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The Alfa Bank Dark Net at Noon

Before its John Doe nuisance lawsuits got shut down by Vladimir Putin’s invasion of Ukraine, Alfa Bank made several claims that led me to chase down a minor – but potentially important – part of the Alfa Bank story.
Someone totally uninvolved in the Michael Sussman/Fusion/April Lorenzen effort played a role in making their efforts public in 2016: “Phil,” the guy about whom I went to the FBI in 2017. As I told the FBI, I suspected he had played a role in the Guccifer 2.0 and Shadow Brokers operations.

This post will focus on what Alfa Bank got wrong. A follow-up post will look at why, if John Durham made the same error, it may matter for the Michael Sussmann case.

Someone exposes Tea Leaves’ research via Krypt3ia

At issue is this post on the eponymously-named InfoSec blog Krypt3ia. As the post describes, someone tipped Krypt3ia off to a WordPress site and a purported i2p site (also called an “eepsite”) that laid out a version of the claims that Michael Sussmann had shared with the FBI and the NYT in September 2016.

Those claims are at the heart of the false statement charge against Sussmann.

Along with the basic allegations about weird DNS look-ups between servers from Alfa Bank and Spectrum Health and a Trump marketing server, those sites also revealed that after the NYT called Alfa Bank for comment about the DNS anomaly in September 2016, the Trump DNS address changed. This is the digital equivalent of someone changing their phone number after discovering they were being surveilled. The seeming response by Trump to the NYT call to Alfa for comment has always been regarded as the smoking gun showing human acknowledgement of the communications (a report from Alfa Bank attempted, unpersuasively, to contest that).

By connecting to a Russian-hosted proxy service, the Krypt3ia post about all this added an element of Russian mystery to the story. But that’s it. The post offered no other new content.

The Krypt3ia post is more important for the function it played than its content. Krypt3ia’s post served to make the contents of a publicly available but difficult to find i2p site – believed to be created by data scientist April Lorenzen, but written under the pseudonym Tea Leaves – accessible.

In response to tips from source(s) of his, Krypt3ia focused attention on a series of communications, none tied in his post to a then-identified person. First, someone alerted him to the WordPress site. That site spoke of Tea Leaves as a third person; there was never a pretense that it was Tea Leaves or Lorenzen. Krypt3ia learned of that WordPress site because someone approached Krypt3ia, purportedly asking for help finding an incomplete i2p address listed in the post.

I caught wind of the site when someone asked me to look at an i2p address that they couldn’t figure out and once I began to read the sites [sic] claims I thought this would be an interesting post.

That tip led Krypt3ia to find what was actually a proxy allowing access to a real i2p site – the one that injected an air of Russian mystery to the story.

First off, the i2p address in the WordPress site is wrong from the start. Once I dug around I found that the real address was gdd.i2p.xyz which is actually a site hosted on a server in Moscow on Marosnet.

That led Krypt3ia to ask whether anyone at NYT wanted to verify the claim that Trump Organization seemingly took action after NYT called Alfa.

I also have to wonder about this whole allegation that a NYT reporter asked about this.

Say, any of you NYT’s people out there care to respond?

Ask and you shall receive! Someone–as I lay out below, I have confirmed that this was “Phil”–put Krypt3ia in touch with a NYT reporter.

First off, someone in my feed put me in touch with the NYT and a reporter has confirmed to me that what the site says about NYT reaching out and asking about the connections, then the connections going bye bye is in fact true.

[snip]

The biggest takeaway is that the NYT confirmed that they asked the question and shit happened. They are still looking into it.

In an update, someone purporting to be Tea Leaves responded to Krypt3ia via an untraceable Tutanota email account, and in response, Krypt3ia posed a bunch of questions, only to get no answer. That non-answer was a key reason why Krypt3ia later treated the allegations as a fraud – an opinion that Alfa Bank, at least, used to bolster their own claims of fraud.

As Krypt3ia mused in real time, it seemed that the entire point of the tips he was receiving was focusing attention on the allegations themselves. Except, if your goal was to release a story that might swing an election, it was a really weird way of doing so.

One does wonder though just who might be trying this tac to attempt to cause Donny trouble. It seems a half assed attempt at best or perhaps they were not finished with it yet.. But then why the tip off email to someone who then got in touch with me? Someone I spoke to about this alluded to maybe that was the plan, for me to blog about this from the start..

[snip]

I have to say it though, these guys are trying to get the word out but in a strange way. I mean this eepsite is now hosted in Czechoslovakia, staying with the Baltic flavor but why not broadcast this more openly? Why does the WordPress site have the wrong address to start and then the other eepsite disappears after a little poking and prodding?

There are at least four unattributed or unattributable communications that appeared in this post: an email to someone who, in turn, got in touch with Krypt3ia; a tip about the WordPress site (presumably from the person who got the email) and through it to the i2p gateway; the contact with the unnamed NYT reporter; and the email from someone claiming to be Tea Leaves via a service that made it impossible to prove it was the person who originally adopted that pseudonym.

Notably, this all happened between October 5, 2016 – before the Podesta drop and the DHS attribution of the DNC hack to Russia – and the days after it. Krypt3ia was checking out the i2p proxy on October 7, at 3:08PM ET – less than half an hour before DHS would release an unprecedented attribution statement, followed shortly by the Access Hollywood video, followed shortly by the first Podesta email drop. Krypt3ia wrote his post the following day.

i2p sites aren’t supposed to get noticed

To understand why using Krypt3ia to get noticed is so weird, you need to understand a little about i2p.

i2p is a network like Tor that provides obscurity and security. Even today, it’s far less accessible than Tor (and was even more so in 2016). Krypt3ia could credibly access it, but I couldn’t have. Reporter Eric Lichtblau or Fusion GPS’ Laura Seago probably couldn’t have either. Normally you need either a special browser or a gateway to to access an eepsite. Importantly, the public DNS routing information that was at the heart of the project that discovered the Alfa Bank anomalies doesn’t exist for i2p. You can’t just Google for a site.

If data scientist April Lorenzen put her research on an i2p site, as alleged, she may have done so to limit who noticed it and her role in it.

It didn’t work out that way.

(Note, because the Durham investigation remains ongoing, I am not contacting her or her lawyers for comment or others who are obviously still the focus of Durham’s investigation.)

Krypt3ia didn’t link directly to her i2p site at first. He started by linking a gateway, which would be accessible to mere mortals who don’t have an i2p browser or technical prowess. His second link may have been a different gateway – again, a link readily accessible to people without using special software. It was one of these links that got sent around by journalists and researchers.

That’s what I mean about content versus function: Krypt3ia added no new content to this story. He did, however, make parts of it accessible to people – like reporters – who would otherwise never have found it.

A comment purportedly from Lorenzen sent to Krypt3ia’s site, playing on Tea Leaves’ name, expressed (or feigned) surprise at finding what the email called a mirror (but which was a proxy).

Thank you to https://krypt3ia .wordpress.com for pointing out a possible mirror of this (the original, what you are reading, http://gdd.i2p). We did not know about gdd.i2p.xyz until hearing about it from Krypt3ia. So we did a little research and see that i2p.xyz has been around for years and appears to mirror a lot of *.i2p sites. *i2p.xyz probably functions as an alternative for everybody that doesn’t have the skills to reach an i2p site :)

Next question, why would somebody first mirror – and then drop their mirror – of our http://gdd.i2p website. The following is just speculation: maybe normally i2p.xyz just mirrors everything but oops! Something hot – drop the mirror. I don’t know. I didn’t try to visit it. Mirrors of course could choose to alter content and measure who visits. We have no such opportunity to see who is visiting our real i2p site.

Whoever wrote the email, it emphasized how the proxy was different from the “real i2p site:” The proxy “functions as an alternative for everybody who that doesn’t have the skills to reach an i2p site,” but it also can “measure who visits” whereas a “real i2p site” cannot.

Whatever the story behind the Krypt3ia post, it had the effect of making it clear that researchers who believed they could find hackers by looking at public DNS data couldn’t hide what they were doing, even on networks designed to be untrackable. It had the effect of making it clear their efforts to look for Russian hackers in DNS data had been seen.

Alfa Bank alleges the Krypt3ia notice is part of an imagined conspiracy targeting the bank

It also appears to have convinced Alfa Bank that Krypt3ia was a key cog in the publication of this story. Their lawsuit claimed that,

The scientists and researchers who obtained the nonpublic DNS data deliberately leaked portions of that data to other scientists and researchers and, ultimately, to the media.

Depositions in the Alfa Bank lawsuit make it clear that Alfa believed (presumably because of those characteristics about i2p) that Fusion GPS must have been behind the effort to alert Krypt3ia to the research site and, via his post, to alert the public.

In a February 10 bid to overcome privilege claims that Fusion GPS’ Laura Seago had previously made, Alfa Bank lawyer Margaret Krawiec argued that Seago must have breached any privilege by sharing information from the publicly posted Tea Leaves information. Krawiec’s logic was that someone internal to the privilege claims asserted by Perkins Coie must have told Seago where the i2p site was, because otherwise there would be no way she could find it.

Krawiec: So, your honor, let me jump in there because one of the things that happened is that we were trying to understand how it was that Ms. Seago knew that this data had been published on the internet because it was published in an obscure place in the internet by this Tea Leaves that I told you about.

And then what Fusion did was – so we asked about that. We said, “How did you know where to look for that data? Who told you?” Cut off, instruction not to answer, privileged. But guess what they did with those links of that data? They took that data that someone told them because no one would have known to find it where it was unless someone told them.

And they wouldn’t tell us who told them or how they found it, but then they took all those links – the supposed public source research – and disseminated it to seven or eight media outlets saying you have to check this out. This is big stuff.

Fusion’s lawyer Joshua Levy countered that the link and the site itself were public.

Levy: If you – if you take the example that Alfa-Bank’s lawyer just presented to the Court, the link that someone at Fusion had circulated to a reporter, that link is a link to the internet. It’s a publicly available link, right?

The link – it’s, it’s like sending a New York Times article to a reporter at the Washington Post. Have you – have you seen this article? You should look at it. It’s interesting. Here’s a link. It happens to do with the subject matter which (indiscernible) is fascinated, [sic] but it’s a publicly available link.

Ms. Seago may have had communications internally at Fusion about that link. Those are privileged communications, but the link itself is available online for the Court, for me, for Ms. Krawiec. It’s public. There’s, there’s nothing confidential about that link.

Alfa’s lawyer responded by arguing that because an i2p site was so difficult to find, Seago’s knowledge of its location must have come from privileged information, and because she subsequently shared a link to a gateway with journalists, she had waived privilege.

Krawiec: Your Honor, I can tell you that where this link was when it was on the internet, you, myself, Mr. Levy, no one could have found that by doing a basic Google search. They were instructed where to find it in this obscure location.

And all we were trying to understand is who instructed them because the person who posted it was Tea Leaves, the anonymous computer scientist who had this computer data.

Alfa’s lawyer argued, not unreasonably, that because Tea Leaves’ site could not have been discovered by a Google search, someone connected to Tea Leaves must have told Fusion where it was, and because Fusion, in turn, shared a link to it, any privilege around Fusion’s discussions about Tea Leaves had therefore been breached.

Alfa’s focus on how Tea Leaves’ i2p site became public continued during a February 14 deposition of Peter Fritsch. In it, Alfa raised an email from Seago to Fritsch describing that Krypt3ia had become aware of Tea Leaves’ work, in response to which questions Fritsch pled the Fifth. By the time Krypt3ia posted, it seems likely, Fusion already knew April Lorenzen was involved.

But in the Seago hearing, Fusion lawyer Joshua Levy stated clearly that, “Our client didn’t move that specific communication –” pushing Tea Leaves’ information (from the context, it’s unclear to me whether this was a link directly to a gateway to Tea Leaves i2p site or one that involved Krypt3ia). Elsewhere Levy explained that Mark Hosenball had sent the link to Fusion which, in turn, sent it out to other journalists.

Fusion’s claims are consistent with them knowing of Lorenzen’s work before the Krypt3ia post, but having nothing to do with the Krypt3ia post and/or public links directly to Lorenzen’s site.

“Phil” hooked Krypt3ia up with the NYT

Alfa Bank seems to doubt Fusion’s denials that they were behind all those levels of notice to Krypt3ia.

I have no idea who first alerted Krypt3ia to the WordPress site or the i2p site, and he says he doesn’t remember who did. I do know who hooked him up with the NYT.

As I noted when I criticized this story in 2016, I was pitched the Alfa Bank story, like the NYT. But unlike the NYT, I was not pitched it by the people Durham is trying to put in jail like Sussmann, the researchers, or Fusion GPS. I was pitched it by the guy whom I’ve referred to by the pseudonym “Phil,” the person I went to the FBI about in 2017. (This is a pseudonym and he has not been charged by DOJ.)

Not only did he pitch me on it, but he told me he was the one to have hooked Krypt3ia up with the NYT reporter.

The rest of our exchange is below…

The claim that Phil had introduced Krypt3ia to a NYT reporter was credible. At the time I knew of several NYT reporters he claimed to have ties to (at Phil’s request, I had introduced him to one of them, and I’ve confirmed his contacts with others since). He also publicly interacted with Krypt3ia on Twitter.

But I had never checked whether Phil had really introduced the NYT to Krypt3ia until the Alfa Bank filing that blamed that tie on Fusion.

Nicole Perloth has confirmed it was Phil. As she described, Phil basically pushed Krypt3ia on her. “Nicole: Krypt is a person who can be an invaluable resource on this,” specifically addressing Krypt3ia‘s expertise on the dark web, even while asking her to keep him (Phil) updated on when the story would be published.

When I asked Krypt3ia if it was possible that the same person alerted him to the i2p site as had connected him to a NYT journalist, he said he did not remember.

Do you know if the person who connected you with the NYT reporter was the same was the one who pointed out the mirror? As per your post? Or don’t you remember?

Honestly don’t remember. Did not take notes or anything, thought it all bullshit and some kind of game of disinformation.

Whether or not Phil had a role in first tipping Krypt3ia off to the i2p proxy, he had a role in making the NYT aware of a series of moving versions of that site, starting with the one in Russia.

Importantly, this is not the only attempt to broker these allegations that remains publicly unexplained. There’s another unexplained package of these allegations – a “mediafire” package first posted on Reddit – raised in the Alfa suit that Fusion disclaimed credit for.

At least one person pushing this story was (as far as I know) completely unrelated to the efforts Durham and Alfa have focused on. Given that April Lorenzen used a pseudonym for her efforts, it would have been easy to hijack those efforts. So until April Lorenzen certifies that all the communications posted under the name “Tea Leaves” out there are hers (including the comment attached to a Tutanota email in Krypt3ia’s post), neither should anyone assume she’s responsible for all of them.

Alfa Bank believed that the public notice of the Tea Leaves i2p site was proof that Fusion, and only Fusion, was dealing these allegations. The opposite is the case.

To be sure: that might have mattered if Vladimir Putin’s invasion hadn’t killed the Alfa Bank lawsuit. But Phil’s role in the Krypt3ia post doesn’t much matter to the Sussmann indictment. Sussmann’s alleged lie was on September 19, 2016, 16 days before the communications leading to the Krypt3ia post started. Nothing Phil did on October 8 and thereafter, it seems, could affect that alleged lie.

That said, Durham’s sprawling single-count indictment does include allegations about Sussmann’s outreach to the press that post-dates Phil’s involvement and may rely on it. Most notably, a paragraph describing that Sussmann emailed Lichtblau on October 10 encouraging him to send an opinion piece criticizing the NYT for its Trump coverage mentions that, “At or around that time, and according to public sources, [Lichtblau] was working on an article concerning the [Alfa Bank] allegations, but [Lichtblau’s] editors at [NYT] had not yet authorized publication of the article.” [my emphasis] Krypt3ia’s comment, “the NYT confirmed that they asked the question and shit happened. They are still looking into it” – a comment that indirectly involved Phil – is one of those public sources.

At the time, Phil was pushing a NYT article more aggressively than what Durham describes Sussmann doing, and he played at least some role in the public sources that reported NYT was working on an article.

So Phil’s involvement adds an important detail about how these claims were made public in the weeks leading up to the election, but none of that changes whether or not Sussmann lied to cover up Hillary and/or Rodney Joffe’s role in all this.

Update: I’ve corrected the post to reflect that the original site, hosted in Russia, was a proxy, not a mirror. Thanks to @i2p at geti2p.net for the corrections starting in this exchange.

Texts

The following includes all the Signal texts included in the exchange regarding the Alfa Bank DNS anomalies.

Two comments on these texts: I’m not sure what I meant in the text sent on October 9 at 10:51AM. I suspect I mistyped. I suspect I was trying to explain Betsy and Dick DeVos’ traditional role in the Republican party – money – was less urgent to Trump in October 2016 than some kind of credible Republican policy platform.

I stand by everything else I said in these texts, though admit my observation about the adversity between UAE and Russia turned out to be hilariously and epically wrong, particularly as it pertained to Prince.

The Eight Trump Associates Whom DOJ Is Investigating

February 8, 2022/94 Comments/in 2016 Presidential Election, 2020 Presidential Election, Impeachment, January 6 Insurrection, Mueller Probe /by emptywheel

Exactly a month ago, I did a post noting that the TV lawyers claiming there was no proof that DOJ was investigating anyone close to Trump were either ignorant of or ignoring six Trump associates who were being investigated. I wanted to update that post with developments from the last month, because (in addition to the contempt prosecution for Steve Bannon), we’ve learned of investigations into at least two more Trump associates.

Note that four of these — Sidney Powell, Alex Jones, Roger Stone, and Mark Meadows — definitely relate to January 6 and a fifth — the investigation into Rudy Giuliani — is scoped such that that it might include January 6 without anyone knowing about it.

Tom Barrack

Last week, Trump’s top donor, Tom Barrack, filed a motion to dismiss his indictment for serving as an unregistered agent of the Emirates.

As he did in a prior status hearing, that motion complained that Billy Barr’s efforts to undermine this investigation failed.

[T]he government’s unjustified two-year delay in charging Mr. Barrack also warrants dismissal of the indictment. The government had all the evidence on which the indictment was based in 2019. The indictment pleads the conspiracy terminated in April 2018, and the alleged false statements occurred in June 2019. Why the government waited more than two years, and until after a change in administration, is a question only it can answer, but it should answer it especially given the paramount First Amendment interests at stake. Had the government brought this case when its investigation was complete in 2019, recollections regarding Mr. Barrack’s June 2019 interview would have been fresh and the harm from the government’s failure to make a contemporaneous record might have been mitigated. The lengthy delay has also prejudiced Mr. Barrack’s ability to identify, preserve, and secure documentary evidence and obtain evidence from witnesses whose memories have faded. The government has provided no explanation for its delay, and the specter that the government intentionally delayed bringing this case for political reasons or tactical advantage hangs heavily over this case. Because Mr. Barrack has been deprived of a fair opportunity to defend himself, the indictment should be dismissed. [my emphasis]

Barrack and DOJ are also fighting over whether Barrack can unseal discovery in an attempt to discredit this investigation.

Barrack filed the specified materials in connection with pretextual arguments in his motion to dismiss, and he all but acknowledges that he seeks their unsealing in a bid to improperly influence public opinion.

As noted before, according to reporting from 2019, this investigation was a Mueller referral, so it’s proof that Garland’s DOJ will pursue such referrals. According to CNN reporting, the indictment was all ready to go in July 2020, a year before it was actually charged. That provides a measure of how long it took an investigation that was deemed complete at a time when Barr seemingly prohibited filing it to be resuscitated under Garland: at least four months.

Barrack’s prosecution proves that DOJ can indict a top Trump associate without leaks in advance. But it will also be an early test about a Trumpster’s ability to discredit the notion that any of them can be held accountable.

Jury selection for Barrack’s trial is now scheduled to start on September 7.

Rudy Giuliani

Since my last post on this topic, Special Master Barbara Jones reported on the progress of the privilege review of 16 devices seized from Rudy Giuliani on April 28, 2021.

Here’s a summary of what that review and the earlier known seizures of Rudy’s communications in the Ukraine-related investigation into Rudy:

The known warrants for Rudy’s phones pertain to whether, in the lead-up to Trump’s impeachment for trying to coerce Ukraine’s assistance in the 2020 election, Rudy was acting as an unregistered agent of Ukraine.

There’s good reason to believe DOJ could show probable cause to access Rudy’s phones from April 2018 (before he formally became Trump’s lawyer), because during that period he was attempting to buy Michael Cohen’s silence with a pardon. There’s equally good reason to believe that act of obstruction is one of the referrals still redacted in the Mueller Report.

On or about April l 7, 20 l 8, Cohen began speaking with an attorney, Robert Costello, who had a close relationship with Rudolph Giuliani, one of the President’s personal lawyers. 1022 Costello told Cohen that he had a “back channel of communication” to Giuliani, and that Giuliani had said the “channel” was “crucial” and “must be maintained.” 1023 On April 20, 2018, the New York Times published an article about the President’s relationship with and treatment of Cohen. 1024 The President responded with a series of tweets predicting that Cohen would not ” flip” :

The New York Times and a third rate reporter . . . are going out of their way to destroy Michael Cohen and his relationship with me in the hope that he will ‘flip. ‘ They use nonexistent ‘sources’ and a drunk/drugged up loser who hates Michael, a fine person with a wonderful family. Michael is a businessman for his own account/lawyer who I have always liked & respected. Most people will flip if the Government lets them out of trouble, even if it means lying or making up stories. Sorry, I don’t see Michael doing that despite the horrible Witch Hunt and the dishonest media! 1025

In an email that day to Cohen, Costello wrote that he had spoken with Giuliani. 1026 Costello told Cohen the conversation was “Very Very Positive[.] You are ‘loved’ … they are in our corner … . Sleep well tonight[], you have friends in high places.”1027

Similarly, there’s good reason to believe DOJ could show probable cause to access Rudy’s phone for his involvement in Trump’s attempted coup, not least because Rudy himself tweeted out some texts he exchanged with a Proud Boy associate discussing specific insurrectionists in the aftermath of the attack.

We wouldn’t know if DOJ had obtained warrants for those separate periods, because those periods will be covered by Jones’ review one way or another.

But because of the temporal scope Judge Paul Oetken approved last year, Jones has completed a privilege review of all communications that date between January 1, 2018 through April 28, 2021 on 8 of the devices seized from Rudy (April 28 was the day the devices were seized). We can’t know what dates during which Rudy was using those 8 devices. It could well be that they were older phones with nothing recent.

But we know that of the communications on the phone with the most texts and chats — the phone designated 1B05 — the government received 99.8% of any communications dated between January 1, 2018 and April 28, 2021 and they received those communications no later than January 21.

Of particular note, Rudy at first tried to claim privilege over 56 items from phone 1B05. He thought better of those claims in 19 cases. And then, after Jones deemed 37 of them not to be privileged, he backed off that claim as well. During a period when Jones and Rudy’s team would have been discussing those 37 items, Judge Oetken issued a ruling saying that the basis for any privilege claims (but not the substance of the communications) would have to be public. After precisely the same kind of ruling in the Michael Cohen Special Master review, Trump backed off his claim of privilege for Cohen’s recording about the hush payments. That may be what persuaded Rudy to withdraw his claim of privilege over those materials here, as well.

And whether or not DOJ has already accessed the communications Rudy conducted during 2020 and 2021 on any of the 16 devices seized from him, we know all the phones Rudy was using in April 2021 are in DOJ’s possession and that Judge Oetken has already approved a privilege review to cover those communications.

In any case, the details of the Rudy investigation show, at a minimum, that Barr went to extraordinary lengths to attempt to kill this investigation (and may have even ordered that FBI not review the materials seized in 2019). It took mere weeks after Garland took over, however, for the investigation to take very aggressive steps.

It also shows that SDNY managed to renew this investigation without major leaks.

Robert Costello

Last Friday, Steve Bannon revealed that DOJ had seized the toll records of his lawyer, Robert Costello, the same guy that would be at the center of any predication for any investigation into Rudy’s attempts to obstruct the Mueller investigation. Some outlets are claiming that this was just part of the investigation into Bannon, but that cannot be right, for several reasons. First, DOJ didn’t ask for the most intrusive set of those records — email metadata from between March 5 and November 12, 2021 — until the day they indicted Bannon. The returns on those requests could not have been presented to the grand jury, because DOJ didn’t receive them until December 7. Plus, scope of that request not only dates back to before the September 23 subpoena that is the basis for the Bannon contempt prosecution, it dates back before the January 6 Committee that issued the subpoena in the first place. DOJ obtained those Internet toll records for a reason that extends beyond the subpoena fight; they cannot pertain (just) to the known prosecution of Bannon.

It may well be they relate to obstruction related to Rudy though. Here’s DOJ’s letter responding to Bannon’s complaints about this seizure, which given some confusion bears further discussion.

We write in response to your January 6, 2022, letter requesting information about internal deliberations and investigative steps relating to Mr. Costello and any other attorneys who have represented Mr. Bannon. As you are aware, and as we discussed in a phone call with Mr. Corcoran and Mr. Schoen on December 2, 2021, Mr. Costello represented Mr. Bannon before the January 6th Select Committee (“the Committee”) in relation to the subpoena it issued to Mr. Bannon and is, therefore, a witness to the conduct charged in the Indictment. We understand that attorney Adam Katz also represented Mr. Bannon with respect to the Committee and, therefore, also is a potential witness. We are not aware of any other attorneys who represented Mr. Bannon with respect to the Committee.

Aside from the information that Mr. Costello voluntarily disclosed on behalf of Mr. Bannon during the investigation of this matter, the Government has not taken any steps to obtain any attorney work product relating to any attorney’s representation of Mr. Bannon or to obtain any confidential communications between Mr. Bannon, Mr. Costello, and Mr. Katz, or between Mr. Bannon and any other attorneys.

We have provided all discoverable material in the prosecution team’s possession, custody, or control relating to Mr. Costello’s and Mr. Katz’s involvement in the conduct charged in the Indictment.

The first paragraph explains a warning DOJ gave when Costello first raised noticing an appearance in the contempt prosecution for Bannon (it’s likely Costello had been tipped off by his firm that DOJ had obtained his toll records by that point). DOJ makes clear that, by voluntarily sitting for two meetings at which FBI agents were present, Costello made himself a witness about the basis for which Bannon gave for blowing off the Committee subpoena. As I have noted, Costello gave materially inconsistent answers at that meeting, likely giving the FBI probable cause to investigate whether he had made false statements; the easiest and least intrusive way to test whether his claims were true was to test whether his claims about the existence and timing of communications with Trump’s lawyers were true or not — thus the toll record seizure.

The remaining two paragraphs disclaim any impact on Bannon. Call records are not work product and, while sensitive, are not treated as privileged (and in any case, date to a period in which Costello was not representing Bannon criminally). The interviews were work-product, claims about the advice Costello gave Bannon (including the email Costello described in which he told Bannon to be BEWARE because he was likely to be referred to DOJ for prosecution). But Costello shared that work-product voluntarily. DOJ has not otherwise obtained the work-product or confidential content of Costello pertaining to Bannon.

That paragraph says nothing about Costello’s representation of Rudy, though.

And the following paragraph makes it more likely this statement intentionally stops short of covering all of Costello’s work product. It limits the statement about materials in its possession to the prosecution team (excluding, for example, SDNY prosecution teams). It doesn’t address confidential communications between Rudy and Costello. And for good measure, it limits its statements to Costello’s involvement in the January 6 subpoena, not other matters.

Costello may not count as a Trump associate directly. But this is all about Trump’s extended effort to obstruct investigations into his conduct. And because of the way Costello has, on at least two occasions, been the weak link that pierced privilege covering such cover-ups, may be a key investigative target.

Sidney Powell

Sidney Powell may be another key lawyer who pierced privilege.

Several different outlets have reported that there is a grand jury investigation into Sidney Powell’s grifting off lies about election fraud.

Since my last post on investigations into Trump’s associates, Sidney Powell’s lawyer revealed she is “cooperating” in that investigation, though in contemplating “cooperation” with the January 6 committee, she is reserving privilege claims about “advice” to Donald Trump.

A lawyer for Sidney Powell, a well-known, Trump-connected attorney, acknowledged that her organization’s fundraising connected to the 2020 election is subject to an ongoing federal criminal investigation.

Powell’s lawyer, Howard Kleinhendler, told CNN that his client “is cooperating” with the investigation into her organization, Defending the Republic, by the US Attorney’s Office in the District of Columbia. That cooperation includes “rolling productions” of documents.

[snip]

Still, when the committee asks Powell about communications she had with Trump, that is “going to get a little hairy,” Kleinhendler told CNN.

He said Powell believes that the times Trump called her to ask for legal advice may be covered by attorney-client privilege — even if he never paid her to be his or his campaign’s lawyer. Powell never worked as a lawyer for the former President personally or for the Trump campaign, Kleinhendler said.

“We’ll have to deal with that, and we’ll have to try to discuss with the committee to see how” to handle privilege issues, Kleinhendler said.

But Powell can’t claim privilege for the bulk of the period during which she was helping Trump steal the election. After Trump claimed Powell represented him on November 15, 2020, Rudy stated as clearly as he can manage on November 22 that, “Sidney Powell is practicing law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity.”

With that statement, Rudy effectively waived privilege for any communications implicating both of them from that date forward, long in advance of a December 18 meeting at which Powell purportedly told him about all the communications she sent him in the interim.

Similarly, most of these events post-date the time, November 25, when Powell can credibly claim to be representing Mike Flynn in an effort to nullify the consequences of his lies and foreign agent work, because that’s when Trump pardoned Flynn. Certainly, Powell’s claim to be criminally representing Flynn ended no later than December 8, when Emmet Sullivan dismissed the case. So she may want to claim privilege, but well before the critical meeting between Rudy, Powell, Flynn, and Patrick Byrne on December 18, all visible basis for that claim was affirmatively gone, and for anything seized from her email provider, she’s likely not going to be involved in making that claim anyway.

Mark Meadows

In a number of posts, I have argued that DOJ would be better off treating the January 6 contempt referral as, instead, a referral into obstruction of justice for the way Mark Meadows withheld or deleted evidence pertaining to the coup attempt.

I can’t prove that has happened.

What is certain, however, is that Deputy Attorney General Lisa Monaco confirmed that DOJ is investigating the fake electors.

“We’ve received those referrals. Our prosecutors are looking at those and I can’t say anything more on ongoing investigations,” Monaco said in an exclusive interview.

And the January 6 contempt referral made clear that communications in Meadows possession show that he was at the center of that effort.

Mr. Meadows received text messages and emails regarding apparent efforts to encourage Republican legislators in certain States to send alternate slates of electors to Congress, a plan which one Member of Congress acknowledged was ‘‘highly controversial’’ and to which Mr. Meadows responded, ‘‘I love it.’’ Mr. Meadows responded to a similar message by saying ‘‘[w]e are’’ and another such message by saying ‘‘Yes. Have a team on it.’’34

34Documents on file with the Select Committee (Meadows production).

Meadows has been frantically trying to ensure whichever of these communications occurred on his personal accounts get shared with the Archives. Which means DOJ now knows they can learn details of the fake elector conspiracy by obtaining those records from the Archives.

Alex Jones

Over the last year, DOJ has collected a great deal of evidence that the Oath Keepers, the Proud Boys, and an alarming number of former Marines worked together to open a second breach on the Capitol via the East doors. Instrumental to the success of this breach were a large number of MAGA tourists who joined in the breach. DOJ has proof that at least some of them were there because Alex Jones had lured them there by lying about a second Trump speech on the East side of the building.

DOJ has already arrested two of Jones’ employees: videographer Sam Montoya in April and on-air personality Owen Shroyer in August.

In a November DOJ response in the Shroyer case, Alex Jones was referred to as Person One, as numerous others believed to be under active investigation have been described. That filing debunked the cover story that Shroyer and Jones have used to excuse their actions on January 6. Judge Tim Kelly, who is also presiding over the most important Proud Boys cases, is currently reviewing Shroyer’s First Amendment challenge to his arrest.

This strand of the investigation has likely necessarily lagged the exploitation of former Alex Jones’ employee Joe Biggs’ iCloud and phone, which were made available to Biggs’ co-travelers in August. This post has more on the developments in the Montoya and Shroyer cases, including that a different prosecutor recently took over Monotya’s case.

Roger Stone

Roger Stone, who has close ties to both the Oath Keepers and Proud Boys who coordinated the attack on the Capitol, has shown up repeatedly in the Oath Keeper conspiracy. In March, DOJ debunked Connie Meggs’ claim not to know her co-conspirators by including a picture of an event she did with Roger Stone and Graydon Young (this was close to the time that Connie’s husband Kelly organized an alliance between Florida militias).

In a May 25 FBI interview, Mike Simmons, the field commander for the Oath Keepers on January 6, appears to have been specifically asked why Simmons had so many conversations with Joshua James, who was providing security for Roger Stone at the Willard the morning of the insurrection. Simmons appears to have explained that James called him every time Stone moved.

In June, Graydon Young, the Floridian who attended that Stone event with Connie, entered a cooperation agreement. Also in June, Mark Grods, one of the Oath Keepers who had been at the Willard that morning, entered a cooperation agreement. In September, Jason Dolan, a former Marine from Florida who also interacted with Stone in advance of the insurrection and who was waiting there on January 6 as the other Oath Keepers, a number of Proud Boys (including former Alex Jones employee Joe Biggs) and Alex Jones himself all converged at the top of the East steps just as the doors were opened from inside, entered a cooperation agreement.

Erik Prince

In my last post, I described a grand jury investigation into a powerful Trump associate that had subpoenaed witnesses in the investigation in the second half of last year. NYT just disclosed that investigation, which is into Erik Prince.

Mr. Prince is separately under investigation by the Justice Department on unrelated matters, according to people familiar with the case. The scope of that investigation is unclear.

The investigation reflects a reopening of an investigation Billy Barr shut down in 2019-2020. What’s interesting about it is the scope seems somewhat different and the investigating District is different than the earlier investigation. That may suggest that, for investigations that Barr shut down, DOJ would need to have a new evidence to reopen it. But the existence of this investigation shows, again, that Garland’s DOJ will go after powerful Trump associates.

In any case, I keep laying all this out, and TV lawyers keep angrily insisting that this public evidence does not exist.

I can’t guarantee that any of these investigations will lead to charges (or, in the case of Bannon and Barrack, convictions). Investigations alone will not save democracy.

But there is abundant evidence that DOJ is not shying away from aggressively investigating the suspect criminal conduct of Trump flunkies.

The George Nader Problem: NSA Removes the Child Exploitation Content from Its Servers

April 30, 2021/29 Comments/in FISA, Leak Investigations, Mueller Probe /by emptywheel

When Lebanese-American dual citizen George Nader was stopped at Dulles after arriving on a flight from Dubai on January 17, 2018, he had at least 12 videos on his phone depicting boys as young as two years old being sexually abused, often with the involvement of farm animals. In the days before a Mueller prosecutor obtained the contents of the three phones Nader had with him, Nader sat for at least four interviews with Mueller’s prosecutors and told a story (which may not have been entirely forthright) about how he brokered a meeting in the Seychelles between Russia and Erik Prince a year earlier. Nader exploited Prince’s interest in work with Nader’s own employer — Mohammed bin Zayed — to set up the back channel meeting, and as such was a very effective broker in the service of two foreign countries, one hostile to the US. As such, I assume, Nader became a key counterintelligence interest, on top of whatever evidence he provided implicating Trump and his flunkies.

Mueller’s team got the returns on Nader’s phones back on March 16. An FBI Agent in EDVA in turn got a warrant for the child porn. But two days after the agent got the warrant return, Nader skipped town and remained out of the country until days after Mueller shut down his investigation, at which point he returned to the US and was promptly arrested for his abuse of children. Even without the other influence peddling that Nader had done on behalf of the Emirates, he would have remained a key counterintelligence interest for the entire 14 months he remained outside the country. After all, Nader had been making key connections since at least the time he introduced Ahmed Chalabi to Dick Cheney, and probably going back to the Clinton Administration.

So it is quite possible that for the entire period Nader was out of the country, he was surveilled. If that happened, it almost certainly would have happened with the assistance of NSA. As an agent of Dubai, he would be targetable under FISA, but as a US citizen, targeting him under FISA would require an individualized FISA warrant, and the surveillance overseas would take place under 705b.

If the surveillance did happen, Nader’s sexual abuse of boys would have had foreign intelligence value. It would be of interest, for example, to know who knew of his abuse and whether they used it as leverage over Nader. The source of the videos showing the children being exploited would be of interest. So, too, would any arrangements Nader made to procure the actual boys he abused, particularly if that involved high powered people in Middle Eastern countries.

Understanding how George Nader fit in international efforts to intervene in US affairs would involve understanding his sexual abuse of boys.

And that poses a problem for the NSA, because it means that really horrible content — such as Nader’s videos showing young boys being abused with goats for the object of an adult’s sexual pleasure — is among the things the NSA might need to collect and analyze.

I’ve been thinking about George Nader as I’ve been trying to understand one detail of the recent FISA 702 reauthorization. In January 2020, the NSA got permission to — in the name of lawful oversight — scan its holdings for child exploitation, stuff like videos of adults using goats to sexually abuse very young boys.

In a notice filed on January 22, 2020, the government informed the Court that NSA had developed a method, [redacted] of known or suspected child-exploitation material (including child pornography), to identify and remove such material from NSA systems. To test this methodology, NSA ran the [redacted] against a same of FISA-acquired information in NSA systems. The government concedes that queries conducted for such purposes do not meet generally applicable querying standard; nor do they fall within one of the lawful oversight functions enumerated in the existing NSA querying procedures. Nevertheless, NSD/ODNI opined that “the identification and removal of child exploitation material … from NSA systems that is a lawful oversight function under section IV.C.6,” and that the deviation from the querying procedures was “necessary to perform this lawful oversight function of NSA systems.” Notice of Deviation from Querying Procedures, January 22, 2020, at 3; see Oct. 19, 2020, Memorandum at 10.

NSA anticipates using such queries going forward, likely on a recurring basis, to proactively identify and remove child-exploitation material from its systems. The government submits that doing so is necessary to “prevent [NSA] personnel from unneeded exposure to highly disturbing, illegal material.” October 19, 2020, Memorandum at 10. The Court credits this suggestion and likewise finds that performance of these queries qualifies as a lawful oversight function for NSA systems. But the Court encouraged the government to memorialize this oversight activity in § IV.C.6, among the other enumerated lawful oversight functions that are recognized exceptions to the generally acceptable querying standards.

The government has done so. Section IV.C.6 now includes a new provision for “identify[ing] and remov[ing] child exploitation material, including child pornography, from NSA systems.” NSA Querying Procedures § IV.C.6.f. The Court finds that the addition of this narrow exception has no material impact on the sufficiency of the querying procedures taken as a whole.

At first, I thought they were doing this to protect the children. Indeed, my initial concern was that NSA was using these scans to expand the use of NSA queries for what wound up being law enforcement action, such that they could ask to do similar scans for the seven other crimes they’ve authorized sharing FISA data on (though of the other crimes, only snuff videos would be as easy to automate as child porn, which has a well-developed technology thanks to Facebook and Google). I thought that, once they scanned their holdings, they would alert whatever authority might be able to rescue the children involved that they had been victimized. After all, under all existing minimization procedures, the NSA can share proof of a crime with the FBI or other relevant law enforcement agency. Indeed, in 2017, FISC even authorized NSA and FBI to share such evidence of child exploitation with the National Center for Missing and Exploited Children, so they could attempt to identify the victims, help bring the perpetrators to justice, and track more instances of such abuse.

But that doesn’t appear to be what’s happening.

Indeed, as described, “saving the victims” is not the purpose of these scans. Rather, preventing NSA personnel from having to look at George Nader’s pictures showing goats sexually abusing small boys is the goal. When I asked the government about this, NSA’s Director for Civil Liberties, Privacy and Transparency, Rebecca Richards, distinguished finding child exploitation material in the course of intelligence analysis — in which case it’ll get reported as a crime — from this, which just removes the content.

NSA does not query collected foreign intelligence information to identify individuals who may be in possession of child exploitation material. This particular provision allows NSA to identify and remove known or suspected child-exploitation material (including child pornography) from NSA systems.

The Court agreed that this was appropriate lawful oversight to “prevent [NSA] personnel from unneeded exposure to highly distributing, illegal material.” The point of the query is not to surface the material for foreign intelligence analysis, the function of the query is to remove the material. If NSA finds such information in the course of its analytic process to identify and report on foreign intelligence, it will review and follow necessary crimes reporting.

The Court credits the suggestion to conduct this activity as part of NSA’s lawful oversight function. [my emphasis]

I asked NSA a bunch of other questions about this, but got no further response.

First, isn’t the NSA required to (and permitted to, under the minimization procedures) alert the FBI to all such instances they find? So wouldn’t this be no different from a law enforcement search, since if found it will lead to the FBI finding out about it?

Second, as offensive as this stuff is, isn’t it also of value from a foreign intelligence perspective? Ignoring that George Nader is a US person, if a high profile advisor to MbZ was known to exploit boys, wouldn’t that be of interest in explaining his position in MbZ’s court and his preference for living in Dubai instead of VA? Wouldn’t it be of interest in understanding the counterintelligence threat he posed?

If it is of FI interest (I seem to recall a Snowden revelation where similar discoveries were used against a extremist cleric, for example), then how is it recorded to capture the FI use before it is destroyed? And in recording it, aren’t there NSA and/or FBI personnel who would have to look more closely at it? Wouldn’t that increase the amount of child exploitation viewed (presumably with the benefit of finding more predators, even if they are outside US LE reach)?

Finally, can you tell me whether NCMEC is involved in this? Do they receive copies of the material for their databases?

Are you saying that if the NSA finds evidence of child exploitation via these searches, it does not refer the evidence to FBI, even if it implicates victims in the United States?

Another question I have given Richards’ response is, why would NSA personnel be accessing collections that happen to include child exploitation except for analytic purposes?

But maybe that’s the real answer here: NSA employees would access child exploitation 1) for analytical purposes (in which case, per Richards, it would get reported as a crime) or 2) inappropriately, perhaps after learning of its presence via accessing it for analytic purposes (something that is not inconsistent with claims Edward Snowden has made).

After all, there have been two really high profile examples of national security personnel accused of critical leaks in the last decade who also have been accused of possessing child pornography: Donald Sachtleben, who after he was busted for (amazingly) bringing child porn on his laptop into Quantico, he later became the scapegoat for a high profile leak about Yemen, and Joshua Schulte, on whose computer the government claims to have found child porn on when it searched the computer for evidence that he stole all of CIA’s hacking tools.

So perhaps the NSA is just removing evidence of child exploitation from its servers — which it spent a lot of resources to collect as foreign intelligence — to avoid tempting NSA employees from accessing it and further victimizing the children?

If that’s correct, then it seems that NSA has taken a totally backwards approach to mitigating this risk.

If you’re going to scan all of NSA’s holdings to ID child exploitation, why not do so on intake, and once found, hash and encrypt it immediately. Some of what analysts would be interested in — tracking the dissemination of known child porn or the trafficking of known victims by transnational organized crime, for example — could be done without ever viewing it, solely after those existing hashes. If there were some other need — such as identifying a previously unidentified victim — then the file in question can be decrypted as it is sent along to FBI. That would have the added benefit of ensuring that if NSA personnel were choosing to expose themselves to George Nader’s videos of young boys being abused with farm animals, then the NSA would have a record of who was doing so, so they could be fired.

I get why the NSA doesn’t want to host the world’s biggest collection of child abuse, particularly given its difficulties in securing its systems. I don’t have any answers as to why they’re using this approach to purge their systems.

Productive Ways to Hold Trump Accountable

January 23, 2021/61 Comments/in 2020 Presidential Election, Impeachment, Mueller Probe /by emptywheel

On Friday, Jonathan Rauch published a god-awful argument for pardoning Trump. Today, Quinta Jurecic published a much better argument that a Truth Commission would be the ideal way to hold Trump accountable, but because that probably won’t work, we need to pursue other alternatives, including prosecution.

I’ve already laid out one reason why I think we need to prosecute Trump for his role in the insurrection: because if we don’t, it’ll hamper the ability to hold dangerous people accountable. Another reason is that so many defendants are excusing their actions because the then-President ordered them to storm the Capitol (indeed, that’s one reason, according to a new WaPo report, why DOJ might not charge some of the insurrectionists), the government must make it clear that order was illegal.

Still, I think there are solutions to the problem that both Rauch and Jurecic want to resolve: how to find accountability without derailing President Biden’s Administration.

Jurecic acknowledges that Republican resistance to accountability measures will exacerbate current political divisions.

[A] post-Trump investigation pursued along partisan lines could be doomed from the start. This is the irony: The exact conditions that led to and sustained the Trump era—white grievance, a polluted media ecosystem, and political polarization—are the same conditions that will likely prevent a truth commission from succeeding.

[snip]

In the short run, any of these measures could risk making the country’s social and political divisions worse.

Rauch argues that prosecutions will derail the Biden Administration.

If we want Biden’s presidency to succeed, accountability to be restored and democracy to be strengthened, then a pardon would likely do more good than harm.

Consider, first, Biden’s presidency.

Biden has made clear in every way he can that he does not want or intend to be President Not Trump. He has his own agenda and has been impressively disciplined about not being defined by opposition to Trump. He knows Trump will try to monopolize the news and public discourse for the next four years, and he needs Trump instead to lose the oxygen of constant public attention.

Legal proceedings against Trump, or even the shadow of legal proceedings, would only keep Trump in the headlines.

Rauch also argues (fancifully, for precisely the reasons Jurecic gives that a Truth Commission would be undermined by polarization) that a non-criminal counterintelligence investigation will succeed in a way criminal investigations won’t.

It is important, then, that Trump’s presidency be subjected to a full-scale, post hoc counterintelligence scrub. There should be a public element, modeled on the 9/11 commission, and also a nonpublic, classified element. Both elements could be complicated and hindered by the criminal investigation of Trump. The criminal and counterterrorism investigations would need to be continually deconflicted; Congress would be asked to back away from inquiries and witnesses that step on prosecutors’ toes; Trump himself could plead the Fifth Amendment—an avenue not open to him were he to accept a pardon.

Ignoring for the moment the necessity of including Trump in an investigation into January 6, I agree that, to the extent possible, there needs to be some kind of accounting of what happened during the Trump Administration without turning it into partisan warfare.

Here are some ways to contribute to doing that.

Drain the swamp

Investigations into Trump for things that either are already (Russia or Ukraine) or can be (the election) turned into a tribal issue will absolutely exacerbate political division.

But there are some topics where former Trump supporters can quickly be shown how he hurt them.

For example, an inquiry into Trump’s trade war, especially into the harm done to farmers, will provide a way to show that Trump really devastated a lot of the rural voters who, for tribal reasons, nevertheless support him.

Or Trump’s grifting. In the wake of the Steve Bannon pardon, a number of Trump supporters were furious that Bannon was pardoned for cheating them, even while rioters or other more favored pardon candidates were not. Bannon’s not the only Trump grifter whose corruption demonstrably hurt Trump voters. There’s Brad Parscale’s grifting. There’s Jared Kushner’s favoritism in COVID contracting, which made the country less safe. There’s PPP abuse by big corporations at the expense of small businesses. None of this has to be explicitly about Trump; it can instead be an effort to crack down on corruption generally which by its very nature will affect Trump’s flunkies.

Have Trump dead-enders approve charges

With the exception of some egregious US Attorneys, Biden has asked the remaining US Attorneys to stay on for the moment. That defers any political blowback in the case of John Durham (who in addition to being CT US Attorney is also investigating the Russian investigation) and David Weiss (who is investigating Hunter Biden).

But it also allows people who are nominally Trump appointees to preside over at least the charging of existing investigations targeting Trump or his flunkies. The one place this is known to be true is in Southern District of New York (where Rudy is being investigated). It might be true in DC US Attorney’s office (though Billy Barr shut a lot of investigations, including into Roger Stone and Erik Prince, down). There’s Texas, where Ken Paxton is under investigation.There were hints of investigations into Jared in Eastern District of New York and, possibly, New Jersey.

If Trump US Attorneys aren’t replaced before they charge Trump or his allies, then the act of prosecution will be one approved by a Trump appointee.

Give Republicans what they think they want

Because they’re gullible, Republicans believe that the record of the Russian investigation shows corruption. What is in fact the case is that a cherry-picked and selectively-redacted set of records from the Russian investigation can be gaslit to claim corruption.

But since they’ve been clambering for Trump to declassify it all (even while both John Ratcliffe and Andrew McCabe have suggested that might not show what Republicans expect), it gives Biden’s Administration a way to declassify more. For example, there’s at least one Flynn-Kislyak transcript (from December 22, 2016) that Trump’s Administration chose not to release, one with closer Trump involvement then the others. There are materials on Alex Jones’ interactions with Guccifer 2.0. There are Peter Strzok notes showing him exhibiting no ill-will to Mike Flynn. There are records regarding Paul Manafort’s interactions with Konstantin Kilimnik on April 2016. That’s just the tip of an iceberg of very damning Russian-related records that Trump chose not to release, but which GOP demands for more can be used to justify.

Fully empower Inspectors General

One particularly absurd part of Rauch’s piece is his claim that we know all of Trump’s criminal exposure.

If he committed crimes that we don’t already know about, they are probably not of a new kind or magnitude.

As for what we do know about, it seems clear that he committed criminal obstruction of justice, for example by ordering his White House counsel to falsify federal records. But his obstruction was a process crime, already aired, of limited concern to the public and hard to get a conviction on as a stand-alone charge. There might be more to the Ukraine scandal than we know, but that matter, too, has been aired extensively, may not have been a legal violation and was appropriately (if disappointingly) handled by impeachment. Trump might have committed some form of sedition when he summoned his supporters to the streets to overturn the election, but he would have a colorable First Amendment defense, and sedition is a complicated and controversial charge that would open a legal can of worms. The real problem with Trump is not that we do not know his misdeeds but that we know so much about them, and yet he remained in office for a full term.

One piece of evidence Rauch is mistaken is his certainty that Trump’s only exposure in the Russian investigation is regarding obstruction, when (just as one example) there’s an ongoing investigation into an Assange pardon that appears to be closer to a quid pro quo; or the closed investigation into a potential bribe from Egypt. Democrats were denied a slew of documents pertaining to the Ukraine scandal, especially from the State Department. Democrats were similarly denied records on Trump’s abuse of clearance and non-official records.

One way to deal with the outstanding questions from the Trump Administration is simply to fully staff and empower the Inspectors General who have been undermined for four years. If, for example, State’s IG were to refer charges against Mike Pompeo or DOD’s IG were to refer charges pertaining to Kash Patel’s tenure, it wouldn’t be Democrats targeting them for investigation, it would be independent Inspectors General.

DOJ must be a key part of this. DOJ’s IG has already said it is investigating BJ Pak’s forced resignation. Democrats should insist this is expanded to review all of Barr’s politicized firings of US Attorneys.

As part of an effort to make sure Inspectors General do the work they should have done in real time, Biden should support the end of the OPR/IG split in DOJ, which means that the decisions of lawyers at DOJ (including those pertaining to the Ukraine scandal) are only reviewed by inspectors directly reporting to the Attorney General.

Respect FOIA

Joe Biden might not want to focus on Trump. But the press will continue to do so.

And if Biden orders agencies to treat FOIA like it is supposed to be treated, rather than forcing the press to sue if they want anything particularly interest, the press will do a lot of the accountability that courts otherwise might (and might provide reason for prosecutions). The press already has FOIAs in that have been undermined by improper exemption claims. For example, Jason Leopold has an existing FOIA into Bill Barr’s interference into the Roger Stone and Mike Flynn prosecutions. American Oversight has a FOIA into why Paul Manafort was sprung from jail when more vulnerable prisoners were not. FOIA into Trump’s separation policies have been key at reuniting families.

If such FOIAs obtained more visibility than they currently do, it would provide the visibility into some of the issues that people would love criminal investigations into.

One of the biggest scandals of the Trump Administration is how he undermined normal institutions of good governance, especially Inspectors General. If those institutions are restored and empowered, it will likely do a surprising amount of the accountability work that is so badly needed.

The Next Gang of Thieves and War Criminals

December 22, 2020/132 Comments/in 2020 Presidential Election, Department of Justice /by emptywheel

Pardonpalooza is kicking up, with Trump pardoning low-level Mueller criminals (Alex Van der Zwaan and George Papadopoulos), corrupt Republican Congressmen (with pardons for early Trump supporters Duncan Hunter and Chris Collins and a commutation for Steve Stockman), and war criminals (the four Nisour Square Blackwater guards, in what is surely a favor for Erik Prince).

This is who Trump is: A man whose biggest legacy as President will be the utter abasement of the Rule of Law.

Organized Crime

December 16, 2020/97 Comments/in 2016 Presidential Election, 2020 Presidential Election, Mueller Probe /by emptywheel

Know what you call a crowd that requires 25 pardons to cover their illegal activities of the last 5 years?

As it happens, Trump is mulling the pardons at a juncture when loyalty appears his principal concern, complaining repeatedly over the past weeks that Republicans are deserting him when he needed them to help overturn the election results.

He has largely frozen out those advisers and associates who do not seem on the same page. One person who used to speak to Trump regularly, but who delicately encouraged him to soften his post-election stance, no longer has his calls returned and hasn’t heard from Trump in weeks.

In all, the President is considering pardons for more than two dozen people in his orbit whom he believes were targeted — or could be targeted in the future — for political ends. That’s in addition to hundreds of requests from others who have approached the White House directly, and tens of thousands more whose petitions are pending at the Justice Department.

Organized crime.

The DeVoses and a Pence Pardon for Trump

November 22, 2020/60 Comments/in 2016 Presidential Election, 2020 Presidential Election, emptywheel /by emptywheel

WaPo wrote a long story about how two DeVos machine Republicans, Mike Shirkey and Lee Chatfield, went to the White House and declined to join in Donald Trump’s coup attempt. The story either chose not to mention or simply preceded the reports that the lawmakers spent the night at Trump Hotel, running up big bills for Dom Perignon, which doesn’t seem like the thing you’d do if you had just turned down a bribe to steal the election.

Presumably because it was written for a national audience, the story didn’t get into what ruthless shitholes these men are. These are men who’ve presided over attempts to undermine Gretchen Whitmer’s COVID response and refused to prohibit guns from the capitol building. And while Chatfield knocked down an effort to impeach Whitmer, Shirkey has largely facilitated the kind of eliminationist rhetoric that led to an assassination plot against Whitmer (both condemned the plot after it was thwarted).

MI journalist Susan Demas did a thread on what awful untrustworthy men they are.

Amid reports that Ronna not-Romney McDaniel is the favorite to become RNC Chair again — which stalwarts view as Trump’s attempt to run the RNC as his own operation, undercutting any challengers in 2024 — I find this quote in the WaPo story particularly interesting.

A fresh indication that Trump’s options are dwindling came Friday from an organization with close ties to his education secretary, Betsy DeVos. The conservative Michigan Freedom Fund, which the DeVos family finances, issued the following statement Friday: “The election is over. The results are in, and here in Michigan, they’re not going to change.”

There have been hints that Betsy and Dick were tiring of Trump already. Betsy’s former Chief of Staff, Josh Venable, even joined one of the anti-Trump groups during the election.

That has interesting implications for the fate of two men — Betsy’s brother Erik Prince and Trump himself.

To my mind, Erik Prince is one of Trump’s easiest pardons, both for his exposure for false statements to Congress about his back channel with Russia and for his efforts to sell mercenary services to China. That’s true because, unlike some others (like Roger Stone), Prince successfully lied his way through testimony without generating any other known legal exposure. He told his lies, did his service to Trump, and so couldn’t be forced to testify differently once his Fifth Amendment privileges disappeared. And his exposure on China — to the extent that Billy Barr hasn’t already killed this investigation beyond repair — doesn’t implicate Trump, and so is easy and clean for a President seeking to pay back loyalty. Plus, Prince is a big donor. What’s not to like?!?!

But the DeVoses are also very close to Mike Pence (he got Betsy hired, not Trump). And many of Trump’s other pardons — of people that could implicate Trump himself in crimes if they lost their Fifth Amendment protections — require that he also limit his own legal exposure (and of course, he can only do this on federal cases). He may well be planning a self-pardon, but a safer legal option would be an early resignation followed by a pardon from Pence.

In my opinion, Pence has a real incentive against such a pardon. That’s true, in part, because giving a far less controversial pardon to Richard Nixon really doomed Gerald Ford’s otherwise reasonable legacy. Pence spends a lot of time in Grand Rapids, where Ford’s tainted history is palpable.

That’s also true because Pence has further political ambitions. They may not be real ambitions, but a former Vice President would always consider himself a candidate for the Presidency. And counterintuitively, pardoning Trump would actually hurt those ambitions. That’s true because he’s not the most obvious inheritor of Trump’s legacy. Mike Pompeo has a higher profile and the same cachet among the Evangelical right. Don Jr has even suggested he might run, and if he did he could tap right into the furor his father created. Unlike both of them, Pence has mostly been a background figurehead, one who will be blamed for Trump’s biggest failing, on COVID. So if Pence pardoned Trump, it would only serve to allow one of the other Trump flunkies from capitalizing on his brand to become the presumptive 2024 nominee; it would hurt his own chances.

Still, unlike Pompeo, Pence is not inextricably linked to Trump’s crimes. Indeed, one of the bravest witnesses during impeachment, Jennifer Williams, was his aide. She even corrected her testimony to provide damning details after the fact. Everything we’ve seen from the Mueller Report also makes it clear that Pence was not in the loop of some of the most devious efforts to undermine America.

But Pence likely knows of some of that crime. He has heard some of the details of the Russian “collusion.” More importantly, he surely knows how a series of Trump campaign managers have engaged in grift that pursue ever more outrageous ways of getting rich off the process of pitching Trump, with Brad Parscale’s version only the most recent. Assuming he’s as insulated from this potentially criminal behavior as I think he he is, refusing to pardon Trump would be a way to undercut Trump’s legacy without lifting a finger. Even if Joe Biden’s Attorney General didn’t aggressively pursue new investigations, there are so many known open ones as to make Trump’s ongoing criminal exposure hard to contain.

That puts Pence — and with him, his close allies the DeVoses — in a remarkable position. To be clear, they are every bit as evil as Trump. We should assume however they wield that power will do little to help average Americans. But (caveats about Erik aside), they are differently evil than Trump.

And if they’ve decided Trump’s time is up, they have leverage that others don’t.

“Looking Forward” Will Be Harder for President Biden than It Was for President Obama

November 17, 2020/89 Comments/in 2016 Presidential Election, 2020 Presidential Election, Department of Justice, Mueller Probe, Sanctions /by emptywheel

NBC has a story that has caused a bit of panic, reporting that “Biden hopes to avoid divisive Trump investigations, preferring unity.”

The panic is overblown, given that the main point of the story is that Biden is hoping that DOJ will resume a more independent stance than that taken, especially, by Billy Barr.

Biden wants his Justice Department to function independently from the White House, aides said, and Biden isn’t going to tell federal law enforcement officials whom or what to investigate or not to investigate.

“His overarching view is that we need to move the country forward,” an adviser said. “But the most important thing on this is that he will not interfere with his Justice Department and not politicize his Justice Department.”

If there were to be investigations of Trump, everyone should want them to be completely insulated from the White House.

The story raises two more specific types of investigations which are both likely moot.

They said he has specifically told advisers that he is wary of federal tax investigations of Trump or of challenging any orders Trump may issue granting immunity to members of his staff before he leaves office. One adviser said Biden has made it clear that he “just wants to move on.”

Another Biden adviser said, “He’s going to be more oriented toward fixing the problems and moving forward than prosecuting them.”

New York state already has a tax investigation into Trump, so a federal one would be duplicative. And the pardon power is absolute; there’s little likelihood DOJ could investigate the pardons that Trump grants, because doing so would be constitutionally suspect.

All that said, attempting to move forward may not be as easy for President Biden as it was for President Obama.

That’s because there are a number of investigations that implicate Trump that are either pending (as of right now, but I don’t rule out Trump trying to kill them in the interim) or were shut down corruptly, to say nothing of the obstruction charges Mueller effectively recommended (which aforementioned pardons would renew, even in spite of DOJ’s declination prior to pardons). At a minimum, those include:

The Build the Wall fraud case against Steve Bannon and others that might, eventually, implicate the failson or his close buddies
The Igor Fruman and Lev Parnas graft which clearly implicates Rudy Giuliani and by all rights should always have included Trump’s extortion of Volodymyr Zelensky; given the timing of David Correia’s plea, it’s likely there will be grand jury testimony from him banked
Other foreign agent charges against Rudy
The investigation into Erik Prince for selling his private mercenary services to China
False statements charges against Ryan Zinke that Jeffrey Rosen attempted to kill
Various campaign finance and grift charges implicating Roger Stone, Paul Manafort, and Brad Parscale, to say nothing of the hush payments involving Trump personally
Possible hack-and-leak charges against Roger Stone from 2016, as well as the related pardon quid pro quo for Julian Assange implicating Trump himself
The possible aftermath of Judge Sullivan’s decisions in the Mike Flynn case, which could include perjury referrals or an invitation for DOJ to prosecute Flynn on the foreign agent charges he pled out of

All of these investigations still do or were known to exist, and if they no longer exist when Biden’s Attorney General arrives at DOJ, it will be because of improper interference from Barr.

The last of these might get particularly awkward given that multiple people at Billy Barr’s DOJ, possibly in conjunction with Sidney Powell and Trump campaign lawyer Jenna Ellis, altered documents to concoct a smear targeting Joe Biden in a false claim that he invented a rationale to investigate Flynn for undermining sanctions on Russia. You cannot have an independent DOJ if the people who weaponized it in such a way go unpunished. Except investigating such actions would immediately devolve into a partisan fight, particularly if Republicans retain control of the Senate. (This particular issue will most easily be addressed, and I suspect already is being addressed, via a DOJ IG investigation.)

Still, in the other cases, DOJ may need to decide what to do with investigations improperly closed by Barr, or what to do with investigations where just some of the defendants (such as Fruman and Bannon) get pardons.

And all this will undoubtedly play against the background of the confirmation battle for whomever Biden nominates. I would be shocked if Mitch McConnell (especially if he remains Majority Leader) didn’t demand certain promises before an Attorney General nominee got approved.

So none of this will be easy.

A far more interesting question will pertain to what President Biden does about the ICC investigation into US war crimes in Afghanistan, crimes that occurred during both the Bush and Obama Administrations. Mike Pompeo launched an indefensible assault against the ICC in an attempt to block this investigation, sanctioning ICC officials leading the investigation. Biden’s Secretary of State will have to decide whether to reverse those sanctions, effectively making a decision about whether to look forward to ignore crimes committed (in part) under Barack Obama.

Child Rapist George Nader Introduced Dick Cheney and Ahmad Chalabi

October 31, 2020/31 Comments/in 2016 Presidential Election, Mueller Probe, WMD /by emptywheel

Last night, BuzzFeed released the second-to-last dump of 302s in their Mueller FOIA. There’s a ton that’s interesting in it (and I’m just skimming much of it). But — as I said to Jason Leopold — this George Nader interview, by itself, made the FOIA dump worth the price of admission.

There’s a ton of details about how he brokered meetings between Erik Prince and Kirill Dmitriev and lots of significantly redacted discussions of meetings with Don Jr. There’s great theater where, several times, Nader denied something, including meeting “any” Russian government officials at a trip to the St. Petersburg Economic Forum in June 2016, only to have Mueller’s team show him a picture (in the case of Putin) or a text (in the case of his denials that he had met Steve Bannon) that forced him to immediately backtrack off his claims. Nader describes how he — a convicted pedophile during this entire period — could get along with all sides: Clinton and Trump, Iran and Saudi Arabia. Everyone’s favorite child rapist.

But by far the craziest part of this amazing interview — the thing that has my brain reeling this afternoon — has nothing to do with Russia.

In describing his background, you see, Nader claimed that he’s the one who introduced Ahmad Chalabi to Dick Cheney.

For those who don’t remember, Chalabi had a significant role in drumming up the Iraq War (here’s what I wrote after he died in 2015, and here’s a piece I wrote about him 10 years earlier, in advance of my book on such things). So by introducing Chalabi to Cheney, Nader played some role — how big, it’s unclear — in perhaps the single greatest American foreign policy debacle of all time.

And now he’s rotting away in prison for trafficking a boy.

Rat-Fucker Rashomon: Steve Bannon and Dirty Tricks

October 18, 2020/14 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

Thus far in my Rat-Fucker Rashomon story, I’ve shown strong evidence that Roger Stone not only knew that John Podesta’s emails were coming, but knew or had the contents of some documents pertaining to an attack he had already been making on John Podesta. I showed that the timing of that release — via whatever means — likely served more to drown out the Russian attribution than the Access Hollywood tape, which has important implications for how he might have coordinated with WikiLeaks. And I suggested that the evidence Stone had far earlier knowledge of what the Russians were doing, even during the period when they were still hacking the DNC’s servers, makes some of all this focus on Podesta less important.

But there’s a limit to that claim. That’s because we still don’t know whether, when Stone promised he knew how to get Trump elected in the same period he was pursuing the Podesta files, that plan consisted just of optimizing the Podesta files, or whether there was something more. That makes the stories not told at Roger Stone’s trial all the more exasperating.

One of the most unsatisfying aspects of the Roger Stone trial, particularly for inattentive watchers, was that prosecutors never told us how Stone had gotten advance knowledge of what stolen emails would be released — nor even asserted as fact that he did.

As I keep noting, that’s not what they had to prove to win a guilty verdict.

But even more frustrating is the way DOJ proved its case that Stone had discussed WikiLeaks with the campaign. On at least three different occasions, the prosecution pointed to far more enticing communications about what really happened, but did not tell us what those communications meant.

The texts between Stone and Erik Prince on October 4, 2016 are one innocuous example.

They clearly pertain to WikiLeaks, which is all the prosecution needed to prove — that Stone had communications with people like Prince about advance knowledge of WikiLeaks that he subsequently lied about to cover up. But in the exhibit (which was entered by the FBI Agent; Prince was not called as a witness) there’s a reference — “Yes,” Stone confirmed he had heard more “from London” in the interim 7.5 hours since he had told Prince he was “checking” whether Assange had chickened out, then said, “want to talk on a secure line — got Whataspp?” to something far more interesting.

Affidavits obtained in early 2019 show that Stone first downloaded WhatsApp on October 4, suggesting he downloaded it solely to communicate with Prince (even though Stone already had Signal on his phone).

This is one of the rare areas where the Mueller Report provided more evidence than appeared at the trial. It revealed that Prince testified that,

Stone and Prince did speak subsequently, and Stone said that WikiLeaks would release more materials that would be damaging to the Clinton campaign. Stone also indicated to Prince that he had what Prince described as almost “insider stock trading” type information about Assange.

But Prince didn’t testify at the trial, and it would be beyond the scope of what prosecutors needed to prove, and so we didn’t get to hear more about this “insider stock trading” information. Damnit.

In two other cases, though, prosecutors pointed to more substantive discussions that weren’t clearly labeled as WikiLeaks discussions, but which prosecutors presented as evidence that Stone was talking to the campaign about the upcoming releases. One was the August 3, 2016 email to Paul Manafort where he floated “an idea … to save Trump’s ass.”

As I noted in this post, Manafort seemed to try to hide this email and any follow-up conversation up in an interview with Mueller. And while Stone’s defense challenged whether this email was really related to WikiLeaks, in his closing argument, Jonathan Kravis argued that the plan was to use WikiLeaks releases to discredit Hillary.

On August 3rd, 2016, Stone writes to Manafort: “I have an idea to save Trump’s ass. Call me please.” What is Stone’s idea to save Trump’s ass? It’s to use the information about WikiLeaks releases that he just got from Jerome Corsi. How do know that’s what he had in mind; because that’s exactly what he did. As you just saw, just days after Stone sends this email to Paul Manafort, “I have an idea to save Trump’s ass,” he goes out on TV, on conference calls and starts plotting this information that he’s getting from Corsi: WikiLeaks has more stuff coming out, it’s really bad for Hillary Clinton.

Tactically, introducing the email was not at all necessary. Prosecutors had more than proven that Stone had lied about talking to the campaign. And the SSCI Report makes clear there was a shit-ton of other evidence that made this clear they could have used instead. But for whatever reason, they did include it, tying Stone’s attempts to cover up these conversations with the way Trump won.

Prosecutors introduced a similar exchange with Steve Bannon, the guy who took over from Manafort weeks later: an August 18, 2016 email exchange where Stone claimed Trump could “still win” … “but it ain’t pretty,” and Bannon responded by asking to talk ASAP.

Manafort didn’t testify at Stone’s trial. But Bannon did. Prosecutors had Bannon sitting there on the stand, forcing him to repeat what he had said to a grand jury earlier in the year, yet they only asked him to say this much about what all this means, in which he begrudgingly admitted he believed this discussion about using social media to win was about WikiLeaks:

Q. At the bottom of this email Mr. Stone states, “Trump can still win, but time is running out. Early voting begins in six weeks. I do know how to win this, but it ain’t pretty. Campaign has never been good at playing the new media. Lots to do, let me know when you can talk, R.” Did I read that correctly?

A. That’s correct.

Q. Then you respond, “Let’s talk ASAP”; am I correct?

A. That’s correct.

Q. When Mr. Stone wrote to you, “I do know how to win this but it ain’t pretty,” what in your mind did you understand that to mean?

A. Well, Roger is an agent provocateur, he’s an expert in opposition research. He’s an expert in the tougher side of politics. And when you’re this far behind, you have to use every tool in the toolbox.

Q. What do you mean by that?

A. Well, opposition research, dirty tricks, the types of things that campaigns use when they have got to make up some ground.

Q. Did you view that as sort of value added that Mr. Stone could add to the campaign?

A. Potentially value added, yes.

Q. Was one of the ways that Mr. Stone could add value to the campaign his relationship with WikiLeaks or Julian Assange?

A. I don’t know if I thought it at the time, but he could — you know, I was led to believe that he had a relationship with WikiLeaks and Julian Assange.

Even though prosecutors didn’t lay out precisely what happened next — something that other evidence suggests may have implicated Jared Kushner — Stone’s team never challenged the prosecution claim that this email and the subsequent exchanges did pertain to WikiLeaks. Perhaps, because they had reviewed Bannon’s grand jury and more recent testimony, they knew how he would respond and thought better off leaving it unchallenged.

Perhaps, too, they didn’t want to have to explain how long this exchange persisted. For example, the Stone affidavits — starting with one obtained after Bannon’s first testimony — showed this particular email exchange lasted two more days, through August 19 and 20 (the day before the Podesta “time in the barrel” tweet).

On August 19, 2016, Bannon sent Stone a text message asking if he could talk that morning. On August 20, 2016, Stone replied, “when can u talk???”

And those discussions may have continued into face-to-face meetings in September.

On September 4, 2016, Stone texted Bannon that he was in New York City for a few more days, and asked if Bannon was able to talk.

[snip]

On September 7, 2016, Stone and Bannon texted to arrange a meeting on September 8, 2016 at the Warner Center in New York.

On September 7, 2016, Bannon texted Stone asking him if he could “come by trump tower now???”

On September 8, 2016, Stone and Bannon texted about arranging a meeting in New York.

This is a lot of back-and-forth to discuss the “the tougher side of politics.”

The August exchange is one of the most substantive things presented at Stone’s trial that doesn’t appear in the Mueller Report.

It does show up, in abbreviated form, in the SSCI Report, but given what else SSCI includes, how the bipartisan report described Trump’s campaign manager eagerly responding to the rat-fucker deserves note. The SSCI Report describes how Gates and Manafort responded to Stone’s proposal — amid these promises of additional WikiLeaks releases — of a plan “to save Trump’s ass” right in the body of the report.

Stone spoke by phone with Gates that night, and then called Manafort the next morning, but appeared unable to connect. 1559 Shortly after placing that call, Stone emailed Manafort with the subject line “I have an idea” and with the message text “to save Trump’s ass.”1560 Later that morning, Manafort called Stone back, and Stone tried to reach Gates again that afternoon. 1561

Bizarrely, the SSCI Report relegates the parallel conversation with Stone involving Steve Bannon, just two weeks later, to a footnote.

1589 (U) Ibid.; Testimony of Steve Bannon, United States v. Stone, pp. 850, 857- 861. In an email on August 18, Stone wrote to Bannon: “I do know how to win this but it ain’t pretty.” Email, Stone to Bannon, August 18, 2016 (United States v. Stone, Gov. Ex. 28). Bannon responded, “Let’s talk ASAP.” Ibid.

This is the guy who was in charge when the Podesta emails dropped. And yet the SSCI Report buries the fact that with Bannon, too, Stone pitched a plan to win using WikiLeaks. Moreover, the SSCI Report doesn’t mention that that plan focused on social media at all, or that discussions about it may have extended over three weeks.

And yet, having buried this pitch from Stone about using social media to win in a footnote, the SSCI Report then provides six pages of detail about how central the Podesta files were to the campaign, including in their social media campaign.

Before it presents that, however, the SSCI Report provides important context to an email exchange involving Stone and Bannon included in the Mueller Report, the Stone indictment, and released at the trial, context none of the other stories provide. It shows that before Breitbart reporter Matthew Boyle emailed Stone to find out what was up with Assange on October 4, Bannon had already reached out to Breitbart’s editors to track the release.

(U) The Trump Campaign tracked Stone’s commentary and the news about WikiLeaks. On October 2, Andrew Surabian, who ran the Campaign’s war room, emailed Stone’s Twitter prediction about a Wednesday release to Bannon, Kellyanne Conway, and the Trump Campaign press team. 1643 On October 3, Dan Scavino emailed the October 3 WikiLeaks Twitter announcement to Bannon.1644 That evening, Bannon reached out to two Breitbart editors, Wynton Han and Peter Schweizer, to ask if they would be awake “to get what he [Assange] has live.”I.645

(U) Separately, also on October 3, Bannon received an email from Matthew Boyle, another Breitbart editor, forwarding Boyle’s correspondence from earlier that day with Stone. In it, Boyle had asked Stone, “Assange-what’s he got? Hope it’s good.” Stone responded, “It is. I’d tell Bannon but he doesn’t call me back.” In his email to Bannon, Boyle advised Bannon to call Stone, and when Bannon said he had “important stuff to worry about,” Boyle replied, “Well clearly he knows what Assange has. I’d say that’s important.”1646

[snip]

(U) Trump was frustrated with the absence of a WikiLeaks release on October 4. Gates recalled that Trump had anticipated something would be released and later asked: “When is the other stuff coming out?”1653

(U) Following the announcement, Bannon complained to Stone by email about the lack of any new releases, asking “what was that this morning???”1654 Bannon wrote to Stone because Stone had said he “knew WikiLeaks and knew Julian Assange.”1655 Stone responded, echoing information he had received from Credico and Assange’s own announcement: “Fear. Serious security concern. He thinks they are going to kill him and the London police are standing done ” [sic]. However-a load every week going forward.” 1656

That Bannon used Breitbart as a cut-out to track what Assange was doing is important for several reasons. Bannon had had to ask the Mercers for permission before leaving Breitbart and joining the campaign, in part to avoid tying the Breitbart brand to any possible Trump loss. In August, Breitbart reporter Lee Stranahan had been in direct contact with Guccifer 2.0 and had gotten early access to a file on Black Lives Matter. Stone would use Breitbart as a platform for some of his own releases after the Podesta emails dropped. And there’s good reason to believe that whatever files Corsi prepped got shared with Breitbart itself.

Plus, in his first interview (one the SSCI Report treats, inexplicably, as credible), Bannon made a slew of claims denying enthusiasm regarding the Podesta release, claims utterly disproven by the documentary evidence. It’s possible Bannon believed he had hidden this enthusiasm from Mueller’s gaze at Breitbart.

Nevertheless, as the SSCI Report makes clear, there’s a great deal of evidence showing what a concerted focus the campaign paid to the stolen emails, how much of it focused on social media, and how the campaign couldn’t care less that this windfall had come from Russia. (The footnotes of this section of the SSCI Report are particularly valuable for the way they expose precisely who was involved in this campaign.)

(U) Despite the contemporaneous statement by the U.S. Government warning of Russian responsibility for the hacking and leaking of the DNC, DCCC, and Clinton Campaign documents and emails, the Trump Campaign considered the release of these materials to be its “October surprise.”1691 The Trump Campaign’s press team first found out about the WikiLeaks release when it “hit the press” on October 7,1692 and the Campaign quickly turned to capitalize on the Podesta emails: the following morning, October 8, the communications team began compiling information from the release that it could use to attack Clinton. 1693 WikiLeaks information was later integrated with Trump’s tweets, 1694 into his speeches, 1695 and into his press releases. 1696 Other members of the Trump family also scrutinized the news. 1697 And, the Campaign tracked WikiLeaks releases in order to populate a fake Clinton Campaign website, clintonkaine.com. 1698

[snip]

(U) Within the Campaign, there was no policy that governed using materials released by WikiLeaks.1717 To the contrary, the Campaign treated the releases as just another form of opposition research. 1718 Bannon’s view was that “anything negative that comes out [against an opponent] is clearly helpful to a campaign.”1719 According to Stephen Miller, “[i]t would have been political malpractice not to use the WikiLeaks material once it became public.” 1720 Gates described a “growing belief’ within the Campaign that Assange was, in fact, assisting their effort.”1721

(U) Rather than regulating the Campaign’s use ofWikiLeaks materials, Trump praised and promoted WikiLeaks repeatedly in the closing month of the campaign1722:

(U) October 10, 2016: “This just came out. WikiLeaks, I love WikiLeaks.”

(U) October 12, 2016: “This WikiLeaks stuff is unbelievable. It tells you the inner heart, you’·gotta read it.”

(U) October 13, 2016: “It’s been amazing what’s coming out on WikiLeaks.”

(U) October 31, 2016: “Another one came in today. This WikiLeaks is like a treasure trove.”

(U) November 2, 2016: “WikiLeaks, it sounds like, is going to be dropping some more . . Ifwe met tomorrow. I’d tell you about it tomorrow.”

(U) November 4, 2016: “Getting off the plane, they were just announcing new WikiLeaks, and I wanted to stay there, but I didn’t want to keep you waiting. Boy, I love reading those WikiLeaks.”

(U) Using Trump to promote WikiLeaks was a deliberate strategy employed by the Campaign, not only in his remarks, but also on social media. In mid-October, Ivanka Trump tasked the Campaign’s senior officials (including Bannon, Scavino, Stephen Miller and Jason Miller) with preparing two Trump tweets every day linking to WikiLeaks content, which, she said, would help “refocus the narrative.”1723 Trump tweeted direct references to WikiLeaks throughout October and November 2016, including on October 11, 12, 16, 17, 21 (twice), 22, 24, 27 and November 1.1724

[snip]

(U) The Campaign’s preoccupation with WikiLeaks continued until the general election. As the general election approached, Scavino, a member of the communications team who also had a role in administering Trump’s Twitter account during the campaign, 1739 increasingly forwarded updates relating to WikiLeaks to other Campaign officials, using subject lines like · “WIKI ABOUT TO DROP SOME BOMBS … 4 pmE” and “The WikiLeaks BOMB!” and linking to the latest WikiLeaks twitter post or its website. 1740 To one, Donald Trump Jr. responded: “Blow it out.” 1741

1691 (U) FBI, FD-302, Gates 4/19/2018.

1692 (U) Epshteyn Tr., p. 212.

1693 (U) See, e.g., Email, Shah to Ditto, Cheung, J. Miller, and Hicks, October 8, 2016 (DJTFP00019278) (attaching document titled “Wikileaks October 7, 2016 John Podesta Email Release”); Email, Epshteyn to Ellis, October 8, 2016 (DJTFP00019302-19304) (requesting “talkers on this asap” in reference to leaked speech excerpts). In his testimony, Bannon downplayed the relative importance of the WikiLeaks release in light or the Access Hollywood tape. Bannon recalled that the Campaign learned of the tape approximately 60 minutes before it was released, in the middle of debate preparation with Trump. See Bannon Tr., p. 206. According to Bannon, the tape was an “extinction level event,” and precipitated Republican Party efforts to “remove the candidate” the following day .. Ibid., pp. 207-208. Bannon claimed that he not recall finding out about the WikiLeaks release or speaking about it with Trump until the evening after the debate. Ibid., pp. 206-207.

1694 (U) Email, J. Miller to Giuliani, Hicks, Scavino, and S. Miller, October 11, 2016 (DJTFP00019376) (linking to WikiLeaks story in the LA Times).

1695 (U) Email, Gabriel to S. Miller and Ditto, October 27, 2016 (DJTFP00020051) (providing teleprompter script for Springfield, Ohio speech referencing WikiLeaks).

1696 (U) Email, Gates to Bannon, October 27, 2016 (SKB_SSCl-0001369-1370) (stating “This is good and exactly what we need,” and forwarding written Trump statement using WikiLeaks releases to attack Clinton under the subject line, “FW: Donald J. Trump Statement.”).

1697 (U) Email, J. Miller to Shah, et al., October 9, 2016 (DJTFP00024165) (discussing Eric Trump’s question about the WikiLeaks release, “Are we discussing Hillary selling weapons to Isis [sic] as per WikiLeaks email dump?”).

1698 (U) Email, Hemming to Parscale, Bannon, and Hall, “Re: Top Twenty-Five Wikileaks Revelations,” October 15, 2016 (SKB_SSCl-0001528-1530).

[snip]

1717 (U) Bannon Tr., p. 177; S. Miller Tr., p. -110.

1718 (U) For example, Hope Hicks told the Committee: “[E]veryone has opposition research, and this just happened to be available to everyone.” Hicks Tr., pp. 66–67. Kushner described the releases as a “popular topic” that “everyone was talking about.” Kushner II Tr., pp. ’52-54.

1719 (U) Bannon Tr., p. 171-172.

1720 (U) S. Miller Tr., p. 91.

1721 (U) FBI, FD-302, Gates 3/1/2018.

1722 (U) Some of these are reproduced in a video by The Washington Post. “Watch Trump Praise WikiLeaks,” The Washington Post, April 11, 2019. Public tabulations of the number of references in speeches, interviews, rallies, and debates Vary, but place it in excess of 100 mentions. See, e.g., Gabrielle Healy, “Did Trump really mention WikiLeaks over 160 times in the last month of the election cycle?” PolitiFact, April 21, 2017; David Choi and John Haltiwanger, “5 times Trump praised WikiLeaks during his 2016 election campaign,” Business Insider, April 11, 2019.

[snip]

1739 (U) Epshteyn.Tr,, p. 135.

1740 (U) Email, Scavino to Bannon; E. Trump, Trump Jr., Kushner, S. Miller, and Hicks, October 31, 2016 (TRUMPORG_69_016159); Email, Scavino to Bannon, Hicks, Kushner, S. Miller, Trump Jr., and E. Trump, (TRUMPORG_69_016934). See also Email, Scavino to Bannon, Hicks, Conway, and S. Miller, November 4, 2016 (TRUMPORG_69_017232) (“Tweet by WikiLeaks on Twitter”); Email, Scavino to Scavino, November 6, 2016 (TRUMPORG_69 _017455) (“8,263 DNC EMAILS RELEASED” and linking to WikiLeaks tweet); Email, Scavino to Bannon, S. Miller, Kushner, E. Trump, Trump Jr., November 7, 2016 (TRUMPORG_ 69 _ 017463) (subject “Wiki – CIIlCAGO PROTESTS COSTS” and linking to WikiLeaks documents).

1741 (U) Email, Trump Jr. to Scavino, Bannon, E. Trump, Kushner, S. Miller, and Hicks, October 31, 2016 (TRUMPORG _ 69_016164).

In light of Bannon’s meetings with Stone, his trial testimony, and the details of how the campaign exploited the stolen emails, the most obvious explanation for Stone’s “how to win this but it ain’t pretty” comment is that this response to the Podesta drop was prepared starting in August (which makes the timing of Stone’s “time in the barrel” comment, coming in the wake of the Stone and Bannon discussions, all the more intriguing).

Particularly given the timing of Stone’s meeting or meetings with Bannon in NY, that’s not the only possibility. The other ones are far more damning.

But the trial and affidavits both tell stories that suggest there’s far more to Stone’s proposals, to two consecutive Trump campaign managers, on how to win the campaign. The SSCI Report provides one answer, the most obvious answer, for what that plan was. And yet the SSCI Report, which frowns at the campaign for its embrace of emails stolen by Russia but consistently backs off the most damning conclusions regarding Trump, fails to connect whether there’s a tie between Stone’s promise, which it hides in a footnote, and the massive effort to capitalize on the emails.

Or worse.

The movie Rashomon demonstrated that any given narrative tells just one version of events, but that by listening to all available narratives, you might identify gaps and biases that get you closer to the truth.

I’m hoping that principle works even for squalid stories like the investigation into Roger Stone’s cheating in the 2016 election. This series will examine the differences between four stories about Roger Stone’s actions in 2016:

The Mueller Report
The Stone prosecution
The SSCI Report
The affidavits from the investigation

As I noted in the introductory post (which lays out how I generally understand the story each tells), each story has real gaps in one or more of these areas:

My hope is that by identifying these gaps and unpacking what they might say about the choices made in crafting each of these stories, we can get a better understanding of what actually happened — both in 2016 and in the investigations. The gaps will serve as a framework for this series.