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“Stand Back and Stand By:” John Pierce’s Plan for a Public Authority or — More Likely — a MyPillow Defense

In a Friday hearing in the omnibus Oath Keeper conspiracy case, John Pierce — who only just filed an appearance for Kenneth Harrelson in that case — warned that he’s going to mount a very vigorous public authority defense. He claimed that such a defense would require reviewing all video.

Pierce is a Harvard-trained civil litigator involved in the more conspiratorial side of Trumpist politics. Last year he filed a lawsuit for Carter Page that didn’t understand who (Rod Rosenstein, among others) needed to be included to make the suit hold up, much less very basic things about FISA. As someone who’d like to see the unprecedented example of Page amount to something, I find that lawsuit a horrible missed opportunity.

John Pierce got fired by Kyle Rittenhouse

Of late, he has made news for a number of controversial steps purportedly in defense of accused Kenosha killer Kyle Rittenhouse. A recent New Yorker article on Rittenhouse’s case, for example, described that Pierce got the Rittenhouses to agree to a wildly inflated hourly rate and sat on donations in support of Rittenhouse’s bail for a month after those funds had been raised. Then, when Kyle’s mother Wendy tried to get Pierce to turn over money raised for their living expenses, he instead claimed they owed him.

Pierce met with the Rittenhouses on the night of August 27th. Pierce Bainbridge drew up an agreement calling for a retainer of a hundred thousand dollars and an hourly billing rate of twelve hundred and seventy-five dollars—more than twice the average partner billing rate at top U.S. firms. Pierce would be paid through #FightBack, which, soliciting donations through its Web site, called the charges against Rittenhouse “a reactionary rush to appease the divisive, destructive forces currently roiling this country.”

Wisconsin’s ethics laws restrict pretrial publicity, but Pierce began making media appearances on Rittenhouse’s behalf. He called Kenosha a “war zone” and claimed that a “mob” had been “relentlessly hunting him as prey.” He explicitly associated Rittenhouse with the militia movement, tweeting, “The unorganized ‘militia of the United States consists of all able-bodied males at least seventeen years of age,’ ” and “Kyle was a Minuteman protecting his community when the government would not.”

[snip]

In mid-November, Wood reported that Mike Lindell, the C.E.O. of MyPillow, had “committed $50K to Kyle Rittenhouse Defense Fund.” Lindell says that he thought his donation was going toward fighting “election fraud.” The actor Ricky Schroder contributed a hundred and fifty thousand dollars. Pierce finally paid Rittenhouse’s bail, with a check from Pierce Bainbridge, on November 20th—well over a month after #FightBack’s Web site indicated that the foundation had the necessary funds.

[snip]

Wendy said of the Rittenhouses’ decision to break with Pierce, “Kyle was John’s ticket out of debt.” She was pressing Pierce to return forty thousand dollars in donated living expenses that she believed belonged to the family, and told me that Pierce had refused: “He said we owed him millions—he ‘freed Kyle.’ ”

Possibly in response to the New Yorker piece, Pierce has been tweeting what might be veiled threats to breach attorney-client privilege.

Pierce assembles a collection of characters for his screen play

Even as that has been going on, however, Pierce has been convincing one after another January 6 defendant to let him represent them. The following list is organized by the date — in bold — when Pierce first filed an appearance for that defendant (I’ll probably update this list as Pierce adds more defendants):

1. Christopher Worrell: Christopher Worrell is a Proud Boy from Florida arrested on March 12. Worrell traveled to DC for the December MAGA protest, where he engaged in confrontational behavior targeting a journalist. He and his girlfriend traveled to DC for January 6 in vans full of Proud Boys paid for by someone else. He was filmed spraying pepper spray at cops during a key confrontation before the police line broke down and the initial assault surged past. Worrell was originally charged for obstruction and trespassing, but later indicted for assault and civil disorder and trespassing (dropping the obstruction charge). He was deemed a danger, in part, because of a 2009 arrest for impersonating a cop involving “intimidating conduct towards a total stranger in service of taking the law into his own hands.” Pierce first attempted to file a notice of appearance on March 18. Robert Jenkins (along with John Kelly, from Pierce’s firm) is co-counsel on the case. Since Pierce joined the team, he has indulged Worrell’s claims that he should not be punished for assaulting a cop, but neither that indulgence nor a focus on Worrell’s non-Hodgkins lymphoma nor an appeal succeeded at winning his client release from pre-trial detention.

2. William Pepe: William Pepe is a Proud Boy charged in a conspiracy with Dominic Pezzola and Matthew Greene for breaching the initial lines of defense and, ultimately, the first broken window of the Capitol. Pepe was originally arrested on January 11, though is out on bail. Pierce joined Robert Jenkins on William Pepe’s defense team on March 25. By April, Pierce was planning on filing some non-frivolous motions (to sever his case from Pezzola, to move it out of DC, and to dismiss the obstruction count).

3. Paul Rae: Rae is another of Pierce’s Proud Boy defendants and his initial complaint suggested Rae could have been (and could still be) added to the conspiracy indictments against the Proud Boys already charged. He was indicted along with Arthur Jackman for obstruction and trespassing; both tailed Joe Biggs on January 6, entering the building from the East side after the initial breach. Pierce filed to join Robert Jenkins in defending Rae on March 30.

4. Stephanie Baez: On June 9, Pierce filed his appearance for Stephanie Baez. Pierce’s interest in Baez’ case makes a lot of sense. Baez, who was arrested on trespassing charges on June 4, seems to have treated the January 6 insurrection as an opportunity to shop for her own Proud Boy boyfriend. Plus, she’s attractive, unrepentant, and willing to claim there was no violence on January 6. Baez has not yet been formally charged (though that should happen any day).

5. Victoria White: If I were prosecutors, I’d be taking a closer look at White to try to figure out why John Pierce decided to represent her (if it’s not already clear to them; given the timing, it may simply be because he believed he needed a few women defendants to tell the story he wants to tell). White was detained briefly on January 6 then released, and then arrested on April 8 on civil disorder and trespassing charges. At one point on January 6, she was filmed trying to dissuade other rioters from breaking windows, but then she was filmed close to and then in the Tunnel cheering on some of the worst assault. Pierce filed his notice of appearance in White’s case on June 10.

Ryan Samsel: After consulting with Joe Biggs, Ryan Samsel kicked off the riot by approaching the first barriers and — with several other defendants — knocking over a female cop, giving her a concussion. He was arrested on January 30 and is still being held on his original complaint charging him with assault and civil disorder. He’s obviously a key piece to the investigation and for some time it appeared the government might have been trying to persuade him that the way to minimize his significant exposure (he has an extensive criminal record) would be to cooperate against people like Biggs. But then he was brutally assaulted in jail. Detainees have claimed a guard did it, and given that Samsel injured a cop, that wouldn’t be unheard of. But Samsel seemed to say in a recent hearing that the FBI had concluded it was another detainee. In any case, the assault set off a feeding frenzy among trial attorneys seeking to get a piece of what they imagine will be a huge lawsuit against BOP (as it should be if a guard really did assault him). Samsel is now focused on getting medical care for eye and arm injuries arising from the assault. And if a guard did do this, then it would be a key part of any story Pierce wanted to tell. After that feeding frenzy passed, Pierce filed an appearance on June 14, with Magistrate Judge Zia Faruqui releasing his prior counsel on June 25. Samsel is a perfect defendant for Pierce, though (like Rittenhouse), the man badly needs a serious defense attorney. Update: On July 27, Samsel informed Magistrate Judge Zia Faruqui that he would be retaining new counsel.

6. James McGrew: McGrew was arrested on May 28 for assault, civil disorder, obstruction, and trespassing, largely for some fighting with cops inside the Rotunda. His arrest documents show no ties to militias, though his arrest affidavit did reference a 2012 booking photo. Pierce filed his appearance to represent McGrew on June 16.

Alan Hostetter: John Pierce filed as Hostetter’s attorney on June 24, not long after Hostetter was indicted with five other Three Percenters in a conspiracy indictment paralleling those charging the Oath Keepers and Proud Boys. Hostetter was also active in Southern California’s anti-mask activist community, a key network of January 6 participants. Hostetter and his defendants spoke more explicitly about bringing arms to the riot, and his co-defendant Russell Taylor spoke at the January 5 rally. On August 3, Hostetter replaced Pierce.

7, 8, 9. On June 30, Pierce filed to represent David Lesperance, and James and Casey Cusick. As I laid out here, the FBI arrested the Cusicks, a father and son that run a church, largely via information obtained from Lesperance, their parishioner. They are separately charged (Lesperance, James Cusick, Casey Cusick), all with just trespassing. The night before the riot, father and son posed in front of the Trump Hotel with a fourth person besides Lesperance (though Lesperance likely took the photo).

10. Kenneth Harrelson: On July 1, Pierce filed a notice of appearance for Harrelson, who was first arrested on March 10. Leading up to January 6, Harrelson played a key role in Oath Keepers’ organizing in Florida, particularly meetings organized on GoToMeeting. On the day of the riot, Kelly Meggs had put him in charge of coordinating with state teams. Harrelson was on the East steps of the Capitol with Jason Dolan during the riot, as if waiting for the door to open and The Stack to arrive; with whom he entered the Capitol. With Meggs, Harrelson moved first towards the Senate, then towards Nancy Pelosi’s office. When the FBI searched his house upon his arrest, they found an AR-15 and a handgun, as well as a go-bag with a semi-automatic handgun and survivalist books, including Ted Kaczynski’s writings. Harrelson attempted to delete a slew of his Signal texts, including a video he sent Meggs showing the breach of the East door. Harrelson had previously been represented by Nina Ginsberg and Jeffrey Zimmerman, who are making quite sure to get removed from Harrelson’s team before Pierce gets too involved.

11. Leo Brent Bozell IV: It was, perhaps, predictable that Pierce would add Bozell to his stable of defendants. “Zeeker” Bozell is the scion of a right wing movement family including his father who has made a killing by attacking the so-called liberal media, and his grandfather, who was a speech writer for Joseph McCarthy. Because Bozell was released on personal recognizance there are details of his actions on January 6 that remain unexplained. But he made it to the Senate chamber, and while there, made efforts to prevent CSPAN cameras from continuing to record the proceedings. He was originally arrested on obstruction and trespassing charges on February 12; his indictment added an abetting the destruction of government property charge, the likes of which have been used to threaten a terrorism enhancement against militia members. Pierce joined Bozell’s defense team (thus far it seems David B. Deitch will remain on the team) on July 6.

12. Nate DeGrave: The night before DeGrave’s quasi co-conspirator Josiah Colt pled guilty, July 13, Pierce filed a notice of appearance for Nate DeGrave. DeGrave helped ensure both the East Door and the Senate door remained open.

14. Nathaniel Tuck: On July 19, Pierce filed a notice of appearance for Nathaniel Tuck, the Florida former cop Proud Boy.

14. Kevin Tuck: On July 20, Pierce filed a notice of appearance for Kevin Tuck, Nathaniel’s father and still an active duty cop when he was charged.

15. Peter Schwartz: On July 26, Pierce filed a notice of appearance for Peter Schwartz, the felon out on COVID-release who maced some cops.

As you can see, Pierce has assembled as cast of defendants as if writing a screenplay, with Proud Boys from key breach points, leading members of the other conspiracies, and other movement conservatives. There are just a few more scenes he would need to fill out to not only be able to write his screenplay, but also to be able to get broad discovery from the government.

This feat is all the more interesting given a detail from the New Yorker article: at one point, Pierce seemed to be claiming to represent Enrique Tarrio and part of his “defense” of Rittenhouse was linking the boy to the Proud Boys.

Six days after the Capitol assault, Rittenhouse and his mother flew with Pierce to Miami for three days. The person who picked them up at the airport was Enrique Tarrio—the Proud Boys leader. Tarrio was Pierce’s purported client, and not long after the shootings in Kenosha he had donated a hundred dollars or so to Rittenhouse’s legal-defense fund. They all went to a Cuban restaurant, for lunch.

Enrique Tarrio would be part of any coordinated Florida-based plan in advance of January 6 and if he wanted to, could well bring down whatever conspiracy there was. More likely, though, he’s attempting to protect any larger conspiracy.

A public authority defense claims the defendant thought they had authority to commit a crime

And with his ties to Tarrio, Pierce claims (to think) he’s going to mount a public authority defense. A public authority defense involves claiming that the defendant had reason to believe he had authority to commit the crimes he did. According to the Justice Manual, there are three possible arguments a defendant might make. The first is that the defendant honestly believed they were authorized to do what they did.

First, the defendant may offer evidence that he/she honestly, albeit mistakenly, believed he/she was performing the crimes charged in the indictment in cooperation with the government. More than an affirmative defense, this is a defense strategy relying on a “mistake of fact” to undermine the government’s proof of criminal intent, the mens rea element of the crime. United States v. Baptista-Rodriguez, 17 F.3d 1354, 1363-68 (11th Cir. 1994); United States v. Anderson, 872 F.2d 1508, 1517-18 & n.4 (11th Cir.), cert. denied, 493 U.S. 1004 (1989); United States v. Juan, 776 F.2d 256, 258 (11th Cir. 1985). The defendant must be allowed to offer evidence that negates his/her criminal intent, id., and, if that evidence is admitted, to a jury instruction on the issue of his/her intent, id., and if that evidence is admitted, he is entitled to a jury instruction on the issue of intent. United States v. Abcasis, 45 F.3d 39, 44 (2d Cir. 1995); United States v. Anderson, 872 F.2d at 1517-1518 & n. In Anderson, the Eleventh Circuit approved the district court’s instruction to the jury that the defendants should be found not guilty if the jury had a reasonable doubt whether the defendants acted in good faith under the sincere belief that their activities were exempt from the law.

There are some defendants among Pierce’s stable for whom this might work. But taken as a whole and individually, most allegedly did things (including obstruction or lying to the FBI) that would seem to evince consciousness of guilt.

The second defense works best (and is invoked most often) for people — such as informants or CIA officers — who are sometimes allowed to commit crimes by the Federal government.

The second type of government authority defense is the affirmative defense of public authority, i.e., that the defendant knowingly committed a criminal act but did so in reasonable reliance upon a grant of authority from a government official to engage in illegal activity. This defense may lie, however, only when the government official in question had actual authority, as opposed to merely apparent authority, to empower the defendant to commit the criminal acts with which he is charged. United States v. Anderson, 872 F.2d at 1513-15; United States v. Rosenthal, 793 F.2d 1214, 1236, modified on other grounds, 801 F.2d 378 (11th Cir. 1986), cert. denied, 480 U.S. 919 (1987). The genesis of the “apparent authority” defense was the decision in United States v. Barker, 546 F. 2d 940 (D.C. Cir. 1976). Barker involved defendants who had been recruited to participate in a national security operation led by Howard Hunt, whom the defendants had known before as a CIA agent but who was then working in the White House. In reversing the defendants’ convictions, the appellate court tried to carve out an exception to the mistake of law rule that would allow exoneration of a defendant who relied on authority that was merely apparent, not real. Due perhaps to the unique intent requirement involved in the charges at issue in the Barker case, the courts have generally not followed its “apparent authority” defense. E.g., United States v. Duggan, 743 F.2d 59, 83-84 (2d Cir. 1984); United States v. Rosenthal, 793 F.2d at 1235-36. If the government official lacked actual or real authority, however, the defendant will be deemed to have made a mistake of law, which generally does not excuse criminal conduct. United States v. Anderson, 872 F.2d at 1515; United States v. Rosenthal, 793 F.2d at 1236; United States v. Duggan, 743 F.2d at 83-84. But see discussion on “entrapment by estoppel,” infra.

Often, spooked up defendants try this as a way to launch a graymail defense, to make such broad requests for classified information to push the government to drop its case. Usually, this effort fails.

I could see someone claiming that Trump really did order the defendants to march on the Capitol and assassinate Mike Pence. Some of the defendants’ co-conspirators (especially Harrelson’s) even suggested they expected Trump to invoke the Insurrection Act. But to make that case would require not extensive review of Capitol video, as Pierce says he wants, but review of Trump’s actions, which would seem to be the opposite of what this crowd might want. Indeed, attempting such a defense might allow prosecutors a way to introduce damning information on Trump that wouldn’t help the defense cause.

The final defense is when a defendant claims that a Federal officer misled them into thinking their crime was sanctioned.

The last of the possible government authority defenses is “entrapment by estoppel,” which is somewhat similar to public authority. In the defense of public authority, it is the defendant whose mistake leads to the commission of the crime; with “entrapment by estoppel,” a government official commits an error and, in reliance thereon, the defendant thereby violates the law. United States v. Burrows, 36 F.3d 875, 882 (9th Cir. 1994); United States v. Hedges, 912 F.2d 1397, 1405 (11th Cir. 1990); United States v. Clegg, 846 F.2d 1221, 1222 (9th Cir. 1988); United States v. Tallmadge, 829 F.2d 767, 773-75 (9th Cir. 1987). Such a defense has been recognized as an exception to the mistake of law rule. In Tallmadge, for example, a Federally licensed gun dealer sold a gun to the defendant after informing him that his circumstances fit into an exception to the prohibition against felons owning firearms. After finding that licensed firearms dealers were Federal agents for gathering and dispensing information on the purchase of firearms, the Court held that a buyer has the right to rely on the representations made by them. Id. at 774. See United States v. Duggan, 743 F.2d at 83 (citations omitted); but, to assert such a defense, the defendant bears the burden of proving that he\she was reasonable in believing that his/her conduct was sanctioned by the government. United States v. Lansing, 424 F.2d 225, 226-27 (9th Cir. 1970). See United States v . Burrows, 36 F.3d at 882 (citing United States v. Lansing, 424 F.2d at 225-27).

This is an extreme form of what defendants have already argued. And in fact, Chief Judge Beryl Howell already addressed this defense in denying Billy Chrestman (a Proud Boy from whose cell Pierce doesn’t yet have a representative) bail. After reviewing the precedents where such a defense had been successful, Howell then explained why it wouldn’t work here. First, because where it has worked, it involved a narrow misstatement of the law that led defendants to unknowingly break the law, whereas here, defendants would have known they were breaking the law because of the efforts from police to prevent their actions. Howell then suggested that a belief that Trump had authorized this behavior would not have been rational. And she concludes by noting that this defense requires that the person leading the defendant to misunderstand the law must have the authority over such law. But Trump doesn’t have the authority, Howell continued, to authorize an assault on the Constitution itself.

Together, this trilogy of cases gives rise to an entrapment by estoppel defense under the Due Process Clause. That defense, however, is far more restricted than the capacious interpretation suggested by defendant, that “[i]f a federal official directs or permits a citizen to perform an act, the federal government cannot punish that act under the Due Process Clause.” Def.’s Mem. at 7. The few courts of appeals decisions to have addressed the reach of this trilogy of cases beyond their facts have distilled the limitations inherent in the facts of Raley, Cox, and PICCO into a fairly restrictive definition of the entrapment by estoppel defense that sets a high bar for defendants seeking to invoke it. Thus, “[t]o win an entrapment-by-estoppel claim, a defendant criminally prosecuted for an offense must prove (1) that a government agent actively misled him about the state of the law defining the offense; (2) that the government agent was responsible for interpreting, administering, or enforcing the law defining the offense; (3) that the defendant actually relied on the agent’s misleading pronouncement in committing the offense; and (4) that the defendant’s reliance was reasonable in light of the identity of the agent, the point of law misrepresented, and the substance of the misrepresentation.” Cox, 906 F.3d at 1191 (internal quotation marks and citations omitted).

The Court need not dally over the particulars of the defense to observe that, as applied generally to charged offenses arising out of the January 6, 2021 assault on the Capitol, an entrapment by estoppel defense is likely to fail. Central to Raley, Cox, and PICCO is the fact that the government actors in question provided relatively narrow misstatements of the law that bore directly on a defendant’s specific conduct. Each case involved either a misunderstanding of the controlling law or an effort by a government actor to answer to complex or ambiguous legal questions defining the scope of prohibited conduct under a given statute. Though the impact of the misrepresentations in these cases was ultimately to “forgive a breach of the criminal laws,” Cox, 379 U.S. at 588 (Clark, J., concurring in part and dissenting in part), none of the statements made by these actors implicated the potential “waiver of law,” or indeed, any intention to encourage the defendants to circumvent the law, that the Cox majority suggested would fall beyond the reach of the entrapment by estoppel defense, id. at 569. Moreover, in all three cases, the government actors’ statements were made in the specific exercise of the powers lawfully entrusted to them, of examining witnesses at Commission hearings, monitoring the location of demonstrations, and issuing technical regulations under a particular statute, respectively.

In contrast, January 6 defendants asserting the entrapment by estoppel defense could not argue that they were at all uncertain as to whether their conduct ran afoul of the criminal law, given the obvious police barricades, police lines, and police orders restricting entry at the Capitol. Rather, they would contend, as defendant does here, that “[t]he former President gave th[e] permission and privilege to the assembled mob on January 6” to violate the law. Def.’s Mem. at 11. The defense would not be premised, as it was in Raley, Cox, and PICCO, on a defendant’s confusion about the state of the law and a government official’s clarifying, if inaccurate, representations. It would instead rely on the premise that a defendant, though aware that his intended conduct was illegal, acted under the belief President Trump had waived the entire corpus of criminal law as it applied to the mob.

Setting aside the question of whether such a belief was reasonable or rational, as the entrapment by estoppel defense requires, Cox unambiguously forecloses the availability of the defense in cases where a government actor’s statements constitute “a waiver of law” beyond his or her lawful authority. 379 U.S. at 569. Defendant argues that former President Trump’s position on January 6 as “[t]he American head of state” clothed his statements to the mob with authority. Def.’s Mem. at 11. No American President holds the power to sanction unlawful actions because this would make a farce of the rule of law. Just as the Supreme Court made clear in Cox that no Chief of Police could sanction “murder[] or robbery,” 379 U.S. at 569, notwithstanding this position of authority, no President may unilaterally abrogate criminal laws duly enacted by Congress as they apply to a subgroup of his most vehement supporters. Accepting that premise, even for the limited purpose of immunizing defendant and others similarly situated from criminal liability, would require this Court to accept that the President may prospectively shield whomever he pleases from prosecution simply by advising them that their conduct is lawful, in dereliction of his constitutional obligation to “take Care that the Laws be faithfully executed.” U.S. Const. art. II, § 3. That proposition is beyond the constitutional pale, and thus beyond the lawful powers of the President.

Even more troubling than the implication that the President can waive statutory law is the suggestion that the President can sanction conduct that strikes at the very heart of the Constitution and thus immunize from criminal liability those who seek to destabilize or even topple the constitutional order. [my emphasis]

In spite of Howell’s warning, we’re bound to see some defense attorneys trying to make this defense anyway. But for various reasons, most of the specific clients that Pierce has collected will have a problem making such claims because of public admissions they’ve already made, specific interactions they had with cops the day of the insurrection, or comments about Trump himself they or their co-conspirators made.

And those problems will grow more acute as the defendants’ co-conspirators continue to enter into cooperation agreements against them.

Or maybe this is a MyPillow defense?

But I’m not sure that Pierce — who, remember, is a civil litigator, not a defense attorney — really intends to mount a public authority defense. His Twitter feed of late suggests he plans, instead, to mount a conspiracy theory defense that the entire thing was a big set-up: the kind of conspiracy theory floated by Tucker Carlson but with the panache of people that Pierce has worked with, like Lin Wood (though even Lin Wood has soured on Pierce).

For example, the other day Pierce asserted that defense attorneys need to see every minute of Capitol Police footage for a week before and after.

And one of his absurd number of Twitter polls suggests he doesn’t believe that January 6 was a Trump inspired [armed] insurrection.

I asked on twitter which he was going to wage, a public authority defense or one based on a claim that this was all informants.

He responded by saying he doesn’t know what the question means.

I asked if he really meant he didn’t know what a public authority defense is, given that he told Judge Mehta he’d be waging one for his clients (or at least Oath Keeper Kenneth Harrelson).

He instead tried to change the subject with an attack on me.

In other words, rather than trying to claim that Trump ordered these people to assault the Capitol, Pierce seems to be suggesting it was all a big attempt to frame Trump and Pierce’s clients.

Don’t get me wrong, a well-planned defense claiming that Trump had authorized all this, one integrating details of what Enrique Tarrio might know about pre-meditation and coordination with Trump and his handlers, might be effective. Certainly, having the kind of broad view into discovery that Pierce is now getting would help. One thing he has done well — with the exception of Lesperance and the Cusicks, if it ever turns into felony charges, as well as Pepe and Samsel, depending on Samsel’s ultimate charges — is pick his clients so as to avoid obvious conflict problems And never forget that there’s a history of right wing terrorists going free based on the kind of screenplays, complete with engaging female characters, that Pierce seems to be planning.

But some of the stuff that Pierce has already done is undermining both of these goals, and the difficulty of juggling actual criminal procedure (as a civil litigator) while trying to write a screenplay could backfire

675 Days In, the Durham Investigation Has Lasted Longer than the Mueller Investigation

Today marks the 675th day of the Durham investigation into the origins and conduct of the investigation that became the Mueller investigation. That means Durham’s investigation has lasted one day longer than the entire Mueller investigation, which Republicans complained lasted far too long.

The single solitary prosecution Durham has obtained in that span of time in which Mueller prosecuted George Papadopoulos, Mike Flynn, Paul Manafort, Rick Gates, Richard Pinedo, Alex Van der Zwan, Michael Cohen (for his lies about Trump’s Trump Tower Moscow deal) was the guilty plea of Kevin Clinesmith, based on conduct discovered by DOJ Inspector General Michael Horowitz.

In addition to those prosecutions, Mueller referred further Cohen charges to SDNY, Sam Patten for prosecution to DC, and Bijan Kian for prosecution in EDVA. Mueller charged Roger Stone and handed that prosecution off to DC. He further charged Konstantin Kilimnik, 12 IRA trolls, Yevgeniy Prigozhin, and 12 GRU officers. He referred Paul Manafort’s influence peddling partners, Republican and Democratic alike, for further investigation, leading to the failed prosecution of Greg Craig. Mueller referred 12 other matters — most still sealed — for further investigation, along with the Egyptian bribery investigation originally started in DC.

Meanwhile, Durham has never released a public budget, though by regulation he had to submit a budget request to DOJ in December.

Say what you will about Mueller’s investigation. But it was an investigation that showed real results. Durham, meanwhile, has been churning over the work that DOJ IG already did for as long as Mueller’s entire investigation.

The Three Types (Thus Far) of Trump Mueller Pardons

To date, Trump has pardoned five people who were prosecuted by Mueller. I’m seeing a good deal of misunderstanding about what those pardons mean for any legal proceedings going forward, so I’d like to address some of that.

First, a lot of people say that accepting a pardon is tantamount to accepting guilt, under Burdick v.United States. It’s not. It’s narrower, though importantly goes to questions about whether a witness who has been pardoned has to testify or not. It also says that someone who has been pardoned must inform the court of the fact for it to be valid in any legal proceeding before the court.

That said, claims that Trump flunkies who’ve been pardoned have to testify are also too broad. If the people have any remaining legal exposure (as I’ll explain, Roger Stone and Paul Manafort do), they can still invoke the Fifth. That’s also true if they have state exposure for something like fraud or tax evasion. But in cases where the pardoned crime is only federal, such as Papadopoulos’ lies, it would be easy for prosecutors to immunize him in case he invoked his Fifth Amendment privileges, effectively forcing him to testify on penalty of contempt.

Thus far, Trump has issued three kinds of pardons for people prosecuted by Mueller:

  • Pardons for people with no further known (Mueller) legal exposure
  • Pardons for people with potentially grave further legal exposure
  • Fruit of the poison tree pardon for anything Mueller touched

Alex Van der Zwaan and George Papadopoulos:

Both Van Der Zwaan and Papadopoulos were pardoned for the single False Statements charge against them. Neither is known to have committed another crime. In Papadopoulos’ case, however, things could get dicey on several points. Trump forgave his $9,500 fine, which was the amount Papadopoulos accepted from suspected Israeli spooks. If he asks for that back that may raise questions about his exposure on FARA grounds. In addition, Papadopoulos has already testified before Congress that he called Marc Kasowitz after he was first interviewed by the FBI. If there were a larger prosecution about Trump’s obstruction, he might have been able to plead the Fifth for making that call — except he has already testified to it.

Papadopoulos withheld documents from Congress. With a DOJ that can enforce subpoenas, he might be asked to share those documents, which may require him to testify contrary to his 2018 OGR/HJC testimony.

If DOJ decided to reopen the investigation into a suspected Egyptian bribe to Trump because serving a subpoena on Trump Organization would now be less controversial than it was last summer, then Papadopoulos might be a key witness in that investigation, though since that’s unrelated to his charged false statements, he could still invoke the Fifth if questioned about it.

Roger Stone and Paul Manafort:

Like Van der Zwaan and Papadopoulos, Stone and Manafort were just pardoned for the crimes that they were found or pled guilty to, the money laundering, tax evasion, and FARA crimes in Manafort’s case, and the cover-up crimes in Stone’s case. For both, however, that’s not the full extent of what they were investigated or might be witnesses for.

Before I get there, let me note that multiple sources are claiming that, because Trump included Manafort’s criminal forfeiture in the language of his pardon, he’ll get his ill-gotten gains back. I’m not an expert on this, but I do know that Manafort also civilly forfeited these goods in his plea agreement.

So to attempt to reverse this forfeiture, Manafort would have to spend a great deal of money litigating it, and it’s not at all clear it’d work.

Manafort was also referred for suspected FECA violations involving two PACs that, prosecutors suspected, he got paid through via a kickback system. These cases must be closed, because they were unsealed in the Mueller Report back in September. But Manafort may face more scrutiny on them if DOJ investigates Trump’s other corrupt PACs.

Unless he, too, is pardoned, Konstantin Kilimnik remains under investigation. That’s an area where things might get more interesting for Manafort, because during the period when he was purportedly cooperating, he lied about the fact that he had conspired with Kilimnik. In any case, until the Kilimnik and Oleg Deripaska investigations are closed, Manafort has some exposure.

Things are more complicated still for Stone. There were at least two investigations into Stone — probably on conspiracy and foreign agent crimes — still active in April. If the redactions if Mueller 302s are any indication, Barr shut parts of that investigation down since, which will be of interest on its own right (Congress learned of these ongoing investigations when they got unsealed portions of the Mueller Report that have only recently been made public, and I know there is some interest in learning what those investigations were or are, and that was true even before any discussions about Trump’s abuse of pardons).

In any case, the investigation into a pardon for Julian Assange was active at least as recently as October. Stone has already called on Trump to pardon Assange since his own pardon, potentially a new overt act in a conspiracy. And Trump might well pardon Assange; even pardoning him for the crimes currently charged would be a new overt act in that conspiracy, which would implicate Stone. So even if Barr shut that investigation down, there is already reason to reopen it.

So while Barr may have tried to clean up the remaining criminal exposure against Stone, it’s not clear he could succeed at doing so, much less without creating problems for others going forward.

Mike Flynn:

As I have written, Mike Flynn’s pardon was constructed in a way that attempted to eliminate all criminal exposure that might arise from anything associated with the Mueller investigation for him. In addition to pardoning Flynn for the false statements charge he pled guilty to, it pardons him for lying about being an Agent of Turkey, for being an Agent of Turkey, and for lying to Judge Sullivan.

But it also attempts to pardon Flynn for any crime that might arise out of facts known to Mueller. While, generally, I think the pardon power is very broad, this effectively tried to pardon Flynn for an investigation, not for crimes. Plus, the broadness of the pardon may backfire, insofar as it would strip Flynn of the ability to plead the Fifth more broadly. Even just a retrial of Bijan Kian (unless Trump pardons him and Mike Jr) might force Flynn to commit new crimes, because both telling the truth and lying about his secret relationship with Turkey would be a new crime.

Given his seditious behavior, Flynn might have entirely new criminal exposure by the time Joe Biden is sworn in any case. But the attempt to be expansive with Flynn’s pardon might backfire for him.

Of the five Mueller criminals pardoned so far, only Van der Zwaan is clearly free of danger going forward.

And these five don’t even cover some of the most complex pardon recipients. Any Assange pardon may be the most obviously illegal for Trump (save a self-pardon), because it would involve a quid pro quo entered before he was elected. With Steve Bannon, Trump will need to pardon for another crime, fraud associated with Build the Wall, but if it covers Mueller, it may make it easier for Bannon to repeat what truths he already told to the grand jury. With Rudy Giuliani, Trump will need to pardon for unidentified crimes currently under investigation, but also Rudy’s efforts to broker pardons, which may make the pardon itself more dicey. With Trump’s children (including Jared Kushner), I assume he’ll offer a Nixon type pardon for all crimes committed before the day of pardon. But there may be ways to make them admit to these crimes.

Billy Barr is the best cover-up artist in the history of DOJ. But Trump is attempting to pardon himself out of a dicier situation than Poppy Bush was in Iran-Contra. Plus, even assuming Mueller’s team left everything available for Barr’s discovery, Barr may be hamstrung by the fact that he doesn’t believe in most of the crimes Trump committed, something that could become especially problematic as the full extent of Trump’s dalliance with Russia becomes known going forward. Barr didn’t support some of these pardons, like a hypothetical Assange one. And now, in his absence, Trump has grown increasingly paranoid about Pat Cipollone, who will have to shepherd the rest.

The pardon power is awesome and fairly unlimited. But it’s not yet clear the Mueller pardons will do what Trump hopes they will. With virtually all of them, there are loose strings that, if they get pulled, may undo the immunity Trump has tried to offer.

The Next Gang of Thieves and War Criminals

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

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

Ron Johnson Grasping at Chum

Russian disinformation purveyor Ron Johnson and Chuck Grassley continue to serially demand and release documents from FBI in hopes of sustaining a buzz suggesting that Hillary was treated better than Donald Trump.

The latest batch is a hodgepodge. It purports to be,

messages from former FBI agent Peter Strzok related to Crossfire Hurricane, the FBI’s investigation of Trump campaign and administration officials, and the FBI’s “Midyear Exam” investigation of former Secretary of State Hillary Clinton’s use of a private email server.

But it is actually a hodgepodge, including texts pertaining to Guccifer 1.0, the ongoing hacks of the DNC, and other investigations pertaining to Russia, including the beginnings of a focus on Russia’s 2016 social media campaign. Some of the texts, such as one from October 21, 2016 about leaked Podesta emails involving Obama, don’t obviously involve Strzok at all.

There is no possible set of search terms that would return these texts. But they’re useful to compare with another more motivated set of texts released by the Jeffrey Jensen investigation that overlap with this one. Here’s a set of texts packaged up to justify blowing up the Flynn prosecution.

As a later filing to Judge Sullivan admitted, they were actually repackaged from the FBI original, and in the process an error was introduced into the document (adding the wrong time for the “Will do” text).

The set released to Johnson includes just a few of those texts, completely out of context.

But those texts reveal one reason why the Jensen texts were packaged up: to alter the UTC times to Eastern time, the kind of thing that, for trial exhibits, needs to be formally noticed. It’s the kind of thing Sullivan wouldn’t need to assess the evidence, but that would make the connections Jensen was trying to feed the public (some false) easier to put together.

Neither the Senators, their staff, nor the frothy right seem to have cared that these texts reflect a random grab bag to keep them occupied. Chuck Ross got himself in a tizzy, for example, because Strzok read the Michael Isikoff article reflecting information from Steele and determined that the Steele reports were “intended to influence as well as inform.”

In his rendition of the text, Ross claims that this means Strzok knew “Steele was a source” for the story. Of course, it means no such thing (and Ross had to mis-cite it to make the claim). It actually reflects that Strzok knew Steele’s reports were a source for the story, which was noticed to the FISA Court from the very first application, and so nothing we didn’t already know.

Then there’s the Federalist, which claims that this text proves the FBI was wiretapping calls between Fox News and George Papadopoulos.

The text is a copy of a text sent by someone else (that is, forwarded to the person who forwarded this to Strzok). It appears to come from Chicago (CG). Chicago was running an informant on Papadopoulos, who spoke quite a lot to him while being monitored. The most likely explanation for this is that after news about Sergei Millian was breaking (whose name is redacted in all these texts), Papadopoulos told the informant that Fox had reached out to him. In the same way Papadopoulos bragged falsely about meeting Russia’s ambassador and Putin’s niece, he may well have exaggerated the seniority of the person he spoke with.

Meanwhile, some of the texts provide needed content.

One text explains part of why Joe Pientka wrote up the briefing he gave Mike Flynn, Chris Christie, and Trump in August 2016: to capture what was said in case anyone leaked it.

He was wise to do so! Both Flynn and Trump would go on to make claims about what went on in the briefing, with Flynn falsely claiming that briefers said they disagreed with President Obama’s policies, claims that do not accord with the record — thus far — we’ve gotten of it.

And in January, amid a recurring discussion about how to organize the investigations — and exhibiting a concern that the multiple (Egypt, Flynn on Turkey, Papadopoulos and Israel) different CI concerns would turn into a Trump focused investigation rather than one focused on multiple legitimate concerns run by people with specific expertise to them — Strzok raised the risk of Flynn leaking. Flynn had a history of sharing classified information inappropriately. In one of the calls with Kislyak, Flynn offered up what kind of calls the Transition had been making (which might have been classified if it happened after inauguration).

Flynn: Yeah, there … there, I can tell you that there’s, uh, you know, a litany of countries that are … that we’re talking … I’m … I’m talking directly to. And … and that …

Kislyak: I see.

Flynn: Basically, just as I asked you.

With this disclosure, Flynn basically admitted to the Russians that Trump’s people were conducting a systematic effort to undermine Obama’s policy. And Kislyak just took at all in, letting Flynn run his mouth.

“I see.”

So at a time he would have been reviewing these transcripts and seeing how little filter Flynn had with a hostile country, Stzrok noted that the conversations with Kislyak or others could easily turn into an Espionage investigation, file code 65, if Flynn shared classified information.

There’s more, reflecting a real concern about the leaks that also (rightly) pissed off Trump, along with real efforts to chase them down.

But for now, DOJ and FBI appear to be throwing random shit Ron Johnson’s way to get through the end of the term, when he’ll no longer Chair HGSAC.

Organized Crime

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

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

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

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

Organized crime.

The Forgotten Coffee Boy Errands

Among the things Steve Bannon has lied about most assiduously was the role George Papadopoulos played in setting up a fall 2016 meeting with Abdel Fattah el-Sisi. The first time he was asked about the Egypt meeting in a February 2018 interview with Mueller, he gave Jared Kushner credit. Later in the same interview, Bannon claimed he,

would generally blow off Papadopoulos and thought to himself “I don’t need this guy.” Flynn would be on the hook for the meetings Papadopoulos was suggesting, and Bannon didn’t need Papadopoulos.

Bannon transitioned immediately from that claim to disavowing advance knowledge of the emails Russia had.

Papadopoulos never told Bannon about the Russians having dirt on Clinton, and Bannon never heard Papadopoulos tell anyone in the campaign, such as Sam Clovis, that the Russians had dirt on Clinton.

Of course, by the time Bannon joined the campaign proper, he was already talking to Roger Stone about Russia dealing emails.

In an interview with SSCI, Bannon told even more ridiculous lies about Papadopoulos’ role in the el-Sisi meeting. When asked about a sustained thread between him and the Coffee Boy around the meeting, Bannon claimed he had accidentally emailed Papadopoulos about the meeting when he intended to email someone else.

Between September 16, 2016, and September 18, 2016, Papadopoulos and Bannon exchanged dozens.of messages relating to a potential engagement between President El~Sisi of Egypt and Trump, ultimately confirming a dinner meeting at 9:00 p.m. on Monday, September, 19, 2016. During this email exchange, Bannon asked Papadopoulos to email a briefing in advance of the meeting with President El-Sisi, which Papadopoulos sent noting that “while in Athens over dinner with Greek defense minister last May, he personally introduced me to the Egyptian defense minister and the rest became monthly consultations with the Egyptians in DC.” There are an additional two email messages related to this conversation that were redacted when produced to the Committee. Bannon told the Committee that he mistook Papadopoulos for a separate Campaign staffer and never meant to engage with Papadopoulos on this issue. Bannon Tr., pp. 95-98.

At the time then, Papadopoulos told Bannon that his ties with Egypt started back in May, when he was in Greece the same day as Putin and when he bragged to Greece’s Foreign Minister that the Russians had Hillary’s emails.

These same ties were key to the role that Papadopoulos played during the Transition, when he was hoping Flynn would hire him for a key NSC job on energy (hopes for that job is the excuse he later used for lying to the FBI). He had at least two more substantive discussions with Bannon in this period, one on and following December 9, and another on and following January 4.

Papadopoulos, however, was about to travel to Greece, and was keeping senior members of the Trump Transition Team apprised of his engagements. On December 9, 2016, Papadopoulos passed on a purported request from the Prime Minister of Greece to meet with President-Elect Trump in early January 2017 to Bannon.3415 In an email the following day, December 10, 2016, Papadopoulos further stated that he “[s]poke with the Greek defense minister.3416 They want to sign a government to government agreement with the USA for all rights to all energy fields offshore. Strategic foothold in the Mediterranean and Balkans.”3417 Bannon replied to the note, adding Michael Flynn and Kathleen Troia (K.T.) McFarland to the communication, both of who were-senior national security officials on the Transition Team.3418 Papadopoulos then wrote to the group on December 10, 2016, that the Greek defense minister had “earmarked the island of [K]arpathos for a potential listening post and air base for the US” and further stated “A base on [K]arpathos is key to controlling sea lines of communication in the Aegean/plan b should Incirlik once again become unusable.”3419 The following day, December 11, 2016, Papadopoulos wrote to Flynn’s Transition Team email address, passing along the phone number for Kammenos, the Greek Defense Minister, noting that the “[l]ine is not secure, however. He can pass along a secure number when you both find the time to discuss.”3420

Papadopoulos again reached out to Bannon on January 4, 2017, relaying a request from the Greek Foreign Minister for a phone call with Trump. 3421 Bannon responded, adding Flynn, which Papadopoulos used to also request a meeting with the Egyptian ambassador .. 3422

3415 (U) Email, Papadopoulos to Bannon, December 9, 2016 (B&P GP F:ile 2018 000609).

3416 (U) According to Greek press reporting, Papadopoulos and Kammenos had lunch in Piraeus on Saturday, December 10, 2016, where Papadopoulos described himself as a “representative of Trump.” Kourdistoportocali.com, “World Exclusive: George Papadopoulos. and Panos Kammenos in ‘Dourabei, ‘” December 10, 2016.

3417 (U) Email, Papadopoulos to Bannon, December 10; 2016 (B&P GP File 2018 000609).

3418 (U) Email, Bannon to Papadopoulos, Flynn, McFarland, December 10, 2016 (B&P GP File 2018 000609).

3419 (U) Email, Papadopoulos to Flynn, Bannon, McFarland, and Kellogg, December 10, 2016 (B&P GP File 2018 000610).

3420 (U) Email, Papadopoulos to Flynn, December 11, 2016 (B&P GP File 2018 000610).

3421 (U) Email, Papadopoulos to Bannon, January 4, 2017 (B&P GP File 2018 000635).

3422 (U) Email, Bannon to Papadopoulos and Flynn, January 4, 2017 (B&P GP File 2018 000635); Email, Papadopoulos to Flynn and Bannon, January 6, 2017 (B&P GP File 2018 000635). [my emphasis]

The latter one, in which Papadopoulos wrote Bannon about Greece and Bannon then looped in Flynn, in response to which Papadopoulos also passed on a request from Egypt’s Ambassador, appears to be the email mentioned in an October 2016 warrant application targeting Mike Flynn.

Emails obtained pursuant to a judicially-authorized search warrant show that one or about January 6, 2017, a member of the Trump campaign team on foreign policy issues e-mailed [Flynn] and advised that a foreign government official had been asking to meet with FLYNN. Later that day, FLYNN responded to the Trump campaign member: “We’ll reach out and try to meet this coming week.” FLYNN’s response was also sent to [KT McFarland] and [Flynn’s scheduler Daniel Gelbinovich].

When Papadopoulos testified about this to the House, he left out the Egyptian part of things.

A So I never spoke about Russia at all with Michael Flynn, K.T. McFarland during the transition. It was about an energy project that the Greek Government wanted to discuss with the incoming administration, and that’s why I was put in touch — that’s my understanding of why I was put in touch with Michael Flynn during the transition over email to discuss this deal that, I guess, the Greek Government wanted to discuss with the higher-ups in the incoming administration about, I don’t know, giving U.S. companies rights to their energy reserves, something along those lines.

[snip]

Q Okay. So you never had a conversation or were aware of conversations with Michael Flynn relating to Saudi Arabia?

A To my recollection, the only interactions I had with Michael Flynn were regarding this Greek energy deal, and I think that’s documented in emails.

Even when asked specifically about who else he spoke with in the Transition, Papadopoulos left Egypt off, then claimed not to remember whether he had any meetings with Egyptian officials.

Q Okay. So you never had a conversation or were aware of conversations with Michael Flynn relating to Saudi Arabia?

A To my recollection, the only interactions I had with Michael Flynn were regarding this Greek energy deal, and I think that’s documented in emails.

[snip]

Q Any meetings with Egyptian officials?

A During the transition? I can’t remember, but it’s possible, because I had a very close network with them. But I can’t remember about Egypt in particular.

Given that an Egyptian bank may have given Trump a big infusion of cash after the first meeting, I can understand why everyone would be so forgetful about this meeting.

But given the likelihood all these people will lose their Fifth Amendment privilege after they get pardoned in the next few weeks, perhaps they can be asked to refresh their memory about why the Egypt operation was so closely tied to the Russian one.

The Mistaken Presumptions of Virtually All Discussions of a Future Trump Prosecution

Jack Goldsmith has written a piece arguing against a Trump prosecution under the Biden Administration. He’s wrong on a key point that many other people engaging in this discussion also are. He’s wrong about what crime might be prosecuted and whose DOJ investigated it.

Before I get to that, though, I want to critique two smaller issues in his post.

First, he links to the DOJ IG investigation on Carter Page, apparently suggesting it supports a claim that that report found there were inappropriate parts of the investigation into Donald Trump.

The first in this line was the investigation of the 2016 Trump campaign and presidential transition by the FBI and the Obama Justice Department, which continued with the Mueller investigation. Some elements of this investigation were clearly legitimate and some, clearly not.

Except that’s not what that report shows (even ignoring the report’s own problems). It shows that FBI followed the rules on informants and even on including an investigative agent in Trump’s first security briefing (after which Flynn promptly moved to cover up his secret relationship with Turkey). It shows that there were problems with the Carter Page FISA application. But the single solitary thing in the report that would not survive a Franks review is Kevin Clinesmith’s alteration of an email. Every single other thing would meet the Good Faith standard used in Fourth Amendment review. And all that’s separate from the question of whether Carter Page was a legitimate target for investigation, which the bipartisan SSCI investigation has said he was.

I also disagree with Goldsmith’s concerns about the status of the Durham investigation going forward.

But though Durham started out as a credible figure, the review was damaged from the beginning due to Trump’s and Barr’s ceaseless public prejudging of the case (and, for some, Durham’s response to one of Horowitz’s reports). And all of that was before Barr expanded the investigation into a criminal one and then later appointed Durham as a special counsel to ensure that his criminal investigation could continue into the Biden administration. Once again, the nation is divided on the legitimacy of all of this.

The third challenge, exacerbating the first two, is that these investigations—the FBI investigation of the Trump campaign and transition, the Durham investigation, and the Hunter Biden investigation—extended (or will extend) into an administration of a different party. That means that what began as a cross-party investigation where the worry was bias against political opponents will transform, in the middle of the investigation, into an intraparty investigation, where the worry will shift to one party’s desire for self-protection.

I think the Durham investigation is misunderstood by all sides. Even according to Billy Barr, Durham has debunked some conspiracy theories Republicans have floated and he appears to have moved beyond the question of whether the CIA wrongly concluded that Putin wanted to elect Trump. That means if he were to write a report, it would substantially consist of telling the frothy right that their conspiracy theories were just that, and that George Papadopoulos really did entertain recruitment by at least one Russian agent.

That said, the Durham investigation has, unfortunately, been hopelessly biased by Billy Barr’s work in at least two ways. Durham apparently believes that the treatment of partisan bias at DOJ has been equally applied, which is demonstrably false (which also means he’s relying on witnesses who have themselves committed the sins he has used to predicate his own investigation, using FBI devices to speak for or against a political candidate). More troublingly, every single legal document his prosecutors have filed thus far have betrayed that they don’t understand the most basic things about the counterintelligence investigations they’re focusing on. But because of that ignorance, I’m fairly confident that if Durham tried to prosecute people for the theories that Bill Barr has been pushing while micromanaging this, Durham’s prosecutors would get their ass handed to them. Plus, even without Biden’s AG doing anything, I think there’s a possibility that Durham’s independence can be put to good use to investigate the crimes that Barr’s DOJ may have committed in pushing these theories. And there’s an easy way to solve the political nastiness of Barr’s special counsel appointment: by swapping Durham for Nora Dannehy. In short, freed from the micromanaging and mistaken beliefs of Bill Barr, Durham may evolve into a totally useful entity, one that will debunk a lot of the bullshit that the frothy right has been spewing for years.

In any case, the only reason it would be perceived as a cross-party investigation was the micromanagement of Barr. The FBI is not a member of either party, and if Durham finds real crimes — like that of Clinesmith — by all means he should prosecute. Once he is freed of Barr’s micromanagement, though, he may discover that he was given a very partial view of the evidence he was looking at.

Which brings me to Goldsmith’s treatment of whether or not Trump should be prosecuted. Before giving three reasons why one shouldn’t investigate Trump, he lays out what he sees as the potential crime this way:

Many people have argued that the Biden Justice Department should continue this pattern by examining the criminal acts Trump might have committed while in office—some arguing for a full-blown broad investigation, others (like my co-author, Bob Bauer, in “After Trump”) for a measured, narrowly tailored one. I don’t think this is a good idea. I doubt Trump has committed prosecutable crimes in office (I am confident that obstruction of justice prosecution would fail), I doubt he will ever go to jail if he did commit criminal acts in office (which would make the effort worse than useless), Trump will thrive off the attention of such an investigation, and the Biden administration will be damaged in pursuing other elements of its agenda (including restoration of the appearance of apolitical law enforcement). But the main reason I am skeptical is that such an investigation would, in the prevailing tit-for-tat culture, cement the inchoate norm of one administration as a matter of course criminally investigating the prior one—to the enormous detriment of the nation. (I do not believe that federal investigations for Trump’s pre-presidential actions raise the same risk.

There are two problems inherent with Goldsmith’s logic here, problems that virtually all the other people who engage in this debate also make.

First, he assumes that any prosecution of Trump would have to engage in further investigation. Here’s just one of several places where he makes that assumption clear.

The investigation by one administration of the predecessor president for acts committed in office would be a politically cataclysmic event.

Goldsmith doesn’t consider the possibility that such an investigation was begun under Mueller and continued under Bill Barr, waiting for such time as Trump can be charged under DOJ guidelines. It’s odd that he doesn’t consider that possibility, because Mueller laid that possibility out clearly in the report, describing leaving grand jury evidence banked for such time as Trump could be charged (indeed, it’s fairly clear a January 2019 Steve Bannon grand jury appearance included such evidence). If Bill Barr’s DOJ conducted an investigation that shows Trump committed a crime, it would break out of the tit-for-tat that Goldsmith complains about.

Goldsmith also appears to believe, even in spite of Trump’s transactionalism, that any crime Trump committed in office would have begun and ended during his term of office.

Part of these two errors appear to stem from another one. Goldsmith clearly believes the only crime for which Mueller investigated Trump is obstruction and he dismisses the possibility that an obstruction prosecution would stick. I’m agnostic about whether that view of obstruction is true or not. Even just reviewing how the Mueller Report treated the Roger Stone investigation, though, I’m certain there are places where the Mueller Report protected investigative equities. That may be true of the obstruction case as well. If so, then it would suggest the obstruction case might be far stronger than we know.

But it is false that Mueller only investigated Trump for obstruction. That’s because Trump may have entered into a conspiracy with his rat-fucker. In addition to investigating Roger Stone for covering up who his tie to Wikileaks was, Mueller also investigated Roger Stone for entering the CFAA conspiracy with Russia, a part of the investigation that recently declassified information as well as the warrants in the case make clear continued after the close of the Mueller investigation. Not only did Mueller ask Trump about his contacts with Stone on the specific issue for which the rat-fucker remained under investigation after Mueller closed up shop, but Mueller’s last warrants listed Stone’s written record of his communications with Trump during the campaign among the items to be seized in the search of Stone’s homes. If Stone entered into the CFAA conspiracy with Russia and those contacts show that Trump entered into an agreement with Stone on his part of the conspiracy, then Mueller was investigating Trump himself in the conspiracy. There is no way you target Stone’s records of communications with Trump unless Trump, too, was under investigation for joining that conspiracy.

I know I’m the only one saying this, but that’s in significant part because — as far as I know — I’m the single solitary journalist who has read these documents (plus, the unsealed language showing the investigation into Stone on the CFAA charges got buried in the election). But the record makes this quite clear: by investigating Roger Stone, Mueller also investigated Donald Trump for joining the CFAA conspiracy with Russia that helped him get elected. And because Mueller did not complete the investigation into Roger Stone before he closed up shop, he did not complete the investigation into Donald Trump.

And while I’m less certain, abundant evidence tells us what Stone and Trump’s role in the conspiracy may have been: to enter into a quid pro quo trading advance access to select John Podesta files (and, possibly, optimizing their release to cover up the DHS/ODNI Russian attribution statement) for a pardon for Julian Assange.

Stone did something in August 2016 to obtain advance copies of the Podesta files that the frothy right believed would be particularly beneficial in attacking Podesta and Hillary. Days before the Podesta file release in October 2016, Stone and Credico appear to have started talking about a pardon for Julian Assange. After the release of the Podesta files, Trump discussed reaching out to Assange with more people, including Mike Flynn. And no later than 7 days after the election — and given Credico’s refusal to give a straight answer about this, probably before — Stone set out on an extended effort to deliver on that pardon. And Trump took an overt act, as President, to try to deliver on that quid pro quo when he ordered Corey Lewandowski to tell Jeff Sessions to shut down any investigation into the hack-and-leak (which would have shut down the investigation into Assange’s role in it).

I have no idea whether DOJ obtained enough evidence to charge a former president in conspiring with a hostile foreign power to get elected. The investigation into Stone’s role in the conspiracy may have shut down when Barr’s intervention in Stone’s sentencing led all four prosecutors to drop from the case, so it’s possible that a Biden DOJ would need to resume that investigation (and finish it up before statutes of limitation tolled). Still, as of October 1, when DOJ withheld almost the entirety of two interviews with Margaret Kunstler to protect an ongoing investigation, that part of the investigation was ongoing. So if you want to consider the possible universe of Trump charges, this is the possibility you’d need to consider: that after Mueller shut down but before the end of Barr’s tenure, DOJ acquired enough evidence to prosecute Donald Trump once he becomes available to prosecute under DOJ rules.

I think there are other instances where Trump cheated to win in criminal fashion (even ignoring the hush payments for which he got named in Cohen’s charging documents). For example, Barr very obviously violated DOJ guidelines in his treatment of the whistleblower complaint about the Volodymyr Zelenskyy call, and with the evidence that OMB, State, and DOD withheld from the impeachment inquiry and witnesses subject to subpoena (indeed, at least some of whom will likely have no Fifth Amendment privileges after a pardon), the impeachment case is likely far stronger than Goldsmith imagines. Plus, there is an obvious tie to the SDNY investigation into Lev Parnas (where the whistleblower complaint would have been referred had Barr not violated DOJ guidelines). So on that case, it might be a question of Biden shutting down an ongoing investigation, not one of starting a new investigation.

Perhaps the most difficult and controversial decision for a Biden AG will be whether to reopen the investigation into the Egyptian payment Trump may have gotten in 2016 that kept his campaign afloat, one that SCOTUS reviewed (for the Mystery Appellant challenge) and sustained a subpoena for. Per CNN, DOJ doesn’t yet have enough to prosecute that, but that’s because DOJ chose not to subpoena Trump Organization for documents. And a Biden Administration could sanction the Egyptian bank to require it to cooperate in a way they refused to do under Mueller.

But those two instances can’t be shown via the public evidence. The overt act that Trump took in response to Roger Stone’s request — one Stone documented in a DM to Julian Assange — is public. Importantly, this would be a conspiracy that started before Trump got elected and extended into his presidency.

If you want to imagine whether Biden would prosecute Trump, you have to consider the possibility that he would prosecute Trump for crimes Bill Barr investigated.

Republicans Push to Punish Eric Swalwell because He Didn’t Sell Out the Country Like They Did

I’d like to tell a story about how six different men responded when law enforcement approached them about possible compromise by foreign spies.

Carter Page knowingly shares non-public information with known Russian spies

When Carter Page learned that he had been named in an indictment of Russian spies, he called up a Russian minister at the UN to tell him, in the spirit of openness, he was the guy identified as the recruiting target in the indictment. When the FBI interviewed him about his relationships with those foreign spies, Page admitted he had called the Russian minister, but explained that his relationship with the Russian intelligence officer was positive for him. He later explained that sharing non-public information with people he knew to be foreign spies helped both the US and Russia. Page enthusiastically took a trip to Moscow to give two speeches that — witnesses observed — normally featured far more prominent speakers than Page. Page came back from that trip bragging about the “open checkbook” he had been offered to start a pro-Russian think tank. When Page was asked a year later whether he could see why people thought he was being recruited, he disagreed and — according to an FBI 302 — backed off his prior admission to the FBI that he had reached out to the Russian minister.

For three years, the GOP has claimed that Carter Page is a maligned victim of FBI overreach.

George Papadopoulos refuses to explain the back channel meeting with Putin he tried to schedule

When the FBI first interviewed George Papadopoulos about the suspicious job offers Sergei Millian offered him — an offer to pay him so long as he also worked at the White House, asked how he learned in advance that the Russians had dirt on Hillary that they planned to release to help Trump get elected, and told him they thought he was being recruited, he lied. Among other things, Papadopoulos hid his entire relationship with one Russian national, Ivan Timofeev, whom he had interacted with. After the interview, Papadopoulos called Trump’s personal lawyer and told him of the interview. As others did, Papadopoulos crafted a false statement to share with Congress. In subsequent interviews, even after he agreed to cooperate, Papadopoulos hid the existence of a phone he used to interact with Joseph Mifsud. When asked about notes planning a back channel meeting with Putin’s people in London in September that ultimately didn’t happen, Papadopoulos claimed he couldn’t read his notes to explain the plans.

The GOP not only claimed that Papadopoulos was a maligned hero, the Attorney General of the United States assigned a US Attorney, in part, to fly around the world chasing Papadopoulos’ conspiracy theories in an attempt to substantiate his denials that these were Russian assets trying to cultivate Papadopoulos.

Mike Flynn gets a defensive briefing then hides his Turkish clients

Shortly after the FBI sat down with Donald Trump and Mike Flynn to warn them, generally, about how foreign intelligence services would increase their focus on the two and those around them, Mike Flynn went back to his business partner and the go-between with his Turkish clients, and adopted a new name for the project for Turkey — Confidence rather than Truth — and a payment vehicle that would hide the true client, attempting to sever the prior discussions directly with Turkey’s ministers from the half-million dollar deal that resulted.

Trump just pardoned Flynn for his efforts to hide those ties.

Rather than cooperating with the FBI about Flynn’s suspect Russian calls, Trump fires them

When DOJ came to the White House on January 26, 2017 and told White House counsel Don McGahn that Mike Flynn — seemingly without any approval from Donald Trump himself and clearly without notifying the Vice President — had called up the Ambassador from Russia and, in a conversation where the Ambassador was addressing other issues, raised sanctions imposed to punish Russia and asked the Ambassador not to respond in kind, and then lied about that publicly, McGahn assigned lawyer John Eisenberg to figure out whether Flynn could be prosecuted. Chief of Staff Reince Priebus tried to find out what kind of surveillance Flynn had been and was under. Trump first asked the head of the FBI for loyalty, then asked him to let the investigation of Flynn go, and then fired him to end the investigation.

Trump just pardoned Mike Flynn claiming that it was wrong for the FBI to try to figure out why Flynn had secretly undermined sanctions and then lied about it.

Trump calls Paul Manafort “very brave” for hiding details about his Russian intelligence officer partner

When the government entered into a cooperation agreement with Paul Manafort in 2018, in part to learn what Manafort knew about his business partner Konstantin Kilimnik’s ties to Russian intelligence, and particularly to learn why Manafort had swapped campaign polling data and the campaign’s strategy to win swing states with a discussion of carving up Ukraine and payoffs from Ukranian and Russian oligarchs, the President’s defense attorney remained in regular contact with Manafort’s lawyer to learn about the interrogations. After prosecutors told Judge Amy Berman Jackson on November 26 that Manafort had been lying rather than cooperating — in significant part, it would become clear, to protect his Russian spy business partner — Rudy complained on the President’s behalf about “the un-American, horrible treatment of Manafort.” Not long later, Trump would call Manafort “very brave” for (among other things) lying to prosecutors to protect his Russian spy business partner.

Eric Swalwell cooperates with the FBI and cuts off the Chinese intelligence officer trying to recruit him

According to a recent Axios piece witten without context, when the FBI approach Eric Swalwell and told him a woman volunteering with his campaign was a Chinese spy, he cooperated with the FBI and cut off all contact with her.

A statement from Swalwell’s office provided to Axios said: “Rep. Swalwell, long ago, provided information about this person — whom he met more than eight years ago, and whom he hasn’t seen in nearly six years — to the FBI. To protect information that might be classified, he will not participate in your story.”

What happened: Amid a widening counterintelligence probe, federal investigators became so alarmed by Fang’s behavior and activities that around 2015 they alerted Swalwell to their concerns — giving him what is known as a defensive briefing.

Swalwell immediately cut off all ties to Fang, according to a current U.S. intelligence official, and he has not been accused of any wrongdoing.

For this, GOP Majority Leader Kevin McCarthy and others argue, Swalwell should be kicked off the House Intelligence Committee.

McCarthy, however, is demanding answers from Pelosi and Rep. Adam Schiff, chair of that committee, after Swalwell said they knew about the report.

“This is a national security threat,” McCarthy said. “Now we have Eric Swalwell, who’s been swindled by the Chinese, but what’s even more interesting here is why did he attack the American Director of Intelligence John Ratcliffe’s report talking about the expansion of China spying throughout … just last week. He attacked … Ratcliffe defending China.”

“This man should not be in the intel committee. He’s jeopardizing national security,” he doubled down, adding, “When did Nancy Pelosi know of this and why did she maintain him on the committee? Adam Schiff, who has spent four years as chair worried about the foreign intervention into our country, knowingly keep an individual on the committee, if he knew, as Swalwell says, that he was with a Chinese individual who was a spy, who helped him run for Congress?”

I can only assume that McCarthy thinks that Swalwell cooperated too much with the FBI and should have lied or fired people instead.

 

20 Months: A Comparison of the Mueller and Durham Investigations

Because Jonathan Turley and John Cornyn are being stupid on the Internet, I did a Twitter thread comparing the relative output of the Mueller and Durham investigations in their first 18 months. Actually, Durham has been investigating the Russian investigation for 20 months already.

So I did a comparison of the Mueller and Durham investigations over their first 20 months. Here’s what that comparison looks like.

So, in 20 months, Durham went on a boondoggle trip to Italy with Bill Barr to chase conspiracy theories, charged one person, and had his top investigator quit due to political pressure.

In the Mueller investigation’s first 20 months, his prosecutors had charged 33 people and 3 corporations (just Roger Stone was charged after that) and, with Manafort’s forfeiture, paid for much of their investigation.

Update: I’ve corrected the Manafort forfeiture claim. While I haven’t checked precisely how much the US Treasury pocketed by selling Manafort’s properties, I think the declining value of Trump Tower condos means that Manafort’s forfeiture didn’t quite pay for the entire investigation. I’ve also corrected in which month Manafort was found guilty in EDVA.

Update: In response to the Durham appointment, American Oversight reposted the travel records from the Italy boondoggle, which was actually in September, not October (Barr also made a trip to Italy in August 2019 for the same stated purpose, so I wonder if there were two boondoggles). I’ve corrected the timeline accordingly.