Posts

SDNY Showed Probable Cause Rudy Giuliani Was Criming While He Represented Trump in the Russian Investigation

/87 Comments/in , , /by

In August, the Special Master reviewing Rudy Giuliani and Victoria Toensing’s seized phone contents for privilege determinations, Barbara Jones, publicly filed notice of a conflict between the Trumpsters and the government: how to apply the date range in the warrants.

There is a dispute between Mr. Giuliani and the Government over whether the Special Master’s review process should be limited to materials with electronic metadata within the date range set forth in the search warrants. Mr. Giuliani argues for such a date range limitation; the Government argues against it. I have informed the parties that the issue should be briefed to, and decided by, the Court, and that I would set a briefing schedule for Mr. Giuliani’s motion.

On Thursday, Judge Paul Oetken released his decision deciding the matter. Effectively, he adopted the government’s compromise that it exclude everything that pre-dates 2018.

On June 9, 2021, this Court appointed the Honorable Barbara S. Jones (Ret.) as Special Master to “render decisions regarding privilege issues relating to the materials seized in the execution of certain search warrants” that are the subject of this matter. (Dkt. No. 25.) Giuliani and Toensing ask the Court to restrict the Special Master’s review to the time periods set forth in the search warrants: August 1, 2018 to December 31, 2019 for Giuliani; and January 1, 2019 to December 31, 2019 for Toensing.

The Government has proposed a compromise that significantly limits the scope of the parties’ dispute: it consents to the Special Master’s excluding from her review any documents that clearly and entirely predate 2018. The Court approves this compromise and directs the Special Master to proceed accordingly.

But Oetken notes that the warrants permit the government to determine what materials are responsive to the warrant, meaning Jones should not determine anything further than what is privileged. And he laid out that the warrants permit the government to access materials that were deleted (or accessed, sent, or modified) between — for Rudy — August 1, 2018 and December 31, 2019.

Third, the warrants cover materials “sent, received, posted, created, or otherwise accessed, established, modified, or deleted during [the time range].” It is entirely possible that a document “dated” outside the time range may have been “accessed,” “sent,” “modified,” or “deleted” during the time range. Moreover, the warrants permit review of any of the seized material “if necessary to evaluate its contents and to locate all data responsive to the warrant.” See, e.g., United States v. Gatto, 313 F. Supp. 3d 551, 561 (S.D.N.Y. 2018).

The timeline here is consistent with what I intuited in this post — and, based on what Lev Parnas and others previously revealed, it clarifies the exact date range of the files obtained in November 2019. The Rudy range covers eight months of the period when he was representing Donald Trump in the Russian investigation, goes through the period when (Parnas has earlier alleged) people started deleting files during Trump’s first impeachment, and continues through the meeting Rudy had with Andrii Derkach in December 2019.

And unsurprisingly, the government obtained warrants covering the same period of the earlier search on the parties’ iCloud accounts by providing probable cause to show that they were deleting and modifying earlier files, even files from earlier in 2018, to include the period when both lawyers were pitching a means to represent Trump.

But it’s clear that Rudy and Toensing worry the government may find evidence of crimes that exceeds this timeline, which would give them the opportunity to obtain new warrants with a broader timeframe. That’s because they asked Oetken to force the government to delete everything else.

Finally, the Court denies Giuliani’s and Toensing’s request to order the Government to return or destroy any material at this time.

Oetken denied this request. This means materials that predate these warrants, but also materials from more recently, when Rudy was laundering Russian disinformation and making wildly false claims about the election results, would remain available for further search, if the government can or has demonstrated probable cause.

We’ll learn more about this next week. Oetken also ruled that the letters disputing all this, including those from Dmitro Firtash, will be docketed after the parties fight over redactions.

Barbara Jones’ Special Mastery of Releasing Donald Trump’s Lawyers’ Crime-Fraud Excepted Communications

/76 Comments/in , , , , /by

I knew Rudy Giuliani was in trouble when I read him — along with his lawyer Robert Costello, who allegedly tried to bribe Michael Cohen with a pardon in the wake of an SDNY seizure of his phones — claim that SDNY had first accessed Michael Cohen’s communications after SDNY seized Cohen’s phones in a search of his house and office.

In April 2018, the Government was in this exact same position it is in now in dealing with seizures made from the personal attorney to the President. This is now the second dawn raid of the office and home of an attorney for then President Trump. A year before they searched Giuliani’s iCloud account in November 2019, they were dealing with the raid of Michael Cohen’s home and law office. In Cohen v. United States, 18-mj-3161 (KMW), after conducting a search of President Trump’s personal lawyer’s home and law office, the Government opposed the appointment of a Special Master in a letter to the Court dated April 18, 2018. Counsel for Michael Cohen and intervening counsel for President Trump both requested that a Special Master be appointed and that the Special Master review the evidence, but only after counsel for the respective parties had reviewed the evidence and made their own claims of privilege. On the day of a scheduled conference to decide the issue, the Government, in a letter to Judge Wood, withdrew their opposition to the Special Master, but requested that the Special Master, and not defense counsel, review all the evidence and make the initial determinations of privilege. Judge Wood adopted the compromise and appointed a Special Master to review all materials. One of the Government’s counsel that signed that letter is counsel on this matter as well.

As a result, the Government was well aware that it had agreed to a Special Master in a case involving claims of attorney-client and executive privilege regarding the search and seizure of an attorney’s home and office when that attorney was the personal attorney for the President of the United States. Here, when faced with the exact same situation in November 2019, the Government decided on its own, to use its own Taint Team to sift through all of the evidence gathered and decide what materials were privileged. To make matters worse, not only was Giuliani not informed about this practice, but the Government also continued to keep him, the President and his counsel in the dark for 18 months while Giuliani cooperated with another office of the United States Attorney. Based on its experience in the Cohen case, the Government knew better, or should have known better, that it should not make unilateral, uninformed secret decisions about privilege, but clearly threw caution to the wind in its attempt in this investigation in search of a crime.

Was it really possible, I asked myself, that the President’s own lawyer, as well as the President’s lawyer’s lawyer, had no idea that Mueller’s team had obtained Michael Cohen’s Trump Organization emails from Microsoft with an August 1, 2017 warrant, content which they later shared with SDNY?  Was it really possible, I wondered, that Rudy and Costello didn’t know that Mueller also obtained Cohen’s Google and iCloud content, obtained a non-disclosure order for it, and then later passed it on to SDNY, which obtained a separate warrant to access it? Did they not know that that process started 8 months before SDNY raided Cohen’s home and office and took his devices, which then led to the appointment of Special Master Barbara Jones? Did they really not know that SDNY first obtained Cohen’s content with some covert warrants, reviewed that information with the use of a filter team, and only after that got some of the very same information by seizing Cohen’s phones, only with the later seizure, used a Special Master to sort out what was privileged and what was not?

After the government’s reply, I thought for sure they’d start to cop on. I figured Rudy and Costello — who collectively, allegedly tried to bribe Cohen’s silence about the crimes he had committed while purportedly providing legal representation for Donald Trump — would understand the significance of this passage of the government reply:

Giuliani also analogizes this case to Cohen, suggesting that the Government should have known to use a special master because it had just agreed to use one in that case. (Giuliani Ltr. at 11). But Cohen favors an opposite conclusion: there, as here, the Government first obtained covert search warrants for accounts belonging to the subject. The returns of those covert warrants were reviewed by a filter team—a process which was not challenged. Although Judge Wood ultimately appointed a special master in Cohen, she repeatedly made clear her view that the use of a filter team was acceptable and was consistent with the substantial body of law in this Circuit. (See, e.g., Cohen, Dkt. 38 at 8). However, based on the unique circumstances of the case—Cohen’s principal and perhaps only client was then the President, and the case was subject to significant public attention—Judge Wood believed, and the Government agreed, that the use of a special master was needed for the “perception of fairness, not fairness itself.” (Cohen, Dkt. 104 at 88). But even after appointing a special master, Judge Wood continued to recognize the appropriateness of the use of a filter team: at the end of the special master’s review, there was one cellphone that had not been decrypted, and Judge Wood ordered that the if the cellphone was ultimately extracted, the privilege review could be conducted by the Government’s filter team. (Cohen, Dkt. 103 at 6). Thus, following Cohen, it was entirely appropriate for the Government to use a filter team during the covert phase of its investigation, but in light of the intense public interest in this matter following the overt execution of the 2021 Warrants, the Government agrees that while the appointment of a special master is not necessary for fairness, it is in the interest of ensuring that the privilege review process is perceived as fair.

But I didn’t write up the implications of that yet, because I figured there was still something that might save Rudy and Victoria Toensing. Maybe they’d pick a Special Master who would apply dramatically different rules than Special Master Barbara Jones had with Cohen, particularly an approach that said Cohen and Trump could claim privilege and hide the content, but any legal argument about that privilege had to be public. Surely they would be smart enough not to pick Jones, right? Surely, I thought, Rudy and Costello wouldn’t be dumb enough to be lulled into agreeing to appoint Jones herself, perhaps based on a false sense of confidence that since she works at Rudy’s former firm, she’ll go easy on the Mayor?

And yet, yesterday the government wrote to inform Judge Paul Oetken that the parties had agreed on a single choice to serve as Special Master: Barbara Jones.

The Government writes on behalf of the parties to propose the appointment of the Honorable Barbara S. Jones, a retired federal judge with the law firm of Bracewell LLP, to serve as the court-appointed special master for this matter.

They further asked that Oetken write up an order applying the same approach as Jones used with Cohen with Rudy.

The Government respectfully requests that the Court appoint Judge Jones to serve as the special master in this matter because her background and the resources available to her at her law firm will allow her to complete a privilege review in a fair and efficient manner. Mr. Giuliani and Ms. Toensing, through counsel, have both agreed to the appointment of Judge Jones. The Government has conferred with Judge Jones and she is available to accept this appointment. The Government respectfully suggests that the Court issue an Order of Appointment similar to the one issued by Judge Wood in the Cohen matter, setting forth the duties of the special master, the reporting and judicial review requirements, terms of compensation, terms of engagement of other professionals, and other relevant provisions. Cohen, No. 18 Misc. 3161 (S.D.N.Y. Apr. 27, 2018) (Dkt. 30). Judge Jones is available to speak with the Court directly should the Court have any questions about her potential appointment.

Understand, the government has now gotten Rudy on the record begging that he get the same treatment as Michael Cohen. It has gotten Rudy on the record saying he prefers to have a Special Master rifle through his potentially privileged communications than a filter team.

Had this been done overtly, or through the Government’s less onerous subpoena powers, we would have requested that a Special Master to be appointed at the time.

It has also gotten Victoria Toensing to agree on the value of a Special Master (even though she requested she get first shot at reviewing her content).

Appoint a Special Master from the list of candidates proposed by the parties or another suitable candidate identified by the Court to oversee the process and resolve any disputes that may arise;

When former SDNY US Attorney Rudy Giuliani and former Deputy Assistant Attorney General Victoria Toensing made those comments, though, they probably didn’t think through the implication of filter team protocols that both presumably know or once knew, but which the government was kind enough to spell out in their reply to the lawyers’ letters:

As is its practice, the filter team did not release any potentially privileged materials based on the possible application of waiver or crime fraud principles, even if the applicability of those exceptions was apparent on the face of the document.

SDNY filter teams will not pass on potentially privileged materials seized from an attorney even if there is an obvious crime-fraud exception. By description, SDNY suggests that “the applicability of [such] exceptions was apparent on the face of” some of the communications — new copies of which SDNY seized last month — SDNY’s filter team reviewed already. But they couldn’t pass them on because that’s not how SDNY filter team protocols work.

And yet, as a result of Barbara Jones’ review of material seized from Donald Trump’s attorney’s devices, SDNY obtained evidence — of Michael Cohen negotiating hush payments with two women — that might otherwise have been privileged, but that was clearly evidence of a crime. In fact, Trump thought about fighting the release, except after Judge Kimba Wood ruled that legal disputes have to be public, Trump decided not to challenge its release.

An SDNY filter team cannot share evidence that shows a lawyer breaking the law in the service of doing Donald Trump’s dirty work.

But Special Masters can. And Barbara Jones already has.

When I first read these filings — especially SDNY’s very generous offer to pick up the tab for a Special Master — I thought it was just about timeliness, about getting Rudy’s evidence in hand as quickly as possible. But it’s not. It’s the only way that they can obtain materials that they know exist that show Rudy committing a crime in the guise of serving as a lawyer. Admittedly, it might just be materials implicating Lev Parnas and Igor Fruman. But, as happened to Cohen, it might also cover things Rudy did while allegedly doing lawyer stuff for Donald Trump.

Remember, this whole process started when John Dowd claimed that Parnas and Fruman helped Rudy represent Trump, Rudy represented Parnas and Fruman, and they also helped Toensing represent Dmitro Firtash.

Be advised  that Messrs. Parnas and Fruman assisted Mr. Giuliani in connection with his representation of President Trump. Mr. Parnas and Mr. Fruman have also been represented by Mr. Giuliani in connection with their personal and business affairs. They also assisted Joseph DiGenova and Victoria Toensing in their law practice. Thus, certain information you seek in your September 30, 2019, letter is protected by the attorney-client, attorney work product and other privileges.

John Dowd made an absurd claim that, even then, was a transparent attempt to hide real dirt behind attorney-client privilege. That’s precisely the material that SDNY is asking Barbara Jones to review to see whether it’s really privileged.

Update: Lev Parnas renewed his bid to force DOJ to go look for materials that help him at trial and support his selective prosecution claim. Along with describing some communications that he believes to exist that would be in Rudy’s files (such as proof of Rudy saying that one of their mutual Fraud Guarantee victims did no due diligence), Parnas outlines the evidence that he was prosecuted to shut him up. The Dowd actions are central to that.

The Government argues that, since Parnas was not yet attempting to cooperate with Congress at the time he was arrested, his selective prosecution claim is without merit. However, by the time of Parnas and Fruman’s arrest, Parnas had received a demand letter seeking evidence from the House Intelligence Committee, and been referred by Giuliani and Toensing to Attorney John Dowd—who had previously represented former President Trump. Attorney Dowd then secured a conflict waiver from Trump—who claimed not to know Parnas—by e-mail through the President’s chief impeachment counsel, Jay Sekulow. Next, Dowd met with Parnas and took custody of materials that he believed were responsive to Parnas’ demand letter. Then, Dowd informed the Intelligence Committee that Parnas would not be appearing as requested, and the evening before Parnas and Fruman were arrested wrote an e-mail to Giuliani, Jay Sekulow, Toensing, and others assuring that Parnas and Fruman would not be appearing to give a deposition or evidence against the former President. Giuliani then backed out of a planned trip to Vienna with Parnas and Fruman, and they were arrested as they boarded their flight. The following day, then-Attorney General William P. Barr made a “routine” visit to the SDNY, and, in the following months, sought the removal of SDNY U.S. Attorney Geoffrey Berman under still-undisclosed circumstances that may well have related to prosecutorial decisions made in Parnas and his co-defendants’ case.

Update: Oetken has indeed appointed Jones.

The Rudy Giuliani Warrants Likely Go Up To the Andrii Derkach Meeting

/in , , , /by

For a variety of reasons, I’d like to look at the probable scope of the Rudy Giuliani warrants. I believe the warrant obtained on April 21 probably goes up to, but not far beyond, the meeting Rudy had with Andrii Derkach on December 5, 2019.

This post is based in part on what Rudy Giuliani, Victoria Toensing, and Lev Parnas have telegraphed about these warrants. None of these people are reliable, but Rudy and Toensing, at least, are clearly trying to share information with potential co-conspirators and therefore would want to be accurate. And whether or not the redaction fail in Parnas’ letter was intentional, I believe Parnas was trying to maximize the discomfort that these warrants might pose to powerful people (Parnas knows the targets and dates of the warrants, but it’s not clear whether he knows the date ranges). The post also includes claims from the government response to Parnas’ request for access to the Rudy and Toensing content; the government is reliable but still obviously hiding stuff.

Per Parnas, he knows of three warrants targeting Rudy:

  • A November 4, 2019 warrant targeting Rudy’s iCloud and email accounts
  • An April 13, 2021 warrant obtaining historical and prospective cell site information from Rudy (and Toensing)
  • An April 21, 2021 warrant targeting what ended up being 18 devices from Rudy

Here’s what these letters claim about the warrants:

  • The November 4, 2019 warrant “commences when Mayor Giuliani began to represent Donald Trump”
  • The start date of the November 4, 2019 warrant was “the commencement of Giuliani’s representation of former President Donald Trump”
  • Rudy believes the iCloud warrant obtained “communications with, and on behalf of, the sitting President, containing material relating to the impending impeachment”
  • The date range for the April 21, 2021 warrant began “three months later than the iCloud account”
  • The end date for the April 21, 2021 warrant went “56 days” later than the iCloud warrant
  • The warrant required Apple turn over “subscriber and payment information, device information and settings, transactional records, address book information, call history and voicemails, text message content, email content, photos and videos, documents, search and web histories, third-party application data, location date and iOS device backups” (this is boilerplate, but most people don’t understand how comprehensive a cloud warrant, to Apple or Google, can be)
  • The government showed probable cause that the iCloud account included evidence of “22 USC §§612 and 618 [FARA], 18 USC §951 [Foreign Agent], 18 USC §2 [Abetting], and 18 USC §371 [Conspiracy to defraud the US]”
  • Two days after the warrants targeting Rudy and Toensing, SDNY obtained a warrant targeting Yuri Lutsenko; later warrants targeted two other Ukrainians, Roman Nasirov and Alexander Levin
  • The treatment of information pertaining to someone Toensing represents (possibly, but not definitely, Dmitro Firtash) was more limited in her later warrant
  • Parnas believes that some of the information (though he doesn’t specify whether from the November 2019 or the April 2021 search) would include information “that may have been deleted”
  • Parnas believes that the warrants obtained “the communications immediately following the defendants’ arrest” on October 10, 2019
  • The 2019 returns do not contain any evidence relating to Parnas’ campaign finance charges and no non-duplicative statements from Parnas about Fraud Guarantee

Particularly given the way DOJ removed Parnas and Igor Fruman’s influence peddling for Yuri Lutsenko in their September 17, 2020 superseding indictment, it is virtually certain that this investigation involves, at a minimum, the ultimately successful Lutsenko-backed efforts to get Marie Yovanovitch fired in 2019.

This JustSecurity timeline is enormously helpful for reviewing the entanglements between Parnas and Fruman with Lutsenko (as well as the other events that SDNY is likely interested in). Rudy formally became Trump’s lawyer in April 2018, though there were discussions about him (and Toensing and her spouse Joe DiGenova) joining the team in March 2018, after John Dowd quit. Parnas and Fruman made their first pitch to Trump to fire Yovanovitch on April 30, 2018. In May and June, Parnas and Fruman heavily lobbied Pete Sessions to help get Yovanovitch fired. Then in August 2018, Fraud Guarantee hired Rudy. That puts the likely start dates of Rudy’s warrants sometime between March 20 and April 17, 2018 (for the iCloud warrant), and between mid-June and July or August 2018 (for the device warrant).

Depending on how narrowly the investigation is scoped on Yovanovitch, there are three likely end dates for the iCloud warrant: sometime between April 25 and May 6, 2019, when the effort to fire Yovanovitch succeeded, on October 10, when Parnas and Fruman are arrested, or on November 4, or whatever “present” day Apple complied with the warrant (the gag was issued days later so there may have been a delay in obtaining that approval).

I think one of the later dates is far more likely. That’s because Rudy continued to chase the same effort in Ukraine after Yovanovitch was fired. Plus, the most likely explanation for how SDNY was able to get warrants and a non-disclosure order for the November 2019 warrants against Rudy and Toensing is that they had proof, obtained on October 21, 2019, that Parnas had unsuccessfully attempted to delete information from his own iCloud account. And Rudy, who knows the date ranges of the warrant, claims that it obtained information, “containing material relating to the impending impeachment,” which, if true, would entirely rule out a May 6 end date.

Parnas believes the first warrant extended beyond his October 10 arrest. But it’s not entirely clear whether he knows the date range of the warrants. The government response explained they gave him material from him they had been withholding under a non-disclosure order relating to the investigation in which Rudy is a subject (that is, the Lutsenko campaign) on January 28. But in response to Parnas’ request for materials “immediately following” his arrest, the government got coy about whether they exist in the November 2019 returns (the only ones they have reviewed yet).

For similar reasons, the request for communications by Giuliani and Toensing “immediately following the defendants’ arrests” and “subsequent to” Parnas’s provision of information to the House Intelligence Committee are not subject to disclosure. (Def. Letter at 3.) Not only do these communications have nothing to do with the Government’s case-in-chief, but even if Parnas was entitled to discovery relating to his selective prosecution claim—and he plainly is not—these communications would not even be relevant to such a defense because, to the extent they exist, they post-date the defendants’ arrest.

Besides, there’s a more logical reason to expect that the November 2019 warrants ended on the day of Parnas’ arrest, October 10: because that’s consistent with SDNY’s investigation being limited to its original scope and the entirety of the investigation into Andrii Derkach being at EDNY, as NYT reported is the case.

On December 3, 2019, Rudy met in Budapest with Lutsenko. On December 4, he flew to Kyiv to meet with Derkach, the meeting that begins the relationship that EDNY has ownership of.

A 56-day extension on an end date in response to a November 4 warrant would be December 31, a logical end date for a warrant, but one that would encompass the aftermath of the Derkach meeting scoped to EDNY. Whereas a 56-day extension to an October 10 end date would take you to December 5: through the Derkach meeting associated with the Lutsenko one, but not any further.

That would also be inclusive of communications relating to the pending impeachment (which Rudy says would have been included in the iCloud return), but would be more protective of Rudy’s conversations with Trump as impeachment drew nearer.

Rudy’s Lawyers Destroy His Reputation in an Attempt to Save It

/39 Comments/in , /by

Just before a long tirade about how, if DOJ had just asked Rudy Giuliani for help proving he’s not a secret Agent of Russian-backed Ukrainians while he was busy at State and WDPA acting as a secret Agent of Russian-backed Ukrainians, he could have avoided a covert search to find out whether he’s a secret Agent of Russian-backed Ukrainians, his lawyers say, in a now-public letter, that it’ll badly damage Rudy’s reputation if it becomes public that DOJ believed he might delete evidence or intimidate witnesses.

In addition, in the original warrant for the iCloud account, there is a nondisclosure order based upon an allegation made to the issuing Court, that if Giuliani were informed of the existence of the warrant, he might destroy evidence or intimidate witnesses. Such an allegation, on its face, strains credulity. It is not only false, but extremely damaging to Giuliani’s reputation. It is not supported by any credible facts and is contradicted by Giuliani’s efforts to provide information to the Government. We should be allowed to question the Government as to what basis it had, if any, to make that assertion. Accordingly, we request the information that was presented in the iCloud warrant to justify the NonNotification Order pursuant to 18 U.S.C. Section 2705 (b) that “there is reason to believe that notification of the existence of this warrant will result in destruction of or tampering with evidence, and/or tamping (sic) with potential witnesses, or otherwise will seriously jeopardize an ongoing investigation.” We also request access to the application for any extension of the non-disclosure provision which originally lasted for a year.

As the single exhibit to prove that Rudy had reached out to DOJ to provide help, his attorneys included a picture of a TV screen with his attorney making that claim (I’m not sure whether this claim is November 25, 2019, or in the wake of the most recent searches) when it might have avoided the search. But then they include all this verbiage which sure seems to describe Rudy acting as an Agent of Russian-backed Ukrainians who just didn’t give a shit about registering as such because why do that if the President can bail you out?

It was premature and unwarranted for the Government to seize Giuliani’s ESI because Giuliani had already cooperated with the U S State Department (“State”) through Mike Pompeo, the Secretary of State, in March 2019 concerning Ukraine. He also cooperated again in July and August of 2019 at the request of the State Department in assisting them with regard to Ukraine. In fact, there has never been an occasion where Mr. Giuliani has refused to cooperate with, or give assistance, to his government. This was as true during the Clinton administration as it was during the Bush administration.

[snip]

As a reminder, this same attorney had cooperated with the State Department and offered, for a year and a half, to answer any questions from the SDNY about any subject or crime, with no limitations except for privileged matters. During that same time period, Giuliani did in fact cooperate with Main Justice, through their designee in Pittsburgh on the subject of the Ukraine. Amazingly, the SDNY continually turned down the offer by stating that while they would be happy to hear anything Mayor Giuliani’s counsel had to say, they refused to identify the subject, although those subjects were disclosed to the media.

Plus, Rudy’s lawyers note — as if it helps him — that they only reached out to offer to help on November 4, 2019, the very same day the warrant was obtained (as if maybe a birdie warned him?), which means he didn’t offer to help for the entire month after the indictment against his business partners Lev Parnas and Igor Fruman was unsealed.

But Rudy’s letter and a similar one from Victoria Toensing’s lawyers lay out certain details of the investigations into the two of them.

There are two sets of warrants. With Rudy, SDNY obtained a sealed warrant for his iCloud account on November 4, 2019 and then the overt one for a shit-ton of devices on April 21, 2021. With Toensing, SDNY obtained a sealed warrant for her iCloud account on November 4, 2019 and another for her Google account on December 13, 2019; they obtained a warrant for a single phone on April 28, 2021.

Rudy says that the earlier warrants showed listed FARA, unregistered Foreign Agent, abetting, and conspiracy as the crimes under investigation.

In essence, the Government was looking for evidence that Giuliani was acting as an agent, unregistered agent or lobbyist of a Ukrainian national, government official, corporation or political party or in violation of the foreign agent registration and lobbying laws or making contributions on behalf of a foreign principal (see attachments to search warrant also citing 22 USC §§612 and 618, 18 USC §951, 18 USC §2, and 18 USC §371).

It’s not entirely clear whether the later warrants against Rudy are the same. He doesn’t say. Plus, he says the later search was only “nearly identical,” as compared to Toensing’s claim that the searches were “virtually” identical. (The content, of course, wouldn’t be identical.)

For her part, Toensing is quite worried that DOJ seized information about a client, who sure seems like Dmitro Firtash.

Rudy’s letter mentions “President President President President” over and over. But in this challenge, unlike the one Michael Cohen made, the President has not filed as an interested party, meaning Rudy’s on his own. Probably, he’s too cheap to pay his share of the presumed Special Master fees.

Rudy also argues, falsely, that the search of the President’s lawyer’s cloud content without the use of a Special Master is unprecedented and especially egregious given that this search came in the wake of the search of Michael Cohen’s devices, which used a Special Master.

Moreover, in the Fall of 2019, during an intense debate over the impeachment and the campaign for the upcoming Presidential Election, with Giuliani publicly acting as President Trump’s personal attorney, the Government decided to take the unprecedented step of seeking a search warrant for Giuliani’s iCloud account. In these circumstances, on the heels of the precautions instilled by Judge Wood in a nearly identical situation, the use of a one-sided “filter” team was highly inappropriate and inadequate to identify privileged materials and thereby protect Giuliani and his clients ’attorney-client privilege, and highly indicative of the appearance of impropriety. Had this been done overtly, or through the Government’s less onerous subpoena powers, we would have requested that a Special Master to be appointed at the time. Instead, the Government has had these private, confidential, and privileged materials in their possession for over eighteen months, and established a Taint Team who acted as prosecutor, defense lawyer, Special Master and Judge entirely in secret, knowing full well this contravened the protocol established in the Cohen case.

Except it’s not remotely unprecedented. That is, literally, the same thing that happened to Cohen. Indeed, his Trump Organization emails were preserved (at Microsoft) and searched by Mueller’s team, then shared with SDNY under a new warrant. And those emails actually did pertain to the President — though from the campaign period, not the period when he was trying to coerce campaign assistance from a foreign government.

Ultimately, a big story here is that someone high up in Billy Barr’s DOJ authorized the sealed searches in November and December 2019, making Rudy’s wails far less convincing. My guess is that after Rudy made Brian Benczkowski look corrupt for taking a related meeting on a bribery case (of the Venezuelan bankrolling the Ukrainian grift) at a time when Rudy was being criminally investigated, Benczkowski wasn’t all that interested in going out on a limb to protect Rudy, especially as it would focus attention on the earlier corrupt review of the whistleblower complaint. My further guess is that after Benczkowski resigned, effective July 3, and after Billy Barr failed to replace Geoffrey Berman with a loyal flunky during precisely the same weeks in June 2020, Barr and Jeffrey Rosen went to epic lengths to prevent this warrant from being approved, with Rosen going so far as to require that a specific person in the Deputy Attorney General’s office be required to sign off on such a warrant on December 30, weeks before the second effort. Whatever the case, Trump’s DOJ approved the covert warrants, the one both lawyers are wailing the most loudly about.

If, as the lawyers wail, SDNY has been sifting through their cloud content, then this warrant shouldn’t hurt them all that much more than their earlier searches (unless Parnas revealed that they weren’t backing up their encrypted apps to the cloud).

Except — particularly given the confirmation that Lev Parnas unsuccessfully deleted his own iCloud account — Rudy’s insistence that he doesn’t have a guilty conscience and wouldn’t have deleted anything rings false.

Despite these two warnings that the SDNY was seeking permission to apply for a search warrant for his electronic devices and because he had no guilty conscience, Giuliani took no steps to destroy evidence or wipe the electronic devices clean. Since Giuliani was not under subpoena, he had no legal obligation to preserve that evidence, but he did so because he is an innocent man who did nothing wrong.

At about this stage in the Michael Cohen litigation, we learned that he, too, had deleted some information.

Not only has SDNY been sorting through these files for 18 months, they had Parnas and Fruman’s content for far longer, and since then Parnas has been trying hard to take Rudy down. So I would imagine SDNY had good reason to believe that Rudy may have destroyed evidence.

Key related posts

October 14, 2019: The Criminal Investigation into Paul Manafort Was (and May Still be) Ongoing–and Likely Pertains to Trump’s Ukraine Extortion

The Parnas and Fruman grift was, in many ways, the direct continuation of Manafort’s efforts to cash in on Trump’s win. You’d think that would raise the stakes of Rudy’s privilege claims — but Trump doesn’t appear to care.

October 16, 2019: On the Potential Viability of Foreign Agent Charges for Rudy Giuliani

I argued that doubts that Rudy could be prosecuted for FARA were not only too pat, but ignored his other criminal exposure for precisely the crimes that would be named in his warrant weeks later.

October 22, 2019: How DOJ Worked Overtime to Avoid Connecting the Dots in the Whistleblower Complaint

I laid out that Criminal Division didn’t do any of the things they’re supposed to do with the whistleblower complaint. That may have forced their hand to approve of the initial warrants against Rudy and VicToe.

October 25, 2019: Main Justice Now Looking for the Evidence in Plain Sight They Ignored in August

Just before the sealed warrants were obtained, Main Justice got more involved in the SDNY investigation.

November 4, 2019: When Your Joint Defense Agreement with the Russian Mob Blows Up in Your Face

I’ve written several posts about the ridiculous claims John Dowd made to try to cover this up in a network of privilege claims. The original is linked in the linked post. But I’m linking this one because I posted it on the same day DOJ got a warrant for Rudy’s iCloud.

November 23, 2019: Timeline: How Rudy Made It Hard for Mike Pompeo to Show Any Leadership

This post includes all the foreign influence peddling that Rudy was doing during the period covered by his warrant.

January 28, 2020: SDNY Prosecutors Protect Trump’s Privacy to Enter into a Joint Defense Agreement with the Russian Mob

There were a bunch of discovery issues in the case in January 2020, including the revelation that Lev Parnas had deleted iCloud data and an affirmative assertion that Parnas could not waive attorney-client privilege for Dmitro Firtash.

May 7, 2021: Four Ways Billy Barr Obstructed the Investigation into Rudy Giuliani

Barr was working hard to kill the Ukraine investigation during the period through which Rudy’s subpoena extends.

The Significance of the Trump-Firing-Masha Recording

/153 Comments/in , , /by

Yesterday morning, ABC and then Daily Beast revealed that there was a recording of the April 2018 meeting where Lev Parnas got Trump to say he would fire Marie “Masha” Yovanovitch simply by suggesting she was bad-mouthing Trump. Then, last night, Parnas’ lawyer Joseph Bondy appeared on Rachel Maddow’s show again, and provided more details of the recording.

It is about 1:40 hours long, and the firing reference comes after 40 minutes.

Bondy’s interview made two things clear:

  • By April 2018 — when Trump’s administration made Javelin missiles available to Ukraine provided that they not use them against Russia, reportedly in exchange for Ukraine’s halt to any cooperation with the Mueller inquiry — Trump was interested in how vulnerable Ukraine could be made by withdrawing US support. Half an hour, Parnas told Trump Ukraine could resist the Russian incursion without US help, based on what, we don’t know.
  • Lev Parnas probably did not fully comply with the HPSCI subpoena.

I’m as interested in the claimed story about how the recording came about.

Igor Fruman — the guy whose deep connections in Ukraine, including with some mobbed up businessmen, Parnas claims to have networked through — made the recording. That led most people to assume that Fruman released it, and therefore is cooperating, something for which there is no support.

There are at least three other possible sources for the recording.

First, SDNY seem to be suggesting that Parnas and Fruman were working for an as-yet unnamed Ukrainian to get Masha fired. That makes all the smiling pictures that the men posted with Trump and other powerful Republicans feel like a kind of reporting system, perhaps the same one Maria Butina was using. Such social media posting would be a good way to make it clear to whoever is footing the bill for such an operation that the grifters are obtaining the meetings promised. If so, the recording (and other similar ones) might serve a three-fold purpose:

  • It can serve as blackmail against Trump and others, just as it’s being used now
  • It collects intelligence about the security around Trump (Fruman reportedly took a video of the two of them entering the meeting)
  • It assures the paymaster of this operation that he’s getting what he paid for

Remarkably, we don’t yet know what Ukrainian was allegedly paying the grifters. It could be Dmitro Firtash (who last fall gave Parnas’ wife “a loan” that she could use to buy a house that, because it’d be in Florida, could not be seized as forfeiture). Given that Kevin Downing was involved in Parnas and Fruman’s defense, it could be any of Ukrainians who paid Paul Manafort after he entertained a plan to carve up Ukraine on August 2, 2016, which include Serhiy Lyovochkin and Rinat Akmetov, the former of whom used a straw donation to attend Trump’s inauguration. Or it could be one of the dodgy businessmen around Fruman. All had and have an incentive to try to reverse Ukraine’s efforts to combat corruption, and so would value the removal of Masha. [Update: I’m missing two other obvious candidates — Yuriy Lutsenko and Viktor Shokin — though much of the reporting on their interest in taking her out focuses on 2019 efforts that are more closely tied to dirt on the Bidens. Update: Fixed where the allegation that a Ukrainian was directing their efforts.]

Any of those people might have reason to release the recording. In the same way that Oleg Deripaska was pushing FBI to investigate Paul Manafort even as he was using Manafort’s desperation to try to coerce him to become his asset again, including to carve up Ukraine, anyone trying to compromise Trump can use his efforts to beat impeachment to make him more reliant on Ukrainian discretion about any deals they’ve made. Plus, by making Trump’s corruption and compromise clear even as Republican Senators vote against doing anything about it, it ensures that every single federally elected Republican has been implicated in this operation. So it’s possible the recording came from the paymaster.

It’s also possible it came from SDNY’s notoriously leaky FBI. The ABC reporters who first released it include DOJ beat journalists, so it would make sense that they’d have FBI sources. But I doubt it, not least because an FBI source would have had reason to leak it before yesterday.

But there is another possibility: that Parnas was the source, but he and Bondy lied about it early in the day (and okayed its release while Bondy was on MSNBC’s set, with a natural alibi he expressly noted), to create a cover story for releasing the recording without admitting that Parnas had not fully complied with the HPSCI subpoena but was belatedly, just yesterday, providing a copy of the recording to HPSCI. Bondy claimed it had been on Parnas’ iCloud all the time, but he had forgotten he had it.

Bondy was more aggressively questioned last night, in part by Chuck Rosenberg and Maya Wiley. But neither confronted Bondy on reports that, in discussions with SDNY last month, he had maintained Parnas’ claim that he was innocent of the existing charges against him: that he was paid and directed by the still-unnamed Ukrainian to get Masha fired. Neither raised that prosecutors have repeatedly said they expect to file more charges against the grifters, likely including (because FBI likely obtained a FISA order against one of them) foreign agent charges, which undercuts Bondy’s claim that Parnas is not seeking a cooperation deal because the existing charges against him don’t have that serious a sentencing range.

Bondy offered some explanation for why Parnas had not searched his iCloud because he had to make sure SDNY had gotten their evidence first. That sounds like a load of baloney. After all, SDNY would have been able to obtain Parnas’ iCloud account with a warrant to Apple (given that Apple decided not to encrypt iCloud after previously considering it, that means some really damning information on Trump is just sitting on a server in Cupertino or somewhere). The recording was over 18 months old when Parnas was arrested. So SDNY had had it, likely, for some time. Moreover, SDNY had told Parnas they had their discovery collected on December 3, which means Bondy could have provided this record — and anything else that was always available to Parnas — even before the phone records. Bondy now is claiming that Parnas was injured with a delay in discovery, because it delayed his ability to cooperate with HPSCI, which is totally undermined by any admission that Parnas had never even searched his iCloud (and still may not have) for information related to the HPSCI subpoena.

All of which suggests Parnas is trying to carefully manage what he’s sharing with HPSCI, presumably focusing on the latter period of his work to get Masha fired, when he could claim to be doing Rudy Giuliani’s bidding, and not the earlier part, when prosecutors claim he was working for some Ukrainian. For better and worse, that likely means that Rudy is at least partly a victim of Parnas, someone who was desperate and weak and easily manipulated into doing really stupid things — just like Trump — who could then be claimed as the real actor behind this operation.

In a sane world, both parties would take a step back and agree that our quisling President and his fawning lackeys were an easy mark. We’d talk about how to unwind whatever damage Trump has done to himself and the country.

But we don’t live in a sane world and Republicans are about to defend Trump’s right to be manipulated by grifters and spies as his Constitutional prerogative.

Mike Pompeo Can Find Proof that Obama Addressed Ukrainian Corruption in Trump’s Joint Defense Agreement

/76 Comments/in , , /by

Mike Pompeo had an unbelievably dickish interview with NPR’s Mary Louise Kelly this morning. In spite of the fact that Kelly alerted his staff she intended to ask about Iran and Ukraine, he complained when she turned to Ukraine. He falsely claimed he had defended everyone of his reports, including Marie Yovanovitch. And he reportedly accused Kelly of not being able to find Ukraine on a map (which she promptly did).

I was taken to the Secretary’s private living room where he was waiting and where he shouted at me for about the same amount of time as the interview itself.

He was not happy to have been questioned about Ukraine.

He asked, “do you think Americans care about Ukraine?”

He used the F-word in that sentence and many others. He asked if I could find Ukraine on a map. I said yes, and he called out for aides to bring us a map of the world with no writing. I pointed to Ukraine. He put the map away. He said, “people will hear about this.”

But the craziest thing might be Pompeo’s claim that President Obama did nothing to take down corruption in Ukraine.

Change of subject. Ukraine. Do you owe Ambassador Marie Yovanovitch an apology?

You know, I agreed to come on your show today to talk about Iran. That’s what I intend to do. I know what our Ukraine policy has been now for the three years of this administration. I’m proud of the work we’ve done. This administration delivered the capability for the Ukrainians to defend themselves. President Obama showed up with MREs (meals ready to eat.) We showed up with Javelin missiles. The previous administration did nothing to take down corruption in Ukraine. We’re working hard on that. We’re going to continue to do it. [my emphasis]

Pompeo has to say this, obviously, because a key Trump defense against impeachment is that Joe Biden was supporting, rather than combatting corruption. But a number of impeachment witnesses, including Marie Yovanovitch, explained at length the things Obama had done to combat Ukrainian corruption. It’s one of many reasons why Obama did not give lethal aid to Ukraine. Bruce Ohr, whom Trump has targeted for over a year, worked hard on the issue, too.

But the craziest part of this claim — that Obama did nothing to take down corruption in Ukraine — can be found in Trump’s own Joint Defense Agreement. There are two glaring exhibits of efforts taken under Obama to combat corruption: Dmitro Firtash, who was indicted for bribery by NDIL in 2013, is represented by Victoria Toensing and Joe DiGenova, who were consulting on Trump’s defense against the whistleblower complaint on October 8, 2019.

So, too, was Kevin Downing, Paul Manafort’s defense attorney. Manafort, of course, was ultimately found guilty of breathtaking corruption in Ukraine in an investigation that started in January 2016. Manafort lied to obstruct an investigation into what he was doing in a meeting on August 2, 2016, where he discussed how to get paid by several of his corrupt Ukrainian paymasters, shared his campaign strategy, and discussed how to carve up Ukraine to Russia’s liking; that investigation started just days later, on August 10, 2016.

In short, Obama’s DOJ opened a number of investigations into Ukrainian corruption. It just turns out that two of the most notorious defendants in those investigations are part of a Joint Defense Agreement with Pompeo’s boss.

Trump Flunkies Trading Legal Relief for Campaign Dirt: Julian Assange and Dmitro Firtash

/12 Comments/in , , , /by

When we discuss Trump’s abuse of pardon authority, we generally talk about how he has used it to persuade close associates to refuse to cooperate or affirmatively obstruct investigations into him. If you believe Michael Cohen, Jay Sekulow floated group pardons early in the Mueller investigation before he realized it would backfire, but he did suggest Trump would take care of Cohen in summer 2017; Rudy Giuliani reportedly repeated those assurances after Cohen got raided in April 2018. Trump has repeatedly assailed the prosecutions of Paul Manafort and Roger Stone and suggested they might be rewarded with pardons for their loyalty. Trump has even suggested Mike Flynn might receive a pardon, which is good because his current attorney seems intent on blowing up his plea deal.

Even within the Mueller Report, however, there was a hint of a different kind of abuse of pardons. Trump was asked if he had discussed a pardon for Assange prior to inauguration day.

Did you have any discussions prior to January 20, 2017, regarding a potential pardon or other action to benefit Julian Assange? If yes, describe who you had the discussion(s) with, when, and the content of the discussion(s).

I do not recall having had any discussion during the campaign regarding a pardon or action to benefit Julian Assange.

Trump gave a typically non-responsive answer, claiming to not recall any such discussions rather than denying them outright, and limiting his answer to the campaign period, and not the transition period.

By the time Mueller asked the question, there was already abundant public evidence of a year-long effort on behalf of Trump’s flunkies to get Assange a pardon in exchange for mainstreaming his alternative version of how he obtained the emails he published in 2016. In the Stone trial, Randy Credico described how Stone reached out to Margaret Kunstler to initiate such discussions; that happened in late 2016.

At the very least, that suggests Trump’s flunkies were trying to reward Julian Assange for providing them dirt during the election. Sure, we don’t know whether those flunkies ran such proposals by Trump; we certainly don’t have the details about how Trump responded. But someone in Trump’s immediate orbit, Stone, moved to reward Assange’s actions by trying to get him immunized from any legal problems he had with the United States.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

With that in mind, consider these documents that Lev Parnas provided to HPSCI. Part of a set of notes that Parnas took last June while on a call from Rudy, it lays out what plan Parnas was supposed to present to Dmitro Firtash.

The idea was that Parnas would find a way to get rid of Lanny Davis as Firtash’s US lawyer on extradition, to be replaced by Joe DiGenova and Victoria Toensing. Meanwhile, Rudy would be in “DC” with a “package” that would allow him to work his “magic” to cut a “deal.” The package, it seems would involve relief from Firtash’s legal woes — an indictment for bribery in Chicago — plus some PR to make it possible for Firtash (whom just three months earlier Rudy was loudly accusing of having ties to the Russian mob) to do business in the US again. In exchange for totally perverting the US justice system so that a corrupt businessman could access the US market again, Rudy would get … bogus dirt about Joe Biden and a claim that somehow Ukraine’s publication of details on Paul Manafort’s corruption that Manafort knew about two months in advance improperly affected the 2016 election. Possibly, given other things Parnas said, it would also include a claim that Andrew Weissmann was asking Firtash for information on Manafort.

Remember: another of the oligarchs whom Manafort had crossed in the past, Oleg Deripaska, spent most of 2016 trying to feed up information to the FBI to get him indicted, even while tightening the screws on Manafort to get information about the Trump campaign. But Rudy Giuliani wants to suggest that asking Manafort’s former business partners for details of their work would be proof that Democrats cheated in 2016.

Regardless, these notes, if authentic, show that Rudy Giuliani believed he could make Firtash’s legal problems go away.

And all he would ask in exchange — besides a million dollars for his friends and another $200,000  for Parnas, chump change for Firtash — would be transparently shoddy propaganda to use to discredit the prosecution of Paul Manafort and hurt the reputation of Joe Biden.

Dirt for legal relief. A quid pro quo of a different sort.

Once again, there’s not yet any evidence that Trump’s flunkie — his ostensible defense attorney this time, not his rat-fucker — had looped Trump into this plot. Here, the legal relief would come via connections with Bill Barr (possibly with a nudge from the President), not Trump’s executive authority alone.

But in both cases, Trump’s closest associates appear to believe that the proper currency with which to obtain shoddy campaign dirt is legal relief.

As I disclosed in 2018, I provided information to the FBI on issues related to the Mueller investigation.

Kevin Downing Was “in the Loop” of Silencing Lev Parnas on October 8

/45 Comments/in , /by

Lev Parnas’ lawyer, Joseph Bondy, continues his attack on those who scorned his client.

This afternoon, he posted an email dated October 8, 2019 7:06 AM that John Dowd — then ostensibly representing Parnas and Igor Fruman — sent to update a bunch of lawyers that his clients would send, “a letter to the intel committee to eliminate any doubt that Igor and Lev will appear to answer questions because we are not prepared to do so.”

Dowd, of course, had already first called, on September 30, then sent a letter, on October 3, to convey the same message. But he seemed to feel the need to do so again on October 8 (which may be part of the reason the White House released the intemperate Trump letter signed by White House Counsel Pat Cipollone).

He forwarded the email, with all recipients visible, to his clients a minute later.

The next day, Parnas and Fruman met with Rudy Giuliani at Trump hotel for lunch. That afternoon, Bill Barr visited SDNY. Hours later, Parnas and Fruman tried to board a plane to go to Vienna to tape an interview between Sean Hannity and Dmitro Firtash. They were arrested on charges that had been processing away in SDNY for months, ostensibly because SDNY feared they would flee, even though they had left the country numerous times while that investigation proceeded. Then, probably after Parnas and Fruman were arrested, Barr visited Rupert Murdoch personally. Hannity never went to Vienna. Nor did Rudy, who was supposed to meet Parnas and Fruman the next day.

According to public reports at the time, because they got arrested in EDVA, they needed a local lawyer to deal with their bail, so Paul Manafort’s lawyer, Kevin Downing stepped in. Then, what must be the next day, Parnas fired both Dowd and Downing, because — he believed — they were telling him to take the fall for the President.

MADDOW: Mr. Dowd was your attorney for a time and then you changed attorneys.

PARNAS: I fired him in jail.

MADDOW: You fired him when you were in jail?

PARNAS: Yes.

MADDOW: What happened there?

PARNAS: And Mr. Downing. Basically, when we were arrested, obviously, I had nowhere else to call. I didn`t know – we just retained Dowd and Downing. So I called Downing to come there and I started seeing in the process of the bail stuff the way things were going on that they were more concentrating on – I didn’t feel that they were trying to get me out, and at that point, I had a meeting with John Dowd and Downing inside the jail.

And John Dowd just instead of comforting me and, you know, trying to calm me down, telling me, like, it’s going to be OK, like, don’t worry, basically start talking to me like a drill sergeant and telling me, giving me orders, like, you know, be a good boy, like, you know.

MADDOW: He said “be a good boy”?

PARNAS: No, I don’t – I don’t want to quote him exactly on what the words, what he used in that because it was a while ago. I don’t remember exactly.

But it was – it was his condescending attitude toward basically, like, who do you think you are telling the president or Giuliani or anybody to, like, come out and because I – one of the things I said, I said, I can’t believe nobody is coming out in our defense and saying we didn’t do anything wrong, we’re good citizens, you know, we work.

And basically word for word, and then I said, if you don’t get out of here right now, something bad is going to happen because I don’t want to see the two of you.

And at that point, Downing hit the emergency button and the security took me out and took them out.

MADDOW: This is a very heated confrontation. You told Downing and Dowd to get out.

PARNAS: I threw them out.

MADDOW: Were they telling you to sacrifice yourself in order to protect the president?

PARNAS: That’s what I felt.

Here’s the thing. Downing was not — at least not publicly — representing Parnas and Fruman until and because they were detained in EDVA.

But he — Paul Manafort’s lawyer — was included in that email from Dowd on October 8, a day before they were arrested along with Trump’s lawyers, Victoria Toensing and Joe DiGenova, and Rudy’s then lawyer Jon Sale.

Lev Parnas appears to believe he was arrested because it was a better way to keep him silent than telling Congress no.

And the inclusion of Kevin Downing in that October 8 email suggests he may well be right.

Parnas’ Three-Way: John Dowd Has Already Confirmed a Key Part of Lev Parnas’ Story

/38 Comments/in , , , /by

Last night, Lev Parnas provided details to Rachel Maddow about how he came to be represented, briefly, by John Dowd. It was Rudy’s idea, but when Dowd first raised the issue, Jay Sekulow (who appears to have recognized this would all blow up) said he doubted the President would waive any conflict he had. Parnas replied that he believed the President would. Shortly thereafter, Dowd came back and told Parnas, “You are one lucky man,” confirming that Trump had waived the conflict.

Per the email from Dowd reflecting the request to Sekulow that Parnas released, that happened on October 2.

At around the same time, there was a discussion about what to do about the subpoena from the House Intelligence Committee, which requested documents on September 30, to be due on October 7. As Parnas explained it, they met at Dowd’s house with Rudy and Sekulow, with Victoria Toensing on the phone. Because Parnas worked for Rudy and Toensing, Parnas explained, White House Counsel Pat Cipollone would write a letter to Congress asserting “three-way privilege.”

Only, Cipollone didn’t write that letter. John Dowd, who had attorney-client privilege at the time with Parnas, wrote it the day after Trump waived any conflict. This is the letter that I said, back in October, might one day end up in a museum.

If we survive Trump and there are still things called museums around that display artifacts that present things called facts about historic events, I suspect John Dowd’s October 3 letter to the House Intelligence Committee will be displayed there, in all its Comic Sans glory.

In it, Dowd memorializes a conversation he had with HPSCI Investigation Counsel Nicholas Mitchell on September 30, before he was officially the lawyer for Lev Parnas and Igor Fruman, now placed in writing because he had since officially become their lawyer. He describes that there is no way he and his clients can comply with an October 7 document request and even if he could — this is the key part — much of it would be covered by some kind of privilege.

Be advised  that Messrs. Parnas and Fruman assisted Mr. Giuliani in connection with his representation of President Trump. Mr. Parnas and Mr. Fruman have also been represented by Mr. Giuliani in connection with their personal and business affairs. They also assisted Joseph DiGenova and Victoria Toensing in their law practice. Thus, certain information you seek in your September 30, 2019, letter is protected by the attorney-client, attorney work product and other privileges.

Once that letter was sent, under penalty of prosecution for false statements to Congress, it became fact: Parnas and Fruman do work for Rudy Giuliani in the service of the President of the United States covered by privilege, Rudy does work for them covered by privilege, and they also do work for Joseph Di Genova and Victoria Toensing about this matter that is covered by privilege.

I observed at the time that this seemed to be an effort to adopt the same strategy that had worked so well in the Mueller investigation — throw everyone into the same conflict-ridden Joint Defense Agreement, and sink or swim together.

Only, this time, it would entail also admitting one other key player into the Joint Defense Agreement: Dmitro Firtash, whom months earlier Rudy had affirmatively claimed was part of the Russian mob.

[W]hen Dowd wrote Congress, explaining that Rudy worked for both Trump and the Ukrainian grifters, and the Ukrainian grifters worked for DiGenova and Toensing, he was asserting that the President is a participant in an ethical thicket of legal representation with a mob-linked Ukrainian oligarch fighting extradition (for bribery) to the United States. And all of that, Dowd helpfully made clear, related to this Ukraine scandal (otherwise he could not have invoked privilege for it).

In other words, the President’s former lawyer asserted to Congress that the President and his current lawyer are in some kind of JDA from hell with the Russian mob, almost certainly along with the President’s former campaign manager, who apparently gets consulted (via Kevin Downing) on these matters in prison.

And that’s why the inclusion of Parnas’ hand-written notes from a June 2019 phone call with Rudy are so important. They show that Rudy had a plan to trade Firtash — the guy that Rudy claimed in March 2019 was part of the Russian mob — “magic” to “cut deal” or “get dismissed” his legal troubles in return for dirt on Burisma and claims that the “Ukrain ledger” was bogus.

Parnas even wrote notes showing they were going to hire Brian Ballard or Robert Stryk to do a PR campaign of the sort that Paul Manafort used to do.

Rudy might contest that’s what these notes — indeed, he denied any tie to Firtash, including through a Firtash associate Dmitry Torner, in an important story yesterday (though he did admit speaking to two of Firtash’s lawyers).

In a statement, Giuliani said he did not remember meeting Torner or details of his meetings in Paris and London and had limited interest in Firtash. “I never met him. I never did business with him,” he said of Firtash. He did not respond to follow-up questions after The Post obtained photos of the Paris gathering.

[snip]

In a statement this week, Giuliani said he spoke with a Chicago-based attorney who is handling Firtash’s federal case to see if he had “evidence of corruption in Ukraine in 2016” to bolster his defense of Trump.

“I asked some questions about him because I thought he might have some relevant information,” Giuliani told The Post. “I determined that he didn’t.”

He said that Parnas urged him to keep reaching out to Firtash associates, but that he rejected the idea because he did not believe the tycoon had any pertinent information.

But Bondy, who has been urging Congress to call his client as a witness, said Parnas would be prepared to describe Giuliani’s outreach to Firtash.

“If called upon to testify, Mr. Parnas would say that Mr. Giuliani never rejected efforts to establish a line of communication with Mr. Firtash, and that, to the contrary, he did everything possible to secure that channel,” Bondy said.

But, as I said in October, the president’s former lawyer is already on the record in a statement to Congress under penalty of false statements that Parnas worked for both the president (via his current lawyer) and Toensing and DiGenova.

It has been clear since October that something like those notes Parnas released would be forthcoming. And because the government arrested Parnas, there’ll be a damned good chain of custody on the notes, proving he didn’t make them more recently to get out of legal trouble.

Trump’s legal advisors all entered into an insane joint defense agreement in October to try to keep Parnas (and Fruman) quiet. It seems Parnas quickly realized, when Dowd started giving him orders in jail, that he was going to be the fall guy for all their shady dealings, Rudy’s shady dealings, done on behalf of the President.

 

 

Lev Parnas, Creator of Echo Chambers

/124 Comments/in , , /by

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

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

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

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

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

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

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

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

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

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

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

Update: Made some minor rewrites for clarity.

Update: Fixed location of Hyde’s breakdown.