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Welcome to the Jim Jordan and James Comer Look the Other Way Committees, Brought to You By Access Journalism

In an article published 112 days before the November election, Politico included this sentence about all the investigations Republicans planned to conduct if they won the House.

Republicans on the [Oversight] committee plan to hold high-profile probes into Hunter Biden’s dealings with overseas clients, but they also want to hone in on eliminating wasteful government spending in an effort to align the panel with the GOP’s broader agenda.

Politico’s Jordain Carney did not note the irony of planning, almost four months before the election, an investigation into foreign efforts to gain influence by paying the then Vice President’s son years ago, next to a claim to want to eliminate wasteful spending. He just described it as if yet another investigation into Hunter Biden, even as DOJ continued its own investigation, wasn’t an obvious waste of government resources.

Politico’s Olivia Beavers didn’t point that out either in a 1,400-word profile in August on James Comer entitled, “Meet the GOP’s future king of Biden investigations,” the kind of sycophantic profile designed to ensure future access, known as a “beat sweetener.” (Beaver is currently described as a Breaking News Reporter; this profile was posted 3 days after the search of Mar-a-Lago.) She did acknowledge that these investigations were, “directing the party’s pent-up frustration and aggression toward Democrats after years in the minority,” not any desire to make government work or eliminate wasteful spending. But she nevertheless allowed Comer and his colleagues to claim that an investigation into Joe Biden’s son could be credible — that it would somehow be more credible than the bullshit we expect from Marjorie Taylor Greene.

He’s long been known on both sides of the aisle as a sharp and affable colleague, and has the tendency to lean in with a hushed voice, almost conspiratorially, only to crack a well-timed joke that’s often at his own expense. Beyond that personal appeal, though, Comer emphasized it’s his priority to ensure the oversight panel’s work remains “credible.”

That’s a tricky path to tread, given his party’s investigative priorities are still subject to the whims of former President Donald Trump as well as an increasingly zealous conservative base and media apparatus. But Comer’s particularly well-suited to the task, according to more than two dozen House Republicans interviewed. And if he manages to do it right, it could provide a launching pad to higher office — Comer is not discounting a future bid for Senate or Kentucky governor, though that likely wouldn’t occur until after his four remaining years leading the panel.

“I’m not going to be chasing some of these right-wing blogs and some of their conspiracy theories,” Comer told POLITICO in an hour-long interview conducted in a rented RV trailer that his campaign had parked at the picnic. “We’ll look into anything, but we’re not going to declare a probe or an investigation unless we have proof.”

[snip]

And though Comer has said Hunter Biden would likely get subpoenaed in the event of a declined invitation to the committee next year, he doesn’t want to appear trigger-happy with issuing subpoenas, either.

“This isn’t a dog-and-pony show. This isn’t a committee where everybody’s gonna scream and be outraged and try to make the witnesses look like fools,” he said, before nodding at House Democrats’ past probes of the Trump campaign and Russian election interference. “Unlike Adam Schiff, we’re gonna have something concrete, substantive on Hunter Biden or I’m not going to talk about Hunter Biden.”

Beavers didn’t mention the platitudes she included in her August article when she reported, yesterday, on the press conference Comer and Jim Jordan have scheduled for today, less than 24 hours after the 218th House seat for Republicans was called, to talk about the investigation into Hunter Biden.

Reps. Jim Jordan (R-Ohio) and James Comer (R-Ky.) discussed plans to investigate politicization in federal law enforcement and Hunter Biden’s business affairs.

“We are going to make it very clear that this is now an investigation of President Biden,” Comer said, referring to a planned Republican press conference Thursday about the president and his son’s business dealings.

Beavers has let Comer forget the claim, which she printed as good faith in August, that Comer was “not going to declare a probe or an investigation unless we have proof.”

Olivia. Comer lied to you in August. As a journalist, you might want to call that out.

There is no functioning democracy in which the opposition party’s first act after winning a majority should be investigating the private citizen son of the President for actions taken three to six years earlier, particularly not as a four year criminal investigation into Hunter Biden — still overseen by a Trump appointee — continues.

There is no sane argument for doing so. Sure, foreign countries paid Hunter lots of money as a means to access his father. But according to an October leak from FBI agents pressuring to charge the President’s son (one that Comer pitched on Fox News), which claimed there was enough evidence to charge Hunter Biden for tax and weapons charges but which made no mention of foreign influence peddling charges, that foreign influence peddling apparently doesn’t amount to a crime. Nothing foreign countries did with Hunter Biden is different from what Turkey did with Mike Flynn, Ukraine did with Paul Manafort, Israel did with George Papadopoulos, and multiple countries did with Elliot Broidy. Jim Jordan and James Comer not only had no problem with that foreign influence peddling, they attacked the FBI for investigating them.

If James Comer and Jim Jordan really cared about foreign influence peddling, they would care that, since leaving the White House, the Trump family has entered into more than $3.6 billion of deals with Saudi Arabia ($2 billion to Jared’s investment fund, a $1.6 billion real estate development in Oman announced the day before Trump’s re-election bid, and a golf deal of still-undisclosed value; Judd Legum has a good post summarizing what we know about this relationship). Given that the Oversight panel under Carolyn Maloney already launched an investigation into Jared’s fund — like Hunter Biden’s funding, notable because of the obvious inexperience of the recipient — Comer could treat himself and American taxpayers with respect by more generally investigating the adequacy of protection against foreign influence, made more acute in the wake of the opinion in the Steve Wynn case that guts DOJ’s ability to enforce FARA.

With today’s press conference, you will see a bunch of journalists like Olivia Beavers treating this as a serious pursuit rather than pointing out all the hypocrisy and waste it entails as well as the lies they credulously printed during the election about it. You will see Beavers rewarding politicians for squandering government resources to do this, rather than calling them out for the hypocrisy of their actions.

Maybe, if Comer becomes Governor of Kentucky, Beavers will have the inside track on access to him. I guess then it will have been worth it for her.

This Hunter Biden obsession has been allowed to continue already for three years not just because it has been Fox’s non-stop programming choice to distract from more important matters, but because journalists who consider themselves straight journalists, not Fox propagandists, choose not to call out the rank hypocrisy and waste of it all.

For any self-respecting journalist, the story going forward should be about how stupid and hypocritical all this is, what a waste of government resources.

We’re about to find out how few self-respecting journalists there are in DC.

Update: NBC journalist Scott Wong’s piece on the GOP plans for investigations was similarly supine. The funniest part of it is that it treated a 1,000 page “report,” consisting almost entirely of letters Jordan sent, as if it were substantive. I unpacked the details NBC could have disclosed to readers here.

Meanwhile, this Carl Hulse piece doesn’t disclose to readers that Marjory Taylor Greene’s investigation into the jail conditions of January 6 defendants, besides being an attempt to protect potential co-conspirators, also is falsely premised on claims that the January 6 defendants are treated worse (and not better) than other defendants as well as false claims that many of the pre-trial detainees are misdemeanants.

The Intelligence Gaps Where the Saudis Hid Their October Surprise

NYT has a story on Joe Biden’s serial surprise as he discovered the Saudis were reneging on what the President thought was a deal to keep pumping oil.

Here’s the timeline:

May: Amos Hochstein and Brett McGurk believe they make a deal for a two-part increase of production

June 2: OPEC announces the first part of production increases and Biden announces his Saudi trip

June 3: Trump travels from Mar-a-Lago to Bedminster for Saudi golf tournament

June 7: Adam Schiff and others send Biden a letter warning about Saudi Arabia

Prior to July 15: Briefings for Intelligence Committees on secret plan

July 15: Biden meets with Mohammed bin Salman

August 3: Saudis announce half of production increase promised (“the first public warning”)

September 5: OPEC announced production cuts

Late September: US officials begin hearing of deep production cuts on October 5

September 24: MbS says there will be no production cuts

September 27: Abdulaziz argues cuts would impede diversification plans

September 28: Saudis inform the US they will announce production cuts

October 26: Jared Kushner speaks at Saudi investment summit

NYT emphasizes the Saudi expression of self interest and hints at influence from Russia.

American officials say they believe that Prince Mohammed was particularly influenced by a high-level Sept. 27 meeting in which Prince Abdulaziz, the energy minister, argued that oil production cuts were needed to keep prices from plummeting to as low as $50 per barrel. The U.S. officials said they learned Prince Abdulaziz asserted that, under such as scenario, the Saudi government would lack the resources to fund economic diversification projects at the heart of Prince Mohammed’s domestic agenda.

Some U.S. officials believe that the Russians influenced the Saudi about-face, pointing to Prince Abdulaziz’s strong working ties with top Russian officials close to Mr. Putin, particularly Alexander Novak, the deputy prime minister who oversees energy policy.

[snip]

On Tuesday, speaking on stage at the annual investment forum in Riyadh, Prince Abdulaziz said that the kingdom would do what was in its best interests.

“I keep listening to, ‘Are you with us or against us?’ Is there any room for, ‘We are for Saudi Arabia and the people of Saudi Arabia’?” he said. “We will have to deliver our ambitions.”

But the story focuses more on how the Americans repeatedly got caught by surprise.

The Americans came away from the summit with the belief that the agreement was on track and that Prince Mohammed was satisfied. But in Riyadh, top Saudi officials were privately telling others that they had no plans for further meaningful oil production increases.

Indeed, the first public warning of this came on Aug. 3, when OPEC Plus announced a paltry bump in production for September of 100,000 barrels a day — half of what U.S. officials believed the Saudis had promised them.

American officials said they did not understand why that decision was made. Then OPEC Plus announced on Sept. 5 it would cut production by 100,000 barrels per day — retracting the increase it had announced a month earlier. After that, U.S. officials were increasingly confused and concerned about the kingdom’s direction.

In late September, American officials began hearing that Saudi Arabia could get OPEC Plus to announce a deep cut to oil production at a meeting scheduled for Oct. 5. [my emphasis]

There’s no comment about Trump’s ongoing meetings with the Saudis as this transpired, not even the one the day after Biden announced his visit, the same day (as it happens) that Trump refused to give back all the classified documents he stole. There’s no comment about MbS’s repeated, publicly stated preference for Trump over Biden.

The story describes Biden’s surprise as the result of wishful thinking. And the US wasn’t totally surprised. They got advance warning of the October cuts with enough time to send Janet Yellen to attempt to reverse the cuts.

But as depicted, the Saudis were saying, from the start, that they intended to renege on the deal with Biden, and the US went on believing the deal would hold for months.

There is no way the US should be taken by that much surprise: not by the Saudis, not by the Israelis, not even by the Brits. If they genuinely were this badly surprised, it would suggest significant intelligence gaps on the part of the US. The US spends billions to avoid such surprises.

One of the last times the IC had a surprise this big came when Vladimir Putin decided, after secret phone calls with Mike Flynn, not to respond to Obama’s 2016 sanctions. (They quickly found an explanation for the surprising turn of events, which intelligence collection Trump’s Director of National Intelligence burned years later.)

Perhaps it’s the paranoia fostered by a man who repeatedly intervenes in US foreign policy to obtain personal benefit, but I can’t help but notice these intelligence failures followed Trump’s meeting with the Saudis in Bedminster.

The Legal and Political Significance of Nuclear Document[s] Trump Is Suspected to Have Stolen

After Merrick Garland called Trump’s bluff yesterday, multiple outlets reported that DOJ was looking for documents relating to nuclear weapons.

Classified documents relating to nuclear weapons were among the items FBI agents sought in a search of former president Donald Trump’s Florida residence on Monday, according to people familiar with the investigation.

[snip]

Material about nuclear weapons is especially sensitive and usually restricted to a small number of government officials, experts said. Publicizing details about U.S. weapons could provide an intelligence road map to adversaries seeking to build ways of countering those systems. And other countries might view exposing their nuclear secrets as a threat, experts said.

It’s unclear whether this information is coming from investigators trying to demonstrate what a no-brainer this search was, people who’ve otherwise seen the Attachment listing items to seize, or from Trump’s camp in an effort to pre-empt damage from when this will be released. With few exceptions, most details made public about the search thus far have come from Trump’s side.

But the report that FBI showed probable cause to believe Trump was hoarding a document or documents pertaining to nukes has several significant legal and political implications.

First, it makes it far more likely that Trump has violated, and can be proven to have violated, part of the Espionage Act, 18 USC 793.

In my post describing the likely content of an affidavit justifying a search of the former President, I noted that somewhere in there, the FBI would have had to anticipate and rule out the possibility that Trump simply declassified these documents which, if Trump could prove it, would render the documents simply stolen documents covered by the Presidential Records Act.

  • Some explanation of why DOJ believes that these documents weren’t actually declassified by Trump before he stole them

But the fact that these are nuclear documents, under the Atomic Energy Act, Trump cannot declassify them by himself. They’re “restricted documents,” the one kind of document that’s true of. Here are threads by Kel McClanahan and Cheryl Rofer explaining the distinctions — even Chelsea Manning weighed in! As McClanahan likened it, nuclear documents are protected by two padlocks, and Trump only had the legal key to one of those padlocks.

So by showing probable cause that Trump had stolen at least one document pertaining to nuclear weapons, FBI would accomplish that task: Trump could not claim to have declassified any such documents, because he cannot have declassified them by himself.

Now consider how it impacts Trump’s exposure under the Espionage Act. As I laid out here, to prove someone violated the Espionage Act, you don’t actually prove they were refusing to return classified information; you prove they had what is called “National Defense Information.” Even if Trump claimed to have declassified the documents, if the Agency in question (here, likely DOD or DOE) still believed the information to be classified and still treated as such, it could still qualify as NDI. But ultimately, a jury gets to decide whether something is NDI or not. One key difference between the first and second Joshua Schulte trials, for example, is that DOJ relied not on expert testimony to prove that he leaked or was trying to leak NDI, but rather on the logic of why the government would want to keep information about its assets secret. I thought it was one of the areas where the second prosecution was vastly more effective than the first.

There are few easier concepts to explain to a juror than that you need to keep information about nuclear weapons safe, and that doing so pertains to the national defense.

Then there’s the backstory. Early in the Trump Administration, there were reports that Trump had a scheme (one that involved all Trump’s sketchiest flunkies, including Mike Flynn) to transfer sensitive nuclear reactor technology to Saudi Arabia. The Oversight Committee conducted an investigation, the results of which, with the hindsight of Mohammed bin Salman’s $2 billion investment in a paper-thin Jared Kushner finance scheme and the Foreign Agent charges against Tom Barrack, look all the more suspect.

In 2017, President Trump’s son-in-law, Jared Kushner, orchestrated a visit to Saudi Arabia as the President’s first overseas trip. Mr. Kushner also met on his own with then-Deputy Crown Prince Mohammed bin Salman, who subsequently ousted his cousin, Mohammed bin Nayef, launched a crackdown against dozens of Saudi royal family members, and reportedly bragged that Mr. Kushner was “in his pocket.”

In October 2018, the brutal murder of Washington Post columnist Jamal Khashoggi was met with equivocation by President Trump and other top Administration officials. This month, the White House ignored a 120-day deadline for a report on Mr. Khashoggi’s killing requested on a bipartisan basis by the Senate Committee on Foreign Relations.

Within the United States, strong private commercial interests have been pressing aggressively for the transfer of highly sensitive nuclear technology to Saudi Arabia—a potential risk to U.S. national security absent adequate safeguards. These commercial entities stand to reap billions of dollars through contracts associated with constructing and operating nuclear facilities in Saudi Arabia—and apparently have been in close and repeated contact with President Trump and his Administration to the present day.

However, experts worry that transferring sensitive U.S. nuclear technology could allow Saudi Arabia to produce nuclear weapons that contribute to the proliferation of nuclear arms throughout an already unstable Middle East. Saudi Crown Prince Mohammed bin Salman conceded this point in 2018, proclaiming: “Without a doubt, if Iran developed a nuclear bomb, we will follow suit as soon as possible.”

When Congress passed the Atomic Energy Act, it imposed stringent controls on the export of U.S. technology to a foreign country that could be used to create nuclear weapons. Under Section 123 of the Act, the U.S. may not transfer nuclear technology to a foreign country without the approval of Congress, in order to ensure that the agreement reached with the foreign government meets nine specific nonproliferation requirements.

[snip]

[W]histleblowers provided new information about IP3 International, a private company that has assembled a consortium of U.S. companies to build nuclear plants in Saudi Arabia. According to media reports, IP3’s only project to date is the Saudi nuclear plan. A key proponent of this nuclear effort was General Michael Flynn, who described himself in filings as an “advisor” to a subsidiary of IP3, IronBridge Group Inc., from June 2016 to December 2016—at the same time he was serving as Donald Trump’s national security advisor during the presidential campaign and the presidential transition. According to the whistleblowers, General Flynn continued to advocate for the adoption of the IP3 plan not only during the transition, but even after he joined the White House as President Trump’s National Security Advisor.

[snip]

Another key proponent of this effort was Thomas Barrack, President Trump’s personal friend of several decades and the Chairman of his Inaugural Committee.

The nuclear energy scheme (which did not involve nuclear weapons, but implicated concerns that the Saudis would develop them) overlaps closely with the scope of the Foreign Agent charges against Barrack (and I don’t rule out that FBI’s focus on such document(s) stems, in part, from Barrack’s upcoming trial). One of the overt acts charged against Barrack, for example, is that he “forced” the Trump White House to elevate the treatment of MbS on a visit to the US in March 2017 beyond that accorded by his rank at the time.

To be sure: There’s not a hint of evidence that the government has reason to believe Trump tried to sell or otherwise share the documents he stole with foreign entities. If the government suspected Trump might do so with Restricted Documents covered by the Atomic Energy Act, it would implicate a different crime, 40 USC 2274, with which Jonathan Toebbe was charged last year for trying to deal such technology to Brazil. Trump has succeeded in obscuring the crimes listed on his warrant (though not all crimes need to be listed on the overt warrant), but if the Atomic Energy Act were implicated, that would be really hard to do (unless this leaked detail is an effort on Trump’s part to prepare for the mention of the Atomic Energy Act on the warrant, though I doubt that’s the case).

So for now, Trump’s past history of attempting to share nuclear technology with the Saudis for the profit of his closest advisors is just background noise: something that makes it all the more concerning he is suspected of stealing such documents. But if the FBI did not find nuclear documents they have reason to believe Trump stole, then that could change quickly.

Finally, there’s a political angle. The press has been absolutely remiss in calling out Republicans for their hypocrisy about classified information — or their irresponsibility in parroting Trump’s complaints about a serious breach investigation. Instead, the press treated the nation’s security as a he-said, she-said fight between political parties.

But the report that the FBI has reason to believe that Trump stole documents about nuclear weapons provides just the kind of horse race angle that seems to be the only thing that vast swaths of journalists can understand anymore. That’s because in 2016, Marco Rubio argued that Trump was “unfit for the Presidency” because we could not give the “nuclear codes of the United States to an erratic individual.”

Indeed, Val Demings, who is in a close fight against Rubio in November’s Senate elections, just made it an issue yesterday, before the nuclear angle became clear.

2016 Marco Rubio scoffed at the notion that someone like Trump should be given access to the nuclear codes. 2022 Marco Rubio — largely because he wants to win Trump’s favor in the election against Demings — doesn’t even want the FBI to investigate whether Trump stole the nuclear codes when he left office.

Perhaps with a horserace angle, the press might finally hold Republicans accountable for their irresponsibility of their efforts to protect Trump here.

How Adam Schiff Proves that Adam Schiff Is Lying that It Is “Unprecedented” for Congress to Be Ahead of DOJ

I had imagined I would write a post today introducing Andrew Weissmann — who like a lot of other TV lawyers has decided to weigh in on the January 6 investigation without first doing the least little bit of homework — to the multiple prongs of the DOJ investigation that he complains is not investigating multiple spokes at once.

Department of Justice January 6 investigations interview with Andrew Weissmann and Rep. Adam Schiff from R G on Vimeo.

But as I was prepping for that, I watched another of the Ari Melber pieces where he replicates this false claim.

Let me correct that. Melber actually doesn’t present Weissmann’s argument that the multiple pronged DOJ investigation should have multiple prongs, perhaps because since Weissmann first made it, it became clear he missed the Sidney Powell investigation entirely, the status of the investigations into Roger Stone and Rudy Giuliani, the influencers that DOJ has already prosecuted as part of the investigation into the crime scene, and that DOJ actually started the fake electors investigation months before it was previously known.

Rather, Melber presents Adam Schiff’s claim that it is “unprecedented” for a congressional committee to be “so far out ahead” of DOJ.

Melber: We haven’t seen this kind of — he called it a breakdown, you might put it differently, but whatever it is, between the Justice Department and the Committee, but it also reflects that you’ve gotten some witnesses first. Do you share Mr. Weissmann’s concern? Could the DOJ be doing more quickly?

Schiff: I very much share his concern and have been expressing a very similar concern really for months no. It is so unprecedented — and I’ve been a part of many Congressional investigations that have been contemporaneous with Justice Department investigations — but it is unprecedented for Congress to be so far out ahead of the Justice Department in a complex investigation because as he was saying, as Andrew was saying, they’ve got potent tools to get information. They can enforce their own subpoenas in a way we can’t.

Let me introduce Adam Schiff to the House Intelligence Committee investigation into the 2016 Russian attack, on which a guy named Adam Schiff was first Ranking Member, then Chair, and the Mueller investigation into the same, on which Andrew Weissmann was a senior prosecutor.

Donald Trump Jr.

Interviewed by HPSCI on December 6, 2017

Never interviewed by Mueller’s team

Roger Stone

Interviewed by HPSCI on September 26, 2017

Never interviewed by Mueller’s team

Jared Kushner

First interviewed by HPSCI on July 25, 2017

First interviewed by DOJ on November 1, 2017

Steve Bannon

First interviewed by HPSCI on January 16, 2018

First interviewed by Mueller on February 12, 2018

John Podesta

Interviewed by HPSCI in June and December, 2017

Interviewed by Mueller in May 2018

Jeff Sessions

Interviewed by HPSCI on November 30, 2017

Interviewed by Mueller on January 17, 2018

JD Gordon

Interviewed by HPSCI on July 26, 2017

First interviewed by Mueller on August 29, 2017

Michael Caputo

Interviewed by HPSCI on July 14, 2017

Interviewed by Mueller on May 2, 2018

Michael Cohen

Interviewed by HPSCI on October 24, 2017

First interviewed by Mueller on August 7, 2018

Now, Schiff, who claimed it was unprecedented for a congressional investigation to precede a DOJ one, might say that the HPSCI investigation into Russia doesn’t count as a clear precedent because it wasn’t all that rigorous because it was led by Devin Nunes (that’s partly right, but there were plenty of Democratic staffers doing real work on that investigation too). But even on the January 6 Committee, there are already multiple instances where the Committee has interviewed witnesses before DOJ has (or interviewed witnesses that DOJ never will, before charging them), but gotten less valuable testimony than if they had waited.

One example, Ali Alexander, is instructive. He at least claimed he was going to tell the January 6 Committee a story that had already been debunked by DOJ. But before DOJ interviewed Alexander, at least two people with related information had gotten cooperation recognition in plea agreements, and several direct associates — most notably Owen Shroyer — had had their phones fully exploited.

Weissmann would likely point to good reasons why Mueller took more time, too: because later interviews with people like Michael Caputo or Jared Kushner required a lot more work on content acquired with covert warrants first, or because with people like Michael Cohen there was an entire financial investigation that preceded the first interview, or because DOJ was just a lot more careful to lay the groundwork with subjects of the investigation.

But the same is true here. DOJ will likely never interview Rudy on this investigation. But Lisa Monaco took steps on her first day in office that ensured that at whatever time DOJ obtained probable cause against Rudy, they had the content already privilege-reviewed. And DOJ did a lot of investigation into Sidney Powell before they started subpoenaing witnesses.

Many of the other witnesses that HPSCI interviewed long (or even just shortly) before DOJ did on Russia lied to HPSCI.

As both these men know, and know well, it is simply false that Congress never gets ahead of DOJ. But there are good reasons for that, and one of those reasons is precisely the one that Weissmann claims should lead DOJ to go more quickly: that it has far more tools to use to ensure that interviews that happen will more robustly support prosecutions.

House January 6 Committee: Public Hearings – Day 1 [UPDATE-1]

[NB: Any updates will be published at the bottom of this post. /~Rayne]

This post and comment thread are dedicated to the House January 6 Committee hearings scheduled to begin Thursday June 9, 2022, at 8:00 p.m. ET.

Please take all comments unrelated to the hearings to a different thread.

The hearings will stream on:

House J6 Committee’s website: https://january6th.house.gov/news/watch-live

House J6 Committee’s YouTube page: https://www.youtube.com/watch?v=hZ0yNe3cFx4

C-SPAN’s House J6 hearing page: https://www.c-span.org/video/?520282-1/open-testimony-january-6-committee

C-SPAN’s YouTube page: https://www.youtube.com/c/C-SPAN/featured

Check PBS for your local affiliate’s stream: https://www.pbs.org/ (see upper right corner)

Twitter is carrying multiple live streams (NBC, PBS, Washington Post, Reuters, CSPAN, Bloomberg): https://twitter.com/i/events/1533876297926991877

MSNBC will carry coverage on their cable network with coverage beginning at 7:00 p.m. ET as well as on MSNBC’s Maddow Show podcast feed. Details at this link.

ABC, NBC, CBS will carry the hearings live on broadcast and CNN will carry on its cable network.

Fox News is not carrying this on their main network. Their weeknight programming including Tucker Carlson’s screed will continue as usual and will likely carry counterprogramming.

Twitter accounts live tweeting the hearing tonight:

Brandi Buchman-DailyKos: https://twitter.com/Brandi_Buchman/status/1535034512639512576

Scott MacFarlane-CBS: https://twitter.com/MacFarlaneNews/status/1535050143879266306

Chris Geidner-Grid News: https://twitter.com/chrisgeidner/status/1535052708922937345

JustSecurity’s team live tweeting: https://twitter.com/just_security/status/1534955708881457154

If you know of any other credible source tweeting the coverage, please share a link in comments.

Marcy will not be live tweeting as the hearing begins 2:00 a.m. IST/1:00 a.m. UTC/GMT. She’ll have a post Friday morning Eastern Time. Do make sure to read her hearing prep post, though.

An agenda for this evening’s hearing has not been published on the committee’s website.

~ ~ ~

Any updates will appear at the bottom of this post; please bear with any content burps as this page may be edited as the evening progresses.

Again, this post is dedicated to the House January 6 Committee  and topics addressed in testimony and evidence produced during the hearing.

All other discussion should be in threads under the appropriate post with open discussion under the most recent Trash Talk.

To new readers and commenters: welcome to emptywheel. New commenters, please use a unique name to differentiate yourself; use the same username each time you comment.

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~ ~ ~

UPDATE-1 — 7:30 P.M. ET 10-JUN-2022 —

According to Scott MacFarlane-CBS there will be a total of six House J6 Committee hearings this month.

House J6 Committee hearing schedule (as of eve 6/10/2022):

Monday June 13 — Hearing: On the January 6th Investigation
10:00 AM | 390 Canon HOB
Host: Select Committee to Investigate the January 6th Attack

Wednesday June 15 — Hearing: On the January 6th Investigation
10:00 AM | 390 Canon HOB
Host: Select Committee to Investigate the January 6th Attack

Thursday June 16 — Hearing: On the January 6th Investigation
1:00 PM | 390 Canon HOB
Host: Select Committee to Investigate the January 6th Attack

Tuesday June 21 — Hearing: On the January 6th Investigation
**10:00 AM ET | Date-Time-Place Subject to Confirmation**
Host: Select Committee to Investigate the January 6th Attack

Thursday June 23 — Hearing: On the January 6th Investigation
**8:00 PM ET | Date-Time-Place Subject to Confirmation**
Host: Select Committee to Investigate the January 6th Attack

Date, time, and location of the next three hearings have been published on the U.S. House of Representatives’ calendar. The last two have not yet been confirmed and published.

Tom Barrack Appears to Claim Trump Knew Barrack Was Catering US Foreign Policy to the Emirates

In this post, I described the import of the false statement and obstruction charges against Tom Barrack. While Barrack may have been honest about his ties to the Emirates in a 2017 interview with Robert Mueller’s prosecutors, he is accused of lying about those ties in 2019, which — if DOJ has the goods on those later lies — will make it clear he was affirmatively hiding his role at that point.

[A]ssuming the FBI didn’t charge a billionaire with false statements without having him dead to rights on the charges, by June 2019, the FBI foreclosed several of the defenses that Barrack might offer going forward: that he was doing all this as a legal commercial transaction (which is exempt from the foreign agent charges) or that he wasn’t really working for UAE, he just thought the alliance really served US interests and indulged the Emiratis by referring to MbZ as “boss.” By denying very basic things that the FBI appears to have records for, then, Barrack made it a lot harder to argue — in 2021 — that’s there’s an innocent explanation for all this.

[snip]

This case will sink or swim on the strength of the false statements charges, because if Barrack’s alleged lies in June 2019 were clearcut, when he presumably believed he would be protected by Barr and Trump, then it makes several likely defenses a lot harder to pull off now.

The government made the same argument in a filing last month responding to Barrack’s motion to dismiss: If Barrack did not know his back channel with the Emirates was a problem, why did he (allegedly) lie about it?

Although not dispositive to Barrack’s vagueness challenge, if Barrack actually believed that he had done nothing wrong, it is unclear why he allegedly lied to FBI special agents during his voluntary June 20, 2019 interview as set forth in Counts Three through Seven of the Indictment.

It’s now clear that Barrack’s alleged false statements are even more important than that.

That’s because Barrack is now arguing that, because the Trump Administration approved of how Barrack was peddling US policy to the Emirates, Barrack could not have been a secret foreign agent under 18 USC 951.

That revelation has slowly become clear over the course of a dispute over discovery (motion, response, reply) pertaining to Barrack’s demand, among other things, for, “all communications between Mr. Barrack and the Trump Campaign and Administration regarding the Middle East.”

In the government’s response, they note that 18 USC 951 requires notice to the Attorney General, not to members of a private political campaign.

The defendants argue that evidence of Barrack’s disclosure of his UAE connections to members of the Trump Campaign are exculpatory. But Section 951 requires notice to the Attorney General, not to private citizens affiliated with the Trump Campaign. See 18 U.S.C. § 951(a). This makes sense, since the Attorney General is the official charged with enforcing the law and the senior official in charge of the FBI, the agency responsible for investigating and responding to unlawful foreign government activity inside the United States. By contrast, members of the Trump Campaign have no such responsibilities with respect to the internal national security of the United States and had no authority to sanction or bless the defendants’ illegal conduct. They are not government officials, and even if they were, they are not the Attorney General or a representative thereof.

According to the indictment, Paul Manafort not only knew that Barrack was working for the Emirates, but was cooperating with Barrack’s efforts.

In Barrack’s reply, after a heavily redacted passage, he complains about DOJ’s claim — made in the press conference announcing his arrest — that he had deceived Trump about what he was doing.

The government’s position is particularly astonishing in light of its public claim at the time of Mr. Barrack’s arrest that he had deceived Mr. Trump and the administration. Specifically, the then-Acting Assistant Attorney General for the National Security Division announced that the “conduct alleged in the indictment is nothing short of a betrayal of those officials in the United States, including the former President,” and that this indictment was needed to deter such “undisclosed foreign influence.” [citation removed] In that same press release, the Assistant Director in Charge of the FBI NY Field Office asserted that the indictment was about “secret attempts to influence our highest officials.” Id. When Mr. Barrack raised concerns with the government about these false statements in the press release, the government responded that these statements were a fair representation of the conduct alleged in the indictment. [citation removed] Thus, in one breath the government claims that Mr. Barrack deceived Mr. Trump and the administration and that such evidence is part of its case, but in the next breath contends that contrary evidence is neither relevant nor exculpatory and apparently withheld such discovery on that basis.

Barrack’s lawyers include the 2021 comments about whether Trump knew of all this as exhibits, but more recent correspondence about it remains sealed.

In other words, Barrack seems to be arguing, he didn’t betray Trump; Trump wanted him to cater American foreign policy to rich Gulf Arab nations.

Barrack spends four pages of his reply making the same kinds of complaints about the documentation of his 2019 FBI interview that Mike Flynn made in 2020, even complaining that the fact that the AUSAs prosecuting the case were in the room makes them conflicted on the case. It’s clear why he did so: because if Barrack did lie to an FBI run by Trump’s appointed FBI Director and ultimately overseen by Bill Barr in 2019, then he was continuing to hide his influence-peddling from the one person that mattered under the law, Bill Barr (though given what we know of Barr’s interference in Ukraine investigations, I would be unsurprised if Barr knew that Trump knew of Barrack’s ties to the Emirates, which would explain why he swapped out US Attorneys in EDNY at the time).

Remember: Barrack is alleged to have been pursuing policies pushed by Mohammed bin Zayed. But among the things he is accused of doing for the Emirates was to “force” the White House to elevate Saudi Crown Prince Mohammed bin Salman (then just the Deputy Crown Prince) during a visit to DC in March 2017. At the time the FBI interviewed Barrack in June 2019, Trump was under significant pressure for his possible complicity in the Jamal Khashoggi assassination.

And now — at a time when EDNY is talking about indicting Barrack’s not-yet indicted co-conspirators — we learn that MbS invested $2 billion dollars in Jared Kushner’s brand new firm even in spite of all the reasons not to.

Six months after leaving the White House, Jared Kushner secured a $2 billion investment from a fund led by the Saudi crown prince, a close ally during the Trump administration, despite objections from the fund’s advisers about the merits of the deal.

A panel that screens investments for the main Saudi sovereign wealth fund cited concerns about the proposed deal with Mr. Kushner’s newly formed private equity firm, Affinity Partners, previously undisclosed documents show.

Those objections included: “the inexperience of the Affinity Fund management”;the possibility that the kingdom would be responsible for “the bulk of the investment and risk”; due diligence on the fledgling firm’s operations that found them “unsatisfactory in all aspects”; a proposed asset management fee that “seems excessive”; and “public relations risks” from Mr. Kushner’s prior role as a senior adviser to his father-in-law, former President Donald J. Trump, according to minutes of the panel’s meeting last June 30.

But days later the full board of the $620 billion Public Investment Fund — led by Crown Prince Mohammed bin Salman, Saudi Arabia’s de facto ruler and a beneficiary of Mr. Kushner’s support when he worked as a White House adviser — overruled the panel.

Barrack’s apparent claim that Trump knew exactly what he was doing does nothing to change his legal posture before Trump became President, and DOJ indicted this before the statute of limitation expired on that conduct.

But the apparent claim that Trump knew about this — and the possibility that Barr did too, at least after the fact — would change the kind of crime that happened in 2017, after Trump became President. And, possibly, the culprit.

“Problem:” SDNY Charges Elena Branson as Unregistered Agent of Russia

Back in 2013, the Senior Vice President of the Russian American Chamber of Commerce (Sergei Millian’s organization) sent Elena Branson language from FARA with the subject line, “Problem.”

a. On or about January 30, 2013, BRANSON received an email from an individual using an email address ending in “mail.ru.” Based on my review of publicly available information, I have learned that this individual was a Senior Vice President of the Russian American Chamber of Commerce in the USA. This email had the subject line “Problem.” and the text of the email included, among other things, a portion of the FARA Unit’s website with background on FARA. In response, BRANSON wrote, in part, “I am interested in the number of the law, its text in English[.]” The sender then responded with “Lena, read …” and copied into the email background on FARA and portions of the statute.

Branson, who the prior year had founded the Russian Center of New York and subsequently became the Chair of Russian Community Council of the USA (KSORS), apparently didn’t think it was an urgent problem. It wasn’t until 2019 that she appears to have considered — but then, after asking Russian Ambassador Anatoly Antonov for guidance, decided not to — register under FARA.

b. On or about December 10, 2019, BRANSON received an email indicating that BRANSON had requested a new FARA “eFile” account.21 That day, a member of the FARA Unit emailed the Branson RCNY Account with an eFile account number and temporary password to log in to the FARA eFile system. Later that day, a user logged in to the FARA eFile system using that account number and temporary password, and entered the registration name “Russian Center, Inc.” and the RCNY Office as the address. The user did not submit a FARA registration for the account. A user then accessed the account again on or about December 11, 2019, but, again, the individual did not submit a FARA registration. The internet protocol addresses connected to both log-ins of this account resolve to the same zip code as the RCNY Office.

c. On or about December 26, 2019, BRANSON emailed the Embassy Email Account. In the cover email, BRANSON wrote, in part, “[A] letter is in the attachment. Respectfully, Elena.” In the attached letter, BRANSON wrote, in part, that she had been asked questions from “compatriots” about “whether it is necessary to register their public organizations as a foreign agent.” BRANSON further wrote “[t]hese questions began to arise after the arrest of Maria Butina in Washington in July 2018 on charges of working as a foreign agent in the United States without registration.” BRANSON concluded the letter by asking the Embassy to advise such Russian compatriot groups, writing, “I am asking you to provide legal advice regarding registration as a foreign agent . . . for public organizations of Russian compatriots in the United States.” The letter was addressed to Ambassador-1.

Branson’s failure to register lies at the core of a 6-count complaint unveiled by SDNY yesterday, charging Branson in several conspiracies, under both FARA and 18 USC 951, as well as for visa fraud.

Branson won’t be arrested off this complaint. She’s long gone.

A month after the FBI interviewed her and searched her office in September 2020, she fled the country. Not long after Biden was inaugurated, Branson sold her NYC apartment.

During this investigation, the FBI has, among other things, executed judicially authorized search warrants for (i) approximately eight of BRANSON’s electronic accounts (the “Branson Accounts”3); (ii) the RCNY office (which was also BRANSON’s residence) in Manhattan, New York (the “RCNY Office”); and (iii) BRANSON’s person, for all electronics and other materials in her possession at the time of the search. From the RCNY Office and the search of BRANSON’s person, the FBI recovered a total of approximately 34 electronic devices (the “Branson Electronics”), including approximately 11 cellular phones. The FBI also conducted a voluntary interview of BRANSON on the same day as the search of the RCNY Office (the “Branson Interview”) and has interviewed other individuals living in the United States in connection with the investigation.

The searches of the RCNY Office (the “RCNY Search”) and BRANSON’s person, as well as the Branson Interview, took place on or about September 29, 2020. BRANSON flew to Moscow, Russia, on or about October 20, 2020, and BRANSON does not appear to have returned to the United States since that date. In or about March 2021, BRANSON sold the RCNY Office, which had been her residence in New York City. During in or about October and November 2020, BRANSON’s then boyfriend 9 (“Boyfriend-1”) wired approximately $197,000 to two of BRANSON’s bank accounts at Russian banks.4 On or about October 15, 2021, RT, formerly known as Russia Today, a Russian state-controlled television station, published an interview conducted by Maria Butina5 of BRANSON. During this interview, BRANSON told Butina, in substance and in part, that BRANSON left the United States for Moscow approximately one month after the Branson Interview because BRANSON was “scared” and thought the “probability was very high” that she would be arrested if she stayed in the United States.6

3 The Branson Accounts include four email accounts and four social media accounts, including BRANSON’s Facebook account (the “Branson Facebook Account”).

So Branson will only be arrested if she decides to flee Putin’s increasingly totalitarian regime.

Unlike the prosecution of Jack Hanick, then, whose indictment may have been timed to tolling statutes of limitation last November and in which the US is working on getting him extradited from the UK, this complaint seems to be more about messaging in the wake of the Russian invasion of Ukraine.

As a messaging vehicle, it shows how Russia has committed to the “consolidation” of Russian diaspora, cultivating a Russian identity that can be used to mobilize political pressure (and, in Ukraine and the Baltics, justifications for imperialism).

In or about November 2015, Lavrov published an article titled “Russian World: Steering Towards Consolidation.” In this article, Lavrov wrote, in part, “The provision of support to the Russian world is an unconditional foreign-policy priority for Russia, as formalized by Russia’s Foreign Policy Concept. . . . Over the years, we have managed to elevate our work in this area to an entirely new level and to create effective cooperation mechanisms in close contact with representatives of foreign communities.”

Some of Branson’s activities are mundane cultural exchanges paid for by Russian government entities. Some sprinkle the names of likely spies or handlers in the description.

Perhaps most interesting, the complaint provides an interesting addition to this passage from the Mueller Report.

Later [on November 9, 2016, the day after Trump’s victory, Kirill] Dmitriev flew to New York, where Peskov was separately traveling to attend the chess tournament. 1020 Dmitriev invited Nader to the opening of the tournament and noted that, if there was “a chance to see anyone key from Trump camp,” he “would love to start building for the future.” 1021 Dmitriev also asked Nader to invite Kushner to the event so that he (Dmitriev) could meet him. 1022 Nader did not pass along Dmitriev’s invitation to anyone connected with the incoming Administration. 1023 Although one World Chess Federation official recalled hearing from an attendee that President-Elect Trump had stopped by the tournament, the investigation did not establish that Trump or any Campaign or Transition Team official attended the event. 1024 And the President’s written answers denied that he had. 1025

The complaint describes how Branson had been instructed to arrange a meeting with Trump or Ivanka in March 2016, around the same time Russia was hacking John Podesta, though the complaint is remarkably coy about whether Branson ever sent her draft letter to Trump Organization (and if so, whether it was among the documents showing direct ties to Russia that Trump Organization withheld from Mueller’s inquiry and SSCI).

In or about March 2016, BRANSON exchanged a series of emails with Minister-2. During these messages, in part, Minister-2 asked BRANSON to organize a meeting with CC-2 and the now-former President of the United States, who was then a candidate for the Republican presidential nomination, or his daughter, in New York. On or about March 23, 2016, BRANSON received an email from Minister-2 with the subject line “additional meetings of [CC-2].” The email stated, in part, that the author was requesting BRANSON’s assistance in organizing meetings for CC-2 with “the management” of certain specified U.S. companies. On or about March 16, 2016, BRANSON sent an individual, who was then-chair of KSORS, a draft letter addressed to the now-former President, inviting him to the Russia Forum New York in April 2016 and suggesting that if his “busy schedule will not permit your attending our forum, perhaps you can suggest one of your children . . . who have followed in your footsteps.” The draft invitation included BRANSON’s name and contact information in the signature block. There is no indication that the now-former President or his children attended the referenced meeting.

Branson’s complaint describes what would be a second attempt to get Trump to attend the Chess Championship, in addition to Kirill’s attempt to extend an invite through George Nader. Branson sent her invite to an unnamed Trump Advisor.

BRANSON also attempted to arrange meetings for Russian officials at the 2016 World Chess Championship, which was held in Manhattan, New York:

1. On or about November 9, 2016, CC-6 emailed BRANSON with the subject line “Chess business.” CC-6 wrote to BRANSON, in part, “as discussed we will try to get Kirsan online after tomorrow’s official press-conference is over around noon at Fulton Street Market Building, South Street Seaport NY[.]”20 On or about that same day, BRANSON responded to CC-6 and wrote “[CC-6], good evening! I can bring the ipad for a Skype session. I will contact the media. Need them at noon?”

2. On or about November 10, 2016, BRANSON emailed an advisor to the now-former President of the United States (“Advisor-1”), expressing congratulations for their victory in the presidential election and attaching an invitation to the World Chess Championship addressed to the then-President- elect. The invitation was signed by “President of the International Chess Federation (FIDE-FIDE).” There is no indication that the now-former President attended the referenced event.

3. On or about November 11, 2016, BRANSON was photographed at the World Chess Championship with CC-6 and a second individual who I recognize, based on my review of publicly available photographs, to be the current Press Secretary for Russian President Vladimir Putin.

20 Based on my training and experience, including my review of publicly available material, I have learned that Kirsan Ilyumzhinov is the former President of the Republic of Kalmykia in the Russian Federation and the former president of FIDE, the International Chess Federation. I have further learned that, on or about November 25, 2015, the United States Department of the Treasury designated Ilyumzhinov as a Specially Designated National for his involvement with the Government of Syria and related entities.

Here, the complaint reiterates the Mueller conclusion: there’s no evidence Trump attended the event. But it does raise questions about the completeness of the response Trump offered to Mueller’s questions, pertaining to whether Trump was asked to attend.

Were you asked to attend the World Chess Championship gala on November 10, 2016? If yes, who asked you to attend, when were you asked, and what were you told about about [sic] why your presence was requested? 1. Did you attend any part of the event? If yes, describe any interactions you had with any Russians or representatives of the Russian government at the event.

Were you asked to attend the World Chess Championship gala on November 10, 2016? If yes, who asked you to attend, when were you asked, and what were you told about about [sic] why your presence was requested? 1. Did you attend any part of the event? If yes, describe any interactions you had with any Russians or representatives of the Russian government at the event.

Response to Question V, Part (a)

I do not remember having been asked to attend the World Chess Championship gala, and I did not attend the event. During the course of preparing to respond to these questions, I have become aware of documents indicating that in March of 2016, the president of the World Chess Federation invited the Trump Organization to host, at Trump Tower, the 2016 World Chess Championship Match to be held in New York in November 2016. I have also become aware that in November 2016, there were press inquiries to my staff regarding whether I had plans to attend the tournament, which was not being held at Trump Tower. I understand these documents have already been provided to you.

Trump describes a March 2016 discussion about hosting the event and November press inquiries about whether he would attend it. But there’s no mention of a November 2016 invitation asking him to attend.

Yet the Branson complaint suggests there would have been an invitation to Trump, signed by the sanctioned Kirsan Ilyumzhinov, sent through an unnamed advisor. His response reflects only earlier (in March) communications about the chess championship, not anything sent on November 10 bearing Ilyumzhinov’s signature.

This is a signaling complaint, one that likely won’t lead to anyone’s arrest. But it should raise more questions about Donald Trump’s candor with Mueller back in 2018.

And we should expect more of the same. On Twitter, Brandon Van Grack, who would have been involved in Branson’s investigation when he ran the National Security Division’s FARA office and likely knows what else might be in the pipeline, suggested there’s probably more of the same to come.

Tom Barrack Suggests He Can’t Be Prosecuted Because It Didn’t Happen Early Enough To Be Obstructed

Tom Barrack has filed a previously scheduled motion to dismiss his prosecution.

It consists of challenges to the Foreign Agent — 18 USC 951 — charge against him that rely heavily on the Bijan Kian case, which is in a different circuit and very much in flux. Though as always disputes about this Foreign Agent application are of interest.

It includes a typical challenge based on FBI’s practice of writing up reports of interviews rather than recording them. This challenge might or might not include more valid complaints about the 302 than similar challenges that have failed in the past (we’ll find out at the end of February when the government files its response).

Moreover, the sole record the government chose to create are the handwritten notes of a single case agent that reflect little more than the agent’s subjective commingling of the questions and answers into shorthand assertions, wholly devoid of the actual questions asked and answers given.

[snip]

Similarly, Count 6 alleges that Mr. Barrack “falsely stated [that he) had no role in facilitating communications between the President-Elect and officials from the United Arab Emirates[.]” Indictment ,r 105. The indictment alleges that this statement was false because Mr. Barrack supposedly “arrang[ed) one or more telephone calls between the President-Elect and Emirati Official 1 and Emirati Official 2” and because he “provid[ ed) contact information” for Emirati officials to the President-Elect’s assistant. As with Count 4, however, the record does not reflect whether the ambiguous term “facilitating communications” was used by the government in its question or instead whether those were words used by Mr. Barrack in his response.

But the bulk of this motion to dismiss consists of an insinuation that this prosecution should have been successfully obstructed by Donald Trump.

Barrack doesn’t say that outright. Instead, he raises the fact that he was charged two years after his interview. He says that over and over. He even asks for discovery as to why it happened that way.

After that June 2019 interview, Mr. Barrack heard nothing more from the prosecutors. They did not contact him or his counsel to express any concerns about the information he provided or to discuss potential charges or a pre-indictment presentation. Meanwhile, Mr. Barrack continued working as Executive Chairman of his company and in that role made dozens of trips overseas, including to the Middle East. He also continued to act as an informal advisor to the Administration on foreign and economic policy with no indication by the government that he was supposedly an undisclosed foreign agent or national security threat.

On July 20, 2021, after two years of silence, more than a dozen armed FBI agents burst into a Los Angeles office where Mr. Barrack was attending a business meeting and took him into custody. He was incarcerated in a California general population prison for four days until he was released under extremely harsh and virtually unprecedented bail conditions.

Third, the government waited two years long after memories of the precise language used during the interview would have faded to charge Mr. Barrack with multiple felony counts premised on allegedly false statements

[snip]

The government appears to have taken few investigative steps following Mr. Barrack’s June 2019 interview, waiting for two years before bringing charges. This delay is even more inexplicable given that the government’s actions since Mr. Barrack’s interview do not reflect any apparent concern that he was a foreign agent or national security threat, even though he traveled overseas more than a dozen times and continued to have access to senior White House personnel and the President. The Due Process Clause protects defendants against such prejudicial, unjustified pre-indictment delay. See United States v. Lovasco, 431 U.S. 783, 789 (1977); United States v. Marion, 404 U.S. 307, 324 (1971); see also Fed. R. Crim. Proc. 48(b) (allowing dismissal of indictment for pre-indictment delay). To establish such a due process violation, a defendant must show both that he was prejudiced by the delay and that the government acted with an impermissible mens rea in delaying the indictment. Because both are present here, the indictment must be dismissed in full. Or, at the very least, the Court should allow discovery into the reasons for the government’s extended delay.

[snip]

Finally, the government’s unjustified two-year delay in charging Mr. Barrack also warrants dismissal of the indictment. The government had all the evidence on which the indictment was based in 2019. The indictment pleads the conspiracy terminated in April 2018, and the alleged false statements occurred in June 2019. Why the government waited more than two years, and until after a change in administration, is a question only it can answer, but it should answer it especially given the paramount First Amendment interests at stake. Had the government brought this case when its investigation was complete in 2019, recollections regarding Mr. Barrack’s June 2019 interview would have been fresh and the harm from the government’s failure to make a contemporaneous record might have been mitigated. The lengthy delay has also prejudiced Mr. Barrack’s ability to identify, preserve, and secure documentary evidence and obtain evidence from witnesses whose memories have faded. The government has provided no explanation for its delay, and the specter that the government intentionally delayed bringing this case for political reasons or tactical advantage hangs heavily over this case. Because Mr. Barrack has been deprived of a fair opportunity to defend himself, the indictment should be dismissed. [my emphasis]

Barrack’s suggestion — probably correct — that any charges under Donald Trump wouldn’t have survived Billy Barr’s meddling and Donald Trump’s pardons are all the more curious given his suggestion that the White House and intelligence agencies deleted records involving his actions.

To that point, the government has not produced, or perhaps not even searched for, internal memoranda or communications in government offices such as the White House or the intelligence agencies that were in the possession of key individuals in the campaign and Administration with whom Mr. Barrack was in communication about the matters alleged in the indictment. Moreover, it is doubtful that texts and emails once in the possession of such witnesses can now be reasonably obtained, especially with the change of administration.

While an intriguing insinuation, this seems to say more about the way that Jared Kushner and Trump were protected by this investigation than anything else; Barrack does not, here, make a claim that this should have been turned over in discovery. (I suspect the charges were scoped the way they were to implicate Trump and Kushner as little as possible, which I noted here.)

Unless the 302 problems are unique — and nothing here suggests they are — the way in which DOJ backstopped this with the false statements charges will make this indictment less susceptible to challenge on the face of the law.

But before it gets there, this challenge will be a test of DOJ’s ability to wait out an obstructionist President and Attorney General to prosecute an alleged criminal.

The “Big Boss” Directing Tom Barrack’s Actions

There’s something almost entirely missing from the Tom Barrack indictment charging him with acting as an Emirate Agent. The money.

The indictment invokes forfeiture law, suggesting that someone profited from all of this or there’s some other loot the government wants to seize (but it lists none specifically; a memo requesting detention until a bail hearing requests that Barrack be made to identify all his financial assets to get bail).

But other than that, the sole mention of money describes that, on July 14, 2016 (months after this relationship started), Barrack pitched a “guidance board” that would tie UAE’s investments with strategic goals.

The presentation proposed the creation of a guidance board “through which all [UAE] investments are intertwined with the strategic vision of the country’s foreign and domestic policies as well as economic goals,” with the guidance board mandating “that all investments in operating companies use the resources at their disposal to influence [UAE’s interests] abroad … and partner with leading [UAE] friendly-influential figures to do so.” The presentation further proposed that the defendant THOMAS JOSEPH BARRACK work directly with Emirati Official 2 to execute the proposed strategy.

Then, months later on December 14, after Trump’s victory, this proposal assumed continued influence over Trump’s actions.

While the primary purpose of the platform [will be] to achieve outsized financial returns, it will also accomplish a secondary mandate to garner political credibility for its contributions to the policies of [Trump] … We will do so by sourcing investing, financing, operationally improving, and harvesting assets in those industries which will benefit most from a [Trump] Presidency.”

This suggests that Barrack and Colony Capital would be expected to direct UAE’s Sovereign Funds in such a way as to implement their policy goals. A 2018 NYT story described how Barrack’s investment firm raised $7 billion in the time after Trump got the nomination, almost a quarter of it from Saudi and Emirate sources — but none of that appears in the indictment.

Mr. Barrack’s company, known as Colony NorthStar since a merger last year, has raised more than $7 billion in investments since Mr. Trump won the nomination, and 24 percent of that money has come from the Persian Gulf — all from either the U.A.E. or Saudi Arabia, according to an executive familiar with the figures.

These financial relationships will face a great deal of scrutiny as this case goes forward because a Foreign Agent cannot be someone “engaged in a legal commercial transaction.” One defense Barrack might try to make is that this was all about obtaining customers for his investment fund. But if no money changed hands, Barrack might suggest he sincerely believed in the import of fostering better ties between the Emirates and the US.

A Foreign Agent, not a lobbyist

Contrary to what you might have read, this is not a FARA case, which is generally treated as a regulation covering certain kinds of lobbying for foreign (including non-governmental, like the political party Paul Manafort hid his work for) entities. Barrack was charged under 18 USC 951, which is about working for a foreign government directly. The statute is sometimes referred to as Espionage Lite, and in this case, the government might believe at least some of the people involved — perhaps Al Malik, who fled the country days after the FBI interviewed him in April 2018 — are spies. By charging 951, though, the government only has to show that the team was ultimately working on orders from government officials without registering, not that someone was secretly reporting to another country’s spying agencies.

And this is pretty clearly about a relationship directly with UAE. In addition to Barrack and his employee Matthew Grimes, the indictment describes a chain of command in which several senior Emirati officials convey requests through Rashid Sultan Rashid Al Malik Alshahhi (referred to as Alshahhi in the indictment and as Al Malik here and elsewhere) to Barrack. On the Emirati side, Emirati Official 1 (EO1), is described as someone who, “held a high-ranking position in its armed forces,” but who, given events described in the indictment, must be Abu Dhabi’s Crown Prince Mohamed bin Zayed. Emirati Official 2 (EO2) is described as a “high-ranking official with responsibilities related to national security,” but appears to be National Security Advisor Tahnoun Bin Zayed. Emirati Official 3 (EO3) is described as a member of UAE’s National Security Council. Their orders often get delivered to Al Malik through Emirati Official 4 (EO4), who is described as a government official who reports to EO 2 and EO3. There’s also a diplomat, Emirati Official 5, who asked Barrack to provide insight into the top national security appointments Trump was planning. Basically, this amounts to MbZ tasking EO4 to instruct Al Malik to provide instructions in turn to Barrack. This structure is important, because it demonstrates that Barrack was being directed directly by the UAE government and, starting in October 2016, directly by MbZ himself.

A secret agent hiding the direct orders he was following

Aside from this reporting structure, two things will help the government make the case that Barrack was working as an Agent of UAE. Officials from the Emirates explicitly said that they wanted to use Barrack to represent their policy interests in the US rather than relying on their ambassador. For example, EO2 explains why he prefers to work through Barrack than UAE’s ambassador because he, “knows ambassadors can’t do much and they are limited even if they’re active.” After Barrack started doing TV appearances where he pitched the UAE, Al Malik told him that EO1 had said, “you are the new trusted friend!” And after Grimes submitted a Barrack op-ed for advance review by Emirate officials, Al Malik responded that, “Big boss loved it.” Then after the op-ed came out (having had a reference to dictatorships that the Emiratis found objectionable removed), Barrack asked through Al Malik “how Boss liked the article?” The indictment further describes how, in December, the Emirates directed Barrack and Grimes to put together a set of plans — “100 days/6 months/year/4 years” — of what they wanted to accomplish along with the Saudis; on that plan Barrack, Al Malik affirmed in Arabic, would “be with the Arabs.” Then, when Al Malik wrote Grimes and suggested the US should list the Muslim Brotherhood as a Foreign Terrorist Organization, Grimes responded, “At your direction.” This is the language of clear direction, channeled right from the top of the UAE government.

And while not required (remember that Maria Butina didn’t really hide what she was up to or even her ties to Aleksander Torshin), the indictment describes several ways that those involved tried to keep this relationship secret. As Barrack shared a Trump speech in advance, he described that it was “Totally Confidential.” In September, just as Barrack would start dealing directly with MbZ and two days before he’d call out MbZ in a Bloomberg interview, the go-betweens instructed Barrack to download the encrypted messaging app that MbZ uses. Barrack seems to have gotten a text directly from MbZ on September 29. And then in October, Grimes arranged to get both Barrack and himself dedicated phones to use to communicate with MbZ and others via the encrypted app.

While not included in the indictment, the detention memo also describes that Barrack downplayed his ties with Al Malik in a filing to the State Department.

Indeed, in June 2017, the defendant completed and submitted paperwork to the U.S. Department of State in connection with his efforts to secure an official position in the Administration. In his submissions, the defendant materially misrepresented his connection to Al Malik, falsely claiming to have had only infrequent contact with Al Malik and further claiming that he did not know Al Malik’s citizenship or whether Al Malik was affiliated with a foreign government, despite describing Al Malik in private communications as the UAE’s “secret weapon.” Further, in his submissions to the U.S. Department of State, the defendant was required to report any occasions when he had been asked to provide advice, serve as a consultant, even informally, or otherwise work on behalf of a foreign government. The defendant failed to disclose his extensive activities on behalf of the UAE.

It’s partly all this secrecy that will help the government prove their case.

But the way the government uses additional charges to show that Barrack tried to hide all this will help. In addition to 951 and Conspiracy to violate 951 charges (the latter of which was likely included because it’s easier to prove and to provide defendants, particularly Grimes, with a charge that has less onerous penalties to plead to), the government charged Barrack with obstruction of justice and four counts of false statements for attempting to lie about this. In a June 20, 2019 interview with the FBI, the indictment alleges that Barrack lied about whether:

  1. Al Malik asked Barrack to do things for UAE
  2. Barrack downloaded an encrypted app to use to communicate with MbZ and other Emirati officials
  3. Barrack set up a meeting between MbZ and Trump and, generally, whether he had a role in facilitating communications between them
  4. He had a role in prepping MbZ for a September 2017 meeting with Trump

Curiously, the detention memo mentions two more lies that aren’t included in the indictment:

(1) writing a draft of a speech to be delivered by the Candidate in May 2016; (2) reviewing a PowerPoint presentation to be delivered to senior UAE officials on how to increase the UAE’s influence in the United States with his assistance;

In any case, this structure makes it easy to hold Barrack accountable at least via his lies to the FBI, and that he allegedly lied is powerful evidence that the full scope of the relationship was meant to be secret.

The key Trump world figures and the black box White House

Over coming days, we’ll learn who all the Trump officials named in the indictment are, but a key, unstated part of it all is Barrack’s success at placing Paul Manafort on Trump’s campaign. The indictment dates Barrack’s role as an “informal” advisor to Trump’s campaign to “approximately April 2016,” one month after Barrack had a key role in installing Manafort on Trump’s campaign.  It describes how Al Malik set up a meeting on April 24, in advance of which Barrack boasted that he had a 30-year relationship with Trump and had “staffed the Campaign.” After a meeting in the Emirates, EO 4 confirmed to Alshahhi that Barrack would be “the only channel” to Trump for UAE. Days later, Barrack sent Alshahhi a draft Trump energy speech and asked for feedback. Ultimately, Barrack succeeded in getting a promise to “work with our Gulf allies” into a May 26 Trump speech.

It’s not really clear with whom Barrack was working on the campaign. The indictment describes that “a senior member of the Campaign” emailed Barrack with a revision of the Energy speech, in response to which, Barrack instructed the “senior member” that they needed “one paragraph to balance foreign-policy concerns for energy dependent allies in the gulf.” ¶22 It’s likely that this is either Manafort himself (who had not yet fully pushed out Corey Lewandowski but was well on his way) or Rick Gates, the latter of whom played a similar role when Roger Stone wanted to script Trump’s foreign policy statements at that stage of the campaign.

Barrack’s role as Chair of Trump’s Inauguration Committee is minimal to the crimes in this indictment (meaning double jeopardy would not prevent him from being charged in that, too). But one paragraph does describe how Barrack agreed when Al Malik offered to “take care of ME side” of the the Inauguration. And the indictment describes that when Al Malik attended the Inauguration, he did so as Barrack’s personal guest.

Similarly, there’s no mention of December and January meetings involving Jared Kushner and others, even though the December 12, 2016 meeting happened right after Barrack was in UAE on December 2.

One thing the indictment may have tried to do is insulate the indictment from any Executive Privilege concerns. Its narrative stops at the White House door. The indictment describes Al Malik asking Grimes to get the Administration to list the Muslim Brotherhood as an FTO and describes a public report shortly thereafter describing that it was under consideration, but it doesn’t describe who or even whether Barrack talked to to make that happen. It describes that Al Malik asked Grimes to set up a phone call between MbZ and Trump, describes Grimes observing that it got set up “right after I spoke to [Barrack] about it,” and quotes Grimes saying, “We can take credit for phone call.” But the overt acts of the indictment don’t actually say whether they deserved credit, or whether someone else had picked up the influence racket. The government must know he did, because they charge him for lying about setting up this meeting but it, by itself, is not an overt act. The day after MbZ met with Trump, Barrack wrote Al Malik describing that he had “lots of info on [the White House] meeting!” without describing Barrack’s source for that information. In an exception that proves the rule, the indictment describes how, as part of an effort to kill plans for a meeting at Camp David to mediate tensions in the Gulf, Barrack left a message with Trump’s Executive Assistant saying he had “something very important to share [using an ellipsis rather than naming Trump or anyone else] about the Middle East,” followed by Al Malik, two days later, offering “very special thanks and appreciations from the big guy.”

In other words, even though two of the charged lies pertain to Barrack’s role in shaping US policy in events that directly involved Trump, and even though comments suggest Barrack successfully interceded, the White House is treated as a black box; no discussions within the White House or between Barrack and Trump appear in the indictment, but they are implied in many places.

Where this came from where it will go

This investigation started well before 2018, because that’s when Al Malik fled the country just days after an FBI interview. That means it could have been a referral from the Mueller investigation (though given that Barrack lives in Los Angeles, it’s not clear why Mueller would have referred it to EDNY rather than CDCA). DOJ conducted other investigations into UAE’s foreign influence peddling there (as well as some investigations into Jared), so it’s possible this arose out of those investigations.

One thing that’s curiously missing from this indictment, though (along with references to the December 2016 or January 2017 meetings) is any reference to George Nader, who also was operating on instructions direct from MbZ and who provided extensive grand jury testimony as part of that investigation. When Nader tried to obtain a copy of his grand jury transcript as part of his defense in other influence peddling crimes in November 2019, it was revealed there were still multiple ongoing investigations referenced in it. There’s good reason to believe that Nader was not entirely forthcoming with Mueller though, in which case DOJ may not want to invoke him at all.

It’s equally interesting where this might go, which is part of the reason I find the different treatment of Candidate Trump from President Trump in the indictment really notable. This is an investigation that Billy Barr didn’t kill and that survived any pardon attempt, which suggests that Barr and Trump didn’t entirely kill all investigations implicating Trump (though the Rudy Giuliani investigation already showed that). But there are a number of things — most notably, the Inauguration — that might be implicated here but really isn’t part of the indictment.

Merrick Garland’s DOJ is not shying away from crimes that directly implicate Donald Trump. But the way they treated the White House as a black box in this indictment suggests significant deference to things Trump did while President.

Update: This Intercept story from June 2019 strongly suggests that this Barrack investigation arose out of the Mueller investigation.

Al-Malik’s name later surfaced in connection with a federal probe into potential illegal donations to Trump’s inaugural fund and a pro-Trump Super PAC by Middle Eastern donors. Al-Malik was interviewed by members of special counsel Robert Mueller’s team and was “cooperating” with prosecutors, his lawyer told The Intercept last year. The New York Times recently reported that investigators are looking into “whether Mr. al-Malik was part of an illegal influence scheme,” although no details of that potential scheme have been made public.

In fact, the U.S. intelligence community has concluded that al-Malik served as a paid intelligence source for the UAE throughout 2017, The Intercept has learned.

[snip]

After he was interviewed as part of the Mueller investigation, al-Malik left Los Angeles, where he’d been based for several years, and went back to the UAE.

And the story describes Al Malik’s handler as the Director of UAE’s National Intelligence Service, Ali al-Shamsi.

Among the Emirati government officials overseeing al-Malik was Ali al-Shamsi, director of the Emirati National Intelligence Service, according to The Intercept’s sources. A source who knows al-Shamsi described him as “more than just a spy. He’s also a discreet messenger” for Mohammed bin Zayed, known as MBZ, and his brother Tahnoun bin Zayed, the UAE’s national security adviser.

This description is perfectly consistent with the description of EO 4 from the indictment.

Rudy Giuliani’s Support Role in the Mueller Report

As I showed in the Rat-Fucker Rashomon series, it can be tremendously useful to compare how different inquiries into Russian interference in 2016 tell that story. That’s true not just of Roger Stone; it’s also true of Rudy Giuliani.

By the time SSCI finished its Russia Report, the shape of the 2020 Russian influence campaign was evident, and it shows up, in redacted form, in the final report. As part of that discussion, the SSCI Report deals with Rudy at least once in almost entirely redacted passages about the ongoing influence campaign involving Russian assets in Ukraine. That is, it clearly suggests the trajectory led to the influence campaigns that were still active in 2020.

Perhaps because SSCI had the advantage of seeing where Rudy would end up, it also included a few more details about Rudy from earlier on of interest. For example, before Paul Manafort discussed how to win Pennsylvania and how to carve up Ukraine on August 2, 2016, he met with Trump and Rudy Giuliani in Trump Tower.

Among the details SSCI shows of the Trump campaign exploiting documents leaked to WikiLeaks is a citation to an email, dated October 11, 2016, showing Rudy was in that loop.

When Rick Gates was asked what kind of contact Paul Manafort retained with Trump after he was ousted from the campaign, Gates revealed that Manafort told Gates that Rudy Giuliani was helping him place people in Administration positions.

And PsyGroup’s Joel Zamel claimed that Rudy introduced him to Jared Kushner some months after the inauguration; Kushner and Zamel had a meeting at the White House to discuss “human rights issues in the Middle East, Iran, and ‘counter-extremism’.”

Aside from the detail that Manafort was using Rudy as a side channel to influence the White House, those aren’t necessarily momentous details.

Still, those details show that Rudy was a participant in these events during 2016. And yet, Rudy doesn’t show up as such in discussions about 2016 in the Mueller Report. Rather, Rudy shows up exclusively as Trump’s lawyer, floating the pardons in an attempt to get witnesses to lie to cover up what really happened in 2016.

Rudy — who was not yet formally Trump’s personal counsel — and his current defense attorney, Robert Costello, didn’t succeed in getting Michael Cohen to shield Trump.

On or about April 17, 2018, Cohen began speaking with an attorney, Robert Costello, who had a close relationship with Rudolph Giuliani, one of the President’s personal lawyers. 1022 Costello told Cohen that he had a “back channel of communication” to Giuliani, and that Giuliani had said the “channel” was “crucial” and “must be maintained.” 1023 On April 20, 2018, the New York Times published an article about the President’s relationship with and treatment of Cohen. 1024 The President responded with a series of tweets predicting that Cohen would not ” flip” :

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

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

But Rudy, acting as part of Joint Defense Agreement in the role of Trump’s personal counsel, did succeed in getting Paul Manafort to lie about what happened on August 2 and efforts to carve up Ukraine in the aftermath.

Immediately following the revocation of Manafort’s bail, the President’s personal lawyer, Rudolph Giuliani, gave a series of interviews in which he raised the possibility of a pardon for Manafort. Giuliani told the New York Daily News that “[w]hen the whole thing is over, things might get cleaned up with some presidential pardons.” 856 Giuliani also said in an interview that, although the President should not pardon anyone while the Special Counsel’s investigation was ongoing, “when the investigation is concluded, he’s kind of on his own, right?”857 In a CNN interview two days later, Giuliani said, ” I guess I should clarify this once and for all. . . . The president has issued no pardons in this investigation. The president is not going to issue pardons in this investigation …. When it’s over, hey, he’s the president of the United States. He retains his pardon power. Nobody is taking that away from him.”858 Giuliani rejected the suggestion that his and the President’s comments could signal to defendants that they should not cooperate in a criminal prosecution because a pardon might follow, saying the comments were “certainly not intended that way.”859 Giuliani said the comments only acknowledged that an individual involved in the investigation would not be “excluded from [ a pardon], if in fact the president and his advisors .. . come to the conclusion that you have been treated unfairly.”860 Giuliani observed that pardons were not unusual in political investigations but said, “That doesn’t mean they’re going to happen here. Doesn’t mean that anybody should rely on it. … Big signal is, nobody has been pardoned yet.” 561

[snip]

The President said that flipping was “not fair” and “almost ought to be outlawed.”880 ln response to a question about whether he was considering a pardon for Manafort, the President said, “T have great respect for what he’s done, in terms of what he’s gone through …. He worked for many, many people many, many years, and T would say what he did, some of the charges they threw against him, every consultant, every lobbyist in Washington probably does.”881 Giuliani told journalists that the President “really thinks Manafort has been horribly treated” and that he and the President had discussed the political fallout if the President pardoned Manafort.882 The next day, Giuliani told the Washington Post that the President had asked his lawyers for advice on the possibility of a pardon for Manafort and other aides, and had been counseled against considering a pardon until the investigation concluded.883

On September 14, 2018, Manafort pleaded guilty to charges in the District of Columbia and signed a plea agreement that required him to cooperate with investigators.884 Giuliani was reported to have publicly said that Manafort remained in a joint defense agreement with the President following Manafort’s guilty plea and agreement to cooperate, and that Manafort’s attorneys regularly briefed the President’s lawyers on the topics discussed and the information Manafort had provided in interviews with the Special Counsel’s Office.885 On November 26, 2018, the Special Counsel’s Office disclosed in a public court filing that Manafort had breached his plea agreement by lying about multiple subjects.886 The next day, Giuliani said that the President had been “upset for weeks” about what he considered to be “the un-American, horrible treatment of Manafort.”887

Also, for whatever reason — probably because he had word diarrhea — Rudy provided the best evidence that Trump knowingly lied on his written answers to Mueller when he claimed not to remember the Trump Tower Moscow dangles during the election.

Also in January 2019, Giuliani gave press interviews that appeared to confirm Cohen’s account that the Trump Organization pursued the Trump Tower Moscow project well past January 2016. Giuliani stated that ” it’s our understanding that [discussions about the Trump Moscow project] went on throughout 2016. Weren’t a lot of them, but there were conversations. Can’t be sure of the exact date. But the president can remember having conversations with him about it. The president also remembers-yeah, probably up-could be up to as far as October, November.” 1069

Rudy was treated so persistently as a lawyer in the Mueller Report, but not a participant, that he didn’t even make the Glossary of Referenced Persons.

That’s true even though Rudy did show up in interviews as a topic of interest.

For example, when Mike Flynn was asked on April 25, 2018, just days after Rudy officially became Trump’s defense attorney, who else besides he and Bannon were hunting for Hillary’s missing 33,000 emails, the former Director of Defense Intelligence named Rudy, because he was “a big cyber guy.”

When question[ed] who else might have information about on the email messages, FLYNN mentioned Rudy GIULIANI. GIULIANI was “a big cyber guy” who have a speech on the topic in Tel Aviv. GIULIANI had a ton of contacts and traveled quite a bit with TRUMP (FLYNN surmised approximately half of the time). GIULIANI had a certainty that the emails were out there and available. GIULIANI would have said this directly to TRUMP. The natural response from TRUMP was “why the hell could they not find them?”

After two more questions (about Barbara Ledeen’s efforts), Mueller’s team returned to Rudy. This time, former Director of Defense Intelligence explained that if Rudy said something, you could be sure it was factual.

GIULIANI had contacts at the FBI, though he was pretty “close hold” on who he spoke with there. If GIULIANI said something, you could take it to the bank as factual, FLYNN believed that GIULIANI acted in a manner which indicated had specific knowledge related to the emails. FLYNN reviewed GIULIANI’s speech for Tel Aviv, made some comments, and gave it back to GIULIANI. GIULIANI did not name drop. GIULIANI popped in throughout the campaign to help with certain events. FLYNN did not know if GIULIANI knew Russia hacked the DNC.

Two more questions later, in response to a question about whether Jeff Sessions attempted to find the emails, Flynn brought up Rudy again.

FLYNN was asked whether SESSIONS or CHRISTIE made any efforts to find an answer based on their law enforcement backgrounds. SESSIONS did not make any effort at all. GIULIANI had deeper discussion on the issue with the campaign. CHRISTIE was somewhere between the two in regards to effort. CHRISTIE always seemed to “puff” about what he could do. FLYNN observed that GIULIANI and CHRISTIE had extensive connections and contact in New York. They constantly brought information back to the campaign. They did not do a lot of name dropping but there was a certainty to their information. FLYNN did not remember either of them saying they had contact with WikiLeaks.

Several more questions later, Flynn raised Rudy again in a discussion of whether anyone reached out to other countries for the emails.

Flynn opined that if Russia had them, then China, Iran, and North Korea also had them. Those countries had the cyber capabilities to get them and CLINTON was the Secretary of State. FLYNN also thought hactivist groups operating in the [sic] Ukraine could have them. It was also likely Israel had them. FLYNN did not recall specific discussions on reaching out to these countries to find out what they had. GIULIANI could have reached out to Israel but FLYNN did not know.

In an interview six days later, Mueller’s team asked Flynn more about the role of the guy who had just become Trump’s defense attorney.

FLYNN did not recall Rudy GIULIANI saying specifically what he was doing to learn more about the missing email messages. GIULIANI seemed insightful to FLYNN on knowing when news would break. GIULIANI was working on cyber policy for TRUMP. FLYNN was not sure if GIULIANI got his information from the news or from actual contacts. FLYNN attended a couple of meetings at Trump Tower where GIULIANI was present. GIULIANIs conversations were always that Wikileaks would release the missing email messages, not Russia. FLYNN thought Russia would wait to see who won the election. If CLINTON won, Russia could then use them for leverage over her. Wikileaks claimed to have the desire to put information out in the public to damage CLINTON.

FLYNN did not participate in any conversations with GIULIANI that indicated GIULIANI “cast his net” with his contacts. GIULIANI was one of a number of people around TRUMP’s inner circle. GIULIANI agreed on who was behind the hack but was not really certain. GIULIANI was a close hold guy but might share what he was hearing. FLYNN recently saw a clip that during the campaign, GIULIANI said during an interview that there were more leaks to come. FLYNN recalled that was the kind of thing GIULIANI would say with certainty related to cyber. FLYNN listened to GIULIANI who came across as a judge and made remarks as though they were facts.

I have not done a systematic review of all this (and earlier releases are too redacted to be of much use on such issues). But it’s not just Flynn who had something interesting to say about Rudy. When discussing the Transition (and egregiously downplaying his own role in foreign policy), for example, Steve Bannon described the tension during the Transition because both Jeff Sessions and Rudy wanted to be Secretary of State. “Bannon thought Giuliani would have issues in his confirmation if he was nominated as Secretary of State, however, because of some of his companies and foreign contacts,” Bannon explained, acknowledging even then that Rudy was a foreign influence peddling risk.

Perhaps it’s because, when Rudy became Trump’s defense attorney, it made any inquiry into his role in 2016 awkward. But even though Rudy was a participant in all this, and even though Mike Flynn thought he might be the most likely person to “cast his net” for ways to pursue stolen emails, it’s not clear how aggressively the Mueller team considered what role Rudy had.