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On Joshua Schulte and Julian Assange’s 10 Year Old Charges

The WaPo has confirmed what Natasha Bertrand earlier reported: the extradition package for Julian Assange will only include the 10 year old charges related to the publication of Chelsea Manning’s leaks, not any of WikiLeaks more controversially handled charges. I’ve been meaning to write a post on how this is the stupidest available approach, which will satisfy neither those who regard him as a villain, will expose other journalists to similarly dangerous charges, and possibly even fuck up the security establishment’s entire effort to exact some revenge against Assange. I hope to return to that when I get some deadlines and travel done, but suffice it to say this is a big hot mess.

To be clear, I actually think it’s not eleven-dimensional chess on the part of Bill Barr to save Trump some embarrassment once Roger Stone’s trial reveals the extent to which Trump’s campaign tried to “collude” with WikiLeaks (though it will not only have that effect, but make it harder for DNC to sustain its lawsuit against the GOP and WikiLeaks for their actions in the 2016 election). Rather, I think this is an attempt to prosecute Assange with the least cost on the security establishment, being run by people who are utterly tone deaf to the costs it will incur elsewhere.

But I do want to say several things about why and how DOJ is not charging Assange in the Vault 7 leak.

Bertrand noted that I thought that the EDVA charges would be related to Vault 7.

Still, just several months ago, numerous experts felt confident that prosecutors would also hit Assange with charges over Vault 7. Prominent national security journalist Marcy Wheeler predicted in Februarythat DOJ would “very clearly go after Assange” for the Vault 7 disclosure, and that a sealed indictment against him in the Eastern District of Virginia was likely related to that leak — the CIA is, after all, headquartered in Virginia, as ABC noted. Assange himselfreportedly expressed concern that prosecutors would charge him with crimes related to Vault 7.

She didn’t provide even the full context of my tweet, much less my post, arguing that Assange’s efforts to extort a pardon using the Vault 7 files would be something obviously unconnected to journalism. The superseding indictment does mention Assange’s use of “insurance files” to ensure his ability to publish documents in his possession, but no charges were attached to that, which later uses of the tactic and the Vault 7 pardon effort would have supported.

Which is to say the government could have charged Assange for something specifically excluded from Bartnicki’s protection of the publication of stolen materials, but did not. Again, the government has chosen to go about this in the stupidest way possible.

That said, I’m not surprised they’re not going after Assange for the Vault 7 leak itself.

As it is, the CIA has been inexcusably uncooperative with Joshua Schulte’s discovery efforts. At times. some pretty aggressive prosecutors have seemed almost apologetic about it. Schulte has staked a lot on trying to expose details of his initial warrants, and while his later behavior seems to suggest there was something to their targeting of him (or, at the very least, his post-indictment behavior has been self-destructive), at the very least the CIA may have participated in some epically bad parallel construction. They may be trying to hide that as much as the actual details of CIA’s hacking program.

Meanwhile, the government and Schulte have been discussing severing his charges from last year — which include one charge of contempt and a charge of attempted leak of classified information — from everything else.

As the Court is aware, trial in this matter is currently set for April 8, 2019. (See Minute Entry for August 8, 2018 Conference). To afford the parties sufficient time to prepare the necessary pretrial motions, including suppression motions and motions pursuant to the Classified Information Procedures Act (“CIPA”), the parties respectfully request that the Court adjourn the trial until November 4, 2019. The parties are also discussing a potential agreement concerning severance, as well as the order of the potentially severed trials. The parties will update the Court on severance and a pretrial motion schedule at or before the conference scheduled for April 10, 2019.

That might be something they tried to base a plea off of: they’d have video evidence to back their case, so it might avoid the CIPA process CIA is unwilling to engage in.

Back in May, Schulte’s team submitted a motion to vacate his SAMs (Special Administrative Measures limit a prisoner’s communication with others). It was based off the case the government made prior to his superseding indictment and left out all the allegations the government made about the 13 email and social media accounts Schulte was allegedly running from his jail cell, and as such deliberately understated why the government wanted the SAMs. The government asked for and got an extension to respond until Monday — notably, after all decisions about Assange would have had to have been made. Any response (unless it’s sealed) will have to provide more details about what happened last fall, so if they’re trying to get a plea deal, it might come this week in lieu of that SAMs response.

But the question would be what that plea agreement would look like.

Finally, the government is going to have to provide some explanation for why Chelsea Manning remains in jail for contempt. Unless they can claim they’re going after other people related to WikiLeaks, they should not be able to keep her jailed.

Two Factors that May Change the Impeachment Calculus, Part Two: Criminalizing a Roger Stone Pardon

In this post, I described how recent developments in Michael Cohen’s case give Congress a number of reasons to use it as a basis for impeachment. The neat fit of so many details might affect the calculus on whether Democrats carry out an impeachment inquiry on Trump.

In this post, I’ll point to a cynical electoral reason to begin impeachment: to prevent Trump from preempting Stone’s pre-election trial which, if it takes place in November 2019 as scheduled, will be utterly damning to the President. Don’t get me wrong — Democrats should move to stop Trump from using pardons to suborn perjury as a basic rule of law thing. But the timing of Stone’s trial and the extent to which it will implicate the President makes that imperative electorally beneficial for Democrats as well.

Even as currently charged, Stone’s case implicates the President directly

As I’ve noted, because everything in the Mueller Report pertaining to Roger Stone got redacted to (appropriately) preserve Stone’s right to a fair trial, lots of details on how Trump himself was involved in pushing Stone to optimize the WikiLeaks releases is redacted.

[I]t seems highly likely that some of the information in these redacted passages is stuff that would only prejudice Stone’s case by raising the import of it to Trump.

Consider, for starters, that (unless I’m mistaken) not a word from Stone’s indictment appears in this Report. [For example,] the indictment makes it clear that Stone was talking to the campaign about WikiLeaks releases.

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

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

[snip]

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

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

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

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

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

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

So the part of the 2016 operation that clearly amounted to coordination but was not charged because of First Amendment considerations, and the part of the 2016 operation for which (perhaps because witnesses learned it would not be charged as a conspiracy) there’s the most evidence of Trump’s direct involvement, remains hidden from view out of concerns for Stone’s due process rights.

Right now, Stone’s trial is scheduled to start on November 5. A recent status report on Rick Gates’ cooperation makes it clear he is likely to be a witness at Stone’s trial. While Gates’ testimony is probably not necessary to prove that Stone lied to HPSCI, it would be useful to explain Stone’s motive: significantly, protecting Trump.

If Andrew Miller’s testimony leads to new charges, the tie to Trump may be still more damning

Tuesday, the DC Circuit Court issued its final order in Stone associate Andrew Miller’s challenge to a grand jury subpoena.

Yesterday — technically minutes after Mueller’s press conference announcing the investigation was completed and he’s going home — Judge Beryl Howell rejected another attempt by Miller to challenge the subpoena. Multiple outlets report that he has agreed to testify Friday at 9:30.

Miller’s testimony Friday is premised on potential new charges against Stone and before Howell rejected Miller’s challenge, Aaron “Zelinsky and Jonathan Kravis from the US Attorney’s Office in DC told the judge privately why they still needed Miller.”

Last night, Howell released some of the details behind Miller’s most recent challenge. Along with a useful timeline from Miller’s lawyers on their challenge, it makes it pretty clear that prosecutors are still looking for information on (as Miller lawyer Paul Kamenar describes it) “Roger Stone’s actions during the 2016 election and his involvement in WikiLeaks, Julian Assange, and the hacking of Hillary Clinton’s and the DNC’s emails and any collusion with Russia” or (as Aaron Zelinsky has described it), “Roger Stone’s connection to WikiLeaks, Julian Assange, Guccifer 2.0, Russia.”

In other words, it appears that prosecutors might still indict Stone with new crimes pertaining to the core issues that were under investigation.

That’s one reason I find the timing of Mueller’s announcement so interesting. The Howell hearing yesterday was technically after Mueller’s statement finished. I don’t know when yesterday’s announcement will become official, but it would seem to be final before Friday’s Miller grand jury appearance.

That would mean any charges that former Mueller prosecutor Aaron Zelinsky (as well as DC AUSA Jonathan Kravis, who has picked up the bulk of the ongoing matters from Mueller’s team) might decide to pursue after Friday would be subject neither to the logic of the Mueller investigation — which decided not to charge Stone for some WikiLeaks-related crimes in part based on First Amendment considerations, nor to the direct supervision of Attorney General Barr.

As I’ve noted, the logic EDVA used in its superseding indictment of Assange is in direct conflict with the logic Mueller used in deciding that WikiLeaks’ and Trump’s “wish lists” for Hillary emails do not establish a basis for a conspiracy charge in the same way WikiLeaks’ wish list for classified materials was used. That might mean that decisions made after Miller’s testimony Friday would work out differently than decisions on Stone’s charges in January. Mueller’s off the case. It’s DC US Attorney Jesse Liu’s decision now.

All of which is to say, even assuming Friday’s testimony doesn’t lead to new charges, unless Trump finds a way to pre-empt Stone’s trial, it will mean some of the most damning information about Trump’s involvement in what Mueller didn’t charge as conspiracy but which by most definitions would count as “collusion” will get aired less than a year before the 2020 election.

Given how rock solid that Stone indictment is, there are just two ways to avoid that: for Stone to flip on Trump or others (though prosecutors are unlikely to give Stone a deal without vetting his claims after the way Paul Manafort abused the process, and it would be too late to flip on Assange). Or for Trump to pardon Stone.

Some of the clearest evidence of obstruction of justice in the Mueller Report pertains to Trump floating pardons, including a 2.5 page redacted passage (Volume II pages 128-130) pertaining to Stone himself. Even Bill Barr says it would be a crime to float pardons to prevent someone from testifying truthfully. Note, too, that Mueller asked Trump whether he considered pardoning Assange before he was inaugurated (to which Trump gave a typically contemptuous non-answer), and Stone was involved in an attempt to pardon Assange as recently as January 2018, which has been the subject of Mueller’s questioning.

The political hit from a Stone trial — and the kind of pardon-related obstruction that Barr himself conducted to kill the Iran-Contra investigation — might well be enough for Trump to prefer the political hit of pardoning Stone. Democrats have one way of altering that calculus to ensure the Stone trial — with all the damning details of Trump’s actions it’ll reveal — happens as scheduled.

While I’m not, at all, a fan of gaming trials for political effect, the fact of the matter is that if Stone’s trial goes forward, it would present as damning a case against Trump’s cheating as any impeachment trial could do. But to ensure that happens, Democrats need to make it clear that pardoning his way out of this will incur even greater costs for the President.

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

The Logic of Assange’s EDVA Indictment Is Inconsistent with Mueller’s Apparent Logic on Assange’s Declination

As Emma Best has noted, shortly before GRU targeted John Podesta in a spear-phishing attack, WikiLeaks offered a reward for Hillary’s speech transcripts like the excerpts that were released as part of the John Podesta release.

Hours before Russian hacking operations targeted Hillary Clinton’s campaign in the spring of 2016, WikiLeaks discussed offering a monetary reward for transcripts of her speeches at Goldman Sachs. Soon after, Russian hackers launched a spear phishing campaign that resulted in John Podesta’s email account being compromised. Emails containing excerpts from the speeches were included in the first day of the Podesta email releases. A week later, emails containing the transcripts themselves were released. WikiLeaks heralded these transcripts as their “holy grail.”

The story began on March 9, 2016, when WikiLeaks sent a tweet with a poll asking if they should add Hillary Clinton’s Goldman Sachs speeches to their ”Most Wanted” page for six figure rewards for materials. When the poll completed twenty four hours later, 93% of respondents said that WikiLeaks should offer a reward for the speeches. The Russian hackers at Fancy Bear may have been listening and been inspired by WikiLeaks’ comment. Unpublished targeting data collected by Secureworks shows the hacking campaign began earlier than the Mueller indictment reveals. A week and a half later, after dozens of attempts to penetrate the accounts of Podesta and other Clinton staffers and associates, Fancy Bear sent the phishing email that successfully tricked Podesta into compromising his account and the Goldman Sachs speeches along with it.

Secureworks’ unpublished breakdown of the Russian spear phishing and hacking effort, which AP described last year, shows that the campaign to penetrate the account began hours after WikiLeaks teased the possibility of offering a reward for the information. The tweet first mentioning the potential of a reward for the Goldman Sachs transcripts was sent at 8:16 P.M. Moscow time. At 11:56 AM the next day, less than sixteen hours later, Russian hackers began a campaign that would target “over 300 individuals affiliated with the Clinton Campaign, DCCC, and DNC.“ Podesta’s emails accounts were targeted in the days that followed and successfully compromised a week later, resulting in the exfiltration of nearly 60,000 emails.

Under what I’ve called Theory One of the superseding Julian Assange indictment, WikiLeaks’ publication of a wish list that was subsequently fulfilled would qualify it (or Julian Assange) for a conspiracy charge. Given what we’ve seen of Roger Stone’s actions, it might qualify him for a conspiracy charge as well (though we still don’t know via what means he contacted WikiLeaks).

But this 2.5 page redaction in the Mueller Report appears to explain why they didn’t charge WikiLeaks (and so by association, Stone) in that conspiracy.

We don’t know what that redaction says, though the unredacted footnote makes it clear that in the case of emails stolen from Hillary, DOJ determined that sharing of stolen property does not constitute a crime.

We do, however, have a sense of how the Attorney General understands this declination, because he used it to exonerate Trump, even in spite of Trump’s active role in pushing Roger Stone to optimize the WikiLeaks releases for the campaign. In one of his explanations for the WikiLeaks declination — one that may more directly allude to Stone’s involvement — Bill Barr said that publication of stolen emails would not be criminal “unless the publisher also participated in the underlying hacking conspiracy.”

The Special Counsel also investigated whether any member or affiliate of the Trump campaign encouraged or otherwise played a role in these dissemination efforts.  Under applicable law, publication of these types of materials would not be criminal unless the publisher also participated in the underlying hacking conspiracy.  Here too, the Special Counsel’s report did not find that any person associated with the Trump campaign illegally participated in the dissemination of the materials.

In the case of election interference, then, Barr does not consider the publication of documents identified on a wish list that hackers subsequently steal to amount to joining a conspiracy.

But in the case of Chelsea Manning’s leak, his DOJ does.

There’s obviously a distinction: John Podesta’s risotto recipes are not classified, whereas much of the stuff (but not all) Manning leaked was. But the role of a wish list is not functionally different, and Russian officers were charged both for hacking and dissemination.

I’m still working on a post describing how unbelievably stupid the EDVA case is, both for the press and for DOJ’s hopes to lay a precedent.

But at least at a structural level, the prosecution is also inconsistent with the decisions DOJ made about WikiLeaks on the election year operation.

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. 

Trump Claims He Was Joking When He Gave Russian Hackers a Wish List to Hack Hillary, But His Senior Aides Disagree

Like a child whose mother catches him saying something improper, Trump claimed — in his responses to Robert Mueller — that he was joking when he asked Russia to find Hillary’s missing 30,000 emails (a claim he repeated on March 2).

d. On July 27, 2016, you stated at a press conference: “Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.”

i. Why did you make that request of Russia, as opposed to any other country, entity, or individual?

ii. In advance of making that statement, what discussions, if any, did you have with anyone else about the substance of the statement?

iii. Were you told at any time before or after you made that statement that Russia was attempting to infiltrate or hack computer systems or email accounts of Hillary Clinton or her campaign? If yes, describe who provided this information, when, and what you were told.

Response to Question II, Part (d)

I made the statement quoted in Question II (d) in jest and sarcastically, as was apparent to any objective observer. The context of the statement is evident in the full reading or viewing of the July 27, 2016 press conference, and I refer you to the publicly available transcript and video of that press conference. I do not recall having any discussion about the substance of the statement in advance of the press conference. I do not recall being told during the campaign of any efforts by Russia to infiltrate or hack the computer systems or email accounts of Hillary Clinton or her campaign prior to them becoming the subject of media repo11ing and I have no recollection of any particular conversation in that regard.

Since Trump directed Mueller to a transcript of the press conference, I’ve put excerpts below. They’re a good reminder that at the same press conference where Trump asked Russia to find Hillary’s emails (and in seeming response to which, GRU officers targeted Hillary’s personal office just five hours later), Trump suggested any efforts to build a Trump Tower in Moscow were years in the past, not ongoing. After the press conference, Michael Cohen asked about that false denial, and Trump “told Cohen that Trump Tower Moscow was not a deal yet and said, ‘Why mention it if it is not a deal?'” He also said they’d consider recognizing Russia’s seizure of Crimea, which makes Konstantin Kilimnik’s travel — to Moscow the next day, then to New York for the August 2 meeting at which he and Paul Manafort discussed carving up Ukraine at the same meeting where they discussed how to win Michigan — all the more striking. Trump’s odd answer to whether his campaign “had any conversations with foreign leaders” to “hit the ground running” may reflect Mike Flynn’s meetings with Sergei Kislyak to do just that. In other words, even on top of that request of the Russians for more hacking, that press conference seems to tie to all the other things Trump was trying to hide when he obstructed Mueller’s investigation.

But it’s also worth looking at the abundant evidence that Trump wasn’t joking about his request that Russians find Hillary’s emails, particularly now that, with the superseding Julian Assange indictment, Trump’s DOJ considers the theft of documents in response to someone wishing they’ll be stolen tantamount to complicity in that theft.

Immediately after Trump asked Russia to find Hillary’s emails, the Mueller Report describes, he started asking Mike Flynn to go find them.

After candidate Trump stated on July 27, 2016, that he hoped Russia would “find the 30,000 emails that are missing,” Trump asked individuals affiliated with his Campaign to find the deleted Clinton emails.264 Michael Flynn-who would later serve as National Security Advisor in the Trump Administration- recalled that Trump made this request repeatedly, and Flynn subsequently contacted multiple people in an effort to obtain the emails.265

Heavily redacted passages also tie the request to Roger Stone to find out what WikiLeaks started around the same time.

Earlier the report quotes Gates describing how “frustrated” Trump was that the emails had not been found.

Gates recalled candidate Trump being generally frustrated that the Clinton emails had not been found. 196

A passage describing Trump’s motive for obstructing justice from Volume II refers back to these passages, describing Trump’s awareness of something about the hack-and-leak even while public reports tied the hacks to Russia, and in turn tying that to Roger Stone’s efforts to reach out to WikiLeaks.

Stone’s indictment describes how, days before that press conference, “a senior Trump Campaign official was directed” (probably a reference to Manafort’s request to Gates) to ask him to find out about upcoming releases, which is what led Stone to start pushing Jerome Corsi to find out what was coming.

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

13. STONE also corresponded with associates about contacting Organization 1 in order to obtain additional emails damaging to the Clinton Campaign.

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

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

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

Mike Flynn, Rick Gates, and Paul Manafort all testified how serious Trump was about finding these emails. And while Stone would probably lie about the content of his calls with the candidate, there are two witnesses (Michael Cohen and Gates) to Stone’s calls with him on the topic.

This was Trump’s wish list, just the same as WikiLeaks had a wish list that DOJ is now using to charge Julian Assange with Espionage.

If a wish list is enough to get Assange charged with conspiring to steal the documents on the wish list, then DOJ should treat Trump’s wish list for stolen documents with equal gravity.

Update: Harpie makes a good point in comments. The end of Trump’s “Russia, if you’re listening” comment is “That’ll be next.” That likely means he has already heard from Roger Stone, who had been told by James Rosen on July 25 that the Clinton Foundation emails would be next.


TRUMP: It’s just a total deflection, this whole thing with Russia. In fact, I saw her campaign manager I don’t know his title, Mook. I saw him on television and they asked him about Russia and the hacking.

By the way, they hacked — they probably have her 33,000 e-mails. I hope they do. They probably have her 33,000 e-mails that she lost and deleted because you’d see some beauties there. So let’s see.

But I watched this guy Mook and he talked about we think it was Russia that hacked. Now, first of all was what was said on those that’s so bad but he said I watched it. I think he was live. But he said we think it was Russia that hacked.

[snip]

TRUMP: I’m not going to tell Putin what to do. Why should I tell Putin what to do? He already did something today where he said don’t blame them, essentially, for your incompetence. Let me tell you, it’s not even about Russia or China or whoever it is that’s doing the hacking. It was about the things that were said in those e-mails. They were terrible things, talking about Jewish, talking about race, talking about atheist, trying to pin labels on people — what was said was a disgrace, and it was Debbie Wasserman Schultz, and believe me, as sure as you’re sitting there, Hillary Clinton knew about it. She knew everything.

[snip]

TRUMP: Why do I have to (ph) get involved with Putin? I have nothing to do with Putin. I’ve never spoken to him. I don’t know anything about him other than he will respect me. He doesn’t respect our president. And if it is Russia — which it’s probably not, nobody knows who it is — but if it is Russia, it’s really bad for a different reason, because it shows how little respect they have for our country, when they would hack into a major party and get everything. But it would be interesting to see — I will tell you this — Russia, if you’re listening, I hope you’re able to find the 30,000 e-mails that are missing. I think you will probably be rewarded mightily by our press. Let’s see if that happens. That’ll be next. Yes, sir…

[snip]

TRUMP: No, I have nothing to do with Russia, John (ph). How many times do I have say that? Are you a smart man? I have nothing to with Russia, I have nothing to do with Russia.

And even — for anything. What do I have to do with Russia? You know the closest I came to Russia, I bought a house a number of years ago in Palm Beach, Florida.

Palm Beach is a very expensive place. There was a man who went bankrupt and I bought the house for $40 million and I sold it to a Russian for $100 million including brokerage commissions. So I sold it. So I bought it for 40, I told it for 100 to a Russian. That was a number of years ago. I guess probably I sell condos to Russians, OK?

QUESTION: (OFF-MIKE)

TRUMP: Of course I can. I told you, other than normal stuff — I buy a house if I sold it to a Russian. I have nothing to do with Russia. I said that Putin has much better leadership qualities than Obama, but who doesn’t know that?

[snip]

TRUMP: No, but they seem to be, if it’s Russians. I have no idea. It’s probably not Russia. Nobody knows if it’s Russia. You know the sad thing is? That with the technology and the genius we have in this country, not in government unfortunately, but with the genius we have in government, we don’t even know who took the Democratic National Committee e-mails. We don’t even know who it is.

I heard this morning, one report said they don’t think it’s Russia, they think it might be China. Another report said it might be just a hacker, some guy with a 200 I.Q. that can’t get up in the morning, OK? Nobody knows. Honestly they have no idea if it’s Russia. Might be Russia. But if it’s any foreign country, it shows how little respect they have for the United States. Yes, ma’am.

[snip]

QUESTION: Do you have any pause (ph) about asking a foreign government — Russia, China, anybody — to interfere, to hack into the system of anybody’s in this country…

TRUMP: That’s up to the President. Let the President talk to them. Look, here’s the problem. Here’s the problem, Katy (ph). Katy, here’s the problem, very simple. He has no respect…

QUESTION: (inaudible) 30,000 e-mails…

TRUMP: Well, they probably have them. I’d like to have them released.

QUESTION: Does that not give you pause?

TRUMP: No, it gives me no pause. If they have them, they have them. We might as well — hey, you know what gives me more pause? That a person in our government, crooked Hillary Clinton — here’s what gives me pause. Be quiet. I know you want to save her. That a person in our government, Katy, would delete or get rid of 33,000 e- mails. That gives me a big problem. After she gets a subpoena! She gets subpoenaed, and she gets rid of 33,000 e-mails? That gives me a problem (ph). Now, if Russia or China or any other country has those e-mails, I mean, to be honest with you, I’d love to see them.

[snip]

QUESTION: Did Don Jr. say back in 2008 that there was Russian money pouring into the top organizations…

TRUMP: We wanted to, yeah, I don’t know what he said. But we wanted…

(CROSSTALK)

TRUMP: Excuse me, listen. We wanted to; we were doing Miss Universe 4 or 5 years ago in Russia. It was a tremendous success. Very, very successful. And there were developers in Russia that wanted to put a lot of money into developments in Russia. And they wanted us to do it. But it never worked out.

Frankly I didn’t want to do it for a couple of different reasons. But we had a major developer, particular, but numerous developers that wanted to develop property in Moscow and other places. But we decided not to do it.

[snip]

QUESTION: (inaudible) you are the nominee. Has you or your campaign had any conversations with foreign leaders trying to build up a relationship should you win in November, that you don’t have to hit the ground running (inaudible)?

TRUMP: No, I think we — it’s possible we have. But I’m not — I’m only interested in winning. Once I win, I’ll get along great with foreign leaders, but they won’t be taking advantage. I mean, the problem we have with foreign leaders, whether it’s China, Russia, or anybody, they don’t respect our leadership. And certainly in the case of China, they take tremendous economic advantage of us — tremendous, to a point that is hard to believe.

I’ll get along great with the leadership. And we’ll do well.

Yes, ma’am, in the back?

QUESTION: Mr. Trump, (inaudible)

(CROSSTALK)

TRUMP: No, no. Excuse me. In the back?

QUESTION: I would like to know if you became president, would you recognize (inaudible) Crimea as Russian territory? And also if the U.S. would lift sanctions that are (inaudible)?

TRUMP: We’ll be looking at that. Yeah, we’ll be looking. [my emphasis]

The Three Theories of Prosecution for Julian Assange

In this post, I laid out what the 17 new charges against Julian Assange are. In this, I’ll look more closely at three theories of criminalization here:

  • Theory One: Charging Assange for causing Chelsea Manning to leak classified information by soliciting it generally or specifically (and/or discussing its value before she obtained it)
  • Theory Two: Charging Assange for offering to help crack a password and attempting to obtain the documents that would have been available using it
  • Theory Three: Charging Assange for leaking the identities of US government informants in three different databases

Theory One: Obtaining and disclosing documents that were solicited (Counts 2-4 and 6-14)

Effectively, for three sets of documents, they’ve charged Assange for causing Chelsea Manning to obtain (Charges 2 through 4), Assange obtaining himself (Charges 6 through 8), causing Manning to disclose documents she did not have authorized possession of (Charges 9 through 11), and  causing Manning to disclose legally obtained documents (Charges 12 through 13) for three sets of documents: The Gitmo Detainee Assessment Briefs, the State Department Cables, and the Iraq Rules of Engagement.

Assange is not being charged for publishing anything under this theory (that’s not true under Theory Three). He’s being charged with causing Manning to obtain and disclose them to him.

To accuse Assange of causing Manning to do these things, they show how a Most Wanted Leaks list posted on WikiLeaks until September 2010 resembles what Manning looked for on DOD’s networks and what she sent to Assange.

In addition, they show that Manning and Assange discussed some of these leaks before she obtained them.

For example, on March 7, 2010, Manning asked ASSANGE how valuable the Guantanamo Bay detainee assessment briefs would be. After confirming that ASSANGE thought they had value, on March 8, 2010, Manning told ASSANGE that she was “throwing everything [she had] on JTF GTMO [Joint Task Force, Guantanamo] at [Assange] now.” ASSANGE responded, “ok, great!”

[snip]

Manning later told ASSANGE in reference to the Guantanamo Bay detainee assessment briefs that “after this upload, thats all i really have got left.” I

It argued that Manning downloaded the State Department cables in response to the request for bulk databases on the Wish List.

Further, following ASSANGE’s “curious eyes never run dry” comment, and consistent with WikiLeaks’s solicitation of bulk databases and classified materials of diplomatic significance, as described in paragraphs 2,4-5, between on or about March 28, 2010, and April 9, 2010, Manning used a United States Department of Defense computer to download over 250,000 U.S. Department of State cables, which were classified up to the SECRET level. Manning subsequently uploaded these cables to ASSANGE and WikiLeaks through an SFTP connection to a cloud drop box operated by WikiLeaks, with an X directory that WikiLeaks had designated for Marining’s use. ASSANGE and WikiLeaks later disclosed them to the public.

And it showed that the Iraq Rules of Engagement were on the Wish List.

As of November 2009, WikiLeaks’s “Most Wanted Leaks” for the United States included the following:

[snip]

b. “Military and Intelligence” documents, including documents that the list described as classified up to the SECRET level, for example, “Iraq and Afghanistan Rules of Engagement 2007-2009 (SECRET);”

[snip]

Following ASSANGE’s “curious eyes never run dry” comment, on or about March 22,2010, consistent with WikiLeaks’s “Most Wanted Leaks” solicitation of “Iraq and Afghanistan US Army Rules of Engagement 2007-2009 (SECRET),” as described in paragraphs 4-5, Manning downloaded multiple Iraq rules of engagement files from her Secret Internet Protocol Network computer and burned these files to a CD, and provided them to ASSANGE and WikiLeaks.

Thus, for each of these, the government is saying that soliciting specific classified (or protected) materials amounts to Espionage. This is the theory of prosecution I argued would criminalize people like Jason Leopold, who was clearly engaged in journalism when he specifically asked about a specific Suspicious Activity Report from a source.

Theory Two: Attempted hacking to attempt to obtain the documents available via the hack (Counts 5 and 18)

For one vaguely defined set of documents, DOJ has charged Assange for attempting to help Manning crack a password (which was the single previous charge, which is now Charge 18) in order to attempt to obtain unidentified documents on SIPRNet.

15. In furtherance of this scheme, ASSANGE agreed to assist Manning in cracking a password hash stored on United States Department of Defense computers connected to the Secret Internet Protocol Network, a United States government network used for classified documents and communications, as designated according to Executive Order No. 13526 or its predecessor orders.

I believe (though am not certain) that that’s what the documents charged in Count 5 are about.

Between in or about November 2009 and in or about May 2010, in an offense begun and committed outside of the jurisdiction of any particular state or district of the United States, the defendant, JULIAN PAUL ASSANGE, who will be first brought to the Eastern District of Virginia, and others unknown to the Grand Jury, knowingly and unlawfully attempted to receive and obtain documents, writings, and notes connected with the national defense—^namely, information stored on the Secret Internet Protocol Network classified up to the SECRET level— for the purpose of obtaining information respecting the national defense, knowing and having reason to believe, at the time that he attempted to receive and obtain them, that such materials would be obtained, taken, made, and disposed of by a person contrary to the provisions of Chapter 37 of Title 18 of the United States Code.

This theory also doesn’t charge Assange with publishing information. Rather than charging him for soliciting leaks (Theory One), it charges him with helping to obtain documents Manning was not authorized to obtain by attempting to crack a password to get Administrators privileges.

Releasing the names of informants (Counts 15-17)

For each of three sets of US government informants, there’s also a charge tied to the informants’ identities disclosed in bulk databases.

35. Also following Manning’s arrest, during 2010 and 2011, ASSANGE published via the WikiLeaks website the documents classified up to the SECRET level that he had obtained from Manning, as described in paragraphs 12, 21, and 27, including approximately 75,000 Afghanistan war-related significant activity reports, 400,000 Iraq war-related significant activities reports, 800 Guantanamo Bay detainee assessment briefs, £ind 250,000 U.S. Department of State cables.

36. The significant activity reports from the Afghanistan and Iraq wars that ASSANGE published included names of local Afghans and Iraqis who had provided information to U.S. and coalition forces. The State Department cables that WikiLeaks published included names of persons throughout the world who provided information to the U.S. government in circumstances in which they could reasonably expect that their identities would be kept confidential. These sources included journalists, religious leaders, human rights advocates, and political dissidents who were living in repressive regimes and reported to the United States the abuses of their own government, and the political conditions within their countries, at great risk to their own safety. By publishing these documents without redacting the human sources’ names or other identifying information, ASSANGE created a grave and imminent risk that the innocent people he named would suffer serious physical harm and/or arbitrary detention.

For each database, the indictment looks at several instances of the individuals whose identities were released. It then lays out evidence that Assange knew and did not care that by publishing these identities he would be endangering people.

This is the theory of prosecution that does criminalize the publication of true information. And it criminalizes something that journalists do, at times, do.

The government often tries to classify identities that should not be (as they did with Gina Haspel, to hide her role in torture, for example). When journalists learn these identities they sometimes do choose to ignore admonitions against publication, for good reason. That’s what Assange is accused of doing here, but only on a mass scale. But if this is successful, there’s nothing that will prevent the government from charging people for disclosing classified identities at a smaller scale.

I’m also not sure how, as a foreign citizen, this doesn’t invite retaliation against the US for identifying classified identities of other countries.

The Charges Against Julian Assange

As expected, EDVA rolled out a bunch more charges, under the Espionage Act, against Julian Assange. I’m going to do a follow-up post on how stupid the way they’ve done this is, but first wanted to lay out the charges.

The indictment charges Assange with 17 new counts (in addition to the single CFAA charge they’ve already charged him with, which is now Count 18).

  • Count 1: Conspiracy to Obtain, Receive, and Disclose National Defense Information (18 USC §793(g)
  • Count 15: Unauthorized Disclosure of National Defense Information — informants in Afghan Significant Activity Reports (18 USC §793(e))
  • Count 16: Unauthorized Disclosure of National Defense Information — informants in Iraq Significant Activity Reports (18 USC §793(e))
  • Count 17: Unauthorized Disclosure of National Defense Information –informants in State Department Cables (18 USC §793(e))
  • Count 18: Conspiracy to Commit Computer Intrusion (18 USC §641, 793(c) and 793(e)

Then there are a set of throw-everything-at-the-wall charges that charges Manning giving three sets of files — the Detainee Assessment Briefs, the State Department Cables, and the Iraq Rules of Engagement — to Assange in four different ways.

The attempt, Count 5, is related to the files Chelsea Manning would have gotten had the password crack been successful.

So effectively, there are three main sets of documents, the Gitmo Detainee Assessment Briefs, the State Department Cables, and the Iraq Rules of engagement, for which EDVA has charged Assange for causing Manning to obtain them, Assange obtaining them himself, causing Manning to disclose documents she had legal access to to Assange, and causing Manning to disclose documents she had unauthorized possession of to Assange. (It’s worth noting that three of these four steps are replicated in the existing Joshua Schulte indictment.)

Then there are three sets of informants that Assange disclosed — those not redacted in the Afghan Significant Activity Reports, those not redacted in the Iraq Significant Activity Reports, and those not redacted in the State Department cables.

Then there are the two charges associated with what Manning would have gotten had Assange succeeded in cracking that password — the CFAA charge and the attempt to obtain charge.

Finally, there’s an overriding conspiracy.

The Scope and Results of the Mueller Report

There’s a Twitter account, TrumpHop, that tweets out Donald Trump’s tweets from years earlier, which is a really disorienting way to remind yourself how crazy he’s been since he’s been on Twitter. This morning, it recalled that two years ago today, Trump was inventing excuses for having shared highly classified Israeli intelligence at the same meeting where he boasted to Sergei Lavrov that he fired Jim Comey a week earlier because of the Russian investigation.

Two years ago, Rod Rosenstein — the same guy who stood, mostly stoically, as a prop for Bill Barr’s deceitful press conference spinning the Mueller Report one last time before releasing it — was in a panic, trying to decide what to do about a President who had fired the FBI Director to end an investigation into what might be real counterintelligence compromise on his part by a hostile foreign country and then went on to share intelligence with that same hostile foreign country. Tomorrow is the two year anniversary of Mueller’s appointment.

As I noted days after the Mueller Report was released, it is utterly silent on that sharing of information and two of the other most alarming incidents between Trump and Russia (though that may be for sound constitutional, rather than scope reasons) — Trump’s conversation with Putin about the subject of his own June 9 false statement even as he was drafting that statement, and the Helsinki meeting. That said, it cannot be true that Mueller didn’t consider those counterintelligence issues, because his treatment of Mike Flynn would have been far different if he didn’t have good reason to be sure — even if he deliberately obscures the reasons why he’s sure in the report — that Flynn, at the time under active counterintelligence investigation for his suspect ties to Russia, wasn’t entirely freelancing when he undermined US policy to offer sanctions considerations to Russia on December 29, 2016.

Nevertheless, a rising cry of people are suggesting that because we weren’t told the results of the counterintelligence investigation (whether it included the President or, because of constitutional reasons, did not), Mueller did not conduct a counterintelligence investigation. He (and, especially, FBI Agents working alongside him) did. Here’s what the report says, specifically, about the FBI writing up CI and Foreign Intelligence reports to share with the rest of FBI.

From its inception, the Office recognized that its investigation could identify foreign intelligence and counterintelligence information relevant to the FBI’s broader national security mission. FBI personnel who assisted the Office established procedures to identify and convey such information to the FBI. The FBI’s Counterintelligence Division met with the Office regularly for that purpose for most of the Office’s tenure. For more than the past year, the FBI also embedded personnel at the Office who did not work on the Special Counsel’s investigation, but whose purpose was to review the results of the investigation and to send-in writing-summaries of foreign intelligence and counterintelligence information to FBIHQ and FBI Field Offices. Those communications and other correspondence between the Office and the FBI contain information derived from the investigation, not all of which is contained in this Volume. This Volume is a summary. It contains, in the Office’s judgment, that information necessary to account for the Special Counsel’s prosecution and declination decisions and to describe the investigation’s main factual results.

Mueller didn’t report on it, as he states explicitly, because that’s outside the scope of what he was required and permitted to report under the regulations governing his appointment, which call for a prosecutions and declinations report.

That’s just one of the misconceptions of the scope, intent, and results of the Mueller Report that persists (and not just among the denialist crowd), almost a month after its release.

The Mueller Report does not purport to tell us what happened — that would be a violation of the regulations establishing the Special Counsel. It only describes the prosecutorial and declination decisions. The scope of those decisions includes:

  • Who criminally conspired in two Russian election interference efforts (just one American was charged, but he did not know he was helping Russians troll the US)
  • Whether Trump’s associates were agents of a foreign power in violation of FARA or 18 USC 951, including whether they were agents of Ukraine (as Paul Manafort and Rick Gates were before the election), Israel (as lots of evidence suggested George Papadopoulos might have been), Turkey (as Mike Flynn admitted he had been during and for a short while after the election), as well as Russia
  • Whether Trump’s associates conspired with Russia in some way; Mueller’s review included a quid pro quo, but his prosecutorial decisions did not include things unrelated to Russia’s election interference (which might, for example, include pure graft, including during the Transition period or related to the inauguration)
  • Which of Trump’s associates got charged with lying (Flynn, Papadopoulos, Michael Cohen, Roger Stone), were ruled by a judge to have lied (Paul Manafort), and which lied but were not charged (at least three others, including KT McFarland) in an effort to obstruct the investigation
  • Whether accepting a meeting offering dirt as part of the Russian government’s assistance to Trump or optimizing WikiLeaks’ release of emails stolen by Russia to help Trump’s campaign amount to accepting illegal donations from foreigners
  • Whether Trump’s numerous efforts to undermine the investigation amount to obstruction

Two facts necessarily follow from Mueller’s limit in his report to prosecutorial decisions rather than describing what happened, both of which are explained on page 2 of the report (though even the Attorney General, to say nothing of the denialist crowd, appears not to have read that far). First, Mueller did not weigh whether Trump “colluded” with Russia, because that’s not a crime that could be prosecuted or declined.

In evaluating whether evidence about collective action of multiple individuals constituted a crime, we applied the framework of conspiracy law, not the concept of “collusion.” In so doing, the Office recognized that the word “collud[e]” was used in communications with the Acting Attorney General confirming certain aspects of the investigation’s scope and that the term has frequently been invoked in public reporting about the investigation. But collusion is not a specific offense or theory of liability found in the United States Code, nor is it a term of art in federal criminal law.

Because “collusion” is not a crime, Mueller could not weigh in one way or another without being in violation of the regulations underlying his appointment. Mind you, Bill Barr could have changed these reporting requirements if he wanted and asked Mueller to comment on “collusion.” He did not.

In addition, Mueller’s measure was always whether his investigation “established” one or another crime. But stating that he did not establish a crime is not the same as saying there was no evidence of that crime.

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

Mueller describes in very general way that he didn’t get all the information he’d have liked to weigh whether or not conspiracy was committed.

The investigation did not always yield admissible information or testimony, or a complete picture of the activities undertaken by subjects of the investigation. Some individuals invoked their Fifth Amendment right against compelled self-incrimination and were not, in the Office’s judgment, appropriate candidates for grants of immunity. The Office limited its pursuit of other witnesses and information–such as information known to attorneys or individuals claiming to be members of the media–in light of internal Department of Justice policies. See, e.g. , Justice Manual §§ 9-13.400, 13.410. Some of the information obtained via court process, moreover, was presumptively covered by legal privilege and was screened from investigators by a filter (or “taint”) team. Even when individuals testified or agreed to be interviewed, they sometimes provided information that was false or incomplete, leading to some of the false-statements charges described above. And the Office faced practical limits on its ability to access relevant evidence as well-numerous witnesses and subjects lived abroad, and documents were held outside the United States.

Further, the Office learned that some of the individuals we interviewed or whose conduct we investigated–including some associated with the Trump Campaign—deleted relevant communications or communicated during the relevant period using applications that feature encryption or that do not provide for long-term retention of data or communications records. In such cases, the Office was not able to corroborate witness statements through comparison to contemporaneous communications or fully question witnesses about statements that appeared inconsistent with other known facts.

More specifically, we know this language covers at least the following limits on the investigation:

  • Encryption or evidence destruction prevented Mueller from clarifying details of the handoff to WikiLeaks, Gates’ sharing (on Manafort’s orders) of polling data with Russia, Manafort’s communications with various people, and Erik Prince and Steve Bannon’s communications about the Seychelles meeting with Kirill Dmitriev
  • Mueller did not pursue the role of Trump and other associates’ lawyers’ substantial, known role in obstruction
  • Mueller likely did not pursue an interview with Julian Assange (and other media figures), because that would violate US Attorney Handbook warnings against compelling the sharing of journalism work product to investigate a crime related to that work product
  • Some foreigners avoided cooperating with the investigation by staying out of the country; Emin Agalarov canceled an entire US tour to avoid testifying about what kind of dirt he offered Don Jr
  • Both Donald Trumps refused to be interviewed
  • President Trump refused to answer all questions pertaining to his actions after inauguration, all but one question about the Transition, and all questions about sanctions; his other answers were largely contemptuous and in a number of cases conflict with his own public statements or the testimony of his associates

Finally a more subtle point about the results, which will set up my next post. Mueller clearly states that he did not establish a conspiracy between Trump’s people and the Russian government on election interference. By definition, that excludes whatever coordination Roger Stone had with WikiLeaks (and even with the extensive redactions, it’s clear Mueller had real First Amendment concerns with charging that coordination). But whereas Mueller said that the contacts between Trump’s associates and Russians did not amount to a crime, he suggested that the two campaign finance issues he explored — the June 9 meeting and the release of stolen emails — were crimes but not ones he could sustain a conviction for.

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

The gaps in evidence that Mueller was able to collect strongly impact this last judgment: as he laid out, he needed to know what Don Jr understood when he accepted the June 9 meeting, and without interviewing either Emin Agalarov and/or Jr, he couldn’t get at Jr’s understanding of the dirt offered.

As I’ve noted repeatedly, it is absolutely false to claim –as Attorney General Barr did — that Mueller’s report says there was no underlying crime to cover up with Trump’s obstruction. Mueller specifically mentions SDNY’s prosecution of Trump’s hush payments to Stormy Daniels and Karen McDougal, a crime which was charged, and which was one of the explicit purposes behind the raid on Cohen’s home and office. And as such, that crime is pertinent to the pardon dangle for Cohen.

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

But with regards to the Russian-related campaign finance investigation, Mueller describes that Trump may have believed those would be criminal.

[T]he evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns.

The distinction about whether a crime was committed versus whether it was charged may be subtle. But it is an important one for the obstruction investigation. And as I’ll show, that may have interesting repercussions going forward.

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

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

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

[snip]

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

Sweden Reopens Assange Rape Case

There was a bit of drama and excitement that went down in the middle of the night. The Swedish Prosecution Authority has officially reopened the case against Assange on the remaining rape allegation. Here is the official statement:

Deputy Director of Public Prosecution Eva-Marie Persson has today decided to reopen the Assange case that was previously discontinued.

The prosecutor will shortly request that Julian Assange be detained in his absence suspected on probable cause for an allegation of rape from August 2010. To be able to execute a detention order, the prosecutor will issue a European Arrest Warrant. An application for a detention order will be submitted to Uppsala District Court, as the suspected crime took place in Enköping municipality.

– On account of Julian Assange leaving the Ecuadorian embassy, the circumstances in this case have changed. I take the view that there exists the possibility to take the case forward. Julian Assange has been convicted of a crime in the UK and will serve 25 weeks of his sentence before he can be released, according to information from UK authorities. I am well aware of the fact that an extradition process is ongoing in the UK and that he could be extradited to the US. In the event of a conflict between a European Arrest Warrant and a request for extradition from the US, UK authorities will decide on the order of priority. The outcome of this process is impossible to predict. However, in my view the Swedish case can proceed concurrently with the proceedings in the UK, says Deputy Director of Public Prosecution Eva-Marie Persson.

Reopening the investigation means that a number of investigative measures will take place.

– In my opinion a new interview with the suspect is required. It may be necessary, with the support of a European Investigation Order, to request an interview with JA be held in the UK. Such an interview, however, requires JA’s consent, says Eva-Marie Persson.

Case number in Stockholm District Court: B 12885-10.

Here is a pdf of the full opinion and decision.

Few thoughts. It appears clear that Sweden will be filing a new European Arrest Warrant EAW), and I would expect they lodge that forthwith. Which will result in competing extradition requests from the United States and Sweden. There are many factors that will play into the decision by the UK of where to ship Assange when his sentence on the bail jumping offense is done. The final decision is in the hands of the UK Home Secretary Sajid Javid.

Several factors, but most critically the pending expiration of the Swedish statute of limitations in August 2020 militate in favor of giving the nod to Sweden over the US. Here is the excellent David Allen Green on that. Also, there is no question of “political prosecution” with the Swedish charge, where in many regards there are such concerns with the current, and potentially future, US charges.

If Assange was smart (no given), he might consider fighting extradition to the US and waiving it as to Sweden. I have always maintained that if Assange wants to fight US extradition, he is much better situated to do so from Sweden than he is from the UK. Several international law experts agree, for instance Mark Klamberg, as cited by Kevin Jon Heller in Opinio Juris gives some great background on that issue, even though Mr. Klamberg’s original post was written back in 2012.

Another interesting thing is the SwedishProsecution Authority has indicated they will request a formal interview with Assange via video link while he is in UK prison custody. That would appear to require consent by Assange, and it is far from certain he would give that.

Also, there is still the matter of what charges will be the final ones submitted by the US to the UK. The US has until June 12 to submit its final charges to the UK per a court order. As you may recall, the Rule of Specialty makes this a critical factor, as I detailed in this post a month ago. Adding to this issue is the US looks to get a long reprieve on that if Assange is sent by the Brits to Sweden first. At that point, the US would have to file a new extradition request with the Swedes, so, obviously, they would look to have a lot more time in that circumstance.

On another front, Ecuador will give Julian Assange’s embassy computers and files to the US. Not shocking, but it is news.

Lastly, the other factor is that Assange litigated extradition to Sweden previously, and lost in every court of jurisdiction. He could fight extradition to the US for a very long time, but looks dead in the water already as to Swedish extradition.

So, in closing, there was a lot of excitement early this morning, and there will surely be more to come regarding Assange

What if Julian Assange Flipped?

I’ve said this before, I’ll say it again: I hope to hell Chelsea Manning’s advisors are cognizant of the ways her attempts to avoid testifying against Julian Assange may put her in unforeseen legal jeopardy.

I’m thinking of that anew given my consideration of what I consider to be a distant, but real, possibility: that the US government would offer Assange a plea deal on the current charge he faces in exchange for testimony in a range of other issues. The idea is crazy, but perhaps not as crazy as it sounds.

As I laid out in this post, it seems the US government has been carefully orchestrating the Assange arrest since Ecuador first applied for diplomatic status for him in 2017 in an attempt to exfiltrate him, possibly to Russia. They’re now on the clock, with (depending on which expert you ask) just 44 more days to lard on the additional charges multiple outlets have reported are coming. Meanwhile, he’s being held at Belmarsh, with conflicting stories about what kind of visitors he’s been permitted — though the UN Special Rapporteur for Privacy did visit him this week. Though I’ve asked some top experts, it’s not entirely clear whether, if he were being interrogated right now, that’d be under UK law or US law; the former has fewer protections against self-incrimination for people being detained.

One passage of the Mueller Report may provide an explanation for why his prosecutors didn’t obtain Julian Assange’s testimony.

The Office limited its pursuit of other witnesses and information-such as information known to attorneys or individuals claiming to be members of the media-in light of internal Department of Justice policies. See, e.g., Justice Manual §§ 9-13.400, 13.410.

Assange would fall squarely within DOJ policy covering people who are subjects or targets of an investigation for activities related to their news-gathering activities.

Member of the news media as subject or target. In matters in which a member of the Department determines that a member of the news media is a subject or target of an investigation relating to an offense committed in the course of, or arising out of, newsgathering activities, the member of the Department requesting Attorney General authorization to use a subpoena, 2703(d) order, or 3123 order to obtain from a third party the communications records or business records of a member of the news media shall provide all facts necessary to a determination by the Attorney General regarding both whether the member of the news media is a subject or target of the investigation and whether to authorize the use of such subpoena or court order. 28 C.F.R. 50.10(c)(5)(i). If the Attorney General determines that the member of the news media is a subject or target of an investigation relating to an offense committed in the course of, or arising out of, newsgathering activities, the Attorney General’s determination should take into account the principles reflected in 28 C.F.R. 50.10(a), but need not take into account the considerations identified in 28 C.F.R. 50.10(c)(5)(ii) – (viii). Id. Members of the Department must consult with the PSEU regarding whether a member of the news media is a subject or target of an investigation related to an offense committed in the course of, or arising out of, newsgathering activities.

The EDVA case appears to have gotten over this policy (perhaps by distinguishing the assistance on cracking a password from newsgathering activities); but it’s not clear Mueller did (especially given the discussion of First Amendment considerations in passages relating to WikiLeaks). In any case, this calculus may change given that he’s in British, not US custody.

And there has been very little reporting on what’s going on with him — or with US investigations into him.

There are a number of investigations the government would love to get his testimony on, including:

Testimony against Joshua Schulte

Schulte is the accused Vault 7 leaker. WikiLeaks has been far less circumspect about the possibility he’s their source than with other leakers (while also engaging in far less of an effort to lay the case that he’s a whistleblower). Plus, the government has video evidence of Schulte attempting to leak classified information.

But thus far, Schulte’s prosecution has been slowed by CIA’s reluctance to share the classified information Schulte needs to defend himself. Plus, the FBI apparently bolloxed up the initial search warrants for Schulte (in what I suspect was a sloppy effort at parallel construction), which Schulte has been trying to win the ability to speak publicly about for over a year; he recently appealed a decision denying him a request to exempt those initial warrants from his protective order.

To the extent that Assange and Schulte (if he is really the Vault 7 source) communicated — and there’s good reason to believe WikiLeaks did communicate in advance of this publication — then Assange might be able to provide testimony that would get beyond the classification problems.

Testimony about the response to his pardon requests (including Roger Stone’s role in it)

I also believe that DOJ continues to investigate the long effort — an effort that includes Roger Stone, whom prosecutors say is still under investigation — in brokering a pardon for Assange, possibly in part for Assange providing disinformation about where the Democratic documents came from. Consider that, as recently as November, Mueller was trying to learn whether Trump had discussed pardoning Assange before his inauguration, a question about which Trump was especially contemptuous, even given his overall contempt for responding to questions.

Then there’s a subtle point I find really interesting. When the Mueller Report lays out all the times Don Jr magnified Russian trolls, it noted that the failson’s fondness for Russian propaganda continued after the election.

96 See, e.g., @DonaldJTrumpJr 10/26/16 Tweet (“RT @TEN_GOP: BREAKING Thousands of names changed on voter rolls in Indiana. Police investigating #VoterFraud. #DrainTheSwamp.”); @DonaldJTrumpJr 11/2/16 Tweet (“RT @TEN_GOP: BREAKING: #VoterFraud by counting tens of thousands of ineligible mail in Hillary votes being reported in Broward County, Florida.”); @DonaldJTrumpJr 11/8/16 Tweet CRT @TEN_GOP: This vet passed away last month before he could vote for Trump. Here he is in his #MAGA hat. #voted #ElectionDay.”). Trump Jr. retweeted additional @TEN_GOP content subsequent to the election.

[snip]

103 @DonaldJTrumpJr 11/7/16 Tweet (“RT @Pamela jetonc13. Detroit residents speak out against the failed policies of Obama, Hillary & democrats . . . . “) [my emphasis]

The page-long section (page 60) that lays out Don Jr’s innocuous pre-election interactions (which is how I described them when they were first published) does not, similarly, note the President’s son’s more damning interactions with WikiLeaks that took place after the election, where Assange once privately

Hi Don. Hope you’re doing well! In relation to Mr. Assange: Obama/Clinton placed pressure on Sweden, UK and Australia (his home country) to illicitly go after Mr. Assange. It would be real easy and helpful for your dad to suggest that Australia appoint Assange ambassador to DC “That’s a really smart tough guy and the most famous australian you have! ” or something similar. They won’t do it, but it will send the right signals to Australia, UK + Sweden to start following the law and stop bending it to ingratiate themselves with the Clintons. 12/16/16 12:38PM

And then publicly asked for an Ambassadorship that would amount to a pardon.

Given the thoroughness of the report, I find the silence about these exchanges to be notable.

Admittedly, one aspect of the pardon campaign implicates Assange far more than (at least given the public details) it does Trump: his seeming attempt at extortion using the CIA’s hacking tools. But that doesn’t mean the government wouldn’t like his testimony about the larger effort, and I have reason to suspect that is something they were pursuing via other channels as well.

WikiLeaks’ ongoing interactions with Russia

Finally, I’m sure the US government would be willing to give Assange some consideration if he offered to describe his interactions with Russia over the years. The most public aspect of that was the WikiLeaks effort to get Snowden safely out of Hong Kong, which ended unexpectedly in Russia. But there are also credible allegations WikiLeaks engaged in some catch-and-kill of damning documents, most publicly with an incriminating document from the Syria Files. Emma Best looks more closely at that incident in a longer profile of a Russian hacker, Maksym Igor Popov, who seemed to shift loyalties back and forth from the US to Russia even while cultivating Anonymous.

Simultaneously, Sabu, who had been boasting about an alleged breach of Iranian systems, pivoted to the then-pending Syria files. “We owned central syrian bank and got all their emails,” he told Popov. There were “a lot of scandals” in those emails. In the 2012 exchange, Popov is told about an alleged email revealing that Syria had secretly sent Russia billions of Euros. Sabu appears to confuse the amount, which was 2 billion, with an amount from a similar transfer involving an Austrian bank. Reporting by The Daily Dot implies that the two emails were often discussed in the same conversation, while also revealing that the email Sabu was describing to the alleged Russian contractor was omitted from WikiLeaks’ eventual release.

WikiLeaks responded to the reporting by claiming that they “either never had the data or [that it was] in some strange MIME format so it isn’t indexed,” and that the reporting was an attack on WikiLeaks that was meant “to help HRC.”

Popov was impressed by Sabu’s description of the Syria emails, though he briefly confused them with another, unspecified cache that Sabu hinted Popov helped release. “If you want real access to the emails, I can [give it to you],” Sabu offered. Popov responded ecstatically, saying he could use it to create disinformation and fabricate conspiracies. Undaunted by Popov’s intended use for the emails, Sabu said he’d “try to set it all up soon.”

This exchange occurred several months after WikiLeaks received the first batch of the Syria files and several weeks after WikiLeaks gave the LulzSec hackers private access to a search engine to help parse the Stratfor emails which the group had also provided to WikiLeaks.

19:16 <Sabu> though we did very well on syria.. we owned central syrian bank and got all their emails 19:16 <LoD> and Nepalese hack 19:16 <Sabu> a lot of scandals ... like syria sending russia 5 billion euros before civil unrest and when russia sent warsip to trait of whateves its called 19:16 <LoD> Ive actually checked it RESPECT syria gave me some things to mastermind my next operations those email accounts were of much help to improve our strategy 19:17 <LoD> i give you thumbs up 19:17 <Sabu> well we didn't realease it yet ... that was another small hack you released. if you want real access to emails I can ive you 19:17 <LoD> really? 19:17 <LoD> can you? 19:17 <LoD> man I WILL BE in DEBT 19:17 <LoD> I can utilize it in my release 19:18 <LoD> to create a conspiracy 19:18 <Sabu> ya I'll try to set it all up soon

If Popov acquired early access to the Syria files, it would have been the score of a lifetime, giving him an exclusive early inside look at corporations and governments. However, as any later logs of discussions between Popov and Sabu aren’t part of the leaked file, it’s unclear if Popov actually received early access to the Syria files.

Already by this time period in 2011, some former Anons were expressing concern that their operations were being facilitated by Russian infrastructure.

Some followers came to believe that the leaders sought only personal aggrandisement or were effectively in cahoots with the organised criminals who may have raided Sony’s credit-card hoard after Anonymous knocked down the door. Even stalwarts such as Housh are unhappy that much of Anonymous’s infrastructure is now housed on computers used by Russian criminals. “It’s not like the Russians wanted us to get HBGary, but I want to know personally why they are doing this,” he says of the chat hosts. “Where is the money coming from?”

To be sure: a tie with Anonymous is different than a tie directly with WikiLeaks, even if Anonymous was serving as one of WikiLeaks’ important source streams at the time. Further, Best notes that there’s no evidence in available files that Popov interacted directly with WikiLeaks — nor would there be, given the scope of the publicly available chat logs.

But, particularly given the allegations that Assange fed the Seth Rich hoax as part of an effort to deny that he knew he had gotten the Democratic files from Russia, I’m sure the US government would love to know from him about any ties between WikiLeaks and Russia.

Offering Assange a plea deal might be one way to close the book on WikiLeaks without the political controversy of a trial.

The question, of course, is whether Assange would take one. Admittedly, it’s highly unlikely.

Still, as noted, he repeatedly claimed he’d love to tell all if he could avoid prison altogether. But even in a best case scenario, he’s looking at a long extradition fight from Belmarsh in conditions that are reportedly pretty shitty. A plea deal might be one way to limit how much more time in custody he faces.

Which could bode poorly for people like Chelsea Manning, making significant sacrifices to protect Assange.

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.