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SDNY Prosecutors Protect Trump’s Privacy to Enter into a Joint Defense Agreement with the Russian Mob

Whooboy is there an interesting flurry of motions over in the Ukrainian grifter prosecution. Effectively, SDNY prosecutors and (two of) Lev Parnas’ co-defendants want to slow him from sharing information with HPSCI. The letters include:

  • January 17: Parnas asks to modify the protective order a third time
  • January 22: Igor Fruman lawyer Todd Blanche says he has an attorney-client interest in some of what Parnas wants to and has already shared
  • January 22: Andrey Kukushkin lawyer Gerald Lefcourt says he just wants a privilege review
  • January 23: SDNY says Parnas should not be able to share iCloud information he obtained via discovery without review
  • January 24: Parnas lawyer Joseph Bondy makes a quick argument asserting they should be able to share the information
  • January 24: Bondy responds to Fruman letter at more length
  • January 27: Blanche responds again, invoking Dmitry Firtash to speak on behalf of unnamed others

The dispute started when Parnas asked to share content that the FBI seized from Parnas’ iCloud account and then provided to him in discovery. He listed just 11 Bates stamp numbers in the initial request, but it’s unclear what kind of files these are. In response, the lawyer that Fruman shares with Paul Manafort, Todd Blanche, objected to that request, and also asked to “claw back” any privileged materials that Parnas already produced to HPSCI (remember that Victoria Toensing has already complained that Parnas has violated privilege). Blanche makes a dig at Parnas’ media tour:

My obvious concern is that Mr. Bondy’s hasty efforts to find a forum (beyond MSNBC and CNN) for someone —  anyone — to listen to his client’s version of events caused him to irresponsibly produce privileged materials to the HPSCI.

One of the two other co-defendants, Andrey Kukushkin, weighed in — having been alerted by SDNY that, “its filter team identified materials in Mr. Parnas’ iCloud account that may fall within a common-interest attorney-client privilege held jointly by Mssrs. Kukushkin, Parnas, and aothers” — and stated that he did not object to Parnas sharing information “if all privileged materials can be removed from Mr. Parnas’ iCloud account prior to production to HPSCI.”

Having thus cued Parnas’ co-defendants to submit complaints, SDNY then weighed in, objecting to Parnas’ request. They invoke two reasons for their objection. The first poses interesting Fourth Amendment considerations; effectively SDNY argues that Parnas’ warrant return from Apple includes material that Parnas never possessed (and some material he deleted that only still exists because prosecutors obtained a preservation request).

The materials at issue include records that, as far as the Government knows, were never in Parnas’s possession. For instance, the data produced by Apple includes deleted records (which may only exist because of the Government’s preservation requests), account usage records, and other information to which a subscriber would not necessarily have access. The form of the report, which was created by the FBI, was also never in Parnas’s possession.

[snip]

Additionally, to the extent Parnas seeks to produce his own texts, emails, photographs or other materials, he should have access to the content stored on his iCloud account through other means: he can simply download his own iCloud account and produce it to HPSCI (and in fact, it appears he has already done so).

[snip]

To the extent that Parnas has deleted materials from his iCloud account, the Government is willing to work with counsel to ensure that Parnas can produce his own materials that are responsive to the Congressional request to HPSCI. To that end, the Government respectfully submits that Parnas’s counsel should identify for the Government any specific chats, emails, photographs, or other content Parnas is unable to access from his iCloud currently, but whic exist within the discovery that has been produced to him and in his view are responsive to the Congressional subpoena.

I find that stance interesting enough — basically a reverse Third Party doctrine, saying that subscribers aren’t the owners of the information Apple has collected on them, at least not in the former that FBI reports it out.

It’s the other objection I find most interesting. SDNY prosecutors — including one of the ones who argued against broad claims of privilege in the Michael Cohen — objects because the data from Parnas’ iCloud,

[I]t public disclosure still has the potential to implicate the privacy and privilege interests of third parties and co-defendants.

It then argues that requiring Parnas to specifically request content that he already deleted,

would also permit his co-defendants to raise any concerns with respect to their privilege or privacy interest prior to the materials’ release.

SDNY’s prosecutors are arguing that Parnas can’t release his own iCloud material because of other people’s privacy interests!! As if it is the place for SDNY’s prosecutors to decide what HPSCI considers proper levels of disclosure!!

I’ve been giving SDNY the benefit of the doubt on this prosecution, assuming that as prosecutors they would push back against any Bill Barr attempt to protect Rudy (though not the President). But this alarms me. It seems like SDNY is using Fruman — who is in a Joint Defense Agreement with Rudy — to speak for Rudy’s interests.

After making a cursory response to SDNY, Bondy responded in more detail to Fruman. In it, Bondy makes the kind of argument about the limits of privilege you’ll almost never see a lawyer make.

[T]he burden is on the party asserting the attorney-client privilege to first establish that there was: 1) a communication; 2) made in confidence; 3) to an attorney; 4) by a client; 5) for the purpose of seeking or obtaining legal advice. The part asserting attorney-client privilege has the burden of conclusively proving each element, and courts strongly disfavor blanket assertions of the privilege as “unacceptable.” In addition, the merre fact that an individual communicates with an attorney does not make the communication privileged.

There are also instances in which the attorney-client privilege is waived, including when the substance of otherwise privileged communications are shared with third parties, when the communications reflect a criminal or fraudulent intent between the parties, when the communications are part of a joint–yet conflicted–representation, and in cases where the parties to a joint defense have become adverse in their interests. 

Bondy then goes on to add that HPSCI “does not recognize attorney-client privilege,” which may be why, at about the time these letters were breaking, Jay Sekulow was on the floor of the Senate haranguing Democrats for not respecting that privilege (which Sekulow suggested was in the Bill of Rights). He uses that stance to suggest SDNY is making a claim that violates separation of powers.

From there, Parnas goes on to disavow any privilege shared in his brief Joint Defense Agreement with the Russian mob, in part based on discussions about his initial response to the HPSCI subpoena having been shared more widely.

Mr. Parnas waives all privilege with respect to the communications he had with Mssrs. Dowd and Downing. Furthermore, the substance of his and Mr. Fruman’s legal representation appears to have been shared with third parties, including Jay Sekulow, Rudolf Giuliani, John Sale, Jane Raskin, and others. … As the Court may know, Mssrs. Sekulow, Raskin, and Giuliani are also attorney for President Trump. Mr. Giuliani and the President have interests divergent from Mr. Parnas’s wish to cooperate with Congress and the Government. Mr. Parnas believes that his and Mr. Fruman’s ostensibly joint representation by Attorneys Dowd and Downing was conflicted and intended from its inception to obstruct the production of documents and testimony responsive to lawful congressional subpoena.

[snip]

Here, Attorney Dowd undertaking a joint representation of Mr. Parnas and Mr. Fruman — with the President’s explicit permission — constituted an actual conflict of interest at the time and appears designed to have obstructed Mr. Parnas’s compliance with HPSCI’s subpoenas and any ensuring efforts to cooperate with congressional investigators or federal prosecutors.

Bondy ends by saying it’s up to those claiming a conflict to invoke it.

Bondy makes it fairly clear: he believes the privilege SDNY has set Fruman up to object to involves Rudy and Trump, neither of whom are in a position to object, particularly given that if they do, Bondy will argue that Parnas believes their grift might be criminal and therefore the privilege doesn’t apply.

So instead of the President and his lawyer claiming that Parnas’ release of this material will violate privilege, Fruman does.

Mr. Fruman has reason to believe that the Production Material contains privileged information belonging to Mr. Fruman and others.

He invokes only the consultation of their shell company, Global Energy Producers, with [Rudy’s former firm] Greenberg Traurig in conjunction to substantiate a common attorney-client interest, then nods to more:

This is but one example, and there are many more, but certainly the privilege issues implicated by the repeated amendments to the Protective Order are far more expansive than the attorney-client relationships identified in Mr. Bondy’s letter.

Fruman then complains that he cannot — as Parnas has said he must do — invoke privilege because he’s not in possession of the materials (just the taint team and Parnas have them).

The best part is where, still faced with the problem that the people whose privilege is at issue (Rudy and Trump) cannot politically invoke it, Fruman finds someone else whose privilege, he says, has been violated: Dmitry Firtash.

Mr. Fruman is not the only person whose privilege information is at risk. For example, Mr. Parnas has represented that he was employed as a translator for Victoria Toensing and Joseph DiGenova in connection with their representation of Dymitry Firtash. Clearly, any materials Mr. Parnas received as a translator assisting attorneys in the representation of Mr. Firtash would be protected by attorney-client privilege. And that privilege would be held by Mr. Firtash, the client, not Mr. Parnas.

It’s increasingly clear what Parnas and Bondy are up to: They’re trying to make it politically (and given the OLC memo prohibiting the indictment of the President) bureaucratically impossible to pursue further charges. If everything recent Parnas did was done for the President, he shouldn’t be the only one facing prosecution for it.

Fruman, meanwhile, seems to be the sole member of the Joint Defense Agreement with the Russian Mob who is a party here, trying to prevent his position from deteriorating by speaking for all the affected parties, only without naming Rudy or Trump (presumably backed by the same old pardon promises Trump always uses to get witnesses against him to take the fall).

What’s not clear is what SDNY is up to. Because it sure seems like they’ve used Fruman to protect Trump’s and even Rudy’s interests.

Judge Oetken scheduled a hearing for Thursday to resolve all this. Which may be too late for Parnas’ play.

Propaganda and Flattery: Jack Posobiec Parrots Adam Schiff’s Case for Impeachment

Several members of the frothy right have listened to the recording Igor Fruman made of a dinner with Trump in April 2018 and declared that Parnas and/or Fruman must be a spy.

And while neither of these men seem to have figured out that Fruman, not Parnas, reportedly made this recording, their assessment is not as crazy as most frothy conspiracies. After all, the government has very pointedly not denied that it had a FISA order on one or another of the grifters (one that Bill Barr would probably have known about if not approved personally). If the government did have a FISA order, it means the FBI showed the FISA court there was probable cause that one of these guys was clandestinely working as an agent of a foreign power. And WSJ suggested that the reason SDNY is not interested in a cooperation deal with Parnas is because he will not admit he got Marie Yovanovitch fired — precisely the ask recorded on this video — at the behest of some Ukrainian.

At a meeting with prosecutors from the Manhattan U.S. attorney’s office late last year, people familiar with the matter say, Mr. Parnas’s attorney disputed that he pushed for the removal of the U.S. ambassador to Ukraine at the behest of a Ukrainian official—one of the charges in the campaign finance indictment.

So prosecutors, this time, appear to suspect that Jack Posobiec may be right, that when Parnas and Fruman made this recording they were working as clandestine agents of a foreign government.

Mind you, Posobiec and Benny Johnson, having not even figured out that Fruman made the recording yet, have assuredly not thought through what this means.

It means that someone they believe is a “spy” could gain direct access to Donald Trump with no more than the promise of a $325,000 campaign donation. It means that a “spy” could incite Donald Trump to take a certain policy action — one that happens to be one that corrupt oligarchs in Ukraine and Russia would support — with no more than a bunch of lies about what the US Ambassador had said. It means that these “spies” further managed to become business partners with the President’s defense attorney. One of these “spies” even managed to become an auxiliary member of the President’s Mueller defense team, privy to sensitive secrets about how he would successfully obstruct that investigation.

Having made Rudy Giuliani their agent, these “spies” managed to use him to supplant the beliefs of the US government, not just the professional Deep State, but a bunch of solidly Republican Trump appointees up to and including John Bolton. It means these “spies” used Rudy to get Trump to believe conspiracy theories ginned up by foreign government officials. And it means these “spies” managed to get the President to take actions that gave Russia an advantage in their war against Ukraine.

With little more than propaganda and flattery — and some money laundered through a shell company — these “spies” managed to alter the stated policy of the United States. That is the direct implication of Posobiec’s allegation.

As it happens, that’s precisely the same argument House Impeachment Manager Adam Schiff made on Friday (h/t Crooks & Liars for the video).

Admittedly, Schiff was focusing on a slightly different set of propaganda talking points, that Ukraine interfered in the 2016 election rather than Russia. But the model by which President Trump came to reject the conclusion of our intelligence community and instead parrot the words that Vladimir Putin gave him are the same: flattery and propaganda.

I’m sure you remember this. It was I think unforgettable for every American. But I’m sure it was equally unforgettable for Vladimir Putin. I mean, there he is, the President of Russia, standing next to the President of the United States, and hearing his own Kremlin propaganda talking points coming from the President of the United States.

Now, if that’s not a propaganda coup I don’t know what is. It’s the most extraordinary thing. It’s the most extraordinary thing. The president of the united states standing next to the president of Russia, our adversary, saying he doesn’t believe his own intelligence agencies. He doesn’t believe them. He’s promoting this crazy server theory cooked up by the Kremlin. Right next to the guy that cooked it up. It’s a breathtaking success of Russian intelligence. I don’t know if there’s ever been a greater success of Russian intelligence.

Whatever profile Russia did of our president, boy, did they have him spot on. Flattery and propaganda. Flattery and propaganda is all Russia needed. And as to Ukraine, well, they needed to deliver a political investigation to get help from the United States. I mean, this is just the most incredible propaganda coup.

Because as I said yesterday, it’s not just that the President of the United States standing next to Vladimir Putin is reading Kremlin talking points. He won’t read his own national security staff talking points but he will read the Kremlin ones. But it’s not just that he adopts the Kremlin talking points. That would be bad enough. It is not bad enough, not damaging enough, not dangerous enough to our national security that he’s undermining our own intelligence agencies. It’s not bad enough that he undermines those very agencies that he needs later that we need later to have credibility.

[snip]

How do you make that argument as the President of the United States when you just told the world you trust the Russians more than your own people? You trust Rudy Giuliani more than Christopher Wray. How do you make that case? If you can’t make that case what does that mean to our security? But that’s not the end of it. It’s not just a propaganda coup. It is not just the undermining of our agencies.

It is also that the buy-in to that propaganda meant that Ukraine wasn’t going to get money to fight the Russians. I mean, that’s one hell of a Russian intelligence coup. They got the President of the United States to provide cover for their own interference with our election. They got the President of the United states to discredit their own intelligence agencies, to drive a wedge between the United States and Ukraine, the President of the United States to withhold aid from Ukraine in a war with Russia, in a war claiming Ukrainian lives every week.

Has there ever been such a coup? I would submit to you in the entire length of the Cold War the Soviet Union had no such success, no such success and why? Because a former mayor of New York persuaded a president of the United States to sacrifice all of that. Was it worth it? I hope it was worth it. I hope it was worth it. For the president. Because it certainly wasn’t worth it for the United States.

To be sure, Posobiec has barely started to figure out that grifters with some laundered money and sweet talk can get this President to adopt policies contrary to those Congress and Trump’s entire national security establishment think is best. He’s far from adopting Schiff’s view that a President who can be manipulated so easily by flattery and propaganda is unfit to be President. He presumably still believes that Trump can’t be impeached for extorting Ukraine campaign assistance because, as President, Trump can set whatever policy he wants; if Posobiec believes that, though, he should account for the fact that someone he believes is a “spy” got Trump to adopt that policy.

But Posobiec has nevertheless made the same argument that Schiff made Friday: that what he sees on this recording is a “spy” who managed to get close to Trump, tell him something guaranteed to trigger his narcissism, in response to which Trump took action.

The Significance of the Trump-Firing-Masha Recording

Yesterday morning, ABC and then Daily Beast revealed that there was a recording of the April 2018 meeting where Lev Parnas got Trump to say he would fire Marie “Masha” Yovanovitch simply by suggesting she was bad-mouthing Trump. Then, last night, Parnas’ lawyer Joseph Bondy appeared on Rachel Maddow’s show again, and provided more details of the recording.

It is about 1:40 hours long, and the firing reference comes after 40 minutes.

Bondy’s interview made two things clear:

  • By April 2018 — when Trump’s administration made Javelin missiles available to Ukraine provided that they not use them against Russia, reportedly in exchange for Ukraine’s halt to any cooperation with the Mueller inquiry — Trump was interested in how vulnerable Ukraine could be made by withdrawing US support. Half an hour, Parnas told Trump Ukraine could resist the Russian incursion without US help, based on what, we don’t know.
  • Lev Parnas probably did not fully comply with the HPSCI subpoena.

I’m as interested in the claimed story about how the recording came about.

Igor Fruman — the guy whose deep connections in Ukraine, including with some mobbed up businessmen, Parnas claims to have networked through — made the recording. That led most people to assume that Fruman released it, and therefore is cooperating, something for which there is no support.

There are at least three other possible sources for the recording.

First, SDNY seem to be suggesting that Parnas and Fruman were working for an as-yet unnamed Ukrainian to get Masha fired. That makes all the smiling pictures that the men posted with Trump and other powerful Republicans feel like a kind of reporting system, perhaps the same one Maria Butina was using. Such social media posting would be a good way to make it clear to whoever is footing the bill for such an operation that the grifters are obtaining the meetings promised. If so, the recording (and other similar ones) might serve a three-fold purpose:

  • It can serve as blackmail against Trump and others, just as it’s being used now
  • It collects intelligence about the security around Trump (Fruman reportedly took a video of the two of them entering the meeting)
  • It assures the paymaster of this operation that he’s getting what he paid for

Remarkably, we don’t yet know what Ukrainian was allegedly paying the grifters. It could be Dmitro Firtash (who last fall gave Parnas’ wife “a loan” that she could use to buy a house that, because it’d be in Florida, could not be seized as forfeiture). Given that Kevin Downing was involved in Parnas and Fruman’s defense, it could be any of Ukrainians who paid Paul Manafort after he entertained a plan to carve up Ukraine on August 2, 2016, which include Serhiy Lyovochkin and Rinat Akmetov, the former of whom used a straw donation to attend Trump’s inauguration. Or it could be one of the dodgy businessmen around Fruman. All had and have an incentive to try to reverse Ukraine’s efforts to combat corruption, and so would value the removal of Masha. [Update: I’m missing two other obvious candidates — Yuriy Lutsenko and Viktor Shokin — though much of the reporting on their interest in taking her out focuses on 2019 efforts that are more closely tied to dirt on the Bidens. Update: Fixed where the allegation that a Ukrainian was directing their efforts.]

Any of those people might have reason to release the recording. In the same way that Oleg Deripaska was pushing FBI to investigate Paul Manafort even as he was using Manafort’s desperation to try to coerce him to become his asset again, including to carve up Ukraine, anyone trying to compromise Trump can use his efforts to beat impeachment to make him more reliant on Ukrainian discretion about any deals they’ve made. Plus, by making Trump’s corruption and compromise clear even as Republican Senators vote against doing anything about it, it ensures that every single federally elected Republican has been implicated in this operation. So it’s possible the recording came from the paymaster.

It’s also possible it came from SDNY’s notoriously leaky FBI. The ABC reporters who first released it include DOJ beat journalists, so it would make sense that they’d have FBI sources. But I doubt it, not least because an FBI source would have had reason to leak it before yesterday.

But there is another possibility: that Parnas was the source, but he and Bondy lied about it early in the day (and okayed its release while Bondy was on MSNBC’s set, with a natural alibi he expressly noted), to create a cover story for releasing the recording without admitting that Parnas had not fully complied with the HPSCI subpoena but was belatedly, just yesterday, providing a copy of the recording to HPSCI. Bondy claimed it had been on Parnas’ iCloud all the time, but he had forgotten he had it.

Bondy was more aggressively questioned last night, in part by Chuck Rosenberg and Maya Wiley. But neither confronted Bondy on reports that, in discussions with SDNY last month, he had maintained Parnas’ claim that he was innocent of the existing charges against him: that he was paid and directed by the still-unnamed Ukrainian to get Masha fired. Neither raised that prosecutors have repeatedly said they expect to file more charges against the grifters, likely including (because FBI likely obtained a FISA order against one of them) foreign agent charges, which undercuts Bondy’s claim that Parnas is not seeking a cooperation deal because the existing charges against him don’t have that serious a sentencing range.

Bondy offered some explanation for why Parnas had not searched his iCloud because he had to make sure SDNY had gotten their evidence first. That sounds like a load of baloney. After all, SDNY would have been able to obtain Parnas’ iCloud account with a warrant to Apple (given that Apple decided not to encrypt iCloud after previously considering it, that means some really damning information on Trump is just sitting on a server in Cupertino or somewhere). The recording was over 18 months old when Parnas was arrested. So SDNY had had it, likely, for some time. Moreover, SDNY had told Parnas they had their discovery collected on December 3, which means Bondy could have provided this record — and anything else that was always available to Parnas — even before the phone records. Bondy now is claiming that Parnas was injured with a delay in discovery, because it delayed his ability to cooperate with HPSCI, which is totally undermined by any admission that Parnas had never even searched his iCloud (and still may not have) for information related to the HPSCI subpoena.

All of which suggests Parnas is trying to carefully manage what he’s sharing with HPSCI, presumably focusing on the latter period of his work to get Masha fired, when he could claim to be doing Rudy Giuliani’s bidding, and not the earlier part, when prosecutors claim he was working for some Ukrainian. For better and worse, that likely means that Rudy is at least partly a victim of Parnas, someone who was desperate and weak and easily manipulated into doing really stupid things — just like Trump — who could then be claimed as the real actor behind this operation.

In a sane world, both parties would take a step back and agree that our quisling President and his fawning lackeys were an easy mark. We’d talk about how to unwind whatever damage Trump has done to himself and the country.

But we don’t live in a sane world and Republicans are about to defend Trump’s right to be manipulated by grifters and spies as his Constitutional prerogative.

How Many Other Grifters and Spies Have Incredibly Damning Recordings of Donald Trump?

In Lev Parnas’ interview with Rachel Maddow, he confirmed a previously reported story that in April 2018, he incited President Trump to try to fire Marie Yovanovitch by (falsely) telling Trump that the Ambassador was badmouthing him.

For days, Republicans have been dismissing such claims, in part by emphasizing that Parnas (like Trump) is under indictment.

It turns out that Parnas has receipts, in the form of a recording of the incident someone shared with ABC.

A recording reviewed by ABC News appears to capture President Donald Trump telling associates he wanted the then U.S. Ambassador to Ukraine Marie Yovanovitch fired – and speaking at a small gathering that included Lev Parnas and Igor Fruman — two former business associates of Trump’s personal lawyer Rudy Giuliani who have since been indicted in New York.

The recording appears to contradict statements by President Trump and support the narrative that has been offered by Parnas during broadcast interviews in recent days. Sources familiar with the recording said the recording was made during an intimate April 30, 2018 dinner at the Trump International Hotel in Washington, D.C.

Trump has said repeatedly he does not know Parnas, a Soviet-born American who has emerged as a wild card in Trump’s impeachment trial, especially in the days since Trump was impeached.

“Get rid of her!” is what the voice that appears to be President Trump’s is heard saying. “Get her out tomorrow. I don’t care. Get her out tomorrow. Take her out. Okay? Do it.”

On the recording, it appears the two Giuliani associates are telling President Trump that the U.S. ambassador has been bad-mouthing him, which leads directly to the apparent remarks by the President. The recording was made by Fruman according to sources familiar with the tape.

[snip]

Parnas appears to say: “The biggest problem there, I think where we need to start is we gotta get rid of the ambassador. She’s still left over from the Clinton administration,” Parnas can be heard telling Trump. “She’s basically walking around telling everybody ‘Wait, he’s gonna get impeached, just wait,” he said.

According to the Daily Beast, Igor Fruman made the recording.

A recently-indicted associate of Rudy Giuliani taped President Donald Trump calling for the firing of Ukraine Ambassador Marie Yovanovitch, according to the lawyer for a second Giuliani associate.

Joseph Bondy, a lawyer for Florida businessman Lev Parnas, told The Daily Beast that the recording was made by former partner Igor Fruman. Both men were arrested in October and charged with campaign finance violations.

TDB also quotes Fruman’s lawyer refusing to comment about the recording. That may be because he is in a joint defense agreement with Rudy Giuliani (and by association the President). Which means this recording came from someone else, either Congress or Parnas himself (though he has only modified the protection order for stuff on his own phones).

This is utterly damning for the President’s claims — which were transparently false — that he didn’t know Parnas.

But they’re also an indication of how easily Trump can be put into compromising situations. April 2018, when this exchange occurred, was just a month after Parnas and Fruman started buying their way into elite crowds with Donald Trump. It was weeks before they gave $325,000 to Trump’s SuperPAC (which, given that they are accused of buying this access in order to get Yovanovitch fired, sure looks like payoff). And they were reportedly doing this at the behest of a still as yet unnamed Ukrainian.

Yet they had to do little more than lie about Yovanovitch to get Trump to order that she be fired. While Republicans in the Senate may not give a damn, the video will, at a minimum, make it harder for Bill Barr to protect the president.

So on top of everything this does for Trump’s legal woes, this video raises real questions about who else has such damning recordings of Trump. Mar-a-Lago has already been demonstrated to be a nest of spying. And Trump has chosen not to bring handlers with him into key meetings with foreign leaders — including, but not just, Putin.

I promise you, this is not the only utterly damning recording of the President out there.

The question is what those who have such damning recordings are doing with the leverage they give over the President.

Lev Parnas Says Bill Barr Should Recuse … But Doesn’t Say Why

In this post, I laid out why Lev Parnas’ current publicity tour may not be as insane, from a defense standpoint, as it seems. I laid out how Barr would have significant ability to protect potential co-conspirators of Parnas — starting with Rudy and extending to Rudy’s client. I explained how Barr’s veto authority over some of this might limit Parnas’ ability to cooperate his way out of his legal problems, and at the very least increases the chance he’s stuck holding the bag for various plots that include far more powerful people. Most interesting, however, were the ways Parnas hinted at but stopped short of implicating Barr in the plot by suggesting,

  • He had been told, by Rudy and others, they had spoken to Barr about all this
  • He had witnessed Rudy and others speaking to Barr about all this
  • He might have texts proving Barr’s involvement, but couldn’t remember whether that was the case or not

To be clear: Parnas is obscuring the degree to which he insinuated himself in Trump’s circles to make all this possible. He is pretending everything he did was ordered by powerful Americans, when the evidence suggests otherwise. So it might not serve justice for him to try to cooperate with prosecutors (because he could well be the most responsible). But I’m beginning to understand how pursuing this angle might be a reasonable defensive approach.

Today, Parnas’ lawyer Joseph Bondy just sent a request to Barr requesting his recusal, copying it to his docket.

It actually flubs the argument it tries to make about how impeachment relates to this criminal case, describing how both the July 25 Trump-Zelensky call transcript and the whistleblower complaint mention Barr over and over, without mentioning that Parnas and Igor Fruman were also incorporated in the whistleblower complaint by repeated reference to this article, which includes the influence peddling for which the grifters were already indicted. That is, the case is far stronger than this letter lays out, because both Parnas and Barr were named in the whistleblower complaint.

Worse still, this letter doesn’t talk about any of the things Bill Barr’s DOJ has done that obstructed full investigation of the complaint:

  • Scoping the assessment of the complaint to specifically avoid connecting the complaint to the investigation of Parnas and Fruman
  • Not sharing the complaint, as required by MOU, with the FEC, which would have led the FEC to tie the complaint to the pre-existing investigation it had of Parnas and Fruman
  • Getting OLC to invent reason to withhold the complaint from Congress, which if it had been successful would have prevented all investigation of these activites

In short, the actions of DOJ overseen by Barr, not just his mention in the complaint and ties to Victoria Toensing and Joe DiGenova, mandate his recusal. But for some reason (perhaps because that would be more aggressive than even Bondy is willing to go), Bondy doesn’t include those actions.

Most interestingly, Bondy doesn’t include any of the allegations Parnas had made publicly about Barr’s potential more direct role. Nor does he answer the question of whether or not Parnas has texts more directly implicating Barr.

What Bondy does do, in the wake of the press blitz he has choreographed, is note that “evidence has been brought to light linking you further to your long-time colleagues Victoria Toensing and Joseph DiGenova, as well as to Mr. Giuliani, which undoubtedly creates at least the public appearance of a conflict of interest.” I mean, there is, absolutely, the appearance of a conflict of interest, but Bondy was the one who brought all that evidence to light!

Finally, though, Bondy suggests, with uncertain veracity, that SDNY has done things that suggest a purported conflict has already harmed Parnas.

In addition to harmful perceptions, this conflict of interest appears to have caused actual harm to Mr. Parnas who, given delays in the production of discovery in his federal case, was rendered unable to comply with a duly-issued congressional subpoena in time for congressional investigators to make complete use of his materials or properly assess Mr. Parnas as a potential witness. Furthermore, prosecutors have, thus far, refused to meet with Mr. Parnas and to receive his information regarding the President, Mssrs. Giuliani, Toensing, DiGenova and others–all of which would potentially benefit Mr. Parnas if he were ever to be convicted and sentenced in his criminal case.

For better and worse, getting FBI to image a bunch of phones and return them to a defendant within three months including two major holidays is not that long a wait. It took two months before Special Master Barbara Jones first started making privilege designations in the Michael Cohen case (involving one of the same prosecutors), and that was an even more politically sensitive case than this one. So while mentioning the delay is useful for Democrats (especially when the Senate tries to refuse to hear Parnas’ testimony because it didn’t get turned over in time), and valuable from a defense standpoint as it lays groundwork for appeal, it’s not a real injury on the part of prosecutors.

With regards to prosecutors’ refusal to meet with Parnas about cooperating against his possible co-conspirators, as the WSJ reported yesterday, late last year Bondy failed to convince SDNY that Parnas was not — as accused in his indictment — directed by a still-unnamed Ukrainian official to try to oust Marie Yovanovitch.

At a meeting with prosecutors from the Manhattan U.S. attorney’s office late last year, people familiar with the matter say, Mr. Parnas’s attorney disputed that he pushed for the removal of the U.S. ambassador to Ukraine at the behest of a Ukrainian official—one of the charges in the campaign finance indictment.

This is another way of saying that Parnas is unwilling to plead to the allegations in the existing indictment, and may also suggest that while Parnas is happy to incriminate Rudy and his American buddies, he’s not willing implicate his original boss, whoever that might be. So prosecutors likely have good reason not to meet with Parnas to hear him implicate Rudy and friends (not least, because they already have this documentary evidence that implicates them anyway, and now Parnas is providing whatever testimony they might need on the Rachel Maddow Show).

Bondy is absolutely right: Bill Barr should have recused from this — and all review of the whistleblower complaint — back in August when it was clear he was named. Even assuming Barr took no action on any of this influence peddling, this goes well beyond just the appearance of conflict to known participation in known events — such as the meeting with Rudy that DOJ admitted to only last week after covering it up for months — that merit recusal.

But Bondy is also being less than candid with his letter, playing the public docket as much as he is making a real legal request.

As Accused Co-Conpirators, Donald Trump and Lev Parnas Should Be Treated with Same Skepticism

WaPo has a long profile of Lev Parnas that adopts the same approach with the accused influence-peddler that virtually the entire press corps does: raising cautions about his veracity because Parnas is has been indicted in a serious crime, with more charges promised.

Some of his most explosive claims that Trump, Vice President Pence and Attorney General William P. Barr knew of his activities remain unsubstantiated and disputed. The president’s allies say his assertions are not credible, noting the serious criminal charges he faces.

“These allegations are being made by a man who is currently out on bail for federal crimes and is desperate to reduce his exposure to prison,” White House press secretary Stephanie ­Grisham said this past week.

[snip]

And some Democrats have counseled caution in the face of his allegations, noting that he is accused of serious felonies.

“Parnas is someone whose evidence, whose testimony should be questioned, challenged, like any other witness,” Sen. Edward J. Markey (D-Mass.) told CNN, adding, “but he should be a witness.”

Prosecutors have hinted in court that more of Parnas’s activities have not come to light yet. This past month, they revealed that he received a mysterious $1 million loan in September from a lawyer for Dmytro Firtash, a Ukrainian gas tycoon facing bribery charges in the United States. In court, Bondy said the loan was made to Parnas’s wife and had been intended to help the couple buy a home. He said that Firtash had cut all ties to Parnas after it started to become clear Parnas intended to assist the impeachment probe. He and Parnas have declined to comment further.

The profile mentions Trump’s impeachment in the third paragraph, and describes the way Parnas’ media blitz undermines Trump’s defenses. But it treats Trump’s defenses, having been accused of high crimes and misdemeanors, as presumptively trustworthy.

The House of Representatives formally voted to send the Senate charges that Trump abused his office by pressuring Ukraine to help his reelection bid.

[snip]

Still, the blizzard of new details in the documents Parnas had turned over raised a host of questions about Trump’s efforts in Ukraine — ratcheting up the pressure on Senate Republicans to allow witnessesto be called during the coming trial.

[snip]

The materials sharply undercut the notion pushed by the president’s supporters that the activities in Ukraine were about U.S. anti-corruption policy — rather than defeating Biden.

The profile doesn’t make two things clear. First, Trump is an accused defendant every bit as much as Lev Parnas is, with the same incentive to lie. More importantly, from the very beginning of this impeachment process, Parnas has been described as a co-conspirator of Trump’s in his crimes.

The whistleblower complaint that first accused Trump of multiple crimes invokes Parnas and Igor Fruman at least four times. After describing Rudy’s trip to Madrid to meet with Andriy Yermak in the wake of the Trump-Zelensky phone call, the complaint notes that Rudy has reached out to other Zelensky advisors through the grifters.

Separately, multiple U.S. officials told me that Mr. Giuliani had reportedly privately reached out to a variety of other Zelenskyy advisers, including Chief of Staff Andriy Bohdan and Acting Chairman of the Security Service of Ukraine Ivan Bakanov.4

4 In a report published by the Organized Crime and Corruption Reporting Project (OCCRP) on 22 July, two associates of Mr. Giuliani reportedly traveled to Kyiv in May 2019 and met with Mr. Bakanov and another close Zelenskyy adviser, Mr. Serhiy Shefir.

Then, when raising Yuriy Lutsenko’s confessed efforts to invent dirt targeting Marie Yovanovitch, the whistleblower raises Rudy’s public claims that John Durham was meeting with Ukrainians for his Bill Barr-led probe.

Mr. Lutsenko also stated that he wished to communicate directly with Attorney General Barr on these matters.9

9 In May, Attorney General Barr announced he was initiating a probe into the “origins” of the Russia investigation. According to the above-referenced OCCRP report (22 July), two associates of Mr. Giuliani claimed to be working with Ukrainian officials to uncover information that would become part of this inquiry. In an interview with Fox News on 8 August, Mr. Giuliani claimed that Mr. John Durham, whom Attorney General Barr designated to lead this probe, was “spending a lot of time in Europe” because he was “investigating Ukraine.” I do not know the extent to which, if at all, Mr. Giuliani is directly coordinating his efforts on Ukraine with Attorney General Barr or Mr. Durham.

The complaint provides further details laying out Rudy’s meetings with Lutsenko.

It was also publicly reported that Mr. Giuliani had met on at least two occasions with Mr. Lutsenko: once in New York in late January and again in Warsaw in mid-February. In addition, it was publicly reported that Mr. Giuliani had spoken in late 2018 to former Prosecutor General Shokin, in a Skype call arranged by two associates of Mr. Giuliani.10

10 See, for example, the above-referenced articles in Bloomberg (16 May) and OCCRP (22 July).

The complaint then moves on to describe Rudy’s outreach to Zelensky after the election, suggesting that Parnas and Fruman may have been the people he heard were leading that effort.

Around the same time, I also learned from a U.S. official that “associates” of Mr. Giuliani were trying to make contact with the incoming Zelenskyy team.11

11 I do not know whether these associates of Mr. Giuliani were the same individuals named in the 22 July report by OCCRP, referenced above.

In other words, Parnas’ efforts to reach out to Lutsenko and other corrupt prosecutors and then his role pressuring Zelensky to announce a Biden investigation has always been part of the necessary context in which to understand Trump’s comments on that phone call as the crime it is.

And while Trump has denied knowing Parnas (in the same way he denied knowing George Papadopoulos), his lawyers have not denied that he was working on Trump’s behalf.

The House Intelligence Committee already has legal proof of that — in John Dowd’s October 3 letter asserting that Parnas and Fruman’s work for Rudy was in connection with Rudy’s representation of Trump.

Be advised  that Messrs. Parnas and Fruman assisted Mr. Giuliani in connection with his representation of President Trump. Mr. Parnas and Mr. Fruman have also been represented by Mr. Giuliani in connection with their personal and business affairs. They also assisted Joseph DiGenova and Victoria Toensing in their law practice. Thus, certain information you seek in your September 30, 2019, letter is protected by the attorney-client, attorney work product and other privileges.

Parnas has since presented further proof of that, in the email focusing on the import of ensuring Parnas and Fruman could not cooperate with Congress that preceded by hours the release of a Trump-penned letter accusing the entire impeachment proceeding of impropriety. He even provided proof that Trump knew of a perceived conflict involving John Dowd’s representation of Parnas and waived it.

Moreover, Parnas has provided text messages and other evidence more than substantiating the Ukraine outreached raised by the whistleblower, both with those named by him and those alluded to:

  • Yuri Lutsenko
  • Ivan Bakanov
  • Serhiy Shefir
  • Arsen Avakov
  • Andriy Yermak
  • Igor Kolomoisky

Trump and Parnas are both defending themselves against serious allegations of criminal wrong-doing.

But just one of them has released evidence to substantiate their defense. And the press ought to take that into account when deciding who is more credible.

 

Kevin Downing Was “in the Loop” of Silencing Lev Parnas on October 8

Lev Parnas’ lawyer, Joseph Bondy, continues his attack on those who scorned his client.

This afternoon, he posted an email dated October 8, 2019 7:06 AM that John Dowd — then ostensibly representing Parnas and Igor Fruman — sent to update a bunch of lawyers that his clients would send, “a letter to the intel committee to eliminate any doubt that Igor and Lev will appear to answer questions because we are not prepared to do so.”

Dowd, of course, had already first called, on September 30, then sent a letter, on October 3, to convey the same message. But he seemed to feel the need to do so again on October 8 (which may be part of the reason the White House released the intemperate Trump letter signed by White House Counsel Pat Cipollone).

He forwarded the email, with all recipients visible, to his clients a minute later.

The next day, Parnas and Fruman met with Rudy Giuliani at Trump hotel for lunch. That afternoon, Bill Barr visited SDNY. Hours later, Parnas and Fruman tried to board a plane to go to Vienna to tape an interview between Sean Hannity and Dmitro Firtash. They were arrested on charges that had been processing away in SDNY for months, ostensibly because SDNY feared they would flee, even though they had left the country numerous times while that investigation proceeded. Then, probably after Parnas and Fruman were arrested, Barr visited Rupert Murdoch personally. Hannity never went to Vienna. Nor did Rudy, who was supposed to meet Parnas and Fruman the next day.

According to public reports at the time, because they got arrested in EDVA, they needed a local lawyer to deal with their bail, so Paul Manafort’s lawyer, Kevin Downing stepped in. Then, what must be the next day, Parnas fired both Dowd and Downing, because — he believed — they were telling him to take the fall for the President.

MADDOW: Mr. Dowd was your attorney for a time and then you changed attorneys.

PARNAS: I fired him in jail.

MADDOW: You fired him when you were in jail?

PARNAS: Yes.

MADDOW: What happened there?

PARNAS: And Mr. Downing. Basically, when we were arrested, obviously, I had nowhere else to call. I didn`t know – we just retained Dowd and Downing. So I called Downing to come there and I started seeing in the process of the bail stuff the way things were going on that they were more concentrating on – I didn’t feel that they were trying to get me out, and at that point, I had a meeting with John Dowd and Downing inside the jail.

And John Dowd just instead of comforting me and, you know, trying to calm me down, telling me, like, it’s going to be OK, like, don’t worry, basically start talking to me like a drill sergeant and telling me, giving me orders, like, you know, be a good boy, like, you know.

MADDOW: He said “be a good boy”?

PARNAS: No, I don’t – I don’t want to quote him exactly on what the words, what he used in that because it was a while ago. I don’t remember exactly.

But it was – it was his condescending attitude toward basically, like, who do you think you are telling the president or Giuliani or anybody to, like, come out and because I – one of the things I said, I said, I can’t believe nobody is coming out in our defense and saying we didn’t do anything wrong, we’re good citizens, you know, we work.

And basically word for word, and then I said, if you don’t get out of here right now, something bad is going to happen because I don’t want to see the two of you.

And at that point, Downing hit the emergency button and the security took me out and took them out.

MADDOW: This is a very heated confrontation. You told Downing and Dowd to get out.

PARNAS: I threw them out.

MADDOW: Were they telling you to sacrifice yourself in order to protect the president?

PARNAS: That’s what I felt.

Here’s the thing. Downing was not — at least not publicly — representing Parnas and Fruman until and because they were detained in EDVA.

But he — Paul Manafort’s lawyer — was included in that email from Dowd on October 8, a day before they were arrested along with Trump’s lawyers, Victoria Toensing and Joe DiGenova, and Rudy’s then lawyer Jon Sale.

Lev Parnas appears to believe he was arrested because it was a better way to keep him silent than telling Congress no.

And the inclusion of Kevin Downing in that October 8 email suggests he may well be right.

It Was All [Fruman’s] Contacts in Ukraine

During his media blitz, Lev Parnas has focused mostly on the people he needs to implicate to better his own outcome: President Trump, Rudy Giuliani, Victoria Toensing, and Joe DiGenova, along with Bill Barr who — Parnas seems to be suggesting — is protecting the others in the SDNY investigation, if not Barr himself.

There’s been virtually no mention of his primary alleged co-conspirator, Igor Fruman. Indeed, in the first of two Maddow broadcasts, Fruman’s name only appears twice, when Maddow raised it.

But Parnas made a single very provocative mention of Fruman in his otherwise unremarkable Anderson Cooper interview that aired last night.

In discussing who he was speaking to in Ukraine, he suggested those people were all Fruman’s contacts.

COOPER: You’ve been described — the position you ended up with Giuliani, you’ve described as a fixer for Giuliani in his efforts to dig up dirt on the Bidens. Is that accurate?

PARNAS: I don’t know what you call a fixer. I mean, I was —

COOPER: Arrange meetings, conduct meetings —

PARNAS: Yes. I mean, that’s exactly what I did. I mean, I was the middleman between two worlds.

Here I was, I had a partner in Igor Fruman that grew up in Ukraine, had extensive business there. And because of his businesses, he knew all kinds of people that were, you know, politicians —

COOPER: He had — he had the contacts.

PARNAS: It was all his contacts. I didn’t have any contacts in Ukraine. I don’t have any contacts in Ukraine. [my emphasis]

Parnas goes immediately from claiming he was relying on Fruman’s comments to telling the story that he otherwise has stuck to: these people took his calls because he would claim he was calling on behalf of the most powerful man in the world, the President of the United States, then put the President’s lawyer on speaker phone to verify himself.

COOPER: For a guy who does not have contacts in Ukraine, you were able to get meetings with a lot of very important people in Ukraine. Why was that?

PARNAS: Well, I mean, if the president of the United States tells them to meet with you, I think anybody will meet with you.

Fruman is virtually absent from Parnas’ media blitz narrative except for that moment where Parnas hinted that Fruman’s contacts were a key part of the grift.

This WaPo story from yesterday provides one hint about what kind of contacts Fruman might have. As Fruman tells it (rather dubiously), he “happened to” run into someone in a lobby in Kyiv — who by implication though the story doesn’t make this 100% clear, appears to be Dmytro Firtash’s associate and alleged Moldovan fraudster Dmitry Torner  — which led to a meeting with Rudy in Paris.

Giuliani’s introduction to Firtash’s network began in May. That’s when Fruman told a person familiar with his account that he happened to run into a friend in the lobby of a Kyiv hotel who could get to Firtash.

Torner worked as the head of the analytics department at an electricity and gas distribution company in Ukraine owned by Firtash, according to public records and information he later provided election officials in Ukraine when he launched a bid for the parliament as part of a pro-Russian political party.

Representatives of Firtash declined to comment on Torner’s role.

On the eve of parliamentary elections in July, Ukrainian authorities announced that Torner had been disqualified because officials had discovered that he held multiple fraudulent Ukrainian passports under various names.

According to Ukraine’s Security Service, Torner is a citizen of Moldova named Dmitry Nekrasov who was wanted for escaping incarceration in his home country and changed his name to start a new life in Ukraine.

[snip]

In late May, a few weeks after Fruman told an associate that he encountered Torner in Kyiv, Giuliani met with the Firtash executive in the private cigar bar of the luxury hotel Le Royal Monceau Raffles Paris, according to people familiar with the encounter.

That led to the June meeting that Fruman and Parnas had in Vienna with Firtash himself, where they offered a quid pro quo on behalf of the President of the United States, trading some kind of cure for Firtash’s criminal problems in the US in exchange for dirt on Joe Biden and Paul Manafort.

The OCCRP report included in the whistleblower complaint speaks at more length about the kinds of contacts Fruman has in Ukraine.

Fruman, 53, has spent much of his career in Ukraine, and has ties to a powerful local businessman reputed to be in the inner circle of one of the country’s most infamous mafia groups.

[snip]

His network of businesses extends from the United States to the city of Odesa, a Ukrainian Black Sea port notorious for corruption and organized crime.

Reporters found that Fruman has personal ties to a powerful local: Volodymyr “The Lightbulb” Galanternik, a shadowy businessman commonly referred to as the “Grey Cardinal” of Odesa.

Galanternik is described by local media and activists as a close associate of Gennadiy Trukhanov, the mayor of Odesa who was shown in the late 1990s to be a senior member of a feared organized criminal group involved in fuel smuggling and weapons trading.

Galanternik also owns a luxury apartment in the same London building as the daughter of another leader in the gang, Aleksander “The Angel” Angert, OCCRP has previously reported.

Vitaly Ustymenko, a local civic activist, describes Galanternik as an overseer of the clique’s economic domination of the city.

“[Galanternik] is not ‘one of the’ — he is actually the most powerful guy in Odesa, and maybe in the region,” Ustymenko said.

Fruman’s recent ex-wife, Yelyzaveta Naumova, is the self-declared best friend of Galanternik’s wife, Natasha Zinko, according to her Instagram posts. Galanternik and Zinko also celebrated the New Year in 2016 with the Frumans in South Florida, according to a photo posted online by an acquaintance of Fruman.

Galanternik’s name is seldom tied directly to his businesses. Instead he operates via a network of offshore companies and trusted proxy individuals. But there are signs that either Fruman or his long-standing local partner, Serhiy Dyablo, may have a business relationship with Galanternik via two Odesa firms (see box).

This suggests that Parnas’ role in the grift was creating the echo chamber, while Fruman’s — who reportedly is in a joint defense agreement with Rudy — was in connecting Rudy to the network of sketchy characters, including organized crime, who would be willing to lie to reverse efforts to combat corruption in Ukraine.

But the role of Furman’s network of sketchy businessmen may explain a few other details. It may explain, for example, why Parnas was spreading false rumors about Marie Yovanovitch nine months before he created the echo chamber on the frothy right that he now blames for his negative comments about her.

Lev Parnas has a story to tell in which everything he did, he did at the behest of the President of the United States, working through the President’s addled lawyer Rudy Giuliani. In that story, there is no network in Ukraine, and it’s only the heft of the President of the United States that gets him meetings with some very powerful, but very corrupt, characters.

But that story ignores the events — at the center of his existing indictment — by which Parnas and Fruman bought their way into being key players in Trump’s network. It ignores hows they donated $325,000 to Trump’s SuperPAC immediately after first inciting Trump to fire Marie Yovanovitch, long before Joe Biden had announced he was running for President.

And it ignores that network of mobbed up Ukrainian businessmen who would have real incentive to reverse anti-corruption efforts in Ukraine.

The Parnas Files Raise the Import of DOJ’s Failure to Connect-the-Dots on the Whistleblower Complaint

Last night, HPSCI released some of Lev Parnas’ files that were seized as part of the investigation into Rudy Giuliani and his grifters.

The most important document, for the legal impeachment case against Donald Trump, is a letter Rudy sent to Volodymyr Zelensky stating clearly that he was contacting the Ukrainian president as Trump’s personal lawyer, not a government lawyer.

Just to be precise, I represent him as a private citizen, not as President of the United States.

It makes it clear that — contrary to the Republican cover story — Rudy and Zelensky both knew they were negotiating a personal benefit for Trump, not a benefit to the US.

But the most important files showing Trump’s abuse of power are texts between Parnas and a thoroughly American grifter, Robert F. Hyde, who appears to have had people on the ground in Kyiv surveilling Marie Yovanovitch in the days before she was recalled. He not only appears to have known precisely where she was, but he seemed to suggest to Parnas that he could have her assassinated for a price. “Guess you can do anything in the Ukraine with money,” he quipped.

Viewed in isolation, these comments are (at least) a chilling indication of the lengths to which Trump supporters will go to push his conspiracies.

But viewed in light of Trump’s comment to Zelensky about Yovanovitch — “Well, she’s going to go through some things” — it suggests a direct tie between Trump and the more sordid things that Parnas was doing.

Which makes DOJ’s remarkable failure to connect the dots on the whistleblower complaint all the more damning.

As I have laid out, by August 15, top people at DOJ knew of the complaint and knew that Trump had invoked the Attorney General in his comments to Zelensky. Perhaps ten days later, DOJ got the full complaint from the whistleblower, discussing the call itself but also the larger context. Based on a claim that there was no first hand reporting in the complaint, DOJ evaluated just the MEMCON in their review of whether or not a crime was committed, not the complaint as a whole. (Not only was the claim that the whistleblower offered no first hand information false — he was in the loop on the July 18 call and July 23 and 26 meetings about withholding aid — but the complaint included concerns about withholding funding not mentioned on the call.) They quickly publicly declared that the call did not constitute a campaign finance violation, and then did not share the complaint with the FEC (which could have imposed civil penalties) and tried to prevent Congress from obtaining the complaint.

By reviewing the MEMCON instead of the full complaint, DOJ avoided doing what would be normal connect-the-dots database searches on all the names included in it, which — because the whistleblower included multiple references to and a link to this article, would have included searches on Parnas and Igor Fruman. As this table makes clear, if DOJ had done that basic connect-the-dots work they do when assessing tips, they would have found the investigation at SDNY — which Bill Barr had been briefed on when he was confirmed as AG and Jeffrey Rosen probably knew about as well.

And had DOJ tied the call to Zelensky — with its reference to potential violence targeting Yovanovitch — it would have immediately implicated Trump far more deeply in some really corrupt shit.

As if by magic, DOJ failed to do those searches, and therefore failed to obtain official notice that the President was personally involved with a grift that SDNY was close to indicting.

The Government’s Coy Dance on FISA and Rudy’s Grifters

As I noted last month, one of the guys indicted along with Rudy’s grifters, Andrey Kukushkin, asked the government for notice of any of several kinds of surveillance, including FISA. The government responded today with the kind of non-denial that all-but confirms that one of the grifters, Lev Parnas and Igor Fruman, their co-conspirators, or their funders were implicated in a FISA order.

It starts by stating, “the Government has repeatedly informed the defendants, it does not intend to use any information that was obtained or derived from FISA or other forms of surveillance identified by Kukushkin,” meaning under FISA they have no obligation to notify defendants of its use. It then reviews the requirements of statute, which state that the government only has to provide notice if it plans to use evidence obtained via FISA. It asserts it has met the requirements of FISA.

The Government has complied with its discovery and disclosure obligations, and Kukushkin’s motion fails to set forth any legal basis to require anything more.

With respect to FISA, the Government has complied with its obligations under Section 1806 in this case. On December 1, 2019, the Government notified defense counsel that it did not intend to use any FISA-obtained or FISA-derived information against the defendants at trial.

It’s basically a legalistic way of saying, “yes, yes, yes, but no.” All the more so given that the government corrects a Kukushkin claim that the government had stated they had not obtained FISA collection.

Kukushkin incorrectly states that the Government has “denied procuring evidence pursuant to Title III or FISA warrants.” Dkt. 45 at n.1. The Government has told the defense that it did not obtain or use Title III intercepts in this investigation. The Government has not made any representations about the use of FISA warrants.

And the government  provided Judge Oetken an ex parte filing, which is the kind of thing you’d do to be very transparent to the judge when asked about FISA.

The Government is separately submitting a supplemental letter to the Court ex parte and under seal.

Again, all this is legally uninteresting but factually intriguing given how open the government is about the likelihood they did use FISA in this case.

Especially given how they note that the representations the government makes in this letter apply to all the defendants, including Fruman and Parnas.

The Government writes in response to defendant Andrey Kukushkin’s December 12, 2019 letter motion, which is made “on behalf of all defendants,” seeking the Court to direct the Government to affirm or deny, under 18 U.S.C. § 3504, whether the defendants were the subject of any Government surveillance, including under Executive Order 12333 or the Foreign Intelligence Surveillance Act (“FISA”). [my emphasis]

If Kukushkin were targeted with a FISA order, it would mostly implicate some Nevada Republicans — that’s the side of the grift Kukushkin got charged under.

But if Parnas or Fruman were targeted, it might implicate Pete Sessions, Ron DeSantis, Devin Nunes, the other members of Congress Adam Schiff intimated were also included in the Parnas call records obtained by HPSCI, the President’s lawyer, and possibly even the President himself.

And if any of the grifters were personally targeted, it would probably mean that Bill Barr (who has been personally involved in the case since early last year) had agreed that someone in direct communication with all these Republicans was or is probably an Agent of a Foreign power.