman, and Rudy when. It’s incomplete in at least one important respect, as I’ll show. But it captures most of the ways DOJ and FBI would have been informed about parts of the Ukrainian grift.

Remarkably, we don’t yet know how the SDNY came to open the investigation. It could have been a Mueller referral, SDNY could have discovered the grift from something that happened in NYC (though the venue that ultimately got laid out in the indictment suggests the obvious signs of corruption took place in FL), or it could have stemmed from a Campaign Legal Center complaint filed with the FEC on July 25, 2018. But by the time Barr was briefed in February, we should assume that DOJ knew at least as much as CLC knew the summer before, which is that Parnas and Fruman had set up a shell company, Global Energy Producers, that they were using to make big donations to Republicans, including a $325,000 donation to a Trump SuperPAC just days after Parnas and Fruman met with Trump at the White House. That’s what Barr would have learned when he got briefed shortly after he was confirmed on February 14: that these Ukrainian-Americans were giving straw donations to Republicans in apparent coordination with key meetings with the recipients.

Here’s where the gap in this table comes in. Someone trying to spin the CNN for its version of the Benczkowski quote claimed that Rudy was not yet a focus of the SDNY investigation at the time Barr was briefed (the claim is silent, however, about all the other times Barr was briefed, per an October 10 statement from DOJ). Nevertheless, as CNN lays out, that claim is probably not true, because a NY lawyer was already getting questions from FBI counterintelligence agents by that time.

A person familiar with the matter said that at the time, Giuliani wasn’t a central figure in the case as he is now. That emerged in recent weeks, the person said.

Still, New York federal prosecutors had their eyes set on Giuliani months ago. A New York lawyer told CNN that FBI counterintelligence agents asked him questions in February or March related to Giuliani and his associates.

The day after the Ukrainian grifters’ arrest became public, NYT reported that Rudy was under investigation for FARA (for activities that extend well beyond his Ukraine work). Particularly given that the National Security Division is setting up a unit to prosecute FARA violations, that, plus the involvement of CI agents, should involve NSD and therefore would suggest that NSD head John Demers would know of the focus on Rudy. That can’t be guaranteed, however, because SDNY often does its own thing. So that’s the gap: We don’t know when Demers would have first learned that Rudy’s under investigation for his sleazy influence peddling.

We do know, however, that sometime in May, State Department’s Inspector General Steve Linick sent FBI (we don’t know which unit) the “Rudy Dossier,” the disinformation developed as part of his Ukraine work. Among the things that dossier includes is an email via which John Solomon sent a draft of this article to Rudy, Victoria Toensing, and Lev Parnas. Whoever received that dossier should have immediately identified that Parnas and Rudy were under active criminal investigation in SDNY for influence peddling, a topic on which that email would be directly relevant. In addition to Victoria Toensing and Rudy, the packet would also directly implicate the White House and Mike Pompeo, because the packet was sent under White House imprimatur to the Secretary of State. So by May, that dossier should have been in Parnas and Rudy’s investigative file. Except that, when Linick asked FBI if they were cool with him sharing the dossier with Congress, they were, which suggests it may not have been added to the investigative file.

Assuming that the vaunted SDNY is at least as sharp as a small campaign finance NGO, then by the time CLC updated their SEC complaint on June 20, SDNY would have known what that GEP’s straw donations (including a $325,000 donation to a Trump SuperPAC) came immediately after Parnas got a $1.2 million infusion from a lawyer who helps foreigners launder money through real estate, something that should have raised further counterintelligence and foreign campaign donation concerns.

After that, the whistleblower complaint comes into DOJ, in two different forms. The first time, it comes when CIA General Counsel Courtney Simmons Elwood and White House Associate Counsel John Eisenberg inform John Demers (who, remember, may or may not know about a FARA investigation into Rudy by this point). Demers went to the White House and reviews the transcript, which would have informed him that multiple people were concerned about the call, that Trump invoked both Rudy and Demers’ boss, Bill Barr, on the call, and that Trump was soliciting dirt related to both the investigation into the Russian operation in 2016 (ongoing parts of which Demers still oversees) and Trump’s imagined 2020 opponent, Joe Biden. If Demers did know that Rudy was under investigation for FARA at this time, Trump’s request that Ukraine share dirt with Rudy would have been directly relevant to that investigation, but in a way that implicated Demers’ boss as well. In any case, a simple database search would have revealed that, along with the $1.2 million cash transfer raising additional concerns about foreign money backing those campaign efforts.

Demers’ reported response to reading the transcript was to tell Brian Benczkowski (who claims not to have known about Parnas and Fruman, but whose Peter Carr quote was silent about whether he knew of any investigation into Rudy) and Jeffrey Rosen (who was probably confirmed after Barr’s first briefing on Parnas and Fruman, but who is currently Geoffrey Berman’s supervisor and so should be in the loop in the subsequent briefings that DOJ admitted Barr had after that initial briefing.

According to public reports, DOJ did nothing with this initial complaint.

DOJ avoids (admitting to) reviewing the full whistleblower complaint based off a false claim it doesn’t include direct knowledge

But then the whistleblower tried again, going to the Intelligence Community Inspector General and writing up his complaint, which then got referred to Brian Benczkowski and some public integrity investigators. According to Kerri Kupec, here’s what happened next.

In August, the Department of Justice was referred a matter relating to a letter the director national intelligence had received from the inspector general for the intelligence community regarding a purported whistleblower complaint. The inspector general’s letter cited a conversation between the president and Ukrainian President Zelensky as a potential violation of federal campaign finance law, while acknowledging that neither the inspector general nor the complainant had firsthand knowledge of the conversation,” Kupec said.

“Relying on established procedures set forth in the justice manual, the department’s criminal division reviewed the official record of the call and determined based on the facts and applicable law that there was no campaign finance violence and that no further action was warranted. All relevant components of the department agreed with this legal conclusion, and the department has concluded this matter,” Kupec concluded.

In another statement, Kupec said that Barr had not spoken with Mr. Trump about Ukraine investigating Biden, and that the president had not asked Barr to contact Ukraine or Giuliani.

In explaining how DOJ came to dismiss this complaint, Kupec cites not from the complaint itself, but from Michael Atkinson’s letter conveying the complaint. Kupec cites from the letter, which notes the whistleblower “was not a direct witness to the President’s telephone call,” and uses that to treat only the transcript of the call — not the broader whistleblower complaint itself, which does include firsthand knowledge — as the official record. And, having referred to just the call, DOJ viewed this as exclusively a campaign finance matter, and therefore dismissed it (DOJ ignores another crime laid out in Atkinson’s letter, a crime Mick Mulvaney has now confessed to, but I’ll come back to how they managed to ignore that).

In fact, parts of the whistleblower complaint make it clear that he was a direct witness to aspects of his complaint, and so DOJ should have treated the complaint itself as an official document (this is why the frothy right invested so much energy into the goddamned whistleblower form, to rationalize DOJ’s decision not to read the actual complaint).

Had DOJ read the complaint and done the most basic investigative work on the materials included in the complaint, they (including Benczkowski) would have known that Trump’s call related directly to matters under active investigation in SDNY.

While the whistleblower complaint does not mention Parnas and Fruman by name, it repeatedly invokes this OCCRP profile (see footnotes 4, 9, 10, 11), The profile would have made it crystal clear — if DOJ’s investigators couldn’t figure it out for themselves — how the evidence that SDNY was already reviewing (including the campaign finance stuff and the Rudy dossier) connected directly with the July 25 call.

Since early last year, the men have emerged from obscurity to become major donors to Republican campaigns in the United States. They have collectively contributed over half a million dollars to candidates and outside campaign groups, the lion’s share in a single transaction that an independent watchdog has flagged as a potential violation of electoral funding law.

The men appear to enjoy a measure of access to influential figures. They’ve dined with Trump, had a “power breakfast” with his son Donald Jr., met with U.S. congressmen, and mixed with Republican elites.

Months before their earliest known work with Giuliani, Parnas and Fruman also lobbied at least one congressman — former U.S. Rep. Pete Sessions, a Texas Republican — to call for the dismissal of the United States’ ambassador to Ukraine, Marie Yovanovitch. She stepped down a year later after allegations in the conservative media that she had been disloyal to Trump.

While setting up meetings for Giuliani with Ukrainian officials, the men also promoted a business plan of their own: Selling American liquefied natural gas to Ukraine to replace Russian imports disrupted by war.

Three days before the call itself, OCCRP and BuzzFeed had already laid out parts of the crime that SDNY has since indicted. And that profile was part of the whistleblower complaint provided to DOJ, in which DOJ claimed they could find no evidence of a crime.

FBI’s three investigative levels are Full Investigations (opened once FBI has evidence that a crime has occurred), Preliminary Investigations (opened once FBI has reason to believe a crime has been committed), and Assessments (the work FBI does to assess the credibility of tips). FBI Agents are expected — encouraged, explicitly, as a matter of national security — to do searches of FBI’s existing investigative databases at the Assessment level. They do this not just to make sure that suspected foreign agents like Parnas and Fruman aren’t allowed to insinuate themselves into top tiers of power unnoticed, but also for deconfliction, to make sure DOJ knows precisely which part of DOJ is investigating which people.

Had FBI followed its DIOG based on the information included in the whistleblower complaint, it would have been crystal clear that the July 25 call related to an ongoing Full Investigation, and the July 25 call — and the President’s extortion — would have been made part of that investigative record.

The Criminal Division Chief has confessed it did not follow protocols in reviewing this complaint

All of which brings me full cycle to DOJ’s efforts to pretend they didn’t know that Rudy was a suspected criminal when they met with him to discuss the accused criminals he represents.

Brian Benczkowski, the head of the Criminal Division (and yet, someone who has never prosecuted a case), claims that he had no way of knowing that Rudy Giuliani’s clients and co-conspirators were about to be indicted when he met with Rudy on some date no one wants to reveal. That may be true — though if it is, it means either his staffers did almost no due diligence before setting up that meeting, or the fact that Rudy, in addition to Parnas and Fruman, was under active investigation did not dissuade Benczkowski from taking the meeting.

But, if the meeting took place after the whistleblower review, as multiple reporters at NYT seem to believe it did, for him to claim that he didn’t know about Parnas and Fruman also amounts to an explicit confession that the investigators reviewing the whistleblower complaint did not follow FBI guidelines requiring them to look up all the names in a tip to see if the FBI already knows about them.

That is, Brian Benczkowski, in trying to claim ignorance of Rudy’s own legal problems in advance of that meeting, confessed that his division, hiding behind whatever false excuses, did not properly investigate the whistleblower complaint.


February 14: Barr sworn in.

February, undated: Barr and Public Integrity lawyers reporting to Brian Benczkowski briefed on investigation into Lev Parnas and Igor Fruman, though NYT reported lawyer questioned about Rudy in that time period.

March 5: Barr briefed on Mueller investigation.

March 22: Mueller investigation concludes.

March 24: Barr releases misleading “summary” of Mueller Report.

March 26: John Solomon posts column first reviewed by Joe DiGenova, Victoria Toensing, and Lev Parnas

April 19: DOJ releases redacted Mueller Report.

May, undated: State IG Steve Linick receives Rudy dossier, passes on to FBI.

May 31: Barr does interview explaining his Durham investigation without once explaining any irregularities to justify investigation.

June 20: Campaign Legal Center submits supplemental complaint to FEC.

July 18: OMB informs Departments that Trump has ordered suspension of all aide to Ukraine.

July 25: Trump-Zelensky phone call.

Week after call: Whistleblower informs CIA General counsel Courtney Simmons Elwood, who speaks several times to NSC lawyer John Eisenberg.

August 12: Date of whistleblower complaint.

August 14: Elwood and Eisenberg inform National Security Division head, John Demers.

August 15: Demers reads transcript of call. Senior DOJ officials, including Jeffrey Rosen, Brian Benczkowski, and Barr informed.

The deputy attorney general, Jeffrey A. Rosen, and Brian A. Benczkowski, the head of the department’s criminal division, were soon looped in, according to two administration officials.

Department officials began to discuss the accusations and whether and how to follow up, and Attorney General William P. Barr learned of the allegations around that time, according to a person familiar with the matter. Although Mr. Barr was briefed, he did not oversee the discussions about how to proceed, the person said.

August 26: IG Michael Atkinson hand delivers message on whistleblower complaint to Acting DNI Joseph Maguire.

September 3: Original classified OLC memo deeming the whistleblower complaint “not urgent,” treating Barr’s involvement as Top Secret.

September 20: Rudy, Parnas, Victoria Toensing and Joe DiGenova lunch at Trump International across the street from DOJ. Rudy also attends State Dinner for Australia.

September 24: Declassification of Telcon. Version of OLC memo hiding Barr’s involvement as classified issue.

September 26: Release of TelCon and whistleblower complaint. Justice Department explains non-prosecution:

In August, the Department of Justice was referred a matter relating to a letter the director national intelligence had received from the inspector general for the intelligence community regarding a purported whistleblower complaint. The inspector general’s letter cited a conversation between the president and Ukrainian President Zelensky as a potential violation of federal campaign finance law, while acknowledging that neither the inspector general nor the complainant had firsthand knowledge of the conversation,” Kupec said.

“Relying on established procedures set forth in the justice manual, the department’s criminal division reviewed the official record of the call and determined based on the facts and applicable law that there was no campaign finance violence and that no further action was warranted. All relevant components of the department agreed with this legal conclusion, and the department has concluded this matter,” Kupec concluded.

In another statement, Kupec said that Barr had not spoken with Mr. Trump about Ukraine investigating Biden, and that the president had not asked Barr to contact Ukraine or Giuliani.

September 29: AP claims Barr was “surprised and angry” when he learned he had been lumped in with Rudy. His further denials include a lot of wiggle room (including unofficial contacts).

Barr has not spoken with Trump about investigating Biden or Biden’s son Hunter, and Trump has not asked Barr to contact Ukranian officials about the matter, the department said. Barr has also not spoken with Giuliani about anything related to Ukraine, officials have said.

October 1: State IG Steve Linick briefs Congress on opposition packet routed to him from Pompeo. Preservation letters to Parnas and Fruman.

October 4: Initial rough date for Rudy meeting with Benczkowski.

October 9: Parnas and Fruman lunch with Rudy at Trump Hotel across from DOJ, later that eventing they are indicted and arrested.

October 10: Lev Parnas and Igor Fruman arrest unsealed. Anonymous DOJ sources report that Barr was briefed in February and “in recent weeks.”

Attorney General William Barr was briefed on the case in February, shortly after he was confirmed. Barr has received additional briefings in recent weeks and fully supports the case.

October 11: NYT reports that Rudy under investigation for Ukraine work.

October 18: NYT reports that Rudy was lobbying Brian Benczkowski and lawyers from Fraud section “a few weeks ago” about a very sensitive bribery case.

October 20: NYT story with on-the-record quote from Peter Carr states Benczkowski and fraud section lawyers would not have met with Giuliani if they had known of the investigation of his associates; it describes the meeting as taking place “several weeks ago.”

October 21: CNN adds DOJ clarification that Rudy was not central to investigation briefed to Barr in February, even though CI Agents were questioning witnesses by March, and that Public Integrity lawyers (who report to Benczkowski) were briefed.

The CIA Affiliation of the Whistleblower Isn’t the Key, It’s CIA General Counsel’s Role in a Cover-Up

The second paragraph of the NYT story that identified that the Ukraine whistleblower as a CIA employee describes the CIA’s General Counsel, Courtney Simmons Elwood, telling first the White House and then DOJ about the complaint.

The officer first shared information about potential abuse of power and a White House cover-up with the C.I.A.’s top lawyer through an anonymous process, some of the people said. The lawyer shared the officer’s concerns with White House and Justice Department officials, following policy.

Starting on paragraph 15, the NYT provides more details about how and why Elwood responded to a whistleblower complaint by running to the people who were implicated by it (and note, it says this was proper, as it may well have been — I’m not saying Elwood has legal exposure here).

The week after the call, the officer delivered a somewhat broad accusation anonymously to the C.I.A.’s general counsel, Courtney Simmons Elwood, according to multiple people familiar with the events. The initial allegations reported only that serious questions existed about a phone call between Mr. Trump and a foreign leader.

As required by government policy, Ms. Elwood had to assess whether a “reasonable basis” for the accusation existed. During the preliminary inquiry, Ms. Elwood and a career C.I.A. lawyer learned that multiple people had raised concerns about Mr. Trump’s call.

Ms. Elwood also called John A. Eisenberg, a deputy White House counsel and her counterpart at the National Security Council, according to three people familiar with the matter. He was already aware of vague concerns about the call.

Ms. Elwood, Mr. Eisenberg and their deputies spoke multiple times the following week. They decided that the accusations had a reasonable basis.

Mr. Eisenberg and Ms. Elwood both spoke on Aug. 14 to John Demers, the head of the Justice Department’s national security division, according to three people familiar with the discussion. Ms. Elwood did not pass on the name of the C.I.A. officer, which she did not know because his concerns were submitted anonymously.

The next day, Mr. Demers went to the White House to read the transcript of the call and assess whether to alert other senior law enforcement officials. The deputy attorney general, Jeffrey A. Rosen, and Brian A. Benczkowski, the head of the department’s criminal division, were soon looped in, according to two administration officials.

Department officials began to discuss the accusations and whether and how to follow up, and Attorney General William P. Barr learned of the allegations around that time, according to a person familiar with the matter.

A CNN story provided the detail that NYT (and AP) missed: when and how Barr learned he was implicated personally.

Demers went to the White House to review the transcript of the call on August 15. His office then alerted other senior Justice officials that Barr was mentioned on the call.

Since they NYT story came out, a lot of people have attacked it for revealing where the whistleblower worked. Dean Baquet claimed they did so to lend credibility to the story, a thoroughly ridiculous explanation (especially in the wake of the transcript release, which made it clear the complaint was corroborated by the White House’s own record of the call).

What is, instead, the important detail is that everything Elwood did in the wake of receiving the report, whether intentionally or not, not only served a cover-up, but also put the whistleblower at heightened risk. We may not know the ID of the whistleblower, but the White House, which now includes all the former Devin Nunes aides who were so critical to blowing up the Russian investigation in 2017, would have been able to identify who was seconded to the White House as soon as Elwood brought the complaint to the White House. And Elwood is, in significant part, responsible for that. So it’s not the whistleblower’s affiliation, but Elwood’s, that’s important, and Elwood’s alone identifies where the whistleblower works (and did, for the White House, over a month ago).

The really important part of this story — which is clarified when adding the CNN detail that Demers and Brian Benczkowski and Jeffrey Rosen knew their boss was directly implicated when they decided to scope the prosecutorial analysis very narrowly, completely ignoring the kind of quid pro quo that the Constitution explicitly names as a reason to impeach the President — is that those implicated had the opportunity to cover-up the investigation even before the whistleblower filed his formal complaint. And once he did that, DOJ did things (may have felt forced to) that tried to further suppress their earlier decisions, most notably by getting an OLC opinion that ruled the proper resolution of the complaint — which OLC deemed not to be urgent because it ignored that Bill Barr, the State Department, and those who hid the communications on the covert server were also implicated, and by association Barr’s efforts to feed intelligence into John Durham’s investigation — was to have people at FBI reporting to Bill Barr investigate. Whether the implication of those others makes this an IC complaint (the most obvious way it does is in the abuse of classification authority to hide the transcript) is a matter requiring analysis, analysis that Bill Barr’s direct report, Steven Engel, did not do.

And that’s the point (or should have been): The NYT named a number the people who may be involved in this cover-up: John Eisenberg, John Demers, Brian Benczkowski, Jeffrey Rosen, and CIA General Counsel Courtney Simmons Elwood. Elwood is the one who first approached the problem in such a way that a cover-up would be possible.

Yes, by relaying that detail, the NYT told all of us that the whistleblower is a CIA employee. But the people involved in the cover-up, and the firebreathers at NSC, already knew that.

Matt Whitaker Has Authority to Share Proceedings of National Security Grand Jury Investigations with Trump

Just over a year ago, I worried that if and when Brian Benczkowski was confirmed as DOJ Criminal Division chief, it would probably provide Trump with a mole in the Mueller investigation. It took Benczkowski a long time, but after he was confirmed on July 11 of this year, he may have gotten visibility into parts of the Mueller investigation that relied on Criminal Division resources.

Whether or not Benczkowski shared anything he may have learned with Trump, we can be fairly certain that Matt Whitaker, whom Trump has just made Acting Attorney General, could share the information. Authority to do so stems from an OLC memo Jay Bybee wrote back in 2002.

Benczkowski could share information about wiretaps and proceedings from the grand jury directly with the president.

The cause for concern comes from an old Department of Justice interpretation of the PATRIOT Act. Along with expanding surveillance authorities, the PATRIOT Act permitted any government lawyer to share national security-related grand jury or wiretap information with any government official as long as it would help them perform their job better. The measure was passed in response to the September 11 attacks, with an eye to sharing counterterrorism information more broadly. But the authorization of such sharing explicitly extended to “clandestine intelligence activities by an intelligence service or network of a foreign power or by an agent of foreign power”—precisely the kind of nation-state spying at the heart of the Russian investigation.

July 22, 2002, memo from the Justice Department’s Office of Legal Counsel, written by Jay Bybee, the author of the infamous torture memos, held that, under the statute, the president could get grand jury information without the usual notice to the district court.

[snip]

Bybee’s memo relies on and reaffirms several earlier memos. It specifically approves two rationales for sharing grand jury information with the president that would be applicable to the Russian investigation. A 1997 memo imagined that the president might get grand jury information “in a case where the integrity or loyalty of a presidential appointee holding an important and sensitive post was implicated by the grand jury investigation.” And a 2000 memo imagined that the president might need to “obtain grand jury information relevant to the exercise of his pardon authority.”

The memo envisioned such authority to be delegable, but ultimately puts the AG in charge of deciding what information the President gets.

The 2002 memo generally supports the notion that the attorney general should decide whether the president needs to see a particular piece of information.

And it doesn’t require any paper trail for the sharing of such information.

And the memo cites an old opinion from the Iran-Contra scandal to argue that the president doesn’t have to memorialize any such delegations in writing. “Such a directive may be set forth in a formal executive order, in a less formal presidential memorandum, … or pursuant to an oral instruction from the President to the Attorney General or other appropriate officials.” So Trump could order someone to share information without leaving a paper trail.

Given that the entire purpose of this move seems to be about tampering with the Mueller inquiry, we should assume Whitaker will do as imagined, and let the President know what Mueller has been up to.

Graphic: Quino Al via Unsplash (mod by Rayne)

Three Things: Call, Call, Call!

[As always, note the byline — this isn’t Marcy’s post. / ~Rayne]

Dial (202) 224-3121.

If you don’t already have this number memorized or logged as a contact, have it tattooed on your body where you can see it. Afraid of needles? Use henna for a temporary tattoo. You’re going to need this number until Congress breaks before the mid-term elections.

~ 3 ~

The White House’s occupant was supposed to announce today the nominee to replace Justice Anthony Kennedy. Call your senators and tell them to refuse to hold hearings on this nomination.

If they are GOP, tell them it’s too close to the mid-term elections and the people deserve to have a say — in short, use the same argument Mitch “Turtlehead” McConnell used when he refused to hold a Judiciary Committee hearing to approve President Obama’s nominee, Merrick Garland.

If your senator(s) are Democrats or Independents, tell them they must deny a president who is under investigation any nominee to a lifetime seat as long as there is a cloud over the presidency. If they cannot fend off a Judiciary Committee hearing, insist they do not vote for any nominee who seeks to overturn Roe v. Wade. Nor should they confirm a justice who will not recuse themselves from any case against Trump or his campaign arising from Department of Justice investigations, nor should they approve a justice who believes the president is in any way above the law, immune in ways the public is not.

I’ve come to resist The Hill as it has become ridiculously biased, but this op-ed is worth a read: The ‘McConnell Rule’ is law, and Senate Democrats should sue to enforce it.

Live by Turtlehead’s rule, die by it.

Need a script for your calls? See Celeste Pewter at this link.

~ 2 ~

Your next call is again to your senators, this time on the nomination of Brian Benczkowski to the Department of Justice as Assistant Attorney General.

Senator Dick Durbin has already been working on this:

Read the letter’s text and the rest of his comments on Twitter at this link. Benczkowski’s nomination should be withdrawn; it is little more than another form of obstruction of justice.

This is another poisonous nomination; just as a president under investigation shouldn’t be permitted to appoint justices, neither should he be able to appoint nominees to the Justice Department with such serious conflicts related to the same investigation. Benckowski’s nomination is simply corrupt.

~ 1 ~

WHERE ARE THE CHILDREN?

Not the Thai students who’ve been trapped in cave but the thousands of children from infants to teens who have been separated from their asylum-seeking parents for no legal reason apart from institutionalized terror in the form of human trafficking.

The lack of a means to trace children as they were placed in camps, foster homes, gods know where else is a clear indication of intention: this administration meant for these children to be lost to their parents. This administration did not want to be held accountable by any tracking.

As I’ve said before, it’s criminal. Media shouldn’t expend one lick more time on scum like Alan Dershowitz (like The New York Times’ allocation of six journalists to his obstructionist ass) and instead should be hounding the government to find and unite these children with their parents, documenting application of immigration and asylum laws, and reporting on the creation of concentration camps (that’s exactly what they are).

Call your representatives in both houses of Congress and demand a legislative fix — Rep. Nadler’s Keep Families Together Act (HR 6135) and Sen. Schumer’s call for a Reunification Czar — to bar the executive branch from separating families. I also want to bar the use of military resources for this purpose.

See Celeste Pewter at this link if you need more overview and a script for calling.

Some of the children are being reunited under court order — like this one-year-old who appeared before a judge, alone — but if the government never had a plan in place to track children separated from families, how do we know all the children will be reunited?

~ 0 ~

Every Monday seems considerably worse, but I’m not going to face them on my knees. Instead I will be contacting Congress. What about you?

Alex Van Der Zwaan: “Gone Native”

Tomorrow, Alex Van der Zwaan, the former Skadden associate who unsuccessfully attempted to hide ongoing conversations between him, Rick Gates, Konstantin Kilimnik, and (presumably) Greg Craig that took place in September and October 2016 will be sentenced. The government is seeking prison time, his lawyers are seeking probation (in part to keep him out of our nightmarish deportation process).

In advance of the sentencing (and today’s filing explaining how all this is authorized under the Special Counsel mandate Rod Rosenstein gave to Mueller), I wanted to lay out a few more details revealed by the public documents in this case, including the prosecution and defense arguments on sentencing.

Taken together, the documents reveal a few interesting wrinkles.

First, the defense argues that Van der Zwaan didn’t hide the communications he had with Rick Gates and Konstantin Kilimnik in fall 2016 to hide the ongoing relationship Trump’s onetime campaign manager had with someone the FBI still believed had ties to GRU, the Russian intelligence agency behind the hack-and-leak of the DNC emails. Rather, his defense lawyers claim Van der Zwaan hid those things (or rather, attempted to hide them, using means it’s shocking a lawyer would believe might work) because he didn’t want to reveal to the Skadden lawyers who represented him in his first interview with Mueller’s team that he had recorded his conversations in that time period with Greg Craig.

He knew it was improper to have recorded his conversation with the Skadden senior partner; indeed, he understood that he could be fired for having done so. He also knew that a truthful disclosure about his September 2016 calls with Gates and Person A would almost inevitably lead to questioning that could quickly get to the existence of the recordings. During the interview, Alex was keenly aware that he was not speaking only to OSC. Alex was represented by Skadden lawyers, and anything he shared with the OSC would simultaneously be heard by Skadden. In his mind, his boss was listening to every word.

The explanation is unconvincing (so is his lawyers’ claim that Van der Zwaan couldn’t read the Ukrainian document he received). After all, Craig knew (and presumably has also told Mueller’s team unless he’s at legal jeopardy himself) of some of those emails. So Van der Zwaan was bound to be asked the same kinds of questions in any case. Which he was. Which is how he came to confess to making the recordings (and keeping his own notes) in the first place.

It’s not entirely clear why he made that recording. The defense filing claims he didn’t tell anyone about them. But given another detail laid out by all this paperwork, I at least wonder whether he intended to share it with Gates or Kilimnik.

Consider the “going native” claim made about Van der Zwaan by an unnamed witness (who might be Greg Craig).

Yet, although he had been instructed not to share advance copies of the report with the public relations firm retained by the Government of Ukraine, van der Zwaan had, in the words of one witness, “gone native”—that is, he had grown too close to Manafort, Gates, and Person A.

While we knew that Van der Zwaan had shared the Skadden report with Gates and Kilimnik back in 2012, in direct violation of Skadden’s wishes, the defense filing reveals another key detail. In 2012, either while he was moonlighting while being paid by Skadden to help Manafort, Gates, and Kilimnik spin the Skadden report to make the prosecution of Tymoshenko look kosher or just after, Van der Zwaan was talking about working for Manafort and Gates.

That’s another good reason to hide all this: Van der Zwaan was ignoring Skadden Arps instructions at a time when he was considering a job with Gates and Manafort, who weren’t technically the client, but who were laundering the money to pay Skadden with.

Finally, while I don’t make as much of the tie between Van der Zwaan and his father-in-law, Alfa Bank founder German Khan, as others do, the defense filing provides more details on when Van der Zwaan joined the family. He and Eva Khan first met in “spring” 2016; elsewhere that gets described as a year before their marriage, which took place in June 2017.

Which is to say, the entirety of Van der Zwaan’s relationship with the Khan family has taken place during the Russian operation and attempt to cover up the tampering in the US election.

Just for fun: Back in 2008, American diplomats passed on complaints about Khan’s heavy-handedness in the operations of BP Russia, including the anecdote that Khan said he considers The Godfather to be his “manual for life.”

At dinner that evening, Khan had told a stunned Summers that The Godfather was his favorite movie, that he watched it every few months, and that he considered it a “manual for life.”

There’s actually no reason to believe that Van der Zwaan would have become a valuable enough resource that Khan would marry off his daughter to him, Godfather like.

But Van der Zwaan’s behavior in 2016 may make better sense considering the full context of that “going native” comment.

Update: I see from Zoe Tillman’s coverage of Van der Zwaan’s sentencing (where he was given a month in jail) that his lawyers fibbed a bit when they said his second grand jury appearance was entirely voluntary.

[Andrew] Weissmann refuted the idea that van der Zwaan voluntarily came back to tell the truth, saying he had been served with a grand jury subpoena after his first meeting in November 2017 and would have been required to return to the United States anyway.


2012: Van der Zwaan working on Tymoshenko report in facilitating role

July to early August 2012: Van der Zwaan provides unauthorized copy of Skadden report on Yulia Tymoshenko to PR firm engaged by Ukraine’s Ministry of Justice

September 2012: Van der Zwaan provides Rick Gates talking points to spin Skadden report

2012-2013: Van der Zwaan conducts discussions over Gmail about working directly for Gates and Manafort; these were among the other materials Van der Zwaan attempted to destroy in advance of his Mueller interview

2014: Eva Khan moves to London to study art (she is 11 years younger than Van der Zwaan)

Spring 2016: Van der Zwaan and Eva Khan meet

September 2016: First public allegations of spam traffic between Trump marketing account and Alfa bank

September and October 2016:

Rick Gates contacts Van der Zwaan, urges him to contact Kliminik and sends him a document in Ukrainian

September 12, 2016: Van der Zwaan emails Konstantin Kilimnik, who asks him to contact him on Telegraph or WhatsApp

Van der Zwaan reports this to (presumably) Greg Craig

Van der Zwaan reports back to Gates

[These communications continue as a series]

January 2017: Paul Manafort provides Trump a strategy to rebut the Russian investigation by discrediting the Steele dossier

January 2017: Brian Benczkowski leaves transition team and returns to Kirkland & Ellis

March to May 2017: Pending Assistant Attorney General nominee Brian Benczkowski advises Alfa Bank on lawsuit against Buzzfeed

April 2017: Jeff Sessions asks Benczkowski if he wants to be AAG for Criminal Division

May 26, 2017: After months of consultation with Alfa Bank (and German Khan by name) sue Buzzfeed over the Steele dossier

June 2017: Van der Zwaan and Khan married; she applies for permanent residency as his spouse

Prior to November 3, 2017: Van der Zwaan gives Skadden his laptop from the 2012 time frame

October 3, 2017: Alfa Bank lawsuit is moved to federal jurisdiction

November 3, 2017: Van der Zwaan participates in eight hour voluntary interview, represented by Skadden Arps lawyers; during that interview, FBI confronts him with an email he withheld from Skadden’s discovery

November 16, 2017: Van der Zwaan returns to the US

November 17, 2017: Van der Zwaan surrenders his passport to the FBI and retains new counsel (this is probably when Skadden fired him)

November 29, 2017: Kilimnik emails Manafort for review of purportedly exonerating op-ed

December 1, 2017: Van der Zwaan’s second interview with FBI

February 14, 2018: Van der Zwaan agrees to plea deal

February 20, 2018: Van der Zwaan pleads guilty

February 23, 2018: Gates pleads guilty

May 2018: Date Van der Zwaan would have made partner

August 2018: Due date of Van der Zwaan son

Reasons Why Dems Have Been Fucking Stupid on the Steele Dossier: a Long Essay

Let me start this post by reposting in full my explanation of why Trump opponents are idiots for clinging to the Steele dossier, so I can add to that with an explanation of why the disclosure that Marc Elias paid for the dossier on behalf of Hillary and the DNC makes it far, far worse.

I have zero doubt that the Russians attempted to influence the election. I think it likely Robert Mueller will eventually show evidence that senior people in Trump’s camp attempted to and may have coordinated with people working for Russia, and people more tangential to the campaign sought out Russians for help. I think if the full story of the Russian involvement in the election comes out, it will be worse than what people currently imagine.

I also think Trump opponents have made a really grave error in investing so much in the Steele dossier. That’s true because, from the start, there were some real provenance questions about it, as leaked. Those questions have only grown, as I’ll explain below. The dossier was always way behind ongoing reporting on the hack-and-leak, meaning it is utterly useless for one of the most important parts of last year’s tampering. The dossier provides Trump officials a really easy way to rebut claims of involvement, even when (such as with Michael Cohen) there is ample other evidence to suggest inappropriate ties with Russia. Most importantly, the dossier is not needed for the most common reason people cling to it, to provide a framework to understand Trump’s compromise by Russia. By late January, WaPo’s reporting did a far better job of that, with the advantage that it generally proceeded from events with more public demonstrable proof. And (again, given the abundance of other evidence) there’s no reason to believe the Mueller investigation depends on it.

But because Trump opponents have clung to the damn dossier for months, like a baby’s blanket, hoping for a pee tape, it allows Trump, Republicans, and Russians to engage in lawfare and other means to discredit the dossier as if discrediting the dossier will make the pile of other incriminating evidence disappear.

So let’s see how the Marc Elias disclosure makes this far, far worse.

The WaPo reports that Elias’ firm, Perkins Coie, acting on behalf of both Hillary and the DNC, paid Fusion GPS. And they did so much earlier than previously reported, starting in April.

Marc E. Elias, a lawyer representing the Clinton campaign and the DNC, retained Fusion GPS, a Washington firm, to conduct the research.

After that, Fusion GPS hired dossier author Christopher Steele, a former British intelligence officer with ties to the FBI and the U.S. intelligence community, according to those people, who spoke on the condition of anonymity.

Elias and his law firm, Perkins Coie, retained the company in April 2016 on behalf of the Clinton campaign and the DNC. Before that agreement, Fusion GPS’s research into Trump was funded by an unknown Republican client during the GOP primary.

Given the numbering of the dossier, the April date makes far better sense than the June date. In fact, on January 13, I said, “It must have started sometime in April.” Yay me — that’s the one piece of prescience I’ll write about here I’m happy about.

The news comes as Fusion has been digging itself deeper and deeper into a perjury hole in an effort to protect Elias and the Democrats, just as they would have had to release financial documents showing Perkins Coie’s involvement in any case (I’ll do a follow-up to show that Fusion seems to have been using a cute definition of “client” in its sworn legal declarations about the dossier).

Some of the details are included in a Tuesday letter sent by Perkins Coie to a lawyer representing Fusion GPS, telling the research firm that it was released from a ­client-confidentiality obligation. The letter was prompted by a legal fight over a subpoena for Fusion GPS’s bank records.

As the WaPo and an army of Dem flacks have noted since this story broke, it is totally normal to pay oppo research firms for dirt on opponents.

It is!!

Which ought to raise really big questions why Elias didn’t come forward before now to simply admit that Hillary and the Dems — rather than some unnamed big donor as has always been intimated — were doing what every campaign normally does.

And there are several likely reasons for that.

First, consider what position this puts the FBI in. Steele started sharing his information with the FBI during the summer, possibly before the FBI opened an investigation into Trump’s Russian ties (though the CIA claims to have had a report in June about such ties, so the investigation doesn’t derive exclusively from the dossier). It’s still unclear — not even given Steele’s legal statements on this fact — whether Steele shared the information on his own, or whether Fusion permitted him to share. It’s also not clear whether Steele disclosed to FBI who was paying for his work (or even if he actually knew). But it is qualitatively different for the FBI to accept and respond to information from a political party than it is to respond to information paid for by — say — a rich private person like George Soros. That is, admittedly, how the Whitewater investigation got started (so I can appreciate the irony), but it was wrong then and it’s wrong now.

Note, this detail also provides a much better explanation for why the FBI backed out of its planned relationship with Steele in October, one that matches my supposition. As soon as it became clear Elias was leaking the dossier all over as oppo research, the FBI realized how inappropriate it was to use the information themselves, no matter how credible Steele is. This also likely explains why FBI seeded a story with NYT, one Democrats have complained about incessantly since, reporting “none of the investigations so far have found any conclusive or direct link between Mr. Trump and the Russian government.” Ham-handed? Sure. But in the wake of Harry Reid and David Corn’s attempts to force FBI to reveal what Democratic oppo research had handed to FBI, the FBI needed to distance themselves from the oppo research, and make sure they didn’t become part of it. Particularly if Steele was not fully forthcoming about who was paying him, the FBI was fucked.

And consider what Hillary and the DNC did. Back when the June 9 Trump Tower meeting first broke, I warned Democrats who were screaming that this was proof of collusion to be very careful of how they defined it.

[T]hus far, it is not evidence of collusion, contrary to what a lot of people are saying.

That’s true, most obviously, because we only have the implicit offer of a quid pro quo: dirt on Hillary — the source of which is unknown — in exchange for sanctions relief. We don’t (yet) have evidence that Don Jr and his co-conspirators acted on that quid pro quo.

But it’s also true because if that’s the standard for collusion, then Hillary’s campaign is in trouble for doing the same.

Remember: A supporter of Hillary Clinton paid an opposition research firm, Fusion GPS, to hire a British spy who in turn paid money to Russians — including people even closer to the Kremlin than Veselnitskaya — for Russia-related dirt on Don Jr’s dad.

Yes, the Clinton campaign was full of adults, and so kept their Russian-paying oppo research far better removed from the key players on the campaign than Trump’s campaign, which was run by incompetents. But if obtaining dirt from Russians — even paying Russians to obtain dirt — is collusion, then a whole bunch of people colluded with Russians (and a bunch of other foreign entities, I’m sure), including whatever Republican originally paid Fusion for dirt on Trump.

Breaking: Our political process is sleazy as fuck (but then, so are most of our politicians).

I assumed at the time that Democrats were adults and provided Hillary some plausible deniability and distance from the payments to ex-spooks who in turn paid Russian spies.

Serves me right for underestimating, yet again, Hillary’s ability to score own goals, because Nope! They’re not that adult! And so while it pains me greatly to have to say this, the Dems who screamed “COLLUSION!!!!!!!!” after evidence of a meeting but not payment have earned this attack from Ari Fleischer, accusing them of colluding, because that’s the standard they adopted at the time.

Finally, there’s the most interesting thing implicated by the disclosure that Perkins Coie partner Marc Elias paid for the dossier.

As noted, the WaPo explains Elias started to do so in April, which makes far more sense given the numbering of the dossier. But Steele, we know, was brought in in June; his first report, about whether Russia had kompromat on Hillary, was June 20. That means Steele’s involvement, paid for by Perkins Coie, postdates the involvement of Perkins Coie partner (and former DOJ prosecutor who should have known better than to do this) Michael Sussman in the DNC’s response to learning they were hacked by Russia, starting around April 29.

“Not sure it is related to what the F.B.I. has been noticing,” said one internal D.N.C. email sent on April 29. “The D.N.C. may have been hacked in a serious way this week, with password theft, etc.”

No one knew just how bad the breach was — but it was clear that a lot more than a single filing cabinet worth of materials might have been taken. A secret committee was immediately created, including Ms. Dacey, Ms. Wasserman Schultz, Mr. Brown and Michael Sussmann, a former cybercrimes prosecutor at the Department of Justice who now works at Perkins Coie, the Washington law firm that handles D.N.C. political matters.

“Three most important questions,” Mr. Sussmann wrote to his clients the night the break-in was confirmed. “1) What data was accessed? 2) How was it done? 3) How do we stop it?”

It also means that Steele’s involvement — paid for by Perkins Coie — roughly coincides with the time Democrats and Perkins Coie partner Michael Sussman first sat down with the FBI and pushed the FBI to “tell the American public that” Russia had attacked the Democrats.

The D.N.C. executives and their lawyer had their first formal meeting with senior F.B.I. officials in mid-June, nine months after the bureau’s first call to the tech-support contractor. Among the early requests at that meeting, according to participants: that the federal government make a quick “attribution” formally blaming actors with ties to Russian government for the attack to make clear that it was not routine hacking but foreign espionage.

“You have a presidential election underway here and you know that the Russians have hacked into the D.N.C.,” Mr. Sussmann said, recalling the message to the F.B.I. “We need to tell the American public that. And soon.”

Shortly thereafter, Steele, paid for by Perkins Coie, started sharing reports with the FBI, with as yet unknown disclosure to them about who was paying his bills. Do you see why this is a problem yet?

Note, too, the irony. The DNC was unwilling to share their server directly with the FBI. But they were willing to launder their intelligence to it.

Not cool, Democrats. Also, not smart.

Now, add to this massive own goal the Democrats have scored on themselves. The second report in the released dossier, is dated July 26, released four days after WikiLeaks started releasing the DNC emails, making it clear the Democrats had a far bigger hack-and-leak problem on their hands than they had let on in a June 14 story to the WaPo. It is an incredibly back-assward report on Russian hacking that proved unaware of the most basic publicly known details about Russia’s hacking (the Democrats would have been better served reading this report that had been released ten months before, which is almost certainly what FBI was trying to point them to when they first warned of the hack in September). That is, in the wake of the DNC hack, the Democrats’ lawyer paid for private intelligence about Russian involvement with Trump, and they ended up paying someone whose sources (because Steele is a follow-the-money guy, not a follow-the-packets guy) consistently were months and months behind the public knowledge on the hack.

Yikes.

Finally, one more point. It has been clear for some time that Steele’s reports had some kind of feedback loop, responding to information the Democrats got. That was most obvious with respect to the September 14 Alfa Bank report, which was obviously written after first news of the Alfa Bank/Trump Tower story, which was pushed by Democratic partisans. Particularly given that we know the released report is a selective release of just some reports from the dossier, the inclusion of Alfa Bank in that release makes no sense. Even if reports about old corrupt ties between Alfa and Putin are true (as if Democratic politicians and corrupt American banks never have old ties), the inclusion of the Alfa report in the dossier on Trump made zero sense.

Which is why Alfa Bank decided — after consulting with big Republican lawyers like Viet Dinh and soon-to-be DOJ Criminal Division Chief Brian Benczkowski — to sue for defamation. Now I understand why (particularly given that Republicans seem to have known who paid for the dossier for some time). I’m not sure Alfa Bank executives pass the bar for defamation here (though the publication of a report that misspelled Alfa’s name is pretty damning), but the fact that Elias paid for this dossier on behalf of the Democrats is going to make that defamation case far more explosive (and I’ll be surprised if Elias doesn’t get added into the mix).

As I said when I began this: I have no doubt Russia tampered with the election, and if the full truth comes out I think it will be more damning than people now imagine.

But the Democrats have really really really fucked things up with their failures to maintain better ethical distance between the candidate and the dossier, and between the party and the FBI sharing. They’ve made things worse by waiting so long to reveal this, rather that pitching it as normal sleazy political oppo research a year ago.

The case of Russian preference for Trump is solid. The evidence his top aides were happy to serve as Russian agents is strong.

But rather than let FBI make the case for that, Democrats instead tried to make their own case, and they did in such a way as to make the very solid case against Trump dependent on their defense of the dosser, rather than on better backed claims released since then.

Boy it seems sadly familiar, Democrats committing own goals like this. And all that’s before where the lawfare on this dossier is going to go.

Update, 12/6/17: This, from April, is a really interesting claim by claim debunking of the dossier.

How Trump Could Install a Mole in the Mueller Inquiry

For six years, I’ve been working to raise attention to a 2002 OLC memo that authorized the sharing of grand jury information with the President with no notice to the district court. In the New Republic, I talk about how Trump might be able to use it to order a DOJ lawyer to spy on the Mueller grand jury.

July 22, 2002, memo from the Justice Department’s Office of Legal Counsel, written by Jay Bybee, the author of the infamous torture memos, held that, under the statute, the president could get grand jury information without the usual notice to the district court. It also found that the president could delegate such sharing without requiring a written order that would memorialize the delegation.

Bybee’s memo relies on and reaffirms several earlier memos. It specifically approves two rationales for sharing grand jury information with the president that would be applicable to the Russian investigation. A 1997 memo imagined that the president might get grand jury information “in a case where the integrity or loyalty of a presidential appointee holding an important and sensitive post was implicated by the grand jury investigation.” And a 2000 memo imagined that the president might need to “obtain grand jury information relevant to the exercise of his pardon authority.”

If you set aside Trump’s own role in obstructing the investigation—including the firing of former FBI Director James Comey—these rationales are defensible in certain cases. In fact, the Justice Department has already shared information (though not from a grand jury) with the White House for one of these very reasons. In January, acting Attorney General Sally Yates warned White House Counsel Don McGahn that Russians might be able to blackmail then-National Security Advisor Mike Flynn. As Yates explained in her congressional testimony in May, after Flynn’s interview with the FBI, “We felt that it was important to get this information to the White House as quickly as possible.” She shared it so the White House could consider firing Flynn: “I remember that Mr. McGahn asked me whether or not General Flynn should be fired, and I told him that that really wasn’t our call, that was up to them, but that we were giving them this information so that they could take action.”

A similar situation might occur now that the investigation has moved to a grand jury investigation, if someone remaining in the White House—the most likely candidate is the president’s son-in-law, Jared Kushner—were found to be compromised by Russian intelligence. In Kushner’s case, there are clear hints that he has been compromised, such as when he asked to set up a back channel with the Russians during the transition.

If Trump were to rely on the memo, he might order a Justice Department lawyer to tell him what evidence Mueller had against Kushner, or whether Mike Flynn or former campaign manager Paul Manafort were preparing to cooperate with Mueller’s prosecutors if they didn’t get an immediate pardon. Unlike Yates, Trump would have an incentive to use such information to undercut the investigation into Russia’s meddling.

I point out that Trump’s partisan nominee to be Assistant Attorney General for Criminal Division, Brian Benczkowski, would be far more likely to share such information than the career prosecutors that currently have visibility onto the investigation (Benczkowski has refused to recuse from the Russian investigation, but has promised to follow ethical guidelines at DOJ).

One thing didn’t make the cut, though it’s a key reason why I think it possible someone is trying to use this precedent to provide Trump with a mole on the investigation.

Viet Dinh was both the key author of the PATRIOT Act as well as the procedures implementing these sharing rules. Dinh is also the Kirkland & Ellis partner who asked Benczkowski to exercise the really poor judgment of overseeing an investigation for Alfa Bank while he was awaiting a likely DOJ appointment. “I’ve known Viet Dinh for twenty years,” Benczkowski explained during his confirmation hearing for why he represented Alfa Bank while potentially up for nomination to DOJ.

Benczkowski certainly said the right things about honoring Mueller’s work. But Dinh, a guy who had a key role in compromising Benczkowski with respect to the investigation just as he got nominated played a key role in the sharing rules that might make it possible.

As I say in the piece, we had better hope DOJ guards recusal concerns a lot more closely than they seem to have been doing.

Senator Feinstein Confirms the Public Steele Dossier Is Not the Whole Thing

For something else, I’m rewatching the confirmation hearing for Brian Benczkowski to be Assistant Attorney General of the Criminal Division. (at 1:55)

Feinstein: Before you go on, do you have the whole dossier?

Benczkowski: I read the dossier online as it was published on BuzzFeed [raises two fingers]

Feinstein: The whole dossier is not online.

Benczkowski: The only thing that I have done, Senator, in that regard, was read the two pages as to Alfa Bank.

Feinstein: You have not seen the whole dossier?

Benczkowski: I have not.

The Senate Judiciary Committee had, by this point, been investigating the Steele Dossier for months (though this question preceded the Glenn Simpson testimony by a month). This is the classic Feinstein hearing disclosure, and past history suggests it would be accurate.

Which is to say what we’re seeing is just a fraction of the dossier — which is a point I’ve been making from the start (it also means the balance of the dossier may be more sensitive). It also means that someone made cherry picked the reports to first brief and then ultimately to leak to the press, which itself should be an issue for inquiry.