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Rat-Fucker Rashomon: Guccifer 2.0 the Go-Between

Fresh off the weekend of Roger Stone’s trial, prosecutors got Rick Gates to testify, and then called former FBI Agent Michelle Taylor back on the stand. Ostensibly, they needed to call Taylor to introduce a transcript of a scene from Godfather II that Stone kept using to try to convince Randy Credico to lie to the House Intelligence Committee, something that the two sides had been debating throughout the first week of the trial.

But the first thing prosecutors did when they got their FBI witness back on the stand was to bring Guccifer 2.0 into it.

Q. When you first testified last week, do you remember testifying about the release of some emails of the Democratic National Committee by an organization called WikiLeaks on July 22nd, 2016?

A. Yes, I do.

Q. What was the name of the online persona or figure who took credit for hacking or obtaining those documents from the Democratic National Committee?

A. Guccifer 2.0.

Q. During Mr. Stone’s testimony before the House Intelligence Committee, was he asked about that persona, Guccifer 2.0, and that alleged hack?

A. Yes, he was.

MR. ZELINSKY: I would like to publish now, please, for the witness and the jury, what’s been admitted as Government’s Exhibit 1. This is page 28 of Government’s Exhibit 1.

BY MR. ZELINSKY: Q. Ms. Taylor, I want to direct your attention to the portion of — oh, and, Ms. Taylor, just to remind the jury, what is Government’s Exhibit 1?

A. This is a transcript of Mr. Stone’s testimony before HPSCI.

Q. I’ve put on the screen in front of you page 28 of the transcript. Can you read for us, please, the question and answer that I have highlighted there?

A. “MR. SWALWELL: In 2016, August of 2016, you and the American public are aware, from press reporting, that Russia is accused of hacking democratic emails, is that — “MR. STONE. Yes.”

Q. I want to direct your attention now to page 29, the next page of the same exhibit. Can you read, please, the question and answer that I’ve highlighted on page 29 of Government’s Exhibit 1, the transcript?

A. “MR. SWALWELL: It took me a while, too. “Were you aware when you wrote that article, the Breitbart one, that Guccifer 2.0 was assessed by the Intelligence Community as a cutout for the Russian intelligence services? “MR. STONE: I was aware of that claim, but I don’t subscribe to it. There’s a substantial amount of information you can find online that questions that. I realize it’s an assertion, but as I said in my statement, our intelligence agencies are often wrong.”

Q. Finally, Ms. Taylor, I would like to direct your attention to page 113, bottom of 113 to the top of 114 of the same exhibit, the transcript. First, can you read for us, please, the question that starts at the bottom of page 113 of the transcript?

A. “MR. SCHIFF: Mr. Stone, you’ve acknowledged that it’s the conclusion of the intelligence community that Guccifer 2 is a cutout of the Russian intelligence agencies.”

Q. And Mr. Stone’s response?

A. “MR. STONE: They have said that, yes.”

Mind you, Guccifer 2.0 had been mentioned earlier in the trial, as when Taylor read off HPSCI communications with Stone or Randy Credico’s texts with Stone mentioning the persona, as well as legal debates outside the presence of the jury. Prosecutors also had Taylor present two Guccifer 2.0 posts that were published on the same days as calls involving Stone, June 15 and June 30, in the latter case, a call to Trump.

Q. Can you please read for us the first two sentences of the Guccifer 2 Word Press post from June 15th, 2016?

A. Sure. “Worldwide known cyber security company CrowdStrike announced that the Democratic National Committee, DNC, servers had been hacked by sophisticated hacker groups. I’m very pleased the company appreciated my skills so highly, but, in fact, it was easy, very easy.”

[snip]

Q. Did this same author, Guccifer 2.0, post another message about the hack a few weeks later?

A. He did.

Q. I’d like to publish now, please, for the witness and the Court — and the jury, excuse me, Government’s Exhibit 150, which appears at tab 4 of your binder. What is Government’s Exhibit 150?

A. This is another Word Press post by Guccifer 2 dated June 30, 2016.

Jonathan Kravis would remind the jury how the latter post coincided with a call between Stone and Trump in his closing arguments.

And Stone’s lawyers raised the persona a few times, in their opening, in cross examination, and their close.

But this was the first time prosecutors directly addressed Stone’s claims and communications about Guccifer 2.0, as opposed to with Trump or — via a never identified go-between — with WikiLeaks.

In the prosecution prior to this point, as in most of these Roger Stone stories, the WikiLeaks story was kept remarkably distinct from the Guccifer 2.0 story.

Of the four stories told about Roger Stone, two adopt a structure that treat Stone’s communication with Guccifer 2.0 and WikiLeaks in parallel: there are a handful of communications between him and Guccifer 2.0 (pages 194 to 196 of the SSCI Report, one paragraph on page 44 of the Mueller Report), and a separate discussion of Stone’s attempts to optimize the WikiLeaks releases (pages 221 to 252 of the SSCI Report, pages 51 to 59 of the Mueller Report).

The affidavits show that initial investigative work focused on Guccifer 2.0, not WikiLeaks. The way in which later affidavits present these issues changed over time. But many of them separate Stone’s “Public interactions with Guccifer 2.0 and WikiLeaks” from the (later) “Private Twitter Direct Messages with WikiLeaks and ASSANGE.” The affidavits generally stopped mentioning Stone’s private DMs with Guccifer 2.0 in March 2018.

That parallel structure applies to the indictments, too. Stone gets his own paragraph, ¶44, in the GRU indictment. But the Stone indictment makes absolutely no mention of Guccifer 2.0. The government declared Stone’s prosecution a “related case” to the GRU one, meaning the same judge — Amy Berman Jackson — would preside. Stone’s team unsuccessfully objected. Prosecutors explained the designation, in part, because, “Certain Netyksho defendants, through a fictitious online persona they created, Guccifer 2.0, also interacted directly with Stone concerning other stolen materials posted separately online.” Ultimately, ABJ denied Stone’s attempt to dissociate the case. Stone made an equally unsuccessful attempt to make the Russian attribution more central to the case, even addressing his communications with Guccifer 2.0. Ultimately, however, the case was totally separate.

And yet, just before it closed their case, the government got their FBI witness to review the part of Stone’s HPSCI testimony where he acknowledged that the intelligence community had assessed that Guccifer 2.0 was a cut-out for Russian intelligence.

In response, Stone’s attorney Bruce Rogow got Taylor to confirm that she didn’t know independently whether Guccifer is Russian and “was not aware” of any other communications between Stone and Guccifer 2.0, something he tried unsuccessfully to emphasize in his close.

Q. Good morning, again, Ms. Taylor.

A. Good morning.

Q. Do you know, independently, whether or not Guccifer is Russian?

A. I don’t.

Q. Did Mr. Stone turn over his communications with Guccifer that he mentioned in the transcript?

A. He did.

Q. Did you find any other communications between Mr. Stone and Guccifer?

A. I’m not aware of any.

Taylor’s response was the same one the Mueller Report gave, in that sole paragraph on Stone’s communications with Guccifer 2.0 referenced above. A sentence that has been unsealed since the original release reads, “The investigation did not identify evidence of other communications between Stone and Guccifer 2.0,” beyond the DMs in August and September, 2016. Earlier in that paragraph, however, a previously redacted passage reveals the significance of it. “After the GRU had published stolen DNC documents through Guccifer 2.0, Stone told members of the Campaign that he was in contact with Guccifer 2.0,” which it cites to this almost entirely redacted passage in a Rick Gates interview, a passage that seems to discuss events that predate the July 22 DNC release.

SSCI has read this unredacted 302, and they assess (as I have in the past, about a different 302) that Gates was just confused between the illusory deleted Clinton emails and actual advance knowledge of emails.

FBI, FD-302, Gates 4/10/2018. The Committee assesses· that, at this time, the references to Clinton’s “emails” reflected a focus on allegedly missing or deleted.emails from Clinton’s personal server during her tenure as Secretary of State.

But in context, the unredacted passage in the Mueller Report suggests that Stone told Gates — and others — that he spoke to Guccifer 2.0 before those known August and September exchanges.

This is a question that prosecutors might have asked Gates to testify about publicly. As noted, his testimony directly preceded Taylor’s second trip to the stand. Rather than ask for clarification on that question, though, Aaron Zelinsky instead had Gates describe how, on June 15, in the wake of the DNC announcement that it had been hacked by Russia (and, though Zelinsky didn’t say it, the launch of the Guccifer 2.0 site), Stone asked for the phone numbers of Jared Kushner and one other staffer “to debrief them on the developments of the DNC announcement.” Indeed, Zelinsky treated this as entirely a discussion about WikiLeaks’ upcoming leaks, not Guccifer 2.0’s existing one.

Q. During the balance of June — we’re still in June of 2016 — did you continue to discuss WikiLeaks with Mr. Stone?

A. Yes, off and on.

Q. Why did you continue, in June, to continue to discuss WikiLeaks with Mr. Stone?

A. Because at that point, both myself and Mr. Manafort didn’t believe the information was coming because it still hadn’t come out. And Mr. Manafort had asked me from time to time to check with Mr. Stone to see if the information was still real and viable.

Q. And when you say the “information,” you mean releases from WikiLeaks; is that correct?

A. That’s correct.

As for Agent Taylor’s response to Bruce Rogow’s question — that she was not aware of any other communications between Guccifer 2.0 and Stone besides the DMs he shared with HPSCI — she might not be aware of any late-discovered communications between Stone and Guccifer 2.0 beyond those he shared with HPSCI even if there were any. She testified that her role on “that piece” of the investigation — meaning the investigation of Roger Stone — was as a case agent.

Q. Ms. Taylor, in the course of your work with the FBI, was there a time in your career when you were assigned to work on the investigation led by then Special Counsel Robert Mueller?

A. Yes.

Q. And in particular in the course of your work on the special counsel’s investigation, did you participate in the piece of the investigation that concerned the defendant in this case, Roger Stone?

A. Yes, I did.

Q. What was your role on that piece of the special counsel’s investigation?

A. I was one of the case agents on the investigation of Mr. Stone.

According to Andrew Weissmann’s book, though, her primary role on Mueller’s team wasn’t on the Stone team, she was the lead agent on the obstruction team (which, given the involvement of Andrew Goldstein in certain interviews in fall 2018, was closely involved in investigating Roger Stone’s witness tampering and cover story as part of the obstruction piece). Taylor wrote none of the affidavits targeting Stone. Additionally, she had left the FBI months before the trial, in August 2019, so she also wouldn’t have been included in an interview conducted over the weekend of the trial (possibly with Andrew Miller, Stone’s aide who had managed his schedule at the RNC, where Stone appears to have gotten advance notice of the DNC leak).

So even with Taylor on the stand, Bruce Rogow may not have been able to discover — much less convey to the jury — the government’s full understanding of what Guccifer 2.0’s relationship with Stone was … not what it was when other FBI agents wrote affidavits hiding part of the investigation from him a year earlier, not what it was when they obtained Andrew Miller’s testimony weeks after the release of the Mueller Report, not what it was after that last interview on November 9, 2019, over seven months after the completion of the Mueller Report and smack dab in the middle of the trial.

Indeed, when he was standing there asking the question of Mueller’s lead agent from the obstruction team about communications between his client and Guccifer 2.0, Rogow would know that the FBI had found searches, starting on May 17, 2016, that seemed to indicate that Stone had foreknowledge of the Russian hack-and-leak; Stone had received those two warrants (one, two) in discovery. But Rogow would not know — because it was among the 15 warrants that the government had withheld, in part, to hide the full scope of the investigation from Stone — that two minutes after the FBI obtained a warrant for Stone’s cell site location from June 14 to November 15, 2016, in part to confirm whether Stone had done the searches indicating foreknowledge of the Guccifer 2.0 operation and in part to figure out whom he met with on August 3, 2016 in LA when he would later claim to have been dining with Julian Assange — a different FBI agent, one likely tied to the GRU investigative team, obtained a search warrant for an email that Guccifer 2.0 set up on July 23, 2016. That email was set up the day after the DNC drop, and perhaps not coincidentally, on the last day on which Stone may have deleted his Google search history, hiding those earlier searches showing foreknowledge of the Russian operation.

Up to that moment when former Agent Taylor discussed Stone’s HPSCI testimony confirming he knew the intelligence community believed Guccifer 2.0 to be a Russian cut-out, Stone’s trial was about his lies about who his go-between with WikiLeaks was, not about truths and lies he may have told about Guccifer 2.0.

Unless Guccifer 2.0 was that go-between.

In any case, the trial was, ultimately, about Guccifer 2.0, because some of the evidence prosecutors used to prove that Stone spoke with the campaign about a go-between to WikiLeaks involved Guccifer 2.0. In addition to the disclosure that Stone spoke to Trump before the June 15 and after the June 30 Guccifer 2.0 posts, the trial made something else public for the first time, something that had been a key detail in the affidavits, and would be in the SSCI Report, but which was not one included in the Mueller Report (or Stone’s indictment).

At 8:16AM on August 15, Corsi texted and then at 8:17 AM Corsi emailed Stone the same message, telling him there was “more to come than anyone realizes”:

Appearing in the midst of a story about Stone’s lies about his go-between with WikiLeaks, the texts and emails are fairly innocuous. Though the SSCI Report does seem to believe Corsi’s story that this moment — and the 24 minute call between Corsi and Stone at 12:14PM on August 15 — is when Corsi told Stone about what the Podesta files would include.

(U) The Committee is uncertain how Corsi determined that Assange had John Podesta’s emails. Corsi initially explained in an interview with the SCO that during his trip to Italy, someone told him Assange had the Podesta emails. Corsi also recalled learning that Assange was going to “release the emails seriatim and not all at once.”1572 However, Corsi claimed not to remember who provided him with this information, saying he could only recall that “it feels like a man” who told him.1573

(U) Corsi further recalled that on August 15, after he returned from Italy, he conveyed this information to Stone by phone.1574 According to Corsi, the information was new to Stone. Stone seemed “happy to hear it,” and the two of them “discussed how the emails would be very damaging” to Clinton. 1575 Corsi also reiterated by both text and email to Stone on August 15 that there was “[m]ore to come than anyone realizes. Won’t really get started until after Labor Day.”1576

But that’s only so long as you keep the Guccifer 2.0 story separate from the WikiLeaks story, as the SSCI and Mueller Reports do.

If you combine those stories, though, here’s what a partial timeline looks like:

August 2, 2016: Corsi informs Stone that “the hackers” will release one dump shortly after he returns on August 12 and another in October; he also mentions Podesta.

August 3, 9:12AM: Stone emails Manafort to tell him about, “an idea to save Trump’s ass.”

August 4: Stone tells Sam Nunberg that he dined with Assange the night before (he had been in LA).

August 5: Stone flip-flops on prior public statements backing the Russian attribution, writing a column declaring that Guccifer 2.0, not Russia, did the DNC hack.

August 9: Both Julian Assange and Stone start pushing the Seth Rich conspiracy.

August 12, 5:41PM: Guccifer 2.0 releases DCCC docs, fulfilling the timing (but not the outlet) that Corsi predicted.

August 12, 6:31PM: Guccifer 2.0, Emma Best, and WikiLeaks begin a discussion about exclusivity on the DCCC documents for WikiLeaks.

August 12, 10:16PM: Guccifer 2.0 says he’ll send major trove of DCCC documents to WikiLeaks; WikiLeaks never publishes any DCCC documents.

August 12, 10:23PM: Guccifer 2.0 publicly calls out Stone, “Thanks that u believe in the real #Guccifer2.”

August 13, 10:19AM: Corsi texts Stone: “Call when you can.”

August 13, 10:42AM: WikiLeaks tweets “‘@Guccifer_2’ has account completely censored by Twitter after publishing some files from Democratic campaign #DCCC”

August 13, 11:15AM: Stone tweets, “@wikileaks @GUCCIFER_2 Outrageous! Clintonistas now nned to censor their critics to rig the upcoming election.”

August 13, 7:29PM: Stone tweets, “@DailyCaller Censorship ! Gruccifer is a HERO.”

August 14, 12:58PM: Guccifer 2.0 tweets, “#Guccifer2 Here I am! They’ll have to try much harder to block me! #DNCleak #dccchack”

August 14 (unknown time): Stone DMs Guccifer 2.0: “Delighted you are reinstated.”

August 14 (unknown time, per Corsi article): Corsi starts a file called “Podesta.”

August 15, 1:33AM: Stone tweets about Podesta for the first time ever, seemingly in response to NYT story on black ledger implicating Manafort: “@JohnPodesta makes @PaulManafort look like St. Thomas Aquinas Where is the @NewYorkTimes?”

August 15, 8:16 and 8:17 AM: Corsi texts and emails Stone, “More to come than anyone realizes.”

August 15, 12:14PM: Corsi and Stone speak for 24 minutes.

August 15, 2016 (unknown time): Guccifer 2.0 DMs Stone: “thank u for writing back . . . do u find anyt[h]ing interesting in the docs i posted?”

So long as the WikiLeaks story is kept separate from the Guccifer 2.0 one, that August 15 DM from Guccifer 2.0 to Stone appears to be a question about the DCCC emails posted on August 12, and so, as Stone claimed, totally innocuous. But given the evidence that Corsi and Stone acquired advance knowledge of the content of select Podesta emails by August 15 — particularly given Stone’s claim, reportedly made before July 22, to have been in touch with Guccifer 2.0 and his apparent foreknowledge of the GRU personas — that August 15 DM appears to be a comment on the Podesta files.

That is, that August 15 was not innocuous at all. It appears to have been, rather, the GRU’s persona asking Stone whether he liked what he had received in advance.

 


The movie Rashomon demonstrated that any given narrative tells just one version of events, but that by listening to all available narratives, you might identify gaps and biases that get you closer to the truth.

I’m hoping that principle works even for squalid stories like the investigation into Roger Stone’s cheating in the 2016 election. This series will examine the differences between four stories about Roger Stone’s actions in 2016:

As I noted in the introductory post (which lays out how I generally understand the story each tells), each story has real gaps in one or more of these areas:

My hope is that by identifying these gaps and unpacking what they might say about the choices made in crafting each of these stories, we can get a better understanding of what actually happened — both in 2016 and in the investigations. The gaps will serve as a framework for this series.

Rat-Fucker Rashomon: Jerome Corsi’s Prescience about the Content of John Podesta’s Emails

In the previous installment of this series, I showed that rather than describing the conclusions of the Mueller team’s investigation into whether, how, and why Roger Stone optimized the release of the John Podesta emails on October 7, 2016, the Mueller Report instead plopped a comedy routine showing how Jerome Corsi changed his story from minute to minute on the topic.

The choice is all the more interesting given that the affidavits used in the Stone investigation — to say nothing of witness testimony — makes it increasingly certain that Stone got advance notice, and probably advance copies, of the stolen emails that pertained to an attack regarding Podesta’s ties to a company with Russian ties, Joule Holdings, that the frothy right had been chasing for months before mid-August 2016.

Jerome Corsi’s Podesta email was actually about timing

The email that Jerome Corsi sent Roger Stone on August 2, 2016 has been widely misunderstood, including by the SSCI Report.

“Word is friend in embassy plans 2 more dumps,” Corsi explained after informing Stone he hadn’t called him back, as Stone requested the day before, because he was in Italy. “One shortly after I’m back. 2nd in Oct.” This language about timing is what Aaron Zelinsky focused on when introducing the email at Stone’s trial. It’s the language that Jonathan Kravis highlighted in his closing argument. In neither prosecutors’ description of the email do they mention John Podesta (though later in Zelinsky’s opening, he describes that, “Roger Stone promised … a massive amount of hacked emails belonging to Clinton campaign chairman John Podesta” would be dropped on October 7).

Nevertheless this email has been taken as the means by which Corsi informed Stone that the upcoming WikiLeaks dump involved files stolen from John Podesta.

It’s only much later in the email when Corsi says, “Time to let more than Podesta to be exposed as in bed w enemy.” The reference to Podesta would be incomprehensible to Stone if it were his first notice that WikiLeaks was going to drop emails stolen from Hillary’s campaign manager. Moreover, Corsi wouldn’t bury it in the sixth paragraph if it were new news, particularly not given that the right wing oppo researchers Steve Bannon paid, the Government Accountability Institute, had just days earlier released a report that focused on John Podesta. Indeed, it’s even possible that the email doesn’t reflect advance knowledge of the Podesta emails, but was instead a reference to that report.

There’s no reason to believe that the Podesta reference in this email was news to Stone.

Corsi put the new news — that the dumps were coming shortly after he was scheduled to return from Italy on August 12, and then again in October — in the second paragraph. And as some of the affidavits described obliquely — but which did not get mentioned in any of the other three Roger Stone stories — the timing of both those predictions was absolutely correct.

Based on my training, experience, and review of materials in this case, it appears that CORSI’s reference to a “friend in embassy [who] plans 2 more dumps” refers to Julian ASSANGE; the founder of Wikileaks, who resided in Ecuador’s London Embassy in2016. As discussed above, Guccifer released information hacked from the DCCC on August 12,2016 (the date CORSI identified as when he would “return home.”)

FBI Agent Amy Anderson mentions, but does not explain, that Corsi did not correctly predict who would release these files.

Two releases, one from Guccifer and the other from Wikileaks, occurred at the times predicted by CORSI.

In fact, as Raffi Khatchadourian was the first to explain publicly (but as would have been clear to investigators once they obtained the relevant Twitter content), Guccifer 2.0 and WikiLeaks engaged in a series of very theatrical DM conversations with Emma Best over that weekend in August 2016 about whether Best would publish the DCCC emails; even after WikiLeaks convinced Best to hold off so it could have exclusivity, WikiLeaks never did publish any DCCC documents. At the time Corsi learned that “friend in embassy” would have two upcoming drops, WikiLeaks was still demanding exclusivity before it would deliver the first one.

In the August 2 email, then, Corsi provided new news to Stone about what the Russians were planning, but (if the theatrical DMs are to be believed, which they shouldn’t necessarily be) Assange had yet to buy into the plan. That makes Corsi’s description of “the game hackers are now about” all the more intriguing.

There’s no reason to believe, from this email, that Corsi was newly informing Stone that WikiLeaks would eventually dump the Podesta emails. There’s not even any reason to be sure that Corsi informed Stone of that fact and not vice versa. Indeed, the Mueller Report describes that Corsi told Ted Malloch later in August that, “Stone had made a connection to Assange and that the hacked emails of John Podesta would be released prior to Election Day,” not that he himself had. The email is indication (though in no way, by itself, proof, especially given the possibility it referenced the GAI report) that both believed by August 2 that WikiLeaks would drop the Podesta emails. It is not proof that Corsi told Stone of that fact.

Rick Gates and Paul Manafort testified that Stone knew Podesta emails were coming

We can get a lot closer to proof that Stone had advance knowledge of the Podesta drop, though.

First of all, it’s not just Malloch who testified to having conversations about Podesta’s emails in August. According to the SSCI Report, in part of Rick Gates’ October 25, 2018 interview that remains redacted,

Gates recalled Stone advising him, prior to the release of an August 14 article in The New York Times about Paul Manafort’s “secret ledger,” that damaging information was going to be released about Podesta. 1579 Gates understood that Stone was referring to nonpublic information. Gates further recalled later conversations with Stone about how to save Manafort’s role on the Campaign, and that Stone was focused on getting information about John Podesta, but said that Stone did not reveal the “inner workings” of that plan to Gates. 1580

An unredacted part of that 302 — which is likely the continuation of the discussion cited in SSCI — explains,

Gates said there was a strategy to defend Manafort by attacking Podesta. The idea was that Podesta had baggage as well. Gates said it was unfortunate the information did not come out in time to defend Manafort from his ultimate departure from the campaign.

In a September 27, 2018 interview, Manafort provided details of two conversations that he placed in August 2016, one of which provided specific details (which remain redacted, purportedly to protect Podesta’s privacy!) about John Podesta’s alleged ties with Russia.

Manafort was sure he had at least two conversations with Stone prior to the October 7, 2016 leak of John Podesta’s emails.

In the one conversation between Stone and Manafort, Stone told Manafort “you got fucked.” Stone’s comment related to the fact that Manafort had been fired. The conversation was either the day Manafort left the campaign or the day after.

In the other conversation, Stone told Manafort that there would be a WikiLeaks drop of emails with Podesta, and that Podesta would be “in the barrel” and Manafort would be vindicated. Manafort had a clear memory of the moment because of the language Stone used. Stone also said Manafort would be pleased with what came out. It was Manafort’s understanding that WikiLeaks had Podesta’s emails and they were going to show that [redacted] Manafort would be vindicated because he had to leave the campaign for being too pro-Russian, and this would show that Podesta also had links to Russia and would have to leave.

Manafort’s best recollection was the “barrel” conversation was before he got on the boat the week of August 28, 2016.

Roger Stone’s longtime friend Paul Manafort, at a time when he lying to protect key details about what happened in 2016, nevertheless confirmed that Stone had detailed knowledge not just that the Podesta files would drop, but what Russian-based attacks they would make of them.

The government almost certainly has proof Stone and Corsi had advance copies of the Podesta files

More importantly, there’s evidence that Corsi had copies of some of the Podesta emails by August 14, and had pre-written attacks on Podesta already drafted when the files came out in October.

On March 23, 2017, Corsi published what he claimed was an explanation for Stone’s August 21, 2016 “time in the barrel” tweet. In it, he explained that in response to the August 14, 2016 NYT story exposing Paul Manafort’s Ukraine corruption, Corsi started a memo for Stone on Podesta.

On Aug. 14, 2016, I began researching for Roger Stone a memo that I entitled “Podesta.”

On August 15 at 1:33 AM, Stone tweeted about Podesta for the first time ever,

@JohnPodesta makes @PaulManafort look like St. Thomas Aquinas Where is the @NewYorkTimes ?

At 8:16AM on August 15, Corsi texted and then at 8:17 AM Corsi emailed Stone the same message:

Give me a call today if you can. Despite MSM drumroll that HRC is already elected, it’s not over yet. More to come than anyone realizes.

According to the SSCI Report, at 12:14PM on August 15, Corsi and Stone spoke by phone for 24 minutes.

The implication in Corsi’s March 2017 post was that he spent the next two weeks writing the memo that he started on August 14 and that the report reflects “several detailed conversations” Corsi had with Stone.

I completed that memo on Aug. 31, 2016, and is embedded here in its entirety.

Between Aug. 14 and Aug. 31, 2016, Roger Stone and I had several detailed conversations about the Podesta research.

Except that prosecutors obtained several kinds of proof that Corsi only started writing the memo he published in that March 2017 column (which Stone submitted to HPSCI — starting at PDF 39 — as part of his prepared statement) on that same day, on August 31. Corsi started writing it after Stone called him on August 30 and asked him to do so. This would have started to become clear to prosecutors when they first obtained email returns, since Corsi sent a copy of the report to Stone via email. But according to Corsi, prosecutors found forensic evidence to confirm that.

In his book, Corsi even admitted that the document was a cover story that he didn’t start until August 30 (Stone sued Corsi about this claim).

Next, Zelinsky focused on the email Roger Stone sent me on August 30, 2016, asking me to call him. As we discussed earlier, that led me to write a “cover-up memo” for him on John Podesta, suggesting that Roger’s infamous Twitter post about “Podesta’s time in the barrel” was a reference to my research about John and Tony Podesta’s money dealings with Russia. Roger wanted to disguise his tweet, suggesting “Podesta’s time in the barrel” was not a reference to any advanced knowledge Stone may have had from me, when I began telling Stone from Italy in emails dated earlier in August 2016 that I believed Assange had Podesta emails. “We’ve examined your computer Doctor Corsi,” Zelinsky grilled me. “And we know that the next day, August 31, 2016, your birthday, you began at 7:30 a.m. to write that memo for Stone.”

Before returning to Washington to appear before the grand jury, I had taken the time to research the file of my 2016 writing drafts that I had restored to my laptop from the Time Machine. I found that the file that I labeled, “ROGER STONE background PODESTA version 1.0 Aug. 31, 2016” was time-stamped for 12:17 p.m. that day. But I decided not to quibble with Zelinsky, so I agreed. “Then, Doctor Corsi, we find from your computer that the first thing you did was to find a series of open source articles on Podesta and Russia that you could use in writing your memo for Roger Stone,” Zelinsky said, pressing forward. “Is that correct?”

That said, Corsi may well have another report he started on August 14. In his March 2017 piece, Corsi claims that he wrote a series of articles based on that original report, one installment of which Stone would publish under his own name on October 13.

On October 6, 2016, I published in WND.com the first of a series of articles detailing Putin’s financial ties to Clinton and Podesta, based largely on the research contained in the Government Accountability Institute’s report, “From Russia With Money.”

On Oct. 13, 2016, Stone published on his website an article entitled, “Russian Mafia money laundering, the Clinton Foundation and John Podesta.”

A comparison of the two articles will show the extent to which Stone incorporated my research into his analysis.

To the extent that Corsi wrote a series of articles, it would include the following:

In a November 1, 2018 interview, Corsi explained that he had published the October 6 one (as noted, it was based off the earlier GAI/Breitbart attack), in an effort to force Assange to release the Podesta emails.

Corsi published the August 31, 2016 memo on October 6, 2016. At that time, he still held himself out as the connection to WikiLeaks. The trigger for the release of the article was the publication of an article about [Paul] Manafort and [Viktor] Yanukovych. Corsi wanted to counter it with a story about Podesta, but he really wanted to provide stimulus to Assange to release whatever he had on Podesta. Corsi was angry with Assange for not releasing emails on October 4, 2016.

The claim would only make sense (to the extent that Jerome Corsi can ever be said to “make sense”) if Corsi could threaten to pre-empt what WikiLeaks was about to publish: the Podesta file pertaining to Joule Holdings.

As for the October 13 piece Stone adopted as his own, the affidavits targeting Corsi and Stone provided extensive details on how that got published.

First thing in the morning on October 12, Stone wrote Corsi and asked for his “best podesta links.” (The SSCI Report reveals that Stone and Manafort spoke that day, but does not say what time.) Corsi responded that he would send them on Monday — which would have been on October 17. “The remaining stuff on Podesta,” Corsi said, “is complicated.” That seems to comport with Corsi’s later representation he did a series, of which the October 13 one was part. But it also seems to suggest that the remaining stuff was already written at 8:54 AM on October 12.

75. On or about October 8, 2016, STONE messaged CORSI at Target Account 2, “Lunch postponed- have to go see T.” CORSI responded to STONE, “Ok. I understand.” Approximately twenty minutes later, CORSI texted, “Clintons know they will lose a week of Paula Jones media with T attacking Foundation, using Wikileaks Goldman Sachs speech comments, attacking bad job numbers.”

76. On or about Wednesday, October 12, 2016, at approximately 8:17 EDT, STONE emailed CORSI at Target Account 1, asking him to “send me your best podesta links.” STONE emailed CORSI at approximately 8:$$ [sic] EDT, “need your BEST podesta pieces.” CORSI wrote back at approximately 8:54AM EDT, “Ok. Monday. The remaining stuff on Podesta is complicated. Two articles in length. I can give you in raw form the stuff I got in Russian translated but to write it up so it’s easy to understand will take weekend. Your choice?”

77. On or about that same day October 12, 2016, Podesta accused STONE of having advance knowledge of the publication of his emails. At approximately 3:25PM EDT, CORSI, using Target Account 1, emailed STONE with a subject line “Podesta talking points.” Attached to the email was a file labeled, “ROGER STONE podesta talking points Oct 12 2016.docx.” The “talking points” included the statement that “Podesta is at the heart of a Russian-govermnent money laundering operation that benefits financially Podesta personally and the Clintons through the Clinton Foundation.”

78. CORSI followed up several minutes later with another email titled, “Podesta talking points,” with the text “sent a second time just to be sure you got it.” STONE emailed CORSI back via the Hotmail Account, “Got them and used them.”

79. On or about Thursday, October 13, 2016, CORSI, using Target Account 3, emailed STONE: “PODESTA — Joule & ties to RUSSIA MONEY LAUNDERING to CLINTON FOUNDATION.” STONE responded, “Nice but I was hoping for a piece I could post under my by-line since I am the one under attack by Podesta and now Mook.” CORSI wrote back to STONE, “I’ll give you one more -NOBODY YET HAS THIS[:] It looks to me like [redacted–Vekselberg] skimmed maybe billions off Skolkovo – Skolkovo kept their money with Metcombank[.] The Russians launched a criminal investigation[.] [web link] Once [redacted–Vekselberg] had the channel open from Metcombank to Deutsche Bank America to Ban[k] of America’s Clinton Fund account, there’s no telling how much money he laundered, or where it ended up. Nothing in Clinton Foundation audited financials or IRS Form 990s about $$$ received via Russia & Metcombank[.] I’m working on that angle now.” STONE replied, “Ok Give me SOMETHING to post on Podesta since I have now promised it to a dozen MSM reporters[.]”

80. On or about Thursday, October 13, 2016 at approximately 6:30PM EDT, CORSI sent STONE an email with the Subject, “ROGER STONE article RUSSIAN MAFIA STYLE MONEY-LAUNDERING, the CLINTON FOUNDATION, and JOHN PODESTA.” The text stated: “Roger[,] You are free to publish this under your own name.” That same day, STONE posted a blog post with the title, “Russian Mafia money laundering, the Clinton Foundation and John Podesta.” In that post, STONE wrote, “although I have had some back-channel communications with Wikileaks I had no advance notice about the hacking of Mr. Podesta nor I have I ever received documents or data from Wikileaks.” The post then asked, “Just how much money did, a controversial Russian billionaire investor with ties to the Vladimir Putin and the Russian government, launder through Metcombank, a Russian regional bank owned 99 .978 percent by with the money transferred via Deutsche Bank and Trust Company Americas in New York City, with the money ending up in a private bank account in the Bank of America that is operated by the Clinton Foundation?”

81. On or about October 14, 2016, CORSI sent a message using Target Account 2 to STONE, “i’m in NYC. Thinking about writing piece attacking Leer and other women. It’s basically a rewrite of what’s out there. Going through new Wikileaks drop on Podesta.” [my emphasis]

It turns out the post Stone ultimately posted had no links to the WikiLeaks releases it relied on (remember, he asked Corsi for links and pieces), but it does reference a file that had been released on October 11, hours before Corsi seemed to speak of the post as already completed.

Wikileaks emails tie John Podesta, chairman of Hillary Clinton’s 2016 presidential campaign, into the money-laundering network with the confirmation Podesta had exercised 75,000 shares out of 100,000 previously undisclosed stock options he was secretly issued by Joule Unlimited, a U.S. corporation that ties back to Vekselberg connected Joule Global Stichting in the Netherlands – a shady entity identified in the Panama Papers as an offshore money-laundering client of the notorious Panamanian law firm Mossack Fonseca.

As a clear indication of guilty conscience, the Wikileaks Podesta file further documents that Podesta made a serious effort to keep the transaction from coming to light as evidenced by his decision to transfer 75,000 common shares of Joule Unlimited to Leonidio LLC, another shady shell corporation – this one listed in Salt Lake City at the home apartment of the gentlemen who registered the company.

A parallel post covering the same material posted by Corsi does have links to the emails that support the disposition of the 75,000 shares and other claims made in it. But that one was updated about six hours after it was first posted, and the first Internet Archive capture postdates that update.

Investigators seem to have found some significance, too, in the Metcombank reference that Corsi got and had to translate from Russian, a significance I don’t understand. But Stone dropped part of that attack when he revived the Vekselberg attack to use against Cohen in 2018.

Remember: Investigators would have had the forensics for the documents Corsi and Stone were sending back and forth by email, and probably would have communications about all this between August 14 and August 31, when (according to Corsi), Stone asked him to write a cover story. They would know if the story Stone posted under his own name was drafted before the public release of the emails it relied on.

But even on its face, Corsi’s comments suggest that these documents were a series started by October 6, of which some parts “were remaining” on the morning of October 12, one day after the email it relied on got released. Remember, too, that Corsi claims Stone told him to delete his email (which he did) on October 11, which would hide any knowledge of that WikiLeaks file before it came out.

Paul Manafort and Rick Gates both testified that Roger Stone had a plan, hatched before Paul Manafort resigned on August 19, to save his job by claiming that Podesta was just as bad as Manafort. Manafort even described the specific nature of the Russian-based attack on Podesta they had planned (though Bill Barr’s DOJ redacted it to protect Podesta’s privacy!).

And then, when Roger Stone asked Corsi for “links” as well as “pieces” on October 12, Corsi sent him a document that, by reference, had already been written, one that didn’t have links but that integrated information that wasn’t public until October 11.

That doesn’t prove that Stone and Corsi had those files in mid-August. But it does explain why Stone might have wanted a cover story denying they did after he boasted that it would soon be Podesta’s time in the barrel on August 21.


The movie Rashomon demonstrated that any given narrative tells just one version of events, but that by listening to all available narratives, you might identify gaps and biases that get you closer to the truth.

I’m hoping that principle works even for squalid stories like the investigation into Roger Stone’s cheating in the 2016 election. This series will examine the differences between four stories about Roger Stone’s actions in 2016:

As I noted in the introductory post (which lays out how I generally understand the story each tells), each story has real gaps in one or more of these areas:

My hope is that by identifying these gaps and unpacking what they might say about the choices made in crafting each of these stories, we can get a better understanding of what actually happened — both in 2016 and in the investigations. The gaps will serve as a framework for this series.

The Proud Boys Have Already Been Used to Intimidate Those Holding Trump Accountable — and Bill Barr Has Protected Them

As a number of people have observed, in last night’s debate, Donald Trump not only refused to condemn white supremacist terrorists, but seemed to call on them to stand by to support him.

President Donald J. Trump: (42:10)
What do you want to call them? Give me a name, give me a name, go ahead who do you want me to condemn.

Chris Wallace: (42:14)
White supremacist and right-wing militia.

President Donald J. Trump: (42:18)
Proud Boys, stand back and stand by. But I’ll tell you what somebody’s got to do something about Antifa and the left because this is not a right wing problem this is a left wing.

He named the Proud Boys explicitly.

Today, I noted that the reason why Randy Credico took Roger Stone’s threats seriously — the reason the witness tampering charge merited the full enhancement — was because of Stone’s ties to the Proud Boys. Credico confirmed that by posting a picture of Stone with his gang.

In Stone’s sentencing hearing, Judge Amy Berman Jackson described how Credico told the grand jury he was worried about Stone’s gang.

I note, since the defense has informed me that I can consider this material, that that is not consistent with his grand jury testimony, which was closer in time to the actual threats, at which time he said he was hiding and wearing a disguise and not living at home because he was worried, if not about Trump, about his — about Stone, but about his friends. So, I think his level of concern may have changed over time.

It’s not just Credico. When ABJ held a hearing to consider a gag on Roger Stone, she first got him to explain how his associates — whom he first declined to identify but then, when pressed by prosecutor Jonathan Kravis, named Proud Boys members Jacob Engles and Enrique Tarrio — had been working with him on that post but he couldn’t really describe who had picked the image of Judge Jackson with the crosshairs on it.

Amy Berman Jackson. How was the image conveyed to you by the person who selected it?

Stone. It was emailed to me or text-messaged to me. I’m not certain.

Q. Who sent the email?

A. I would have to go back and look. I don’t recognize. I don’t know. Somebody else uses my —

THE COURT: How big is your staff, Mr. Stone?

THE DEFENDANT: I don’t have a staff, Your Honor. I have a few volunteers. I also — others use my phone, so I’m not the only one texting, because it is my account and, therefore, it’s registered to me. So I’m uncertain how I got the image. I think it is conceivable that it was selected on my phone. I believe that is the case, but I’m uncertain.

THE COURT: So individuals, whom you cannot identify, provide you with material to be posted on your personal Instagram account and you post it, even if you don’t know who it came from?

THE DEFENDANT: Everybody who works for me is a volunteer. My phone is used by numerous people because it can only be posted to the person to whom it is registered.

[snip]

Jonathan Kravis. What are the names of the five or six volunteers that you’re referring to?

Stone. I would — Jacob Engles, Enrique Tarrio. I would have to go back and look

When she imposed a gag on Stone, she explained that his Instagram post amounted to incitement of others, people with extreme views and violent inclinations.

What concerns me is the fact that he chose to use his public platform, and chose to express himself in a manner that can incite others who may feel less constrained. The approach he chose posed a very real risk that others with extreme views and violent inclinations would be inflamed.

[snip]

The defendant himself told me he had more than one to choose from. And so what he chose, particularly when paired with the sorts of incendiary comments included in the text, the comments that not only can lead to disrespect for the judiciary, but threats on the judiciary, the post had a more sinister message. As a man who, according to his own account, has made communication his forté, his raison d’être, his life’s work, Roger Stone fully understands the power of words and the power of symbols. And there’s nothing ambiguous about crosshairs.

Then, again at the sentencing hearing, ABJ talked about the risk that, “someone else, with even poorer judgment than he has, would act on his behalf.

Here, the defendant willfully engaged in behavior that a rational person would find to be inherently obstructive. It’s important to note that he didn’t just fire off a few intemperate emails. He used the tools of social media to achieve the broadest dissemination possible. It wasn’t accidental. He had a staff that helped him do it.

As the defendant emphasized in emails introduced into evidence in this case, using the new social media is his “sweet spot.” It’s his area of expertise. And even the letters submitted on his behalf by his friends emphasized that incendiary activity is precisely what he is specifically known for. He knew exactly what he was doing. And by choosing Instagram and Twitter as his platforms, he understood that he was multiplying the number of people who would hear his message.

By deliberately stoking public opinion against prosecution and the Court in this matter, he willfully increased the risk that someone else, with even poorer judgment than he has, would act on his behalf. This is intolerable to the administration of justice, and the Court cannot sit idly by, shrug its shoulder and say: Oh, that’s just Roger being Roger, or it wouldn’t have grounds to act the next time someone tries it.

Both Credico and ABJ, then, pointed to the white supremacist gang that Roger Stone hangs out with to explain why Roger Stone’s threats must be taken seriously.

And Bill Barr dismissed the seriousness of both those threats — the threats Roger Stone makes that might lead one of his associates to take violent action — when he undermined the sentencing recommendation on Stone.

Trump’s invocation of the Proud Boys is no idle threat. Because the Proud Boys have already been used to intimidate those holding Donald Trump accountable.

Leaks on Top of Leaks Related to Roger Stone

In February, when I wrote up the latest performance art from serial hoaxsters Jacob Wohl and Jack Burkman, I suggested that their failure to hide the hand-written notes on one of the juror questionnaires they leaked from the Roger Stone jury might lead to quick discovery of the culprit.

But the poor execution may be the downfall. The released documents don’t actually reveal anything beyond what had already been identified during the initial frenzy against he foreperson (and since the foreperson gave credible responses in the hearing, backed by the testimony of two other jurors who said she was one of the last jurors to vote to convict). But Wohl and Burkman failed to redact the handwritten notes about a potential juror on one of the questionnaires.

This is going to make it easier to identify the potential sources for this document, something that ABJ was already trying to do in the hearing earlier this week.

There is a concerted effort on the part of the frothy right to violate every single norm of jury service, all to discredit a slam-dunk case against Roger Stone that even Bill Barr said was righteous. And for once these shithole hoaxsters may have done some good — in the form of helping the FBI figure out who’s behind it all.

Apparently, I was wrong.

Seven months later, as Will Sommer reported, the FBI continues to investigate Wohl and Burkman for potential witness intimidation.

The FBI is investigating blundering conservative operatives Jacob Wohl and Jack Burkman for a series of possible crimes, according to a document filed by federal prosecutors.

Ironically, the document revealing the investigation was filed just days after Wohl and Burkman staged a fake FBI raid on Burkman’s home in a bid for media attention.

The FBI investigation centers on Wohl and Burkman’s February release of confidential juror questionnaires from the trial of Trump associate Roger Stone. The FBI is investigating the pair for potential witness harassment, criminal contempt, and obstruction of justice, according to the filing.

[snip]

The HD Carrier subpoena relates to a series of phone numbers that Burkman contacted prior to the publication of the questionnaires, according to the filing. HD Carrier provides phone numbers for teleconferencing companies and other businesses that use temporary phone numbers, suggesting that the phone numbers were used only briefly by whoever Burkman was in contact with. The court filing notes that Burkman contacted the phone numbers around the time of the questionnaire release, according to a law enforcement review of his call records.

There are a number of interesting things about the request for call records, but not content.

First, as Sommer noted, this is a DC District order, but it was signed by the US Attorney and two AUSAs from Philadelphia. That’s not that surprising. The Stone prosecutors got the list of jurors that was part of this leak and passed it onto Stone’s team. They are potential (if highly unlikely) culprits for the leak. By asking outsiders to investigate it, DOJ avoids a conflict. This may be (though I always get proven wrong when I say this) the rare example where Bill Barr has appointed one of his favored US Attorneys to investigate something pertaining to Trump that doesn’t reek of interference.

It’s almost certain Wohl and Burkman are not the primary targets. The application notes that they, “may have been engaged in an attempt to influence or injure the jurors, as well as tampering with potential witnesses before the court,” which covers two of the three crimes under investigation, obstruction and witness tampering. And they did do that.

But the third, criminal contempt, probably wouldn’t apply to them. How could Amy Berman Jackson hold them in contempt, after all, when they were not party to her authority?

Another detail that supports that is the time frame — from last year during the pre-trial period. As explained in a hearing exchange after Wohl and Burkman had released the questionnaires, Jonathan Kravis went and got the list from the court on October 31 and sent it to the Stone team sometime thereafter.

In the hearing, Stone’s lawyer Seth Ginsberg tried to suggest that Stone’s team might not have had the list until closer to September 5, to which Michael Marando responded it was likely that it got sent out on November 1, which was a Friday.

THE COURT: Okay. Do you have any questions for this witness about any of these issues?

MR. GINSBERG: Just one. It may have been answered. I may have been distracted, Your Honor.

THE COURT: Just for the record, I don’t know that you’ve talked yet today. Can you put your name on the record.

MR. GINSBERG: Seth Ginsberg, appearing for Roger Stone.

THE COURT: Okay.

MR. GINSBERG: Do you recall the date on which it was transmitted to the defense?

MR. MARANDO: No, but it would have been close in time. My feeling, just going back and remembering, it was very close in time.

MR. GINSBERG: And the date that you said that Mr. Kravis went and created the list was what date?

MR. MARANDO: I don’t know the exact date, but it would have been shortened time to after we were invited to go and copy it down, and then we would have gotten the list and sent it over.

MR. GINSBERG: And you were notified on or about October 31st, 2019, that the list was available?

MR. MARANDO: That’s what the e-mail says.

COURT: Yes, it says they were notified at 5:24 p.m. on October 31st. So it would be my guess that you did not come on October 31st. I don’t know that we would have kept chambers open for that, but that you could come at any point between — the next day was a Friday, and then Monday was the return of the pretrial conference; is that correct?

MR. MARANDO: Exactly; that’s right.

MR. GINSBERG: And jury selection was on the 5th?

MR. MARANDO: Yes.

THE COURT: It began on the 5th, correct.

MR. GINSBERG: So it was somewhere between November 1st and November 5th?

MR. MARANDO: Yes, but more likely it would have been November 1st. It would have been right after that. We wouldn’t have — because then November 2nd would have been a Saturday. November 3rd would have been a Sunday. We wouldn’t have waited until November 4th to get this. I’m assuming we would have just hopped on it the next day.

In the interim 7 months, the FBI may have narrowed when the questionnaires got sent out. Which makes Ginsberg’s attempt to muddy that timeline rather curious (he is a very thorough lawyer, but I also find it interesting that the one lawyer not on the trial team posed these questions).

At the time, Amy Berman Jackson seemed to suspect two lawyers who had not filed an appearance in the case might have been the culprits. One of them, Tyler Nixon, was also interviewed to be a witness against Randy Credico.

THE COURT: So you worked electronically on them until you came for trial and then had a paper set?

MR. BUSCHEL: Yes. We were able to — as you can see, each .pdf is broken down juror by juror. So if you’re looking for 12345, you could just pull up 12345 .pdf.

THE COURT: So who had access to the .pdfs?

MR. BUSCHEL: Everyone on the defense team, lawyers, Mr. Stone. And do we — and there are a couple of lawyers that did not file appearances in this case. Do you want to know their names?

THE COURT: Well, yes. I seem to remember they were seated here at the beginning of trial, and then we didn’t have space for them inside the well of the court, and they had to step out.

MR. BUSCHEL: Right. THE COURT: But yes, if there were additional attorneys
who had electronic access to the information —

MR. BUSCHEL: For a period of time electronically, Bryan Lloyd, Tyler Nixon.

But certainly Robert Buschel did admit that his client the rat-fucker had the files and could have sent them.

Ultimately, though, the real reason for this gag would seem to keep the information from Stone, who presumably expects a full pardon before Trump leaves office. If Stone were the culprit here, the charges would replace those he got commuted.

But magically this sealed application ended up on PACER, if that’s really how it happened, with people pitching the seemingly obscure site it got posted on to make it into a bigger story.

And I’m not sure it’s just the jury questionnaires at issue. As the application notes, Wohl and Burkman also claimed to have gotten Steve Bannon’s grand jury transcript. In it, he told some truths about the 2016 operation that he didn’t otherwise share with the FBI. Not all of it pertains to Stone (they had to redact it for trial). That suggests there may be more interesting details that would interest very powerful people.

As Sommer notes, this order was submitted just three days after the hoaxsters staged a fake FBI raid. It’s possible that they did know about the investigation, and the fake raid (for which they paid $400 per fake FBI officer) was just an attempt to alert co-conspirators.

And now a purportedly sealed call records order wasn’t properly sealed after all.

The Maryland US Attorney’s Office Included Erik Prince in a FOIA Response on the Stone Sentencing

Jason Leopold once again did more for overseeing DOJ than the House Judiciary Committee managed — this time beginning the process of liberating documents held by the US Attorney’s Office pertaining to Roger Stone’s sentencing. As Leopold notes in his story on the documents, this was the first of several installments, so more interesting documents may come out later.

This installment clearly all came from the Maryland US Attorney’s office, reflecting the mailbox of Aaron Zelinsky, who has always been and remains employed there; he returned there full time after he resigned as a Special AUSA assigned to the Mueller team. The remaining installments — at least those from the EOUSA — will likely mirror this production, but also include emails involving Timothy Shea’s Chief of Staff, David Metcalf, JP Cooney, John Crabb, and Alessio Evangelista, who were also involved in the events of February 10 and 11.

Maryland may have responded quickly to this FOIA because it is more sympathetic to Zelinsky’s efforts. Indeed, the most interesting exchanges in these emails show Zelinsky discussing these matters with people in that office. On February 10, he kept Jonathan Lanzner in the loop, letting him know when, “looks like they are blinking.” The following day, just after DOJ disavowed the sentencing memo approved just the night before (which the prosecutors appear to have found out about via media reports), Zelinsky made an urgent request of three others in MD USAO. There was some discussion of precedent and a drafting of a document. But after Zelinsky withdrew from the case, he alerted them that “we will not have the opportunity to do” whatever they were trying to do.

As discussed, I have filed the withdrawal motion and emailed the public corruption chief JP Cooney. I withdrew just after I sent the email below notifying him. As we discussed, I do not believe he has the power to compel  me to stay in the case. There are currently three attorneys on the docket for the United States. In addition, JP has indicated that Main Justice will file a motion of somekind in the case later today and we will not have the opportunity to do this.

Nevertheless, there’s a follow-up with Lenzner later in the day. In it, Zelinsky makes it clear that his Memorandum of Understanding (presumably pertaining to his SAUSA role tied to Mueller) only pertains to Roger Stone.

The suggestion that these events may have affected other cases, to which Zelinsky’s MOU did not apply, is particularly interesting given that DOJ deemed an email to Zelinsky from Erik Prince’s lawyer attaching a story about that investigation, sent after everything started blowing up, to be responsive to this FOIA.

I see no reason why that email would be included in this FOIA response (the attached WSJ story, for example, does not mention the Stone). But for some reason, Maryland’s US Attorney’s office considers it responsive to the Leopold FOIA.

I’ll have more to say about this FOIA response in a bit.

I have included all the emails, save some inquiries from journalists, in the timeline below. Note that it is difficult to distinguish between b5 (deliberative) and b6 (privacy) in these redactions, so I may have gotten a few of those wrong.

February 10

7:49: Zelinsky sends his US Attorney email, “Zelinsky Withdrawal Motion Draft 2.docx.”

7:52: Zelinsky forwards his draft withdrawal motion, still titled, “Zelinsky Withdrawal Motion Draft 2.docx,” to Adam Jed and Jonathan Kravis (but not Michael Marando), stating, “A much slimmer version — let me know what you think.” Note that the email he attached the draft to has a time stamp of 7:46, preceding the one above. This appears to be substantially the motion he submitted the following day.

9:01: A Maryland US Attorney employee, Paul Budlow, responds to Zelinksy regarding a “Presentations Skills for Training and Trial” course in March, saying only “Thanks.” The email was likely responsive because of what Zelinsky said to Budlow on Friday, February 7, which is redacted under b6.

9:40: Email from John Kruzel at The Hill.

1:25: Zelinsky sends Marando his withdrawal letter, now titled, “Zelinsky Withdrawal Motion Draft Final.docx.”

2:04: Zelinsky writes Jonathan Lenzner at Maryland’s US Attorney’s office with the subject line, “Looks like they are blinking.” It is redacted under b5.

2:05: Timothy Shea’s Chief of Staff David Metcalf emails Zelinsky, “If you actually want to talk, let me know.” The rest is redacted under b6.

2:07: Zelinsky responds to Metcalf. The first line is redacted under b6. The email then says, “What would you like to discuss? I am a bit busy because of Stone sentencing memo (as I’m sure you’re aware) and I [redacted, b6].

2:08: Lenzner responds. It is redacted under b5.

2:11: Zelinsky responds. It is redacted under b5.

3:25: Michael Marando emails the other three prosecutors, attaching a “Joint Submission re Redactions.docx,” with the subject link, “Can you let me know if this is OK?”

3:58: Zelinsky responds again to Metcalf, “I’m headed out now. Happy to talk by phone.” The rest of the email is redacted under b6.

4:22: Marando forwards email reading, “Counsel, the attached documents were filed with the Court under seal today.” Marando’s email that forwarded the PACER entry to Stone’s lawyers cc’ing the other prosecutors, which is (still sealed) docket number 278, is included in this FOIA production as well, but the time is not legible.

4:22: Kravis emails Zelinsky, “Final draft attached. Let me know when we have the ok to file.” He attaches, “stone sentencing memo 2-10-20.docx.”

4:22: Kravis emails Cooney, John Crabb, Alessio Evangelista, cc’ing the Stone prosecutors. “Final draft attached. Let me know when we have the ok to file.” Attached is “stone sentencing memo 2-10-20.”

4:28: Zelinsky responds to Kravis, “This says [redacted] got thirteen months. I thought it was 14?

4:30: Zelinsky responds again to Kravis, “Never mind. Looks like thirteen in all news stories.”

4:32: Zelinsky responds to Marando, “Thanks for doing this.”

6:02: Zelinsky receives ECF notice of the prosecutors’ sentencing memo, which was filed at 6:01.

6:07: Cooney emails “Team,” stating, “I just let Jonathan know that you have the green light to file the pleading.” The rest of the email is redacted under a b6.

7:04: Zelinsky responds to Cooney thanking him. The rest of the email is redacted under b6.

10:57: Zelinsky receives notice of Stone’s sentencing memo, which was filed at 10:55.

February 11

7:03 AM: Zelinsky forwards the sentencing memo from Stone’s attorneys, including the leniency letters, to the other prosecutors in the case, making some comment that was redacted for b5 and b6 reasons.

7:04 AM: Zelinsky responds to the Cooney email from the evening stating, “Thanks JP,” with the balance redacted for b6.

8:32: Adam Jed writes the other Stone prosecutors with the subject line, “Stone’s sentencing memo.” The content is redacted under b5.

9:50: Zelinsky responds to the other prosecutors regarding an email all four plus Timothy Shea got sent, calling them “Corrupt Whores” and “Are Poor FuckingEvil,” complaining they called for “7 to 9 years for Rodger [sic] Stone?” and calling them, “COCKROACHES.” Apparently this email merited a response, because he said,

I’ll draft a response. Good news– we know the U.S. Attorney won’t get this threat because he doesn’t use email.

12:02: Marando forwards an inquiry from The Hill’s John Kruzel, asking about the Fox story that DOJ is changing Stone’s sentencing recommendation, to Cooney, saying only “FYI.”

12:07:11: Cooney responds to Marando’s question, False.

12:07:32 PM: Marando forwards the 12:07:11 email from JP Cooney to Zelinsky.

12:13: Zelinsky responds to Marando and Kravis in the Cooney “False” thread, linking CNN journalist Shimon Prokupecz’s tweet quoting DOJ disavowing of the sentencing memo:

DOJ on Roger Stone: “This is not what had been briefed to the department,” the official told CNN. “The department believes the recommendation is extreme and excessive and is grossly disproportionate to Stone’s offenses.”

12:50: Zelinsky sends “Zelinsky Withdrawal Motion Draft February 11.pdf” to Neil White and John Sippel at Maryland’s US Attorney’s office, stating,

Dear Neil and John,

Sorry to buy you with an urgent request.

Quick background:

[long paragraph redacted under b5]

1:00: White responds. The first line is redacted under b5. The rest reads,

Jon briefed me about this earlier today. I tried calling you and I am happy to chat this afternoon. I can be reached at [redacted].

1:04: Zelinsky responds to White, cc’ing Roann Nichols, “Neil — on phone with DC now. Will call in a moment.”

1:13: Zelinsky emails Neil White cc’ing Roann Nichols, “Just tried you again. Thanks,”

1:55: Cooney sends an email, with only two periods, to Kravis, with the subject “memo.”

2:02: Kravis forwards the email from Cooney to the other prosecutors.

2:34: Zelinsky receives ECF notice of a letter in support of sentencing.

2:55: Kravis sends Zelinsky an email with the subject line, “Send me your notice?”

2:55:18: Zelinsky responds to Kravis. The first sentence is redacted under b5. The rest says, “JP approved this yesterday. If you see any typos, let me know!” He attaches, “Zelinsky Withdrawal Motion Draft February 11.docx.”

2:59: Zelinsky receives ECF notice of his withdrawal motion, which was filed at 2:58.

2:59:23: Zelinsky emails Cooney, cc’ing the other prosecutors, Withdrawal, attaching, “Zelinsky Withdrawal Final Signed FINAL.pdf”:

Dear JP,

Pursuant to our conversation yesterday and your approval of this filing yesterday, I am now filing the attached withdrawal from the Stone case and resigning as a SAUSA in DC.

2:59: Zelinsky again responds to Kravis with the file, “Zelinsky Withdrawal Motion Draft February 11.docx.”

3:00: Cooney responds to Zelinsky, “I am not approving of you withdrawing from this case right now.”

3:02: Zelinsky forwards Nichols and White the Cooney response, adding:

Dear Roann and Neil,

As discussed, I have filed the withdrawal motion and emailed the public corruption chief JP Cooney. I withdrew just after I sent the email below notifying him. As we discussed, I do not believe he has the power to compel  me to stay in the case. There are currently three attorneys on the docket for the United States. In addition, JP has indicated that Main Justice will file a motion of somekind in the case later today and we will not have the opportunity to do this.

Thanks for all yoru [sic] help.

3:04: Leo Wise responds to Zelinsky, explaining, Attached is a rough redlined draft. Also attached is the case [redacted] is also attached. The subject of the email and the names of the attachment are also redacted.

3:30: News Alerts from Law360 that includes reference to the sentencing memo filed the day before.

3:41: Steven Brill writes the Stone prosecutors urging them to “speak out against improper internal pressure.”

3:55: Zelinsky receives Kravis’ withdrawal motion from ECF; it was filed at 3:54.

4:04: Zelinsky forwards an email from NBC’s Kevin Breuninger asking for a statement on his withdrawal to the press people in Maryland’s US Attorney’s office, telling them, “I’m just going to forward these to you. THanks! Sorry!” Other standard emails he forwarding included one from The Hill, CNN (Katelyn Polantz), CBS, CNN (Wolf Blitzer).

4:04: Zelinsky forwards an email from Reuters’ Brad Heath, with the subject line 44.5, asking if the notice of withdrawal was his own decision; Zelinsky forwarded it to the press people in Maryland’s US Attorney’s office

4:38: Zelinsky receives ECF notice that John Crabb filed an appearance in the case

4:46: Zelinsky receives ECF notice of the revised sentencing memo, which was filed at 4:44

5:01: Marcia Murphy, one of the press people in MD USA, responds Zelinsky regarding an email he forwarded from CNN explaining,

Aaron,

I have responded to all the inquiries you forwarded with something similar to the below statement. I tried to make it clear that I was responding on your behalf, so they wouldn’t think the office was preventing you from making a statement. If you get anymore, I will be happy to respond. Have a good evening. Hope you get some rest! Marcy

5:32: Zelinsky receives Marando’s notice of withdrawal from ECF; it was filed at 5:30.

7:08: Michael Cunningham, in the Maryland US Attorney’s Office, emails the NYT story on the Stone prosecutors withdrawing to Zelinsky, saying, “Very proud of you!”

9:10: Zelinsky responds to Cunningham: “Thanks! Just doing what any of us would have done in the circumstance.”

10:03: Lenzner responds to the Nichols and White email. His response is redacted under b5.

10:21: Zelinsky responds to Lenzner, starting, “Thanks. My MOU is certainly only for the Stone case.” The rest is redacted under b5.

10:36: Zelinsky responds to a thread involving Stuart Sears about a panel on Political Prosecutions involving, among others, Jeannie Rhee (the panel would later get delayed until September). The first part is redacted under b5. It finishes, “Thanks for the kind invitation.”

11:26: Zelinsky forwards an email from Erik Prince’s lawyer, Boies Schiller’s Matthew Schwartz to Michael Marando, explaining, FYI I don’t plan to respond. The email itself reads:

Aaron —

I hope all is well. I couldn’t help but notice the article just published in the Wall Street Journal, which suggests that the Department is on the verge of charging Mr. Prince. What’s going on?

 

Roger Stone Invented a New Cover Story Rather than Defend Himself at Trial

In the wake of Friday’s commutation, I’ve been prepping to write some stuff about Roger Stone I’ve long been planning.

In this post, I’d like to elaborate on a comment I made several times during the trial.

Stone’s defense, such as it existed, consisted of two efforts. Along with ham-handed attempts to discredit witnesses, Stone — as he had always done and did even after the commutation —  denied he had anything to do with “Russia collusion.” In the trial, that amounted to an attempt to claim his lies about WikiLeaks were not material, which, if true, would have undermined the false statements charges against Stone. But that effort failed, in part, because Stone himself raised how the stolen emails got to WikiLeaks early in his HPSCI testimony, thereby making it clear he understood that WikiLeaks, and not just Russia, was included in the scope of HPSCI’s investigation.

More interestingly, however, in Bruce Rogow’s opening argument for Stone, Rogow reversed his client’s claims — made during his HPSCI testimony — to have had an intermediary with WikiLeaks.

Now, the government has said something about Mr. Stone being a braggart. And he did brag about his ability to try to find out what was going on. But he had no intermediary. He found out everything in the public domain.

[snip]

And the first one at paragraph 75, it says that Mr. Stone sought to clarify something about Assange, and that he subsequently identified the intermediary, that’s Mr. Credico, who, by the way, the evidence is going to show was no intermediary, there was no go between, there was no intermediary. Mr. Corsi was not an intermediary. These people were playing Mr. Stone.

And Mr. Stone took the bait. And so that’s why he thought he had an intermediary. There was no intermediary. There were no intermediaries. And the evidence is going to show that. And I think when Mr. Credico testifies, he will confirm that he was not an intermediary.

And what is an intermediary? What is a go-between? An intermediary is someone between me and the other party. And the other party, the way the government has constructed this, was Julian Assange. And there was no intermediary between Mr. Stone and Julian Assange. It’s made up stuff.

Does it play in politics? Does it play in terms of newspaper articles and public? Did Mr. Stone say these things? You saw the clips that are going to be played. We don’t hide from those clips. They occurred. Mr. Stone said these things.

But he was playing others himself by creating for himself that notion that he had some kind of direct contact, which he later on renounced and publicly renounced it and said that is not what I meant, that is not what was happening. And to the extent that anybody thinks that Credico was a direct intermediary, a go-between between Stone and Julian Assange, Mr. Credico will destroy that notion. Mr. Corsi will destroy that notion.

All these people were playing one another in terms of their political machinations, trying to be important people, trying to say that they had more than they really had in terms of value and perhaps value to the committee, I mean, value to the campaign.

That story certainly had its desired effect. Some credulous journalists came in believing that whether Stone had an intermediary or not mattered to the outcome. Those who had reason to discount the possibility that Stone had advance knowledge of the stolen emails grasped on this story (and Jerome Corsi’s unreliability), and agreed that Rogow must have it right, that Stone was really working from public information. For a good deal of the public, then, this story worked. Roger Stone didn’t have any inside track, he was just trying to boost his value to the Trump campaign.

From a narrative standpoint, that defense was brilliant. It had the desired effect of disclaiming any advance knowledge of the hack-and-leak, and a great many people believed it (and still believe it).

From a legal standpoint, though, it was suicidal. It amounted to Roger Stone having his lawyer start the trial by admitting his guilt, before a single witness took the stand.

That’s true partly because the facts made it clear that Randy Credico not only had not tricked Roger Stone, but made repeated efforts, starting well in advance of Stone’s HPSCI testimony, to correct any claim that he was Stone’s intermediary. This is a point Jonathan Kravis made in his closing argument.

Now, the defense would have you believe that Randy Credico is some sort of Svengali or mastermind, that Randy Credico tricked Roger Stone into giving false testimony before the committee; that Randy Credico somehow fooled Roger Stone into believing that Stone’s own statements from August 2016 were actually about Credico. That claim is absurd.

You saw Randy Credico testify during this trial. I ask you, does anyone who saw and heard that man testify during this trial think for even a moment that he is the kind of person who is going to pull the wool over Roger Stone’s eyes. The person that you saw testify is just not the kind of person who is going to fool Roger Stone.

And look at the text messages and the email I just showed you. If Randy Credico is trying to fool Roger Stone about what Roger Stone’s own words meant in August 2016, why is Credico repeatedly texting and emailing Stone to set the record straight, telling him: I’m not the guy, there was someone else in early August.

Kravis also laid out the two times entered into evidence (there are more that weren’t raised at trial) where Stone coordinated his cover story with Corsi. If he really believed this story, Stone might have argued that when Corsi warned Stone that he risked raising more questions by pushing Credico forward as his intermediary, it was just part of Corsi duping him. But while he subpoenaed Corsi, Stone didn’t put him on the stand to testify to that, nor did he ever make such a claim in his defense.

There’s a more important reason why such a defense was insane, from a legal standpoint.

Rogow’s story was that Stone believed that both Credico and Corsi had inside information on the hack-and-leak, and that he was fully and utterly duped by these crafty villains.

If that were true, it would still mean Stone intended to lie. It would still mean that Stone sufficiently believed Corsi really was an intermediary when he testified to HPSCI that he believed he needed to — and did — cover up Corsi’s role. If Stone believed both Corsi and Credico had inside information on the hack-and-leak, it would mean he lied when he claimed he had one and only one interlocutor. If Stone believed both Corsi and Credico really were back channels, it would mean only one false statement charge against him — the one where he claimed Credico was his back channel (Count 3) — would be true. The rest — that he had no emails about Assange (Count 2), that he didn’t make any request of his interlocutor (Count 4), that he had no emails or text messages with his interlocutor (Count 5), and that he didn’t discuss his communication with his interlocutor with the campaign (Count 6) — would still be false.

Rogow’s claim that poor Roger Stone was too stupid to realize Corsi wasn’t really an interlocutor would suggest that Stone nevertheless acted on that false information, and successfully obstructed the HPSCI investigation anyway. Rogow was effectively arguing that Stone was stupid and guilty.

Moreover, if Stone really came to realize he had been duped, as Rogow claimed, then it would mean Stone had his lawyers write multiple follow-ups with HPSCI — including as late as December 2018 — yet never asked them to correct the record on this point.

(Compare that with Michael Caputo, who did correct the record when he learned Mueller knew of his ties with Henry Greenberg in his FBI interview.)

Those who bought this story did so because they believed Stone was all about claiming credit, so much so he was willing to face prison time rather than correct the record. But Stone sustained this story even at a time when Stone was explicitly avoiding making any claim he deserved credit for Trump’s victory.

So long as you don’t think through how insane this defense strategy was, it made a nice story, one that (as Stone’s original HPSCI testimony had) disclaimed any role in optimizing the fruits of the Russian operation and thereby protected Donald Trump. But that’s a narrative, not a legal defense, and as a legal defense this effort was absolutely insane.

That doesn’t mean we know precisely what secret Roger Stone was willing to risk prison time to hide. But Stone’s confession of guilt as a defense strategy makes it far more likely that he was — and is — still trying to keep that secret.

How the Concord Management Prosecution Fell Apart

The frothy right and anti-Trump left both politicized DOJ’s decision to dismiss the single count of conspiracy charged against Concord Management and Concord Catering in the Russian troll indictment that Mueller’s team obtained on February 16, 2018. The right — including the President — and the alt-Left are falsely claiming the prosecution against all the trolls fell apart and suggesting this undermines the claims Russia tampered in the 2016 election.

The mainstream left speculated, without any apparent basis, that Bill Barr deliberately undermined the prosecution by classifying some of the evidence needed to prove the case.

The politicization of the outcome is unfortunate, because the outcome raises important policy questions about DOJ’s recent efforts to name-and-shame nation-state activities in cyberspace.

The IRA indictment intersects with a number of important policy discussions

The decision to indict the Internet Research Agency, its owner Yevgeniy Prigozhin, two of the shell companies he used to fund Internet Research Agency (Concord Management and Concord Catering, the defendants against which charges were dropped), and twelve of the employees involved in his troll operations intersects with three policy approaches adopted in bipartisan fashion in recent years:

  • The use of indictments and criminal complaints to publicly attribute and expose the methods of nation-state hackers and the vehicles (including shell companies) they use.
  • A recent focus on Foreign Agents Registration Act compliance and prosecutions in an attempt to crack down on undisclosed foreign influence peddling.
  • An expansive view of US jurisdiction, facilitated but not limited to the role of the US banking system in global commerce.

There is — or should be — more debate about all of these policies. Some of the prosecutions the US has pursued (one that particularly rankles Russia is of their Erik Prince equivalent, Viktor Bout, who was caught in a DEA sting selling weapons to FARC) would instill outrage if other countries tried them with US citizens. Given the way Trump has squandered soft power, that is increasingly likely. While DOJ has obtained some guilty pleas in FARA cases (most notably from Paul Manafort, but Mike Flynn also included his FARA violations with Turkey in his Statement of the Offense), the FARA prosecutions of Greg Craig (which ended in acquittal) and Flynn’s partner Bijan Kian (which ended in a guilty verdict that Judge Anthony Trenga overturned) have thus far faced difficulties. Perhaps most problematic of all, the US has indicted official members of foreign state intelligence services for activities (hacking), though arguably not targets (private sector technology), that official members of our own military and intelligence services also hack. That’s what indictments (in 2014 for hacks targeting a bunch of victims, most of them in Pittsburgh and this year for hacking Equifax) against members of China’s People’s Liberation Army and Russia’s military intelligence GRU (both the July 2018 indictment for the hack-and-leak targeting the 2016 election and an October 2018 one for targeting anti-doping organizations) amount to. Those indictments have raised real concerns about our intelligence officers being similarly targeted or arrested without notice when they travel overseas.

The IRA indictment is different because, while Prigozhin runs numerous mercenary activities (including his Wagner paramilitary operation) that coordinate closely with the Russian state, his employees work for him, not the Russian state. But the Yahoo indictment from 2017 included both FSB officers and criminal hackers and a number of the hackers DOJ has otherwise indicted at times work for the Russian government. So even that is not unprecedented.

The indictment did serve an important messaging function. It laid out the stakes of the larger Russian investigation in ways that should have been nonpartisan (and largely were, until Concord made an appearance in the courts and started trolling the legal system). It asserted that IRA’s efforts to thwart our electoral and campaign finance functions amounted to a fraud against the United States. And it explained how the IRA effort succeeded in getting Americans to unwittingly assist the Russian effort. The latter two issues, however, may be central to the issues that undid the prosecution.

Make no mistake: the IRA indictment pushed new boundaries on FARA in ways that may raise concerns and are probably significant to the decision to drop charges against Concord. It did so at a time when DOJ’s newfound focus on FARA was not yet well-established, meaning DOJ might have done it differently with the benefit of the lessons learned since early 2018. Here’s a shorter and a longer version of an argument from Joshua Fattal on this interpretation of FARA. Though I think he misses something about DOJ’s argument that became clear (or, arguably, changed) last fall, that DOJ is not just arguing that the trolls themselves are unregistered foreign agents, but that they tricked innocent Americans into being agents. And DOJ surely assumed it would likely never prosecute any of those charged, unless one of the human targets foolishly decided to vacation in Prague or Spain or any other country with extradition treaties with the US. So the indictment was a calculated risk, a risk that may not have paid off.

But that’s why it’s worth understanding the decision to drop the prosecution based off the record, rather than presumptions about DOJ and the Russia investigation.

Just the funding side of the conspiracy to defraud indictment got dropped

The first step to understanding why DOJ dropped the charges is to understand what the two Concord entities were charged with. The indictment as a whole charged eight counts:

  • Conspiracy to defraud the United States for preventing DOJ and FEC from policing our campaign finance and election system (and State for issuing visas)
  • Conspiracy to commit wire fraud and bank fraud by using stolen identities to open financial accounts with which to evade PayPal’s security
  • Six counts of aggravated identity theft for stealing the identities of Americans used in the wire and bank fraud

The wire and bank fraud charges remain untouched by DOJ’s decision. If any of those defendants shows up in court, DOJ remains fully prepared to hold them accountable for stealing Americans’ identities to thwart PayPal’s security protocols so as to fool Americans into doing Russia’s work. Such an identity theft prosecution would not rely on the aggressive FARA theory the Concord charge does.

Even still, most of the conspiracy to defraud (ConFraudUS) charge remains.

The two Concord entities were only named in the ConFraudUS charge. The overt acts involving Concord entail funding the entire operation and hiding those payments by laundering them through fourteen different affiliates and calling the payments “software support.”

3. Beginning as early as 2014, Defendant ORGANIZATION began operations to interfere with the U.S. political system, including the 2016 U.S. presidential election. Defendant ORGANIZATION received funding for its operations from Defendant YEVGENIY VIKTOROVICH PRIGOZHIN and companies he controlled, including Defendants CONCORD MANAGEMENT AND CONSULTING LLC and CONCORD CATERING (collectively “CONCORD”). Defendants CONCORD and PRIGOZHIN spent significant funds to further the ORGANIZATION’s operations and to pay the remaining Defendants, along with other uncharged ORGANIZATION employees, salaries and bonuses for their work at the ORGANIZATION.

[snip]

11. Defendants CONCORD MANAGEMENT AND CONSULTING LLC (Конкорд Менеджмент и Консалтинг) and CONCORD CATERING are related Russian entities with various Russian government contracts. CONCORD was the ORGANIZATION’s primary source of funding for its interference operations. CONCORD controlled funding, recommended personnel, and oversaw ORGANIZATION activities through reporting and interaction with ORGANIZATION management.

a. CONCORD funded the ORGANIZATION as part of a larger CONCORD-funded interference operation that it referred to as “Project Lakhta.” Project Lakhta had multiple components, some involving domestic audiences within the Russian Federation and others targeting foreign audiences in various countries, including the United States.

b. By in or around September 2016, the ORGANIZATION’s monthly budget for Project Lakhta submitted to CONCORD exceeded 73 million Russian rubles (over 1,250,000 U.S. dollars), including approximately one million rubles in bonus payments.

c. To conceal its involvement, CONCORD labeled the monies paid to the ORGANIZATION for Project Lakhta as payments related to software support and development. To further conceal the source of funds, CONCORD distributed monies to the ORGANIZATION through approximately fourteen bank accounts held in the names of CONCORD affiliates, including Glavnaya Liniya LLC, Merkuriy LLC, Obshchepit LLC, Potentsial LLC, RSP LLC, ASP LLC, MTTs LLC, Kompleksservis LLC, SPb Kulinariya LLC, Almira LLC, Pishchevik LLC, Galant LLC, Rayteks LLC, and Standart LLC.

Concord was likely included because it tied Prigozhin into the conspiracy, and through him, Vladimir Putin. That tie has been cause for confusion and outright disinformation during the course of the prosecution, as during pretrial motions there were two legal fights over whether DOJ could or needed to say that the Russian state had a role in the operation. Since doing so was never necessary to legally prove the charges, DOJ didn’t fight that issue, which led certain useful idiots to declare, falsely, that DOJ had disclaimed any tie, which is either absurd misunderstanding of how trials work and/or an outright bad faith representation of the abundant public evidence about the ties between Prigozhin and Putin.

By including Concord, the government asserted that it had proof not just that IRA’s use of fake identities had prevented DOJ and the FEC from policing electoral transparency, but also that Putin’s go-to guy in the private sector had used a series of shell companies to fund that effort.

By dropping the charges against the shell companies, that link is partly broken, but the overall ConFraudUS charge (and the charge against Prigozhin) remains, and all but one of the defendants are now biological persons who, if they mounted a defense, would also face criminal penalties that might make prosecution worth it. (I believe the Internet Research Agency has folded as a legal institution, so it would not be able to replay this farce.)

Going to legal war with a shell company

As noted, the indictment included two shell companies — Concord Management and Concord Catering — among the defendants in a period when Russia has increasingly pursued lawfare to try to discredit our judicial system. That’s precisely what happened: Prigozhin hired lawyers who relished trolling the courts to try to make DOJ regret it had charged the case.

As ceded above, DOJ surely didn’t expect that anyone would affirmatively show up to defend against this prosecution. That doesn’t mean they didn’t have the evidence to prove the crimes — both the first level one that bots hid their identities to evade electoral protections, and the second level conspiracy that Prigozhin funded all that through some shell companies. But it likely means DOJ didn’t account for the difficulties of going to legal war against a shell company.

One of the two explanations the government offered for dropping the prosecution admits that the costs of  trying a shell company have come to outweigh any judicial benefits.

When defense counsel first appeared on behalf of Concord, counsel stated that they were “authorized” to appear and “to make representations on behalf” of Concord, and that Concord was fully subjecting itself to the Court’s jurisdiction. 5/9/18 Tr. 5 (ECF No. 9). Though skeptical of Concord’s (but not counsel’s) asserted commitments at the initial appearance, the government has proceeded in good faith—expending the resources of the Department of Justice and other government agencies; incurring the costs of disclosing sensitive non-public information in discovery that has gone to Russia; and, importantly, causing the Court to expend significant resources in resolving dozens of often-complex motions and otherwise ensuring that the litigation has proceeded fairly and efficiently. Throughout, the government’s intent has been to prosecute this matter consistent with the interests of justice. As this case has proceeded, however, it has become increasingly apparent to the government that Concord seeks to selectively enjoy the benefits of the American criminal process without subjecting itself to the concomitant obligations.

From the start, there were ongoing disputes about whether the shell company Concord Management was really showing up to defend against this conspiracy charge. On May 5, 2018, DOJ filed a motion aiming to make sure that — given the uncertainty that Concord had been properly served with a summons, since, “Acceptance of service is ordinarily an indispensable precondition providing assurance that a defendant will submit to the jurisdiction of the court, obey its orders, and comply with any judgment.” Concord’s lawyers responded by complaining that DOJ was stalling on extensive discovery requests Concord made immediately.

Next, an extended and recurrent fight over a protective order for discovery broke out. Prigozhin was personally charged in the indictment along with his shell company. The government tried to prevent defense attorneys from sharing discovery deemed “sensitive” with officers of Concord (Prighozhin formally made himself an officer just before this effort started) who were also defendants without prior approval or at least a requirement such access to take place in the United States, accompanied by a defense attorney lawyer. That fight evolved to include a dispute about whether “sensitive” discovery was limited to just Personally Identifiable Information or included law enforcement sensitive information, too (unsurprisingly, Concord said it only wanted the latter and even demanded that DOJ sift out the former). The two sides established a protective order at start. But in December, after the government had delivered 4 million documents, of which it deemed 3.2 million “sensitive,” Concord renewed their demand that Prighozhin have access to discovery. They trollishly argued that only Prigozhin could determine whether the proper translation of the phrase “Putin’s chef” meant he was the guy who cooked for Putin or actually Putin’s boss. At this point, the US started filing sealed motions opposing the discovery effort, but did not yet resort to the Classified Information Procedures Act, meaning they still seemed to believe they could prove this case with unclassified, albeit sensitive, evidence.

Shortly thereafter, DOJ revealed that nothing had changed to alter the terms of the original protective order, and in the interim, some of the non-sensitive discovery (that is, the stuff that could be shared with Prigozhn) had been altered and used in a disinformation campaign.

The subsequent investigation has revealed that certain non-sensitive discovery materials in the defense’s possession appear to have been altered and disseminated as part of a disinformation campaign aimed (apparently) at discrediting ongoing investigations into Russian interference in the U.S. political system. These facts establish a use of the non-sensitive discovery in this case in a manner inconsistent with the terms of the protective order and demonstrate the risks of permitting sensitive discovery to reside outside the confines of the United States.

With a biological defendant, such a stunt might have gotten the defendant thrown in jail (and arguably, this is one of two moments when Judge Dabney Friedrich should have considered a more forceful response to defiance of her authority). Here, though, the prosecution just chugged along.

Perhaps the best proof that Prigozhin was using Concord’s defense as an intelligence-collecting effort came when, late last year, Concord demanded all the underlying materials behind Treasury’s Office of Foreign Assets Control decision to sanction Prigozhin and his companies. As Friedrich noted in her short notation denying the request, OFAC’s decision to sanction Prigozhin had nothing to do with the criminal charges against Concord. Nevertheless, Prigozhin used the indictment of his shell companies in an attempt to obtain classified information on the decision leading to sanctions being imposed on him.

Prigozhin’s goal of using his defense as a means of learning the US government’s sources and methods was clear from the first discovery request. That — and his unwavering efforts to continue the trolling operations — likely significantly influenced the later classification determination that contributed to DOJ dropping the case.

The government intended to try this case with unclassified information

That’s the other cited reason the government dismissed this case: because a classification determination made some of the evidence collected during the investigation unavailable as unclassified information.

[A]s described in greater detail in the classified addendum to this motion, a classification determination bearing on the evidence the government properly gathered during the investigation, limits the unclassified proof now available to the government at trial. That forces the prosecutors to choose between a materially weaker case and the compromise of classified material.

At the beginning of this case, the government said that all its evidence was unclassified, but that much of it was sensitive, either for law enforcement reasons or the privacy of victims in the case.

As described further in the government’s ex parte affidavit, the discovery in this case contains unclassified but sensitive information that remains relevant to ongoing national security investigations and efforts to protect the integrity of future U.S. elections. At a high level, the sensitive-but-unclassified discovery in this case includes information describing the government’s investigative steps taken to identify foreign parties responsible for interfering in U.S. elections; the techniques used by foreign parties to mask their true identities while conducting operations online; the relationships of charged and uncharged parties to other uncharged foreign entities and governments; the government’s evidence-collection capabilities related to online conduct; and the identities of cooperating individuals and, or companies. Discovery in this case contains sensitive information about investigative techniques and cooperating witnesses that goes well beyond the information that will be disclosed at trial.

Nevertheless, after the very long and serial dispute about how information could be shared with the defendant noted above (especially Prigozhin, as an officer of Concord), later in the process, something either became classified or the government decided they needed to present evidence they hadn’t originally planned on needing.

This is one way, Barr critics suggest, that the Attorney General may have sabotaged the prosecution: by deeming information prosecutors had planned to rely on classified, and therefore making key evidence inaccessible for use at trial.

That’s certainly possible! I don’t rule out any kind of maliciousness on Barr’s part. But I think the available record suggests that the government made a good faith classification decision, possibly in December 2019 or January 2020, that ended up posing new difficulties for proving the case at trial. One possibility is that, in the process of applying a very novel interpretation of FARA to this prosecution, the types of evidence the government needed to rely on may have changed. It’s also possible that Prigozhin’s continued trolling efforts — and maybe even evidence that his trolling operations had integrated lessons learned from discovery to evade detection — made sharing heretofore sensitive unclassified information far more damaging to US national security (raising its classification level).

As discussed below, the record also suggests that the government tried to access some evidence via other means, by subpoenaing it from Concord. But Concord’s ability to defy subpoenas without punishment (which gets back to trying to prosecute a shell company) prevented that approach.

The fight over what criminalizes a troll conspiring to fool DOJ (and FEC)

Over the course of the prosecution, the theory of the ConFraudUS conspiracy either got more detailed (and thereby required more specific kinds of evidence to prove) or changed. That may have contributed to changing evidentiary requirements.

Even as the dispute about whether Concord was really present in the court fighting these charges, Concord’s lawyers challenged the very novel application of FARA by attacking the conspiracy charge against it. This is precisely what you’d expect any good defense attorney to do, and our judicial system guarantees any defendant, even obnoxious Russian trolls who refuse to actually show up in court, a vigorous defense, which is one of the risks of indicting foreign corporate persons.

To be clear: the way Concord challenged the conspiracy charge was often frivolous (particularly in the way that Concord’s Reed Smith lawyers, led by Eric Dubelier, argued it). The government can charge a conspiracy under 18 USC § 371 without proving that the defendant violated the underlying crimes the implementation of which the conspiracy thwarted (as Friedrich agreed in one of the rulings on Concord’s efforts). And on one of the charged overt acts — the conspiracy to hide the real purpose of two reconnaissance trips to the US on visa applications — Concord offered only a half-hearted defense; at trial DOJ would likely have easily proven that when IRA employees came to the US in advance of the operation, they lied about the purpose of their travel to get a visa.

That said, while Concord never succeeded in getting the charges against it dismissed, it forced DOJ to clarify (and possibly even alter) its theory of the crime.

That started as part of a motion to dismiss the indictment based on a variety of claims about the application of FARA to conspiracy, arguing in part that DOJ had to allege that Concord willfully failed to comply with FECA and FARA. The government argued that that’s not how a ConFraudUS charge works — that the defendants don’t have to be shown to be guilty of the underlying crimes. Concord replied by claiming that its poor trolls had no knowledge of the government functions that their secrecy thwarted. Friedrich posed two questions about how this worked.

Should the Court assume for purposes of this motion that neither Concord nor its coconspirators had any legal duty to report expenditures or to register as a foreign agent?

Specifically, should the Court assume for purposes of this motion that neither Concord nor its co-conspirators knowingly or unknowingly violated any provision, civil or criminal, of FECA or FARA by failing to report expenditures or by failing to register as a foreign agent?

The government responded by arguing that whether or not the Russian trolls had a legal duty to register, their deception meant that regulatory agencies were still thwarted.

As the government argued in its opposition and at the motions hearing, the Court need not decide whether the defendants had a legal duty to file reports with the FEC or to register under FARA because “the impairment or obstruction of a governmental function contemplated by section 371’s ban on conspiracies to defraud need not involve the violation of a separate statute.” United States v. Rosengarten, 857 F.2d 76, 78 (2d Cir. 1988); Dkt. No. 56, at 9-13. Moreover, the indictment alleges numerous coordinated, structured, and organized acts of deception in addition to the failure to report under FECA or to register under FARA, including the use of false social media accounts, Dkt. No. 1 ¶¶ 32-34, 36, the creation and use of U.S.- based virtual computer infrastructure to “mask[] the Russian origin and control” of those false online identities, id. ¶¶ 5, 39, and the use of email accounts under false names, id. ¶ 40. The indictment alleges that a purpose of these manifold acts of deception was to frustrate the lawful government functions of the United States. Id. ¶ 9; see also id. ¶ 5 (alleging that U.S.-based computer infrastructure was used “to avoid detection by U.S. regulators and law enforcement”); id. ¶ 58 (alleging later obstructive acts that reflect knowledge of U.S. regulation of conspirators’ conduct). Those allegations are sufficient to support the charge of conspiracy to defraud the United States regardless of whether the defendants agreed to engage in conduct that violated FECA or FARA because the “defraud clause does not depend on allegations of other offenses.”

Friedrich ruled against the trolls, except in doing so stated strongly that the government had conceded that they had to have been acting to impair lawful government functions, though not which specific relevant laws were at issue.

Although the § 371 conspiracy alleged does not require willfulness, the parties’ disagreement may be narrower than it first appears. The government concedes that § 371 requires the specific intent to carry out the unlawful object of the agreement—in this case, the obstruction of lawful government functions. Gov’t’s Opp’n at 16 (“Because Concord is charged with conspiring to defraud the United States, . . . the requisite mental state is the intent of impairing, obstructing, or defeating the lawful function of any department of government through deception.” (internal quotation marks omitted)). Further, the government agrees that to form the intent to impair or obstruct a government function, one must first be aware of that function. See Hr’g Tr. at 40 (“[Y]ou can’t act with an intent to impair a lawful government function if you don’t know about the lawful government function.”). Thus, Concord is correct—and the government does not dispute—that the government “must, at a minimum, show that Concord knew what ‘lawful governmental functions’ it was allegedly impeding or obstructing.” Def.’s Mot. to Dismiss at 22; Def.’s Reply at 5. Here, as alleged in the indictment, the government must show that Concord knew that it was impairing the “lawful functions” of the FEC, DOJ, or DOS “in administering federal requirements for disclosure of foreign involvement in certain domestic activities.” Indictment ¶ 9. But Concord goes too far in asserting that the Special Counsel must also show that Concord knew with specificity “how the relevant laws described those functions.” Def.’s Mot. to Dismiss at 22; Def.’s Reply at 5. A general knowledge that U.S. agencies are tasked with collecting the kinds of information the defendants agreed to withhold and conceal would suffice.

Then Concord shifted its efforts with a demand for a Bill of Particulars. The demand itself — and the government’s opposition — included a demand for information about co-conspirators and VPNs, yet another attempt to get intelligence rather than discovery. But Friedrich granted the motion with respect to the application of FECA and FARA.

In other words, it will be difficult for the government to establish that the defendants intended to use deceptive tactics to conceal their Russian identities and affiliations from the United States if the defendants had no duty to disclose that information to the United States in the first place. For that reason, the specific laws—and underlying conduct—that triggered such a duty are critical for Concord to know well in advance of trial so it can prepare its defense.

The indictment alleges that the defendants agreed to a course of conduct that would violate FECA’s and FARA’s disclosure requirements, see Indictment ¶¶ 7, 25–26, 48, 51, and provides specific examples of the kinds of expenditures and activities that required disclosure, see id. ¶¶ 48– 57. Concord, 347 F. Supp. 3d at 50. But the indictment does not cite the specific statutory and regulatory disclosure requirements that the defendants violated. Nor does it clearly identify which expenditures and activities violated which disclosure requirements. Accordingly, the Court will order the government to:

  • Identify any statutory or regulatory disclosure requirements whose administration the defendants allegedly conspired to impair, along with supporting citations to the U.S. Code, Code of Federal Regulations, or comparable authority.
  • With respect to FECA, identify each category of expenditures that the government intends to establish required disclosure to the FEC. See, e.g., Indictment ¶ 48 (alleging that the defendants or their co-conspirators “produce[d], purchase[d], and post[ed] advertisements on U.S. social media and other online sites expressly advocating for the election of then-candidate Trump or expressly opposing Clinton”) (emphasis added)). The government must also identify for each category of expenditures which disclosure provisions the defendants or their co-conspirators allegedly violated.
  • With respect to FARA, identify each category of activities that the government intends to establish triggered a duty to register as a foreign agent under FARA. See, e.g., id. ¶ 48 (same); id. ¶ 51 (alleging that the defendants or their coconspirators “organized and coordinated political rallies in the United States” (emphasis added)). The government must also identify for each category of activities which disclosure provisions the defendants or their co-conspirators allegedly violated.

In a supplemental motion for a bill of particulars, Concord asked which defendants were obliged to file with DOJ and FEC.

That came to a head last fall. In a September 16, 2019 hearing, both sides and Friedrich discussed at length precisely what the legal theory behind the conspiracy was. On Friedrich’s order, the government provided Concord a list of people (whose names were redacted) that,

the defendants conspired to cause some or all of the following individuals or organizations to act as agents of a foreign principal while concealing from those individuals that they were acting as agents of a foreign principal [who should register under FARA].

That is, whether or not this was the original theory of the case, by last fall the government made it clear that it wasn’t (just) Prigozhin or his trolls who needed to register; rather, it was (also) the Americans who were duped into acting and spending money on their behalf. But because they didn’t know they were working on behalf of a foreign principal, they did not register.

Meanwhile, in a motion for clarification, the government argued that it had always intended to include foreigners spending money in the indictment. Friedrich held that that had not actually been included in the original indictment.

These two issues — the claim that duped Americans would have had to register if they knew they were working with a foreign agent, and the need to strengthen the assertion about foreign campaign expenditures — forced the government to go back and supersede the original indictment.

DOJ obtains a superseding indictment with more specific (and potentially new) theories of the case

On November 8, 2019, the government obtained a superseding indictment to include language about foreign donations that Friedrich had ruled was not in the original indictment and language covering the duped Americans who had unknowingly acted as agents of Russian trolls.

New language in the superseding indictment provided more detail of reporting requirements.

¶1 U.S. law also requires reporting of certain election-related expenditures to the Federal Election Commission.

[snip]

U.S. also imposes an ongoing requirement for such foreign agents to register with the Attorney General.

The paragraph explaining the means of the ConFraudUS added detail about what FEC, DOJ, and State functions the trolls’ deceit had thwarted.

¶7 In order to carry out their activities to interfere in the U.S. political and electoral processes without detection of their Russian affiliation, Defendants conspired to obstruct through fraud and deceit lawful functions of the United States government in monitoring, regulating, and enforcing laws concerning foreign influence on and involvement in U.S. elections and the U.S. political system. These functions include (a) the enforcement of the statutory prohibition on certain election-related expenditures by foreign nationals; (b) the enforcement of the statutory requirements for filing reports in connection with certain election-related expenditures; (c) the enforcement of the statutory ban on acting as an unregistered agent of a foreign principal in the United States; (d) the enforcement of the statutory requirements for registration as an agent of a foreign principal (e) the enforcement of the requirement that foreign national seeking entry into the United States provide truthful and accurate information to the government. The defendants conspired to do so by obtaining visas through false and fraudulent statements, camouflaging their activities by foreign nationals as being conducted by U.S. persons, making unlawful expenditures and failing to report expenditures in connection with the 2016 U.S. presidential election, and failing to register as foreign agents carrying out political activities within the United States, and by causing others to take these actions.

These allegations were repeated in ¶9 in the section laying out the ConFraudUs count.

The superseding indictment added a section describing what FEC and DOJ do.

¶25 One of the lawful functions of the Federal Election Commission is to monitor and enforce this prohibition. FECA also requires that individuals or entities who make certain independent expenditures in federal elections report those expenditures to the Federal Election Commission. Another lawful government function of the Federal Election Commission is to monitor and enforce this reporting requirement.

[snip]

¶26 The U.S. Department of Justice enforces the Foreign Agent Registration Act (“FARA”), which makes it illegal to act in the United States as an “agent of a foreign principal,” as defined at Title 22, United States Code, Section 661(c), without following certain registration, reporting, and disclosure requirements established by the Act. Under FARA, the term “foreign principal” includes foreign non-government individuals and entities. FARA requires, among other things, that persons subject to its requirements submit periodic registration statements containing truthful information about their activities and income earned from them. One of the lawful government functions of the Department of Justice is to monitor and enforce this registration, reporting, and disclosure regime.

In perhaps the most interesting addition, the superseding indictment also added language to include the actions of unwitting Americans.

¶48 …and caused unwitting persons to produce, purchase, and post advertisements on U.S. social media and other online sites expressly advocating for the election of then-candidate Trump or expressly opposing Clinton. Defendants and their co-conspirators did not report these expenditures to the Federal Election Commission, or register as foreign agents with the U.S. Department of Justice, nor did any of the unwitting persons they caused to engage in such activities.

The superseding indictment repeated this “unwitting” language in ¶51.

This superseding indictment is significant for two reasons, given the dismissal of the count against the two Concord defendants. First, the possibly changed theory of the conspiracy may have changed what evidence the government needed to prove the crime. For example, it may be that DOJ has evidence of IRA employees acknowledging, for the period of this indictment, that spending money on these activities was illegal, whether or not they knew they had to report such expenditures. It may be that DOJ has evidence of communications between the trolls and actual Americans they otherwise wouldn’t have had to rely on. It may be that DOJ has evidence about the regulatory knowledge of those same Americans about their own reporting obligations. Some of this evidence might well be classified.

Just as importantly, if Bill Barr wanted to jettison this prosecution, he could have done so last November by refusing to permit the superseding indictment. That likely would have undermined the case just as surely (and might have led Friedrich to dismiss it herself), and would have been far better for Trump’s messaging. Moreover, from that point in time, it would have been clear that trial might introduce evidence of how three Trump campaign officials coordinated (unknowingly) with the Russian trolls, something bound to embarrass Trump even if it posed no legal hazard. If Barr had wanted to undermine the prosecution to benefit Trump, November would have been the optimal time to do that, not February and March.

While it’s not clear whether this superseding indictment changed certain evidentiary challenges or not, three key strands of activity that seem to have resulted in the dismissal started only after the superseding: an effort to authenticate digital evidence on social media activity, an effort to subpoena some of that same evidence, and the CIPA process to try to substitute for classified information.

The government goes to some lengths to try to pre-approve normally routine evidence

The last of those efforts, chronologically, may hint at some of the evidentiary issues that led DOJ to drop the case.

In a motion submitted on February 17, the government sought to admit a great deal of the social media and related forensic data in the case. In many trials, this kind of evidence is stipulated into evidence, but here, Concord had been making it clear it would challenge the evidence at trial. So the government submitted a motion in limine to try to make sure it could get that evidence admitted in advance.

Among the issues raised in the motion was how the government planned to authenticate the IP addresses that tied the IRA trolls to specific Facebook and Twitter accounts and other members of the conspiracy (Prigozhin, Concord, and the interim shell companies) to each other. The government redacted significant sections of the filing describing how it intended to authenticate these ties (see, for example, the redaction on page 8, which by reference must discuss subscriber information and IP addresses, and footnote 7 on page 9, the redaction pertaining to how they were going to authenticate emails on page 16, the very long redaction on how they would authenticate emails between IRA and Concord starting on page 17, and the very long redaction on how they were going to authenticate Prigozhin to the IRA starting on page 21).

Concord got special permission to write an overly long 56-page response. Some of it makes it clear they’re undermining the government’s efforts to assert just that, for example on IP addresses.

IP addresses, subscriber information, and cookie data are not self-authenticating. The first link in the government’s authentication argument is that IP addresses,6 subscriber information, and cookie data are self-authenticating business records under Rules 803(6) and 902(11). But the cases the government cites are easily distinguishable and undercut its argument.

6 The IP addresses do not link an account to a specific location or fixed address. For example, for the Russian IP addresses the government indicates that they were somewhere within the city of St. Petersburg, Russia.

[snip]

It should come as no surprise then, given the lack of reliability and untrustworthiness in social media evidence such as that the government seeks to introduce, that the case law forecloses the government’s facile effort at authentication of content here. Unlike Browne, Lewisbey, and the other cases cited above, the government has offered no social media accounts bearing the name of any alleged conspirator and no pictures appearing to be a conspirator adorning such page.7 Nor has the government pointed to a single witness who can testify that she saw a conspirator sign up for the various social media accounts or send an email, or who can describe patterns of consistency across the various digital communications to indicate they come from the same source.

7 The government has indicated to Concord that it intends to introduce at trial Fed. R. Evid. 1006 summaries of IP address records, apparently to create the link between the social media accounts and IRA that is not addressed in the motion. See Ex. B, Jan. 6, 2020 letter. Despite repeated requests from undersigned counsel, the government has identified the 40 social media accounts for it intends to summarize but has not provided the summaries or indicated when it will do so.

Some of this is obviously bullshit, particularly given the government’s contention, elsewhere, that Concord (or IRA, if it was a typo) had dedicated IP addresses. Mostly, though, it appears to have been an attempt to put sand in the wheels of normal criminal prosecution by challenging stuff that is normally routine. That doesn’t mean it’s improper, from a defense standpoint. But given how often DOJ’s nation-state indictments rely on such forensic evidence, it’s a warning about potential pitfalls to them.

The government resorts to CIPA

Even while the government had originally set out to prove this case using only unclassified information, late in the process, it decided it needed to use the Classified Information Procedures Act. That process is where one would look for any evidence that Barr sabotaged the prosecution by classifying necessary evidence (though normally the approval for CIPA could come from Assistant Attorney General for National Security Division John Demers, who is not the hack that Barr is).

In October 2019, Friedrich had imposed a deadline for CIPA if the government were going to use it, of January 20, 2020.

On December 17, the government asked for a two week delay, “to ensure appropriate coordination within the Executive Branch that must occur prior to the filing of the motion,” a request Friedrich denied (even though Concord did not oppose it). This was likely when the classification determination referenced in the motion to withdraw was debated, given that such determinations would dictate what prosecutors had to do via CIPA.

On January 10, 2020, the government filed its first motion under CIPA Section 4, asking to substitute classified information for discovery and use at trial. According to the docket, Friedrich discussed CIPA issues at a hearing on January 24. Then on January 29 and February 10, she posted classified orders to the court security officer, presumably as part of the CIPA discussion.

On February 13, the government asked for and obtained a one-day extension to file a follow-up CIPA filing, from February 17 to February 18, “to complete necessary consultation within the Executive Branch regarding the filing and to ensure proper supervisory review.” If Barr intervened on classification issues, that’s almost certainly when he did, because this happened days after Barr intervened on February 11 in Roger Stone’s sentencing and after Jonathan Kravis, who had been one of the lead prosecutors in this case as well, quit in protest over Barr’s Stone intervention. At the very least, in the wake of that fiasco, Timothy Shea made damn sure he ran his decision by Barr. But the phrase, “consultation within the Executive Branch,” certainly entertains consultation with whatever agency owned the classified information prosecutors were deciding whether they could declassify (and parallels the language used in the earlier request for a filing extension). And Adam Jed, who had been part of the Mueller team, was added to the team not long before this and remained on it through the dismissal, suggesting nothing akin to what happened with Stone happened here.

The government submitted its CIPA filing on the new deadline of February 18, Friedrich issued an order the next day, the government filed another CIPA filing on February 20, Friedrich issued another order on February 28.

Under CIPA, if a judge rules that evidence cannot be substituted, the government can either choose not to use that evidence in trial or drop the prosecution. It’s likely that Friedrich ruled that, if the government wanted to use the evidence in question, they had to disclose it to Concord, including Prigozhin, and at trial. In other words, that decision — and the two earlier consultations (from December to early January, and then again in mid-February) within the Executive Branch — are likely where classification issues helped sink the prosecution.

It’s certainly possible Bill Barr had a key role in that. But there’s no explicit evidence of it. And there’s abundant reason to believe that Prigozhin’s extensive efforts to use the prosecution as an intelligence-gathering exercise both for ongoing disinformation efforts and to optimize ongoing trolling efforts was a more important consideration. Barr may be an asshole, but there’s no evidence in the public record to think that in this case, Prigozhin wasn’t the key asshole behind a decision.

DOJ attempts to treat Concord as a legit party to the court’s authority

Even before that CIPA process started playing out, beginning on December 3, the government pursued an ultimately unsuccessful effort to subpoena Concord. This may have been an attempt to obtain via other means evidence that either had been obtained using means that DOJ had since decided to classify or the routine authentication of which Concord planned to challenge.

DOJ asked to subpoena a number of things that would provide details of how Concord and Prigozhin personally interacted with the trolls. Among other requests, the government asked to subpoena Concord for the IP addresses it used during the period of the indictment (precisely the kind of evidence that Concord would later challenge).

3. Documents sufficient to identify any Internet Protocol address used by Concord Management and Consulting LLC from January 1, 2014 to February 1, 2018.

Concord responded with a load of absolute bullshit about why, under Russian law, Concord could not comply with a subpoena. Judge Friedrich granted the some of the government’s request (including for IP addresses), but directed the government to more narrowly tailor its other subpoena requests.

On December 20, the government renewed its request for other materials, providing some evidence of why it was sure Concord had responsive materials. Concord quickly objected again, again wailing mightily. In its reply, the government reminded Friedrich that she had the ability to order Concord to comply with the subpoena — and indeed, had gotten Concord’s assurances it would comply with orders of the court when it first decided to defend against the charges. It even included a declaration from an expert on Russian law, Paul Stephan, debunking many of the claims Concord had made about Russian law. Concord wailed, again. On January 24, Friedrich approved the 3 categories of the subpoena she had already approved. On January 29, the government tried again, narrowing the request even to — in one example — specific days.

Calendar entries reflecting meetings between Prigozhin and “Misha Lakhta” on or about January 27, 2016, February 1, 2016, February 2, 2016, February 14, 2016, February 23, 2016, February 29, 2016, May 22, 2016, May 23, 2016, May 28, 2016, May 29, 2016, June 7, 2016, June 27, 2016, July 1, 2016, September 22, 2016, October 5, 2016, October 23, 2016, October 30, 2016, November 6, 2016, November 13, 2016, November 26, 2016, December 3, 2016, December 5, 2016, December 29, 2016, January 19, 2017, and February 1, 2017.

Vast swaths of the motion (and five exhibits) explaining why the government was sure that Concord had the requested records are sealed. Concord responded, wailing less, but providing a helpful geography lesson to offer some alternative explanation for the moniker “Lakhta,” which the government has long claimed was the global term for Prigozhin’s information war against the US and other countries.

But the government fails to inform the Court that “Lakhta” actually means a multitude of other things, including: Lake Lakhta, a lake in the St. Petersburg area, and Lakhta Center, the tallest building in Europe, which is located in an area within St. Petersburg called the Lakhta-Olgino Municipal Okrug.

On February 7, Friedrich largely granted the government’s subpoena request, approving subpoenas to get communications involving Prigozhin and alleged co-conspirators, as well as records of payments and emails discussing them.  That same day and again on February 21, Concord claimed that it had communicated with the government with regards to the subpoenas, but what would soon be clear was non-responsive.

On February 27, the government moved to show cause for why Concord should not be held in contempt for blowing off the subpoenas, including the request for IP addresses and the entirety of the second subpoena (for meetings involving Prigozhin and records of payments to IRA). Concord wailed in response. The government responded by summarizing Concord’s response:

Concord’s 18-page pleading can be distilled to three material points: Concord’s attorneys will not make any representations about compliance; Concord will not otherwise make any representations about compliance; and Concord will not comply with a court order to send a representative to answer for its production. The Court should therefore enter a contempt order and impose an appropriate sanction to compel compliance.

Friedrich issued an order that subpoena really does mean subpoena, demanding some kind of representation from Concord explaining its compliance.  In response, Prigozhin sent a declaration partly stating that his businesses had deleted all available records, partly disclaiming an ability to comply because he had played games with corporate structure.

With respect to category one in the February 10, 2020 trial subpoena, Concord never had any calendar entries for me during the period before I became General Director, and I became General Director after February 1, 2018, so no searches were able to be performed in Concord’s documents. Concord did not and does not have access to the previous General Director’s telephone from which the prosecution claims to have obtained photographs of calendars and other documents, so Concord is unable to confirm the origin of such photographs.

He claimed to be unable to comply with the request for IP addresses because his contractors “cannot” provide them.

In order to comply with category three in the trial subpoena dated January 24, 2020, in Concord’s records I found contracts between Concord and Severen-Telecom JSC and Unitel LLC, the two internet service providers with which Concord contracted between January 1, 2014 and February 1, 2018. Because these contracts do not identify the internet protocol (“IP”) addresses used by Concord during that period, on January 7, 2020 I sent letters on behalf of Concord to Severen-Telecom JSC and Unitel LLC transmitting copies of these contracts and requesting that the companies advise as to which IP addresses were provided to or used by Concord during that period. Copies of these letters and English translations, as well as the attached contracts, are attached as Exhibits 2 and 3. Severen-Telecom JSC responded in writing that the requested information cannot be provided. A copy of Severen-Telecom JSC’s letter and an English translation are attached as Exhibit 2. Unitel LLC responded that information regarding IP addresses cannot be provided. A copy of Unitel LLC’s letter and an English translation of is attached as Exhibit 3. Accordingly, Concord does not have any documents that could be provided in response to category three (3) of the January 24, 2020 subpoena.

The government responded by pointing out how bogus Prigozhin’s declaration was, not least his insistence that any oligarch like him would really be the person in charge of his companies’ record-keeping. It also described evidence — which is redacted — that Concord had an in-house IT provider at the time (though notes that “as the Court knows, it appears that Concord [sic; this is probably IRA] registered and maintained multiple dedicated IP addresses during the relevant time period”). It further noted that the date that Prigozhin claimed his company started destroying records after 3 months perfectly coincided to cover the start date of this subpoena. In short, it provided fairly compelling evidence that Prigozhin, after agreeing that his company would be subject to the authority of the court when it first filed an appearance in the case, was trolling the court from the safety of Russia.

On March 5, Judge Friedrich nevertheless allowed that bullshit response in her court and declined to hold Concord in contempt. Eleven days later, the government moved to dismiss the case.

The government files the motion to dismiss before the evidentiary dispute finishes but after the subpoena and CIPA fail

On March 16 — 17 days after what appears to be the final CIPA order and 11 days after Friedrich declined to hold Concord or Prigozhin in contempt, and one day before the government was due to file a follow-up to its motion in limine to authenticate normally routine evidence in the case — the government moved to dismiss the case.

While it’s unclear what evidence was deemed to be classified late in the prosecution (likely in December), it seems fairly clear that it affected (and possibly was a source or method used to collect) key forensic proof in the case. It’s also unclear whether an honest response to the government’s trial subpoenas would have replaced that evidence.

What is clear, however, is that there is sufficient explanation in the public record to support the government’s explanation — that Prigozhin was using the prosecution to reap benefits of obtaining information about US government efforts to thwart his activities without risking anything himself. And whether or not the government would be able to prove its case with the classification and CIPA decisions reflected in the docket, the trial itself would shift more evidence into the category of information that would get shared with Prigozhin.

None of that disproves that Barr sabotaged the case. But it does provide sufficient evidence to explain why DOJ dismissed the case, without assuming that Barr sabotaged it.

Other cases of interest

As noted above, not only do the identity theft related charges remain, but so does the ConFraudUS case for all the biological defendants, including Prigozhin. It may be that, given the opportunity to imprison Prigozhin in the highly unlikely event that he ever showed up in the US for trial, the classification trade-offs would be very different.

But there are three other legal issues of interest, given this outcome.

First, there’s one more unsurprising detail about the superseding indictment: It also included an end-date, January 2018. That’s not surprising because adding later activities probably would presented all sorts of problems given how advanced the trial was last November. But it’s also significant because it means double jeopardy would not attach for later activities. So the government could, if the calculus on classification ever changed, simply charge all the things Prigozhin and his trolls have been doing since January 2018 in an indictment charged under its revised theory.

That’s particularly significant given that, in September 2018, prosecutors in EDVA charged Prigozhin’s accountant, Elena Alekseevna Khusyaynova. Even at the time, I imagined it might be a vehicle to move the IRA prosecution if anything happened to it in DC. Unsurprisingly, given that she’s the accountant at the center of all this, the Khusyaynova complaint focused more closely on the money laundering part of the prosecution. Plus, that complaint incorporated evidence of Prigozhin’s trolls reveling in their own indictment, providing easy proof of knowledge of the legal claims DOJ made that didn’t exist for the earlier indictment. None of that would change the calculus around classified evidence (indeed, some of the overt acts described in the Khusyaynova complaint seem like the kind of evidence that Prigozhin would have turned over had he complied with the Concord subpoena. So there is another vehicle for such a prosecution, if DOJ wanted to pursue it.

Finally, Prigozhin has not succeeded with all his attempts to wage lawfare in support of his disinformation efforts. In January, he lost his bid to force Facebook to reinstate his fake news site, Federal Agency of News, based off an argument that because Facebook worked so closely with the government, it cannot exercise its own discretion on its private site. As I laid out here, the suit intersected with both the IRA indictment and Khusyaynova complaint, and engaged in similar kinds of corporate laundry and trollish bullshit. The decision was a no-brainer decision based on Section 230 grounds, giving providers immunity when they boot entities from their services. But the decision also confirms what is already evident: when it comes to shell companies in the business of trolling, thus far whack-a-mole removals have worked more consistently than seemingly symbolic prosecution.

DOJ may well revisit how it charged this to try to attach a FARA liability onto online disinformation. But ultimately the biological humans, not the corporation shells or the bots, need to be targeted.

The President’s Conspiracy Theories Get More Whacko than George Papadopoulos’

Perhaps because the entire legal establishment is pushing back against Bill Barr’s wholesale politicization of DOJ, the President is disturbed on Twitter. After launching a 3-tweet tirade against juror Tameka Hart and Judge Amy Berman Jackson based off a Judge Andrew Napolitano appearance on Fox on Friends (that perhaps unsurprisingly neglects to remind his followers that Napolitano made a case in favor of Trump’s removal by the Senate). he then launched a 3-tweet tirade against the Stone prosecution more generally.

I’m interested in it because of the way Trump attempts to deploy all the other conspiracy theories he has against the Russian investigation to the Stone prosecution, to which they simply don’t apply.

Start with the way Trump claims that 1) the Mueller investigation was “illegally set up” based on the Steele dossier and 2) “forging documents to the FISA Court.”

This is a conceit that has worked well since Paul Manafort, fresh off a meeting with an Oleg Deripaska deputy, suggested Trump could use attacks on the dossier to attack the Mueller Report.

Except one glaring fault of the dossier is that Roger Stone, who had already made comments that suggested he had a direct role in the operation by the time FBI opened investigations on the four initial subjects of it, doesn’t appear in the Steele dossier.

Moreover, whatever else the DOJ IG Report on the Carter Page FISA applications showed, it also showed that the predication of the investigation had nothing to do with the Steele dossier; in fact, Steele’s reports didn’t make it to the investigative team until about six weeks after opening the investigation.

Further, the suggestion that Kevin Clinesmith’s alteration of an email in June 2017 to claim that Page was “not a source” for CIA had anything to do with Roger Stone’s investigation falls flat given that Mueller’s team obtained the first warrant targeting Roger Stone on August 4, 2017, and there’s no insinuation anywhere that Stone ever spoke with Carter Page. (Indeed, in spring 2016, Stone was bitching to Rick Gates that he was not in the loop of foreign policy discussions.) In fact, had Roger Stone been more closely associated with Trump’s freebie foreign policy team, than both Page and George Papadopoulos’ claims to know nothing of campaign efforts to optimize WikiLeaks’ releases would be anything but exculpatory, as DOJ IG treated them, since Stone was doing just that in the time period when they were asked by informants.

Plus, Robert Mueller testified under oath that his team didn’t have anything to do with the Carter Page FISA order. And the investigative record shows that the investigation into Page was largely done by the time Mueller took over.

There’s simply no tie between either the Steele dossier or the Page FISA warrants and Roger Stone’s prosecution.

Trump continues to claim that Mueller interviewed to be FBI Director, even after evidence showing that Steve Bannon, Reince Priebus, and Don McGahn debunked this in real time, not to mention Rod Rosenstein’s 302 that shows that Mueller specifically said he did not want to be interviewed before he met with Trump about Jim Comey’s replacement. That is, a bunch of witnesses — all Republicans — say Trump is wrong.

The most interesting accusation is that the prosecutors who won a conviction against Stone “were Mueller prosecutors.”

Two were: Aaron Zelinsky and Adam Jed.

But two weren’t. Jonathan Kravis (the sole prosecutor who quit DOJ entirely) and Michael Marando were career DC prosecutors brought in to prosecute the case after Mueller shut down. These were, pointedly, not Mueller prosecutors, and the case still went off without a hitch.

In fact, in his interview the other day, Bill Barr made quite clear that this prosecution happened on his watch, and he believes it’s a righteous prosecution.

BARR: Well, as you know, the Stone case was prosecuted while I was attorney general. And I supported it. I think it was established, he was convicted of obstructing Congress and witness tampering. And I thought that was a righteous prosecution. And I was happy that he was convicted.

If Trump has a problem with the guy who prosecuted the case against Roger Stone, he has a problem with his Attorney General Bill Barr.

Which may be why Trump — who shouldn’t be affected by mere lies by Roger Stone to Congress — is threatening to “sue everyone all over the place.” Of course, he is affected by Stone — Stone is going to prison to protect the President, to avoid describing the multiple conversations they had about optimizing the WikiLeaks releases. And suing (whom?!?!) won’t help Trump suppress that.

The President sounds crazier than George Papadopoulos in this rant, and his conspiracy theories are just as unhinged. Which is, I guess, what happens when all the conspiracy theories you’ve been using to undermine the prosecution implicating you turn out to be utterly irrelevant to the most important firewall to protect.

The Timeline Suggests Bill Barr Removed Jesse Liu to Intervene for Trump’s Rat-Fucker

Far be it for me to doubt Bill Barr’s ability to manufacture a cover-up. He’s damn good at it, that’s why he was hired, and he’s got a lot of power to use to execute one.

But it’ll be harder this time around than it was for Poppy Bush, in part because Barr’s principal has the propensity to go off half-cocked, the frothy right doesn’t think rationally, and Barr himself may believe what he sees on Fox News more than what he sees in court dockets, to the extent he even reviews court dockets.

That’s particularly true given the timeline leading up to the Tuesday Night Massacre, because it appears to show that Bill Barr removed Jessie Liu — and then Trump withdrew her nomination excusing that removal — mostly (at least as far as what is visible thus far) to intervene for Trump’s rat-fucker, Roger Stone.

At least as the timing of the DOJ filings reflect, Barr intervened with the strategy he claimed to Pierre Thomas to apply with Roger Stone with Mike Flynn, providing reasons for Judge Emmet Sullivan to sentence lightly, but leaving it up him. Importantly, Jessie Liu proved willing to do that on January 29; she signed the softened Flynn sentencing memo (though it’s possible Trump submitted her nomination on January 6 in response to the discussions around the initial, harsher memo).

The next day, per dates included in the Roger Stone sentencing memo, DOJ submitted an objection to the January 16 Presentence Investigation Report.

Probation and the Government, however, incorrectly maintain that the following offense level increases are applicable:

Specific Offense Characteristics U.S.S.G. §2J1.2(b)(1)(B) 8 level increase ¶76 1

Specific Offense Characteristics U.S.S.G. §2J1.2(b)(1)(2) 3 level increase ¶77

Obstruction of Justice U.S.S.G. §3C1.1 2 level increase ¶80

Obstruction of Justice 2 U.S.S.G. §2J1.2(b)(3)(C) 2 level increase ¶77

1 Paragraph references are to the Presentence Investigation Report, dated January 16, 2020, (“PSR”). [Dkt. #272].

2 Government’s Objection to Presentence Investigation Report, dated January 30, 2020.

Possibly, given footnote 2, they added language to substantiate the extent to which Stone went to sustain his cover-up.

Pursuant to U.S.S.G. § 2B1.2(b)(3)(C), two levels are added because the offense was otherwise extensive in scope, planning, or preparation. Stone engaged in a multi-year scheme involving (1) false statements in sworn testimony; (2) the concealment of important documentary evidence; (3) further lies in a written submission to Congress; and (4) a relentless and elaborate campaign to silence Credico that involved cajoling, flattering, crafting forged documents, badgering, and threatening Credico’s reputation, friend, life, and dog. Stone’s efforts were as extensive, if not more extensive, than those of other defendants who received this two-level enhancement at sentencing.

That’s when Barr appointed Timothy Shea as interim US Attorney, effective just two business days later, the one way to take Jessie Liu out of the command structure immediately.

According to Barr’s interview, Shea started asking questions about Stone’s sentencing a week before the memo got submitted. That means Shea spent his first day focused on the Stone sentencing. That makes it hard to believe he was installed for any other reason but to help Stone out.

The first Trump-related motions — basically to remove Flynn’s attorney-client privilege so Covington’s lawyers can expound on how many lies Flynn told them about Russia and his work for Turkey — showed no discernible Barr influence (though Flynn’s reversal on continuing these discussions may have).

Barr provided several somewhat contradictory explanations for what happened on February 10 to Thomas. He claims that Shea “came by” DOJ and alerted Barr that line prosecutors still wanted to recommend the 7-9 year sentence calculated by the Probation Office. Then Barr suggested that he got involved here because line prosecutors who have decades of experience are too junior to make “life or death” decisions.

What other industry allows life or death decisions to be made by the most junior level of the business.

Not long later, however, Barr denied intervening in a case.

Most cases don’t come up to the Attorney General because people are doing a good job.

Some people saying AG intervening in a case. That’s preposterous! We have an escalation system that tries to get the difficult issues that are, you know, people are arguing about, to get them up for resolution and it’s the Attorney General’s decision to decide it.

But here’s the key: Barr claims he only got involved in Stone’s sentencing memo because “difficult issues” got escalated.

Except they only got escalated because he had just installed his hand-picked flunky to oversee this. This wouldn’t have been escalated if Liu were still in place.

All the evidence suggests that Bill Barr replaced Jessie Liu to give himself an excuse to intervene personally in Stone’s sentencing.

And what will it get him? I suspect Judge Amy Berman Jackson would never have sentenced Stone to 7 to 9 years —  the harsher sentence — in any case (especially given that she only gave Paul Manafort 7.5 years). She probably would have given Stone 4-5 years and might still, a slight enhancement for the threat against Randy Credico, but not much. But this drama about sentencing is likely not the big question, given that Stone is likely to have his sentence commuted, one way or another, on November 4, the day after election day. So the real question is how much of the next nine months he serves in prison, which ABJ has some control over, especially given Stone’s propensity to make threats when he’s not in prison or gagged. If ABJ sentences Stone to 4-5 years — close to what Barr has now signed off on in very public and intrusive fashion — but sends him to prison right away, it’s less likely Trump will do something immediate, like pardon him. Whereas, had Barr not intervened, it would have had the same effect but without Barr’s tacit approval for a 3-4 year sentence.

I can’t decide whether the plan here is to make judges look unreasonable — which could happen when Sullivan sentences Flynn to prison, except for the really atrocious details about how Flynn was secretly working for a frenemy government while purportedly advising Trump on national security issues. Or whether it’s to minimize sentence time — which Barr hasn’t done by endorsing a sentence just a year or so less than what ABJ might be inclined to give anyway.

Meanwhile, after inventing a way to remove Jessie Liu immediately, Lou Dobbs and a bunch of other frothers convinced the President to withdraw her nomination, possibly encouraged by the threat of questions about all this in her confirmation hearing, which was scheduled for yesterday. She resigned yesterday from whatever desk Trump parked her at to make way for Shea. She’s a pretty loyal Trumpster, so it’s unclear whether she’ll go quietly. But if she chooses, as a private citizen she’s now entitled to respond to subpoenas from Congress, and between her and Jonathan Kravis (who also resigned entirely from DOJ), she can explain what is really going on.

Meanwhile, Shea is now on the clock: he has until June 2 to complete shutting down any investigations into Trump. Unless the Senate confirms a successor that has not yet been confirmed, then Chief Judge Beryl Howell will be able to pick his replacement. And she was none too happy about this week’s drama.


December 10, 2019: Trump announces intent to nominate Jessie Liu to Treasury

January 4: DOJ asks for one more day to submit Flynn supplemental sentencing memorandum; signed by Liu

January 6: Trump nominates Liu to Treasury

January 7: DOJ submits harsh sentencing memo that nevertheless asks for guidelines sentence; signed by Liu

January 16: Probation Office completes Stone PSI recommending 7-9 years

January 22: DOJ notices court that they’ve provided the last of the Flynn 302s; signed by Liu

January 29: DOJ submits reply sentencing memo, with probation recommendation; signed by Liu

January 30: DOJ submits objection to Stone PSI; Barr appoints Timothy Shea DC US Attorney, effective February 3

February 3: Shea starts; per ABC interview, starts asking questions about the sentencing

February 5: Senate acquits Trump

February 9: DOJ files motion to continue briefing schedule and motion to confirm waiver of attorney-client privilege; signed by Jocelyn Ballentine; Brandon Van Grack not on motions, but probably in preparation for hearing

February 10: Shea “comes by” DOJ and tells Barr the team wanted to recommend 7-9 recommendation; Barr “under the impression” that “what was going to happen was what I had suggested;” DOJ files sentencing memo recommending 7-9 years; Barr claims he decided at night to amend recommendation

February 11:

3:07: Aaron Zelinsky withdrawal

3:56: Jonathan Kravis withdrawal

4:34: John Crabb Jr. files appearance

4:40: Supplemental sentencing memo created, signed by John Crabb Jr

5:27: Adam Jed withdrawal

5:39: Michael Marando withdrawal

6:10: Supplemental sentencing memo finalized

February 12: Trump withdraws Liu’s nomination; DOJ submits response to motion to dismiss; signed by Brandon Van Grack; Jessie Liu resigns from Treasury desk she was parked at to make way for Shea

February 13: Bill Barr does staged interview where he dodges any real explanation for his interference

June 2: Timothy Shea’s interim appointment expires

Roger Stone’s Latest: When Legal Categories of Innocent or Guilty become Disinformation and Pardon [Updated]

Update, June 27: This post describes why Stone’s defense strategy — not to mount a legal defense, but to engage in disinformation — may pose a problem for Amy Berman Jackson’s enforcement  of her gag against Roger Stone. That’s because his magnification of other outlets’ coverage of his lawyers’ own bullshit filings questioning whether Russia hacked the DNC do amount to a magnification of his own defense strategy. ABJ ordered Stone to explain why his release conditions shouldn’t be changed. Stone’s response is here. As expected, his response largely claims he was within the terms of her order when commenting on his lawyers’ own filings.

The government’s disproportionate reaction is an effort to deprive Stone of the narrow latitude the Court left him; a latitude that was not violated by the posts, and a latitude which, if curtailed, based on the posts, would violate Stone’s First Amendment rights. The notion that “an appeal to major media outlets to publish information that is not relevant to, but may prejudice, this case” (Dkt. 136, p. 4, n.1), is oxymoronic, outré, and out of First Amendment bounds

Stone’s response is weakest in the explanation for calling for John Brennan to be hanged.

June 2, 2019 (Gov’t Ex. 8): “This psycho must be charged, tried, convicted . . . . [John Brennan] and hung for treason.” Dkt. 136-9. Stone: No comment was made by Stone about the “case” or about the “investigation.” Analysis: As background, Mr. Brennan, in a July 16, 2018 Tweet (about which 133,000 people were “talking”) wrote: “Donald Trump’s press conference performance in Helsinki rises to and exceeds the threshold of ‘high crimes and misdemeanors. It was nothing short of treasonous’.” The First Amendment protected Brennan’s remarks. Likewise, Stone’s remarks are also protected. This posting has nothing whatsoever to do with Stone’s case and therefore posed no fair trial threat, nor did it violate the Order.

This is clearly an attempt to explain away what Stone’s deletion of the post seems to recognize did violate the gag.

Anyway, I may be alone in thinking this, but I suspect ABJ won’t do anything more than restrict Stone’s use of the Internet, if even she does that.

I will add, however, that the government would do well to formally notice what I pointed out here: that in the DNC lawsuit, his attorneys are arguing the opposite of what they’re arguing here, that Russia definitely did the DNC hack.


Yesterday, the government asked Judge Amy Berman Jackson to hold a hearing to determine whether Roger Stone didn’t violate his gag order earlier this week by trying to get mainstream press outlets to pick up marginal outlets’ reports of his attorneys’ effort to undermine the attribution of the DNC hack to Russia. They point to several Instagram posts Stone made that referred to conspiratorial interpretations of his lawyers’ own frivolous arguments and ask why other outlets aren’t picking up the story. [I’ve added links to the posts.]

On June 18, 2019, Stone posted a screenshot of an article about one of his recent filings in this case. The screenshot read: “US Govt’s Entire Russia-DNC Hacking Narrative Based on Redacted Draft of CrowdStrike Report.” Ex. 1. He tagged the post, “But where is the @NYTimes? @washingtonpost? @WSJ? @CNN?” Id. Later that day, Stone posted a screenshot of another piece about his filing with the title, “FBI Never Saw CrowdStrike Unredacted Final Report on Alleged Russian Hacking Because None was Produced.” Ex. 2. Next, Stone posted an article titled, “Stone defense team exposes the ‘intelligence community’s’ [sic] betrayal of their responsibilities.” Ex. 3. The text further stated, “As the Russia Hoax is being unwound, we are learning some deeply disturbing lessons about the level of corruption at the top levels of the agencies charged with protecting us from external threats. One Jaw-dropping example has just been exposed by the legal team defending Roger Stone.” Id. Stone tagged the article, “Funny , No @nytimes or @washingtonpost coverage of this development.”

On June 19, 2019, Stone posted a screenshot of an article with the title, “FBI Never Saw CrowdStrike Unredacted or Final Report on Alleged Russian Hacking Because None Was Produced.” Ex. 4. He tagged the post, “The truth is slowly emerging. #NoCollusion.” Id.2

They argue this violates ABJ’s ban on,

making statements to the media or in public settings about the Special Counsel’s investigation or this case or any of the participants in the investigation or the case. The prohibition includes, but is not limited to, statements made about the case through the following means: radio broadcasts; interviews on television, on the radio, with print reporters, or on internet based media; press releases or press conferences; blogs or letters to the editor; and posts on Facebook, Twitter, Instagram, or any other form of social media.

Thus far, ABJ has not responded to this request, though in that same time she assented to another of the government’s requests, to submit a sur-reply to Stone’s claim that the FBI never had any direct evidence Russia hacked the DNC.

I want Roger Stone to go to jail as much as the next opponent of rat-fucking. But I think the government’s claim, on this point, is problematic. Back when ABJ set Stone’s gag, she said,

You may send out as many emails, Tweets, posts as you choose that say, Please donate to the Roger Stone defense fund to help me defend myself against these charges. And you may add that you deny or are innocent of the charges, but that’s the extent of it. You apparently need clear boundaries, so there they are.

But in the same hearing, prosecutor Jonathan Kravis — the guy who signed yesterday’s filing — laid out that defensible public statements would include articulating a defense.

And because the conduct we’re talking about now, because the message we’re talking about now are not just messages about proclaiming innocence or articulating a defense, but are messages that could be construed as threatening, the government believes that the restriction on extrajudicial statements would be appropriate under the Bail Reform Act.

And the posts from this week that prosecutors lay out do nothing more than point to poor analysis of Stone’s own lawyers’ filings, and as such probably count as an effort to articulate a defense.

The problem is precisely what prosecutors explicitly explain is their real concern, that these posts are designed to generate more attention for conspiracy theories that totally undermine the public record of the Mueller investigation.

Stone’s posts appear calculated to generate media coverage of information that is not relevant to this case but that could prejudice potential jurors. They relate to Stone’s claims—made in both filings before the Court and in public settings—that Russia did not hack the DNC servers, that the FBI and intelligence community were negligent in investigating Russian interference in the 2016 presidential election, that the government improperly “targeted” Stone and others, and that the entire investigation was somehow invalid and any crimes flowing from it (including Stone’s witness tampering and lies to Congress) were justified.3 If those theories were relevant to this case (which they are not), public statements aimed at the media and meant to bolster the claims would risk prejudicing the jury pool. But these posts are arguably even worse, because they risk tainting the jury pool with information that is not relevant but that may appear, to some, to be relevant. At best, Stone’s efforts could create the misimpression that this case is about issues that are not charged in the Indictment, and risk the trial “devolv[ing] into a circus” (Tr. 49:19-20). But worse, it could confuse prospective jurors or color how they later view the actually-relevant evidence and understand the Court’s instructions about that evidence.

Prosecutors are absolutely right: the reporting on Stone’s lawyers filings misrepresent what his case is about. But that’s because Stone’s own lawyers are engaging in a legal strategy of disinformation, not legal defense.

I’ve repeatedly said that I think Stone will be pardoned before his November trial. Currently, there are no charges against him which could be refiled in NY or FL (the latter of which wouldn’t do it anyway). DOJ has already ruled that Stone’s known underlying activity — optimizing the release of documents stolen by Russians — does not reach the level of illegal conspiracy. So if Trump pardoned Stone before November, the fact that Stone would lose his Fifth Amendment rights over his charges would pose no legal risk to Trump (unlike, say, Manafort). Yet November’s trial, if it goes forward, will be unbelievably damning for the President.

And that means that Stone’s lawyers have an even bigger incentive than Manafort’s lawyers did to mount a defense that undermines the credibility of the Russian investigation, even if it does nothing to increase Stone’s chances for acquittal (which, if this goes to trial, are slim).

Which leaves ABJ and the prosecutors attempting to litigate a trial that will find innocence or guilt, while Stone’s lawyers are litigating to push disinformation in support of a pardon.

All that said, Stone may still be in trouble. Prosecutors note that this is not the first time Stone has violated the letter (if not spirit) of ABJ’s gag. They include several more examples.

1 These posts are not the first statements that appear to have run afoul of the Court’s order. See, e.g., Ex. 5 (Instagram Posting of April 4, 2019, stating “FBI Refuses Records Request for Emails to CNN on Day of Roger Stone Raid,” with the tag, “How curious? What could they possibly be hiding?”); Ex. 6 (Instagram Posting of May 8, 2019, with the headline “Judge demands unredacted Mueller report in Roger Stone case,” with the comment, “The Judge has ruled but @Politico gets most of the story wrong because they are biased elitist snot-nosed fake news [expletive] who’s [sic] specialty is distortion by omitting key facts to create a false narrative.”); Ex. 7 (Instagram Posting of May 16, 2019, with headline, “Roger Stone Swings For the Fences; Court Filing Challenges Russiagate’s Original Premise,” with the comment, “My attorneys challenged the entire “Russia hacked the DNC/CrowdStrike” claim by the Special Counsel in public court filings[.]”); Ex. 8 (Instagram Posting of June 2, 2019, picturing a former CIA Director and writing, “This psycho must be charged, tried, convicted . . . . and hung for treason.”) (ellipses in original) (subsequently deleted). The government is bringing this matter to the Court’s attention now because Stone’s most recent posts represent a direct attempt to appeal to major media outlets to publish information that is not relevant to, but may prejudice, this case.

Three of these, like the other four, might be viewed as articulating a defense, with the defense being, engaging in disinformation.

The fourth, however, solidly violates the spirit and letter of ABJ’s gag, because it would be likely to incite violence directed at John Brennan, because it calls for his hanging (Click through to see the post; I don’t want to magnify Stone’s violent language).

I’m not sure what the remedy is for lawyers whose defense strategy is to sow disinformation inside and outside the court room (in both filings this week, the government has said they’re going to move to prevent any such discussion from the trial). But I think these Instagram posts were probably designed, with advice of counsel, to be defensible as part of a defense strategy.

It’s Stone’s defense strategy that’s the problem.

Update: ABJ has given Stone until Thursday to convince her he didn’t violate her gag.

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