Posts

Confirmed: John Durham Has Withheld Discovery That DOJ Already Disproved His Claims of Political Malice

In his reply filing in the fight over what evidence will be submitted at his trial, Michael Sussmann confirmed something I’ve long suspected: John Durham has not provided Sussmann with the discovery Durham would need to have provided to present his own conspiracy theories at trial without risking a major discovery violation.

Were the Special Counsel to try to suggest that Mr. Sussmann and Mr. Steele engaged in a common course of conduct, that would open the door to an irrelevant mini-trial about the accuracy of Mr. Steele’s allegations about Mr. Trump’s ties to Russia—something that, like the Alfa Bank allegations, many experts continue to believe in, and about which the Special Counsel has tellingly failed to produce any significant discovery.

Sussmann dropped this in the filing without fanfare. But it is clear notice that if Durham continues down the path he is headed, he may face discovery sanctions down the road.

I explained why that’s true in these two posts. A core tenet of Durham’s conspiracy theories is that the only reason one would use proven cybersecurity methods to test certain hypotheses about Donald Trump would be for malicious political reasons. Here’s how Durham argued that in his own reply.

As the Government will demonstrate at trial, it was also the politically-laden and ethically-fraught nature of this project that gave Tech Executive-1 and the defendant a strong motive to conceal the origins of the Russian Bank-1 allegations and falsely portray them as the organic discoveries of concerned computer scientists.

There’s no external measure for what makes one thing political and makes another thing national security. But if this issue were contested, I assume that Sussmann would point, first, to truth as a standard. And as he could point out, many of the hypotheses April Lorenzen tested, which Durham points to as proof the project was malicious and political, turned out to be true. They were proven to be true by DOJ. Some of those true allegations involved guilty pleas to crimes, including FARA, explicitly designed to protect national security; another involved Roger Stone’s guilty verdict on charges related to his cover-up of his potential involvement in a CFAA hacking case.

DOJ (under the direction of Trump appointee Rod Rosenstein, who in those very same years was Durham’s direct supervisor) has already decided that John Durham is wrong about these allegations being political. Sussmann has both truth and DOJ’s backing on his side that these suspicions, if proven true (as they were), would be a threat to national security. Yet Durham persists in claiming to the contrary.

Here’s the evidence proving these hypotheses true that Durham has withheld in discovery:

The researchers were testing whether Richard Burt was a back channel to the Trump campaign. And while Burt’s more substantive role as such a (Putin-ordered) attempt to establish a back channel came during the transition, it is a fact that Burt was involved in several events earlier in the campaign at which pro-Russian entities tried to cultivate the campaign, including Trump’s first foreign policy speech. Neither Burt nor anyone else was charged with any crime, but Mueller’s 302s involving the Center for National Interest — most notably two very long interviews with Dmitri Simes (one, updated, two, updated), which were still under investigation in March 2020 — reflect a great deal of counterintelligence interest in the organization.

The researchers were also testing whether people close to Trump were laundering money from Putin-linked Oligarchs through Cyprus. That guy’s name is Paul Manafort, with the assistance of Rick Gates. Indeed, Manafort was ousted from the campaign during the period researchers were working on the data in part to distance the campaign from that stench (though it didn’t stop Trump from pardoning Manafort).

A more conspiratorial Lorenzen hypothesis (at least on its face) was that one of the family members of an Alfa Bank oligarch might be involved — maybe a son- or daughter-in-law. And in fact, German Khan’s son-in-law Alex van der Zwaan was working with Gates and Konstantin Kilimnik in precisely that time period to cover up Manafort’s ties to those Russian-backed oligarchs.

Then there was the suspicion — no doubt driven, on the Democrats’ part, by the correlation between Trump’s request to Russia for more hacking and the renewed wave of attacks that started hours later — that Trump had some back channel to Russia.

It turns out there were several. There was the aforementioned Manafort, who in the precise period when Rodney Joffe started more formally looking to see if there was a back channel, was secretly meeting at a cigar bar with alleged Russian spy Konstantin Kilimnik discussing millions of dollars in payments involving Russian-backed oligarchs, Manafort’s plan to win the swing states, and an effort to carve up Ukraine that leads directly to Russia’s current invasion.

That’s the kind of back channel researchers were using proven cybersecurity techniques to look for. They didn’t confirm that one — but their suspicion that such a back channel existed proved absolutely correct.

Then there’s the Roger Stone back channel with Guccifer 2.0. Again, in this precise period, Stone was DMing with the persona. But the FBI obtained at least probable cause that Stone’s knowledge of the persona went back much further, back to even before the persona went public in June 2016. That’s a back channel that remained under investigation, predicated off of national security crimes CFAA, FARA, and 18 USC 951, at least until April 2020 and one that, because of the way Stone was scripting pro-Russian statements for Trump, might explain Trump’s “Russia are you listening” comment. DOJ was still investigating Stone’s possible back channel as a national security concern well after Durham was appointed to undermine that national security investigation by deeming it political.

Finally, perhaps the most important back channel — for Durham’s purposes — was Michael Cohen. That’s true, in part, because the comms that Cohen kept lying to hide were directly with the Kremlin, with Dmitri Peskov. That’s also true because on his call to a Peskov assistant, Cohen laid out his — and candidate Donald Trump’s — interest in a Trump Tower Moscow deal that was impossibly lucrative, but which also assumed the involvement of one or another sanctioned bank as well as a former GRU officer. That is, not only did Cohen have a back channel directly with the Kremlin he was trying to hide,  but it involved Russian banks that were far more controversial than the Alfa Bank ties that the researchers were pursuing, because the banks had been deemed to have taken actions that threatened America’s security.

This back channel is particularly important, though, because in the same presser where Trump invited Russia to hack his opponent more, he falsely claimed he had decided against pursuing any Trump Organization developments in Russia.

Russia that wanted to put a lot of money into developments in Russia. And they wanted us to do it. But it never worked out.

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

The researchers were explicitly trying to disprove Trump’s false claim that there were no ongoing business interests he was still pursuing with Russia. And this is a claim that Michael Cohen not only admitted was false and described recognizing was false when Trump made this public claim, but described persistent efforts on Trump’s part to cover up his lie, continuing well into his presidency.

For almost two years of Trump’s Administration, Trump was lying to cover up his efforts to pursue an impossibly lucrative real estate deal that would have required violating or eliminating US sanctions on Russia. That entire time, Russia knew Trump was lying to cover up those back channel communications with the Kremlin. That’s the kind of leverage over a President that all Americans should hope to avoid, if they care about national security. That’s precisely the kind of leverage that Sally Yates raised when she raised concerns about Mike Flynn’s public lies about his own back channel with Russia. Russia had that leverage over Trump long past the time Trump limped out of a meeting with Vladimir Putin in Helsinki, to which Trump had brought none of the aides who would normally sit in on a presidential meeting, looking like a beaten puppy.

Durham’s failures to provide discovery on this issue are all the more inexcusable given the fights over privilege that will be litigated this week.

As part of the Democrats’ nesting privilege claims objecting to Durham’s motion to compel privileged documents, Marc Elias submitted a declaration describing how, given his past knowledge and involvement defending against conspiracy theory attacks on past Democratic presidential candidates launched by Jerome Corsi and Donald Trump, and given Trump’s famously litigious nature, he believed he needed expertise on Trump’s international business ties to be able to advise Democrats on how to avoid eliciting such a lawsuit from Trump. (Note, tellingly, Durham’s motion to compel doesn’t mention a great deal of accurate Russian-language research by Fusion — to which Nellie Ohr was just one of a number of contributors — that was never publicly shared nor debunked as to quality.)

There are four redacted passages that describe the advice he provided; he is providing these descriptions ex parte for Judge Cooper to use to assess the Democrats’ privilege claims. Two short ones probably pertain to the scope of Perkins Coie’s relationship with the Democratic committees. Another short one likely describes Elias’ relationship, and through him, Fusion’s, with the oppo research staff on the campaign. But the longest redaction describing Elias’ legal advice, one that extends more than five paragraphs and over a page and a half, starts this way:

That is, the introduction to Elias’ description of the privilege claims tied to the Sussmann trial starts from Trump’s request of Russia to hack Hillary. Part of that sentence and the balance of the paragraph is redacted — it might describe that immediately after Trump made that request, the Russians fulfilled his request — but the redacted paragraph and the balance of the declaration presumably describes what legal advice he gave Hillary as she faced a new onslaught of Russian hacking attempts that seemingly responded to her opponent’s request for such hacking.

Given what Elias described about his decision to hire Fusion, part of that discussion surely explains his effort to assess an anomaly identified independently by researchers that reflected unexplained traffic between a Trump marketing server and a Russian bank. Elias probably described why it was important for the Hillary campaign to assess whether this forensic data explained why Russian hackers immediately responded to Trump’s request to hack her.

As I have noted, in past filings Durham didn’t even consider the possibility that Elias might discuss the renewed wave of hacking that Hillary’s security personnel IDed in real time with Sussmann, Perkins Coie’s cybersecurity expert.

It’s a testament to how deep John Durham is in his conspiracy-driven rabbit hole that he assumes a 24-minute meeting between Marc Elias and Michael Sussmann on July 31, 2016 to discuss the “server issue” pertained to the Alfa Bank allegations. Just days earlier, after all, Donald Trump had asked Russia to hack Hillary Clinton, and within hours, Russian hackers obliged by targeting, for the first time, Hillary’s home office. Someone who worked in security for Hillary’s campaign told me that from his perspective, the Russian attacks on Hillary seemed like a series of increasing waves of attacks, and the response to Trump’s comments was one of those waves (this former staffer documented such waves of attack in real time). The Hillary campaign didn’t need Robert Mueller to tell them that Russia seemed to respond to Trump’s request by ratcheting up their attacks, and Russia’s response to Trump would have been an urgent issue for the lawyer in charge of their cybersecurity response.

It’s certainly possible this reference to the “server” issue pertained to the Alfa Bank allegations. But Durham probably doesn’t know; nor do I. None of the other billing references Durham suggests pertain to the Alfa Bank issue reference a server.

Durham took a reference that might pertain to a discussion of a correlation between Trump’s ask and a renewed wave of Russian attacks on Hillary (or might pertain to the Alfa Bank anomaly), and assumed instead it was proof that Hillary was manufacturing unsubstantiated dirt on her opponent. He never even considered the legal challenges someone victimized by a nation-state attack, goaded by her opponent, might face.

And yet, given the structure of that redaction from Elias, that event is the cornerstone of the privilege claims surrounding the Alfa Bank allegations.

Because of all the things I laid out in this post, Judge Cooper may never have to evaluate these privilege claims at all. To introduce privileged evidence, Durham has to first withstand:

  • Denial because his 404(b) notice asking to present it was late, and therefore forfeited
  • Denial because Durham’s motion to compel violated local rules and grand jury process, in some ways egregiously
  • Rejection because most of the communications over which the Democrats have invoked privilege are inadmissible hearsay
  • The inclusion or exclusion of the testimony of Rodney Joffe, whose privilege claims are the most suspect of the lot, but whose testimony would make the communications Durham deems to be most important admissible

Cooper could defer any assessment of these privilege claims until he decides these other issues and, for one or several procedural reasons, simply punt the decision entirely based on Durham’s serial failures to follow the rules.

Only after that, then, would Cooper assess a Durham conspiracy theory for which Durham himself admits he doesn’t have proof beyond a reasonable doubt. As part of his bid to submit redacted and/or hearsay documents as exhibits under a claim that this all amounted to a conspiracy (albeit one he doesn’t claim was illegal), Durham argues that unless he can submit hearsay and privileged documents, he wouldn’t otherwise have enough evidence to prove his conspiracy theory.

Nor is evidence of this joint venture gratuitous or cumulative of other evidence. Indeed, the Government possesses only a handful of redacted emails between the defendant and Tech Executive-1 on these issues. And the defendant’s billing records pertaining to the Clinton Campaign, while incriminating, do not always specify the precise nature of the defendant’s work.

Accordingly, presenting communications between the defendant’s alleged clients and third parties regarding the aforementioned political research would hardly amount to a “mini-trial.” (Def. Mot. at 20). Rather, these communications are among the most probative and revealing evidence that the Government will present to the jury. Other than the contents of privileged communications themselves (which are of course not accessible to the Government or the jury), such communications will offer some of the most direct evidence on the ultimate question of whether the defendant lied in stating that he was not acting for any other clients.

In short, because the Government here must prove the existence of client relationships that are themselves privileged, it is the surrounding events and communications involving these clients that offer the best proof of those relationships.

Moreover, even if the Court were to find that no joint venture existed, all of the proffered communications are still admissible because, as set forth in the Government’s motions, they are not being offered to prove the truth of specific assertions. Rather, they are being offered to prove the existence of activities and relationships that led to, and culminated in, the defendant’s meeting with the FBI. Even more critically, the very existence of these written records – which laid bare the political nature of the exercise and the numerous doubts that the researchers had about the soundness of their conclusions – gave the defendant and his clients a compelling motive, separate and apart from the truth or falsity of the emails themselves, to conceal the identities of such clients and origins of the joint venture. Accordingly, they are not being offered for their truth and are not hearsay.

This passage (which leads up to a citation from one of the Georgia Tech researchers to which Sussmann was not privy that the frothers have spent the weekend drooling over) is both a confession and a cry for help.

In it, Durham admits he doesn’t actually have proof that the conspiracy he is alleging is the motive behind Michael Sussmann’s alleged lie.

He’s making this admission, of course, while hiding the abundant evidence — evidence he didn’t bother obtaining before charging Sussmann — that Sussmann and Joffe acceded to the FBI request to help kill the NYT story, which substantiates Sussmann’s stated motive.

And then, in the same passage, Durham is pointing to that absence of evidence to justify using that same claimed conspiracy for which he doesn’t have evidence to pierce privilege claims to obtain the evidence he doesn’t have. It’s a circular argument and an admission that all the claims he has been making since September are based off his beliefs about what must be there, not what he has evidence for.

Thus far the researchers’ beliefs about what kind of back channels they might find between Trump and Russia have far more proof than Durham’s absence of evidence.

Again, Durham doesn’t even claim that such a conspiracy would be illegal (much less chargeable under the statute of limitations), which is why he didn’t do what he could have had he been able to show probable cause that a crime had been committed: obtaining the communications with a warrant and using a filter team. Bill Barr’s memoir made it quite clear that he appointed Durham not because a crime had been committed, but because he wanted to know how a “bogus scandal” in which DOJ found multiple national security crimes started. ”Even after dealing with the Mueller report, I still had to launch US Attorney John Durham’s investigation into the genesis of this bogus scandal.” In his filing, Durham confesses to doing the same, three years later: using his feelings about a “bogus scandal” to claim a non-criminal conspiracy that he hopes might provide some motive other than the one — national security — that DOJ has already confirmed.

An absolutely central part of Durham’s strategy to win this trial is to present his conspiracy theories, whether by belatedly piercing privilege claims he should have addressed before charging Sussmann (even assuming he’ll find what he admits he doesn’t have proof is there), or by presenting his absence of evidence and claiming it is evidence. He will only be permitted to do if Judge Cooper ignores all his rule violations and grants him a hearsay exception.

But if he manages to present his conspiracy theories, Sussmann can immediately pivot and point out all the evidence in DOJ’s possession that proves not just that the suspicions Durham insists must be malicious and political in fact proved to be true, but also that DOJ — his former boss! — already deemed these suspicions national security concerns that in some cases amounted to crimes.

John Durham’s entire trial strategy consists of claiming that it was obviously political to investigate a real forensic anomaly to see whether it explained why Russia responded to Trump’s call for more hacks by renewing their attack on Hillary. He’s doing so while withholding abundant material evidence that DOJ already decided he’s wrong.

So even if he succeeds, even if Cooper grants him permission to float his conspiracy theories and even if they were to succeed at trial, Sussmann would have immediate recourse to ask for sanctions, pointing to all the evidence in DOJ’s possession that Durham’s claims of malice were wrong.

Update: The bad news I’m still working through my typos, with your help, including getting the name of Dmitri Simes’ organization wrong. The good news is the typos are probably due to being rushed out to cycle in the sun, so I have a good excuse.

Update: Judge Cooper has issued an initial ruling on Durham’s expert witness. It limits what Durham presents to the FBI investigation (excluding much of the CIA investigation he has recently been floating), and does not permit the expert to address whether the data actually did represent communications between Trump and Alfa Bank unless Sussmann either affirmatively claims it did or unless Durham introduced proof that Sussmann knew the data was dodgy.

Finally, the Court takes a moment to explain what could open the door to further evidence about the accuracy of the data Mr. Sussmann provided to the FBI. As the defense concedes, such evidence might be relevant if the government could separately establish “what Mr. Sussmann knew” about the data’s accuracy. Data Mot. at 3. If Sussmann knew the data was suspect, evidence about faults in the data could possibly speak to “his state of mind” at the time of his meeting with Mr. Baker, id., including his motive to conceal the origins of the data. By contrast, Sussmann would not open the door to further evidence about the accuracy of the data simply by seeking to establish that he reasonably believed the data were accurate and relied on his associates’ representations that they were. Such a defense theory could allow the government to introduce evidence tending to show that his belief was not reasonable—for instance, facially obvious shortcomings in the data, or information received by Sussmann indicating relevant deficiencies.

Ultimately, Cooper is treating this (as appropriate given the precedents in DC) as a question of Sussmann’s state of mind.

Importantly, this is what Cooper says about Durham blowing his deadline (which in this case was a deadline of comity, not trial schedule): he’s going to let it slide, in part because Sussmann does not object to the narrowed scope of what the expert will present.

Mr. Sussmann also urges the Court to exclude the expert testimony on the ground that the government’s notice was untimely and insufficiently specific. See Expert Mot. at 6–10; Fed. R. Crim. P. 16(a)(1)(G). Because the Court will limit Special Agent Martin’s testimony largely to general explanations of the type of technical data that has always been part of the core of this case—much of which Mr. Sussmann does not object to—any allegedly insufficient or belated notice did not prejudice him. See United States v. Mohammed, No. 06-cr-357, 2008 WL 5552330, at *3 (D.D.C. May 6, 2008) (finding that disclosure nine days before trial did not prejudice defendant in part because its subject was “hardly a surprise”) (citing United States v. Martinez, 476 F.3d 961, 967 (D.C. Cir. 2007)).

This suggests Cooper may be less willing to let other deadlines slide, such as the all-important 404(b) one.

Six Investigative Files from the Mueller Investigation Durham May Have Just Committed to Providing Michael Sussmann

As I noted in this thread, while John Durham and Michael Sussmann have battling motions in limine about whether Durham can introduce evidence of his own conspiracy theory about the Democrats packaging dirt against Donald Trump, Durham somehow forgot to file a motion in limine to prevent Sussmann from raising facts that show how reasonable it was to search for ties between Trump and Russia in 2016.

It’d be hard to see how he could do that anyway. After all, there’s abundant evidence that the reason researchers and Democratic operatives alike focused their effort to understand the DNS anomaly in late July and thereafter is because of the things Trump said on July 27, 2016.

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

[snip]

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

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

[snip]

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

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

Particularly if Sussmann knew in real time — as the Hillary campaign did — that a renewed wave of attacks by Russia started immediately after Trump’s comments, Sussmann can fairly explain that, in their attempt to understand the correlation suggesting causation between Trump’s request and the attack, the anomalous DNS data seeming to suggest communication between Trump and Alfa Bank might explain the connection. In fact, the inference that Russia’s back channel was Alfa Bank had some backing (LetterOne Board Member Richard Burt had been involved in reviewing Trump’s first foreign policy speech), though the actual back channels were Paul Manafort and Roger Stone. So it was reasonable to try to understand the possibility of that back channel and reasonable to share with the FBI data reflecting that possibility.

For his part, given the way that Durham has always obscured when in late July the effort to research Trump got started, he’s likely to rely on a document — which may be dated July 26 or may be dated July 28, but which the Intelligence Community judged might be a fabrication in real time — claiming that Hillary had already decided to tie Trump and Russia together.

Given the timing of the increased effort to understand the Alfa Bank anomaly and the explicit references to Trump’s July 27 comments, Sussmann must be permitted to show how Trump’s July 27 comments were part of his state of mind when he went to the FBI and made his actions (and, indeed, the privilege claims Durham is now trying to pierce) reasonable.

Had Durham left well enough alone, that might be all Sussmann could ask to present at trial. But if Durham tries to rely on that sketchy intelligence report or if he wins his bid to present his full conspiracy theory, then it opens him up to far great discovery obligations. They include the investigative files on the following people Mueller investigated:

Richard Burt: The Mueller Report describes that, after Vladimir Putin ordered Petr Aven to seek to establish a back channel with Trump after the election, Aven approached Richard Burt, with whom he served on the board of LetterOne, to attempt to reach out. But Burt had played a role in outreach to the Trump campaign long before that, in an April 2016 Center for National Interest review of Trump’s first foreign policy speech. Burt was also present at two CNI-hosted speeches, one in June and August, at which “the participants addressed U.S. relations with Russia, including how U.S. relations with NATO and European countries affected U.S. policy toward Russia.” Indeed, according to Burt’s interview report, he was the one focusing on NATO and Europe. Burt’s publicly released interview report remains heavily redacted, including numerous redactions of material that was, in March 2020, still under investigation. Given that Durham wants to litigate whether it was realistic to think Trump might have a back channel through Richard Burt, Durham probably needs to provide the Burt-related materials to Sussmann.

Roger Stone: It is a fact that, on July 31, 2016 — during a period, starting at least by July 25, when he was actively seeking to optimize the files Russia stole from Hillary — Roger Stone had two conversations with Donald Trump and afterwards sent draft tweets promising a new peace deal with Putin for Trump to use in the coming days.

(U) On Sunday July 31, at 9:15 p.m., the day after speaking at length with Manafort, Stone called Gates.1550 Ten minutes later, Stone had two phone calls with Trump that lasted over ten minutes. 1551 Stone then emailed Jessica Macchia, one of Trump’s assistants, eight draft tweets for Trump, under the subject line “Tweets Mr. Trump requested last night.”1552 Many of the draft tweets attacked Clinton for her adversarial posture toward Russia and mentioned a new peace deal with Putin, such as “I want a new detente with Russia under Putin.”1553 (U) At 10:45 p.m. that same evening, Stone emailed Corsi again with the subject line “Call me MON[day]” and writing that “Malloch should see Assange.”1554 (U) The next morning, August 1, Stone again spoke twice with Trump. 1555 Stone later informed Gates of these calls. 1556 According to an email that morning from Stone to Macchia, Trump had “asked [Stone] for some other things” that Stone said he was “writing now.”1557

1551 (U) Records reviewed by the Committee showed a six minute call from Stone to Trump on July 31 at approximately 9:25 p.m. and a five-minute call from Stone to himself at approximately 9:36 p.m. See AT&T Toll records, Roger Stone/Drake Ventures (ATTSSCI00039). Evidence introduced at trial against Stone showed corresponding calls with Trump at those same times and for the same length of time, including a call from Trump at the number “-1” to Stone at 9:36 p.m. See United States v. Stone, Gov. Ex. 148; United States v. Stone, Gov. Ex. 164; Testimony of Michelle Taylor, United States v. Stone, pp. 348-349. This suggests that that Trump’s phone would sometimes appear in another person’s phone records as that person calling him or herself, or as a call with phone number “-1.” A number of such calls appear in Stone’s records and others, including records provided by Donald Trump Jr., during relevant time periods, but the Committee did not investigate those additional calls further.

1552 (U) Email, Stone to Macchia, July 31, 2016 (TRUMPORG_18_001307).

1553 (U) Ibid One draft tweet referenced the Clinton Foundation. Stone followed up about the tweets with Rhona Graff the following morning, August 1, to make sure Trump received them. Email, Stone to Graff, August 1, 2016 (TRUMPORG _ 18_001310).

1555 (U) AT&T toll records, Roger Stone/Drake Ventures.

1556 (U) Text message, Stone to Gates, August 2, 2016 (United States v. Stone, Gov. Ex. 20) (“Spoke to Trump a cpl of times.”).

1557 (U) Email, Stone to Macchia, August 1, 2016 (TRUMPORG_l8_001315).

It is also a fact that while most of Trump’s aides said that Trump ad-libbed that “Are you listening” comment, Rick Gates testified that Stone was stating — before flip-flopping on the issue days later — that Russia may have the emails, implying that Stone could have been the source of that comment along with the scripted tweets. Indeed, from that April 2016 foreign policy speech, Stone was demanding that Gates allow him to have input on Trump’s foreign policy statements.

It is also a fact that by August 2018, the FBI had evidence that led them to suspect that Stone had learned of the Guccifer 2.0 persona before it went live on June 15, 2016. Given how centrally Durham has made the July 2016 start date of the research into the Alfa Bank anomalies, he may be on the hook for providing details showing that Stone already had a back channel by then. That’s all the more true if Durham wants to rely on that intelligence product focusing on Guccifer 2.0.

Paul Manafort, Konstantin Kilimnik, and Alex Van der Zwaan: With his motion in limine, Durham has formally noticed that he wants to litigate at trial whether it was fair for people acting on behalf of Hillary — to say nothing of researchers collaborating with DARPA and the FBI or a private citizen with an established record conducting infosec inquiries into threats to the United States — to want to inquire into the following topics:

  • Illegal financial relationships between Oligarchs close to Putin and those close to Trump
  • Laundering of Russian-backed money through Cyprus
  • The actions of those married to the children of Alfa Bank’s founders
  • Sanctions violations and FEC regulations implicated by Fancy Bear’s ongoing attack on the election

Durham suggests the only reason someone would want to research such topics was unfounded animus directed at Trump. But the results of the Mueller inquiry — to say nothing of what the ongoing investigation confirming Konstanin Kilimnik did, in fact, share Trump’s campaign strategy with Russian intelligence agencies — prove that all these concerns not only had merit, but proved to be absolutely correct.

At least one person close to Donald Trump, Manafort, did have illegal financial relationships with Oligarchs close to Putin: the Campaign Manager who got fired for such ties in the middle of this intensifying focus on the Alfa Bank anomalies. That person did launder the money he made from them through Cyprus. How that Campaign Manager — who was working for “free” — got paid remains a mystery, implicating FEC regulations. And some of the other actions implicating the Russian operation that FEC’s General Counsel found reason to believe amounted to a campaign finance violations include:

  • Trump’s request, “Russia are you listening?”
  • Illegal donations from Cambridge Analytica
  • An in-kind donation for hacking Hillary
  • Internet Research Agency donation of trolling to support Trump

While Democrats didn’t block the much smaller violation tied to the dossier, Republicans have blocked Trump from any accountability for his likely campaign finance violations involved with accepting help from Russia.

Meanwhile, in the very same weeks when those Durham claims were involved in a malicious conspiracy targeting the children-in-laws of Alfa Bank’s founders, German Khan’s son-in-law, Alex Van der Zwaan, was taking action on Rick Gates’ orders to cover up Manafort’s ties to those Oligarchs. Van der Zwaan would, at first, lie to Mueller about the actions he took in response to Gates’ orders starting on September 7, 2016, including a call to Kilimnik, whom Van der Zwaan understood to be a former Russian spy.

In or about September 2016, VAN DER ZW AAN spoke with both Gates and Person A regarding the Report. In early September 2016, Gates called VAN DER ZWAAN and told him to contact Person A. After the call, Gates sent VAN DER ZWAAN documents including a preliminary criminal complaint in Ukraine via an electronic application called Viber. VAN DER ZWAAN then called Person A and discussed in Russian that formal criminal charges might be brought against a former Ukrainian Minister of Justice, Law Finn A, and Manafort. VAN DER ZWAAN recorded the call. VAN DER ZWAAN then called the senior partner on the Report at Law Firm A and partially recorded that call. Finally, VAN DER ZWAAN called Gates and recorded the call. VAN DER ZWAAN also took notes of the calls.

If Durham wants to argue that it was unreasonable to inquire into whether German Khan’s son-in-law might be involved in illicit doings with Oligarchs tied to Putin and people close to Trump, he needs to provide Sussmann the details of the cover-up that Van der Zwaan conducted with Kilimnik and Rick Gates just days before Sussmann’s meeting with James Baker. He needs to allow Sussmann to show that evidence in DOJ’s possession shows that not only was it a valid subject of inquiry, but precisely the thing April Lorenzen was concerned might be going on was going on, in real time.

Michael Cohen: With his untimely 404(b) notice, Durham informed Sussmann that he also wants to claim the dossier was part of the conspiracy he was trying to cover up by lying, even though he has provided no evidence that Sussmann knew Christopher Steele was sharing those reports with the FBI. By making it an issue, though, Durham also makes Michael Cohen’s real secret communications with the Kremlin, which disinformation in the dossier seemed tailored to obscure, an issue. That’s all the more true given that Trump’s “Russia are you listening” comments also included statements that — Cohen has described recognizing in real time — were a lie that covered up that Trump was still chasing an impossibly lucrative real estate deal that involved a former GRU officer and one of two sanctioned banks when he claimed to have decided not to pursue one. This topic is all the more pertinent given that Trump Organization withheld the documents reflecting these secret back channel communications from Congress and Trump demonstrably lied to Mueller about the topic. If Durham wants to argue it was implausible to think Michael Cohen had back channel communications with the Kremlin, then he needs to give Sussmann all the evidence that not only was it not implausible, but it was fact.

I’ve seen no hint that Sussmann’s attorneys want to turn Sussmann’s trial into the trial of Donald Trump’s 2016 campaign that we never got. They seem content to argue that the alleged lie was not material and the evidence that Sussmann lied in the way Durham thinks he did is thin, if not inadmissible.

But Durham has chosen a different path. He has wildly expanded the scope of what kind of questions he think are material to this case. And because he has chosen that dramatically expanded path, he has made all of this evidence material under discovery obligations.

The evidence to prove that the suspicions Sussmann and others had in 2016 were not just justified, but turned out to be true, are now material to discovery. If Durham doesn’t start turning over vast swaths of material about the ties of Trump’s top associates with Russia to Sussmann, he risks dismissal for discovery violations.

John Durham Unveils His Post-Putin Puppet Strategy

I first complained publicly about the Alfa Bank allegations on November 1, 2016. I raised questions about the provenance of the Steele dossier the day after it was released, on January 11, 2017. I started raising concerns that Russia had succeeded in injecting the dossier with disinformation just a year later — literally years before the Republicans investigating it full-time did. When Democrats revealed that they had paid for the dossier in October 2017, I wrote a very long post labeling the entire project “fucking stupid.” Part of that was about the Democrats’ delayed admission they were behind the dossier. But part of that was because of the way the dossier distracted from Trump’s very real very concerning ties to Russia.

It has been clear for some time that Steele’s reports had some kind of feedback loop, responding to information the Democrats got. That was most obvious with respect to the September 14 Alfa Bank report, which was obviously written after first news of the Alfa Bank/Trump Tower story, which was pushed by Democratic partisans. Particularly given that we know the released report is a selective release of just some reports from the dossier, the inclusion of Alfa Bank in that release makes no sense. Even if reports about old corrupt ties between Alfa and Putin are true (as if Democratic politicians and corrupt American banks never have old ties), the inclusion of the Alfa report in the dossier on Trump made zero sense.

Which is why Alfa Bank decided — after consulting with big Republican lawyers like Viet Dinh and soon-to-be DOJ Criminal Division Chief Brian Benczkowski — to sue for defamation. Now I understand why (particularly given that Republicans seem to have known who paid for the dossier for some time). I’m not sure Alfa Bank executives pass the bar for defamation here (though the publication of a report that misspelled Alfa’s name is pretty damning), but the fact that Elias paid for this dossier on behalf of the Democrats is going to make that defamation case far more explosive (and I’ll be surprised if Elias doesn’t get added into the mix).

As I said when I began this: I have no doubt Russia tampered with the election, and if the full truth comes out I think it will be more damning than people now imagine.

But the Democrats have really really really fucked things up with their failures to maintain better ethical distance between the candidate and the dossier, and between the party and the FBI sharing. They’ve made things worse by waiting so long to reveal this, rather that pitching it as normal sleazy political oppo research a year ago.

The case of Russian preference for Trump is solid. The evidence his top aides were happy to serve as Russian agents is strong.

But rather than let FBI make the case for that, Democrats instead tried to make their own case, and they did in such a way as to make the very solid case against Trump dependent on their defense of the dosser, rather than on better backed claims released since then.

Boy it seems sadly familiar, Democrats committing own goals like this. And all that’s before where the lawfare on this dossier is going to go.

I may be the earliest and most prescient critic of all this, in either party. Sit down, Kash Patel! Sit down, Chuck Ross!

Sit down, John Durham!

And boy was I right, way back in October 2017, about where this was going to go.

But I have also shown that people close to Oleg Deripaska succeeded in exploiting this project as part of a vicious double game, victimizing both Hillary Clinton and Paul Manafort, making it more likely Manafort would cooperate in the Russian operation against Hillary, which he did. I have shown that the most obvious disinformation in the dossier, probably sourced to Dmitri Peskov — claiming that Michael Cohen had secret communications with the Kremlin on election interference — served to hide Michael Cohen’s very real secret communications with Peskov on a Trump Tower deal involving sanctioned banks and a former GRU official. I have more recently confirmed that someone who claimed to work for an FSB front was pushing the Alfa Bank allegations more aggressively than Michael Sussmann in October 2016; that same person was using Internet routing records to support a false story in May 2016, the same month the DNS anomalies started. I showed that large numbers of Republicans rationalize their attack on democracy on January 6 based on the dossier, even while they accept the dossier was Russian disinformation, thereby literally claiming that Russian disinformation convinced them to attack American democracy.

And Russia’s wild success at using this to sow division continues, even as Russia massacres children in an assault on Ukrainian democracy. Just Monday, after all, John Durham suggested that because private citizen April Lorenzen investigated the actions of the people married to Alfa Bank Oligarch children, she was part of a criminal conspiracy, even though it is a provable fact that the man married to the daughter of an Alfa Bank founder, Alex Van der Zwaan, was — in those very same weeks!!! — acting on orders from Russian spy Konstantin Kilimnik to cover up Manafort’s ties to the Oligarchs behind the 2016 election interference. Durham is so far down his conspiratorial rabbit hole, he doesn’t even realize he’s trying to criminalize being right about a real threat to democracy.

Which brings us to Durham’s motion to compel submitted last night, predictably asking Judge Christopher Cooper to review the privilege claims behind the Democrats and Fusion GPS’ privilege claims. I’m pretty sympathetic that some of the privilege claims the parties involved have made are bullshit, just as the claims Trump’s supporters have made to hide the events that led up to January 6 or any number of other things that go well beyond election-year rat-fucking are obviously bullshit. But it now seems clear that Durham is making the same error Alfa Bank did, not only assuming that everyone pushing the Alfa Bank allegations was being directed by the Democrats (when Lorenzen played a more important role), but also assuming people working for Hillary were behind all new push on the story; I’ve proven that was false.

Worse still, the specific form of Durham’s demand and its timing not only prove Durham’s bad faith, but strongly suggest that Durham viewed his own investigation to form part of a symbiotic whole with the Alfa Bank lawfare (the lawfare I rightly identified in 2017) still exploiting the dissension sowed by Russia in 2016. In the month of March, Durham did three things that were, as Sussmann’s lawyers described, “wildly untimely” for a trial scheduled to start in May. After getting an approved extension to their CIPA deadline, Durham filed a 404(b) notice on March 23; those notices were due on March 18. Durham told Sussmann of a new expert witness in the last days in March; that notice was also due by March 18. And then, on March 30, Durham told Sussmann he was going to attempt to pierce privilege claims that had been under discussion for a year.

All these belated steps look like a desperate, last minute attempt to change strategy. And it seems likely that the strategy change was necessitated, at least in part, by the stay and then dismissal of Alfa Bank’s lawfare, necessitated by the sanctions imposed by Putin’s aggression in Ukraine.

Consider the following timeline:

  • February 9: DC Superior Judge Shana Frost Matini observes that Durham case and Alfa Bank lawsuit appear reading from the same script and stays Alfa’s motions until after the Sussmann trial
  • February 11: In the wake of the expiration of the statute of limitation on a February 9, 2017 Sussmann meeting at the CIA, Durham files an inflammatory and belated conflict filing, raising new allegations and setting off death threats
  • Mid-February 2022: Alfa Bank continues its efforts to breach the privilege and Fifth Amendment claims of John Durham’s subjects
  • February 22: Russia invades Ukraine in an attempt to rid it of its democracy and sovereignty
  • February 24: A first set of sanctions on Alfa Bank
  • March 3: Durham asks for an extension on filing his CIPA filing from March 18 to March 25
  • March 4: Alfa dismisses John Doe lawsuits
  • March 18: Alfa dismisses Fusion GPS lawsuit
  • March 23: Durham files a Supplement to his 404(b) notice making wild new claims about the scope of the material pertinent to Sussmann’s alleged lie
  • March 25: Durham submits his CIPA notice, probably asking to use an intelligence product viewed as possible Russian disinformation in real time (and, given what we’ve learned about Roger Stone’s activities before that, likely designed as cover for him)
  • March 30: Durham informs Sussmann they want to call an FBI expert, in part to explain DNS data, but in part to attack the credibility of the data and also want to use a motion in limine to breach privilege claims made by the Democrats
  • March 31: Andrew DeFilippis tells attorney for Rodney Joffe that Joffe remains under investigation
  • April 4: Competing motions in limine present two different versions of the conspiracy that happened in 2016
  • April 6: Second set of sanctions on Alfa Bank; Durham moves to compel privilege review

Since Alfa’s lawsuit was stayed, Durham has taken at least four untimely steps, apparently in an effort to turn a single sketchy false statement charge into the conspiracy Durham has not yet been able to substantiate, the conspiracy without which his single false statement claim is far weaker.

With all that in mind, consider the basis on which Durham argues he should be able to breach privilege claims, no matter how flimsy.

Durham admits that he only asked for redacted copies of those documents Fusion and the Democrats have claimed privilege over on September 16, the day Durham indicted Sussmann.

On September 16, 2021, the Government issued grand jury subpoenas to Law Firm1 and the U.S. Investigative Firm, requiring them to produce – in redacted form – the documents previously listed on privilege logs prepared by counsel for those entities so that such documents would be available for admission into evidence at any trial in this matter. Those entities subsequently produced the requested documents with redactions.

In other words, Durham didn’t even begin the process of trying to pierce this privilege claim until over 850 days into his investigation, and days before the statutes of limitation started to expire. And in the ensuing six months, Durham has done nothing. So he’s making this request less than six weeks before the start of the trial (as I noted, litigating the much more specious John Eastman privilege claims has been pending since January 20), claiming the information is necessary for his case.

But some of the arguments Durham makes rely on the belated filings he has submitted in the last month. For example, he invokes Christopher Steele, whose first appearance in this case was in that untimely 404(b) notice.

Perhaps most notably, the U.S. Investigative Firm retained a United Kingdom-based investigator (“U.K. Person-1”) who compiled information and reports that became a widely-known “dossier” containing allegations of purported coordination between Trump and the Russian government.

Durham intertwines discussion of the Alfa Bank allegations with those of the dossier, even though — as Sussmann noted,

the Special Counsel has not identified, nor could he, any evidence showing that Mr. Sussmann … had any awareness Mr. Steele was separately providing information to the FBI.

That is, Steele’s activities might matter to the Sussmann case if this were a charged conspiracy, but not only didn’t Durham charge it, he only asserted the theory of conspiratorial relationship that involves Steele by relying on his delayed 404(b) notice.

Durham’s bid to pierce privilege claims with Rodney Joffe and Marc Elias similarly tie to events in which Sussmann was not involved. False statements cases are, as Sussmann noted the other day, about the state of mind of the defendant, not about events that took place weeks after his alleged lie.

But even if this were a conspiracy, Durham reserves for himself the right to determine what is necessary for a law firm to determine how to respond when a campaign opponent invites crimes from a hostile nation-state while making false claims about his ties to that state, and what is, instead, just political dirt.

To the extent these entities continue to assert privilege over the cited documents, they cannot plausibly rely on the “intermediary” exception. To be sure, the record available to the Government does not reflect that employees of the U.S. Investigative Firm were necessary in any way to facilitate Law Firm-1’s provision of legal advice to HFA and DNC, much less to Tech Executive-1. As noted above, many of the actions taken by the U.S. Investigative Firm pursuant to its retention agreement fell outside the purpose outlined in Law Firm-1’s engagement letter – that is, to provide expertise related to Law Firm-1’s legal advice to the DNC and Clinton Campaign regarding defamation and libel. When U.S. Investigative Firm employees communicated with Tech Executive-1, they were doing so in furtherance of collaborating and promoting the Russian Bank1 allegations, not facilitating legal advice from [Law Firm-1] to Tech Executive-1. Simply put, these were communications related to political opposition research and were not made “in confidence for the purpose of obtaining legal advice from the lawyer.” In re Lindsey, 158 F.3d at 1280. Any confidentiality that Tech Executive-1 might have otherwise maintained over these communications was waived when he and the defendant chose to disclose such information to a third party that did not have any formal or informal contract or retention agreement with Tech Executive-1 (i.e., the U.S. Investigative Firm).

These claims, absent evidence of the sort Robert Mueller showed Beryl Howell to breach Paul Manafort’s privilege claims, would be controversial even if they were timely (and if they were timely, they should have been presented to Howell before charging Sussmann instead of presenting them to Cooper six weeks before the trial date).

But they’re not timely, and they rely on other claims that are not timely. And all those untimely claims came in the wake of altered circumstances created by Putin’s invasion of Ukraine.

This series of late game curveballs would be abusive in any case, even if they were caused by long-planned deliberate malice or even incompetence. But the way they coincide with the collapse of the symbiotic lawfare project probably ordered — as was Petr Aven’s post-election outreach to Trump — by Putin really makes this look like a mere continuation of a six year plan to use Russia’s assault on democracy in 2016 to continue to sow discord in the US.


Claims made in untimely March 23 404(b) notice:

In a supplement to his Federal Rule of Evidence 404(b) notice provided to the defense on March 23 (the “Supplemental Notice”), the Special Counsel argues that such data gathering “constitute[s] direct evidence of the charged offense” as “factual context for the defendant’s conduct” and “to prove the existence of the defendant’s attorney-client relationships with [Mr. Joffe] and the Clinton Campaign.” Suppl. Notice at 2.

[snip

In his Supplemental Notice, the Special Counsel suggests that data was gathered “in a manner that may be considered objectionable—whether through invasions of privacy, breaches of contract, or other [unspecified] unlawful or unethical means.” Suppl. Notice at 2. But the Supplemental Notice does not identify—nor could it—any evidence that Mr. Sussmann had any awareness of or involvement in the alleged “objectionable” conduct of others related to gathering data, to the extent there even was any such “objectionable” conduct.

[snip]

The Special Counsel has also provided notice of his intention to adduce evidence regarding the accuracy of both “the purported data and [the] allegations” that Mr. Sussmann provided to the FBI and Agency 2. See Suppl. Notice at 2 (emphasis added).

[snip]

Elsewhere, the Special Counsel has suggested that data provided to Agency-2 was “misstated, overstated, and/or cherry-picked facts,” Suppl. Notice at 2,

[snip]

The Special Counsel has asserted he will offer evidence regarding the “origin” of the technical data gathered by Mr. Joffe and Others as “direct evidence” of “factual context for the defendant’s conduct” and “the existence of the defendant’s attorney-client relationships with [Mr. Joffe] and the Clinton Campaign” as to both the data provided to the FBI in September 2016 and the data provided to Agency-2 in 2017.1 Suppl. Notice at 2.

[snip]

The Special Counsel has also indicated an intention to offer evidence that (1) the data Mr. Sussmann provided was inaccurate; and (2) the analysis and conclusions drawn from that data were inaccurate. Suppl. Notice at 2 (seeking to introduce evidence regarding the “strength and reliability” of the data and allegations provided to the FBI and Agency-2, including that the white papers “may have misstated, overstated, and/or cherry-picked facts” or that certain FBI or Agency2 personnel determined that “data was potentially incomplete, fabricated, and/or exaggerated”).

[snip]

Second, the Special Counsel has utterly failed to provide an explanation for how such evidence is admissible against Mr. Sussmann. Instead, the Special Counsel simply asserts that evidence regarding the strength and reliability of the information provided to the FBI and Agency 2 is “direct evidence” of the false statements charge against Mr. Sussmann. Suppl. Notice at 2.

 

Tunnel Vision: Durham Treats Citizens’ Research into Real Paul Manafort Crimes Like a Criminal Conspiracy

On Monday, both John Durham and Michael Sussmann submitted their motions in limine, which are filings to argue about what can be admitted at trial. They address a range of issues that I’ll cover in several posts:

Sussmann:

Durham wants to:

  • Admit witnesses’ contemporaneous notes of conversations with the FBI General Counsel
  • Admit emails referenced in the Indictment and other, similar emails (see this post)
  • Admit certain acts and statements (including the defendant’s February 2017 meeting with a government agency, his December 2017 Congressional testimony, and his former employer’s October 2018 statements to the media) as direct evidence or, alternatively, pursuant to Federal Rule of Evidence 404(b)
  • Exclude evidence and preclude argument concerning allegations of political bias on the part of the Special Counsel (addressed in this post)
  • Admit an October 31, 2016 tweet by the Clinton Campaign

I will link my discussions in serial fashion.


It’s a testament to how deep John Durham is in his conspiracy-driven rabbit hole that he assumes a 24-minute meeting between Marc Elias and Michael Sussmann on July 31, 2016 to discuss the “server issue” pertained to the Alfa Bank allegations. Just days earlier, after all, Donald Trump had asked Russia to hack Hillary Clinton, and within hours, Russian hackers obliged by targeting, for the first time, Hillary’s home office. Someone who worked in security for Hillary’s campaign told me that from his perspective, the Russian attacks on Hillary seemed like a series of increasing waves of attacks, and the response to Trump’s comments was one of those waves (this former staffer documented such waves of attack in real time). The Hillary campaign didn’t need Robert Mueller to tell them that Russia seemed to respond to Trump’s request by ratcheting up their attacks, and Russia’s response to Trump would have been an urgent issue for the lawyer in charge of their cybersecurity response.

It’s certainly possible this reference to the “server” issue pertained to the Alfa Bank allegations. But Durham probably doesn’t know; nor do I. None of the other billing references Durham suggests pertain to the Alfa Bank issue reference a server.

The possibility that Durham is seeing a conspiracy to attack Donald Trump in evidence that could, instead, be evidence of Hillary’s campaign response to an unprecedented nation-state attack, is a worthwhile demonstration of the way the two sides in this case have two entirely different theories of the conspiracy that occurred during that election. That’s particularly apparent given the competing motions in limine seeking both to prohibit and to include a bunch of communications from that period. These motions are not symmetrical. Sussmann moved to,

preclude three categories of evidence and/or arguments that the Special Counsel has suggested it might offer, namely, evidence and arguments concerning: (1) the gathering of DNS data by Mr. Sussmann’s former client Rodney Joffe, and/or other data scientists, and fellow business personnel of Mr. Joffe (collectively “Mr. Joffe and Others”); (2) the accuracy of this data and the accuracy of the conclusions and analysis based on this data; and (3) Christopher Steele and information he separately provided to the Federal Bureau of Investigation (“FBI”) (including the so-called “Steele Dossier”) (all three, collectively, the “Joffe and Steele Conduct”).

Sussmann is not moving to exclude mention his contact with Fusion GPS or reporters (though he is fighting to keep Christopher Steele out of his trial).

Whereas Durham is seeking to,

(ii) admit emails referenced in the Indictment and other, similar emails, (iii) admit certain acts and statements (including the defendant’s February 2017 meeting with a government agency, his December 2017 Congressional testimony, and his former employer’s October 2018 statements to the media) as direct evidence or, alternatively, pursuant to Federal Rule of Evidence 404(b),

[snip]

(v) admit an October 31, 2016 tweet by the Clinton Campaign.

Ultimately this is a fight about whether Sussmann’s alleged lie amounted to reporting a tip about a real cybersecurity anomaly, as Sussmann maintains, or, as Durham argues, seeding dirt as part of a dirty tricks campaign against Trump.

Predictably, in addition to emails involving Fusion GPS, Durham wants to introduce the emails between Rodney Joffe and researchers — emails to which Sussmann was not privy — as statements of co-conspirators.

In addition, Rule 801(d)(2)(E) authorizes the admission of an out-ofcourt statement “by a co-conspirator of a party during the course and in furtherance of the conspiracy.” Where a defendant objects to such an admission, however, the district court must find by a preponderance of the evidence that a conspiracy existed and that the defendant and declarant were members of that conspiracy. Bourjaily v. United States, 483 U.S. 171, 175-76 (1987). A court can preliminarily admit hearsay statements of co-conspirators, subject to connection through proof of conspiracy. See United States v. Jackson, 627 F. 2d 1198, 1218 (D.C. Cir. 1980) (approving procedure). To admit a statement under Rule 801(d)(2)(E), the court must find (i) that there was a conspiracy; (ii) that its members included the declarant and the party against whom the statement is offered; and (iii) that the statement was made during the course of and in furtherance of the conspiracy. Bourjaily 483 U.S. at 175.

Importantly, although Rule 801(d)(2)(E) refers to “conspiracy” and “co-conspirators,” the D.C. Circuit has expressly held that “the doctrine is not limited to unlawful combinations.” United States v. Weisz, 718 F. 2d 413, 433 (D.C. Cir. 1983). “Rather, the rule, based on concepts of agency and partnership law and applicable in both civil and criminal trials, ‘embodies the long-standing doctrine that when two or more individuals are acting in concert toward a common goal, the outof-court statements of one are . . . admissible against the others, if made in furtherance of the common goal.’” United States v. Gewin, 471 F. 3d 197, 201–02 (D.C. Cir. 2006) (citing Weisz, 718 F. 2d at 433)). In quoting and citing the 1974 Senate Advisory Committee note to Rule 801(d)(2)(E), the D.C. Circuit has also explained that “[Rule 801(d)(2)(E)] was meant to carry forward the universally accepted doctrine that a joint venturer is considered as a coconspirator for the purpose of this [R]ule even though no conspiracy has been charged.” Weisz, 718 F. 2d at 433 (citations and quotation marks omitted); United States v. Owens, 484 U.S. 554, 562 (1988) (invoking Advisory Committee note in interpreting Federal Rules of Evidence).

Durham describes that the object of that conspiracy was to deal dirt on Donald Trump to the US government and the media.

As an initial matter, the Government expects that the evidence at trial will show that beginning in late July/early August 2016, the defendant, Tech Executive-1, and agents of the Clinton Campaign were “acting in concert toward a common goal,” Gewin, 471 F. 3d at 201–02, namely, the goal of assembling and disseminating the Russian Bank-1 allegations and other derogatory information about Trump and his associates to the media and the U.S. government.

[snip]

More specifically, these emails show that the researchers and Tech Executive-1 were acting in concert with the defendant and others to gather and spread damaging information about a Presidential candidate shortly before the scheduled election.

And that, Durham claims, makes an attempt to understand a cybersecurity anomaly a political act.

In addition, the aforementioned communications demonstrate the materiality of the defendant’s lie insofar as they reveal the political origins and purposes for this work. And those political origins are especially probative here because they provided a motive for the defendant to conceal his clients’ involvement in these matters.

There is a great deal that is alarming and problematic with this schema. For starters, it suggests Sussmann’s response to Eric Lichtblau’s question asking, “I see Russians are hacking away. any big news?” (in what is clearly a follow-up of earlier conversations about the very real attack on Hillary by Russia) was part of a conspiracy and not a legitimate response to an obvious good faith and important question from a journalist.

Emails, billing records, and testimonial evidence to be offered at trial reflect that during approximately the same time period – and before approaching the FBI about these matters – the defendant provided the Russian Bank-1 allegations to a reporter from a major U.S. newspaper.

Many of the problems in Durham’s argument pertain to April Lorenzen, who started looking into this anomaly in June. But Durham — who also wants to make the source of these anomalies an issue at trial — seems to suggest this conspiracy started on some calls and one meeting between Marc Elias, Joffe, and Sussmann that started on August 12.

Testimony at trial will establish that among the individuals whom Tech Executive1 and Originator-1 enlisted in this project were researchers at University-1 who were assigned to a then-pending federal cybersecurity contract with a U.S. government agency (“Agency-1”). At the time, Tech Executive-1 was negotiating an agreement between his then-employer (“Internet Company-1”) and University-1 to sell large amounts of internet data to the university for use under the Agency-1 contract. The intended purpose of this agreement and University-1’s sensitive work with Agency-1 was to gather and analyze internet metadata in order to detect malicious cyberattacks. As set forth in the Indictment, however, Tech Executive-1 and Originator-1 worked with two of these University-1 researchers (“Researcher-1” and “Researcher-2”) to mine internet data for the purpose of assisting the aforementioned opposition research.

That is, Durham both includes Lorenzen’s earlier actions in his scope, but imagines that the conspiracy in question didn’t form until long after she identified the anomaly.

Similarly, Durham holds Sussmann accountable for the eventual articles written by Lichtblau and Franklin Foer, even though Lorenzen was far more involved in that process (and random people like “Phil” who were signing comments Guccifer 2.0 were also pushing the NYT to write a story). After the FBI killed the initial story, Durham has not shown any evidence that Sussmann was pushing the actual Alfa Bank story until after the Lichtblau and Foer stories were published.

Meanwhile, Durham’s interpretation of this Lorenzen email — written in the wake of Paul Manafort’s firing because his secret influence-peddling for Russian backed Ukrainian Oligarchs had become a campaign liability — is fairly shocking.

NOTE: The Russian money launderers, sometimes assisted by Americans like those you see listed in the PDF [Tech Executive-1] just shared [the Trump Associates List], and others you’ll see in [name redacted]’s next document …. Cyprus is one of the places they like. That’s where [Russian Bank-1]-Forex is organized. Choose .com or .ru when studying their domains … and remember we don’t need a russian IP, domain or company for money to flow from Russians to Trump.

[Russian Bank-1]-* has massive tentacles in so many countries including the USA. Regarding this whole project, my opinion is that from DNS all we could gain even in the best case is an *inference*.

I have not the slightest doubt that illegal money and relationships exist between pro-Russian and pro-Trump, meaning actual people very close to Trump if not himself. And by Putin’s traditional style, people Putin controls, but not himself. He controls the oligarchs and they control massive fortunes and cross nearly all major industries in a vast number of countries.

But even if we found what [Tech Executive-1] asks us to find in DNS we don’t see the money flow, and we don’t see the content of some message saying “send me the money here” etc.

I could fill out a sales form on two websites, faking the other company’s email address in each form, and cause them to appear to communicate with each other in DNS. (And other ways I can think of and I feel sure [Researcher-2] can think of.)

IF [Tech Executive-1] can take the *inference* we gain through this team exercise … and cause someone to apply more useful tools of more useful observation or study or questioning … then work to develop even an inference may be worthwhile.

That is how I understood the task. Because [Tech Executive-1] didn’t tell me more context or specific things. What [name redacted] has been digging up is going to wind up being significant. It’s just not the case that you can rest assured that Hil[l]ary’s opposition research and whatever professional govts and investigative journalists are also digging … they just don’t all come up with the same things or interpret them the same way. But if you find any benefit in what she has done or is doing, you need to say so, to encourage her. Because we are both killing ourselves here, every day for weeks.

I’m on the verge of something interesting with hosts that talk to the list of Trump dirty advisor domain resources, and hosts that talk to [Russian Bank1]-* domains. Take even my start on this and you have Tehran and a set of Russian banks they talk to. I absolutely do not assume that money is passing thru Tehran to Trump. It’s just one of many *inferences* I’m looking at.

SAME IRANIAN IP THAT TALKS TO SOME TRUMP ADVISORS, also talks to:

[list of domains redacted]

(Capitals don’t mean SUPER SIGNIFICANT it was just a heading.)

Many of the IPs we have to work with are quite MIXED in purpose, meaning that a lot of work is needed to WINNOW down and then you will still only be left in most cases with an *inference* not a certainty. Trump/ advisor domains I’ve been using. These include ALL from [Tech Executive-1’s] PDF [the Trump Associate’s List] plus more from [name redacted]’s work:

[list of domains redacted]

[RUSSIAN BANK-1] DOMAINS

[list of domains redacted]

More needs to be added to both lists. [Durham’s bold, my italics]

That’s true in part, because Durham suggests the entirety of this email is part of the conspiracy, but it’s clear that Lorenzen was working with another person, whose name Durham redacts, who seems arbitrarily excluded from it.

But it’s also true because Lorenzen sent it in the wake of Trump’s false claim — made in the same appearance where he asked Russia to hack Hillary some more — that he had no business ties to Russia, when in fact he continued to pursue a Trump Tower deal that would have relied on funding from one of two sanctioned banks. She sent it in the wake of Manafort’s false claims (and Rick Gates’ lies to the press) that served to hide his real ties to Russian-backed oligarchs, including one centrally involved in the Russian effort to tamper in the election, Oleg Deripaska, and his money laundering through Cyprus of payments from those Oligarchs. Manafort was helped in those lies — in the same weeks as Sussmann met with James Baker!!!! — by the son-in-law of Alfa Bank’s co-founder German Khan, Alex Van der Zwaan, who went on to lie about his actions to Mueller. In the same month Sussmann met with Baker, Mueller found probable cause to investigate, Trump got a $10 million infusion from an Egyptian state-owned bank. Lorenzen’s suspicions were not only realistic, but some turned out to be absolutely true.

Similarly, Durham makes much of this email from Lorenzen:

[Tech Executive-1’s] carefully designed actions provide the possibility of: 1. causing the adversaries to react. Stop using? Explain? 2. Getting more people with more resources to find out the things that are unknown, whether those be NON-internet channels of connection between Trump, [Healthcare Company1][owners of Healthcare Company-1], [Russian Bank-1] … money flows, deals, God knows it could be [owners of Healthcare Company-1’s] children married to Russians who run [Russian Bank1]. Or like Researcher-2 shared, someone’s wife vacationing with someone else’s wife.

I have no clue. These are things other people may look into, if they know a direction of interest to look. 3. Legal action to protect our country from people who act against our national interests. I don’t care in the least whether I’m right or wrong about VPN from [Russian Bank-1], [TOR] from Russian Bank-1, or just SMTP artifact pointing to a 3-way connection. [Tech Executive1] has carefully crafted a message that could work to accomplish the goals. Weakening that message in any way would in my opinion be a mistake. [Durham’s bold, my italics]

Here, again, Lorenzen wonders about suspect ties of those married to the children of Alfa Bank’s founders within days of Van der Zwaan taking actions to hide Manafort’s ties to Russian-backed oligarchs.

In other words, Durham treats Lorenzen’s inferences, some of which turned out not just to be right, but to be centrally important to the ongoing Russian attack on the US, as improper dirt on a presidential candidate and not stuff that every citizen of the United States would want to know. Durham is criminalizing a private citizen’s effort (one for which he shows no direct tie to the Clinton campaign) to understand real corruption of Trump and his campaign manager. Durham literally calls this effort to research a political candidate — a core responsibility in a democracy — a “venture to gather and disseminate purportedly derogatory internet data regarding a Presidential candidate.”

This is not the only email that pointed to real criminal evidence pertaining to Russia’s attack in 2016. He cites David Dagon justifying using this data by pointing to the FBI’s investigation into Fancy Bear — the hackers who were in that same month still hacking Hillary and trying to hack election infrastructure.

I believe this is at a threshold of probable cause for violation of Commerce Dept sanctions, FEC elections rules, and has releva[n]cy for the Bureau’s Fancy Bear inquiry, etc._ I also have some graphs/animations of the Trump [] router, which I can clean up and contribute. (They merely give a glimpse of aggregate volume, since we lack actual flows.) I’d need until the weekend.”

Again, Paul Manafort did turn out to have real ties to the APT 28 operation, Roger Stone appears to have been in direct contact with the GRU-backed persona since before it went public, and Mueller did charge an Oligarch with close ties to Putin, Yevgeniy Prigozhin, with violating FEC election rules. To suggest that it was improper to try to investigate these ongoing crimes in real time — to suggest the investigation is itself a conspiracy — undermines any possibility for a vibrant democracy.

And Durham decided belatedly (Sussmann’s filing makes it clear Durham laid all this out in a March 23 404(b) notice, 5 days past his due date) to argue that all these emails are admissible so he can argue that Joffe asked Sussmann to hide his role in all this so he could hide the emails that show real investigation into real, ongoing crimes.

Indeed, many of the emails’ contents are relevant and not hearsay for the additional reason that they shed important light on the defendant’s and Tech Executive-1’s “intent, motive, or state of mind,” and “help to explain their future conduct.” Safavian, 435 F. Supp. at 45–46. In particular, the mere fact that these emails (i) existed in written form prior to the defendant’s September 19, 2016 meeting with the FBI and (ii) reflected instances of serious doubts about whether the Russian Bank-1 data might have been “spoofed,” a “red herring,” “wrong,” or a product of “tunnel vision” or bias against Trump, provided Tech Executive-1 and the defendant with motive to conceal the origins and provenance of the Russian Bank-1 allegations from the FBI. In particular, a reasonable jury could infer from these and other facts that Tech Executive-1 made the defendant aware of these prior doubts and therefore supplied the defendant – as Tech Executive-1’s representative – with a motive to conceal their client relationship from the FBI General Counsel. A jury could similarly infer that even if Tech Executive-1 did not make the defendant aware of these communications, he nevertheless instructed the defendant to deny the existence of such a client relationship for the same reason (i.e., to avoid the FBI’s potential discovery of the doubts reflected in these prior discussions).

Durham’s conspiracy theorizing is not just a dangerous attack on citizenship. It is also cherry picking. He has left out a number of the people who were pursuing the DNS question, including those — Matt Blaze and others — whom Sussmann said he had consulted with in his meeting with Baker, but put in people that Sussmann did not even know.

Sussmann notes he wasn’t involved in any of this data-gathering, nor was the Clinton campaign.

There cannot be any credible argument that the data-gathering sheds light on Mr. Sussmann’s representation of Mr. Joffe, because there is no evidence that Mr. Sussmann was involved in the data-gathering or that it was being done to give to Mr. Sussmann, as Mr. Joffe’s counsel. It is just as specious to suggest that the data-gathering bears on Mr. Sussmann’s attorney-client relationship with the Clinton Campaign. There is no evidence that the Clinton Campaign directed or was involved in the gathering of data, via Mr. Sussmann or otherwise. Nor is there any evidence of communications on issues pertinent to the Indictment between Mr. Joffe and the Clinton Campaign. As such, the manner in which data was gathered has no bearing on Mr. Sussmann’s attorney-client relationship with the Clinton Campaign.

In what is likely to be a persuasive argument to Judge Cooper, Sussmann argued that the only thing that can be relevant to the charge against him — a false statements charge, not conspiracy to defraud the US — is his state of mind.

Evidence that lacks a connection to the charge or the defendant’s scope of knowledge, including as to the defendant’s state of mind, is decidedly not relevant. See, e.g., United States v. Wade, 512 F. App’x 11, 14 (2d Cir. 2013) (excluding testimony about another act because it “was not temporally or physically linked” to the crime at issue and the “testimony presented a risk of juror confusion and extended litigation of a collateral matter”); United States v. Libby, 467 F. Supp. 2d 1, 15-16 (D.D.C. 2006) (rejecting attempts to “elicit . . . what others were told” as “simply irrelevant to the defendant’s state of mind” in a false statements and perjury case); United States v. George, 786 F. Supp. 56, 64 (D.D.C. 1992) (without the “crucial link” that “defendant knew what information others had,” that information is not material to the defendant’s state of mind in an obstruction and false statements case); United States v. Secord, 726 F. Supp. 845, 848-49 (D.D.C. 1989) (information of which the defendant had no knowledge is necessarily immaterial to the defendant’s state of mind, intent, or motive in a false statements case).

[snip]

First, evidence regarding the accuracy of the data or the conclusions drawn from that data is simply irrelevant to the false statement charge against Mr. Sussmann. Mr. Sussmann is not charged with defrauding the government or with a conspiracy to do that or anything else. There is no allegation or evidence that Mr. Sussmann was privy to any of the communications between Mr. Joffe and Others about the data or its analyses that the Special Counsel misleadingly cites in the Indictment.

I think Durham’s bid to include communications with those (Lorenzen and Manos Antonakakis) Sussmann did not have direct contact with is likely to fail. So most of Durham’s conspiracy theorizing will likely remain on the pages of these filings.

But along the way, Durham’s tunnel vision about 2016 led him to forget to exclude the things that do go to Sussmann’s state of mind, such as the very real Russian attack on Hillary Clinton and Donald Trump’s public call for more such attacks.

So while Durham may be excluded from claiming that a private citizen’s attempt to learn about real crimes by a Presidential candidate before he is elected amounts to a criminal conspiracy, it is too late for Durham now to try to exclude evidence about Sussmann’s understanding of Donald Trump’s very real role in a hack of his client.

Paul Manafort Prevented from Flying to Dubai

As Knewz first reported and AP has now matched, Paul Manafort was pulled from a flight to Dubai on Sunday because his passport was revoked.

Former Trump adviser Paul Manafort was removed from a plane at Miami International Airport before it took off for Dubai because he carried a revoked passport, officials said Wednesday.

Miami-Dade Police Detective Alvaro Zabaleta confirmed that Manafort was removed from the Emirates Airline flight without incident Sunday night but directed further questions to U.S. Border and Customs Protection. That agency did not immediately respond to an email Wednesday seeking comment.

A lawyer who has represented Manafort did not immediately return a call and email seeking comment Wednesday.

As a reminder, Manafort’s pardon did not include his actions in an August 2, 2016 meeting with alleged Russian spy Konstanin Kilimnik, at which he seemingly traded his strategy to win the election for $19 million in financial benefit and a commitment to help carve up Ukraine.

Nor was Manafort pardoned for his efforts, which continued at least until he was arrested, to help Kilimnik carve up Ukraine to Russia’s liking.

Nor was Manafort pardoned for his role in all the influence-peddling that Rudy Giuliani was involved with in Ukraine through 2020.

This was three days ago. The fact that Sean Hannity has not been wailing about the poor treatment of Manafort since suggests either that there’s not a good way to spin it, or that Manafort has some reason to want to keep this quiet.

Update: NBC’s Tom Winter says that, contrary to other reports, he was simply not permitted to board and that he can apply for a new passport. It’s not clear why he speaks of a “new investigation.”

Putin’s Playmates Trump and Tucker Remind Trumpsters They’ve Been Trained to Love Putin

As I’ve been watching Putin expand his war in Ukraine, I’ve been thinking a lot about his timing. Why launch it now rather than two years ago, when Trump would have facilitated it, or another year from now, when Republicans are expected to control at least one house of Congress?

I suspect there are a lot of things that dictate the timing. Any invasion was going to come in winter. It’s easier for heavy tanks to move, but more importantly, winter temperatures make it easier to use gas prices to impose a cost on Europe.

I think it happened this year, under Biden’s first full winter rather than 2021 or even 2020 because, up until Biden’s inauguration, Putin’s investment in Trump might still have paid off by allowing Putin to achieve his objectives without launching a war. He almost did, in the insurrection, which was undoubtedly led by MAGAts but which included the participation of some key Russian projects (such as Patrick Byrne).

To be sure, there are European reasons, even beyond the gas squeeze. Boris Johnson is fighting to keep power. Angela Merkel’s retirement surely led Putin to hope that the EU would be left without a strong leader (or that he could more easily manipulate Emmanuel Macron, especially in an election year).

But I believe this invasion represents the culmination of a plan not just to reassert what he imagines is Russian greatness, but also to end US hegemony, which Putin has pursued for a decade.

Ukraine has been a part of that and starting in 2010, Paul Manafort was useful to giving his puppets the patina of legitimacy. After Viktor Yanukovych’s ouster, Ukraine was useful as a testing ground for various kinds of hybrid warfare, most spectacularly with the NotPetya attack in 2018.

Ukraine — the partnership of Konstantin Kilimnik and Oleg Deripaska, along with their leverage over Paul Manafort — was also whence Russian launched its 2016 attack (I need to find the reference, but they knew they could place Manafort as campaign manager before the end of 2015). As I have written (in a piece on my understanding of the role of using the Steele dossier as a vehicle for disinformation), Russia’s interference in 2016 is best understood as a win-win. If Hillary won, Roger Stone would have rolled out the same Stop the Steal plan that was used in 2020 back in 2016 to destabilize the US in 2017 rather than 2021, as happened.

Trump’s win was an unexpected bonus.

As part of the 2016 operation, Russia also did unprecedented damage to the NSA (through the Shadow Brokers operation) and the CIA (in the way that WikiLeaks rolled out the Vault 7 release).

The failure of Russia’s attempt to blame its 2016 interference on a false flag thwarted Russia’s best laid plans — which would have involved Kilimnik calling in the quid pro quo made with Manafort on August 2, 2016 and getting Trump to help carve up Ukraine in the same way Russia is currently doing with tanks.

Even still, the Russian investigation paid huge dividends and, given Putin’s long game, to date has surely been more than worth it. That’s because the FBI-led investigation into Trump’s cooperation with Russia, over time, came to train Republicans to trust Putin more than they trust Democrats.

Republicans genuinely believe, falsely, that the FBI deliberately attempted to take Trump out (entirely memory holing Jim Comey’s role in getting Trump elected, much less that the FBI Agents running informants on the Clinton Foundation during the election were explicitly anti-Hillary). The dossier disinformation project proved so wildly successful that most Republicans genuinely believe, falsely, that there wasn’t abundant proof of cooperation between Trump and Russia, including communications directly with the Kremlin during the election that Michael Cohen lied to hide. Republican members of Congress genuinely came to believe — because they had to! — that criticism of Trump’s refusal to spend the money in support of Ukraine they had appropriated was just another Democratic attack on Trump and not an attempt to save the integrity of American democracy. All this culminated in Stop the Steal 2.0, a literal attack on American democracy; Republican fealty to Trump forced them — more reluctantly at first and driven in large part by real terror — to defend an assault on Congress.

By February 13, 2021, the date the Senate voted to acquit Donald Trump of inciting an attack on Congress, Republicans had put loyalty to Donald Trump over defense of the country and the Capitol in which they worked.

Sure, Putin didn’t get Trump to carve up Ukraine as President. But he got so much more from Trump’s presidency.

Putin did get Trump to do real damage to NATO. He got Trump to largely abandon Syria. Trump made a humiliating deal with the Taliban that would result in the US withdrawing its military from Russia’s back door. After years of Russia having to work hard to highlight American hypocrisy on human rights, Trump did things like pardon war criminals, forever tainting America’s claim to be exceptional.

And through it all, Trump created his own authoritarian-supporting militias, heavily armed troops inspired by resentment who have the ability to make the United States ungovernable. Trumpist Republicans are making localized efforts to dismantle democracy. Trump’s Supreme Court nominees have abandoned legal precedent.

Which brings us to this moment.

I think Putin faced a moment of diminishing returns. Republicans are finally beginning to wake up from their Trump cult. If COVID subsides and the US economy takes off, Democrats might surprise at midterms. I wouldn’t be surprised, either, if Russia expected some details of what it has done over the last decade — involving Julian Assange, involving 2016 (with the prosecution of Vladislav Klyushin), possibly even involving Trump — to become public in the near future. And so Putin chose this moment to launch a war to try to solidify the efforts he has made over the last decade.

Thus far, however, things haven’t gone Putin’s way.

I believe that Putin thought he could demonstrate Five Eyes fragility by conducting war games off the Irish coast without inciting the nationalism of a bunch of Irish fisherman. I believe Putin expected the US and/or Europe would fail to fully incorporate Ukraine in its planning, thereby discrediting Volodymyr Zelenskyy. I believe that Putin expected he would be able to peel away France and Germany (after Olaf Scholz’s initial announcement that it is halting Nord Stream 2, there seems to be some hesitation). I believe Putin expected his false flags would work. I believe Putin believed he’d be able to blame someone else for this invasion. I agree with Dan Drezner, thus far Biden has done just about everything right.

I believe that Putin believed his invasion would split NATO, the EU, and the US. Thus far it has had the opposite effect.

Which brings us to the weird pivot that Trump and his top Fox associates: white nationalist Tucker Carlson, Chief of Staff Sean Hannity, and Laura Ingraham.

Yesterday, Trump hailed Putin’s actions as genius.

“I went in yesterday and there was a television screen, and I said, ‘This is genius.’ Putin declares a big portion of the Ukraine — of Ukraine — Putin declares it as independent. Oh, that’s wonderful,” Trump told conservative podcaster Buck Sexton.

I said, ‘How smart is that?’ And he’s gonna go in and be a peacekeeper. That’s strongest peace force… We could use that on our southern border. That’s the strongest peace force I’ve ever seen. There were more army tanks than I’ve ever seen. They’re gonna keep peace all right,” Trump continued. “Here’s a guy who’s very savvy… I know him very well. Very, very well.”

Last night, Tucker did a chilling monologue, suggesting that Americans have been trained to hate Vladimir Putin.

Tucker suggested that Putin’s invasion is just a border dispute. He’s suggesting that Biden is doing this to pay off imagined debts to Ukrainian Oligarchs. Tucker laid out Putin’s plan for costs to impose on Americans, in terms of energy costs. Tucker included every single false claim about Ukraine that Russia has been planting since 2016. Every single one.

This is the monologue you’d expect of a man who believes there are two years of records showing Russian and Hungarian sources trying to set up one meeting between him and Putin.

To win this war, Putin needs to achieve both goals at once: splitting the US so that he can take Ukraine. One goal serves the other.

And in days ahead, Putin undoubtedly plans to take great risks to impose some costs on European and American voters. In gas prices, sure, but probably also with some ambitious cyberattacks and efforts to support another insurrection. Those costs, I imagine Putin plans, will lead American and European voters to lose patience with support for Ukraine, to forget that this is about the ability to enjoy real democracy.

But to get away with that, Putin has to ensure that it won’t backfire by overcoming the polarization he has invested great effort to encourage in the last five years.

Via whatever means last night, Putin’s two biggest assets in the US (speaking in terms of advantages, not recruited assets, but I don’t rule it out) went out and reminded Trump supporters that they’ve been trained to like Putin more than they like their own country.

Update: Philip Bump notes that Republicans like Putin more than Biden.

The Paulie Plot in Ukraine

Last weekend, the UK formally released an intelligence assessment that part of Russia’s plans in Ukraine involve a plot to replace Volodymyr Zelenskyy with a pro-Kremlin functionary.

The NYT version of the story noted that the four people named in the alleged plot all have ties to Paul Manafort.

All four of the other Ukrainians named in the communiqué once held senior positions in the Ukrainian government and worked in proximity to Paul Manafort, former President Donald J. Trump’s campaign manager, when he worked as a political adviser to Ukraine’s former Russian-backed president, Viktor F. Yanukovych. After Mr. Yanukovych’s government fell in 2014, they fled to Russia.

It also claimed that, because of a division of labor within the Five Eyes, this intelligence came from the UK.

In Washington, officials said they believe the British intelligence is correct. Two officials said it had been collected by British intelligence services. Within the informal intelligence alliance known as “Five Eyes,” Britain has primary responsibility for intercepting Russian communications, which is why it played a major role in exposing Russian interference in the 2016 elections.

I noted that you might make such a claim if the collection point (reflected in the Manafort tie) were not a legal NSA target to the US.

Indeed, NBC’s Ken Dilanian explained (but did not include in his story) that this was US intelligence announced by the UK.

It would make sense that this kind of intelligence came from the US — though if it did, it might well come from the FBI, not NSA.

When Manafort traded campaign strategy to Russia for relief from his debt to Oleg Deripaska on August 2, 2016, his cooperation in a series of similar efforts to install a Russian functionary to head Ukraine was part of the deal. Citing numerous documents obtained from Manafort’s devices, Mueller made public Manafort’s participation in the effort through the time he went to jail in 2018.

We can be certain that FBI has continued its investigation of such issues. We can be sure of that because we know (in part from Treasury’s increasing focus on Kilimnik) that FBI has developed a better understanding of Konstantin Kilimnik’s role in both 2016 and his ongoing efforts to undermine US democracy in 2020. We know that because DOJ continues to protect large swaths of  Mueller’s files on Kilimnik’s other American partner, Sam Patten, which significantly focused on who was who in Ukraine and the various tools Russia used to manage the country via client politicians. The same is true of Rick Gates’ interviews. But we also know that, thanks in part to Trump’s continued ties to anti-democratic efforts in Ukraine, the FBI has continued to investigate what has been going on in Ukraine. Not only has EDNY conducted an investigation into Andrii Derkach, but Special Master Barbara Jones just handed over a bunch of Rudy Giuliani’s communications involving such issues to the FBI.

One thing we learned from all those investigations was that Paul Manafort was the guy Oleg Deripaska had employed, for years, to use the tools of modern campaigning, leavened by a great deal of corruption, to install puppet governments who would cater to Deripaska’s business interests. In 2016, Russia deployed Manafort to the United States to do the same thing in the US.

With the distance of almost six years, it may be safe to say that Russia succeeded in their 2016 attempt to interfere in the US election not so much from a failure of US intelligence collection in Russia (after all, the FBI warned the DNC it was being hacked in real time). It was — in addition to a misunderstanding of the WikiLeaks operation — a failure of US intelligence collection in Ukraine, whence the human side of the operation was significantly launched. The US has dedicated a good deal of energy to addressing that failure in recent years, though Russia continued to use Ukraine as a platform from which to undermine US democracy through the 2020 election.

Ukraine was then, as now, the test ground for Russia’s larger efforts to either subject “democracy” to the whims of kleptocracy or discredit democracy beyond the ability to govern. Among the things Russia tested on that ground was the 2017 NotPetya attack, which did devastating damage to a slew of companies who did nothing more than do business with Ukraine; I would be surprised if Putin hadn’t at least entertained similar efforts in the months ahead.

Before 2016, the US had the hubris to believe its own democracy was immune from such efforts (and that its tolerance for money laundering would not, in fact, foster kleptocracies on the other side of the world that could damage the US in turn).

Amid debates about how (or whether) the US should respond to Russia’s aggression, some have raised real questions whether, in the wake of January 6, the US has any place lecturing Ukraine about its democracy and whether the US wouldn’t be better, instead, putting its own house in order. It’s a fair question. But it misunderstands how 2016 led directly to January 6. It also misunderstands Russia’s project in Ukraine and beyond, which is of a piece with its earlier attack on  American democracy.

We may not have a NATO commitment to defend Ukraine from Russia’s assault (though we do have a NATO commitment to defend NATO allies that Russia has likewise threatened). But we’ve recently seen that attacks on Ukraine are just the prototype for larger attacks elsewhere.

Update: Both Jonathan Swan and Jonathan Weisman have pieces out today attempting to explain why Tucker Carlson and Marjorie Greene Taylor are rooting for Putin in his aggression against Ukraine that don’t mention that Putin helped get Trump elected.

The backstory: Two observable shifts have happened in the GOP electorate over the past 15 years. The first is a growing skepticism about foreign intervention in general — frustration and anger still fueled by the disastrous wars in Iraq and Afghanistan.

  • The second is a more recent warming towards Russia — initiated by the party’s most powerful figure, Donald Trump.
  • Trump’s rhetoric about Putin was a far cry from 2012 when the GOP presidential nominee Mitt Romney warned that Russia was America’s “number one geopolitical foe.” (Prominent Democrats mocked Romney at the time but in the age of Trump endorsed his view and apologized).

Five Percent of Mueller Pre-Grand Jury Interviews Pertain to Still Ongoing Investigations

The other day, I asked Jason Leopold where the Mueller FOIA release was this month. DOJ remains under obligation to hand over hundreds of pages a month in response to his FOIA, and they usually hand it over in the first days of the month.

He shared this month’s release, which makes it clear DOJ did something pretty dickish to him. DOJ turned over notice it was withholding 696 consecutive pages of materials, all of which invoke the b73 exemption for grand jury materials. Effectively, DOJ just dumped a bunch of interviews conducted before grand jury testimony, all of which DOJ has been withholding under that grand jury exemption, to fulfill their monthly obligation.

And because these are consecutive pages, we can’t glean information from them in the same way we can pages (such as those pertaining to Steve Bannon’s January 2019 Grand Jury appearance) turned over as part of other releases.

But there is, however, one detail that we can learn from this. Of the 696 grand jury related pages DOJ withheld, 40 of them also invoke the b7A exemption for an ongoing investigation.

That means that, in addition to the grand jury exemption, more than 5% of the pages were also withheld for ongoing investigations. We have no idea if these interviews are representative of the total. We also can’t see how many individual interviews these records include. But of this batch, it’s over 5%.

To be sure, given what we’ve seen of late, I don’t think that means we’re going to see indictments based on the Trump cases. While individual pages of the Stone, Bannon, and Flynn materials released in the last year reflect ongoing investigations, a whole lot of Sam Patten’s materials do (or at least did, last summer).

Patten, you’ll recall, was sort of a mirror image for Konstantin Kilimnik to Paul Manafort, another American political consultant that he used to access US networks. Patten was referred to Mueller by the Senate Intelligence Committee because he lied in his interview with the Committee. After that he entered into a cooperation agreement where he shared a whole bunch of what he had learned about how Russia interferes in Ukrainian politics (and through that, in US politics).

That is, my guess is that a bunch of these ongoing investigations pertain to stuff like counterintelligence investigations leading to the Treasury sanctions imposed yesterday, including one person who had worked with Kilimnik to interfere in the 2020 US elections.

Whatever it is, though, the only value of DOJ pulling this dickish move is to give a sense of how much of this material remains ongoing.

Vladislav Klyushin Traveled Freely in Europe, Until He Didn’t Travel in Europe Freely

Bloomberg has a fascinating update on the case of Vladislav Klyushin, the guy who ran a pen-testing company for Vladimir Putin extradited to Boston on charges of insider trading last month. It states that Klyushin has (present tense) access to documents on the 2016 Russian hack and suggests he might be leveraged to share this information to get out of the lengthy insider trading sentence he faces.

According to people in Moscow who are close to the Kremlin and security services, Russian intelligence has concluded that Klyushin, 41, has access to documents relating to a Russian campaign to hack Democratic Party servers during the 2016 U.S. election. These documents, they say, establish the hacking was led by a team in Russia’s GRU military intelligence that U.S. cybersecurity companies have dubbed “Fancy Bear” or APT28. Such a cache would provide the U.S. for the first time with detailed documentary evidence of the alleged Russian efforts to influence the election, according to these people.

There’s a problem with this claim, though, at least as stated. The US already has documentary proof that GRU was behind the hack-and-leak. These documents would not be the first. And given the evidence cited in the indictment against Klyushin and Ivan Yermakov, the hacker cited in both this case and two GRU hack-and-leak cases, they collected more information from Yermakov over the last several years.

So such documents must go beyond mere confirmation of GRU’s role, if reports of Kremlin concerns are true.

Some insight about what the US might be after comes elsewhere in the story. It describes that on two earlier occasions, Western intelligence tried to recruit Klyushin.

U.S. and British intelligence tried twice to recruit Klyushin, according to Ciric, the attorney in Switzerland. U.S. intelligence attempted to engage him in summer 2019 in the south of France and British intelligence approached him in March 2020 in Edinburgh, Ciric said.

Klyushin memorialized that second meeting in a note he wrote a few weeks after the encounter and saved on his computer, according to Ciric. It took place at Edinburgh’s airport, as Klyushin was taking a flight back to Russia, according to the memo, which was submitted to the Swiss courts as part of his appeal against extradition. Klyushin wrote that the two British intelligence agents — one from MI5 and the other from MI6 — spoke to him for a few minutes in a room where he was led after a passport check.

The two Russian-speaking officers, a man and a woman, asked him if he would “cooperate” with U.K. secret services and took his phone number to set up a meeting on his next trip to London planned for May, according to the previously unreported document, which was reviewed by Bloomberg. Klyushin wrote that while he didn’t respond to the cooperation offer, he said he would be willing to see the agents again to discuss selling M-13 products to British intelligence.

It’s unclear whether Klyushin informed Russian intelligence about the U.S. and British recruitment efforts.

On top of the detail that US and British intelligence had targeted Klyushin for recruitment (and believed they had some reason to convince him to do so by summer 2019), this reveals that Klyushin has been traveling without arrest in recent years, both after the time in January 2020 that the indictment parallel constructs the investigation start date to, and well after the May 9, 2018 date when the US seems to have pinpointed Yermakov’s phone. It’s a point Klyushin himself made.

While in the Swiss prison, Klyushin told Bloomberg, through his lawyer, that he didn’t know why he was arrested in March and not before, saying that he had previously traveled freely to Europe. He blamed his detention on an “operation mounted by the U.S. in cooperation with Swiss authorities” to obtain “certain confidential information the American authorities consider” he has.

That is, it’s possible that the US waited to arrest him until they were done with their investigation, but these past interactions with western spooks suggest something else was behind the timing of his arrest. Similarly, the explanation offered by the Swiss lawyer — that the US only learned of Klyushin’s trip to Switzerland by an auspiciously timed hack of his phone — makes no sense, given the access to travel records the US would routinely have even without having someone targeted under Section 702, as Klyushin easily could have been.

The story leaves big questions about whether Klyushin wanted to be turned over or not. In addition to the open question about whether Klyushin told Russian authorities about the recruitment attempts, Bloomberg describes that Klyushin’s Swiss lawyer mailed his appeal of the extradition to the European Court of Human Rights rather than faxing it, with the result that the appeal arrived only after he had already been transferred to US custody.

But it’s hard to believe that Klyushin wanted to be extradited when he was arrested last March. That’s because his family returned to Russia at the end of their 10-day luxury vacation, which they wouldn’t have done if Klyushin had been planning to defect to the US (if one can start using the term again). So if Klyushin came to decide he wanted to be extradited over the nine months while he was held in Switzerland, he may have only come to that conclusion upon receiving more details about the charges against him, possibly including details that might expose him to the ire of the Kremlin.

It is true, however, that the Russian-speaking attorney Klyushin hired in Boston, Maksim Nemtsev, is not one of the ones (such as Igor Litvak) that Russian nationals retain when they’re refusing to cooperate; Nemtsev appears appropriate to the insider trading charges against Klyushin.

There may be a better explanation for the timing than an auspicious hack, though. As described, Klyushin’s trip to Switzerland was likely his first trip to a US extradition partner after Merrick Garland was sworn in as Attorney General on March 11, 2021, eight days before FBI obtained the arrest warrant for Klyushin.

And while the US has documentary evidence that GRU did the hack, what they hadn’t yet obtained when DOJ obtained the indictment against Yermakov and other GRU officers in 2018 was something far more important: what Russia did with two sets of data — the campaign strategy and polling information turned over from Paul Manafort and the analytics stolen from Hillary through the entire month of September. There’s certainly reason to believe DOJ knows more now than they did in 2018. Last April (so shortly after the arrest warrant for Kluyshin), Treasury stated as fact that the information Konstantin Kilimnik obtained from Manafort did get shared with Russian intelligence, even while asserting that Kilimnik was himself a spook. But how that information was shared and what happened with it has not been made public.

And those are the kinds of questions you might not raise aggressively until after Trump was gone.

How Rick Gates Used Maggie Haberman and Ken Vogel

Last week, DOJ released a reprocessed set of most of Rick Gates’ 302s in Jason Leopold’s FOIA for Mueller materials. I used that as an opportunity to pull together all of his 302s to capture the content and pull out the materials withheld under b7A exemptions (b7A exemptions reflect ongoing investigations — though many of these are clearly just counterintelligence investigations into Ukraine’s attempts to influence US politics). I did the same thing for Steve Bannon, Mike Flynn, and Sam Patten’s files.

Reading all the 302s like this shows this, at times, Gates went wobbly on Mueller’s team. And it provides yet more evidence that a NYT article — bylined by two reporters that came up in Gates’ interviews, Maggie Haberman and Ken Vogel — was a (wildly successful) attempt to misrepresent how damning were Gates’ admissions about Paul Manafort’s efforts to provide ongoing campaign updates to Russian intelligence officer Konstantin Kilimnik.

Nevertheless, the NYT has never issued a correction.

It’s not news that Gates went wobbly on his cooperation. Andrew Weissmann described the beginning process of this in his book, Where the Law Ends. But the 302s suggest it was not a one-time event.

As Weissmann told it in his book published before all the 302s came out, in one of his first proffers, Gates told prosecutors that he himself was skimming money from Manafort.

Gates said he understood and, from there, we began in earnest, alternating between Gates admitting his guilt for the crimes he and Manafort had committed and our teasing out information he had about others. This can be an awkward dance, but Gates seemed to be forthcoming. For example, after walking us through how, precisely, he’d helped Manafort launder money from his offshore accounts, Gates explained that he’d also personally stolen money from Ukraine by inflating the invoices he submitted for their political consulting work then pocketing that excess cash. Gates had never told Manafort about this skimming, he said, or reported that extra income on his taxes. We hadn’t known about this—it was new information, and encouraging, since it signaled that Gates understood that he could not hide or minimize his own criminality anymore.

That may have happened in his first interview, on January 29, 2018, when he described diverting income from his DMP work to an account in London.

Having gotten Gates to admit cheating Manafort, Weissmann then turned to what he called a “Jackpot” moment, when Gates described two things: that, at the August 2 meeting in the Havana Room, Manafort had told Kilimnik how he planned to win the campaign (a question Weissmann’s team was obsessed with understanding), and also that Manafort had ordered Gates to send Konstantin Kilimnik polling data throughout the campaign (of which Mueller’s team did not have prior knowledge).

“I learned of that meeting on the same day that it happened,” Gates explained. “Paul asked if I could join him and ‘KK,’ ” as Gates called Kilimnik. “The meeting was supposed to be over dinner, but I got there late.”

I did not look over at Omer, but I knew he was thinking what I was, that it was good that Gates was being forthright so far and confirming what we knew.

“Do you know how long they had already been there?” I asked.

“I don’t, but I think I was fairly late getting there. They were well into the meal.”

“What do you recall being discussed?” Omer asked. “A few things,” Gates explained. One subject was money—certain oligarchs in Ukraine still owed Manafort a considerable amount. Another was a legal dispute between Manafort and the Russian oligarch Oleg Deripaska. We asked Gates if there was any new or unusual information raised about these issues, but he said no—those problems had been percolating for a while. This was not, it seemed, enough of a reason for Kilimnik to come to New York from Moscow.

“What else do you recall being discussed?” Omer asked.

“There was discussion about the campaign,” Gates said. “Paul told KK about his strategy to go after white working-class Democrats in general, and he discussed four battleground states and polling.”

“Did he name any states?” I asked.

“Michigan, Wisconsin, Pennsylvania, and Minnesota,” Gates said.

“Did he specifically mention those states, and did he describe them as battleground states, or is that your description?” I asked.

“No,” Gates said. “Paul described them that way. And, yes, I remember those four states coming up.”

“And he described polling?” Omer asked.

“Yes, but I had been sending our internal polling data to KK all along,” Gates explained. “So this was a follow-up on that, as opposed to something out of the blue.”

“I’m sorry,” I said, “but why were you sending polling data to Kilimnik?”

“Paul told me to send him the data, periodically. So I did. I’d send it using WhatsApp or some other encrypted platform. I assume it was to help Paul financially. I just did what Paul told me to do.”

“KK didn’t have any position on the campaign, right?” I asked.

The 302 from that same first interview shows Gates raised Manafort’s election year meetings with Kilimnik, though he got some details wrong, as I’ll return to. Gates addressed the Havana Bar meeting in his second interview, too, though he continued to tell an implausible story.

In his third interview, Gates attempted to lie about whether he had deleted documents; after a long discussion (still redacted because of an ongoing investigation), Gates admitted “maybe” he had deleted documents after learning of Mueller’s investigation.

In the fourth interview (at which Gates referenced false claims floated in the press to suggest the Mueller investigation had dodgy beginnings), Gates attempted to hide that he had lied to Mercury Public Affairs and Podesta Group about who their Ukrainian client really was, only to admit that “overtime” he realized what he had told them was not truthful; ultimately he admitted that “we got cute” by registering (and getting Podesta Group to register) under the Lobbying Disclosure Act and not FARA. At least as recorded in the 302, that’s the interview where Gates first lied about a meeting Manafort had with Dana Rohrabacher. At the same interview, Gates’ lawyer, Tom Green (who is a friend of Mueller’s), made a statement attributing Gates’ failures to keep certain lobbying documents to DMP archiving policy; in his statement of offense, Manafort admitted he still had those documents when he submitted his lobbying filings.

Weissmann’s book describes catching Gates in the lie about Rohrabacher.

Not long after I reentered the room, our interview with Gates turned to the FARA charges. Gates explained, in a convoluted fashion, that he and Manafort had believed there was no need to register under FARA since they were not personally doing any of the lobbying themselves. Manafort understood now that the law required him to file, Gates said, but he hadn’t understood that at the time.

Nothing about this argument was credible. Manafort was not only a longtime lobbyist but an attorney himself; he had extensive experience navigating the FARA rules and had gotten entangled with the FARA Unit before. (In the eighties, Manafort had a presidential appointment in the Reagan administration, which normally would have prohibited him from also working as a lobbyist, but he’d requested a waiver from that facet of the FARA rules. Interestingly, when his request was denied by a responsible White House attorney, Manafort resigned from his public office in order to continue the more profitable private lobbying work.) We had even uncovered an email from Gates to Manafort that clearly set out the FARA regulations. It was inconceivable that they’d misunderstood the law. Even the factual premise of their purported misunderstanding was untrue: Manafort had personally acted as a lobbyist. We had emails showing that Gates had arranged a meeting for Manafort with the pro-Russia California congressman Dana Rohrabacher in March 2013, shortly after Rohrabacher became chair of the subcommittee that oversaw Ukraine issues.

It was clear that Gates was not being straight with us—not uncommon, initially, with people who try to cooperate; they tell the truth with various degrees of success at first. When we confronted Gates with the emails about the Rohrabacher meeting, Gates simply doubled down, floating an even more absurd claim. He acknowledged that, yes, Manafort and Rohrabacher had met in Washington in 2013, but Gates claimed that he remembered Manafort telling him at the time that the subject of Ukraine had never come up—and therefore, there’d been no reason for Manafort to register under FARA for this activity: It wasn’t actually lobbying.

This wasn’t true, either, and we had evidence to prove it. Gates and Manafort had prepared a memo after the Rohrabacher meeting for President Yanukovych of Ukraine, summarizing the discussion. That memo was one of the many damning documents we’d discovered from Manafort’s condo search. We showed it to Gates: Was everything written here a lie? we asked. He had no response.

Gates’s story was crumbling before our eyes. It was infuriating because it was so counterproductive for everyone, and, on a personal level, displayed a certain contempt for us, and a low opinion of our ability to discern the truth. The good faith we needed, on both sides, was evaporating.

I asked Tom Green, Gates’s counsel, to speak in private, and then decided with him that we should break for the day. I asked Tom to get to the bottom of whatever was happening. All along, Gates had seemed to have trouble when it came to discussing Manafort and his crimes. He was clearly straining to shed his allegiance to his old boss. Still, Gates was discussing his own crimes, and it wasn’t clear why he’d chosen to start lying, so stubbornly, now, about this particular point; the FARA charges weren’t even among the most serious ones we brought.

If there was some explanation, Tom would need to figure it out quickly. The lies we’d just been told were deflating for us, given how hopeful we’d been about Gates’s usefulness as a witness.

Right now, we told Tom, there was no way we could sign Gates up.

Ultimately, Gates would plead guilty to this lie about Rohrabacher as a separate false statement.

The next day, according to Weissmann’s book, Green had seemingly gotten Gates back on track.

Tom came back to our office the next day. “Look,” he said, “my client messed up.”

Gates was scared, he explained. This entire process was wrenching for him. Gates felt pulled between his desire to cooperate and his allegiance to Manafort, and his client had just momentarily broken down. He’d fed us the various cover stories yesterday to avoid implicating Paul on the FARA charges.

In his book, Weissmann doesn’t reflect on the other lies that Gates must have told before his team caught Gates in a lie they could prove was one. But Gates’ earlier testimony does conflict with what he would say later.

And even having recommitted to cooperating, it seems Gates was still shading the truth in those February sessions, at least until he actually pled guilty.

The released 302s show that on February 2, Gates admitted that they should have registered under FARA for the meeting with Rohrabacher. In the same interview, there are five pages discussing a redacted subject that remain exempted under a b7A (ongoing investigation) exemption. Even in that interview, even after admitting he was still on the DMP payroll in the months while everyone was trying to place Manafort on the Trump campaign, Gates offered implausible answers about why Manafort would ask him to provide updates to Oleg Deripaska in the guise of confirming a lawsuit that had been dismissed had been dismissed. Additionally, Gates explained away a briefing for Trump about Manafort’s ties to Ukraine as Manafort’s effort to have Gates prepared to answer press questions about the topic.

Importantly, given later admissions about Gates’ efforts to work the press, when asked about the emails with Kilimnik discussing campaign briefings that had been reported in the press the previous year, Gates claimed he hadn’t spoken to Manafort about those reports. Then, having claimed he and Manafort hadn’t concocted a cover story about them, he claimed that they were references to Deripaska’s lawsuit.

Gates was shown an email thread between Kilimnik and Manafort dated July 7, 2016 through July 29, 2016.

Gates stated he saw some of these email[s] in the news. Gates did not talk to Manafort about the emails when they were leaked to the press. In July 2016, the topic of conversation with Manafort was the Deripaska lawsuit.

But then shortly after, in the very same interview, Gates described talking to Manafort about the emails.

When this email came out in the news, Manafort told Gates, Brad Parscale and [redacted] that the article was “B.S.”

That is, Gates claimed not to have spoken to Manafort about the news, but then described doing just that, and based on that inconsistent claim, asserted that the emails about providing campaign briefings to Deripaska pertained to the lawsuit with the Russian oligarch.

In this interview where Gates was clearly trying to shade the truth, he nevertheless still admitted sending “confidential polling data derived from internal polls” to Kilimnik.

On February 7, Gates had his first interview with another Mueller team, the Russian team led by Jeannie Rhee. The interview largely focused on the role of Dmitri Simes had in Trump’s first foreign policy speech, and touched briefly on the various views people had about sanctions on Russia.

Even though the Mueller team would eventually obtain evidence that Roger Stone tried to influence this process through Gates, Gates never mentioned how he personally released news of the speech through Maggie Haberman as a way to inform Stone about it, effectively using Maggie as a vehicle to communicate with someone, Stone, whom Manafort treated as part of his team while hiding those direct ties.

On April 22, 2016, Maggie Haberman broke the news that Donald Trump would give a foreign policy speech. As she reported, the speech was scheduled to be held at the National Press Club and would be hosted by the Center for National Interest, a group that once had ties to the Richard Nixon Library.

Donald J. Trump will deliver his first foreign policy address at the National Press Club in Washington next week, his campaign said, at an event hosted by an organization founded by President Richard M. Nixon.

The speech, planned for lunchtime on Wednesday, will be Mr. Trump’s first major policy address since a national security speech last fall.

The speech will be hosted by the Center for the National Interest, formerly known as the Nixon Center, and the magazine it publishes, The National Interest, according to a news release provided by the Trump campaign.

The group, which left the Richard Nixon Presidential Library and Museum in 2011 to become a nonprofit, says on its website that it was founded by the former president to be a voice to promote “strategic realism in U.S. foreign policy.” Its associates include Henry A. Kissinger, the secretary of state under Nixon, as well as Senator Jeff Sessions, Republican of Alabama and a senior adviser to Mr. Trump. Roger Stone, a sometime adviser of Mr. Trump, is a former Nixon aide.

That night, according to texts released during his trial, Roger Stone wrote Rick Gates, furious that he had not been consulted about the details of the speech first — though Gates explained that he leaked it to Haberman so Stone would find out. “I cannot learn about a foreign policy speech from the media,” Trump’s rat-fucker said. “This is personally embarrassing. I’m out,” said the advisor who had supposedly quit the campaign almost a year earlier.

Among the things Stone bitched about learning from a leak to Maggie Haberman made partly for his benefit was about the venue. “No detail on venue and no input on content.”

In that same interview where Gates did not disclose Stone’s demand that he get a say on Trump’s foreign policy speeches, he nevertheless reiterated his admission that, “Gates sent Kilimnik both publicly available information and internal information from Fabrizio’s polls.” Gates also provided a description of Cambridge Analytica in the poll mix, though his descriptions of the campaign’s reliance on CA would remain inconsistent through the entirety of his cooperation with Mueller’s team.

Over the next two meetings, things seemed to get closer to finalizing the plea. In an interview on February 9, Gates further elaborated on why he had lied about the meeting with Rohrabacher. Prosecutors also got him on the record on an instance where he gave family members advance information about the acquisition of ID Watchdog, a company he had a stake in, by Equifax. Then in the following interview, Mueller’s team went through one after another crime he may have committed — insider trading (with IDW), bank fraud, bribery, “lack of candor under oath,” including during his 2014 FBI interview and the Skadden Report, campaign fraud, obstruction of justice, all of which would need to be on the record before he pled guilty.

After doing that, prosecutors got Gates on the record about key Mueller-related topics about which they wanted his cooperation, including Stone and Thomas Barrack. In their review of Gates’ description of the August 2 meeting, he confirmed that Deripaska was discussed (though claimed he only knew polling data was shared with the Ukrainian paymasters), and provided a really sketchy explanation of what this was all about:

Gates was asked why Kilimnik referred to Manafort’s “clever plan to defeat” Hillary Clinton in an email. Gates believed this referred to Manafort’s strategy to attack Clinton’s credibility. Gates was asked what was “clever” about this. Gates agreed that it was not clever and he did not know why Kilimnik characterized it as clever.

Gates did not trust Kilimnik. Gates did not know why Manafort was sharing internal polling data with Kilimnik. Gates said Kilimnik could have given the information to anyone.

That’s when the plea deal should have been finalized. But as Weissmann described in his book, it wasn’t.

Gates’ prior attorney (who was also representing someone else against whom Gates would testify), in the guise of demanding past payment, caused a sealed conference to be held before Amy Berman Jackson which alerted the press that he might be cooperating, which in turn generated a great deal of pressure on Gates not to flip (including the involvement of Sean Hannity). From Weissmann again:

But before we received the final versions back, with signatures, the process was disrupted yet again. Gates’s second defense counsel, Walter Mack, called our office unexpectedly and asked what the heck was going on: Was it true that his client was cooperating with the special counsel’s investigation?

It’s hard to convey the strangeness of Walter’s phone call: not only that he didn’t seem to know that Gates was seeking to cooperate, but that he was calling us for answers, instead of asking his own client, or his co-counsel Tom Green. We told Walter that he should direct those questions to Gates or Tom. It was not our place to be an intermediary between defendants and their various attorneys, or to mediate whatever spat Walter had just brought to our doorstep.

I’m still not sure what was going on behind the scenes. Later, Walter would claim a lack of payment from Gates—maybe that had something to do with it. But it was also hard to ignore that Walter happened to be simultaneously representing a man named Steven Brown in a separate case in New York. Brown had enlisted Gates in a fraudulent scheme and therefore could be harmed by information Gates might share if he cooperated.

Regardless, whatever dispute was playing out might have remained irrelevant to our case—except that Walter’s subsequent discussions with Tom apparently unraveled to the point that Walter filed a motion asking to be relieved as Gates’s counsel; this required all of us to appear briefly in court. The short proceeding had very little to do with our office and was under seal at the time, but our mere appearance at the courthouse roused interest from the reporters staking out the building. At the proceeding, the court told Tom to brief Walter on the cooperation progress. Shortly thereafter, someone leaked a story about Gates and his intention to cooperate to the Los Angeles Times.

This media attention was unsettling for Gates—as whoever leaked the story presumably knew it would be. It is hard enough to betray your former mentor, and walk away from your former life, by talking to government investigators. It is more daunting once you’ve seen your decision to cooperate spelled out in a national headline and are forced to discuss it with every friend and family member who calls to ask you if it’s true. Such press also sends out an alarm to those who’d seek to pull Gates back in line and away from the government.

As we feared, once the story ran, Gates got cold feet. Tom and I spoke nearly every day for the next two weeks. He explained that he was still working to convince his client to cooperate, and I expressed bafflement. I’d never seen anything like this before. Gates had passed the point of no return; because he’d already signed the proffer agreement and admitted his criminal liability to all of the charged crimes (and then some), he would be going to trial with effectively no defense if he backed out now. Tom assured me that Gates understood this—but he also said that Gates had lots of people loyal to the White House whispering in his ear.

So prosecutors drew up a second indictment against Manafort and Gates in Virginia. That, plus some advice from Charlie Black, may have been enough to get him back on board.

This time it seemed real. “He’s coming to my office to sign the papers right now,” Tom said.

I was relieved, but still skeptical. I told Tom I’d need to see him and Gates in our office again, to hear Gates explain what the hell had just happened. I also alerted him that we were, at that moment, pushing forward with our indictment in Virginia and, because the courthouse there didn’t allow phones or electronic devices, there was no way for me to call the prosecutors and stop it. Still, I assured Tom, this wouldn’t affect our deal: If Gates proved trustworthy, we’d move to dismiss this second set of charges in Virginia without prejudice and proceed in Washington as planned.

Gates came back into our office the next day. I leveled with him: “I’ve never had this experience before, and I need to understand what happened,” I said. “Why did you balk at the last minute? What’s going on?”

He seemed more vulnerable this time. He explained the intense pressure that Manafort and others were putting on him not to cooperate, how Manafort had told him that money could be raised to defray their legal expenses, and that the White House had their backs—code, Gates knew, to keep quiet and hold out for a pardon.

But, Gates went on, he’d also spoken to Charlie Black. Black had been in business with Manafort years ago, at the firm Black, Manafort, Stone and Kelly, then gone on to become a dean of Republican Party strategists and enjoyed a sterling reputation. (In a masterstroke, it turned out, at a moment when Tom was almost out of ideas, he had recruited Black to reach out to Gates and offer advice.) Black told Gates that, were he in a similar predicament, he would cooperate. Gates wasn’t an old man like Black and Manafort, Black explained; he needed to think about himself and his young family. And moreover, Black insisted, Gates would be foolish to count on a pardon. Trump was too self-absorbed to be dependable.

“I took this all in,” Gates said, “and I decided to follow Black’s advice.” Black’s encouragement seemed to have finally empowered Gates to turn on his old boss. “I know there’s a possibility that Paul will get a pardon in the end, and I’ll have to watch him walk free. But I decided I just have to deal with what I’ve done, and own what I have done.” He’d broken the law, he said. He needed to deal with the consequences now and do right by his family.

The first interviews after Gates pled guilty focused on this process, eliciting descriptions of all the people Gates had spoken to in prior days, including the Black conversation, three conversations where Manfort tried to find money to pay Gates’ legal bills, and others. A pardon came up but no one told him he would be pardoned. Someone also tried to help Gates find what would have been his fourth defense team. Gates explained that he had been told the Nunes Memo and the IG Report on the Hillary investigation would change the climate for his defense.

But after that, things started to move forward. Investigators got a list of all the encrypted comms Gates had used and those he knew Manafort had used. Then they began to turn back to all the Manafort graft Gates would help prosecutors untangle.

On March 1 — the first time prosecutors would return to two key Russia-related issues after Gates pled guilty, the August 2 meeting and Roger Stone — Gates revealed that he had lied to Ken Vogel in 2016 (who was then with Politico) about the Havana Club meeting. Gates started by (improbably) claiming he had never before read the June 19, 2017 WaPo story in which Konstantin Kilimnik provided a cover story for the August 2 meeting. That led him to admit lying to Vogel because he believed they’d get away without disclosing the meeting.

Gates stated that he hadn’t previously read the 6/19/2017 Washington Post article, which contained a statement from Konstantin Kilimnik regarding a meeting held in New York on 8/2/2016. Gates stated that following the 8/2/2016 meeting (which was held at New York’s Havana Club), Gates spoke to Paul Manafort regarding a subsequent Politico story about it. The author of the Politico article, Kenneth Vogel, had emailed a list of questions to Manafort. Manafort forwarded these questions to Gates, who answered “no” to all the questions. Gates admitted that he lied to Vogel with these responses. He had been assured no one would find out about this meeting. Gates stated that Jared Kushner became angry following the Politico article, unsure as to why Manafort would have such a meeting.

Then Gates admitted that Manafort did ask him whether anyone called him about the meeting — something still redacted for ongoing investigation. Effectively, Gates admitted that he understood that Manafort expected him to lie about the meeting.

Remember, during precisely this period in 2016, Oleg Deripaska was playing a double game, making Manafort more vulnerable even while getting him to share campaign campaign information. Perhaps not unrelatedly, much of the next month of Rick Gates interviews in 2018 focused on the Pericles lawsuit that Deripaska used as leverage against Manafort to put him in that more vulnerable position.

A March 21 interview covering things like Roger Stone and Cambridge Analytica remains significantly redacted (including one b7A redaction covering the latter topic added since this 302 was last released).

Something sort of interesting happened in April 2018. On two consecutive days, Gates told a slightly different story about Roger Stone. On April 10, Rhee and Aaron Zelinsky joined Manafort prosecutors Weissmann and Andres. At the beginning of the interview, Gates warned that someone was not happy he was cooperating. In the April 10 interview, Gates provided details about Stone’s ongoing relationship with Manafort that don’t appear, in unredacted form, elsewhere, as well as details of calls and meetings from June (these communications were a focus at Stone’s trial). Gates revealed that the day before Stone’s “Podesta time in the barrel” comment on August 21, 2016, Manafort told Gates Stone had told him the emails would come out (this is consistent with at least one of Manafort’s interviews). One subtext of this interview is that the means by which Lewandowski got fired in June was related to Stone’s bid to get Hillary’s emails.

In the April 10 interview, Gates described a June 15, 2016 phone call he had with Manafort and Stone where Stone said “he had been in contact with Guccifer 2.” The FBI spent much of 2018 trying to track down forensic proof that this had indeed happen.

In the same interview, Gates asserted that Manafort,

always intended to use Stone as an outside source of information. Manafort relied on Stone to do operative work and dig up opposition material. Manafort had conveyed to Gates that Stone was in the hunt for Clinton’s emails prior to the Crowdstrike report dated 06/14/2016 announcement. Stone told Gates and Manafort something major was going to happen and that a leak of information was coming.

All told this may be Gates’ most revelatory interview about Stone.

But an April 11 interview, which covers the same issues (and at which Rhee was not present), seems to back off the claim that Manafort was pushing Stone to go get the emails. “[N]o one told Stone to go get” the emails Assange had. In a separate interview that same day (without the Stone team), Weissmann and Andres asked Gates about contacts he had had, though that seems to refer to contacts during 2017. On April 17, an interview seemed to focus on something Manafort had done.

Prosecutors kept asking about his contacts during the investigation (as they did with Mike Flynn during the same period). On May 3, Gates described with whom he had contact since his last interview (on April 19). That included two conversations with Maggie Haberman. Later in May, Gates was interviewed about his and Manafort’s response to an July 2016 AP report on Manfort’s Ukraine graft. In July, Gates revealed that, prior to pleading guilty, Manafort had warned Gates against his attorney Tom Green. In different July interview, Gates also described being in contact with people about a NYT report on him.

Gates’ plea deal required he get prior approval before he revealed any information derived from his cooperation to a third party. But he appears to have remained in touch with the NYT anyway.

In August, investigators grilled Gates about a topic that they hadn’t known about but which he had admitted on the stand while testifying in Paul Manafort’s trial: That he may have submitted a false expense report to the Inauguration Committee, replicating a theft that he had earlier used against Manafort. That discussion remains redacted under b7A redactions. It was not addressed in the government sentencing memo for Gates. It’s one potential crime Gates admitted only after entering into the plea agreement.

During fall interviews, Gates addressed additional investigative interest (such as the spin-off prosecutions arising from Manafort’s graft). He provided an interview on Stone on October 25 (the day before Steve Bannon would be interviewed and one of his last interviews before the election) that generally accorded with past testimony. And he did a few interviews pertaining to Kilimnik (parallel to the time when Manafort was being questioned about the same topic), including one where he reiterated that,

GATES understood that the polling data he was sending to KILIMNIK would be given to LYOVOCHKIN and DERIPASKA. GATES believed MANAFORT would have sent the polling data to LYOVOCHKIN as part of his efforts to get money out of Ukraine. GATES believed MANAFORT would have sent the polling data to DERIPASKA [redacted]. GATES opined that MANAFORT believed that Trump’s strength in the polls would be advantageous to him.

GATES provided KILIMNIK a mix of public polls and the campaign’s Fabrizio polling data based on what MANAFORT thought looked good. The Fabrizio polls were more reliable because they used cell phone polling data.

GATES provided certainly weekly data automatically to KILIMNIK. MANAFORT and GATES would send additional polling data on an ad hoc basis. On multiple occasions, GATES and MANAFORT would receive a poll and MANAFORT would tell GATES to send it to KILIMNIK based on the poll’s content.

That is, while there were conflicting details, after the time Gates started cooperating, his story about sharing polls repeatedly (though not always) acknowledged that Deripaska was receiving the polls. He consistently said the polls included non-public data (though his excuses for doing so varied from interview to interview and never offered a plausible explanation). And while he shifted the timeline earlier during the first interviews where he was telling other lies, after that point Gates never disputed that Manafort provided a more detailed explanation of his campaign strategy to Kilimnik, and he admitted his data sharing continued at least through the time Manafort left the campaign on August 19.

Gates’ description of what happened after that had some variances, as did his description of what polls were included in the sharing — but they always included Fabrizio’s polls, which, based on past work, they were the ones with which Kilimnik would be most familiar.

On November 7, the day Jeff Sessions would be fired, making way for Billy Barr to be nominated and confirmed, Gates did two interviews without his attorney, Tom Green, present.

There was, among the released interviews (there are about 60 that have been released, plus some other identified 302s that haven’t been), just one more in 2018.

Then, in advance of a February 15, 2019 interview, Gates’ attorney reached out to correct a claim that prosecutors had made as part of Manafort’s breach hearing. The important correction was that “GATES did not recall bringing [a document he had printed out earlier that day for a planning meeting] to the [Havana Bar] meeting. Gates affirmed, however, that,

At the 08/02/2016 meeting with GATES, MANAFORT, and KILIMNIK there was a much more detailed discussion of internal polling data compared to the data GATES sent to KILIMNIK via WHATSAPP. At the dinner meeting, GATES, MANAFORT, and KILIMNIK discussed internal polling from FABRIZIO which included battleground states.

[snip]

GATES recalled MANAFORT discussed internal polling from other sources including CAMBRIDGE ANALYTICA. The information provided in this meeting by MANAFORT to KILIMNIK was based on internal information and polls; it was a synthesis that included internal polling data.

In addition to the major correction regarding the document he printed out, however, Gates altered his testimony from many (though not all) of his previous interviews in one key way. At an interview the day after Billy Barr was confirmed as Attorney General and as Mueller’s team were already drafting their report, Gates reported that,

DERIPASKA was also in the mix. GATES recalled, however, that the letter to DERIPASKA was related to MANAFORT’s and DERIPASKA’s legal dispute. GATES does not specifically know if MANAFORT sent internal polling data to DERIPASKA.

That is, in his first interview after Barr became Attorney General, Gates backed off a claim that (at least per the 302s) he had made as recently as late October, that he knew he was sending Deripaska the polling data.

Then, on February 22, Gates had a last interview, by phone (there must have been one or several in advance of the Stone and Greg Craig trials). For a third time, his attorney — Robert Mueller’s friend Tom Green — was not present.

The topic of the interview, like so many before, was whom Gates had had contact with about the investigation. But of course, this time, key details of the investigation, especially about sharing polling data with Kilimnik, had been revealed by one of those redaction failures that sometimes happen at opportune times. Gates described someone “alert[ing] GATES to the allegation discussed above,” but claimed “their communication had no substance.” Before and after that, though, redacted answers that Gates offered seemed to deny speaking to anyone about the allegations, whether the inquiry pertained to comparing notes about answers with others involved — as Gates had denied then disproved happened in summer 2017 — or lying to the media to minimize damage — as Gates had admitted lying to Ken Vogel about the very same allegation.

And in spite of the fact that Weissmann warned Gates at least once not to say anything about his communications with Green, Gates ended the interview by addressing a claim his attorney seems to have made. “GATES stated that his counsel GREEN had been mistaken in indicating to the Special Counsel’s Office that GATES,” with a long paragraph describing what Green had told prosecutors but that Gates, with Green absent, was denying.

It turns out, though, that the demonstrably false story that NYT told resembled the ones Gates told in interviews where he was also lying about Rohrabacher, a year earlier. The NYT claimed that Gates had only transferred the data during the spring, not in August. It claimed “most of the data was public.” And it claimed Gates had only shared the data with two Ukrainian oligarchs, and not Oleg Deripaska.

Both Mr. Manafort and Rick Gates, the deputy campaign manager, transferred the data to Mr. Kilimnik in the spring of 2016 as Mr. Trump clinched the Republican presidential nomination, according to a person knowledgeable about the situation. Most of the data was public, but some of it was developed by a private polling firm working for the campaign, according to the person.

Mr. Manafort asked Mr. Gates to tell Mr. Kilimnik to pass the data to two Ukrainian oligarchs, Serhiy Lyovochkin and Rinat Akhmetov, the person said. The oligarchs had financed Russian-aligned Ukrainian political parties that had hired Mr. Manafort as a political consultant.

In his first interview, Gates claimed that the two Kilimnik meetings happened in spring, March and May. He further claimed the last time he spoke to Kilimnik was in May 2016, not that August meeting nor later attempts to craft a cover story for the Skadden Arps intervention. He offered another reason entirely for the meeting than sharing campaign data: Yanukovych wanted Manafort to run his next campaign.

In his second interview, Gates was told clearly the meeting at the Havana Bar happened in August, but then, when he began to admit to sharing campaign information, suggested Manafort had shared “Manafort’s plan for the primaries.” When reminded again that the meeting happened in August, long after Trump sealed up the nomination, Gates still persisted by claiming “they must have talked about the delegate issue and Manafort’s plan to get Trump enough delegates to win the nomination.” This interview appears to be the first time Gates offered the explanations he settled on for sharing campaign strategy — to get the Ukrainians to pay their bills and to get Deripaska to drop his law suit. But when investigators asked the obvious question — why Manafort wanted to share campaign information from someone he thought was Russian intelligence Gates claimed none of this was secret.

Gates was asked why Manafort would provide strategy information on the Trump Campaign to someone he thought was Russian Intelligence. Gates stated that the information on the battleground states and strategy was not secret.

This comment appears between passages redacted for ongoing investigation, so it’s not really clear whether the “he” here means Gates (who later would admit he suspected Kilimnik was a spy) And yet, he and Manafort spent a good deal of time obfuscating about doing just that.

Back in January 2018, before he started getting caught in deliberate lies, Gates was telling stories that shifted the time and the substance regarding why he and Manafort shared campaign data with Konstantin Kilimnik. And then, just as the Mueller team started preparing to write their conclusions, the NYT published a story that adopted the same time shift and subject obfuscations.

And in between, Rick Gates shared details repeatedly about how he used Maggie Haberman and Ken Vogel.