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Roger Stone Describes 67% of the Content of Sealed Warrant Affidavits for His Co-Conspirators

One of the reasons I believe Roger Stone knows he’s getting a pardon is because, in spite of the fact that he’s got six named attorneys on his team, his filings are unbelievably sloppy, as if the lawyers are letting their children submit them.

I’m just now reading a second one he submitted last Friday (it’s bolloxed in PACER but that may not be Stone’s fault), a reply on his request to have all his search warrants suppressed based on Bill Binney’s bogus claim that a document that is entirely unrelated to the charges against Stone was copied onto a thumb drive, and even if it were would be irrelevant to the question of whether Russia hacked the DNC.

The filing couldn’t have been reviewed before submission, because it gets key dates wrong:

This is especially so since Stone did not possess any of the stolen information, all of which these communications occurred well after June 22nd, 2016 – the first dissemination of the DNC emails on Wikileaks. [this should be July]

And includes sentence fragments:

Congress did not subpoena any documents regardless of form from Stone. But left it to Stone to determine which documents he should turn over that were not “widely available” or that “reasonably could lead to the discovery of any facts within the investigations publicly-announced parameters.”

[snip]

Comments about “friends at the embassy” by Corsi were made up. Speculation about an anticipated upcoming data dump was wrong.

And includes grammatical mishmash:

Even with knowledge of its early dissemination, is not a crime.

[snip]

The FBI has stated that they has conducted no direct research, nor collected any evidence of the DNC breach directly, which was confirmed by thenFBI director James Comey.

And a reference to paragraphs in exhibits that don’t list the paragraphs:

(Doc. 100 Ex. 17),

(Doc. 100 Ex. 18).

In short, the filing — like a number submitted beforehand in this case — shows utter contempt for the process.

But along the way, Stone describes at least 67% of the paragraphs of one of the affidavits (Exhibit 1) laying out probable cause for a CFAA change.

  • ¶¶1-7: Gap
  • ¶8: Jerome Corsi, Ted Malloch, Julian Assange, and Roger Stone “speak to each other about politics WikiLeaks, and ‘about phishing with John Podesta,'”
  • ¶¶9-19: Description of WikiLeaks receiving DNC data from Russian state.
  • ¶¶20-25: Gap
  • ¶26: Stone and he are friends, Manafort resigned as Chairman of the Trump Campaign, Manafort worked in for Washington, D.C. lobbying firms to influence U.S. policy toward Ukraine.
  • ¶¶27-37: Gap
  • ¶38: Stone and Assange were not really communicating about anything of relevance or consequence.
  • ¶¶39-40: Gap
  • ¶¶41-57: Corsi, Malloch, and Stone discussion what WikiLeaks is going to publish.
    • ¶47: Claim to Sam Nunberg that Stone had dinner with Assange.
    • ¶¶54-56: Description of Corsi’s “friends at the embassy” comment.
  • ¶¶58-65: References the infamous outtake footage from “Access Hollywood.” … Corsi and Stone spoke.
    • ¶65: Charles Ortel sent an email written to Stone and Stone sent it to Corsi after WikiLeaks disseminated Podesta’s emails. The email was titled “WikiLeaks – The Podesta Emails.”
  • ¶¶66-79: Stone is accused of having advanced knowledge of Podesta’s emails.
  • ¶¶80-81: Post-Podesta’s July 2016 [sic] release by WikiLeaks, Malloch said he would connect Corsi with Assange.
  • ¶¶82-83: Gap
  • ¶¶84-85: Corsi took credit for predicting the release of Podesta’s emails.
  • Unknown: Stone had Facebook accounts that he used to perpetuate his political writings including the writings about Podesta.

Included in that virtual recitation of what a document that remains under seal and covered by a protective order says, Stone makes it clear that the government obtained evidence of Stone talking with someone (it’s not clear who!) about John Podesta being phished, which Stone excuses this way:

They speak to each other about politics WikiLeaks, and “about phishing with John Podesta,” which may imply Podesta was phishing, or that Assange or Malloch were phishing Podesta, but clearly neither seem to be the point of the allegation. Doc. 100-1, ¶8.

In short, this is not a filing intended to win the argument in court (which is lucky for Stone, because legally the filing is crap). Rather, it is a disguised attempt to communicate with some potentially unidentified co-conspirator what the government actually knows about Stone’s knowledge of the phishing of John Podesta.

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. 

How to Read the Mueller Report Referrals

A filing in the BuzzFeed/EPIC FOIA lawsuits to liberate an unredacted copy of the Mueller Report provides new insight on how to read the referral section at the back of the report. (Here’s BuzzFeed’s own report on the filing.) The filing provides a more specific breakdown of the exemptions used to withhold parts of the report, especially the b7 redactions.

As it explains, it uses four categories of b7C, which protects, “information ‘compiled for law enforcement purposes’ when disclosure ‘could reasonably be expected to constitute an unwarranted invasion of personal privacy.'” These distinguish between four kinds of people: those unwittingly involved, those who were considered for charges but ultimately not charged, those “concerning a subject of the investigation,” and those whose non-criminal activity got described in the report.

  • (b)(6)/(7)(C)-1: names, social media account information, and other contact information of unwitting third parties;
  • (b)(6)/(7)(C)-2: names and personally-identifiable information about individuals not charged by the SCO;
  • (b)(6)/(7)(C)-3: information concerning a subject of the investigation by the SCO; and
  • (b)(6)/(7)(C)-4: names, social media account information, contact information, and other personally-identifiable information of individuals merely mentioned in the Report

The description of the third category claims that all the b7C-3 redactions hide information about Roger Stone or “also … other individuals discussed in connection with the facts related to Mr. Stone’s criminal case.”

72. The third category of privacy-based withholdings protects information pertaining to an individual who was a subject of the investigation by the SCO, and is coded as “(b)(6)/(7)(C)- 3.” Within this category, OIP has protected non-public information pertaining to Roger Stone and/or his pending criminal case in the United States District Court for the District of Columbia. The redactions in this category include information pertaining to Mr. Stone, but also to other individuals discussed in connection with the facts related to Mr. Stone’s criminal case. 17 The information related to the investigative subject or subjects that has been protected in this category would, if released, clearly invade the individual’s or individuals’ personal privacy and in particular, Mr. Stone’s ability to receive a fair trial and to respond to the charges against him in court without compounding the pre-trial publicity that his case has already received.

73. As noted above, in order to withhold information pursuant to Exemptions 6 and 7(C), a balancing of the privacy interests of the individuals mentioned in the Report against any FOIA public interest in disclosure must weigh in favor of non-disclosure. Given the intense public interest surrounding the SCO’s work as well as the public and media attention surrounding this individual’s ongoing court case, and the significant attention that any new fact made public will receive, disclosure of any additional non-public information about the individual or individuals protected in this category would certainly subject them to unwarranted harassment, stigma, further reputational or even physical harm. Individuals have protectable privacy interests in premature release of investigatory details relevant to criminal law enforcement proceedings against them, beyond what is made public in connection with their criminal justice proceedings. That interest is magnified here, where Mr. Stone’s trial is imminent, and any further public disclosure of details regarding the case against him will impact his ability to amount an effective defense and deprive him of the right to a fair trial.

This would obviously include information on Jerome Corsi and Randy Credico, at least the latter of whom will be a witness at Stone’s trial. But it almost certainly includes WikiLeaks, because the redaction started on page 176 of Volume I describes why publishing stolen information was not prosecuted.

Then there’s category b7C-4, which hides the sensitive information about people who had a role in the operation (including as victims), but were not subjects of Mueller’s investigation. So among other things, this redaction is used to hide the identities of people who were referred for criminal prosecution for things unrelated to the Mueller investigation (like, say, George Nader’s child porn). It covers,

names and related personally-identifiable information of individuals for whom evidence of potential criminal activity was referred by the Special Counsel to appropriate law enforcement authorities. With respect to the latter group of individuals, who are mentioned in Section B (“Referrals”) of Appendix D to the Report, these individuals were not subjects of the SCO investigation. Rather, they are included in an appendix to the Report only because evidence of potential criminal activity periodically surfaced during the course of the SCO’s investigation.19

But as this footnote describes, two of the people in the referrals are “individual or individuals” labeled with the designation limited to Stone’s case. Another appears to be someone whom Mueller decided not to charge for Russian related activities, but whom Mueller referred for something else.

19 Two entries in Section B of Appendix D relate to an individual or individuals whose privacy information has been categorized and coded as (b)(6)/(7)(C)-3, discussed supra in ¶¶ 72-75. Another entry in Section B of Appendix D relates to an individual against whom the SCO contemplated, but did not pursue, charges related to the Special Counsel’s investigation. Although information about this individual is considered a “mere mention” in the context of Appendix D, this individual’s privacy information has separately been categorized and coded as (b)(6)/(7)(C)-2, elsewhere in the Report.

In other words, people or subjects referred to in the referrals section appear to be:

  • b7A: People or subjects (these can be criminal or national security investigations) not mentioned in the report (in the transfers section, this is likely used to hide the names of people like Tony Podesta and Vin Weber who are tied to Manafort’s Ukrainian graft)
  • b7C-3: People who have some tie to the Stone case referred on their own right
  • b7C-4: People who appear in some non-criminal fashion in the Mueller Report, but who got referred for unrelated possible crimes (again, George Nader might be included in this category)

Here’s the updated FOIA version.

This redaction could be of Jerome Corsi for his false statements (though that would mean someone who fit between Cohen and Corsi in the alphabet would be included).

I’ve suspected that this redaction pertains to WikiLeaks (this part of the report is in alphabetical order and this is the last entry).

If all that’s right, it would mean the referrals include:

  • Michael Cohen
  • Greg Craig and related
  • 4 and 14: Two people associated with Stone (possibly Corsi and WikiLeaks)
  • 1, 3, 6-9, 11-12: Eight people who play a non-criminal role in the Mueller Report, but were referred for some other crime
  • 10, 13: People or subjects not mentioned in the report, but referred for prosecution for some other crime or national security investigation

And one of those category b7C-4 people was considered, but not charged, in the Russia investigation but was referred for investigation for something else.

Update: Fixed the referrals for people who play a non-criminal role in the Mueller Report but were referred for some other potential crime. H/t EB.

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. 

What the Stone Search Warrants Suggest about the Ongoing Investigation into Him

In a filing opposing Roger Stone’s effort to suppress the fruits of 18 searches against him, the government lays out some details about the investigation into Stone that — especially combined with reports of Andrew Miller’s testimony yesterday — provide some idea of how the investigation into Stone evolved. Here’s how the government describes the 18 search warrants against Stone.

Between August 2017 and February 2019, the government obtained eighteen search warrants for electronic facilities and properties related to Roger Stone. Doc. 109, Exs. 1-18. Many of these search warrants were issued in the District of Columbia by Chief Judge Beryl A. Howell. Doc. 109, Exs. 1-10, 16, 18. Three warrants were issued in the District by other district judges. See Ex. 11 (Judge Contreras); Ex. 12-13 (Judge Boasberg). Others were issued by magistrate judges in other districts. Exs. 14 (S.D.N.Y); Exs. 15, 17 (S.D. Fl.).

Fourteen of the affidavits (“the 1030 warrant affidavits”) allege probable cause that the search will yield evidence of a violation of 18 U.S.C. § 1030, which makes it a crime to “intentionally access[] a computer without authorization or exceed[] authorized access and thereby obtain[]…information from any protected computer.” 18 U.S.C. § 1030(a)(2)(C). See Exs. 1- 13, 18. In brief, each of these affidavits (at a minimum) states that Stone communicated with the Twitter account Guccifer 2.0 about hacked materials Guccifer had posted. Each affidavit states that on June 15, 2016, Guccifer 2.0 publicly claimed responsibility for the hack of the computer systems of the Democratic National Committee (“DNC”). Each affidavit states that Organization 1 published materials stolen from the DNC in the hack. Each affidavit describes Stone’s communications (including his own public statements about them) with Guccifer 2.0, Organization 1, and the head of Organization 1. Each affidavit submits that, based on those communications, there was probable cause to believe that evidence related to the DNC hack would be found in the specified location. Many of these affidavits contain additional evidence alleging probable cause to believe evidence will be found of violations of additional crimes, including 18 U.S.C. § 3 (accessory after the fact); 18 U.S.C. § 4 (misprision of a felony); 18 U.S.C. § 371 (conspiracy); 18 U.S.C. §§ 1505 and 1512 (obstruction of justice); 18 U.S.C. § 1513 (witness tampering); 18 U.S.C. § 1343 (wire fraud); 18 U.S.C. § 1349 (attempt and conspiracy to commit wire fraud), and 52 U.S.C. § 30121 (foreign contribution ban). See, e.g., Exs. 7-13 (all crimes). Stone raises no arguments regarding these other crimes.

In addition, four of the affidavits (the “false statement warrant affidavits”), issued close in time to Stone’s indictment, allege probable cause that the search will yield evidence of false statements, obstruction of justice, and witness tampering. See Exs. 14-17. Those affidavits set forth evidence supporting the allegations in the indictment that Stone made false statements in his September 2017 testimony before the House Permanent Select Committee on Intelligence (“HPSCI”), obstructed ongoing investigations, and tampered with a witness.

The warrants laid out may look something like this:

  1. Beryl Howell, August 2017, CFAA
  2. Beryl Howell, CFAA
  3. Beryl Howell, CFAA
  4. Beryl Howell, CFAA
  5. Beryl Howell, CFAA
  6. Beryl Howell, CFAA
  7. Beryl Howell, CFAA: include “all crimes” (18 U.S.C. § 3 (accessory after the fact); 18 U.S.C. § 4 (misprision of a felony); 18 U.S.C. § 371 (conspiracy); 18 U.S.C. §§ 1505 and 1512 (obstruction of justice); 18 U.S.C. § 1513 (witness tampering); 18 U.S.C. § 1343 (wire fraud); 18 U.S.C. § 1349 (attempt and conspiracy to commit wire fraud), and 52 U.S.C. § 30121 (foreign contribution ban)
  8. Beryl Howell, CFAA: includes “all crimes”
  9. Beryl Howell, CFAA: includes “all crimes”
  10. Beryl Howell, CFAA: ¶¶ 35-40 discuss Stone’s communications with WikiLeaks and Julian Assange: includes “all crimes”
  11. Rudolph Contreras, CFAA: ¶ 24 discusses private Twitter message between Stone and Guccifer 2.0: includes “all crimes”
  12. James Boasberg, CFAA: includes “all crimes”
  13. James Boasberg, CFAA: includes “all crimes”
  14. SDNY, January 2019, False Statements
  15. SDFL, January 2019, False Statements
  16. Beryl Howell, January 2019, False Statements
  17. SDFL, January 2019, False Statements
  18. Beryl Howell, February 2019, CFAA and False Statements: ¶¶ 64-77 relate to Stone’s conversations with Randy Credico

A May 14, 2019 Amy Berman Jackson minute order demanding that Stone clean up the first iteration of an exhibit list reveals that there were some warrants obtained in August 2018, which may be those from the other DC District judges (and which may suggest they did not come from Mueller’s grand jury, or maybe that Howell took a vacation in August last year).

The Court notes that defendant’s Search Warrant Exhibit, Dkt. 101 (sealed), purports to be a list of the search warrants attached to the motion, but the list lacks exhibit numbers, and the order of the items listed does not correspond to what was actually provided. For instance, the first item on the list indicates that one of the warrants included in the motion was a warrant for the search of defendant’s former home issued by the U.S. District Court for the Southern District of Florida, but neither that warrant nor the application has been supplied to the Court. Also, the Search Warrant Exhibit lists warrants issued by the U.S. District Court for the District of Columbia on August 3, 2018 to three recipients, but only two warrants issued on that date were submitted to the Court (with one of them being filed twice). Finally, a search warrant issued by U.S. District Court for the District of Columbia on August 8, 2018 was filed with the Court but not listed on the Search Warrant Exhibit.

Even though Stone was listed among those Richard Burr told the White House Counsel’s Office on March 16, 2017 that the FBI was investigating, the government did not obtain a search warrant on him until August 2017. Probably, the government started with searches of Stone’s Twitter accounts.

If the warrants are listed in temporal order in Stone’s exhibit (which seems likely given the timing), then it appears that for 13 months, the government pursued Stone for some involvement in the actual hack and leak, with various theories implicating him in the crime, including conspiracy, accessory after the fact, and misprison of a felony.

It appears that got the government to the point where they were trying to get Jerome Corsi to explain how he and Stone learned that WikiLeaks would release John Podesta’s emails. Then he went all Jerome Corsi on the government, and appears to have diverted the investigation, such that the government finalized the false statements, obstruction, and witness tampering indictment currently being prosecuted, but moved away from charging a CFAA-related crime.

It appears likely the government got warrants for his properties in NY and FL and some other facilities in advance of his arrest on January 25. The additional warrant in Florida may reflect a search of a phone or other devices obtained in the raid.

Then (again assuming Stone’s cleaned up exhibit is temporal) there’s a February 2019 warrant, again from Howell (so presumably Mueller’s grand jury). The timing of this may coincide with the threat Stone issued against ABJ herself, possibly including a warrant to Instagram. And/or it could be a follow-up warrant based off something (such as previously unknown devices) discovered in the January 25 searches.

Yesterday, Andrew Miller finally testified after his year long attempt to avoid doing so. He reportedly testified about his relationship with Stone, Stone’s movements and schedule at the 2016 RNC, and Miller’s relationship since then. Given that prosecutors may have returned to their pursuit of a CFAA related case against Stone in February, there may be something about the RNC that they’ve been trying to pin down.

The Mueller Report seems to have a section, starting at Volume I page 176, explaining why distributing stolen emails isn’t a crime, which is consistent with what Barr has said publicly. It clearly has a section, starting at Volume I page 188, explaining why having stolen emails released for you is not an illegal campaign gift. The latter section clearly includes significant discussion of Stone. But given what this description of warrants shows, the first section might, as well.

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. 

Did Some Republican in Congress Leak Details of the Mueller Report to Roger Stone?

There’s a passage from a recent Roger Stone filing I’ve been puzzling over. In a motion asking for discovery on selective prosecution — an effort that started out by arguing no one else had been prosecuted for false statements to Congress before that became ridiculous — Stone claims that

Yet, he was ruled out as a conspirator with the Russian state and WikiLeaks before his transcript from HPSCI was transmitted.

This effort parallels an effort to get the whole Mueller Report and this motion asks for all the declination memos on top of that.

Prosecuting Stone because of his arbitrary classification requires discovery, including the declination memos sent to the Attorney General, so that it may be determined who the government thinks lied to Congress or the Special Counsel, but were not prosecuted.

The claim that Stone was ruled out as a co-conspirator with Russia or WikiLeaks is probably true (though not necessarily all that helpful for his case). I’m just trying to figure out how he knows that, if he does. It seems there are four possibilities:

  1. His lawyers, who are fairly careless and who have made false claims in other briefs, are just making this up
  2. He got something in discovery that makes this clear
  3. He’s basing this off Jerome Corsi’s public claims
  4. Someone who has seen an unredacted copy of the Mueller Report (which currently includes the White House and at least 7 of the 8 Republicans who had been given an opportunity to read it before yesterday) told him what those passages of the report say
  5. He learned of this decision in real time, via reporting to the White House and then some channel from the White House

As noted, his lawyers have not been above making shit up, so it’s possible this is what this claim is. But it feels too specific for that.

It’s also possible he got something in discovery to support this claim, except the prosecutors are fighting to provide precisely this kind of information to him in their fight against releasing the Mueller Report.

Such an assertion could be intuited from Jerome Corsi’s crazed rants. Corsi has said that he believes the true source of his/their knowledge that WikiLeaks would release John Podesta’s emails was the cornerstone to Mueller’s “collusion” case (though of course he was assessing conspiracy, as Stone correctly notes here.

It’s certainly possible this is reflected in the less redacted Mueller Report, which would explaining the timing of this claim, which by my reading is new in this filing. Republicans in Congress have tampered with the criminal cases against Trump’s people on at least two occasions (when Richard Burr told the White House who had been targeted, and whoever reached out to Mike Flynn to discourage his cooperation). Given DOJ’s warnings about how sensitive the report is, it would be fairly damning if one of just 5 Republicans who had seen it already ran to Stone to tell him what’s in it. (Those 5 are: Mitch McConnell, Richard Burr, Lindsey Graham, Kevin McCarthy, and Doug Collins; it’s not clear whether Devin Nunes has reviewed the report yet.)

I’m most interested whether Stone learned in real time — perhaps last fall — that Mueller had decided not to charge him in a conspiracy with WikiLeaks and Russia. That would be particularly interesting given that Paul Manafort actually told what resembles the truth about the campaign’s outreach, through Stone, to WikiLeaks.

Amy Berman Jackson currently has unredacted parts of the Mueller Report pertaining to Stone, so if this information does come from leaks about the Mueller Report, she may recognize that.

As I said, even if Mueller decided not to charge Stone in a conspiracy because, with the witness tampering charges, he may face the same kind of sentence without some of the evidentiary hurdles, it doesn’t amount to selective prosecution.

But Stone sure seems to have a specific idea of what he’s looking for, even if it only helps his (and Trump’s) political case, not his criminal one.

Update: Corrected the number of Republicans known to have reviewed the report to 5.

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 Mueller Report Redactions and the Claims about “Collusion”

On Volume II page 121 of the Mueller Report, a partial transcript of the call Trump’s lawyer (WaPo says this is John Dowd) placed to Mike Flynn’s lawyer on November 22, 2017 appears, along with even more damning details about a follow-up call from the following day.

In late November 2017, Flynn began to cooperate with this Office. On November 22, 2017, Flynn withdrew from a joint defense agreement he had with the President.833 Flynn’s counsel told the President’s personal counsel and counsel for the White House that Flynn could no longer have confidential communications with the White House or the President.834 Later that night, the President’s personal counsel left a voicemail for Flynn’s counsel that said:

I understand your situation, but let me see if I can’t state it in starker terms. . . . [I]t wouldn’t surprise me if you’ve gone on to make a deal with … the government. … [I]f . .. there’s information that implicates the President, then we’ve got a national security issue, . . . so, you know, . . . we need some kind of heads up. Um, just for the sake of protecting all our interests ifwe can …. [R]emember what we’ve always said about the ‘ President and his feelings toward Flynn and, that still remains …. 835

On November 23, 2017, Flynn’s attorneys returned the call from the President’s personal counsel to acknowledge receipt of the voicemail.836 Flynn ‘s attorneys reiterated that they were no longer in a position to share information under any sort of privilege.837 According to Flynn’s attorneys, the President’s personal counsel was indignant and vocal in his disagreement.838 The President’s personal counsel said that he interpreted what they said to him as a reflection of Flynn’s hostility towards the President and that he planned to inform his client of that interpretation.839 Flynn’s attorneys understood that statement to be an attempt to make them reconsider their position because the President’s personal counsel believed that Flynn would be disturbed to know that such a message would be conveyed to the President.840

This is, of course, the call referenced in Flynn’s less redacted cooperation addendum released last week. A whole slew of reporters who have claimed to have read the Mueller Report over the last month claimed that this passage had been redacted in the report, which is something that Quinta Jurecic and I had a bit of a laugh about on Chris Hayes’ show Friday night.

In fact, there’s likely to be very little of great interest submitted when the government complies with Judge Emmet Sullivan’s order to submit an unclassified version of the Flynn passages of the report by May 31.

The revelation in Flynn’s cooperation addendum that he provided information on close-hold discussions about WikiLeaks means some of those conversations may be unsealed in that production. But aside from that, this redaction on Volume I page 183 — footnoting a discussion of the consideration of whether Flynn was a foreign agent and probably discussing an ongoing counterintelligence investigation into Russians, not Flynn — is the one of the only Flynn-related passages that might be of any interest that is not otherwise grand jury material.

With just a few notable exceptions, the redactions aren’t that nefarious.

Using Grand Jury redactions to protect the President from political pressure

I’ve noted two exceptions to that. One is the way DOJ used grand jury redactions to hide the details of how both Donald Trumps refused to testify (even while Jr continues to be willing to testify before congressional committees that don’t have all the evidence against him).

There are two redactions hiding details of what happened when Jr was subpoenaed.

Volume I page 117 on the June 9 meeting:

Volume II page 105 on President Trump’s involvement in writing the June 9 statement.

And there are two redactions hiding the discussion of subpoenaing Trump.

Volume II page 12 introducing the obstruction of justice analysis.

Appendix C introducing Trump’s non-responsive answers.

These redactions are all ones that Congress should ask more about. If Don Jr told Mueller he would invoke the Fifth, we deserve to know that (particularly given his willingness to appear with less informed committees). More importantly, the role of Trump’s refusal to answer questions (as well as any concerns he had about Don Jr’s jeopardy) are necessary parts to any discussion of obstruction of justice.

Plus, the President of the United States should not be able to hide his unwillingness to cooperate with an investigation into his own wrong-doing by claiming it’s grand jury material.

The use of “Personal Privacy” to hide central players

In his description of the four types of redactions in the report, Bill Barr described the fourth — “personal privacy” — as relating to “peripheral third parties.”

As I explained in my letter of April 18, 2019, the redactions in the public report fall into four categories: (1) grand-jury information, the disclosure of which is prohibited by Federal Rule of Criminal Procedure 6(e); (2) investigative techniques, which reflect material identified by the intelligence and law enforcement communities as potentially compromising sensitive sources, methods, or techniques, as well as information that could harm ongoing intelligence or law enforcement activities; (3) information that, if released, could harm ongoing law enforcement matters, including charged cases where court rules and orders bar public disclosure by the parties of case information; and (4) information that would unduly infringe upon the personal privacy and reputational interests of peripheral third parties, which includes deliberation about decisions not to recommend prosecution of such parties.

Some of the PP redactions do pertain to genuinely peripheral players.

For example, sometimes they hide the random people with whom Russian trolls communicated.

In others, they hide the names of other victims of GRU hacking (including Colin Powell, who is not a private person but is peripheral to this discussion).

In other places, they hide the names of genuinely unrelated people or businesses.

But as I have noted, Mueller treated this category as a declinations decision, not a privacy one.

I previously sent you a letter dated March 25, 2019, that enclosed the introduction and executive summary for each volume of the Special Counsel’s report marked with redactions to remove any information that potentially could be protected by Federal Rule of Criminal Procedure 6(e); that concerned declination decisions; or that related to a charged case. [my emphasis]

Among the people Barr claims are “peripheral” players who have been investigated but not charged are Don Jr in the second redaction in this passage:

Carter Page on page 183.

And KT McFarland and several other key players on page 199.

Don’t get me wrong: I think these redactions are absolutely proper. The description of them, however, is not. Barr is pretending these people are “peripheral” to avoid having to admit, “in addition to Trump’s Campaign Manager, Deputy Campaign Manager, Personal Lawyer, Life-Long Rat-Fucker, National Security Advisor, and Foreign Policy Advisor who have either pled guilty to, been found by a judge to have, or been indicted for lying in an official proceeding, Mueller seriously considered charging at least three other Trump associates with lying.”

The expansive redactions pertaining to WikiLeaks and Roger Stone

So aside from the grand jury redactions hiding how Trump Sr and Jr dodged testifying and the way Barr describes the declinations redactions, I think the redactions are generally pretty judicious. I’m less certain, though, about the redactions pertaining to Roger Stone, the bulk of which appear in Volume I pages 51 to 59, 188 to 191, 196 to 197. and Volume II, pages 17 to 18 and 128 to 130.

There are two reasons to redact this information: most importantly, to comply with the gag order imposed by Amy Berman Jackson that prohibits lawyers on either side from making statements that “pose a substantial likelihood of material prejudice” to Stone’s case, or to hide information from Stone that he doesn’t otherwise know.

Except that we know he has already gotten the latter category of information in discovery. In a filing opposing Stone’s bid to get an unredacted copy of the Mueller Report, prosecutors noted that “disclosable information that may have been redacted from the public version of the Special Counsel’s report to the Attorney General is already being provided to the defendant in discovery.”

And it seems highly likely that some of the information in these redacted passages is stuff that would only prejudice Stone’s case by raising the import of it to Trump.

Consider, for starters, that (unless I’m mistaken) not a word from Stone’s indictment appears in this Report. For example, the descriptions of how Stone asked Jerome Corsi to ask Ted Malloch to find out what WikiLeaks had coming and a follow-up email reflecting knowledge that John Podesta would be targeted must be reflected on pages 55 and 56.

On or about July 25, 2016, STONE sent an email to Person 1 with the subject line, “Get to [the head of Organization 1].” The body of the message read, “Get to [the head of Organization 1] [a]t Ecuadorian Embassy in London and get the pending [Organization 1] emails . . . they deal with Foundation, allegedly.” On or about the same day, Person 1 forwarded STONE’s email to an associate who lived in the United Kingdom and was a supporter of the Trump Campaign.

On or about July 31, 2016, STONE emailed Person 1 with the subject line, “Call me MON.” The body of the email read in part that Person 1’s associate in the United Kingdom “should see [the head of Organization 1].”

On or about August 2, 2016, Person 1 emailed STONE. Person 1 wrote that he was currently in Europe and planned to return in or around mid-August. Person 1 stated in part, “Word is friend in embassy plans 2 more dumps. One shortly after I’m back. 2nd in Oct. Impact planned to be very damaging.” The phrase “friend in embassy” referred to the head of Organization 1. Person 1 added in the same email, “Time to let more than [the Clinton Campaign chairman] to be exposed as in bed wenemy if they are not ready to drop HRC. That appears to be the game hackers are now about. Would not hurt to start suggesting HRC old, memory bad, has stroke – neither he nor she well. I expect that much of next dump focus, setting stage for Foundation debacle.”

Page 56 actually includes new proof that Stone and Corsi had confirmed that Podesta’s emails were coming. Malloch describes Corsi telling him about Podesta’s emails, not vice versa.

Malloch stated to investigators that beginnin in or about Au ust 2016, he and Corsi had multiple Face Time discussions about WikiLeaks [redacted] had made a connection to Assange and that the hacked emails of John Podesta would be released prior to Election Day and would be helpful to the Trump Campaign. In one conversation in or around August or September 2016, Corsi told Malloch that the release of the Podesta emails was coming, after which “we” were going to be in the driver’s seat.221

Likewise, the indictment makes it clear that Stone was talking to the campaign about WikiLeaks releases.

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

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

[snip]

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

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

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

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

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

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

This affects the “collusion” discussion

All of this has particular import given the basis on which Attorney General Bill Barr tried to exonerate the President for obstruction. In Barr’s 4-page summary of the report, Barr emphasized that Trump did not conspire or coordinate with the Russian government, even going so far as to suggest that no Trump associate “conspired or coordinated with the Russian government on these efforts,” efforts which in context include, “publicly disseminat[ing hacked] materials through various intermediaries, including WikiLeaks.”

As the report states: “[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

[snip]

In assessing potential conspiracy charges, the Special Counsel also considered whether members of the Trump campaign “coordinated” with Russian election interference activities. The Special Counsel defined “coordinated” as an “agreement–tacit or express–between the Trump Campaign and the Russian government on election interference.”

[snip]

The second element involved the Russian government’s efforts to conduct computer hacking operations designed to gather and disseminate information to influence the election. The Special Counsel found that Russian government actors successfully hacked into computers and obtained emails from persons affiliated with the Clinton campaign and Democratic Party organizations, and publicly disseminated those materials through various intermediaries, including WikiLeaks. Based on these activities, the Special Counsel brought criminal charges against a number of Russian military officers for conspiring to hack into computers in the United States for purposes of influencing the election. But as noted above, the Special Counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in these efforts, despite multiple offers from Russian-affiliated individuals to assist the Trump campaign.

Of course, that leaves off coordinating with WikiLeaks because WikiLeaks is not the Russian government, even while in context it would be included.

Similarly, in Barr’s “no collusion” press conference, he again emphasized that Trump’s people were not involved in the hacking. Then he made a remarkable rhetorical move [I’ve numbered the key sentences].

But again, the Special Counsel’s report did not find any evidence that members of the Trump campaign or anyone associated with the campaign conspired or coordinated with the Russian government in its hacking operations.  In other words, there was no evidence of Trump campaign “collusion” with the Russian government’s hacking.

The Special Counsel’s investigation also examined Russian efforts to publish stolen emails and documents on the internet.  The Special Counsel found that, after the GRU disseminated some of the stolen materials through its own controlled entities, DCLeaks and Guccifer 2.0, the GRU transferred some of the stolen materials to Wikileaks for publication.  Wikileaks then made a series of document dumps.  [1] The Special Counsel also investigated whether any member or affiliate of the Trump campaign encouraged or otherwise played a role in these dissemination efforts.  [2] Under applicable law, publication of these types of materials would not be criminal unless the publisher also participated in the underlying hacking conspiracy.  [3] Here too, the Special Counsel’s report did not find that any person associated with the Trump campaign illegally participated in the dissemination of the materials.

Given what we know to be in the report, those three sentences look like this:

  1. Mueller asked, did any Trump affiliate encourage or otherwise play a role in WikiLeaks’ dissemination?
  2. By the way, if a Trump affiliate had played a role in the dissemination it wouldn’t be illegal unless the Trump affiliate had also helped Russia do the hacking.
  3. After finding that a Trump affiliate had played a role in the dissemination, Mueller then determined that that role was not illegal.

Again, “collusion” is not a legal term. It describes coordination — legal or not — in sordid activities. What these three sentences would say, if Barr had been honest, is that Mueller did find coordination, but because Stone (via yet unidentified means) coordinated with WikiLeaks, not Russia itself, Mueller didn’t find that the coordination was illegal.

Note that even Bill Barr, who’s a pretty shameless hack, still qualified the “no collusion” judgment on which he presents his obstruction analysis as pertaining to Russia.

After finding no underlying collusion with Russia, the Special Counsel’s report goes on to consider whether certain actions of the President could amount to obstruction of the Special Counsel’s investigation.  As I addressed in my March 24th letter, the Special Counsel did not make a traditional prosecutorial judgment regarding this allegation.  Instead, the report recounts ten episodes involving the President and discusses potential legal theories for connecting these actions to elements of an obstruction offense.

After carefully reviewing the facts and legal theories outlined in the report, and in consultation with the Office of Legal Counsel and other Department lawyers, the Deputy Attorney General and I concluded that the evidence developed by the Special Counsel is not sufficient to establish that the President committed an obstruction-of-justice offense.

Barr bases his obstruction analysis on “collusion,” not conspiracy. But his 1-2-3 gimmick above lays out that non-criminal “collusion” did happen, only that it happened with WikiLeaks.

For his part, Mueller points to those same passages that get redacted in the first discussion in his background discussion for the obstruction volume.

Importantly, the redaction in this footnote makes it clear that the campaign was relying on what they were learning from Stone to plan their communication strategy for upcoming releases.

Remember, in his charging decisions on campaign finance, Mueller didn’t actually say no crime had been committed. He said the evidence was not sufficient to obtain and sustain a criminal conviction.

The Office similarly determined that the contacts between Campaign officials and Russia-linked individuals either did not involve the commission of a federal crime or, in the case of campaign-finance offenses, that our evidence was not sufficient to obtain and sustain a criminal conviction.

There are multiple places where the report makes it clear that, in addition to the June 9 meeting, the campaign finance crimes reviewed included the WikiLeaks releases, including the Table of Contents.

Indeed, the paragraph describing why Trump may have wanted to fire Jim Comey focuses closely on the campaign’s response to the WikiLeaks releases.

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 [my emphasis]

And a more general discussion of Trump’s motives later in the obstruction discussion raises it — and the possibility that it would be judged to be criminal — explicitly.

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. [my emphasis]

The most damning revelations about the President’s own actions during the campaign in this report pertain to his exploitation of the WikiLeaks releases. They go directly to the question of criminal liability (which Mueller says he couldn’t charge for evidentiary reasons, not because he didn’t think it was a crime), and if you want to talk “collusion” as opposed to “conspiracy” — as the President does — it goes to “collusion.”

And in the guise of protecting Roger Stone’s right to a fair trial — and possibly with an eye towards preserving the President’s ability to pardon Stone before a trial reveals even more of these details — DOJ used a heavy hand on the redactions pertaining to Trump’s own personal involvement in exploiting the benefit his campaign received from WikiLeaks releasing emails that Russia stole from Hillary. These details are the bulk of what DOJ is hiding by offering just a small number of members of Congress to review the less-redacted version of the report.

Perhaps Mueller agreed with all these redactions; it’s a question I hope he gets asked when he finally testifies. But the redactions serve to hide what was clearly a close call on prosecution and one of the most damning explanations for Trump’s obstruction, an explanation that involved his own actions on the campaign.

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. 

Rick Gates’ Status Report Suggests Trump Will Be a Focus of Roger Stone’s Trial

As I noted yesterday, the government submitted a status report in Rick Gates’ case yesterday — the first since Mueller submitted his report. In the past several prior reports, the government had asked for sixty day extensions, but here, the government is asking for over three months.

The prosecutors who submitted the report — who are both on the Greg Craig prosecution team — make one reason for the longer extension clear: they’re scheduling the next status report for after Craig’s trial is expected to finish.

To date: (1) defendant Gates continues to cooperate with the government as required by his Plea Agreement, and (2) this Court has scheduled a trial in United States v. Craig, 19-CR-125 (ABJ), to begin on August 12, 2019,

Gates is not obviously mentioned in Craig’s indictment, but Paul Manafort is central to it, so presumably prosecutors want to have Gates explain why Manafort thought it so important that Craig hide the source of the funding for the Skadden Arps payment, Victor Pinchuk, which parallels the reasons why Manafort wanted everyone else who worked for him to keep their Ukrainian paymasters secret.

But prosecutors also mention Roger Stone’s November trial (though none of Stone’s prosecutors are on this filing).

another trial, United States v. Stone, 19-CR-18 (ABJ), to begin November 5, 2019

That’s interesting given the way the very redacted passages treating Stone’s charges in the Mueller Report flesh out Gates’ role as a liaison between Trump and Stone in the effort to optimize the WikiLeaks releases. Stone’s indictment had been coy on this point (so much so, I’ve wondered whether Big Dick Toilet Salesman told Mueller to stop mentioning Trump in charging documents after the Michael Cohen plea). It describes senior members of the campaign contacting Stone to find out what WikiLeaks had coming.

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

[snip]

By in or around June and July 2016, STONE informed senior Trump Campaign officials that he had information indicating Organization 1 had documents whose release would be damaging to the Clinton Campaign.

And there’s this very pregnant passage using the passive voice to describe someone — the indictment doesn’t name who — directing a senior campaign official to contact Stone about further releases, which would lead to Stone’s efforts to find out, in part via Jerome Corsi, what was coming in late July and early August.

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

Stone has denied it happened but said if it did, Gates would have been the one who reached out to him.

And while the passage of the Mueller Report describing all this is heavily redacted, it does seem to confirm that — after Trump and Manafort both showed great interest in the WikiLeaks releases, at least Manafort and probably both (given the reference to Manafort “separately” telling Gates to stay in touch with Stone) told Gates to reach out to Stone.

[snip]

In addition, Gates seems to have witnessed Trump take a call from Stone at which the then candidate’s rat-fucker informed him about the upcoming WikiLeaks releases.

Given all the documentary evidence the government has against Stone, Gates’ testimony is probably not necessary to prove that Stone lied to the House Intelligence Committee about his efforts to optimize the WikiLeaks releases. But it may serve several prosecutorial roles.

First, given that Stone was interacting with Trump directly on the WikiLeaks releases, Gates’ (as well as Michael Cohen and even Manafort’s, the latter of whom seems to have uncharacteristically told the truth on this to the grand jury) confirmation that such contacts occurred could easily explain Stone’s motive to lie to HPSCI — which would serve to protect Trump. This is all the more true given how brazenly Trump lied about this point in his sworn answers to Mueller.

I recall that in the months leading up to the election there was considerable media reporting about the possible hacking and release of campaign-related information and there was a lot of talk about this matter. At the time, I was generally aware of these media reports and may have discussed these issues with my campaign staff or others, but at this point in time – more than two years later – I have no recollection of any particular conversation, when it occurred, or who the participants were.

I do not recall being aware during the campaign of any communications between [Stone, Donald Trump, Jr., Manafort, or Gates] and anyone I understood to be a representative of WikiLeaks or any of the other individuals or entities referred to in the question.

[snip]

I was in Trump Tower in New York City on October 7, 2016. I have no recollection of being told that WikiLeaks possessed or might possess emails related to John Podesta before the release of Mr. Podesta’s emails was reported by the media. Likewise, I have no recollection of being told that Roger Stone, anyone acting as an intermediary for Roger Stone, or anyone associated with my campaign had communicated with WikiLeaks on October 7, 2016.

I do not recall being told during the campaign that Roger Stone or anyone associated with my campaign had discussions with [WikiLeaks, Guccifer 2.0, or DCLeaks] regarding the content or timing of release of hacked emails.

I spoke by telephone with Roger Stone from time to time during the campaign. I have no recollection of the specifics of any conversations I had with Mr. Stone between June 1.2016 and November 8, 2016. I do not recall discussing WikiLeaks with him, nor do I recall being aware of Mr. Stone having discussed WikiLeaks with individuals associated with my campaign, although I was aware that WikiLeaks was the subject of media reporting and campaign-related discussion at the time.

Gates will not only help to prove that Trump knew all this was going on, but that the campaign had dedicated resources to make use of Stone’s disclosures.

In addition, the government’s ability to tie the President directly to this part of the operation will make it harder (though nothing is beyond Trump) to pardon Stone before the trial, even while it will provide incentive to Trump to do so. Trump’s centrality in all this may be one reason William Barr is so aggressively protecting the Stone related disclosures, including with his refusals to share unredacted copies of the report with Congress: because Trump’s documented role in encouraging Stone’s efforts is far stronger than it is in any of the other potential incidences of election tampering.

Finally, all this may change the calculus if and when Julian Assange gets extradited to the US. Trump was asked about — but refused to answer — whether he considered a pardon for Assange.

Trump’s lies to Mueller are perhaps best documented as they pertain to WikiLeaks. Using Gates as a witness at Stone’s trial will make the trial an exhibition of the President’s lies as much as those of his rat-fucker.

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. 

How to Read the Mueller Report

Politico has a piece describing how key players will read the Mueller report that starts by admitting the usual workaround — reading the index — won’t work.

The capital has already evolved one model for processing a big tell-all book: “the Washington read,” where you scan the index (assuming there is one) to find everything it says about you, your boss and your enemies and then fake like you’ve read the rest. But this time that won’t be enough. The goods might not come easily. They might be buried in an obscure subsection. And there’s way more at stake than in the typical gossipy memoir.

Further down, David Litt graciously included me on a list of legal and analytical voices he’ll turn to to help understand the report.

Former Obama White House speechwriter David Litt will have Twitter open while he’s making his way through the report, watching in particular for posts from several of the more prominent legal and analytical voices who have narrated the story’s plot twists as it evolved: Ken White (@popehat), Mimi Rocah (@Mimirocah1), Renato Mariotti (@Renato_Mariotti), Marcy Wheeler (@emptywheel), Neal Katyal (@neal_katyal) “for the definitive word on special-counsel regs” and Nate Silver and FiveThirtyEight “to think through the political implications.”

Since most of the methods described by Politico’s sources actually will be counterproductive for anything but rushing a self-serving message to the press, I thought I’d lay out some tips for how I’ll read it.

Understand what the report is and is not

Even before Barr releases the report, those planning on reading it would do well to reflect on what it is — and what it is not. It is, by regulation, a report on the prosecutions and declinations the Mueller team took during their tenure.

It is not supposed to be, contrary to many claims, a report on everything that Mueller discovered. Already there have been hints that it will not include the second half of Rod Rosenstein’s mandate to Mueller — to figure out the nature of links between Trump’s team and Russia. If that stuff is excluded, then it probably will get reported, secretly, to the Intelligence Committees and no further. That’s important because the stuff that would compromise Trump — but would not necessarily implicate him in a crime — may by definition not show up in this report (though the stuff specifically relating to Trump may show up in the obstruction case).

Finally, it’s unclear how much Mueller will include about referrals and ongoing investigations. I expect he’ll include descriptions of the things he and Rosenstein decided deserved further prosecutorial scrutiny but did not fit under the narrow rubric of whether Trump’s team coordinated or conspired with the Russian government on the hack-and-leak. But with the sole exception of three known referrals: the hush payments negotiated by Michael Cohen, the prosecution of Mike Flynn partner Bijan Kian, and the prosecution of Sam Patten, I expect any discussion of these matters to be redacted — appropriately so.

Map out what we already know about prosecutorial decisions

Since the report is by regulation supposed to describe the prosecutorial and declination decisions, we already know much of what will show up in the report, because Mueller has helpfully showed his prosecutorial decisions right here on his webpage. Here are some questions we should expect the report to answer (working from the bottom):

Papadopoulos

  • Why did Mueller consider George Papadopoulos’ lies to the FBI material to the investigation? [Note, Mueller has already answered this in Papadopoulos’ sentencing memo.]
  • Did Mueller find any evidence that Papadopoulos had passed on news that Russia was planning to dump emails pertaining to Hillary in an effort to help Trump? What did those people do with that information?
  • What did the investigation of Sergei Millian, who started pitching a Trump Tower deal and other seeming intelligence dangles to Papadopoulos in July 2016 reveal? [This is a subject that may either be redacted, referred, or treated as counterintelligence saved for the Intelligence Committees.]

Mike Flynn

  • Why were Flynn’s lies about assuring Sergey Kislyak that Trump would revisit sanctions deemed material to the investigation? [Note, Mueller has already answered this in Flynn’s sentencing memo, but it is significantly redacted]
  • Why did Mueller give Flynn such a sweet plea deal, as compared to his partner Bijan Kian, who was named a foreign agent? What information did he trade to get it? [Some of this is included in his sentencing memo — because he flipped early, it led others to correct their lies — but key parts of it remain redacted.]
  • What other Trump aides (like KT McFarland) lied about the same topics, and why were their attempts to clean that up before being charged deemed sufficient to avoid prosecution?

There’s likely a great deal pertaining to Flynn — likely including the third topic on which he cooperated — that will be deemed counterintelligence information that will be briefed to the Intelligence Committees.

Richard Pinedo

  • Why did Mueller prosecute Pinedo as part of his investigation?
  • How did Mueller determine that Pinedo had not wittingly worked with Yevgeniy Prigozhin’s trolls?

There’s likely some counterintelligence information about how the trolls duped Pinedo and how the US might shore up that vulnerability, but given the focus on the trolls, I expect FBI has already briefed that to the Intelligence Committees in substantial part.

The Internet Research Agency

  • Given that Russia’s activities weren’t under the original scope of Mueller’s investigation; why did the trolls get moved under him? [The answer may be because of the Trump people found to have interacted with the trolls.]
  • Why did Mueller consider prosecuting Concord Management worth the headache?
  • How much of the relationship between Yevgeniy Prigozhin and Putin impacted this prosecution?
  • What did the three Trump campaign officials in Florida described in the indictment do after being contacted by the trolls about events in August 2016? Did any other people in the campaign join in the efforts to coordinate with the trolls? Why weren’t they prosecuted? [Whether the names of these three people are unredacted will be one of the more interesting redaction questions.]
  • Why weren’t the Trump and other political activists prosecuted?

We already know the answer to why Americans (save Richard Pinedo) were not prosecuted in this indictment: because they did not realize they were coordinating with Russian-operated trolls, and because, unlike Pinedo, nothing about their activities was by itself illegal.

There’s likely to be a lot of counterintelligence information on this effort that has been shared with the Intelligence Committees in ongoing fashion.

Alex van der Zwaan

  • Why did Mueller prosecute van der Zwaan himself, rather than referring it (as he did with Greg Craig and the other Manafort-related corruption)? Did that have to do with van der Zwaan’s independent ties with either Konstantin Kilimnik or his father in law, German Khan?

Rick Gates and Paul Manafort

  • Why did Mueller keep both Gates and Manafort prosecutions (the tax fraud prosecuted in EDVA and the FARA and money laundering violations in DC) himself? Was this just an effort to flip both of them, or did it pertain to an effort to understand the nature of their relationship with Kilimnik and a bunch of Ukrainian and Russian oligarchs?
  • What continuity is there between the methods and relationships involved in Manafort’s work in Ukraine with that he did for Trump?
  • What did Mueller get out of the cooperation agreements with Gates? This will be extensive! But a lot of it may be redacted because it pertains to counterintelligence or ongoing investigations.
  • What did Mueller get out of the failed cooperation agreement with Manafort? Part of this, too, is counterintelligence, plus Manafort appears to have made it through one grand jury appearance on November 2 without lying. But that topic may be redacted as either as part of either counterintelligence or ongoing investigations.

Konstantin Kilimnik

Because he charged Kilimnik and Kilimnik was so central to so much of his investigation, Mueller could describe why the government believes Kilimnik has a tie with the GRU. He likely won’t.

GRU hack indictment

  • Russia’s activities weren’t under the original scope of Mueller’s investigation; why did the GRU hack get moved under him? [The answer may be because Roger Stone and Lee Stranahan and Trump — in his encouragement — were implicated.]
  • Why weren’t WikiLeaks and/or Assange charged in the indictment?
  • What was the nature of Stone’s ties to Guccifer 2.0?
  • Was there reason to believe Trump knew GRU would respond to his encouragement?
  • How did the GRU operation link up with the activities of other people suspected to have ties to GRU, like the broker on the Trump Tower deal, Kilimnik, and a Mike Flynn interlocutor?
  • How did Mueller assess whether and how Russia used the data stolen from the Democrats, especially the analytics data stolen in September?
  • Did the data Kilimnik received from Manafort and shared with others make its way into GRU’s hands?

Michael Cohen

  • Why were Cohen’s lies about the Trump Tower deal deemed material to the investigation? [Unlike with Flynn and Papadopoulos, Mueller didn’t really explain this in the sentencing memo.]
  • Why was Cohen charged with lying, but not those he conspired to lie with, including Jay Sekulow, Don Jr,  and the President?
  • What other details of Trump’s business dealings did Cohen share?

Roger Stone

  • Why were Roger Stone’s lies to Congress deemed material to the Mueller investigation?
  • From whom did Stone and Jerome Corsi learn what GRU and WikiLeaks were planning to release?
  • Did Stone succeed in holding the release of the Podesta emails to dampen the Access Hollywood video release, as Corsi alleges?
  • What was Stone trying to hide when he had Corsi write a cover story for him on August 30, 2016?
  • Why didn’t Stone’s coordination to optimize WikiLeaks’ releases amount to coordination with Russia?
  • Why weren’t Corsi and Randy Credico (the latter of whom Stone accuses of lying to the grand jury) charged?
  • Why wasn’t Assange charged in conjunction with Stone?

Stone is still awaiting trial and prosecutors have just told the press that Stone remains under active investigation. So I expect virtually all the Stone section to be redacted.

Map out the big questions about declinations

Mueller will also need to explain why he didn’t charge people he investigated closely. This is another section where the fight over redactions is likely to be really heated.

Trump on obstruction and conspiracy

  • Did Mueller consider Trump’s enthusiastic encouragement of Russia’s operation and his move to offer Russia sanctions relief from a prosecutorial standpoint (that is, a quid pro quo trading the Trump Tower deal and election assistance for sanctions relief)? If so, what were the considerations about potential criminality of it, including considerations of presidential power? If not, was any part of this referred?
  • What was the consideration on Trump and obstruction? Did Mueller intend to leave this decision to Congress? [The report will not answer the second question; if Mueller did intend to leave the decision to Congress, as his predecessors Leon Jaworski and Ken Starr did for good Constitutional reasons, he will not have said so in the report.]

Paul Manafort on quid pro quo

  • Was Mueller able to determine why Manafort shared polling data with Konstantin Kilimnik on August 2, 2016? Did he know it would be shared with Russians close to the election interference operation? Did he agree to a quid pro quo involving the Ukrainian peace deal as sanctions relief he pursued for another 20 months? Did Manafort’s lies prevent Mueller from answering these questions?
  • What was the nature of and what was ultimately done with that polling data?
  • Why didn’t Mueller charge this as conspiracy or coordination? Did it have to do with Manafort’s lies and Gates’ limited credibility?

The June 9 meeting and follow-up

  • What consideration did prosecutors give to charging this as an instance of conspiracy or coordination?
  • What consideration did prosecutors give to charging the public claims about this meeting as an instance of false statements?
  • Did Trump know about this meeting and if so did that change the calculus (because of presidential equities) on a quid pro quo?
  • Did Mueller decide Don Jr is simply too stupid to enter into a conspiracy?
  • Did Mueller consider (and is DOJ still pursuing) prosecutions of some of the members of the Russian side of this meeting? [Note that Barr did not clear all US persons of conspiracy on the hack-and-leak; Emin Agalarov canceled his concert tour this year because his lawyer said he’d be detained, SDNY’s indictment of Natalia Veselnitskaya treats her as a Russian agent, and Rinat Akhmetshin and Ike Kaveladze may both have exposure that the Trump flunkies would not.]

The Seychelles meeting and related graft

  • Did Mueller decide the graft he uncovered was not criminal, not prosecutable, or did he refer it?

Carter Page

I, frankly, am not that interested in why Mueller didn’t prosecute Carter Page, and this section might be redacted for his privacy. But I am interested in whether leaks played a part of it, or whether Russians used him as a decoy to distract from where the really interesting conversations were happening.

Understand referrals and ongoing investigations, to the extent they’re included

As noted above, Mueller may have included a description of the referrals he made and the ongoing investigations that reside with some of his prosecutors and/or the DC AUSAs brought in to pick up his work. This includes, at a minimum:

  • Inauguration graft
  • Potential Don Jr and Jared Kushner graft
  • Mystery Appellant
  • Ongoing Stone investigations
  • The Cohen hush payments
  • Bijan Kian’s prosecution
  • Sam Patten’s prosecution
  • Other Manafort graft, including potential coordination with states
  • Tom Barrack’s graft
  • Greg Craig, Tony Podesta, Vin Weber, Steve Calk
  • Konstantin Kilimnik (which is likely a counterintelligence investigation, not a criminal one)

One big question I have is whether any criminal conduct with Russia that doesn’t involve the election would be covered by this report, referred, or considered an ongoing investigation??

While we should expect details of the decision to refer the Cohen, Bijan Kian, and Sam Patten prosecutions, most of the rest of this would likely be redacted (including the Craig prosecution, since it only just got indicted).

Understand the structure of the report

Having prepped yourself for what to expect in the report (and what won’t be there, like the counterintelligence stuff), you can now start by reviewing the structure of the report. Bill Barr claims the report is split into two sections, the Russian interference and Mueller’s thinking on obstruction. That may or may not be true — it’s one thing to assess when first reviewing the report.

One particularly interesting question will be the extent to which Mueller included stuff that might otherwise be counterintelligence information — things Russia did that would compromise or embarrass Trump — in the obstruction section.

Another thing to do while understanding the structure of the report is to see where all the things that must be in there appear. This will be particularly helpful, for example, in figuring out where what is sure to be a lot of redacted content on Roger Stone appears.

Do a first read of the report, paying particular attention to the footnotes

I find it really useful to share screen caps of what I’m finding in a first read, either on Twitter (for crowd sourcing) or in a working thread. The press flacks will do the work of finding the key takeaways and running to the cable news about them. Better to spend the time finding the details that add nuance to claimed takeaways, if only because adding nuance to claimed takeaways quickly helps avoid an erroneous conventional wisdom from forming.

Develop theories for redacted content

You’re not going to be able to prove what lies behind a redaction unless Mueller and DOJ commit redaction fail (they’re not Paul Manafort trying to signal to co-conspirators, so that won’t happen) or unless they accidentally leave one reference out. But based on the grammar of sentences and the structure of the report and — hopefully — Barr’s promised color coding of redactions, you should be able to develop theories about what generally is behind a redaction.

Identify big redacted sections

There may be sections that are both entirely redacted about which no clues as to the content exist. At the very least, identify these, and at least note where, structurally, they appear, as that may help to explain what big questions about the Mueller report are outstanding.

Read it again

I know most editors in DC won’t pay for this, which is why reporting on documents is often less rigorous than journalism involving talking to people. But for documents like this, you really need to read iteratively, in part because you won’t fully understand what you’re looking at until reading the whole thing a first time. So after you read it the first time, read it again.

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

The Many Sided Stone: The Investigation Is Not Over

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

Roger Stone’s cry for help

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

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

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

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

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

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

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

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

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

Stone’s throw of the dice

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

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

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

Embarrass Credico

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

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

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

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

Appeal to Barr and Trump

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

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

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

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

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

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

Engage in graymail

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

Misstate Barr’s citation of Mueller’s findings

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

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

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

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

Andrew Miller claims he has been mooted

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

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

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

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

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

Mueller may be done but prosecutors are not

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

The Roger Stone Indictment Proves Barr’s Memo Understates Trump Flunkies’ Complicity

I’ve made this point implicitly a few times, but it bears making explicitly. We have proof that Bill Barr’s memo spins the known contents of the Mueller Report to minimize the complicity of Trump’s flunkies. That’s because we can compare what we know about Roger Stone’s efforts to optimize the release of the emails Russia stole with the language used in the memo.

As alleged in sworn statements and his indictment, Stone’s actions include at least the following:

  • Around July 19, 2016: Fresh off dining with some Brexiteers, Stone calls Trump and tells him, “within a couple of days, there would be a massive dump of emails that would damage Hillary Clinton’s campaign,” to which Trump responds, “wouldn’t that be great.”
  • After July 22: A senior Trump campaign official “was directed” (the indictment doesn’t say by whom) to figure out from Stone what else would be coming
  • July 25: Stone emails Jerome Corsi and asks him to “get the pending WikiLeaks emails”
  • August 2: Corsi writes back and reflects knowledge that the emails would include Podesta ones and there would be two email drops, one shortly after he returned and one in October
  • October 4: After Assange has a press conference but doesn’t release any emails, Steve Bannon emails Stone and asks what happened, and Stone replies that WikiLeaks will release “a load every week going forward”
  • October 7: As the Podesta emails start to come out right after the Access Hollywood video — timing that Jerome Corsi has claimed Stone helped ensure — a Bannon associate texts Stone and says, “well done”

Now, none of that was itself charged as a crime. Stone was not charged with conspiring with WikiLeaks. But then, short of making an argument that WikiLeaks is a known agent of Russia — which the US government has never done — optimizing the WikiLeaks release is not a crime. But assuming that Corsi is correct that Stone got WikiLeaks to hold the Podesta release to dampen the impact of the Access Hollywood video, it is absolutely coordination. And even according to Stone — who believed Trump needed to avoid alienating women to win — dampening the release of the video influenced the election.

Now consider how this behavior falls into Barr’s supposed exoneration of Trump campaign involvement in the hack-and-leak.

First, there’s Barr’s truncated citation of a Mueller Report sentence. [my emphasis throughout]

As the report states: “[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

Then a footnote defining what the word “coordinated” means in that sentence.

In assessing potential conspiracy charges, the Special Counsel also considered whether members of the Trump campaign “coordinated” with Russian election interference activities. The Special Counsel defined “coordinated” as an “agreement–tacit or express–between the Trump Campaign and the Russian government on election interference.”

Finally, there’s Barr’s own version.

The second element involved the Russian government’s efforts to conduct computer hacking operations designed to gather and disseminate information to influence the election. The Special Counsel found that Russian government actors successfully hacked into computers and obtained emails from persons affiliated with the Clinton campaign and Democratic Party organizations, and publicly disseminated those materials through various intermediaries, including WikiLeaks. Based on these activities, the Special Counsel brought criminal charges against a number of Russian military officers for conspiring to hack into computers in the United States for purposes of influencing the election. But as noted above, the Special Counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in these efforts, despite multiple offers from Russian-affiliated individuals to assist the Trump campaign.

The exoneration for coordination in Mueller’s language, at least, extends only to the Trump campaign, not to rat-fuckers working on the side (one of the things Mueller reportedly asked a lot of witnesses was precisely when and why Stone left the campaign). And at least according to this language, Mueller’s assessment of coordination extended only to coordination with the Russian government. So even if Mueller and the US government are getting close to labeling WikiLeaks a Russian entity, it still wouldn’t count for this assessment. Unsurprisingly, Barr relies on that language to give the Trump campaign a clean bill of health on the hack-and-leak side.

Most cynically, though, even after Barr acknowledges that the Russians used WikiLeaks to disseminate the stolen emails, the very next sentence doesn’t mention the charges Mueller brought against Stone for hiding his own (and through him, the campaign’s, including Donald Trump’s) coordination of the releases “for purposes of influencing the election.”

But we know Stone’s indictment has to be in the report. That’s because the report, by regulation, must list all Mueller’s prosecutorial decisions. So not only would Mueller describe that he indicted Stone, but he probably also explains why he didn’t include a conspiracy charge in Stone’s indictment (which probably relates primarily to First Amendment concerns, and not any illusions about WikiLeaks’ willing service for Russia on this operation). So it must be in the report. But Barr doesn’t mention that, indeed, the Trump campaign, through their associated rat-fucker, did actually coordinate on the hack-and-leak and did actually influence the election by doing so, they just didn’t coordinate directly with the Russian government.

On this matter, it’s crystal clear that Barr cynically limited his discussion of the report to obscure that Mueller had, indeed, found that the campaign “coordinated” on the hack-and-leak for purposes of influencing the election.

Barr has already demonstrated bad faith in his representation of Mueller’s findings. Which is why it is so alarming that — according to an uncharacteristically alarmed Peter Baker — DOJ plans to write a summary of Mueller’s report for Congress, not send over a redacted version of it.

Mueller’s full report has yet to be released, and it remained unclear if it ever would be. House Democrats have demanded that it be sent to them by next Tuesday, but the Justice Department outlined a longer schedule, saying that it will have its own summary ready to send to lawmakers within weeks, though not months.

Barr has already failed the test of whether he can summarize Mueller’s results in good faith.

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. 

After Mueller: An Off-Ramp on Russia for the Venal Fucks

We don’t know what the Mueller report says, though given William Barr’s promise to brief the Judiciary Committee leaders this weekend and follow it with a public summary, it’s not likely to be that damning to Trump. But I can think of five mutually non-exclusive possibilities for the report:

  • Mueller ultimately found there was little fire behind the considerable amounts of smoke generated by Trump’s paranoia
  • The report will be very damning — showing a great deal of corruption — which nevertheless doesn’t amount to criminal behavior
  • Evidence that Manafort and Stone conspired with Russia to affect the election, but Mueller decided not to prosecute conspiracy itself because they’re both on the hook for the same prison sentence a conspiracy would net anyway, with far less evidentiary exposure
  • There’s evidence that others entered into a conspiracy with Russia to affect the election, but that couldn’t be charged because of evidentiary reasons that include classification concerns and presidential prerogatives over foreign policy, pardons, and firing employees
  • Mueller found strong evidence of a conspiracy with Russia, but Corsi, Manafort, and Stone’s lies (and Trump’s limited cooperation) prevented charging it

As many people have pointed out, this doesn’t mean Trump and his kin are out of jeopardy. This NYT piece summarizes a breathtaking number of known investigations, spanning at least four US Attorneys offices plus New York state, but I believe even it is not comprehensive.

All that said, we can anticipate a great deal of what the Mueller report will say by unpacking the lies Trump’s aides told to hide various ties to Russia: The report will show:

  • Trump pursued a ridiculously lucrative $300 million real estate deal even though the deal would use sanctioned banks, involve a former GRU officer as a broker, and require Putin’s personal involvement at least through July 2016.
  • The Russians chose to alert the campaign that they planned to dump Hillary emails, again packaging it with the promise of a meeting with Putin.
  • After the Russians had offered those emails and at a time when the family was pursuing that $300 million real estate deal, Don Jr took a meeting offering dirt on Hillary Clinton as “part of Russia and its government’s support for Mr. Trump.” At the end (per the sworn testimony of four people at the meeting) he said his father would revisit Magnitsky sanctions relief if he won. Contrary to the claim made in a statement authored by Trump, there was some effort to follow up on Jr’s assurances after the election.
  • The campaign asked rat-fucker Roger Stone to optimize the WikiLeaks releases and according to Jerome Corsi he had some success doing so.
  • In what Andrew Weissmann called a win-win (presumably meaning it could help Trump’s campaign or lead to a future business gig for him), Manafort provided Konstantin Kilimnik with polling data that got shared with Ukrainian and Russian oligarchs. At the same meeting, he discussed a “peace” plan for Ukraine that would amount to sanctions relief.
  • Trump undercut Obama’s response to the Russian hacks in December 2016, in part because he believed retaliation for the hacks devalued his victory. Either for that reason, to pay off Russia, and/or to pursue his preferred policy, Trump tried to mitigate any sanctions, an attempt that has (with the notable exception of those targeting Oleg Deripaska) been thwarted by Congress.

We know all of these things — save the Stone optimization detail, which will be litigated at trial unless Trump pardons him first — to be true, either because Trump’s aides and others have already sworn they are true, and/or because we’ve seen documentary evidence proving it.

That’s a great deal of evidence of a quid pro quo — of Trump trading campaign assistance for sanctions relief. All the reasons above may explain why Mueller didn’t charge it, with the added important detail that Trump has long been a fan of Putin. Trump ran openly on sanctions relief and Presidents get broad authority to set their own foreign policy, and that may be why all this coziness didn’t amount to criminal behavior: because a majority of the electoral college voted (with Russia’s involvement) to support those policies.

Whatever reason this didn’t get charged as a crime (it may well have been for several involved, including Trump), several things are clear.

First, consider all this from the perspective of Russia: over and over, they exploited Trump’s epic narcissism and venality. Particularly with regards to the Trump Tower deal, they did so in a way that would be especially damaging, particularly given that even while a former GRU officer was brokering the deal, the GRU was hacking Trump’s opponent. They often did so in ways that would be readily discovered, once the FBI decided to check Kilimnik’s Gmail account. Russia did this in ways that would make it especially difficult for Trump to come clean about it, even if he were an upstanding honest person.

Partly as a result, partly because he’s a narcissist who wanted to deny that he had illicit help to win, and partly because he’s a compulsive liar, Trump and his aides all lied about what they’ve now sworn to be true. Over and over again.

And that raised the stakes of the Russian investigation, which in turn further polarized the country.

As I noted here, that only added to the value of Russia’s intervention. Not only did Trump’s defensiveness make him prefer what Putin told him to what American Russian experts and his intelligence community would tell him, but he set about destroying the FBI in an effort to deny the facts that his aides ultimately swore were true. Sure, Russia hasn’t gotten its sanctions relief, yet. But it has gotten the President himself to attack the American justice system, something Putin loves to do.

We don’t know what the Mueller report will say about Trump’s role in all this, and how that will affect the rest of his presidency. We do know he remains under investigation for his cheating (as an unindicted co-conspirator in the ongoing hush money investigation) and his venality (in the inauguration investigation, at a minimum).

We do know, however, that whatever is in that report is what Mueller wants in it; none of the (Acting) Attorneys General supervising him thwarted his work, though Trump’s refusal to be interviewed may have.

But we also know that Russia succeeded wildly with its attack in 2016 and since.

Democrats and Republicans are going to continue being at each other’s throats over Trump’s policies and judges. Trump will continue to be a venal narcissist who obstructs legitimate oversight into his mismanagement of government.

Both sides, however, would do well to take this report — whatever it says — as the final word on this part of the Russian attack in 2016, and set about protecting the country from the next attack it will launch.

An unbelievable swath of this country — including the denialists who say all those things that Trump’s own aides swore to doesn’t amount to evidence of wrongdoing — have chosen for tribal reasons (and sometimes venal ones) to side with kleptocratic Russians over the protection of America. Now that the report is done, it’s time to focus on protecting the United States again.

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.