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Are Kulyk, Lutsenko, and Shokin the Three Ukrainians that Show Bill Barr Is Part of the Conspiracy?

As part of DOJ’s extensive efforts to obstruct any investigation into Trump’s role in the Ukrainian conspiracy, they have made narrow denials that Bill Barr had an active role in the investigation in the wake of the July 25 call, while admitting that three Ukrainians volunteered information to John Durham.

“A Department of Justice team led by U.S. Attorney John Durham is separately exploring the extent to which a number of countries, including Ukraine, played a role in the counterintelligence investigation directed at the Trump campaign during the 2016 election,” DOJ spokeswoman Kerri Kupec said Wednesday. “While the Attorney General has yet to contact Ukraine in connection with this investigation, certain Ukrainians who are not members of the government have volunteered information to Mr. Durham, which he is evaluating.”

DOJ made that statement on September 25. Yet no reporter has yet obtained the names of the three Ukrainians who offered information to John Durham.

There’s a possible clue in the Impeachment Report released by HPSCI today. It describes three Ukrainians — Yuriy Lutsenko, Viktor Shokin, and Konstantin Kulyk — retaining Victoria Toensing back in April.

Beginning in mid-April, Ms. Toensing signed retainer agreements between diGenova & Toensing LLP and Mr. Lutsenko, Mr. Kulyk, and Mr. Shokin—all of whom feature in Mr. Solomon’s opinion pieces.81 In these retainer agreements, the firm agreed to represent Mr. Lutsenko and Mr. Kulyk in meetings with U.S. officials regarding alleged “evidence” of Ukrainian interference in the 2016 U.S. elections, and to represent Mr. Shokin “for the purpose of collecting evidence regarding his March 2016 firing as Prosecutor General of Ukraine and the role of Vice President Biden in such firing, and presenting such evidence to U.S. and foreign authorities.”82 On July 25, President Trump would personally press President Zelensky to investigate these very same matters.

While Kulyk is (or was) technically still part of the Ukrainian government at this time — he is reportedly being fired in Volodymyr Zelensky’s efforts to clean up Ukraine’s prosecutors office — Rudy always cites three people to support his conspiracy theories about Ukraine.

If these three men already have shared information with Durham, it would be proof that the investigation is about collecting disinformation, not evidence.

Which is probably part of the reason Barr is claiming to doubt the outcome of the IG investigation. Because without any predicate for an investigation into the origin of the investigation into Trump, it becomes clear that it’s nothing but the use of DOJ resources to further a conspiracy to help Donald Trump get reelected.

After Engaging in Multiple Overt Acts Benefitting a Conspiracy, Bill Barr Had Kerri Kupec Commit the Most Overt Act

Before I get into how gullible DOJ reporters continue to be in this WaPo story relaying how Bill Barr refused to publicly announce that the President broke no law in his July 25 phone call with Volodymyr Zelensky, let me review a series of overt acts that might fairly be deemed part of what DOJ has already charged as a conspiracy.

DOJ fails to do the most basic “connect-the-dots” assessment implemented after 9/11

First, after John Demers went to the White House and discovered that his boss was implicated in a phone call that a whistleblower had complained about, when the Intelligence Community Inspector General sent a more formalized complaint to DOJ, DOJ limited the scope of their review of the complaint to one small part of it, just the TELCON, not the full complaint. This had the effect of preventing anyone from doing what the entire surveillance apparatus of FBI has been designed to do since 9/11, which is to search in their databases for all the people mentioned in a lead to find out if that lead connects to other known criminals. Here’s some of what DOJ knew when on the Ukraine investigation.

Had anyone followed the standard connect-the-dot rules in reviewing the whistleblower complaint, they would have searched on all the names in the references in the complaint, including those in this OCCRP piece, which was mentioned multiple times in the complaint.

That piece is a profile of Igor Fruman and Lev Parnas.

So if any person reviewing the whistleblower complaint had followed the approach put into place to protect the nation after 9/11, that person would have discovered:

  • Fruman and Parnas were making big donations to Republicans tied to certain policy outcomes and paying for those donations through a shell company
  • Parnas was also involved in propaganda sent, on White House stationery, to State in support of the same policy outcomes
  • The money for the shell company came from a lawyer who specializes in laundering money through real estate for foreigners
  • One policy issue Fruman and Parnas were pushing with their donations was one of the policy outcomes described in the Trump-Zelensky call, the withdrawal of Marie Yovanovitch

In short, there is no way a competent investigator would have done a connect-the-dots assessment on the whistleblower complaint and not realized it was closely related to a Full Investigation bearing down on an indictment in SDNY.

Instead of doing that marginally competent assessment, DOJ instead gave the whistleblower complaint the all-clear, in part by severing the transcript (which was damning enough) from the backup (which described OMB withholding funds, which is a separate crime, but also included the reference to the profile on suspects against whom SDNY had a fully predicated investigation into related actions). The decision to consider only the transcript affirmatively prevented DOJ from doing the kind of dot-connecting everything since 9/11 has claimed to support.

Whoever made that decision — whether willfully or unknowingly — prevented DOJ from formally realizing that the President’s call was closely tied to behavior that DOJ would indict less than two months later.

DOJ fails to share the whistleblower complaint with the FEC

At that point in late August, having decided that no crimes were committed, DOJ should have shared the whistleblower complaint — which even DOJ acknowledged raised possible election related crimes — with the Federal Election Commission under the terms of a Memorandum of Understanding they have. As of October 18, according to a letter from Ellen Weintraub responding to questions from Amy Klobuchar, DOJ had not done so.

This is the second time that you, as Ranking Member of the Senate Rules Committee with jurisdiction over federal elections, have written to commissioners of the Federal Election Commission to get a simple Yes or No answer to the question: Did the Department of Justice (DOJ) notify the FEC about or refer to the FEC a campaign finance complaint regarding potential violations of the foreign national political-spending ban by the President? Your October 2 letter specifically referenced a New York Times op-ed referring to a complaint reportedly originating with the Office of the Inspector General of the Intelligence Community.1 As noted in the Commission’s October 8 response, the FEC does not generally confirm or deny the agency’s receipt of notice or a referral from DOJ.2 However, you have asked me an important question in the exercise of your oversight authority, and commissioners should be responsive if it is legal for us to do so. It is.

For these reasons, I am answering your question: No. The FEC has not received a notification or referral from DOJ regarding the complaint you reference.

While DOJ is empowered to make any decisions about whether the call involved a crime, FEC is empowered to make decisions about whether it merits a civil penalty. And FEC might have connected the dots DOJ failed to. They would have seen that the phone call related to a campaign finance complaint plus follow-up it had already received on Parnas and Fruman, so it would have known almost as much as DOJ, had DOJ tried to connect the dots.

It turns out, it is a crime to prevent the FEC from learning information it needs to do its job. It’s not only the crime DOJ is about to charge the Russian Internet Research Agency trolls with a superseding indictment for, but it’s the crime that SDNY charged Parnas and Fruman with even before Weintraub sent her letter.

DOJ might have decided that they didn’t need to forward the complaint because Republican Matthew Petersen resigned from the FEC on the suspiciously timed August 26 and so ensured FEC couldn’t conduct any official business. But as the timing of the Parnas and Fruman indictment — which Bill Barr knew about — makes clear, DOJ still believes it can charge people for withholding information from FEC.

DOJ delays notifying Congress and hides Bill Barr’s involvement by overclassifying their OLC memo

Then, having prevented FEC from receiving information that would alert them that the President had a dodgy call that related to an existing campaign finance complaint, OLC tried to prevent Congress from learning of this — as required by whistleblower laws — by writing an OLC memo saying that this complaint did not amount to an official action.

OLC head Steve Engel wrote that memo on September 3, by which day DOJ should have alerted the Intelligence Committees of the complaint. That memo was used as an excuse to delay informing Congress. That delay included over a week during which the Administration continued to illegally withhold duly authorized security funding from Ukraine without explaining to Congress why it was doing so, a delay that Bill Taylor said (in his testimony to Congress) did real harm to Ukraine. All told, the OLC memo succeeded in delaying sharing the complaint with Congress for 23 days, something that DOJ’s own Inspector General noted (in a letter written on behalf of 70 Inspectors General) was a clear violation of the Intelligence Community Whistleblower Protection Act.

As Congress has done in every other whistleblower law passed since 1978, it entrusted IGs to play a central role in the evaluation of the information provided. Specifically, the ICWPA requires an IG to make within 14 days a factual determination as to whether an alleged urgent concern provided to the IG “appears credible.” If the IG determines that the allegation appears credible, which necessarily includes a determination by the IG that it involves an “urgent concern,” the IG is required to forward the allegation to the head of the agency and the agency head “shall” forward it to Congress within 7 days “with any comments.” The ICWPA’s use of the word “shall” makes it clear that the statute does not authorize the agency head, or any other party for that matter, to review or second-guess an IG’s good faith determination that a complaint meets the ICWPA’s statutory language.

Worse still, DOJ tried to delay informing Congress that Bill Barr was personally implicated by this call by overclassifying the OLC memo — in part by treating Barr’s implication in it, which the White House had deemed Secret, as Top Secret — and having done so, sharing a water-downed version of its own OLC memo with Congress on September 24 that hid Barr’s role and other key details.

Bill Barr continues to engage in overt acts in a conspiracy to provide John Durham propaganda to support an investigation into those who investigated Trump

And all this while — in the period while DOJ was scoping its own investigation to avoid connecting the dots and while DOJ was preventing FEC from learning of the whistleblower complaint and while DOJ was preventing Congress from receiving the complaint (the latter two acts in contravention of the law) — Bill Barr continued to engage in overt acts in the broader conspiracy to collect and provide to John Durham corroboration (no matter how sketchy or obviously coerced) that the investigation into Trump’s ties to Russia was ginned up by the Deep State.

Mind you, Barr may have already committed an overt act in the Ukrainian side of this conspiracy. By September 25, according to a DOJ statement, individual Ukrainians had already “volunteered” information to Durham.

A Department of Justice team led by U.S. Attorney John Durham is separately exploring the extent to which a number of countries, including Ukraine, played a role in the counterintelligence investigation directed at the Trump campaign during the 2016 election,” DOJ spokeswoman Kerri Kupec said Wednesday. “While the Attorney General has yet to contact Ukraine in connection with this investigation, certain Ukrainians who are not members of the government have volunteered information to Mr. Durham, which he is evaluating.”

Barr is micromanaging Durham’s investigation, so there’s little chance that these “volunteers” got from Rudy Giuliani to Durham without Barr’s own involvement.

In addition, Barr took a meeting with Victoria Toensing and Joe DiGenova to talk about their client, the mobbed up Dmitry Firtash, which was something valuable the lawyers could offer to the Firtash in exchange for him funding the Parnas and Fruman influence operation. To be sure, the Supreme Court has determined that taking a meeting does not amount to a thing of value amounting to bribery. But their ability to get such a meeting was nevertheless one of the reasons Firtash replaced Lanny Davis with Toensing and DiGenova and, in exchange, helped them feed propaganda to the Durham investigation.

The head of the Criminal Division, Brian Benczkowski, also took a meeting with Rudy in this time period (it’s unclear which client Rudy was pitching), but he claims to be unaware of the investigation into Rudy that was ongoing at SDNY, which may well be true but if so is tantamount to a confession that Benczkowski did not attempt to connect any dots on the whistleblower complaint.

But as to Barr, even as this story was breaking, Barr was in Italy pretending to be a Line FBI Agent, watching movies created by the Russian linked lawyer for Joseph Mifsud, in hopes of getting Italy to tell him and Durham that Mifsud was actually a Western intelligence asset and not the Russian one that Mueller (and abundant public evidence) suggested him to be.

In other words, by September 25, someone had already shared “evidence” with the Barr-micromanaged Durham investigation from the Ukrainian side of this information operation, and Barr was in Italy looking for more propaganda, to say nothing of how his meeting with Dmitry Firtash’s lawyers helped fund the information operation.

Barr did not publicly exonerate Trump personally — he had Kerri Kupec do it for him

I apologize for being long-winded. But all that is the necessary context that DOJ beat reporters should bring to a story on what Barr did in response to a request from Trump to make a public statement exonerating the President. Here’s the news in the WaPo piece, amid a bunch of Barr’s past PR and absent most of the details I’ve laid out above.

President Trump wanted Attorney General William P. Barr to hold a news conference declaring that the commander in chief had broken no laws during a phone call in which he pressed his Ukrainian counterpart to investigate a political rival, though Barr ultimately declined to do so, people familiar with the matter said.

The request from Trump traveled from the president to other White House officials and eventually to the Justice Department. The president has mentioned Barr’s declination to associates in recent weeks, saying he wished Barr would have held the news conference, Trump advisers say.

[snip]

The request for the news conference came sometime around Sept. 25, when the administration released a rough transcript of the president’s July phone call with Ukrainian President Volodymyr Zelensky.

[snip]

As the rough transcript was released, a Justice Department spokeswoman said officials had evaluated it and the whistleblower complaint to see whether campaign finance laws had been broken, determined that none had been and decided “no further action was warranted.”

It was not immediately clear why Barr would not go beyond that statement with a televised assertion that the president broke no laws, nor was it clear how forcefully the president’s desire was communicated. A Justice Department spokeswoman declined to comment. A senior administration official said, “The DOJ did in fact release a statement about the call, and the claim that it resulted in tension because it wasn’t a news conference is completely false.”

So, at a time after someone had already shared Ukrainian information with the Barr-micromanaged Durham investigation, after Barr had met with lawyers who were trading that access for propaganda to feed Durham, after Barr’s DOJ had scoped the whistleblower complaint to ensure it would not tie the complaint to the fully predicated criminal investigation in SDNY, after DOJ failed to turn over the complaint to FEC as required by a memorandum of understanding, after DOJ created an excuse to delay sharing the whistleblower complaint with Congress as mandated by law, after DOJ tried to hide Barr’s own involvement from Congress by overclassifying that fact … after all those overt acts that, depending on Barr’s understanding of what he got briefed way back in February and learned in multiple different ways since then, might amount to overt acts in the conspiracy SDNY has already charged Parnas and Fruman in, Barr declined to go out before cameras and comment on an ongoing investigation (which is, remember, what Jim Comey was ostensibly fired for) by publicly exonerating the President.

Instead, he had DOJ’s spox Kerri Kupec do so, in a statement that offered up excuses for why DOJ failed to connect the dots on a complaint that tied to a fully predicated investigation being conducted by SDNY.

Had Barr made that public comment, with his knowledge that the subject of the complaint connected to an ongoing investigation in SDNY into the underlying information operation that led up to the President’s call, his involvement in the Durham investigation that had already been fed by that information operation, and his meeting with lawyers that helped to provide a payoff for some of that information operation, it would have been an overt act that even Barr, with his abundant flair for PR (as witnessed by this WaPo article), could not deny was an overt act in a conspiracy being investigated by his subordinates.

So instead, he had a different subordinate (there is no evidence Kupec had any knowledge of these other acts) do that.

But that is not — as portrayed by the WaPo — evidence of distance between Barr and the White House. Rather, it’s evidence that Barr recognizes his own risk of becoming an active member of the conspiracy his DOJ went to great lengths to avoid investigating.

And all that’s before Barr slinked into a meeting with Rupert Murdoch as Sean Hannity was about to become part of the conspiracy.

On the Classification Disputes over Mike Flynn’s Discovery

Over the last week, I have laid out how Mike Flynn’s TV lawyer, Sidney Powell, used what was nominally a reply brief in her Brady demand to make a new request that the entire prosecution against Flynn be thrown out. I showed how her argument misrepresented the evidence she used to make it — at one point, she even accused her own client of lying in his initial FBI interview! Nevertheless, Powell succeeded at least far enough to get Sullivan to order the government to respond to her entirely new demand, a sign he may be sympathetic to her gaslighting.

But I’d like to go back and consider the declassification process that got us to this point.

Flynn’s reply was due on October 22, a week ago Tuesday. Starting on Saturday, October 19, Flynn’s team tried to get DOJ to approve its use of the materials it had received under the protective order — 302s involving Peter Strzok and Lisa Page, Strzok and Joe Pientka’s notes from the initial interview, some of the Strzok-Page texts, and a redline of the 302 from February 10.  That exchange looked like this:

October 19, 3:54PM: Powell writes AUSA Jocelyn Ballantine cc’ing other lawyers, stating she plans to include quotes from the protected materials, including from “the various 302s of the 24th, [redacted], [Page’s] 302, and the agents [sic] notes,” stating they may file without sealing the reply or exhibits.

October 20, 1:36PM: Brandon Van Grack response, stating they need to ask “equity holders, in particular the FBI,” and offering to start reviewing quotes before the reply is finished.

October 20, 1:49PM Flynn attorney Molly McCann replies and asks Van Grack to “begin the process to clear the full documents,” including the 302s, the documents whose description is redacted, [Page]’s 302, and the agents’ notes.”

October 22, 12:00PM: Flynn files his reply under seal.

October 22, 12:45PM: Molly McCann writes Van Grack and others, attaching “our proposed redactions,” based off “the redactions [the government] made in the original Motion to Compel. McCann stated that, “until you can complete your review process we would expect to keep the exhibits under seal.”

October 22, 3:34: Van Grack replies, stating that “we have circulated the motion, and your proposed edits, to the appropriate entities,” noting that “we will need to request redactions beyond what you propose.”

October 23, 10:33AM: Powell writes Van Grack, advising him that “if we have not received your proposed redactions as to the Reply brief by 1 p.m. today, we will be filing a motion with the court.”

October 23, 10:39AM: Ballantine writes Powell, stating that “there is information in your filing beyond that which you flagged for us on Sunday,” adding, “there is one sensitive matter that is unlikely to be resolved before the end of the day.”

October 23, 11:10AM: Powell responded, “without a proposed redacted version from you that can be unsealed today or an assurance it will be resolved today, we will be seeking relief from the court by 5 p.m.

October 23, 7:17PM: Flynn’s team submits a motion to file their proposed brief.

October 24, 10:23PM: Flynn’s team submits motion for leave to file, along with their “reply,” based on adopting the government’s redactions.

Effectively, Powell got fed up waiting for FBI to decide what could and could not show up in her reply, and pushed to publish a public copy. Sure, she was insistent on filing as much of this in unredacted form as she could so she could feed the frothy right with her brief (which she effectively admits in her October 23 filing). But that is entirely her right. I’m totally sympathetic with her demand that she be allowed to file this in timely fashion (though I imagine the government would suggest they should have started the declassification process more than three days in advance).

This is one issue I’m absolutely supportive of Powell’s aggressiveness.

But, particularly given the timing, I’m interested in the substance of the dispute. I’m interested for several reasons. Powell’s entire representation of Flynn went through Bill Barr. She clearly has gotten information about the Durham investigation stovepiped to her, most recently in the form of totally irrelevant (to Flynn) information about the government obtaining Joseph Mifsud’s phones. And she made claims about what she believed she knew should and should not be redacted.

Just as interesting, on the morning of October 23, Jocelyn Ballentine said one “sensitive matter” was unlikely to get resolved that day. On October 24, the NYT and other outlets first started reporting that Durham’s inquiry had become a criminal investigation. Certainly, there could be other issues that might be that sensitive issue (including decisions about indicting Andrew McCabe). But the redactions on some of these exhibits certainly might be implicated by a Durham investigation, depending on the scope of it.

Let’s work backwards. First, of the 16 exhibits submitted with her reply, just eight came from the government and so were subject to the protective order (this post has more extensive discussions of what these are):

2) Page-Strzok texts*

3) Comey memos

5) Strzok 302 responding to propaganda Sara Carter and John Solomon “reported”*

6) Previously released Strzok 302 on his own role in the investigation*

9) Joe Pientka notes from the interview

10) Strzok notes of the interview

11) Redline of edits made to 302 on February 10*

12) Lisa Page 302 on texts with Strzok regarding the interview with Flynn*

In the exhibit showing the conversation about declassification, the existence of the Sara Carter-related 302 and the Page 302 were redacted entirely. All the exhibits were cleared for release in some fashion, though I’ll get back to what remains redacted.

In Powell’s filing asking Sullivan to intervene, she said, “The only exhibits to the Reply for which the defense knows of any reason to remain under seal are 5, 6, 9, 10, 11, and 12.” In her motion to file the reply brief, she said, “The government … proposed redactions to five of the exhibits Mr. Flynn included in his filing—Exhibits 2, 5, 6, 11, and 12,” meaning the texts included stuff she didn’t know should still be redacted. I’ve marked the exhibits the government added redactions to above.

The redactions of the redline must be — in addition to names — redactions of information that would reveal how FBI works. Among other things, it likely includes codes the agents use to track them, because DOJ screwed up who made the two changes to the redline (as I note here, they say Strzok didn’t remember something that Pientka added, but it must be the reverse given their notes).

Similarly, the only thing redacted in the Page 302 is names and organizational stuff. That would suggest that nothing in the Page 302 implicates ongoing investigations (including, but not limited to, Durham).

It’s hard to tell what got redacted in the texts. Clearly, something that the government released to Flynn was deemed too sensitive to release. But there were already two sets of redactions in the texts — the gray ones (possibly for privacy reasons) and some black ones that redact genuinely sensitive material. One of those things, for example, is the name of the person Strzok and Page were worried about locking in on May 10, 2017, which Flynn (and the rest of the frothy right) believed incorrectly to be him. But there are other things — such as a October 19, 2016 and another January 23, 2017 text — that might have been released to Flynn but cannot be released publicly. Or, it’s possible FBI just redacted the phone numbers.

Most intriguing is the Sara Carter related 302. There are two redactions, one introductory and one referring to the third allegation Carter was chasing, that after Flynn resigned, people high fived and said, “we got him.” Powell apparently knows why it was redacted. But I had heard, in reporting something else, that this was considered a hoax targeted at McCabe. If the redaction reflected badly on McCabe, Powell would be sure to include it in her filing, which she doesn’t. One possible explanation is that DOJ is still trying to chase down where this disinformation got spread (consistent with the fact that DOJ IG still hasn’t released its report on who was behind the NY Field Office leaks, in part because there were too many to pinpoint).

Finally, there’s the 302 memorializing Strzok’s role in the initiation of the investigation. It has the same redactions (and appears to be the same version) of the 302 released in June, in the wake of the Mueller Report. At the time, the government said those were deliberative privilege and personal privacy redactions — meaning most of what remains redacted consists of discussions of investigative choices.

The government continues to redact DIA stuff on Flynn’s trips to Russia

Except that last point — about the 302 memorializing Strzok’s role in initiating the investigation — might have changed.

Note that the government told Flynn’s team there were things in their actual brief that needed redaction. Aside from names, two things are redacted. First, a footnote modifying Powell’s otherwise unsubstantiated claim that the FBI knew they had no basis to investigate Flynn, which cites to the 302 on Strzok’s role in opening the investigation.

This must be something genuinely investigative, or Powell would have contested it on releasing the motion. Remember that at the time, Flynn was under investigation for being an Agent of Russia. Perhaps significantly, in the government’s Surreply, they get really vague when addressing the multiple bases for interviewing Flynn.

The defendant also now argues that the information he seeks will prove that the “FBI had no factual or legal basis for a criminal investigation.” Reply at 14-16. In support, the defendant cites to the standard necessary to obtain a warrant pursuant to the Foreign Intelligence Surveillance Act (”FISA”). See Reply at 14, n.11. Obtaining a FISA warrant, however, is entirely different from the FBI interviewing an individual as part of an ongoing counterintelligence investigation. Here, there were multiple bases for the FBI to interview the defendant. The defendant’s false statements publicly attributed to him by White House officials about his communications with Russia were alone a sufficient and appropriate basis for conducting the investigative step of interviewing the defendant.

Don’t get me wrong, they’re right that Powell is speciously arguing that the government needs probable cause showing someone is an Agent of a Foreign Power (the FISA standard) before they interview someone — it’s a point I made in bullet 9 here. But the Flynn camp has always tried to limit the reasons why the FBI interviewed Flynn (not least so they could claim it was an improper investigation into policy). There’s likely a whole lot of baggage to these redactions.

A more interesting redaction comes in a passage that invents out of thin air a claim that Chuck Grassley had seen files regarding briefings Flynn did before he went to Russia and deemed them exculpatory. In it, the government redacted a sentence about those briefings.

Probably, this stuff comes from DIA material shared with Flynn in August (after it was handed to Grassley). The government, in its response to Powell’s initial motion, said some of what Flynn told the DIA was inculpatory.

Request #15: The government is not aware of any information in possession of the Defense Intelligence Agency that is favorable and material to sentencing, including the information that the government provided on August 16, 2019. Specifically, the information of which the government is aware, including that August 16 production, is either inculpatory or has no relevance to the defendant’s false statements to the FBI on January 24, 2017, or to the FARA Unit.

Which makes it interesting, first, that Powell isn’t trying to represent the content of these supposedly inculpatory DIA files, and second, that DOJ continues to hide it.

There seem to be two tensions going on behind all this discovery. First, the possible referral of people involved in his prosecution (but apparently not Lisa Page) to Durham. But just as interesting, given ongoing redactions regarding Flynn’s ties to Russia, inculpatory information about his own ties to Russia.

What Durham Might Be Looking At

Last night, the NYT and other outlets reported that the Durham probe has become a criminal investigation. While no outlets have reported precisely what crime Durham might be investigating, the news comes amid other news that may provide a clue. (I’m posting this without links for now, but will go back and try to add links later.)

Thus far, only a coerced Ukraine has fueled the foreign conspiracy theories

George Papadopoulos has been tweeting that his conspiracies will soon prove true. But thus far, other countries disagree. Multiple outlets have reported that Italy told the US that they had no ties to George Mifsud. Australia has said that the US has mischaracterized what Alexander Downer did, implying that he simply documented something suspicious (Papadopoulos bragging that Russia would help Trump) that was later shared with the FBI. The UK has said they have nothing more to share beyond what they shared in 2016, a memo stating that Christopher Steele was honest and persistent if a little too inclined to chase sources (like Oleg Deripaska) who weren’t worthwhile.

The one thing that Bill Barr’s field trips have come up with so far are dated Mifsud phones.

In short, aside from the corrupt oligarch-backed former Ukrainian prosecutors, no foreign country is backing Papadopoulos’ theories.

Horowitz announces he’s still working on the FISA IG Report, which will be lightly classified

The timing of the Durham investigation becoming a criminal probe coincides with Michael Horowitz’s announcement, to Congress, that he’s still working on the FISA IG Report, but that it will just be lightly redacted. It’s possible, then, that he made a criminal referral out of the report, and Durham is investigating that.

I can’t think of any genuinely criminal behavior that I expect to see in the report, unless Horowitz refers either Glenn Simpson or Christopher Steele for false statements, the former to Congress and the latter in court filings.

If Horowitz’s report is broader than that, however, it might include other referred conduct, such as the leak of either the existence of a transcript between Mike Flynn and Sergei Kislyak (which Sidney Powell has alternately claim came from someone at Office of Net Assessment or James Clapper, the latter of whom is an Original Classification Authority) or that Jim Comey briefed Trump on the Steele dossier (a reference in Powell’s latest suggests she thinks Josh Campbell is the source).

Clearly, Durham is examining several circumstances of how Stzok opened the investigation, such as that (because they wanted to act quickly in the wake of the publication of the WikiLeaks emails) he opened it on a weekend, and signed the authorization himself. Recent reports say he has expanded his scope to include events that preceded Mueller’s appointment, meaning he’s clearly looking at events in early 2017.

Sidney Powell insists, again, her expert intelligence officer client got duped

As I’ll note in a follow-up, Sidney Powell has submitted her latest filing arguing that Mike Flynn should be let free as an honest child. In some ways, it’s a less ridiculous filing than her past efforts, as she actually gets around to making allegations. Effectively, she is submitting her opening brief as the reply, perhaps in a concerted effort to prevent the government from pointing out all the gaping holes in it.

Ultimately, it sill comes down to a claim that poor Mike Flynn, who all agree is an accomplished liar, couldn’t handle an FBI interview without lying and lying and lying.

And as part of that, Powell submits more information proving that, whatever Strzok’s alleged animus towards Trump, he still treated Flynn with almost too much respect.

In short, there may be real crimes he’s investigating, or reconsidering past charging decisions, especially leaks.

But at least thus far, Durham has spent six months without corroborating the main conspiracy theories about the investigation.

If the AG Is Involved in a Foreign Influence Operation, Does He Have to Register with Himself?

Way at the end of a CNN story on Rudy Giuliani’s grifters, Lev Parnas and Igor Fruman, this bombshell appears:

Two weeks ago when they were arrested, Parnas and Fruman were preparing to fly to Vienna, Austria, to meet Giuliani and another key figure in the impeachment investigation, Ukraine’s former prosecutor general Viktor Shokin, according to four sources familiar with their trip. Shokin is the same Ukrainian official who former Vice President Joe Biden — along with other Western leaders — had pushed to have removed over concerns he wasn’t prosecuting corruption.

While questions in Washington swirl around Shokin’s role in this controversy, Giuliani, Parnas, Fruman had specific plans for the former Ukrainian official up until the day of their arrest. According to those four sources, they told others they were headed to Vienna to help with a planned interview the next day: Shokin, they said, was scheduled to do an interview from the Austrian capital with Sean Hannity.

Through a spokesperson, Hannity said that “we never reveal our sources, potential sources, or persons they may or may not request to interview. Sean Hannity takes the first amendment seriously.”

The bullshit about how the First Amendment is why he’s not revealing his “potential source” who the TV star would have interviewed on TV got added overnight.

The news that Hannity was only saved from being a part of this influence operation by the arrest of two of its key players is news enough. But it dramatically changes the import of this news — that the night before this interview was scheduled, and after meeting with SDNY that same day, and probably after the grifters had been arrested as they tried to leave the country, the Attorney General of the United States had a meeting with Rupert Murdoch at the latter’s home.

Attorney General William P. Barr met privately Wednesday evening with Rupert Murdoch, the media mogul who is one of President Trump’s frequent confidants but whose Fox News is viewed by the president as more hostile toward him than it used to be.

The meeting was held at Mr. Murdoch’s home in New York, according to someone familiar with it. It was unclear if anyone else attended or what was discussed. Aides to both Mr. Murdoch and Mr. Barr declined requests for comment on the meeting.

So the presumed schedule for the players looks like this:

Lunch: Rudy meets with the grifters across the street from DOJ

Before the arrest: Barr informed they would be arrested (he met with SDNY that day)

Roughly 6:30: SDNY has the grifters as they prepare to fly to Vienna using one way tickets

After the arrest: Barr meets privately with Sean Hannity’s boss

This story from Parnas and Fruman’s arraignment yesterday revealed that SDNY has been monitoring twelve different phone lines.

Assistant U.S. Attorney Rebekah Donaleski told Oetken that evidence in the case that will need to be turned over to the defense was “quite voluminous.” She mentioned about 50 bank accounts and more than a dozen cell phones that were monitored in some fashion, as well as search warrants and subpoenas.

Admittedly, this number is across four different defendants (thus far), but twelve is a lot, and that word, “monitor” sure sounds like wiretapping. Which may be why Rudy is finally shopping for a defense attorney.

Wiretaps might be the kind of thing SDNY would brief Barr on if he met with prosecutors the day of the arrest. Prosecutors might also tell Barr what kind of high profile people had been caught up on the grifters’ encrypted texts, as Hannity was with Paul Manafort. In either case, it is virtually certain that Hannity was caught in the surveillance of the grifters, even if contacts between him and Rudy weren’t already obtained.

It looks bad, but given how much Barr has mainlined Fox propaganda over the last two decades, it wouldn’t be surprising if Barr attempted to protect the propaganda channels’ top entertainer.

All of which leads me back to something else: the Attorney General’s very narrow denials that he was pursuing Ukrainian dirt in the wake of the release of the Trump-Zelensky call on September 25.

At the end of August, when two top intelligence officials asked a Justice Department lawyer whether a whistle-blower’s complaint should be forwarded to Congress, they were told no, Attorney General William P. Barr and his department could handle the criminal referral against the president of the United States.

About four weeks later, the department rendered its judgment: President Trump had not violated campaign finance laws when he urged Ukraine’s president to work with Mr. Barr to investigate a political rival, former Vice President Joseph R. Biden Jr.

[snip]

The rough transcript showed that Mr. Trump believes he has that man. In a single sentence during the call with Ukraine’s leader, Mr. Trump said that he would have Rudolph W. Giuliani, his personal lawyer, and Mr. Barr reach out to help further an investigation of Mr. Biden and his younger son, Hunter Biden, who had served on the board of a Ukrainian corporation.

“I will have Mr. Giuliani give you a call, and I am also going to have Attorney General Barr call, and we will get to the bottom of it,” Mr. Trump said.

A Justice Department official said that Mr. Barr had no knowledge of the call until the director of national intelligence and the intelligence community’s inspector general sent the department the whistle-blower’s criminal referral late last month, and that Mr. Trump has not spoken with the attorney general “about having Ukraine investigate anything relating to former Vice President Biden or his son.”

Mr. Trump has not asked Mr. Barr to contact Ukraine for any reason, Mr. Barr has not communicated with Ukraine on any topic, and Mr. Barr has not spoken with Mr. Giuliani about the president’s phone call “or anything relating to Ukraine,” a Justice Department spokeswoman, Kerri Kupec, said in a statement.

[snip]

But Mr. Barr is also closely overseeing a review of the intelligence community’s decision to start a counterintelligence investigation into the Trump campaign during the 2016 election, which is being led by John Durham, the United States attorney in Connecticut. As part of that review, Mr. Durham is exploring what role, if any, a number of countries including Ukraine played in the investigation of the Trump campaign.

“While the attorney general has yet to contact Ukraine in connection with this investigation, certain Ukrainians who are not members of the government have volunteered information to Mr. Durham, which he is evaluating,” Ms. Kupec said.

According to DOJ, the following is true (or was true, as of September 25):

  • Barr had no knowledge of the call until Joseph Maguire sent the whistleblower complaint “late last month” (subsequent reporting probably moves that date back to when John Demers reviewed the transcript on August 15, and not knowing about the call is not the same thing as not knowing about the extortion attempt)
  • Trump has not spoken to Barr “about having Ukraine investigate anything relating to former Vice President Biden or his son,” which doesn’t exclude Trump asking Barr to investigate 2016, which is what the transcript more directly references
  • Trump has not asked Mr. Barr to contact Ukraine for any reason, nor has Barr communicated with Ukraine (multiple reports have noted that Barr’s wild goose chase has largely bypassed official legal request channels, which would present problems regarding the admissibility of any evidence he receives, but also would be consistent with the public reporting that he is pursuing Ukrainian dirt outside of official channels)
  • Barr has not spoken with Rudy about the call “or anything relating to Ukraine,” which doesn’t address whether he has addressed other sources of disinformation with Rudy, nor does it say whether Barr has communicated to Rudy via other channels or received a dossier of disinformation on Ukraine, sent by Rudy on White House stationary, as Pompeo did
  • Certain Ukrainians who are not members of the government have volunteered information to Mr. Durham, which he is evaluating;” this does not exclude Barr speaking to these same Ukrainians, as Barr has been with so many other parts of his wild goose chase, nor does it exclude Barr learning of the Ukrainians when he took a meeting with Joseph DiGenova and Victoria Toensing to discuss the Ukrainian oligarch whose bid to beat a bribery charge involves disinformation created by Viktor Shokin, the guy Hannity was going to interview

Given this narrow denial, it would be more likely than not that Barr knew of Firtash’s effort to use Shokin’s claim that he was unfairly targeted and encouraged John Durham to reach out to Shokin, to say nothing of several other pieces of disinformation Rudy has been floating.

What is absolutely certain, though, is that DOJ’s narrow denial in no way denies that Barr’s wild goose chase has incorporated materials that Rudy obtained as a result of the extortion attempt with Ukraine.

Indeed, back in the halcyon days before the grifters were arrested, frothy right wingers — up to and including close Rudy associate Michael Mukasey — keyed on DOJ’s confirmation that Durham was reviewing materials from Ukraine, as if that validated Rudy’s efforts. Back before Parnas and Fruman were arrested, the frothy right boasted that Durham had received these Ukrainian “leads.”

Which may be why Bill Barr’s DOJ did two things — consider the call transcript, and not the full whistleblower complaint, as the referral, and not forward the complaint to FEC as required under a standing MOU — that prevented others from identifying the ties between Parnas and Fruman (whom DOJ has repeatedly said Barr knew were being investigated) and the President’s July 25 call. To say nothing of the way his OLC treated his implication by the call as Top Secret, even though the White House itself considered it less classified.

Already, we have three solid pieces of evidence that Bill Barr’s DOJ engaged in a cover-up in a failed attempt to prevent anyone from tying the Parnas and Fruman influence campaign, his own wild goose chase, and the President’s extortion of Ukraine together.

But if Barr shared information learned about an ongoing investigation to prevent Hannity from embarrassment or even legal jeopardy, that would be a far more significant step.

Update: In the wake of Mick Mulvaney’s confirmation that Trump withheld duly appropriated funding from Ukraine to coerce it to cooperate in the Durham investigation, three different outlets did articles on what Durham is up to (NYT, NBC, CNN). Although all three provided new details on the investigation generally, none provided details describing from which Ukrainians Durham has received information.

BREAKING! George Papadopoulos Says FBI Should Have Surveilled Him MORE Than They Did

As I noted, on Tuesday, Mike Flynn’s Fox News lawyer demanded that Mike Flynn receive the contents of two phones reportedly used by Joseph Mifusd — one dating to May 2011 and another dating to December 2014 — so she can contest the guilty plea Flynn entered into regarding conversations and letters written in 2017 that did not involve Mifsud.

Now George Papadopoulos is getting into the act, complaining that “Comey or Mueller” never went to obtain these phones from Italy.

It’s a remarkable complaint, coming as it does from Papadopoulos. After bitching for over a year that the FBI surveilled him too much (all the while repeating hoaxes and ignoring the record that shows the opposite), notably that he was picked up in what were probably conversations with targeted Israelis, Papadopoulos is effectively arguing that the FBI didn’t surveil him enough.

That’s all the more remarkable given that the government is on the record stating that one reason they couldn’t do with Mifsud what they did with other foreigners who entered the US during the Russian investigation — seize their phones — is because Papadopoulos lied to the FBI.

The defendant’s lies to the FBI in January 2017 impeded the FBI’s investigation into Russian interference in the 2016 presidential election. Most immediately, those statements substantially hindered investigators’ ability to effectively question the Professor when the FBI located him in Washington, D.C. approximately two weeks after the defendant’s January 27, 2017 interview. The defendant’s lies undermined investigators’ ability to challenge the Professor or potentially detain or arrest him while he was still in the United States. The government understands that the Professor left the United States on February 11, 2017 and he has not returned to the United States since then.

Indeed, had the FBI been able to seize Mifsud’s phones while he was in the US during a period he was in contact with Papadopoulos, they would have a better chance of obtaining the phones Mifsud actually used to communicate with Papadopoulos, which it’s not at all clear are either of these dated phones. But because Papadopoulos lied, he prevented them from establishing the probable cause that would have permitted them to get the phones.

There’s one more curious aspect of Papadopoulos’ complaint.

Another of the details the government revealed to substantiate that Papadopoulos did not cooperate in the investigation is that he hid the existence of the phone he actually used to communicate with Mifsud through three proffer sessions, on August 10, August 11, and September 19, 2017 before finally revealing it on September 20.

The defendant also did not notify the government about a cellular phone he used in London during the course of the campaign – that had on it substantial communications between the defendant and the Professor – until his fourth and final proffer session. This cell phone was not among the devices seized at the airport because it was already in the defendant’s family home in Chicago.

The detail that Papadopoulos withheld the phone he actually used with Mifsud suggests he really didn’t want the true nature of his communications with Mifsud to be revealed. It may also suggest that FBI had, by September 2017, done enough surveillance of Mifsud to know what was on whatever phones he had actually been using with Papadopoulos.

And Conspiracy George has not — as far as I’m aware — talked about the metadata showing Mifsud’s ties with someone who appeared to be at the nexus of the two Russian operations, metadata that the FBI considered an ongoing investigation in April, when the Mueller Report was redacted.

That is, there’s a decent chance the FBI obtained anything interesting from 2016 from these phones via other means, means that also remain protected.

Whatever the reason for Papadopoulos’ change in heart, I do hope he’ll inform Bill Barr that, on reconsideration, he actually thinks the FBI didn’t surveil him enough in 2017, so Barr can stop his global wild goose chase and return to DC and start doing the work of an Attorney General.

Bill Barr Risks becoming Joseph Mifsud’s New Coffee Boy

Yesterday, the Daily Beast provided details about what Bill Barr was doing in Italy on the trip to dig up dirt first confirmed by the WaPo. According to DB, Barr and John Durham went to Italy on short notice (that is, even as the Ukraine scandal he is personally implicated in was breaking) to watch a videotaped deposition by Joseph Mifsud.

Barr was in Rome on an under-the-radar mission that was only planned a few days in advance. An official with the embassy confirmed to The Daily Beast that they had to scramble to accommodate Barr’s sudden arrival. He had been in Italy before, but not with such a clear motive. Barr and Durham are looking into the events that led to Robert Mueller’s Russia investigation, and suddenly all roads were leading to Rome.

The Daily Beast has learned that Barr and Durham were especially interested in what the Italian secret service knew about Joseph Mifsud, the erstwhile professor from Malta who had allegedly promised then-candidate Donald Trump’s campaign aide George Papadopoulos he could deliver Russian “dirt” on Hillary Clinton. The Italian justice ministry’s public records show that Mifsud had applied for police protection in Italy after disappearing from Link University, where he worked and, in doing so, had given a taped deposition to explain just why people might want to harm him.

A source in the Italian Ministry of Justice, speaking on the condition of anonymity, told The Daily Beast that Barr and Durham were played the tape. A second source within the Italian government also confirmed to The Daily Beast that Barr and Durham were shown other evidence the Italians had on Mifsud.

There are a ton of reasons why this trip is batshit crazy. For one, Barr is placing himself in the role of a line Special Agent, someone without the requisite expertise chasing off to watch taped depositions while he should be running DOJ. For another (as I’ll show in more detail later), Barr is literally just chasing conspiracy theories sown by sworn liar George Papadopoulos, conspiracy theories which fabulist John Solomon (and his obvious sources named Rudy Giuliani and some Russian and Ukrainian oligarchs including Oleg Deripaska) has both fed and magnified. That Barr is doing it as he becomes personally embroiled in a scandal which could implicate him criminally suggests he and Trump may be trying to beat the clock, produce results before the shit really hits the fan.

But what’s most remarkable about the trip is the Attorney General of the United States went out on this goose chase without first ensuring he’d get what he was promised.

There’s a principle often aired when discussing Trump’s failed diplomacy with North Korea. You don’t send out the Principal for a meeting before getting certain commitments that advance your own goals. Trump should not have met with Kim Jong-Un without first getting concessions, because by doing so he took away several things of value (such as conferring credibility on the world stage) that Kim was most interested in.

The same is true here. The Attorney General should never run off to do the work of an FBI line Special Agent. But he certainly shouldn’t do so unless he was getting what he was really after.

And Billy Barr just flew to Italy without getting what he was really looking for.

Handily, for this scandal, Papadopoulos and Solomon and Chuck Ross have been ready scribes for the script that Trump and Billy Barr are supposed to be following. It’s all out in the open.

The Attorney General’s voyage to Italy got set in motion last fall when Ross published two stories relying on Mifsud’s “attorney” Stephen Roh (who himself has close ties to Russia). The first, dated September 10, reported that Mifsud was alive and well hiding in Italy. The second, published October 24, was explicitly a set-up for George Papadopoulos’ testimony before the joint OGR/HJC investigation into the Russian investigation. It included comments from Roh alleging that Mifsud was not a Russian asset, but was instead a Western one. Ross included those comments almost as a side note, even though the comments make what would normally be big news.

Roh told TheDCNF this week that Mifsud claimed in their previous meetings that he was working under the direction of the FBI when he made contact with Papadopoulos. He also claims that Mifsud told him that he was ordered to stay out of the public spotlight until the conclusion of special counsel Robert Mueller’s investigation.

“Prof Mifsud explained that he is and was always a trusted cooperator of Western Intelligence services,” Roh said on Oct. 20.

“Prof Mifsud explained to us that he agreed not to speak, not to give interviews and to hide until the [Mueller] Investigation is terminated,” said Roh, who added that Mifsud claimed that he was being assisted by a London law firm in his discussions with the Mueller team.

The claims, if true, would be bombshell developments in the Russiagate saga. But TheDCNF was not able to independently verify Roh’s claims. The special counsel’s office declined comment.

While some of Roh’s claims about Mifsud would seem to support Papadopoulos’s theories, Roh has also said that Mifsud denies Papadopoulos’s allegation that he mentioned Clinton emails during their April 2016 meeting. Roh has asserted that Papadopoulos was working as an “agent provocateur” for a Western spy agency.

The next day, Papadopoulos — cued by Zachary Somers, then Majority Counsel for Bob Goodlatte — pointed to the Daily Caller piece as the basis for his belief that Joseph Mifsud was actually western intelligence.

Q Okay. So, and Mifsud, he presented himself as what? Who did he tell you he was?

A So looking back in my memory of this person, this is a mid-50’s person, describes himself as a former diplomat who is connected to the world, essentially. I remember he was even telling me that, you know, the Vietnamese prime minister is a good friend of mine. I mean, you have to understand this is the type of personality he was portraying himself as.

And, you know, I guess I took the bait because, you know, usually somebody who — at least in Washington, when somebody portrays themselves in a specific way and has credentials to back it, you believe them. But that’s how he portrayed himself. And then I can’t remember exactly the next thing that happened until he decided to introduce me to Putin’s fake niece in London, which we later found out is some sort of student. But I could get into those details of how that all started. Q And what’s your — just to kind of jump way ahead, what’s your current understanding of who Mifsud is?

A My current understanding?

Q Yeah. A You know, I don’t want to espouse conspiracy theories because, you know, it’s horrifying to really think that they might be true, but just yesterday, there was a report in the Daily Caller from his own lawyer that he was working with the FBI when he approached me. And when he was working me, I guess — I don’t know if that’s a fact, and I’m not saying it’s a fact — I’m just relaying what the Daily Caller reported yesterday, with Chuck Ross, and it stated in a categorical fashion that Stephan Roh, who is Joseph Mifsud’s, I believe his President’s counsel, or PR person, said that Mifsud was never a Russian agent.

In fact, he’s a tremendous friend of western intelligence, which makes sense considering I met him at a western spying school in Rome. And all his interactions — this is just me trying to repeat the report, these are not my words — and when he met with me, he was working as some sort of asset of the FBI. I don’t know if that’s true or not. I’m just reporting what my current understanding is of this individual based on reports from journalists.

As I’ll show, this was not the only time Papadopoulos did this in a deposition that was supposed to air what Papadopoulos knew, personally. His testimony served to validate conspiracy theories planted in right wing propaganda outlets.

In May Devin Nunes, in the guise of raising counterintelligence concerns about the number of high level people (including Boris Johnson, who would not be Prime Minister of the UK right now without dodgy financing of Leave) who had interacted with Mifsud, wrote a letter airing Roh’s claims and information that otherwise has been sourced from Roh, wrote Mike Pompeo, Paul Nakasone, Gina Haspel, and Chris Wray claiming Mueller misrepresented Mifsud.

Alternatively, if Mifsud is not in fact a counterintelligence threat, then that would cast doubt on the Special Counsel’s fundamental description of him and his activities, and raise questions about the veracity of the Special Counsel’s statements and affirmations. It should be noted that the Special Counsel declined to charge Mifsud with any crime even though, to justify seeking a prison sentence for Papadopoulos, the Special Counsel claimed Papadopoulos’ untruthful testimony “undermined investigators’ ability to challenge the Professor [Mifsud] or potentially detain or arrest him while he was still in the United States.” Furthermore, it’s still a mystery how the FBI knew to ask Papadopoulos specifically about Hillary Clinton’s emails, on multiple occasions throughout 2016-17 before having interviewed Mifsud, if the FBI hadn’t already somehow received this information directly or indirectly from Mifsud himself.

Obviously, Nunes’ “concerns” are rank bullshit. The tip from Australia was sufficient to raise question about the emails. And Mueller didn’t charge a bunch of other suspected foreign assets (some even in the US), which is how counterintelligence works. But Nunes’ letter sufficed to make this an official request.

Apparently, then, Stephen Roh shared a transcript of a deposition with some Republicans in Congress and Solomon. That, and more cues from Republicans, Roh, Papadopoulos, and who knows who else, got laundered through a Solomon story full of obvious misrepresentations (one that irks me, for example, is his use of a February 2017 email Mifsud sent following up on his FBI interview to claim Mifsud exchanged emails with the FBI, as if that substantiated an otherwise independent relationship with the Bureau). The news hook of the story is that John Durham wanted to interview Mifsud. But if he couldn’t do that, Solomon dutifully reported, Durham would like to “review a recorded deposition” he gave to Roh.

An investigator told Swiss attorney Stephan Roh that Durham’s team wanted to interview Mifsud, or at the very least review a recorded deposition the professor gave in summer 2018 about his role in the drama involving Donald Trump, Russia and the 2016 election.

The contact, confirmed by multiple sources and contemporaneous email, sent an unmistakable message: Durham, the U.S. attorney handpicked by Attorney General William Barr to determine whether the FBI committed abuses during the Russia investigation, is taking a second look at one of the noteworthy figures and the conclusions of former special counsel Robert Mueller’s final report.

Solomon went on to claim — and the frothy right believes it as scripture now — that if Durham would just interview Mifsud, he would learn that the whole Papadopoulos story was actually a set-up by Western intelligence agencies seeking to frame George Papadopoulos and Donald Trump.

Roh told me the information he is preparing to share with Durham’s team from his client will accentuate those concerns.

Mifsud was a “longtime cooperator of western intel” who was asked specifically by his contacts at Link University in Rome and the London Center of International Law Practice (LCILP) — two academic groups with ties to Western diplomacy and intelligence — to meet with Papadopoulos at a dinner in Rome in mid-March 2016, Roh told me.

A May 2019 letter from Nunes to U.S. intelligence officials corroborates some of Roh’s account, revealing photos showing that the FBI conducted training at Link in fall 2016 and that Mifsud and other Link officials met regularly with world leaders, including Boris Johnson, elected today as Britain’s new prime minister.

A few days after the March dinner, Roh added, Mifsud received instructions from Link superiors to “put Papadopoulos in contact with Russians,” including a think tank figure named Ivan Timofeev and a woman he was instructed to identify to Papadopoulos as Vladimir Putin’s niece.

Mifsud knew the woman was not the Russian president’s niece but, rather, a student who was involved with both the Link and LCILP campuses, and the professor believed there was an effort underway to determine whether Papadopoulos was an “agent provocateur” seeking foreign contacts, Roh said.

The evidence, he told me, “clearly indicates that this was not only a surveillance op but a more sophisticated intel operation” in which Mifsud became involved.

The point is, though, that the ask was an interview, at which Barr and Durham (and, if they had brought experienced interrogators, which the DB does not report they did) would be able to test Mifsud’s credibility. Sitting in a secure room and watching a deposition (without experts there to test the provenance of the deposition video, no less) was not the ask and provides no way to obtain what would really be necessary.

But Barr didn’t demand that, and he didn’t get that. Instead, he allowed himself to be lured into a dark room in Italy to watch something — possibly without anyone with the relevant counterintelligence expertise to help him understand it — that provides very little useful information to test Mifsud’s claims. That puts the Attorney General in an incredibly vulnerable position (even beyond being implicated in covering up the President’s extortion to get such access), because he not only has traded away a lot of leverage to get what he would actually need to test this information, but he has already met a suspected Russian asset on the asset’s terms.

A lot of what Papadopoulos has done over the last three years was downright idiotic. But he has the excuse of being stupid, untrained, venal, and overly ambitious.

Billy Barr has no excuses for doing something that is even stupider than much of what Papadopoulos did. And yet he did just that.

Is Bill Barr Already Feeding Sidney Powell So-Called Evidence Trump Coerces?

The WaPo confirms what was becoming obvious: The Attorney General of the United States is spending his days flying around the world collecting claims that Trump has coerced from foreign governments. It reports that Barr has already had conversations similar to those Trump seeded with Ukraine with the UK, Italy, and Australia.

Barr has already made overtures to British intelligence officials, and last week the attorney general traveled to Italy, where he and Durham met senior Italian government officials and Barr asked the Italians to assist Durham, according to one person familiar with the matter, who spoke on the condition of anonymity to discuss a sensitive issue. It was not Barr’s first trip to Italy to meet intelligence officials, the person said. The Trump administration has made similar requests of Australia, said people who discussed the interactions on the condition of anonymity because they involve an ongoing investigation and sensitive talks between governments.

In a recent phone call, Trump urged Australian Prime Minister Scott Morrison to provide assistance to the ongoing Justice Department inquiry, the people said. Trump made the request at Barr’s urging, they said.

I raise all this because of something Sidney Powell said on September 10. At the status hearing for her client, Mike Flynn, she said that they had a letter from the British Embassy that “undoes the whole Steele dossier debacle.”

It was an interesting claim for several reasons. Most notably, the only references to Powell’s client in the Steele dossier simply repeat public claims about Flynn’s paid trip to an RT gala in 2015. That is, it’s totally irrelevant to the question of Flynn’s guilt on the charges he pled to or even the counterintelligence investigation into her client. Even if DOJ had such a record, it’d not be discoverable under Brady.

But Powell seemed to be saying she had the letter.

That raises the possibility that Bill Barr is not — as he claims — collecting “evidence” for a John Durham investigation into the start of the Russian investigation, but is instead (or also) collecting evidence he can share with those prosecuted by Mueller to help them undermine their guilty pleas and or convictions (which would raise interesting questions about Roger Stone’s focus on Crowdstrike, given that’s included in Trump’s list of propaganda he wants to extort from foreign countries).

Mind you, Powell could be lying or unclear about this document–she has been caught in both multiple times so far before Emmet Sullivan. But this claim — which was surprising to me at the time — raises real questions about whether Barr is using coerced evidence to undermine his own DOJ.

Update: I think I have the timing of this letter wrong. I think it was sent under Obama, not recently. 

Maria Butina’s Lawyer Changes His Story about Her Romance with Paul Erickson

There are a number of inconsistencies and sketchy claims (about who he thinks was targeted by the FBI and the timing of his disclosures) in former Overstock CEO Patrick Byrne’s claims (Sara Carter’s story, NYT story, Fox Interview, Seth Hettena Q&A, Chris Cuomo interview) that he had been a “non-standard” informant for the FBI about Maria Butina.

The short version is that she sought him out in July 2015, telling him Aleksandr Torshin had asked her to do so, then started a sexual relationship with him, then later turned her attention to networking with presidential campaigns. All along the way, Byrne claims, he kept the FBI informed and acted on their requests regarding his relationship with Butina. Then, 9 months after she was arrested, in April 2019 and at a period too late to help her sentencing, he reached out to the FBI and first without counsel (in spite of his claim to Fox that a big Republican lawyer told him he’d go to jail for the rest of his life over this) and then with a lawyer told the FBI what had happened. He attributes coming forward to a conversation with Warren Buffet, though Buffet claims not to know what he was involved with.

I may return to the oddities in Byrne’s story.

For now, however, I’d like to examine what her lawyer Robert Driscoll has claimed about Byrne.

In a letter to John Durham, DOJ’s IG, and OPR (shared with Carter), Driscoll  suggested that he should have been provided details of what Byrne shared with the FBI as Brady information.

By email, letter, phone, and in person, the defense repeatedly pressed the government for any Brady material and was not provided any. In particular, we suggested to the government a strong suspicion that counterintelligence or other FBI investigators used confidential informants (“CIs”) in their investigation of Maria, and that information provided by such witnesses to the government might be relevant to guilt or sentencing. Moreover, we suggested that the government had presented Maria with one or more “dangles” — that is, orchestrated opportunities to provide the government  information unwittingly while being observed.

In writing, the government denied the existence of any such Brady material. Orally, during debrief sessions with Maria, I directly told the government that I believed Patrick Byrne, Chief Executive of Overstock.com, who had a sporadic relationship with Maria over a period of years prior to her arrest, was a government informant. My speculation was flatly denied. My associate Alfred Carry made similar assertions in a separate debrief that he covered and was also rebuffed.

Mr. Byrne has now contacted me and has confirmed that he, indeed, had a “non-standard arrangement” with the FBI for many years, and that beginning in 2015 through Maria’s arrest, he communicated and assisted government agents with their investigation of Maria. During this time, he stated he acted at the direction of the government and federal agents by, at their instruction, kindling a manipulative romantic relationship with her. He also told me that some of the details he provided the government regarding Maria in response was exculpatory — that is, he reported to the government that Maria’s behavior with him was inconsistent with her being a foreign agent and more likely an idealist and age-appropriate peace activist.

[snip]

Byrne evidently informed the government of many meetings with political and other figures that Maria had mentioned to him, often in advance of the meetings themselves. The government did not try to intervene or try to stop any meetings, nor did they express any concern. (This undercuts the government’s position at sentencing that Maria’s activities involved collection of information that could be of “substantial intelligence value to the Russian government” or pose a “serious potential to harm U.S. foreign policy interests and national security” as those same activities were observed and permitted for years.)

At some point prior to the 2016 election, when Byrne’s contact with Maria diminished or ceased, the government asked and encouraged him to renew contact with her and he did so, continuing to inform the government of her activities. Byrne states he was informed by government agents that his pursuit and involvement with Maria (and concomitant surveillance of her) was requested and directed from the highest levels of the FBI and intelligence community.

As time passed, Byrne became more and more convinced that Maria was what she said she was–an inquisitive student in favor of better U.S.-Russian relations–and not an agent of the Russian government or someone involved in espionage or illegal activities. He states he conveyed these thoughts and the corroborating facts and observations to the government.

Now, I absolutely don’t rule out the government withholding information that would be helpful to the defense. They do that far too often, and there are good reasons to doubt the prosecutors in this case. But Driscoll’s claim that this might be a Brady violation is premised on two things: first, that the FBI really considered Byrne an informant — which is what they denied when asked directly — and that the FBI considered anything he gave them to be exculpatory.

In fact, the story Byrne told is actually quite damning to Butina. From the very start, according to what he told Sara Carter, Butina was pursuing him, not vice versa. She told him, from the very start, she had been sent by Torshin and explained (credibly, given Putin’s interests) they were interested in Byrne because of his involvement in blockchain technology. And her offer of a trip to Russia with networking there matched her M.O. in approaching the NRA.

Byrne revealed details about his intimate relationship with the Russian gun right’s activist Butina. Byrne was a keynote speaker on July, 8, 2015 at Freedom Fest, a yearly Libertarian gathering that hosts top speakers in Las Vegas. Shortly after his address, Butina approached him. She told him she was the leader of a gun right’s organization in Russia. He congratulated her, spoke to her shortly, but then “brushed her off.”

The young redheaded Russian graduate student then approached him again over the course of the conference and explained that she worked for the Vice Chairman of the Central Bank of Russia and sent by them to make contact with Byrne.

She also said “Did you know you’re a famous man in Russia in certain circles? We watch your Youtube videos, we know about your relationship with Milton Friedman.”

She said she was appointed to lead Russia’s gun right’s group by Lieutenant-General Mikhail Kalashnikov, who was a Russian general, most notably known for his AK-47 machine gun design. Byrne says he considered the designation by Kalashnikov a significant honor, a signal of a kind he knows some mythical figures make on their way out. Byrne then had an “extensive conversation about Russian history and political situation.  Butina told him that the purpose of her visit was primarily to extend an invitation to Byrne to come to Russia to speak at the Central Bank. After that, there would be a trip to a major resort to meet with various intellectuals and dignitaries from the Russian power structure. Butina told Byrne the event would offer him the opportunity to meet senior Russian officials and oligarchs. She wanted to see Byrne again to start preparing him for such a trip.

Even more significantly, as Byrne tells it, after Butina first suggested she was using a romantic relationship with him as cover to explain their communications, she’s the one who first pushed sex.

He rented a hotel room with two bedrooms because he was under the impression that the romantic texts were simply her way to cover for communicating with him. However, she arrived at the hotel beforehand, occupied the room before Byrne’s arrival, and when he arrived,  she made clear that her flirtatious texts were not simply a disguise.

And Byrne claims he grew quite alarmed by Butina’s interest in networking with political campaigns.

“Eventually, her conversations became less about philosophy and it became clear that she was doing things that made me quite uncomfortable,” stated Byrne. “She was basically schmoozing around with the political class and eventually she said to me at one point I want to meet anyone in the Hillary campaign, the Cruz, the Rubio campaigns.”

Butina had also told Byrne, that Torshin, the Russian politician who she had been assisting while she was in the U.S., had sent her to the United States to meet other libertarians and build relations with political figures.

Byrne also claims he told Butina she needed to disclose her activities to the government, something that directly contradicts what Butina claimed repeatedly during the sentencing process, that, “If I had known to register as a foreign agent, I would have done so without delay.”

Byrne said he warned Butina: “Maria the United States is not like Russia, and knowing powerful people ‘like oligarchs and politicians’ won’t help if the FBI believes a line has been crossed.” Byrne believed Butina was naive but not blameless. He said during the interview, “If you’re reporting to any Russian official  as you’re doing this stuff and not disclosing yourself here, there are these men in black here and they don’t really give a shit who you know here -that’s not going to save you.”

It is true that Butina repeatedly told him she wasn’t a spy and Byrne ultimately became convinced that was true. But even in his description of that, he told Carter that he believed Butina was being used by US and Russian intelligence, not that he believed she had no tie to intelligence.

Although Byrne was concerned about Butina’s possible motives, he eventually became convinced that she was an intellectual being used by both the Russians and American intelligence apparatus. She was stuck between two highly contentious and secretive governments, he claimed. He relayed those concerns to the FBI, he said.

If that’s what he told the FBI, it does nothing to make her any less of an unregistered agent of Russia.

Very significantly, though, Butina’s involvement with Byrne during the period she was supposedly in a meaningful romantic relationship with Paul Erickson refutes the claims her attorneys have made about that relationship.

As I have laid out, from the very start, Driscoll portrayed the government’s claim that she caught Paul Erickson in a honey pot as sexism, with mixed success.

Then there’s the specific government insinuation that Butina was engaged in a honey pot operation. It substantiates this two ways — first, by suggesting she’s not that into Erickson.

Further, in papers seized by the FBI, Butina complained about living with U.S. Person 1 and expressed disdain for continuing to cohabitate with U.S. Person 1.

It also alleges she offered sex for favors.

For example, on at least one occasion, Butina offered an individual other than U.S. Person 1 sex in exchange for a position within a special interest organization.

Driscoll pretty convincingly argues the government misinterpreted this last bit.

The only evidence the government relied on for its explosive claim was an excerpt from an innocuous three-year-old text exchange (attached as Exhibit 3) sent in Russia between Ms. Butina and DK, her longtime friend, assistant, and public relations man for The Right to Bear Arms gun rights group that she founded.

DK, who often drove Ms. Butina’s car and thus was listed on the insurance, took the car for its annual government-required inspection and insurance renewal, and upon completion, texted (according to government translators), “I don’t know what you owe me for this insurance they put me through the wringer.” Ms. Butina jokingly replied, “Sex. Thank you so much. I have nothing else at all. Not a nickel to my name.” DK responded: “Ugh . . . ( ”—that is, with a sad face emoticon.

Aside from the fact that Maria is friends with DK’s wife and child and treats DK like a brother, the reference to sex is clearly a joke.

We still haven’t seen the government response to this, but what Driscoll presents does support his claim this is a “sexist smear.”

But Driscoll’s dismissal of the other claim — that Butina disdained living with Erickson — is far less convincing.

[I]n response to her girlfriend’s own complaints about her boyfriend’s failure to call in three weeks (accompanied by an angry face emoji) that Maria responds that her own boyfriend (Mr. Erickson) has been “bugging the sh*t out of me with his mom” and that she has “a feeling that I am residing in a nursing home.” “Send a link to the dating app[,]”

Driscoll spins this as an attack on Erickson’s now late mother, but doesn’t address the central allegation that she likened living with her much older boyfriend to living in a nursing home. Nor that she started the exchange by saying “let’s go have some fun with guys!!!” because she was “Bored. So there.” Furthermore, Butina seemed concerned that her use of Tinder would become public because she logged in using Facebook.

Though he has been sharing schmaltzy videos of Butina and Erickson with ABC, Driscoll also doesn’t address the fact that as early as May, Butina was proffering to flip on Erickson in fraud charges in South Dakota, which would have the effect of putting her in a position to negotiate permanent visa status independent of him, while limiting her own legal exposure.

Even in her sentencing memo — long after he knew of her relationship with Byrne, according to his public statements — Driscoll claimed she moved to the US in 2016 so she could be in the same hemisphere as Erickson.

On a personal level, Erickson and Maria kept in touch after the 2013 meeting and she began a romantic relationship with him in the following year.

[snip]

She also wished to be in the same hemisphere as her romantic interest. So Maria and Erickson explored both educational and business opportunities for her. This is the genesis of the Description of the Diplomacy Project proposal referenced in the Statement of Offense.

Among the events Butina planned to attend as part of that Diplomacy Project was the July 8-11 Freedom Fest convention where she first sought out Byrne. And before she moved to the US, she was already involved sexually with Byrne, according to his claims.

The portrayal of Butina’s relationship with Erickson as true romance has long been suspect — not only did she offer to flip on him in May 2018 (in exchange for which she might have gotten a permanent visa), but she did flip on him months before her plea deal. But if Byrne’s claims are true, it suggests she was using sexual relationships to help network in the US, and it further suggests Driscoll knew that when making claims about the import of her relationship with Erickson. If the FBI did obtain information from Byrne they chose (justifiably or not) not to release to defense attorneys, it might explain why they believed she was operating as a honey pot: because that’s what Byrne told them happened to him.

In his public comments to the NYT, Driscoll explained that Butina didn’t want to settle down (the implication is, with Byrne; he has claimed she wanted to settle down with Erickson).

“I think she admired him, but I don’t think she was looking to settle down,” Mr. Driscoll said.

In his comments to Carter, he suggests that he suspects there were other sources for the FBI.

Driscoll said there was suspicion that the FBI did not disclose all the information it had on Butina and he stated that he believed “Patrick is not the only one” who was giving information to the FBI.

“We’ve thought of several possibilities and some we are more confidant than others. I’m firmly convinced,” said Driscoll, who shared numerous letters and emails with this reporter that he exchanged with the FBI.

A seemingly disturbed homeless man, Hamdy Alex Abouhussein, who has asked to submit an amicus brief in Butina’s appeal (the public defender whom Judge Tanya Chutkan appointed to make sure that Driscoll had no conflicts when she pled guilty, AJ Kramer, is representing her in her appeal) claimed (incorrectly) that he’s the reason Butina got thrown into solitary and that FBI used Butina as a dangle to entrap him. So he also claims to have tried to provide exculpatory information.

Plainly, one cannot tell exactly when, before accepting Butina’s guilty plea, did Judge Chutkan learn of the jail’s blocking of Abouhussein’s letters to Butina, including his pictures, or the FBI dangle operation. Moreover, as the plea hearing transcript shows, Butina responded to the Judge’s sequence of questions about effectiveness of each of her then-three attorneys3, including the just-appointed for the plea negotiations role, A.J. Kramer4, who was yet to meet Abouhussein (they met outside the courtroom after the plea hearing, see pre-plea email from Abouhussein to Kramer, exh 2). Upon information and belief, Butina approved her attorneys’ performance only because they, under DOJ’s duress and a gag order, never informed her of the FBI dangle operation and surrendered to the prosecutors’ intimidation by keeping the dangle operation out of the public eye and trial record5. Admittedly, choice was either a rock or a hard place.

However, Judge Chutkan did sentence Butina to 18 months in prison after the notice of Abouhussein’s Amicus Brief Docket No. 77 was entered, which means Judge Chutkan was t/me/y presented with the “FBI dangle” and “letters blocked by Butina’s jail” Brady issues. Per Rule 51, this Honorable Court now has a lawful duty to investigate the issue of the FBI’s dangle operation that intentionally built up an oligarch-connected naive student as a false spy before casting her sex lure to hook the homeless Abouhussein, who was attending a public event at the Heritage Foundation to eat the free lunch as usual. Had he swallowed the lure6, any Grand Jury would indict this HamdySandwitch of a spy couple with ties to Putin, which explains Prosecutors’ honeypot sex allegations tainting Butina upon her arrest. Only in America!

So, yeah, there are other allegations, but Driscoll is right to suggest Byrne is more credible than, at least, this one.

But if Byrne’s story is credible, then it’s not clear that it helps Butina, at all, because it undermines the story her defense has been telling for a year.

Given her repeated assertions she’s happy with Driscoll’s representation, it’s unclear the basis for Butina’s appeal. I think the government operated in bad faith when they asked for 18 months, but that’s not a basis for an appeal. I think Driscoll made a mistake both by not arguing more forcibly that given the most relevant comparable sentence on 18 USC 951 charges, that of Carter Page recruiter Evgeny Buryakov’s 30 month sentence, a 9 month sentence would have been proportionate for someone like Butina who was neither recruiting nor operating covertly.

I also think that if Driscoll really cared about the declaration from former Assistant Director of FBI’s Counterintelligence Division, Robert Anderson Jr at her sentencing, he should have questioned what documents Anderson relied upon to judge that Butina was a spotter for Russian intelligence instead of deciding that, “I’m happy to leave the record as it is.” But if Driscoll had reason to believe the FBI had really damning information from Byrne that undercut his claims about Butina’s romance with Erickson, it might explain why he didn’t ask those questions.

The other day, Butina’s lawyer for her appeal AJ Kramer asked for an extension on his deadline to submit Butina’s appeal, which could mean he wants to add claims of Brady violations in her appeal (though he says he needs more time to consult the public record, and Driscoll and his associate Alfred Carry, by Driscoll’s own admission, never put their request for information about Byrne in writing).

But given Byrne’s public claims, it’s not actually clear that will help her case, as it mostly provides an explanation for why the FBI was so insistent on some of the allegations it did make.

Gina Haspel Destroyed the Tapes in 2005 to Hide What She Destroyed in 2002

When Gina Haspel was testifying on Wednesday, she confused those of us who know the history of the torture tapes well. She made two claims that didn’t accord with the public record of the tapes that were destroyed. First, she said that only one detainee was depicted on the 92 tapes that got destroyed. Additionally, she said she, “didn’t appear on the tapes, as has been mischaracterized in the press.”

Yet as an inventory of the tapes shows, two of the tapes depicted Abd al Rahim al-Nashiri, though those tapes were taped over every day.

So there should have been two tapes depicting Nashiri’s torture, and given that she oversaw his torture, there’s a good chance she’d appear on them.

When Charlie Savage asked CIA about the discrepancy, they pointed to a CIA IG review done of the tapes that showed a number of the tapes had been altered before the review.

“Gina Haspel supervised the torture of al-Nashiri, which raises the stakes on the question of whether there were or were not remaining tapes of his torture,” said Hina Shamsi, the director of the A.C.L.U.’s national security project.

Asked about the apparent discrepancy, the C.I.A. pointed without comment to several pages of another document previously released under the Freedom of Information Act that discussed how the agency logged the contents of the 92 tapes before destroying them. It said 11 were blank, two were blank “except for one or two minutes of recording,” and “two were broken and could not be reviewed.”

In 2010, I noted that John Durham was clearly investigating two rounds of torture tape destruction: the second round, in 2005, when Gina Haspel helped her boss Jose Rodriguez destroy all the undamaged tapes. And the first round, in 2002 or 2003, when someone destroyed the evidence on what must be the most damning tapes.

As you recall, when the CIA IG reviewed the torture tapes in May 2003 (that is, five months after McPherson’s review), there were 15 tapes in some state of damage or erasure.

OIG found 11 interrogation tapes to be blank. Two others were blank except for one or two minutes of recording. Two others were broken and could not be reviewed. OIG compared the videotapes to logs and cables and identified a 21-hour period of time” which included two waterboard sessions” that was not captured on the videotapes.

You see, John Durham is investigating two incidents of torture tape destruction: the first, when in 2002 or 2003 someone removed evidence of two sessions of waterboarding (and potentially, the use of mock burial that would be declared torture by John Yoo) from the videotapes. And the second one, on November 8, 2005, when someone destroyed all the tapes, which not only destroyed evidence of waterboarding that violated the terms of the Bybee Two memo, but also destroyed evidence of the first round of destruction.

And John McPherson is likely the only person who can pinpoint when the first round of destruction occurred, before or after November-December 2002.

Now, all that doesn’t tell us precisely what Durham is after or whom, though I’d suggest he’s at least as interested in the people in the loop of the first round of destruction as the second.

As I said, it was not clear who he was after, the names of the people who had destroyed the tapes in the second round or in the first round.

But it appears CIA has now confirmed that: Gina Haspel. The CIA appears to be saying that Gina Haspel was the culprit both of those times.

And when she testified under oath on Wednesday that she supported destroying the tapes because the faces off officers appeared on the tapes, she was only partly telling the truth. It appears virtually certain (particularly given the focus on declassifying the Durham report so people can read his conclusions), she also supported destroying the tapes to hide the first round of destruction she had carried out. If so, she may have done so to hide the fact that her own face didn’t appear on the tapes, if it once had.

One more point: This makes Haspel’s enthusiasm for keeping torture in 2005-2007 all the more damning. Over two years earlier, Haspel appears to have destroyed evidence of how bad torture was. But she was still pushing to keep it even after hiding what she had done.