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Questions for Robert Mueller (and His Prosecutors) that Go Beyond the Show

I generally loathe the questions that people are drafting for Robert Mueller’s July 17 testimony before the House Judiciary and Intelligence Committees, largely because those questions are designed for a circus and not to learn information that’s useful for understanding the Mueller investigation. Here are the questions I’d ask instead (I’ll update these before Mueller testifies).

  1. Can you describe how you chose which “links between the Russian government and individuals associated with the campaign of President Donald Trump” to focus your investigation on?
  2. The warrants released in Michael Cohen’s case and other public materials show that your grand jury conducted investigations of people before Rod Rosenstein formally expanded the scope to include them in October 2017. Can you explain the relationship between investigative steps and the Rosenstein scope memos?
  3. Lisa Page has explained that in its initial phase, the investigation into Trump’s aides was separate from the larger investigation(s) into Russian interference. But ultimately, your office indicted Russians in both the trolling and the hack-and-leak conspiracies. How and when did those parts of DOJ’s investigation get integrated under SCO?
  4. An FD-302 memorializing a July 19, 2017 interview with Peter Strzok was released as part of Mike Flynn’s sentencing. Can you describe what the purpose of this interview was? How did the disclosure of Strzok’s texts with Lisa Page affect the recording (or perceived credibility) of this interview? Strzok was interviewed before that disclosure, but the 302 was not finalized until he had been removed from your team. Did his removal cause any delay in finalizing this 302?
  5. At the beginning of the investigation, your team investigated the criminal conduct of subjects unrelated to ties with Russia (for example, Paul Manafort’s ties with Ukraine, Mike Flynn’s ties to Turkey). Did the approach of the investigation change later in the process to immediately refer such issues to other offices (for example, Michael Cohen’s hush payments and graft)? If the approach changed, did your team or Rod Rosenstein drive this change? Is the Mystery Appellant related to a country other than Russia?
  6. Did your integration of other prosecutors (generally from DC USAO) into your prosecution teams stem from a resourcing issue or a desire to ensure continuity? What was the role of the three prosecutors who were just detailees to your team?
  7. Your report describes how FBI personnel shared foreign intelligence and counterintelligence information with the rest of FBI. For more than a year, FBI agents were embedded with your team for this purpose. Were these agents focused just on Russian activities, or did their focus include the actions of other countries and Americans? If their focus included Americans, did it include Trump associates? Did it include Trump himself?
  8. Can you describe the relationship between your GRU indictment and the WDPA one focused on the WADA hacks, and the relationship between your IRA indictment and the complaint against a Yevgeniy Prigozhin employee in EDVA? Can you describe the relationship between the Maria Butina prosecution and your investigation?
  9. Do you regret charging Concord Management in the IRA indictment? Do you have any insight on how indictments against Russian and other state targets should best be used?
  10. In discussions of Paul Manafort’s plea deal that took place as part of his breach hearing, Andrew Weissmann revealed that prosecutors didn’t vet his testimony as they would other cooperators. What led to this lack of vetting? Did the timing of the election and the potential impact Manafort’s DC trial might have play into the decision?
  11. What communication did you receive from whom in response to the BuzzFeed story on Trump’s role in Michael Cohen’s false testimony? How big an impact did that communication have on the decision to issue a correction?
  12. Did Matt Whitaker prevent you from describing Donald Trump specifically in Roger Stone’s indictment? Did you receive any feedback — from Whitaker or anyone else — for including a description of Trump in the Michael Cohen plea?
  13. Did Whitaker, Bill Barr, or Rosenstein weigh in on whether Trump should or could be subpoenaed? If so what did they say? Did any of the three impose time constraints that would have prevented you from subpoenaing the President?
  14. Multiple public reports describe Trump allies (possibly including Mike Flynn or his son) expressing certainty that Barr would shut down your investigation once he was confirmed. Did this happen? Can you describe what happened at the March 5, 2019 meeting where Barr was first briefed? Was that meeting really the first time you informed Rosenstein you would not make a determination on obstruction?
  15. You “ended” your investigation on March 22, at a time when at least two subpoena fights (Andrew Miller and Mystery Appellant) were ongoing. You finally resigned just minutes before Andrew Miller agreed to cooperate on May 29. Were these subpoenas for information critical to your investigation?
  16. If Don Jr told you he would invoke the Fifth if subpoenaed by the grand jury, would that fact be protected by grand jury secrecy? Are you aware of evidence you received involving the President’s son that would lead him to be less willing to testify to your prosecutors than to congressional committees? Can congressional committees obtain that information?
  17. Emin Agalarov canceled a concert tour to avoid subpoena in your investigation. Can you explain efforts to obtain testimony from this key player in the June 9 meeting? What other people did you try to obtain testimony from regarding the June 9 meeting?
  18. Did your investigation consider policy actions taken while Trump was President, such as Trump’s efforts to overturn Russian sanctions or his half-hearted efforts to comply with Congressional mandates to impose new ones?
  19. Can you describe how you treated actions authorized by Article II authority — such as the conduct of foreign policy, including sanctions, and the awarding of pardons — in your considerations of any criminal actions by the President?
  20. The President did not answer any questions about sanctions, even the one regarding discussions during the period of the election. Do you have unanswered questions about the role of sanctions relief and the Russian interference effort?
  21. Your report doesn’t include several of the most alarming interactions between Trump and Russia. It mentions how he told Sergey Lavrov and Sergey Kislyak he had fired Comey because of the Russian investigation, but did not mention that he shared classified Israeli intelligence at the meeting. Your report doesn’t mention the conversations Trump had with Vladimir Putin at the G-20 in Hamburg, including one pertaining to “adoptions,” while he was working on the June 9 meeting. The report doesn’t mention the Helsinki meeting. Did your investigation consider these interactions with Russia? If not, are you aware of another part of the government that did scrutinize these events?
  22. Why did you include Trump’s efforts to mislead the public about the June 9 meeting when it didn’t fit your team’s own terms for obstructive acts?
  23. You generally do not name the Trump lawyers who had discussions, including about pardons, with subjects of the investigation. How many different lawyers are described in your report to have had such discussions?
  24. You asked — but the President provided only a partial answer — whether he had considered issuing a pardon for Julian Assange prior to the inauguration. Did you investigate the public efforts — including by Roger Stone — to pardon Assange during Trump’s Administration?
  25. The cooperation addendum in Mike Flynn’s case reveals that he participated in discussions about reaching out to WikiLeaks in the wake of the October 7 Podesta releases. But that does not appear in the unredacted parts of your report. Is the entire scope of the campaign’s interactions with WikiLeaks covered in the Roger Stone indictment?
  26. Hope Hicks has claimed to be unaware of a strategy to coordinate the WikiLeaks releases, yet even the unredacted parts of the report make it clear there was a concerted effort to optimize the releases. Is this a difference in vocabulary? Does it reflect unreliability on the part of Hicks’ testimony? Or did discussions of WikiLeaks remain partially segregated from the communications staff of the campaign?
  27. How many witnesses confirmed knowing of conversations between Roger Stone and Donald Trump about WikiLeaks’ upcoming releases?
  28. The President’s answers regarding the Trump Tower Moscow match the false story for which Michael Cohen pled guilty, meaning the President, in his sworn answers, provided responses you have determined was a false story. After Cohen pled guilty, the President and his lawyer made public claims that are wholly inconsistent with his sworn written answer to you. You offered him an opportunity to clean up his sworn answer, but he did not. Do you consider the President’s current answer on this topic to be a lie?
  29. Did Trump Organization provide all the emails pertaining to the Trump Tower Moscow deal before you subpoenaed the organization in early 2018? Did they provide those emails in response to that subpoena?
  30. In his answers to your questions, President Trump claimed that you received “an email from a Sergei Prikhodko, who identified himself as Deputy Prime Minister of the Russian Federation … inviting me to participate in the St. Petersburg International Economic Forum.” But the footnotes to your discussion of that exchange describe no email. Did your team receive any email? Does the public record — showing that Trump never signed the declination letter to that investigation — show that Trump did not decline that invitation?

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The FBI Went to Microsoft, not Trump Organization, for Emails Incriminating Individual-1

I’m working on a post showing how slow the investigation into Donald Trump and his associates was, contrary to the President’s squeals. That led me to realize something about this August 1 search warrant application for Michael Cohen’s Trump Organization email.

Trump Organization used Microsoft to host their email.

54. On or about July 14,2017, the Federal Bureau of Investigation sent a request, pursuant to l8 U.S.C. $ 2703(f), to Microsoft, requesting that Microsoft preserve all content for all email accounts associated with the domain “trumporg.com,” which included the Target Account.

55. On or about July 20,2017 and again on or about July 25,2017,in response to a grand jury subpoena, Microsoft confirmed that the Target Account was an active account associated with the domain trumporg.com. Microsoft also provided records indicating that email accounts associated with the domain “trumporg.com” are being operated on a Microsoft Exchange server. According to publicly available information on Microsoft’s website, Microsoft hosts emails for clients on Microsoft Exchange servers, while allowing customers to use their own domain (as opposed to the publicly available email domains supplied by Microsoft, such as hotmail.com). According to information supplied by Microsoft, the domain trumporg.com continues to operate approximately 150 active email accounts through Microsoft Exchange, meaning that data associated with trumporg.com still exists on Microsoft’s servers.

[snip]

62. On or about June 21, 2017, the Federal Bureau of Investigation sent a request, pursuant to 18 U.S.C. $ 2703(f), to Microsoft, requesting that Microsoft preserve all content associated with the Target Account.

That means Microsoft — and not (just) Trump Organization — controlled access to these accounts.

This is something that has long been an unrecognized problem. If the government wants your email and your business or university has Microsoft or Gmail host email for them, the tech giants will get and respond to a law enforcement request, not the entity that might make privilege or First Amendment legal challenges to the subpoena. For example, the government would have gotten Xiaoxiang Xi and Ally Watkins’ Temple University email from Google, not the University, preventing both from making a First Amendment challenge to the warrant.

Microsoft sued over the sheer number of gags on such subpoenas in 2016; few people realized that they were concerned primarily about businesses like Trump Organization, not individual customers. That suit settled on October 24, 2017 after DOJ agreed to provide Microsoft more leeway to notice its customers.

But that agreement would have come too late for Michael Cohen and anyone else at Trump Organization who might have been investigated by DOJ. Since June 21, 2017, Cohen’s emails were preserved, and since July 14, 2017 — just after the June 9 meeting arranged via what appears to be Don Jr’s Trump Organization email became public — all Trump Organization emails have been preserved.

In DOJ’s opposition to Michael Cohen’s efforts to get a restraining order on the materials seized in the April 9, 2018 raid on him, there was a redacted reference suggesting that some materials may have gotten destroyed.

Mueller didn’t subpoena documents from Trump Organization directly until March 2018. So if they discovered documents via email searches direct from Microsoft that were withheld in that March subpoena — such as the emails that Cohen received on Trump Tower Moscow — it might explain this redaction.

This is the kind of thing that Trump might make a big stink about, if he ever figures it out (or if it gets Trump Organization lawyer Alan Garten in trouble for blowing off subpoenas — they were already non-responsive in response to the May HPSCI subpoena). But it’s the kind of thing that businesses and universities everywhere are exposed by.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Why Trump Believed He Could Withhold the June 9 Email: Because He Succeeded in Withholding Moscow Trump Tower Ones

In this post, I showed that I was correct when I wrote, back in January, that the Trump Organization did not turn over all the documents requested in the House Intelligence Committee subpoena to Michael Cohen. Trump Organization withheld — from HPSCI and from Cohen — the email that shows Dmitry Peskov’s office did respond to Cohen’s request for help (as well as emails showing that he kept trying to reach Peskov’s office).

On January 20, 2016, Cohen received an email from Elena Poliakova, Peskov’s personal assistant. Writing from her personal email account, Poliakova stated that she had been trying to reach Cohen and asked that he call her on the personal number that she provided.350 Shortly after receiving Poliakova’s email, Cohen called and spoke to her for 20 minutes.

I also showed that Trump’s sworn response to a Mueller question about all this replicates the lies that Cohen told in his false statement to Congress.

I had few conversations with Mr. Cohen on this subject. As I recall, they were brief, and they were not memorable. I was not enthused about the proposal, and I do not recall any discussion of travel to Russia in connection with it. I do not remember discussing it with anyone else at the Trump Organization, although it is possible. I do not recall being aware at the time of any communications between Mr. Cohen or Felix Sater and any Russian government official regarding the Letter of Intent. In the course of preparing to respond to your questions, I have become aware that Mr. Cohen sent an email regarding the Letter of Intent to “Mr. Peskov” at a general, public email account, which should show there was no meaningful relationship with people in power in Russia. I understand those documents already have been provided to you.

[snip]

With that in mind, consider the substance of that middle paragraph. It repeats the key lies that Cohen pled guilty to in December:

  • Trump and Cohen only have a few (three) conversations about the deal rather than ten or more
  • Trump did not know of any travel plans to Russia
  • Trump didn’t discuss the project with anyone else at Trump Org, including Ivanka and Don Jr
  • Cohen’s attempt to contact Dmitry Peskov in January 2016 was via a public email address and proved unsuccessful

Compare those lies with the three main lies Cohen pled guilty to.

  • The Moscow Project ended in January 201 6 and was not discussed extensively with others in the Company.
  • COHEN never agreed to travel to Russia in connection with the Moscow Project and “never considered” asking Individual 1 to travel for the project.
  • COHEN did not recall any Russian government response or contact about the Moscow Project.

Not knowing (or caring) that his former fixer was already cooperating with Mueller, Trump repeated precisely the same lies Cohen is now in prison for, did so under oath, and refused to fix those responses when given an opportunity to.

All that’s important background for something explained in the Mueller Report: that it was Trump — not Hope Hicks (as Mark Corallo feared) — who planned to withhold the thread of emails setting up the June 9 meeting to hide that Don Jr had accepted dirt from the Russian government. In the weeks before the NYT learned of the emails, Trump repeatedly tried to insulate himself from being shown the emails and said that “just one lawyer should deal with the matter” to prevent them from leaking.

According to Hicks, Kushner said that he wanted to fill the President in on something that had been discovered in the documents he was to provide to the congressional committees involving a meeting with him, Manafort, and Trump Jr.678 Kushner brought a folder of documents to the meeting and tried to show them to the President, but the President stopped Kushner and said he did not want to know about it, shutting the conversation down.679

On June 28, 2017, Hicks viewed the emails at Kushner’s attorney’s office.680 She recalled being shocked by the emails because they looked “really bad.”681 The next day, Hicks spoke privately with the President to mention her concern about the emails, which she understood were soon going to be shared with Congress.682 The President seemed upset because too many people knew about the emails and he told Hicks that just one lawyer should deal with the matter.683 The President indicated that he did not think the emails would leak, but said they would leak if everyone had access to them.684

Later that day, Hicks, Kushner, and Ivanka Trump went together to talk to the President.685 Hicks recalled that Kushner told the President the June 9 meeting was not a big deal and was about Russian adoption, but that emails existed setting up the meeting.686 Hicks said she wanted to get in front of the story and have Trump Jr. release the emails as part of an interview with “softball questions.”687 The President said he did not want to know about it and they should not go to the press.688 Hicks warned the President that the emails were “really bad” and the story would be “massive” when it broke, but the President was insistent that he did not want to talk about it and said he did not want details.689 Hicks recalled that the President asked Kushner when his document production was due. 690 Kushner responded that it would be a couple of weeks and the President said, “then leave it alone.”691 Hicks also recalled that the President said Kushner’s attorney should give the emails to whomever he needed to give them to, but the President did not think they would be leaked to the press.692 Raffel later heard from Hicks that the President had directed the group not to be proactive in disclosing the emails because the President believed they would not leak.693

When the NYT reached out to the White House for the story, Trump uncharacteristically told Hicks not to comment for the story.

On July 7, 2017, while the President was overseas, Hicks and Raffel learned that the New York Times was working on a story about the June 9 meeting.695 The next day, Hicks told the President about the story and he directed her not to comment.696 Hicks thought the President’s reaction was odd because he usually considered not responding to the press to be the ultimate sin.697

Then, when Trump, who was with Hicks, was chewing Mark Corallo out for the counter-statement he released, Hicks, “channel[ed] the President” by saying that the email would never get out.

The next day, July 9, 2017, Hicks and the President called Corallo together and the President criticized Corallo for the statement he had released.721 Corallo told the President the statement had been authorized and further observed that Trump Jr. ‘s statement was inaccurate and that a document existed that would contradict it.722 Corallo said that he purposely used the term “document” to refer to the emails setting up the June 9 meeting because he did not know what the President knew about the emails.723 Corallo recalled that when he referred to the “document” on the call with the President, Hicks responded that only a few people had access to it and said “it will never get out.”724 Corallo took contemporaneous notes of the call that say: “Also mention existence of doc. Hope says ‘ only a few people have it. It will never get out.”‘725 Hicks later told investigators that she had no memory of making that comment and had always believed the emails would eventually be leaked, but she might have been channeling the President on the phone call because it was clear to her throughout her conversations with the President that he did not think the emails would leak.726

In the period when the Joint Defense Agreement was trying to respond to Congressional requests for documents on Trump’s ties to Russia, the President’s response was to argue that “just one lawyer should deal with the matter” to ensure that the emails did not get out.

That lawyer is Alan Garten.

We know that because in Cohen’s March 6 testimony to the House Intelligence Committee, he described that Alan Garten and Alan Futerfas were in charge of document collection for the Trump Organization.

THE CHAIRMAN: A number of those emails were never turned over to our committee in the document production. Do you know who was responsible for the document production and who would have withheld those documents from this committee?

MR. COHEN: Alan Futerfas and Alan Garten.

More specifically, Cohen’s February 28 testimony to the House Intelligence Committee, he described a meeting he had with Garten on document production. He was telling the story to explain that at the meeting, Garten told Cohen enough for him to figure out that Trump was the one who drafted the false statement on the June 9 meeting.

THE CHAIRMAN: You mentioned a meeting also with Alan Garten?

MR. COHEN: Yes, sir.

THE CHAIRMAN: And can you tell us who that is?

MR. COHEN: Alan Garten is now general counsel at The Trump Organization, And prior to that, he was assistant general counsel.

THE CHAIRMAN: You referenced that in the context of this also raised your suspicion of collusion. What in particular were you referring to?

MR. COHEN: My conversation with Alan Garten was in regard to, I believe, this committee’s subpoena where they wanted all of my contacts from the Trump Org server. And in order to limit the amount, because there were about 10,000, he brought to me a stack of pages and wanted me to go through each one of those email addresses to the best of my ability to mark off which ones were family, which ones were friends, which ones related to Trump Org business, which ones were just solicitations, Google alerts, et cetera. We started to engage in conversation, because at the time the news cycle was all over the allegation that the conversation going back and forth was about adoption. And I said, well, what’s going on? Tell me what happened. So he told me that he was with Don Jr. and that they were communicating back and forth with Air Force One. And he goes, you know how it gets, back and forth and back and forth. He goes, it was such a process. That was the conversation with Alan Garten.

THE CHAIRMAN: And tell me what raised your suspicion about that conversation.

MR. COHEN: lt was about how to describe the meeting, the Trump Tower meeting, as to whether it was about obtaining dirt on Hillary Clinton or it was about adoption. And what he expressed to me is that, you know, Mr. Trump drafted the first round, and it came to Don and him, and then they sent it back, and back and forth.

THE CHAIRMAN: So what he described to you was Mr. Trump’s participation in the creation of a false statement about what took place in that meeting?

MR. COHEN: Yes, that’s how he described it. Well, that’s how I understood it.

But the point of the meeting was to begin the document response process from Trump Organization that resulted in the most damning emails — emails that would prove false the story Cohen and the Trump family lawyers planned to tell about the Trump Tower Moscow deal — being withheld.

In the March 6 one, Adam Schiff got Cohen to repeat that the reason he and Garten were having this conversation in the first place is because Garten was pulling documents to reply to Congressional requests.

Q Well, let me ask it a different way. What was the purpose of him showing you your contacts and other documents?

A The Trump Organization received a subpoena in order to turn over documents, and since I had no documents, everything being in their custody and control, they wanted the contacts to be limited to, I suspect, non-business-related, you know, removal, family removal emails that are not pertaining to the investigation.

Q So the purpose of the meeting was to discuss a document production that The Trump Organization needed to provide?

A Correct.

Q And was it to provide to this committee?

A I don’t know which committee, but I suspect it was all the committees.

Q All right. And do you recall that the false statement that Don Jr. issued about the Trump Tower meeting that was discussed on Air Force One, do you recall that happened in approximately June of 2017?

A I believe so.

Garten was with Don Jr in person as they worked back and forth with Hope Hicks and Donald Trump on Air Force One to draft the June 9 meeting that Trump wanted to lie about by making sure the email didn’t leak.

There were no lawyers on Air Force One. This is the conversation that, in his appearances before Congress, Don Jr successfully avoided discussing because he was with his lawyer. But no privilege should have attached to that conversation because Garten did not represent Trump personally (Trump was supposed to be walled off from Trump Organization matters), much less Hope Hicks.

In June 2017, when Donald Trump was trying to sustain a false story about the June 9 meeting by suggesting that if just one lawyer dealt with the matter, the email disproving that story would not be “leaked,” Alan Garten was ensuring that the email disproving Michael Cohen’s false story did not get turned over to Congress.

That’s why Trump thought he’d get away with the lie. Because he almost got away with it on the Trump Tower Moscow story.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The Mueller Report Redactions and the Claims about “Collusion”

On Volume II page 121 of the Mueller Report, a partial transcript of the call Trump’s lawyer (WaPo says this is John Dowd) placed to Mike Flynn’s lawyer on November 22, 2017 appears, along with even more damning details about a follow-up call from the following day.

In late November 2017, Flynn began to cooperate with this Office. On November 22, 2017, Flynn withdrew from a joint defense agreement he had with the President.833 Flynn’s counsel told the President’s personal counsel and counsel for the White House that Flynn could no longer have confidential communications with the White House or the President.834 Later that night, the President’s personal counsel left a voicemail for Flynn’s counsel that said:

I understand your situation, but let me see if I can’t state it in starker terms. . . . [I]t wouldn’t surprise me if you’ve gone on to make a deal with … the government. … [I]f . .. there’s information that implicates the President, then we’ve got a national security issue, . . . so, you know, . . . we need some kind of heads up. Um, just for the sake of protecting all our interests ifwe can …. [R]emember what we’ve always said about the ‘ President and his feelings toward Flynn and, that still remains …. 835

On November 23, 2017, Flynn’s attorneys returned the call from the President’s personal counsel to acknowledge receipt of the voicemail.836 Flynn ‘s attorneys reiterated that they were no longer in a position to share information under any sort of privilege.837 According to Flynn’s attorneys, the President’s personal counsel was indignant and vocal in his disagreement.838 The President’s personal counsel said that he interpreted what they said to him as a reflection of Flynn’s hostility towards the President and that he planned to inform his client of that interpretation.839 Flynn’s attorneys understood that statement to be an attempt to make them reconsider their position because the President’s personal counsel believed that Flynn would be disturbed to know that such a message would be conveyed to the President.840

This is, of course, the call referenced in Flynn’s less redacted cooperation addendum released last week. A whole slew of reporters who have claimed to have read the Mueller Report over the last month claimed that this passage had been redacted in the report, which is something that Quinta Jurecic and I had a bit of a laugh about on Chris Hayes’ show Friday night.

In fact, there’s likely to be very little of great interest submitted when the government complies with Judge Emmet Sullivan’s order to submit an unclassified version of the Flynn passages of the report by May 31.

The revelation in Flynn’s cooperation addendum that he provided information on close-hold discussions about WikiLeaks means some of those conversations may be unsealed in that production. But aside from that, this redaction on Volume I page 183 — footnoting a discussion of the consideration of whether Flynn was a foreign agent and probably discussing an ongoing counterintelligence investigation into Russians, not Flynn — is the one of the only Flynn-related passages that might be of any interest that is not otherwise grand jury material.

With just a few notable exceptions, the redactions aren’t that nefarious.

Using Grand Jury redactions to protect the President from political pressure

I’ve noted two exceptions to that. One is the way DOJ used grand jury redactions to hide the details of how both Donald Trumps refused to testify (even while Jr continues to be willing to testify before congressional committees that don’t have all the evidence against him).

There are two redactions hiding details of what happened when Jr was subpoenaed.

Volume I page 117 on the June 9 meeting:

Volume II page 105 on President Trump’s involvement in writing the June 9 statement.

And there are two redactions hiding the discussion of subpoenaing Trump.

Volume II page 12 introducing the obstruction of justice analysis.

Appendix C introducing Trump’s non-responsive answers.

These redactions are all ones that Congress should ask more about. If Don Jr told Mueller he would invoke the Fifth, we deserve to know that (particularly given his willingness to appear with less informed committees). More importantly, the role of Trump’s refusal to answer questions (as well as any concerns he had about Don Jr’s jeopardy) are necessary parts to any discussion of obstruction of justice.

Plus, the President of the United States should not be able to hide his unwillingness to cooperate with an investigation into his own wrong-doing by claiming it’s grand jury material.

The use of “Personal Privacy” to hide central players

In his description of the four types of redactions in the report, Bill Barr described the fourth — “personal privacy” — as relating to “peripheral third parties.”

As I explained in my letter of April 18, 2019, the redactions in the public report fall into four categories: (1) grand-jury information, the disclosure of which is prohibited by Federal Rule of Criminal Procedure 6(e); (2) investigative techniques, which reflect material identified by the intelligence and law enforcement communities as potentially compromising sensitive sources, methods, or techniques, as well as information that could harm ongoing intelligence or law enforcement activities; (3) information that, if released, could harm ongoing law enforcement matters, including charged cases where court rules and orders bar public disclosure by the parties of case information; and (4) information that would unduly infringe upon the personal privacy and reputational interests of peripheral third parties, which includes deliberation about decisions not to recommend prosecution of such parties.

Some of the PP redactions do pertain to genuinely peripheral players.

For example, sometimes they hide the random people with whom Russian trolls communicated.

In others, they hide the names of other victims of GRU hacking (including Colin Powell, who is not a private person but is peripheral to this discussion).

In other places, they hide the names of genuinely unrelated people or businesses.

But as I have noted, Mueller treated this category as a declinations decision, not a privacy one.

I previously sent you a letter dated March 25, 2019, that enclosed the introduction and executive summary for each volume of the Special Counsel’s report marked with redactions to remove any information that potentially could be protected by Federal Rule of Criminal Procedure 6(e); that concerned declination decisions; or that related to a charged case. [my emphasis]

Among the people Barr claims are “peripheral” players who have been investigated but not charged are Don Jr in the second redaction in this passage:

Carter Page on page 183.

And KT McFarland and several other key players on page 199.

Don’t get me wrong: I think these redactions are absolutely proper. The description of them, however, is not. Barr is pretending these people are “peripheral” to avoid having to admit, “in addition to Trump’s Campaign Manager, Deputy Campaign Manager, Personal Lawyer, Life-Long Rat-Fucker, National Security Advisor, and Foreign Policy Advisor who have either pled guilty to, been found by a judge to have, or been indicted for lying in an official proceeding, Mueller seriously considered charging at least three other Trump associates with lying.”

The expansive redactions pertaining to WikiLeaks and Roger Stone

So aside from the grand jury redactions hiding how Trump Sr and Jr dodged testifying and the way Barr describes the declinations redactions, I think the redactions are generally pretty judicious. I’m less certain, though, about the redactions pertaining to Roger Stone, the bulk of which appear in Volume I pages 51 to 59, 188 to 191, 196 to 197. and Volume II, pages 17 to 18 and 128 to 130.

There are two reasons to redact this information: most importantly, to comply with the gag order imposed by Amy Berman Jackson that prohibits lawyers on either side from making statements that “pose a substantial likelihood of material prejudice” to Stone’s case, or to hide information from Stone that he doesn’t otherwise know.

Except that we know he has already gotten the latter category of information in discovery. In a filing opposing Stone’s bid to get an unredacted copy of the Mueller Report, prosecutors noted that “disclosable information that may have been redacted from the public version of the Special Counsel’s report to the Attorney General is already being provided to the defendant in discovery.”

And it seems highly likely that some of the information in these redacted passages is stuff that would only prejudice Stone’s case by raising the import of it to Trump.

Consider, for starters, that (unless I’m mistaken) not a word from Stone’s indictment appears in this Report. For example, the descriptions of how Stone asked Jerome Corsi to ask Ted Malloch to find out what WikiLeaks had coming and a follow-up email reflecting knowledge that John Podesta would be targeted must be reflected on pages 55 and 56.

On or about July 25, 2016, STONE sent an email to Person 1 with the subject line, “Get to [the head of Organization 1].” The body of the message read, “Get to [the head of Organization 1] [a]t Ecuadorian Embassy in London and get the pending [Organization 1] emails . . . they deal with Foundation, allegedly.” On or about the same day, Person 1 forwarded STONE’s email to an associate who lived in the United Kingdom and was a supporter of the Trump Campaign.

On or about July 31, 2016, STONE emailed Person 1 with the subject line, “Call me MON.” The body of the email read in part that Person 1’s associate in the United Kingdom “should see [the head of Organization 1].”

On or about August 2, 2016, Person 1 emailed STONE. Person 1 wrote that he was currently in Europe and planned to return in or around mid-August. Person 1 stated in part, “Word is friend in embassy plans 2 more dumps. One shortly after I’m back. 2nd in Oct. Impact planned to be very damaging.” The phrase “friend in embassy” referred to the head of Organization 1. Person 1 added in the same email, “Time to let more than [the Clinton Campaign chairman] to be exposed as in bed wenemy if they are not ready to drop HRC. That appears to be the game hackers are now about. Would not hurt to start suggesting HRC old, memory bad, has stroke – neither he nor she well. I expect that much of next dump focus, setting stage for Foundation debacle.”

Page 56 actually includes new proof that Stone and Corsi had confirmed that Podesta’s emails were coming. Malloch describes Corsi telling him about Podesta’s emails, not vice versa.

Malloch stated to investigators that beginnin in or about Au ust 2016, he and Corsi had multiple Face Time discussions about WikiLeaks [redacted] had made a connection to Assange and that the hacked emails of John Podesta would be released prior to Election Day and would be helpful to the Trump Campaign. In one conversation in or around August or September 2016, Corsi told Malloch that the release of the Podesta emails was coming, after which “we” were going to be in the driver’s seat.221

Likewise, the indictment makes it clear that Stone was talking to the campaign about WikiLeaks releases.

ROGER JASON STONE, JR. was a political consultant who worked for decades in U.S. politics and on U.S. political campaigns. STONE was an official on the U.S. presidential campaign of Donald J. Trump (“Trump Campaign”) until in or around August 2015, and maintained regular contact with and publicly supported the Trump Campaign through the 2016 election.

During the summer of 2016, STONE spoke to senior Trump Campaign officials about Organization 1 and information it might have had that would be damaging to the Clinton Campaign. STONE was contacted by senior Trump Campaign officials to inquire about future releases by Organization 1.

[snip]

By in or around June and July 2016, STONE informed senior Trump Campaign officials that he had information indicating Organization 1 had documents whose release would be damaging to the Clinton Campaign. The head of Organization 1 was located at all relevant times at the Ecuadorian Embassy in London, United Kingdom.

After the July 22, 2016 release of stolen DNC emails by Organization 1, a senior Trump Campaign official was directed to contact STONE about any additional releases and what other damaging information Organization 1 had regarding the Clinton Campaign. STONE thereafter told the Trump Campaign about potential future releases of damaging material by Organization 1.

We see outlines of precisely who those references are to in the report.

Most notably, after describing Trump’s enthusiasm after Stone told Trump while Michael Cohen was listening on the speaker phone that the DNC emails would drop in a few days just before they did (which Cohen described in his testimony to Oversight), these two paragraphs, appear to to describe Manafort and Trump’s enthusiasm after the DNC release, with Manafort telling both Stone directly and Gates that he wanted to be kept informed via Stone of what was coming. And having gotten some indication of what was coming, the campaign started making plans to optimize those releases. It appears that Gates, like Cohen before him, witnessed a Stone-Trump call where the rat-fucker told the candidate what was coming.

These pages also have more background about how important all this was to Trump, who was frustrated that Hillary’s deleted emails hadn’t been found (something also told, in Flynn’s voice, in the Peter Smith section).

The references to Stone in these passages may well be appropriately redacted. But the descriptions of conversations between Trump and Manafort or Gates should not impact Stone’s defense — unless you want to argue that Trump’s personal involvement in Stone’s rat-fucking might change the deliberations for a jury. They don’t serve to hide Stone’s actions. They hide Trump’s enthusiasm for using materials stolen by Russia to win.

This affects the “collusion” discussion

All of this has particular import given the basis on which Attorney General Bill Barr tried to exonerate the President for obstruction. In Barr’s 4-page summary of the report, Barr emphasized that Trump did not conspire or coordinate with the Russian government, even going so far as to suggest that no Trump associate “conspired or coordinated with the Russian government on these efforts,” efforts which in context include, “publicly disseminat[ing hacked] materials through various intermediaries, including WikiLeaks.”

As the report states: “[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

[snip]

In assessing potential conspiracy charges, the Special Counsel also considered whether members of the Trump campaign “coordinated” with Russian election interference activities. The Special Counsel defined “coordinated” as an “agreement–tacit or express–between the Trump Campaign and the Russian government on election interference.”

[snip]

The second element involved the Russian government’s efforts to conduct computer hacking operations designed to gather and disseminate information to influence the election. The Special Counsel found that Russian government actors successfully hacked into computers and obtained emails from persons affiliated with the Clinton campaign and Democratic Party organizations, and publicly disseminated those materials through various intermediaries, including WikiLeaks. Based on these activities, the Special Counsel brought criminal charges against a number of Russian military officers for conspiring to hack into computers in the United States for purposes of influencing the election. But as noted above, the Special Counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in these efforts, despite multiple offers from Russian-affiliated individuals to assist the Trump campaign.

Of course, that leaves off coordinating with WikiLeaks because WikiLeaks is not the Russian government, even while in context it would be included.

Similarly, in Barr’s “no collusion” press conference, he again emphasized that Trump’s people were not involved in the hacking. Then he made a remarkable rhetorical move [I’ve numbered the key sentences].

But again, the Special Counsel’s report did not find any evidence that members of the Trump campaign or anyone associated with the campaign conspired or coordinated with the Russian government in its hacking operations.  In other words, there was no evidence of Trump campaign “collusion” with the Russian government’s hacking.

The Special Counsel’s investigation also examined Russian efforts to publish stolen emails and documents on the internet.  The Special Counsel found that, after the GRU disseminated some of the stolen materials through its own controlled entities, DCLeaks and Guccifer 2.0, the GRU transferred some of the stolen materials to Wikileaks for publication.  Wikileaks then made a series of document dumps.  [1] The Special Counsel also investigated whether any member or affiliate of the Trump campaign encouraged or otherwise played a role in these dissemination efforts.  [2] Under applicable law, publication of these types of materials would not be criminal unless the publisher also participated in the underlying hacking conspiracy.  [3] Here too, the Special Counsel’s report did not find that any person associated with the Trump campaign illegally participated in the dissemination of the materials.

Given what we know to be in the report, those three sentences look like this:

  1. Mueller asked, did any Trump affiliate encourage or otherwise play a role in WikiLeaks’ dissemination?
  2. By the way, if a Trump affiliate had played a role in the dissemination it wouldn’t be illegal unless the Trump affiliate had also helped Russia do the hacking.
  3. After finding that a Trump affiliate had played a role in the dissemination, Mueller then determined that that role was not illegal.

Again, “collusion” is not a legal term. It describes coordination — legal or not — in sordid activities. What these three sentences would say, if Barr had been honest, is that Mueller did find coordination, but because Stone (via yet unidentified means) coordinated with WikiLeaks, not Russia itself, Mueller didn’t find that the coordination was illegal.

Note that even Bill Barr, who’s a pretty shameless hack, still qualified the “no collusion” judgment on which he presents his obstruction analysis as pertaining to Russia.

After finding no underlying collusion with Russia, the Special Counsel’s report goes on to consider whether certain actions of the President could amount to obstruction of the Special Counsel’s investigation.  As I addressed in my March 24th letter, the Special Counsel did not make a traditional prosecutorial judgment regarding this allegation.  Instead, the report recounts ten episodes involving the President and discusses potential legal theories for connecting these actions to elements of an obstruction offense.

After carefully reviewing the facts and legal theories outlined in the report, and in consultation with the Office of Legal Counsel and other Department lawyers, the Deputy Attorney General and I concluded that the evidence developed by the Special Counsel is not sufficient to establish that the President committed an obstruction-of-justice offense.

Barr bases his obstruction analysis on “collusion,” not conspiracy. But his 1-2-3 gimmick above lays out that non-criminal “collusion” did happen, only that it happened with WikiLeaks.

For his part, Mueller points to those same passages that get redacted in the first discussion in his background discussion for the obstruction volume.

Importantly, the redaction in this footnote makes it clear that the campaign was relying on what they were learning from Stone to plan their communication strategy for upcoming releases.

Remember, in his charging decisions on campaign finance, Mueller didn’t actually say no crime had been committed. He said the evidence was not sufficient to obtain and sustain a criminal conviction.

The Office similarly determined that the contacts between Campaign officials and Russia-linked individuals either did not involve the commission of a federal crime or, in the case of campaign-finance offenses, that our evidence was not sufficient to obtain and sustain a criminal conviction.

There are multiple places where the report makes it clear that, in addition to the June 9 meeting, the campaign finance crimes reviewed included the WikiLeaks releases, including the Table of Contents.

Indeed, the paragraph describing why Trump may have wanted to fire Jim Comey focuses closely on the campaign’s response to the WikiLeaks releases.

In addition, the President had a motive to put the FBI’s Russia investigation behind him. The evidence does not establish that the termination of Comey was designed to cover up a conspiracy between the Trump Campaign and Russia: As described in Volume I, the evidence uncovered in the investigation did not establish that the President or those close to him were involved in the charged Russian computer-hacking or active-measure conspiracies, or that the President otherwise had an unlawful relationship with any Russian official. But the evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns. Although the President publicly stated during and after the election that he had no connection to Russia, the Trump Organization, through Michael Cohen, was pursuing the proposed Trump Tower Moscow project through June 2016 and candidate Trump was repeatedly briefed on the progress of those efforts.498 In addition, some witnesses said that Trump was aware that [redacted] at a time when public reports stated that Russian intelligence officials were behind the hacks, and that Trump privately sought information about future WikiLeaks releases.499 More broadly, multiple witnesses described the President’s preoccupation with press coverage of the Russia investigation and his persistent concern that it raised questions about the legitimacy of his election.500 [my emphasis]

And a more general discussion of Trump’s motives later in the obstruction discussion raises it — and the possibility that it would be judged to be criminal — explicitly.

In this investigation, the evidence does not establish that the President was involved in an underlying crime related to Russian election interference. But the evidence does point to a range of other possible personal motives animating the President’s conduct. These include concerns that continued investigation would call into question the legitimacy of his election and potential uncertainty about whether certain events–such as advance notice of WikiLeaks’s release of hacked information or the June 9, 2016 meeting between senior campaign officials and Russians–could be seen as criminal activity by the President, his campaign, or his family. [my emphasis]

The most damning revelations about the President’s own actions during the campaign in this report pertain to his exploitation of the WikiLeaks releases. They go directly to the question of criminal liability (which Mueller says he couldn’t charge for evidentiary reasons, not because he didn’t think it was a crime), and if you want to talk “collusion” as opposed to “conspiracy” — as the President does — it goes to “collusion.”

And in the guise of protecting Roger Stone’s right to a fair trial — and possibly with an eye towards preserving the President’s ability to pardon Stone before a trial reveals even more of these details — DOJ used a heavy hand on the redactions pertaining to Trump’s own personal involvement in exploiting the benefit his campaign received from WikiLeaks releasing emails that Russia stole from Hillary. These details are the bulk of what DOJ is hiding by offering just a small number of members of Congress to review the less-redacted version of the report.

Perhaps Mueller agreed with all these redactions; it’s a question I hope he gets asked when he finally testifies. But the redactions serve to hide what was clearly a close call on prosecution and one of the most damning explanations for Trump’s obstruction, an explanation that involved his own actions on the campaign.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The Trump Campaign Discussed Reaching Out to WikiLeaks after WikiLeaks Helped Them Win

The government has released less redacted copies of Mike Flynn’s cooperation addendum (and two other documents that are not substantially less redacted except in revealing the names of people involved). Here’s the prior addendum for comparison sake.

The newly released document shows that in addition to Flynn’s cooperation against his former partner Bijan Kian, there were three parts to Flynn’s cooperation with the Mueller investigation (assuming a remaining redaction, likely to be the counterintelligence investigation, is not part of the Mueller investigation in chief). Aside from revealing that Flynn told Mueller who else was in the loop on his calls with Sergey Kislyak and the detail that others (who are not named) cleaned up their testimony after he flipped, as well as details about obstruction — some, but not all of which — show up in the report, the addendum reveals:

The defendant also provided useful information concerning discussions within the campaign about WikiLeaks’ release of emails. WikiLeaks is an important subject of the SCO’s investigation because a Russian intelligence service used WikiLeaks to release emails the intelligence service stole during the 2016 presidential campaign. On July 22, 2016, WikiLeaks released emails stolen from the Democratic National Committee. Beginning on October 7, 2016, WikiLeaks released emails stolen from John Podesta, the chairman of Hillary Clinton’s 2016 presidential campaign. The defendant relayed to the government statements made in 2016 by senior campaign officials about WikiLeaks to which only a select few people were privy. For example, the defendant recalled conversations with senior campaign officials after the release of the Podesta emails, during which the prospect of reaching out to WikiLeaks was discussed.

These references may be redacted in the Mueller Report.

As I’ve noted, one question from Mueller that Trump refused to answer was whether he discussed giving WikiLeaks a pardon. We know that immediately after the election WikiLeaks contacted Roger Stone and said they were more free to talk.

Julian Assange also reached out to Don Jr about making him Ambassador to Australia.

Hi Don. Hope you’re doing well! In relation to Mr. Assange: Obama/Clinton placed pressure on Sweden, UK and Australia (his home country) to illicitly go after Mr. Assange. It would be real easy and helpful for your dad to suggest that Australia appoint Assange ambassador to DC “That’s a really smart tough guy and the most famous australian you have! ” or something similar. They won’t do it, but it will send the right signals to Australia, UK + Sweden to start following the law and stop bending it to ingratiate themselves with the Clintons. 12/16/16 12:38PM

And starting in 2017, there was a year long effort by Trump flunkies, including Stone, to get Assange that pardon.

This revelation — that top people on the campaign considered reaching out to WikiLeaks — is not just new information, but information that likely is not included in the Mueller Report — unless it is included in the WikiLeaks declination and presumed referral — given the structure of the redacted sections (which end on October 7).

The timing of this, with Stone having received whatever testimony Flynn gave in this in discovery, and Assange awaiting extradition proceedings at Belmarsh but with little of this showing up in the Report itself, is acutely interesting.

Also interesting: Mueller did not include Flynn’s cooperation on the Peter Smith effort in his cooperation addendum (which Mueller notes is not comprehensive, although that shows up three times in the Mueller Report).

Update: Here’s the newly unsealed language on the obstruction stuff.

The defendant assisted the SCO’s investigation into potential efforts to interfere with or otherwise obstruct its investigation. See ODAG Order (authorizing the Special Counsel to investigation “any other matters within the scope of 28 C.F.R. § 600.4(a)”). The defendant informed the government of multiple instances, both before and after his guilty plea, where either he or his attorneys received communications from persons connected to the Administration or Congress that could have affected both his willingness to cooperate and the completeness of that cooperation. The defendant even provided a voicemail recording of one such communication. In some of those instances, the SCO was unaware of the outreach until being alerted to it by the defendant.

The big thing that was not in the Mueller Report is that someone connected to Congress was involved in the effort to dissuade Flynn to cooperate. While Nunes or one of his aides are a likely choice to be that person (and Rod Rosenstein had suggested along the way Nunes was violating secrecy orders on shared information on the investigation), don’t forget that Flynn has close ties to the Ledeens and was described as “colluding” with both in the Report; Barbara is an SJC staffer.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The Scope and Results of the Mueller Report

There’s a Twitter account, TrumpHop, that tweets out Donald Trump’s tweets from years earlier, which is a really disorienting way to remind yourself how crazy he’s been since he’s been on Twitter. This morning, it recalled that two years ago today, Trump was inventing excuses for having shared highly classified Israeli intelligence at the same meeting where he boasted to Sergei Lavrov that he fired Jim Comey a week earlier because of the Russian investigation.

Two years ago, Rod Rosenstein — the same guy who stood, mostly stoically, as a prop for Bill Barr’s deceitful press conference spinning the Mueller Report one last time before releasing it — was in a panic, trying to decide what to do about a President who had fired the FBI Director to end an investigation into what might be real counterintelligence compromise on his part by a hostile foreign country and then went on to share intelligence with that same hostile foreign country. Tomorrow is the two year anniversary of Mueller’s appointment.

As I noted days after the Mueller Report was released, it is utterly silent on that sharing of information and two of the other most alarming incidents between Trump and Russia (though that may be for sound constitutional, rather than scope reasons) — Trump’s conversation with Putin about the subject of his own June 9 false statement even as he was drafting that statement, and the Helsinki meeting. That said, it cannot be true that Mueller didn’t consider those counterintelligence issues, because his treatment of Mike Flynn would have been far different if he didn’t have good reason to be sure — even if he deliberately obscures the reasons why he’s sure in the report — that Flynn, at the time under active counterintelligence investigation for his suspect ties to Russia, wasn’t entirely freelancing when he undermined US policy to offer sanctions considerations to Russia on December 29, 2016.

Nevertheless, a rising cry of people are suggesting that because we weren’t told the results of the counterintelligence investigation (whether it included the President or, because of constitutional reasons, did not), Mueller did not conduct a counterintelligence investigation. He (and, especially, FBI Agents working alongside him) did. Here’s what the report says, specifically, about the FBI writing up CI and Foreign Intelligence reports to share with the rest of FBI.

From its inception, the Office recognized that its investigation could identify foreign intelligence and counterintelligence information relevant to the FBI’s broader national security mission. FBI personnel who assisted the Office established procedures to identify and convey such information to the FBI. The FBI’s Counterintelligence Division met with the Office regularly for that purpose for most of the Office’s tenure. For more than the past year, the FBI also embedded personnel at the Office who did not work on the Special Counsel’s investigation, but whose purpose was to review the results of the investigation and to send-in writing-summaries of foreign intelligence and counterintelligence information to FBIHQ and FBI Field Offices. Those communications and other correspondence between the Office and the FBI contain information derived from the investigation, not all of which is contained in this Volume. This Volume is a summary. It contains, in the Office’s judgment, that information necessary to account for the Special Counsel’s prosecution and declination decisions and to describe the investigation’s main factual results.

Mueller didn’t report on it, as he states explicitly, because that’s outside the scope of what he was required and permitted to report under the regulations governing his appointment, which call for a prosecutions and declinations report.

That’s just one of the misconceptions of the scope, intent, and results of the Mueller Report that persists (and not just among the denialist crowd), almost a month after its release.

The Mueller Report does not purport to tell us what happened — that would be a violation of the regulations establishing the Special Counsel. It only describes the prosecutorial and declination decisions. The scope of those decisions includes:

  • Who criminally conspired in two Russian election interference efforts (just one American was charged, but he did not know he was helping Russians troll the US)
  • Whether Trump’s associates were agents of a foreign power in violation of FARA or 18 USC 951, including whether they were agents of Ukraine (as Paul Manafort and Rick Gates were before the election), Israel (as lots of evidence suggested George Papadopoulos might have been), Turkey (as Mike Flynn admitted he had been during and for a short while after the election), as well as Russia
  • Whether Trump’s associates conspired with Russia in some way; Mueller’s review included a quid pro quo, but his prosecutorial decisions did not include things unrelated to Russia’s election interference (which might, for example, include pure graft, including during the Transition period or related to the inauguration)
  • Which of Trump’s associates got charged with lying (Flynn, Papadopoulos, Michael Cohen, Roger Stone), were ruled by a judge to have lied (Paul Manafort), and which lied but were not charged (at least three others, including KT McFarland) in an effort to obstruct the investigation
  • Whether accepting a meeting offering dirt as part of the Russian government’s assistance to Trump or optimizing WikiLeaks’ release of emails stolen by Russia to help Trump’s campaign amount to accepting illegal donations from foreigners
  • Whether Trump’s numerous efforts to undermine the investigation amount to obstruction

Two facts necessarily follow from Mueller’s limit in his report to prosecutorial decisions rather than describing what happened, both of which are explained on page 2 of the report (though even the Attorney General, to say nothing of the denialist crowd, appears not to have read that far). First, Mueller did not weigh whether Trump “colluded” with Russia, because that’s not a crime that could be prosecuted or declined.

In evaluating whether evidence about collective action of multiple individuals constituted a crime, we applied the framework of conspiracy law, not the concept of “collusion.” In so doing, the Office recognized that the word “collud[e]” was used in communications with the Acting Attorney General confirming certain aspects of the investigation’s scope and that the term has frequently been invoked in public reporting about the investigation. But collusion is not a specific offense or theory of liability found in the United States Code, nor is it a term of art in federal criminal law.

Because “collusion” is not a crime, Mueller could not weigh in one way or another without being in violation of the regulations underlying his appointment. Mind you, Bill Barr could have changed these reporting requirements if he wanted and asked Mueller to comment on “collusion.” He did not.

In addition, Mueller’s measure was always whether his investigation “established” one or another crime. But stating that he did not establish a crime is not the same as saying there was no evidence of that crime.

A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.

Mueller describes in very general way that he didn’t get all the information he’d have liked to weigh whether or not conspiracy was committed.

The investigation did not always yield admissible information or testimony, or a complete picture of the activities undertaken by subjects of the investigation. Some individuals invoked their Fifth Amendment right against compelled self-incrimination and were not, in the Office’s judgment, appropriate candidates for grants of immunity. The Office limited its pursuit of other witnesses and information–such as information known to attorneys or individuals claiming to be members of the media–in light of internal Department of Justice policies. See, e.g. , Justice Manual §§ 9-13.400, 13.410. Some of the information obtained via court process, moreover, was presumptively covered by legal privilege and was screened from investigators by a filter (or “taint”) team. Even when individuals testified or agreed to be interviewed, they sometimes provided information that was false or incomplete, leading to some of the false-statements charges described above. And the Office faced practical limits on its ability to access relevant evidence as well-numerous witnesses and subjects lived abroad, and documents were held outside the United States.

Further, the Office learned that some of the individuals we interviewed or whose conduct we investigated–including some associated with the Trump Campaign—deleted relevant communications or communicated during the relevant period using applications that feature encryption or that do not provide for long-term retention of data or communications records. In such cases, the Office was not able to corroborate witness statements through comparison to contemporaneous communications or fully question witnesses about statements that appeared inconsistent with other known facts.

More specifically, we know this language covers at least the following limits on the investigation:

  • Encryption or evidence destruction prevented Mueller from clarifying details of the handoff to WikiLeaks, Gates’ sharing (on Manafort’s orders) of polling data with Russia, Manafort’s communications with various people, and Erik Prince and Steve Bannon’s communications about the Seychelles meeting with Kirill Dmitriev
  • Mueller did not pursue the role of Trump and other associates’ lawyers’ substantial, known role in obstruction
  • Mueller likely did not pursue an interview with Julian Assange (and other media figures), because that would violate US Attorney Handbook warnings against compelling the sharing of journalism work product to investigate a crime related to that work product
  • Some foreigners avoided cooperating with the investigation by staying out of the country; Emin Agalarov canceled an entire US tour to avoid testifying about what kind of dirt he offered Don Jr
  • Both Donald Trumps refused to be interviewed
  • President Trump refused to answer all questions pertaining to his actions after inauguration, all but one question about the Transition, and all questions about sanctions; his other answers were largely contemptuous and in a number of cases conflict with his own public statements or the testimony of his associates

Finally a more subtle point about the results, which will set up my next post. Mueller clearly states that he did not establish a conspiracy between Trump’s people and the Russian government on election interference. By definition, that excludes whatever coordination Roger Stone had with WikiLeaks (and even with the extensive redactions, it’s clear Mueller had real First Amendment concerns with charging that coordination). But whereas Mueller said that the contacts between Trump’s associates and Russians did not amount to a crime, he suggested that the two campaign finance issues he explored — the June 9 meeting and the release of stolen emails — were crimes but not ones he could sustain a conviction for.

The Office similarly determined that the contacts between Campaign officials and Russia-linked individuals either did not involve the commission of a federal crime or, in the case of campaign-finance offenses, that our evidence was not sufficient to obtain and sustain a criminal conviction.

The gaps in evidence that Mueller was able to collect strongly impact this last judgment: as he laid out, he needed to know what Don Jr understood when he accepted the June 9 meeting, and without interviewing either Emin Agalarov and/or Jr, he couldn’t get at Jr’s understanding of the dirt offered.

As I’ve noted repeatedly, it is absolutely false to claim –as Attorney General Barr did — that Mueller’s report says there was no underlying crime to cover up with Trump’s obstruction. Mueller specifically mentions SDNY’s prosecution of Trump’s hush payments to Stormy Daniels and Karen McDougal, a crime which was charged, and which was one of the explicit purposes behind the raid on Cohen’s home and office. And as such, that crime is pertinent to the pardon dangle for Cohen.

In January 2018, the media reported that Cohen had arranged a $130,000 payment during the campaign to prevent a woman from publicly discussing an alleged sexual encounter she had with the President before he ran for office.1007 This Office did not investigate Cohen’s campaign period payments to women. 1008 However, those events, as described here, are potentially relevant to the President’s and his personal counsel’s interactions with Cohen as a witness who later began to cooperate with the government.

But with regards to the Russian-related campaign finance investigation, Mueller describes that Trump may have believed those would be criminal.

[T]he evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns.

The distinction about whether a crime was committed versus whether it was charged may be subtle. But it is an important one for the obstruction investigation. And as I’ll show, that may have interesting repercussions going forward.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Trump’s Excuse for His Promised Speech on Hillary Clinton

On June 21, 2016, the day after Christopher Steele submitted the first installment in his dossier, Guccifer 2.0 published what the persona deemed a dossier on Hillary Clinton. It included a bunch of files — many dating to April 2015 — that summarized potential attacks on Hillary, often providing rebuttals. These documents appear to be the kind of reports campaigns do to prepare for attacks they expect to be hit with.

The “dossier” included four files relating to the Clinton Foundation (two of which were responses to the Peter Schweizer book Clinton Cash), one on defenses to attacks on her email server, another on attacks on Bill and Chelsea, and a summary of the attacks GOP primary candidates had made on her, a number of which focused on national security. While the files were definitely dated (and the financial records, in particular, worthless), it is the closest thing to a “dossier” of “kompromat” released during the entire Russian operation.

The timing of that release and its focus — including on Schweizer’s book — is worth revisiting given the explanation Trump gave Mueller (starting on PDF 427) for his aborted promise, on June 7, 2016 to, “give a major speech on probably Monday of next week and we’re going to be discussing all of the things that have taken place with the Clintons.”

g. On June 7, 2016, you gave a speech in which you said, in part, “I am going to give a major speech on probably Monday of next week and we’re going to be discussing all of the things that have taken place with the Clintons.”

i. Why did you make that statement?

ii. What information did you plan to share with respect to the Clintons?

iii. What did you believe the source(s) of that information would be?

iv. Did you expect any of the information to have come from the June 9 meeting?

v. Did anyone help draft the speech that you were referring to? If so, who?

v. Why did you ultimately not give the speech you referenced on June 7, 2016?

[snip]

In remarks I delivered the night I won the California, New Jersey, New Mexico, Montana, and South Dakota Republican primaries, I said, “I am going to give a major speech on probably Monday of next week and we’re going to be discussing all of the things that have taken place with the Clintons.” In general, l expected to give a speech referencing the publicly available, negative information about the Clintons, including, for example, Mrs. Clinton’s failed policies, the Clintons’ use of the State Department to further their interests and the interests of the Clinton Foundation, Mrs. Clinton’s improper use of a private server for State Department business, the destruction of 33,000 emails on that server, and Mrs. Clinton’s temperamental unsuitability for the office of President.

In the course of preparing to respond to your questions, I have become aware that the Campaign documents already produced to you reflect the drafting, evolution, and sources of information for the speech I expected to give “probably” on the Monday following my June 7, 2016 comments. These documents generally show that the text of the speech was initially drafted by Campaign staff with input from various outside advisors and was based on publicly available material, including, in particular, information from the book Clinton Cash by Peter Schweizer.

The Pulse Nightclub terrorist attack took place in the early morning hours of Sunday, June 12, 2016. In light of that tragedy, I gave a speech directed more specifically to national security and terrorism than to the Clintons. That speech was delivered at the Saint Anselm College Institute of Politics in Manchester, New Hampshire, and, as reported, opened with the following:

This was going to be a speech on Hillary Clinton and how bad a President, especially in these times of Radical Islamic Terrorism, she would be. Even her former Secret Service Agent, who has seen her under pressure and in times of stress, has stated that she lacks the temperament and integrity to be president. There will be plenty of opportunity to discuss these important issues at a later time, and I will deliver that speech soon. But today there is only one thing to discuss: the growing threat of terrorism inside of our borders.

I continued to speak about Mrs. Clinton’s failings throughout the campaign, using the information prepared for inclusion in the speech to which I referred on June 7, 2016.

If the documents submitted to Mueller do back his claims that the speech was in preparation ahead of time, then Trump’s answer is one of the most responsive ones he gave Mueller. But we’ve already seen one instance — whether Trump ever declined an invitation to St. Petersburg from Russian Deputy Prime Minister Sergei Prikhodko (if footnotes are understood to be comprehensive, Trump submitted an unsigned letter, but not a signed copy or the emails that supposedly extended the invitation) — where Trump’s written responses claimed that documentation submitted to Mueller substantiated more than they appear to have.

And Trump didn’t really answer the question why he didn’t give a designated speech focused on those topics; he instead simply suggested he covered those topics along the way, generally.

Elsewhere, the report describes a discussion at a meeting that Mueller believes happened on June 6 relayed by Rick Gates at which Don Jr promised damaging information about the Clinton Foundation which — though vague — appears to reference an upcoming meeting.

Rick Gates, who was the deputy campaign chairman, stated during interviews with the Office that in the days before June 9, 2016 Trump Jr. announced at a regular morning meeting of senior campaign staff and Trump family members that he had a lead on negative information about the Clinton Foundation.703 Gates believed that Trump Jr. said the information was coming from a group in Kyrgyzstan and that he was introduced to the group by a friend. 704 Gates recalled that the meeting was attended by Trump Jr., Eric Trump, Paul Manafort, Hope Hicks, and, joining late, Ivanka Trump and Jared Kushner. According to Gates, Manafort warned the group that the meeting likely would not yield vital information and they should be careful.705 Hicks denied any knowledge of the June 9 meeting before 2017,706 and Kushner did not recall if the planned June 9 meeting came up at all earlier that week.707 [my emphasis]

Which is why I find it interesting that Guccifer 2.0 released a set of documents that — while not all that exciting, were nevertheless directly on point regarding the topics Trump claimed were already being drafted into a speech he’d give.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

One Man’s Declination Decision Is Another Man’s Criminal Suspect Failson

One thing Robert Mueller’s March 27 letter to Attorney General William Barr reveals — in addition to the fact that Mueller is as pissed as he has ever been in his career — is that the two men think very differently about the redactions in the now released report. DOJ has always said it redacted information for four reasons:

  • Grand jury material
  • Ongoing investigations
  • Investigative techniques (sources and methods)
  • Peripheral privacy

It was always clear the last category was — as described — abusively applied. That’s because a number of knowable PP details involve people who are not peripheral at all. For example, I suggested that the redacted description of someone who committed perjury on page 194 might be Carter Page (one other possibility, given the discrepancies between George Papadopoulos and Sam Clovis’ testimony, is the latter figure). One of the people whose lies are detailed on page 199 must be KT McFarland, who managed to correct the lies she told when first interviewed by the FBI in the wake of Mike Flynn’s plea deal.

But the most obvious example of this comes in the scope paragraph on page 12:

While the first redaction is uncertain, the second redaction of the expanded scope — which came after the investigation started focusing on the June 9 meeting — has to be Don Jr given the spacing on the second line, which can only be a suffix.

KT McFarland is not a peripheral figure by any shade. But the President’s son is the definition of a central player. And yet Bill Barr would have you believe that redaction is some coffee boy hired on a whim.

And the thing is, these redactions are hiding not just innocent bystanders. Don Jr is someone whom Mueller believed broke the law — at least on campaign finance and maybe on CFAA when he accessed a non-public site using a password obtained from WikiLeaks (I had thought the redaction on page 179 was of some script kiddies investigated in Philadelphia, but now that I realize these PP redactions are not of peripheral people at all, I’m reconsidering) — but who couldn’t or shouldn’t be charged.

Compare his treatment with that of Jeff Sessions’ forgetfulness about meeting with Sergey Kislyak, which the report presents as a complete exoneration. The discussion of that exoneration is unredacted in both the investigative scope on page 12 and declinations section (197-198).

Mueller in his letter makes it clear he doesn’t consider that PP category peripheral people. Rather, he treats it as a declination decision.

I previously sent you a letter dated March 25, 2019, that enclosed the introduction and executive summary for each volume of the Special Counsel’s report marked with redactions to remove any information that potentially could be protected by Federal Rule of Criminal Procedure 6(e); that concerned declination decisions; or that related to a charged case. [my emphasis]

The appropriateness of the redaction may be the same in both cases: clearly Mueller believes those not charged, even if it was a close call, should not be identified (with the notable exception of Jeff Sessions).

But Mueller is not pretending these are peripheral figures. The Attorney General is hiding the seriousness of potential criminal acts by at least five Trump flunkies — including Trump’s failson — by pretending these people are peripheral figures rather than central figures that, for whatever reason, the Special Counsel decided not to charge.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Paul Manafort Violated Campaign Policy in Risking a Meeting with Konstantin Kilimnik on August 2, 2016

When Don Jr testified before the Senate Judiciary Committee, he defended accepting a meeting from a bunch of Russians offering dirt, in part, by noting that he took the meeting before there was such a focus on “Russian activities.”

Nonetheless, at the time I thought I should listen to what Rob and his colleagues had to say. To the extent that they had information concerning the fitness, character, or qualifications of any presidential candidate, I believed that I should at least hear them out. Depending on what, if any, information that they had, I could then consult with counsel to make an informed decision as to whether to give it any further consideration. I also note at this time  there was no focus on Russian activities that there is today.

The guy who Mueller decided was too stupid to be charged with a campaign finance violation basically explained away doing so (as he has elsewhere): that because the public wasn’t yet aware of the efforts Russia was making to get his dad elected — and the suspicious ties between key campaign figures and Russians — it was reasonable for him to take dirt from Russians.

And the Mueller Report actually does show that the campaign passed up offers from Russians they otherwise seemed to find attractive later in the summer, after the release of the DNC emails made Russia’s intentions clear.

For example, after Sergei Millian reached out to George Papadopoulos promising to help him reach leaders of the Russian-American community, the “Coffee Boy” was instructed to decline the offer because too many stories were accurately telling voters how pro-Russian both the campaign and — especially — Paul Manafort was.

On July 31, 2016, following his first in-person meeting with Millian, Papadopoulos emailed Trump Campaign official Bo Denysyk to say that he had been contacted “by some leaders of Russian-American voters here in the US about their interest in voting for Mr. Trump,” and to ask whether he should “put you in touch with their group (US-Russia chamber of commerce).”507 Denysyk thanked Papadopoulos “for taking the initiative,” but asked him to “hold off with outreach to Russian-Americans” because “too many articles” had already portrayed the Campaign, then-campaign chairman Paul Manafort, and candidate Trump as “being pro-Russian.”508

Similarly when, after JD Gordon twice emphasized with Sergei Kislyak at the Convention that he had meant what he said in his speech — that the US should have better relations with Russia (see pages 123-4) — Kislyak invited Gordon to breakfast at his residence. Gordon would have been happy to take the invite, according to an email he sent in response to the invitation. But he said he’d take a raincheck for when “things quiet down a bit.”

On August 3, 2016, an official from the Embassy of the Russian Federation in the United States wrote to Gordon ” [o]n behalf of’ Ambassador Kislyak inviting Gordon “to have breakfast/tea with the Ambassador at his residence” in Washington, D.C. the following week.818 Gordon responded five days later to decline the invitation. He wrote, “[t]hese days are not optimal for us, as we are busily knocking down a constant stream of false media stories while also preparing for the first debate with HRC. Hope to take a raincheck for another time when things quiet down a bit. Please pass along my regards to the Ambassador.” 819

While Gordon doesn’t say the “false media stories” were explicitly about Russia, that is where the focus was at the time (indeed, the defeat of the Ukraine amendment in the platform that Gordon himself had carried out was one focus of that media attention). Update: In the obstruction section, the report confirms this was about Russia:

For example, in August 2016, foreign policy advisor J.D. Gordon declined an invitation to Russian Ambassador Sergey Kislyak’s residence because the timing was “not optimal” in view of media reports about Russian interference.46

46 DJTFP00004953 (8/8/16 Email, Gordon to Pchelyakov) (stating that “[t]hese days are not optimal for us, as we are busily knocking down a stream of false media stories”).

So it seems clear that in the wake of the DNC dump and revelations about the platform, Carter Page, and Manafort, the campaign did make a conscious effort to “take a raincheck” on any more approaches from Russia.

It’s against that background that the August 2 meeting between Manafort, Rick Gates, and someone Gates believed was a Russian spy, Konstantin Kilimnik, is all the more remarkable.

As the report describes, at the same time other campaign staffers were being told to turn down approaches from Russia, the campaign manager set up a late night meeting with the same Russian employee who was involved in so much of the scandal (and to whom he had been sending internal polling data since the spring). At the meeting, the campaign manager discussed at least three things: how Trump planned to win the three states that would ultimately make the difference in the election — Pennsylvania, Wisconsin, and Michigan (along with Minnesota, which also was unexpectedly close), a plan that required Manafort and Trump’s buy-off to give Russia part of Ukraine, and a way for Manafort (who was working for Trump for “free”) to get paid by Ukrainian oligarchs and to get Oleg Deripaska to forgive a huge debt.

The events leading to the meeting are as follows. On July 28, 2016, Kilimnik flew from Kiev to Moscow.912 The next day, Kilimnik wrote to Manafort requesting that they meet, using coded language about a conversation he had that day.913 In an email with a subject line “Black Caviar,” Kilimnik wrote:

I met today with the guy who gave you your biggest black caviar jar several years ago. We spent about 5 hours talking about his story, and I have several important messages from him to you. He asked me to go and brief you on our conversation. I said I have to run it by you first, but in principle I am prepared to do it. … It has to do about the future of his country, and is quite interesting.914

Manafort identified “the guy who gave you your biggest black caviar jar” as Yanukovych. He explained that, in 2010, he and Y anukovych had lunch to celebrate the recent presidential election. Yanukovych gave Manafort a large jar of black caviar that was worth approximately $30,000 to $40,000.915 Manafort’s identification of Yanukovych as “the guy who gave you your biggest black caviar jar” is consistent with Kilimnik being in Moscow-where Yanukovych resided-when Kilimnik wrote “I met today with~ a December 2016 email in which Kilimnik referred to Yanukovych as “BG,”-916 Manafort replied to Kilimnik’s July 29 email, “Tuesday [August 2] is best . .. Tues or weds in NYC.”917

Three days later, on July 31, 2016, Kilimnik flew back to Kiev from Moscow, and on that same day, wrote to Manafort that he needed “about 2 hours” for their meeting “because it is a long caviar story to tell.”918 Kilimnik wrote that he would arrive at JFK on August 2 at 7:30 p.m., and he and Manafort agreed to a late dinner that night.919 Documentary evidence- including flight, phone, and hotel records, and the timing of text messages exchanged920-confirms the dinner took place as planned on August 2.921

As to the contents of the meeting itself, the accounts of Manafort and Gates — who arrived late to the dinner — differ in certain respects. But their versions of events, when assessed alongside available documentary evidence and what Kilimnik told business associate Sam Patten, indicate that at least three principal topics were discussed.

First, Manafort and Kilimnik discussed a plan to resolve the ongoing political problems in Ukraine by creating an autonomous republic in its more industrialized eastern region of Donbas,922 and having Yanukovych, the Ukrainian President ousted in 2014, elected to head that republic.923 That plan, Manafort later acknowledged, constituted a “backdoor” means for Russia to control eastern Ukraine.924 Manafort initially said that, if he had not cut off the discussion, Kilimnik would have asked Manafort in the August 2 meeting to convince Trump to come out in favor of the peace plan, and Yanukovych would have expected Manafort to use his connections in Europe and Ukraine to support the plan.925 Manafort also initially told the Office that he had said to Kilimnik that the plan was crazy, that the discussion ended, and that he did not recall Kilimnik asking Manafort to reconsider the plan after their August 2 meeting.926 Manafort said [redacted] that he reacted negatively to Yanukovych sending — years later — an “urgent” request when Yanukovych needed him.927 When confronted with an email written by Kilimnik on or about December 8, 2016, however, Manafort acknowledged Kilimnik raised the peace plan again in that email.928 Manafort ultimately acknowled ed Kilimnik also raised the eace Ian in ~ary 2017 meetings with Manafort [grand jury redaction] 929

Second, Manafort briefed Kilimnik on the state of the Trump Campaign and Manafort’s plan to win the election.930 That briefing encompassed the Campaign’s messaging and its internal polling data. According to Gates, it also included discussion of “battleground” states, which Manafort identified as Michigan, Wisconsin, Pennsylvania, and Minnesota.931 Manafort did not refer explicitly to “battleground” states in his telling of the August 2 discussion, [grand jury redaction]

Third, according to Gates and what Kilimnik told Patten, Manafort and Kilimnik discussed two sets of financial disputes related to Manafort’s previous work in the region. Those consisted of the unresolved Deripaska lawsuit and the funds that the Opposition Bloc owed to Manafort for his political consulting work and how Manafort might be able to obtain payment.933

Eight days after that meeting at which Manafort described how they might win Rust Belt swing states, where Kilimnik pitched a plan to break up Ukraine, and where Kilimnik also explained what Manafort would have to do to get paid by his Ukrainian paymasters, Manafort told his accountant to book that Ukrainian money, which he said would be paid in November.

Here’s the thing about this meeting, which Trump’s campaign manager and his deputy attended even while the campaign was telling other associates to “take a rain check” on outreach from Russia. They, too, recognized the problem of being caught accepting such outreach. They just tried to avoid getting caught.

After the meeting, Gates and Manafort both. stated that they left separately from Kilimnik because they knew the media was tracking Manafort and wanted to avoid media reporting on his connections to Kilimnik.934

This is a point Amy Berman Jackson made when she ruled that Manafort had lied about this meeting (and the sharing of polling data).

If he was, as he told me, so single-mindedly focused on the campaign, then the meeting he took time to attend and had [redacted] had a purpose [redacted]. Or, if it was just part of his effort to [redacted], well, in that case he’s not being straight with me about how single-minded he was. It’s not good either way.

Plus, his asserted inability to remember rings hollow when the event we are discussing involving [redacted] not only [redacted] but he’s [redacted] with a specific understanding and intent that [redacted] at a meeting in which the participants made it a point of leaving separate because of the media attention focused at that very time on Manafort’ relationships with Ukraine.

Manafort had claimed he was so busy trying to win a campaign that he forgot the meeting at which he discussed carving up Ukraine in the same two hour discussion where he talked about the import of Pennsylvania, Michigan, and Wisconsin in winning that campaign. And to attend the meeting, he risked public scrutiny on precisely the Russian ties that every other member of the campaign was being told to discourage.

Update: This Amy Berman Jackson order reveals a little more about how Rick Gates’ updated testimony changes the story. It sounds like when Gates heard that prosecutors used Manafort’s order to Gates to print out polling data on August 2 to prove that he had shared it with Kilimnik, he contacted prosecutors and told them that they had, in fact, used it at the staff meeting that morning, which is the explanation Manafort gave for the order. He says he arrived late so doesn’t know if Manafort shared that particular polling data with Kilimnik.

But ABJ refused Manafort’s request for reconsideration of her judgment that he lied about that for several reasons:

  • He still lied about sharing polling data to be passed on to Ukrainian and Russian oligarchs
  • He still lied about the Ukraine “peace” deals
  • She still gave him credit for his plea

Given those details, the Manafort bid for reconsideration must just be an attempt to discredit what is one of the most damning details in the Mueller Report.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

What if Julian Assange Flipped?

I’ve said this before, I’ll say it again: I hope to hell Chelsea Manning’s advisors are cognizant of the ways her attempts to avoid testifying against Julian Assange may put her in unforeseen legal jeopardy.

I’m thinking of that anew given my consideration of what I consider to be a distant, but real, possibility: that the US government would offer Assange a plea deal on the current charge he faces in exchange for testimony in a range of other issues. The idea is crazy, but perhaps not as crazy as it sounds.

As I laid out in this post, it seems the US government has been carefully orchestrating the Assange arrest since Ecuador first applied for diplomatic status for him in 2017 in an attempt to exfiltrate him, possibly to Russia. They’re now on the clock, with (depending on which expert you ask) just 44 more days to lard on the additional charges multiple outlets have reported are coming. Meanwhile, he’s being held at Belmarsh, with conflicting stories about what kind of visitors he’s been permitted — though the UN Special Rapporteur for Privacy did visit him this week. Though I’ve asked some top experts, it’s not entirely clear whether, if he were being interrogated right now, that’d be under UK law or US law; the former has fewer protections against self-incrimination for people being detained.

One passage of the Mueller Report may provide an explanation for why his prosecutors didn’t obtain Julian Assange’s testimony.

The Office limited its pursuit of other witnesses and information-such as information known to attorneys or individuals claiming to be members of the media-in light of internal Department of Justice policies. See, e.g., Justice Manual §§ 9-13.400, 13.410.

Assange would fall squarely within DOJ policy covering people who are subjects or targets of an investigation for activities related to their news-gathering activities.

Member of the news media as subject or target. In matters in which a member of the Department determines that a member of the news media is a subject or target of an investigation relating to an offense committed in the course of, or arising out of, newsgathering activities, the member of the Department requesting Attorney General authorization to use a subpoena, 2703(d) order, or 3123 order to obtain from a third party the communications records or business records of a member of the news media shall provide all facts necessary to a determination by the Attorney General regarding both whether the member of the news media is a subject or target of the investigation and whether to authorize the use of such subpoena or court order. 28 C.F.R. 50.10(c)(5)(i). If the Attorney General determines that the member of the news media is a subject or target of an investigation relating to an offense committed in the course of, or arising out of, newsgathering activities, the Attorney General’s determination should take into account the principles reflected in 28 C.F.R. 50.10(a), but need not take into account the considerations identified in 28 C.F.R. 50.10(c)(5)(ii) – (viii). Id. Members of the Department must consult with the PSEU regarding whether a member of the news media is a subject or target of an investigation related to an offense committed in the course of, or arising out of, newsgathering activities.

The EDVA case appears to have gotten over this policy (perhaps by distinguishing the assistance on cracking a password from newsgathering activities); but it’s not clear Mueller did (especially given the discussion of First Amendment considerations in passages relating to WikiLeaks). In any case, this calculus may change given that he’s in British, not US custody.

And there has been very little reporting on what’s going on with him — or with US investigations into him.

There are a number of investigations the government would love to get his testimony on, including:

Testimony against Joshua Schulte

Schulte is the accused Vault 7 leaker. WikiLeaks has been far less circumspect about the possibility he’s their source than with other leakers (while also engaging in far less of an effort to lay the case that he’s a whistleblower). Plus, the government has video evidence of Schulte attempting to leak classified information.

But thus far, Schulte’s prosecution has been slowed by CIA’s reluctance to share the classified information Schulte needs to defend himself. Plus, the FBI apparently bolloxed up the initial search warrants for Schulte (in what I suspect was a sloppy effort at parallel construction), which Schulte has been trying to win the ability to speak publicly about for over a year; he recently appealed a decision denying him a request to exempt those initial warrants from his protective order.

To the extent that Assange and Schulte (if he is really the Vault 7 source) communicated — and there’s good reason to believe WikiLeaks did communicate in advance of this publication — then Assange might be able to provide testimony that would get beyond the classification problems.

Testimony about the response to his pardon requests (including Roger Stone’s role in it)

I also believe that DOJ continues to investigate the long effort — an effort that includes Roger Stone, whom prosecutors say is still under investigation — in brokering a pardon for Assange, possibly in part for Assange providing disinformation about where the Democratic documents came from. Consider that, as recently as November, Mueller was trying to learn whether Trump had discussed pardoning Assange before his inauguration, a question about which Trump was especially contemptuous, even given his overall contempt for responding to questions.

Then there’s a subtle point I find really interesting. When the Mueller Report lays out all the times Don Jr magnified Russian trolls, it noted that the failson’s fondness for Russian propaganda continued after the election.

96 See, e.g., @DonaldJTrumpJr 10/26/16 Tweet (“RT @TEN_GOP: BREAKING Thousands of names changed on voter rolls in Indiana. Police investigating #VoterFraud. #DrainTheSwamp.”); @DonaldJTrumpJr 11/2/16 Tweet (“RT @TEN_GOP: BREAKING: #VoterFraud by counting tens of thousands of ineligible mail in Hillary votes being reported in Broward County, Florida.”); @DonaldJTrumpJr 11/8/16 Tweet CRT @TEN_GOP: This vet passed away last month before he could vote for Trump. Here he is in his #MAGA hat. #voted #ElectionDay.”). Trump Jr. retweeted additional @TEN_GOP content subsequent to the election.

[snip]

103 @DonaldJTrumpJr 11/7/16 Tweet (“RT @Pamela jetonc13. Detroit residents speak out against the failed policies of Obama, Hillary & democrats . . . . “) [my emphasis]

The page-long section (page 60) that lays out Don Jr’s innocuous pre-election interactions (which is how I described them when they were first published) does not, similarly, note the President’s son’s more damning interactions with WikiLeaks that took place after the election, where Assange once privately

Hi Don. Hope you’re doing well! In relation to Mr. Assange: Obama/Clinton placed pressure on Sweden, UK and Australia (his home country) to illicitly go after Mr. Assange. It would be real easy and helpful for your dad to suggest that Australia appoint Assange ambassador to DC “That’s a really smart tough guy and the most famous australian you have! ” or something similar. They won’t do it, but it will send the right signals to Australia, UK + Sweden to start following the law and stop bending it to ingratiate themselves with the Clintons. 12/16/16 12:38PM

And then publicly asked for an Ambassadorship that would amount to a pardon.

Given the thoroughness of the report, I find the silence about these exchanges to be notable.

Admittedly, one aspect of the pardon campaign implicates Assange far more than (at least given the public details) it does Trump: his seeming attempt at extortion using the CIA’s hacking tools. But that doesn’t mean the government wouldn’t like his testimony about the larger effort, and I have reason to suspect that is something they were pursuing via other channels as well.

WikiLeaks’ ongoing interactions with Russia

Finally, I’m sure the US government would be willing to give Assange some consideration if he offered to describe his interactions with Russia over the years. The most public aspect of that was the WikiLeaks effort to get Snowden safely out of Hong Kong, which ended unexpectedly in Russia. But there are also credible allegations WikiLeaks engaged in some catch-and-kill of damning documents, most publicly with an incriminating document from the Syria Files. Emma Best looks more closely at that incident in a longer profile of a Russian hacker, Maksym Igor Popov, who seemed to shift loyalties back and forth from the US to Russia even while cultivating Anonymous.

Simultaneously, Sabu, who had been boasting about an alleged breach of Iranian systems, pivoted to the then-pending Syria files. “We owned central syrian bank and got all their emails,” he told Popov. There were “a lot of scandals” in those emails. In the 2012 exchange, Popov is told about an alleged email revealing that Syria had secretly sent Russia billions of Euros. Sabu appears to confuse the amount, which was 2 billion, with an amount from a similar transfer involving an Austrian bank. Reporting by The Daily Dot implies that the two emails were often discussed in the same conversation, while also revealing that the email Sabu was describing to the alleged Russian contractor was omitted from WikiLeaks’ eventual release.

WikiLeaks responded to the reporting by claiming that they “either never had the data or [that it was] in some strange MIME format so it isn’t indexed,” and that the reporting was an attack on WikiLeaks that was meant “to help HRC.”

Popov was impressed by Sabu’s description of the Syria emails, though he briefly confused them with another, unspecified cache that Sabu hinted Popov helped release. “If you want real access to the emails, I can [give it to you],” Sabu offered. Popov responded ecstatically, saying he could use it to create disinformation and fabricate conspiracies. Undaunted by Popov’s intended use for the emails, Sabu said he’d “try to set it all up soon.”

This exchange occurred several months after WikiLeaks received the first batch of the Syria files and several weeks after WikiLeaks gave the LulzSec hackers private access to a search engine to help parse the Stratfor emails which the group had also provided to WikiLeaks.

19:16 <Sabu> though we did very well on syria.. we owned central syrian bank and got all their emails 19:16 <LoD> and Nepalese hack 19:16 <Sabu> a lot of scandals ... like syria sending russia 5 billion euros before civil unrest and when russia sent warsip to trait of whateves its called 19:16 <LoD> Ive actually checked it RESPECT syria gave me some things to mastermind my next operations those email accounts were of much help to improve our strategy 19:17 <LoD> i give you thumbs up 19:17 <Sabu> well we didn't realease it yet ... that was another small hack you released. if you want real access to emails I can ive you 19:17 <LoD> really? 19:17 <LoD> can you? 19:17 <LoD> man I WILL BE in DEBT 19:17 <LoD> I can utilize it in my release 19:18 <LoD> to create a conspiracy 19:18 <Sabu> ya I'll try to set it all up soon

If Popov acquired early access to the Syria files, it would have been the score of a lifetime, giving him an exclusive early inside look at corporations and governments. However, as any later logs of discussions between Popov and Sabu aren’t part of the leaked file, it’s unclear if Popov actually received early access to the Syria files.

Already by this time period in 2011, some former Anons were expressing concern that their operations were being facilitated by Russian infrastructure.

Some followers came to believe that the leaders sought only personal aggrandisement or were effectively in cahoots with the organised criminals who may have raided Sony’s credit-card hoard after Anonymous knocked down the door. Even stalwarts such as Housh are unhappy that much of Anonymous’s infrastructure is now housed on computers used by Russian criminals. “It’s not like the Russians wanted us to get HBGary, but I want to know personally why they are doing this,” he says of the chat hosts. “Where is the money coming from?”

To be sure: a tie with Anonymous is different than a tie directly with WikiLeaks, even if Anonymous was serving as one of WikiLeaks’ important source streams at the time. Further, Best notes that there’s no evidence in available files that Popov interacted directly with WikiLeaks — nor would there be, given the scope of the publicly available chat logs.

But, particularly given the allegations that Assange fed the Seth Rich hoax as part of an effort to deny that he knew he had gotten the Democratic files from Russia, I’m sure the US government would love to know from him about any ties between WikiLeaks and Russia.

Offering Assange a plea deal might be one way to close the book on WikiLeaks without the political controversy of a trial.

The question, of course, is whether Assange would take one. Admittedly, it’s highly unlikely.

Still, as noted, he repeatedly claimed he’d love to tell all if he could avoid prison altogether. But even in a best case scenario, he’s looking at a long extradition fight from Belmarsh in conditions that are reportedly pretty shitty. A plea deal might be one way to limit how much more time in custody he faces.

Which could bode poorly for people like Chelsea Manning, making significant sacrifices to protect Assange.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post.