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Republican Complaints about Phone Records Back Democratic Impeachment Case

Way back in 2001, Victoria Toensing wrote an article justifying the subpoena of phone records of her future client, John Solomon, to find out who leaked details to him that Democratic Senator Robert Torricelli had been picked up on a wiretap of a mob figure. In it, she justified serving limited subpoenas, approved by Robert Mueller, on a third party carrier to find out who had committed a crime. She emphasized there was nothing political about the subpoena of Solomon’s phone records.

By ensuring that journalists not be subpoenaed every time they possess evidence, the department was demonstrating its respect for the press’s constitutional role.

The guidelines set down specific conditions that must be met before a subpoena can be issued for a reporter’s telephone records: There must be reasonable grounds to believe a crime has been committed; the information sought must be essential to a successful investigation; the subpoena must be narrowly drawn; all reasonable alternative steps must have been pursued, and the attorney general must approve the decision. The department has 90 days to notify the reporter of a subpoena to a third party, such as a telephone company.

Were those conditions met in Solomon’s case? Clearly, yes. His articles state that wiretap information was disclosed. The subpoena was limited, asking for home phone records for a period of six days, May 2 through 7. The U.S. attorney, Mary Jo White, certified that all alternative steps had been taken. Then-Acting Deputy Attorney General Robert S. Mueller III (now the FBI director) approved the subpoena — Ashcroft having recused himself. Solomon received his timely notice.

There is one other guideline factor: whether negotiations are required with the reporter before a subpoena is issued. The AP has argued — incorrectly — that the guidelines were violated because there were no negotiations. But negotiations are mandated only when the subpoena goes directly “to the reporter.” The guidelines do not require them if the subpoena is to a third party and the department concludes negotiations might be detrimental to the investigation.

Eighteen years later, Toensing is outraged that her own phone records were collected by the constitutionally appropriate authority in the investigation of multiple crimes.

A table of the April call records described in the report suggests the subpoena apparently targeted Lev Parnas — someone already indicted for crimes related to this investigation — and Rudy Giuliani — who’s a subject of that same investigation. (h/t Kelly for the table)

Nevertheless, in addition to Toensing and Solomon, the subpoena obtained records showing calls with Devin Nunes, several of the staffers most involved in sowing conspiracy theories, and numbers believed to involve the President (who is the subject of this investigation).

Nunes, of course, has made several efforts in recent years to expand the government’s collection of metadata in national security investigations, which this is. Trump also has favored continued, aggressive use of metadata collection in national security contexts.

The apparent fact that Schiff obtained all these records by targeting two suspected criminals hasn’t comforted the GOP, which is trying to claim that he violated the law or norms in issuing a subpoena.

One particularly delectable version of such complaints comes from Byron York. For some inconceivable reason, York decided to contact John Yoo — who, on multiple occasions in the year after Toensing wrote her column justifying a subpoena, wrote legal memos authorizing efforts to collect all phone records in the US with no legal process. York asked Yoo about whether subpoenaing AT&T for the phone records of two people as part of an impeachment investigation was proper.

John Yoo expressed a heretofore unknown respect for privacy. Even while he admitted that this presents no attorney-client problems, he suggested it would be proper for the White House to try to pre-empt any such subpoena.

There is certainly a constitutional privacy issue here, but I don’t think an attorney-client privilege issue. The attorney-client privilege covers the substance of the communication, but it doesn’t protect the fact that a communication took place.

For example, when one party to a lawsuit has to hand over documents to the other party, it can redact the content of the document if it is attorney-client privileged or withhold the document itself, but not the fact of the document’s existence (there is usually a log created that sets out the from, to, date information, etc.).

That is a separate question from whether Giuliani and Nunes had any constitutional rights violated by the House when it obtained these records. I am surprised that Giuliani and the White House did not think this would come up and sue their telecom providers to prevent them from obeying any demands from the House for their calling records.

York then quotes a policy from Reporters Committee for Freedom of the Press that shows this subpoena — which did not target Solomon — does not fall under RCFP’s stated concern for subpoenas used to find out a journalist’s sources.

Courts…have begun to recognize that subpoenas issued to non-media entities that hold a reporter’s telephone records, credit card transactions or similar material may threaten editorial autonomy, and the courts may apply the reporter’s privilege if the records are being subpoenaed in order to discover a reporter’s confidential sources.

The subpoena didn’t discover Solomon’s sources; it just demonstrated Parnas and Rudy’s outlets.

Most remarkable of all, York quotes Rudy providing direct evidence supporting impeachment.

Schiff, Pelosi, Nadler have trashed the U.S. Constitution and are enabled by a pathetic fawning press. They have proceeded without respect for attorney-client privilege, including threats of contempt and imprisonment.

Here’s the thing. Either Rudy Giuliani was acting as a person the President appointed to pursue the foreign policy of the United States — something Republicans have, at times, argued in their attempts to defend the President.

Or, Rudy was acting as the President’s personal lawyer. Here, he asserts he was acting as the President’s lawyer. If that’s the case — and Rudy says it was — it confirms a key allegation made by Democrats: that Trump demanded concessions from Ukraine purely for his own personal benefit.

As Yoo notes, Rudy (and Jay Sekulow and Toensing) would not have an attorney-client claim over metadata in any case. But Rudy nevertheless claims Trump’s privilege has been implicated in these call records.

With that claim, he confirms that his client violated his oath of office.

When Your Joint Defense Agreement with the Russian Mob Blows Up in Your Face

Last month, I argued that the John Dowd letter mapping out what amounted to a Joint Defense Agreement between the President, Rudy Giuliani, Lev Parnas, Igor Fruman, and Dmitry Firtash (with Victoria Toensing, Joe DiGenova, and Dowd himself as the glue holding this orgy of corruption together) would one day go in a museum to memorialize how crazy things are. Right alongside that — I think after reading this NYT story — will go Trump’s written waiver of privilege as obtained by Jay Sekulow.

Mr. Parnas initially remained in Mr. Trump’s camp after House Democrats on Sept. 30 requested documents and testimony from him and Mr. Fruman. The men hired John Dowd, a lawyer who had earlier represented the president at one stage of the investigation by Robert S. Mueller III, the special counsel, into Russian interference in the 2016 election.

Mr. Trump signed off on the hiring of Mr. Dowd, according to an Oct. 2 email reviewed by The New York Times.

“I have discussed the issue of representation with the president. The president consents to allowing your representation of Mr. Parnas and Mr. Furman,” Jay Sekulow, another lawyer for Mr. Trump, wrote to Mr. Dowd, misspelling Mr. Fruman’s surname.

Dowd claims, his batshit letter notwithstanding, there was no tie between his representation of Trump and the magical selection of a bunch of grifters involved in Trump’s efforts to coerce electoral advantage from foreign countries.

Mr. Dowd said in an interview that Mr. Trump’s approval was sought “simply as a courtesy to the president,” because of the lawyer’s previous work for him. Mr. Dowd said he still represents Mr. Fruman.

A person close to Mr. Trump said that the email did not demonstrate that the president knew Mr. Parnas or Mr. Fruman personally but rather knew of them from media reports.

But now Parnas has decided to cooperate with the impeachment inquiry because Trump pretended not to know Parnas.

“We are willing to comply with the subpoena to the extent that it does not violate any appropriate privilege that Mr. Parnas may properly invoke,” said Joseph A. Bondy, who along with Edward B. MacMahon, Jr. now represents Mr. Parnas.

Mr. Bondy said that given the federal criminal charges, his client may invoke his right under the Fifth Amendment not to incriminate himself.

The turnabout occurred after Mr. Trump denied knowing Mr. Parnas when he was arrested.

“Mr. Parnas was very upset by President Trump’s plainly false statement that he did not know him,” said Mr. Bondy, whose client has maintained that he has had extensive dealings with the president.

This move comes after Parnas’ (alleged) partner in crime, Igor Fruman, met spectacular failure at getting his bail conditions changed, after the prosecutor provided compelling evidence he tried to flee the country as soon as Congress subpoenaed him.

“What is clear is he was subpoenaed by Congress on October 7th, on the 8th he booked a one-way flight to Vienna, and on the 9th he was arrested on the jetway,” Roos said. “What was his reason to leave on such short notice? … Why such a rush to leave the country?”

Roos went on to detail Fruman’s many financial and political connections to Europe, attempting to demonstrate that Fruman could live a very pleasant life abroad if he were able to flee.

“He operates a bar called Buddha Bar” abroad, Roos said. He held up a printout of a glossy hotel brochure for the court to see, saying it listed Fruman as the president and CEO of a “luxury group” that owns a hotel, “restaurants, a beach club, and retail stores,” Roos told the court.

So maybe Parnas decided that “cooperating” (and I mean those scare quotes to be enormous) with Congress might be a quicker path to freedom.

Most other times that someone has protected Trump by demanding a pardon, Trump still held the leverage (in part, because they were dealing with DOJ, not an impeachment inquiry).

But at this point, I suspect, Parnas holds the upper hand, in part because SDNY is not that far into its investigation of the larger point of Parnas’ funding of the Republican Party (meaning, he has a pretty good idea of how bad things could get if the investigation is allowed to proceed unimpeded), and in part because the impeachment inquiry makes Parnas’ knowledge a far greater risk to Trump. He may be a grifter, but he put the pieces into place to  ensure he could take others down with him. And his marks were very easy marks. Plus, given he can claim both attorney-client and Fifth Amendment privileges, he may be able to neatly tailor what information he wants to release.

The President’s Joint Defense Agreement with the Russian Mob

If we survive Trump and there are still things called museums around that display artifacts that present things called facts about historic events, I suspect John Dowd’s October 3 letter to the House Intelligence Committee will be displayed there, in all its Comic Sans glory.

In it, Dowd memorializes a conversation he had with HPSCI Investigation Counsel Nicholas Mitchell on September 30, before he was officially the lawyer for Lev Parnas and Igor Fruman, now placed in writing because he had since officially become their lawyer. He describes that there is no way he and his clients can comply with an October 7 document request and even if he could — this is the key part — much of it would be covered by some kind of privilege.

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

Once that letter was sent, under penalty of prosecution for false statements to Congress, it became fact: Parnas and Fruman do work for Rudy Giuliani in the service of the President of the United States covered by privilege, Rudy does work for them covered by privilege, and they also do work for Joseph Di Genova and Victoria Toensing about this matter that is covered by privilege.

Dowd might be forgiven if he immediately adopted the strategy that worked so well in guiding Trump through the Mueller investigation: just engage in a 37-person conspiracy to obstruct justice and name it a Joint Defense Agreement. Indeed, there are even similarities with current events. Then, John Dowd, Jay Sekulow, and Rudy Giuliani offered things of value to the others in the JDA — pardons — in exchange for their silence or even lies. Conspicuously, Toensing represented two people that — the Mueller Report seems to suggest — weren’t entirely candid in their testimony, Erik Prince (who managed to lose texts that explained why he was taking back channel meetings with Russians) and Sam Clovis (who sustained his lack of memory of being told that Russians were offering emails long enough for George Papadopoulos to change his mind on that front). Papadopoulos even managed to call Marc Kasowitz, when he still represented the President, to ask if he also wanted to represent a coffee boy with an inclination to lie to the FBI. The strategy all built to its successful crescendo when, instead of cooperating with prosecutors as he signed up to do, Paul Manafort instead figured out what they did and didn’t know, lied to keep them confused, and reported it all back through his own attorney, Kevin Downing, and Rudy to the President.

It was never really clear who was paying the lawyers (aside from the RNC paying Hope Hicks’ lawyers and some other key staffers). And as details of Manafort’s lies came out, it became clear there was some kind of kick-back system to keep the lawyers paid.

Still, Mueller never tied Manafort’s trading of campaign strategy for considerations on Ukraine and payment by Ukrainian and Russian oligarchs to the President. And so it may have seemed sensible for Dowd, in a bit of a pinch, to adopt the same strategy, with Rudy representing everyone, Dowd representing the Ukrainian grifters, and Kevin Downing even filling in in a pinch.

It all might have worked, too, if Parnas and Fruman hadn’t gotten arrested before they managed to flee the country, headed for what seems to have been a planned meeting a day later with their sometime attorney Rudy Giuliani in Vienna, just one day after a lunch meeting with him at Trump Hotel across the street from the Department of Justice that was busy inking an indictment against the Ukrainians even as they paid money to Trump Organization for their meal.

I mean, it still could work. Trump is still the President and DOJ, at least, will give some consideration to the attorney-client claims, so long as Rudy and Trump can maintain the illusion that Rudy is and was really doing legal work for the President.

But something that Dowd may not have considered, before he sent a letter to Congress laying out an incestuous nest of ethical atrocities, is that by the time he sent the letter, DiGenova and Toensing were on the record as representing Dmitry Firtash, a Ukrainian oligarch who was named in some of the early search warrants targeting Paul Manafort. And in March, Rudy Giuliani went on the record to explain that Firtash was, “one of the close associates of [Semion] Mogilevich, who is the head of Russian organized crime, who is Putin’s best friend.” Yesterday, Reuters closed the circle, making it clear that Parnas and Fruman work for Firtash, the former as a translator for DiGenova and Toensing’s representation of Firtash.

Firtash, by the way, is in Vienna, where Parnas and Fruman attempted to flee and where the President’s lawyer was planning to meet them a day later.

Thus, when Dowd wrote Congress, explaining that Rudy worked for both Trump and the Ukrainian grifters, and the Ukrainian grifters worked for DiGenova and Toensing, he was asserting that the President is a participant in an ethical thicket of legal representation with a mob-linked Ukrainian oligarch fighting extradition (for bribery) to the United States. And all of that, Dowd helpfully made clear, related to this Ukraine scandal (otherwise he could not have invoked privilege for it).

In other words, the President’s former lawyer asserted to Congress that the President and his current lawyer are in some kind of JDA from hell with the Russian mob, almost certainly along with the President’s former campaign manager, who apparently gets consulted (via Kevin Downing) on these matters in prison.

If that weren’t all overwhelming enough, there’s one more twist.

The reason Rudy was emphasizing the mob ties of his current partner in crime lawyering, Dmitry Firtash, back in March is because the President’s former former lawyer, Michael Cohen, shared a lawyer at the time with Firtash, Lanny Davis. Davis, the Democratic version of Paul Manafort, is every bit as sleazy as him (which should have been a huge red flag when Davis was parading Cohen around as a big hero). Curiously, at a time when Davis was also representing Firtash and Cohen was furiously trying to come up with some incriminating evidence he could tell prosecutors that might keep him out of jail, Cohen apparently didn’t mention Ukraine at all. Now, the lawyer that Cohen used to but no longer shares with Firtash claims he has some insight onto these Ukrainian dealings. That’s likely just a desperate effort to stay relevant. But who knows?

Until then, John Dowd’s desperate attempt to make this scandal go away the same way he made the Russia scandal go away (if you pretend they’re not actually all the same scandal and thus even the past JDA strategy may end up failing) at the same time involved admitting, in a letter to Congress, that his former client and his then current not-yet-but-soon-to-be-indicted clients are in a Joint Defense Agreement with the Russian mob.

Don’t take my word for it. Take John Dowd’s legal representation to Congress.

As Democrats Entertain a Ukraine-Only Impeachment, Jack Goldsmith Lays Out Import of Impeaching for Clemency Abuse

As June Bug the Terrorist Foster Dog and I drove the last leg of our epic road trip over the last few days, I listened to Jack Goldsmith’s book on his stepfather, Chuckie O’Brien, In Hoffa’s Shadow: A Stepfather, a Disappearance in Detroit, and My Search for the Truth.

It’s a fascinating book I’m pondering how to write about: Imagine a book written by a top surveillance lawyer describing how he learned things his beloved stepfather was lying about by reading old FBI transcripts of wiretaps targeted at top mobsters.

The entire point of the book is to exonerate O’Brien of any role in Jimmy Hoffa’s murder, and it fairly convincingly does that. As Goldsmith describes, the FBI admitted privately to him that they belatedly realized his father couldn’t have had a role in Hoffa’s disappearance, but because the FBI is the FBI, they refused to state that in an official letter (though it was Barb McQuade, then as Detroit’s US Attorney, who made the final call).

But in Goldsmith’s effort to exonerate his step-father on the Hoffa murder, he implicates him in a shit-ton of other crimes … including being the bagman for a $1 million bribe to Richard Nixon so he would commute Hoffa’s sentence for jury tampering (which Chuckie was also a key player in). Here’s how Goldsmith describes O’Brien’s claims about the payoff.

Chuckie nonetheless insists there was a payoff. And he says he was the delivery boy.

Chuckie told me that in early December 1971, he received a telephone call in Detroit from Fitzsimmons’s secretary, Annie. “Mr. Fitzsimmons would like to see you,” she said. Chuckie got on the next plane, flew to Washington, and went straight to Hoffa’s former office at the foot of Capitol Hill. After small talk, Fitzsimmons got to the point. “He’s coming home, and it’s going to cost this much,” Fitzsimmons whispered to Chuckie, raising his right index finger to indicate $1 million. “There will be a package here tomorrow that I want you to pick up and deliver.”

The following afternoon, Annie called Chuckie, who was staying at a hotel adjacent to the Teamsters headquarters near the Capitol building. “Mr. Fitzsimmons asked me to tell you that you left your briefcase in his office,” she said. Chuckie had not left anything in Fitzsimmons’s office, but he quickly went there. Fitzsimmons was not around, but Annie pointed Chuckie to a leather litigation bag next to Fitzsimmons’s desk—a “big, heavy old-fashioned briefcase,” as Chuckie described it. Chuckie picked up the bag, and Annie handed him an envelope. Inside the envelope was a piece of paper with “Madison Hotel, 7 p.m.” and a room number written on it.

It was about 5:00 p.m., and Chuckie took the bag to his hotel room. He had delivered dozens of packages during the past two decades, no questions asked, mostly for Hoffa, sometimes for Giacalone, and very occasionally for Fitzsimmons. But this time was different. Chuckie knew of the strain between Fitzsimmons and Hoffa. He wasn’t sure what game Fitzsimmons was playing, especially since Hoffa had not at this point discussed a payoff with him. Chuckie was anxious about what he was getting into. And so he did something he had never done before: he opened the bag.

“I wanted to see what was in the briefcase,” Chuckie told me. “I didn’t trust these motherfuckers. I needed to look; it could have been ten pounds of cocaine in there and the next thing I know a guy is putting a handcuff on me.”

What Chuckie saw was neatly stacked and tightly wrapped piles of one-hundred-dollar bills. He closed the bag without counting the money.

The Madison Hotel, where Chuckie was supposed to deliver the bag, was two miles away, six blocks north of the White House. It “was a very famous hotel” in the early seventies, a place where “political big wheels” and “foreign dignitaries” stayed, Chuckie told me. At about 6:45 p.m., Chuckie took a taxi to the Madison, went to the designated floor, walked to the room (he doesn’t remember the number), and knocked on the door. A man opened the door from darkness. Chuckie stepped in one or two feet. He sensed that the room was a suite, but could not tell for sure.

“Here it is,” Chuckie said, and handed over the bag.

“Thank you,” said the man. Chuckie turned and left. That was it. The whole transaction, from the time he left his hotel to the delivery on the top floor of the Madison, took less than twenty minutes. The actual drop was over in seconds.

If O’Brien is telling the truth, it means that in addition to locking in Teamster support for 1972, Nixon got a chunk of money for the election (just as Trump just hit up Wayne LaPierre for fundraising support in exchange for killing gun control).

Goldsmith’s step-father claims that the money for the payoff came directly from Hoffa — but he either didn’t know or wouldn’t say whom he delivered it to.

“Where did the money come from?” I asked. “From the Old Man,” Chuckie answered. “Through Allen Dorfman. It was the Old Man’s money. Dorfman had a lot of his money. Fitz wouldn’t give you a dime if you were dying.”

[snip]

“Did Fitz tell you who you were delivering the bag to?” I asked. “No. I took the fucking briefcase to where it’s supposed to go, I never asked any questions. You never ask, Jack.”

This is something that John Mitchell lied about to prosecutors, just as the stories of Rudy Giuliani and Jay Sekulow regarding the pardons they’ve negotiated with Russian investigation witnesses don’t hold up.

Since that time, presidential abuses of pardons have only gotten worse. Say what you will about the Marc Rich pardon (and I agree it was ridiculous), both Poppy Bush (Cap Weinberger) and W (Scooter Libby) provided clemency to witnesses to silence them about actions of the Bush men. Bill Barr was a key player in the Poppy pardons, and he seems all too willing to repeat the favor for Trump.

Until Congress makes reining in the abuse of executive clemency a priority, the claim that no one is above the law will be a pathetic joke. Plus, there are at least allegations that Trump’s effort to dig up Ukrainian dirt stemmed from an effort to make pardoning Paul Manafort easier. And the Ukraine corruption involves someone — Rudy — who was intimately involving in bribing witnesses with pardons in the past.

More generally, any decision to narrowly craft impeachment would be catastrophically stupid, not least because other impeachable acts — such as Trump’s treatment of migrants — will be far more motivating to Democratic voters than Ukraine. But to leave off Trump’s abuse of the pardon power would be a historic failure.

Congress Already Has Evidence Trump Lied Under Oath to Robert Mueller

I laid out what follows in this post, but given that the NYT’s weak questions for Robert Mueller exhibit ignorance on this point, I’m going to make this more explicit.

In a useless question designed to get Mueller to characterize Trump’s answers to the Special Counsel’s questions, the NYT asked whether the responses were “candid.”

In general, virtually all of Trump’s answers not only lacked candor, they were downright obnoxious. But on the topic of the Trump Tower Moscow project, Trump’s answers are not just insolent, they are lies.

One paragraph of his answers about it — submitted after Michael Cohen started cooperating but before Cohen’s plea deal regarding his lies to Congress — reads, [I’ve numbered the claims as reference points for the discussion that follows.]

I had [1] few conversations with Mr. Cohen on this subject. As I recall, they were brief, and [5] they were not memorable. I was not enthused about the proposal, and [2] I do not recall any discussion of travel to Russia in connection with it. I do not remember discussing it with anyone else at the Trump Organization, although it is possible. I do not recall being aware at the time of any communications between Mr. Cohen or Felix Sater and [3] any Russian government official regarding the Letter of Intent. In the course of preparing to respond to your questions, I have become aware that [4] Mr. Cohen sent an email regarding the Letter of Intent to “Mr. Peskov” at a general, public email account, which should show there was no meaningful relationship with people in power in Russia. I understand those documents already have been provided to you.

In that answer, Trump replicates three claims that match Michael Cohen’s statement to Congress but that Cohen swore under oath were lies in his plea agreement:

  1. The Moscow Project ended in January 2016 and was not discussed extensively with others in the Company. … To the best of my knowledge , [Individual l] was never in contact with anyone about this proposal other than me on three occasions.
  2. COHEN never agreed to travel to Russia in connection with the Moscow Project and “never considered” asking Individual 1 to travel for the project.
  3. COHEN did not recall any Russian government response or contact about the Moscow Project.

Cohen’s statement claimed he discussed this just three times with Trump; Trump claimed he only had a “few” such conversations rather than the ten Cohen would later admit to. Cohen’s statement claimed no one ever discussed traveling to Russia; Trump claimed not to recall any discussion of travel to Russia, even though he told Cohen to consult with Corey Lewandowski about when he could take such a trip. Cohen’s statement disclaimed any Russian government response to the Letter of Intent; Trump claimed the only contact with the Russian government was an unanswered letter to Peskov’s public line, rather than the email response from Elena Poliakova that led to a 20 minute conversation that Cohen described to Trump immediately after it finished.

In all three of those statements, then, Trump hewed to the false statement Jay Sekulow helped Cohen write.

That said, Trump made assertions about those three topics in such a way as to claim he didn’t remember the things Cohen remembered in his proffer sessions with Mueller. So as far as those answers go, Trump is covered legally, even if it is more clear these are lies than some of his other non-responsive answers.

Not so Trump’s claim that Cohen’s only contact with Dmitry Peskov was via “a general, public email account” [marked 4, above]. Mueller obtained the January 20, 2016 email response from Peskov’s assistant, Elena Poliakova, asking Cohen to call her. By itself, that email is proof there was a response from the Russian government (though not an obvious one; she wrote it from her personal email account).

Per Cohen’s congressional testimony, the email formed part of the Mueller interviews with Cohen.

O Do you have a copy of this January 20th, 2016, email from Elena Poliyakova (ph)?

A I do not.

Q When was the last time you saw a copy of this email?

A Again, at one of the hearings that I attended.

Q With the special counsel’s office?

A I believe so, yes.

This email is one of the reasons I’m so interested in the fact that Mueller obtained Cohen’s Trump Organization emails from Microsoft, and only subpoenaed Trump Organization the following year for such things: because Mueller obtained this email, Congress (apparently) did not receive it in response to a subpoena, and Trump’s lawyers continued to deny the existence of it in November 2018. That suggests Trump’s lawyers continued to hide the existence of this email, even in preparing the President’s lawyers to write answers to Mueller’s questions.

(Note: given Don Jr’s reluctance to testify to Mueller but his willingness to testify to Congress, it’s possible there are damning emails involving him obtained from Microsoft that Trump Organization withheld from Congress, as well.)

Still, thus far, Trump could blame his faulty memory and his lawyers for the inaccuracies of his sworn answers to Mueller.

Not so after his public statements in the wake of Cohen’s plea, as Mueller laid out in his report, pointing to the same paragraph I’ve analyzed above.

On November 20, 2018, the President submitted written responses that did not answer those questions about Trump Tower Moscow directly and did not provide any information about the timing of the candidate’s discussions with Cohen about the project or whether he participated in any discussions about the project being abandoned or no longer pursued. 1049 Instead, the President’s answers stated in relevant part:

I had few conversations with Mr. Cohen on this subject. As I recall; they were brief, and they were not memorable. I was not enthused about the proposal, and I do not recall any discussion of travel to Russia in connection with it. I do not remember discussing it with anyone else at the Trump Organization, although it is possible. I do not recall being aware at the time of any communications between Mr. Cohen and Felix Sater and any Russian government official regarding the Letter of Intent. 1050

On November 29, 2018, Cohen pleaded guilty to making false statements to Congress based on his statements about the Trump Tower Moscow project. 1051 In a plea agreement with this Office, Cohen agreed to “provide truthful information regarding any and all matters as to which this Office deems relevant.”1052 Later on November 29, after Cohen’s guilty plea had become public, the President spoke to reporters about the Trump Tower Moscow project, saying:

I decided not to do the project. . . . I decided ultimately not to do it. There would have been nothing wrong if I did do it. If I did do it, there would have been nothing wrong. That was my business …. It was an option that I decided not to do …. I decided not to do it. The primary reason . . . I was focused on running for President. . . . I was running my business while I was campaigning. There was a good chance that I wouldn’t have won, in which case I would’ve gone back into the business. And why should I lose lots of opportunities? 1053 [my empahsis]

[snip]

In light of the President’s public statements following Cohen’s guilty plea that he “decided not to do the project,” this Office again sought information from the President about whether he participated in any discussions about the project being abandoned or no longer pursued, including when he “decided not to do the project,” who he spoke to about that decision, and what motivated the decision. 1057 The Office also again asked for the timing of the President’s discussions with Cohen about Trump Tower Moscow and asked him to specify “what period of the campaign” he was involved in discussions concerning the project. 1058 In response, the President’s personal counsel declined to provide additional information from the President and stated that “the President has fully answered the questions at issue.” 1059

1053 President Trump Departure Remarks, C-SPAN (Nov. 29, 2018). In contrast to the President’s remarks following Cohen’s guilty plea, Cohen’s August 28, 2017 statement to Congress stated that Cohen, not the President, “decided to abandon the proposal” in late January 2016; that Cohen “did not ask or brief Mr. Trump … before I made the decision to terminate further work on the proposal”; and that the decision · to abandon the proposal was “unrelated” to the Campaign. P-SCO-000009477 (Statement of Michael D. Cohen, Esq. (Aug. 28, 2017)).

1057 1/23/19 Letter, Special Counsel’s Office to President’s Personal Counsel.

1058 1/23/ 19 Letter, Special Counsel’s Office to President’s Personal Counsel.

1059 2/6/ l 9 Letter, President’s Personal Counsel to Special Counsel’s Office.

As Mueller pointed out in footnote 1053, Trump’s comments to the press conflict in significant ways with Cohen’s statement to Congress, in that they show the project continued past January and that the decision to end it related to the campaign.

Unstated here — but almost certainly the reason why Mueller went back to Trump after these comments (and Rudy Giuliani’s comments admitting the deal continued all the way to the election) — is that by stating that “I decided” even while justifying continuing to pursue the deal during the campaign because, “why should I lose lots of opportunities,” Trump is admitting that he recalls the discussions about the deal and was enthusiastic about it [marked with 5 above].

Trump’s sworn answer to Mueller is that these conversations were not memorable and he was not enthused about the project. But even after submitting those sworn statements, Trump went on TV and described remembering precisely what happened and decribed the deal as an opportunity he didn’t want to lose.

Effectively, those statements amounted to Trump going on TV and admitting he lied under oath to Mueller.

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. 

Jim Jordan’s Bubble Has Allowed Him to Remain Painfully Stupid about the Mueller Investigation

Politico has a piece on Republican plans to blow up Robert Mueller’s testimony later this month with stupid questions. It’s a fair piece; it even quotes Louie Gohmert calling Mueller an asshole, in as many words.

The Texas congressman added that his reading of the special counsel’s report did little to temper his long history of animosity for the former FBI director: “It reinforced the anal opening that I believe Mueller to be.”

But it misses an opportunity when it presents what Jim Jordan imagines will be a doozy of a question with only a minimal fact check.

But Republicans preparing over the next two-plus weeks to questionMueller say they have their own points they hope to drive home to Americans as well. Several indicated they intend to press Mueller on when he first determined he lacked evidence to charge Americans with conspiring with Russia — insinuating, without evidence, that he allowed suspicions to linger long after he had shifted his focus to the obstruction of justice investigation.

“The obvious question is the one that everyone in the country wants to know: when did you first know there was no conspiracy, coordination or collusion?” said Jordan, one of the Republicans’ fiercest investigators. “How much longer did it take Bob Mueller to figure that out? Did he intentionally wait until after 2018 midterms, or what?”

Mueller emphasized in his report that he did not make a finding on “collusion,” since it’s not a legal term, and that his decision not to bring charges didn’t mean he found no evidence of them.

If Jim Jordan, who has been spending most of his time as a legislator in the last year investigating this investigation, were not so painfully stupid, he would know not only that not “everyone in the country” feels the need to know when Mueller finalized a decision about conspiracy, but that attentive people already do know that Bob Mueller wasn’t the one who decided to wait out the mid-terms.

The Mueller team told Amy Berman Jackson that Paul Manafort had breached his plea agreement on November 26, 2018. His last grand jury appearance — on November 2 — did not show up in his breach discussion (meaning he may have told the truth, including about Trump’s personal involvement in optimizing the WikiLeaks releases). But in his October 26 grand jury appearance, he tried to hide the fact that he continued to pursue a plan to carve up Ukraine well into 2018, and continued to generally lie about what that plan to carve up Ukraine had to do with winning Michigan and Wisconsin, such that Manafort took time away from running Trump’s campaign on August 2, 2016 to discuss both of them with his co-conspirator Konstantin Kilimnik. Mueller never did determine what that August 2 meeting was about or what Kilimnik and Viktor Boyarkin did with the Trump polling data Manafort was sharing with them. But the delay in determining that Manafort’s obstruction had succeeded was set by Manafort, not Mueller.

And until November 26, prosecutors still hoped to get Jerome Corsi to stop lying to them about how he and Roger Stone got advanced notice of John Podesta’s stolen emails — to say nothing about why Stone was talking to someone “about phishing with John Podesta.” Indeed, the government obtained a search warrant against Stone in February 2019 — possibly the one on February 13 to search multiple devices  — to investigate hacking allegations. If that warrant is the February 2019 one targeting Stone, the devices likely came in the search of his homes on January 25 of this year.

Meanwhile, Donald Trump refused to answer questions — all the questions he answered were about conspiracy, and most of his answers were non-responsive — until November 20, 2018. His answers about the Trump Tower Moscow deal were worse than non-responsive: they replicated the lies for which Michael Cohen is currently sitting in prison. Then, in December and January, Trump and Rudy Giuliani made comments that made it clear Trump’s answers were willful lies. Mueller offered Trump the opportunity to clarify his testimony, but he declined.

In light of the President’s public statements following Cohen’s guilty plea that he “decided not to do the project,” this Office again sought information from the President about whether he participated in any discussions about the project being abandoned or no longer pursued, including when he “decided not to do the project,” who he spoke to about that decision, and what motivated the decision. 1057 The Office also again asked for the timing of the President’s discussions with Cohen about Trump Tower Moscow and asked him to specify “what period of the campaign” he was involved in discussions concerning the project. 1058 In response, the President’s personal counsel declined to provide additional information from the President and stated that “the President has fully answered the questions at issue.” 1059

1057 1/23/19 Letter, Special Counsel’s Office to President’s Personal Counsel.

1058 1/23/ 19 Letter, Special Counsel’s Office to President’s Personal Counsel.

1059 2/6/ l 9 Letter, President’s Personal Counsel to Special Counsel’s Office.

In short, the public record makes it clear that the answer to Jordan’s question — when Mueller made a determination about any conspiracy charges — could not have happened until after the election. But the person who dictated that timing, more than anyone else, was Trump himself, who was refusing to tell the truth to Mueller as recently as February 6.

This is all in the public record (indeed, Trump’s role in the delay is described in the Mueller Report, which Jordan might have known had he read it). The fact that Jordan doesn’t know the answer — much less believes that his already-answered question is a zinger — is a testament to what a locked bubble he exists in, where even the most basic details about the investigation itself, rather than the fevered dreams Jordan has about it, don’t seep in.

Jordan should branch out beyond the spoon-fed journalists from whom he got this question, because even in its original incarnation, the question was utterly inconsistent with the public record.

When did you determine that there was no conspiracy between the Trump campaign and Russia?

Some congressional Republicans have asserted that Mueller figured out early on in his investigation — which started on May 17, 2017 — that there was no conspiracy or collusion between the Trump campaign and Russian government.

Mueller’s report said that prosecutors were unable to establish that the campaign conspired with Russia, but the report did not go into detail about when that conclusion was reached.

Don’t get me wrong: I’m sure Jordan is going to pose unanswerable questions that will feed conspiracists (which is one of the reasons I was somewhat sympathetic for Mueller’s preference for a closed hearing). But it’s only within the closed bubble that can’t be pierced by obvious facts that such questions are legitimate questions.

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. 

Jay Sekulow Seems Worried that Trump’s “Collusion” Is Visible from Space

Donald Trump’s defense team must believe he’s in the clear, because they’ve gone back to their previous hobbies: Rudy Giuliani’s been engaging in international graft, and Jay Sekulow has been hunting for conspiracy theories in FOIA searches.

In one of two recent FOIA conspiracy efforts, Sekulow obtained documents pertaining to EO 12333 sharing rules passed in the last days of the Obama Administration. While the sharing rules explicitly prohibit disseminations “for the purpose of affecting the political process in the United States,” I did note at the time would enable the FBI to obtain more information on Russian targets.

One of the documents liberated by Sekulow includes a bullet point that reads,

The time spent by our staffs on crafting the document, the significance of these procedures to intelligence integration, and the level of public interest in their completion all contribute to my personal interest in having procedures signed by the Attorney General before the conclusion of the Administration.

Another is an email from James Clapper’s General Counsel, Bob Litt, saying, “Really really want to get this done .. and so does the Boss.”

From that, Sekulow claims that the sharing rules — an effort that started under Trump ally Michael Mukasey and which, as an EO, Trump could change at will — are part of a Deep State plot to spy on Trump.

Consider what we now know about the nature and degree of Deep State opposition to President Trump.

There have been public revelations about the infamous disgrace known as the Steele dossier, a report by a former British spy funded by the Hillary Clinton campaign that made false and baseless allegations against presidential candidate Trump.

There were also documented abuses of the Foreign Intelligence Surveillance Act that led to an FBI investigation – codenamed Crossfire Hurricane – of possible ties between the Trump presidential campaign and Russia. Special Counsel Robert Mueller later concluded after an exhaustive investigation lasting nearly two years that the Trump campaign did not conspire with Russia to advance Trump’s election chances.

We are also now aware of Director of National Intelligence Clapper’s open hostility to President Trump and intentional leaking by senior law enforcement and intelligence officials who were also hostile to Trump.

All of these facts point to a coordinated effort across agencies during the Obama administration to oppose the incoming Trump administration.

What’s utterly drop dead hysterical, however, is something else one document liberated by the Commander-in-Chief’s personal attorney reveals. It describes what agency is most anxious to start getting NSA’s data: the National Geospatial-Intelligence Agency.

Several Intelligence Community elements, including the Defense Intelligence Agency and the National Geospatial-Intelligence Agency, have identified missions that would benefit from access to NSA [redacted]. NSA also supports the procedures.

In other words, the changes that Sekulow are sure came about to spy on Trump were done, in large part, for the benefit of the agency that engages in our satellite collection.

Which must mean that the President’s personal defense attorney worries that his “collusion” is visible from space.

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. 

Michael Cohen’s HPSCI Testimony Proves Trump Lied in his Answers to Mueller

Yesterday, the House Intelligence Committee released transcripts of Michael Cohen’s February 28 and March 6 testimony before the committee. Together they’re utterly damning for a bunch of reasons:

  • GOPers (with former US Attorney John Ratcliffe incompetently replacing Trey Gowdy as their designated “adult”) thought they could prove that Cohen hadn’t been offered a pardon, but proved the opposite; on top of looking like blithering idiots, it basically put them in the position of laying out proof of — then shrugging away — crime after Trump crime
  • As I anticipated at the time, Cohen makes clear that any Joint Defense Agreement involving him lasted only so long as Trump believed Cohen could hurt him
  • On top of providing details about the editing of his false statement, Cohen lays out how in conversations before the first draft, Jay Sekulow got him to shorten the timeframe of the Moscow Trump Tower deal
  • Cohen confirmed that — as I laid out in January — there was a gap in the documents shared with HPSCI necessary to sustain the false story

Perhaps most surprising, though, Cohen’s testimony establishes that Trump lied to Robert Mueller in his sworn answers.

Trump’s responses on Trump Tower questions were the least responsive of his many non-responsive answers

Far too little attention has been focused on Trump’s downright contemptuous responses to Mueller’s questions, many of which conflict with the testimony of numerous loyal Trump people. Worst of all were Trump’s response to seven questions on the Trump Tower deal.

a. In October 2015, a “Letter of Intent,” a copy of which is attached as Exhibit B, was signed for a proposed Trump Organization project in Moscow (the “Trump Moscow project”).

i. When were you first informed of discussions about the Trump Moscow project? By whom? What were you told about the project?

ii. Did you sign the letter of intent?

b. In a statement provided to Congress, attached as Exhibit C, Michael Cohen stated: “To the best of my knowledge, Mr. Trump was never in contact with anyone about this proposal other than me on three occasions, including signing a non-binding letter of intent in 2015.” Describe all discussions you had with Mr. Cohen, or anyone else associated with the Trump Organization, about the Trump Moscow project, including who you spoke with, when, and the substance of the discussion(s).

c. Did you learn of any communications between Michael Cohen or Felix Sater and any Russian government officials, including officials in the office of Dmitry Peskov, regarding the Trump Moscow project? If so, identify who provided this info1mation to you, when, and the substance of what you learned.

d. Did you have any discussions between June 2015 and June 2016 regarding a potential trip to Russia by you and/or Michael Cohen for reasons related to the Trump Moscow project? If yes, describe who you spoke with, when, and the substance of the discussion(s).

e. Did you at any time direct or suggest that discussions about the Trump Moscow project should cease, or were you informed at any time that the project had been abandoned? If yes, describe who you spoke with, when, the substance of the discussion(s), and why that decision was made.

f. Did you have any discussions regarding what information would be provided publicly or in response to investigative inquiries about potential or actual investments or business deals the Trump Organization had in Russia, including the Trump Moscow project? If yes, describe who you spoke with, when, and the substance of the discussion(s).

g. Aside from the Trump Moscow project, did you or the Trump Organization have any other prospective or actual business interests, investments, or arrangements with Russia or any Russian interest or Russian individual during the campaign? If yes, describe the business interests, investments, or arrangements.

In response, Trump wrote three paragraphs.

Response to Question III, Parts (a) through (g)

Sometime in 2015, Michael Cohen suggested to me the possibility of a Trump Organization project in Moscow. As I recall, Mr. Cohen described this as a proposed project of a general type we have done in the past in a variety of locations. I signed the non-binding Letter of Intent attached to your questions as Exhibit B which required no equity or expenditure on our end and was consistent with our ongoing efforts to expand into significant markets around the world.

I had few conversations with Mr. Cohen on this subject. As I recall, they were brief, and they were not memorable. I was not enthused about the proposal, and I do not recall any discussion of travel to Russia in connection with it. I do not remember discussing it with anyone else at the Trump Organization, although it is possible. I do not recall being aware at the time of any communications between Mr. Cohen or Felix Sater and any Russian government official regarding the Letter of Intent. In the course of preparing to respond to your questions, I have become aware that Mr. Cohen sent an email regarding the Letter of Intent to “Mr. Peskov” at a general, public email account, which should show there was no meaningful relationship with people in power in Russia. I understand those documents already have been provided to you.

I vaguely remember press inquiries and media reporting during the campaign about whether the Trump Organization had business dealings in Russia. I may have spoken with campaign staff or Trump Organization employees regarding responses to requests for information, but I have no current recollection of any particular conversation, with whom I may have spoken, when, or the substance of any conversation. As I recall, neither I nor the Trump Organization had any projects or proposed projects in Russia during the campaign other than the Letter of Intent.

The first paragraph is factually accurate. The last paragraph is correct (as far as we know) with respect to having no other proposed projects, but is utterly non-responsive to a question about the response to investigative questions (including these ones) regarding the project, in part because Trump only agreed to answer questions pertaining to the campaign period.

The middle paragraph, however, is inconsistent with the documentary record, but consistent with the false statement that Cohen is now sitting in prison for.

After Cohen pled guilty, Mueller offered Trump a chance to correct his testimony, but he refused

Because I get into why that is, consider that, in the wake of Cohen’s plea, Trump admitted to remembering that the deal may have gone through the end of the campaign (the LOI was only withdrawn after the election) and Rudy ran his mouth admitting that the project went through November. In response, Mueller asked follow-up questions.

In light of the President’s public statements following Cohen’s guilty plea that he “decided not to do the project,” this Office again sought information from the President about whether he participated in any discussions about the project being abandoned or no longer pursued, including when he “decided not to do the project,” who he spoke to about that decision, and what motivated the decision. 1057 The Office also again asked for the timing of the President’s discussions with Cohen about Trump Tower Moscow and asked him to specify “what period of the campaign” he was involved in discussions concerning the project. 1058 In response, the President’s personal counsel declined to provide additional information from the President and stated that “the President has fully answered the questions at issue.” 1059

1057 1/23/19 Letter, Special Counsel’s Office to President’s Personal Counsel.

1058 1/23/ 19 Letter, Special Counsel’s Office to President’s Personal Counsel.

1059 2/6/ l 9 Letter, President’s Personal Counsel to Special Counsel’s Office.

On this matter, then, Trump made comments to the public after submitting his responses to Mueller that made it clear his claims to not recall these matters were false. When Mueller gave him the opportunity to fix his testimony, he refused.

Part of Trump’s response exactly replicates the lies Cohen told, in a statement prepared with the input of Jay Sekulow, to Congress

With that in mind, consider the substance of that middle paragraph. It repeats the key lies that Cohen pled guilty to in December:

  • Trump and Cohen only have a few (three) conversations about the deal rather than ten or more
  • Trump did not know of any travel plans to Russia
  • Trump didn’t discuss the project with anyone else at Trump Org, including Ivanka and Don Jr
  • Cohen’s attempt to contact Dmitry Peskov in January 2016 was via a public email address and proved unsuccessful

Compare those lies with the three main lies Cohen pled guilty to.

  • The Moscow Project ended in January 201 6 and was not discussed extensively with others in the Company.
  • COHEN never agreed to travel to Russia in connection with the Moscow Project and “never considered” asking Individual 1 to travel for the project.
  • COHEN did not recall any Russian government response or contact about the Moscow Project.

Not knowing (or caring) that his former fixer was already cooperating with Mueller, Trump repeated precisely the same lies Cohen is now in prison for, did so under oath, and refused to fix those responses when given an opportunity to.

Cohen’s testimony, however, makes these lies even more damning.

The Trump Organization withheld the documents that would have made it clear Cohen was lying from the Committees

Again, as I noted back in January, there is no way that the lies Cohen told SSCI and HPSCI would have been sustainable if the committees had gotten all the documents they asked for. Specifically, three emails referenced in Cohen’s statement of the offense could not have been turned over to the committees without them figuring out he was lying.

On or about January 14, 2016 , COHEN emailed Russian Official 1’s office asking for assistance in connection with the Moscow Project.

On or about January 16, 2016, COHEN emailed Russian Official 1’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 Russian Official 1 (“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.

Cohen’s story (and the one Trump submitted as his sworn testimony) is that he tried emailing Dmitry Peskov’s office just once, and that via a public email address. But as Mueller describes it — citing three emails from Cohen and one response from Peskov’s assistant Elena Poliakova — he wrote one email in which he fat-fingered the address for Peskov’s email, one to the general press line, and a second to Peskov’s email. In response, Poliakova wrote back, stating, “I can’t get through to both your phones. Pls, call me.”

On January 11, 2016, Cohen emailed the office of Dmitry Peskov, the Russian government’s press secretary, indicating that he desired contact with Sergei Ivanov, Putin’s chief of staff. Cohen erroneously used the email address “[email protected]” instead of “Pr [email protected] .ru,” so the email apparently did not go through.346 On January 14, 2016, Cohen emailed a different address ([email protected]) with the following message:

Dear Mr. Peskov, Over the past few months, I have been working with a company based in Russia regarding the development of a Trump Tower-Moscow project in Moscow City. Without getting into lengthy specifics, the communication between our two sides has stalled. As this project is too important, I am hereby requesting your assistance. I respectfully request someone, preferably you; contact me so that I might discuss the specifics as well as arranging meetings with the appropriate individuals. I thank you in advance for your assistance and look forward to hearing from you soon.347

Two days later, Cohen sent an email to [email protected], repeating his request to speak with Sergei Ivanov.348 Cohen testified to Congress, and initially told the Office, that he did not recall receiving a response to this email inquiry and that he decided to terminate any further work on the Trump Moscow project as of January 2016. Cohen later admitted that these statements were false. In fact, Cohen had received (and recalled receiving) a response to his inquiry, and he continued to work on and update candidate Trump on the project through as late as June 2016.349

On January 20, 2016, Cohen received an email from Elena Poliakova, Peskov’s personal assistant. Writing from her personal email account, Poliakova stated that she had been trying to reach Cohen and asked that he call her on the personal number that she provided.350 Shortly after receiving Poliakova’s email, Cohen called and spoke to her for 20 minutes.351

346 1/11/16 Email, Cohen to [email protected] (9: 12 a.m.).

347 1/14/16 Email, Cohen to [email protected] (9:21 a.m.).

348 1/16/16 Email, Cohen to [email protected] (10:28 a.m.).

349 Cohen Information ,i,i 4, 7. Cohen’s interactions with President Trump and the President’s lawyers when preparing his congressional testimony are discussed further in Volume II. See Vol. II, Section 11.K.3, infra.

350 1/20/1 6 Email, Poliakova to Cohen (5 :57 a.m.) (“Mr. Cohen[,] I can’t get through to both your phones. Pis, call me.”).

351 Telephone records show a 20-minute call on January 20, 2016 between Cohen and the number Poliakova provided in her email. Call Records of Michael Cohen After the call, Cohen saved Poliakova’s contact information in his Trump Organization Outlook contact list. 1/20/16 Cohen Microsoft Outlook Entry (6:22 a.m.).

The Poliakova email, by itself, would prove all the claims that Cohen got no response to be false.

As Cohen explained it, since he was no longer at Trump Organization anymore, he had to rely on Trump Org lawyers (probably Alan Garten) to comply with discovery requests. That probably means Garten is responsible for withholding the emails — particularly the Poliakova one — not just from Congress, but from Cohen.

Q Now, in your February 28th interview before this committee you mentioned that Alan Futerfas and Alan Garten, the two lawyers who were tied to The Trump Organization, were responsible for the document production that you produced to the committee in response to this committee’s May of 2017 subpoena. ls that accurate?

A That’s accurate.

[snip]

Q Do you have any information about why The Trump Organization would have withheld from this committee production of the January 141h, 2016, email from you to Peskov’s office?

A I do not.

Q Same question as to the January 161h, 2016, email from you to Peskov’s office regarding Sergei lvanov?

A I also do not.

Q Same question with regards to the January 20th,2016, email from Elena Poliyakova (ph)?

A I do not

THE CHAIRMAN: Mr. Cohen, what Mr. Mitchell is asking about is you’ve testified that the members of the joint defense agreement were aware that the written testimony that you were going to give to this committee was false. Documents that would have contradicted that timeline, namely, the three that Mr. Mitchell just referenced, were not produced to this committee. ls there any insight you can shed as to who might have been involved in withholding documentary evidence that would have contradicted your written false testimony?

MR. COHEN: Again, it would be other members of the joint defense team, but specifically at The Trump Organization level.

For reasons I’ll return to, Cohen was one of the only Trump people who got subpoenaed and therefore whose document compliance would be legally binding. But that means that Trump Org failed to comply with a subpoena issued not by Adam Schiff, but by Devin Nunes.

Cohen didn’t talk about these emails with Joint Defense Agreement lawyers, but he talked about the Poliakova one (and the follow-up call) with Trump

All that’s damning enough, especially since Trump claimed to Mueller that the documents turned over to his office would match his story (this is not the only sworn response where Trump falsely claimed the documentary record matches his testimony).

All the more so, though, because Trump is the one person that Cohen spoke to at Trump Org about receiving this Poliakova email (in addition to Felix Sater, who wrote the next day to say Putin’s office had contacted him, seemingly in response).

Indeed, immediately after his call with Poliakova, Cohen talked to Trump about how well versed she was on issues that mattered for their deal.

Q At what time did you speak to anyone at The Trump Organization about this email?

A About this specific email? I did not

Q Never?

A No. Well, actually, I apologize, that’s not true, I spoke to Mr. Trump about it.

Q When was that?

A That was after I had spoken to Ms. Poliyakova (ph).

[snip]

THE CHAIRMAN: And did I hear you to say that you spoke to Mr. Trump about your conversation with Mr. Peskov’s office?

MR. COHEN: Yes, with Ms. Poliyakova (ph).

THE CHAIRMAN: And was the conversation you had with Mr. Trump about that conversation with Ms. Poliyakova (ph) in person or by phone?

MR. COHEN: lt was in person.

THE CHAIRMAN: And how soon after your conversation with her on the phone did that take place?

MR. COHEN: Right afterwards.

THE CHAIRMAN: Can you tell us about the conversation you had with Ms Poliyakova (ph)?

MR. COHEN: I just found that she was very professional and her questions regarding the project were insightful. As an assistant, I was impressed, and I just made mention to him that I had spoken to an assistant for Peskov, and I was, again, incredibly impressed with her line of questioning regarding the project. And I made mention how nice it would be to have an assistant who asked such pertinent questions.

[snip]

THE CHAIRMAN: And by the detailed nature of her questions, you could tell that they knew a great deal about the project?

MR. COHEN: Yes.

THE CHAIRMAN: And what kind of questions did she have for you about the project?

MR. COHEN: The areas that obviously we would want to be building in. I don’t want to try to recollect the specific questions, but there were just very profess — they were very professional, talking about like the size of the project, the scope, length of time, where the construction crews were going to come from. I mean, it was a pretty insightful conversation.

Even if you buy that Trump forgot this conversation and the other seven he claims to have forgotten about a deal he very much wanted, you still need to explain why his responses, which allegedly account for the documentary evidence, nevertheless repeat the story that Cohen told based on a documentary record that Trump lawyers ensured was incomplete.

Given the great lengths Trump went to to not answer any of Mueller’s questions, it would take some doing for him to tell a demonstrable lie.

But he did just that with regards to the Trump Tower meeting — and refused to fix his testimony after he made it clear, publicly, that he had lied.

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 Significance of Trump’s Obstruction of Investigation of His Family’s Campaign Finance Crimes, Plural

In the Barr Memo usurping Congress’ role in determining whether the evidence presented in the Mueller Report amounts to obstruction, he based a lot of his judgment finding no obstruction on the fact that Mueller “did not establish” that Trump and his campaign conspired with Russia.

In making this determination, we noted that the Special Counsel recognized that “the evidence does not establish that the President was involved in an underlying crime related to Russian election interference,” and that, while not determinative, the absence of such evidence bears upon the President’s intent with respect to obstruction.

The line is unbelievably cynical for several reasons. First, right at the beginning of the report, Mueller points out that his use of “did not establish” does not mean “there was no evidence.”

A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.

Yet in spite of that warning, Barr nevertheless claims that Mueller’s observation that he did not establish Trump’s involvement in a crime related the Russia’s election interference amounts to an “absence of such evidence.”

Moreover, Barr takes that quote out of the context of Mueller’s discussions about the corrupt motives that Trump might have to obstruct the investigation. (I’ve bolded the actual sentence Barr quotes, but included both of Mueller’s discussions of Trump’s implication in potential crimes.)

In addition, the President had a motive to put the FBI’s Russia investigation behind him. The evidence does not establish that the termination of Comey was designed to cover up a conspiracy between the Trump Campaign and Russia: As described in Volume I, the evidence uncovered in the investigation did not establish that the President or those close to him were involved in the charged Russian computer-hacking or active-measure conspiracies, or that the President otherwise had an unlawful relationship with any Russian official. But the evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns. Although the President publicly stated during and after the election that he had no connection to Russia, the Trump Organization, through Michael Cohen, was pursuing the proposed Trump Tower Moscow project through June 2016 and candidate Trump was repeatedly briefed on the progress of those efforts.498 In addition, some witnesses said that Trump was aware that [redacted] at a time when public reports stated that Russian intelligence officials were behind the hacks, and that Trump privately sought information about future WikiLeaks releases.499 More broadly, multiple witnesses described the President’s preoccupation with press coverage of the Russia investigation and his persistent concern that it raised questions about the legitimacy of his election.500

[snip]

Second, many obstruction cases involve the attempted or actual cover-up of an underlying crime. Personal criminal conduct can furnish strong evidence that the individual had an improper obstructive purpose, see, e.g. , United States v. Willoughby, 860 F.2d 15, 24 (2d Cir. 1988), or that he contemplated an effect on an official proceeding, see, e.g., United States v. Binday, 804 F.3d 558, 591 (2d Cir. 2015). But proof of such a crime is not an element of an obstruction offense. See United States v. Greer, 872 F.3d 790, 798 (6th Cir. 2017) (stating, in applying the obstruction sentencing guideline, that “obstruction of a criminal investigation is punishable even if the prosecution is ultimately unsuccessful or even if the investigation ultimately reveals no underlying crime”). Obstruction of justice can be motivated by a desire to protect non-criminal personal interests, to protect against investigations where underlying criminal liability falls into a gray area, or to avoid personal embarrassment. The injury to the integrity of the justice system is the same regardless of whether a person committed an underlying wrong. In this investigation, the evidence does not establish that the President was involved in an underlying crime related to Russian election interference. But the evidence does point to a range of other possible personal motives animating the President’s conduct. These include concerns that continued investigation would call into question the legitimacy of his election and potential uncertainty about whether certain events-such as advance notice of WikiLeaks’s release of hacked information or the June 9, 2016 meeting between senior campaign officials and Russians could be seen as criminal activity by the President, his campaign, or his family.

In both of these discussions, Mueller suggests that Trump may have believed his orders to Roger Stone to optimize WikiLeaks’ releases might be a crime when he obstructed the investigation; and in the discussion Barr extracts the quote from, he also suggests that Trump may have believed the June 9 meeting amounted to a crime.

The former is important given that Trump blatantly lied in his responses to Mueller about talking to Stone about his efforts to optimize WikiLeaks releases, even though at least three witnesses say he did. The prosecutorial decision with regards to WikiLeaks spans Volume I pages 176 to 179, but aside from a footnote explaining why they didn’t charge WikiLeaks for trafficking in stolen property, it is entirely redacted. The prosecutorial decision on Stone optimizing the release of stolen documents spans 188 to 190; it is also largely redacted, though it’s clear there were First Amendment concerns about pursuing it. Note that prosecutors continue to investigate Stone.

By contrast, the discussion of Mueller’s decision not to charge the June 9 meeting as a campaign finance violation is not redacted. Ultimately, Mueller’s team decided not to prosecute it because they did not have admissible evidence that Don Jr and the others knew taking the meeting and the offered dirt was illegal (which raises questions about whether they have hearsay or SIGINT suggesting they did), and because they had a hard time placing a value on the information offered.

The Office considered whether to charge Trump Campaign officials with crimes in connection with the June 9 meeting described in Volume I, Section IV.A.5, supra. The Office concluded that, in light of the government’s substantial burden of proof on issues of intent (“knowing” and “willful”), and the difficulty of establishing the value of the offered information, criminal charges would not meet the Justice Manual standard that “the admissible evidence will probably be sufficient to obtain and sustain a conviction.” Justice Manual§ 9-27.220.

[snip]

There are reasonable arguments that the offered information would constitute a “thing of value” within the meaning of these provisions, but the Office determined that the government would not be likely to obtain and sustain a conviction for two other reasons: first, the Office did not obtain admissible evidence likely to meet the government’s burden to prove beyond a reasonable doubt that these individuals acted “willfully,” i.e., with general knowledge of the illegality of their conduct; and, second, the government would likely encounter difficulty in proving beyond a reasonable doubt that the value of the promised information exceeded the threshold for a criminal violation, see 52 U.S.C. § 30109(d)(l)(A)(i).

[snip]

Additionally, in light of the unresolved legal questions about whether giving “documents and information” of the sort offered here constitutes a campaign contribution, Trump Jr. could mount a factual defense that he did not believe his response to the offer and the June 9 meeting itself violated the law. Given his less direct involvement in arranging the June 9 meeting, Kushner could likely mount a similar defense. And, while Manafort is experienced with political campaigns, the Office has not developed evidence showing that he had relevant knowledge of these legal issues.

[snip]

Accordingly, taking into account the high burden to establish a culpable mental state in a campaign-finance prosecution and the difficulty in establishing the required valuation, the Office decided not to pursue criminal campaign-finance charges against Trump Jr. or other campaign officials for the events culminating in the June 9 meeting. [my emphasis]

This analysis is critically important for a number of reasons.

First, the Report did not say this was not a crime. Rather, it said that under Justice Manual guidelines, Mueller’s team should not prosecute the case because they were unlikely to get and sustain a conviction. The analysis suggests there was a crime, but not one Mueller would win conviction on at trial.

That, by itself, blows Barr’s analysis on obstruction out of the water, because Mueller argued that this probably was a crime. Barr says Trump could not have obstructed justice because there was no underlying crime, but in fact, Mueller said there was a crime, just not one that could be prosecuted successfully.

But it’s crucially important to an impeachment inquiry for another reason (and explains one of the apparent referrals for attempted witnesses tampering of Rudy Giuliani friend Robert Costello to SDNY — though I suspect the fact that the passages  describing Trump’s attempt to tamper with Cohen’s testimony are unredacted means SDNY will not prosecute).

Mueller’s analysis of Don Jr’s receipt of dirt from foreigners could not be prosecuted because it wasn’t clear there was a crime and he didn’t have evidence that those who engaged in the crime knew it was a crime.

But SDNY has already decided that Trump’s hush payments are a crime. And in that case, it’s far harder for Trump to claim he didn’t know it was a crime for corporations to donate to presidential campaigns, because FEC investigated him and Cohen for it in 2011. A pity for Trump that he continues to alienate the guy who saved him from legal repercussions on that crime the last time, Don McGahn.

Mueller treats the question of whether Trump obstructed Cohen’s testimony in its own section, separate from his pressure on Mike Flynn, Paul Manafort, and Roger Stone not to cooperate. After laying out Jay Sekulow’s role in suborning Cohen’s false testimony on the Moscow Trump Tower deal, Mueller actually mentions the hush payments as part of the obstruction consideration.

In January 2018, the media reported that Cohen had arranged a $130,000 payment during the campaign to prevent a woman from publicly discussing an alleged sexual encounter she had with the President before he ran for office.1007 This Office did not investigate Cohen’s campaign period payments to women. 1008 However, those events, as described here, are potentially relevant to the President’s and his personal counsel’s interactions with Cohen as a witness who later began to cooperate with the government.

The report shows how, as he did with the Trump Tower deal, Cohen released false statements covering up the President’s actions. It describes the search of Cohen’s property and Trump’s reaction. It describes elaborate efforts to convey to Cohen he’d be “taken care of” if he did not cooperate.

Cohen also recalled speaking with the President’s personal counsel about pardons after the searches of his home and office had occurred, at a time when the media had reported that pardon discussions were occurring at the White House. 1031 Cohen told the President’s personal counsel he had been a loyal lawyer and servant, and he said that after the searches he was in an uncomfortable position and wanted to know what was in it for him. 1032 According to Cohen, the President’s personal counsel responded that Cohen should stay on message, that the investigation was a witch hunt, and that everything would be fine. 1033 Cohen understood based on this conversation and previous conversations about pardons with the President’s personal counsel that as long as he stayed on message, he would be taken care of by the President, either through a pardon or through the investigation being shut down. 1034

The report describes how, after Cohen pled guilty to the hush payments and implicated Trump in them, Trump turned on him.

On August 21, 2018, Cohen pleaded guilty in the Southern District of New York to eight felony charges, including two counts of campaign-finance violations based on the payments he had made during the final weeks of the campaign to women who said they had affairs with the President. 1044 During the plea hearing, Cohen stated that he had worked “at the direction of’ the candidate in making those payments. 1045 The next day, the President contrasted Cohen’s cooperation with Manafort’s refusal to cooperate, tweeting, “I feel very badly for Paul Manafort and his wonderful family. ‘Justice’ took a 12 year old tax case, among other things, applied tremendous pressure on him and, unlike Michael Cohen, he refused to ‘break’-make up stories in order to get a ‘deal.’ Such respect for a brave man!”1046

Only after that does it focus, again, on Trump’s efforts to cover up the Trump Tower Moscow deal, and Trump’s retaliation against Cohen for cooperating on that issue.

When the report conducts the analysis of whether this amounts to obstruction, it includes the SDNY case in both the “nexus to an official proceeding” and “intent” sections.

Nexus to an official proceeding. The President’s relevant”conduct towards Cohen occurred when the President knew the Special Counsel’s Office, Congress, and the U.S. Attorney’s Office for the Southern District of New York were investigating Cohen’s conduct. The President acknowledged through his public statements and tweets that Cohen potentially could cooperate with the government investigations.

[snip]

The President’s concern about Cohen cooperating may have been directed at the Southern District of New York investigation into other aspects of the President’s dealings with Cohen rather than an investigation of Trump Tower Moscow

In other words, even though Mueller didn’t prosecute the hush payments, he treated as one of the things Trump was attempting to obstruct with Cohen’s testimony.

This analysis renders Barr’s judgment — that Trump could not commit obstruction of justice because he didn’t commit the underlying crime — utterly irrelevant and wrong with regards to the President’s efforts to obstruct Cohen’s testimony.

Even with the June 9 meeting, Barr is wrong: Mueller believed there as a crime, he just didn’t believe he could prosecute it.

But SDNY has already decided — and obtained a guilty plea naming Trump as a co-conspirator — that the hush payment investigation that Trump was also obstructing was a crime, with the necessary proof that the criminals knew it was a crime. The 2011 precedent would further back that case.

Barr’s attempt to exonerate Trump on obstruction heavily depends on the fact that DOJ didn’t find a crime involving Trump.

Except DOJ did.

emptywheel’s Mueller Report coverage

The Significance of Trump’s Obstruction of Investigation of His Family’s Campaign Finance Crimes, Plural

How “Collusion” Appears in the Mueller Report

Putin’s Ghost: The Counterintelligence Calculus Not Included in the Obstruction Analysis

Working Twitter Threads on the Mueller Report

The Trump Men and the Grand Jury Redactions

Mueller’s Language about “Collusion,” Coordination, and Conspiracy

The Many Lies and Prevarications of Bill Barr

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 Carr Correction and the Barr Pseudo Exoneration

Last week, Buzzfeed released part of a package of materials that Michael Cohen’s lawyers provided to Congress in what appears a last minute bid to stay out of prison. While it still represents just Cohen’s self-interested view (and not any of the corroborating information that Mueller’s team surely has), it makes it clear why Buzzfeed felt justified in claiming that Trump “directed” Cohen to lie. The most shocking new detail is that after Cohen testified, Trump’s lawyer (this package doesn’t reveal whether it was Jay Sekulow or someone else) called Cohen to congratulate him.

Trump knew with certainty that Cohen continued to discuss the Moscow Trump Tower project well beyond January 31, 2016. Yet after the testimony, Cohen received a call from Trump’s attorney, who congratulated him on the testimony – and said his “client” was happy with Cohen’s testimony.

Still, a call from one lawyer in a joint defense agreement to someone else in the JDA — a call that by description Cohen didn’t record — is not sufficient evidence to charge someone with suborning perjury.

Nevertheless, this new evidence may explain why Buzzfeed remains confident in its characterization that Trump directed Cohen to lie.

More importantly, it raises even more questions about why Peter Carr corrected the Buzzfeed characterization. As I noted at the time, someone from Rod Rosenstein’s office called Mueller’s office before they did make a correction. And the next day, Rudy Giuliani claimed credit for getting Mueller to correct the story.

And here we are, not three months later, learning new details of how closely involved Trump’s lawyers were in orchestrating Cohen’s testimony while Attorney General Bill Barr (who had been appointed but not confirmed at the time of the story) withholds Mueller’s own view of those documents, and just weeks after Barr and Rosenstein usurped the role of Congress to declare that the President’s behavior — including efforts, however inadequately supported by admissible evidence, to suborn perjury — does not amount to criminal obstruction of justice.

The details behind Rosenstein’s call and Rudy’s victory lap are not yet public; they’re certainly something the House Judiciary Committee should pursue.

But we can see how important that correction, unique in the history of the Mueller investigation, was to what has come since. The Buzzfeed story elicited the kinds of response that the long trajectory of seeing Trump direct lies should have, the recognition that that such actions might amount to impeachable offenses (which is different than Barr’s judgment about obstruction of justice, even assuming many things didn’t make that judgment suspect). By “correcting” a statement that seems utterly reasonable now, DOJ preserved the opportunity for Rosenstein and Barr to weigh in, however inappropriately.

Even at the time, it appeared that Rosenstein’s (office’s) intervention and Rudy’s victory lap (to say nothing of the campaign rolled out against Buzzfeed, including CNN doing a hit piece against Jason Leopold) should have gotten more attention than the hyperparsing of a word that was readily explainable on its face. That’s all the more clear now.

Had Buzzfeed not been corrected for what now seems an even more defensible word choice, Barr would not have had the opportunity to put his thumb on the scale of injustice.

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.