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The Known and Likely Content of Trump’s Search Warrant

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Yesterday, Magistrate Judge Bruce Reinhart found that, “the Government has not met its burden of showing that the entire [Trump search warrant] affidavit should remain sealed.” He ordered DOJ to provide a sealed version of proposed redactions for the warrant affidavit for Trump’s search by August 25 at noon.

Two days after the search of Mar-a-Lago I did a post laying out the likely content of what’s in that search warrant (which pretty accurately predicted what we’ve seen since). Because a warrant affidavit is one of the best ways to show how DOJ and the FBI think of the events of the last 18 months, I wanted to do a second version including all the things we have learned since.

For comparison, here are the warrants for Reality Winner and Josh Schulte, both of which were also, at least in part, warrants for a 793 investigation. Here are warrants to search Roger Stone and Oath Keeper Jeremy Brown’s houses, both Federal searches in Florida related to investigations conducted in DC (the search of Brown’s house even found allegedly classified documents, albeit only at the Secret level). Stone’s showed probable cause for a different part of the obstruction statute. Here’s the warrant Robert Mueller’s team used to get Michael Cohen’s Trump Organization emails from Microsoft.

Cover Sheet to Warrant Application

[link]

This cover sheet shows that DOJ swore out the affidavit to Magistrate Judge Bruce Reinhart over WhatsApp, who signed it on August 5.

It describes applying for a warrant to search for evidence of crimes and for contraband (a reference to the illegally possessed Presidential records). It doesn’t permit the seizure of property used in the commission of a crime so, unsurprisingly, the FBI didn’t have authority to seize Mar-a-Lago.

The cover sheet describes the three crimes under investigation this way.

The Search Warrant

[link]

The search warrant notes the docket number 22-mj-8332 that the entire country has been watching for 10 days now.

The search warrant authorizes the FBI to conduct a search of 1100 S. Ocean Blvd., Palm Beach, FL.

It was signed by Reinhart, who was the Duty Magistrate, at 12:12PM on August 5.

The warrant gave the FBI two weeks, until August 19, to conduct the search and limited the search to daytime hours (defined as 6AM to 10PM, which Trumpsters often complain amounts to a pre-dawn raid).

Attachment A

[link]

Attachment A describes Mar-a-Lago as a “resort, club, and residence” with approximately 58 bedrooms and 33 bathrooms. The warrant permitted the FBI to search all parts of Mar-a-Lago accessible to Trump (whom they refer to as FPOTUS) and his staff, except those currently occupied (at the time of the search) by Members or guests. It mentioned the “45 Office” explicitly and storage rooms, but did not describe the storage room at the center of much reporting on the search.

Attachment B

[link]

Attachment B authorized the FBI to seize “documents and records constituting evidence, contraband, fruits of crime, or other items illegally possessed” in violation of 18 USC 793, 18 USC 2071, or 18 USC 1519.

This post describes the search protocol authorized in Attachment B, with nifty graphic.

Return

Search warrant forms have a return form (describing what was seized) included in them. But here, the FBI provided that list to Trump in the form of two receipts, one signed by a Supervisory Special Agent, and one signed by a Special Agent; I’ve dubbed the latter the “CLASS receipt,” because all the classified documents described are included on that one.

The receipt lists:

  • 27 boxes, one of which is described as leatherbound; 11 are described to contain documents marked classified
  • Executive grant of clemency for Roger Stone
  • Potential Presidential record
  • 2 binders of photos
  • Handwritten note
  • Other documents catalogued on the SSA receipt

See these two posts for more on the significance of the two different receipts.

Christina Bobb signed for both receipts at 6:19PM on August 8.

Affidavit

This would start with:

  • Several paragraphs describing the affiant’s background and training
  • An assertion that the affiant believed there was probable cause that the FBI would find evidence of violations of 18 USC 793, 18 USC 2071, and 18 USC 1519 at Mar-a-Lago.

Particularly given the novel legal issues implicating a search of the former President, I think there’s likely a section describing the statutes involved. It’s likely to include:

Note: If there’s a version of this statutory language, it may be among the things DOJ would acquiesce to releasing, particularly if it implied that Trump was under investigation for stealing nuclear documents. But they might be unwilling to do that if they’re not yet sure they’ve gotten all known nuclear documents back. 

Then there’d be a section describing who was involved (the Roger Stone warrant has such paragraphs). There will be a paragraph about Trump that looks like:

Donald J. Trump (Former President of the United States, FPOTUS) is a businessman who owns and resides at 1100 S. Ocean Blvd., Palm Beach, FL. From January 20, 2017 at 12:00PM until January 20, 2021 at 12:00PM, he was the President of the United States. He ceased exercising the constitutional authorities of the President at 12:00PM on January 20, 2021. On February 5, 2021, the current President of the United States, Joe Biden, discontinued classified briefings for FPOTUS.

In addition, there are likely descriptions of the National Archives and its statutory duties.

There may be descriptions of Patrick Philbin, Pat Cipollone, Mark Meadows (all of whom were involved in negotiations with NARA over retrieving the documents), anyone caught on surveillance video entering or exiting the storage closet, of Kash Patel and John Solomon (including past security concerns raised about both), and the Trump lawyers involved in the June meeting.

There may be a paragraph describing MAL in more depth. It might describe the SCIF used during Trump’s presidency and its apparent removal. It might describe the arrest and prosecution of Yujing Zhang, who breached MAL and might include other known foreign intelligence targeting of MAL. It might describe Trump’s refusal to use secure facilities at MAL, including a 2017 meeting with Shinzo Abe, though it would likely rely on public reports for this, not classified intelligence. It might describe the tunnels underneath and — and the public availability of historic diagrams of them. It might describe the known employees at MAL, including any foreign citizens. Finally, it might describe both the terms of membership and the ease with which others could access the golf club.

Timeline

The rest is probably a timeline of the investigation. The following known details are likely to appear.

On December 30, 2020, DOJ provided Trump a binder of material from the Russian investigation.

On January 8, 2021, Mike Ellis attempted to retain a compartmented NSA report for White House archives, initially refusing efforts to return it.

On January 14, 2021, the White House returned the compartmented NSA report to NSA.

On January 17, 2021, the FBI provided a list of continuing objections to Trump’s declassification of Crossfire Hurricane materials.

On January 19, 2021, via letter to Archivist of the United States David Ferriero, FPOTUS designated (among others) Pasquale (Pat) Cipollone and Patrick Philbin as his representatives with the NARA.

On January 19, 2021, FPOTUS wrote a letter authorizing the declassification of records pertaining to FBI’s investigation into Russian ties with FPOTUS’ campaign that had not yet been declassified. Patel later described the materials to include:

transcripts of intercepts made by the FBI of Trump aides, a declassified copy of the final FISA warrant approved by an intelligence court, and the tasking orders and debriefings of the two main confidential human sources, Christopher Steele and Stefan Halper, the bureau used to investigate whether Trump had colluded with Russia to steal the 2016 election.

Patel’s description appears to conflict with Trump’s order, which explicitly, “does not extend to materials that must be protected from disclosure pursuant to orders of the Foreign Intelligence Surveillance Court.”

On January 20, 2021, Meadows sent “The Attorney General” a memo, citing the January 19 order from FPOTUS, ordering “the Department must expeditiously conduct a Privacy Act review under the standards that the Department of Justice would normally apply, redact material appropriately, and release the remaining material with redactions applied.”

On January 20, 2021, FPOTUS ceased exercising the authorities of the President of the United States.

On January XX, records deemed to be the final production of Presidential Records arrived at NARA.

The affidavit would describe the inventorying process and then describe known documents that were not included.

  • Love letters from Kim Jong Un
  • Altered map of Hurricane Dorian

It would also include a description of evidence of document destruction, including any evidence those records pertained to a Congressional investigation, impeachment, or a criminal investigation.

Starting on May 6, 2021, NARA General Counsel Gary Stern communicated with Philbin regarding the missing records. [This will cite the date of each communication and quote anything that captures Trump’s refusal to return the documents.]

Having not secured identified records, starting in Fall 2021, Stern communicated with Trump attorney (probably Cipollone) to arrange turning over the records.

October 18, 2021: Trump sues to prevent the Archives from complying with January 6 Committee subpoena.

November 10, 2021: Judge Tanya Chutkan denies Trump’s motion for an injunction against NARA. (While it wouldn’t appear in the affidavit, in recent days Paul Sperry has claimed that Trump withheld documents to prevent NARA from turning them over to the January 6 Committee.)

On December XX, 2021, XX informed NARA certain missing records had been located.

December 9, 2021: DC Circuit upholds Judge Chutkan’s decision releasing Trump records to the January 6 Committee.

On January 17, 2022, NARA retrieved 15 boxes of Records from 1100 S. Ocean Blvd, Palm Beach, FL.

January 19, 2022: SCOTUS upholds Chutkan’s decision.

On January 31, 2022, NARA completed an initial inventory of the retrieved documents. It discovered over 100 documents with classification markings, comprising more than 700 pages. Some include the highest levels of classification, including Special Access Program (SAP) material.

On February xx (possibly February 8), 2022, NARA reported FPOTUS’ failures to comply with the Presidential Records Act to the Department of Justice and requested an investigation.

DOJ and FBI likely conducted interviews between February and May, which would be listed.

On April 11, 2022, Biden’s White House Counsel instructed NARA provide FBI access to the 15 boxes of materials returned from Mar-a-Lago.

On April 12, 2022, NARA instructed the Trump team of that decision, and informing him that the FBI would start to access the documents on April 18.

On April XX, Trump’s attorneys ask the White House counsel for more time before the review of the documents; Biden extends the date to April 29.

On May 5, 2022, Corcoran proposed reviewing the records at NARA.

On May 5, 2022, Kash Patel made public claims that the contents of materials returned to NARA had been declassified, describing that FPOTUS wanted to release,

information that Trump felt spoke to matters regarding everything from Russiagate to the Ukraine impeachment fiasco to major national security matters of great public importance — anything the president felt the American people had a right to know is in there and more.

FBI conducted early interviews during this period, likely including Philbin, Scott Gast, Derek Lyons, and Cipollone, and possibly Mark Meadows. Philbin and Cipollone would have described their own inspections of records, including their knowledge that identified missing records had been at MAL when they had conducted records searches.

FBI would include multiple interviews of people describing Trump saying the Presidential Records belonged to him.

On May 10, 2022, Acting Archivist informed Evan Corcoran the FBI would get access to the records on May 12.

On May 11, 2022, FBI subpoenaed Trump for documents remaining at Mar-a-Lago bearing classification marks.

On May 12, pursuant to a subpoena, FBI accessed the 15 boxes turned over in January.

From May 16-18, FBI conducted a preliminary review of. the documents and discovered:

  • 67 Confidential documents
  • 92 Secret documents
  • 25 Top Secret documents
  • Documents marked HCS, FISA, ORCON, NOFORN, and SI
  • Handwritten notes

On May XX, 2022, DOJ subpoenaed FPOTUS for any remaining documents bearing classification marks.

Surveillance video from this period, later obtained with a subpoena, showed people moving documents in and out of the storage room. The people and dates would be included.

On June 3, 2022, Jay Bratt and three investigators met with Evan Corcoran and Christina Bobb to collect the subpoenaed materials.

  • FPOTUS joined the meeting and acknowledged the effort to retrieve classified materials.
  • Bobb and Corcoran provided XX documents marked with classification marks.
  • One of the lawyers signed an attestation that all classified documents had been turned over.
  • Bratt informed Bobb and Corcoran all records covered by the Presidential and Federal Records Act were US government property.
  • Bratt informed Bobb and Corcoran about the regulations guiding storage of classified records.
  • Bratt and investigators inspect storage facility, find storage facility fails to meet required standards for storage.

On June 8, Bratt emailed Corcoran. He said, in part, that,

We ask that the room at Mar-a-Lago where the documents had been stored be secured and that all the boxes that were moved from the White House to Mar-a-Lago (along with any other items in that room) be preserved in that room in their current condition until further notice

It’s likely either at the meeting on June 3 or in the email, Bratt also informed Corcoran that the storage closet did not comply with CFR guidelines.

On June 9, Corcoran wrote saying only, “I write to acknowledge receipt of this letter.”

On June 19, FPOTUS sent a letter to NARA designating Patel and Solomon as representatives to access “Presidential records of my administration.”

NARA, possibly Gary Stern, likely informed DOJ of the designation of Patel and Solomon and (probably) Trump’s reference to “Presidential records,” generally, not records at NARA.

On June 22, DOJ subpoenaed surveillance video of the storage closet for a 60-day period. Analysis of the video showed uncleared people entering in and out of the storage closet.

DOJ likely had follow-up interviews after the Bratt meeting and the surveillance video return, in part to identify who had access to the storage closet and to identify documents believed to remain outstanding.

The affidavit would include a description of known documents that remain extant, including documents that were altered or mutilated (perhaps transcripts of Trump’s meetings with Russia) and known classified documents, including those pertaining to nuclear weapons. 

Finally, the affidavit would include a conclusion stating that all this amounts to probable cause that Trump was in possession of documents that were covered by the PRA, some subset of which were believed to be classified and some other subset of which had either been hidden or damaged in an effort to obstruct either this or other investigations.

emptywheel Trump Espionage coverage

Trump’s Timid (Non-Legal) Complaints about Attorney-Client Privilege

18 USC 793e in the Time of Shadow Brokers and Donald Trump

[from Rayne] Other Possible Classified Materials in Trump’s Safe

Trump’s Stolen Documents

John Solomon and Kash Patel May Be Implicated in the FBI’s Trump-Related Espionage Act Investigation

[from Peterr] Merrick Garland Preaches to an Overseas Audience

Three Ways Merrick Garland and DOJ Spoke of Trump as if He Might Be Indicted

The Legal and Political Significance of Nuclear Document[s] Trump Is Suspected to Have Stolen

Merrick Garland Calls Trump’s Bluff

Trump Keeps Using the Word “Cooperate.” I Do Not Think That Word Means What Trump Wants the Press To Think It Means

[from Rayne] Expected Response is Expected: Trump and Right-Wing DARVO

DOJ’s June Mar-a-Lago Trip Helps Prove 18 USC 793e

The Likely Content of a Trump Search Affidavit

All Republican Gang of Eight Members Condone Large-Scale Theft of Classified Information, Press Yawns

Some Likely Exacerbating Factors that Would Contribute to a Trump Search

FBI Executes a Search Warrant at 1100 S Ocean Blvd, Palm Beach, FL 33480

The ABCs (and Provisions e, f, and g) of the Espionage Act

Trump’s Latest Tirade Proves Any Temporary Restraining Order May Come Too Late

How Trump’s Search Worked, with Nifty Graphic

Pat Philbin Knows Why the Bodies Are Buried

Rule of Law: DOJ Obtained Trump’s Privilege-Waived Documents in May

The French President May Be Contained Inside the Roger Stone Clemency

Which of the Many Investigations Trump Has Obstructed Is DOJ Investigating?

The Known and Likely Content of Trump’s Search Warrant

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The ABCs (and Provisions e, f, and g) of the Espionage Act

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When Donald Trump wrote the Acting Archivist to give Kash Patel and John Solomon access to what they have since claimed were his Presidential Archives, he made a point of emphasizing that neither had been convicted of the crime that would disqualify them from accessing the records archived in official government archives at 700 Pennsylvania Avenue and elsewhere: “a crime that involves reviewing, retaining, removing, or destroying NARA records.”

Both individuals meet the requirements for access to records under 36 C.F.R. § 1270.44(a)(4).

That is, as far as we know, true. Neither has been convicted of a crime specifically involving access to the Archives.

But Solomon has long been publicly implicated in an investigation into a Dmitry Firtash-linked attempt to funnel Trump Russian-provided dirt. And The Hill’s review of his work included many details that might allow DOJ to treat him as something other than a journalist in that investigation.

As for Kash, at least in April 2021, he was reportedly under investigation for leaking classified information, something that might have led the government to strip his clearance if they hadn’t already.

Both would be wildly inappropriate people to give preferential access to Trump’s Presidential archives. But they nevertheless would qualify under statute.

But Trump wasn’t writing to give Kash and Solomon access to his Archives. His letter explicitly stated he was giving them access to, “Presidential records of my administration.” A week ago, the FBI carted away 27 boxes of “Presidential records of [Trump’s] administration” that had not been properly turned over to the custody of the Archives for safe keeping.

Those details from Trump’s letter, plus new reporting on the events of June, adds to the possibly that this letter was an attempt to retroactively justify access to classified records that, in addition to documents pertaining to the Russian investigation, also likely included even more sensitive documents.

In a largely insipid storyline of the search, Christina Bobb described the WaPo about DOJ’s request after touring the storage closet in which Trump was hoarding classified documents differently than previous, anonymous explanations that likely also come from her.

Bobb told The Post that the group toured the storage facility, opening boxes and flipping through the records inside. She said Justice Department officials indicated they did not believe the storage unit was properly secured, so Trump officials added a lock to the facility.

By description, that’s not (as earlier reported) a request that Trump buy a bigger lock. It almost certainly was a reminder that classified information must be stored according to certain guidelines. DOJ’s letter probably even included a citation to 20 CFR § 2001.43, which describes (among other things) the standard of lock that must be used to store classified documents (italicized below).

(a) General. Classified information shall be stored only under conditions designed to deter and detect unauthorized access to the information. Storage at overseas locations shall be at U.S. Government-controlled facilities unless otherwise stipulated in treaties or international agreements. Overseas storage standards for facilities under a Chief of Mission are promulgated under the authority of the Overseas Security Policy Board.

(b) Requirements for physical protection–

(1) Top Secret. Top Secret information shall be stored in a GSA-approved security container, a vault built to Federal Standard (FED STD) 832, or an open storage area constructed in accordance with Sec. 2001.53. In addition, supplemental controls are required as follows:

(i) For GSA-approved containers, one of the following supplemental controls:

(A) Inspection of the container every two hours by an employee cleared at least to the Secret level;

(B) An Intrusion Detection System (IDS) with the personnel responding to the alarm arriving within 15 minutes of the alarm annunciation. Acceptability of Intrusion Detection Equipment (IDE): All IDE must be in accordance with standards approved by ISOO. Government and proprietary installed, maintained, or furnished systems are subject to approval only by the agency head; or

(C) Security-In-Depth coverage of the area in which the container is located, provided the container is equipped with a lock meeting Federal Specification FF-L-2740.

(ii) For open storage areas covered by Security-In-Depth, an IDS with the personnel responding to the alarm arriving within 15 minutes of the alarm annunciation.

(iii) For open storage areas not covered by Security-In-Depth, personnel responding to the alarm shall arrive within five minutes of the alarm annunciation.

(2) Secret. Secret information shall be stored in the same manner as Top Secret information or, until October 1, 2012, in a non-GSA-approved container having a built-in combination lock or in a non-GSA-approved container secured with a rigid metal lockbar and an agency head approved padlock. Security-In-Depth is required in areas in which a non-GSA-approved container or open storage area is located. Except for storage in a GSA-approved container or a vault built to FED STD 832, one of the following supplemental controls is required:

(i) Inspection of the container or open storage area every four hours by an employee cleared at least to the Secret level; or

(ii) An IDS with the personnel responding to the alarm arriving within 30 minutes of the alarm annunciation.

(3) Confidential. Confidential information shall be stored in the same manner as prescribed for Top Secret or Secret information except that supplemental controls are not required.

(c) Combinations. Use and maintenance of dial-type locks and other changeable combination locks.

(1) Equipment in service. Combinations to dial-type locks shall be changed only by persons authorized access to the level of information protected unless other sufficient controls exist to prevent access to the lock or knowledge of the combination. Combinations shall be changed
under the following conditions:

(i) Whenever such equipment is placed into use;

(ii) Whenever a person knowing the combination no longer requires access to it unless other sufficient controls exist to prevent access to the lock; or

(iii) Whenever a combination has been subject to possible unauthorized disclosure.

(2) Equipment out of service. When security equipment is taken out of service, it shall be inspected to ensure that no classified information remains and the combination lock should be reset to a standard combination of 50-25-50 for built-in combination locks or 10- 20-30 for combination padlocks.

(d) Key operated locks. When special circumstances exist, an agency head may approve the use of key operated locks for the storage of Secret and Confidential information. Whenever such locks are used, administrative procedures for the control and accounting of keys and locks shall be included in implementing regulations required under section 5.4(d)(2) of the Order. [my emphasis]

This section of 32 CFR Parts 2001 and 2003 gets cited in search warrant affidavits for 18 USC 793e; here’s how it appeared, for example, in Reality Winner’s search warrant:

32 C.F.R. Parts 2001 and 2003 regulate the handling of classified information. Specifically, 32 C.F.R. § 2001.43, titled “Storage,” regulates the physical protection of classified information. This section prescribes that Secret and Top Secret information “shall be stored in a GSA-approved security container, a vault built to Federal Standard (FMD STD) 832, or an open storage area constructed in accordance with § 2001.53.” It also requires periodic inspection of the container and the use of an Intrusion Detection System, among other things.

In Trump’s search warrant, a similar paragraph or one following it would include language about how, when the head of DOJ’s Espionage division, Jay Bratt, went and inspected Trump’s storage facility storing documents classified at least at the Secret level on June 3, he found some easily picked lock from WalMart or whatever it was on the door.

Given that the email Bratt sent Trump on June 8 did not say, buy a new lock but instead said, you’re not complying with the requirements for storing classified information, it may also have made a request for proof that someone with clearance at the Secret level was coming to check his stash of documents every 4 hours (see the language bolded above). A refusal to provide that proof voluntarily (because Trump wasn’t complying) may explain why DOJ subpoenaed Trump for such information, reportedly on June 22. Or they may have had other reason to worry, such as Kash Patel’s claims, made on May 4, to have specific knowledge of which documents Trump had returned (which, if Kash’s clearance got stripped when he was under investigation for leaking, he would have no legal basis to know).

But DOJ did subpoena Trump for two months of security footage. And it turned out to show people moving documents in and out of the closet seemingly in conjunction of requests for DOJ.

The Justice Department also subpoenaed surveillance footage from Mar-a-Lago recorded over a 60-day period, including views from outside the storage room. According to a person briefed on the matter, the footage showed that, after one instance in which Justice Department officials were in contact with Mr. Trump’s team, boxes were moved in and out of the room.

That activity prompted concern among investigators about the handling of the material. It is not clear when precisely the footage was from during the lengthy back-and-forth between Justice Department officials and Mr. Trump’s advisers, or whether the subpoena to Mr. Trump seeking additional documents had already been issued.

Given that Trump had no reason to expect that DOJ would ask to see this storage closet on June 3, the moving of boxes may reflect an effort to hide the classified documents from the lawyer who affirmed there were no classified documents there, rather than an effort to hide them from DOJ (in which case the lawyer in question, possibly the suddenly-silent Evan Corcoran, would be in a legal conflict with Trump and might be forced to testify against him).

Which brings us to what is still a chicken-and-egg moment, which might be any of the following:

  • Trump refused to provide surveillance video voluntarily knowing it wouldn’t show compliance with the CFR but would show damning information, which led DOJ to subpoena it, which led to the discovery of uncleared people accessing classified materials (a violation of 18 USC 793f or g, in addition to the violation of 793e)
  • A Trump lawyer realizing the email about CFR compliance meant Trump was in trouble and needed to cover his tracks
  • DOJ finding other reason to be concerned, such as the Kash comments from May seeming to reflect personal knowledge of Trump’s classified documents or Trump’s letter to the Archives reflecting plans to give two people about whom DOJ would have particularized security concerns access to “Presidential records of my administration”

Like I said, thus far it’s a chicken-and-egg thing, but all these things came to a head in late June.

Ultimately, on June 19, Trump filed paperwork that provides the appearance of official access for Kash and Solomon, and (reportedly on June 22), DOJ served a subpoena asking for records showing who had entered and exited the closet. On June 22, so by reports, the same day that Trump got the subpoena but three days after Trump gave Kash the access, Kash went public with his claim to be accessing Trump’s records at the Archive, which is not what the letter asks for.

The problem, though, is that Trump was no longer an original classification authority after January 20 — even his own clearance would be limited! So while he could give Kash and Solomon monitored, privileged access at the Archives (because, while they were both security concerns, they had never been convicted of stealing records from the Archives), Trump had no authority to give them access to the Presidential records at his golf resort, because they included classified records that neither had clearance to access much less a need to know.

Here are all the ways that 18 USC 793 of the Espionage Act add to someone’s liability if they share classified information with people not entitled to receive it,

(d)Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or

(e)Whoever having unauthorized possession of, access to, or control over any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted, or attempts to communicate, deliver, transmit or cause to be communicated, delivered, or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it to the officer or employee of the United States entitled to receive it; or

(f)Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—

Shall be fined under this title or imprisoned not more than ten years, or both.

(g) If two or more persons conspire to violate any of the foregoing provisions of this section, and one or more of such persons do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be subject to the punishment provided for the offense which is the object of such conspiracy. [my emphasis]

Note, I included 18 USC 793d, but I think that under the Presidential Records Act, Trump no longer had authorization to store those documents. I included it because, if Trump pushed the point, he could be charged under that statute instead of 793e.

Both before and, especially, since this has blown up, Kash Patel and John Solomon have been the loudest purveyors of false claims that this is about classified information. Both were insisting in July, for example, that they knew that all the Russian-related documents Trump tried to declassify in the last minutes during which he still had authority had in fact been declassified and remained declassified. Kash, especially, knows that the Espionage Act is not about classified information anyway, but instead National Defense Information.

I still don’t think that these events are primarily about Kash and Solomon. But I think Trump’s efforts to have them continue to purvey false claims that he had not actually been implicated with improper ties to Russia may have led him to do stupid things that expanded his own (and their) liability under the Espionage Act.

DOJ could have written the warrant to convey that Trump was only under investigation for 18 USC 793e, the most obvious clause covering his refusal to give documents back. They did not. And all the people around Trump should be more worried about their own legal liability right now than spreading false claims that any attempt by Trump to declassify National Defense Information could change his legal exposure.

emptywheel Trump Espionage coverage

Trump’s Timid (Non-Legal) Complaints about Attorney-Client Privilege

18 USC 793e in the Time of Shadow Brokers and Donald Trump

[from Rayne] Other Possible Classified Materials in Trump’s Safe

Trump’s Stolen Documents

John Solomon and Kash Patel May Be Implicated in the FBI’s Trump-Related Espionage Act Investigation

[from Peterr] Merrick Garland Preaches to an Overseas Audience

Three Ways Merrick Garland and DOJ Spoke of Trump as if He Might Be Indicted

The Legal and Political Significance of Nuclear Document[s] Trump Is Suspected to Have Stolen

Merrick Garland Calls Trump’s Bluff

Trump Keeps Using the Word “Cooperate.” I Do Not Think That Word Means What Trump Wants the Press To Think It Means

[from Rayne] Expected Response is Expected: Trump and Right-Wing DARVO

DOJ’s June Mar-a-Lago Trip Helps Prove 18 USC 793e

The Likely Content of a Trump Search Affidavit

All Republican Gang of Eight Members Condone Large-Scale Theft of Classified Information, Press Yawns

Some Likely Exacerbating Factors that Would Contribute to a Trump Search

FBI Executes a Search Warrant at 1100 S Ocean Blvd, Palm Beach, FL 33480

The ABCs (and Provisions e, f, and g) of the Espionage Act

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Other Possible Classified Materials in Trump’s Safe

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[NB: As always, check the byline. Thanks. /~Rayne]

I’ve been sitting on this since last November. I had pieces I couldn’t quite pull together. But now that the FBI has executed a warrant on Trump at Mar-a-Lago to seize stolen presidential records and classified materials, those disparate pieces may be coming together.

While this is nowhere near as exciting as missing nuclear documents, is it possible there were other crimes in progress at the time Trump left office — ones which might have happened under our noses and may have posed national security threats then and now?

Please also note this post is partially speculative as well.

~ ~ ~

In late 2020, something happened in Morocco which might offer hints at whatever crimes might have been cooked up elsewhere.

There was little mainstream news coverage in the U.S.; we were too preoccupied with election-related coverage to pay much attention.

In exchange for recognizing Morocco’s illegitimate occupancy of Western Sahara – violating West Saharan Sahrawi people’s human rights to self determination – the Trump administration sold nearly a billion dollars in weapons to Morocco.

The deal was characterized as part of a process of restoring Morocco’s relationship with Israel. Morocco’s land grab was first recognized on Thursday, December 10, 2020 in a tweet by Trump. The arms deal was reported on Friday, December 11.

In other words, the arms deal portion of the negotiations was buried in the news dump zone, while much of the U.S. was watching Team Trump’s election theatrics.

The arms deal could have been another quid pro quo. As late as it happened in Trump’s term, as hushed and hurried as it was, with as little support as it had among Republicans, something about the deal still reeks to high heaven.

The United Nations didn’t see eye to eye with the Trump administration about this new disposition of West Sahara; it had been blindsided by what it saw as an abrupt reversal of US policy.

The UN continued to recognize West Saharan Sahrawi people’s human rights to autonomy though West Sahara remains a non-self governing territory.

What a coincidence, though, that Morocco issued a one billion euro bond in September 2020 before the US election. It had been toying with issuing a two billion euro bond at least as early as the first week of August, thought this may have been an expansion of a two-bond program announced in March 2019 with a one billion euro bond sold out in November 2019.

It’s also a coincidence that Morocco finished building a new base in summer of 2020, with plans to build or expand another for a large number of F-16 fighters and Apache helicopters it agreed to buy from the US in 2019.

Finally, it could be a hat trick that Morocco hosted Ukrainian national guard members for training early this year at that brand new base, before Russia’s attack on Ukraine began in late February. Was this part of the earlier negotiations?

Timeline:

March 25, 2019 — Morocco agreed to purchase 25 F-16s from US

November 2019 — Sale of 24 Apache helicopters to Morocco approved

April 2020 — Sale of 10 Harpoon air-to-sea missiles to Morocco approved

June 1, 2020 — Construction of a military base completed in Morocco

August 9, 2020 — Morocco considered 2 billion euro bond

September XX, 2020 — Morocco issued 1 billion euro bond

November 3, 2020 — US Election Day

November 9, 2020 — Trump fired SecDef Mark Esper over Twitter, replacing him with Acting SecDef Christopher Miller; Moroccan news noted this change.

December 10, 2020 — Trump reversed US policy over Western Sahara when Trump tweeted recognition of Morocco’s claim over Western Sahara

December 11, 2020 — Arms deal announced

~ ~ ~

Back in 2020, journalist Zack Kopplin of the Government Accountability Project had gotten a tip:


It’s a long thread written over several days which includes links to reporting Kopplin did.

At the heart of this story, though, is a war crime.

Remember when Trump said “We’re keeping the oil” from Syria in October 2019? That.

Trump openly expressed a desire to commit a violation of Article 33 of the Fourth Geneva Convention, the 1907 Hague Laws and Customs of War on Land, and 18 U.S. Code 2441 War crimes, for starters. There may be more applicable laws which could have been broken.

Trump also knew the value of the oil in question — $45 million a month.

Kopplin was tipped to the basics about the company which was supposed to begin development in the northeast region of Syria, but the ultimate owner of this entity and development process wasn’t clear.

Following Kopplin’s reporting, some names pop up as connected by role (like then-Secretary of State Mike Pompeo), or rumored as connected by other relationships (like Erik Prince who funded a business tangentially related to Delta Crescent).

There’s also the frustrating interrelation between Syria, Russia, Iraq, the Kurdistan region, Turkey, Iran, and the UN’s humanitarian aid for displaced Syrians. The aid became leverage in negotiations which have been fairly opaque in US news.

The status of the oil, too, isn’t particularly clear, with Delta Crescent’s development running into policy changes with Biden’s administration, terminating its sanctions waiver.

Add to the picture the fluid challenge of trying to keep Turkey on board with US during increasing Black Sea tensions, as well as Iran in JCPOA negotiations, thwarting Russia in more than Syria, while trying to assure both humanitarian aid along with global grain shipments.

It’s a damned complex mess through which oil may or may not be smuggled through Iraq by a Kurdish political family, sanctioned or not sanctioned depending on how the Biden administration is trying to leverage the situation for humanitarian aid access, improved relations in the Levant, or decreased oil prices.

What’s really unclear is whether there were any kickbacks offered in 2019-2020 for “keeping the oil” and if any, who received or receives them.

~ ~ ~

Since his testimony before the House Oversight Committee in May 2021, I’ve not been persuaded former Acting Secretary of Defense Christopher Miller is on the up and up, along with his former chief of staff Kash Patel — one of two guys Trump is known to have named his representatives to the National Archives.

The timing of Miller’s placement as Acting SecDef in tandem with the election may seem like an obvious effort to pre-plan for January 6, but Trump is a crook. We need to look at the situation through a crook’s eyes.

What if January 6 wasn’t just about an attempt to obstruct the certification of the vote, but an effort to buy time to deal with illicit profiteering like oil obtained through a war crime?

American troops were supposed to guard the area in which Delta Crescent would develop the oil Trump was intent on keeping. Wouldn’t the Secretary of Defense need to go along with this long enough for a supply chain to be established from the oil wells to distribution?

Is this why Miller, a former Director for Special Operations and Irregular Warfare who worked during the Trump administration in counterterrorism involved in operations against Islamic State in Iraq and Levant, ended up Acting SecDef in the last days of the Trump administration?

What does Christopher Miller know? What of his sidekick Kash Patel — the one who knew the contents of Trump’s classified documents cache?

~ ~ ~

Marcy wrote about some very strong candidates for classified documents Trump might have had at Mar-a-Lago. I think both the circumstances surrounding the rushed Morocco arms deal and the Syrian oil development are two more candidates, especially since both matters may have tentacles reaching into ongoing national security concerns.

But I also have a feeling we’re scratching the surface with the boxes of paper seized this week.

I hadn’t even gotten around to the Kurdish link to Miami, Florida or illegal drug trade.

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John Solomon and Kash Patel May Be Implicated in the FBI’s Trump-Related Espionage Act Investigation

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On June 22, Kash Patel announced that he had just been made a representative for Trump at the National Archives. (h/t to Suburban Gal for these links)

I can tell you now that I am now officially a representative for Donald Trump at the National Archives. And I’m going to march down there — I’ve never told anyone this, because it just happened, and I’m going to identify every single document that they blocked from being declassified at the National Archives.

The next day, Kash described that that letter, making him Trump’s representative to the Archives, “just came in, literally before I came on the show” the day before.

[Update, August 15] Trump had informed the Archives three days earlier, on June 19, that Kash and Solomon would be added to his list of representatives.

As it happens, June 22 is also the same day that the FBI sent a subpoena to Mar-a-Lago for surveillance footage.

On June 22, the Trump Organization, the name for Mr. Trump’s family business, received a subpoena for surveillance footage from cameras at Mar-a-Lago. That footage was turned over, according to an official.

According to a John Solomon column that was actually the first to report details of this purported cooperation in June, the subpoena specifically asked for surveillance videos covering the room where Trump had stashed his stolen documents.

Around the same time, the Trump Organization, which owns Mar-a-Lago, received a request for surveillance video footage covering the locker and volunteered the footage to federal authorities, sources disclosed.

On June 24, two days after DOJ sent a subpoena for the surveillance footage, Betsy Woodruff Swan reported that it wasn’t just Kash who had been given privileged access to Trump’s Archives. Solomon had also been made Trump’s representative at the Archives.

That seeming coincidence — that the FBI formally asked for surveillance videos showing who had accessed Trump’s stash of stolen records on the same day that Kash and Solomon were officially added to the list of those who represented Trump’s interests with the Archives — may raise the stakes of Trump’s legal exposure significantly.

That’s because if Trump deliberately allowed people not permitted access to classified documents or his negligence allowed people to remove such documents, it would trigger other parts of the Espionage Act than the one that prohibits someone from stealing classified documents and refusing to give them back (and all are covered by the warrant).

(d)Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; or

[snip]

(f)Whoever, being entrusted with or having lawful possession or control of any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, note, or information, relating to the national defense, (1) through gross negligence permits the same to be removed from its proper place of custody or delivered to anyone in violation of his trust, or to be lost, stolen, abstracted, or destroyed, or (2) having knowledge that the same has been illegally removed from its proper place of custody or delivered to anyone in violation of its trust, or lost, or stolen, abstracted, or destroyed, and fails to make prompt report of such loss, theft, abstraction, or destruction to his superior officer—
Shall be fined under this title or imprisoned not more than ten years, or both.

Neither of these men would have been authorized to access classified documents, if they did, after January 20, 2021.

Solomon, of course, has come under scrutiny for his role as a mouthpiece for Russian-backed attacks on Joe Biden. While DOJ was not known to have obtained a warrant on him by April 2021, much could have happened after that.

Kash Patel did have the top levels of clearance until Trump left office. But at least by April 2021, Kash was reported to be under investigation for leaking classified information.

Patel repeatedly pressed intelligence agencies to release secrets that, in his view, showed that the president was being persecuted unfairly by critics. Ironically, he is now facing Justice Department investigation for possible improper disclosure of classified information, according to two knowledgeable sources who requested anonymity because of the sensitivity of the probe. The sources said the investigation resulted from a complaint made this year by an intelligence agency, but wouldn’t provide additional details.

Once that investigation was predicated, Kash would have been stripped of clearance, if he hadn’t already been.

Which means both the men that Trump picked to dig through his documents would pose grave security concerns.

And Kash, at least, is the single witness claiming — belatedly, starting in May — that Trump declassified this information. Before much of this became public, Kash claimed Trump had declassified it all, but just not marked it as declassified.

“Trump declassified whole sets of materials in anticipation of leaving government that he thought the American public should have the right to read themselves,” Patel told Breitbart News in a phone interview.

“The White House counsel failed to generate the paperwork to change the classification markings, but that doesn’t mean the information wasn’t declassified,” Patel said. “I was there with President Trump when he said ‘We are declassifying this information.’”

“This story is just another disinformation campaign designed to break the public trust in a president that lived on transparency. It’s yet another way to attack Trump and say he took classified information when he did not,” he added.

At the point he made those claims, in May, Kash demonstrated extensive familiarity with the content of that first batch of stolen classified documents that had been stashed at Mar-a-Lago for a year.

Patel did not want to get into what the specific documents were, predicting claims from the left that he was disclosing “classified” material, but said, “It’s information that Trump felt spoke to matters regarding everything from Russiagate to the Ukraine impeachment fiasco to major national security matters of great public importance — anything the president felt the American people had a right to know is in there and more.”

If Kash knows that first-hand — if Kash knows that because Trump let him wade through Top Secret documents he was no longer cleared to access — then Trump may have additional criminal liability.

Update: After a week of bullshit excuses, Trump — via John Solomon — is now offering a new bullshit excuse: That Trump had a standing order that everything he back to the residence in the White House was declassified. The claim is mostly interesting because Solomon — who wasn’t even at the White House! — is feeding it up.

Update: Added link to June 19 request.

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Brandon Straka’s Cell

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I first published this post on the revelations about Brandon Straka’s misdemeanor plea on August 5 at 2:10PM ET.

I posted it about 29 hours after Judge Dabney Friedrich ordered the Probation Office to provide a report by September 30 about Straka’s compliance with probation; during a status hearing a day earlier, Friedrich admonished Straka about saying things publicly that conflicted with what he had said to the FBI in interviews and said to her at his plea colloquy.

I posted it about 28 hours after FBI Director Christopher Wray responded to one of the only questions raised in an SJC oversight hearing about January 6 that, “And then, of course, I have to be a little bit careful about what I say here but we are continuing to develop some of the more complicated parts of the investigation in terms of conspiracy charges and that sort of thing.”

I posted it minutes before a CPAC panel (sponsored, in part, by a Viktor Orbán-tied NGO) featuring Andy Biggs, Straka, and Kash Patel warning that  “Soros prosecutors” were instituting a “Democrat Gulag.”

Straka spent most of the rest of that day, Friday — the day after the judge overseeing his probation ordered more scrutiny into the sincerity of claims he made under oath and to the FBI — in a cage, performing the role of a jailed January 6 defendant counting the days until his release, crying.

Some spectators wept. Some threw money into the cage. Others came up close to mutter words of comfort and support to the emotionally distraught man inside, who was alternating sitting on a bare cot with his head in his hands, and writing sad slogans on a blackboard like “Where is Everyone?” Among those in the audience was Zuny Duarte, mother of Enrique Tarrio, the jailed ex-chairman of the Proud Boys facing seditious conspiracy charges for his role in the Capitol. One man, wearing a T-shirt saying “Correctional Officers for Trump 2020” pointed at his chest, making sure the “jailed” activist saw, and said “”I know how it works, man.”

During Thursday’s performance in the J6 cage, the man in the prison had been an actor. But on Friday, the man was none other than Brandon Straka, a self-proclaimed former liberal who founded #WalkAway, a social media campaign encouraging Democrats to ditch their party for the GOP. Straka was a vocal Stop the Steal proponent and activist, and landed in hot water with the feds when he filmed himself from the steps of the Capitol building on Jan. 6.

All of which makes me really glad that, in that post, I reiterated all the concerns I’ve raised in the past about Straka’s treatment, including that the deal given to Straka would backfire.

Plus, it’s not entirely clear whether such pleas will backfire down the road, given that prosecutors have little ongoing means to ensure cooperation, as they would with felony cooperators hoping to benefit from 5K letters supporting leniency at sentencing.

[snip]

At the time, it looked like a shitty deal by the government, and multiple researchers I know grumbled that the government simply didn’t know what a central role Straka had when they interviewed him just weeks after the riot.

Even in December, there was good reason to question whether DOJ had made a decent deal when it traded information about Stop the Steal organizers in exchange for a misdemeanor plea, rather than building their case, including Straka in a conspiracy to obstruct the vote certification, and then flipping him.

Now, with Straka openly mocking the entire DOJ investigation, there should be real questions at DOJ whether Straka is replaying the Mike Flynn or Jerome Corsi play, reneging on purported cooperation to sabotage the investigation into Trump and his associates.

As a reminder, in Corsi’s case, in an initial interview with Mueller’s prosecutors, they caught him making claims that conflicted with communications records DOJ already obtained. Then, they got him to admit to a grand jury that Stone had asked him to establish a cover story for his “Podesta time in a barrel” tweet in real time, just days after Stone tweeted it. But then — at a time when, Corsi claimed, he was in communication with Trump’s attorney Jay Sekulow, Corsi went on his podcast and amid a dramatic meltdown not dissimilar from the drama we’ve seen from Straka, revealed that prosecutors were trying to force him into a cooperation plea deal with the government. After that point, his interviews with Mueller were a conflicting mishmash that, whatever else they were, made his prior testimony largely useless in any prosecution. It’s likely that an investigation against him was among those referred by Mueller. But he’s also such a batshit crazy person, it’d be hard to hold him accountable for deliberately blowing up interviews with the government.

In Mike Flynn’s case, his competent Covington lawyers negotiated a ridiculously lenient plea deal (in my opinion, one of Mueller’s three greatest mistakes), one that would have gotten the retired General no jail time. During the period he was supposed to be cooperating, he remained in touch with SJC staffer Barbara Ledeen and her husband Michael and Nunes aide Derek Harvey, all of whom kept him apprised of Sara Carter-backed propaganda efforts and Republican Congressional efforts to discredit the investigation. In 2018, Flynn even sent Matt Gaetz a text pushing for more pressure on Mueller. Then, once Bill Barr was confirmed, Flynn fired his competent lawyers and replaced them with Sidney Powell, who with Barr’s collusion, invented a slew of reasons that undermined the investigation against Flynn (in the process, protecting Trump from any Flynn-related obstruction charges). The outcome for Flynn was probably worse. But in the process, Flynn convinced a lot of people who only too late came to understand that both he and Sidney Powell are completely unhinged when they claim that the investigation against him was not a sweetheart deal, but instead a gross abuse of prosecutorial authority.

In both cases, Trump associates or movement operatives identified a cooperating witness and instead turned them into a chaos agent undermining an ongoing investigation. Here, Straka is appearing on a panel with suspected participants in the coup attempt, Andy Biggs and Kash Patel, and cozying up with someone who called for “Marshall Law,” all at a time when DOJ seems to be working on charges arising out of his so-called cooperation.

Given Straka’s recent trajectory, two details of his case from after the time his limited cooperation was made public are noteworthy. First, while Stuart Dornan, a former FBI Agent located (like Straka) in Nebraska remains on Straka’s team, in January, Straka added Bilal Essayli to his legal team, who appears to have taken the lead since, with it striking a far more confrontational tone.

Additionally, Straka’s team specifically — and successfully — objected to the Probation Office’s recommendation that Straka’s social media be monitored.

Brandon also objects to the recommendation by the Probation Officer that he be subjected to a discretionary condition of Probation that monitors his electronic communications service accounts, including email accounts, social media accounts, and cloud storage accounts. Brandon also objects to his financial activity being monitored by the Probation Office. These discretionary conditions of Probation are not sufficiently relevant to the offense committed. In United States v. Taylor, 796 F.3d 788 (7th Cir. 2015), the Seventh Circuit reversed a restriction on the defendant’s computer ownership and internet access in a bank larceny case, stating that the restriction was not reasonably related to his prior conviction for incest. In Brandon’s case, emailing, using social media, and using cloud storage has nothing to do with his offense.

Thus, while Dabney Friedrich ordered the Probation Office to conduct a review of what Straka has been up to while he has been engaging in deceitful performance art attacking the case, when she sentenced Straka, she specifically declined to include review of Straka’s social media. Straka has spent the last six months making a mockery of what he said to Friedrich back in January, most often on social media.

Mike Flynn, especially, has become a movement hero for tanking his own case to create havoc for any case against Trump. And Straka seems intent on pursuing just that kind of notoriety.

And it’s not clear what tools DOJ has retained to prevent that from happening.

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John Durham Accuses One of His Key Fact Witnesses — Sergei Millian’s Twitter Account — of “Misinterpret[ing] Facts”

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As I documented the other day, John Durham responded to the uproar over his conflicts filing stunt by claiming to have had nothing at all to do with the “third parties” who “overstated, understated, or otherwise misinterpreted facts contained in the Government’s Motion.”

If third parties or members of the media have overstated, understated, or otherwise misinterpreted facts contained in the Government’s Motion, that does not in any way undermine the valid reasons for the Government’s inclusion of this information.

The claim that the uproar was created by “third parties” is so obviously false it raises conflict problems for Durham himself.

Durham falsely claims those pushing lies are “third parties” to his investigation

As I laid out, one of the key perpetrators of the false claims — including the false claims (1) that Hillary paid Rodney Joffe, (2) that Joffe had “infiltrated” the White House, and (3) Joffe had done so when Trump was President — was Kash Patel, the originator of this entire line of inquiry in December 2017, and someone who for years had means to learn that those claims were false.

John Ratcliffe, whom Durham was meeting rather than interviewing Hillary staffers who could substantiate or debunk his accusations that Michael Sussmann was coordinating with the campaign, made these unsubstantiated claims in a TV appearance earlier this week:

  • There was a “Hillary Clinton campaign plan to falsely accuse Donald Trump of collusion with Russia”
  • Rodney Joffe used DNS data “for an unlawful purpose”
  • Sussmann “pitched” information “to the FBI as evidence of Trump-Russia connections that simply weren’t true and that the lawyer, Michael Sussmann, and the tech executive knew not to be true”

Donald Trump, who personally nominated John Durham as US Attorney and whose demands for criminal investigations led to Durham’s appointment as Special Counsel, asserted that his “presidency [was] spied on by operatives paid by the Hillary Clinton campaign in an effort to develop a completely fabricated connection to Russia.”

These are not “third parties.” These are:

  • The originator of the allegations against Sussmann
  • A self-described repeat Durham witness
  • The man who nominated Durham to be US Attorney and, ultimately, was his boss for almost 3 years

But there’s actually another key player in the effort to magnify Durham’s conflicts filing stunt who is even more central to Durham’s work: One of his most important “witnesses,” Sergei Millian’s twitter account.

The pipeline from online conspiracy theorists through former investigators to the former President

Yesterday, Glenn Kessler attempted to trace how the filing became a propaganda tool. The timeline he laid out looks like this (these times are ET):

11:33PM: Filing hits PACER.

12:43AM: Whispers of Dementia screencaps the filing, noting Durham claimed “Sussmann is likely to be in an “adversarial posture” against Perkins Coie.”

9:24AM: emptywheel notes that Durham is criminalizing lying to the FBI about traffic involving Trump Tower, which Trump himself did at the time.

9:25AM: Hans Mahncke links and screencaps the filing and claims,

Rodney Joffe and his buddies at Georgia Tech monitored Trump’s internet traffic *while* he was President of the United States.

9:39AM: Kessler’s gap

9:45AM: emptywheel RTs Mahncke and notes that this is about cybersecurity.

10:25AM: Techno Foggy tweets that,

DNC/Perkins Coie allies – Rodney Joffe, et al. – Joffe et al, “exploited a sensitive US govt arrangement” to gather intel on the “Executive Office of the President of the U.S.” They spied on Trump.

11:11AM: House Judiciary GOP [so a Jim Jordan staffer] RTs Foggy’s tweet, claiming:

We knew they spied. But it was worse than we thought.

11:44AM: Techno Foggy tweets out his Substack with the claim,

Clinton allies used sensitive data from the Office of the President to push false Trump/Russia claims to the CIA

Why did they risked jail to link Trump to Russia?

Maybe because the origin of their fraud was the “Russian hack” of the DNC.

2:27PM: John Ratcliffe responds to House Judiciary tweet with claim, “And now you’re finding out why…,” thereby seemingly endorsing the “spying” claim, and linking the Durham release with his own cooperation with Durham’s inquiry.

3:24PM: Mark Meadows RT’s Foggy’s tweet, claiming,

They didn’t just spy on Donald Trump’s campaign.

They spied on Donald Trump as sitting President of the United States.

It was all even worse than we thought.

5:51PM: Center for Renewing America tweets out Kash Patel statement making numerous false claims.

6:47PM: Trump’s spox tweets out his claims of spying.

This timeline is damning enough: It shows how these false claims went from “sleuths” who spend much of their time spinning Durham’s conspiracy theories, through Techno Foggy (a self-described lawyer who has for years interacted openly with lawyers like Sidney Powell and Billy Barr’s spox Kerri Kupec), to Jim Jordan’s staffer to Ratcliffe to Mark Meadows to Kash Patel to Trump. Every single one of these current and former officials have played a central role in these investigations; none is a “third party.”

Sergei Millian’s twitter account calls it spying

But there’s a very key step in Kessler’s timeline that is missing. At 9:39AM (the time shown here is Irish time) — which I’ve marked above in red — Sergei Millian’s twitter account tweeted, “They were spying on the White House, folks!!.”

This claim was before Techno Foggy made the spying claim. The first person to have made the “spying” claim in this timeline, then, was Sergei Millian’s twitter account.

In fact, the next day, Millian’s twitter account insinuated to have started all this in the first place — that the twitter account “had a direct line into the White House” via which it “told them who was working against them.”

Thanks for identifying this phone call, Sergei, because Igor Danchenko will now have cause to demand details of it in discovery, which will mean, on top of the other unprecedented discovery challenges Durham has taken on in prosecuting Danchenko, he’s now going to have to get Trump records from the Archives. Michael Sussmann, too, likely now has cause to demand those records.

The Millian twitter account RT of Mahncke to belatedly explain the spying claim makes it clear it is an active participant in the “Sleuths Corner” that drives many of the false claims about Durham. In fact the Millian twitter account even advertises it on the twitter account.

Durham says his key witness “misrepresented the facts”

This all amounts to Durham himself discrediting one of his witnesses, perhaps fatally.

As I have noted, when John Durham charged Igor Danchenko with four counts of lying about believing that he had spoken to Sergei Millian back in July 2016, Durham didn’t actually claim to have obtained testimony from the human being named Sergei Millian. Durham did not appear to have required that Millian show up and make statements for which he could be legally held accountable.

Instead, Durham presented an unverified twitter account to the grand jury and based on that, claimed “Chamber President-1 has claimed in public statements and on social media that he never responded to DANCHEKNO’s [sic] emails, and that he and DANCHENKO never met or communicated.”

I refer to this entity as “Sergei Millian’s twitter account” to emphasize that there is not a scrap of evidence in the public record showing that Durham did anything to confirm that Millian, the person, even operates it exclusively. While I have no reason to doubt that he does, from a legal standpoint, Durham is at least publicly relying on nothing but an unverified account, something journalists have been loathe to do for years with Millian.

And this claim attributed to an unverified twitter account is a very important piece of evidence. There’s nothing else in the public record that shows Durham affirmatively ruled out that Danchenko and Millian really did have a phone call.

When I first realized how reckless that was, I though it impossible for Durham to have been that negligent. But we’ve since learned that he accused Sussmann of coordinating with Hillary’s staffers without ever first interviewing a single full-time staffer. So perhaps it is, in fact, true that Durham charged a man based off the unsubstantiated claims of a twitter account.

Danchenko appears to have obtained a pre-trial subpoena on February 8; I have wondered whether it was for the Millian twitter account. If so, the subpoena might well obtain the traffic of what has happened in recent days.

As it stands, though, Durham makes no claim to have anything else.

Just that twitter account.

And that twitter account is part of a pipeline that took Durham’s filing and made egregiously false claims about it. Durham is now on the record claiming that that twitter account “misinterpreted the facts.” But Danchenko will have good reason — and abundant proof, given the details of last week’s little propaganda explosion — to argue that Sergei Millian’s twitter account is willing to make false claims to create a scandal around the Durham investigation.

That shreds the credibility of the only claimed “witness” that the call never happened.

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Durham Says It’s Not His Fault His Former Boss Called for the Death of His Defendant

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John Durham didn’t have much to say after being called out for making baseless accusations that their source Kash Patel lied about, leading the former President to suggest Michael Sussmann should be killed.

They’re not responsible for the death threats, the attorney who filed a notice of appearance in the wake of Friday’s stunt, Brittain Shaw, insists.

If third parties or members of the media have overstated, understated, or otherwise misinterpreted facts contained in the Government’s Motion, that does not in any way undermine the valid reasons for the Government’s inclusion of this information.

She said this even while acknowledging it might be prudent to take measures against death threats in the future.

That said, to the extent the Government’s future filings contain information that legitimately gives rise to privacy issues or other concerns that might overcome the presumption of public access to judicial documents – such as the disclosure of witness identities, the safety of individuals, or ongoing law enforcement or national security concerns – the Government will make such filings under seal. United States v. Hubbard, 650 F. 2d 293, 317-323 (D.C. Cir. 1980) (setting forth factors for considering whether the presumption of public access is overridden, including (1) the need for public access to the documents at issue; (2) the extent of previous public access to the documents; (3) the fact that someone has objected to disclosure, and the identity of that person; (4) the strength of any property and privacy interests asserted; (5) the possibility of prejudice to those opposing disclosure; and (6) the purposes for which the documents were introduced during the judicial proceedings.) The Government respectfully submits that no such issues or concerns are implicated here. [my emphasis]

The former President implied the defendant and a witness should be killed. But it’s not Durham’s fault and so he doesn’t have to deal with the fact that it happened!!

This is factually specious. Kash Patel, who was among the first to make egregiously false claims, is not a “third party.” He is the originator of this inquiry, and he knew well his statements to be false. Donald Trump, who suggested Sussmann and others should be killed, is not a “third party.” He was Durham’s boss and his demands for prosecutions are what led to Durham being appointed Special Counsel in the first place.

Plus, Durham’s team have already made the identities of some grand jury witnesses public in discovery filings.

The claim that the architects of this mob are neutral “third parties” is all the more pathetic given the excuse Shaw provides for including the false insinuation that Rodney Joffe spied on Trump’s White House rather than tried to keep the White House safe from hackers at the time it happened to be occupied by Barack Obama.

The reason they mentioned the White House, you see (Shaw claims), is because of one of the conflicts they raised.

The Government included two paragraphs of limited additional factual detail in its Motion for valid and straightforward reasons. First, those paragraphs reflect conduct that is intertwined with, and part of, events that are central to proving the defendant’s alleged criminal conduct. Second, the Government included these paragraphs to apprise the Court of the factual basis for one of the potential conflicts described in the Government’s Motion, namely, that a member of the defense team was working for the Executive Office of the President of the United States (“EOP”) during relevant events that involved the EOP. [my emphasis]

Shaw here argues that events in February 2017 are “intertwined” with an alleged crime that took place five months earlier.

She also suggests that the reason they raised the White House is because one of Sussmann’s team members worked there (Charlie Savage has now IDed the lawyer as Michael Bosworth).

I mean, so did Kash Patel, a central player in the false claims that led to the former President calling for death.

Here’s what the actual conflict memo said about that purported conflict.

Based on its review of documents in its investigation and other information, the Special Counsel’s Office also has learned that one of the members of the defendant’s current defense team (“Defense Team Member-1”) previously worked as Special Counsel to the then-FBI Director from 2013 to 2014. In connection with that work, Defense Team Member-1 developed professional and/or personal relationships with several individuals who later were involved with and/or knowledgeable of the FBI’s investigation of the Russian Bank-1 allegations. For example, Defense Team Member-1 appears to have developed a professional relationship with the former FBI General Counsel to whom the defendant made his alleged false statement and who will likely be a central witness at trial.4 While it is unlikely that these past interactions and activities will give rise to an actual conflict of interest, the Government respectfully requests in an abundance of caution that the Court inquire with the defense concerning whether Defense Team Member-1’s relationships with persons and entities who might be witnesses in this case could give rise to a potential conflict or appearance issue and, if so, whether the defendant waives any such conflict.

4 Following his employment at the FBI, Defense Team Member-1 worked from 2014 to early 2017 as an attorney in the EOP which, as noted above, was involved in certain factual issues that the Government expects will be relevant at trial and any sentencing proceedings. Latham has represented to the Government that while employed at the EOP, Defense Team Member-1 had no role in the aforementioned events or arrangements involving Tech Executive-1, Internet Company1, and/or allegations involving the purported use of Russian-made phones. The Government similarly has not seen evidence to suggest that Defense Team Member-1 had any role in, or direct knowledge of, the Russian Bank-1 allegations or the FBI’s ensuing investigation. [my emphasis]

It’s the tie to Jim Comey and through him to James Baker, not the subsequent job at the White House, that Durham’s team presented as a potential conflict — and even then, Durham’s team admits this is not likely a conflict. By this standard, several members of the prosecutorial team, not to mention the guy from whom this allegation came from, Kash Patel, have a conflict. John Durham was hired by Donald Trump; that’s a more serious conflict than anything his team spins up as one.

The White House will not be called to the stand at Sussmann’s trial. None of this is actually about the White House. As Andrew DeFilippis noted in his filing making wild claims of conflict, the White House job was not one of those conflicts. Indeed, this is yet another marker of Durham’s dishonesty. This team member, as described, was a victim of Rodney Joffe’s purportedly vicious efforts to make sure the Obama White House was not hacked. The team member only has an adversarial relationship if one believes that protecting against hacks is an adversarial stance. But that’s not how they describe the purported conflict which even they admit is not one.

Which is a pretty big hint their understanding of conflicts here is whacked beyond all reason.

Even in a terse four page motion (which I guess is one way she’s an improvement over DeFilippis), Shaw still had room for bullshit.

Having given a transparently bogus excuse for raising the White House, she then says that raising it in a conflict memo is cool because Durham plans to later raise these issues in a motion in limine (pre-trial motions about what can and cannot be presented during the trial).

In light of the above, there is no basis to strike any portion of the Government’s Motion. Indeed, the Government intends to file motions in limine in which it will further discuss these and other pertinent facts to explain why they constitute relevant and admissible evidence at trial. Pursuant to caselaw and common practice in this and other districts, the filing of documents containing reference to such evidence on the public docket is appropriate and proper, even in highprofile cases where the potential exists that such facts could garner media attention. See, e.g., United States v. Stone, 19 Cr. 18 (D.D.C. October 21, 2019) (ABJ), Minute Order (addressing the Government’s publicly-filed motion in limine seeking to admit video clip from the movie “Godfather II” that defendant sent to an associate and permitting admission of a transcript of the video); United States v. Craig, 19 Cr. 125 (D.D.C. July 10, 2019) (ABJ), Minute Order (addressing Government’s publicly-filed Rule 404(b) motion to offer evidence of defendant’s efforts to assist Paul Manafort’s relative in obtaining employment); United States v. Martoma, S1 12 Cr. 973, 2014 WL 164181 (S.D.N.Y. January 9, 2014) (denying defendant’s motion for sealing and courtroom closure relating to motions in limine concerning evidence of defendant’s expulsion from law school and forgery of law school transcript);1 see also Johnson v. Greater SE Cmty. Hosp. Corp., 951 F. 2d 1268, 1277 (D.C. Cir. 1991) (holding that there is a “strong presumption in favor of public access to judicial proceedings”). Moreover, any potential prejudice or jury taint arising from such media attention can effectively and appropriately be addressed through the voir dire process during jury selection.

1 The publicly-filed evidentiary motions and judicial rulings in each of the above-cited cases received significant media attention. See, e.g., Prosecutors Can’t Show Godfather II Clip at Roger Stone Trial, Judge Rules, CNN, October 21, 2019 (https://www.cnn.com/2019/10/21/politics/godfather-ii-roger-stone/index.html; Greg Craig Pushed to Hire Manfort’s Relative at Skadden, Prosecutors Say, POLITICO, May 10, 2019 (https://www.politico.com/story/2019/05/10/greg-craig-hire-manaforts-relative-1317600); SAC’s Martoma Tried to Cover Up Fraud at Harvard, Documents Show, REUTERS, January 9, 2014 (https://www.reuters.com/article/us-sac-martoma-harvard/sacs-martoma-tried-to-cover-up-fraudat-harvard-documents-show-idUSBREA081C720140109).

Roger Stone Roger Stone Roger Stone and Mueller, she throws in for good measure.

This is a fairly bald admission that the time to raise these issues, pretending they were relevant, would be the later 404(b) fight (over whether evidence of related conduct can be admitted at trial to help prove the case), not now, on a totally separate issue. That this might be a relevant issue later (which is itself admission that these topics are not direct evidence about Sussmann’s alleged lie and must first demonstrate relevance to even be admitted at trial) is not an excuse to use them in untimely and off-purpose fashion.

And yet that’s Durham’s excuse for saying a bunch of things that predictably led to calls for death.

According to John Durham’s logic of conflicts, he is the one with an unwaivable conflict. The guy who hired him to this job is the same guy suggesting, based off Durham’s filing, that the guy he is prosecuting should be executed.

Updated for clarity.

Update: Corrected Bosworth’s last name.

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John Durham Chose to Meet with John Ratcliffe Rather than Witnesses Necessary to His Investigation

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The evidence continues to mount that John Durham has done an epically incompetent investigation. I’ll pull together all that evidence later this week.

But one that I find hilarious and shocking can’t wait.

A piece written by the Fox News propagandist who played a key role in magnifying Kash Patel’s false claims over the weekend credulously continues the Murdoch effort to jack up the frothers by claiming that — rather than letting statutes of limitation expire with no charges — Durham has instead sped up his investigation. Fox also cites a single source claiming that Durham’s investigation has been run very professionally.

Special Counsel John Durham’s investigation has “accelerated,” and more people are “cooperating” and coming before the federal grand jury than has previously been reported, a source familiar with the probe told Fox News.

The source told Fox News Monday that Durham has run his investigation “very professionally,” and, unlike Special Counsel Robert Mueller’s investigation, his activities, and witness information and cooperation status are rarely, if ever, leaked.

Fox unsurprisingly doesn’t cite the part of a recent filing that makes it clear that April Lorenzen doesn’t think it has been run professionally.

In fact, this piece demonstrates that no one who would actually know whether Durham’s investigation has been conducted professionally would talk to them:

Durham’s Feb. 11 filing says that the “FBI General Counsel” will “likely be a central witness at trial.”

Baker did not immediately respond to Fox News’ request for comment.

Durham also provided grand jury testimony from “the above-referenced former FBI Assistant Director for Counterintelligence.” It is unclear to which official Durham is referring, but the title could be a reference to Bill Priestap, who served as the FBI’s assistant director for counterintelligence from 2015 to 2018.

Priestap did not immediately respond to Fox News’ request for comment.

Durham also lists “a former FBI Deputy Assistant Director for Counterintelligence.” It is unclear to whom Durham is referring.

[snip]

Strzok, who was part of the original FBI investigation into whether the Trump campaign was colluding with Russia to influence the 2016 presidential election, and later in Special Counsel Robert Mueller’s office, was fired from the FBI in 2018 after months of scrutiny regarding anti-Trump text messages exchanged with former FBI General Counsel Lisa Page. Their anti-Trump text messages were uncovered by the Justice Department inspector general.

Fox News was unable to reach Strzok for comment.

[snip]

Elias’ law firm, Perkins Coie, is the firm that the Democratic National Committee and the Clinton campaign funded the anti-Trump dossier through. The unverified dossier was authored by ex-British Intelligence agent Christopher Steele and commissioned by opposition research firm Fusion GPS.

A spokesperson for Elias did not immediately respond to Fox News’ request for comment. [my emphasis]

But somebody who would speak with Fox News is John Ratcliffe, the former AUSA who misrepresented his record to get elected but who nevertheless got to be Director of National Intelligence for a short period because Ric Grenell was so much more unsuited to hold the position.

As DNI, Ratcliffe made false claims about Chinese intervention in the election as a way to downplay Russia’s ongoing efforts to help Trump. Ratcliffe is currently spending a lot of time denying that his politicized views (and delay of) a mandated election interference report played some role in January 6 conspiracy theories.

We now know that Ratcliffe should be happy to make those denials to the January 6 Committee directly and under oath — because he has apparently been very happy to chat with Durham’s investigators.

Meanwhile, this week, sources told Fox News that former Director of National Intelligence John Ratcliffe met with Durham on multiple occasions and told him there was evidence in intelligence to support the indictments of “multiple people” in his investigation into the origins of the Trump-Russia probe.

Ratcliffe’s meetings with Durham are significant (beyond suggesting he may be the single source who told Fox News this isn’t a shitshow investigation) because, days before Billy Barr made Durham a Special Counsel, Ratcliffe unmasked Hillary’s identity in foreign intercepts and burned collection on Russian internal intelligence analysis in order to release a report trying to insinuate that Hillary’s fairly unsurprising decision to tie Trump to Russia is what led the FBI to investigate Trump’s ties to Russia.

At issue is a report from John Ratcliffe, sent on September 29, 2020, explaining that,

In late July 2016, U.S. intelligence agencies obtained insight into Russian intelligence analysis alleging that U.S. Presidential candidate Hillary Clinton had approved a campaign plan to stir up a scandal against U.S. Presidential candidate Donald Trump by tying him to Putin and the Russians’ hacking of the Democratic National Committee. The IC does not know the accuracy of this allegation or the extent to which the Russian intelligence analysis may reflect exaggeration or fabrication.

The following week, presumably in an attempt to dredge up some kind of attack out of an absurd attack, Ratcliffe released the underlying reports that, he claimed in his original report, show the following:

According to his handwritten notes, former Central Intelligence Agency Director Brennan subsequently briefed President Obama and other senior national security officials on the intelligence, including the “alleged approval by Hillary Clinton on July 26, 2016 of a proposal from one of her foreign policy advisors to vilify Donald Trump by stirring up a scandal claiming interference by Russian security services.”

On 07 September 2016, U.S. intelligence officials forward an investigative referral to FBI Director James Comey and Deputy Assistant Director of Counterintelligence Peter Strzok regarding “U.S. Presidential candidate Hillary Clinton’s approval of a plan concerning U.S. Presidential candidate Donald Trump and Russian hackers hampering U.S. elections as a means of distracting the public from her use of a private mail server.”

By releasing the exhibits, Ratcliffe should raise real questions about his credibility. For example, I’m not at all sure this date, from Brennan’s notes, reads July 26 and not July 28, a critical difference for a ton of reasons.

The FBI report has a slew of boilerplate making it clear how sensitive this report was (for obvious reasons; effectively it shows that the CIA had some kind of visibility into Russian intelligence analysis), which makes it clear how utterly unprecedented this desperate declassification is. Former CIA lawyer Brian Greer discusses that in this Lawfare post.

Plus, Ratcliffe left out an unbelievably important part of the report: the role of Guccifer 2.0 in the Russian report. Intelligence collected in late July 2016 claimed that Hillary was going to work her alleged smear around neither the GRU (which had already been identified as the perpetrator of the DNC hack) nor WikiLeaks (which had released the DNC files, to overt celebration by the Trump campaign), but Guccifer 2.0, who looked to be a minor cut-out in late July 2016 (when this intelligence was collected), but who looked a lot more important once Roger Stone’s overt and covert communications with Guccifer 2.0 became public weeks later.

The report suggests Hillary magically predicted that days after this plot, President Trump’s rat-fucker would start a year’s long campaign running interference for Guccifer 2.0. Not only did Hillary successfully go back and trick George Papadopoulos into drunkenly bragging about Russian dangles in May 2016, then, Hillary also instantaneously tricked Stone into writing propaganda for Guccifer 2.0 days later.

The report never made any sense. As I noted at the time, to be true, it would require Hillary to have gone back in time to trick the Coffee Boy to learn of and pass on Russia’s plans. Worse still, the claim suggested that Roger Stone — whom FBI has evidence was in contact with the Guccifer 2.0 persona starting in spring 2016 — started parroting the same line the Russians were pushing, even before the FBI learned of it. In other words, read in conjunction with the actual evidence about 2016, the intelligence report on Russia actually suggested that Stone’s ties to Russian intelligence may have been far more direct than imagined.

But John Ratcliffe was too stupid to understand that, and everything we’ve seen about John Durham suggests he is too. That Durham has been repeatedly interviewing Ratcliffe suggests he buys Ratcliffe’s theory that this should have undermined the very real reason to investigate Trump. It also explains why, on the Sussmann indictment, Durham was so squishy about the July 2016 timeline: he needs this report to be more important than the fact that Trump stood up in public and asked Russia to hack some more (which is what led the researchers to look twice at this anomalous data).

Nevertheless, it appears that rather than interviewing witnesses who would be necessary to vet the charges he filed against Michael Sussmann, such as a single Hillary staffer, Durham has, instead, just kept going back to serial liars like Ratcliffe to renew his own conspiracy theories.

Ah well, this disclosure gives Michael Sussmann cause to subpoena Ratcliffe, just like this stunt has given him reason to subpoena Kash Patel. It’s increasingly clear that these addle-brained Republicans fed these conspiracies into Durham’s investigation, and now are magnifying them as Durham’s investigation gets exposed as incompetent, without disclosing that they’re the ones who provided the conspiracy theories in the first place.

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Donald Trump Suggested Michael Sussmann Should Be Killed because Rodney Joffe “Spied” on Barack Obama

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Michael Sussmann has filed his response to John Durham’s transparent attempt to inflame the frothers. In it, he notes what I did: Durham used an unrelated filing (one that, Sussmann’s filing noted, had already been addressed between the parties) to make claims that were not charged.

Importantly, he notes that Durham misrepresented the dates of the anomalous data found at the Executive Office of the Presidency that Sussmann presented at a February 9, 2017 meeting with the CIA. The data predates the Donald Trump inauguration.

In his Motion, the Special Counsel included approximately three pages of purported “Factual Background.” See Dkt. No. 35 at 2–5. Approximately half of this Factual Background provocatively—and misleadingly1 —describes for the first time Domain Name System (“DNS”) traffic potentially associated with former President Donald Trump, including data at the Executive Office of the President (“EOP”), that was allegedly presented to Agency-2 in February 2017. See id. at 3–4. These allegations were not included in the Indictment; these allegations post-date the single false statement that was charged in the Indictment; and these allegations were not necessary to identify any of the potential conflicts of interest with which the Motion is putatively concerned. Why then include them? The question answers itself.

1 For example, although the Special Counsel implies that in Mr. Sussmann’s February 9, 2017 meeting, he provided Agency-2 with EOP data from after Mr. Trump took office, the Special Counsel is well aware that the data provided to Agency-2 pertained only to the period of time before Mr. Trump took office, when Barack Obama was President. Further—and contrary to the Special Counsel’s alleged theory that Mr. Sussmann was acting in concert with the Clinton Campaign—the Motion conveniently overlooks the fact that Mr. Sussmann’s meeting with Agency-2 happened well after the 2016 presidential election, at a time when the Clinton Campaign had effectively ceased to exist. Unsurprisingly, the Motion also omits any mention of the fact that Mr. Sussmann never billed the Clinton Campaign for the work associated with the February 9, 2017 meeting, nor could he have (because there was no Clinton Campaign). [my emphasis]

Not only must Durham know the true dates of the data involved but so — as I’ve noted — must Kash Patel, who has known about this issue for four years. That means Patel insinuated that Hillary’s associates hacked Trump, knowing full well the claim was false.

And it led the former President to claim that those involved should be killed.

Sussmann has asked Judge Christopher Cooper to strike the improper language from the motion.

He has also provided yet more evidence that Durham didn’t take basic investigative steps necessary to vet the allegations he made in the indictment before actually indicting Sussmann. Durham didn’t interview any Clinton Campaign staffer to find out whether Sussmann coordinated with the campaign until after the indictment.

[T]he Special Counsel has been investigating for years, and some of the Special Counsel’s “ongoing” investigation seems to be work that should have been completed before indicting Mr. Sussmann. For example, the Special Counsel has alleged that Mr. Sussmann met with the FBI on behalf of the Clinton Campaign, but it was not until November 2021—two months after Mr. Sussmann was indicted—that the Special Counsel bothered to interview any individual who worked full-time for that Campaign to determine if that allegation was true. It is not.

As I noted earlier, Durham had to admit that he had no basis to substantiate claims of coordination with the Hillary Campaign in a filing last year. But that was October. It was not until after he had to confess he had overblown that claim in the indictment that Durham first interviewed a Hillary staffer.

In his filing, Sussmann makes it clear he intends to move to dismiss the indictment.

In addition, Mr. Sussmann reserves all rights to submit appropriate motions and seek appropriate relief concerning this conduct should the Indictment not be dismissed and should the case proceed to trial, including by seeking extensive voir dire about potential jurors’ exposure to prejudicial media resulting from the Special Counsel’s irresponsible actions.

If he keeps to the original filing deadline, that motion will be submitted this Friday. While not normally a basis to dismiss an indictment, Sussmann will be able to present entire swaths of proof that Durham didn’t take basic investigative steps before accusing Sussmann of things that turned out not to be true.

And now he’ll be able to point back to this filing to show that Durham misrepresented basic facts that might get someone killed.

Update: I managed a whole appearance on MSNBC without potty mouth.

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Kash Patel Knew, and Did Nothing, about the Latest Durham-Related Frenzy

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As predicted, the latest Durham filing has jacked up the frothy right. It even led the Former President to claim these actions should be “punishable by death.”

But the oddest statement came from “Former Chief Investigator for Russia Gate [sic]” and current key witness to an attempted coup, Kash Patel, sent out by the fake Think Tank that hosts some of the former Trumpsters most instrumental in covering up for Trump corruption.

Taken literally (which one should not do because it is riddled with false claims), the statement is a confession by Kash that he knew of what others are calling “spying” on Trump and did nothing to protect the President.

Let’s start, though, by cataloguing the false claims made by a man who played a key role in US national security for the entirety of the Trump Administration.

First, he claims that the Hillary Campaign, “ordered … lawyers at Perkins Coie to orchestrate a criminal enterprise to fabricate a connection between President Trump and Russia.” Thus far, Durham has made no claims about any orders coming from the Hillary Campaign (and the claim that there were such orders conflicts with testimony that Kash himself elicited as a Congressional staffer). The filing in question even suggests Perkins Coie may be upset about what Sussmann is alleged to have done.

Latham – through its prior representation of Law Firm-1 – likely possesses confidential knowledge about Law Firm-1’s role in, and views concerning, the defendant’s past activities.

In fact, in one of the first of a series of embarrassing confessions in this prosecution, Durham had to admit that Sussmann wasn’t coordinating directly with the Campaign, as alleged in the indictment.

Kash then claims that “Durham states that Sussmann and Marc Elias (Perkins Coie) … hired .. Rodney Joffe … to establish an ‘inference and narrative’ tying President Trump to Russia.” That’s false. The indictment says the opposite: Joffe was paying Perkins Coie, not the other way around. Indeed, Durham emphasized that Joffe’s company was paying Perkins Coie a lot of money.  And in fact, Durham shows that the information-sharing also went the other way. Joffe put it together and brought it to Perkins Coie. Joffe paid Perkins Coie and Joffe brought this information to them.

Kash then claims that “Durham writes that he has evidence showing Joffe and his company were able to infiltrate White House servers.” Kash accuses the Hillary Campaign of “mastermind[ing] the most intricate and coordinated conspiracy against Trump when he was both a candidate and later President.” This betrays either real deceit, or ignorance about the most basic building blocks of the Internet, because nowhere does Durham claim that Joffe “infiltrated” any servers. Durham, who himself made some embarrassing technical errors in his filing, emphasizes that this is about DNS traffic. And while he does reveal that Joffe “maintain[ed] servers for the EOP,” that’s not infiltrating. These claims amount to a former AUSA (albeit one famously berated by a judge for his “ineptitude” and “spying”) accusing a conspiracy where none has been charged, at least not yet. Plus, if Joffe did what Kash claims starting in July 2016, as Kash claims, then Barack Obama would be the one with a complaint, not Trump.

Finally, Kash outright claims as fact that Joffe “exploited proprietary data, to hack Trump Tower and the Eisenhower Executive Office Building.” This claim is not substantiated by anything Durham has said and smacks of the same kind of conspiracy theorizing Louise Mensch once engaged in. Only, in this case, Kash is accusing someone who has not been charged with any crime — indeed, a five year statute of limitation on this stuff would have expired this week — of committing a crime. Again: a former AUSA, however inept, should know the legal risk of doing that.

Curiously, Kash specifies that the White House addresses involved were in the Eisenhower Executive Office Building. That could well be true, but Durham only claims they were associated with EOP, and as someone who worked there, Kash should know that one is a physical structure and the other is a bureaucratic designation. But to the extent Kash (who has flubbed basic Internet details already) believes this amounted to hacking the EOP, it is based off non-public data.

So, like I said, the piece is riddled with false claims, but with two claims that go beyond anything Durham has said.

The statement is all the stranger given that Kash Patel knew about these allegations four years ago, at a time when he was one of the most powerful Congressional staffers on matters pertaining to intelligence.

And he did nothing about them.

Well. He did do something.

He started this line of inquiry — brought it up entirely out of the blue — in an interview of Michael Sussmann largely focused on Sussmann’s response to a hostile attack by Russia.

About a quarter of the way into an interview on December 18, 2017, after Sussmann debunked the frothy right’s conspiracy theory about the DNC being unwilling to share information with the FBI (which was a central focus of the interview), a staffer veered away from that line of questioning and asked about other meetings. Sussmann answered the questions that someone interested in cybersecurity would have wanted to know: how does the government share information with a high-profile victim of a nation-state attack?

Q Thats helpful. Thank you Going over to – moving on from CrowdStrike and the FBI, did you ever have any interactions with any other government agencies in relation to the DNC hack, Russian involvement in the 2016 elections, or anything like that, or any members of any government agencies?

A So.yes. For the intrusion, I believe our contacts initially and for a while were only with the FBI. And there came a time when we got involved with the Department of Homeland Security, and had a variety of ongoing meetings with them for various purposes. We reached out to State officials, to the State — Association of Chief Information Officers from the States.

But that’s not what this staffer was interested in. This staffer was thinking big.

Q Did you meet with anybody else, any members of the Intelligence Community, either officially or unofficially, to discuss these matters?

MS. RUEMMLER: With respect to the DNC?

Q The DNC, the 2016 Russia election, all things that fit under that sort of general big title.

Sussmann, perhaps sensing this staffer was about to deliver a gotcha, noted that he didn’t always know who was in a room.

A So let me provide one general exception. I had meetings and calls with the FBI when there were a lot of people in the room, and I don’t necessarily know —

Q Yeah, I don’t mean that.

A — who was there.

That’s not what this staffer was after either. The staffer wanted to know about a meeting Sussmann had with the CIA.

Q I don’t mean the FBI. I don’t mean those big conference calls or anything like that. I mean, did you have any engagements with any members of the Intelligence Community, not the FBI, one-on-one, or in small groups, or telephone calls, or communications with folks, say, such as the Central Intelligence Agency?

Sussmann responded as to the subject of the interview, the DNC hack: no, all the meetings were with FBI or DHS. That’s when the staffer in question revealed he wanted to know about other topics.

A I think as regards to the I think all of the hacking ~ I think all of the hacking stuff was limited to the FBI and DHS.

Q Okay. So you never had any communications with members of the CIA [redacted] discussing the ~ not only the hack, but also the possible Russian intrusion and Russian involvement in the 2016 election?

That’s when Kathryn Ruemmler, representing Sussmann, referred to the staffer in question by name: Kash. This line of questioning was done by Kash Patel (which isn’t surprising, seeing as how at the time he was the “Chief Investigator for Russia Gate [sic].”

MS. RUEMMLER: Kash, just to clarify, you’re talking about the 2016 timeframe here? [my emphasis]

The staffer now identified as Kash continued, making it clear he already knew the answer to the question he was asking. He already knew about this meeting.

Q Well, that’s when that incident occurred. I’m asking if you ever have from that time until today?

A So I have — I have various contacts with members of law enforcement and the Intelligence Community on behalf of a number of different clients. So I’m not sure how to —

Q Sure. I’ll narrow it down for you. Fair enough. As it relates to what you and I have been talking about here today

A Right

Q –that is, the DNC hack, the Russian involvement in the 2016 election, and any information that was derived therefrom, did you meet or discuss with any members of the Intelligence Community outside of the FBI to provide information, talk to them about these matters? Did they reach out to you? Did anything like that ever happen in 2016 or 2017

With her client having been asked about a topic that wasn’t among the topics he had prepared to discuss or among the clients whose privileged matters he had gotten prior authorization to discuss and apparently worried about ethical issues, Ruemmler asked if she and Sussmann need to take a minute to confer.

MS. RUEMMLER: Do you want to confer for a second?

MR. SUSSMANN: I just want to talk about the range of – I have a lot of different clients, and since we’ve just spoken —

MS. RUEMMLER: As long as you don’t reveal identity of them, which You’re not permitted to do under the rules, or any content.

MR. SUSSMANN: Can we step outside and talk about how to deal with the range of clients?

MS. RUEMMLER: Yes.

[Discussion off the record.]

MR. SUSSMANN: Thank you.

At this point, if Sussmann were really hiding this stuff (as John Durham claims), he could have refused to answer the question, citing that privilege and the off-topic question. But Sussmann didn’t do that. He consulted with Ruemmler (something that Durham is now making a stink about), then came back in the room, noted that Kash had asked an off-topic question, but nevertheless answered honestly.

[The reporter read the record as requested.]

MR. SUSSMANN: So I’m not clear as to the scope of what you’re asking your question, but I’m going to be sort of more expansive in my answer, because there’s nothing — you said in relation to the things that we discussed today, and this is not something we’ve discussed today.

But I did have — I don’t believe I had — s0 two things. I don’t believe I had — I didn’t have direct contact with [NSA] butI can relate to you some indirect contacts with [NSA]. And I had a meeting [at CIA] as well.

That’s what Kash was looking for.

Okay.

Sussmann explained, noting that this was classified.

A The [NSA] contact related to specifically my representation of the DNC, and my contact [with CIA] did not relate to my specific representation of the DNC, or the Clinton campaign, or the Democratic Party. And I also — I’m not — I will do the best that I can with you. I think there are limits to what I can discuss in an unclassified setting.

Kash asked about the CIA meeting.

Q Okay, fair enough. What was your contact [with CIA] about?

A So the contact [with CIA] was about reporting to them information that was reported to me about possible contacts, covert or at least nonpublic, between Russian entities and various entities in the Untied States associated with the — or potentially associated with the Trump Organization.

Q And when did that contact [with CIA] occur, month and year?

A February 2017.

Q Where did you get that information from to relay to [CIA]?

A From a client of mine.

Q Why did you go [to CIA]

After Ruemmler interrupted again to remind Sussmann not to violate privilege, he explained that he reached out on this front because he knew of Obama’s effort to get a review of potential Russian involvement in the election.

Q You did say, right, that you had — you’d received information from a client — I’m not asking who — that may be germane to the 2016 election and associates of the Trump campaign or people affiliated with the Trump campaign.

So my follow-up question was, why did you go to [CIA] with this information?

A Oh, I’m sorry. And I apologize. I remember what I was going to say. It was — it was, in large part, in response to President Obama’s post-election IC review of potential Russian involvement in the election. And in that regard, I had made outreach prior to the change in administration in 2016. And for reasons known and unknown to me, it took a long time to — or it took — you know, it took a while to have a meeting, and so it ended up being after the change in administration.

The line of questioning continued later with someone else, because Kash had to leave. In those questions, Sussmann factually answered the information came from a client he had represented before the DNC, and admitted he had the information prior to the election. He explained his motive for sharing the information with James Baker (which led the FBI to be able to intervene and prevent the NYT from publishing, something Durham didn’t bother to investigate before indicting Sussmann) and CIA. He admitted that Perkins Coie still represented the DNC when he met with the CIA, though he wasn’t doing work for them anymore. And, in a passage that will be a focal point of the trial, he described how he and Joffe decided together to share this information.

Q Okay. I want to ask you, so you mentioned that your client directed you to have these engagements with the FBI and [CIA] and to disseminate the information that client provided you. Is that correct?

A Well I apologize for the double negative. It isn’t not correct, but when you say my client directed me, we had a conversation, as lawyers do with their clients, about client needs and objectives and the best course to take for a client.

And so it may have been a decision that we came t0 together. I mean, I don’t want to imply that I was sort of directed to do something against my better judgment, or that we were in any sort of conflict, but this was — I think its most accurate to say it was done on behalf of my client.

In other words, Kash and his colleagues have known the outlines of this for over four years.

At the time, and in his next job at NSC, Kash would have had ready access to the CIA for more details about the meeting — indeed, he came into this interview knowing about it already.

At the time, and in his next job at NSC, and in his next job as DOD Chief of Staff, Kash would have had knowledge of Rodney Joffe’s contracts with FBI and NSA.

At the time, and in his next job at NSC, and in his next job as DOD Chief of Staff, Kash would have had access to the DARPA contract, which got extended afterwards.

In his comment, the Former President said that “those who knew about this” should be subject to criminal prosecution. And Kash Patel was, at all moments between December 2017 and January 2021, not only aware of the outlines and the players, but he did nothing.

Whatever else this kerfuffle has done, it has made Kash’s exposure as a witness in this case quite dicey. Because not only is Kash a witness that Sussmann was not hiding what he did, but he is someone who for years was in a position to do something about it, and he did nothing.

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