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By July 18, 2017, Mueller Had Probable Cause Michael Cohen Was an Unregistered Foreign Agent

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SDNY has released the warrants behind his April 9 raid, which are here. They actually include a series of warrants, showing how first Mueller got warrants, then handed parts of the investigation over to SDNY, which then obtained its own warrants tied to the crimes they were investigating. These two affidavits (one, two) are the ones showing that hand-off — basically SDNY asking, on February 28, 2018, for access to email accounts and storage devices that Mueller had already accessed. The second one describes Mueller’s first warrant on Cohen to be dated July 18, 2017.

The same affidavit describes the crimes listed in the earlier warrants. Among those crimes — unsurprisingly — was conspiracy to defraud the US. More surprising, however, are 18 USC §§ 951 (acting as an unregistered foreign agent) and 611 (FARA).

The latter may be tied to Cohen’s work with a Kazakhstan bank (BTA Bank) and Korean airspace company (Korea Aerospace Industries) — which were basically his efforts to monetize his ties to Trump after the election. These were the deals that Republicans made such a big deal about when Cohen testified to the Oversight Committee.

In addition, Cohen was working for Columbus Nova, which was ultimately controlled by Victor Vekselberg. That would be of immediate concern for the question of Russian influence.

The 951 charge, however, is more interesting. It could relate to the same thing (basically arguing that because he was working for instrumentalities of foreign countries, he was their agent — basically a “soft” spy). Or it could relate to his efforts to negotiate a Trump Tower deal for Trump. Note that the November 13 warrant basically extended the first warrant back to June 1, 2015, which would we know would cover the Trump Tower deal (and precede any tie to BTA or KAI).

951 is a charge I always suspected might be used with Paul Manafort (it still might), or even Jared Kushner. But it appears that Mueller’s worries about Trump’s closest associates acting as spies wasn’t limited to Manafort and Flynn, but extended, too, to his personal lawyer. And Mueller already had evidence of that fact by July 18, 2017.

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

Art of the Get-Screwed-in-Your-Russian-Quid-Pro-Quo Deal

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Donald J. Trump, self-proclaimed Master of the Deal, just got his ass handed to him in a high stakes nuclear negotiation by Kim Jong-Un, at a time when Trump had the full power of the United States and hundreds of experts available to help him.

And yet Russian conspiracy denialists believe that any conspiracy between said deal-maker and Vladimir Putin must show evidence that Trump came away with a big win over anything but the 2016 election. They believe this, even though Trump made any such deal at a time when he was desperate to avoid a humiliating loss, relying on negotiators like his feckless son Don Jr, his attention-craving personal lawyer Michael Cohen, and his financially exposed campaign manager Paul Manafort.

That’s what I learned last night when I walked Aaron Maté through the process of first claiming the Trump Tower deal went nowhere because Cohen and Felix Sater disagreed in December 2015, then admitting that Cohen and Sater were still at it in May and June 2016. By the end, Maté was dismissing Rudy Giuliani’s admission that the deal went through the election (which is itself a limited hangout designed to hide that a Trump Tower deal was pursued in two different forms after the election, as well as abundant evidence that other financial payoffs were dangled if not made) by pointing to Dmitry Peskov’s stories, which have changed right along with Michael Cohen’s evolving story.

Because there’s no shiny tower in Moscow with Trump’s name on it, Maté appears to believe, it is proof that when Don Jr took a meeting in June 2016 at which he (according to the sworn testimony of four people who attended) committed to revisit Magnitsky sanctions if his dad got elected, the possibility of a $300 million payoff didn’t factor in to Junior’s willingness to sign away American policy considerations on behalf of his father.

That’s not how criminal conspiracy law works.

If you sign up for a deal and take steps to make good on it — as Don Jr did on June 9, 2016 and Paul Manafort appears to have done on August 2, 2016 and Mike Flynn appears to have done, on Trump’s behalf, on December 29, 2016 — then it doesn’t matter if the partner to that deal fucks you over later in the process. And, after all, the Russians did continue to supply Trump with a steady supply of dirt on Hillary Clinton all through the election. They got Trump elected, or at least did what they could to help, even if that payoff wasn’t the one Trump was most interested in.

Do you think Oleg Deripaska, a key player in both the deal-making and likely in the cover-up of it, gives a shit if Paul Manafort — who had screwed Deripaska over years earlier — had his life ruined as part of the process of compromising a President and getting sanctions relief? My suspicion is we’ll learn that Deripaska actually magnified Manafort’s hurt, once he had gotten him to compromise himself and the campaign.

Do you think Putin really cares whether Trump — to say nothing of the United States — benefits from the stupid choices Trump made during the election? Putin — a far better “deal” maker than Trump — got a win-win either way: Either Trump succeeded in compromising America’s rule of law in an effort to squelch any investigation into what happened, robbing the United States of the claim to idealism that so irks the master kleptocrat, Putin, or Trump would spend his Administration desperately trying to find a way out, all the while Putin connives Trump into dismantling the alliances that keep Russia in check.

And, too, Putin’s election year operation exacerbated the polarization between Democrats and Republicans such that most Republicans and a goodly number of Democrats have been unable to step back and say, holy shit, this country got attacked and we need to come together to do something about it. Trump’s win got Republicans to fear Trump’s base so much that they care more about those fevered hordes than doing what is right for this country. And Democrats rightly want to punish Trump for cheating, but haven’t thought about what a least-damaging off-ramp for that cheater might look like.

Putin doesn’t care if Trump benefits from all this — though he is happy to keep toying with Trump like a cat plays before he eviscerates his mouse. He cares about whether he and his cronies win. And there are multiple ways for him to get a win out of this, whether or not Trump manages to eke out any kind of real payoff past the election.

And let’s be honest, Putin isn’t the only one playing this game. Certainly, Mohammed bin Salman feels the same way, even if his record of ruthless dealmaking is shorter and sloppier than Putin’s. The truth is that Donald Trump and Jared Kushner are easy marks for a whole range of skilled operators willing to stroke their egos and dangle loot, and over and over again they’ve let themselves be bested in foreign policy negotiations, to the detriment of the interests of the United States. That they are so bad at deal making in no way disproves their culpability.

There is no Trump Tower in Moscow. But there never had to be. All that was needed was the promise of a ridiculously lucrative narcissism-stroking deal for the Trump family to agree to shit that would hurt this country. And all the evidence suggests that they did, and continue to do so.

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

The Metadata of the HJC Requests

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While the rest of us were looking at the content of the letters the House Judiciary Committee was sending out to witnesses yesterday, @zedster was looking at the metadata. The requests have dates and times reflecting three different production days: towards end of the work day on March 1 (Friday), a slew starting just after 3PM on March 3 (Sunday), with some individualized documents between then and Sunday evening, with a ton of work being done until 1:30 AM March 4 (Monday morning), and four more trickling in after that.

I think the production dates likely reflect a number of different factors.

First, the letters are boilerplate, which may explain why most of those were done first. Three things might explain a delay on any of those letters: either a late decision to include them in the request, delayed approval by SDNY or Mueller for the request, or some difficulty finding the proper addressee for the letter (usually, but not always, the person’s counsel of record). Not all of these addresses are correct: as one example, Erik Prince reportedly has gotten a new lawyer since Victoria Toensing first represented him, but has refused to tell reporters who represents him now; his letter is addressed to Toensing.

One other possible explanation for late dates on the letters is that the decision to call them came out of Michael Cohen’s testimony last week (and some of those witnesses would have had to have been approved by SDNY as well). As an example, the last document in this set is the one to Viktor Vekelsberg, which clearly relates to Michael Cohen (though interest in him may have come out of Cohen’s HPSCI testimony).

The other two late letters are Cambridge Analytica and Donald Trump Revocable Trust. Both appear to be revisions — a third revision for the former and a second for the latter.

That said, the letters completed after March 1 are interesting: Aside from some institutional letters (like FBI and GSA), they appear to be likely subjects of ongoing investigative interest, whether because of the investigation into Trump’s inauguration, Roger Stone’s prosecution, Maria Butina’s cooperation, ongoing sensitivities relating to Paul Manafort, or the National Enquirer.

Some of these topics happen to be the last topics listed on the Schedule As (I got this from Jared Kushner’s Schedule A which is one of if not the most extensive), including WikiLeaks, Manafort’s sharing of polling data (with the Ukrainian oligarchs, but no Oleg Deripaska), Michael Cohen’s Russian-related graft, and Transition graft, including with the Gulf States. There’s no separate category of documents tied to the NRA.

The Schedule As were based off boilerplate and tailored very loosely based on the recipient; this may have been an area where prosecutors weighed in. These later approvals include a slew of Cambridge Analytica people (remember, Sam Patten, who had ties to the organization, was not included in this request at all). Alexander Nix’s Schedule A is a revision. So is Trump Organization lawyer Alan Garten’s. Some of the people central to any obstruction inquiry — Don McGahn, Jeff Sessions, former McGahn Chief of Staff Annie Donaldson, and Jay Sekulow — were among the last Schedule As printed out.

All of this is just reading tea leaves.

But it does seem to reflect some ongoing sensitivities (the Gulf States, Cambridge Analytica, and obstruction) that got approved last, with some areas (Oleg Deripaska) being significantly excluded.

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

Yesterday Noel Francisco Raised the Stakes on the Mystery Appellant

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Back when President Trump fired Jeff Sessions, there was a CNN report describing how two competing groups of people discussed what to do in response. It described that Solicitor General Noel Francisco was in the Sessions huddle, a huddle focused, in part, on how to protect the Mueller investigation.

Eventually, there were two huddles in separate offices. Among those in Sessions’ office was Deputy Attorney General Rod Rosenstein, his deputy Ed O’Callaghan, Solicitor General Noel Francisco and Steven Engel, who heads the Office of Legal Counsel.

[snip]

The fact that Whitaker would become acting attorney general, passing over Rosenstein suddenly raised concerns about the impact on the most high-profile investigation in the Justice Department, the Russia probe led by Mueller.

The Mueller probe has been at the center of Trump’s ire directed at Sessions and the Justice Department. Whitaker has made comments criticizing Mueller’s investigation and Rosenstein’s oversight of it, and has questioned the allegations of Russian interference.

Rosenstein and O’Callaghan, the highest-ranked officials handling day-to-day oversight of Mueller’s investigation, urged Sessions to delay the effective date of his resignation.

Francisco’s presence in the Sessions/Rosenstein huddle was significant for a number of reasons: If Rosenstein had been fired while Big Dick Toilet Salesman was Acting Attorney General, he would be the next superior officer, confirmed by the Senate, in the chain of command reviewing Mueller’s activities. As Michael Dreeben testified in the days after the firing, Francisco would have (and has had) to approve any appeals taken by Mueller’s team. In addition, it was significant that someone who is pretty fucking conservative was huddling with those who were trying to protect the investigation.

That’s why I’m interested in several details from the Mueller response to the Mystery Appellant challenge to a Muller subpoena submitted to SCOTUS yesterday.

First, as I expected, the government strongly rebuts Mystery Appellant’s claim that they are a foreign government (which was the spin in their own brief). Rather they are a commercial enterprise that a foreign government owns.

As the petition acknowledges (Pet. 1 n.1), petitioner is not itself a foreign government, but is a separate commercial enterprise that a foreign government owns.

That makes a ton of difference to the analysis, because the government has a much greater leeway in regulating businesses in this country than it does foreign governments.

Indeed, in one of the key parts of the brief, the government lays out the import of that: because if foreign owned companies were immune from subpoena, then on top of whatever problems it would create for regulating the foreign-owned corporation, it would also mean American citizens could deliberately use those foreign-owned corporations to shield their own criminal behavior.

Petitioner’s interpretation would, as the court of appeals recognized, lead to a result that Congress could not have intended—i.e., that “purely commercial enterprise[s] operating within the United States,” if majority- owned by a foreign government, could “flagrantly violate criminal laws” and ignore criminal process, no matter how domestic the conduct or egregious the violation. Supp. App. 10a. Banks, airlines, software companies, and similar commercial businesses could wittingly or unwittingly provide a haven for criminal activity and would be shielded against providing evidence even of domestic criminal conduct by U.S. citizens. See id. at 10a-11a. Although petitioner declares that result to be “precisely what Congress intended,” Pet. 25, it cannot plausibly be maintained that Congress and the Executive Branch—which drafted the FSIA—would have adopted such a rule “without so much as a whisper” to that effect in the Act’s extensive legislative history, Samantar, 560 U.S. at 319.8

In an unbelievably pregnant footnote to that passage, the government then notes that Mystery Appellant’s suggestion that the President could retaliate if foreign-owned corporations engaged in crime via something like sanctions ignores what tools are available if foreign-owned corporations don’t themselves engage in crime, but instead serve as a shield for the criminal activity of US citizens.

8 Petitioner suggests (Pet. 26) that Congress would not have been troubled by barring federal criminal jurisdiction over foreign state-owned enterprises because the President could use tools such as economic sanctions to address foreign instrumentalities “that commit crimes in the United States.” That overlooks not only the legal and practical limits on sanctions, but also the threshold need to acquire evidence through grand jury subpoenas in order to determine whether a crime has been committed—including by U.S. citizens.

Consider: There is significant evidence to believe that a foreign country — Russia — bribed Trump to give them sanctions relief by floating a $300 million business deal. There is also evidence that, after a series of back channel meetings we know Zainab Ahmed was investigating, such funds may have come through a Middle Eastern proxy, like Qatar. There is not just evidence that Qatar did provide funds no one in their right mind would have provided to the President’s family, in the form of a bailout to Jared Kushner’s albatross investment in 666 Fifth Avenue. But they’re already laying the groundwork to claim they accidentally bailed him out, without realizing what they were doing.

So if Russia paid off a bribe to Trump via Qatar, and Qatar is trying to hide that fact by claiming Qatar Investment Authority is a foreign government that can only be regulated in this country by sanctions imposed by the guy who is trading sanctions to get rich … well, you can see why that’s a non-starter.

Finally — going back to why I’m so interested that Francisco was in the Sessions/Rosenstein huddle — just Francisco’s name is on the brief, even though Dreeben and Scott Meisler surely had a role in drafting it.

This was noted to me by Chimene Keitner, who is an actual expert in all this (and did her own very interesting thread on the response).

I’m sure I understand only a fraction of the significance that just Francisco signed the brief. But two things I do understand: One, Francisco is giving this argument a great deal of weight with SCOTUS, signaling the import of winning this argument.

Additionally, however, it means he stands as a shield for Mueller’s work on this appeal. If Trump wants to retaliate against DOJ for exposing the payoff to a quid pro quo, the President is going to have to fire another Senate-confirmed officer to do it, and fire one against whom he hasn’t laid a claim of partisanship. As I’ve already noted, by dint of this company being a foreign company, Mueller likely already knows what he’s getting via SIGINT. This subpoena is likely significantly an attempt to parallel construct evidence for use at trial. And the brief seems to make it clear that Mueller suspects some US citizen used this foreign-owned corporation to shield his own criminal behavior.

Which might explain why Francisco sees the need and import of shielding Mueller in this step.

Update: I’m seeing people misunderstanding the significance of my point (which, again, was suggested by someone more expert than me and most journalists on this). It’s not just that Francisco appears — that’s normal. It’s that only he appears, when we know that several other people had to have worked on the brief. That is, it’s the fact that Dreeben is not named.

As comparison, here’s the signature line for another brief that DOJ submitted (as amicus) today:

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

Questions to Ask before Reporting a BREAKING Mueller Report

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Update: CNN is matching NBC’s reporting on this. It also backs its report with real details from their superb stakeout.

On Monday, Tuesday and Wednesday last week, special counsel’s office employees carried boxes and pushed a cart full of files out of their office — an unusual move that could foreshadow a hand-off of legal work.

At the same time, the Mueller prosecutors’ workload appears to be dwindling. Four of Mueller’s 17 prosecutors have ended their tenures with the office, with most returning to other roles in the Justice Department.

And the grand jury that Mueller’s prosecutors used to return indictments of longtime Trump confidant Roger Stone, former Trump campaign chairman Paul Manafort, and several Russians hasn’t apparently convened since January 24 the day it approved the criminal charges against Stone.

I take from that I’m wrong about Mueller waiting for the two appeals (he knows what he’ll get from them) before he delivers his verdict. 

Pete Williams did the NBC circuit yesterday claiming that the Mueller report may be submitted to DOJ as soon as next week.

Pete Williams on MSNBC says the Mueller report may go to DOJ as early as next week

Because a lot of people have asked me about this and because Williams (and some other journalists) don’t appear to know enough about the Mueller investigation to ask the proper questions to assess that claim, I’d like to lay out a little logic and a few facts. It’s certainly possible that a Mueller report is coming next week — I’d argue that one is assuredly coming on Friday. But I doubt that means what Williams thinks it does.

The conclusory report is not coming next week

When most people think of “the Mueller report,” they mean this report, dictated by the Special Counsel regulations.

At the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel.

When Mueller is done, he has to submit a confidential report to the Attorney General (who is now Mueller’s friend William Barr) telling him what he did and didn’t do. Given everything Barr said as part of his confirmation process, we’re unlikely to see this report.

To assess whether this report is what Pete Williams thinks is coming, we should assess whether public evidence is consistent with Mueller being done.

The answer to that is clearly no. He’s still chasing testimony from Roger Stone flunkie Andrew Miller and from some foreign owned corporation (and has been chasing that, in the case of Miller, since last May).

Given that Miller already interviewed with the FBI for two hours and the foreign company is, by dint of being foreign, a no-brainer target for NSA, it’s quite likely Mueller knows what he’s getting from both of these entities. He just needs Miller on the record, so he can’t change his story to protect Stone, and needs to parallel construct the information from the foreign company. So it’s possible that as soon as Mueller gets both of these things, he’ll finish up quickly (meaning The Report could be soon). But there is no way that’ll happen by next week, in part because whatever the DC Appeals Court says in the Andrew Miller case, the loser will appeal that decision.

So it’s virtually certain that The Report is not coming by next week.

A report talking about “collusion” is coming this week

But maybe NBC’s sources are speaking metaphorically, and mean something else that isn’t the conclusory report but that will more closely resemble what everyone thinks of when they talk about The Report.

That’s likely to happen, but if it does, it’ll just be a partial report.

That’s because both Mueller and the defense have to submit a sentencing memo in Paul Manafort’s DC case Friday. As I noted back in November when Mueller’s prosecutors declared Manafort to have breached his plea agreement, this sentencing memo presents an opportunity for Mueller to “report” what they’ve found — at least with respect to all the criminal actions they know Manafort committed, including those he lied about while he was supposed to be cooperating — without anyone at DOJ or the White House suppressing the most damning bits. DOJ won’t be able to weigh in because a sentencing memo is not a major action requiring an urgent memo to the Attorney General. And the White House will get no advance warning because Big Dick Toilet Salesman Matt Whitaker is no longer in the reporting chain.

So, as noted, Mueller will have an opportunity to lay out:

  1. The details of Manafort’s sleazy influence peddling, including his modus operandi of projecting his own client’s corruption onto his opponents
  2. The fact that Manafort already pled guilty to conspiring with a suspected Russian intelligence asset
  3. The details about how Manafort — ostensibly working for “free” — got paid in 2016, in part via kickbacks from a Super PAC that violated campaign finance law, possibly in part by Tom Barrack who was using Manafort and Trump as a loss-leader to Middle Eastern graft, and in part by deferred payments or debt relief from Russian-backed oligarchs
  4. Manafort’s role and understanding of the June 9 meeting, which is a prelude of sorts to the August 2 one
  5. The dates and substance of Manafort’s ongoing communications with suspected Russian intelligence asset Konstantin Kilimnik, including the reasons why Manafort shared highly detailed polling data on August 2, 2016 that he knew would be passed on to his paymasters who just happened to be (in the case of Oleg Deripaska) a central player in the election year operation
  6. The ongoing efforts to win Russia relief from the American Ukrainian-related sanctions by pushing a “peace” plan that would effectively give Russia everything it wants
  7. Manafort’s ongoing discussions with Trump and the Administration, up to and including discussions laying out how if Manafort remains silent about items two through six, Trump will pardon him

Because those items are all within the substance of the crimes Manafort pled guilty to or lied about during his failed cooperation, they’re all squarely within the legitimate content of a sentencing memo. And we should expect the sentencing memo in DC to be at least as detailed as the EDVA one; I expect it, like the EDVA one and like Manafort’s plea deal, will be accompanied by exhibits such as the EDVA one showing that Manafort had bank accounts to the tune of $25,704,669.72 for which suspected Russian intelligence asset Konstantin Kilimnik was listed as a beneficial owner in 2012. Heck, we might even get to see the polling data Manafort shared, knowing it was going to Russia, which was an exhibit to Manafort’s breach determination.

The only thing limiting how much detail we’ll get about these things (as well as about how Manafort served as a secret agent of Russian backed Ukrainian oligarchs for years) is the ongoing sensitivities of the material, whether because it’s grand jury testimony, SIGINT collection, or a secret Mueller intends to spring on other defendants down the road.

It’s the latter point that will be most telling. As I noted, thus far, the silences about Manafort’s cooperation are — amazingly — even more provocative than the snippets we learned via the breach determination. We’ll likely get a read on Friday whether Mueller has ongoing equities that would lead him to want to keep these details secret. And the only thing that would lead Mueller to keep details of the conspiracy secret is if he plans to charge it in an overarching conspiracy indictment.

We may also get information, however, that will make it far more difficult for Trump to pardon Manafort.

So, yeah, there’s a report coming out this week. But it’s not The Report.

Any overarching conspiracy indictment will not be coming this week

It’s possible Mueller is close to charging an overarching conspiracy indictment, laying out how Trump and his spawn entered into a quid quo pro with various representatives of the Russian government, getting dirt on Hillary and either a Trump Tower or maybe a bailout for the very same building in which Manafort met with Konstantin Kilimnik on August 2, 2016. In exchange for all that, Trump agreed to — and took steps to deliver on, with some success in the case of election plot participant Deripaska — reversing the sanctions that were such a headache to Russia’s oligarchs.

Such an indictment, if Mueller ever charges it, will look like what Trump opponents would like The Report to look like. In addition to naming Don Jr and Jared Kushner and Trump Organization and a bunch of other sleazeballs, it would also describe the actions of Individual-1 in adequate detail to launch an impeachment proceeding.

But that indictment, if Mueller ever charges it, won’t be coming on Friday or Monday, as Williams predicts, because it likely requires whatever it is Mueller is trying to parallel construct from that foreign-owned company. And even if SCOTUS denies its appeal today, it’s unlikely that evidence will be in hand in time for a Friday indictment.

Mueller could ensure a report gets delivered to Jerry Nadler next week … but that’s unlikely

There’s one other possibility that would make Williams’ prediction true: if Mueller deliberately triggered the one other way to deliver a report, by asking to take an action William Barr is unlikely to approve, and if Mueller was willing to close up shop as a result, then a report would go to Congress and — if Barr thought it in the public interest — to the public.

Upon conclusion of the Special Counsels investigation, including, to the extent consistent with applicable law, a description and explanation of instances (if any) in which the Attorney General concluded that a proposed action by a Special Counsel was so inappropriate or unwarranted under established Departmental practices that it should not be pursued.

[snip]

The Attorney General may determine that public release of these reports would be in the public interest, to the extent that release would comply with applicable legal restrictions.

The only thing that Mueller might try to do that Barr would not approve (though who knows? maybe what Mueller has is so egregious Barr will surprise us?) is to indict the President.

I think this is unlikely, for all the reasons the first possibility laid out here is unlikely: that is, Mueller is still waiting on two details he has been chasing for quite some time, and I doubt he’d be willing to forgo that evidence just to trigger a report. It’s also unlikely because Mueller is a DOJ guy, and he’s unlikely to ask to do what he knows OLC says he should not do.

Still, it’s hypothetically possible that Mueller believes Trump is such an egregious criminal and national security risk he needs to try to accelerate the process of holding him accountable by stopping his investigation early (perhaps having the DC AUSAs named on the Miller and Mystery Appellant challenges take over those pursuits) and asking to indict the President.

But if that’s what Williams is reporting, he sure as hell better get more clarity about that fact, because, boy would it be news.

All of which is the lesson of this post: If you’re being told — or telling others — that Mueller’s report is imminent, then you’re either being told very very big news, or bullshit. Do yourself and us a favor of learning the base level regulations to understand which it is.

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

Compromise: Before Trump Won His First Primary, Putin Collected His First Receipt

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In this post, I noted that, while important, the Buzzfeed story on Trump’s role in Michael Cohen’s lies to Congress did not advance our understanding of  how the Trump Tower deal fits into the larger Trump conspiracy with Russia.

It doesn’t include a number of details that would be more important for understanding how the Trump Tower deal relates to other parts of Trump’s conspiracy with Russians: who (if not Trump himself or Don Jr) was the senior campaign official who knew of Cohen’s negotiations, precisely what Don Jr knew of the negotiations on June 3 when he took a meeting described to be “part of  Russia and its government’s support for Mr. Trump,” and whether the timing of Cohen’s plans for a trip to St. Petersburg — which started on June 9 and ended on June 14 — related somehow to the June 9 Trump Tower meeting and the June 14 revelation that Russians had hacked the DNC. It’d also be useful to know whether Cohen had any 2016 dealings with Ike Kaveladze, who knew of Cohen from the 2013 business dealings between Trump and the Agalarovs, and who had a curious reaction to a video of him in the wake of the June 9 meeting story breaking. Those are the details that would advance the story of how the Trump Tower deal relates to Russia’s efforts to hack the election.

But there is a piece of the Cohen statement of the offense the significance of which hasn’t gotten sufficient attention. That’s the detail that Dmitry Peskov’s personal assistant took detailed notes from a 20-minute January 20, 2016 phone call with Cohen, which led to Putin’s office contacting Felix Sater the next day.

On or about January 16, 2016, COHEN emailed [Peskov]’s office again, said he was trying to reach another high-level Russian official, and asked for someone who spoke English to contact him.

On or about January 20, 2016 , COHEN received an email from the personal assistant to [Peskov] (“Assistant 1 “), stating that she had been trying to reach COHEN and requesting that he call her using a Moscow-based phone number she provided.

Shortly after receiving the email, COHEN called Assistant 1 and spoke to her for approximately 20 minutes. On that call, COHEN described his position at the Company and outlined the proposed Moscow Project, including the Russian development company with which the Company had partnered. COHEN requested assistance in moving the project forward, both in securing land to build the proposed tower and financing the construction. Assistant 1 asked detailed questions and took notes, stating that she would follow up with others in Russia.

The day after COHEN’s call with Assistant 1, [Sater] contacted him, asking for a call. Individual 2 wrote to COHEN, “It’s about [the President of Russia] they called today.”

Cohen had lied about this, claiming that he had emailed Peskov’s public comment line just once, but gotten no response.

This language is important not just because it shows that Cohen lied.  It’s important because of what Cohen would have said to Peskov’s assistant. And it’s important because a written record of what Cohen said got handed on to Putin’s office, if not Putin himself.

BuzzFeed’s piece from May reveals that Cohen would have been in discussions with one of two banks in January 2016: VTB or GenBank.

Their surrogates in Moscow would be meeting with Putin and a “top deputy” just two days later, and they had financing: VTB Bank President and Chairman Andrey Kostin was on board to fund the project, Sater said in an email.

The bank was a dicey choice. VTB was under US sanctions at the time, with American citizens and companies forbidden to do business with it. Asked by congressional investigators if he knew the bank was blacklisted, Sater responded: “Of course. I wasn’t seeking funding, the local development partner would have. Trump Organization never gets financing from local partners.”

[snip]

New Year’s Eve 2015, he sent Cohen an image of a letter from GenBank — not VTB Bank, as they had earlier discussed — inviting the men to Moscow for a visit.

Just nine days earlier, the US Treasury Department had sanctioned GenBank for operating in Crimea after the disputed Russian takeover. GenBank became the first Russian financial institution to move into the Crimean peninsula.

Both were sanctioned. While Sater (who seems to have knowingly set this trap) dismissed the import of the sanctions, Cohen clearly knew — and left record that he knew in communications with Sater — that they were the intended funders.

A former GRU officer contact of Sater’s was key to obtaining funding from VTB.

This friend is a former member of the GRU, Russia’s military intelligence unit that the US intelligence community believes interfered during the 2016 election.

[snip]

[On December 19], Sater told Cohen that their invitations and visas were being arranged by VTB Bank, and that Kostin, the bank’s powerful president and chairman, would meet Cohen in Moscow. Key to getting VTB on board was the former GRU spy; Sater told congressional and special counsel investigators that the former spy said he had a source at VTB Bank who would support the deal.

Obtaining funding from GenBank would have relied on Putin and Peskov.

Sater told Cohen that GenBank operates “through Putin’s administration and nothing gets done there without approval from the top. The meetings in Moscow will be with ministers — in US, that’s cabinet-level and with Putin’s top administration people. This likely will include Dmitry Peskov, Putin’s press secretary. To discuss goals, meeting agenda and meeting time between Putin and Trump.”

The BuzzFeed article makes it clear that Sater’s GRU contact got back involved after Cohen’s conversation with Peskov’s assistant.

All of which is to say that when Cohen called Peskov’s assistant, he would have told her that he was speaking on behalf of Donald Trump, that Trump remained interested in a Trump Tower in Moscow (as he had been in 2013, the last time Putin had dangled a personal meeting with Trump), and that on Trump’s behalf Cohen was willing to discuss making a deal involving both a sanctioned bank (whichever one it was) and a former GRU officer.

So it’s not just that Trump was pursuing a real estate deal while running for President. He was pursuing a real estate deal involving a sanctioned  bank — possibly one sanctioned for its involvement in Crimea — and involving someone with ties to the intelligence agency that was preparing to hack Hillary Clinton’s campaign manager.

Cohen told Peskov’s assistant Trump was willing to negotiate that deal while running for President. The assistant wrote all that down (how Mueller knows this is an interesting question on its own right). And then she or Peskov passed on at least the content of the notes to get Putin’s office to contact Sater.

And all that happened before Trump performed unexpectedly well in the Iowa caucuses on February 1.

Last year, I argued that — pee tape or no — the kompromat Putin has on Trump consists of a series of receipts of Trump formally communicating his willingness to enter into a conspiracy with Russia, receipts that would be devastating if Putin released them.

Trump and the Russians were engaged in a call-and-response, a call-and-response that appears in the Papadopoulos plea and (as Lawfare notes) the GRU indictment, one that ultimately did deal dirt and got at least efforts to undermine US sanctions (to say nothing of the Syria effort that Trump was implementing less than 14 hours after polls closed, an effort that has been a key part of both Jared Kushner and Mike Flynn’s claims about the Russian interactions).

At each stage of this romance with Russia, Russia got a Trump flunkie (first, Papadopoulos) or Trump himself to publicly engage in the call-and-response. All of that led up to the point where, on July 16, 2018, after Rod Rosenstein loaded Trump up with a carefully crafted indictment showing Putin that Mueller knew certain things that Trump wouldn’t fully understand, Trump came out of a meeting with Putin looking like he had been thoroughly owned and stood before the entire world and spoke from Putin’s script in defiance of what the US intelligence community has said.

People are looking in the entirely wrong place for the kompromat that Putin has on Trump, and missing all the evidence of it right in front of their faces.

Vladimir Putin obtained receipts at each stage of this romance of Trump’s willing engagement in a conspiracy with Russians for help getting elected. Putin knows what each of those receipts mean.

What Cohen’s plea deal makes clear is that Putin pocketed the first of those receipts — a receipt showing Trump’s willingness to work with both sanctioned banks and the GRU — even before the first vote was cast. Even before GRU hacked its first Democratic target (though APT 29 had been spying on the Democrats since the previous summer).

Discussing a real estate deal is not, as Trump has repeated, illegal. If that’s all this were about, Trump and Cohen might not have lied about it.

But it’s not. Even before the GRU hacked John Podesta, even before Don Jr told his June 9 visitors that his dad would consider lifting sanctions if he got elected, Michael Cohen let a key Putin deputy know that Trump would be happy to discuss real estate deals that involved both partnering with the GRU and with sanctioned banks.

And Putin has been sitting on that receipt ever since.

Update: 22-paragraphs into a 1400-word story on the latest developments in the Trump Tower Moscow story yesterday, the NYT revealed the name of the officer, without explaining why the connection is important to the larger story of a GRU-led operation targeting the US election.

One of the people Mr. Sater contacted was Evgeny Shmykov, a former general in Russian military intelligence who once worked with anti-Taliban fighters in Afghanistan. Mr. Sater appears to have seen Mr. Shmykov as a conduit to get Russian government approval for the Trump project.

According to emails reviewed by The Times, Mr. Sater sent an urgent message to Mr. Cohen in late 2015 saying that Mr. Shmykov was on the phone and he needed passport information for Mr. Cohen and Mr. Trump so they could receive visas.

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

Trump’s “Official Acts” to Pay Off a Russian Bribe Should Make Impeachment a Legal Issue, Not Just a Political One

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The pearl clutchers screamed about Congresswoman Rashida Tlaib saying that we need to impeach the motherfucker, Donald Trump, demeaning the presidency.* While I’m glad that she has refused to back down from her beliefs in the face of the attacks, I think her more substantial argument about impeachment deserves further attention (which I hope to return to in a later post). More important, I think that the response to Tlaib’s comments has resulted in members of both parties retreating to a debate about Trump’s impeachment using the old formulation that it’s a political, not a legal question.

It is true that impeachment is political question insofar as, so long as there’s the political will, a president can be impeached for anything, even lying about a consensual blowjob immaterial to an investigation into financial scandal. But impeachment is also a legal question. Indeed, the Constitution mandates that the President be removed from office if he is impeached and convicted not just for the unenumerated grab bag of “high crimes and misdemeanors” — where Congress exercises the political will to decide whether a blowjob merits impeachment — but also the enumerated crimes of treason and bribery.

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

In spite of Emmet Sullivan’s question — as one of the only people who has read sealed documents laying out what Trump’s transition team did — about whether Mueller’s investigators considered charging Mike Flynn with treason, there’s no chance that Trump will be named in a treason charge.

But there is very good chance he will be named in a conspiracy involving a quid pro quo trading dirt and real estate deals for sanctions relief and other policy considerations.

The other day, I realized something ironic: in precisely the same period Trump was entering in an apparent quid pro quo with Russians, John Roberts was authoring a unanimous Supreme Court decision that clarified the limits of quid pro quo bribery.

And while the Supreme Court believed that Governor Bob McDonnell had not accepted bribes for setting up meetings in exchange for gifts, the language Roberts wrote in the weeks after Trump’s son told some Russians they would revisit Magnitsky sanctions if his father won does not so narrow the definition of bribery as to make Trump’s actions legally excusable.

Roberts described an official act this way:

In sum, an “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” The “question, matter, cause, suit, proceeding or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that “question, matter, cause, suit, proceeding or controversy,” or agree to do so.

Notably, the bribed public official doesn’t actually have to follow through on the official act he agreed to take, so it doesn’t help Trump that Congress has repeatedly prevented him from overturning sanctions on Russia.

Under this Court’s precedents, a public official is not required to actually make a decision or take an action on a “question, matter, cause, suit, proceeding or controversy”; it is enough that the official agree to do so.

And there are a number of data points in the public record that suggest Trump did believe he had made a deal with the Russians and that Russia had what it believed was a commitment from Trump. For example, four of the people who attended the June 9 meeting testified (most under oath) that Don Jr said his father would revisit sanctions relief if he got elected.

Natalia Veselnitskaya said Don Jr said they’d revisit the topic.

Mr. Trump, Jr. politely wound up the meeting with meaningless phrases about somewhat as follows: can do nothing about it, “if’ or “when” we come to power, we may return to this strange and confusing story.

Ike Kaveladze said that Don Jr said they might revisit the issue if his father won.

There was no request, but as I said, it was a suggestion that if Trump campaign wins, they might get back to the Magnitsky Act topic in the future.

Rinat Akhmetshin said that Don Jr said they would revisit Magnitsky when they won.

A. I don’t remember exact words which were said, but I remember at the end, Donald, Jr., said, you know, “Come back see us again when we win.” Not “if we win,” but “when we win.” And I kind of thought to myself like, “Yeah, right.” But it happened, so — but that’s something, see, he’s very kind of positive about, “When we win, come back and see us again.” Something to that effect, I guess.

Anatoli Samochornov, Veselnitskaya’s translator, who is the most independent witness and the only one who didn’t compare his story with others, said that Don Jr said they would revisit the issue if Trump won.

A. Like I described, I remember, not verbatim, the closing that Mr. Donald Trump, Jr., provided, but that’s all that I recall being said from the other side.

MR. PRIVOR: That closing being that Donald Trump, Jr., suggested —

MR. SAMOCHORNOV: If or when yes, and I do not remember if or when, but if or when my father becomes President, we will revisit this issue.

And Ike Kaveladze, in the call back to his boss to report on the meeting that witnesses observed, was happy with the outcome of the meeting.

It’s not just the Russians who seem to have acted on the meeting. Michael Cohen’s allocution seems to suggest that the meeting tied directly to the negotiations over a Trump Tower, because he took steps to travel to Russian on the day of the meeting.

From on or about June 9 to June 14, 2016, Individual 2 sent numerous messages to COHEN about the travel, including forms for COHEN to complete. However, on or about June 14 , 2016, COHEN met Individual 2 in the lobby of the Company’s headquarters to inform Individual 2 he would not be traveling at that time.

Remember: a “senior campaign official” was involved in discussions about trips to Russia. And had the President’s personal lawyer actually taken this trip to St. Petersburg, the plan was to meet Vladimir Putin (who did attend the forum that year).

While the dates provided in Cohen’s allocution also suggest the disclosure that Russia hacked the DNC halted Cohen’s plans “at that time,” we know that the plans did resume after that canceled trip into July.

The Russians certainly believed they had an agreement. They put in some effort to meet again after Trump won. While finding an appropriate communication channel failed for the Agalarovs, Flynn and Jared Kushner moved to establish a back channel via Sergey Kislyak. When Trump met with Preet Bharara and reportedly agreed to keep him on, Veselnitskaya panicked, and suggested Trump planned to keep him on so he could take him out.

In its indictment of Veselnitskaya, DOJ just established that she was actually working as part of the Russian government when she claimed to have fought to get an MLAT request in her Prevezon case. And Veselnitskaya believed that after Trump won the election, he would take out the prosecutor whom she was facing in court. Ultimately, Trump did take out Preet, firing all his US Attorneys in an effort to do so.

And details from Mike Flynn’s allocution provide one important piece of evidence that Russians believed they had received a commitment from Trump.

After Obama imposed sanctions on Russia partly in retaliation for the election year operation, Trump’s team panicked, both because they wanted to improve relations with Russia, but also because Russia’s role in his victory delegitimized the victory. That is, even those unlikely to be unaware of any quid pro quo recognized that the public accounting of Russia’s role in helping defeat Hillary would make it all the more difficult to deal with Russia.

Obama is doing three things politically:

  • discrediting Trump’s victory by saying it was due to Russian interference
  • lure trump into trap of saying something today that casts doubt on report on Russia’s culpability and then next week release report that catches Russia red handed
  • box trump in diplomatically with Russia. If there is a tit-for-tat escalation trump will have difficulty improving relations with Russia which has just thrown USA election to him.

Trump’s response, however, was to reach out to Russia and assure them they didn’t need to worry about Obama’s new policy. In response, the Russians made it very clear that Putin had decided not to respond based on the assurances that Flynn gave Kislyak.

On or about December 30, 2016, Russian President Vladimir Putin released a statement indicating that Russia would not take retaliatory measures in response to the U.S. Sanctions at that time.

On or about December 31, 2016, the Russian Ambassador called FLYNN and informed him that Russia had chosen not to retaliate in response to FL YNN’s request.

Mueller, of course, has the full transcript of what Flynn said to Kislyak that successfully placated Putin. It is highly likely the transcript provides explicit evidence of an official act to pay off his side of the deal, sanctions relief.

All of which is to say that Mueller may well be finalizing a conspiracy indictment of Don Jr and Trump Org laying out a quid pro quo in which Trump agreed to provide sanctions relief (and some other stuff) in exchange for Russia’s help winning the election.

That Mueller might be able to show all this is bribery may not affect Republican willingness to take the action laid out in the Constitution, to convict Trump in an impeachment inquiry. But given that the Constitution specifically envisions impeaching a President who has accepted a bribe, commentators should stop treating impeachment exclusively as a political issue.

Update: I posted this before I had read this analysis from Jack Goldsmith raising concerns about investigating the President for foreign policy decisions. While I think Goldsmith raises key points, he focuses on actions Trump took as President. But that’s one reason I think the transition activities are so important. If I’m right that the calls to Kislyak amount to an official act, then Trump took it to undermine the official policy of the government, not set it as President. Further, The Trump team had been asked — and at least one person had agreed — to not undermine Obama’s policies during the transition. There were several efforts to hide that they were doing so: the indications they couldn’t reengage on Magnitsky sanctions using the same channels as they used during the election, the request for a back channel, and the meeting with Mohammed bin Zayed al-Nahyan that Susan Rice discovered by unmasking the identities of those who met with him.

The actions Trump took that led to Flynn and Comey’s firings were part of an effort to hide these clandestine efforts during the transition. Yes, they were conducted while he was President. But they were conducted to cover up actions taken before he became President. This is why I keep harping on the remarkable lack of curiosity about why Trump really fired Flynn. The public story Trump is telling is assuredly false. The real reason almost certainly ties back to these transition period actions.

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

*Full disclosure: I donated to Tlaib’s campaign.

Tit-for-Tat: What Mike Flynn’s 302 Reveals about the Lies He Told

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Last week, I wrote this post arguing that Mike Flynn’s 302 (FBI interview report) shows what Flynn was hiding when he lied to the FBI: In addition to his most fundamental lie — that he and Sergei Kislyak had talked about Russia moderating its response to new Obama sanctions, Flynn lied about his coordination with KT McFarland, who was with Trump at Mar-a-Lago.

Since people are still wondering why Flynn lied, I thought I’d write it up to make it even more plain. This post relies on these sources:

As Flynn’s Statement of the Offense lays out, Obama signed the Executive Order imposing new sanctions on December 28, 2016.

On or about December 28, 2016, then-President Barack Obama signed Executive Order 13757, which was to take effect the following day. The executive order announced sanctions against Russia in response to that government’s actions intended to interfere with the 2016 presidential election (“U.S. Sanctions”).

Flynn admitted that Kislyak contacted him the day Obama imposed the sanctions.

On or about December 28, 2016, the Russian Ambassador contacted FLYNN.

Flynn told the FBI that was a text that, because of poor connectivity in Dominican Republic, he didn’t see for a day. (I suspect this is also a lie, but it is possible.)

Shortly after Christmas, 2016, FLYNN took a vacation to the Dominican Republic with his wife. On December 28th, KISLYAK sent FLYNN a text stating, “Can you call me?”

Sometime in the day after Obama imposed the sanctions, Lisa Monaco gave her successor, Tom Bossert, a heads up about how angry the Russians were, making it clear the Obama Administration had formally contacted them.

Obama administration officials were expecting a “bellicose” response to the expulsions and sanctions, according to the email exchange between Ms. McFarland and Mr. Bossert. Lisa Monaco, Mr. Obama’s homeland security adviser, had told Mr. Bossert that “the Russians have already responded with strong threats, promising to retaliate,” according to the emails.

That suggests that the Obama Administration formally alerted the Russians before Kislyak’s text and alerted the Trump Transition not long after. That is, the Flynn-Kislyak contacts occurred after Obama had informed both sides, if not Flynn directly.

In spite of that formal notification, Flynn attributed any delay in responding to Kislyak to Dominican Republic’s poor cell phone reception. He claims (probably assuming the only communications the FBI would ever review would be Kislyak’s communications) that he saw the text on the 29th, took a bit of time, then called the Russian Ambassador.

FLYNN noted cellular reception was poor and he was not checking his phone regularly, and consequently did not see the text until approximately 24 hours later. Upon seeing the text, FLYNN responded that he would call in 15-20 minutes, and he and KISLYAK subsequently spoke.

What Flynn didn’t tell the FBI is that, per his allocution, he spoke with KT McFarland immediately before his call with Kislyak (importantly, this is true whether he really didn’t find out until the 29th or if there was a longer conversation with McFarland).

On or about December 29, 2016, FLYNN called a senior official of the Presidential Transition Team (“PTT official”), who was with other senior ·members of the Presidential Transition Team at the Mar-a-Lago resort in Palm Beach, Florida, to discuss what, if anything, to communicate to the Russian Ambassador about the U.S. Sanctions. On that call, FLYNN and the PTT official discussed the U.S. Sanctions, including the potential impact of those sanctions on the incoming administration’s foreign policy goals. The PTT official and FLYNN also discussed that the members of the Presidential Transition Team at Mar-a-Lago did not want Russia to escalate the situation.

Immediately after his phone call with the PTT official, FLYNN called the Russian Ambassador and requested that Russia not escalate the situation and only respond to the U.S. Sanctions in a reciprocal manner.

The account of the timing of discussions both at Mar-a-Lago and with advisors who were dispersed across the globe in the NYT story is vague. Though NYT makes it clear that one email, at least, described the Flynn call with Kislyak prospectively.

As part of the outreach, Ms. McFarland wrote, Mr. Flynn would be speaking with the Russian ambassador, Mr. Kislyak, hours after Mr. Obama’s sanctions were announced.

One of those emails, importantly, included the following talking points.

Obama is doing three things politically:

  • discrediting Trump’s victory by saying it was due to Russian interference
  • lure trump into trap of saying something today that casts doubt on report on Russia’s culpability and then next week release report that catches Russia red handed
  • box trump in diplomatically with Russia. If there is a tit-for-tat escalation trump will have difficulty improving relations with Russia which has just thrown USA election to him. [my emphasis]

Per the NYT, that email appears to have been forwarded to — among others — Flynn.

Mr. Bossert forwarded Ms. McFarland’s Dec. 29 email exchange about the sanctions to six other Trump advisers, including Mr. Flynn; Reince Priebus, who had been named as chief of staff; Stephen K. Bannon, the senior strategist; and Sean Spicer, who would become the press secretary.

One thing makes it more likely that Flynn received McFarland’s email (or at least equivalent talking points via phone), and received it before he returned the call to Kislyak. When the Agents moved to the stage of the interview where — per Peter Strzok’s later description — “if Flynn said he did not remember something they knew he said, they would use the exact words Flynn used,” they quoted that “tit-for-tat” language.

The interviewing agents asked FLYNN if he recalled any conversation with KISLYAK in which the expulsions were discussed, where FLYNN might have encouraged KISLYAK not to escalate the situation, to keep the Russian response reciprocal, or not to engage in a “tit-for-tat.” FLYNN responded, “Not really. I don’t remember. It wasn’t, “Don’t do anything.” [my emphasis]

So whether Flynn saw this language in an email first, it seems clear he spoke to McFarland — who was coordinating all this from Mar-a-Lago, where Trump was — before he spoke with Kislyak. And that’s important, because Flynn claimed he had no idea that the US had expelled a bunch of Russian diplomats “until it was in the media.”

The U.S. Government’s response was a total surprise to FLYNN. FLYNN did not know about the Persona-Non-Grata (PNG) action until it was in the media.  KISLYAK and FLYNN were starting off on a good footing and FLYNN was looking forward to the relationship. With regard to the scope of the Russians who were expelled, FLYNN said he did not understand it. FLYNN stated he could understand one PNG, but not thirty-five.

It’s possible that Flynn didn’t learn about the expulsions until Obama’s press releases on the 29th, if he didn’t check with McFarland before that. Except he also claimed the FBI that he didn’t have access to TV news in DR.

FLYNN noted he was not aware of the then-upcoming actions as he did not have access to television news in the Dominican Republic and his government BlackBerry was not working.

In context in his 302, though, that seems to be offered as a substantiating detail to support his claim that he didn’t know about the expulsions before he spoke with Kislyak — or, indeed, the even crazier claim that Kislyak didn’t raise it on that call, regardless of what Flynn knew going into the call.

The interviewing agents asked FLYNN is he recalled any conversation with KISLYAK surrounding the expulsion of Russian diplomats or closing of Russian properties in response to Russian hacking activities surrounding the election. FLYNN stated that he did not. FLYNN reiterated his conversation was about [Astana peace conference] described earlier.

Consider how ridiculous this lie is: Flynn wanted the FBI to believe that, having asked Flynn to contact him after Russia was informed of Obama’s sanctions, Kislyak didn’t even mention the sanctions to him.

That’s obvious nonsense. But it was a necessary to hide two things. First, that he had spoken with Kislyak about sanctions — which is what the focus has been on until now.

But claiming that he hadn’t heard about the expulsions before he called Kislyak also served to hide an equally critical detail: Flynn had not only heard of the sanctions (if he hadn’t already heard) from his deputy, KT McFarland, who was at Mar-a-Lago with Trump, but she and he and a number of other people had coordinated what he would say to Kislyak before the call. And they did do based off the belief that Obama’s actions against Russia were all a political set-up and not a sound response to Russia’s involvement in the election.

Flynn not only coordinated his messaging with McFarland, but he used language she offered, writing from Mar-a-Lago: “tit-for-tat.”

After Flynn pled guilty, McFarland spent some time cleaning up what she had told the FBI the previous summer (at a time when everyone seemed to believe their emails recording all this would never be reviewed by the FBI). According to WaPo’s coverage, McFarland,

walked back her previous denial that sanctions were discussed, saying a general statement Flynn had made to her that things were going to be okay could have been a reference to sanctions, these people said.

Flynn’s statement of the offense actually reflects two conversations that McFarland may have initially lied about — one on December 29, when Flynn reported back on his call with Kislyak, and another after his December 31 call with Kislyak, when Flynn reported back to “senior members of the Presidential Transition Team.”

Shortly after his phone call with the Russian Ambassador, FLYNN spoke with the PTT official to report on the substance of his call with the Russian Ambassador, including their discussion of the U.S. Sanctions.

On or about December 30, 2016, Russian President Vladimir Putin released a statement indicating that Russia would not take retaliatory measures in response to the U.S. Sanctions at that time.

On or about December 31, 2016, the Russian Ambassador called FLYNN and informed him that Russia had chosen not to retaliate in response to FL YNN’s request.

After his phone call with the Russian Ambassador, FLYNN spoke with senior members of the Presidential Transition Team about FL YNN’s conversations with the Russian Ambassador regarding the U.S. Sanctions and Russia’s decision not to escalate the situation.

It appears that Flynn tried to hide the entire existence of the call on December 31 (unless that’s why he claimed he had to keep calling back to Kislyak because of connectivity issues).

The interviewing agents asked FLYNN if he recalled any conversation with KISLYAK in which KISLYAK told him the Government of Russia had taken into account the incoming administration’s position about the expulsions, or where KISLYAK said the Government of Russia had responded, or chosen to modulate their response, in any way to the U.S.’s actions as a result of a request by the incoming administration. FLYNN stated it was possible that he talked to KISLYAK on the issue, but if he did, he did not remember doing so. FLYNN stated he was attempting to start a good relationship with KISLYAK and move forward. FLYNN remembered making four to five calls that day about this issue, but that the Dominican Republic was a difficult place to make a call as he kept having connectivity issues. FLYNN reflected and stated that he did not think he would have had a conversation with KISLYAK about the matter.

The point, however, is multiple people in the Transition lied about this back-and-forth involving people at Mar-a-Lago with Trump.

Their correction of those stories is probably one thing described in this redaction in Flynn’s sentencing addendum.

The fact that Flynn’s lies attempted to hide coordination with Mar-a-Lago and the Transition team generally is significant for several reasons.

First, it appears that at least KT McFarland and probably Sean Spicer were in on at least part of Flynn’s cover story. If that’s right, it would require more coordination than we’ve seen reported based on emails. It’s still unclear how much those who lied about Flynn’s conversations early in January 2017 — including Spicer but especially Mike Pence, who has not been named as receiving the emails among the Transition team — knew about Flynn’s conversations.

A perhaps more important detail, legally, is one that Ty Cobb — at the time, still working for Trump — tried to deny: at least one person in the Trump camp had assured the Obama Administration that they would not undercut Obama’s efforts to retaliate against Russia.

The Trump transition team ignored a pointed request from the Obama administration to avoid sending conflicting signals to foreign officials before the inauguration and to include State Department personnel when contacting them. Besides the Russian ambassador, Mr. Flynn, at the request of the president’s son-in-law, Jared Kushner, contacted several other foreign officials to urge them to delay or block a United Nations resolution condemning Israel over its building of settlements.

Mr. Cobb said the Trump team had never agreed to avoid such interactions. But one former White House official has disputed that, telling Mr. Mueller’s investigators that Trump transition officials had agreed to honor the Obama administration’s request.

This puts a totally different spin on Susan Rice’s role in unmasking intercepts involving Trump transition officials exhorting the Russian Ambassador to blow off Obama’s sanctions and working with Mohammed bin Zayed al-Nahyan to keep a face-to-face meeting in NY secret (and probably also other intercepts assuring Bibi Netanyahu the Trump Transition would do all they could to undercut an Obama effort to punish Israeli settlements).

Rice would have unmasked those conversations having some reason to believe that the people involved in those discussions (Flynn and Kushner) were blowing off a Trump Transition commitment not to undercut Obama policy.

Such actions, then, would appear to go beyond a mere Logan Act violation. That is, Flynn and Kushner would have appeared to be pursuing their own foreign policy agenda, not just undercutting Obama’s policy, but also undercutting Trump’s (contested) agreement not to undercut Obama’s policies at least through the transition. And they would be doing so, by appearances, in pursuit of their own personal profit.

And those seeming instances of free-lancing would have accompanied Flynn’s request (in the days before it would be exposed that his Transition calls had been intercepted) to Rice to delay arming the Kurds, at a time when he was still legally hiding this relationship with Turkey.

Ultimately, we’re almost certainly going to learn all this was done with Trump’s explicit approval.

But because Flynn made such an effort to hide that his efforts to placate the Russians (and help the Turks and carry out undisclosed conversations with the Emirates and Israel) were done on the specific direction of Trump and Kushner, it would have looked like he was undermining both the Trump Administration and the interests of the United States.

It turns out he was only doing the latter.

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

The Moving Parts: The Walls Come Down around Trump

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The other day (I forget which day it was, to be honest) I wondered aloud whether, as it became clear the walls were collapsing around Trump, he’d make a rash move to pay off his debts, perhaps to salvage something for his post-Presidenting life.

I’m not sure we’re quite at that point yet. But in recent days, a ton has happened it’s hard to make sense of.

This post doesn’t pretend to offer answers. I just want to write down everything I think is happening in one place — blogger’s prerogative, call it.

Mattis resigns, citing Trump’s fondness for authoritarians

The most alarming news is not that James Mattis resigned, but how he did so. In his resignation letter, he cited the importance of NATO, and China and Russia’s authoritarianism that leads them to promote their interest over that of their neighbors, America, and our allies, before he made it clear that Trump disagrees with Mattis in rejecting those authoritarian values.

One core belief I have always held is that our strength as a nation is inextricably linked to the strength of our unique and comprehensive system of alliances and partnerships. While the US remains the indispensable nation in the free world, we cannot protect our interests or serve that role effectively without maintaining strong alliances and showing respect to those allies. Like you, I have said from the beginning that the armed forces of the United States should not be the policeman of the world. Instead, we must use all tools of American power to provide for the common defense, including providing effective leadership to our alliances. NATO’s 29 democracies demonstrated that strength in their commitment to fighting alongside us following the 9-11 attack on America. The Defeat-ISIS coalition of 74 nations is further proof.

Similarly, I believe we must be resolute and unambiguous in our approach to those countries whose strategic interests are increasingly in tension with ours. It is clear that China and Russia, for example, want to shape a world consistent with their authoritarian model — gaining veto authority over other nations’ economic, diplomatic, and security decisions — to promote their own interests at the expense of their neighbors, America[,] and our allies. That is why we must use all the tools of American power to provide for the common defense.

My views on treating allies with respect and also being clear-eyed about both malign actors and strategic competitors are strongly held and informed by over four decades of immersion in these issues. We must do everything possible to advance an international order that is most conducive to our security, prosperity and values, and we are strengthened in this effort by the solidarity of our alliances.

Because you have the right to have a Secretary of Defense whose views are better aligned with yours on these and other subjects, I believe it is right for me to step down from my position. [my emphasis]

The precipitating event, though, was Trump’s decision to pull out of Syria.

Officials said Mr. Mattis went to the White House on Thursday afternoon in a last attempt to convince Mr. Trump to keep American troops in Syria, where they have been fighting the Islamic State. He was rebuffed, and told the president that he was resigning as a result.

One source says that Trump’s decision to close the Special Forces base in Syria is part of the problem.

The US is set to shut a special forces base in Syria that has been the subject of repeated Russian complaints, and that some US officials have cast as a key part of US efforts not just to defeat ISIS but to counter Iranian influence in the country.

Muhannad al-Talla, a rebel commander at al-Tanf, a US base near the Syrian border with Jordan, told BuzzFeed News that the base would see the withdrawal of the US troops who have trained and fought alongside rebels there.

I’m wondering if this base was involved in the shellacking of Putin ally Yevgeniy Prigozhin’s mercenaries.

Another is Erdogan’s threat (or promise) to massacre our longstanding Kurdish allies.

Defense officials tell me Mattis went to the White House to discuss Syria & that he was livid after reading reports that Turkey’s Defense Minister threatened to kill US-backed Kurds & put them in ditches once the US withdrew. He was incensed at this notion of betrayal of an ally.

Effectively, it seems, Mattis told Trump, “it’s me or Vladimir Putin” … and Trump chose Putin.

Erdogan exercises leverage — or is he the messenger boy?

But it wasn’t exactly — or just — Putin that finally got Trump to deliver on the payback he started delivering 14 hours after polls closed in 2016. It was Recep Tayyip Erdogan. As I noted, Trump met with Erdogan in Argentina but not — after the Michael Cohen allocution made it clear Putin was enticing Trump with a Tower deal in 2016 — Putin.

Multiple reports say a call Trump had with Erdogan on Friday was the precipitating factor. Here’s a really alarming account of that call.

That leads me to wonder what leverage Turkey, specifically, has over Trump, such that he’d pull out of Syria in response to a threat to massacre the Kurds, which will make it easy for Turkey to massacre the Kurds.

And I have to believe Turkey’s ploy with the Jamal Khashoggi execution is part of it. Erdogan never gave a shit that the Saudis lured a dissident to their soil to dismember alive. Erdogan himself pursues such repression, even if he conducts it with a bit more cover.

Indeed, whatever Erdogan has over Trump also has him considering extraditing Fethullah Gulen to Turkey for what would certainly be similar treatment — the payoff Turkey was requesting back in December 2016 when Trump’s chosen National Security Advisor was still hiding that he had been an unregistered agent for Turkey.

Perhaps Turkey has proof not just implicating Mohammed bin Salman in the execution, but Jared Kushner in green-lighting it, or possibly even Trump?

Mueller’s moves toward endgame

It’s hard — particularly given comments from people like Nancy Pelosi — to separate all this from what feels like an approaching Mueller (attempted) endgame. The lead-up to Flynn’s aborted sentencing featured the following:

  • Flynn makes an ill-considered attack on the legitimacy of the Mueller probe
  • Emmet Sullivan orders the release of the documents with which Flynn was attempting to undercut Mueller
  • Sullivan orders the far more damning Flynn 302 that, among other things, reveals that Turkey and Russia both had compromising information on Trump and Flynn
  • DOJ indicts Flynn’s business partners for hiding how Turkey angled to force DOJ to extradite Gulen
  • At Flynn’s sentencing hearing, Sullivan emphasizes that Flynn had been an agent of Turkey while ostensibly working for Trump and mentions the word treason

Plus there’s evidence that Jared Kushner — who has been the boy plaything for all these ruthless players — probably tried to attack Flynn even while he was having a grocery store tabloid pimp the Saudis.

And it was revealed that the Mystery Appellant refusing to provide information to Mueller is a foreign-owned corporation, probably a Russian or Middle Eastern bank or sovereign wealth fund funneling money to Trump or Jared. The company appears to have asked for an en banc review today.

Mueller also asked for and got the House Intelligence Committee to release its transcript of Roger Stone’s testimony. The timing of this is the interesting thing: Mueller chose to do this when Republicans had to (and did) vote to expose Trump’s top political advisor to indictment. He could have waited, but didn’t. That suggests either he wanted Republican buy-in, or he needs the transcripts now, to finalize his case against Stone before Democrats take over in a few weeks.

The day after SSCI released materials on James Wolfe, he was indicted.

So things are moving to a head in the Mueller probe, and in a way that both Russia and Turkey may be implicated.

Matt Whitaker performs a headfake before taking the corrupt step he was hired to take

Then there was the news today on big dick toilet salesman Matt Whitaker. This morning, multiple outlets reported that DOJ had told Whitaker he didn’t have to recuse from the Mueller probe. After that became the headline, however, multiple outlets revealed that the truth was the opposite: an ethics advisor had told Whitaker he should recuse, and having heard that, Whitaker consulted a hand-picked committee that predictably told him not to.

Within days of the president’s announcement in early November that he had put Whitaker in the role on a temporary basis, Whitaker tapped a veteran U.S. attorney to become part of a four-person team of advisers on his new job, according to a senior Justice Department official. Their guidance included the question of whether Whitaker should recuse himself from Mueller’s investigation because of his past statements regarding that probe and because of his friendship with one of its witnesses, the official said.

Whitaker never asked Justice Department ethics officials for a formal recommendation, nor did he receive one, this official said.

However, after Whitaker met repeatedly with Justice Department ethics officials to discuss the facts and the issues under consideration, a senior ethics official told the group of advisers on Tuesday that it was a “close call” but that Whitaker should recuse himself to avoid the appearance of a conflict of interest, the official said. Whitaker was not present at that meeting, they said.

Those four advisers, however, disagreed with the ethics determination and recommended to Whitaker the next day not to recuse, saying there was no precedent for that, and doing so now could create a bad precedent for future attorneys general.

That big dick toilet salesman Whitaker did this is not surprising.

That he chose to roll out this admission today is worth noting. One outlet reported that, up until today, Whitaker had not been briefed on the Mueller probe. Apparently, in the wake of a judge raising treason concerns after having reviewed Mike Flynn’s behavior, Whitaker has made the move to become Trump’s mole on the Mueller probe.

Update: BuzzFeed got a hold of the DOJ letter here. It makes it very clear Whitaker ignored advice to recuse.

Update: Marty Lederman notes that this letter fails to conduct a key part of the recusal analysis: why he would make a more appropriate supervisor for Mueller than Rod Rosenstein.

Trump prepares to shut down government

All this is happening as Trump prepares to shut down the government because Fox News laughed at him for getting pantsed by Nancy Pelosi.

Fox & Friends co-host Steve Doocy said the Democrats had won the showdown, and Trump had lost.

He launched into a tirade saying the president “loses, and the Democrats will win everything” based on his apparent decision to compromise with House Speaker Nancy Pelosi and Sen. Chuck Schumer.

Doocy said Trump’s defeat would not only risk his campaign commitment to build the wall, but also bring into question his electoral promises to curb the rest of the government’s spending.

In response, over the course of today, Trump told Republicans he’d veto any continuing resolution that didn’t include $5 billion for his steel slat wall, making it much more likely we’ll have a shutdown as Trump skedaddles to Mar-a-Lago to take calls from his authoritarian buddies.

This may be entirely unrelated. After all, Fox and Friends is Trump’s bubble, that’s the only place where he considers losses to matter, and after the truth that Pelosi had bested him started to seep through, the narcissist-in-chief had no choice but to make a rash demand that Republican politicians sacrifice their careers in deference to his tantrum.

Which is to say that this behavior is precisely what we should expect when a narcissist’s mirror tells his he has been bested by someone he must demean.

Or maybe it is related?

Putin — or someone else — is calling in receipts

As I’m thinking about these things, I keep thinking back to an argument I made in August. I argued that Putin had compromised Trump not with a pee tape, but by ensuring his people kept receipts every time Trump got sucked deeper and deeper into a deal with Russia.

People are looking in the entirely wrong place for the kompromat that Putin has on Trump, and missing all the evidence of it right in front of their faces.

Vladimir Putin obtained receipts at each stage of this romance of Trump’s willing engagement in a conspiracy with Russians for help getting elected. Putin knows what each of those receipts mean. Mueller has provided hints, most obviously in that GRU indictment, that he knows what some of them are.

For example, on or about July 27, 2016, the Conspirators  attempted after hours to spearphish for the first time email accounts at a domain hosted by a third-party provider and used by Clinton’s personal office. At or around the same time, they also targeted seventy-six email addresses at the domain for the Clinton Campaign.

But Mueller’s not telling whether he has obtained the actual receipts.

And that’s the kompromat. Trump knows that if Mueller can present those receipts, he’s sunk, unless he so discredits the Mueller investigation before that time as to convince voters not to give Democrats a majority in Congress, and convince Congress not to oust him as the sell-out to the country those receipts show him to be. He also knows that, on the off-chance Mueller hasn’t figured this all out yet, Putin can at any time make those receipts plain. Therein lies Trump’s uncertainty: It’s not that he has any doubt what Putin has on him. It’s that he’s not sure which path before him — placating Putin, even if it provides more evidence he’s paying off his campaign debt, or trying to end the Mueller inquiry before repaying that campaign debt, at the risk of Putin losing patience with him — holds more risk.

Trump knows he’s screwed. He’s just not sure whether Putin or Mueller presents the bigger threat.

It has since become clear that not just Russia, but at least also Turkey and whatever bank is fighting a demand from Mueller that it turn over evidence of Trump’s graft, also have receipts.

Nevertheless, at the moment where it has become increasingly clear that Mueller knows much of whatever blackmail these partners have over Trump, Trump has chosen, instead, to alienate the Senators who might keep him from being impeached by evacuating from Syria and, later reports make clear, Afghanistan.

Trump is, on a dime and without warning to our closest allies, rolling up the American Empire. And he’s doing it not because he’s a peacenik — as far too many self-described progressives are trying to claim — but because ruthless, committed authoritarians have convinced him he needs their continued approval more than he needs the approval of even the Republican hawks in the Senate.

Update: I forgot to mention that the stock market is crashing. It started in response to Trump’s trade wars and bullying of the Fed, but accelerated given his threats to shut down the government.

The Black Holes in the Mike Flynn 302: The Back Channel Discussion May Be Most Sensitive Investigative Detail

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In this post, I talked about what we can deduce from the unredacted parts of the Mike Flynn 302 released last night. It shows that Flynn’s lies served to hide that he consulted very closely with Mar-a-Lago — almost certainly with Trump — and even denied parts of the transcript that showed him quoting directly from KT McFarland’s related instructions.

While we’re waiting on Flynn’s sentence, I’d like to look at the substantive redactions, as a way of assessing what Mueller thinks must remain secret. I’ll just be looking at the actual report, not the bureaucratic redactions (which hide things like the case number and classification levels for the individual paragraphs).

The first redaction comes in a paragraph recording what Flynn claimed were his past communications with Sergei Kislyak, in which he explains that he called Kislyak in the wake of the death of GRU head Igor Sergun in January 2016.

It’s possible the redaction includes an admission that he and Kislyak discussed policy — ascribing a a policy call to a condolence one is precisely what he did with the December 29 calls to Kislyak, after all. Note, too, the way Flynn distanced that conversation from Trump (he probably figured out that that call, like his much later one, would have been picked up). It’d be especially interesting if the redaction pertained to Flynn’s claim that Sergun died in Lebanon; Russia’s military issued a panicked denial today that Sergun died there (they say he died of heart problems in Russia).

The second redaction hides Flynn’s discussion of his trip to Russia in 2015, on a trip ultimately paid by RT, where he sat at a table with Vladimir Putin and Jill Stein.

This actually might be hidden for counterintelligence reasons — to hide the circumstances of how Russians tried to sidle up to Flynn by flying him in for the gala. That said, the details are likely part of Mueller’s understanding of how Russia cultivated Trump and those close to him.

The next redaction hides Flynn’s description of the outreach to the Russians he was making.

I suspect this provides more detail about the outreach Flynn made on Syria. He portrays it as pertaining to terrorism, not paying back Russia. The hidden passage may also address timing which we now know actually started during the election (which would mean this redacted passage could hide yet another Flynn lie).

Note, it’s actually fairly interesting that Flynn worked exclusively via Kislyak, but none of that is likely to be redacted.

The first paragraph about the December 29 conversation hides two details: what appears to be a request that Flynn set up the conference call that ultimately took place on January 28, and an inquiry on whether the US would send observers to … something.

This redaction is one I expect we’ll get follow-up reporting on, as Kislyak was making significant asks at that time.

Update: TC suggests the reference to monitors might pertain to evacuation of Aleppo. It’s definitely a possibility. Update: The observer comment pertained to Syria peace talks. h/t JM

The longest redaction in the 302 may be the one that hides Flynn’s description of the December 1 meeting with himself and Jared Kushner (Don Jr came in at some point — the meeting was conducted in his office) where Jared asked for a back channel of communications.

I find the extent of this redaction … to be bad news for Jared Kushner (and Don Jr if he attended more of the meeting than he claims). This is another meeting that FBI had details about (or later would discover them), from when Kislyak called home and reported on the back channel request. A significant purpose for this redaction must be to hide what Flynn said from the other co-conspirators.

Also note: if this meeting is the only other communication with Kislyak that Flynn admitted to, he may have also hid communications he had during the election (in which case those communications would have also been considered sensitive).

These two words are the only ones redacted in the entire three-paragraph passage describing Flynn’s lies about the vote on Israeli settlements.

The redactions here — at least the second one — are for diplomatic reasons.

I believe the second one hides the word “Egyptians;” I’m not sure if the first is long enough to be “Israel.” It may be “Trump,” in which case it’d be another point where Flynn hid how much he coordinated with Trump on all this.

In any case, the fact that Mueller redacted so little of this discussion suggests that the effort to help Israel is not a core part of his investigation (or if it is, Jared, who ordered Flynn to try to delay the vote on Israel, has already locked in his testimony on it).

It’s unclear what this redaction, in the first paragraph as the FBI Agents circled back to Flynn’s lies about the sanctions call, hides. It may be another reference to the discussion about sending observers somewhere.

That’s the final redaction, though. The rest — which details how the Agents quoted directly from the transcript (including the bit that was itself a quote of KT McFarland) is all unsealed, so presumably no longer sensitive from an investigative standpoint.

All of which is to say that the most sensitive investigative detail in Flynn’s 302 — the thing the government cared most about hiding — is what Flynn said about that December 1 meeting where Jared asked to set up a back channel of communication with Russia.

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