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Ann Donaldson’s Code Makes Richard Burr’s Tip-Off to the White House Far More Damning

The House Judiciary Committee released Ann Donaldson’s responses to their questions yesterday. In general, she was directed not to answer even more questions than Hope Hicks was. But her answers are interesting on several counts.

First, she offers a range of answers that sometimes confirm she was part of a discussion (and that it happened in Don McGahn’s office or via telephone), sometimes suggest she was part of such a conversation but often claims she does not have an independent memory of whether she was part of it, and sometimes make clear that she was not present. Generally, her answers suggest she learned of most of the events covered by the Mueller Report either by listening in on a phone call or by acting as a sounding board for Don McGahn. She states, “I was in meetings directly with President Trump fewer than ten times” (though she was clearly on McGahn’s side of phone calls more times than that).

But Donaldson’s answers are also interesting for the way in which she applies a series of pat answers to certain questions. Here’s the “code” she uses to answer the questions:

The White House has directed that I not provide any further answer to this question because of the constitutionally-based Executive Branch confidentiality interests that are implicated. These are obviously questions for which a truthful answer would be especially damning to the President.

I have no reason to question the accuracy of the Special Counsel’s Office’s description of my handwritten notes. Donaldson answers this way for many questions about her notes, effectively confirming that the Mueller Report’s citations of her notes are accurate.

Any characterization of my notes set forth in the Report is that of the Special Counsel’s Office and may be derived, in part, from sources other than my notes. One time, she adds this to a description of something in her notes, in response to this question:

Page 72 of the Report recount a meeting that occurred the morning of May 10, 2017 at the White House involving former acting FBI Director Andrew McCabe and the President in which the President said he “received ‘hundreds’ of messages from FBI employees indicating their support for terminating Comey” and “asked McCabe who he had voted for in the 2016 Presidential election.” Footnote 477 notes that the account of the meeting is consistent with your notes at Bates Number SC_AD_00347.

She also answers similarly — suggesting things attributed to her in the Mueller Report may involve her relaying something she learned or other Mueller sources — in response to several questions about her interviews with Mueller.

I affirm the accuracy of the voluntary statements I made when being interviewed by the Special Counsel’s Office. Eight times, she affirms the accuracy of something the report says she said. Those are:

  1. Footnote 279 on page 49 of the Mueller Report references an entry in your notes (SC_AD_00123) stating, “just in the middle of another Russia Fiasco.” The footnote cites back to a discussion on March 2, 2017 between the President and Mr. McGahn, during which “McGahn understood the President to be concerned that a recusal would make Sessions look guilty for omitting details in his confirmation hearing; leave the President unprotected from an investigation that could hobble the presidency and derail his policy objectives; and detract from favorable press coverage of a Presidential Address to Congress the President had delivered earlier in the week.” (15)
  2. Page 51-52 of the Report states that on March 5, 2017, President Trump “told advisors he wanted to call the Acting Attorney General [Dana Boente] to find out whether the White House or the President was being investigated.” The accompanying citation (footnote 306) cites to an entry in your notes, Bates Number SC_AD_000168, stating “POTUS wants to call Dana/Is investigation/No/We know something on Flynn/GSA got contacted by FBI/There’s something hot.” (28)
  3. Page 54 of the Report indicates that on March 21, 2017 “[t]he President called McGahn repeatedly that day to ask him to intervene with the Department of Justice, and, according to the notes, the President was ‘getting hotter and hotter, get rid?’” (40)
  4. Footnote 385 of Page 62 of the Report references an entry in your notes at SC_AD_00265 that states “P called Comey – Day we told him not to? ‘You are not under investigation’ NK/China/Sapping Credibility.” (46)
  5. Page 68 of the Report states, “Notes taken by Donaldson on May 9 reflected the view of the White House Counsel’s Office that the President’s original termination letter should ‘[n]ot [see the] light of day’ and that it would be better to offer “[n]o other rationales” for the firing than what was in Rosenstein’s and Sessions’ memoranda.” The accompanying citation (footnote 442) cites your notes, Bates Number SC_AD_00342. (51)
  6. The Report, on pages 81 and 82 citing to your notes at Bates Number SC_AD_00361, states (footnote 541) that Mr. McGahn “advised that the President could discuss the issue [of whether Mr. Mueller had conflicts of interest] with his personal attorney but it would “‘look like still trying to meddle in [the] investigation’ and ‘knocking out Mueller’ would be ‘[a]nother fact used to claim obst[ruction] of justice.’” (63)
  7. Page 82 of the Report states that Mr. McGahn also “told the President that his ‘biggest exposure’ was not his act of firing Comey but his ‘other contacts’ and ‘calls,’ and his ‘ask re: Flynn.’” The accompanying citation (footnote 542) refers to your notes, SC_AD_00361. (64)
  8. Page 113 of the Report states that on January 25, 2018, the New York Times reported that in June 2017, the President had ordered Mr. McGahn to have the Department of Justice fire the Special Counsel. Page 114 of the Report states that on January 26, 2018, the President’s personal counsel called Mr. McGahn’s personal attorney and said that the President wanted Mr. McGahn to put out a statement denying that he had been asked to fire the Special Counsel and that he had threatened to quit in protest. (77)

I have no reason to question the accuracy of the Special Counsel’s Office’s description of my voluntary statements to it, although I do not have access to its records of my statements. For a number of other questions, however, she answers (as she does for many questions about her notes) that she has no reason to question the accuracy of what the report writes. It’s unclear what the difference is (though the answers she affirms generally make McGahn look smart as compared to Trump.)

Given that code, I’m particularly interested in her responses to question 30, which is about Richard Burr informing the White House about the targets of the FBI investigation, because it suggests Trump may have learned of the list.

In response to the first question on it, Donaldson provides most of her regular coded answers. She can’t speak to the accuracy of Jim Comey’s briefing of the Gang of Eight, she doesn’t dispute Mueller’s characterization of her notes and comments, but some of what is included may be from other people.

Page 52 of the Report indicates that the week after Mr. Comey briefed congressional leaders “about the FBI’s investigation of Russian interference, including the identification of the principal U.S. subjects of the investigation” on March 9, 2017, one of the leaders briefed, Senate Select Committee on Intelligence Chairman Senator Richard Burr, was in contact with the White House Counsel’s office, which “appears to have received information about the status of the FBI investigation.” You are quoted in Footnote 309 as saying that Senator Burr identified “4-5 targets.”

a. Is this statement accurate?

RESPONSE: I was not present for Mr. Comey’s briefing to the Senate Select Committee on Intelligence, and therefore I cannot confirm whether the description of his briefing to congressional leaders is accurate.

I have no reason to question the accuracy of the Special Counsel’s Office’s quotation of “4-5 targets” from my notes.

I have no reason to question the accuracy of the Special Counsel’s Office’s description of the voluntary statements I made to it, although I do not have access to its records of my statements.

Any characterization of my voluntary statements set forth in the Report is that of the Special Counsel’s Office and may be derived, in part, from sources other than my statements.

But then, to that same question, she endorses the characterization relayed in the Mueller Report more strongly than she does elsewhere. She didn’t take this to be Burr tipping off the White House — though she specifies that that was her belief “at the time,” suggesting she now realizes that’s not true.

As stated by the Special Counsel’s Office in the Report, at the time, I “believed these were targets of [the Senate Select Committee on Intelligence].”

When asked who initiated this contact, she provides the answer the White House has instructed her to give regarding damaging information pertaining to the President.

Who initiated the contact between the White House Counsel’s office and Senator Burr?

RESPONSE: The White House has directed that I not respond to this question because of the constitutionally-based Executive Branch confidentiality interests that are implicated.

In the course of explaining that this Burr tipoff happened via phone, she pushes back on the characterization that this was a formal briefing, which is the one time she disputes a characterization made by Mueller.

Where did the March 16, 2017 briefing from Senator Burr take place?

RESPONSE: To the extent this question refers to contact between Senator Burr and the Office of the White House Counsel on or about March 16, 2017 (I would not characterize this contact as a formal “briefing”), that conversation took place by telephone.

When asked why Burr tipped off the White House, Donaldson blames the decision on Burr, suggesting that it was done on his initiative (even in spite of her earlier answer refusing to answer just that question).

Why did Senator Burr provide this briefing to the White House Counsel’s office about the investigation into Russian election interference?

RESPONSE: I do not know. I cannot speak to Senator Burr’s state of mind.

Then Donaldson reaffirms that the conversation happened via a call to McGahn, which she was present for (note, I’m not really sure by what she means when she says she was not a participant on calls, but I wonder both whether it was via speaker phone and whether the other party was told she was listening).

Were you present for Senator Burr’s March 16, 2017 briefing to the White House Counsel’s office?

RESPONSE: To the extent this question refers to a telephone call between Senator Burr and the Office of the White House Counsel on or about March 16, 2017, I was in Mr. McGahn’s office during, but not a participant on, the telephone call.

Here’s where it gets interesting. In a series of three more questions about the call — including whether the President learned about it — Donaldson provides the answer the White House made her give regarding things that were damning to the President.

Who else was present?

RESPONSE: The White House has directed that I not respond to this question because of the constitutionally-based Executive Branch confidentiality interests that are implicated.

Describe the substance of Senator Burr’s March 16, 2017 briefing to the White House Counsel’s office.

RESPONSE: The White House has directed that I not respond to this question because of the constitutionally-based Executive Branch confidentiality interests that are implicated.

Were the contents of Senator Burr’s briefing shared with the President? If so, describe who shared the contents of the meeting and if you were present for those discussions.

RESPONSE: The White House has directed that I not respond to this question because of the constitutionally-based Executive Branch confidentiality interests that are implicated.

If no one else was present, she could have just answered that. And unless someone else was present, she should be able to answer about the substance of the question. Ditto the question about passing this information on to Trump: if there were a non-damning answer, given her other practice, she could answer it.

If McGahn passed on the list of people being investigated to Trump, it would make the conversation between Comey and Trump that took place on March 30, two weeks later, more significant. Trump starts by raising Comey’s public testimony on March 20, where he confirmed the investigation. But then Comey raises the Gang of Eight briefing.

After Comey raises the Gang of Eight briefing, Trump requests that Comey clear him publicly. But then Trump makes the comment about wanting to know if “some satellite” to his campaign did something, he would want that to be public. Remember, here’s what Burr told McGahn, with Donaldson present:

Donaldson 11/6/17 302, at 14-15. On March 16, 2017, the White House Counsel’s Office was briefed by Senator Burr on the existence of “4-5 targets.” Donaldson 11 /6/17 302, at 15. The “targets” were identified in notes taken by Donaldson as “Flynn (FBI was ~ooking for phone records”; “Comey~Manafort (Ukr + Russia, not campaign)”; [redacted reference to Roger Stone] “Carter Page ($ game)”; and “Greek Guy” (potentially referring to George Papadopoulos, later charged with violating 18 U.S.C. § 1001 for lying to the FBI). SC_AD_00198 (Donaldson 3/16/17 Notes). Donaldson and McGahn both said they believed these were targets ofSSCI. Donaldson 11/6/17 302, at 15; McGahn 12/ 12/17 302, at 4. But SSCI does not formally investigate individuals as “targets”; the notes on their face reference the FBI, the Department of Justice, and Corney; and the notes track the background materials prepared by the FBI for Corney’s briefing to the Gang of8 on March 9. See SNS-Classified-0000140-44 (3/8/17 Email, Gauhar to Page et al.); see also Donaldson 11 /6/17 302, at 15 (Donaldson could not rule out that Burr had told McGahn those individuals were the FBI’s targets).

If McGahn passed on this information, Trump would have believed that the Mike Flynn investigation would soon be over, and that Paul Manafort was not being investigated for behavior related to his campaign. Trump never gave a shit about George Papadopoulos and Carter Page.

But Roger Stone was his life-long rat-fucker. And during the campaign, Stone spoke repeatedly with Trump to inform him about what he had learned of WikiLeaks’ plans.

It’s one thing if this was a comment about Sergei Millian, as Comey thought it was. But if Trump knew at this point that Roger Stone was under investigation, that would be a very different thing.

Especially because March 2017 is when Stone ratcheted up his efforts to cover up his discussions with WikiLeaks.

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. 

Thread: House Judiciary Committee Hearing with John Dean

Here’s a post dedicated to the House Judiciary Committee’s hearing today at 2:00 p.m. EDT. I will add content as we go along.

Former White House counsel John Dean will testify today. You’ll recall he served under Richard M. Nixon’s administration. The right-wing media sphere has already been making noise about the HJC taking testimony from a convicted felon.

Except he’s *their* convict, a Republican who pleaded guilty to obstruction of justice for his role in covering up Nixon’s Watergate scandal. I’m sure he’ll have plenty to say about criminality in the White House and subsequent cover-ups.

More here later — bring related chatter here.

UPDATE — 2:30 p.m. —

Via CNN: Justice Department strikes deal with House Democrats over Mueller report evidence, Nadler says

Yeesh. This is like Watergate all over again. Back then Nixon had agreed to accommodate the HJC with access to some of the Oval Office tapes, but the person who would screen them was Senator Stennis who had a hearing disability. We won’t know if Barr truly fulfills the spirit of this agreement with Nadler or pulls a Nixonian Stennis compromise. The HJC took Nixon to court.

Minority Ranking Member Doug Collins (R-GA) attacked Dean as expected and attacked the hearing saying the committee’s priorities are upside down. If the country had been attacked as Nadler said then committee should be focused on that.

Which we all know is bullshit since the House has already passed legislation  — the very first bill of the 116th Congress, H.R. 1 For The People Act 2019 — intended to secure elections from attack by foreign influence which paid legislators to skew districts via gerrymandering, manipulated races by way of dark money donations to legislators, and hid additional financial influence through undisclosed financial statements including tax returns.  That bill is sitting on Senate Majority Leader Mitch McConnell’s desk, buried under ~150 other bills he’s bottlenecked. If Collins has a problem with priorities he should have a chat with McConnell and ask why McConnell is uninterested in protecting this country’s elections.

UPDATE — 2:35 p.m. —

Following John Dean’s opening statement, former U.S. Attorney Joyce White Vance is up. Nice to see a familiar face which will be helpful in news coverage. She’s definitely read the Special Counsel report, and she’s able to explain what she’s seen in it as a former prosecutor which would spur her to indict.

UPDATE — 2:40 p.m. —

Heritage Foundation’s John G. Malcolm, vice president of the Institute for Constitutional Government. “Less enthusiastic” about Mueller because he didn’t make a “traditional prosecutorial judgment” for Barr, blah-blah. Followed by apologia for Trump who must surely be innocent because he was so cooperative providing “over a million pages of documents, allowed key members of his staff to be interviewed, and submitted written answers to questions.” Sure, sure, right.

You know this is what Collins will tee off, the beat down on Mueller’s job performance while disregarding SCO report Volume II, pages 1-2 in which Mueller explains why he can’t make a “traditional prosecutorial judgment.”

UPDATE — 2:45 p.m. —

Another familiar face, former U.S. Attorney Barbara McQuade, has also read the SCO report. She’s explaining the obstruction of justice charges she read in the report.

I’m sure the GOP will come out swinging but it’s really tough to get around this wham-wham-wham beat down ticking off the obstruction.

____

I’ll add the panelists’ statements here after the hearing. ~Rayne

Trump Claimed To Be Angry Flynn Didn’t Make Good on Putin’s January 21 Requested Phone Call

As I noted, newly unsealed parts of Mike Flynn’s January 24, 2017 302 make it clear that he explained away his calls with Sergey Kislyak on December 29, 2016, in part, by claiming that Kislyak asked Flynn to set up a videoconference between Trump and Putin on January 21, 2017, the day after Trump would be inaugurated.

During the call, KISLYAK asked FLYNN to set-up a VTC between President-elect TRUMP and Russian President PUTIN on January 21st.

[snip]

The interviewing agents asked FLYNN if he recalled any []ation with KISLYAK surrounding the expulsion of Russian diplomats or closing of Russian properties in response to Russian hacking activities surrounding the election. FLYNN stated that he did not. FLYNN reiterated his conversation was about the PUTIN/TRUMP VTC…

That’s damning enough: Putin wanted to capitalize on his investment right away.

But it’s still more damning given a detail from the Comey memos. During the January 27, 2017 dinner that Trump invited Comey to that same day to demand loyalty, Trump suggested he believed Flynn was unreliable. The basis for that unreliability is that Flynn didn’t tell Trump that Putin — and not Theresa May — was the first foreign leader to give him a congratulatory call after the inauguration.

He then went on to explain that he has serious reservations about Mike Flynn’s judgement and illustrated with a story from that day in which the President apparently discovered during his toast to Teresa May that [Putin] had called four days ago. Apparently, as the President was toasting PM May, he was explaining that she had been the first to call him after his inauguration and Flynn interrupted to say that [Putin] had called (first, apparently). It was then that the President learned of [Putin’s call] and he confronted Flynn about it (not clear whether that was in the moment or after the lunch with PM May). Flynn said the return call was scheduled for Saturday, which prompted a heated reply from the President that six days was not an appropriate period of time to return a call from the [President] of a country like [Russia]. This isn’t [redacted] we are talking about.”) He said that if he called [redacted] and didn’t get a return call for six days he would be very upset. In telling the story, the President pointed his fingers at his head and said “the guy has serious judgment issues.”

This was, remember, the day that Don McGahn and Sally Yates had their second conversation about the FBI investigation into Flynn for lying about his December 29, 2016 conversation with Kislyak. I’ve had mixed opinions about this passage, originally thinking it was an attempt to distance himself from Flynn, but later noting that it fit the (largely chronologically undated) observations by Trump aides that Trump really was fed up by Flynn by the time he was forced to resign.

Here’s the thing, though. At least according to the White House record of Trump’s toast to May, the claim is a lie. That’s because Trump never claimed that May was the first to call Trump after his inauguration. Rather, he applauded her because she was the first to visit Trump after inauguration.

Thank you very much. I am honored to have Prime Minister Theresa May here for our first official visit from a foreign leader. This is our first visit, so — great honor.

It is true that May called Trump sometime on January 21.

It’s also true that in the first question after their comments on January 27, Trump was asked about the phone call with Putin the following day (and he feigned uncertainty whether it would happen).

STEVE HOLLAND, REUTERS: Thank you. You’re going to be speaking tomorrow with the Russian president. What message would you like to convey to him? How close are you to lifting some of the sanctions imposed on Russia over its Ukraine incursion? What would you expect in return?

And Prime Minister May, do you foresee any changes in British attitudes towards sanctions on Russia?

TRUMP: Well, I hear a call was set up, Steve, and we’ll see what happens. As far as the sanctions, very early to be talking about that. But we look to have a great relationship with all countries, ideally. That won’t necessarily happen, unfortunately probably won’t happen with many countries.

But if we can have, as we do with Prime Minister May and the relationship that we’ve all developed and even in the short relationship that we just developed just by being with each other and have lunch and — we’ve really had some very interesting talks and very productive talks. But if we can have a great relationship with Russia and with China and with all countries, I’m all for that. That would be a tremendous asset.

If nothing else, it means Trump knew of the call before lunch, which was scheduled after the press conference, so could not have been surprised to learn of call timing by then.

But now consider the comment after considering that Trump had at least one conversation with Don McGahn about the substance of Flynn’s lies before this meeting, and — given McGahn’s request to have the underlying materials — may have asked to know specifically what Flynn said.

On January 26, 2017, Acting Attorney General Sally Yates contacted White House Counsel Donald McGahn and informed him that she needed to discuss a sensitive matter with him in person. 142 Later that day, Yates and Mary McCord, a senior national security official at the Department of Justice, met at the White House with McGahn and White House Counsel’s Office attorney James Burnham. 143 Yates said that the public statements made by the Vice President denying that Flynn and Kislyak discussed sanctions were not true and put Flynn in a potentially compromised position because the Russians would know he had lied. 144 Yates disclosed that Flynn had been interviewed by the FBI. 145 She declined to answer a specific question about how Flynn had performed during that interview, 146 but she indicated that Flynn’s statements to the FBI were similar to the statements he had made to Pence and Spicer denying that he had discussed sanctions.147 McGahn came away from the meeting with the impression that the FBI had not pinned Flynn down in lies, 148 but he asked John Eisenberg, who served as legal advisor to the National Security Council, to examine potential legal issues raised by Flynn’s FBI interview and his contacts with Kislyak. 149

That afternoon, McGahn notified the President that Yates had come to the White House to discuss concerns about Flynn.150 McGahn described what Yates had told him, and the President asked him to repeat it, so he did. 151 McGahn recalled that when he described the FBI interview of Flynn, he said that Flynn did not disclose having discussed sanctions with Kislyak, but that there may not have been a clear violation of 18 U.S.C. § 1001. 152 The President asked about Section 1001, and McGahn explained the law to him, and also explained the Logan Act. 153 The President instructed McGahn to work with Priebus and Bannon to look into the matter further and directed that they not discuss it with any other officials. 154 Priebus recalled that the President was angry with Flynn in light of what Yates had told the White House and said, “not again, this guy, this stuff.” I 55

[snip]

The next day, January 27, 2017, McGahn and Eisenberg discussed the results of Eisenberg’s initial legal research into Flynn’s conduct, and specifically whether Flynn may have violated the Espionage Act, the Logan Act, or 18 U.S.C. § 1001. 160 Based on his preliminary research, Eisenberg informed McGahn that there was a possibility that Flynn had violated 18 U.S.C. § 1001 and the Logan Act. 16 1 Eisenberg noted that the United States had never successfully prosecuted an individual under the Logan Act and that Flynn could have possible defenses, and told McGahn that he believed it was unlikely that a prosecutor would pursue a Logan Act charge under the circumstances. 162

That same morning, McGahn asked Yates to return to the White House to discuss Flynn again. I63 In that second meeting, McGahn expressed doubts that the Department of Justice would bring a Logan Act prosecution against Flynn, but stated that the White House did not want to take action that would interfere with an ongoing FBI investigation of Flynn. 164 Yates responded that Department ofJustice had notified the White House so that it could take action in response to the infonnation provided.165 McGahn ended the meeting by asking Yates for access to the underlying information the Department of Justice possessed pertaining to Flynn’s discussions with Kislyak. 166

In other words, by the time Trump claimed to the FBI Director that he didn’t know Putin called him on January 21, he already knew that the FBI had interviewed Flynn about a conversation where (he claimed) Kislyak had asked to set up a call on January 21, and he may have had more specificity about whether or not the request for a January 21 call came up.

We can’t tell, given the kind of liars we’re dealing with, what is true. These are some of the possibilities:

  • Kislyak never asked for a January 21 meeting but Flynn used the actual call on January 21 as an excuse
  • In response to Kislyak’s request, Flynn did set up the meeting, but Trump was trying to claim he didn’t listen in that day
  • Kislyak asked for a January 21 meeting and Putin did call, but Flynn somehow intercepted the call and kept it a secret from the President

Whichever it is, the centrality of setting up a January 21 call with Putin — as opposed to the January 28 call we already knew about — really raises the import of Trump’s claimed reason to be pissed at Flynn in a meeting where he was already thinking about how to end an investigation into his ties with Russia.

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 Didn’t Mueller Hold Counterintelligence Suspect Mike Flynn Responsible for Sanctions Call?

There’s a problem with the way the Mueller Report describes events pertaining to Mike Flynn.

It describes how someone under active counterintelligence investigation for his ties to Russia and already on thin ice with the President-Elect got on the phone and, through the Russian Ambassador, persuaded Vladimir Putin to hold off on retaliating for US sanctions. It describes how Flynn avoided leaving a paper trail of that call. Ultimately, the report remains inconclusive about whether Flynn made that call on his own initiative — which would seem to bolster the case he had suspect loyalties with the Russians — or at the direction of the President — in which case his actions would be appropriate from a constitutional standpoint (because this is the kind of thing the President can choose to do), but not a legal one (because he was purposely hiding it from the Obama Administration). One or the other would seem to be a necessary conclusion, but the Mueller Report reaches neither one.

In part, that’s because both Flynn and KT McFarland seem to have protected President Trump’s plausible deniability even after both got caught lying about these events. But it also appears that Mueller is more certain about the answer than he lets on in the public report.

This is the subject that, in my post noting that the Mueller Report has huge gaps precisely where the most acute counterintelligence concerns about Trump’s relationship with Putin are, I suggested created a logical problem for the report as a whole.

If it is the case that Flynn did what he did on Trump’s orders — which seems the only possible conclusion given Mueller’s favorable treatment of Flynn — then it changes the meaning of all of Trump’s actions with regard to the Russian investigation, but also suggests that that conclusion remains a counterintelligence one, not a criminal one.

Mike Flynn was under active counterintelligence investigation but he’s not an Agent of Russia

According to the Mueller Report, the first Rosenstein memo laying out the detailed scope of the investigation, dated August 2, 2017, included “four sets of allegations involving Michael Flynn, the former National Security Advisor to President Trump.” Two of those four must be his unregistered sleazy influence peddling for Turkey (which he got to plead off of as part of his plea agreement) and the Peter Smith operation to obtain Hillary’s deleted emails (about which his testimony is reflected in the Mueller Report).

Then there’s the counterintelligence investigation into Flynn. We’ve known that the FBI had a counterintelligence investigation into Flynn since before HPSCI released its Russian Report, and a later release of that report described that the investigation was still active when the FBI interviewed Flynn on January 24, 2017.

A key focus of that investigation —  one reflected in Flynn’s January 24, 2017 302 — was his paid attendance at a December 10, 2015 RT event in Moscow in December 2015, where he sat with Putin. The Mueller Report makes just one reference to that event, and only as a way of describing the public reporting on Trump flunkies’ ties to Russia during the campaign.

Beginning in February 2016 and continuing through the summer, the media reported that several Trump campaign advisors appeared to have ties to Russia. For example, the press reported that campaign advisor Michael Flynn was seated next to Vladimir Putin at an RT gala in Moscow in December 2015 and that Flynn had appeared regularly on RT as an analyst.15

15 See, e.g., Mark Hosenball & Steve Holland, Trump being advised by ex-US. Lieutenant General who favors closer Russia ties, Reuters (Feb. 26, 2016); Tom Hamburger et al., Inside Trump’s financial ties to Russia and his unusual flattery of Vladimir Putin, Washington Post (June 17, 2016). Certain matters pertaining to Flynn are described in Volume I, Section TV.B.7, supra.

However, in addition to that trip, the FBI must have been scrutinizing earlier Kislyak contacts that don’t show up in the Report at all:

  • A meeting on December 2, 2015 (described in the HPSCI report) that Kislyak that Flynn and his failson attended in advance of the RT trip at the Russian Embassy
  • A call to Kislyak sometime after GRU head Igor Sergun’s death in Lebanon on January 6, 2016; in his interview with the FBI; Flynn said he called to offer condolences, though he used that excuse for other calls that involved substantive policy discussions; he also claimed, not entirely credibly, not to be associated with the Trump campaign yet
  • Other conversations during the campaign that Flynn revealed to friends that otherwise don’t show up in public documents

In one of the only (unredacted) references to the counterintelligence investigation into Flynn, the Mueller Report describes that Flynn’s contacts with Kislyak became a key focus of that investigation.

Previously, the FBI had opened an investigation of Flynn based on his relationship with the Russian government.105 Flynn’s contacts with Kislyak became a key component of that investigation.10

But that passage doesn’t reveal the scope of those contacts and, in spite of detailed analysis of other people’s contacts with Kislyak (including an invite to JD Gordan to his residence that appears similar to the December 2015 one Kislyak extended to Flynn and his son), the Report doesn’t mention those earlier contacts.

Perhaps far more interesting, in the report’s analysis of whether any Trump aide was an agent of Russia, it does not include Flynn in the paragraph explaining why Paul Manafort, George Papadopoulos, and Carter Page were not charged as such. Instead, his foreign influence peddling is treated in a separate paragraph discussing just Turkey.

In addition, the investigation produced evidence of FARA violations involving Michael Flynn. Those potential violations, however, concerned a country other than Russia (i.e., Turkey) and were resolved when Flynn admitted to the underlying facts in the Statement of Offense that accompanied his guilty plea to a false-statements charge. Statement of Offense, United States v. Michael T Flynn, No. l:17-cr-232 (D.D.C. Dec. 1, 2017), Doc. 4 (“Flynn Statement of Offense”). 1281

The footnote to that paragraph, which given the admission elsewhere that a separate counterintelligence investigation into Flynn focused on Russia, likely deals with Russia, is entirely redacted for Harm to Ongoing Matters reasons.

While we can’t be sure (hell, we can’t even be totally sure this does relate to Russia!), this seems to suggest that the investigation into Russian efforts to cultivate Flynn is ongoing, but he has been absolved of any responsibility for — as an intelligence officer with 30 years of counterintelligence training — nevertheless falling prey to such efforts.

All of which is to say that, along with the descriptions of Trump’s most alarming interactions with Russians including Vladimir Putin, many of Flynn’s contacts with Kislyak and other Russians (including not just Putin but the guy who headed GRU until just before the election hacking started in earnest in January 2016) appear to be treated as counterintelligence information not suitable for public sharing.

The Mueller Report deliberately obscures key details of the timeline on the sanctions call

That’s important to note, because the counterintelligence conclusion on Flynn has to be utterly central to the analysis of Trump’s attempt to obstruct the investigation into Flynn.

The two discussions in the Mueller Report (Volume I pages 168 to 173 and Volume II pages 24 to 48) of Flynn’s December 2016 conversations with Sergey Kislyak are totally unsatisfying, probably in part because two key witnesses (Flynn and KT McFarland, and possibly others including Steve Bannon) lied when the FBI first interviewed them about the calls; they had also created a deliberately misleading paper trail for the events.

In both places, the Report provides times for some events on December 29, but obscures the most critical part of the timeline. I’ve put the Volume I language at the end of this post. It provides the following timeline for December 29, 2016:

1:53PM: McFarland and other Transition Team members and advisors (including Flynn, via email) discuss sanctions.

2:07PM: [Transition Team Member] Flaherty, an aide to McFarland, texts Flynn a link to a NYT article about the sanctions.

2:29PM: McFarland calls Flynn, but they don’t talk.

Shortly after 2:29PM: McFarland and Bannon discuss sanctions; according to McFarland’s clean-up interview, she may have told Bannon that Flynn would speak to Kislyak that night.

3:14PM: Flynn texts Flaherty and asks “time for a call??,” meaning McFarland. Flaherty responds that McFarland was on the phone with Tom Bossert. Flynn informs Flaherty in writing that he had a call with Kislyak coming up, using the language, “tit for tat,” that McFarland used on emails with others and that Flynn himself would use with Kislyak later that day.

Tit for tat w Russia not good. Russian AMBO reaching out to me today.

Sometime in here but the Report doesn’t tell us precisely when: Flynn talks to Michael Ledeen, KT McFarland, and then Kislyak. [my emphasis]

4:43PM: McFarland emails other transition team members saying that,  “Gen [F]lynn is talking to russian ambassador this evening.”

Before 5:45PM: McFarland briefed President-Elect Trump, Steve Bannon, Reince Priebus, Sean Spicer, and others on the sanctions. McFarland remembers that someone at the briefing may have mentioned the upcoming Kislyak call.

After the briefing: McFarland and Flynn speak by phone. Flynn tells McFarland, “that the Russian response to the sanctions was not going to be escalatory because they wanted a good relationship with the incoming Administration,” and McFarland tells Flynn about the briefing with Trump.

The next day, December 30, 2016 — after Putin announced they would not retaliate to Obama’s sanctions — Flynn sent a text message to McFarland that very deliberately did not reflect the true content of his communication with Kislyak, reportedly because he wanted to hide that from the Obama Administration (the Trump team had falsely told Obama they would not fuck with their existing policy initiatives).

Shortly thereafter, Flynn sent a text message to McFarland summarizing his call with Kislyak from the day before, which she emailed to Kushner, Bannon, Priebus, and other Transition Team members. 1265 The text message and email did not include sanctions as one of the topics discussed with Kislyak. 1266 Flynn told the Office that he did not document his discussion of sanctions because it could be perceived as getting in the way of the Obama Administration’s foreign policy.126

On December 31, after Kislyak called again to tell Flynn that Putin had decided not to retaliate because of the Trump Administration request not to, he and McFarland communicated again about their attempts to convince Russia not to respond to sanctions. Flynn spoke with others that day but “does not recall” whether they discussed the sanctions, though he remembers (but Bannon does not) that Bannon seemed to know about Flynn’s conversation with Kislyak.

The narrative for the same events in the obstruction section has less detail, but infuriatingly, similarly manages to leave out all the details (in bold above) about when Flynn spoke to McFarland and when he called Kisylak.

The thing is, Mueller knows precisely when those Flynn calls happened. The Volume I version of events make it clear they have the call records of Flynn, Michael Ledeen, and McFarland that would provide a precise timeline.

They just refuse to provide those times and the times of key emails, which would add to the clarity about whether Trump learned of Flynn’s plans before he contacted Kislyak.

In the “Intent” discussion regarding obstruction, however, the report suggests that the Trump briefing, where sanctions did come up, preceded the first Flynn call to Kislyak (even though the timeline here suggests it did not).

In advance of Flynn’s initial call with Kislyak, the President attended a meeting where the sanctions were discussed and an advisor may have mentioned that Flynn was scheduled to talk to Kislyak.

That’s particularly interesting given that the Volume II discussion of events describes how, after Trump fired Flynn, he also fired KT McFarland but offered her a position as Ambassador to Singapore. There’s very little discussion of the explanation for her firing, but they do describe how Trump tried to make McFarland write a memo — very similar to the false one he tried to make Don McGahn write denying that Trump had ordered him to have Rod Rosenstein removed — denying that he had any role in Flynn’s discussion with Kislyak about sanctions. McFarland did not write the memo, as she explained in a Memo for the Record, because she did not know whether Trump had spoken with Flynn or with Russia directly.

The next day, the President asked Priebus to have McFarland draft an internal email that would confirm that the President did not direct Flynn to call the Russian Ambassador about sanctions.253 Priebus said he told the President he would only direct McFarland to write such a letter if she were comfortable with it.254 Priebus called McFarland into his office to convey the President’s request that she memorialize in writing that the President did not direct Flynn to talk to Kislyak.255 McFarland told Priebus she did not know whether the President had directed Flynn to talk to Kislyak about sanctions, and she declined to say yes or no to the request.256

256 KTMF _00000047 (McFarland 2/26/ 17 Memorandum_ for the Record) (“I said I did not know whether he did or didn’t, but was in Maralago the week between Christmas and New Year’s (while Flynn was on vacation in Carribean) and I was not aware of any Flynn-Trump, or Trump-Russian phone calls”); McFarland 12/22/ 17 302, at 17.

Again, at a minimum, Mueller knows if Trump called Flynn, and may know if Trump called Kislyak or — more likely — Putin. But he’s not telling.

Trump was already pissy with Flynn, so why didn’t he blame him for the sanctions calls?

There’s one more contradictory detail about Trump’s behavior in this narrative.

According to enough witnesses to make it a reliable claim, Trump had already soured on Flynn in December 2016, before all this blew up (but not before Obama warned Trump and Elijah Cummings warned Mike Pence about Flynn’s suspect loyalties).

Several witnesses said that the President was unhappy with Flynn for other reasons at this time. Bannon said that Flynn’s standing with the President was not good by December 2016. Bannon 2/12/18 302, at 12. The President-Elect had concerns because President Obama had warned him about Flynn shortly after the election. Bannon 2/12/18 302, at 4-5; Hicks 12/8/17 302, at 7 (President Obama’s comment sat with President-Elect Trump more than Hicks expected). Priebus said that the President had become unhappy with Flynn even before the story of his calls with Kislyak broke and had become so upset with Flynn that he would not look at him during intelligence briefings. Priebus 1/18/18 302, at 8. Hicks said that the President thought Flynn had bad judgment and was angered by tweets sent by Flynn and his son, and she described Flynn as “being on thin ice” by early February 2017. Hicks 12/8/17 302, at 7, 10

As I’ve noted before, Trump made the same complaint to Jim Comey in their “loyalty demand” dinner on January 27, 2017 — but he did so in the context of Flynn not informing him that Vladimir Putin had beaten Theresa May to congratulating him about his inauguration.

All these details — including that Flynn publicly informed Trump of Putin’s call — should make Flynn a bigger counterintelligence concern, not one that could be dismissed more easily than Page and Manafort and Papadopoulos.

Unless Mueller had more certainty that Trump was in the loop of these sanctions discussions — either through Flynn or directly with Putin — than he lets on in the public report.

Mike Flynn’s Interviews with Prosecutors

To sum up, Mueller knows that someone already under investigation for his suspect calls to Russia and Sergey Kislyak got on the phone with Kislyak and undercut the Obama Administration’s attempt to punish Russia for its election interference. Flynn deliberately created a false record of that call, then lied about it when it became public the following month, and continued to lie about it when the FBI asked him about it.Trump allegedly got pissy that Flynn’s counterintelligence exposure had already been raised by Obama, but also got pissy that Flynn wasn’t being obsequious enough to Putin. But, when this all began to blow up in the press, rather than firing Flynn right away for being a counterintelligence problem — the outcome Sally Yates clearly expected would be the no-brainer result — Trump instead repeatedly tried to protect Flynn.

Which is why the likelihood that a key part of Flynn’s cooperation, that relating to the counterintelligence side of the equation, is so interesting.

As I noted when the addendum showing Flynn’s cooperation came out, it likely broke into the Turkish influence peddling [A], two (or maybe three?) topics relating to Trump [B], as well as more classified part of the investigation conducted under Mueller [C].

A Criminal Investigation:

11+ line paragraph

6.5 line paragraph

2 line paragraph

B Mueller investigation:

Introductory paragraph (9 lines)

i) Interactions between Transition Team and Russia (12 lines, just one or two sentences redacted)

ii) Topic two

10 line paragraph

9 line paragraph

C Entirely redacted investigation:

4.5 line paragraph

The footnotes from the Mueller Report describing what Flynn told prosecutors when seems to reinforce this.

  1. November 16, 2017: Trump appoint Flynn as NSA, first call with Putin, Israel vote, communications with Kislyak, December Kislyak call
  2. November 17, 2017: Israel vote, December Kislyak call, especially comms with Mar a Lago, re Ignatius Flynn said he had not talked sanctions, Mar a Lago with Trump, Flynn’s last meeting with Trump, “we’ll take care of you”
  3. November 19, 2017: Why sanctions, whether he told others at MAL, comms on 12/29, re Ignatius Flynn said he had not talked sanctions, Mar a Lago with Trump
  4. November 20, 2017: Whether he told others at MAL, response to Ignatius
  5. November 21, 2017: Whether he told others at MAL, response to Ignatius, meeting with Trump
  6. November 29, 2017: Peter Smith
  7. January 11, 2018: November 30 meeting with Kislyak
  8. January 19, 2018: Flynn did not have specific recollection about telling POTUS on January 3, 2017
  9. April 25, 2018: Peter Smith
  10. May 1, 2018: Peter Smith
  11. September 26, 2018: Proffer response on meetings with Foresman

We know from court filings that Flynn had 19 interviews with prosecutors, of which four pertain to his sleazy influence peddling with Turkey. Here’s what that seems to suggest about his interviews (assuming, probably incorrectly, that they didn’t cover multiple topics at once):

  • Turkish influence peddling: 4 interviews, unknown dates
  • Transition events, 7 interviews: 11/16/17, 11/17/17, 11/19/17, 11/20/17, 11/21/17, 1/11/18, 1/19/18
  • Peter Smith, 3 interviews: 11/29/17, 4/25/18, 5/1/18
  • Counterintelligence: Remaining 5 interviews???, unknown dates

It’s possible, however, there’s a third “links” topic pertaining to Transition era graft, which for scope reasons would not appear in the Mueller Report.

The possibility that Flynn may have had five interviews dedicated to a counterintelligence investigation that implicated Trump would make this Brian Ross story far more interesting. As the Report lays out, when hints that Flynn flipped first came out on November 22, 2017, one of Trump’s lawyers (probably John Dowd) left a voice mail message (!!!) with one of Flynn’s lawyers (probably Rob Kelner). He specifically wanted a heads up about anything that “implicates the President” which would create a “national security issue.”

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 ….

The following day, Trump’s lawyer told Flynn’s that cooperating would reflect hostility to the President.

A week later, once the plea was official on December 1, Flynn had the following leaked to ABC.

During the campaign, Trump asked Flynn to be one of a small group of close advisors charged with improving relations in Russia and other hot spots. The source said Trump phoned Flynn shortly after the election to explicitly ask him to “serve as point person on Russia,” and to reach out personally to Russian officials to develop strategies to jointly combat ISIS.

[snip]

“Flynn is very angry,” the confidant told ABC News Friday. “He will cooperate truthfully on any question they ask him.” [my emphasis]

Only, originally, the story read that Trump asked Flynn to reach out to Russia before the election. The story is often cited as one of the big gaffes of the Russian investigation, but Mother Jones has since corroborated the pre-election timeline with two Flynn associates.

For some reason, Mueller did not hold Mike Flynn responsible for — at a time when he was under active counterintelligence investigation for his ties to Russia — undercutting the official policy of the US on punishing Russia for its election year attack. I wonder whether the content of up to five counterintelligence interviews with Flynn may explain why.

As they are elsewhere, the Washington Post is trying to liberate the filings about Flynn’s cooperation that would explain all this. On Thursday, Emmet Sullivan — the same judge who, after seeing all the sealed filings in Flynn’s case, used some really inflammatory language about Flynn’s loyalty — set a briefing schedule for that effort. Then, acting on his own on Friday, Sullivan scheduled a hearing for June 24 (after the next status report in Flynn’s case but before he would be sentenced) to discuss liberating those filings.

So maybe we’ll find out from the WaPo’s efforts to liberate those documents.

Timeline of known Flynn investigation

November 10, 2016: Obama warns Trump that Mike Flynn’s name kept surfacing in concerns about Russia.

November 18, 2016: Trump names Flynn National Security Adviser.

November 18, 2016: Elijah Cummings warns Mike Pence of Flynn’s Turkish lobbying.

Shortly after inauguration: On “first” call with Kislyak, Flynn responds to Ambassador’s invitation to Russian Embassy that, “You keep telling me that,” alerting others to previous contacts between them.

January 24, 2017: In interview with FBI, Flynn lies about his contacts with Sergey Kislyak.

January 26 and 27, 2017: Sally Yates warns the White House about Flynn’s lies.

February 2, 2017: WHCO lawyer John Eisenberg reviews materials on Flynn’s interview.

February 13, 2017: Flynn fired.

July 19, 2017: Peter Strzok interviewed, in part, about Flynn interview, presumably as part of obstruction investigation.

November 16, 2017: Interview covers: Trump appoint Flynn as NSA, first call with Putin, Israel vote, communications with Kislyak, December Kislyak call.

November 17, 2017: Interview covers: Israel vote, December Kislyak call, especially comms with Mar a Lago, re Ignatius Flynn said he had not talked sanctions, Mar a Lago with Trump, Flynn’s last meeting with Trump, “we’ll take care of you.”

November 19, 2017: Interview covers: Why sanctions, whether he told others at MAL, comms on 12/29, re Ignatius Flynn said he had not talked sanctions, Mar a Lago with Trump.

November 20, 2017: Interview covers: Whether he told others at MAL, response to Ignatius.

November 21, 2017: Interview covers: Whether he told others at MAL, response to Ignatius, meeting with Trump.

November 22, 2017: Flynn withdraws from Joint Defense Agreement; Trump’s lawyer leaves a message for Flynn’s lawyer stating, in part, “if… 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.”

November 23, 2017: Flynn’s attorney returns Trump’s attorney’s call, the latter says cooperation would reflect hostility to the President.

November 29, 2017: Interview covers Peter Smith.

December 1, 2017: Flynn pleads guilty, has story leaked to Brian Ross that his cooperation covers Trump’s orders that he take “serve as point person on Russia,” originally stating that the order preceded the election; the story is corrected to say the order comes ” shortly after the election.” Two Flynn associates subsequently told Mother Jones the contacts did start before the election.

January 11, 2018: Interview covers November 30 meeting with Kislyak.

January 19, 2018: Interview covers Flynn did not have specific recollection about telling POTUS on January 3, 2017.

April 25, 2018: Interview covers Peter Smith.

May 1, 2018: Interview covers Peter Smith.

September 17, 2018: Status report asking for sentencing.

September 26, 2018: Flynn’s attorney offers proffer response on meetings with Bob Foresman.

December 18, 2018: After Judge Emmet Sullivan invokes treason and selling out his country, Flynn delays sentencing.


The Volume I Narrative about December 29, 2016

Shortly thereafter, Flynn sent a text message to McFarland summarizing his call with Kislyak from the day before, which she emailed to Kushner, Bannon, Priebus, and other Transition Team members. 1265 The text message and email did not include sanctions as one of the topics discussed with Kislyak. 1266 Flynn told the Office that he did not document his discussion of sanctions because it could be perceived as getting in the way of the Obama Administration’s foreign policy.126

The sanctions were announced publicly on December 29, 2016. 1231 At 1 :53 p.m. that day, McFarland began exchanging emails with multiple Transition Team members and advisors about the impact the sanctions would have on the incoming Administration. 1232 At 2:07 p.m., a Transition Team member texted Flynn a link to a New York Times article about the sanctions. 1233 At 2:29 p.m., McFarland called Flynn, but they did not talk. 1234 Shortly thereafter, McFarland and Bannon discussed the sanctions. 1235 According to McFarland, Bannon remarked that the sanctions would hurt their ability to have good relations with Russia, and that Russian escalation would make things more difficult. 1236 McFarland believed she told Bannon that Flynn was scheduled to talk to Kislyak later that night. 1237 McFarland also believed she may have discussed the sanctions with Priebus, and likewise told him that Flynn was scheduled to talk to Kislyak that night. 1238 At 3: 14 p.m., Flynn texted a Transition Team member who was assisting McFarland, “Time for a call???”1239 The Transition Team member responded that McFarland was on the phone with Tom Bossert, a Transition Team senior official, to which Flynn responded, “Tit for tat w Russia not good. Russian AMBO reaching out to me today.” 1240

Flynn recalled that he chose not to communicate with Kislyak about the sanctions until he had heard from the team at Mar-a-Lago.1241 He first spoke with Michael Ledeen, 1242 a Transition Team member who advised on foreign policy and national security matters, for 20 minutes. 1243 Flynn then spoke with McFarland for almost 20 minutes to discuss what, if anything, to communicate to Kislyak about the sanctions. 1244 On that call, McFarland and Flynn discussed the sanctions, including their potential impact on the incoming Trump Administration’s foreign policy goals. 1245 McFarland and Flynn also discussed that Transition Team members in Mar-a-Lago did not want Russia to escalate the situation. 1246 They both understood that Flynn would relay a message to Kislyak in hopes of making sure the situation would not get out of hand.1247

Immediately after speaking with McFarland, Flynn called and spoke with Kislyak. 1248 Flynn discussed multiple topics with Kislyak, including the sanctions, scheduling a video teleconference between President-Elect Trump and Putin, an upcoming terrorism conference, and Russia’s views about the Middle East. 1249 With respect to the sanctions, Flynn requested that Russia not escalate the situation, not get into a “tit for tat,” and only respond to the sanctions in a reciprocal manner.1250

Multiple Transition Team members were aware that Flynn was speaking with Kislyak that day. In addition to her conversations with Bannon and Reince Priebus, at 4:43 p.m., McFarland sent an email to Transition Team members about the sanctions, informing the group that “Gen [F]lynn is talking to russian ambassador this evening.” 1251 Less than an hour later, McFarland briefed President-Elect Trump. Bannon, Priebus, Sean Spicer, and other Transition Team members were present. 1252 During the briefing, President-Elect Trump asked McFarland if the Russians did “it,” meaning the intrusions intended to influence the presidential election. 1253 McFarland said yes, and President-Elect Trump expressed doubt that it was the Russians.1254 McFarland also discussed potential Russian responses to the sanctions, and said Russia’s response would be an indicator of what the Russians wanted going forward. 1255 President-Elect Trump opined that the sanctions provided him with leverage to use with the Russians. 1256 McFarland recalled that at the end of the meeting, someone may have mentioned to President-Elect Trump that Flynn was speaking to the Russian ambassador that evening. 1257

After the briefing, Flynn and McFarland spoke over the phone. 1258 Flynn reported on the substance of his call with Kislyak, including their discussion of the sanctions. 1259 According to McFarland, Flynn mentioned that the Russian response to the sanctions was not going to be escalatory because they wanted a good relationship with the incoming Administration.1260 McFarland also gave Flynn a summary of her recent briefing with President-Elect Trump. 1261

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. 

William Barr Absolved Trump of Obstruction without Having the Faintest Clue What He Obstructed

Bill Barr just finished testifying to the Senate Judiciary Committee.

It was remarkable.

Among the opinions the Attorney General espoused are that:

  • You only need to call the FBI when being offered campaign assistance by a foreign intelligence service, not a foreigner
  • It’s okay to lie about the many dangles hostile foreign countries make to a political campaign, including if you accepted those dangles
  • Because Trump was being falsely accused (it’s not clear of what, because the report doesn’t address the most aggressive accusation, and many other accusations against Trump and his campaign are born out by the Mueller Report), it’s okay that he sought to undermine it through illegal means
  • It’s okay for the President to order the White House Counsel to lie, even about an ongoing investigation
  • It’s okay to fire the FBI Director for refusing to confirm or deny an ongoing investigation, which is DOJ policy not to do
  • It’s okay for the Attorney General to call lawfully predicated DOJ investigative techniques “spying” because Fox News does
  • Public statements — including threatening someone’s family — cannot be subornation of perjury
  • You can exhaust investigative options in a case having only obtained contemptuous responses covering just a third of the investigation from the key subject of it

The Attorney General also got himself in significant trouble with his answers to a question from Charlie Crist about whether he knew why Mueller’s team was concerned about press reports. His first answer was that he didn’t know about the team’s concerns because he only spoke with Mueller. But he later described, in the phone call he had with Mueller, that Mueller discussed his team’s concerns. Worse still, when called on the fact that the letter — as opposed to Barr’s potentially suspect representation of the call — didn’t mention the press response, he suggested Mueller’s letter was “snitty” and so probably written by a staffer, meaning he assumed that the letter itself was actually from a staffer.

But that’s not the most amazing thing.

The most amazing thing is that, when Cory Booker asked Barr if he thought it was right to share polling data with Russians — noting that had Trump done so with a Super PAC, rather than a hostile foreign country, it would be illegal — Barr appeared to have no clue that Paul Manafort had done so. He even asked whom Manafort shared the data with, apparently not knowing he shared it with a guy that Rick Gates said he believes is a Russian spy.

That’s remarkable, because he basically agreed with Ben Sasse that Deripaska — with whom Manafort was sharing this campaign data — was a “bottom-feeding scum-sucker.”

So the Attorney General absolved the President of obstruction without having the faintest clue what actions the investigation of which Trump successfully obstructed by floating a pardon to Manafort.

There may be an explanation for this fairly shocking admission on Barr’s part. He also admitted that he and Rod Rosenstein started making the decision on obstruction before they read the report. Indeed, several times during the hearing, it seemed he still has not read the report, as he was unfamiliar with allegations in it.

In short, the Attorney General said it was okay for Trump to obstruct this investigation because (he claims) Trump was falsely accused, without being aware that the report showed that several of the key allegations against Trump — including that his campaign manager coordinated with Russians, including one Barr agrees is a bottom-feeding scum-sucker” with ties to Russian intelligence — were actually true.

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 Did Mueller Include the June 9 Meeting Statement in His Obstruction Case?

I’ve got a bunch more posts on the Mueller Report I’m going to eventually write; I’ve still got a slew of theories and observations to share. But there’s one topic I just have guesses on, one I’d love to have more people weigh in on.

Why did Mueller’s team include Donald Trump’s statement on the June 9 meeting — which is described not as a false statement, but an effort to prevent the disclosure of Don Jr’s emails setting up the meeting — in his obstruction analysis?

The obstruction analysis on the June 9 meeting shows it’s not itself obstruction

As a number of reviews of the Mueller Report obstruction analysis show, the June 9 meeting cover-up is the one obstructive act where the report concludes the evidence did not establish it as an act of obstruction for all three factors:

As the obstruction analysis lays out, Trump talked hopefully about ensuring the emails didn’t get out, but there’s no evidence he took action, beyond lying publicly, to suppress them.

Each of these efforts by the President involved his communications team and was directed at the press. They would amount to obstructive acts only if the President, by taking these actions, sought to withhold information from or mislead congressional investigators or the Special Counsel. On May 17, 2017, the President’s campaign received a document request from SSCI that clearly covered the June 9 meeting and underlying emails, and those documents also plainly would have been relevant to the Special Counsel’s investigation.

But the evidence does not establish that the President took steps to prevent the emails or other information about the June 9 meeting from being provided to Congress or the Special Counsel. The series of discussions in which the President sought to limit access to the emails and prevent their public release occurred in the context of developing a press strategy.

It then repeats that analysis by showing that while withholding the emails might amount to obstruction, he did not withhold emails.

As noted above, the evidence does not establish that the President sought to prevent disclosure of the emails in those official proceedings.

Then, in the intent section, it shows Trump’s central role in crafting the adoptions statement, while again concluding that the statement doesn’t amount to withholding the email.

The evidence establishes the President’s substantial involvement in the communications strategy related to information about his campaign’s connections to Russia and his desire to minimize public disclosures about those connections. The President became aware of the emails no later than June 29, 2017, when he discussed them with Hicks and Kushner, and he could have been aware of them as early as June 2, 2017, when lawyers for the Trump Organization began interviewing witnesses who participated in the June 9 meeting. The President thereafter repeatedly rejected the advice of Hicks and other staffers to publicly release information about the June 9 meeting. The President expressed concern that multiple people had access to the emails and instructed Hicks that only one lawyer should deal with the matter. And the President dictated a statement to be released by Trump Jr. in response to the first press accounts of the June 9 meeting that said the meeting was about adoption.

But as described above, the evidence does not establish that the President intended to prevent the Special Counsel’s Office or Congress from obtaining the emails setting up the June 9 meeting or other information about that meeting.

Curiously, this analysis of intent doesn’t talk about why Trump may have wanted to hide the truth about the June 9 meeting, even though elsewhere the report suggests that, overall, one motive for Trump obstructing the investigation might be because he thought the June 9 meeting would be found to be criminal.

So Mueller spent over eight pages laying out whether Trump’s role in crafting a deceitful statement about the June 9 meeting was obstruction of justice when, according to the report’s analysis of obstruction of justice, it was not even a close call.

So why — in a report that might better be understood as an impeachment referral — did they include that?

Trump’s statement on the June 9 meeting as evidence of corrupt intent for other obstructive acts

I’ve commented elsewhere that one of the posts I’ll eventually do is a narratological analysis of the report. I said that, in part, for the way the report intersperses several acts of potential Trump obstruction that all happened during the same time period in summer 2017. While the report only mentions this in passing, Trump’s lies about the June 9 meeting occur during the same time frame as three other potential obstructive acts that the report shows do amount to obstruction: the effort to get Don McGahn to get Rod Rosenstein to fire Mueller, the request that Corey Lewandowski (!!) fire Jeff Sessions, and the effort to get Sessions to unrecuse.

And, as noted, the June 9 meeting is one of three things — along with the Trump Tower Moscow deal and Trump’s push to have Roger Stone optimize the release of the stolen emails — that the report posits might be the underlying facts Trump was attempting to hide with his other obstruction (note that the report never focuses on Mike Flynn’s discussion on sanctions, which I’ll return to in a later post).

Which suggests Trump’s involvement in the June 9 statement is there not for those actions themselves, but for the way his actions prove corrupt intent for other obstructive actions.

A story describing Trump’s unique actions that nevertheless leaves out the biggest detail

Still, the specific story the report tells is damning. It includes details that suggest this was a unique event, with Trump trying to retain plausible deniability even though several witnesses say he knew about the meeting, and describing Trump preferring to break his cardinal sin, remaining silent on a story. But note that the story leaves out one of the most important details: Vladimir Putin’s interactions with the President during the day Trump wrote his deceitful statement.

Here’s the story, as told in the obstruction section.

Trump claims he didn’t know about the meeting ahead of time, contrary to what several witnesses said.

According to written answers submitted by the President in response to questions from this Office, the President had no recollection of learning of the meeting or the emails setting it up at the time the meeting occurred or at any other time before the election 668

The Chief of Staff learns about the meeting from Sean Hannity, which is just crazy train.

[Reince] Priebus recalled learning about the June 9 meeting from Fox News host Sean Hannity in late June 2017.672

Trump tells Jared not to share details of the meeting with him, according to Hope Hicks.

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.’

[snip]

On June 28, 2017, Hicks viewed the emails at Kushner’s attorney’s office 68° She recalled being shocked by the emails because they looked “really bad.”68′ 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.”‘ 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!'” Hicks recalled that the President asked Kushner when his document production was due.699 Kushner responded that it would be a couple of weeks and the President said, “then leave it alone.”‘ 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

But Jared claims that didn’t happen. This narrative is largely sourced to interviews with Hope Hicks. Even in his second interview, Jared said it didn’t happen this way.

Hicks 12/7/17 302, at 7; Hicks 3/13/18 302, at I. Counsel for Ivanka Trump provided an attorney proffer that is consistent with Hicks’s account and with the other events involving Ivanka Trump set forth in this section of the report. Kushner said that he did not recall talking to the President at this time about the June 9 meeting or the underlying emails. Kushner 4/11/18 302, at 30.

Hicks is confused about why Trump wants to commit his ultimate sin.

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 Later that day, Hicks and the President again spoke about the story.698 Hicks recalled that the President asked her what the meeting had been about, and she said that she had been told the meeting was about Russian adoption.699 The President responded, “then just say that.”706

The Report neglects to mention the Putin meeting where he and Trump talked about the subject of the statement.

[see this post]

Trump edits Jr’s statement because it admits they were offered dirt and discussed sanctions relief, defaulting on Putinesque spin.

On the flight home from the G20 on July 8, 2017, Hicks obtained a draft statement about the meeting to be released by Trump Jr. and brought it to the President.701 The draft statement began with a reference to the information that was offered by the Russians in setting up the meeting: “I was asked to have a meeting by an acquaintance I knew from the 2013 Miss Universe pageant with an individual who I was told might have information helpful to the campaign.”702 Hicks again wanted to disclose the entire story, but the President directed that the statement not be issued because it said too much.703 The President told Hicks to say only that Trump Jr. took a brief meeting and it was about Russian adoption.704 After speaking with the President, Hicks texted Trump Jr. a revised statement on the June 9 meeting that read:

It was a short meeting. I asked Jared and Paul to stop by. We discussed a program about the adoption of Russian children that was active and popular with American families years ago and was since ended by the Russian government, but it was not a campaign issue at that time and there was no follow up. 705

Hicks’s text concluded, “Are you ok with this? Attributed to you.”706 Trump Jr. responded by text message that he wanted to add the word “primarily” before “discussed” so that the statement would read, “We primarily discussed a program about the adoption of Russian children.”707 Trump Jr. texted that he wanted the change because “[t]hey started with some Hillary thing which was bs and some other nonsense which we shot down fast. “708 Hicks texted back, “I think that’s right too but boss man worried it invites a lot of questions[.) [U]ltimately [d]efer to you and [your attorney] on that word Be I know it’s important and I think the mention of a campaign issue adds something to it in case we have to go further.” 709 Trump Jr. responded, “lfl don’t have it in there it appears as though I’m lying later when they inevitably leak something.” 710

Hope Hicks channels the President hoping the damning emails would never leak.

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 emaiis would leak.726

Trump’s flunkies deny that the guy who met Vladimir Putin twice during the drafting of the statement wrote the statement.

Over the next several days, the President’s personal counsel repeatedly and inaccurately denied that the President played any role in drafting Trump Jr. ‘s statement.729 After consulting with the President on the issue, White House Press Secretary Sarah Sanders told the media that the President “certainly didn’t dictate” the statement, but that “he weighed in, offered suggestions like any father would do.”730

The Report again neglects to mention the Putin meeting where he and Trump spoke about the subject of the statement.

On July 19, 2017, the President had his follow-up meeting with Lewandowski and then met with reporters for the New York Times. In addition to criticizing Sessions in his Times interview, the President addressed the June 9, 2016 meeting and said he “didn’t know anything about the meeting” at the time.734 The President added, “As I’ve said-most other people, you know, when they call up and say, ‘By the way, we have information on your opponent,’ I think most politicians – I was just with a lot of people, they said … , ‘Who wouldn’ t have taken a meeting like that?”‘735

[see this post]

Providing the framework for the Putin involvement

As I’ve said, I think it remarkable — though perhaps explicable on constitutional grounds — that the report does not mention Putin’s role in all of this, and Trump’s bizarre behavior at the G20 (where he had Ivanka sit in on a meeting while he worked on the statement) more generally. Trump’s interactions with Putin — and his efforts to keep them secret even from staffers — is the subject of other congressional investigation. Which is why this passage from the beginning of the obstruction section sticks out.

Given those considerations, the facts known to us, and the strong public interest in safeguarding the integrity of the criminal justice system, we conducted a thorough factual investigation in order to preserve the evidence when memories were fresh and documentary materials were available.

As noted, I think Mueller included the June 9 meeting statement not because it, by itself, amounts to obstruction, but because the evidence laid out — plus evidence available publicly or via separate congressional investigation — provides an important motivational explanation for the rest of it. Trump made three separate attempts to gut the Mueller investigation in this period, all at a time he was acting unusually (for him) in his efforts to bury the June 9 meeting.

This is the lie he was telling while using his office to try to stop the investigation. Or rather, this is the lie he and Vladimir Putin were telling.

EMPTYWHEEL’S MUELLER REPORT COVERAGE

Two Exceptions to Trump’s “Do Not Recall” Responses: A Limited Answer on an Assange Pardon and a Non-Answer on Sanctions Relief

The Significance of Trump’s Obstruction of Investigation of His Family’s Campaign Finance Crimes, Plural

How “Collusion” Appears in the Mueller Report

Putin’s Ghost: The Counterintelligence Calculus Not Included in the Obstruction Analysis

Working Twitter Threads on the Mueller Report

The Trump Men and the Grand Jury Redactions

Mueller’s Language about “Collusion,” Coordination, and Conspiracy

The Many Lies and Prevarications of Bill Barr

Giorgi Rtslchiladze’s Honor Has Been Sullied because He Can’t Decide Whether He Knows the Tapes He Suppressed Exist or Not

Why Did Mueller Include the June 9 Meeting Statement in His Obstruction Case?

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. 

Hell Hath No Fury Like a Self-Promoting Republican Lawyer Scorned

Yesterday, Jerry Nadler subpoenaed Don McGahn, both to appear and testify on May 21, but also to turn over a slew of documents pertaining to 36 topics, the two most interesting of which are:

23. President Trump’s exposure in the Special Counsel Investigation relating to “other contacts,” calls,” or “ask re Flynn” as mentioned in Volume II, page 82 of the Report.

[snip]

34.  Communications relating to United States imposed sanctions or potential sanctions against the Russian Federation from June 16, 2015 to October 18, 2018, including but not limited to the sanctions imposed pursuant to the Magnitsky Act.

I suspect this is a friendly subpoena — a subpoena giving the witness an excuse for testifying. I say that not just because McGahn is a self-promoter who likes to pretend he’s the hero of saving Trump from prison, but also because McGahn got noticeably more chatty with Mueller’s office as Trump grew more unmanageable and the risk to McGahn’s future increased. Indeed, because he leaked his heroic role to the press, he ended up getting called in for further interviews.

At least as described by its footnotes, the Mueller Report revealed that McGahn testified five times. The first three seem to be largely sequential interviews covering three big events:

  • November 30, 2017: Flynn’s firing
  • December 12, 2017: Sessions’ recusal and Comey’s firing
  • December 14, 2017: Mueller’s appointment and Trump’s efforts to fire him, both directly (through McGahn) and indirectly (by firing Sessions)

Then, after the NYT and WaPo reported two versions of the story, in January of last year, that Trump asked McGahn to fire Mueller, McGahn was interviewed at more length about that.

  • March 8, 2018: Trump’s order to fire Mueller and attempt to force McGahn to correct the NYT story

Then, this year, after he had been fired for cooperating with Mueller, he was interviewed again, apparently to clarify some timing related issues (the interview apparently focused on his private phone records), and to explain why he didn’t tell Anne Donaldson, Reince Priebus, and others about the order to fire Mueller.

  • February 28, 2019

There are signs that, during the first set of interviews, McGahn was shading the truth. As expected, his story about the Flynn firing (and the CYA memo he drafted the day after Flynn’s firing) is dodgy — some of which I’ll return to, For example, his CYA memo claimed that, “Yates was unwilling to confirm or deny that there was an ongoing investigation but did indicate that the Department of Justice would not object to the White House taking action against Flynn,” when in fact she had told him she alerted him to Flynn’s lies precisely so the White House could take action. At times, it was clear McGahn was trying to put a less damning spin on things, especially notes taken by Anne Donaldson or Sessions Chief of Staff Jody Hunt. For example, he claimed a note that said “No comms, / Serious concerns about obstruction” didn’t mean that his office had tried to set a rule not to speak to Sessions about the investigation, reflected instead a concern about the press spin; that spin might reflect his own concern about his efforts to convince Sessions not to recuse.

In those initial interviews, too, McGahn’s story about his effort to get DOJ to issue a statement claiming the President wasn’t being investigated differs significantly from Dana Boente’s, which is useful to his story as it provides an excuse for his orchestration of blaming the Jim Comey firing on Rod Rosenstein. Perhaps the most ridiculous claim, from the initial meetings, is that Trump insisted on emphasizing Comey’s refusal to say he wasn’t under investigation because he didn’t want everyone to know Comey was fired over the Russia investigation. “McGahn said he believed the President wanted the language included so that people would not think that the President had terminated Comey because the President was under investigation” — this, even in spite of the fact that Trump told McGahn that he had told Sergey Lavrov he fired Comey because of the Russian investigation to take the pressure off.

McGahn,  and to a lesser degree Donaldson, both invented a bullshit story for why they were asking Richard Burr which Trump aides were targeted by the investigation, which a footnote dismantles.

The week after Comey’s briefing, the White House Counsel’s Office was in contact with SSCI Chairman Senator Richard Burr about the Russia investigations and appears to have received information about the status of the FBI investigation.309

309 Donaldson 11/6/17 302, at 14-15. On March 16, 2017, the White House Counsel’s Office was briefed by Senator Burr on the existence of “4-5 targets.” Donaldson 11 /6/17 302, at 15. The “targets” were identified in notes taken by Donaldson as “Flynn (FBI was ~ooking for phone records”; “Comey~Manafort (Ukr + Russia, not campaign)”; [redacted] “Carter Page ($ game)”; and “Greek Guy” (potentially referring to George Papadopoulos, later charged with violating 18 U.S.C. § 1001 for lying to the FBI). SC_AD_00l98 (Donaldson 3/16/17 Notes). Donaldson and McGahn both said they believed these were targets ofSSCI. Donaldson 11/6/17 302, at 15; McGahn 12/ 12/17 302, at 4. But SSCI does not formally investigate individuals as “targets”; the notes on their face reference the FBI, the Department of Justice, and Corney; and the notes track the background materials prepared by the FBI for Comey’s briefing to the Gang of8 on March 9. See SNS-Classified-0000140-44 (3/8/17 Email, Gauhar to Page et al.); see also Donaldson 11 /6/17 302, at 15 (Donaldson could not rule out that Burr had told McGahn those individuals were the FBI’s targets).

Perhaps most tellingly, the first time McGahn got asked about Trump’s efforts to fire Mueller, he was not all that forthcoming.

When this Office first interviewed McGahn about this topic, he was reluctant to share detailed information about what had occurred and only did so after continued questioning.

From the footnotes, it appears that Mueller’s office went back to Don McGahn in March 2018, after flattering stories about his heroic role showed up in NYT, WaPo, and CNN and got more clarification about how McGahn prevented Trump from firing Mueller (basically, by ignoring him). That interview, too, gathered information about how Trump tried to bully McGahn into correcting the NYT story, which falsely claimed that McGahn had told Trump he would quit. (Truthfully, McGahn’s threats to quit are as pathetic as I expected when the stories first came out, and the NYT story is as misleadingly flattering as I expected.)

It’s at that March 2018 meeting where McGahn admitted his real motivation: he envisioned himself as an esteemed judicial ideologue and not a historic hack.

McGahn also had made clear to the President that the White House Counsel’s Office should not be involved in any effort to press the issue of conflicts.578 McGahn was concerned about having any role in asking the Acting Attorney General to fire the Special Counsel because he had grown up in the Reagan era and wanted to be more like Judge Robert Bork and not ” Saturday Night Massacre Bork.”579

Finally, after being fired himself for cooperating with Mueller (and, probably, for seeding so many self-serving stories with the NYT), Mueller interviewed McGahn once more, this February, one of the very last interviews that appears in the report. It appears they were cleaning up two discrepancies: the dates of the calls (it appears McGahn may have said one happened later than it did to separate it from coverage that Trump was under investigation for obstruction), and to get McGahn to explain why he didn’t tell Donaldson or Priebus and Bannon that he had been ordered to get Rosenstein to fire Mueller.

Incidentally, while self-proclaimed Mueller investigation hero McGahn appears to have been happy to tell Mueller’s team that Trump’s claims that Mueller had a conflict, he never told the press, not even in any of those seeded stories to the NYT.

There’s one detail about the Mueller report of particular interest, however, given the subpoena to testify. That note Donaldson took, recording that “McGahn told the President that his ‘biggest exposure’ was not his act of firing Comey but his ‘other contacts’ and ‘calls,’ and his ‘ask re: Flynn”?

Nowhere is his explanation for that comment cited to an interview report from him.

Which brings us to the subpoena, which (as I said) I suspect is a friendly one.

McGahn is almost certainly one of the people who sourced stories (including with his favorite reporters at the NYT) saying they were worried about all the damning things they said exposed in the Mueller Report. In McGahn’s case, he was right to be worried. The other day, Politico revealed that Trump replaced Jones Day as his 2020 campaign firm, in a move that was attributed to cost-cutting but that Politico’s sources say is retaliation not just for McGahn’s cooperation with Mueller but also a story (written by McGahn’s favorite NYT journos the same day he last interviewed with Mueller) on Jared Kushner’s inappropriate security clearance.

[C]lose Trump advisers say the decision also stems from disappointment with the White House’s former top attorney and current Jones Day partner, Don McGahn, whose behavior has irked the president and some of his family members.

Taking business away from Jones Day is payback, these advisers say, for McGahn’s soured relationship with the Trump family and a handful articles in high-profile newspapers that the family blames, unfairly or not, on the former White House counsel.

“Why in the world would you want to put your enemy on the payroll?” said one adviser close to the White House. “They do not want to reward his firm. Trump arrived at that point long ago, but the security clearance memo stories put a fine point on it.”

One February 2019 story, in particular, caught the White House’s attention, when The New York Times reported that the president ordered John Kelly, his chief of staff at the time, to grant a security clearance to Jared Kushner. Kelly had written an internal memo on it, according to the Times. That fact was closely held inside the White House, and few officials other than Kelly and McGahn knew, say two close White House advisers — and the administration blamed McGahn for the leak.

One other thing HJC is asking for are “communications with the Executive Office of the President regarding your response to the March 4, 2019 document request” by HJC.

Which, I’m sure they have reason to know, reflect White House opposition to his public testimony.

Don McGahn apparently imagined working for a corrupt asshole like Trump would get him named to the Supreme Court.

Instead, his firm has a lost a very lucrative client. He appears to be upping the ante by further distancing himself from Trump’s corruption. That may get ugly, because Don McGahn knows where a whole lot of Donald Trump’s bodies are buried. And given that McGahn, not Trump, is the one who packed the courts, the Republicans may have really divided loyalties over this fight.

Update: The White House is fighting McGahn’s subpoena.

The Significance of Trump’s Obstruction of Investigation of His Family’s Campaign Finance Crimes, Plural

In the Barr Memo usurping Congress’ role in determining whether the evidence presented in the Mueller Report amounts to obstruction, he based a lot of his judgment finding no obstruction on the fact that Mueller “did not establish” that Trump and his campaign conspired with Russia.

In making this determination, we noted that the Special Counsel recognized that “the evidence does not establish that the President was involved in an underlying crime related to Russian election interference,” and that, while not determinative, the absence of such evidence bears upon the President’s intent with respect to obstruction.

The line is unbelievably cynical for several reasons. First, right at the beginning of the report, Mueller points out that his use of “did not establish” does not mean “there was no evidence.”

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

Yet in spite of that warning, Barr nevertheless claims that Mueller’s observation that he did not establish Trump’s involvement in a crime related the Russia’s election interference amounts to an “absence of such evidence.”

Moreover, Barr takes that quote out of the context of Mueller’s discussions about the corrupt motives that Trump might have to obstruct the investigation. (I’ve bolded the actual sentence Barr quotes, but included both of Mueller’s discussions of Trump’s implication in potential crimes.)

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

[snip]

Second, many obstruction cases involve the attempted or actual cover-up of an underlying crime. Personal criminal conduct can furnish strong evidence that the individual had an improper obstructive purpose, see, e.g. , United States v. Willoughby, 860 F.2d 15, 24 (2d Cir. 1988), or that he contemplated an effect on an official proceeding, see, e.g., United States v. Binday, 804 F.3d 558, 591 (2d Cir. 2015). But proof of such a crime is not an element of an obstruction offense. See United States v. Greer, 872 F.3d 790, 798 (6th Cir. 2017) (stating, in applying the obstruction sentencing guideline, that “obstruction of a criminal investigation is punishable even if the prosecution is ultimately unsuccessful or even if the investigation ultimately reveals no underlying crime”). Obstruction of justice can be motivated by a desire to protect non-criminal personal interests, to protect against investigations where underlying criminal liability falls into a gray area, or to avoid personal embarrassment. The injury to the integrity of the justice system is the same regardless of whether a person committed an underlying wrong. 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.

In both of these discussions, Mueller suggests that Trump may have believed his orders to Roger Stone to optimize WikiLeaks’ releases might be a crime when he obstructed the investigation; and in the discussion Barr extracts the quote from, he also suggests that Trump may have believed the June 9 meeting amounted to a crime.

The former is important given that Trump blatantly lied in his responses to Mueller about talking to Stone about his efforts to optimize WikiLeaks releases, even though at least three witnesses say he did. The prosecutorial decision with regards to WikiLeaks spans Volume I pages 176 to 179, but aside from a footnote explaining why they didn’t charge WikiLeaks for trafficking in stolen property, it is entirely redacted. The prosecutorial decision on Stone optimizing the release of stolen documents spans 188 to 190; it is also largely redacted, though it’s clear there were First Amendment concerns about pursuing it. Note that prosecutors continue to investigate Stone.

By contrast, the discussion of Mueller’s decision not to charge the June 9 meeting as a campaign finance violation is not redacted. Ultimately, Mueller’s team decided not to prosecute it because they did not have admissible evidence that Don Jr and the others knew taking the meeting and the offered dirt was illegal (which raises questions about whether they have hearsay or SIGINT suggesting they did), and because they had a hard time placing a value on the information offered.

The Office considered whether to charge Trump Campaign officials with crimes in connection with the June 9 meeting described in Volume I, Section IV.A.5, supra. The Office concluded that, in light of the government’s substantial burden of proof on issues of intent (“knowing” and “willful”), and the difficulty of establishing the value of the offered information, criminal charges would not meet the Justice Manual standard that “the admissible evidence will probably be sufficient to obtain and sustain a conviction.” Justice Manual§ 9-27.220.

[snip]

There are reasonable arguments that the offered information would constitute a “thing of value” within the meaning of these provisions, but the Office determined that the government would not be likely to obtain and sustain a conviction for two other reasons: first, the Office did not obtain admissible evidence likely to meet the government’s burden to prove beyond a reasonable doubt that these individuals acted “willfully,” i.e., with general knowledge of the illegality of their conduct; and, second, the government would likely encounter difficulty in proving beyond a reasonable doubt that the value of the promised information exceeded the threshold for a criminal violation, see 52 U.S.C. § 30109(d)(l)(A)(i).

[snip]

Additionally, in light of the unresolved legal questions about whether giving “documents and information” of the sort offered here constitutes a campaign contribution, Trump Jr. could mount a factual defense that he did not believe his response to the offer and the June 9 meeting itself violated the law. Given his less direct involvement in arranging the June 9 meeting, Kushner could likely mount a similar defense. And, while Manafort is experienced with political campaigns, the Office has not developed evidence showing that he had relevant knowledge of these legal issues.

[snip]

Accordingly, taking into account the high burden to establish a culpable mental state in a campaign-finance prosecution and the difficulty in establishing the required valuation, the Office decided not to pursue criminal campaign-finance charges against Trump Jr. or other campaign officials for the events culminating in the June 9 meeting. [my emphasis]

This analysis is critically important for a number of reasons.

First, the Report did not say this was not a crime. Rather, it said that under Justice Manual guidelines, Mueller’s team should not prosecute the case because they were unlikely to get and sustain a conviction. The analysis suggests there was a crime, but not one Mueller would win conviction on at trial.

That, by itself, blows Barr’s analysis on obstruction out of the water, because Mueller argued that this probably was a crime. Barr says Trump could not have obstructed justice because there was no underlying crime, but in fact, Mueller said there was a crime, just not one that could be prosecuted successfully.

But it’s crucially important to an impeachment inquiry for another reason (and explains one of the apparent referrals for attempted witnesses tampering of Rudy Giuliani friend Robert Costello to SDNY — though I suspect the fact that the passages  describing Trump’s attempt to tamper with Cohen’s testimony are unredacted means SDNY will not prosecute).

Mueller’s analysis of Don Jr’s receipt of dirt from foreigners could not be prosecuted because it wasn’t clear there was a crime and he didn’t have evidence that those who engaged in the crime knew it was a crime.

But SDNY has already decided that Trump’s hush payments are a crime. And in that case, it’s far harder for Trump to claim he didn’t know it was a crime for corporations to donate to presidential campaigns, because FEC investigated him and Cohen for it in 2011. A pity for Trump that he continues to alienate the guy who saved him from legal repercussions on that crime the last time, Don McGahn.

Mueller treats the question of whether Trump obstructed Cohen’s testimony in its own section, separate from his pressure on Mike Flynn, Paul Manafort, and Roger Stone not to cooperate. After laying out Jay Sekulow’s role in suborning Cohen’s false testimony on the Moscow Trump Tower deal, Mueller actually mentions the hush payments as part of the obstruction consideration.

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.

The report shows how, as he did with the Trump Tower deal, Cohen released false statements covering up the President’s actions. It describes the search of Cohen’s property and Trump’s reaction. It describes elaborate efforts to convey to Cohen he’d be “taken care of” if he did not cooperate.

Cohen also recalled speaking with the President’s personal counsel about pardons after the searches of his home and office had occurred, at a time when the media had reported that pardon discussions were occurring at the White House. 1031 Cohen told the President’s personal counsel he had been a loyal lawyer and servant, and he said that after the searches he was in an uncomfortable position and wanted to know what was in it for him. 1032 According to Cohen, the President’s personal counsel responded that Cohen should stay on message, that the investigation was a witch hunt, and that everything would be fine. 1033 Cohen understood based on this conversation and previous conversations about pardons with the President’s personal counsel that as long as he stayed on message, he would be taken care of by the President, either through a pardon or through the investigation being shut down. 1034

The report describes how, after Cohen pled guilty to the hush payments and implicated Trump in them, Trump turned on him.

On August 21, 2018, Cohen pleaded guilty in the Southern District of New York to eight felony charges, including two counts of campaign-finance violations based on the payments he had made during the final weeks of the campaign to women who said they had affairs with the President. 1044 During the plea hearing, Cohen stated that he had worked “at the direction of’ the candidate in making those payments. 1045 The next day, the President contrasted Cohen’s cooperation with Manafort’s refusal to cooperate, tweeting, “I feel very badly for Paul Manafort and his wonderful family. ‘Justice’ took a 12 year old tax case, among other things, applied tremendous pressure on him and, unlike Michael Cohen, he refused to ‘break’-make up stories in order to get a ‘deal.’ Such respect for a brave man!”1046

Only after that does it focus, again, on Trump’s efforts to cover up the Trump Tower Moscow deal, and Trump’s retaliation against Cohen for cooperating on that issue.

When the report conducts the analysis of whether this amounts to obstruction, it includes the SDNY case in both the “nexus to an official proceeding” and “intent” sections.

Nexus to an official proceeding. The President’s relevant”conduct towards Cohen occurred when the President knew the Special Counsel’s Office, Congress, and the U.S. Attorney’s Office for the Southern District of New York were investigating Cohen’s conduct. The President acknowledged through his public statements and tweets that Cohen potentially could cooperate with the government investigations.

[snip]

The President’s concern about Cohen cooperating may have been directed at the Southern District of New York investigation into other aspects of the President’s dealings with Cohen rather than an investigation of Trump Tower Moscow

In other words, even though Mueller didn’t prosecute the hush payments, he treated as one of the things Trump was attempting to obstruct with Cohen’s testimony.

This analysis renders Barr’s judgment — that Trump could not commit obstruction of justice because he didn’t commit the underlying crime — utterly irrelevant and wrong with regards to the President’s efforts to obstruct Cohen’s testimony.

Even with the June 9 meeting, Barr is wrong: Mueller believed there as a crime, he just didn’t believe he could prosecute it.

But SDNY has already decided — and obtained a guilty plea naming Trump as a co-conspirator — that the hush payment investigation that Trump was also obstructing was a crime, with the necessary proof that the criminals knew it was a crime. The 2011 precedent would further back that case.

Barr’s attempt to exonerate Trump on obstruction heavily depends on the fact that DOJ didn’t find a crime involving Trump.

Except DOJ did.

emptywheel’s Mueller Report coverage

The Significance of Trump’s Obstruction of Investigation of His Family’s Campaign Finance Crimes, Plural

How “Collusion” Appears in the Mueller Report

Putin’s Ghost: The Counterintelligence Calculus Not Included in the Obstruction Analysis

Working Twitter Threads on the Mueller Report

The Trump Men and the Grand Jury Redactions

Mueller’s Language about “Collusion,” Coordination, and Conspiracy

The Many Lies and Prevarications of Bill Barr

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 Metadata of the HJC Requests

While the rest of us were looking at the content of the letters the House Judiciary Committee was sending out to witnesses yesterday, @zedster was looking at the metadata. The requests have dates and times reflecting three different production days: towards end of the work day on March 1 (Friday), a slew starting just after 3PM on March 3 (Sunday), with some individualized documents between then and Sunday evening, with a ton of work being done until 1:30 AM March 4 (Monday morning), and four more trickling in after that.

I think the production dates likely reflect a number of different factors.

First, the letters are boilerplate, which may explain why most of those were done first. Three things might explain a delay on any of those letters: either a late decision to include them in the request, delayed approval by SDNY or Mueller for the request, or some difficulty finding the proper addressee for the letter (usually, but not always, the person’s counsel of record). Not all of these addresses are correct: as one example, Erik Prince reportedly has gotten a new lawyer since Victoria Toensing first represented him, but has refused to tell reporters who represents him now; his letter is addressed to Toensing.

One other possible explanation for late dates on the letters is that the decision to call them came out of Michael Cohen’s testimony last week (and some of those witnesses would have had to have been approved by SDNY as well). As an example, the last document in this set is the one to Viktor Vekelsberg, which clearly relates to Michael Cohen (though interest in him may have come out of Cohen’s HPSCI testimony).

The other two late letters are Cambridge Analytica and Donald Trump Revocable Trust. Both appear to be revisions — a third revision for the former and a second for the latter.

That said, the letters completed after March 1 are interesting: Aside from some institutional letters (like FBI and GSA), they appear to be likely subjects of ongoing investigative interest, whether because of the investigation into Trump’s inauguration, Roger Stone’s prosecution, Maria Butina’s cooperation, ongoing sensitivities relating to Paul Manafort, or the National Enquirer.

Some of these topics happen to be the last topics listed on the Schedule As (I got this from Jared Kushner’s Schedule A which is one of if not the most extensive), including WikiLeaks, Manafort’s sharing of polling data (with the Ukrainian oligarchs, but no Oleg Deripaska), Michael Cohen’s Russian-related graft, and Transition graft, including with the Gulf States. There’s no separate category of documents tied to the NRA.

The Schedule As were based off boilerplate and tailored very loosely based on the recipient; this may have been an area where prosecutors weighed in. These later approvals include a slew of Cambridge Analytica people (remember, Sam Patten, who had ties to the organization, was not included in this request at all). Alexander Nix’s Schedule A is a revision. So is Trump Organization lawyer Alan Garten’s. Some of the people central to any obstruction inquiry — Don McGahn, Jeff Sessions, former McGahn Chief of Staff Annie Donaldson, and Jay Sekulow — were among the last Schedule As printed out.

All of this is just reading tea leaves.

But it does seem to reflect some ongoing sensitivities (the Gulf States, Cambridge Analytica, and obstruction) that got approved last, with some areas (Oleg Deripaska) being significantly excluded.

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. 

About the Two Investigations into Donald Trump

I’m still pretty cranky about the timing and form of Andrew McCabe’s publicity tour.

But since it’s out there, I’d like to comment on three details, two of which have gotten significant comment elsewhere.

Trump wanted Rod Rosenstein to include Russia in the reasons he should fire Comey

The first is that Trump specifically asked Rosenstein to include Russia — McCabe doesn’t further specify what he meant — in the letter recommending he fire Jim Comey.

McCabe says that the basis for both investigations was in Mr. Trump’s own statements. First, Mr. Trump had asked FBI Director Comey to drop the investigation of National Security Adviser Michael Flynn, who has since pleaded guilty to lying to the FBI about his Russian contacts.  Then, to justify firing Comey, Mr. Trump asked his deputy attorney general, Rod Rosenstein, to write a memo listing the reasons Comey had to go. And according to McCabe, Mr. Trump made a request for that memo that came as a surprise.

Andrew McCabe: Rod was concerned by his interactions with the president, who seemed to be very focused on firing the director and saying things like, “Make sure you put Russia in your memo.” That concerned Rod in the same way that it concerned me and the FBI investigators on the Russia case.

If Deputy Attorney General Rosenstein listed the Russia investigation in his memo to the White House, it could look like he was obstructing the Russia probe by suggesting Comey’s firing. And by implication, it would give the president cover.

Scott Pelley: He didn’t wanna put Russia in his memo.

Andrew McCabe: He did not. He explained to the president that he did not need Russia in his memo. And the president responded, “I understand that, I am asking you to put Russia in the memo anyway.”

When the memo justifying Comey’s firing was made public, Russia was not in it. But, Mr. Trump made the connection anyway, telling NBC, then, Russian diplomats that the Russian investigation was among the reasons he fired Comey.

The most obvious explanation for this is that Trump wanted to box DOJ in, to prevent them from expanding their investigative focus from one campaign foreign policy advisor, a second campaign foreign policy advisor, his former campaign manager, his National Security Advisor, and his lifelong political advisor to the one thing those five men had in common, Trump.

But it’s also possible that Trump wanted Rosenstein to do what Don McGahn had narrowly prevented Trump from doing, effectively shifting the obstruction to Rosenstein. That seems like what Rosenstein was worried about, an impression he may have gotten from his instructions from McGahn, laying out the case that investigating Russia would get you fired.

It’s possible, too, that Trump was particularly interested in the public statement for the benefit of the Russians, a view supported by the fact that Trump made sure he fired Comey before his meeting with Sergey Lavrov and Sergey Kislyak, and then stated that he had more freedom with Comey gone. That is, it’s possible he needed to prove to the Russians that he could control his own DOJ.

The order to Rosenstein was one of the predications for the investigation into Trump

McCabe elaborates on a story told at least partly by the Peter Strzok-Lisa Page texts: that the day after Trump fired Comey, FBI moved to open two investigations into Trump. A number of people have suggested McCabe just vaguely pointed to Trump’s statements, but he’s more specific than that. One of the statements was that order to Rosenstein to include Russia in the firing memo.

Scott Pelley: How long was it after that that you decided to start the obstruction of justice and counterintelligence investigations involving the president?

Andrew McCabe: I think the next day, I met with the team investigating the Russia cases. And I asked the team to go back and conduct an assessment to determine where are we with these efforts and what steps do we need to take going forward. I was very concerned that I was able to put the Russia case on absolutely solid ground in an indelible fashion that were I removed quickly or reassigned or fired that the case could not be closed or vanish in the night without a trace.

[snip]

Andrew McCabe: There were a number of things that caused us to believe that we had adequate predication or adequate reason and facts, to open the investigation. The president had been speaking in a derogatory way about our investigative efforts for weeks, describing it as a witch hunt…

President Trump on Feb. 16, 2017: Russia is a ruse. I have nothing to do with Russia. Haven’t made a phone call to Russia in years.

Andrew McCabe: …publicly undermining the effort of the investigation. The president had gone to Jim Comey and specifically asked him to discontinue the investigation of Mike Flynn which was a part of our Russia case. The president, then, fired the director. In the firing of the director, the president specifically asked Rod Rosenstein to write the memo justifying the firing and told Rod to include Russia in the memo. Rod, of course, did not do that. That was on the president’s mind. Then, the president made those public comments that you’ve referenced both on NBC and to the Russians which was captured in the Oval Office. Put together, these circumstances were articulable facts that indicated that a crime may have been committed. The president may have been engaged in obstruction of justice in the firing of Jim Comey.

As McCabe describes it, the other things are obstruction-related: Trump’s attacks on the Russian investigation.

But remember, McCabe had heard the substance of Mike Flynn’s comments to Sergei Kislyak. The rest of us have seen just outlines of it. In some way, Mike Flynn convinced Sergei Kislyak on December 29, 2016, that Russia had Trump’s assurances on sanctions relief. Trump may well have come up specifically. In any case, the FBI would have had good reason — from Flynn’s lies, and his call records showing his consultations before he lied — to suspect Trump had ordered Flynn’s statements to Kislyak.

McCabe describes the genesis of the obstruction and the counterintelligence investigation

Finally, McCabe provides additional details to the dual investigation into Trump: the obstruction one arising out of Trump’s efforts to kill the Russian investigation, and the counterintelligence one into whether Trump was doing that at Russia’s behest (which goes back to my initial point, that Trump may have wanted Russia included in the firing memos as a signal to Russia he could kill the investigation).

Andrew McCabe: …publicly undermining the effort of the investigation. The president had gone to Jim Comey and specifically asked him to discontinue the investigation of Mike Flynn which was a part of our Russia case. The president, then, fired the director. In the firing of the director, the president specifically asked Rod Rosenstein to write the memo justifying the firing and told Rod to include Russia in the memo. Rod, of course, did not do that. That was on the president’s mind. Then, the president made those public comments that you’ve referenced both on NBC and to the Russians which was captured in the Oval Office. Put together, these circumstances were articulable facts that indicated that a crime may have been committed. The president may have been engaged in obstruction of justice in the firing of Jim Comey.

Scott Pelley: What was it specifically that caused you to launch the counterintelligence investigation?

Andrew McCabe: It’s many of those same concerns that cause us to be concerned about a national security threat. And the idea is, if the president committed obstruction of justice, fired the director of the of the FBI to negatively impact or to shut down our investigation of Russia’s malign activity and possibly in support of his campaign, as a counterintelligence investigator you have to ask yourself, “Why would a president of the United States do that?” So all those same sorts of facts cause us to wonder is there an inappropriate relationship, a connection between this president and our most fearsome enemy, the government of Russia?

Scott Pelley: Are you saying that the president is in league with the Russians?

Andrew McCabe: I’m saying that the FBI had reason to investigate that. Right, to investigate the existence of an investigation doesn’t mean someone is guilty. I would say, Scott, if we failed to open an investigation under those circumstances, we wouldn’t be doing our jobs.

With that laid out, I’d like to look at Rod Rosenstein’s August 2 memo laying out precisely what Mueller was — and had, from the start — been authorized to investigate, which both Paul Manafort and the President’s flunkies in Congress spent a great deal of effort trying to unseal. Knowing as we now do that the redacted passages include at least one and probably two bullet points relating to Trump himself, it seems more clear than every that once you lay out the investigations into Trump’s flunkies known to have been predicated at the time, that’s all that would have been included in the memo:

  • Obstruction investigation into Trump
  • Counterintelligence investigation into Trump
  • Election conspiracy investigation into Manafort
  • Ukrainian influence peddling investigation into Manafort
  • Transition conspiracy investigation into Flynn
  • Turkish influence peddling investigation into Flynn
  • Counterintelligence investigation into Carter Page
  • Election conspiracy investigation into George Papadopoulos
  • Election conspiracy investigation into Roger Stone

At that point, there wouldn’t have been space for at least two of the three bullets that now exist on a scope memo, as laid out by Jerome Corsi’s draft plea (though “c” may have been there in conjunction with Stone).

At the time of the interview, the Special Counsel’s Office was investigating the Russian government’s efforts to interfere in the 2016 presidential election, including:

a. the theft of campaign-related emails and other documents by the Russian government’s Main Intelligence Directorate of the General Staff (“GRU”);

b. the GRU’s provision of certain of those documents to an organization (“Organization 1”) for public release in order to expand the GRU’s interference in the 2016 U.S. presidential election campaign; and

c. the nature of any connections between individuals associated with the U.S. presidential campaign of Donald J. Trump (“Trump Campaign”) and the Russian government or Organization 1.

That’s another to believe — as I have long argued — that bullets a and b got moved under Mueller at a later time, probably around November 2017. After Flynn flipped, the Middle Eastern pass-through corruption would likely have been added, and inauguration graft probably got added after Rick Gates flipped (before the non-Russian parts of both got spun off).

One thing that means, if I’m correct, is that at the time Mueller was hired, the investigation consisted of predicated investigations into probably six individuals. While there would have been a counterintelligence and criminal aspect to both, there was a criminal aspect to each of the investigations, with specific possible crimes envisioned. If that’s right, it means a lot of hot air about Mueller’s appointment simply misunderstood what part of Comey’s confirmed investigation got put under Mueller at first.

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.

In any case, the certainty that there are at least one and probably two bullets pertaining to Trump in that August 2 memo is interesting for a few more reasons.

It makes it far more likely that the Strzok 302 — based on a July 19, 2017 interview, drafted the following day, and finalized August 22 — was an effort to formalize Mueller’s authorization to investigate the President. The part of the 302 that pertains to Mike Flynn’s interview takes up the middle third of the report. The rest must lay out the larger investigations, how the FBI found the intercepts between Flynn and Kislyak, and what the response to the interview was at DOJ.

The 302 is sandwiched between two events. First, it follows by just a few weeks the release of the June 9 meeting emails. Indeed, the interview itself took place on the day the NYT published the interview where Trump admits he and Putin spoke about adoptions — effectively making it clear that Putin, not Trump, drafted a statement downplaying that the meeting had established a dirt-for-sanctions relief quid pro quo.

The 302 was also drafted the day before Mueller started pursuing the transition emails and other comms from GSA that would have made it clear that Trump ordered Flynn’s statements and key members of the transition team knew that.

Specifically, on August 23, 2017, the FBI sent a letter (i.e., not a subpoena) to career GSA staff requesting copies of the emails, laptops, cell phones, and other materials associated with nine PTT members responsible for national security and policy matters. On August 30, 2017, the FBI sent a letter (again, not a subpoena) to career GSA staff requesting such materials for four additional senior PTT members.

It also happens to precede, by days, when Michael Horowitz would inform Christopher Wray and then Mueller about the Page-Strzok texts, though that is almost certainly an almost unbelievable coincidence.

In any case, as I’ve noted, unsealing that August 2 memo has been like a crown jewel for the obstructionists, as if they knew that it laid out the investigation into Donald Trump. That effort has been part of a strategy to suggest any investigation into Trump had to be improper, even one investigating whether he engaged in a quid pro quo even before the General Election started, trading US policy considerations — starting with, but not limited to, sanctions relief — in exchange for help getting elected.

The obstructionists want to claim that an investigation that started with George Papadopoulos and then Carter Page and then Mike Flynn (the obstructionists always seem to be silent about Paul Manafort and Roger Stone, as if they knew who engaged in substantive conspiracy with the Russians) should not end up with Donald Trump. And they do so, I think, to suggest that at the moment it discovered that quid pro quo in July 2017, it was already illegitimate.

But as McCabe said, “the FBI had reason to investigate that. Right, to investigate the existence of an investigation doesn’t mean someone is guilty. I would say, Scott, if we failed to open an investigation under those circumstances, we wouldn’t be doing our jobs.”

It just turned out that Trump was guilty.

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.