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Eight Possible Explanations — Many Bad, Some Good — for SDNY’s Delay in Turning Over Cohen Files

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As Adam Klasfeld and others reported yesterday, Trump is asking to delay his New York trial on charges that he engaged in fraud to cover up the hush payments he made to get elected in 2016. Trump is asking for the delay because the Southern District of New York just provided stacks and stacks of discovery he subpoenaed in January. Alvin Bragg has consented to a 30-day delay, but Trump is asking for a 90-day delay of the trial that was supposed to start on March 25.

In their letter explaining the situation, NYDA attorneys described that last year, they asked SDNY for the “full grand jury record” associated with Michael Cohen’s campaign finance conviction. Instead, SDNY provided “a subset.”

The People diligently sought the full grand jury record related to Cohen’s campaign finance convictions from the USAO last year, including exculpatory material and (1) grand jury minutes and tapes; (2) witness lists and other documents identifying the names or identities of grand jury witnesses; (3) any grand jury subpoenas and documents returned pursuant to those subpoenas; (4) exhibits presented to the grand jury; (5) to the extent within the scope of Rule 6(e), summaries of witness interviews occurring outside the grand jury; and (6) to the extent within the scope of Rule 6(e), search warrant affidavits or other applications that contain evidence from the grand jury, and evidence seized pursuant to those warrants. In response, the USAO produced a subset of the materials we requested, which we timely and fully disclosed to defendant on June 8, 2023, more than nine months ago. [my emphasis]

On January 18 of this year, Trump subpoenaed additional materials, and consented to several delays. On March 4, SDNY provided the initial tranche, which was 73,000 pages, of which less than 200 pages pertained to the case. Last week, SDNY provided a second tranche. And they say they’ll provide a third next week.

Regarding the 73,000 pages of records produced by the USAO as of the date of defendant’s motion, the People’s initial review indicated that those materials were largely irrelevant to the subject matter of this case, with the exception of approximately 172 pages of witness statements that defendant would have adequate time to review and address before trial. Yesterday afternoon, however, the USAO produced approximately 31,000 pages of additional records to both the People and the defense in response to defendant’s subpoena, and also indicated that an additional production would follow by next week. [my emphasis]

Those 31,000 pages provided last week includes stuff from Cohen’s grand jury file that NYDA had asked for last year.

Based on our initial review of yesterday’s production, those records appear to contain materials related to the subject matter of this case, including materials that the People requested from the USAO more than a year ago and that the USAO previously declined to provide.

NYDA say they’re ready to go on the 25th, but would consent to a 30-day delay. Surely, though, they’ve seen enough that they want to be prepared to rebut anything Trump found in the documents.

Update: NYDA has submitted a follow-up. The total universe of this production amounts to 119,000 pages of discovery. Of that, just a subset of 31,000 pages covers stuff related to the case, and of that subset, some of it was already provided to Trump. Trump is disputing that, but at this point, he and his lawyers have been crying wolf for a year. 

It’s not yet clear what’s in the 100,000-page plus discovery or why SDNY refused to turn it over, besides their unshakeable arrogance.

But there are a number of possible explanations, most terrible, at least three defensible. They include:

  1. Covering up Bill Barr’s fuckery
  2. Covering up Ed O’Callaghan’s fuckery
  3. Hiding details regarding the retraction of Robert Mueller’s scope
  4. Hiding details of Cohen’s tax crimes
  5. Hiding details of Barr’s further fuckery
  6. Protecting a Bill Barr investigation
  7. Protecting a Viktor Vekselberg investigation
  8. Protecting a Trump tax investigation

Much of these would serve to shield (or, ultimately, delay) SDNY or DOJ embarrassment generally. Some, though, would serve to protect real investigations that we know happened.

Covering up Bill Barr’s fuckery

What Trump undoubtedly was seeking when he subpoenaed SDNY was evidence of known Bill Barr fuckery, which would help the former President argue that he never committed a federal campaign finance crime and would hurt the theory of the case. Geoffrey Berman described much of this in his book.

In February 2019, days after being confirmed, Bill Barr tried to unprosecute Cohen.

While Cohen had pleaded guilty, our office continued to pursue investigations related to other possible campaign finance violations. When Barr took over in February 2019, he not only tried to kill the ongoing investigations but—incredibly—suggested that Cohen’s conviction on campaign finance charges be reversed. Barr summoned Rob Khuzami in late February to challenge the basis of Cohen’s plea as well as the reasoning behind pursuing similar campaign finance charges against other individuals. Khuzami was told to cease all investigative work on the campaign finance allegations until the Office of Legal Counsel, an important part of Main Justice, determined there was a legal basis for the campaign finance charges to which Cohen pleaded guilty—and until Barr determined there was a sufficient federal interest in pursuing charges against others.

Barr headed the Office of Legal Counsel in 1989 through the middle of 1990. He knew its powers, and as Trump’s attorney general he knew how to use it as a cudgel to accomplish his goals.

The directive Barr gave Khuzami, which was amplified that same day by a follow-up call from O’Callaghan, was explicit: not a single investigative step could be taken, not a single document in our possession could be reviewed, until the issue was resolved.

And if Main Justice decided there was no legal basis for the charges? The attorney general of the United States would direct us to dismiss the campaign finance guilty pleas of Michael Cohen, the man who implicated the AG’s boss, the president.

Barr attempted to put Richard Donoghue in charge of the matters — the Cohen case — that Berman was recused from. (Remember that Barr would also put Donoghue in charge of what should have been follow-on investigations of Rudy Giuliani’s dalliance with Russian spies.)

One way for Barr to accomplish that would have been to put the Cohen case in the hands of someone to whom he felt closer. About a week after our office tussled with Barr and Engel, Barr attempted to do just that. Word was passed to me from one of Barr’s deputies that he wanted Richard Donoghue, the US Attorney for the Eastern District of New York (who would later transfer to Main Justice to work under Barr), to take over supervision of anything I was recused from.

By Berman’s description, none of those efforts succeeded.

But according to the NYT, Barr did get OLC to write a memo questioning the basis for prosecuting someone for covering up public details (this doesn’t show up in Berman’s book).

At one point during the discussions, Mr. Barr instructed Justice Department officials in Washington to draft a memo outlining legal arguments that could have raised questions about Mr. Cohen’s conviction and undercut similar prosecutions in the future, according to the people briefed on the matter.

[snip]

The New York Times reported previously that Mr. Barr had questioned the legal theory of the campaign finance charges against Mr. Cohen, but it was not known that the attorney general went so far as to ask for the draft memo or had raised his concerns more than once.

The memo, written by the Justice Department’s Office of Legal Counsel, addressed the Southern District’s somewhat novel use of campaign finance laws to charge Mr. Cohen. Before Mr. Cohen’s guilty plea, the only person known to face criminal charges for payments meant to keep negative information buried during a political campaign was the former senator and Democratic presidential candidate John Edwards, who was not convicted.

Mr. Barr argued, among other things, that such cases might be better suited to civil resolutions by the Federal Election Commission than to criminal prosecutions, according to people with knowledge of the discussions.

[snip]

There is no indication that the Justice Department planned to issue a formal opinion on the campaign finances charges. Such a step, if taken, might have raised questions about the validity of the case against Mr. Cohen and affected any future effort to investigate Mr. Trump or others in his circle for similar conduct.

This memo is undoubtedly what Trump wants. He would use it to suggest that he was never in danger of prosecution for the hush payments, and therefore his fraud to cover them up cannot be a felony.

Covering up Ed O’Callaghan’s fuckery

Trump is also, undoubtedly, seeking details of then PADAG Ed O’Callaghan’s fuckery.

Once SDNY did charge Cohen, O’Callaghan intervened to demand that SDNY take language out of Cohen’s statement of offense making it clear that Individual-1 was part of the crime.

Consistent with DOJ guidelines, we first submitted the information to the Public Integrity Section at Main Justice. They signed off.

We then sent a copy to Rod Rosenstein, informing him that a plea was imminent. The next day, Khuzami, who was overseeing the case, received a call from O’Callaghan, Rosenstein’s principal deputy.

O’Callaghan was aggressive.

Why the length, he wanted to know. He argued that now that Cohen is pleading guilty we don’t need all this description.

Khuzami responded, What exactly are you concerned about?

O’Callaghan proceeded to identify specific allegations that he wanted removed, almost all referencing Individual-1. It quickly became apparent to Khuzami that, contrary to what O’Callaghan professed, it wasn’t the overall length or detail of the document that concerned him; it was any mention of Individual-1. Khuzami and O’Callaghan went through a handful of these allegations, some of which Khuzami agreed to strike; others, to ensure a coherent description of the crime, he did not.

Berman’s prosecutors stayed up all night cutting the Information from 40 pages to 21.

The team was tasked with the rewrite and stayed up most of the night. The revised information, now twenty-one pages, kept all of the charges but removed certain allegations, including allegations that Individual-1 acted “in concert with” and “coordinated with” Cohen on the illegal campaign contributions. The information now alleged that Cohen acted in concert and coordinated with “one or more members of the campaign.” But in the end, everything that truly needed to be in the information was still there.

Cohen included those details in his verbal allocution anyway.

The most consequential details that O’Callaghan wanted removed still wound up in the public record, simply because Cohen acknowledged them in open court. He testified that Trump not only knew about the six-figure payoffs designed to keep Stormy Daniels and Karen McDougal from going public but had orchestrated them.

With regard to McDougal, Cohen said that he and “the candidate worked together to keep an individual with information that would be harmful to the candidate and to the campaign from publicly disclosing this information. After a number of discussions, we eventually accomplished the goal by the media company entering into a contract with the individual under which she received compensation of $150,000.”

As for Stormy Daniels, Cohen admitted that he had, “in coordination with, and at the direction direction of, the same candidate, [arranged] to make a payment to a second individual with information that would be harmful to the candidate and to the campaign to keep the individual from disclosing the information. To accomplish this, I used a company that was under my control to make a payment in the sum of $130,000.”

Any paperwork describing this dispute will not help Trump as much as an OLC memo saying his hush payments weren’t a federal crime. But he will use them to suggest that Rod Rosenstein didn’t think Trump was a part of it.

Hiding details regarding the retraction of Robert Mueller’s scope

Another thing that Cohen’s case file would disclose that might embarrass DOJ is how Rod Rosenstein constrained Mueller’s scope after initially permitting him to prosecute crimes he could use to flip people.

Remember that Mueller was permitted to prosecute both Paul Manafort’s tax crimes and Mike Flynn’s Turkey FARA crimes; he used those other crimes to (attempt to) flip Trump’s aides. But around the same time as Rosenstein issued his second scope memo (November 2017), he seems to have changed this approach.

In his book, Berman explained that by the time Mueller was investigating Cohen, Rosenstein was only permitting Mueller to investigate the Russian-related conduct. So when Mueller found Cohen’s taxi medallion and other crimes, they had to find a way to hand it off while still hoping to use those crimes to flip people.

At first, Mueller prosecutor Andrew Goldstein asked Berman to partner on the case, which would allow Mueller to be involved in an attempt to flip Cohen.

Goldstein informed Martins and Capone that Mueller was investigating Michael Cohen, the president’s personal lawyer, for bank fraud relating to his taxi medallion business. Mueller wanted to pursue the Cohen investigation—but in conjunction with a US attorney’s office—because it fell outside his mandate. The idea was that we would be the partner to Mueller’s team.

Berman refused that request, because he didn’t want to sacrifice SDNY’s cherished independence. In the end, Mueller only got a request that a Mueller prosecutor could be involved in any discussion of cooperation.

The next day Goldstein got back to us. He backed off the requirement of a joint investigation and agreed that the Southern District would conduct the investigation as we saw fit. He asked for just one thing: if SDNY and the FBI had discussions with Cohen or his lawyer about cooperation, we would inform Goldstein and allow someone from the Mueller team to be present. I did not believe that such an accommodation would impinge on our independence or link our reputation to Mueller’s.

These disclosures, if they’re included in the documents turned over, wouldn’t help Trump all that much (and therefore might not be made public). But they’re another instance showing how Rod Rosenstein intervened to protect Trump.

Hiding details of Cohen’s tax crimes

Something else that SDNY might not want to turn over would pertain to the viability of the crimes to which Cohen ultimately pled guilty.

Remember: Every time he gets asked about why he pled guilty, he claims he pled guilty to more than what he had done, and he did so because of SDNY’s threats that they would include Cohen’s spouse if he didn’t plead.

SDNY would absolutely attempt to withhold details that addressed this issue, particularly if they confirmed Cohen’s claims.

They would only help Trump if they confirmed SDNY’s side of the story (and to be sure, there is abundant SDNY documentation documenting their belief that they believe Cohen’s lies extended before and after his guilty plea).

Hiding details of Barr’s further fuckery

After first trying to make Cohen’s prosecution go away, Barr later tried to make it worse, by sending Cohen back to prison from his COVID furlough because he started writing a book about what a crook Trump was. As Cohen claimed in an emergency motion to get out of jail, Cohen described that he was issued a gag order he would have to sign if he remained out on furlough, and when he refused, he was sent back to prison.

Michael Cohen is currently imprisoned in solitary confinement because he is drafting a book manuscript that is critical of the President of the United States—and because he recently made public that he intends to publish this book shortly before the upcoming election.

[snip]

While he was on furlough, Mr. Cohen publicly announced that he was putting the finishing touches on a tell-all book about his decade-long experience with President Trump. Just one week later, on July 9, 2020, BOP officers under the direction of Respondents presented Mr. Cohen with an unconstitutional demand: As a condition of his release—a release BOP already had determined was necessary for his health and safety—Mr. Cohen had to agree to a complete bar on speaking to or through any media of any sort.

Mr. Cohen expressed that this condition would bar him from making any progress on his book draft, making a pre-election publication date unlikely. But, because he was fearful for his life should he be remanded to prison, he did not refuse. Instead, he and his lawyer sought both to clarify the meaning of the condition, and to tailor it more narrowly to the BOP’s stated reason for including it; namely, to avoid glamorizing or bringing attention to his upcoming home confinement status. BOP officials refused those requests. Instead, they remanded him into solitary confinement in Respondents’ custody, where he remains.

Judge Alvin Hellerstein found Cohen’s claims persuasive. When he released Cohen shortly thereafter, Hellerstein ruled that the purpose of Cohen’s jailing was retaliatory (here’s the transcript, which shows BOP and SDNY’s rebuttals).

“I make the finding that the purpose of transferring Mr. Cohen from furlough and home confinement to jail is retaliatory, and it’s retaliatory because of his desire to exercise his First Amendment rights to publish a book and to discuss anything about the book or anything else he wants on social media and with others,” U.S. District Judge Alvin Hellerstein said during a teleconference Thursday morning.

Cohen secured an emergency temporary restraining order and a preliminary injunction, ordering the government to immediately release him and be allowed to resume his home confinement.

“How can I take any other inference other than it was retaliatory?” Hellerstein mused, summarizing the terms of the government’s home-confinement agreement as telling Cohen: “You toe the line about giving up your First Amendment rights or we’ll send you to jail.”

“I’ve never seen such a clause in 21 years of being a judge,” the Clinton appointee added.

“In 21 years of being a judge, and sentencing people, and looking at the terms and conditions of supervised release, I have never seen such a clause.”

There’s undoubtedly paperwork related to this in Cohen’s case file, including paperwork that might match SDNY’s claims that this was not retaliation. But there could well be paperwork that shows — as was also alleged in the decision to free Paul Manafort from a prison not experiencing a COVID outbreak — involvement from Barr.

Protecting a Bill Barr investigation

You probably won’t believe me. But DOJ actually investigated some of Bill Barr’s fuckery. One such investigation was publicly reported: a DOJ IG investigation into Roger Stone’s sentencing.

There was at least one other aspect of Bill Barr fuckery that DOJ investigated which is not public.

Both investigations were active in the year since NYDA asked for materials on this case.

I have no idea whether Barr’s fuckery on the Michael Cohen case was part of either investigation into his fuckery. But if it was, then any delay in releasing materials would be justified to protect an ongoing investigation.

Protecting a Viktor Vekselberg investigation

You cannot separate the investigation into Trump’s 2016 hush payments from payments that Viktor Vekselberg’s Columbus Nova made to Michael Cohen. That’s because, after Cohen’s bank issued a Suspicious Activity Report on the payment to Stormy Daniels, they looked at how the other things Cohen did with his Essential Consultants account, which he had claimed was for domestic real estate purposes, deviated from his claims about the account.

And one thing he did with that account was to receive $400,000 from a company owned by Russian oligarch Viktor Vekselberg.

22. According to records obtained from Bank 1 through June 1,2017, in the first fìve months of 2017, the Essential Consultants bank account received five deposits, each in the amount of $83,333 (for a running total of $416,665). The funds for all five deposits-four of which were wire transfers and one by check-came from an account at another bank held in the name of Columbus Nova, LLC.

23. Public records show that Columbus Nova, LLC is an investment management firm controlled by Renova Group (“Renova”), an industrial holding company based in Zurich, Switzerland. According to public news accounts, Renova is controlled by Viktor Vekselberg, a wealthy Russian national. Public news accounts also report that Vekselberg is an oligarch with various connections to Russian President Vladimir Putin and publicly met with Putin as recently as in or around March 2017.

7 According to the news articles, Vekselberg and Renova currently are involved in various infrastructure projects in Russia, such as the building of an airport in Rostov in advance of the 2018 FIFA World Cup, which is to be held in Russia. Vekselberg has been involved in various symbolic acts seen to be in the Russian national interest, such as the purchase and repatriation of historic Faberge eggs.8

Mueller investigated these payments to determine whether they explained why Trump tried to back out of sanctions on Russia, etcetera etcetera. From the first warrant, then, the Stormy Daniel investigation implicated any investigation into Vekselberg’s efforts to pay for access in the US.

We know that, since Russia’s invasion of Ukraine, DOJ has ratcheted up sanctions-related investigations into Vekselberg’s associates. In January 2023, DOJ unsealed details of arrests pertaining to Vekselberg’s yacht; those prosecutions are active and are being run out of DC.

And in February 2023 — around the time when NYDA asked for the Cohen file — SDNY rolled out money laundering charges against Vekselberg’s US-based fixer, Vladimir Voronchenko, whom they claimed was a fugitive.

Voronchenko may be a fugitive, but the docket in his case has the look of a docket with a whole bunch of interesting things going on, albeit all sealed.

I don’t know what explains the skips in docket numbers, from 3 to 18, from 18 to 27, and from 27 to 32. But as of December, they SDNY was still stuffing the vault with … something.

If the investigation into Vekselberg would in any way be compromised by the release of Cohen’s case file, it would explain — and easily justify — delaying their release. Particularly if the investigation into Vekselberg’s associates implicated people close to Trump or other prominent Republicans.

Protecting a Trump tax investigation

During both the tax and fraud trials of Trump Organization, there were hints that SDNY had — finally — picked up some of the financial allegations NYS dug up and turned them into federal investigations, including obtaining testimony from some of the same witnesses.

If that happened, it could explain a justifiable delay of providing those files to Trump.

Obviously, most possible explanations for a delay in turning over these files involve someone’s embarrassment, whether SDNY itself, or DOJ more generally. I grant that it’s extremely likely that an attempt to avoid embarrassment explains the delay.

But there are several confirmed and one suspected investigation that also might explain, and entirely justify, a delay. We just don’t know yet.

Update: Judge Merchan has delated the trial start for 30 days from today and scheduled a hearing about the claimed discovery violation.

Rudy Giuliani’s Scott Brady Interview Doesn’t Appear in His Warrant Affidavit

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I’m about to do a larger post on some of the warrants targeting Rudy Giuliani and Lev Parnas, but first I want to make a point about the April 21, 2021 warrant targeting Rudy.

It doesn’t once mention Rudy’s January 29, 2020 interview with the Pittsburgh US Attorney’s office.

It sources Rudy’s own claims about his activities to a series of articles, interviews, and Tweets.

But the affidavit never once mentions that Rudy Giuliani sat for a 4-hour interview with the Pittsburgh US Attorney and nine other people on January 29, 2020.

NYT first disclosed the interview in this December 2020 article.

Mr. Giuliani’s lawyer, Robert J. Costello, asked the Justice Department for a meeting to discuss what he felt was explosive information about Hunter Biden that he had gathered from people in Ukraine and elsewhere, according to a person with direct knowledge of the matter.

In response, Mr. Brady called Mr. Costello and offered to meet. Mr. Giuliani and Mr. Costello sent reams of documents to Pittsburgh, then traveled there on Jan. 29. They were picked up by F.B.I. agents and stopped for breakfast before meeting for nearly four hours at the local F.B.I. office with Mr. Brady and his top deputies on the inquiry, Stephen Kaufman and Ira Karoll, the person said.

Rudy described the interview at length in a letter claiming that the government should never have seized his devices (and revealing that SDNY requested, in both November 2020 and January 2021, to do so).

[I]n January 2020, counsel for Giuliani contacted high officials in the Justice Department, to inform them that Giuliani wanted to provide evidence for their consideration about the Ukraine. Within a day, the United States Attorney for the Western District of Pennsylvania, Scott W. Brady, contacted Giuliani’s counsel and offered to hold a meeting in Pittsburgh with both the United States Attorney’s office personnel and the FBI. Mayor Giuliani immediately accepted, and a meeting was scheduled for January 29, 2020.

On January 29, 2020, Mayor Giuliani and his counsel, flew to Pittsburgh at their own cost, where they were met by agents of the FBI and transported to FBI headquarters in Pittsburgh. Present at that meeting were the United States Attorney, the First Assistant United States Attorney, the Chief of the Criminal Division, and two additional Assistant United States Attorneys (“AUSA’s”) from the Western District of Pennsylvania. The FBI was represented by the Special Agent in Charge (“SAIC”) of the Pittsburgh FBI, the Assistant Special Agent in Charge (“ASAIC”), and three other special agents of the FBI.

Prior to the meeting, Giuliani’s counsel had provided the Pittsburgh United States Attorney’s office with documents and an extensive outline of the subject matter to be discussed, so that the Government could be fully informed and prepared to ask probing questions. Giuliani began the meeting by making a presentation with handouts. During his presentation, and at the end of it, the Mayor and his counsel answered every question they were asked, to the apparent satisfaction of all of the Government officials in the room. In addition to the presentation, Giuliani provided the Government with the names and addresses of individual witnesses, both in the United States and in Ukraine, that could corroborate and amplify the information that the Mayor was providing. Subsequent to that meeting, and covering a period of months, counsel for Giuliani received a number of inquiries, discussions and requests from the First Assistant United States Attorney. All requests were granted and all inquiries were answered. [my emphasis]

At Scott Brady’s deposition before House Judiciary Committee, there was an extensive exchange about that interview — including regarding then-Principal Associate Deputy Attorney General Seth DuCharme’s request that Brady sit in on the interview personally — which I first wrote about here.

And I’ll get copies for everyone. It’s very short. This is an email from Seth DuCharme to you, subject: “Interview.” The date is Wednesday, January 15, 2020. And, for the record, the text of the email is, quote, “Scott I concur with your proposal to interview the person we talked about would feel more comfortable if you participated so we get a sense of what’s coming out of it. We can talk further when convenient for you. Best, Seth.” And tell me if you recall that email.

A Yes, I do recall it.

Q Okay. And the date, again, is January 15, 2020, correct?

A That’s right.

Q So that was 14 days before the interview that you just described at which you were present, correct?

A Correct.

Q Does that help you recall whether this email between you and Seth DuCharme was referring to the witness that you participated in the interview of on January 29, 2020?

A Yes, it definitely did.

Q Okay. Just for clarity, yes, this email is about that witness?

A Yes, that email is about setting up a meeting and interview of Mr. Giuliani.

Q Okay. So the witness was Mr. Giuliani? That’s who you’re talking about?

A Yes.

Q Okay. And it was, in your judgment, important to get Mr. DuCharme’s opinion or, quote, “concurrence” about interviewing Mr. Giuliani. Is that fair to say?

A As I sit here, I don’t know if it was about interviewing Mr. Giuliani or just the logistics of where the interview would take place Pittsburgh, New York, D.C. It might’ve been about that.

Q So you needed Mr. DuCharme’s opinion about where the interview would be taking place?

A No, I didn’t need his opinion.

Q Oh. I’m just trying to

A Yeah.

Q understand, what was the reason, if you can recall, why you consulted with Mr. DuCharme about that particular decision, about whether or not you should interview Mr. Giuliani and any other aspect of that decision?

A Yeah, I I don’t know. I may have just been circling back to him, saying, “Hey, here’s the plan.” And he said, “Yeah, that sounds fine.”

Q Okay. Well, he also said that he would feel more comfortable if you participated, right?

A In that email, he did, yes.

Q Yeah. Was that consistent with what your experience with Mr. DuCharme was when you discussed interviewing Mr. Giuliani, or is there something unusual about the email?

A I don’t remember that there’s anything unusual. I would’ve sat in on that interview anyways, in all likelihood.

Q Okay. And just I don’t want to take this away from you, because I know you and I

A Oh, sure.

Q just have one copy. But just, again, what this email says is, “I concur with your proposal to interview the person we talked about.” And then he says, “Would feel more comfortable if you participated so we get a sense of what’s coming out of it.” Do you see that?

A Uhhuh.

Q Okay.

A Yes.

Q So what did he mean by “we”? Who was he referring to by “we”? Do you know?

A I don’t know.

Q Okay. Is it fair to infer that he is referring to the Attorney General and the Office of the Deputy Attorney General where he was working?

A I don’t know. Yeah, some group of people at Main Justice, but I don’t know specifically if it was DAG Rosen, Attorney General Barr, or the people that were supporting them in ODAG and OAG.

Brady would go on to concede there were a number of things — such as Rudy’s attempts to reach out to Mykola Zlochevsky and his possession of a hard drive of data from Hunter Biden — that Rudy never told the Pittsburgh US Attorney.

Q Okay. Then the other question I think that I have to ask about this is: This is a prior inconsistent statement of Mr. Zlochevsky that your investigation did not uncover, but it’s a statement that Mr. Giuliani was certainly aware of. Would you agree?

A Yes, if based on your representation, yes, absolutely.

[snip]

Okay. And what I am asking you is, have you ever heard that during the course of your investigation that Mr. Giuliani actually learned of the hard drive material on May 30th, 2019?

A No, not during our 2020 vetting process, no.

Q Mr. Giuliani never shared anything about the hard drives or the laptop or any of that in his material with you?

Mr. [Andrew] Lelling. Don’t answer that.

Q Oh, you are not going to answer?

Mr. Lelling. I instruct him not to answer.

Q. He did answer earlier that the hard drive. That Mr. Giuliani did not provide a hard drive.

Mr. Lelling. Okay.

Mr. Brady. He did not provide it. We were unaware of it.

By his own telling, Rudy spent four hours telling a team of ten people about these matters, and yet this affidavit doesn’t mention that interview at all.

To be sure, in his book, Geoffrey Berman — who was likely fired for conducting this investigation — provides one explanation for why Rudy’s 302s wouldn’t be incorporated in any warrant affidavit targeting Rudy: because the FBI refused to share those 302s with the NY Special Agent in Charge, William Sweeney.

So in January 2020 he came up with a plan. He described this plan he had hatched as “an intake process in the field.” That made it sound almost normal. The Department of Justice, in order to deal with the large influx of evidence, was going to employ this tried-and-true method in order to keep it all straight! But in all my years as a prosecutor and defense attorney, I had never heard of “an intake process in the field,” and neither had my executive staff or Sweeney.

His plan was to run all Ukraine-related matters, including information that Giuliani was peddling about the Bidens, through two other districts. His choices were Rich Donoghue, the US Attorney for the Eastern District of New York, who sat in Brooklyn; and Scott Brady, the US Attorney for the Western District of Pennsylvania, in Pittsburgh. Donoghue would oversee all Ukraine-related investigations, and Brady would handle the intake of information from Rudy and his lawyer.

This scheme, notably, did not include me or SDNY, which, as the office running the Lev and Igor case, was well versed in all things Ukraine. Barr’s implication seemed to be that with such a fire hose of material coming in from Rudy and his lawyer, we needed to spread the work out. And we had to have some kind of traffic cop to keep it all organized and flowing in the right direction—which was to be Brady in Pittsburgh.

All of this, of course, was utter nonsense. If somebody has information about an ongoing case, they typically hire a lawyer and approach the office that’s involved. Regardless of the quality or veracity of the material, I wanted to see it. We were the office with the background to determine its value. And we certainly would have had our own questions for Rudy, because he was a close associate of the two guys we just indicted. What’s more, our office was only a taxi ride away for Rudy and his lawyer—Pittsburgh was a 350-mile trip for them.

We could have handled whatever information Rudy had. With more than two hundred fully capable attorneys, I would have found a couple more to throw into the mix if it came to that. But that’s not what was driving the attorney general’s machinations. I believe it was really an effort by Barr to keep tabs on our continuing Lev and Igor investigation and keep us segregated from potentially helpful leads or admissions being provided by Rudy.

This became immediately clear to me and to Sweeney when we tried to access the information Rudy was providing. Rudy and his lawyer met several times with Main Justice and then with Brady’s team in Pittsburgh. There were FBI reports of those meetings, called 302s, which we wanted to review. So did Sweeney. Sweeney’s team asked the agents in Pittsburgh for a copy and was refused. Sweeney called me up, livid.

“Geoff, in all my years with the FBI I have never been refused a 302,” he said. “This is a total violation of protocol.”

Sweeney asked Jacqueline Maguire, his special agent in charge, to reach out to the acting head of the FBI’s office in Pittsburgh, Eugene Kowel, to request the 302s and related information. A few days later Kowel got back to Maguire and repeated what Brady had told him about the 302s: “It’s not my job to help the Southern District of New York make a case against Rudy.” [my emphasis]

Yet SDNY had to wait until Bill Barr was long gone before they got approval to serve this warrant. How is it possible that in the month and a half since Merrick Garland came in, SDNY had never gotten permission to read the 302s from Rudy’s “cooperation” in Pittsburgh?

Related: In related news, in a request for a delay in responding to Hunter Biden’s lawsuit against Rudy and his former attorney now creditor Robert Costello, it appears they are represented by the same firm.

Scott Brady’s “D-I-S-C-R-E-E-T” Vetting : A Marginally More Credible Witness than Gal Luft

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About 70% of the way through the House Judiciary Committee interview of former Pittsburgh US Attorney Scott Brady on October 23, he explained how reaching out to FBI’s legal attaché in Ukraine to ask that Legat to reach out to Ukraine’s Prosecutor General fit within the scope of a project Bill Barr had assigned him.

Brady had described the project, hours earlier, as vetting incoming information on Ukrainian corruption received from the public, including but not limited to, Rudy Giuliani, using public information.

[W]e were to take information provided by the public, including Mayor Giuliani, relating to Ukrainian corruption. We were to vet that, and that was how we described it internally, a vetting process.

We did not have a grand jury. We did not have the tools available to us that a grand jury would have, so we couldn’t compel testimony. We couldn’t subpoena bank records.

But we were to assess the credibility of information, and anything that we felt was credible or had indicia of credibility, we were then to provide to the offices that had predicated grand jury investigations that were ongoing.

Brady distinguished between reaching out directly to Ukrainian investigators, the National Anti-Corruption Bureau of Ukraine or the Prosecutor General’s Office, and reaching out via the FBI.

The latter, Brady said, was,

a discreet, nonpublic way of securing information about these cases, including from publicly available documents or dockets, in a way that then wouldn’t, you know raise a flag and make the Ukrainian media, the national media aware? Because we were very concerned– [my emphasis]

“So ‘discreet’ here,” a Democratic staffer clarified, “means quietly, basically. You could do that quietly. Is that fair to say?”

“Yes,” Brady agreed, “quietly, as an investigation is…”

The Democratic staffer interjected, “Okay.”

“Usually conducted,” Brady finished, perhaps recognizing what he had just conceded.

Scott Brady’s misreading of discrete words

Two hours earlier, the same Democratic staffer had walked Brady through the email — one he himself had raised — via which a top Bill Barr aide, Seth DuCharme, had first given Brady his assignment on January 3, 2020.

DuCharme had given Brady that assignment between the time on, December 18, 2019, that the House had impeached Donald Trump for (among other things) asking President Volodymyr Zelenskyy to help Rudy Giuliani and Bill Barr look into the Bidens and Burisma, and the time, on February 5, 2020, that the Senate acquitted Trump.

The staffer asked Brady, close to the beginning of the Democrats’ first round of questioning in the deposition, what he took DuCharme to mean by the word, “discreet.”

In spite of the fact that both the staffer and Brady had that email in front of them, an email which spelled discreet, “d-i-s-c-r-e-e-t,” Brady tried to claim that by that, DuCharme meant to give Brady a discrete, “d-i-s-c-r-e-t-e” assignment.

Q And Mr. DuCharme refers to your assignment as a, quote, “discreet assignment,” correct?

A Yes. And I think what he meant by “discreet” was limited in scope and duration.

Q Oh, “discreet” means limited in this case?

A My understanding was that it was “discrete” meaning limited in scope and duration.

Q Okay. Did you think in any way that he was implying that it ought to be kept out of the public, this assignment?

Brady denied that this reference, “d-i-s-c-r-e-e-t,” meant Barr and DuCharme were trying to keep this project quiet, because after all, Bill Barr spoke of it publicly.

A No. I no, because, on the one hand, the Attorney General was speaking publicly of the assignment. However, it should be kept secret, to use your words, just as any investigation would be, any process would be that whether vetting or an investigation between the U.S. attorney’s Office and the FBI or any Federal agency.

Q You mean the information itself that you were discussing or coming upon in the investigation, that should be kept discreet or out of the public eye?

A The investigation, the process, all of that none of that is public

Q Got it.

A when we do that.

The staffer asked whether Brady really meant that Barr was discussing the assignment publicly on January 3, 2020, a month before Lindsey Graham first revealed — days after the Senate had acquitted Trump — that Barr had, “created a process that Rudy could give information and they would see if it’s verified.”

Q And you indicated that you believe that the Attorney General at that time was discussing your assignment publicly? Is that in your recollection, was he doing that publicly on January 3, 2020?

A No. I mean subsequent comments.

Q Okay. So, after it became known that this investigation or assignment had been given to you, Attorney General Barr did make public comments. Is that right?

A Yes.

That gives you some sense of the level of candor that Pittsburgh’s former top federal law enforcement officer, Scott Brady, offered in this testimony. About the most basic topic — how he came to be given this assignment in the first place — he offered two bullshit claims in quick succession, bullshit claims that attempted to downplay the sketchiness of how he came to be assigned a task intimately related to impeachment right in the middle of impeachment.

The word games about “d-i-s-c-r-e-e-t” are all the more cynical given that American Oversight, whose FOIA Brady repeatedly described having read (probably as a way to prepare for the deposition), titled their page on the it “A Possible Discreet Assignment.”

The high risk of deposing Scott Brady

Inviting Scott Brady to testify to the House Judiciary Committee was a high risk, high reward proposition for Jim Jordan.

Brady, if he could hold up under a non-public deposition, might give the Republicans’ own impeachment effort some credibility — at least more credibility than the debunked, disgruntled IRS agents and indicted fugitives that the project had relied on up to this point.

Sure enough, in the wake of his testimony, the usual propagandists have frothed wildly at Brady’s descriptions of how he faced unrelenting pushback as he pursued a project ordered by the Attorney General and “fully support[ed]” by the top management of the FBI. Poor Scott Brady, the right wing wailed, struggled to accomplish his task, even with Bill Barr, Jeffrey Rosen, Chris Wray, and David Bowdich pulling for him.

The right wing propagandists didn’t need the least bit of logic. They needed only a warm body who was willing to repeat vague accusations, including (as Brady, a highly experienced lawyer who should know better did more than once), parroting public claims, usually Gary Shapley’s, about which he had no firsthand knowledge as if he knew them to be fact.

But testifying before House Judiciary also meant being interviewed by staffers of the guy, Jerry Nadler, who first raised concerns about the project after Lindsey blabbed about it. In real time, Nadler established that Bill Barr’s DOJ had set up Brady to ingest material from Rudy Giuliani, then put the US Attorney in EDNY (at the time, Richard Donoghue, but Donoghue would swap places with DuCharme in July 2020) in charge of gate-keeping several investigations into Ukraine. Geoffrey Berman, the US Attorney in SDNY whom Barr fired in June 2020 in an attempt to shut things down, would later reveal that this gate-keeping effort had the effect of limiting SDNY’s investigation into Rudy’s suspected undisclosed role as an agent of Ukraine.

That part has become public: Freeze the investigation into whether Rudy is a foreign agent in SDNY, move any investigation into identified Russian asset Andrii Derkach to EDNY and so away from the Rudy investigation, and set up Scott Brady in WDPA to ingest the material Rudy collected after chumming around with Derkach and others.

What had remained obscure, though, was the role that Brady had with respect to that other “matter[ that] that potentially relate[s] to Ukraine:” the Hunter Biden investigation in Delaware. Indeed, DOJ’s letter to Nadler about it falsely suggested all covered matters were public. It turns out Stephen Boyd, who wrote the letter, was being “discreet” about there being another investigation, the one targeting Joe Biden’s son.

Inviting Scott Brady to a deposition before the House Judiciary Committee as part of an effort to fabricate an impeachment against Joe Biden provided the the same congressional office that first disclosed this corrupt scheme an opportunity to unpack that aspect of it.

It turns out Jerry Nadler’s staffers were undeterred by shoddy word games about the meaning of, “d-i-s-c-r-e-e-t.”

The virgin birth of a “Hunter Biden” “Burisma” search

The central focus of the HJC interview, unsurprisingly, was how an informant came to be reinterviewed in June 2020 about interactions he had with Burisma’s Mykola Zlochevsky months and years earlier, the genesis of the FD-1023 on which Republicans are pinning much of their impeachment hopes, and how and on what terms that FD-1023 got forwarded to David Weiss, who was already investigating Hunter Biden.

Yet it took three rounds of questioning — Republicans then Democrats then Republicans again — before Brady first explained how his team, made up of two AUSAs working full time, himself, two other top staffers, and an FBI team, came to discover a single line in a 3-year old informant report. With Republicans, Brady described that it came from a search on “Hunter Biden” and “Burisma.”

Q And the original FD1023 that you’re referring as information was mentioned about Hunter Bidden and the board of Burisma, how did that information come to your office?

A At a high level, we had asked the FBI to look through their files for any information again, limited scope, right? And by “limited,” I mean, no grand jury tools. So one of the things we could do was ask the FBI to identify certain things that was information brought to us. One was just asking to search their files for Burisma, instances of Burisma or Hunter Biden. That 1023 was identified because of that discreet statement that just identified Hunter Biden serving on the Burisma board. That was in a file in the Washington Field Office. And so, once we identified that, we asked to see that 1023. That’s when we made the determination and the request to reinterview the CHS and led to this 1023. [my emphasis]

That answer — which described Brady’s team randomly deciding to search non-public information for precisely the thing Trump had demanded from Volodymyr Zelenskyy less than a year earlier — satisfied Republican staffers. Again, they weren’t looking for logical answers, much less rooting out Republican corruption; they needed a warm body who might be more credible than Gal Luft.

It took yet another round of questions before the Democrats asked Brady why, if his job was to search public sources, he came to be searching 3-year old informant reports for mentions of Hunter Biden. At that point, the search terms used to discover this informant report came to shift in Brady’s memory, this time to focus on Zlochevsky, not Hunter Biden personally.

Q Okay. And so, in the actually, in the first and second hours, you said pretty extensively that your role was to vet information provided from the public, correct?

A Correct.

Q And so the 1023, the original 1023, was not information provided from the public, correct?

A That’s correct

Q Okay.

A yes.

Q But it came up because you’d received information from Mr. Giuliani and, in your vetting of that information, you ran a search?

A Correct.

Q Okay.

A And just to clarify, I don’t remember if we asked the FBI to search for “Burisma”

Q Right.

A or “Zlochevsky.”

Q Understood.

Searching on “Zlochevsky” and “Burisma” wouldn’t have gotten you to the specific line in a 2017 FD-1023 about Hunter Biden — at least not without a lot of work. Chuck Grassley revealed the underlying informant report came from a 3-year long Foreign Corrupt Practices Act investigation into Zlochevsky that had been closed in December 2019.

December 2019.

Remember that date.

Finding that one line about Hunter Biden in a 3-year investigative file would have been the quintessential needle in a haystack.

Spying on the twin investigations

Perhaps this is a good time to explain a totally new — and alarming — detail disclosed in this deposition.

Scott Brady didn’t just accept information from the public, meaning Rudy, and then claim to vet it before handing it on to other investigations. Brady didn’t just attempt to contact Ukraine’s Prosecutor General — through the Legat and therefore discreetly — to try to get the same cooperation that Trump had demanded on his call with Zelenskyy.

He also quizzed the investigators.

In the guise of figuring out whether open grand jury investigations already had the information he was examining, he asked them what they were doing.

In Geoffrey Berman’s case, this involved an exchange in which Scott Brady — the guy claiming to be working off public files and leads from Rudy — told Berman — the guy with a grand jury investigating Rudy — that Berman was wrong.

Q Okay. Let me be more specific. At some point, the U.S. Attorney for the Southern District of New York, Mr. Berman, wrote you a letter or email that provided information he thought that you should have because of the material that he knew you were reviewing, that he thought might be inconsistent with what you were finding; is that correct?

A That’s correct. And then we wrote him an letter back saying that some of the contents in his letter was incorrect.

Q Okay. So you had some kind of dispute with Mr. Berman about the information that they had versus the information that you had, the subject had seemed inconsistent. Is that fair to say?

A I think there was a clarification process that was important that we shared information and made sure that they especially had an understanding because they had a predicated grand jury investigation, what was in our estimation and our limited purview correct and incorrect. So we wanted to make sure they had the correct information. [my emphasis]

As we’ll see, this is important — nay, batshit crazy — based on what the full sweep of Brady’s deposition revealed about his interactions with Rudy. Because, as Brady conceded by the end of the interview, Rudy probably wasn’t entirely forthcoming in an interview Brady did with Rudy.

But, as described, it doesn’t seem all that intrusive.

In David Weiss’ case, however, Brady described that, after Hunter Biden’s prosecutors refused to tell him what they were up to and he intervened with Weiss himself, using “colorful language,” the Hunter Biden team instructed Brady to put his questions in writing.

Q Okay. And so the I think you said you passed along or, not you personally, but your office passed along interrogatories or questions for them.

A That’s right.

Q That was along the lines of asking them what steps they had taken. Is that fair to say?

A Some limited steps. Correct.

Q Okay. So you were asking them about their investigation to help inform your investigation.

A Yes, to help focus our process so that we weren’t doing anything that, as I mentioned, would be duplicative or would complicate their investigation in any way.

[snip]

Q Okay. And you wanted to know that because you didn’t want to start doing the same investigative steps that they were doing?

A Correct.

Q But you indicated before that you didn’t have the power to get bank records, for example; is that right?

A Correct.

Q So was there a reason that you would need to know whether the other district had subpoenaed something if you weren’t able to subpoena bank records yourself?

A Yes. For example, if we were given a bank account number and wanted to see if they had already looked at that, we would want to know if they had visibility and say, you know: Here’s a bank account that we had received; have you, you know, have you subpoenaed these records, have you can you examine whether this bank account has sent funds into other Burisma-related accounts or Biden-related accounts?

Q So you were looking to sort of use their grand jury or subpoena authority to learn information because you didn’t have that tool in your own investigation?

A We weren’t really looking to learn information about their investigation. We just wanted to know if we needed to do anything with that, to try to corroborate it through perhaps other sources or through the FBI, or if we should even hand it over, again, if it was credible or not credible. If there is nothing to be gained, I don’t want to waste their time if they said: Oh, yeah, we’ve looked at that, and this bank account doesn’t show up anywhere in our records.

Q So, if you had some kind of information or question about a bank account, was there anything stopping you from just passing that onto Delaware without asking them also to tell you whether they had received any information pursuant to a subpoena or any other lawful process?

A We could have, but that wasn’t my understanding of our assignment. Our understanding of the assignment was to really separate the wheat from the chaff and not waste their time with a dump of information, maybe, you know, a percentage of which would be credible or have indicia of credibility. So they have limited resources. They have, you know, a broad tasking. So we didn’t want to waste their time by doing that. We thought it would be more efficient to engage them, ask them: Have you seen this?

Yes, no. And then pass it on, make a determination of what to pass onto them.

Aside from the fact that this sounds like it took more time than simply sending a bunch of bank account numbers to allow the Delaware team to deduplicate — the FBI does have computers as it turns out, and one of the FBI’s best forensic accountants has worked on this investigation — the timing of this matters.

This happened in April and May 2020, so in the months and weeks before Brady’s team did a search on Hunter Biden and Burisma — or maybe it was Zlochevsky and Burisma — and found a 3-year old informant report mentioning the former Vice President’s son.

So Brady sent, and after some back-and-forth, got some interrogatories from Weiss’ team, and then the next month discovered an informant that Delaware presumably hadn’t chosen to reinterview.

“Do not answer” about the vetting

By the point when Brady described randomly searching on Hunter Biden and Burisma — or maybe it was Zlochevsky and Burisma — the former US Attorney had already repeatedly balked when asked if he had vetted anything pertaining to Zlochevsky.

The first time, his attorney, former Massachusetts US Attorney Andrew Lelling and so, like Brady, a former Trump appointee — I think this is the technical term — lost his shit, repeatedly instructing Brady not to answer a question that goes to basic questions about the claimed purpose for this project: vetting leads.

Q All right. The statements that are attributed to Mr. Zlochevsky, did you do any work, you or anyone on your team, to determine whether those statements are consistent or inconsistent with other statements made by Mr. Zlochevsky?

Mr. Lelling. He’s not going line by line from a 1023. He’s not discussing at that level of detail.

Q. Okay. Could you answer the question that I asked you though?

Mr. Lelling. No. Do not answer.

Q. That was not a line-by-line question.

Mr. Lelling. Do not answer the question. You picked the line. You read it. You were asking him

Q. That’s not no, I didn’t. What line did I read from?

Mr. Lelling. Okay. I’m being figurative.

Q. Okay. I’m asking

Mr. Lelling. He is not going to go detail by detail through the 1023.

Q. I’m not asking that. No, I’m not going to ask that. I am asking a general question about whether he tried to determine whether there were consistent or inconsistent statements made by one of the subsources, generally.

Mr. Lelling. Yeah. No. He can’t answer that. This is too much

Q. So we’re going to keep asking the questions I understand he may not want to answer. We’re going to keep asking the questions to make a record. If you decline to answer

Mr. Lelling. Sure. I understand. And some maybe he can. This is

Q. We’re going to keep asking the questions though.

Mr. Lelling. This is a blurry line, a

Q. Understood.

Mr. Lelling. deliberative process question. And I’m sort of making those judgments question by question. So, maybe, categorically, he can’t answer any of the questions you’re about to ask. Maybe he can. So

Q. Well, if you let me ask them, then we can have your response.

Mr. Lelling. Sure.

Q. Fair? Okay. So the subsource, Mr. Zlochevsky, did you make any effort in your investigation to look in public sources, for example, whether Mr. Zlochevsky had made statements inconsistent with those attributed to him by the CHS in the 1023?

Mr. Brady. I don’t remember. I don’t believe we did. I think what our broadly, without going into specifics, what we were looking to do was corroborate information that we could receive, you know, relating to travel, relating to the allegation of purchase of a North American oil and gas company during this period by Burisma for the amount that’s discussed in there. We used open sources and other information to try to make a credibility assessment, a limited credibility assessment. We did not interview any of the subsources, nor did we look at public statements by the subsources relating to what was contained in the 1023. We believed that that was best left to a U.S. attorney’s office with a predicated grand jury investigation to take further.

Brady’s team looked up whether Burisma really considered oil and gas purchases at the time. They looked up the informant’s travel. But did nothing to vet whether Zlochevsky’s known public statements were consistent with what he said to the informant.

Democrats returned to Brady’s description of how he had vetted things, including the FD-1023, later in that round. He was more clear this time that while his team checked the informant’s travel and while he repeatedly described his vetting role as including searching public news articles, his team never actually checked any public news articles to vet what the 1023 recorded about Zlochevsky’s claims.

Q Okay. But open source so, other than witness interviews, you did do some open source or your team did some open source review to attempt to corroborate some of what was in the 1023? Is that fair?

A Just limited to the 1023?

Q Well, let’s start with that.

A Yes.

Q Okay. And what does that generally involve, in terms of the open source investigation?

A It could be looking at it could be looking at public financial filings. It could be looking at news articles. It could be looking at foreign reporting as well, having that translated. Anything that is not within a government file would be open source, and it could be from any number of any number of sources.

Q So, when you look at news reports, for example, would you note if there was a witness referred to in the 1023 that had made a statement that was reported in the news article, for example? Would that be of note to your investigators?

A Relating to the 1023? No. We had a more limited focus, because we felt that it was more important to do what we could with certain of the information and then pass it on to the District of Delaware, because then they could not only use other grand jury tools that were available but, also, we didn’t have visibility into what they had already investigated, what they had already done with Mr. Zlochevsky, with any of the individuals named in this CHS report. [my emphasis]

Scott Brady claimed to search news reports, even in foreign languages. But did not do so about the matter at the core of his value to the GOP impeachment crusade because, he claimed, his team had no visibility into what the Delaware team had already done with Zlochevsky.

Only they did have visibility: they had those interrogatories they got in May.

Having been told by Brady that he didn’t bother to Google anything about what Zlochevsky had said publicly, Democratic staffers walked him through some articles that might have been pertinent to his inquiry, quoting one after another Ukranian saying there was no there there.

Only the claims in the June 4, 2020 article rang a bell for Brady at all, though he did say the others may have made it into a report he submitted to Richard Donoghue (who by that point had swapped roles with DuCharme at Main DOJ) in September 2020.

But as to Brady? The guy who spent nine months purportedly vetting the dirt the President’s lawyer brought back from his Russian spy friends claims to have been aware of almost none of the public reporting on the matters Rudy pitched him. Which apparently didn’t stop him from calling Geoffrey Berman and telling Berman he knew better.

The open source that Scott Brady’s vetting team never opened

Even before they walked Brady through those articles, some appearing days before the informant reinterview, Democratic staffers raised Lev Parnas.

Was Brady familiar with the interview, conducted less than a year before his team reinterviewed the informant, that Parnas claimed Vitaly Pruss did with Zlochevsky on behalf of Rudy Giuliani, the one that had been shared with the House Intelligence Committee as part of impeachment?

Okay. And just to be clear, I think my colleague has already explained this, but this document was provided to investigators on the House Permanent Select Committee on Intelligence in 2019, before your assessment began, in relation to the first impeachment inquiry of President Trump. But you indicated you were not aware that that evidence was in the record of that investigation?

A Correct.

[snip]

Q Okay. So you indicated you’ve never seen this document before. May I actually ask you, before we go through it: You, during the course of your investigation, you asked the FBI or directed others to ask the FBI to review their holdings for any information related to Burisma or Zlochevsky, correct?

A Yes. We asked them, for certain specific questions, to look in open source, as we talked about, and then to look in their investigative files to see if they had intersected with these names or, you know, this topic before.

Q Okay. And they yielded this 2017 1023 that then led you to interview the CHS, correct?

A Yes.

Q Okay. But you never asked, for example, the House Permanent Select Committee investigators or anyone associated with that investigation to do a similar inquiry for evidence relating to Zlochevsky?

A No, I don’t believe we did.

Q Okay. And, like you said, you were not aware that this interview had taken place in 2019. Is that fair to say?

A I don’t believe I was, no.

Q Okay. And anyone on your team, as far as you know, was not aware that Mr. Zlochevsky had been interviewed at the direction of Giuliani before your assessment began?

A I don’t believe so.

One of the Democratic staffers got Brady to agree that, yes, he had found a 3-year old informant report and tried to contact Ukraine’s Prosecutor General, discreetly, but hadn’t bothered to see whether there were relevant materials in the wealth of evidence and testimony submitted as part of the impeachment.

Q Okay. I guess my question was just more based on your own description of your own investigative efforts. I mean, you went on your own, on your own initiative, to search FBI records that had anything to do with Zlochevsky, correct?

A Correct.

Q Or Burisma, but you don’t know what the search term was.

A Correct. There were multiple, but yes. I can’t remember the specific one that uncovered the underlying 1023.

Q Okay. But you didn’t make a similar effort to search the impeachment investigative files that were released and public at that time and dealing with the same matter. Is that

A Correct. To my knowledge, yes

Q Okay.

A that’s correct.

As Brady described, the team he put together to carry out a task assigned during impeachment that closely related to the subject of impeachment, “we were certainly aware” of the ongoing impeachment, but, “I don’t believe that our team looked into the record.”

Brady, at various times, also excused himself from anything pertaining to Lev Parnas because Rudy’s former associate had been indicted.

Mr. Brady. So, just to clarify, without going into detail, because Mr. Parnas had been indicted by SDNY, we didn’t develop any information relating to Mr. Parnas that either Mr. Giuliani gave us or that we received from the public, and we felt that it was best handled by SDNY, since they had that full investigation.

[snip]

[W]e cordoned that off as an SDNY matter. So, any information that we received from Mr. Giuliani, for example, relating to Mr. Parnas, we relayed to SDNY.

In the same way that the scheme Barr set up to gatekeep Ukraine investigations meant SDNY wouldn’t look at Andrii Derkach, because that had been sent to EDNY, Scott Brady wasn’t going to look at Lev Parnas, because he was sending that to SDNY.

That’s important backstory to the FD-1023 being sent to Delaware as if it had been vetted.

The things Rudy didn’t tell Scott Brady

It matters not just because it exhibits Brady’s utter failure to do what he claimed the task was: using open source information to vet material (which does not rule out that his team performed some other task exceptionally well). It matters because, Brady claims, Rudy didn’t tell him any of this.

One of the minor pieces of news in the Scott Brady interview came in an email that Brady and DuCharme exchanged about interviewing Rudy that probably should have — but, like other responsive records, appears not to have been — released to American Oversight in its FOIA.

Q And I’ll get copies for everyone. It’s very short. This is an email from Seth DuCharme to you, subject: “Interview.” The date is Wednesday, January 15, 2020. And, for the record, the text of the email is, quote, “Scott I concur with your proposal to interview the person we talked about would feel more comfortable if you participated so we get a sense of what’s coming out of it. We can talk further when convenient for you. Best, Seth.” And tell me if you recall that email.

A Yes, I do recall it.

Q Okay. And the date, again, is January 15, 2020, correct?

A That’s right.

Q So that was 14 days before the interview that you just described at which you were present, correct?

A Correct.

Q Does that help you recall whether this email between you and Seth DuCharme was referring to the witness that you participated in the interview of on January 29, 2020?

A Yes, it definitely did.

Q Okay. Just for clarity, yes, this email is about that witness?

A Yes, that email is about setting up a meeting and interview of Mr. Giuliani.

Q Okay. So the witness was Mr. Giuliani? That’s who you’re talking about?

A Yes.

Neither the date of this interview nor Brady’s participation in it is new. After the FBI seized his devices, Rudy attempted to use the interview to claim he had been cooperating in law enforcement and so couldn’t have violated FARA laws. And NYT provided more details on the interview in the most substantive reporting to date on Brady’s review, reporting that conflicts wildly with Brady’s congressional testimony.

The new detail in the email — besides that DuCharme didn’t mention Rudy by name (elsewhere Brady explained that all his “discrete” communications with DuCharme were face-to-face which would make them “discreet”) or that the email was written two days before Jeffrey Rosen set up EDNY as a gate-keeper — is DuCharme’s comment that “we” would be more comfortable if Brady participated so “we” got a sense of what was coming out of it.

I don’t want to take this away from you, because I know you and I

A Oh, sure.

Q just have one copy. But just, again, what this email says is, “I concur with your proposal to interview the person we talked about.” And then he says, “Would feel more comfortable if you participated so we get a sense of what’s coming out of it.” Do you see that?

A Uhhuh.

Q Okay.

A Yes.

Q So what did he mean by “we”? Who was he referring to by “we”? Do you know?

A I don’t know.

Q Okay. Is it fair to infer that he is referring to the Attorney General and the Office of the Deputy Attorney General where he was working?

A I don’t know. Yeah, some group of people at Main Justice, but I don’t know specifically if it was DAG Rosen, Attorney General Barr, or the people that were supporting them in ODAG and OAG.

Q Okay. But they wanted to, quote, “get a sense of what’s coming out of it,” correct? A

From the email, yes.

Scott Brady was supposed to vet Rudy, not just vet the dirt that Rudy shared with him.

And on that, if we can believe Brady’s testimony, Brady failed.

As Democratic staffers probed at the end of their discussion on the Parnas materials from impeachment, it was not just that Brady’s own team didn’t consult any impeachment materials, it’s also that Rudy, when he met with Brady on January 29, 2020, didn’t tell Brady that he had solicited an interview in which Zlochevsky had said something different than he did to the informant.

Q Okay. Then the other question I think that I have to ask about this is: This is a prior inconsistent statement of Mr. Zlochevsky that your investigation did not uncover, but it’s a statement that Mr. Giuliani was certainly aware of. Would you agree?

A Yes, if based on your representation, yes, absolutely.

Democratic staffers returned to that line of questioning close to the end of the roughly 6-hour deposition. After Republicans, including Jim Jordan personally, got Brady to explain that he was surprised by the NYPost story revealing that Rudy had the “laptop” on October 14, 2020, Democratic staffers turned to a Daily Beast article, published three days after the first “Hunter Biden” “laptop” story, quoting Rudy as saying, “The chance that [Andrii] Derkach is a Russian spy is no better than 50/50” and opining that it “Wouldn’t matter” if the laptop he was pitching had some tie to the GRU’s hack of Burisma in later 2019.”What’s the difference?”

Using that article recording Rudy’s recklessness about getting dirt from Russian spies, a Democratic staffer asked if Brady was surprised that Rudy hadn’t given him the laptop. Brady’s attorney and former colleague as a Trump US Attorney (and, as partners at Jones Day), Lelling, intervened again.

Q So when you said earlier that you were surprised you hadn’t seen the laptop, were you surprised that Mr. Giuliani didn’t produce it to you?

A Yes

Q And why is that.

Mr. Lelling. I don’t think you can go into that. You can say you were surprised.

Q You can’t tell us why you were surprised?

Mr. Lelling. He can’t characterize his rationale for his surprise. That’s correct.

Q Why is that? Just for the record, what is the reason?

Mr. Lelling. Because it gets too close to deliberative process concerns that the Department has.

Q It’s deliberative process to explain why he was surprised that Giuliani didn’t give him something that Giuliani said he had public access to?

Mr. Lelling. Correct.

Then Democrats returned, again, to Lev Parnas’ explanation of how Vitaly Pruss had interviewed Zlochevsky, this time using this October 24, 2020 Politico story as a cue. Democrats asked Brady if he was aware that, eight months before the vetting task started, Rudy had heard about laptops being offered.

Okay. And what I am asking you is, have you ever heard that during the course of your investigation that Mr. Giuliani actually learned of the hard drive material on May 30th, 2019?

A No, not during our 2020 vetting process, no.

Q Mr. Giuliani never shared anything about the hard drives or the laptop or any of that in his material with you?

Mr. Lelling. Don’t answer that.

Q Oh, you are not going to answer?

Mr. Lelling. I instruct him not to answer.

Q. He did answer earlier that the hard drive. That Mr. Giuliani did not provide a hard drive.

Mr. Lelling. Okay.

Mr. Brady. He did not provide it. We were unaware of it.

Then Democrats explored Parnas’ claim in the Politico story that Zlochevsky said he’d provide dirt, if Rudy helped him curry favor with DOJ (note, the staffers misattributed a statement about extradition in the article, which pertained to Dmitry Firtash’s demand, to Zlochevsky). When they asked Brady if he knew that Zlochevsky had reason to curry favor with DOJ because was accused of money laundering, Brady first pointed to two other jurisdictions where such investigations were public, then asked for legal advice and was advised not to respond.

Q Okay. And according to the article Pr[u]ss told Giuliani at the May 30th, 2019, meeting that Mr. Zlochevsky had stated that he had, quote, “derogatory information about Biden, and he was willing to share it with Giuliani if Giuliani would help Zlochevsky, ‘curry favor with the Department of Justice and help him with an extradition request or other efforts by DOJ to investigate or prosecute Zlochevsky.'” Do you see that allegation in the report?

A I see the first part, I’m sorry. I don’t see the extradition.

Q Okay. So what it says in the article is that Zlochevsky was interested in currying favor with the Department of Justice, correct?

A Yes.

Q Are you aware that Mr. Zlochevsky was accused of money laundering among other financial crimes?

A I’m sorry, by which jurisdiction? I’m aware that there were allegations regarding potential money laundering and Mr. Zlochevsky that were investigated by the U.K. and by Ukrainian prosecutors. Could I just have one second?

Q Sure.

Mr. Lelling. I don’t think he can give you further detail.

The day after this October 23 interview, in which Brady claimed to have randomly discovered the 3-year old informant report that led to the reinterview that led to the FD-1023 Republicans want to build impeachment on by searching on Hunter Biden and Burisma — or maybe it was Zlochevsky and Burisma, Grassley released his letter with a slightly different story than the one Brady offered about how Brady came to learn about the 3-year old informant report.

While Grassley, whose understanding tends to rely on disgruntled right wing gossip, is often wrong in his claims about causality and here only speculates that Zlochevsky came up, Grassley nevertheless revealed a US Kleptocapture investigation into Zlochevsky, one that was opened in 2016 and shut down in December 2019.

Although investigative activity was scuttled by the FBI in 2020, the origins of additional activity relate back to years earlier. For example, in December 2019, the FBI Washington Field Office closed a “205B” Kleptocracy case, 205B-[redacted] Serial 7, into Mykola Zlochevsky, owner of Burisma, which was opened in January 2016 by a Foreign Corrupt Practices Act FBI squad based out of the FBI’s Washington Field Office. This Foreign Corrupt Practices Act squad included agents from FBI HQ. In February 2020, a meeting took place at the FBI Pittsburgh Field Office with FBI HQ elements. That meeting involved discussion about investigative matters relating to the Hunter Biden investigation and related inquiries, which most likely would’ve included the case against Zlochevsky. Then, in March 2020 and at the request of the Justice Department, a “Guardian” Assessment was opened out of the Pittsburgh Field Office to analyze information provided by Rudy Giuliani.

During the course of that assessment, Justice Department and FBI officials located an FD-1023 from March 1, 2017, relating to the “205B” Kleptocracy investigation of Zlochevsky. That FD1023 included a reference to Hunter Biden being on the board of Burisma, which the handling agent deemed at the time non-relevant information to the ongoing criminal financial case. And when that FD-1023 was discovered, Justice Department and FBI officials asked the handler for the Confidential Human Source (CHS) to re-interview that CHS. According to reports, there was “a fight for a month” to get the handler to re-interview the CHS. [my emphasis]

Lev Parnas claimed that Zlochevsky was offering to trade dirt on Biden for favor with DOJ in May 2019, and according to Grassley, in December 2019 — the same month Rudy picked up dirt in Ukraine — DOJ shut down a 3-year old investigation into Zlochevsky, one that was opened during the Obama Administration when Hunter was on the board of Burisma. The source of the tip on the informant is, at least if we can believe Grassley, the investigation on Zlochevsky that got shut down the same month as Rudy picked up his dirt.

Given Brady’s refusal to answer whether he knew about the money laundering investigation, it’s likely he knew about that investigation and so may even have been doing this math as he sat there being quizzed, discreetly, by Democratic staffers. The source of the informant tip his “vetting” operation pushed to the Hunter Biden investigation — the one on which Republicans want to build impeachment — may be the source of Zlochevsky’s interest in trading dirt on Joe Biden in exchange for favor with DOJ.

According to Brady, Rudy didn’t tell him about the earlier events, and his “vetting” team never bothered to look in impeachment materials to find that out.

The possible quid pro quo behind Republicans’ favorite impeachment evidence

To be sure, there are still major parts of this evolving outline that cannot be substantiated. The letter Parnas sent to James Comer doesn’t include the detail from Politico about currying favor (though it does include notice in June 2019 of a laptop on offer).

SDNY found Parnas to be unreliable about these topics (though who knows if that was based on “corrections” from Scott Brady?). As noted, Democratic staffers conflated Dmitry Firtash’s efforts to reach out to Bill Barr with this reported effort to curry favor. In a November 2019 interview not mentioned by Democratic staffers, Pruss denied any role in all this.

But the claimed timeline is this. In May 2019, Vitaly Pruss did an interview of Zlochevsky, seeking dirt on Biden for Rudy. After Rudy erupted at a June meeting because Zlochevsky had none, Pruss floated some, possibly a laptop, if Rudy could curry favor with DOJ. In August, a whistleblower revealed that Trump asked Zelenskyy to help Rudy and Barr with this project, kicking off impeachment in September. In October 2019, Parnas and Rudy prepared to make that trade in Vienna, dirt for DOJ assistance, only to be thwarted by Parnas’ arrest. According to the FBI, six days later (but according John Paul Mac Isaac, the day before the Parnas arrest), JPMI’s father first reached out to DOJ offering a Hunter Biden laptop. In December, a bunch of things happened: Rudy met with Andrii Derkach; the government took possession — then got a warrant for — the laptop, followed the next day by Barr’s aides informing him they were sending a laptop; the House voted to impeach Trump, and if we can believe Grassley — on an uncertain date — DOJ closed the Kleptocracy investigation into Zlochevsky they had opened during the Obama Administration. Sometime in this period (as I noted in this thread, the informant’s handler remarkably failed to record the date of this exchange, but it almost certainly happened after the Zelenskyy call was revealed and probably happened during impeachment), the informant’s tie to Zlochevsky, Oleksandr Ostapenko, interrupted a meeting about other matters to call Zlochevsky which is when Zlochevsky alluded to funds hidden so well it would take 10 years for investigators to find them.

Then, just days into January, DuCharme tasked Brady with ingesting dirt from Rudy, and after consultation with DuCharme, Brady decided he’d attend the interview with Rudy “so we get a sense of what’s coming out of it.” In that interview, Rudy didn’t tell DOJ about the interview that Parnas claims he solicited with Zlochevsky. He didn’t tell Brady he had first heard of laptops on order in June 2019. Nor did he tell DOJ, months later, when he obtained a hard drive from the laptop from John Paul Mac Isaac, still several weeks before Brady submitted a report to Richard Donoghue on the dirt Rudy was dealing.

If you corroborate Parnas’ claims about what happened in May and June 2019, then Zlochevsky’s later comments — possibly made after a DOJ investigation into him got shut down — look like the payoff of a quid pro quo. Remarkably, Brady never factored that possibility into his vetting project because he didn’t actually vet the most important details.

Scott Brady will undoubtedly make a more credible witness than Gal Luft if and when Republicans move to impeach Joe Biden. After all, he’ll be able to show up without getting arrested!

But this deposition made several things clear. First, his task, which public explanations have always claimed was about vetting dirt from Rudy Giuliani, did very little vetting. And, more importantly, if Lev Parnas’ claims to have solicited an interview on behalf of Rudy are corroborated, then Rudy would have deliberately hidden one of the most consequential details of his efforts to solicit the dirt that the DOJ, just weeks after closing an investigation into Mykola Zlochevsky, would set up a special channel to sheep dip into the investigation into President Trump’s opponent’s son.

It turns out that the most senior, credible witness in Republicans’ planned impeachment against Joe Biden actually has more to offer about Trump’s corruption than Biden’s.

NYT Keeps Downplaying Trump’s Past Retribution Tour

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Charlie Savage, Maggie Haberman, and Jonathan Swan keep teaming up to write the same story over and over: A second Trump term is going to be bad … really bad.

Just some of these stories, in reverse order from Tuesday’s latest installment, are:

There are several aspects to these stories: a bid to eliminate civil service protections, a personalization of power, and the elevation of people who proved willing to abuse power in his first term: Russel Vought (who helped obstruct the Ukraine investigation), Stephen Miller, and Johnny McEntee (who even before January 6 was making a willingness to invoke the Insurrection Act a litmus test for hiring at DOD), and Jeffrey Clark.

The series, thus far, skirts the language of authoritarianism and fascism.

At the core of the stories is that Trump is going to use a second term for retribution, to which the June 15 article is dedicated.

When Donald J. Trump responded to his latest indictment by promising to appoint a special prosecutor if he’s re-elected to “go after” President Biden and his family, he signaled that a second Trump term would fully jettison the post-Watergate norm of Justice Department independence.

“I will appoint a real special prosecutor to go after the most corrupt president in the history of the United States of America, Joe Biden, and the entire Biden crime family,” Mr. Trump said at his golf club in Bedminster, N.J., on Tuesday night after his arraignment earlier that day in Miami. “I will totally obliterate the Deep State.”

These stories admit that Trump did some of this in his first term. But they describe a process of retribution by the guy who got elected — with abundant assistance from Maggie Haberman — on a platform of “Lock her up!,” who breached the norm of judicial independence 24 days into office when he asked Jim Comey to “let this” Mike Flynn “thing go,” as something that took a while to “ramp up.”

In his first term, Mr. Trump gradually ramped up pressure on the Justice Department, eroding its traditional independence from White House political control. He is now unabashedly saying he will throw that effort into overdrive if he returns to power.

Mr. Trump’s promise fits into a larger movement on the right to gut the F.B.I., overhaul a Justice Department conservatives claim has been “weaponized” against them and abandon the norm — which many Republicans view as a facade — that the department should operate independently from the president.

Yet even though Savage did some important reporting on some of this (reporting that was counterbalanced by Maggie’s central role in helping Trump obstruct criminal investigations), these pieces always vastly understate how much politicization Trump pulled off in his first term, and never describe how that politicization continues at the hands of people like Jim Jordan.

In the spring of 2018, Mr. Trump told his White House counsel, Donald F. McGahn II, that he wanted to order the Justice Department to investigate his 2016 rival, Hillary Clinton, and James B. Comey Jr., the former head of the F.B.I. Mr. McGahn rebuffed him, saying the president had no authority to order an investigation, according to two people familiar with the conversation.

Later in 2018, Mr. Trump publicly demanded that the Justice Department open an investigation into officials involved in the Russia investigation. The following year, Attorney General William P. Barr indeed assigned a Trump-appointed U.S. attorney, John Durham, to investigate the investigators — styling it as an administrative review because there was no factual predicate to open a formal criminal investigation.

Mr. Trump also said in 2018 and 2019 that John F. Kerry, the Obama-era secretary of state, should be prosecuted for illegally interfering with American diplomacy by seeking to preserve a nuclear accord with Iran. Geoffrey S. Berman, a former U.S. attorney in Manhattan whom Mr. Trump fired in 2020, later wrote in his memoir that the Trump Justice Department pressured him to find a way to charge Mr. Kerry, but he closed the investigation after about a year without bringing any charges.

And as the 2020 election neared, Mr. Trump pressured Mr. Barr and Mr. Durham to file charges against high-level former officials even though the prosecutor had not found a factual basis to justify any. In his own memoir, Mr. Barr wrote that the Durham investigation’s “failure to deliver scalps in time for the election” eroded their relationship even before Mr. Barr refused Mr. Trump’s baseless demand that he say the 2020 election had been corrupt.

Where Mr. Trump’s first-term efforts were scattered and haphazard, key allies — including Jeffrey B. Clark, a former Justice Department official who helped Mr. Trump try to overturn the 2020 election — have been developing a blueprint to make the department in any second Trump term more systematically subject to direct White House control.

This effort was in no way haphazard!!! Most FBI personnel involved in the Russian investigation, from Jim Comey down to line analysts, had their careers systematically ruined, with Peter Strzok (who, the actual record of the Russian investigation shows, repeatedly took steps to protect Trump and Mike Flynn, even if he disliked Trump) offered up as an example of what will happen to people who don’t meekly just accept their punishment or, better yet, retreat to the private sector. The exceptions were the cyber guys who completely bolloxed the Alfa Bank investigation and people like Bill Barnett, who misrepresented the steps he himself took to provide “proof” of corruption on the Mueller investigation. That precedent has been sustained as right wingers take out other FBI agents deemed insufficiently loyal, like Tim Thibault, who personally opened an investigation into the Clinton Foundation in 2016 but who was targeted last year because in 2020 he didn’t mainline disinformation about Hunter Biden.

Yes, Bill Barr ordered Geoffrey Berman to investigate John Kerry. But he also set up a complex, systematic structure to halt  any investigation into Rudy Giuliani so the President’s lawyer could get dirt from Russian spies, feed it to Scott Brady, who would then push that information into the investigations of Hunter Biden and others. When Berman and Jessie Liu refused to break (after a good deal of bending to Barr’s will), he fired them both.

Barr didn’t just pressure John Durham to prosecute high-level people: He skipped, hand-in-hand, with Durham as they used Russian intelligence to fabricate an attack on Hillary Clinton, the organizing logic of an investigation that swept up private sector people and who had the temerity to research Donald Trump or — worse!! — to help Hillary recover from a hack-and-leak. The effort even took out academic researchers who were simply trying to keep the US safe from Russian hacking. Trump did get DOJ to investigate Hillary, with investigations lasting the entirety of his presidency, and that investigation included precisely the kind of fabricated evidence and coached testimony that NYT imagines is a hypothetical left for Trump’s second term.

To the extent these stories talk about Trump’s pardons, they do so prospectively. There’s no discussion of how the pardons of Mike Flynn and Roger Stone rival any of the most corrupt in US history, but were necessary to prevent DOJ from developing proof that Trump conspired with Russia.

These articles don’t describe how Congress has served as a wing of this politicization, from the leaks to Mike Flynn in 2018 about how to undermine his own investigation to sham hearings — like the one with George Papadopoulos unencumbered by the documents that would have provide evidence of “collusion,” in which he spewed out conspiracy theories that Bill Barr and John Durham quickly got on a plane to chase. These articles don’t describe how the current unrelenting attempt to manufacture an impeachment out of the detritus of Hunter Biden’s life could not have happened if Bill Barr hadn’t made very systematic attempts to enable Trump’s retribution tour in 2020.

And these articles don’t describe the violent threats that have become routine for anyone deemed insufficiently loyal to Donald Trump. The threats Trump deployed against Lisa Page and Marie Yovanovitch — “she’s going to go through some things” — exist on an unrelenting continuum as the threats against Ruby Freeman and Lesley Wolf and Fani Willis and Don Bacon’s wife.

Yes, it’s important to warn about what Trump plans to do with a second term. But calling Trump’s past retribution “haphazard” is a journalistic cop-out, a way to avoid admitting that we don’t yet fully understand how systematic Trump’s past retribution was or — worse — don’t want to come to grips with our own central role in it.

For a warning to be effective, we have to show the human costs of all the past retribution — the thousands of Jan6ers who had their lives ruined, the significant degradation in US national security, the fear, especially the fear among Republicans — costs that no one, no matter how loyal, will ultimately escape.

Andrew DeFilippis Had a Role in the Prosecution of Gal Luft’s Co-Conspirator-1

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James Comer plans to rely on Gal Luft’s testimony in his efforts to gin up conspiracy theories against Joe Biden, even in spite of the indictment against Luft DOJ obtained before James Comer started pursuing his conspiracy theories.

Andrew DeFilippis handled the classified evidence in the Patrick Ho case

Because of that, I want to flag a detail about the Patrick Ho case, the case out of which this one arose.

Ho is the person described as Co-Conspirator-1 in the Luft indictment.

Ho was sentenced on March 25, 2019 for bribing Chadian and Ugandan officials; the former scheme started in a suite in Trump Tower in 2014.

Through a connection, HO was introduced to Cheikh Gadio, the former Minister of Foreign Affairs of Senegal, who had a personal relationship with President Déby. HO and Gadio met at CEFC China’s suite at Trump World Tower in midtown Manhattan, where HO enlisted Gadio to assist CEFC China in obtaining access to President Déby.

Days after Ho was sentenced, the two lead prosecutors on that case, Catherine Ghosh and Daniel Richenthal, flew to Brussels to meet with Luft. As alleged in the indictment, Luft lied to those prosecutors and four FBI agents about both the arms deals and Chinese influence peddling for which he has since been charged.

64. On or about March 28, 2019, in the Southern District of New York, Belgium, and elsewhere outside of the jurisdiction of any particular State or district of the United States, GAL LUFT, the defendant, who is expected to be first brought to and arrested in the Southern District of New York, a matter within the jurisdiction of the executive branch of the Government of the United States, knowingly and willfully made a materially false, fictitious, and fraudulent statement and representation, to wit, LUFT falsely stated during an interview at the United States Embassy in Brussels, Belgium with federal law enforcement officers and prosecutors, in connection with an investigation being conducted in the Southern District of New York, that LUFT had not sought to engage in or profit from arms deals, and instead merely had been asked by an Israeli friend who dealt in arms to check arms prices so that the friend could use this information in bidding on deals, a request that LUFT said he fulfilled by having CC-1 check prices with CC-2 and then relay this information to LUFT–when in fact LUFT had actively worked to broker numerous illegal arms deals for profit involving multiple different countries, both in concert with CC-1 and directly himself, including as described in paragraphs Forty-Four through Fifty-Three above.

[snip]

84. On or about March 29, 2019, in the Southern District of New York, Belgium, and elsewhere outside of the jurisdiction of any particular State or district of the United States, GAL LUFT, defendant, who is expected to be first brought to and arrested in the Southern District of New York, in a matter within the jurisdiction of the executive branch the Government of the United States, knowingly and willfully made a materially false, fictitious, and fraudulent statement and representation, to wit, LUFT falsely stated during an interview at the United States Embassy in Brussels, Belgium with federal law enforcement officers and prosecutors, in connection with an investigation being conducted in the Southern District of New York, that LUFT had tried to prevent CEFC China from doing an oil deal with Iran, that LUFT had been excluded from CEFC China meetings with Iranians, and that LUFT did not know of any CEFC China dealings with Iran while he was affiliated with the company–when in fact, including as described above in paragraphs Sixty-Six through Eighty, LUFT personally attended at least one meeting between CEFC China and Iranians and assisted in setting up additional such meetings for the purpose of arranging deals for Iranian oil, and also worked to find a buyer of Iranian oil while concealing its origin.

Starting in early 2018, DeFilippis handled the classified evidence on the Ho case — both CIPA and a FISA order. He would have spent a great deal of time reviewing what the spooks had obtained on Ho and his associates, undoubtedly including Luft.

Andrew DeFilippis investigated John Kerry for a year

DeFilippis’ efforts on the Ho case took place in parallel with his efforts to gin up a criminal investigation against John Kerry. Here’s how Geoffrey Berman described being ordered to do that by Main Justice.

On May 9, the day after the second Trump tweet, the co-chiefs of SDNY’s national security unit, Ferrara and Graff, had a meeting at Main Justice with the head of the unit that oversees counterintelligence cases at DOJ, which is under the National Security Division.

He said that Main Justice was referring an investigation to us that concerned Kerry’s Iran-related conduct. The conduct that had annoyed the president was now a priority of the Department of Justice. The focus was to be on potential violations of the Logan Act.

[snip]

From the outset, I was skeptical that there was a case to be made. I knew enough about the Logan Act to have strong doubts. Politicians from both sides of the aisle have talked about it from time to time, suggesting that some opponent is in violation of it. It never goes anywhere.

But I figured if they bring us a possible case, we’ll do our best. We’ll look into it. We brought a prosecutor from the national security unit, Andrew DeFilippis, into the investigation.

Trump, meanwhile, kept on tweeting. “John Kerry had illegal meetings with the very hostile Iranian Regime, which can only serve to undercut our great work to the detriment of the American people,” he wrote that September. “He told them to wait out the Trump Administration! Was he registered under the Foreign Agents Registration Act? BAD!”

DeFilippis’ efforts extended into 2019, overlapping with the trial of Ho and the interview with Luft. National Security prosecutors at Main Justice kept pressuring SDNY to advance the investigation into Kerry, but first, Berman had DeFilippis research whether the Logan Act would be chargeable even if Kerry had committed it.

The next step would have been to conduct an inquiry into Kerry’s electronic communications, what’s known as a 2703(d) order. That would have produced the header information—the to, from, date, and subject fields—but not the contents. I decided that before moving forward, it made sense to evaluate whether we would ever have a viable, appropriate charge that matched up with Kerry’s alleged conduct.

At the risk of stating the obvious, under our system of law, pissing off the president is not a chargeable offense. I asked DeFilippis to conduct additional legal research into the Logan Act and other potentially applicable theories. “Look, we’re talking about going to the next step here,” I said.

“But before we do any further investigation, I want to know what the law is on the Logan Act. Let’s say we gather additional documents—I want to know, how is that helping us?”

I wanted to answer the question, even if these things happened, was it a crime? Let’s cut to the chase and find that out, because we’ve got plenty of other work to do and I don’t want us to just be spinning our wheels on this.

For the next several months, DeFilippis conducted extensive research into the Logan Act as well as statutes relating to possible criminal ethics violations by former senior government employees.

On April 22, 2019, Trump tweeted, “Iran is being given VERY BAD advice by @JohnKerry and people who helped him lead the U.S. into the very bad Iran Nuclear Deal. Big violation of Logan Act?”

The tweet was in the morning. That afternoon, Ferrara got a call from Main Justice. He was told that David Burns, the principal deputy assistant attorney general for national security, wanted to know why we were delaying. Why had we not proceeded with a 2703(d) order—the look into Kerry’s electronic communications?

The next day, Burns spoke to Ferrara, Graff, and DeFilippis and repeatedly pressed them about why they had not submitted the 2703(d) order. The team responded that additional analysis needed to be done before pursuing the order.

SDNY decided not to pursue the case against Kerry in fall of 2019.

We spent roughly a year exploring whether there was any basis to further investigate Kerry. Memos were written, revised, and thoroughly discussed.

Our deep dive into the Logan Act confirmed why no one has ever been successfully prosecuted under it in the more than 220 years it has been on the books: the law is not useful. It definitely does not prohibit a former US secretary of state from talking to a foreign official. We did not find that Kerry violated any ethics statutes or any laws having to do with the improper handling of classified material.

In September 2019, DeFilippis advised the National Security Division at Main Justice that we would not be pursuing the case further. He had earlier attempted to tell the specific NSD attorney assigned to the case of our decision, but he couldn’t connect because that attorney was engaged in another matter: the Craig trial.

Sometime after that, DeFilippis became the lead prosecutor on the Durham team, leading the prosecution of Michael Sussmann.

Andrew DeFilippis oversaw the most abusive parts of the John Durham prosecution

Over the course of the Michael Sussmann prosecution, DeFilippis and his prosecution team:

As noted above, Geoffrey Berman boasted that the investigation into Kerry didn’t leak. Even ignoring the inexplicably perfect concert between Alfa Bank’s efforts and Durham’s, it’s not clear the same can be said about the Durham investigation.

And it’s not just that DeFilippis routinely tried to introduce evidence that served his narrative rather than matched the facts. It’s that DeFilippis repeatedly — most notably in the alleged complaint that researchers working on a DARPA project would attempt to identify which Russians were interfering in the US election — proved more sympathetic of Russian efforts to help get Trump elected than to conduct an ethical prosecution.

Last August, shortly before Durham confessed the utter humiliation of his team at the hand of Sergei Millian, DeFilippis withdrew from the Durham team with almost no notice, left DOJ, and returned — in a Special Counsel role, not as Partner — to Sullivan & Cromwell.

These are just data points. There is no reason, yet, to believe that DeFilippis continues to unethically gin up conspiracy theories against Democrats.

But they are data points I thought worth collecting in one place.

Beryl Howell’s Biggest Secret: Whether Bill Barr Killed the Egyptian Bank Investigation

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As I noted, Judge Beryl Howell ended her tenure as DC’s Chief Judge yesterday decisively, ruling that Evan Corcoran must testify about topics she has found to be crime-fraud excepted.

By dint of age and tenure, Howell was appointed Chief Judge just in time to preside over the most remarkable set of investigations against a sitting and former President: the Mueller investigation and certain follow-on investigations, the January 6 investigation, and the stolen documents investigation.

And now Jeb Boasberg gets to pick up her work. Like Howell, he’s an Obama appointee; he already did a stint presiding over the FISA Court.

Howell’s decision requiring Corcoran to testify elicited all sorts of superlative language about the import of the decision. I’ll return to the number of other Trump lawyers against whom Howell has already approved legal process. The Corcoran decision really is not that unusual in the twin Jack Smith investigations. Or even in the other grand juries over which Howell has presided.

Indeed, the fruits of a warrant Howell approved on August 1, 2017 as part of an investigation into suspicious payments (especially those from Viktor Vekelselberg) to Michael Cohen’s Essential Consultants’ bank account, will likely yield Donald Trump’s first criminal indictment next week. Referrals of part of the resulting investigation to SDNY led to Cohen’s 2018 prosecution, including on the hush payments scheme. NYC has started making security preparations for Trump’s arrest on the same campaign finance scheme next week.

To repeat: a fairly uncontroversial decision Howell made six years ago — to approve the first of a series of warrants targeting Trump’s personal lawyer, Michael Cohen — will have played a part if and when Alvin Bragg indicts Trump next week.

Howell’s colleagues razzed her yesterday about all the secrets she may keep from the past seven years.

Howell seemed to freeze in her seat as the most senior jurist on the court, Judge Paul Friedman, publicly described her still-secret rulings in grand jury-related matters, pointing to press accounts of Howell ruling in favor of Trump in a contempt dispute over his office’s response to a grand jury subpoena for classified records and against Trump on an effort to assert attorney-client privilege in the same probe.

“What fascinating issues!” Friedman declared wryly as Howell remained stone-faced on the dais. “We’d all love to read her opinions, but we can’t,” he said to laughter.

Friedman did note, however, that Howell had issued 100 secret grand jury opinions during her seven-year term.

Another colleague, Judge Tanya Chutkan, also alluded to Howell’s work resolving disputes related to the court’s grand juries over the past seven years.

“There’s so much work Chief Judge Howell has done that we may never know about,” Chutkan said.

In an interview with Zoe Tillman, though, Howell suggested she expects some of it will be unsealed.

Howell said she was still processing the past seven years.

“A lot of my work in the grand jury arena remains under seal, so it is going to be very hard to say what my legacy will be until after some of that work gets unsealed and people are able to evaluate it,” she said.

I expect a good deal of her recent work will be unsealed, in fairly short order.

It bears reminding, though, that Judge Howell attempted to share information about what she had been overseeing in a grand jury with the House Judiciary Committee in 2019. In a 75-page opinion invoking the Federalist papers and defending separation of powers, Howell issued a ruling that should have been uncontroversial: that the House could have grand jury materials in contemplation of impeachment.

In her opinion, Howell cited a number of the things the House might get with grand jury testimony. They included Paul Manafort’s description of how Trump ordered him to chase the documents stolen from Hillary.

Again, the Mueller Report recounts an incident when then-candidate Trump spoke to associates indicating that he may have had advance knowledge of damaging leaks of documents illegally obtained through hacks by the Russians, stating “shortly after WikiLeaks’s July 22, 2016 release of hacked documents, [Manafort] spoke to Trump [redacted]; Manafort recalled that Trump responded that Manafort should [redacted] keep Trump updated. Deputy campaign manager Rick Gates said that . . . Manafort instructed Gates [redacted] status updates on upcoming releases. Around the same time, Gates was with Trump on a trip to an airport [redacted], and shortly after the call ended, Trump told Gates that more releases of damaging information would be coming.” Id. at II-18 (footnotes omitted) (redactions in original, with citation in footnote 27 redacted due to grand jury secrecy).

They included Don Jr’s refusal to testify to the grand jury about the June 9 meeting.

[A] discussion related to the Trump Tower Meeting contains two grand jury redactions: “On July 12, 2017, the Special Counsel’s Office [redacted] Trump Jr. [redacted] related to the June 9 meeting and those who attended the June 9 meeting.” Id. at II-105 (redactions in original).

They included Manafort’s details of his discussions with Konstantin Kilimnik.

The Mueller Report further recounts evidence suggesting that then-candidate Trump may have received advance information about Russia’s interference activities, stating:

Manafort, for his part, told the Office that, shortly after WikiLeaks’s July 22 release, Manafort also spoke with candidate Trump [redacted]. Manafort also [redacted] wanted to be kept apprised of any developments with WikiLeaks and separately told Gates to keep in touch [redacted] about future WikiLeaks releases. According to Gates, by the late summer of 2016, the Trump campaign was planning a press strategy, a communications campaign, and messaging based on the possible release of Clinton emails by WikiLeaks. [Redacted] while Trump and Gates were driving to LaGuardia Airport. [Redacted], shortly after the call candidate Trump told Gates that more releases of damaging information would be coming.

Id. at I-53–54 (footnotes omitted) (redactions in original, with citation in referenced footnote 206 redacted due to grand jury secrecy).

But Bill Barr’s DOJ, after having challenged the uncontroversial notion that the House should be permitted to receive what was obviously an impeachment referral, appealed to the DC Circuit, lost, and then stalled long enough to outlast Congress. Bill Barr effectively refused to let Congress receive and act on an impeachment referral. But Howell did her constitutionally mandated part.

It’s an action DOJ took during precisely the period when Barr was stalling long enough to outlast Congress that, in my mind, is the biggest secret Howell takes from her tenure: What happened with an investigation into a suspected $10 million donation in September 2016 from an Egyptian-owned bank that allowed Trump to stay in the race when he was running out of funds. Though aspects of the investigation were dribbled out in grand jury unsealings from Howell along the way, CNN first confirmed the Egyptian bank angle in 2020.

For more than three years, federal prosecutors investigated whether money flowing through an Egyptian state-owned bank could have backed millions of dollars Donald Trump donated to his own campaign days before he won the 2016 election, multiple sources familiar with the investigation told CNN.

The investigation, which both predated and outlasted special counsel Robert Mueller’s probe, examined whether there was an illegal foreign campaign contribution. It represents one of the most prolonged efforts by federal investigators to understand the President’s foreign financial ties, and became a significant but hidden part of the special counsel’s pursuits.

The investigation was kept so secret that at one point investigators locked down an entire floor of a federal courthouse in Washington, DC, so Mueller’s team could fight for the Egyptian bank’s records in closed-door court proceedings following a grand jury subpoena. The probe, which closed this summer with no charges filed, has never before been described publicly.

Prosecutors suspected there could be a link between the Egyptian bank and Trump’s campaign contribution, according to several of the sources, but they could never prove a connection.

Shortly after the investigation was killed, Barr went up to Hillsdale College and ranted about prosecuting corruption.

This criminalization of politics is not healthy. The criminal law is supposed to be reserved for the most egregious misconduct — conduct so bad that our society has decided it requires serious punishment, up to and including being locked away in a cage. These tools are not built to resolve political disputes and it would be a decidedly bad development for us to go the way of third world nations where new administrations routinely prosecute their predecessors for various ill-defined crimes against the state. The political winners ritually prosecuting the political losers is not the stuff of a mature democracy.

The Justice Department abets this culture of criminalization when we are not disciplined about what charges we will bring and what legal theories we will bless. Rather than root out true crimes — while leaving ethically dubious conduct to the voters — our prosecutors have all too often inserted themselves into the political process based on the flimsiest of legal theories. We have seen this time and again, with prosecutors bringing ill-conceived charges against prominent political figures, or launching debilitating investigations that thrust the Justice Department into the middle of the political process and preempt the ability of the people to decide.

This criminalization of politics will only worsen until we change the culture of concocting new legal theories to criminalize all manner of questionable conduct. Smart, ambitious lawyers have sought to amass glory by prosecuting prominent public figures since the Roman Republic. It is utterly unsurprising that prosecutors continue to do so today to the extent the Justice Department’s leaders will permit it.

Even at the time — with the Mike Flynn, Roger Stone, and Paul Manafort cases — it was clear that Barr was engaged in fairly unprecedented corruption of DOJ to protect Trump. Since then, we’ve learned of more. Most notably, as we await a potential Bragg indictment, Geoffrey Berman described how, after Cohen pled guilty in the hush payment case, Barr not only shut down any investigation of Trump on the charge, but attempted to reverse Cohen’s own prosecution.

While Cohen had pleaded guilty, our office continued to pursue investigations related to other possible campaign finance violations. When Barr took over in February 2019, he not only tried to kill the ongoing investigations but—incredibly—suggested that Cohen’s conviction on campaign finance charges be reversed.

Barr summoned Rob Khuzami in late February to challenge the basis of Cohen’s plea as well as the reasoning behind pursuing similar campaign finance charges against other individuals. Khuzami was told to cease all investigative work on the campaign finance allegations until the Office of Legal Counsel, an important part of Main Justice, determined there was a legal basis for the campaign finance charges to which Cohen pleaded guilty—and until Barr determined there was a sufficient federal interest in pursuing charges against others.

Barr even attempted to put supervision of the case in the hands of Richard Donoghue, as he did do with the Rudy Giuliani case.

Given that Barr didn’t think Trump should be prosecuted for the Cohen illegal contribution case, there’s no telling what he thought of the suspected Egyptian bank donation. Certainly, he was in complete control of DC USAO at the time, if he wanted to shut down an otherwise viable investigation.

We are, as Howell herself said, likely to know much of what she has been doing for the last two years. But her biggest secret is whether Bill Barr prevented DOJ from fully attempting to learn whether Donald Trump was beholden to Egypt or some other foreign country for the entirety of the time he served as President.

“Tentacles” with the “Potential to Spiral:” Geoffrey Berman, Bill Barr, and Hunter Biden’s Dick Pics

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Given recent news relating to Rudy Giuliani and Hunter Biden[‘s dick pics], I want to belatedly look at what Geoffrey Berman’s book, Holding the Line, says about the Lev Parnas investigation.

Berman’s memoir is, as all autobiographies are, a complex narrative. There are many reasons why that’s true in this case. We all tell ourselves and others false stories about ourselves, often as not unconsciously. There are one or two points in Berman’s story where he makes claims belied by publicly-released documents; I assume those are inadvertent, but they serve as interesting signposts of the limits of his own firsthand knowledge of particular matters. Someone with access to classified or confidential information will be forced, as Berman seems to have been, to either nod to or entirely avoid big parts of the story, probably a really big factor in the matters I write about below. And finally, famous, powerful people shade the truth for posterity and to hide inconvenient truths. There’s a whole bunch of that in this book, a long form effort to pitch his association with the Trump Administration, not unfairly, as a worthwhile opportunity to do a lot of important work holding sex traffickers accountable (including, but not limited to, Jeffrey Epstein) and in key moments, protecting investigations from the interference of all three of Trump’s Attorneys General.

How Berman tells this story — how anyone tells their autobiography — can say as much as the facts relayed.

The most fascinating narrative construction in Berman’s autobiography comes in his discussion of Bill Barr’s confirmation.

It appears immediately after Berman’s recounting of DOJ’s effort to force SDNY to prosecute John Kerry for interfering in Trump’s plan to overturn the Iran Deal. (The SDNY prosecutor in charge of that effort, Andrew DeFilippis, played the most abusive role on John Durham’s team and resigned unexpectedly before the Igor Danchenko trial, but that’s obviously not part of the story of what transpired at SDNY.) Given the timeline laid out in Berman’s book, in which SDNY’s investigation into Kerry lasted for about a year starting on May 9, 2018, that effort must have continued until May 2019. In fact, Berman ties pressure to bring charges from DOJ on April 23, 2019 with Barr: “By the time we got pressured in April 2019, on the same day as one of the Trump tweets, Bill Barr was the attorney general.”

From there, Berman shifts back in time to talk about the turnover at Attorney General. After a short anecdote about Matt “Big Dick Toilet Salesman” Whitaker trying to glom onto Berman’s good press in NY, Berman introduces Barr’s confirmation by suggesting polarization was the cause of Barr’s close confirmation vote in the Senate.

In one marker of how much more polarized our politics have become, Barr’s first confirmation hearing in 1991 was described at the time as “placid.” He was approved unanimously by the Senate Judiciary Committee, then confirmed by the full Senate in a voice vote. When Barr’s second nomination went before the Senate early in 2019, he was confirmed, but in a roll-call vote—with the 54–45 count mostly breaking down along party lines.

This was, of course, not a mark of polarization. It was a mark of Barr’s unsuitability to be Attorney General, and it was specifically attributed to his audition for the job in the form of a memo, seemingly based entirely on claims Barr picked up watching Fox News, attacking Mueller’s investigation, as well as his role in shutting down the Iran-Contra inquiry. Spinning the close vote, in a book released in 2022, as partisanship allows Berman to suggest that the close vote wasn’t entirely justified. That, in turn, makes the insipid note Berman wrote welcoming Barr to the post (a note which presumably would be accessible under FOIA) less ridiculous.

I was elated that we were getting somebody to come in to take Whitaker’s spot, and I had high hopes. The new boss was experienced and highly intelligent. He had a reputation as an institutionalist, someone who would respect the traditions and norms of the department. Most of all, I believed Barr would be a steady hand in turbulent times.

I sent him a handwritten note, relating that in his first tour of duty he had signed my certificate when I started out as a young AUSA. I said we had never had an opportunity to meet, but I was looking forward to that soon.

I added that he was “just what the doctor ordered.” Like so many other establishment Republicans, I thought he would clean things up at DOJ and respect the rule of law.

Blech! Yick!

Then, immediately after describing this suck-up note, Berman describes the reason he, of all people, should have known better then to think Barr would “respect the rule of law”: because he knew, as someone who had worked on the Iran-Contra investigation, Barr’s past history interfering in an investigation of the President.

Berman tells a superb anecdote that I hope is not embellished about how, the only time Barr was in Berman’s office, the Attorney General saw a picture of Berman with Iran-Contra Independent Counsel Lawrence Walsh, on whose team Berman had worked very early in his career. As Berman describes (there’s an extended history of Iran-Contra in-between — go buy the book), Barr simply stared at the picture for a minute.

The one time that Barr met with me in my personal office at the Southern District involved an uncomfortable moment, and it was telling. It happened after he noticed a photo on the wall of me with Lawrence Walsh, the independent counsel in the Iran-Contra affair. It was signed, “Thank you Geoff, for all your good work.”

[snip]

That day in my office, Barr fixed his gaze on the picture of Walsh and me. He looked at it for almost a minute straight without saying a word. Just stared with a sour look on his face. It was awkward as hell. [my emphasis]

Only after describing what Berman suggests was an unfairly close confirmation vote, his own sycophantic note to Barr after it, and this exchange of indeterminate date, does Berman turn to what he calls (justifiably) a philosophical divide between him and Barr over the role of presidential power. After describing Barr’s November 2019 Federalist Society speech in which he falsely claimed that Presidential powers had been encroached over the years, Berman reviewed Donald Ayer’s June 2019 article explaining “why Bill Barr is so dangerous.”

There were critics—among them some lawyers who worked in prior Republican administrations—who felt that Barr soft-pedaled his views during the confirmation process and later acted in extreme ways on Trump’s behalf. One of them was Donald Ayer, a highly regarded lawyer who served in the administrations of Ronald Reagan and George H. W. Bush.

In a 2019 essay in The Atlantic, Ayer wrote, “In securing his confirmation as attorney general, Barr successfully used his prior service as attorney general in the by-the-book, norm-following administration of George H. W. Bush to present himself as a mature adult dedicated to the rule of law who could be expected to hold the Trump administration to established legal rules. Having known Barr for four decades, including preceding him as deputy attorney general in the Bush administration, I knew him to be a fierce advocate of unchecked presidential power, so my own hopes were outweighed by skepticism that this would come true.”

Ayer’s piece appeared after the release of the Mueller report, which many believed Barr had both preempted and misrepresented. Ayer continued, “But the first few months of his current tenure, and in particular his handling of the Mueller report, suggest something very different—that he is using the office he holds to advance his extraordinary lifetime project of assigning unchecked power to the president.”

Much of this political back-and-forth was beyond the scope of my concerns in the Southern District. I was a working prosecutor, and my focus was to lead the dedicated and hardworking public servants under me who came into work every day and busted their asses. My political views—and whatever my thoughts might have been on Barr’s high-altitude insights into the Constitution—were beside the point.

But the fact was, Barr’s top-down, unitary theories of power extended to how he viewed himself, how he ran the Justice Department, and how he felt about the people who worked for me. If Barr believed that the president could properly instruct the DOJ to take actions involving specific individuals, including his friends and enemies, that was a concern of mine. [my emphasis]

The narrative structure of this goes: Barr’s close February 2019 confirmation vote, Berman’s insipid note, the undated meltdown when Barr saw a picture of Berman with Walsh, Barr’s November 2019 discussion of views already evident in his June 2018 audition memo, and finally Ayer’s June 2019 description of the danger of Bill Barr, which had most recently been exhibited by his March 2019 response to the Mueller report. In sum, it provides a permissibly partisan frame in which to criticize Barr. But that jumbles the real timeline. Such a narrative structure allows Berman to introduce Barr’s authoritarian views in such a way as to absolve a former member of Lawrence Walsh’s team for writing a FOIAble letter claiming Barr was “just what the doctor ordered” around February 2019. It’s not that the Democrats were right to vote against Barr, the narrative allows Berman to suggest, it’s just that Ayer hadn’t written his condemnation of Barr yet.

And for some reason, Berman puts that exchange in his office, of indeterminate date, in the middle of it all. The single time, Berman says, that Barr visited Berman’s office.

It’s awfully curious that Berman doesn’t date that meeting, because Berman’s story of the Parnas and Fruman prosecution doesn’t describe the visit to SDNY that Barr was reported to have made, in real time, the day that Rudy’s flunkies were indicted — a visit to New York that also included a meeting with Rupert Murdoch. Berman actually tells the story of that day twice, first in conjunction with a contentious fight with Main Justice over whether SDNY must join in the effort to assume Trump’s defense in Cy Vance’s investigation, then in his telling of the Parnas and Fruman indictment. Both were going on at the same time. But in neither telling does Berman describe that the Attorney General showed up in New York, purportedly to meet with people like him and people who worked for him, at a time when Berman was in at least one really contentious fight with the Attorney General’s office.

Maybe Barr went to New York to visit SDNY and got lost at Murdoch’s place and so never showed up??

The Parnas and Fruman story, as told here, begins on October 8, when Berman got pulled out of Yom Kippur service to be told that Parnas and Fruman had just booked one way tickets to Europe.

What he told me was that Lev Parnas and Igor Fruman had just bought airline tickets for travel the next day to Frankfurt, Germany—one-way tickets—and we had to decide whether to arrest them before they boarded the plane.

As Berman described it no one else on the prosecution team supported indicting Rudy’s flunkies before they boarded a plane.

It was quickly apparent to me that I was in a minority of one. I would describe one call as almost like an intervention. I answered and six people were on the line: Audrey Strauss, the chief of the criminal division, Laura Birger, Chief Counsel Craig Stewart, Ilan Graff, Russ Capone, and Ted Diskant. Every one of them said we should let them travel.

Berman got the NY FBI Assistant Director, William Sweeney, to agree with him, and then (having apparently thus won the argument with the line prosecutors) the team worked overnight to complete the indictment, finishing (if I have my timeline correct) less than three hours before the announcement of Barr’s visit to NY.

Donaleski and Roos came into the office at about 11:00 p.m., and I joined them with coffee I had made at my apartment. (The local coffee shops were closed.) They drafted the indictment through the night, with review and revision by others either in the office or from home. Because the charges included campaign finance violations, we needed sign-off from the career attorneys at Main Justice’s Public Integrity Section. Diskant was on the phone with them at 4:00 a.m. and got the approval.

At 7:00 a.m., everyone came into the office for a final edit. At 9:00 a.m., the draft was finished, and [Rachel] Donaleski and [Nicholas] Roos went before the grand jury. By 2:00 p.m., they returned an indictment. Time to spare!

In a later post I’ll come back to that 4AM approval from Public Integrity. But note that Berman doesn’t describe getting approval from anyone else at Main Justice, even though after the indictment DOJ confirmed that Barr had been briefed from shortly after his confirmation. Just career attorneys at Public Integrity at 4AM.

Having told the heroic story of how prosecutors pulled together a last minute indictment, Berman then goes back and explains where the investigation came from. It came not from a referral from Federal Election Commission (which Republicans had made entirely dysfunctional at the time), but because SDNY’s Public Integrity section read the complaint that was submitted to the FEC.

Our public corruption unit monitors complaints filed with the FEC for possible investigation. Nick Roos read the complaint and persuaded Capone and Diskant to open the investigation. Roos and Donaleski began to put the pieces together. We confirmed that Global Energy was nothing but a shell with no business and no capital investment. Lev and Igor ran foreign money through it for the purpose of contributing to political candidates and committees in the United States.

The description of the part of the indictment relating to the firing of Marie Yovanovitch — the part of the indictment that was shelved in 2020 and which just died without charges — covers several pages. The first paragraph starts with a sentence — about the Russian donor behind some of the influence peddling — that should be in the prior paragraph. Then it lumps in the stuff implicating Rudy as a mere addition, almost an afterthought (probably necessitated, in part, by DOJ guidelines about uncharged persons).

[Andrey] Muraviev’s money was also used to donate to statewide races in Nevada. In addition, Lev and Igor contributed money, also through straw donors, to Pete Sessions, who at the time was a congressman from Texas and chairman of the powerful House Rules Committee. The outreach to Sessions was connected to their effort to get Marie Yovanovitch fired from her post as US ambassador to Ukraine. [my emphasis]

This is how it appears in the indictment:

In addition to the contributions made and falsely reported in the name of GEP, LEV PARNAS and IGOR FRUMAN, the defendants, caused illegal contributions to be made in PARNAS’s name that, in fact, were funded by FRUMAN, in order to evade federal contribution limits. Much as with the contributions described above, these contributions were made for the purpose of gaining influence with politicians so as to advance their own personal financial interests and the political interests of Ukrainian government officials, including at least one Ukrainian government official with whom they were working. For example, in or about May and June 2018, PARNAS and FRUMAN committed to raise $20,000 or more for a then-sitting U.S. Congressman (“Congressman-1”), who had also been the beneficiary of approximately $3 million in independent expenditures by Committee-1 during the 2018 election cycle. PARNAS and FRUMAN had met Congressman-1 at an event sponsored by an independent expenditure committee to which FRUMAN had recently made a substantial contribution. During the 2018 election cycle, Congressman-1 had been the beneficiary of approximately $3 million in independent expenditures by Committee-1. At and around the same time PARNAS and FREEMAN committed to raising those funds for Congressman-1, PARNAS met with Congressman-1 and sought Congressman-1’s assistance in causing the U.S. Government to remove or recall the then-U.S. Ambassador to Ukraine. [my emphasis, footnote omitted]

After a few paragraphs about Sessions’ excuses for deciding out of the blue that Yovanovitch should be fired, Berman describes that SDNY was still “exploring” whether this meeting might one day become a FARA charge.

The indictment made reference to this meeting with Sessions. It included an allegation that Lev, at the request of a Ukrainian official, had sought the removal of the US ambassador to Ukraine and had met with a congressman (Sessions) to solicit his support for the removal. We were still exploring whether these allegations might later form the basis of a FARA charge against Lev and others who, through lobbying or media appearances, sought the removal of Yovanovitch at the request of a foreign official without registering as a foreign agent.

As Berman describes it, when they included this Pete Sessions donation in the indictment (a footnote describes that the contribution was made under Fruman’s name, but misspelled), they were “exploring” the possibility that it might tie to illegal foreign influence peddling in part by “others who … sought the removal of Yovanovitch at the request of a foreign official without registering as a foreign agent.” Without naming Rudy yet, this passage suggests that they were only beginning to consider whether Rudy had committed a FARA violation when they prepared an indictment overnight on October 9 — with approval only from Public Integrity, not the FARA people in National Security Division who would one day get involved in the investigation — to arrest Rudy’s grifters before they flew to Europe.

Remember: by November 4, less than a month later, SDNY got warrants targeting Rudy, investigating FARA, 18 USC 951, and conspiracy.

I wonder whether some of the prosecutors opposed arresting Parnas and Fruman because they wanted to see what would happen at the meeting with Dmitry Firtash and what other Ukrainian government officials were involved besides Yuri Lutsenko.

Some paragraphs later, after describing Rudy’s role in the Fraud Guarantee stuff (which was superseded later, in 2020, when the Yovanovitch firing was taken out), Berman acknowledges that Rudy had also been trying to get Yovanovitch fired, effectively confirming that Rudy was one of the “others who” had tried to get Yovanovitch fired.

Yovanovitch’s removal was a major goal of Giuliani’s—and of other Trump allies—who believed that she was an obstacle to their efforts to unearth damaging information about the then presidential candidate Joe Biden and his son Hunter. The ambassador was considered an anticorruption advocate, and some Ukrainian officials—including those working with Lev and Igor—wanted her moved aside.

And then, a few paragraphs after that, Berman acknowledges that Parnas and Fruman were some of the agents mentioned in the articles of impeachment alleged to be soliciting Ukrainian influence to help him get reelected, even while asserting “we had no role to play” in impeachment.

It was, of course, impossible for me or anyone else to be unaware of how politically charged all of this was. The nation was in the third year of Donald Trump’s combustible presidency, and the 2020 election cycle was underway. Two months after the indictment of Lev and Igor, the House of Representatives voted to impeach President Trump.

The first of the two articles of impeachment alleged that the president “solicited the interference of a foreign government” to take actions that would “benefit his reelection, harm the election prospects of a political opponent, and influence the 2020 United States Presidential election to his advantage.” The foreign government was Ukraine, and the reference to Trump’s being assisted by “his agents within and outside the United States Government” obviously would have to include Lev and Igor.

Impeachment is a political process. We had no role to play in it.

This passage is almost the entirety of any discussion in the entire book of the Ukraine impeachment. Berman makes no mention of the months of focus leading up to impeachment.

Of particular note, he makes no mention of the release of the Perfect Transcript in late September, less than two weeks before SDNY suddenly charged Parnas and Fruman. He doesn’t describe whether the release of the transcript alerted SDNY (if they didn’t already know) how some of the matters under investigation by SDNY — Parnas’ ask of Pete Sessions to help oust Yovanovitch — were centrally connected to the impeachment, with Trump raising them explicitly with Ukraine’s president.

I heard you had a prosecutor who was very good and he was shut down and that’s really unfair. A lot of people are talking about that, the way they shut your very good prosecutor down and you had some very bad people involved. Mr. Giuliani is a highly respected man. He was the mayor of New York City, a great mayor, and I would like him to call you. I will ask him to call you along with the Attorney General. Rudy very much knows what’s happening and he is a very capable guy. If you could speak to him that would be great. The former ambassador from the United States, the woman, was bad news and the people she was dealing with in the Ukraine were bad news so I just want to let you know that. The other thing, There’s a lot of talk about Biden’s son, that Biden stopped the prosecution and a lot of people want to find out about that so whatever you can do with the Attorney General would be great. Biden went around bragging that he stopped the prosecution so if you can look into it … It sounds horrible to me.

[snip]

Well, she’s going to go through some things. I will have Mr. Giuliani give you a call and I am also going to have Attorney General Barr call and we will get to the bottom of it. I’m sure you will figure it out. I heard the prosecutor was treated very badly and he was a very fair prosecutor so good luck with everything. [my emphasis]

Berman also makes no mention of the references to Barr that Trump made while trying to coerce Volodymyr Zelenskyy, including those bolded above. Each reference to Barr here appears in close proximity to Trump’s attacks on Yovanovitch, that part of the Parnas indictment that SDNY was “exploring” whether it constituted a FARA violation.

Berman makes no mention of any of that. “We had no role to play” in impeachment.

But all of that had to have been central considerations to the prosecution, not least on October 8 when Berman interrupted his Yom Kippur worship to engage in a debate about whether they should pull together an indictment to charge Parnas and Fruman before they left the country, and not just to pull together an indictment, but to include the traces of a Yovanovitch charge which (Berman admits here) they were “still exploring whether these allegations might later form the basis of a FARA charge against Lev and others.”

As he describes it, they just called some folks in Public Integrity at 4AM to get approval and included the Yovanovitch charge which could implicate the investigation that would become Trump’s first impeachment.

Way before this narrative of the case in the book, and then briefly afterwards, Berman describes how Barr’s Chief of Staff inquired before the arrest announcement (what would have been October 10) about what SDNY was going to do, then bitched out Berman after the fact because it got a whole lot of press attention.

A few hours before we were to announce the charges, Rabbitt asked me, “What are you planning to do for publicity for Lev and Igor?” I said, “I’m going to have a press statement,” and he said, “Okay. Fine.”

Later that day, we made our statement. It was in front of cameras, and it got huge coverage. When I got back to my desk, Rabbitt called me up, livid. “I thought you said it was going to be a press statement?” he barked.

I replied, “I didn’t take questions. It was a press statement. If it were a press conference, we would have had questions.” I thought that was perfectly legit, but Rabbitt wasn’t satisfied. The exchange with him was a little uncomfortable, but the Lev and Igor indictments came at a fortuitous time. (It just happened that way; we didn’t intend it and couldn’t have anticipated the international travel that prompted their arrests.) If Main Justice took action against me in any way, or even just got in a public flap, the media would have assumed it was retribution after we indicted these two individuals who moved in Republican circles. It would have played as blowback from the arrests.

After we got press attention on a big matter and our visibility was high, I always felt sort of bulletproof, at least temporarily. It gave me a couple more months of grace.

[Fifteen page break, including the description of the Parnas and Fruman indictment laid out above]

Except for the concern that we not have a press conference to announce the indictments, Main Justice and Barr did not interfere in the prosecution of Lev and Igor.

The longer description of the exchanges with Brian Rabbitt comes fifteen pages before the reference back to it. In context, the reference to being “bulletproof” seems to pertain to the conflict with Barr’s people over the Vance intervention. By the time we get through the description of the Parnas charges (which Berman put in an entirely different chapter), a reader might well have forgotten that Berman recognized a high profile press conference of the sort that Barr’s Chief of Staff complained about would make it harder to fire him.

But it all makes more sense when you consider the decision to indict Rudy’s grifters overnight with approval only from career officials who happened to be working at 4AM in Public Integrity. It all makes more sense when you think about the reported visit Barr made to SDNY that Berman never mentions (which, admittedly, may never have happened).

Berman’s brief reference back to that Rabbitt complaint appears immediately after he writes, “Impeachment is a political process. We had no role to play in it,” but in a new section. It kicks off a four page section, covering events starting in January 2020 and lasting (based on documents released under FOIA) well past March, describing efforts Barr made to stymie any further investigation from SDNY. Barr wasn’t so much trying to protect Rudy, Berman describes: he thought Barr viewed the President’s personal lawyer as a potential rival. Rather, the Attorney General was trying to prevent “tentacles” from reaching others.

Main Justice and Barr did not interfere in the prosecution of Lev and Igor.

[snip]

To the extent all of this tarnished Rudy, I think Barr was fine with it. But the case had tentacles. It raised other questions and suggested new areas of inquiry. It potentially led to other subjects. And Barr certainly did involve himself in those potentialities.

[snip]

He has no way of knowing where it might go—and really, nobody does—but it looks to him as if it has the potential to spiral. [my emphasis]

In the four pages following this introduction, Berman describes how Barr effectively prevented SDNY from going any further with their investigation, first by assigning the next steps of the Rudy investigation to EDNY (to Richard Donoghue, with whom Barr had tried to replace Berman to kill the Michael Cohen investigation, but who may have gone on to save the Republic on January 3, 2021). That reportedly had the effect of prohibiting SDNY from investigating Rudy’s meetings with Andrii Derkach, who was dangling dirt that closely resembled what would come to be known as the “Hunter Biden” “laptop.” Berman describes what likely is the Derkach investigation this way:

In addition, Donoghue, as part of his new role, was given a sensitive Ukraine investigation that I thought should have gone to us.

Then Berman describes Barr assigning the intake of Rudy’s dirt on Hunter Biden (though he doesn’t describe it as such) to Scott Brady in Pittsburgh.

I didn’t know Brady well, but I considered him a solid guy.

This post describes how that all worked, and pointed to some communications about it all that the Attorney General’s office seemed to have no longer available when they were FOIAed.

The entire section is worth reading — buy the book — for the way it lays out aspects of Barr’s corrupt actions that haven’t gotten as much focus as his intervention in the Roger Stone and Mike Flynn prosecutions.

The one piece of news Berman discloses is that the FBI was withholding the 302s from the intake of Rudy’s Russian disinformation from NY’s Assistant Director, William Sweeney.

There were FBI reports of those meetings, called 302s, which we wanted to review. So did Sweeney. Sweeney’s team asked the agents in Pittsburgh for a copy and was refused. Sweeney called me up, livid.

“Geoff, in all my years with the FBI I have never been refused a 302,” he said. “This is a total violation of protocol.”

This detail is worth considering given the still ongoing GOP witch hunt targeting recently retied FBI Senior Analyst Timothy Thibault because of the compartmented way this information was all treated.

[I]t has been alleged that in September 2020, investigators from the same FBI HQ team were in communication with FBI agents responsible for the Hunter Biden information targeted by [Brian] Auten’s assessment. The FBI HQ team’s investigators placed their findings with respect to whether reporting was disinformation in a restricted access sub-file reviewable only by the particular agents responsible for uncovering the specific information. This is problematic because it does not allow for proper oversight and opens the door to improper influence.

Third, in October 2020, an avenue of additional derogatory Hunter Biden reporting was ordered closed at the direction of ASAC Thibault. My office has been made aware that FBI agents responsible for this information were interviewed by the FBI HQ team in furtherance of Auten’s assessment. It’s been alleged that the FBI HQ team suggested to the FBI agents that the information was at risk of disinformation; however, according to allegations, all of the reporting was either verified or verifiable via criminal search warrants. In addition, ASAC Thibault allegedly ordered the matter closed without providing a valid reason as required by FBI guidelines. Despite the matter being closed in such a way that the investigative avenue might be opened later, it’s alleged that FBI officials, including ASAC Thibault, subsequently attempted to improperly mark the matter in FBI systems so that it could not be opened in the future.

Chuck Grassley is focusing on later compartmentalization of this investigation, when the origin of that compartmentalization stemmed from Barr’s efforts to limit the tentacles of the SDNY investigation. Instead of reviewing what Barr did, he is hounding one of the last remaining people at FBI who had investigated Trump’s Russian ties, with Chris Wray doing nothing to support the Bureau.

All the more so given that, both the end of this section — which is followed by a section in which Berman describes how the Parnas case ended up with one 2021 jury verdict and one 2022 guilty plea — and at the end of the entire chapter, Berman emphasizes that Barr’s tampering in the Rudy case was exceptional, even amidst all the other tampering he engaged in (to include interference in the Michael Cohen, John Kerry, Halkbank, and Cy Vance cases).

The episode was one of the crazier things I encountered over the whole course of my tenure, which is really saying something.

[snip]

The “intake process in the field” nonsense was clearly not driven by his sense that all that Ukraine material would be too much for the Southern District to handle. The only burden we needed lifted from us was the attorney general’s improper meddling.

And, when Berman describes what must include this investigation among the list of reasons why Barr fired him in June 2020, he includes it under an oblique reference to “prosecutions and ongoing investigations of those in his inner circle.”

I never speculated about the specific reasons Barr wanted me out. As an attorney, I avoid allegations that I do not yet have the facts to support. But it was no secret to me that much of what we did at the Southern District—and did not do—displeased Trump. And if it displeased the president, it would have displeased Barr. That’s how it worked.

From the Greg Craig case through the non-prosecution of John Kerry and on up to the prosecutions and ongoing investigations of those in his inner circle, it was clear to Trump that he could not control SDNY. We were not loyal to him; our fealty was to the mission.

At the time I was fired in mid-June 2020, the presidential election was less than five months away. I’m sure that Barr was tired of the Southern District’s independence. But it is also fair to assume there was a political component in his move to oust me.

Barr did the president’s bidding, no matter how he may try to deny that now. He no doubt believed that by removing me he could eliminate a threat to Trump’s reelection. [my emphasis]

I think there’s a good deal of evidence that Barr was not just trying to remove any threat to Trump’s reelection. He was trying to ensure that any investigations into Trump and his flunkies could not continue if and when Trump lost. In this period Barr not only closed, but disclosed the closure, of investigations into Paul Manafort’s slush funds, a suspected $10 million donation funneled through an Egyptian bank that had kept Trump afloat in September 2016, and probably parts of an investigation into Erik Prince. He replaced Donoghue in EDNY at a time when Tom Barrack was close to being charged (in the since failed prosecution). I’ve raised questions about how it became possible to disclose, literally the day before the 2020 election, the once ongoing investigation into whether Roger Stone conspired with Russia on a hack-and-leak campaign — one that may have involved “solid guy” Scott Brady. During this same period, another hand-picked US Attorney was literally presenting altered documents in the Mike Flynn docket in an attempt to blow up that prosecution (which had the side of effect of making any obstruction charges against Trump post-Presidency untenable); by September, one of those altered documents would serve as a prop in an attack Trump launched on Biden in the first debate.

Berman describes a lot of Barr’s related interventions that happened earlier — what he calls a “hostile takeover” of the DC US Attorney’s Office. But he doesn’t describe the rest of Barr’s tampering. And that tampering, which had more permanent effect, would have extended to SDNY’s investigation had Berman not dug in when Barr first tried to fire him.

Still, I find it interesting that Berman, the guy who saw how Barr prevented his office from receiving copies of the garbage that Rudy Giuliani brought home from Ukraine, describes it instead in terms of removing all threats to Trump’s reelection. As noted above, the part of the investigation that Barr assigned to EDNY rather than SDNY reportedly pertains at least in part to suspected Russian agent Andrii Derkach’s efforts to help Rudy obtain dirt on Hunter Biden, dirt that looks remarkably like the “Hunter Biden” “laptop,” dirt which Rudy brought to “solid guy” Scott Brady rather than SDNY. If Berman believes that an SDNY investigation into those matters, consolidated into one investigation, would have threatened Trump’s reelection chances, it suggests any scrutiny on Rudy’s effort to get dirt on Hunter Biden — the kind of dirt he eventually released!! — would have sunk Trump.

Instead, the circumscribed investigation that Berman managed to protect ended without charges.

As James Comer and Kevin McCarthy prioritize their investigation into Hunter Biden’s dick pics, Democrats might do well to investigate the full effect of Barr’s efforts to dismantle the investigation into Rudy’s meetings with Russian agents to obtain dirt that Trump could use in his reelection bid. Some of the same witnesses, including computer repairman Mac Issac, Rudy lawyer Robert Costello, and Rudy himself would be pertinent to both investigations.

All that’s the story included in the book, proper.

But Berman included an epilogue, perhaps a narrative feature dictated by publishing schedule or a desire to change the emphasis. In it, he describes an exchange that took place around March 9, 2020, during a period when “solid guy” Scott Brady was actively processing dirt that Rudy had obtained from suspected Russian agent Andrii Derkach. Berman describes that between the time Barr spun out the investigation into Rudy and the time when Barr fired Berman in hopes of protecting Trump’s reelection, he answered a question about the Parnas investigation in such a way that implied Barr had interfered in the Parnas investigation for political reasons.

In March 2020, I was asked if Bill Barr had interfered in our Lev and Igor prosecution. The question came to me during a press conference on an unrelated case, having to do with illicit doping of Thoroughbred horses.

“The Southern District of New York has a long history of integrity and pursuing cases and declining to pursue cases based only on the facts and the law and the equities, without regard to partisan political concerns,” I replied. “My primary commitment is and has been to maintain those core values and that’s how our office is operating.”

This was my only public statement as US attorney about the office’s political independence, and it was mild. But I did not answer that Barr never interfered for partisan reasons, because that would not have been true. That might have earned me another demerit. I was fired a few months later.

Though as Berman described it in the book, it wasn’t the Parnas investigation that Barr was interested in. It wasn’t even Rudy. It was the “tentacles” that had the “potential to spiral.”

To be clear, by March 2020, according to the book, Barr had interfered politically in several other ways — John Kerry, Greg Craig, Michael Cohen, Turkey, and others. This is not a comment limited to Rudy’s grifters.

But Berman chose to cap his book — which, as mentioned, focuses significantly on Berman’s success on unrelated cases, including things like the Epstein case — with something that occurred in March 2020, chronologically while Barr’s efforts to prevent the Rudy investigation from spiraling out of control were ongoing. That changes the lesson of Berman’s book, then, to a focus on Barr’s political interference.

Just months ago, the US Attorney for SDNY published a book that laid out in detail how Trump’s corrupt Attorney General intervened to prevent the tentacles of a Hunter Biden adjacent investigation from spiraling out of his own control. And yet that has all been lost amid the din of outrage that Twitter took down Hunter Biden’s non-consensual dick pics.

Full transparency: On Twitter (they’re not coming up on a search of the Elmo-degraded site), I’m sure I also made comments about career people at DOJ preferring Barr to BDTS. I did so even while writing posts — one, two, three, four — that noted his role in Iran-Contra and the specious claims he had already made about the Mueller investigation.

Oleg Deripaska Indicted for His Anchor Baby and Flowers for a TV Host

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SDNY just unsealed an indictment against Oleg Deripaska and three others for sanctions violations. Just one person — naturalized US Citizen Olga Shikri — was in the US to be arrested. The other main consequences from this indictment will be the forfeiture of property related to the sanctions violations. The indictment lists the three properties that were searched last year.

The central allegations in the indictment pertain to efforts — successful with a first child, and unsuccessful with a second — to set up Deripaska’s girlfriend to give birth in the US and via that process, obtain US citizenship for the child.

Then, in or about 2020, SHRIKI and BARDAKOVA helped DERIPASKA’s girlfriend, VORONINA, travel from Russia to the United States so she could give birth to DERIPASKA’s and VORONINA’s child in the United States.  Despite DERIPASKA’s ongoing support for the Russian regime, he funded hundreds of thousands of dollars of transactions so that his child could take advantage of the U.S. healthcare system and U.S. birthright.  SHRIKI orchestrated the payment of approximately $300,000 worth of U.S. medical care, housing, childcare, and other logistics to aid VORONINA and DERIPASKA’s efforts to help VORONINA give birth in the United States, which resulted in the child receiving U.S. citizenship.  DERIPASKA counseled VORONINA on obtaining a visa to travel to the United States, including by telling her to be “careful” ahead of an interview by U.S. immigration authorities.  VORONINA thereafter applied for and obtained a U.S. visa for a purported ten-day tourism visit without disclosing her intent to travel and stay in the United States for approximately six months to give birth to DERIPASKA’s child.  Following the birth, SHRIKI, BARDAKOVA, and VORONINA conspired to conceal the name of the child’s true father, DERIPASKA, going so far as to change, slightly, the spelling of the child’s last name.

Later, in or about 2022, at DERIPASKA’s further behest and for his further benefit, SHRIKI and BARDAKOVA attempted to facilitate VORONINA’s return to the United States to give birth to DERIPASKA’s and VORONINA’s second child.  This second attempt included BARDAKOVA and VORONINA’s attempt to use false statements to conceal DERIPASKA’s funding and secure VORONINA’s entry into the United States – an attempt that was thwarted, and VORONINA was denied entry and returned immediately to Istanbul, through which she had flown from Russia to the United States.

In addition to a music studio sold in 2019, the indictment refers to other purchases in the US, including Easter flowers for a US TV host.

BARDAKOVA – largely based in Russia – directed SHRIKI to engage in particular illegal transactions on DERIPASKA’s behalf.  These instructions included directing SHRIKI to obtain U.S. goods and technology for DERIPASKA.  Moreover, between in or about May 2018 and in or about 2020, BARDAKOVA instructed SHRIKI to purchase and send flower and gift deliveries on behalf of DERIPASKA to DERIPASKA’s social contacts in the United States and Canada.  The deliveries included, among others, Easter gift deliveries to a U.S. television host, two flower deliveries to a then-former Canadian Parliament member, and two flower deliveries in 2020 to VORONINA while she was in the United States in 2020 to give birth to DERIPASKA’s child.

Perhaps most interesting to me is that the investigation was active in 2020, in the wake of Geoffrey Berman’s firing. Shriki is accused of destroying records in advance of a September 23 grand jury appearance. This was the period when Barr was furiously cleaning up all remaining traces of the Russian investigation (and it was the same month when Yevgeniy Prigozhin’s Interpol red notice was withdrawn, even though the indictment against him in the US remains).

In Berman’s book (which I’ll write about one of these days), he makes it quite clear Barr was protecting Rudy in this period. Was he also protecting Deripaska?

Update: Interesting timing! Andy Beshear announced he has recouped the $15 Million Matt Bevin dumped in Deripaska’s aluminum venture in KY.

Rudy Giuliani’s Alleged “Cooperation” Is a Threat to Lay out How Bill Barr and Jeffrey Rosen Protected Russian Disinformation

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Now that I’ve waded through Rudy Giulilani’s response to learning that SDNY had conducted a covert search on him in November 2019 before it conducted an overt search in April 2021, I’m certain Rudy engaged in just the kind of bad lawyering SDNY hoped he would — more on that in a week or so.

But a big part of his letter was not an attempt to engage in good lawyering, but instead to send messages to a variety of people. He provided co-conspirators a map they can use to understand which of their communications are in SDNY’s hands, and which are not. But he also laid out what he called his “cooperation,” which aside from minimal claims (which SDNY disputed) to have cooperated with SDNY against Lev Parnas and Igor Fruman, really amounts to the corrupt stuff he believed he was protected for because he did it on behalf of Donald Trump. Indeed, he claims that if Judge Paul Oetken only knew he had permission to do all this stuff, then he wouldn’t have approved the warrants against him.

It is unknown if the Government informed the Court of Giuliani’s cooperation with the State Department or his offers to cooperate with the SDNY or his actual cooperation with the Western District of Pennsylvania.

His first claim of “cooperation” revisits claims he made in the wake of the whistleblower complaint in 2019, claiming that he was working closely with State when he was lobbying to fire Marie Yovanovitch.

It was premature and unwarranted for the Government to seize Giuliani’s ESI because Giuliani had already cooperated with the US State Department (“State”) through Mike Pompeo, the Secretary of State, in March 2019 concerning Ukraine. He also cooperated again in July and August of 2019 at the request of the State Department in assisting them with regard to Ukraine.

This is almost certainly the meat of the SDNY investigation, and whatever else Rudy has done by invoking it, he has put Mike Pompeo on the hotseat.

It may not be a coincidence that in the wake of this letter, Gordon Sondland sued Mike Pompeo for covering up what really happened in State in 2019 and provided several excuses — most importantly, that Pompeo refused to let him access his own backup materials before testifying — for why his two existing sessions of sworn testimony might conflict with what SDNY seized from Rudy.

In his other claim of cooperation, Rudy detailed how he shared disinformation from Russian agent Andrii Derkach with DOJ, which he described as “cooperation” with Main Justice in the guise of its delegate, Pittsburgh US Attorney Scott Brady.

Before I repeat Rudy’s description of how he shared disinformation from Andrii Derkach with a hand-picked and very pro-Trump US Attorney, consider several details: first, immediately in the wake of the raid on Rudy in April, there were leaked explanations for how Rudy managed to meet with a known Russian agent — right in the middle of impeachment!! — even though both National Security Advisor Robert O’Brien and FBI’s Counterintelligence folks knew that Russia was feeding Derkach disinformation to feed to Rudy.

The WaPo originally reported that the FBI had warned Rudy, but had to retract that. Rudy never got warned.

Correction: An earlier version of this story, published Thursday, incorrectly reported that One America News was warned by the FBI that it was the target of a Russian influence operation. That version also said the FBI had provided a similar warning to Rudolph W. Giuliani, which he has since disputed. This version has been corrected to remove assertions that OAN and Giuliani received the warnings.

The FBI became aware in late 2019 that Rudolph W. Giuliani was the target of a Russian influence operation aimed at circulating falsehoods intended to damage President Biden politically ahead of last year’s election, according to people familiar with the matter.

Officials planned to warn Giuliani as part of an extensive effort by the bureau to alert members of Congress and at least one conservative media outlet, One America News, that they faced a risk of being used to further Russia’s attempt to influence the election’s outcome, said several current and former U.S. officials. All spoke on the condition of anonymity because the matter remains highly sensitive.

The FBI became aware of the Russian information operation at a time when Giuliani was deeply involved with former president Donald Trump’s 2020 reelection campaign and related activities in Ukraine to surface unflattering or incriminating information about the Biden family.

[snip]

In late 2019, before Giuliani’s trip to Kyiv, U.S. intelligence agencies warned the Trump White House that Giuliani was the target of a Russian influence operation, as The Post reported last year. Officials became concerned after obtaining evidence, including communications intercepts, that showed Giuliani was interacting with people tied to Russian intelligence. The warnings led then-national security adviser Robert C. O’Brien to caution Trump that any information Giuliani brought back from Ukraine should be considered contaminated by Russia.

Then, after matching the WaPo’s original story and similarly having to retract it, NBC offered an explanation why Rudy wasn’t given that briefing: because it would “complicate” what NBC called “the criminal investigation” into Rudy.

The FBI prepared a so-called “defensive” briefing for Rudy Giuliani in 2019 in which agents were poised to warn him he was being targeted by a Russian intelligence influence operation as he sought to gather opposition research on the Biden family, according to a source familiar with the matter.

But that briefing was not given, according to a second source familiar with the matter, because of concerns that the briefing could complicate the criminal investigation into the former New York City mayor.

Yet, at the time Rudy would have gotten this warning, SDNY had already shown probable cause Rudy was an agent of one or another pro-corruption Ukrainians, almost certainly Yuri Lutsenko in his efforts to fire Marie Yovanovitch. Without a Derkach angle to the SDNY investigation — an angle Jeffrey Rosen went to great lengths to prevent them from pursuing — it’s not clear how it would have complicated that investigation.

Rudy didn’t get his warning and instead of warning him, Trump said that was Rudy being Rudy. So Rudy first met with Lutsenko, the subject of the first investigation, and headed from that meeting directly to meet with Derkach.

A month later, Rosen issued a memo prohibiting any prosecutors from expanding the scope of their already opened investigations, which would have had the effect of preventing SDNY from investigating Rudy’s ongoing influence peddling for known Russian agent Andrii Derkach, about whom FBI decided not to warn Rudy even though everyone briefed on it knew it was a Russian intelligence operation.

But that wasn’t the only thing that Billy Barr and Rosen’s efforts to divvy up Ukrainian investigations did. After Rosen wrote that memo (ensuring no one could start an investigation into Rudy’s dalliances with Derkach), but still a week before Trump was acquitted for coercing dirt from Ukraine to use against Joe Biden, per Rudy’s timeline, Barr assigned Pittsburgh US Attorney Scott Brady to oversee intake of all Ukrainian dirt and, within a day, Rudy was in the business of sharing Derkach’s dirt directly with Pittsburgh’s US Attorney’s office.

In his letter, Rudy clearly identifies four of the nine people who rushed to accept Rudy’s dirt, which the government had identified as Russia disinformation before he went to collect it in December.

[I]n January 2020, counsel for Giuliani contacted high officials in the Justice Department, to inform them that Giuliani wanted to provide evidence for their consideration about the Ukraine. Within a day, the United States Attorney for the Western District of Pennsylvania, Scott W. Brady, contacted Giuliani’s counsel and offered to hold a meeting in Pittsburgh with both the United States Attorney’s office personnel and the FBI. Mayor Giuliani immediately accepted, and a meeting was scheduled for January 29, 2020.

On January 29, 2020, Mayor Giuliani and his counsel, flew to Pittsburgh at their own cost, where they were met by agents of the FBI and transported to FBI headquarters in Pittsburgh. Present at that meeting were the United States Attorney, the First Assistant United States Attorney, the Chief of the Criminal Division, and two additional Assistant United States Attorneys (“AUSA’s”) from the Western District of Pennsylvania. The FBI was represented by the Special Agent in Charge (“SAIC”) of the Pittsburgh FBI, the Assistant Special Agent in Charge (“ASAIC”), and three other special agents of the FBI.

Prior to the meeting, Giuliani’s counsel had provided the Pittsburgh United States Attorney’s office with documents and an extensive outline of the subject matter to be discussed, so that the Government could be fully informed and prepared to ask probing questions. Giuliani began the meeting by making a presentation with handouts. During his presentation, and at the end of it, the Mayor and his counsel answered every question they were asked, to the apparent satisfaction of all of the Government officials in the room. In addition to the presentation, Giuliani provided the Government with the names and addresses of individual witnesses, both in the United States and in Ukraine, that could corroborate and amplify the information that the Mayor was providing. Subsequent to that meeting, and covering a period of months, counsel for Giuliani received a number of inquiries, discussions and requests from the First Assistant United States Attorney. All requests were granted and all inquiries were answered. [my emphasis]

And, as Rudy tells it, that First AUSA kept coming back for more, a claim (like his other claims about the personnel involved) that matches a story published in the NYT after those involved knew that Trump had lost. That story also described that Brady kept pushing for inappropriate investigative steps until, ultimately, Seth DuCharme had to get involved.

Officials said that Mr. Brady almost immediately started pushing to take aggressive steps. He had a list of people he wanted F.B.I. agents to question. It was not clear whether they were the same witnesses that Mr. Giuliani and Mr. Costello had submitted, but a former law enforcement official said that Mr. Brady had wanted the F.B.I. to question people mentioned in Mr. Giuliani’s materials.

The steps were outside “normal investigative procedures,” one former senior law enforcement official with knowledge of the events said, particularly in an election year; Justice Department policy typically forbids investigators from making aggressive moves before elections that could affect the outcome of the vote if they become public.
The Pittsburgh F.B.I. office refused to comply without the approval of David L. Bowdich, the F.B.I.’s deputy director, the former official said.

Mr. Brady’s demands soon prompted a tense confrontation with F.B.I. officials at the bureau’s headquarters in Washington. The meeting was mediated by Seth D. DuCharme, now the acting U.S. attorney in Brooklyn and at the time a trusted aide and ally of Mr. Barr’s at the Justice Department in Washington.

Then, after Barr failed to replace Geoffrey Berman with a hand-picked flunky when he fired him on June 20 of last year, Barr instead installed DuCharme in Brooklyn on July 10, thereby making DuCharme (who had already been personally involved in Pittsburgh) the gatekeeper on any investigations pertaining to Ukraine. And sometime months after that — as Rudy continued to share known Russian disinformation during the election — DuCharme approved not an expansion of the investigation in SDNY that Barr tried to shut down by firing Berman, which would have been the logical thing to do if you were concerned about Russians interfering in our elections, but instead a parallel investigation in EDNY that, per the more recent NYT report, by design would not treat Rudy as a subject. Meanwhile, Rosen created repeated roadblocks — higher and higher levels of approvals for a search of Rudy — in an attempt to prevent SDNY from advancing their investigation into Rudy any further.

There are some involved in this story, like the FBI Agents who got promoted into the jobs formerly held by Andrew McCabe and Bill Priestap and Peter Strzok, who probably let all this happen because they knew the best way to advance their careers was to not make the mistake that their predecessors had made by trying to keep the country safe from Russian interference during an election. Others may rationalize what they did as a means to placate the President, perhaps imagining that it wouldn’t do that much damage to the country — that was the excuse cited by the NYT article on the Pittsburgh investigation. But those people, in recognizing Trump would lash out if they tried to investigate Russian interference in the 2020 election, would have therefore understood that Trump wanted Russian spies to interfere in the election and would be furious if they prevented it. They would have had to have understood that the way to keep Trump happy was to let Russia have its way. They would have been operating on the recognition that all the claims about what Trump did in 2016 were true, at least as far as 2020.

Plus, no one who pushed as hard as Scott Brady did can claim to be trying to placate the President.

Finally, worst of all, there are those who took a vow to “protect and defend against enemies foreign and domestic” who made affirmative attempts to protect not just the disinformation that Rudy was feeding to DOJ and FBI, but also protect Rudy for serving as the willful handmaiden of someone they knew was a Russian spy.

The Russian scandal of 2020 is, in many ways, even more scandalous than the Russian scandal of 2016. At least Paul Manafort and Roger Stone were in a position to claim plausible deniability. Bill Barr and Jeffrey Rosen are not.

Update: This email obtained via American Oversight shows that the decision to use Scott Brady to protect the Russian disinformation intake started earlier, by January 3.

Jeffrey Rosen Separated the Investigation that Could Turn Rudy Into a Russian Agent from the Rudy Investigation

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When Scott Stedman first reported that the FBI investigation into matters relating to Rudy Giuliani had expanded to include sanctioned Russian agent Andreii Derkach, he suggested it was tied to the SDNY seizure, just days earlier, of Rudy’s phones.

The Federal Bureau of Investigation (FBI) probe of Donald Trump’s personal lawyer Rudolph Giuliani has expanded to include Russia’s spy activities in the 2020 U.S. election, multiple sources tell Forensic News.

The criminal investigation, which led to a dramatic raid of Giuliani’s home and office this week, has for months included the activities of those who worked for or with Russian intelligence agent Andriy Derkach.

Derkach is a Ukrainian Member of Parliament who has been an “active Russian agent for over a decade,” according to the U.S. government.

Kenneth McCallion, an attorney who has represented multiple Ukrainian clients, said that prosecutors have been looking into the actions of Derkach in the 2020 election cycle as part of the Giuliani probe.

“I have been briefed that prosecutors are scrutinizing Derkach as part of the Giuliani probe,” McCallion told Forensic News. The inclusion of Derkach in the FBI’s probe suggests that the potential charges facing Giuliani might extend beyond just Foreign Agent Registration Act violations.

But the NYT last night reported (without crediting Stedman for the earlier report) that, instead, the Derkach part of the investigation is in EDNY, not SDNY, and in that investigation, Rudy is not a subject.

Federal prosecutors in Brooklyn have been investigating whether several Ukrainian officials helped orchestrate a wide-ranging plan to meddle in the 2020 presidential campaign, including using Rudolph W. Giuliani to spread their misleading claims about President Biden and tilt the election in Donald J. Trump’s favor, according to people with knowledge of the matter.

[snip]

The investigation is unfolding separately from a long-running federal inquiry in Manhattan that is aimed at Mr. Giuliani. While the two investigations have a similar cast of characters and overlap in some ways, Mr. Giuliani is not a subject of the Brooklyn investigation, the people said.

Instead, the Brooklyn prosecutors, along with the F.B.I., are focused on current and former Ukrainian officials suspected of trying to influence the election by spreading unsubstantiated claims of corruption about Mr. Biden through a number of channels, including Mr. Giuliani, Mr. Trump’s personal lawyer at the time. It is unclear whether the Brooklyn prosecutors will ultimately charge any of the Ukrainians.

At one point in the investigation, the authorities examined a trip Mr. Giuliani took to Europe in December 2019, when he met with several Ukrainians, according to the people, who spoke on the condition of anonymity to discuss an ongoing inquiry.

At least one of the current and former officials Mr. Giuliani met, a Ukrainian member of parliament named Andriy Derkach, is now a focus of the Brooklyn investigation, the people said. [my emphasis]

In a remarkably stupid comment, the NYT suggests that two investigations started under Trump pose a political problem for Merrick Garland (misstating, at the same time, what Garland promised).

Together, the Manhattan and Brooklyn investigations present a challenge for the Biden Justice Department, which has pledged to remain above the political fray even as it inherited a number of sensitive investigations linked to Ukraine and Russia.

The comment is especially stupid given the public record that suggests the most likely explanation for the two separate investigations is that Jeffrey Rosen took steps after Rudy became the focus of investigative attention in SDNY, to ensure that EDNY could stave off the most dangerous parts of the investigation.

I have pointed out repeatedly that had the Zelenskyy call whistleblower tip been treated like all other national security related tips in the post-9/11 world, investigators would have discovered that it pertained to an already open investigation in SDNY into Lev Parnas and Igor Fruman, an investigation that both Billy Barr and Jeffrey Rosen knew about. It appears that didn’t happen at first because the complaint was viewed exclusively as the transcript of President Trump’s call, and not the backup that tied the call to the influence peddling involving Rudy, Parnas, and Fruman that had been going on for some time.

But, probably with the public release of the whistleblower complaint, SDNY began to investigate how Rudy picked up the effort that Parnas and Fruman had already started in 2018, to get Marie Yovanovitch fired.

On November 4, 2019, SDNY executed searches — searches that Main Justice would have had to be informed about — on Rudy and Victoria Toensing’s cloud accounts. In subsequent months, SDNY would execute searches on Yuri Lutsenko and several other Ukrainians, but not Andrii Derkach, not even after Rudy flew to Ukraine to meet with Derkach personally on December 5, 2019.

In the wake of those searches, on January 17, 2020, Jeffrey Rosen issued a memo putting his trusted deputy, Richard Donoghue, in charge of all Ukraine-related investigations.

As has been publicly reported, there currently are several distinct open investigations being handled by different U.S. Attorney’s Offices and/or Department components that in some way potentially relate to Ukraine. In addition, new information potentially relating to Ukraine may be brought to the attention of the Department going forward. The Department has assigned Richard Donoghue, the U.S. Attorney in the Eastern District of New York (EDNY), who currently is handling certain Ukraine-related matters, to coordinate existing matters and to assess, investigate, and address any other matters relating to Ukraine, including the opening of any new investigations or the expansion of existing ones.

[snip]

Any and all new matters relating to Ukraine shall be directed exclusively to EDNY for investigation and appropriate handling.

[snip]

Any widening or expansion of existing matters shall require prior consultation with and approval by my office and EDNY.

Now that we know about the Rudy search in November 2019, the effect of this memo is clear: it limited the SDNY investigation to the scope of the investigation as it existed at that time, into the Lutsenko attempt to fire Yovanovitch (which was included in the original Parnas indictment), but not Rudy’s meeting with a Russian agent to help Trump win re-election.

Instead, EDNY presided over all the Ukraine goings-on during the election, during which time they could have done something about ongoing tampering. Indeed, after Geoffrey Berman succeeded in ensuring that Audrey Strauss would replace him after Barr fired him to try to shut down ongoing investigations (including, undoubtedly, the one into Rudy and Barr’s friend Victoria Toensing), Barr and Rosen replaced Donoghue with another trusted flunky, Seth DuCharme. Under DuCharme, then, EDNY sat and watched while Derkach interfered in the election and did nothing until — per yesterday’s NYT story — “the final months of the Trump administration.” According to the public timeline, it appears that they just let a known Russian agent play around in our democracy.

There is plenty of risk for Rudy in the existing SDNY investigation. But what Rudy did in response to Lutsenko’s entreaties amounts to lobbying, and so is probably most likely be charged as a FARA case (though Foreign Agent charges are on the table).

With Derkach, however, Rudy was affirmatively attempting to launder Russian-backed disinformation to affect the election. There’s no way that can be charged as lobbying. Plus, the government understood Derkach to be a Russian agent when Rudy attended that meeting (though Rudy claims he was not warned in advance). If Derkach were part of the SDNY investigation, in which Rudy is a subject, then treating Rudy as the Russian agent he has served as in recent years would be on the table.

But in EDNY, per the NYT report, Rudy’s conduct is not at issue.