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SSCI Has Already Dismissed One of the Key Issues John Durham Is Investigating

The other day, the NYT had an update on another area included in John Durham’s 9-month investigation of the Russian investigation. Durham appears to be chasing a theory (based on what predication, aside from Bill Barr’s fevered imagination, it’s unclear) that John Brennan tricked the FBI into investigating Trump by fooling them into believing Russia wanted Trump elected.

Questions asked by Mr. Durham, who was assigned by Attorney General William P. Barr to scrutinize the early actions of law enforcement and intelligence officials struggling to understand the scope of Russia’s scheme, suggest that Mr. Durham may have come to view with suspicion several clashes between analysts at different intelligence agencies over who could see each other’s highly sensitive secrets, the people said.

Mr. Durham appears to be pursuing a theory that the C.I.A., under its former director John O. Brennan, had a preconceived notion about Russia or was trying to get to a particular result — and was nefariously trying to keep other agencies from seeing the full picture lest they interfere with that goal, the people said.

[snip]

The Justice Department has declined to talk about Mr. Durham’s work in meaningful detail, but he has been said to be interested in how the intelligence community came up with its analytical judgments — including its assessment that Russia was not merely sowing discord, but specifically sought to help Mr. Trump defeat Hillary Clinton in the 2016 election.

A key part of this involves the credibility assigned to a Russian source and the CIA’s initial unwillingness to share his identity.

One fight, they said, concerned the identity and placement of a C.I.A. source inside the Kremlin. Analysts at the National Security Agency wanted to know more about him to weigh the credibility of his information. The C.I.A. was initially reluctant to share details about the Russian’s identity but eventually relented.

But officials disagreed about how much weight to give the source’s information, and the intelligence community’s eventual assessment apparently reflected that division. While the F.B.I. and the C.I.A. concluded with “high confidence” that Mr. Putin was specifically trying to help Mr. Trump win the election, the National Security Agency agreed but said it had only “moderate confidence.”

As with much of the Durham investigation, this likely came from a partisan investigation — specifically the HPSCI Report on Russian interference that the GOP released with little Democratic involvement. It found that

(U) Finding #16: The lntelllgence Communi· tv Assessment judgments on Putin’s strategic intentions did not employ proper ana· lytic tradecraft. (U) While the Committee found that most ICA analysis held-up to scrutiny, the investigation also identified significant intelligence tradecraft failings that undermine confidence in the JCA judgments regarding Russian President Vladimir Putin’s strategic objectives for disrupting the U.S. election. Those judgments failed to meet longstanding standards set forth in the primary guiding document for IC analysis, ICD 203, Analytic Standards including:

(U) ”Properly describe quality and credibilit:y of underlying sources.”

(U) “Properly express and explain uncertainties associated with major analytic judgments.”

(U) “Incorporate analysis of alternatives ·- [particularly] when major judgments must contend with significant uncertainties or … high-impact results.”

(U) Base confidence assessments on “the quantity and quality of source material.”

(U) “Be informed by all relevant information available.”

(U) “Be independent of political considerations.”

[snip]

The Committee’s findings on ICA tradecraft focused on the use of sensitive, [redacted] intelligence [redacted] cited by the ICA. This presented a significant challenge for classification downgrade. The Committee worked with intelligence officers from the agencies who own the raw reporting cited in the ICA to downgrade the classification of compartmented findings [redacted]

In short, in the same way that the HJC/OGR echo chamber of shoddy propaganda injected George Papadopoulos’ claims into Durham’s investigation, the HPSCI report likely gave Barr a way to demand this prong of the investigation.

The thing is, however, the Senate Intelligence Committee has also reviewed this intelligence — notably, at a time after the CIA source behind it had been exfiltrated (and after abundant other evidence proving that Putin really did prefer Trump came in). And SSCI had no problem with the conclusion.

The ICA states that:

We assess Russian President Vladimir Putin ordered an influence campaign in 2016 aimed at the U.S. presidential election. Russia’s goals were to undermine public faith in the U.S. democratic process, denigrate Secretary Clinton, and harm her electability and potential presidency. We further assess Putin and the Russian Government developed a clear preference for President-elect Trump.[2]

  • The Committee found that the ICA provided a range of all-source reporting to support these assessments.
  • The Committee concurs with intelligence and open-source assessments that this influence campaign was approved by President Putin.
  • Further, a body of reporting, to include different intelligence disciplines, open source reporting on Russian leadership policy preferences, and Russian media content, showed that Moscow sought to denigrate Secretary Clinton.
  • The ICA relies on public Russian leadership commentary, Russian state media reports, public examples of where Russian interests would have aligned with candidates’ policy statements, and a body of intelligence reporting to support the assessment that Putin and the Russian Government developed a clear preference for Trump.

The ICA also states that:

We also assess Putin and the Russian Government aspired to help President-elect Trump’s election chances when possible by discrediting Secretary Clinton and publicly contrasting her unfavorably to him.[3]

  • The Committee found that the ICA provided intelligence and open source reporting to support this assessment, and information obtained subsequent to publication of the ICA provides further support.
  • This is the only assessment in the ICA that had different confidence levels between the participating agencies—the CIA and FBI assessed with “high confidence” and the NSA assessed with “moderate confidence”—so the Committee gave this section additional attention.

The Committee found that the analytical disagreement was reasonable, transparent, and openly debated among the agencies and analysts, with analysts, managers, and agency heads on both sides of the confidence level articulately justifying their positions. [my emphasis]

Significantly, over time that conclusion has held up.

In fact, an even more recent SSCI Report — released in recent weeks — makes it clear that what is obviously this same reporting stream provided the “wake up” call that led the IC to take the Russian attack as seriously as they should have. The intelligence is introduced (but entirely redacted) on page 11, but the description of Brennan’s action — and the degree to which this intelligence was closely held thereafter — makes it clear that this is the CIA HUMINT.

According to Director Brennan, he recommended that the intelligence be briefed to the Gang of Eight, stating, “I think it’s important that this be a personal briefing.”

[snip]

According to multiple administration officials, the receipt of the sensitive intelligence prompted the NSC to being a series of restricted PC meetings to craft the administration’s response to the Russians’ active measures campaign. These restricted “small group” PC meetings, and the corresponding Deputies Committee (DC) meetings, were atypically restricted, and excluded regular PC and DC attendees such as the relevant Senior Directors within the NSC and subject matter experts that normally accompanied the principals and deputies from the U.S. Government departments and agencies.

According to former NSC Senior Director for Intelligence Programs, Brett Holmgren, no one other than the principals participated in the initial PC meetings, due to the sensitivity of the intelligence reporting. Mr. Holmgren further stated that the “reports were briefed verbally, often times by Director Brennan. So I didn’t get access to a lot of these reports until the November or December time frame.”

To be clear, ultimately this more recent SSCI Report comes down on the same side that the Durham inquiry seems to be — that CIA ended up holding this too close, making it difficult for other agencies to properly vet it. This SSCI Report argues that the close hold led to a less robust response than the US should have mounted.

So all four reviews — HPSCI’s, SSCI’s ICA assessment and 3rd volume, along with Durham’s current review — agree that the CIA held this information really closely. But the bipartisan reports that assess whether the conclusion held up over time — just the SSCI ones — not only find that CIA was right, but that that view marked the belated moment when the US IC started taking the attack seriously enough.

In other words, John Durham is investigating something that the proper oversight authorities already have deemed the correct result that actually came too late and not broadly enough, and trying to find fault with it. Bill Barr is trying to get Durham to criminalize an intelligence conclusion that is the one thing that didn’t lead us to get more badly damaged by the attack.

Bill Barr Commits the Bruce Ohr “Crime”

Far be it for me to ever underestimate the possibility of Bill Barr nefariousness (and I’ll almost certainly have to eat these words), but I’m far less concerned about what Barr said the other day about a process to ingest Ukrainian bullshit from Rudy Giuliani than virtually everyone else. That’s because in his comments from the other day, he emphasized the import of vetting information from Ukraine, whether it comes from Rudy Giuliani or anyone else.

We have to be very careful with respect to any information coming from the [sic] Ukraine. There are a lot of agendas in the [sic] Ukraine, there are a lot of cross-currents, and we can’t take anything we receive from the [sic] Ukraine at face value. And for that reason we had established an intake process in the field so that any information coming in about Ukraine could be carefully scrutinized by the department and its intelligence community partners so that we could assess its provenance and its credibility. That is true for all information that comes to the Department relating to the [sic] Ukraine including anything Mr. Giuliani might provide.

This sounds like the kind of thing you’d do to placate your boss even while ensuring DOJ doesn’t accept a bunch of disinformation manufactured by mobbed up oligarchs to mess with America.

The WaPo’s report that Barr is sending all this to the US Attorney in Pittsburgh suggests Barr neither wants this stuff in Main DOJ but also is not sending it to either of the two places — John Durham’s inquiry or the SDNY prosecution of the Ukrainian grifters — where it might be used in an ongoing investigation.

A Justice Department official said Giuliani had “recently” shared information with federal law enforcement officials through the process described by Barr. Two people familiar with the matter said the information is being routed to the U.S. attorney’s office in Pittsburgh.

[snip]

It is not clear whether Scott W. Brady, the U.S. attorney in Pittsburgh, will play a similar role, or why his office was chosen. A spokeswoman for Brady’s office declined to comment.

So while I hope (again, probably over-optimistically) that this is just a convenient way to deal with a difficult boss and his criminal subject attorney, I also worry that it’s not being shared with the people investigating such information sharing as illegal foreign influence peddling.

Plus, it strikes me as a unbelievably hypocritical for Bill Barr to continue to ingest dodgy information probably sourced to corrupt oligarchs after the entire frothy right has demonized Bruce Ohr for continuing to accept information — some but not all of it sourced to Oleg Deripaska — from Christopher Steele.

Admittedly, no one can complain about the basis for which DOJ’s Inspector General relied on to make a completely irresponsible attack on Ohr — that he didn’t inform his superiors (even though they had, in fact, been informed). Barr is the boss! He has chosen who should deal with this information, in a way that Sally Yates and Rod Rosenstein did not.

But Barr is, nevertheless, doing what the frothy right complains that Ohr did: continue to accept problematic information — deemed partisan (inaccurately in the case of Ohr, because his information sharing with Steele long preceded the DNC project and much of what he shared during and after that involved entirely unrelated topics) — after it had been discredited.

Perhaps, along with issuing orders that suggest Trump can commit any crime he wants between now and November 2020, Barr should issue an order explaining how DOJ should accept such information — including manufactured dirt from Steve Bannon — as a rule, so we can stop working under different rules for different parties.

Mike Flynn Seizes the Rope to Hang Himself With: Flynn’s Motion to Dismiss Carter Page’s Non-Existent Plea

As I noted yesterday, Mike Flynn’s legal team and the government submitted a bunch of filings yesterday.

I’m collectively titling my posts on them, “Mike Flynn Seizes the Rope to Hang Himself,” which is the advice Rob Kelner gave his then-client in December 2018 when Judge Emmet Sullivan swore him in to reallocute his guilty plea, effectively arguing that if Flynn withdrew his plea, it would lead to worse consequences. Flynn’s current lawyer, Sidney Powell, argues that advice was objectively incompetent. I predict the outcome of the next few weeks will show Kelner had the better judgment.

This post from yesterday covers the government reply to Flynn’s sentencing memo.

This post will focus on Flynn’s motion to dismiss for misconduct, a 27-page motion that Flynn submitted yesterday with neither warning nor pre-approval from Sullivan. Flynn has made much of this argument before (and Sullivan has rejected it) in a filing that argued,

The government works hard to persuade this Court that the scope of its discovery obligation is limited to facts relating to punishment for the crime to which Mr. Flynn pleaded guilty. However, the evidence already produced or in the public record reveals far larger issues are at play: namely, the integrity of our criminal justice system and public confidence in what used to be our premier law enforcement institution. When the Director of the FBI, and a group of his close associates, plot to set up an innocent man and create a crime—while taking affirmative steps to ensnare him by refusing to follow procedures designed to prevent such inadvertent missteps—this amounts to conduct so shocking to the conscience and so inimical to our system of justice that it requires the dismissal of the charges for outrageous government conduct.

[snip]

As new counsel has made clear from her first appearance, Mr. Flynn will ask this Court to dismiss the entire prosecution based on the outrageous and un-American conduct of law enforcement officials and the subsequent failure of the prosecution to disclose this evidence— which it had in its possession all along—either in a timely fashion or at all.

In a footnote in yesterday’s filing, Flynn lawyer Sidney Powell explains that, no, the last time she tried this argument, which Sullivan rejected in an unbelievably meticulous 92 page opinion, wasn’t actually her motion to dismiss, this is,

Contrary to a suggestion in this Court’s recent opinion, Mr. Flynn did not previously move to dismiss the case against him. ECF No. 144 at 2. As the docket sheet and this Court’s recital of motions show, this is Mr. Flynn’s only Motion to Dismiss. In Mr. Flynn’s previous filings, he made clear he would ultimately move for dismissal, that the evidence requested in his Brady motion would further support the basis for dismissal, and that the case should be dismissed.

Particularly given that much of this repeats what Powell said in the earlier motion, the claim that this is the real motion to dismiss probably won’t sit well with Judge Sullivan. But Powell has to try again, because (as I’ll show) her motion to dismiss doesn’t actually claim that Flynn is innocent of lying to the FBI about his call with Sergey Kislyak — he says the opposite. So this motion to dismiss appears designed to explain why Flynn should not be held accountable for that lie.

Powell justifies doing so because she claims she found new damning information in the IG Report on Carter Page. (She also complains that she received Flynn’s 302s since the prior motion, but presents not a single piece of evidence from them; as I’ll show in my third post on these filings, she’s probably going to regret raising them.)

Such exculpatory evidence and outrageous misconduct includes that on December 9, 2019, the Inspector General of the Department of Justice (“DOJ”) issued its 478-page report on the “Review of Four FISA Applications and Other Aspects of the FBI’s Crossfire Hurricane Investigation” (“IG Report”).2 The IG Report illustrates the misconduct by the government as further detailed below.

[snip]

Additionally, the IG Report shows that the government long suppressed evidence of shocking malfeasance by the leadership of the FBI and Supervisory Special Agent 1 (“SSA 1”) that was favorable to Mr. Flynn’s defense. For these reasons, and those outlined in prior briefing, Mr. Flynn moves to dismiss this entire prosecution for outrageous government misconduct and in the interest of justice.

In a probably ill-considered move, Powell blames Sullivan for not considering the IG Report in his previous opinion.

Despite the defense, the government, and this Court agreeing to abate the schedule in this case because of the pending and admittedly-relevant IG Report (ECF No. 140 and this Court’s Minute Order of November 27, 2019), this Court denied Mr. Flynn’s Motion to Compel Production of Brady Evidence without allowing for additional briefing in light of that report or considering any of the deliberate government misconduct it disclosed. ECF Nos. 143 and 144. Mr. Flynn now moves to dismiss the indictment for the additional egregious misconduct documented in the IG Report, other recently produced materials, all previously briefed issues, and in the interest of justice.

A week passed between the time the IG Report came out — which has just one small section relating to Flynn — and the date Sullivan issued his opinion. It is Powell’s job to ask him to consider any new information in it, not his job to cull through the report and find out if anything is relevant. She did not do so. Which is one of many reasons why Sullivan would be in his right to just dismiss this as untimely.

As I note in this thread, much of what follows is either a repetition of complaints that Sullivan already rejected or a claim that Mike Flynn, honored General of thirty years, is actually Carter Page, maligned gadfly, because they describe things that did injure Page but did not injure Flynn and are utterly irrelevant to the lies Flynn told on January 24, 2017.

  • Asks that Sullivan rely on a Ninth Circuit opinion on the Bundy family to reconsider Brady violations he already ruled did not happen.
  • Revisits a Jim Comey comment that was briefed before Flynn pled guilty the last time and Powell’s conspiracy theories about a draft 302 that she claims differs from the notes and the released 302s which are all consistent.
  • Invokes Ted Stevens by invoking the Henry Shuelke report, which laid out problems with the Senators prosecution, but which Sullivan has already said is an inapt comparison.
  • Mixes up the 2017 FISA order that shows (in part) that Flynn, personally, presided over FISA abuses with the 2018 FISA order that shows Chris Wray’s FBI committed querying violations that affected thousands (quite possibly in an attempt to find out who leaked details of Flynn’s comments to Sergei Kislyak).
  • Claims that the Carter Page FISA allowed the FBI to illegally obtain the communications of “hundreds of people, including Mr. Flynn,” which is a claim that doesn’t show up in the IG Report (Powell cites to it “generally,” which is her tell in this motion that she’s making shit up); while it’s possible emails from the campaign (possibly group emails on National Security) involving both Page and Flynn were collected, there is zero chance any of them pertain to the lies Flynn told on January 24, 2017. Moreover, there is virtually no chance that Flynn was communicating with Carter Page after April 2017 via encrypted messaging apps — months after both had been ousted from Trump’s circles because of their problematic interactions with Russians — which is what it likely would have taken to have been collected under the applications deemed problematic by FBI.
  • Twice claims that Flynn’s obligation (which he fulfilled) to tell DIA when he went traipsing off to RT Galas in Russia equates to CIA’s designation of Carter Page as an acceptable contact and notes that Sullivan already ruled that wasn’t exculpatory on the charges before him (the government has made it clear Flynn’s DIA briefing was actually inculpatory).
  • Claims SSA1 — whom Powell asserts, probably but not necessarily correctly, is the second Agent who interviewed Flynn — supervised Crossfire Hurricane, but doesn’t note that was only until December 2016, at least four weeks before Flynn lied to FBI agents on January 24, 2017; Powell repeatedly claims, falsely, that SSA1 supervised Crossfire Hurricane during the entire period when Carter Page was under surveillance.
  • Insinuates, with no evidence, that SSA1 knew that Case Agent 1 had excluded comments from George Papadopoulos that the frothy right believes are exculpatory but which the FBI judged correctly at the time were just a cover story.
  • Claims falsely that Lisa Page had a role in opening an investigation into Flynn.
  • Complains that the FISA applications made statements about Stefan Halper that were true but not backed by paperwork in the Woods File, even though (contrary to Flynn’s conspiracy theories) Halper never spoke with Flynn as part of tihs investigation.

Pages and pages into this, Powell admits that actually all of this would matter if she were representing Carter Page, but she claims (with no evidence, and given the scope of the Page warrants, there would be none) that it nevertheless injures her client.

While Mr. Flynn’s case is not even the focus of the IG Report, the Report reveals illegal, wrongful, and improper conduct that affected Mr. Flynn, and is the subject of an ongoing criminal investigation by United States Attorney John Durham.

Even where the IG Report does describe something that affected Flynn directly — in SSA1’s inclusion in Trump’s first briefing, in part, to see what kinds of questions he was asking — Powell manages to lard it with false claims. On top of misrepresenting how long SSA1 oversaw the investigation into Trump’s flunkies (noted above and exhibited specifically below), Powell suggests that SSA1 snuck into the August 17, 2016 intelligence briefing Flynn attended as Trump’s top national security advisor and had no purpose but to observe her client.

There were two FBI agents who interviewed Mr. Flynn in the White House on January 24, 2017—Agent Peter Strzok and SSA 1. The IG Report confirms both participated in government misconduct. As explained in further detail below, not only was Strzok so biased, calculated, and deceitful he had to be terminated from Mueller’s investigation and then the FBI/DOJ, but it has also now been revealed that SSA 1 was surreptitiously inserted in the mock presidential briefing on August 17, 2016, to collect information and report on Mr. Trump and Mr. Flynn. Moreover, SSA 1 was involved in every aspect of the debacle that is Crossfire Hurricane and significant illegal surveillance resulting from it. Further, SSA 1 bore ultimate responsibility for four falsified applications to the FISA court and oversaw virtually every abuse inherent in Crossfire Hurricane— including suppression of exculpatory evidence. See generally IG Report.

[snip]

Shockingly, as further briefed below, SSA 1 also participated surreptitiously in a presidential briefing with candidate Trump and Mr. Flynn for the express purpose of taking notes, monitoring anything Mr. Flynn said, and in particular, observing and recording anything Mr. Flynn or Mr. Trump said or did that might be of interest to the FBI in its “investigation.” IG Report at 340

[snip]

More specifically, as the Inspector General explained further in his testimony to Congress on December 11, 2019, SSA 1 surreptitiously interviewed and sized-up Mr. Flynn on August 17, 2016, under the “pretext” of being part of what was actually a presidential briefing but reported dishonestly to others as a “defensive briefing.”

[snip]

Strzok and Lisa Page texted about an “insurance policy” on August 15, 2016.20 They opened the FBI “investigation” of Mr. Flynn on August 16, 2016. IG Report at 2. The very next day, SSA 1 snuck into what was represented to candidate Trump and Mr. Flynn as a presidential briefing. IG Report at 340. [my emphasis]

The overwhelming bulk of her complaint about this is that — she claims — SSA1’s participation was secret. Reading this motion, you’d think he was hidden under the couch while the briefing was conducted. His presence, of course, was in no way surreptitious. What was secret was that Flynn was under investigation and SSA1 was overseeing it.

In one of her discussions of the briefing, Powell quotes the part of the IG Report that refutes her suggestions that SSA1 was only in this briefing to observe Flynn.

In August 2016, the supervisor of the Crossfire Hurricane investigation, SSA 1, participated on behalf of the FBI in an ODNI strategic intelligence briefing given to candidate Trump and his national security advisors, including Flynn, and in a separate briefing given to candidate Clinton and her national security advisors. The stated purpose of the FBI’s participation in the counterintelligence and security portion of the briefing was to provide the recipients ‘a baseline on the presence and threat posed by foreign intelligence services to the National Security of the U.S.’ However, we found the FBI also had an investigative purpose when it specifically selected SSA 1, a supervisor for the Crossfire Hurricane investigation, to provide the FBI briefings. SSA 1 was selected, in part, because Flynn, who would be attending the briefing with candidate Trump, was a subject in one of the ongoing investigations related to Crossfire Hurricane. SSA 1 told us that the briefing provided him ‘the opportunity to gain assessment and possibly some level of familiarity with [Flynn]. So, should we get to the point where we need to do a subject interview…I would have that to fall back on.’

As the passage she quotes makes clear, that was just part of the reason why he was selected. She doesn’t mention that, as a senior counterintelligence agent, SSA1 was appropriate to give the briefing in any case, and in fact did give the equivalent first briefing to Hillary, as well.

In one place, however, Powell totally misrepresents what the purpose of this briefing was claiming that it was the defensive briefing about specific threats to the candidate.

While SSA 1’s stated purpose of the presidential briefing on August 17, 2016, was “to provide the recipients ‘a baseline on the presence and threat posed by foreign intelligence services to the National Security of the U.S,’” IG Report at xviii (Executive Summary), the IG Report confirmed that, in actuality, the Trump campaign was never given any defensive briefing about the alleged national security threats. IG Report at 55. Thus, SSA 1’s participation in that presidential briefing was a calculated subterfuge to record and report for “investigative purposes” anything Mr. Flynn and Mr. Trump said in that meeting. IG Report at 408. The agent was there only because Mr. Flynn was there. IG Report at 340. Ironically, Mr. Flynn arranged this meeting with ODNI James Clapper for the benefit of candidate Trump.

As the IG Report makes clear, these are different things. The IG Report even provides several different explanations for why the FBI did not give Trump a defensive briefing that Russia was trying to influence his campaign, but which Powell doesn’t include. Andrew McCabe’s explanation was particularly prescient.

[T]he FBI did not brief people who “could potentially be the subjects that you are investigating or looking for.” McCabe told us that in a sensitive counterintelligence matter, it was essential to have a better understanding of what was occurring before taking an overt step such as providing a defensive briefing.

You couldn’t brief Trump on a potential Russian threat with Flynn present because Flynn was considered — because of his past close ties to the GRU and his paid appearances with Russian entities, including one where he met Putin — one of the most likely people for Russia to have alerted about the email hack-and-dump plan. And, as I noted, there was a bunch of language about counterintelligence issues in the government’s original sentencing memo specifically pertaining to Flynn that should concern him if he weren’t so busy producing fodder for the frothy right. So, in fact, the FBI was right to worry (and I suspect we may hear more about this).

Moreover, as this entire effort to blow up the plea deal emphasizes, Flynn turned out to be an egregious counterintelligence risk for other reasons, as well: the secret deal he was arranging with Turkey even as this briefing occurred, which he explained, at length, under oath, to the grand jury. That is, this proceeding makes it clear that the FBI was right not to trust Mike Flynn, because, days before this briefing, his firm had committed, in secret to working on a frenemy government’s payroll.

This is tangential to Powell’s trumped up complaints about the only thing the IG Report says that directly affected her client. But — as with so much of this stunt — my suspicion is that if she presses this issue it will backfire in spectacular fashion.

In any case, the main takeaway from this motion to dismiss the plea is that virtually all the new stuff that Judge Sullivan hasn’t already ruled was irrelevant in meticulous fashion doesn’t affect Mike Flynn, it affects Carter Page. And the stuff that does affect Flynn directly is probably not something he wants to emphasize before Sullivan weighs the gravity of his lies.

More importantly, for the motion to withdraw his plea, nothing here undercuts the fact that Mike Flynn pled guilty to his lies about Russia.

The Whack-a-Mole Cover Story: Bill Barr’s Knowing Complicity Moved a Month Earlier

Attentive readers of yesterday’s NYT Bolton story have noted that Bolton says that by August, Trump’s demand in the quid pro quo was not just the announcement of an investigation, but “all materials they had about the Russia Investigation that related to Mr. Biden and supporters of Mrs. Clinton in Ukraine.”

In his August 2019 discussion with Mr. Bolton, the president appeared focused on the theories Mr. Giuliani had shared with him, replying to Mr. Bolton’s question that he preferred sending no assistance to Ukraine until officials had turned over all materials they had about the Russia investigation that related to Mr. Biden and supporters of Mrs. Clinton in Ukraine.

That is, in August of last year, Trump was extorting Ukraine to obtain materials about 2016.

Some have suggested this is new news. But it’s not. It came up at Mick Mulvaney’s October 17, 2019 press conference. As he told it, the hold was primarily because of corruption and to press the rest of Europe to provide their fair share of funding for Ukraine. Mulvaney made a statement that — given that we now know DOD reviewed how much Europe provided and concluded they were providing more than the US — is fairly breathtaking in retrospect. Mulvaney gets away with this by claiming it’s just about lethal aid.

So we actually looked at that, during that time, before — when we cut the money off, before the money actually flowed, because the money flowed by the end of the fiscal year — we actually did an analysis of what other countries were doing in terms of supporting Ukraine.  And what we found out was that — and I can’t remember if it’s zero or near zero dollars from any European countries for lethal aid.  And you’ve heard the President say this: that we give them tanks and other countries give them pillows.  That’s absolutely right, that the — as vocal as the Europeans are about supporting Ukraine, they are really, really stingy when it comes to lethal aid.  And they weren’t helping Ukraine, and then still to this day are not.

From those two excuses — corruption and European support — Mulvaney then adds, as what he probably intends to be a throwaway comment, that part of this was investigating the DNC server, all the while trying to pretend that an investigation into the DNC server (he can never seem to label this the Crowdstrike conspiracy theory) pertains to corruption.

Did he also mention to me in pass the corruption related to the DNC server?  Absolutely.  No question about that.  But that’s it.  And that’s why we held up the money.

Now, there was a report —

Q    So the demand for an investigation into the Democrats was part of the reason that he ordered to withhold funding to Ukraine?

MR. MULVANEY:  The look back to what happened in 2016 —

Q    The investigation into Democrats.

MR. MULVANEY: — certainly was part of the thing that he was worried about in corruption with that nation.  And that is absolutely appropriate.

[snip]

Did he also mention to me in pass the corruption related to the DNC server?  Absolutely.  No question about that.  But that’s it.  And that’s why we held up the money.

Now, there was a report —

Q    So the demand for an investigation into the Democrats was part of the reason that he ordered to withhold funding to Ukraine?

MR. MULVANEY:  The look back to what happened in 2016 —

Q    The investigation into Democrats.

MR. MULVANEY: — certainly was part of the thing that he was worried about in corruption with that nation.  And that is absolutely appropriate.

Someone latches on to Mulvaney’s admission that Trump was demanding an investigation into his opponents, and raises “the Bidens.” Someone else notes that even if you’re just talking about the DNC, it still means Trump engaged in a quid pro quo to investigate his prospective opponents, since the DNC is also involved in 2020.

Q    Mr. Mulvaney, what about the Bidens, though, Mr. Mulvaney?  Did that come into consideration when that money was held up?

MR. MULVANEY:  I’m sorry, I don’t know your name, but he’s being very rude.  So go ahead and ask your question.

Q    Just to clarify, and just to follow up on that question: So, when you’re saying that politics is going to be involved —

MR. MULVANEY:  Yeah.

Q    — the question here is not just about political decisions about how you want to run the government.  This is about investigating political opponents.  Are you saying that —

MR. MULVANEY:  No.  The DNC — the DNC server —

[snip]

Q    Are you saying that it’s okay for the U.S. government to hold up aid and require a foreign government to investigate political opponents of the President?

MR. MULVANEY:  Now, you’re talking about looking forward to the next election.  We’re talking —

Q    Even the DNC.  The DNC is still involved in this next election.  Is that not correct?

Mulvaney starts to panic, and to get out of that panic, invokes the Durham investigation. To defer from 2020, Mulvaney says Trump was just obtaining information for an ongoing investigation.

MR. MULVANEY:  So, wait a second.  So there’s —

Q    So are you saying —

MR. MULVANEY:  Hold on a second.  No, let me ask you —

Q    But you’re asking to investigate the DNC, right?

MR. MULVANEY:  So, let’s look at this —

Q    Is the DNC political opponents of the President?

MR. MULVANEY:  There’s an ongoing — there’s an ongoing investigation by our Department of Justice into the 2016 election.  I can’t remember that person’s name.

Q    Durham.

MR. MULVANEY:  Durham.  Durham, okay?  That’s an ongoing investigation, right?  So you’re saying the President of the United States, the chief law enforcement person, cannot ask somebody to cooperate with an ongoing public investigation into wrongdoing?  That’s just bizarre to me that you would think that you can’t do that.

In other words, in Mulvaney’s presser, he excused the political aspect of Trump’s quid pro quo by claiming the President was pressing Ukraine to cooperate in the Durham investigation. He claimed that this wasn’t about Biden but instead about 2016.

Of course, that had to have caused all sorts of heartache over at DOJ, because they had been saying for almost a month that Bill Barr had no clue about any of this and here Mulvaney was saying that the quid pro quo was about the investigation Barr set up and was micromanaging.

After DOJ pushed back, the White House adopted the line that this was about Burisma’s corruption.

To be sure, the impeachment witnesses didn’t always support that. Kurt Volker, for example, invented a story that when he pushed Ukraine to investigate Burisma, he meant they should investigate the corrupt company, not Biden and that the request to investigate 2016. He discounted the request for an investigation into 2016 by suggesting Ukrianians might be trying to buy influence.

SCHIFF: Ambassador, let me also ask you about the allegations against Joe Biden, because that has been a continuing refrain from some of my colleagues, as well. Why was it you found the allegations against Joe Biden, related to his son or Burisma, not to be believed?

VOLKER: Simply because I’ve known Vice President — former Vice President Biden for a long time, I know how he respects his duties of higher office and it’s just not credible to me that a Vice President of the United States is going to do anything other than act as how he sees best for the national interest.

[snip]

SCHIFF: I take it since you say that — you acknowledge that asking for an investigation of the Bidens would have been unacceptable and objectionable, that had the President asked you to get Ukraine to investigate the Bidens, you would have told him so?

VOLKER: I would have objected to that. Yes, sir.

SCHIFF: Mr. Goldman?

GOLDMAN: Thank you, Mr. Chairman. Just one follow up on that, Ambassador Volker. When — when you say thread the needle, you’re — you mean that you understood the relationship between Vice President Biden’s son on — and Burisma but you were trying to separate the two of them in your mind? Is that right?

VOLKER: Well I believe that they were separate, that — and I — this references the conversation I had with Mr. Giuliani as well, where I think the allegations against Vice President Biden are self-serving and not credible.

A separate question is whether it is appropriate for Ukraine to investigate possible corruption of Ukrainians that may have tried to corrupt things or buy influence. To me, they are very different things. As I said, I think the former is unacceptable, I think the latter in this case is …

[snip]

GOLDMAN: Now he was insisting from a public commitment from President Zelensky to do these investigations, correct?

VOLKER: Now, what do we mean by these investigations?

GOLDMAN: Burisma and the 2016 election.

VOLKER: Burisma and 2016, yes.

GOLDMAN: And, at the time that you were engaged in coordinating for this statement, did you find it unusual that there was such an emphasis on a public statement from President Zelensky to carry out the investigations that the president was seeking?

VOLKER: I didn’t find it that unusual. I think when you’re dealing with a situation where, I believe the president was highly skeptical about President Zelensky being committed to really changing Ukraine after this entirely negative view of the country, that he would want to hear something more from President Zelensky to be convinced that — OK, I’ll give this guy a chance.

GOLDMAN: And he — perhaps he also wanted a public statement because it would lock President Zelensky in to do these investigations that he thought might benefit him?

VOLKER: Well again, we’re — when we say these investigations what I understood us to be talking about was Ukrainian corruption.

GOLDMAN: Well, what we’re talking about is Burisma and the 2016 election, let’s just —

VOLKER: Correct, correct — yes, right.

[snip]

VOLKER: I do remember having seen some of the testimony of Mr. Kent, a conversation in which he had asked me about the conspiracy theories that were out there in Ukraine. I don’t remember what the date of this conversation was.

And my view was, well, if there are things like that, then why not investigate them? I don’t believe that there’s anything to them. If there is — 2016 election interference is what I was thinking of — we would want to know about that. But I didn’t really there was — believe there was anything there to begin with.

It was a thin story, but necessary to explain why Volker did something he knew to be utterly corrupt, and then got caught doing it. While not explicitly, he was endorsing the possibility that Ukraine might have had a corrupt role in 2016.

All that said, Bolton’s certainty that Trump was also asking for Ukraine to provide the US with information on 2016 raises the import of this detail: Bolton claims (and DOJ has been releasing conflicting comments since yesterday) that he warned Bill Barr about this shadow Ukraine policy in July.

Mr. Bolton also said that after the president’s July phone call with the president of Ukraine, he raised with Attorney General William P. Barr his concerns about Mr. Giuliani, who was pursuing a shadow Ukraine policy encouraged by the president, and told Mr. Barr that the president had mentioned him on the call. A spokeswoman for Mr. Barr denied that he learned of the call from Mr. Bolton; the Justice Department has said he learned about it only in mid-August.

After releasing an initial denial yesterday, today DOJ has issued a non-denial confirmation.

A Justice Department official familiar with the matter said Mr. Bolton did call Mr. Barr to express concerns about Mr. Giuliani and his shadow foreign policy in Ukraine. It wasn’t clear what, if anything, the attorney general did with that information.

Department spokeswoman Kerri Kupec denied that Mr. Barr learned of the Ukraine call from Mr. Bolton. The department has repeatedly said he learned about it in mid-August.

We don’t know for sure, but the difference in timeline may be utterly critical to Barr’s implication in this conspiracy. For starters, Bolton’s warning to Barr undoubtedly came before Barr stopped into a meeting in September with Rudy Giuliani about the Venezuelan who happened to be funding some of the Ukrainian grift. Bolton’s warning may make DOJ’s efforts to bracket off the Parnas and Fruman investigation, which Barr undoubtedly knew about, from the whistleblower complaint far more suspect.

Most importantly, we don’t know when multiple Ukrainians offered John Durham dirt (much less who they are). But if happened between Bolton’s warning in July and when Barr has previously claimed to have learned that Trump told Zelensky that he, Bill Barr, would happily receive the dirt he was extorting, it would make Durham’s acceptance of that dirt part of the conspiracy itself. That is, it would make Barr’s efforts to use DOJ to investigate Trump’s opponents a key part of both a conspiracy being investigated in SDNY, from which Barr has irresponsibly not recused, as well as an impeachment investigation, from which Barr has also not recused.

Bolton’s certainty that Trump wanted Ukraine to provide materials for a US investigation into Trump’s foes is not at all new. But the fact that Barr should have known he was part of this conspiracy a month earlier than he had previously admitted is.

Lev Parnas Wouldn’t Reveal Whether He Has Receipts on Bill Barr

I suggested in this post that Lev Parnas appears to believe that how and when he was arrested was an attempt to silence him and force him to take the fall for Trump.

With that in mind, I want to reexamine why he might believe that coming forward now might help his defense.

Obviously, one thing he is trying to do — thus far unsuccessfully — is make it clear that in his actions regarding Ukraine, he is a co-conspirator with the President, Victoria Toensing, Joe DiGenova, and, of course, Rudy Giuliani. That doesn’t mean he didn’t insert himself into that role — by all appearances he did; that’s what his existing indictment is about, how he spent big money to insinuate himself into Trump’s immediate circle.

But since that time, Rudy, Toensing, and DiGenova took actions that might be deemed an overt act of a conspiracy. So did Trump, not least on July 25, 2019, on a call with President Zelensky. Implicating powerful Americans in his influence-peddling is particularly important because, if he can’t do that, he may be exposed to further charges. WSJ reports that, late last year, Parnas’ lawyer Joseph Bondy tried to convince prosecutors that Parnas did not “push[] for the removal of the U.S. ambassador to Ukraine at the behest of a Ukrainian official—one of the charges in the campaign finance indictment.” If Parnas can claim that anything he did after some point in 2018 — which otherwise might be deemed to be FARA violations, suborning perjury, Foreign Corrupt Practices Act violations, bribery, and more — he did with the approval of the President of the United States, he might be able to claim that those actions were the official foreign policy of the United States, which would basically be the same claim Trump is using to defend against impeachment.

None of that may matter, however, depending on what SDNY plans or is allowed to do.

After all, Barr had been briefed on this investigation since shortly after he was confirmed, probably indicating that SDNY deemed it a significant matter reflecting the sensitivities of an investigation into political figures including Pete Sessions, some Las Vegas politicians, Ron DeSantis, and the President’s SuperPAC. As such, Barr would receive advance notice before SDNY took steps against any of these political figures (and it would have to happen before pre-election blackouts kick in in August). The Criminal Division would need to approve any search or prosecution of an attorney, covering Rudy, Toensing, and DiGenova. Barr would have to approve any legal process targeting media figures like John Solomon or Sean Hannity, as he would have to approve their treatment as subjects of the investigation. And, just on Monday, Barr stated he will require Attorney General approval before DOJ or FBI can open a counterintelligence investigation into a presidential campaign (and Trump started his reelection campaign almost immediately upon inauguration).

In short, for SDNY to go after any of Parnas’ other known potential co-conspirators, aside from Fruman, Bill Barr or Criminal Division head Brian Benczkowski would have to approve.

That gives Barr veto power over including most of Parnas’ potential co-conspirators in an indictment with him. And he has made no secret that he was brought in to protect Trump from facing any legal consequences for his crimes.

For a time, it looked like Barr believed he couldn’t protect Rudy. But then Rudy loudly announced he had insurance.

“I’ve seen things written like he’s going to throw me under the bus,” Giuliani said in an interview with Fox News’ Ed Henry about the characterizations and comments made in the media about him and his relationship with the president. “When they say that, I say he isn’t, but I have insurance.”

And if Rudy’s actions are beyond legal sanction, then Parnas is left holding the bag, just like Michael Cohen appears to have been for hush payments he made on the orders of Trump. Indeed, while Parnas expressed some interest in cooperating with prosecutors, if prosecutors are barred from pursuing anyone more senior than Parnas, then there’s little for Parnas to offer.

Which brings us to Parnas’ expressed fear of Barr.

In the second installment of his Maddow interview, Parnas claimed he was doing all of this because he fears Barr — or deems Trump too powerful when he is protected by Barr.

PARNAS: The only reason – if you’ll take a look, and you know very well because you have been following, the difference between why Trump is so powerful now, and he wasn’t as powerful in ’16 and ’17 –

MADDOW: Uh-huh.

PARNAS: – he became that powerful when he got William Barr.

MADDOW: Yes.

PARNAS: People are scared. Am I scared? Yes, and because I think I`m more scared of our own Justice Department than of these criminals right now, because, you know, the scariest part is getting locked in some room and being treated as an animal when you did nothing wrong and – or when you’re not, you know, and that’s the tool they’re using.

I mean, just – because they’re trying (ph) to scare me into not talking and with God’s help, and with my lawyer next to me that I know will go bat for me no matter what, with the truth –

MADDOW: Yes.

PARNAS: – and I’m taking a chance.

That comment makes sense whether he believes Barr had him arrested to silence him or even just worries that Barr will protect everyone else. It would even make sense if — as is quite possible — Parnas is working for powerful Russians or Ukrainians who’ve been trying to control Trump by making him vulnerable.

There’s no doubt that abundant evidence can be shown that Barr is not just covering up, but actively obstructing any investigation into Trump’s actions. As I’ve noted repeatedly, Barr or one of his subordinates:

  • Scoped the assessment of the whistleblower complaint to ensure it wasn’t tied to the ongoing investigation of Parnas and Fruman in SDNY
  • Failed to share the whistleblower complaint with the FEC, which (if it were functional) could have imposed civil penalties for the illegal solicitation of campaign help
  • Had OLC invent a bullshit reason to withhold the complaint from Congress
  • Had Kerri Kupec exonerate Trump publicly, reportedly in response to a demand from Trump

Mind you, I’m the only one harping on this obstruction, but they’re still details that deserve more attention.

But that’s not how Parnas is focusing on Barr.

In his interview with Maddow, Parnas twice alleged that he had seen Barr receiving calls from Rudy and others on this stuff. First, he said that Rudy and Toensing and DiGenova had told him they were engaging Barr on this project.

MADDOW:  Did Rudy Giuliani tell you he had spoken to the attorney general specifically about Ukraine?

PARNAS:  Not only Rudy Giuliani. I mean, Victoria and Joe, they were all best friends. I mean, Barr was – Attorney General Barr was basically on the team.

He then expanded on that to say, first, that he witnessed conversations between the lawyers and Barr, and then, less convincingly, claimed that “Barr had to have known everything. I mean, it’s impossible.”

PARNAS:  I personally did not speak to him, but I was involved in lots of conversations that Joe diGenova had with him in front of me, Rudy had with him in front of me, and setting up meetings with Dmytro Firtash’s team. I was involved in that.

MADDOW:  Do you know if Rudy Giuliani was ever in contact with Mr. Barr, specifically about the fact that he was trying to get Ukraine to announce these investigations into Joe Biden?

PARNAS:  Oh, absolutely.

MADDOW:  Mr. Barr knew about it?

PARNAS:  Mr. Barr had to have known everything. I mean, it’s impossible.

MADDOW:  Did Rudy Giuliani tell you he had spoken to the attorney general specifically about Ukraine?

PARNAS:  Not only Rudy Giuliani. I mean, Victoria and Joe, they were all best friends. I mean, Barr – Barr was – Attorney General Barr was basically on the team.

Claiming “Barr had to have known everything,” while seemingly consistent with the public actions of Barr’s DOJ, is not going to be strong enough to get Barr, personally, in trouble.

Though it is worth noting that (in the same way that Devin Nunes unforgot speaking to Parnas as Parnas started rolling out receipts), CNN reported that Barr had attended a meeting where Rudy pitched the case of the Venezuelan paying for the grift long after he had to have known Rudy was under criminal investigation.

The Giuliani meeting at the Justice Department in September became public months ago in the wake of the arrest of two Giuliani associates, Lev Parnas and Igor Fruman, who were working on Giuliani’s Ukraine mission for the President.

Brian Benczkowski, assistant attorney general for the criminal division, issued a public statement at the time expressing regret for holding the meeting and saying he wouldn’t have met with Trump’s personal lawyer had he known about Giuliani’s role in the ongoing investigation.

But department officials didn’t mention then that Barr was also in the meeting. Barr was at the meeting for about 10 minutes and had dropped in to greet other lawyers who worked alongside Giuliani to represent the Venezuelan businessman, according to a Justice Department official. His presence is also notable because Justice officials have said he was briefed after taking office in February on the investigation by Manhattan federal prosecutors into Parnas and Fruman, and the connections with Giuliani.

There’s almost certain to be more, though. When Maddow asked Parnas whether he knew whether Barr ever spoke with any of the Ukrainians that Parnas was grifting (the question I’ve been asking for some time), he claimed not to recall, even though the entire point of his interview was to talk about how he had come forward out of fear of Bill Barr.

MADDOW:  Do you know if Attorney General William Barr every [sic] spoke with any Ukrainian officials?

PARNAS:  I don’t recall at this moment. I’d have to look at my text messages and see.

There is absolutely no way that Parnas did not know, when he gave this answer, whether he has proof that Barr was personally involved with the three Ukrainians who have spoken to John Durham. None.

Which likely means Parnas does have proof that, contrary to every denial DOJ has issued since they started issuing very carefully crafted denials since September 25, Barr did interact with the corrupt Ukrainians Rudy was teeing up.

Parnas kept receipts, for just the moment when his grifting on behalf of Trump and his associates can do damage. Those receipts might, conservatively, make additional charges from SDNY more difficult. They might even make a cooperation deal possible.

But it sure sounds like something even crazier. Parnas apparently believes Barr makes Trump something he hadn’t been before, protecting Trump in a way he hadn’t been. But that’s only true if Parnas can’t produce proof that Barr is part of this conspiracy.

In other words, whatever the reality, Parnas appears to be dribbling out the receipts implicating the people that SDNY prosecutors work for in an attempt to either increase the chances of cooperating out of his indictment or at least raising the costs of any further charges.

Perhaps a more interesting question is why SDNY prosecutors permitted Parnas to launch this media campaign. They didn’t have to: Parnas got permission to modify the protective order on this stuff so he could release it, and they may have had to question Robert Hyde earlier than they otherwise intended to because of the publicity surrounding Parnas’ texts with Hyde. SDNY might be doing it to encourage a criminal target to run his mouth and say something incriminating. They might have done it for counterintelligence reasons, to see who responded to this media campaign. But it’s also possible that SDNY is happy for Parnas to expand the possible scope of their own investigation by making it harder for Barr to protect Rudy and others.

The suspense, though, has to do with that non-committal answer Parnas gave about whether he has any texts directly implicating the Attorney General of the United States. A defendant being prosecuted by the Department of Justice was asked whether he had proof that the top law enforcement officer in the country was personally implicated in his corrupt influence peddling.

And Parnas is not telling. Yet.

As Accused Co-Conpirators, Donald Trump and Lev Parnas Should Be Treated with Same Skepticism

WaPo has a long profile of Lev Parnas that adopts the same approach with the accused influence-peddler that virtually the entire press corps does: raising cautions about his veracity because Parnas is has been indicted in a serious crime, with more charges promised.

Some of his most explosive claims that Trump, Vice President Pence and Attorney General William P. Barr knew of his activities remain unsubstantiated and disputed. The president’s allies say his assertions are not credible, noting the serious criminal charges he faces.

“These allegations are being made by a man who is currently out on bail for federal crimes and is desperate to reduce his exposure to prison,” White House press secretary Stephanie ­Grisham said this past week.

[snip]

And some Democrats have counseled caution in the face of his allegations, noting that he is accused of serious felonies.

“Parnas is someone whose evidence, whose testimony should be questioned, challenged, like any other witness,” Sen. Edward J. Markey (D-Mass.) told CNN, adding, “but he should be a witness.”

Prosecutors have hinted in court that more of Parnas’s activities have not come to light yet. This past month, they revealed that he received a mysterious $1 million loan in September from a lawyer for Dmytro Firtash, a Ukrainian gas tycoon facing bribery charges in the United States. In court, Bondy said the loan was made to Parnas’s wife and had been intended to help the couple buy a home. He said that Firtash had cut all ties to Parnas after it started to become clear Parnas intended to assist the impeachment probe. He and Parnas have declined to comment further.

The profile mentions Trump’s impeachment in the third paragraph, and describes the way Parnas’ media blitz undermines Trump’s defenses. But it treats Trump’s defenses, having been accused of high crimes and misdemeanors, as presumptively trustworthy.

The House of Representatives formally voted to send the Senate charges that Trump abused his office by pressuring Ukraine to help his reelection bid.

[snip]

Still, the blizzard of new details in the documents Parnas had turned over raised a host of questions about Trump’s efforts in Ukraine — ratcheting up the pressure on Senate Republicans to allow witnessesto be called during the coming trial.

[snip]

The materials sharply undercut the notion pushed by the president’s supporters that the activities in Ukraine were about U.S. anti-corruption policy — rather than defeating Biden.

The profile doesn’t make two things clear. First, Trump is an accused defendant every bit as much as Lev Parnas is, with the same incentive to lie. More importantly, from the very beginning of this impeachment process, Parnas has been described as a co-conspirator of Trump’s in his crimes.

The whistleblower complaint that first accused Trump of multiple crimes invokes Parnas and Igor Fruman at least four times. After describing Rudy’s trip to Madrid to meet with Andriy Yermak in the wake of the Trump-Zelensky phone call, the complaint notes that Rudy has reached out to other Zelensky advisors through the grifters.

Separately, multiple U.S. officials told me that Mr. Giuliani had reportedly privately reached out to a variety of other Zelenskyy advisers, including Chief of Staff Andriy Bohdan and Acting Chairman of the Security Service of Ukraine Ivan Bakanov.4

4 In a report published by the Organized Crime and Corruption Reporting Project (OCCRP) on 22 July, two associates of Mr. Giuliani reportedly traveled to Kyiv in May 2019 and met with Mr. Bakanov and another close Zelenskyy adviser, Mr. Serhiy Shefir.

Then, when raising Yuriy Lutsenko’s confessed efforts to invent dirt targeting Marie Yovanovitch, the whistleblower raises Rudy’s public claims that John Durham was meeting with Ukrainians for his Bill Barr-led probe.

Mr. Lutsenko also stated that he wished to communicate directly with Attorney General Barr on these matters.9

9 In May, Attorney General Barr announced he was initiating a probe into the “origins” of the Russia investigation. According to the above-referenced OCCRP report (22 July), two associates of Mr. Giuliani claimed to be working with Ukrainian officials to uncover information that would become part of this inquiry. In an interview with Fox News on 8 August, Mr. Giuliani claimed that Mr. John Durham, whom Attorney General Barr designated to lead this probe, was “spending a lot of time in Europe” because he was “investigating Ukraine.” I do not know the extent to which, if at all, Mr. Giuliani is directly coordinating his efforts on Ukraine with Attorney General Barr or Mr. Durham.

The complaint provides further details laying out Rudy’s meetings with Lutsenko.

It was also publicly reported that Mr. Giuliani had met on at least two occasions with Mr. Lutsenko: once in New York in late January and again in Warsaw in mid-February. In addition, it was publicly reported that Mr. Giuliani had spoken in late 2018 to former Prosecutor General Shokin, in a Skype call arranged by two associates of Mr. Giuliani.10

10 See, for example, the above-referenced articles in Bloomberg (16 May) and OCCRP (22 July).

The complaint then moves on to describe Rudy’s outreach to Zelensky after the election, suggesting that Parnas and Fruman may have been the people he heard were leading that effort.

Around the same time, I also learned from a U.S. official that “associates” of Mr. Giuliani were trying to make contact with the incoming Zelenskyy team.11

11 I do not know whether these associates of Mr. Giuliani were the same individuals named in the 22 July report by OCCRP, referenced above.

In other words, Parnas’ efforts to reach out to Lutsenko and other corrupt prosecutors and then his role pressuring Zelensky to announce a Biden investigation has always been part of the necessary context in which to understand Trump’s comments on that phone call as the crime it is.

And while Trump has denied knowing Parnas (in the same way he denied knowing George Papadopoulos), his lawyers have not denied that he was working on Trump’s behalf.

The House Intelligence Committee already has legal proof of that — in John Dowd’s October 3 letter asserting that Parnas and Fruman’s work for Rudy was in connection with Rudy’s representation of Trump.

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

Parnas has since presented further proof of that, in the email focusing on the import of ensuring Parnas and Fruman could not cooperate with Congress that preceded by hours the release of a Trump-penned letter accusing the entire impeachment proceeding of impropriety. He even provided proof that Trump knew of a perceived conflict involving John Dowd’s representation of Parnas and waived it.

Moreover, Parnas has provided text messages and other evidence more than substantiating the Ukraine outreached raised by the whistleblower, both with those named by him and those alluded to:

  • Yuri Lutsenko
  • Ivan Bakanov
  • Serhiy Shefir
  • Arsen Avakov
  • Andriy Yermak
  • Igor Kolomoisky

Trump and Parnas are both defending themselves against serious allegations of criminal wrong-doing.

But just one of them has released evidence to substantiate their defense. And the press ought to take that into account when deciding who is more credible.

 

Beware the Deep State Bearing Granola Bars: George Papadopoulos’ 302s

The government released another bunch of 302s in response to BuzzFeed’s FOIA last night. They include a bunch (but not all, and not the most important) of the reports from George Papadopoulos. This post will lay out what they show.

As background, however, remember what FBI knew about some of his interactions with Joseph Mifsud before interviewing Papadopoulos.

Interactions with informants

First, there was the tip FBI received from Australia on July 27, 2016, after the release of the WikiLeaks emails made it seem like Papadopoulos had had advance knowledge they would be released. As laid out in the DOJ IG Report, after telling Alexander Downer and Erica Thompson that,

he felt confident Mr. Trump would win the election, and … the Clintons had a lot of baggage and that the Trump team had plenty of material to use in its campaign.

Papadopoulos then,

suggested the Trump team had received some kind of suggestion from Russia that it could assist this process with the anonymous release of information during the campaign that would be damaging to Mrs. Clinton (and President Obama). It was unclear whether he or the Russians were referring to material acquired publicly of [sic] through other means. It was also unclear how Mr. Trump’s team reacted to the offer. We note the Trump team’s reaction could, in the end, have little bearing of what Russia decides to do, with or without Mr. Trump’s cooperation.

In at least one (late October 2016) interview with the informant identified as “Source 3” in the IG Report, Papadopoulos had laid out the outlines of his conversations with Mifsud in direct connection with the possibility he might meet Putin.

In the second consensually monitored conversation, at the end of October 2016, Papadopoulos told Source 3 that Papadopoulos had been “on the front page of Russia’s biggest newspaper” for an interview he had given 2 to 3 weeks earlier. Papadopoulos said that he was asked “[w]hat’s Mr. Trump going to do about Russia if he wins, what are your thoughts on ISIS, what are your thoughts on this?” and stated that he did not “understand why the U.S. has such a problem with Russia.” Papadopoulos also said that he thinks Putin “exudes power, confidence.” When Source 3 asked Papadopoulos if he had ever met Putin, Papadopoulos said that he was invited “to go and thank God I didn’t go though.” Papadopoulos said that it was a “weird story” from when he “was working at … this law firm in London” that involved a guy who was “well connected to the Russian government.” Papadopoulos also said that he was introduced to “Putin’s niece” and the Russian  Ambassador in London. 472 Papadopoulos did not elaborate on the story, but he added that he needed to figure out

how I’m going monetize it, but I have to be an idiot not to monetize it, get it? Even if [Trump] loses. If anything, I feel like if he loses probably could be better for my personal business because if he wins I’m going to be in some bureaucracy I can’t do jack … , you know?

That said, with both Stefan Halper and this source, Papadopoulos had denied that the campaign had any foreknowledge of the WikiLeaks releases, likening optimizing them (in the way that Roger Stone did) to treason. Papadopoulos had told Source 3 that he gave that story to Halper, in part, because he thought Halper might tell CIA what he had said, so he was already crafting a story to tell authorities.

The FBI also knew Papadopoulos was spending a lot of time with Sergei Millian, whom they also had under a counterintelligence investigation.

January 27, 2017

The government didn’t release the substantive 302 from Papadopoulos’ first interview, there’s just the 302 recounting what happened on the way to the FBI and that Papadopoulos sent the FBI agent two emails after the interview. There are 12 pages withheld for a referral right before that 302 — which makes me wonder whether they’ve referred Papadopoulos’ original 302 to John Durham (which would be really corrupt, because there’s nothing classified in there, and hiding would make it harder to assess the legitimacy of the Durham investigation). The 302 that got released does make it clear the FBI told Papadopoulos, “the nature of the interview was to discuss a contact of his, who currently resides in New York,” meaning Millian, who had just been reported as a source for Christopher Steele. That is consistent with what Papadopoulos has said about the interview; he has complained he accepted the interview thinking it would only be about Millian.

Excerpts of this interview described in the government’s sentencing memo make it clear that Papadopoulos only raised Mifsud after pressed by agents.

the defendant identified the Professor only after being prompted by a series of specific questions about when the defendant first learned about Russia’s disclosure of information related to the campaign and whether the defendant had ever “received any information or anything like that from a [] Russian government official.” In response, while denying he received any information from a Russian government official, the defendant identified the Professor by name – while also falsely claiming he interacted with the Professor “before I was with Trump though.” Over the next several minutes in the interview, the defendant repeatedly and falsely claimed that his interactions with the Professor occurred before he was working for the Trump campaign, and he did not mention his discussion with the Professor about the Russians possessing “dirt” on Clinton. That fact only came up after additional specific questioning from the agents. The agents asked the defendant: “going back to the WikiLeaks and maybe the Russian hacking and all that, were you ever made aware that the Russians had intent to disclose information [] ahead of time? So before it became public? Did anyone ever tell you that the Russian government plans to release some information[,] like tell the Trump team ahead of time[,] that that was going to happen?” The defendant responded, “No.” The agents then skeptically asked, “No?” The defendant responded: “No, not on, no not the Trump [campaign], but I will tell you something and – and this is . . . actually very good that we’re, that you just brought this up because I wasn’t working with Trump at the time[.] I was working in London . . . with that guy [the Professor].” Only then, after acknowledging that the agents had “brought this up” and lying about when he received the information, did the defendant admit that the Professor had told him “the Russians had emails of Clinton.”

February 1, 2017

On February 1, the FBI agent called Papadopoulos directly to set up a meeting at George’s Ice Cream & Sweets shop for another interview (the call was recorded in a 302).

The substantive 302 makes it clear that, in the previous one, Papadopoulos had agreed to help the FBI, because he “stated that he wished to hear more about how he could potentially help the FBI.” The agent explained that he wanted Papadopoulos’ cooperation “specifically in an attempt to obtain further information about his London-based contact, JOSEPH MIFSUD.” Papadopoulos revealed what he had learned from Googling Mifsud subsequent to his first interview. He revealed that Mifsud was “an associate of a Russian discussion club of some sort” — a reference to the Valdai Discussion Club, which Mifsud had attended between the time he first met Papadopoulos and started cultivating him in London.

It’s clear that Papadopoulos had provided more information about Olga Polonskaya (possibly her email), because the agent asked about her, and Papadopoulos explained he was first introduced as one of Mifsud’s students (which was true), but then Nagi Idris told him she was Putin’s niece.

The agent also asked Papadopoulos whether he had ever met the Russian Ambassador, which he had told Source 3 he had the previous October. Papadopoulos said he had not met any Russian government officials, the meeting with the Ambassador never happened.

The agent asked Papadopoulos (who, remember, said he learned about the emails before he joined the campaign) if he had told the campaign about the emails. He responded by saying he had raised Mifsud’s name, though appears to have dodged whether he raised the emails.

Papadopoulos told the FBI that Mifsud had recently reached out and would be in DC in February, and also offered to go meet with him in the UK.

Papadopoulos was asked about Millian; his responses appear defensive, affirmatively raising both whether Millian knew about the emails and his role in the dossier.

The agent then told Papadopoulos he may have been recruited and asked if there was anyone else who might be doing so.

The agent then asked Papadopoulos if he still wanted the FBI to analyze his phone for malware; Papadopoulos said he had replaced it, but would still like to have the FBI analyze his old phone (nothing in the record suggests that happened, and the statement of the offense reveals he got a new phone on February 23, so it’s possible he just decided he didn’t want to hand over the phone and afterwards got a new one).

Papadopoulos said he wanted to speak to an attorney before committing to help the FBI, said he did not yet have one, but would be getting one the following day.

Note: From this interview, I can understand why Republicans think Papadopoulos got a bad deal, because he clearly kept saying he wanted to cooperate.

February 2, 2017

As he said he would do, the agent tried to call Papadopoulos the next day, only to find his voicemail box was full. Instead, he texted Papadopoulos. Papadopoulos said he had discussed the matter with a lawyer and had been advised not to engage any longer.

I truly feel proud that was able to do my part to assist with everything I know but as you saw yesterday there was nothing else to add and we had a nice coffee but nothing of substance.

[snip]

You guys are professionals and am sure you can deal with that person if he truly is a threat. Can’t help anymore than I have. If there is something directly related to me then that’s another matter.

The agent said he had one more thing to clear up, asked to talk to Papadopoulos, they agreed to meet at 6:30 PM, then Papadopoulos called back and said he had spoken with an attorney who told him not to go, but offered to meet Monday in the Chicago Field Office.

In spite of repeated questioning, Papadopoulos did not offer up the name of the attorney he had consulted (nor did they meet the following Monday, which would have been February 6). That’s significant, because in his Congressional testimony, Papadopoulos revealed that he had called Marc Kasowitz — at a time when he was representing Trump — and asked him if he wanted to represent him (meaning, this happened before he had an attorney).

Q And you didn’t talk to anyone from the Trump organization about that interview with the FBI?

A I don’t think I did, no. Q So you were interviewed again by the FBI — A I can’t remember if I reached out to Marc Kasowitz about either that or my subpoena from the Senate. And I emailed him and I said, Look, would you be interested in representing me? I think that’s what happened. But I don’t — I can’t remember exactly why I emailed him, but I think I emailed Marc Kasowitz’ firm sometimes after the interview, but I don’t remember if he ever responded or anything like that.

[snip]

Q Right, right, right. So when you sent this email, would it have been after the first FBI interview, but before the second one, or –

A I think it would be after I was done with my initial contacts with the FBI.

It’s certainly possible that Papadopoulos just consulted a friend who was an attorney (who wisely told him to stop meeting with the FBI without representation). But it is possible that the President’s then-defense attorney told him to stop meeting with the FBI.

February 10, 2017

The date of interview recorded on the second 302 is February 10, 2017. But both Papadopoulos’ arrest affidavit and his statement of offense say the interview happened on February 16. That’s actually a fairly significant discrepancy because, per the Mueller Report, the FBI interviewed Mifsud on February 10, and one argument they made to substantiate that his lies were material were that those lies prevented them from pinning down Mifsud on his lies. It appears the February 10 date is correct, but that FBI treated a call (also with his counsel) on February 16, as the interview in question.

In any case, this is Papadopoulos’ first interview represented by counsel. The government has said that Papadopoulos repeated the same lies he told on January 27, and it’s clear he did. He said Mifsud wanted to impress him because he “had recently come off his advisory position for the BEN CARSON campaign.” Papadopoulos misrepresented how he got hired by Sam Clovis, suggesting there was a time between when they spoke and his hiring, when it happened on the same call; in the interview Papadopoulos said happened in person in London, though it happened by phone. Papadopoulos describes the emails coming up during a discussion about Hillary’s campaign, not Trump’s. He left out that Mifsud said the Russians planned to anonymous leak the emails. Papadopoulos twice falsely said he hadn’t told any foreign government officials that Russia planned to disclose information (in addition to Australia, he told a Greek official).

This 302 seems to reflect the FBI agents cueing Papadopoulos to tell them about telling someone at a nightclub about emails, which he said he had not; it makes me wonder if he said that to Source 3 in one of their interviews after the election (which, if so, would make the IG Report’s silence on the topic really suspect), or whether — as many people suspect — he said that to Erica Thompson at a dinner party, then repeated it again to her and Downer when they had drinks.

February 16, 2017

On February 16, the Assistant General Counsel for FBI’s Cyber Law Branch called and set up a phone interview to try to clarify the timing of the conversation with Mifsud, explaining that resolving some inconsistencies in his story was time sensitive. The 302 is heavily redacted, but it’s clear that Papadopoulos refused to be pinned down on timing — it even seems like FBI had figured out that it had occurred at his breakfast meeting with Mifsud, but Papadopoulos couldn’t recall whether it had happened then.

Papadopoulos then dug in on a story that tried to claim these emails couldn’t be the ones stolen from the DNC, first reiterating that “he did not believe MIFSUD’s claims that the Russians had HILLARY CLINTON’s e-mails” (a claim utterly inconsistent with having told others about it), and then suggesting that the emails might be Hillary’s deleted emails.  This passage — and its heavy redaction — is particularly interesting, because it appears to be the first time Papadopoulos told this story, and it’s the story he has since settled on, but it appears that he only told it after the FBI asked him about the comments three times.

This interview appears to be the first time the FBI asked Papadopoulos not to speak to the media, which he agreed to do.

July 27, 2017

The next interview report documents his arrest at Dulles on July 27, 2017. While this was not an interview — indeed, arresting agents had to tell Papadopoulos several times to shut up because he didn’t have his attorney present — Papadopoulos did offer up some lame excuses that seem to indicate he knew he hadn’t told the full truth:

[H]e was only able to provide the information that he remembered, PAPADOPOULOS then stated that if he had forgotten something, that doesn’t necessarily mean he’s lying.

[snip]

[Papadopoulos] then added that he was only twenty-eight years old when he was thrust into the national spotlight with all this.

[snip]

PAPADOPOULOS stated that he didn’t understand why he was in the current situation that he was, when both FLYNN and MANAFORT are not.

[snip]

At one point while PAPADOPOULOS was waiting in the booking room he expressed concern with the fact that he was just a small fish and yet he was going to look like the fall guy for this investigation.

Papadopoulos appears to have asked to call a second attorney, in addition to his own, who by the length of last name could be Jay Sekulow, which would be consistent with him having reached out to Kasowitz earlier in this process.

Papadopoulos also repeatedly said he had told the whole story in a statement to the Senate Intelligence Committee, which is interesting given that this would have taken place when Jared Kushner and Michael Cohen were writing statements for Committee testimony as a way to script and coordinate stories. That would make it all the more interesting if Papadopoulos did mention Sekulow, because Sekulow was the one coordinating all these statements.

After he turned into a MAGA star, Papadopoulos would suggest the FBI bullied him during his arrest. According to the 302, he thanked them for their kindness.

At approximately 10:40 PM PAPADOPOULOS was provided with coffee and water and PAPADOPOULOS thanked the agents for treating him very well.

July 28, 2017

The day after he was arrested, Papadopoulos needed help getting home because he had had his passports confiscated and had not replaced his driver’s license after he had recently lost his wallet, so the agents drove him to the airport and made sure he could get on a plane.

Agents then provided PAPADOPOULOS with his attorney’s telephone number and a granola bar for his travel back to Chicago.

August 10, 2017

In his first interview after being charged, Papadopoulos told a very clear story of the chronology of working for Carson, then interviewing with Clovis and being hired that same call, then traveling to Rome where he met Mifsud, all details he had claimed to not remember previously. He explained how Olga offered to connect him with people in Russia. He described both Trump and Jeff Sessions responding to his offer to try to set up a meeting with Putin enthusiastically. He described Mifsud introducing him to Ivan Timofeev, something he had not disclosed previously (but which would have been apparent once FBI accessed his Facebook account). Papadopoulos still claimed, at this point, not to have told anyone about the Russians having dirt on Hillary.

August 11, 2017

Though heavily redacted, this 302 appears to parallel the August 10 one, getting the timeline of meeting Mifsud correct, describing Trump and Sessions’ enthusiasm for a Putin meeting,

It describes Papadopoulos remembering, then backing off a memory of discussing the emails with Clovis.

PAPADOPOULOS stated to the best of his recollection he remembered CLOVIS being upset after PAPADOPOULOS said, “Sam, I think they have her emails.” PAPADOPOULOS then reiterated he was not certain if that event actually happened or if he was wrongfully remembering an event which did not occur.

September 19, 2017

This interview, his most substantive, is almost entirely redacted. From what’s unredacted, it’s clear Papadopoulos was withholding information until shown the evidence of something via communication records. For example, he admitted to an April 12 meeting that did not appear elsewhere. He was prodded to describe a Skype conversation with Timofeev. Papadopoulos needed to be “specifically asked,” before he admitted he told the Greek Foreign Minister about Russia having dirt on Hillary Clinton, too.

This interview included questions about the Transatlantic Group that he attended with Walid Phares and Sam Clovis, during which Papadopoulos discussed a September 2016 meeting with Putin’s office in London. Papadopoulos refused to walk the FBI through his notes on this planned meeting.

PAPADOPOULOS then stated he could not read his own handwriting and, therefore he could not assist the interviewers with further identifying what his notes referenced.

September 20, 2017

Papadopoulos had one more interview during the pre-plea period, which was memorialized in a 4-page 302. But that was not included in yesterday’s dump. That interview covered:

  • How the campaign supported his efforts to set up a meeting with Putin.
  • Details about how he used his journal.
  • What he told others on the campaign about the Hillary dirt, possibly including the Sam Clovis reference.
  • What an email Sergei Millian sent him on August 23, 2016, offering a disruptive technology that might help his political work, meant.

October 5, 31, 2017

Papadopolous pled guilty on October 5, 2017. A 302 describes how Papadopoulos got the card of the FBI agent to talk to him about a problem he had had with his email account. The next day Papadopoulos explained what the problem was, and the agent told him to change his password and make sure forwarding was not on.

On October 28, the agent asked Papadopoulos whether the media or anyone from the Trump campaign had tried to contact him. Papadopoulos said neither had, and agreed to let the FBI know if that happened. After news of his plea broke on October 31, the FBI agent contacted Papadopoulos again, to find out whether he made any contact. Papadopoulos said he didn’t think the media has his phone number.

November 7, 2017

The agent called Papadopoulos to ask about media reports on people in the campaign that conflicted with his own testimony. Papadopoulos explained he had seenreports that Sessions had shut down his efforts to arrange a Trump Putin meeting. Papadopoulos said he “would stick to his original story,” (which is what he did earlier than year on telling anyone about emails). Papadopoulos said he wouldn’t have continued his efforts if Sessions hadn’t approved.

Papadopoulos disputed Bannon’s claims never to have met with Papadopoulos. Papadopoulos “remembered specifically coordinating with BANNON when he was arranging the meeting between TRUMP and the Egyptian president.” (Bannon would distance himself from Papadopoulos in his second interview with the FBI, saying that Mike Flynn handled all this.)

Papadopoulos responded to reading the first five pages of Carter Page’s HPSCI transcript by describing a call, possibly in late March, where Page told Papadopoulos to “stop showing off,” possibly because Papadopoulos was trying to broker a Russia meeting.

December 2017

Per the sentencing memorandum, the government reached out to set up a meeting in late December, but after learning that Papadopoulos had cooperated in a NYT interview, canceled the interview.

the government arranged to meet again with the defendant to ask further questions in late December 2017. However, upon learning that the defendant had participated in a media interview with a national publication concerning his case, the government canceled that meeting.

There may or may not be a 302 pertaining to this.

American Democracy Needs Better Reporters than Pete Williams

Bill Barr made big news yesterday saying intemperate things in what has charitably been called an “interview” with NBC’s Pete Williams. Those comments have distracted from other details of the so-called interview, which deserve further attention for the way that Williams was utterly useless in guiding the interview towards any of the questions that needed to be answered. Given Barr’s assault on the rule of law, garbage interviews like this undermine the Constitution.

Williams helps Barr continue to cover up his role in the Ukraine investigation

First, consider the exchange that Williams and Barr have to exonerate the Attorney General in involvement in Rudy Giuliani’s Ukraine conspiracy.

Williams: Were you ever asked by the White House to talk to anybody in Ukraine about an investigation of Joe Biden? (18:40)

Barr: No.

Williams: Are you concerned that Ukraine has a missing server from the Hillary Clinton emails?

Barr [searching look]: Fortunately I haven’t gotten into the Ukraine thing. I don’t know. I’m not even sure about the nature of these allegations.

Williams: What about the allegation that it was the Ukrainians who meddled in the election, not the Russians. Are you satisfied that’s not the case?

Barr: I am confident the Russians attempted to interfere in the election. I don’t know about the Ukrainians. I haven’t even looked into it, frankly.

Williams: What was your involvement in the Department’s decision not to investigate the President’s phone call to Ukraine?

Barr: We put out a statement that explained the process, which was the Criminal Division made that decision and in the process consulted with the senior most career employees who are the experts on campaign finance laws and that process was supervised by the Deputy but I’m not going to go beyond what we’ve already said about that process.

Williams: Well, were you satisfied that everything that was done–

Barr: Absolutely.

I wouldn’t be surprised if Williams were using a script DOJ gave him, because Williams asks none of the questions that remain unanswered about DOJ’s role in the Ukraine investigation, such as why they didn’t do the bare minimum of connecting the dots implemented after 9/11, why the didn’t refer the complaint to the FEC, why they didn’t abide by the whistleblower protection act, why (on demand, apparently) they issued a statement exonerating the President, or who the three Ukrainians that DOJ admitted have been fed into John Durham’s investigation are.

Instead, Williams lets Barr ignore his question about his role in reviewing the whistleblower complaint and claim — as the person who knew of the Lev Parnas investigation that also knew of the whistleblower complaint — he has no role in the Ukraine thing. This exchange raises more questions about Barr’s involvement, but Williams instead allows him to claim a clean bill of health.

Williams allows Barr to pretend bypassing MLAT is normal

Perhaps the most alarming part of this so-called interview is how Williams let Barr claim that entirely bypassing the Mutual Legal Assistance Treaty (MLAT) process in requesting law enforcement assistance from other countries is normal.

[Why he went to three countries] The presentation of that in the media [laughs] has been silly. The person running the investigation is John Durham. But this is a very unusual circumstance where we are going to foreign governments where we are asking them to assist and cooperate including some of their sensitive materials and personnel. A US Attorney doesn’t show up on the doorstep of some of these countries like London and say, Hey, I want to talk to your intelligence people and so forth. All the regularities were followed. I went through the — my purpose was to introduce Durham to the appropriate people and set up a channel where he could work with these countries. At the request of these countries — I went through the Ambassadors of each country, and the governments wanted to initially talk to me to find out, what is this about, what are the ground rules, is this going to be a criminal case, are you going to do a public report. They wanted to understand the ground rules before I met with Durham and I met with them and I set up appropriate channels. This was perfectly appropriate. (14:37)

This issue goes to the core of the problem with Trump’s Ukraine conspiracy. Barr’s nervous answer suggests he knows bypassing normal process might implicate him in a criminal conspiracy.

And Williams, supposedly a DOJ beat journalist who should know better, just lets this bullshit answer sit there, unchallenged.

Williams allows Barr to lie about techniques used by the FBI

Barr’s attack on the FBI is based on a lie about how it operates. The FBI has what’s called the Domestic Investigations and Operations Guide. The entire point of it is to make sure paperwork is filed before any investigative steps are taken. Barr turns that on its head when he complains that the FBI opened an investigation before taking an investigative step.

They jump right into a full-scale investigation before they even went and talked to the foreign officials about exactly what was said the opened an investigation of the campaign

The DIOG lists what an agent can do at each of three levels of investigation — assessment, preliminary investigation, and full investigation. It permits the government to use Confidential Human Sources — the basis for most of Barr’s complaint about “spying” on the campaign — at the Assessment level (which is basically a tip).  Thus, in spite of what Barr says, the fact that FBI opened this as a full investigation (which DOJ IG found to be proper) had nothing to do with the FBI’s ability to use informants.

Suggests the investigation shouldn’t have been sustained once it got opened (0:20)

There has to be some basis before we use these very potent powers in our core First Amendment activity, and here, I thought this was very flimsy (2:18)

The Department as a rule of reason, … Is what you’re relying on sufficiently powerful to justify the techniques you’re using

What are the alternatives … When you step back and ask what was this all based on, it’s not sufficient (2:48)

they used very intrusive techniques they didn’t do what would normally be done under those circumstances, which is to go to the campaign and certainly there were people in the campaign who could be trusted including a member of the Senate Judiciary Committee and the governor of New Jersey (5:13)

Anyone covering DOJ has an obligation to point out that this is a lie, especially because Barr has never in his history leading the DOJ complained about such techniques being used with others, especially minorities, when exercising their First Amendment rights. Indeed, Barr’s DOJ currently investigates not only Muslims in mosques (which has been going on under both parties), but people protesting Trump’s immigration policies or legally representing immigrants. Barr’s DOJ used a wiretap in a garden variety leak investigation when it already knew the leaker this year. Williams has an obligation with calling Barr out for his very selective concern about the First Amendment.

But that’s not the only complaint about process. Barr keeps demanding not just that the FBI give Trump a defensive briefing (one of the subjects of the investigation, Mike Flynn, attended his first campaign briefing, and that was within days of the time Flynn inked his deal to become an undisclosed agent of Turkey), but that they just waltz to the campaign and start asking questions.

From day one they say they’re not going to talk to the campaign, they’re going to put people in there, wire them up, and have these conversations with people involved in the campaign because that way we’ll get the truth (8:44)

Barr would never let FBI approach any other investigation like this, starting by allowing the subject of the investigation to excuse their actions.

Note, one of the people Barr thought FBI should have asked — Jeff Sessions — ultimately came to be a subject of this investigation.

Barr takes this so far that he complains that John Brennan and Barack Obama tried to limit an ongoing Russian attack that was going on whether or not Trump’s flunkies were involved. 

What I find particularly inexplicable is that they talked to the Russians but not to the Presidential campaign. On August 4 Brennan braced the head of Russian intelligence, he calls the head of Russian intelligence, … they go and confront the Russians, who clear are the bad guys, and they won’t go and talk to the campaign and say what is this about (5:51)

He’s basically complaining, here, that Obama tried to keep the country safe from hostile interference in the election.

And Williams just sat there looking at his list of questions like a child.

Williams lets Barr minimize what happened in the Russian investigation

Predictably, Barr minimizes what the Russian investigation showed. He claims that what has subsequently been explained to be a suspected Russian asset with ties to both sides of the Russian operation, Joseph Mifsud, telling George Papadopoulos they were going to drop emails that later got dropped was not worthy of investigation.

In May 2016, a 28 year campaign volunteer says in a social setting … a suggestion of a suggestion that Russians had adverse information from Hillary that they might dump in the campaign (3:24)

Barr then claims there was no evidence of “collusion,” something Williams agrees with.

There never has been any evidence of collusion … completely baseless (2:57) [Well, it doesn’t turn out that way at the beginning, at the start ]

According to Mark Meadows’ definition of “collusion,” it was proven by the guilty verdict in the Roger Stone trial. Moreover, the Mueller Report makes it clear there was evidence not just of “collusion,” but also conspiracy, just not enough to charge. In this case, Williams affirmatively adds to the disinformation on this point.

Barr conflates the investigation into Carter Page and everyone else

Barr did something that the Republicans have been doing all day: conflating the investigation into Carter Page with the investigation into Trump’s other flunkies, in spite of the fact that the investigation of each individual was also individually predicated and that the investigation into Page was based off stuff going back years before he joined the Trump campaign and most of the investigative activities took place after he was fired from the campaign. In one comment, Barr literally conflates Carter Fucking Page with the President himself, and ignores that the President was only investigated after he tried to obstruct the investigation into Mike Flynn.

At that point [when FBI talked to Steele’s source], when their entire case collapsed, what did they do? They kept on investigating the President well into his administration. (10:26)

He repeats that claim a second time.

Their case collapsed after the election (13:57)

Barr not only does that, but ignores the incriminatory evidence against Page, so as to be able to claim that the investigation should never have started.

From the very first day of this investigation, which was July 31 … all the way to September 2017, there was not one bit of incriminatory evidence to come in, it was all exculpatory. The people they were taping denied any involvement with Russia, denied the very specific facts that the FBI was relying on, … the FBI ignores it, presses ahead, withholds that information from the court, withholds critical exculpatory information from the court  (9:07)

Barr made an interesting claim — that the sole reason the FBI got a FISA (including a physical search FISA, which allows them to obtain stored communications like email) was to access his comms from the campaign.

I think going through people’s emails, which they did as a result of the FISA warrant, they went through everything from Page’s life. … his emails go back. The main reason they were going for the FISA warrant initially was to go back historically and seize all his emails and texts … that’s exactly why they got the FISA (12:30)

That may be true (obviously, the FBI would have wanted to know why Page went to Moscow during the campaign), but DOJ imposed minimization procedures to limit dissemination of those materials.

The final PMPs restricted access to the information collected through FISA authority to the individuals assigned to the Crossfire Hurricane team and required the approval of a DAD or higher before any FISA-derived information could be disseminated outside the FBI. In normal circumstances, the FBI is given more latitude to disseminate FISA-derived information that appears to be foreign intelligence information or evidence of a crime. Evans told us that he believed these added restrictions were warranted here because of the possibility that the FISA collection would include sensitive political campaign related information.

Barr’s conflation of Page with the campaign as a whole and Trump himself was all a ploy, and a journalist could have noted the game Barr was playing in real time. Williams did not.

Williams lets additional Barr bullshit go unquestioned

In addition to those general problems, Barr made a number of other bullshit assertions. For example, Barr claimed the investigation into Trump was the first counterintelligence investigation into a candidate even though that’s what the Hillary email investigation was.

Greatest danger to our free system is that the incumbent use apparatus of state to spy and effect outcome, first time in history this has been done (1:14)

Later, Williams lets a renowned authoritarian to claim not just that he cares about civil liberties, but that his primary job is protecting them.

[In response to Williams’ suggestion that this authoritarian cares about civil liberties] I think our nation was turned on its head for three years based on a completely bogus narrative that was largely fanned and hyped by an irresponsible press … the Attorney General’s primary responsibility is to protect against the abuse of the law enforcement and intelligence apparatus and make sure it doesn’t play an improper role in our political life. That’s my responsibility. (18:06)

Barr poo poos the regularity of illegal foreign money coming into campaigns.

In most campaigns signs of illegal foreign money coming in (2:01)

Don’t assume campaign is acting in league with foreign powers, there has to be some basis (2:13)

This makes me, for the first time, concerned about how DOJ rolled out the Andy Khawaja indictment.

Finally, Williams asks, but doesn’t follow up on his question about whether it was appropriate for Durham to make a comment.

[After Williams mentions the grand jury] I think it was definitely appropriate because it was necessary to avoid public confusion. … Durham’s work was not being preempted, Durham was doing something different, (15:33)

Interestingly, Barr effectively confirmed Williams’ insinuation this was now a grand jury investigation, which would amount to sharing grand jury information.

I have been pointing out increasingly often that many members of the press seem uninterested in defending the parts of the Constitution that don’t directly affect press protections. The duty to uphold the rule of law is particularly important for DOJ reporters, who should know enough about how investigations work to identify when something is abnormal (as Barr’s direct involvement, generally, is, to say nothing of his international field trip).

Williams was not up to the task in this interview.

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.