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“ur submission form is too fucking slow, spent the whole day uploading 1 gb.”

As I noted, one of the Roger Stone-related warrant applications released last week includes more details on the communications between the Guccifer 2.0 persona and WikiLeaks leading up to the DNC release. Emma Best examines the filing from a perspective of how someone, purportedly with no prior relationship to WikiLeaks, would go about transferring even a marginally significant submission to WikiLeaks. Almost a month of back-and-forth transpires between the first contact with Guccifer 2.0 and the successful transfer of the DNC files.

A key exchange, however, happened on July 6, 2016. After Guccifer 2.0 inquires whether WikiLeaks received some documents Guccifer 2.0 sent, the persona gets cranky because it took so long to upload a 1 GB file to WikiLeaks submission system. [I’m using Best’s conversion of this filing into a nifty transcription.]

Guccifer 2.0: “fuck, [I] sent 4 docs on brexit on jun 29, an archive in gpg[.] ur submission form is too fucking slow, [I] spent the whole day uploading 1 gb”

WikiLeaks: “We can arrange servers l00x as fast. The speed restrictions are to anonymise the path. Just ask for custom fast upload point in an email.”

Guccifer 2.0: “will u be able to check ur email?”

WikiLeaks: “We’re best with very large data sets. e.g. 200gb. these prove themselves since they’re too big to fake”

Almost two weeks into this exchange, WikiLeaks says they can arrange for a custom server to transfer larger data sets — of around 200 GB.

These exchanges should, to a significant extent, be considered theater. Both sides of this conversation knew that the FBI would be watching all DMs between WikiLeaks and the Guccifer 2.0 persona. So it can’t be taken as a definitive indication of how any files get sent.

Still, it shows how WikiLeaks would respond, using the public communication accounts, to a request to submit data in July 2016.

That’s significant because it shows how things might have proceeded, two months earlier, when Joshua Schulte allegedly sent 1TB of data to WikiLeaks on May 1, 2016.

While the prosecution in Schulte’s case provided forensic evidence to explain when he stole the CIA files and sent them to WikiLeaks, key gaps remain (perhaps most notably, how he got the files out of his building, though that may be because of certain classification decisions). And because Schulte used Tails and wiped his devices afterwards, there’s no record of him actually sending the files.

Here’s how prosecutor Matthew Laroche described that process in his closing arguments.

Just as a general matter, you know this information was transmitted to WikiLeaks because they posted it on the internet. They obviously got it, and the question is when did he send it?

And that’s answered by what he did on the 30th and May 1. Let’s look at the evening of the 30th.

At 6:47 p.m., he is searching for Google history and Google view browsing history. He is concerned about what he’s been searching for. On the evening, that night, he is searching for digital disk-wipe utility on several occasions, and at 10:52 p.m., he visits a website Kill Your Data Dead With These Tips and Tools. The defendant is interested in finding out how to securely delete information that might connect him to the leak, anything that he might’ve brought home with the leak on it, anything that he might’ve used to transfer it.

And at 10:55 p.m., he runs a similar search for SSD wipe utility. And you’ll remember all those hard drives that were recovered from his home. He was wondering how to wipe them to make sure that there was no evidence of his activities.

Now, overnight, he continues working.

At 12:19 a.m., the defendant mounted his D drive onto his virtual machine, the same D drive that had those encrypted files, data2.bkp through data6.bkp. They’re in his D drive. He mounts his D drive.

Then, overnight, he is constantly looking at his computer. On at least four occasions, he is unlocking his virtual machine in the middle of the night: 1:57 a.m.; 2:34 a.m.; 2:56 a.m.; 3:18 a.m. He is doing that because he is transferring data and he wants to make sure it’s happened correctly. And you know that is the case because of the Google searches he runs at of the end the night and the early morning.

At 3:18 a.m., just after he unlocks his screen saver, the defendant searches for How Long Does It Take to Calculate MD5?

Remember, calculating an MD5 is a way to confirm that what you transferred from one place to another is the same, that it went correctly, that there were no errors. You calculate an MD5 to confirm that what you transferred transferred correctly, and that’s what he’s looking for at 3:18 a.m.

Then at 3:21 a.m., the defendant visits a website, How Can I verify That a 1TB File — one terabyte file — transferred correctly?

That description is based off this forensic testimony from Michael Berger.

Prosecutors described this as happening overnight. Overnight transmission of a 1TB file using WikiLeaks’ public submission site would be utterly impossible given the state of it at the time and the volume of data Schulte was transferring, and probably impossible regardless of how much time someone spent. Overnight transmission of 1TB of data using Tails, even to a dedicated server, would be difficult enough. Best describes that, “1 TB over Tor in one night is unlikely.”

The government timeline does have Schulte in possession of the data earlier than that, potentially giving him a week to transfer the data, with this process describing just the end of the process.

Still, the way this would happen, normally, would be for WikiLeaks to set up a dedicated server to accept the files. And that would take prior communication. Such communication likely would have happened over Jabber, not Twitter (Schulte’s opsec was piss poor in many ways but he did use Jabber).

Such a prior conversation is entirely consistent with testimony provided elsewhere, where prosecutors focused on the website’s alternative submission process.

But the seeming necessity for prior communication before this transfer happened suggests Schulte’s alleged theft and transfer of the files might not have been as reactive a decision as portrayed in his prosecution.

It would take premeditation to send WikiLeaks a 1TB file, whatever the timing. Prosecutors may know that, and have an explanation for when such prior communications happened, but they’re withholding those details for any of a number of reasons. Or it may be a big hole in this story. Schulte insists he didn’t do it and a jury failed to convict.

One way or another, however, the state of the WikiLeaks’ submission system as it existed in 2016 presents a big gap in prosecutors’ current story.

Update: Two important details for those trying to figure out how long this transfer would really take. First, Schulte ran a commercial server specifically focused on video streaming at the time, so his upload speeds would not limit the transfer time at all. Second, Schulte at least claimed that hiding data for exfiltration was his speciality. That by itself wouldn’t help him send stuff to WikiLeaks, at least not without prior contact. But it does mean that the means by which he transferred this file relied on tools he has developed at CIA.

On June 24, 2016, WikiLeaks DMed Guccifer 2.0 about Celebrating Brexit

Among the Roger Stone-related warrants released last night is one, dated November 6, 2017, that obtained the WikiLeaks and Julian Assange Twitter accounts.

On or about June 24, 2016, Guccifer 2.0 wrote to Target Account 1, “How can we chat? Do u have jabber or something like that?” I know from my training and experience that “Jabber” is an instant messaging service. Target Account 1 wrote back, “Yes, we have everything. We’ ve been busy celebrating Brexit. You can also email an encrypted message to [email protected] They key is here.” 1 A web link was attached to the message. I know from my training and experience that an encryption “key” is a string of information created for scrambling and unscrambling data.

On July 6 — the day when WikiLeaks asked for Hillary materials — Guccifer 2.0 bitched about WikiLeaks’ slow submission process and claimed to have sent Brexit-related documents days earlier.

On or about July 6, 2016, Guccifer 2.0 wrote to Target Account 1, “have u received my parcel?” Target Account 1 responded, “Not unless it was very recent. [we haven’t checked in 24h].”2 Guccifer 2.0 replied, “I sent it yesterday, an archive of about 1 gb. via [website link]. [A]nd check your email.” Target Account 1 wrote back, “Wil[l] check, thanks.” Guccifer 2.0 responded, ” let me know the results.” Target Account 1 wrote back, “Please don’t make anything you send to us public. It’s a lot of work to go through it and the impact is severely reduced if we are not the first to publish.” Guccifer 2.0 replied, “agreed. How much time will it take?” Target Account 1 responded, ” likely sometime today.” Guccifer 2.0 wrote back, “will u announce a publication? and what about 3 docs [I] sent u earlier?” Target Account 1 responded, ” I don’t believe we received them. Nothing on ‘Brexit’ for example.” Guccifer 2.0 wrote back, “wow. have you checked ur mail?” Target Account 1 replied, “At least not as of 4 days ago . . . . For security reasons mail cannot be checked for some hours.” Guccifer 2.0 wrote back, “fuck, [I] sent 4 docs on brexit on jun 29, an archive in gpg[.] ur submission form is too fucking slow, [I] spent the whole day uploading 1 gb.”

Later that day, amid an ongoing discussion about how to best target Clinton, including WikiLeaks’ request for Clinton Foundation documents, Guccifer 2.0 wrote back and claimed to have sent Brexit documents successfully.

On or about that same day, Guccifer 2.0 sent Target Account 1 a message reading, “sent brexit docs successfully.”

The affidavit, as whole, provides more details about how WikiLeaks and Guccifer 2.0 communicated. But it also suggests that, in addition to playing to their mutual loathing for Hillary Clinton, Guccifer 2.0 also tried to appeal to WikiLeaks’ claimed support for Brexit.

Federal Judge Destroys the Hopes of RICO Salvation in DNC Lawsuit

Yesterday, Clinton-appointed Judge John Koeltl dismissed with prejudice the DNC’s lawsuit against Russia, Trump’s flunkies, and WikiLeaks alleging they conspired against the party in 2016. He also ruled against a Republican demand to sanction the DNC for sustaining their claim in the wake of Robert Mueller finding that he “did not establish” a conspiracy between Trump and Russia. Koeltl’s decision is unsurprising. But his decision is interesting nevertheless for what it reveals about his legal assessment of the events of 2016, not least because of the ways it does and does not parallel Mueller’s own decisions.

The scope of the two analyses is different: The Democrats alleged RICO and some wiretapping charges, as well as the theft of trade secrets; Mueller considered campaign finance crimes and a quid pro quo. A short version of the difference and similarity in outcome is that:

  1. Mueller charged the GRU officers who hacked the DNC for the hack (which DOJ has been doing for five years, but which has never been contested by a state-hacker defendant); by contrast, Judge Koeltl ruled that Russia’s hackers could not be sued under the Foreign Sovereign Immunities Act (which is what the Mystery Appellant tried to use to avoid responding to a subpoena); notably, Elliot Broidy’s attempt to blame Qatar for his hack serves as precedent here. For the DNC, this meant the key players in any claimed conspiracy could not be sued.
  2. While Democrats made a bid towards arguing that such a conspiracy went beyond getting Trump elected to getting Trump to enact policies that would benefit Russia, Koeltl treated any Trump role as just that, attempting to get Trump elected. This meant that (for example) Stone’s alleged criminal obstruction after Trump got elected was not deemed part of any conspiracy.
  3. As Mueller did with both the hack-and-leak itself but also with any campaign finance violation associated with getting hacked documents as assistance to a campaign, Koeltl ruled that the Supreme Court’s decision in Bartnicki meant the First Amendment protected everyone besides the Russians from liability for dissemination of the stolen documents.
  4. DNC’s RICO fails because, while the Trump campaign itself was an association, the DNC claim that there was an Association in Fact under RICO fails because the ties between individuals were too scattered and their goals were not the same. Moreover, the goal of the Trump associates — to get Trump elected — is in no way illegal.

The most important part of the decision — both for how it protects journalism, what it says about the EDVA charges against Julian Assange, and what it means for similar hack-and-leak dumps going forward — is Koeltl’s First Amendment analysis, in which he argued that even WikiLeaks could not be held liable for publishing documents, even if they knew they were stolen.

Like the defendant in Bartinicki, WikiLeaks did not play any role in the theft of the documents and it is undisputed that the stolen materials involve matters of public concern. However, the DNC argues that this case is distinguishable from Bartnicki because WikiLeaks solicited the documents from the GRU knowing that they were stolen and coordinated with the GRU and the Campaign to disseminate  the documents at times favorable to the Trump Campaign. The DNC argues that WikiLeaks should be considered an after-the-fact coconspirator for the theft based on its coordination to obtain and distribute the stolen materials.

As an initial matter, it is constitutionally insignificant that WikiLeaks knew the Russian Federation had stolen the documents when it published them. Indeed, in Bartnicki the Supreme Court noted that the radio host either did know, or at least had reason to know, that the communication at issue was unlawfully intercepted.

[snip]

And, contrary to the DNC’s argument, it is also irrelevant that WikiLeaks solicited the stolen documents from Russian agents. A person is entitled [sic] publish stolen documents that the publisher request from a source so long as the publisher did not participate in the theft. … Indeed, the DNC acknowledges that this is a common journalistic practice.

[snip]

WikiLeaks and its amici argue that holding WikiLeaks liable in this situation would also threaten freedom of the press. The DNC responds that this case does not threaten freedom of the press because WikiLeaks did not engage in normal journalistic practices by, for example, “asking foreign intelligence services to steal ‘new material’ from American targets.” … The DNC’s argument misconstrues its own allegations in the Second Amended Complaint. In the Second Amended Complaint, the DNC states that “WikiLeaks sent GRU operatives using the screenname Guccifer 2.0 a private message asking the operatives to ‘[s]end any new material (stolen from the DNC] her for us to review.'” … This was not a solicitation to steal documents but a request for material that had been stolen. [citations removed]

Koeltl analyzes whether the Democratic claim that GRU also stole trade secrets — such as their donors and voter engagement strategies — changes the calculus, but judges that because those things were newsworthy, “that would impermissibly elevate a purely private privacy interest to override the First Amendment interest in the publication of matters of the highest public concern.”

Koeltl goes on to note that the analysis would be the same for Trump’s associates, even though they make no claim (as WikiLeaks does) to being part of the media.

[E]ven if the documents had been provided directly to the Campaign, the Campaign defendants, the Agalarovs, Stone, and Mifsud, they could  have published the documents themselves without liability because they did not participate in the theft and the documents are of public concern. … Therefore, the DNC cannot hold these defendants liable for aiding and abetting publication when they would have been entitled to publish the stolen documents themselves without liability. [citations removed]

That analysis is absolutely right, and even while Democrats might hate this outcome and be dismayed by what this might portend about a repeat going forward, it is also how this country treats the First Amendment, both for those claiming to be journalists and those making no such claim.

All that said, there are several aspects of this analysis worth noting.

This is a DNC suit, not a suit by all harmed Democrats

First, this is a suit by the DNC. Neither Hillary nor John Podesta are parties. “Podesta’s emails had been stolen in a different cyberattack,” Koeltl said, “there is not allegation they were taken from the DNC’s servers.” Had they been, they would have had to have been prepared to submit to discovery by Trump and his associates.

Including Podesta might have changed the calculus somewhat, though Koeltl does not deal with them (though he does suggest they would not have changed his calculus).

They might change the calculus, however, because (as Emma Best has noted) WikiLeaks did solicit something — the transcripts of Hillary’s speeches — that was subsequently obtained in the Podesta hack. The DNC did not include that in their complaint and that might have changed Koeltl’s analysis or, at a minimum, tested one of the theories the government is currently using in the Assange prosecution.

Similarly, while there is now evidence in the record that suggests Stone may have had advanced knowledge even of the July 2016 DNC dump, the allegations that would show him having had an impact on the release of documents pertains to the release of the Podesta emails. Jerome Corsi (who was added in the DNC’s second complaint but not as a conspirator) claimed that he had helped Stone optimize the Podesta release in an attempt to drown out the Access Hollywood video, but Mueller was not able to corroborate that.

More tantalizingly, a filing in Stone’s case shows that in at least one warrant application, the government cited some conversation in which he and others — possibly Corsi and Ted Malloch — were discussing “phishing with John Podesta.” That’s not something that will be public for some time. But even if it suggested that Stone may have had more knowledge of the Podesta hack then let on, it would be meaningless in a suit brought by the DNC.

No one knows why Manafort shared polling data and his plans to win the Rust Belt (indirectly) with Oleg Deripaska

The second DNC complaint mentions, but does not explain, that Paul Manafort had Rick Gates send polling data to Konstantin Kilimnik intended to  be share with oligarchs including Oleg Deripaska.

At some point during the runup to the 2016 election, Manafort “shar[ed] polling data . . . related to the 2016 presidential campaign” with an individual connected to Russian military intelligence. This data could have helped Russia assess the most effective ways to interfere in the election, including how best to use stolen Democratic party materials to influence voters.

[snip]

In March 2016, the Trump Campaign also hired Manafort. As noted above, Manafort was millions of dollars in debt to Deripaska at the time. He was also broke.55 Yet he agreed to work for the Trump Campaign for free. A few days after he joined the Trump Campaign, Manafort emailed Kilimnik to discuss how they could use Manafort’s “media coverage” to settle his debt with Deripaska.56 Manafort had multiple discussions with Kilimnik in the runup to the 2016 election, including one in which Manafort “shar[ed] polling data . . . related to the 2016 presidential campaign.”57 This data could have helped Russia assess the most effective ways to interfere in the election, for instance, by helping it determine how best to utilize information stolen from the DNC .

[snip]

Manafort lied about sharing polling data with Kilimnik related to Trump’s 2016 campaign.226

The Mueller Report’s further details on the sharing, including Manafort’s review of his strategy to win the Rust Belt, came too late for the complaint. And as such, Koeltl doesn’t really deal with that allegation (which would likely require naming others as conspirators in any case), and instead treats any conspiracy as limited to the hack-and-leak.

Thus, he does not treat the hints of further coordination, nor is there currently enough public evidence for the DNC to get very far with that allegation. This is a ruling about an alleged hack-and-leak conspiracy, not a ruling about any wider cooperation to help Trump win the election.

No one knows what happened to the stolen DNC analytics

Finally, while the DNC complaint extensively described the September hack of its analytics hosted on AWS servers — a hack that took place after Stone scoffed at the analytics released to date by Guccifer 2.0 — Koeltl doesn’t treat that part of the hack in detail because it was never publicly shared with anyone.

The Second Amended Complaint does not allege that any materials from the September 2016 hack were disseminated to the public and counsel for the DNC acknowledged at the argument of the current motions that there is no such allegation.

The DNC included the analytics in their trade secret discussion, but given that Russia had FSIA immunity, and given that the GOP is not known to have received any of this, Koeltl did not consider the later theft (which is not known to have had the same public interest value as the claimed trade secrets that got leaked).

The SAC asserts: “The GRU could have derived significant economic value from the theft of the DNC’s data by, among other possibilities, selling the data to the highest bidder.” There is no allegation that the Russian Federation did in fact sell the DNC’s data, and any claims against the Russian Federation under the federal and state statutes prohibiting trade secret theft are barred by the FSIA.

Finally, given that it was not released publicly Koeltl does not consider how the GRU hack of analytics after Stone’s discussion of analytics with Guccifer 2.0 might change the analysis on whether Stone was involved prior to any hacks.

Similarly, Stone is alleged to have contacted WikiLeaks through Corsi for the first time on July 25, 2016 and spoke to GRU officers in August 2016 — months after the April 2016 hack. Stone is not alleged to have discussed stealing the DNC’s documents in any of these communications, or to have been aware of the hacks until after they took place.

[snip]

DNC does not raise a factual allegation that suggests that any of the defendants were even aware that the Russian Federation was planning to hack the DNC’s computers until after it had already done so.

Again, there’s too little know about the purpose of this part of the hack (which virtually no one is aware of, but which would have been particularly damaging for the Democrats), and as such the DNC would not be in a position to allege it in any case. But it is a key part of the hack that shifts the timeline Koeltl addressed.

Which ultimately leaves Koeltl’s final judgment about the DNC attempt to obtain some kind of remedy for having Trump welcome and capitalize on a foreign state’s actions to tamper in the election. “Relief from the alleged activities of the Russian Federation,” Koeltl said, “should be sought from the political branches of the Government and not from the courts.”

One of the few ways to do that is to impeach.

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

Donald Trump Has a Roger Stone Problem

By all appearances, the investigation into whether Roger Stone bears some liability for the 2016 Russian hacks is ongoing, with new evidence available from the search of his homes, a February search following that, Andrew Miller’s testimony, and anything Ecuador turns over to the US government.

But even without any further charges against Stone, Donald Trump has a Roger Stone problem, one he may not be able to dispense with by pardoning his rat-fucker before Stone’s November trial.

That’s because he could be a lynch pin in the DNC lawsuit against Trump’s campaign and associates, and no one is actually contesting that.

The lawsuit has been inching along with updates after each new batch of evidence. Earlier this week, everyone but WikiLeaks submitted their reply in support of a motion to dismiss (WikiLeaks’ response, which has always been premised on claiming that Julian Assange and WikiLeaks are not the same thing, has gotten more difficult in the wake of Assange’s arrest).

Along with all the replies, the Trump campaign (represented by Jones Day, which has an incentive to bill liberally while the White House tries to prevent partner Don McGahn from testifying to Congress) submitted a motion for sanctions on the DNC for continuing to claim a conspiracy after the Mueller Report made clear there was evidence of a — or several — conspiracies, but nothing for which he had proof beyond a reasonable doubt.

Of course, the standard for a civil case is lower than it is for a criminal one, and to survive the motion to dismiss the DNC doesn’t even have to get that far, which is one of the things the DNC argued when the Trump campaign first threatened sanctions.

In arguing to the contrary, the Trump Campaign commits a logical error that the Report warned readers not to make. Specifically, the Campaign assumes that there were only two possible outcomes from the Special Counsel’s investigation: (1) it would conclusively establish the Trump Campaign’s guilt; or (2) it would conclusively establish the Trump Campaign’s innocence. And because the investigation did not conclusively prove that the Trump Campaign conspired with Russia, the Campaign insists that investigation proved their innocence. By creating a false choice between these two extremes, the Trump Campaign leaves no room for the Report’s actual findings: there was evidence of the Trump Campaign’s guilt, but not enough to establish that guilt beyond a reasonable doubt. On page 2 of the Report, the Special Counsel warned readers not to make that mistake, explaining: “A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.” Report at 2 (emphasis added). Nevertheless, the Trump Campaign’s letter repeatedly and falsely suggests that, if the Special Counsel’s investigation “did not establish” a particular fact, then the investigation refuted that fact. 3. The Campaign’s Letter Overlooks the Differences Between Civil and Criminal Actions

The Campaign’s May 13 letter also overlooks the crucial differences between civil and criminal cases. It is axiomatic that an “acquittal in [a] criminal action does not bar civil suit based on the same facts.” 2A Charles Wright et al, Federal Practice & Procedure § 468 (4th ed. 2013); see also Purdy v. Zeldes, 337 F.3d 253, 259 (2d Cir. 2003). Similarly, the government’s decision not to press criminal charges against a defendant has no effect on civil proceedings. Indeed, civil plaintiffs routinely prevail in cases where the government has declined to prosecute the defendants. See, e.g., In re: Urethanes Antitrust Litigation, No. 04-1616 (D. Kan.) (after the government determined there was not enough evidence to prosecute the defendants, civil plaintiffs took the case to trial and secured a judgment of approximately $1.06 billion). This is not surprising in light of the different standards of proof in civil and criminal cases and the additional sources of evidence available to civil plaintiffs.

First, a civil plaintiff’s burden of proof is much lighter than the government’s burden of proof in a criminal case. See Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 491 (1985) (noting that a civil plaintiff only needs to show that it is more likely than not that the defendants violated the law, while criminal prosecutors must prove their case “beyond a reasonable doubt”). Thus, while the information available in the Special Counsel’s Report may be insufficient to sustain a criminal conviction, a civil jury could find the same information more than sufficient to hold Defendants civilly liable.

[snip]

Moreover, a civil plaintiff can pursue evidentiary avenues unavailable to prosecutors. For example, unlike in a criminal proceeding, where a defendant has no obligation to speak to government investigators regarding her own illegal conduct, a civil plaintiff can compel a defendant to attend a deposition, and if the defendant refuses, she can be held in contempt of court or otherwise sanctioned. See Fed. R. Civ. P. 37(b). Similarly, if a defendant invokes her Fifth Amendment right not to answer specific questions during a deposition or at trial, a civil jury— unlike a criminal jury—can infer that the defendant invoked her rights because she violated the law. See, e.g., See Mitchell v. United States, 526 U.S. 314, 328 (1999); Woods v. START Treatment & Recovery Centers, Inc., 864 F.3d 158, 170 (2d Cir. 2017). Thus, in this case, Trump, Jr., Assange, and the Agalarovs—whom the Special Counsel did not interview—can be compelled to attend depositions, where they will have an incentive to answer the DNC’s questions truthfully (rather than invoking their Fifth Amendment rights).

More interestingly, the motion for sanctions remains utterly silent about one of DNC’s key allegations: Roger Stone’s seemingly successful effort to optimize the WikiLeaks releases.

Admittedly, so is the DNC in its response to the Trump campaign letter, when it points to all the new details in the Mueller Report that supports their suit. But there’s good reason for it: Most of the Roger Stone stuff is redacted.

But the Trump campaign’s silence on Roger Stone is particularly damning because Stone has never address a key observation the DNC has made: that after Stone dismissed the value of leaked DCCC oppo research in a DM with Guccifer 2.0, the GRU went on to hack Democratic data that was quite valuable: their AWS-hosted analytics.

On September 9, 2016, GRU operatives contacted Stone, writing him “please tell me if I can help u anyhow[,]” and adding “it would be a great pleasure to me.” ¶ 179. The operatives then asked Stone for his reaction to a stolen “turnout model for the Democrats’ entire presidential campaign.” Id. Stone replied, “[p]retty standard.” See id.

Throughout September 2016, Russian intelligence agents illegally gained access to DNC computers hosted on a third-party cloud computing service, stole large amounts of the DNC’s private data and proprietary computer code, and exfiltrated the stolen materials to their own cloud-based accounts registered with same service. ¶ 180.

[snip]

Moreover, GRU officers using the screenname Guccifer 2.0 stayed in close contact with Stone, asking for feedback on how they could be most helpful, after Russia had been publicly linked to the theft of Democratic documents. See ¶¶ 167, 177-79. In September 2016, the GRU operatives asked Stone for his reaction to a “turnout model” that the GRU had stolen from another Democratic Party target. ¶ 179. After Stone suggested that he was not impressed, see id., Russia took snapshots of the virtual servers that housed key pieces of the DNC’s analytics infrastructure— its “most, important, valuable, and highly confidential tools,” which could have “provided the GRU with the ability to see how the DNC was evaluating and processing data critical to its principal goal of winning elections,” ¶ 180.

Not only does this put Stone’s interaction with GRU prior to some of the hacking it did, but it undercuts Stone’s entire defense (which is mostly to claim his involvement extends only to John Podesta emails, which he distinguishes from DNC).

The DNC’s second amended complaint does not overcome the lack of standing argument and that it does not allege Roger Stone conspired to damage the DNC; rather, the allegations are only inferences of another conspiracy against John Podesta whose emails were on a Google server – i.e. “gmail.com.” Furthermore, it has no standing against Roger Stone because Plaintiff did not sufficiently allege that he participated in the conspiracy against it.

The DNC keeps raising the September hack — which was clearly a DNC target — and Stone keeps just blowing that allegation off.

As noted above: the Stone material in the Mueller Report is currently redacted. But it’s there, showing that Stone provided Trump non-public details ahead of time (which Michael Cohen has described under oath and Rick Gates apparently has also described) and also showing that Trump wanted the emails and his top aides — including Paul Manafort, Rick Gates, Mike Flynn, and Steve Bannon — made sure he got them.

It is still a very high bar for the DNC to win this suit.

But Roger Stone is a very weak point in the Republican attempt to defeat it. And neither he nor the Trump campaign seem to want to address that fact head on.

If FBI Had Spied on Trump’s Campaign As Alleged, They’d Have Known Why Manafort Traded Michigan for Ukraine

If the FBI had spied on Trump’s campaign as aggressively as alleged by Mark Meadows and Jim Jordan, then Robert Mueller would have been able to determine why Trump’s campaign manager had a meeting on August 2, 2016 to discuss how to get paid (or have debt forgiven) by Ukrainian and Russian oligarchs while discussing how to win Midwestern swing states and how to carve up Ukraine. In fact, the public record suggests that the FBI did not start obtaining criminal warrants on Manafort’s election year activities until the July 25, 2017 warrant authorizing the search of Manafort’s condo, which was the first known warrant obtained on Manafort that mentioned the June 9 meeting. A mid-August warrant authorizing a search of the business email via which Manafort often communicated with Konstantin Kilimnik is probably the first one investigating that August 2 meeting (as distinct from his years of undisclosed Ukrainian foreign influence peddling).

In other words, it took a full year after the Steele dossier first alleged that Paul Manafort was coordinating on the Russian election interference operation, and over a year after he offered Oleg Deripaska private briefings on the Trump campaign, before the FBI obtained a criminal warrant investigating the several known instances where Trump’s campaign manager did discuss campaign details with Russians.

While there are definitely signs that the government has parallel constructed the communications between Kilimnik and Manafort that covered the period during which he was on the campaign (meaning, they’ve obtained communications via both SIGINT collection and criminal process to hide the collection of the former), it seems highly unlikely they would have obtained campaign period communications in real time, given the FBI’s slow discovery and still incomplete understanding of Manafort’s campaign period activities. And the public record offers little certainty about when if ever Manafort — as opposed to Kilimnik who, as a foreigner overseas, was a legitimate target for EO 12333 collection, and would have been first targeted in the existing Ukraine-related investigation — was targeted under FISA directly.

All the while Manafort was on a crime spree, engaging in a quid pro quo with banker Steve Calk to get million dollar loans to ride out his debt crisis and lying to the government in an attempt to hide the extent of his ties with Viktor Yanukovych’s party.

Similarly, by all appearances the FBI remained ignorant of one of George Papadopoulos’ dodgy Russian interlocutors until after his second interview on February 16, 2017, suggesting they not only hadn’t obtained a FISA order covering him, but they hadn’t even done basic criminal process to collect the Facebook call records that would have identified Ivan Timofeev. Papadopoulos told Congress that when the FBI first interviewed him in January 2017, they knew of his extensive Israeli ties, but the asymmetry in the FBI’s understanding of Papadopoulos’ ties suggests it may have come from spying on the Israelis rather than targeting Papadopoulos himself.

Those are a few of the details illustrated by a detailed timeline of the known investigative steps taken against Trump’s associates. The details comport with a claim from Peter Strzok that he lost an argument on August 15, 2016, about whether they should pursue counterintelligence investigations of Trump Associates as aggressively as they normally would. The overt details of the investigation, at least, are consistent with Attorney General William Barr’s May 1, 2019 observation that the investigation into Trump’s associates was “anemic” at first.

The timeline does suggest that one of Trump’s associates may have been investigated more aggressively than he otherwise might have been, given the known facts. That person was Michael Cohen, whom the dossier alleged had played a central role in negotiations with Russia and even — the last, most suspect dossier report claimed — had paid hackers.

Cohen, of course, was never formally part of the campaign.

But even there, Cohen was not under investigation yet at the time Richard Burr shared the targets of the investigation with the White House on March 16, 2017 (at that point, only Roger Stone had been added to Carter Page, Papadopoulos, Manafort, and Mike Flynn, who are believed to be the four initial subjects).

In the days after Robert Mueller was appointed on May 17, 2017, the investigation might still not have amounted to anything, even in spite of Trump’s reaction, “Oh my God. This is terrible. This is the end of my Presidency. I’ m fucked.” The next day, after all, Peter Strzok (who had been involved in the investigation from the start) said, “my gut sense and concern there’s no big there there.” And less than a month later, Lisa Page appears to have suggested to Strzok that the FBI hadn’t decided whether Agents on Mueller’s team would be able to use 702 data — something that, in normal national security investigations, Agents can access at the assessment level.

But by June 21, Mueller was investigating Cohen’s Essential Consulting bank account — the one from which he paid hush payments to Stormy Daniels — because it appeared he was accepting big payments from Viktor Vekselberg, perhaps in conjunction with a plan Felix Sater pitched him on Ukranian peace. At first, Mueller got a preservation order on his Trump Organization emails. But then on July 18 — shortly after Mueller got a preservation order for all of Trump Organization emails in the wake of the June 9 meeting disclosure — Mueller got a warrant for Cohen’s emails, which set off an investigation into whether Cohen had been an unregistered foreign agent for any of a number of countries.

The investigation into the Essential Consulting account would lead the SDNY to charge him in the hush payments. And the collection on Cohen’s Trump Organization emails — collected directly from Microsoft instead of obtained via voluntary production — that would disclose the Trump Tower Moscow plan that Trump lied and lied and lied about.

Only after Mueller started ratcheting up the investigation against Cohen did Mueller first get a warrant on Roger Stone, in August 2017. That’s one of the two investigations (the other being Manafort) that remains ongoing.

Meanwhile, every one of these targets continued to engage in suspect if not criminal behavior. Manafort went on a crime spree to hide his paymasters, stay afloat long enough to re-engage them, and in January 2017 even tried to “recreate [his] old friendship” with Oleg Deripaska. Carter Page went to Moscow in December 2016 and claimed to be speaking on behalf of Trump with regards to Ukrainian deals. Papadopoulos considered a deal with Sergei Millian worth $30,000 a month while working at the White House, starting the day after the election, something even he thought might be illegal (but about which he didn’t call the FBI). Mike Flynn continued to try to implicate Hillary Clinton in his efforts to get Fethullah Gulen arrested on behalf of his secret foreign paymasters, all while getting intelligence briefings. And Cohen moved to collect on reimbursements for the illegal campaign donations he made to silence some of Trump’s former sex partners.

This is just the public record, presented in warrant applications being progressively unsealed by media outlets in court dockets. There may be an entirely asynchronistic counterintelligence investigation conducted using intelligence authorities. Though given the FBI’s actions, it seems highly unlikely, given their apparent ignorance of key details, that’s the case.

Which is to say that the public record supports Peter Strzok’s claims that the investigation lagged what a normal counterintelligence investigation might have. And all the while the investigation slowly moved to uncover the secrets that George Papadopoulos and Mike Flynn and Michael Cohen and Paul Manafort and (allegedly) Roger Stone lied to cover up, those men continued to engage in sketchy behavior, adding more reason to pursue the investigation.

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

Timeline

March 2016: Start date on spreadsheet of communications between Konstantin Kilimnik and Paul Manafort (possible parallel construction, though available portions of chart do not show whether contacts include phone calls).

April 26, 2016: Joseph Mifsud tells George Papadopoulos the Russians have Hillary emails that will be damaging to her that they plan to release to help Trump.

May 6, 2016: Papadopoulos speaks to Downer aide Erica Thompson; this is the day the Mueller Report says Papadopoulos first shared news that the Russians had emails.

May 10, 2016: Papadopoulos tells Alexander Downer some of what Mifsud told him.

June 14, 2016: DNC announces Russia has hacked them.

June 15, 2016: Guccifer 2.0 claims credit for the DNC hack.

June – July 2016: Facebook provides FBI two warnings about GRU using social media to conduct an espionage operation.

July 1, 2016: Christoper Steele writes Bruce Ohr email about “our favorite business tycoon,” referring to Oleg Deripaska, part of an effort to pitch Deripaska as a source to the US.

July 7, 2016: Via email, Paul Manafort offers private briefings on the campaign for Oleg Deripaska.

July 19, 2016: Steele dossier allegations about Carter Page trip to Moscow

July 25, 2016: Stone gets BCCed on an email from Charles Ortel that shows James Rosen reporting “a massive dump of HRC emails relating to the CF in September;” Stone now claims this explains his reference to a journalist go-between. Stone emails Jerome Corsi and tells him, “Get to [Assange]. At Ecuadorian Embassy in London and get the pending Wikileaks emails . . . they deal with Foundation, allegedly.” Corsi forwards that email to Ted Malloch.

July 27: Paul Manafort struggles while denying ties to Russia, instead pointing to Hillary’s home server.

July 27, 2016: In a press conference, candidate Trump:

  • Asks Russia to find Hillary’s missing emails
  • Lies about having ongoing business discussions with Russia
  • Suggests he may have ordered someone to reach out to foreign countries (which he seems to have done with Flynn)
  • Suggests he’s considering recognizing Russia’s seizure of Crimea

Both before and after this press conference, Trump asked aides — including Flynn and Gates, and probably Stone to go find the emails.

July 28, 2016: Paul Manafort gets a refinance in exchange for a campaign position for Steve Calk; this has led to a criminal conviction for Manafort and a bribery charge for Calk.

July 30, August 1, 2016: Papadopoulos and Sergei Millian meet in NYC; Millian invites Papadopoulos to two energy conferences.

Before July 30, 2016: First Steele dossier allegation that Manafort managed cooperation with Russia.

July 30: Bruce and Nellie Ohr meet with Christopher Steele; they talk about two claims from dossier, that “a former head of the Russian Foreign Intelligence Service, the SVR, had stated to someone…that they had Donald Trump over a barrel,” and that Carter Page had met with high level Russians while in Moscow. They also discuss Oleg Deripaska’s efforts to get evidence Manafort owes him money (though not, according to Ohr’s notes, the claim that Manafort was coordinating an election-year operation with Russia) and Russian doping. Ohr passes the information on to Andrew McCabe and Lisa Page.

July 31, 2016: FBI opens investigation into Papadopoulos and others based on Australian tip.

July 31, 2016: GAI report on From Russia with Money claiming Viktor Vekselberg’s Skolkovo reflects untoward ties; it hints that a greater John Podesta role would be revealed in her deleted emails and claims he did  not properly disclose role on Joule board when joining Obama Administration. Stone emails Corsi, “Call me MON,” and tells him to send Malloch to see Assange.

August 1, 2016: Steve Bannon and Peter Schweitzer publish a Breitbart version of the GAI report.

August 2, 2016: Paul Manafort meets with Konstantin Kilimnik to talk 1) how the campaign plans to win MI, WI, PA, and MN 2) how to carve up Ukraine 3) how to get paid by his Ukrainian and Russian paymasters. Corsi writes Stone, “Word is friend in embassy plans 2 more dumps. One shortly after I’m back. 2nd in Oct. Impact planned to be very damaging.”

August 4, 2016: Stone flip-flops on whether the Russians or a 400 pound hacker are behind the DNC hack and also tells Sam Nunberg he dined with Julian Assange.

August 5, 2016: Manafort puts Calk on an advisory committee. Stone column in Breitbart claiming Guccifer 2.0 is individual hacker. Page texts Strzok that, “the White House is running this,” which is a reference to the larger Russian active measures investigation.

August 7, 2016: Stone starts complaining about a “rigged” election, claims that Nigel Farage had told him Brexit had been similarly rigged.

August 8, 2016: CrowdStrike report on hack of Democrats (referred to here).

August 10, 2016: Steele dossier reports on Mike Flynn RT meeting that had already been publicly reported.

August 12, 2016: Guccifer 2.0 publicly tweets Stone.

August 10, 2016: Manafort tells his tax preparer that he would get $2.4 million in earned income collectable from work in Ukraine in November.

August 14, 2016: NYT publishes story on secret ledgers. Corsi would later claim (falsely) to have started research in response to NYT story.

August 15, 2016: Papadopoulos follows up with Sam Clovis about a September 2016 meeting with Russia. Manafort and Gates lie to the AP about their undisclosed lobbying, locking in claims they would make under oath later that fall. In response to NYT story on Manafort’s graft, Stone tweets, “@JohnPodesta makes @PaulManafort look like St. Thomas Aquinas Where is the @NewYorkTimes?” Strzok loses an argument with McCabe and Page about aggressively investigating the Trump leads; afterwards he texts Page, “I want to believe the path you threw out for consideration in Andy’s office—that there’s no way he gets elected—but I’m afraid we can’t take that risk. It’s like an insurance policy in the unlikely event you die before you’re 40….”

August 17, 2016: Trump’s first intelligence briefing. While working as an unregistered agent of Turkey, Mike Flynn accompanies Trump to his intelligence briefing.

August 17, 2016: AP publishes story on Manafort’s unreported Ukraine lobbying, describing Podesta Group’s role at length.

August 19, 2016: Paul Manafort resigns from campaign in part because he was not forthright about his ties to Russia/Ukraine.

August 21, 2016: Roger Stone tweets, it will soon be Podestas’ time in the barrel.

August 23, 2016: Sergei Millian offers Papadopoulos “a disruptive technology that might be instrumental in your political work for the campaign.”

August 24, 2016: CrowdStrike report on hack of Democrats (referred to here).

September 1, 2016: Stefan Halper meets with Sam Clovis.

September 2, 2016: Halper reaches out to Papadopoulos. Lisa Page texts Peter Strzok that “POTUS wants to know everything we are doing;” per her sworn testimony, the text is a reference to the larger Russian investigation.

September 12: Following further reporting in the Kyiv Post, Konstantin Kilimnik contacts Alex Van der Zwaan in attempt to hide money laundering to Skadden Arps.

September 13, 2016: DOJ starts inquiring about Manafort obligation to register under FARA.

September 13-15, 2016: Papadopoulos meets with Stefan Halper and Azra Turk in London. He believes Halper records his answer to the emails question, including his remark it would “treason.”

Mid-September: FBI has opened sub-inquiries into Page and (probably) three other people linked to Trump, including Papadopoulos and probably Manafort and Flynn.

September 19, 2016: As part of his work for Turkey, Flynn meets with Turkish Foreign Minister Mevlut Cavusoglu and Turkish Energy Minister (and Erdogan son-in-law) Berat Albayrak to discuss how to get Fethullah Gulen extradited. After meeting, James Woolsey informs Joe Biden.

September 24, 2016: Trump campaign severs all ties with Carter Page because of his suspect ties to Russia.

Early October 2016: Trump campaign dismisses Papadopoulos in response to Russian-friendly Interfax interview he did.

October 6, 2016: Corsi repeats the Joule/GAI claims.

October 7,  2016: Manafort gets Calk to increase the loan still further. WikiLeaks begins releasing Podesta emails right after Access Hollywood video drops. Steve Bannon associate tells Stone, “well done.”

October 11, 2016: Release of Podesta email allegedly backing Joule story (December 31, 2013 resignation letterJanuary 7, 2014 severance letters).

October 14, 2016: While working as unregistered agent of Turkey, Flynn plans to launch FBI investigation into Fethulah Gulen by alleging ties to Clinton Foundation and Campaign.

October 17, 2016: Michael Cohen forms Essential Consultants LLC.

October 18, 19, 20, 2016: Steele dossier reports on Michael Cohen role in operation.

October 21, 2016: DOJ applies for FISA order on Carter Page (Jim Comey and Sally Yates approve it). Manafort emails Kushner proposing to call Clinton “the failed and corrupt champion of the establishment” based on using WikiLeaks’ leaks. “Wikileaks provides the Trump campaign the ability to make the case in a very credible way – by using the words of Clinton, its campaign officials and DNC members.”

October 26, 2016: Cohen opens bank account for Essential Consultants, claiming it will be for his consulting with domestic clients, uses it to pay Stormy Daniels $130,000 to prevent her from sharing true information about Trump.

October 30, 2016: Giorgi Rtslchiladze texts Michael Cohen to tell him he has stopped the flow of some compromising tapes in Moscow.

November 5, 2016: Manafort predicted Hillary would respond to a loss by, “mov[ing] immediately to discredit the [Trump] victory and claim voter fraud and cyber-fraud, including the claim that the Russians have hacked into the voting machines and tampered with the results.”

November 8, 2016: Mike Flynn publishes op-ed for which Turkey paid almost $600,000, without disclosure, thereby serving as an unregistered agent of a foreign government; Steve Calk approves $9.5 million to Manafort he knew wasn’t backed by underwriting. Michael Cohen starts contacting Andrew Intrater regularly.

November 9, 2016: Papadopoulos arranges to meet Millian to discuss business opportunities with Russian “billionaires who are not under sanctions.”

November 10, 2016: Obama warns Trump against picking Mike Flynn as National Security Advisor; Mike Flynn gets his third payment for working as an unregistered agent of Turkey.

November 11, 2016: Calk asks his loan officer to call Manafort to find out if he’s under consideration for Secretary of Treasury.

November 14, 2016: Calk gives Manafort a list of potential roles in the Trump Administration; Manafort claims he is “involved directly” in the Transition; Papadopoulos and Millian meet in Chicago. Carter Page applies for a job in the Administration.

November 16, 2016: Calk’s bank closes on Manafort’s loan.

November 18, 2016: Elijah Cummings warns Mike Pence about Mike Flynn.

November 30, 2016: Manafort asks Jared Kushner to get Calk appointed Secretary of the Army, in response to which Kushner said he was “on it!”

December 8, 2016: Kilimnik raises plan to carve up Ukraine again in (probably foldered) email to Manafort; he also reports, “Carter Page is in Moscow today, sending messages he is authorized to talk to Russia on behalf of DT on a range of issues of mutual interest, including Ukraine.”

December 13, 2016: Steele dossier reports Michael Cohen contributed money for hackers.

December 15, 2016: Manafort arranges Calk interview for Under Secretary of the Army.

December 22, 2016: Calk directs his loan officer to approve a further $6.5 million loan to Manafort because he’s “influential.”

December 29, 2016: Flynn convinces Kislyak to hold off on retaliating for sanctions.

December 31, 2016: Kislyak tells Flynn they’ve held off because of Trump’s wishes.

January 3, 2017: Loretta Lynch approves procedures authorizing the sharing of NSA EO 12333 data with other intelligence agencies.

January 4, 2017: Manafort signs new $6.5 million loan.

January 5, 2017: IC briefs Obama on Russian investigation; possible unmasking of Flynn’s name in Sergei Kislyak transcripts in attempt to learn why Russians changed their response to sanctions.

January 6, 2017: Comey, James Clapper, John Brennan, and Mike Rogers brief Trump on Russian investigation.

January 10, 2017: Calk interviews for Under Secretary of the Army job. Intrater emails Cohen about the Russian Union of Industrialists and Entrepreneurs, referencing Victor Vekselberg.

January 12, 2017: Manafort in Madrid at meeting set up by Kilimnik and Boyarkin to “recreate old friendship” with Deripaska; Manafort stated that “need this finished before Jan. 20.”

January 12, 2017: DOJ applies for FISA reauthorization on Carter Page (Jim Comey and Sally Yates approve it).

Before January 15, 2017: Steve Bannon would have been picked up on a FISA intercept targeting Carter Page telling him not to do an appearance on MSNBC.

January 19, 2017: In NYT report that Manafort investigation relies on foreign intercepts (without specifying whether he or others are targeted), he denies the kinds of meetings he had a week earlier. Stone has (probably erroneously) pointed to mention of his name in article to claim he was targeted under FISA.

January 20, 2017: In conjunction with inauguration, Manafort meets with Ukrainian oligarchs and Papadopoulos parties with Millian.

January 24, 2017: FBI interview of Mike Flynn.

January 27, 2017: FBI interview of George Papadopoulos.

Between January 27 and February 16, 2017: FBI asks if Papadopoulos is willing to wear a wire targeting Mifsud, suggesting they believed his comments in the first interview.

February 10, 2017: FBI interviews Mifsud in DC.

February 16, 2017: By his second FBI interview, FBI still has not subpoenaed logs from George Papadopoulos’ Skype and Facebook accounts (because they don’t know about Ivan Timofeev).

February 17, 2017: Papadopoulos attempts to delete his Facebook account.

February 23, 2017: Papadopoulos gets a new phone.

February 26, 2017: Manafort and Kilimnik meet in Madrid and again discuss Ukraine plan.

March 2017: Carter Page interviewed five times by FBI.

March 5, 2017: White House Counsel learns the FBI wants transition-period records relating to Flynn.

March 7, 2017: Flynn submits a factually false FARA registration.

March 10, 2017: FBI interviews Carter Page.

March 16, 2017: Richard Burr tells White House Counsel FBI is investigating Flynn, Manafort (though not yet for his campaign activities), Carter Page, George Papadopoulos, and Roger Stone. FBI interviews Carter Page.

March 20, 2017: Jim Comey confirms investigation.

March 30, 2017: FBI interviews Carter Page.

March 31, 2017: FBI interviews Carter Page.

Early April 2017: DOJ obtains reauthorization for FISA order on Carter Page (Comey and Dana Boente approve it).

May 7, 2017: Cohen has meeting with Vekselberg at Renova.

May 9, 2017: Jim Comey fired, ostensibly for his treatment of Hillary Clinton investigation; within days Trump admits it was because of Russian investigation.

May 17, 2017: Appointment of Mueller; Rosenstein includes Carter Page, Paul Manafort, and George Papadopoulos along with Flynn in the list of Trump officials whose election year ties might be investigated.

May 18, 2017: Strzok texts Page that, “my gut sense and concern there’s no big there there” in the Russian investigation.

May 27, 2017: Application for search of Manafort’s storage compartment does not mention June 9 meeting.

May 28, 2017: Lisa Page assigned to Mueller’s team.

Early June 2017: Peter Strzok assigned to Mueller’s team.

June 2017: Federal agents review Michael Cohen’s bank accounts.

June 6, 2017: Mueller team still not certain whether they would search on Section 702 materials.

June 16, 2017: Trump campaign tells Mueller GSA does not own Transition materials.

June 21, 2017: FBI sends a preservation order to Microsoft for Michael Cohen’s Trump Organization account.

June 29, 2017: DOJ obtains reauthorization for FISA order on Carter Page (Andrew McCabe and Rod Rosenstein approve it).

July 7, 2017: First date for warrants from Mueller-specific grand jury. (D Orders, PRTT)

July 12, 2017: Mueller subpoenas people and documents pertaining to June 9 meeting.

July 14, 2017: FBI sends a preservation order to Microsoft for all Trump Organization accounts.

July 15, 2017: Lisa Page leaves Mueller team.

July 18, 2017: Application for search of Michael Cohen’s Gmail reflects suspicions that Essential Consulting account used for payments associated with unregistered lobbying for Ukraine “peace” deal (name of AUSA approving application redacted); warrant obtains email from January 1 through present.

July 19, 2017: Peter Strzok interviewed, apparently to capture events surrounding Flynn firing.

July 20 and 25, 2017: FBI sends grand jury subpoenas for call records related to Michael Cohen Trump Organization account.

July 25, 2017: Application for search of Manafort’s condo includes request for materials relating to June 9 meeting; does not mention election year meetings with Kilimnik.

July 27, 2017: Early morning search of Paul Manafort’s condo. Horowitz tells Mueller about Page-Strzok texts. George Papadopoulos arrested.

July 28, 2017: Strzok moved off Mueller team.

August 2017: First search warrant obtained against Roger Stone, focused on CFAA.

August 1, 2017: Application for search warrant for Cohen’s Trump Organization email account adds Bank Fraud to suspected crimes; Mueller signed the nondisclosure request.

August 2, 2017: Rosenstein memo codifies scope to include Carter Page, Paul Manafort, and George Papadopoulos already under investigation, adds the Manafort financial crimes, the allegations that Papadopoulos had acted as an unregistered agent of Israel, and four allegations against Michael Flynn.

August 7, 2017: FBI obtains search warrant on Cohen’s Apple ID.

August 11, 2017: Strzok receives his exit clearance certificate from Mueller’s team.

August 17, 2017: Application for Manafort’s [email protected] email includes predication (probably Russian investigation related) unrelated to his financial crimes. (A warrant for Rick Gates and Konstantin Kilimnik’s DMP emails submitted that day does not include predication outside of the lobbying.)

August 17, 2017: Andrew McCabe interviewed.

August 23, 2017: Mueller requests Transition emails and devices for nine Transition officials from GSA.

August 30, 2017: Mueller requests Transition emails and devices for an additional four Transition officials.

September 19, 2017: CNN reports that FBI obtained a FISA warrant on Paul Manafort (though claims that search of storage facility happened under FISA, not criminal, warrant).

October 20, 2017: Rosenstein expands scope to include Michael Cohen, Rick Gates, Roger Stone, Don Jr, and at least one other person, plus Jeff Sessions’ lies to Congress.

November 13, 2017: FBI obtains Cohen’s Gmail going back to June 1, 2015 (prior warrants covered January 1, 2016 to present) and personal email hosted by 1&1.

January 19, 2018: Trump signs 702 reauthorization without any new protections on back door searches.

January 29, 2018: By this date, White House had turned over 20,000 pages of records to Mueller covering (see this post for more background):

  • White House response to DOJ concerns about Mike Flynn, his resignation, and White House comments about Jim Comey
  • White House communications about campaign and transition communications with Manafort, Gates, Gordon, Kellogg, Page, Papadopoulos, Phares, Clovis, and Schmitz
  • Records covering Flynn’s campaign and transition communications with Kislyak and other Russian officials, as well as the May 10, 2017 meeting
  • Records relating to the June 9 meeting
  • Records pertaining to Jim Comey’s firing

Between that date and June 5, 2018, the White House also turned over:

  • McGahn’s records pertaining to Flynn and Comey firings
  • White House Counsel documents pertaining to research on firing Comey before it happened
  • Details on the Bedminster meeting in advance of Comey’s firing
  • Details on McCabe’s communications with Trump right after he fired Comey
  • Details on the Trump’s actions during the summer of 2017 during events pertaining to obstruction

March 2018: Mueller subpoenas Trump Organization.

March 9, 2018: Application for search of five AT&T phones includes predication (and, apparently, phones) unrelated to Paul Manafort.

April 9, 2018: Michael Cohen raid.

June 5, 2018: White House turns over some visitor log information.

August 3, 2018: Three warrants against Stone in DC, focused on CFAA (per May 14, 2019 ABJ minute order).

August 8, 2018: Search warrant against Stone in DC, focused on CFAA (per May 14, 2019 ABJ minute order).

Around January 25, 2019: One SDNY, two SDFL, and one DC warrant against Stone focused on false statements.

January 25, 2019: Roger Stone raid and arrest.

February 2019: One DC warrant against Stone focused on CFAA.

Two Factors that May Change the Impeachment Calculus, Part Two: Criminalizing a Roger Stone Pardon

In this post, I described how recent developments in Michael Cohen’s case give Congress a number of reasons to use it as a basis for impeachment. The neat fit of so many details might affect the calculus on whether Democrats carry out an impeachment inquiry on Trump.

In this post, I’ll point to a cynical electoral reason to begin impeachment: to prevent Trump from preempting Stone’s pre-election trial which, if it takes place in November 2019 as scheduled, will be utterly damning to the President. Don’t get me wrong — Democrats should move to stop Trump from using pardons to suborn perjury as a basic rule of law thing. But the timing of Stone’s trial and the extent to which it will implicate the President makes that imperative electorally beneficial for Democrats as well.

Even as currently charged, Stone’s case implicates the President directly

As I’ve noted, because everything in the Mueller Report pertaining to Roger Stone got redacted to (appropriately) preserve Stone’s right to a fair trial, lots of details on how Trump himself was involved in pushing Stone to optimize the WikiLeaks releases is redacted.

[I]t seems highly likely that some of the information in these redacted passages is stuff that would only prejudice Stone’s case by raising the import of it to Trump.

Consider, for starters, that (unless I’m mistaken) not a word from Stone’s indictment appears in this Report. [For example,] the indictment makes it clear that Stone was talking to the campaign about WikiLeaks releases.

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

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

[snip]

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

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

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

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

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

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

So the part of the 2016 operation that clearly amounted to coordination but was not charged because of First Amendment considerations, and the part of the 2016 operation for which (perhaps because witnesses learned it would not be charged as a conspiracy) there’s the most evidence of Trump’s direct involvement, remains hidden from view out of concerns for Stone’s due process rights.

Right now, Stone’s trial is scheduled to start on November 5. A recent status report on Rick Gates’ cooperation makes it clear he is likely to be a witness at Stone’s trial. While Gates’ testimony is probably not necessary to prove that Stone lied to HPSCI, it would be useful to explain Stone’s motive: significantly, protecting Trump.

If Andrew Miller’s testimony leads to new charges, the tie to Trump may be still more damning

Tuesday, the DC Circuit Court issued its final order in Stone associate Andrew Miller’s challenge to a grand jury subpoena.

Yesterday — technically minutes after Mueller’s press conference announcing the investigation was completed and he’s going home — Judge Beryl Howell rejected another attempt by Miller to challenge the subpoena. Multiple outlets report that he has agreed to testify Friday at 9:30.

Miller’s testimony Friday is premised on potential new charges against Stone and before Howell rejected Miller’s challenge, Aaron “Zelinsky and Jonathan Kravis from the US Attorney’s Office in DC told the judge privately why they still needed Miller.”

Last night, Howell released some of the details behind Miller’s most recent challenge. Along with a useful timeline from Miller’s lawyers on their challenge, it makes it pretty clear that prosecutors are still looking for information on (as Miller lawyer Paul Kamenar describes it) “Roger Stone’s actions during the 2016 election and his involvement in WikiLeaks, Julian Assange, and the hacking of Hillary Clinton’s and the DNC’s emails and any collusion with Russia” or (as Aaron Zelinsky has described it), “Roger Stone’s connection to WikiLeaks, Julian Assange, Guccifer 2.0, Russia.”

In other words, it appears that prosecutors might still indict Stone with new crimes pertaining to the core issues that were under investigation.

That’s one reason I find the timing of Mueller’s announcement so interesting. The Howell hearing yesterday was technically after Mueller’s statement finished. I don’t know when yesterday’s announcement will become official, but it would seem to be final before Friday’s Miller grand jury appearance.

That would mean any charges that former Mueller prosecutor Aaron Zelinsky (as well as DC AUSA Jonathan Kravis, who has picked up the bulk of the ongoing matters from Mueller’s team) might decide to pursue after Friday would be subject neither to the logic of the Mueller investigation — which decided not to charge Stone for some WikiLeaks-related crimes in part based on First Amendment considerations, nor to the direct supervision of Attorney General Barr.

As I’ve noted, the logic EDVA used in its superseding indictment of Assange is in direct conflict with the logic Mueller used in deciding that WikiLeaks’ and Trump’s “wish lists” for Hillary emails do not establish a basis for a conspiracy charge in the same way WikiLeaks’ wish list for classified materials was used. That might mean that decisions made after Miller’s testimony Friday would work out differently than decisions on Stone’s charges in January. Mueller’s off the case. It’s DC US Attorney Jesse Liu’s decision now.

All of which is to say, even assuming Friday’s testimony doesn’t lead to new charges, unless Trump finds a way to pre-empt Stone’s trial, it will mean some of the most damning information about Trump’s involvement in what Mueller didn’t charge as conspiracy but which by most definitions would count as “collusion” will get aired less than a year before the 2020 election.

Given how rock solid that Stone indictment is, there are just two ways to avoid that: for Stone to flip on Trump or others (though prosecutors are unlikely to give Stone a deal without vetting his claims after the way Paul Manafort abused the process, and it would be too late to flip on Assange). Or for Trump to pardon Stone.

Some of the clearest evidence of obstruction of justice in the Mueller Report pertains to Trump floating pardons, including a 2.5 page redacted passage (Volume II pages 128-130) pertaining to Stone himself. Even Bill Barr says it would be a crime to float pardons to prevent someone from testifying truthfully. Note, too, that Mueller asked Trump whether he considered pardoning Assange before he was inaugurated (to which Trump gave a typically contemptuous non-answer), and Stone was involved in an attempt to pardon Assange as recently as January 2018, which has been the subject of Mueller’s questioning.

The political hit from a Stone trial — and the kind of pardon-related obstruction that Barr himself conducted to kill the Iran-Contra investigation — might well be enough for Trump to prefer the political hit of pardoning Stone. Democrats have one way of altering that calculus to ensure the Stone trial — with all the damning details of Trump’s actions it’ll reveal — happens as scheduled.

While I’m not, at all, a fan of gaming trials for political effect, the fact of the matter is that if Stone’s trial goes forward, it would present as damning a case against Trump’s cheating as any impeachment trial could do. But to ensure that happens, Democrats need to make it clear that pardoning his way out of this will incur even greater costs for the President.

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

In a Shoddy Attempt to Inflate the Single Server Fallacy, Roger Stone Suggests Communicating with Guccifer 2.0 Would Be Criminal

In a frivolous pair of motions, Roger Stone is going after CrowdStrike’s analysis of the Russian hack. In the first, he demands full unredacted copies of CrowdStrike’s reports on the hacks. He bases that demand on a claim the CrowdStrike reports are material to a motion to suppress the warrants against him because — he claims, falsely — the government relied exclusively on the CrowdStrike reports to decide Russia had hacked Democratic targets, so if the reports are faulty, then so are the warrants.

The entire stunt is based off what appears to be an inaccurate claim — that this government response to some other frivolous motions claimed they didn’t have to prove that Russia hacked Democratic targets.

The Government stated in its Opposition to Stone’s Motion to Dismiss (Dkt # 99) that it will not be required to prove that the Russians hacked either the Democratic National Committee (“DNC”) or Democratic Congressional Campaign Committee (“DCCC”) from outside their physical premises or that the Russians were responsible for delivering the data to WikiLeaks.

Maybe he’s thinking of another government response to his motions that notes they don’t have to prove an underlying crime to prove obstruction, but the one he cites (without paragraph citation) doesn’t make that claim. I mean, it is true that the government doesn’t have to prove the underlying crime, but that’s still another issue than having to prove what physical premises the Russians hacked the DNC from.

In his demand for the CrowdStrike servers, Stone at least claims he’s making the demand to distinguish his case from all the other Trump flunkies prosecuted for lying to Congress and mount a materiality challenge to his false statements prosecution.

As to selective prosecution, if the Russian state did not hack the DNC, DCCC, or Podesta’s servers, then Roger Stone was prosecuted for obstructing a congressional investigation into an unproven Russian state hacking conspiracy, while others similarly situated were not. Lastly, if the Russian state did not hack the servers or did not transfer the data to WikiLeaks, the exculpatory evidence regarding materiality, a factual issue for the jury, is amplified.

But in his Fourth Amendment challenge, Stone suggested that if Russia didn’t hack the Democrats and hand the documents to WikiLeaks, then speaking to WikiLeaks and Guccifer 2.0 would not be a crime.

If these premises are not the foundation for probable cause, Roger Stone communicating with a Twitter user named “Guccifer 2.0” or speaking with WikiLeaks, would not constitute criminal activity.

Hmm.

Speaking to WikiLeaks and Guccifer 2.0 would only be a crime if Stone engaged in a conspiracy with them, and a good bit of the redacted language on prosecutorial decisions in the Mueller Report probably says the First Amendment otherwise protects such speech. That said, the claim that talking to them would be a crime is interesting given some of the crimes for which the government showed probable cause in his warrant affidavits.

The search warrant applications however, allege that the FBI was investigating various crimes at different times, such as Stone for accessory after the fact, misprision of a felony, conspiracy, false statements, unauthorized access of a protected computer, obstruction of justice, witness tampering, wire fraud, attempt and conspiracy to commit wire fraud, and foreign contributions ban. The uncharged conduct particularly relied upon the assumptions the Russian state is responsible for hacking the DNC, DCCC,1 and even (although not as clear) Hillary Clinton campaign manager, John Podesta.

Stone is not, here, claiming that the government didn’t show a lot of evidence he engaged in these crimes (and remember, the government has told Andrew Miller that they’re likely to supersede Stone’s current indictment after they get Miller’s grand jury testimony, the content of which they know from an FBI interview last year). Rather, he’s claiming that these hacking-related crimes would only be illegal if the Russians did the hacking. (I really look forward to the government response to this, because some of these crimes would be crimes based on Julian Assange’s foreign status, not GRU’s, and wire fraud is a crime all by itself.)

Perhaps most interesting is the way Stone’s lawyers dismiss the Mueller Report (and the GRU indictment’s) focus on DCCC and Podesta documents. A footnote even suggests falsely that the Mueller Report said the DCCC documents did not get released.

WikiLeaks never released the DCCC documents. The Mueller report suggests the hack of the DCCC only provided additional keys to access the DNC servers.

At one point — perhaps a critical one — Stone uses the fact that the GRU hacked the DNC’s AWS server after Stone dismissed the value of the DCCC oppo research Guccifer 2.0 discussed with Stone in early September 2016 to suggest CrowdStrike was not competent.

CrowdStrike’s three draft reports are dated [sic] August 8 and August 24, 2016. The Mueller Report states Unit 26165 officers also hacked into a DNC account hosted on a cloud-computing service on September 20, 2016, thereby illustrating the government’s reliance on CrowdStrike even though the DNC suffered another attack under CrowdStrike’s watch.

Of course, CrowdStrike had little ability to protect AWS’ servers.

Ultimately, this is an attempt to misrepresent the Mueller Report and GRU indictment to shift the focus away from the Podesta and DCCC documents — where Stone’s greater criminal exposure might lie — and onto the Single Server Fallacy about the DNC server, which is irrelevant to those other documents.

And along the way, Stone lays out a good number of impressive crimes he was and may still be at risk for, and admits the government believed his actions are closely enough tied to the hacks to get redacted copies of the CrowdStrike reports in discovery. He also concedes (incorrectly) that simply speaking to WikiLeaks and Guccifer 2.0 may be a crime.

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

The Many Sided Stone: The Investigation Is Not Over

While we have been talking about how good and done Robert Meuller’s investigation is, a slew of filings and other reports relating to Roger Stone in the last few days remind us that the fruits of his investigation are definitely not done.

Roger Stone’s cry for help

As background, consider this cry for help, in a local, as opposed to the kind of national media outlets that had recently hung on Roger’s every word. In it, he describes the burden of spending all his money on defense attorneys.

“The worst part of this is being broke,” he said on the SiriusXM program that airs weekdays on the Faction Talk channel 103.

“I’ve lost my home, my insurance, what little savings I had, my ability to make a living because people pay me to write and talk, and of course the things they want me to write and talk about are the very things I’m not allowed to talk and write about. In the blink of an eye you can lose everything.

“I have to pay everything I have to lawyers. And I could no longer pay the rent in the property that I was in. I moved from a nine-bedroom house to a one-bedroom apartment. Had to do the move myself with my wife renting a truck. On the last day of the move in kind of a freak accident the truck slips out of gear and rolls over my wife’s ankle, breaking it.”

More interestingly, Stone claims he hasn’t spoken with Donald Trump for almost two years (he doesn’t say whether his attorneys have spoken to Trump’s attorneys).

“I’ve known him for 40 years. We’re very good friends. I don’t agree with everything he does, I agree with a lot of what he does,” Stone said. Stone said Trump was at his wedding, and he at two of Trump’s weddings; he was at the funerals for Trump’s parents, and is friendly with his sister. “I do miss him.”

He also complains that Alex Jones is not selling T-shirts for him.

“I am grateful for Alex Jones for giving me a platform. He is a friend of mine. I like the guy, I like hanging out with him. I do not agree with everything he says, I agree with some of the things he says. He probably doesn’t agree with everything I say. But you know, the check would be nice.”

While I’m sure Stone exaggerates his financial straits, I’m also sure they’re considerable. These two specific calls for help, though (especially in the wake of allegations that InfoWars may have been providing hush money to Jerome Corsi), are especially interesting.

Stone’s throw of the dice

Meanwhile, the lawyers that are bankrupting Stone have been busy, filing six challenges to his indictment last night, several of them meritorious, the others not. The motions include:

  1. A bid to throw out the prosecution on several grounds designed to appeal to William Barr’s prejudices
  2. A demand for the full Mueller report based on some specious (appeals to Bill Barr) and some justified bases (prosecutorial decisions on Jerome Corsi and Randy Credico)
  3. A motion to enjoin his prosecution based on a claim that Congress hadn’t funded this Special Counsel investigation
  4. A motion to dismiss based on the claim that Mueller violated separation of powers by charging him for lying to HPSCI without a formal referral
  5. A request for discovery to support a selective prosecution claimed designed, in large part, to accuse Randy Credico of lying to the grand jury
  6. A renewed objection to having his case judged by Amy Berman Jackson along with the GRU hackers

He seems to be pursuing several strategies (beyond just throwing a bunch of spaghetti against the wall).

Embarrass Credico

The first is to use the motions process to discredit the witnesses against him. That’s most true of a passage of his selective prosecution motion that accuses Credico of lying to the grand jury.

Another witness, Randy Credico lied about speaking to Assange and Assange’s lawyer to federal agents. It is curious that the Special Counsel found one aspect of Credico’s interactions with Stone so compelling that it made its way into Stone’s Indictment. In Paragraph 14(e) of the Indictment, the Special Counsel quotes the conversation between Stone and Credico from Credico’s radio show of August 23, 2016. Stone and Credico have a discussion regarding communications with the “head of Organization 1.” Yet, astonishingly, in Credico’s testimony to the Grand Jury (DOJ-3500-RC-000111) Transcript Page 44, Lines 7-22, Credico tells the Grand Jury that on the very show they quote, Stone and Credico never discussed the head of Organization 1. For unknown reasons and the precise reason why discovery is mandated in these situations, the Special Counsel elected not to charge Credico with lying to the Grand Jury, something expressly within their regulatory authority.

Later in his testimony, Credico says that prior to his interview with presidential candidate Gary Johnson on September 10, 2016, that he had never spoken to Stone about WikiLeaks or Assange.3 This is a demonstrated lie as according to the text messages between Stone and Credico that Stone voluntarily released, and the Special Counsel possessed. As early as August 19, 2016, Credico was bragging to Stone that he had a connection to Assange and that it was through Margaret Kunstler, Esq., an attorney represented to be on Julian Assange’s legal team. There is no indication based on the initial review of discovery provided by the government that the Grand Jury was ever informed of Credico’s lies regarding the August 23d radio interview.

It’s unclear whether Stone’s representation of Credico’s grand jury testimony is fair. But if it is, the selective prosecution claim provides a way to discredit Credico.

Appeal to Barr and Trump

Then there’s a series of arguments that appear to be an attempt to appeal to Bill Barr’s prejudices, and through him, Trump. There’s the separation of powers argument about the lack of a criminal referral that suggests — incorrectly — that Mueller would have needed to rely on Adam Schiff’s testimony to assess whether and how Stone lied in his testimony (as a matter of courtesy, HPSCI shared informal copies of the transcripts with the IC) and claims — probably ridiculously — that an equivalent example of Barr’s contention that the president can’t be guilty of obstruction without committing the underlying crime is also true for the President’s rat-fucker. Stone repeats this argument in his demand for the full Mueller report, claiming that it will show there was no “collusion,” which therefore means he couldn’t obstruct anything.

The most novel of these arguments, however, is that the President — and his campaign from before he was elected!! — can’t be investigated under the Take Care Clause. This is mostly bullshit, a dime store version of Bill Barr’s own opininion excusing many kinds of obstruction for the President. Trump will like it best where Stone argued that investigating all links with Russia inhibited Trump’s ability to conduct foreign policy.

The Mueller Appointment grants the Special Counsel the authority to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” Accordingly, every action taken by President Trump since he formed his campaign with regard to the United States’ relationship with Russia has been second guessed as evidence of “collusion,” or a conspiracy between Trump and Putin.20 Many have asserted that Putin has some form of control over Trump.21 The Special Counsel investigation has stimulated this second guessing, significantly undermining the President’s ability to conduct foreign policy with regard to Russia. The Special Counsel investigation hog-ties the President in the execution of his foreign policy.

The Mueller Appointment not only hobbles the President’s ability to conduct a rational foreign policy with regard to Russia, it undermines his ability to deal with every world leader. No President can deal effectively with the heads of other nations when he is the subject of a Department of Justice investigation that is prominently being portrayed in the press as imminently removing him from office. Counterparts will be inhibited in reliance on a President who may not serve out his term

This is bait for the frothy right. More importantly, it treats Roger Stone as the President for investigative purposes when according to both him and the President he wasn’t even formally part of the campaign for the key periods under investigation.

This is mostly spaghetti throwing for the frothy right, but there’s no telling what will happen if some of the nuttier GOP judges latch on to one of these strands of spaghetti.

Engage in graymail

Stone repeats his demand for the full Mueller report in several ways — first in a bid for the report itself, then as the “prologue” to a bunch of mostly spurious attacks on Mueller’s authority (some of which have already been rejected in the larger Mueller investigation). This is graymail. Of course Stone is not going to get the full report, which includes grand jury material unrelated to his prosecution and descriptions of ongoing investigations likewise unrelated to his prosecution. But he probably does have a good case to claim that he should get the parts that will be redacted for us that pertain to him.

Misstate Barr’s citation of Mueller’s findings

I’m perhaps most interested in the way Stone engages in Russian hack trutherism. For example, his first justification for needing the full Mueller report — even before he claims to need to know why Credico and Corsi weren’t charged — is to understand Mueller’s “assumption” that Russia hacked the Democrats (something that Stone himself admitted until August 2016, when it became inconvenient).

His lawyers must be allowed to review the Report in its entirety because it contains the government’s evidence and conclusions on matters essential to Stone’s defense. Starting with the base assumptions by the Special Counsel that Russians hacked the Democratic National Committee, Democratic Congressional Campaign Committee, and Clinton Campaign email databases (see Indictment, ¶¶ 1-3, 7, 18, 20, 39);

And in Stone’s bid to get his case reassigned, he makes several misrepresentations of the public record. For example, he claims Barr’s representation of Mueller’s finding said there was no evidence of “collusion” between Trump’s associates and Russia.

The Office of the Special Counsel has since concluded its investigation and has found that there is no evidence of collusion between Russia and those associated with the presidential campaign of Donald J. Trump.

Barr addressed only conspiracy and coordination, and all the language is consistent with Mueller not finding enough evidence to charge it, while finding some evidence.

Stone also claims that prosecutors have claimed that his case is associated with the GRU indictment only because communications between Stone and Guccifer 2.0 were obtained with the GRU warrants.

Previously, however, opposing counsel designated this case as related to that of United States of America v. Netyksho, et al. (1:18-cr-00215-ABJ), because the government claimed that communications between Guccifer 2.0 and Stone were obtained from the Netyksho search warrant.

If they said specifically that, then it was in private. In public, the government said this:

The defendant’s false statements did not arise in a vacuum: they were made in the course of an investigation into possible links between Russian individuals (including the Netyksho defendants), individuals associated with the dumping of materials (including Organization 1), and U.S. persons (including the defendant).

[snip]

In the course of investigating that activity, the government obtained and executed dozens of search warrants on various accounts used to facilitate the transfer of stolen documents for release, as well as to discuss the timing and promotion of their release. Several of those search warrants were executed on accounts that contained Stone’s communications with Guccifer 2.0 and with Organization 1.

Even ignoring that Stone seems to cede that at least one of the number of warrants referred to in that filing included his communications with Guccifer 2.0, it’s even more amusing that Stone ignores WikiLeaks — I wonder if they took it out after Julian Assange got arrested?

Stone then misstates another thing Barr said, claiming he claimed no American citizens conspired with “Russian agents.”

[T]he Department of Justice has concluded that there was no conspiracy between Russian agents and any American citizen, including Roger Stone, this “connection” is unsubstantiated.

What the Barr memo actually says about the hack-and-leak operation is,

Special Counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in these efforts, despite multiple offers from Russian-affiliated individuals to assist the Trump campaign.

Barr’s statement only refers to the Russian government, not possible Russian cut-outs like WikiLeaks, and only discusses Americans with ties to Trump.

Stone then claims that the GRU indictment claims no American was part of the conspiracy.

Additionally, the only document filed in Netyksho, the Indictment, states no American was part of the conspiracy charged. There is nothing left to “connect” Roger Stone to.

It doesn’t name any Americans, but also doesn’t say no Americans were part of the conspiracy. Here’s what it says about the conspirators.

[The defendants] were GRU officers who knowingly and intentionally conspired with each other, and with persons known and unknown to the Grand Jury (collectively the “Conspirators”),

Stone’s effort to get a new judge is not going to work in any case. Which leads me to wonder why he repeatedly misstates the public record.

In any case, assuming normal judicial review, Stone’s request for more of the Mueller report might have promise and he could get some thoughtful briefing on a few of the other claims. But most of this is wall-splat for specific audiences: Trump, Barr, and the frothy right.

Andrew Miller claims he has been mooted

Meanwhile, as expected, Stone associate Andrew Miller just requested an en banc review of the DC Circuit ruling that he needs to testify against Stone. Along with the arguments he already lost on, he is now asking the court to find out whether the government really still needs his testimony, arguing (in part) that Mueller’s authority has expired.

Since the subpoena issued to Mr. Miller was for the purpose of obtaining evidence related to Mr. Stone’s connection with WikiLeaks, Julian Assange, and Guccifer 2.0, it would appear that the Special Counsel would no longer need Mr. Miller’s testimony regarding that subject matter. Nevertheless, the next business day, Monday, January 28, 2019, undersigned counsel was advised by the Special Counsel’s office that it believed the case to be a live controversy since the grand jury was still active, though it was not apparent whether the grand jury or its foreperson was consulted as to any continued interest in hearing Mr. Miller’s testimony. 3

On March 22, 2019, Special Counsel submitted his final report to Attorney General Barr pursuant to the Special Counsel regulations, 28 C.F.R. 600.8(c), concluding his investigation, explaining his prosecutions and declinations, and finding that no conspiracy or coordination took place between the Trump campaign or any aides associated with the campaign and Russia regarding interference with the 2016 campaign or hacking the emails of Hillary Clinton or the DNC. 4 No further indictments are expected. According to Justice Department spokesperson Kerri Kupec, “The investigation is complete.”5 Thus, like Cinderella’s carriage that turned into a pumpkin at midnight, Special Counsel Mueller’s authority expired. Accordingly, the intervening events described above that have occurred since the issuance of the subpoena in question over nine months ago, strongly, if not definitively, demonstrate Mr. Miller’s testimony regarding Mr. Stone is no longer required nor can be legally obtained. Thus, this Court should invite the government’s views to verify whether this case continues to be a live controversy or is moot to assure itself that it continues to possess judicial power to adjudicate the instant petition for rehearing and suggestion for rehearing en banc and any subsequent action in this appeal

3 Notably, while the mandate was stayed as is the usual practice until 7 days after the time for the filing a petition for rehearing had expired or after disposition of any timely filed petition (45 days from the decision, or April 12), the Special Counsel had the right to ask the Court to issue the mandate ever since February 26 if Mr. Miller’s testimony was needed. The Special Counsel declined to do so. [my emphasis]

This is really just decoration on an en banc review that will be denied, but along the way he’s fishing for information about where else prosecutors (including the DC AUSAs who’ve been involved since Stone’s indictment, at least) are headed.

Mueller may be done but prosecutors are not

Which brings us, finally, to this response from prosecutors (signed by two DC AUSAs, Jonathan Kravis and Michael Marando, from the Stone team and Aaron Zelinsky from the Mueller team) in response to what is fairly characterized as a media request for all outstanding warrant materials in the Mueller investigation, with a focus on Stone. After getting two extensions, one because the attorneys involved in it were involved in a press of other work, one to transition to the DC AUSAs who’d take over because Mueller was done, the government today issued a narrowly targeted (to Stone) response.

After introducing the scope of the investigation as it proceeded from Comey’s March 20, 2017 scope to Mueller’s May 17, 2017 scope to his March 22, 2019 closure, the government response then stated the media request in remarkably narrow terms, focused just on Stone.

The movants seek to unseal search warrant materials related to the Stone prosecution. Specifically, the movants seek unsealing of “warrants, applications, supporting affidavits, and returns relating to all search or seizure warrants relevant to the prosecution of Roger J. Stone, Jr.” Doc. 4, at 2 (Order) (quoting Media Coalition Mem. 1). 2 It is unclear whether the movant’s request is limited to warrants issued pursuant to Rule 41 or also includes warrants under the SCA. In an abundance of caution, the government is treating the request as covering both categories. It is similarly unclear whether the reference to “warrants relevant to the Prosecution of Roger J. Stone, Jr.” means only warrants to search Stone’s property and facilities or includes other warrants that were executed as part of the same line of investigation. Again, in an abundance of caution, the government is treating the request as covering both categories.3

2 In places, the movant more broadly references warrant materials pertaining to “the Russia investigation” (Mot. 1, 4; Mem. 4) and once references “Manafort records” (Mot. 3). Consistent with this Court’s March 1, 2019 order (Doc. 4, at 2), and the movants’ detailed description of the records sought, see Mem. 4-5, the government understands those references as context for this specific request to unseal records related to the prosecution of Stone. See Mot. 1, 3, 4; Mem. 1, 4, 5.

Yes, it makes a big show of interpreting the media request broadly to interpret the request as both a request for Rule 41 and Stored Communication Act warrants and both Stone’s property and others (though again, they remarkably blow off all requests for anyone but Stone). But then they get to footnote 3, which reveals that there were warrants targeting entirely different people that ended up “merely happen[ing] to yield evidence that concerns Stone.”

3 The government does not understand the request to include warrants that were not related to Stone or that line of investigation but that merely happened to yield evidence that concerns Stone and is being provided to him in discovery.

This is a fairly remarkable disclosure, that the government obtained warrants thinking they were getting one thing that “merely happened to yield evidence that concerns Stone.” Particularly when you consider the earlier discussion of the “multiple lines” of Mueller’s investigation, some of which have been spun off.

The Special Counsel’s investigation has involved multiple lines of inquiry. Many have been handled in the Special Counsel’s Office. But the Special Counsel has also referred a number of matters to other offices in the government for investigation.

[snip]

On March 22, 2019, the Special Counsel notified the Attorney General that he had completed his investigation into Russian interference in the 2016 presidential election. The Special Counsel, however, referred a number of matters to other offices in the Department of Justice. Those matters remain ongoing.

The filing claims, again, that this is an ongoing investigation, with stuff still being handled by “other offices and entities,” plural,

As explained, although the Special Counsel has concluded his work, the Special Counsel referred a number of matters that are ongoing and are being handled by other offices and entities. Disclosure of the warrant materials threatens the harms that courts have catalogued in holding that the First Amendment provides no right of access to search warrant materials in ongoing investigations.

Nor would it make sense to recognize a right of access automatically once any indictment has been returned. In complex investigations, such as this one, where a single warrant may have relevance to interconnected lines of investigation, that test would fail to take into account tangible investigative harms from disclosure. An indictment does not end an overall investigation, for example, when a defendant is potentially involved in activities with other subjects or targets, and the warrant in question seeks evidence bearing on that joint activity, but the defendant has been charged only with a subset of his conduct under investigation. The probability of a continuing investigation post-indictment grows when the search targets are linked to other persons of interest by ties to a single organization, common associates, or coordinated activities. Disclosure of warrant materials could reveal sources, methods, factual and legal theories, and lines of investigation extending beyond the charged conduct.

It suggests a “single warrant may have relevance to interconnected lines of investigation” (I assume those targeting Rick Gates are one example), then specifically says an indictment, like that targeting Stone, “does not end an overall investigation” perhaps because the “defendant has been charged only with a subset of his conduct under investigation” and he “is potentially involved in activities with other subjects or targets … linked to other persons of interest by ties to a single organization, common associates, or coordinated activities.”

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

Roger Stone and the Dozens of Search Warrants on Accounts Used to Facilitate the Transfer and Promotion of Stolen Democratic Emails

In response to Roger Stone’s bid to get a new judge, the government has submitted a filing explaining why his case is related to the GRU indictment. It explains that Stone’s alleged false statements pertained to an investigation into links between the Russians who stole Democratic emails, entities who dumped them, and US persons like Stone:

The defendant’s false statements did not arise in a vacuum: they were made in the course of an investigation into possible links between Russian individuals (including the Netyksho defendants), individuals associated with the dumping of materials (including Organization 1), and U.S. persons (including the defendant).

More interestingly, it makes clear that Stone’s communications “with Guccifer 2.0 and with Organization 1” were found in some of the accounts used to transfer and promote the stolen emails.

In the course of investigating that activity, the government obtained and executed dozens of search warrants on various accounts used to facilitate the transfer of stolen documents for release, as well as to discuss the timing and promotion of their release. Several of those search warrants were executed on accounts that contained Stone’s communications with Guccifer 2.0 and with Organization 1.

To be clear: We know that Stone had (innocuous) DMs with both Guccifer 2.0 and WikiLeaks. So this passage is not necessarily saying anything new. But given that Stone’s indictment obscures precisely who his and Jerome Corsi’s go-between with WikiLeaks is, it suggests there may be more direct Stone communications of interest.

Stone will get a sealed description of what those warrants are and — eventually — get the warrants themselves in discovery.

The relevant search warrants, which are being produced to the defendant in discovery in this case, are discussed further in a sealed addendum to this filing.

Meanwhile, Amy Berman Jackson has issued a very limited gag in Stone’s case, prohibiting lawyers from material comments on the case, but gagging Stone only at the courthouse. That said, her gag includes lawyers for witnesses, which would seem to include Jerome Corsi lawyer Larry Klayman.

Counsel for the parties and the witnesses must refrain from making statements to the media or in public settings that pose a substantial likelihood of material prejudice to this case

ABJ does give Stone the following warnings to shut up, however.

This order should not be interpreted as modifying or superseding the condition of the defendant’s release that absolutely prohibits him from communicating with any witness in the case, either directly or indirectly. Nor does this order permit the defendant to intimidate or threaten any witness, or to engage or attempt to engage in any conduct in violation of 18 U.S.C. §1512.

Finally, while it is not up to the Court to advise the defendant as to whether a succession of public statements would be in his best interest at this time, it notes that one factor that will be considered in the evaluation of any future request for relief based on pretrial publicity will be the extent to which the publicity was engendered by the defendant himself.

So the biggest news here might be that Larry Klayman has to shut up.

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

Roger Stone Adopts the Russian Troll Evidence-Phishing Technique

Roger Stone submitted two motions in his defense today. The first, opposing a gag in the case, is rigorous and will make for an interesting legal battle (until such time as Stone violates the protective order in the case, in which case it’ll become a no-brainer; here’s the government’s motion supporting a limited gag). The second, objecting to the designation of Stone’s case as “related to” the GRU indictment, is a frivolous attempt to force evidence into the public realm, similar to the way Yevgeniy Prigozhin is using a defense of Concord Management in an attempt to obtain the intelligence that went into that investigation.

As I noted in this post, the local DC rules deem a case to be related in three cases, the third of which says that cases are related if they arise from a common wiretap, search warrant, or the same alleged criminal event.

A related case for the purpose of this Rule means as follows:

(1) Criminal cases are deemed related when

(i) a superseding indictment has been filed, or

(ii) more than one indictment is filed or pending against the same defendant or defendants, or

(iii) prosecution against different defendants arises from a common wiretap, search warrant, or activities which are a part of the same alleged criminal event or transaction. A case is considered pending until a defendant has been sentenced.

With his filing, Stone includes the form prosecutors used to lay out why his case related to that of the GRU officers who hacked the election.

The form makes it clear that the cases are related both because there’s a common search warrant and because both cases arise from “activities which are part of the same alleged criminal event or transaction.” Not only that, it explains why that’s the case:

In particular, certain evidence that is relevant to this case was derived from search warrants executed in Netyksho et al., and the alleged obstructive conduct in this cases arises from claimed and then disputed advance knowledge about the dissemination of stolen document during the 2016 presidential campaign that forms, in part, the basis for the criminal charges against Netkysho et al.

Stone’s lawyers don’t mention that explanation at all in their motion. Instead, they argue (fairly, as far as this cynical move goes) that because they need to object to the designation within 10 days but they haven’t obtained discovery yet to understand this, they need to register this objection now. Rather than asking for that an explanation or due consideration of the explanation included on the form, though, they instead demand all the evidence and reasoning used to support the designation.

At first blush and without the benefit of discovery, there is nothing about these cases that suggests they are suitably related, other than they are both brought by the Office of Special Counsel. The notice served on defense counsel requires an objection to the designation be filed within ten days of the arraignment. As a result of this constraint of a timely objection, the government should be required to disclose all evidence and reasoning used to support its requested designation since the goal of the local rule is to safeguard the honor of the district court and protect the rights of defendants like Roger Stone. [my emphasis]

The motion then goes on to make a series of contradictory claims. For example, he claims,

Defendant Stone has been charged with lying to Congress and witness tampering under 18 U.S.C. §§ 1505, 1001, 1512(b)(1), 2. There is no mention of hacking, stealing, or involvement with Russia or the Netyksho defendants

Just a few paragraphs before he cites his own indictment mentioning that very same hack.

The indictment in the Stone case alleges that the servers of the Democratic National Committee were hacked by unspecified “Russian government actors”

Ultimately, he gets around to admitting it is the same alleged hack.

There is not one single fact alleged in either indictment about the facts in the other indictment, other than that the Russians stole emails that Stone, a year later, allegedly lied to Congress about regarding his failed efforts to find out about them. Thus not a single one of the three criteria exists that is necessary for relatedness to be found.

Similarly, he notes how the GRU indictment describes him,

The Office of Special Counsel further alleged that “on or about August 15, 2016, the [Russian defendants] posing as Guccifer 2.0, wrote to a person who was in regular contact with senior members of the presidential campaign of Donald J. Trump, ‘thank u for writing back…do u find anyt[h]ing interesting the docs I posted? … The person responded, ‘[p]retty standard’.”

Just a few paragraphs before he cites similar language from his own indictment.

It also claims that Defendant Stone was a political consultant employed by the Trump campaign until August 2015 (Id. ¶ 4), and that “[d]uring the summer of 2016. . .[he] spoke to senior Trump Campaign officials about Organization 1 and information it might have had that would be damaging to the Clinton Campaign.”

Most interesting is the way Stone acknowledges that the GRU indictment alleges that Guccifer 2.0 sent 20,000 emails to WikiLeaks,

Later, it was also alleged that some 20,000 stolen emails were transmitted by Guccifer 2.0 to “Organization 1.”

Just a few paragraphs before he admits his own indictment describes him bragging about communicating with WikiLeaks.

The indictment further alleges that Defendant Stone was “claiming both publicly and privately to have communicated with Organization 1″ (Id. ¶ 6),

That said, Stone doesn’t consider the commonality of WikiLeaks’ actions in this motion, which is probably the point.

Understand, Stone is trying to figure out several things with his demand to receive the evidence underlying it immediately. He’s trying to figure out what search warrants targeting him, going back almost a year, look like. He’s trying to figure out whether the communications between whoever his intermediary to WikiLeaks was got picked up discussing his outreach and if so in what granularity. He’s trying to figure out what kind of evidence Mueller has to indict WikiLeaks (which Stone would surely use, as he already has, to make a First Amendment defense of WikiLeaks’ role in the operation). And he’s trying to figure out whether Mueller has the good to name him as a co-conspirator, a move that might or might not go through WikiLeaks alone (though not exclusively — as I note, he discusses analytics with Guccifer 2.0 at a time when GRU was actively stealing the Democrats’ analytics).

In any case, Stone likely already has some of this information; it’s likely that the various conspiracies he’s at risk for being charged with were on his search warrant.

Don’t get me wrong. I’m pretty interested in why these cases are deemed related and (just as an example) the GRU indictment was not deemed related to George Papadopoulos’ case, which was still pending at the time of the indictment (the answer is probably that none of the Papadopoulos investigation implicated WikiLeaks directly).

But once the government claimed there were common search warrants, plural, used in both these cases, it became really easy to make sense of why: WikiLeaks, the Guccifer Twitter account, and Stone’s own warrants would be common to both of the indictments.

Roger Stone was, thus far, just charged with false statements. But it’s clear the government is still entertaining other charges against him and others. So Stone is using this related designation as a way to fish for how close any further charges might be.

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