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How to Charge Americans in Conspiracies with Russian Spies?

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

In general, Jack Goldsmith and I have long agreed about the problems with charging nation-state spies in the United States. So I read with great interest his post laying out “Uncomfortable Questions in the Wake of Russia Indictment 2.0 and Trump’s Press Conference With Putin.” Among other larger normative points, Goldsmith asks two questions. First, does indicting 12 GRU officers in the US expose our own nation-state hackers to be criminally prosecuted in other countries?

This is not a claim about the relative moral merits of the two countries’ cyber intrusions; it is simply a claim that each side unequivocally breaks the laws of the other in its cyber-espionage activities.

How will the United States respond when Russia and China and Iran start naming and indicting U.S. officials?  Maybe the United States thinks its concealment techniques are so good that the type of detailed attribution it made against the Russians is infeasible.  (The Shadow Brokers revealed the identities of specific NSA operators, so even if the National Security Agency is great at concealment as a matter of tradecraft that is no protection against an insider threat.)  Maybe Russia and China and Iran won’t bother indicting U.S. officials unless and until the indictments actually materialize into a trial, which they likely never will.  But what is the answer in principle?  And what is the U.S. policy (if any) that is being communicated to military and civilian operators who face this threat?  What is the U.S. government response to former NSA official Jake Williams, who worked in Tailored Access Operations and who presumably spoke for many others at NSA when he said that “charging military/gov hackers is dumb and WILL eventually hurt the US”?

And, how would any focus on WikiLeaks expose journalists in the United States to risks of prosecution themselves.

There is a lot of anger against WikiLeaks and a lot of support for indicting Julian Assange and others related to WikiLeaks for their part in publishing the information stolen by the Russians.  If Mueller goes in this direction, he will need to be very careful not to indict Assange for something U.S. journalists do every day.  U.S. newspapers publish information stolen via digital means all the time.  They also openly solicit such information through SecureDrop portals.  Some will say that Assange and others at WikiLeaks can be prosecuted without threatening “real journalists” by charging a conspiracy to steal and share stolen information. I am not at all sure such an indictment wouldn’t apply to many American journalists who actively aid leakers of classified information.

I hope to come back to the second point. As a journalist who had a working relationship with someone she came to believe had a role in the attack, I have thought about and discussed the topic with most, if not all, the lawyers I consulted on my way to sitting down with the FBI.

For the moment, though, I want to focus on Goldsmith’s first point, one I’ve made in the past repeatedly. If we start indicting uniformed military intelligence officers — or even contractors, like the trolls at Internet Research Agency might be deemed — do we put the freedom of movement of people like Jake Williams at risk? Normally, I’d absolutely agree with Goldsmith and Williams.

But as someone who has already written extensively about the ConFraudUs backbone that Robert Mueller has built into his cases, I want to argue this is an exception.

As I’ve noted previously, while Rod Rosenstein emphasized that the Internet Research Agency indictment included no allegations that Americans knowingly conspired with Russians, it nevertheless did describe three Americans whose activities in response to being contacted by Russian trolls remain inconclusive.

Rod Rosenstein was quite clear: “There is no allegation in the indictment that any American was a knowing participant in the alleged unlawful activity.” That said, there are three (presumed) Americans who, both the indictment and subsequent reporting make clear, are treated differently in the indictment than all the other Americans cited as innocent people duped by Russians: Campaign Official 1, Campaign Official 2, and Campaign Official 3. We know, from CNN’s coverage of Harry Miller’s role in building a cage to be used in a fake “jailed Hillary” stunt, that at least some other people described in the indictment were interviewed — in his case, for six hours! — by the FBI. But no one else is named using the convention to indicate those not indicted but perhaps more involved in the operation. Furthermore, the indictment doesn’t actually describe what action (if any) these three Trump campaign officials took after being contacted by trolls emailing under false names.

On approximately the same day, Defendants and their co-conspirators used the email address of a false U.S. persona, [email protected], to send an email to Campaign Official 1 at that donaldtrump.com email account, which read in part:

Hello [Campaign Official 1], [w]e are organizing a state-wide event in Florida on August, 20 to support Mr. Trump. Let us introduce ourselves first. “Being Patriotic” is a grassroots conservative online movement trying to unite people offline. . . . [W]e gained a huge lot of followers and decided to somehow help Mr. Trump get elected. You know, simple yelling on the Internet is not enough. There should be real action. We organized rallies in New York before. Now we’re focusing on purple states such as Florida.

The email also identified thirteen “confirmed locations” in Florida for the rallies and requested the campaign provide “assistance in each location.”

[snip]

Defendants and their co-conspirators used the false U.S. persona [email protected] account to send an email to Campaign Official 2 at that donaldtrump.com email account.

[snip]

On or about August 20, 2016, Defendants and their co-conspirators used the “Matt Skiber” Facebook account to contact Campaign Official 3.

Again, the DOJ convention of naming makes it clear these people have not been charged with anything. But we know from other Mueller indictments that those specifically named (which include the slew of Trump campaign officials named in the George Papadopoulos plea, KT McFarland and Jared Kushner in the Flynn plea, Kilimnik in the Van der Zwaan plea, and the various companies and foreign leaders that did Manafort’s bidding, including the Podesta Group and Mercury Public Affairs in his indictment) may be the next step in the investigation.

In the GRU indictment, non US person WikiLeaks is given the equivalent treatment.

On or about June 22, 2016, Organization I sent a private message to Guccifer 2.0 to “[s]end any new material [stolen from the DNC] here for us to review and it will have a much higher impact than what you are doing.” On or about July 6, 2016, Organization 1 added, “if you have anything hillary related we want it in the next tweo [sic] days prefable [sic] because the DNC [DemocraticNationalConvention] is approaching and she Will solidify bernie supporters behind her after.” The Conspirators responded,“0k . . . i see.” Organization I explained,“we think trump has only a 25% chance of winning against hillary . . . so conflict between bernie and hillary is interesting.”

But the activities of other American citizens — most notably Roger Stone and Donald Trump — are discussed obliquely, even if they’re not referred to using the standard of someone still under investigation. Here’s the Roger Stone passage.

On or aboutAugust 15,2016, the Conspirators,posing as Guccifer 2.0,wrote to a person who was in regular contact with senior members of the presidential campaign of Donald J. Trump, “thank u for writing back. . . do u find anyt[h]ing interesting in the docs i posted?” On or about August 17, 2016, the Conspirators added, “please tell me if i can help u anyhow . . . it would be a great pleasureto me.” On or about September 9, 2016,the Conspirators, again posing as Guccifer 2.0, referred to a stolen DCCC document posted online and asked the person, “what do u think of the info on the turnout model for the democrats entire presidential campaign.” The person responded,“[p]retty standard.”

The Trump one, of course, pertains to the response GRU hackers appear to have made when he asked for Russia to find Hillary’s emails on July 27.

For example, on or about July 27, 2016, the Conspirators attempted after hours to spearphish for the first time email accounts at a domain hosted by a third‑party provider and used by Clinton’s personal office. At or around the same time, they also targeted seventy‐six email addresses at the domain for the Clinton Campaign.

Finally, there is yesterday’s Mariia Butina complaint, which charges her as an unregistered Russian spy and describes Aleksandr Torshin as her boss, but which also describes the extensive and seemingly willful cooperation with Paul Erickson and another American, as well as with the RNC and NRA. Here’s one of the Americans, for example, telling Butina that her Russian bosses should take the advice he had given her about which Americans she needed to meet.

If you were to sit down with your special friends and make a list of ALL the most important contacts you could find in America for a time when the political situation between the U.S. and Russia will change, you could NOT do better than the list that I just emailed you. NO one — certainly not the “official” Russian Federation public relations representative in New York — could build a better list.

[snip]

All that you friends need to know is that meetings with the names on MY list would not be possible without the unknown names in your “business card” notebook. Keep them focused on who you are NOW able to meet, NOT the people you have ALREADY met.

Particularly as someone whose communications (including, but not limited to, that text) stand a decent chance of being quoted in an indictment in the foreseeable future, let me be very clear: none of these people have been accused of any wrong-doing.

But they do suggest a universe of people who have attracted investigative scrutiny, both by Mueller and by NSD, as willing co-conspirators with Russian spies.

Granted, there are three different kinds of Russian spies included in these three documents:

  • Uniformed military intelligence officers working from Moscow
  • Civilian employees who might be considered intelligence contractors working from St. Petersburg (though with three reconnaissance trips to the US included)
  • Butina and Torshin, both of whom probably committed visa fraud to engage as unregistered spies in the US

We have a specific crime for the latter (and, probably, the reconnaissance trips to the US by IRA employees), and if any of the US persons and entities in Butina’s indictment are deemed to have willingly joined her conspiracy, they might easily be charged as well. Eventually, I’m certain, Mueller will move to start naming Americans (besides Paul Manafort and Rick Gates) in conspiracy indictments, including ones involving Russian spies operating from Russia (like Konstantin Kilimnik). It seems necessary to include the Russians in some charging documents, because otherwise you’ll never be able to lay out the willful participation of everyone, Russian and American, in the charging documents naming the Americans.

So while I generally agree with Goldsmith and Williams, this case, where we’re clearly discussing a conspiracy between Russian spies — operating both from the US and from Russia (and other countries), wearing uniforms and civilian clothing –and Americans, it seems important to include them in charging documents somewhere.

The Quest: Trump Learns of the Investigation (Part Four)

In this series, I’m analyzing the Mueller questions as understood by Jay Sekulow and leaked to the NYT to show how they set up a more damning investigative framework than commentary has reflected.

This post laid out how the Agalarovs had been cultivating Trump for years, in part by dangling real estate deals and close ties with Vladimir Putin. This post shows how during the election, the Russians and Trump danced towards a quid pro quo agreement, with the Russians offering dirt on Hillary Clinton in exchange for a commitment to sanctions relief, with some policy considerations thrown in. This post laid out how, during the transition period, Trump’s team took a series of actions they attempted to keep secret that moved towards consummating the deal they had made with Russia, both in terms of policy concessions, particularly sanctions relief, and funding from Russian sources that could only be tapped if sanctions were lifted.

This post will look at Mueller’s reported investigative interest in Trump’s reaction to discovering the “Deep State” was investigating the election year operation, including the actions his team had tried to keep secret. Note, I have put all of the events leading up to Flynn’s firing here (not least because I think the firing itself often gets treated improperly as obstruction), though just some of the Jim Comey events. I will repeat the timeline of events in the next post, which overlaps temporally, for clarity.

January 6, 2017: What was your opinion of Mr. Comey during the transition?

This is a baseline question for Trump’s firing of Jim Comey. At a minimum, Trump would need to explain his decision to keep Comey. It also provides Trump an opportunity to rebut Comey’s claim that, in the January 6 meeting, Trump told Comey he:

had conducted myself honorably and had a great reputation. He said I was repeatedly put in impossible positions. He said you saved her and then they hated you for what you did later, but what coice did you have? He said he thought very highly of me and looked forward to working with me, saying he hoped I planned to stay on. I assured him I intended to stay. He said good.

January 6, 2017: What did you think about Mr. Comey’s intelligence briefing on Jan. 6, 2017, about Russian election interference?

One key detail Comey (and the other representatives of the intelligence community) would have detailed for Trump that day is not just that Russia interfered in the election, but their basis for concluding that “We also assess Putin and the Russian Government aspired to help President-elect Trump’s election chances,” a conclusion Republicans have objected to repeatedly.

In his book, but not his memos, Comey describes that immediately after the briefing, Trump first asked for assurances Russian interference hadn’t affected the outcome and then, with his team, started strategizing how to spin the conclusions so as to dismiss any outcome on the election.

‘I recall Trump listening without interrupting, and asking only one question, which was really more of a statement: “But you found there was no impact on the result, right?” The intelligence team said they had done no such analysis.

‘What I found telling was what Trump and his team didn’t ask. They were about to lead a country that had been attacked by a foreign adversary, yet they had no questions about what the future Russian threat might be.’

Instead, Trump and his team immediately started discussing how they would “spin” the information on Russia as if the intelligence officers were not in the room. ‘They were keen to emphasize that there was no impact on the vote, meaning that the Russians hadn’t elected Trump.’

This reflects the same concern expressed in the KT McFarland email from just days earlier (which probably reflected detailed Trump involvement) that acknowledging Russian involvement would “discredit[] Trump’s victory by saying it was due to Russian interference.”

January 6, 2017: What was your reaction to Mr. Comey’s briefing that day about other intelligence matters?

In its analysis of the questions, NYT takes this question to be exclusively about Comey’s briefing on the Steele dossier, and it may be. But in Obama’s January 5 briefing covering the same issues, according to Susan Rice, Comey and others discussed concerns about sharing classified information with the Trump team, especially Mike Flynn.

The memorandum to file drafted by Ambassador Rice memorialized an important national security discussion between President Obama and the FBI Director and the Deputy Attorney General. President Obama and his national security team were justifiably concerned about potential risks to the Nation’s security from sharing highly classified information about Russia with certain members of the Trump transition team, particularly Lt. Gen. Michael Flynn.

Even though concerns about Flynn came up in that Obama briefing, the FBI counterintelligence investigation did not. It’s possible that this passage from Comey’s memo, which describes the main part of the briefing and not that part dedicated to the Steele dossier, pertained to the counterintelligence concerns about Flynn,which Obama had already shared with Trump the previous fall; such a warning may or may not have included Flynn’s conversations with Sergey Kislyak.

If Comey briefed anything to do with Flynn, it would significantly change the importance of subsequent events.

As for the Steele dossier conversation, which surely is included with this question, Comey has claimed that Trump first tried to convince Comey is wasn’t true that he would need to “go there” to sleeping with prostitutes, “there were never prostitutes,” even though Trump’s reference to “the women who had falsely accused him of grabbing or touching them” actually undermined his defense.

Comey has also claimed that Trump seemed relieved when he said (in the context of the Steele briefing), that the FBI was not investigating him. Importantly, this took place after Comey had said he didn’t want people to claim the information came from the FBI.

I said media like CNN had them and were looking for a news hook. I said it was important that we not give them an excuse to write that the FBI has the material or [redacted] and that we were keeping it very close-hold.

[snip]

I responded that we were not investigating him and the stuff might be totally made up but that it was being said out of Russia and our job was to protect the President from efforts to coerce him. I said we try to understand what the Russians are doing and what they might do. I added that I also wanted him to know this in case it came out in the media.

He said he was grateful for the conversation, said more nice things about me and how he looks forward to working with me and we departed the room.

January 12, 2017: What was your reaction to news reports on Jan. 12, 2017?

On January 12, in the context of a discussion of Trump aiming for better relationships with Putin, David Ignatius reported revealed that Flynn had called Sergey Kislyak “several times,” asking whether but not asserting that it might be an attempt to undercut sanctions.

Trump said Wednesday that his relationship with President Vladimir Putin is “an asset, not a liability.” Fair enough, but until he’s president, Trump needs to let Obama manage U.S.-Russia policy.

Retired Lt. Gen. Michael T. Flynn, Trump’s choice for national security adviser, cultivates close Russian contacts. He has appeared on Russia Today and received a speaking fee from the cable network, which was described in last week’s unclassified intelligence briefing on Russian hacking as “the Kremlin’s principal international propaganda outlet.”

According to a senior U.S. government official, Flynn phoned Russian Ambassador Sergey Kislyak several times on Dec. 29, the day the Obama administration announced the expulsion of 35 Russian officials as well as other measures in retaliation for the hacking. What did Flynn say, and did it undercut the U.S. sanctions? The Logan Act(though never enforced) bars U.S. citizens from correspondence intending to influence a foreign government about “disputes” with the United States. Was its spirit violated? The Trump campaign didn’t immediately respond to a request for comment.

The report neither revealed the FBI had intercepts of the conversation nor confirmed an investigation. But it may have alerted Trump that the actions he was probably a party to weeks earlier might have legal consequences.

January 24: FBI interviews Mike Flynn and he lies about talking about sanctions

January 26 and 27, 2017: What did you know about Sally Yates’s meetings about Mr. Flynn?

According to Sally Yates’ public testimony, she met with Don McGahn to discuss Mike Flynn’s interview with the FBI on January 26, 2017. She framed it by describing that DOJ knew Mike Pence’s January 15 comments about Flynn’s conversations with Kislyak were not correct.

YATES: So I told them again that there were a number of press accounts of statements that had been made by the vice president and other high-ranking White House officials about General Flynn’s conduct that we knew to be untrue. And we told them how we knew that this – how we had this information, how we had acquired it, and how we knew that it was untrue.

And we walked the White House Counsel who also had an associate there with him through General Flynn’s underlying conduct, the contents of which I obviously cannot go through with you today because it’s classified. But we took him through in a fair amount of detail of the underlying conduct, what General Flynn had done, and then we walked through the various press accounts and how it had been falsely reported.

We also told the White House Counsel that General Flynn had been interviewed by the FBI on February [sic] 24. Mr. McGahn asked me how he did and I declined to give him an answer to that. And we then walked through with Mr. McGahn essentially why we were telling them about this and the first thing we did was to explain to Mr. McGahn that the underlying conduct that General Flynn had engaged in was problematic in and of itself.

Secondly, we told him we felt like the vice president and others were entitled to know that the information that they were conveying to the American people wasn’t true. And we wanted to make it really clear right out of the gate that we were not accusing Vice President Pence of knowingly providing false information to the American people.

And, in fact, Mr. McGahn responded back to me to let me know that anything that General Flynn would’ve said would have been based — excuse me — anything that Vice President Pence would have said would have been based on what General Flynn had told him.

We told him the third reason was — is because we were concerned that the American people had been misled about the underlying conduct and what General Flynn had done, and additionally, that we weren’t the only ones that knew all of this, that the Russians also knew about what General Flynn had done.

And the Russians also knew that General Flynn had misled the vice president and others, because in the media accounts, it was clear from the vice president and others that they were repeating what General Flynn had told them, and that this was a problem because not only did we believe that the Russians knew this, but that they likely had proof of this information.

And that created a compromise situation, a situation where the national security adviser essentially could be blackmailed by the Russians. Finally, we told them that we were giving them all of this information so that they could take action, the action that they deemed appropriate.

I remember that Mr. McGahn asked me whether or not General Flynn should be fired, and I told him that that really wasn’t our call, that was up to them, but that we were giving them this information so that they could take action, and that was the first meeting.

Then there was a follow-up meeting on January 27. Among the five topics discussed, McGahn asked if Flynn was in legal jeopardy, and if “they” (presumably meaning he and the Associate WHCO in the meeting) could see the underlying intelligence.

WHITEHOUSE: Did you discuss criminal prosecution of Mr. Flynn — General Flynn?

YATES: My recollection is that did not really come up much in the first meeting. It did come up in the second meeting, when Mr. McGahn called me back the next morning and asked the — the morning after — this is the morning of the 27th, now — and asked me if I could come back to his office.

And so I went back with the NSD official, and there were essentially four topics that he wanted to discuss there, and one of those topics was precisely that. He asked about the applicability of certain statutes, certain criminal statutes and, more specifically,

[snip]

And there was a request made by Mr. McGahn, in the second meeting as to whether or not they would be able to look at the underlying evidence that we had that we had described for him of General Flynn’s conduct. And we told him that we were inclined to allow them to look at that underlying evidence, that we wanted to go back to DOJ and be able to make the logistical arrangements for that. This second meeting on the 27th occurred late in the afternoon, this is Friday the 27th. So we told him that we would work with the FBI over the weekend on this issue and get back with him on Monday morning. And I called him first thing Monday morning to let him know that we would allow them to come over and to review the underlying evidence.

By the time the materials for review became available on January 30, Yates had been fired, nominally because she refused to defend Trump’s Muslim ban.

The HPSCI report (particularly content newly unredacted on May 4; see PDF 63 ff) reveals there were several concerns about Flynn’s contradictory comments (which Republicans bizarrely present as conflict). First, there had been a counterintelligence investigation into Flynn still active in December 2016, though FBI may have been moving to shut it down. The interview may have been sparked by Logan Act concerns, or it may have been Flynn’s public comments to Pence (the Republican report ignores that this would pose a blackmail problem). Comey told HPSCI that the agents found Flynn — a lifetime intelligence officer — exhibited no physical signs of deceit, but made it clear the Agents did find his statements plainly conflicted with known facts.

When Mueller asks the President what he knew about the meetings, he likely wants to know (and already has answers from McGahn and likely the Associate) whether they told him about the Flynn interview, if so when, and in how much detail. If they did tell Trump, Mueller may also want to know about whether McGahn’s questions on the 27th (including whether Flynn was in legal jeopardy) reflect Trump’s own questions.

Obviously, one other subtext of this question pertains to whether Yates’ pursuit of Flynn contributed to her firing.

The other critical point about whether and what Trump knew of Yates’ meetings with McGahn: on January 27, he had his first creepy meeting with Jim Comey. Then, on January 28, he had his first phone call with Vladimir Putin, a call Flynn attended.

January 27, 2017: What was the purpose of your Jan. 27, 2017, dinner with Mr. Comey, and what was said?

At lunchtime on January 27 — so after McGahn had called Yates to set up a follow-up meeting and indicated concerns about Flynn’s legal jeopardy, but before that meeting happened — Trump called Comey and set up dinner that day. According to Comey, several minor things that would recur later came up, including questions about Andrew McCabe and Trump’s exposition of the Hillary email investigation.

In addition, five other key things happened at the meeting.

He invited the FBI to investigate “the Golden Showers” thing to prove it was a lie:

At this point, he turned to what he called “the golden showers thing”

[snip]

He said he had spoken to people who had been on the Miss Universe trip with him and they had reminded him that he didn’t stay over night in Russia for that. [this is not true]

[snip]

He said he thought maybe he should ask me to investigate the whole thing to prove it was a lie. I did not ask any questions. I replied that it was up to him, but I wouldn’t want to create a narrative that we were investigating him, because we were not and I worried such a thing would be misconstrued. Ii also said that is very difficult to disprove a lie. He said ‘maybe you’re right,’ but several times asked me to think about it and said he would also think about it.

He asked if the FBI leaks:

He asked whether the FBI leaks and I answered that of course in an organization of 36,000 we were going to have some of that, but I said I think the FBI leaks far less than people often say.

He asked if Comey wanted to keep his job, even though they had discussed it twice before:

He touched on my future at various points. The first time he asked “so what do you want to do,” explaining that lots of people wanted my job (“about 20 people”), that he thought very highly of me, but he would understand if I wanted to walk away given all I had been through, although he thought that would be bad for me personally because it would look like I had done something wrong, that he of course can make a change at FBI if he wants, but he wants to know what I think. There was no acknowledgement by him (or me) that we had already talked about this twice.

I responded by saying that he could fire me any time he wished, but that I wanted to stay and do a job I love to and think I am doing well.

He asked for loyalty:

He replied that he needed loyalty and expected loyalty.

[snip — this comes after the request for an investigation]

He then returned to loyalty, saying “I need loyalty.” I replied that he would always get honesty from me. He paused and said that’s what he wants, “honest loyalty.” I replied, “you will get that from me.”

He claimed to suspect Mike Flynn’s judgment because he had delayed in telling Trump about Putin’s congratulatory phone call:

He then went on to explain that he has serious reservations about Mike Flynn’s judgment and illustrated with a story from that day in which the President apparently discovered during his toast to Teresa May that [Vladimir Putin] had called four days ago. Apparently, as the President was toasting PM May, he was explaining that she had been the first to call him after his inauguration and Flynn interrupted to say that [Putin] had called (first, apparently). It was then that the President learned of [Putin’s] call and he confronted Flynn about it (not clear whether that was in the moment or after the lunch with PM May). Flynn said the return call was scheduled for Saturday, which prompted a heated reply from the President that six days was not an appropriate period of time to return a call from the [President] of a country like [Russia]. (“This isn’t [redacted] we are talking about.”) He said that if he called [redacted] and didn’t get a return call for six days he would be very upset. In telling the story, the President pointed his fingers at his head and said “the guy has serious judgment issues.” I did not comment at any point during this topic and there was no mention or acknowledgement of any FBI interest in or contact with General Flynn.

Trump would be hard pressed to argue the meeting was unrelated to the Yates meeting and the FBI investigation. Which would mean one thing Trump did — in a meeting where he also lied to claim he hadn’t had sex in Moscow — was to disclaim prior knowledge of the Putin meeting the next day (even while emphasizing the import of it).

Of course, the claim he thought Flynn had poor judgment didn’t lead him to keep Flynn out of the phone call with Putin the next day.

January 28: Trump, Pence, Flynn, Priebus, Bannon, and Spicer phone Vladimir Putin

February 9, 2017: What was your reaction to news reports on Feb. 8-9, 2017?

According to Jim Comey, he went for a meet and greet with Reince Priebus on February 8. While he was waiting, Mike Flynn sat down to chat with him though didn’t mention the FBI interview. Then, after clarifying that the conversation with Comey was a “private conversation,” he asked if there was a FISA order on Flynn. Comey appears to have answered in the negative. Priebus then took Comey in to meet with Trump, who defended his answer in an interview with Bill O’Reilly released on February 6) that “There are a lot of killers. You think our country’s so innocent?” After Comey criticized that part of the answer, Trump, “clearly noticed I had directly criticized him.” (h/t TC for reminding me to add this.) Since Yates had told McGahn how they knew Flynn had lied, Priebus’ question about a FISA order suggests the White House was trying to find out whether the collection was just incidental, or whether both sides of all Flynn’s conversations would have been picked up.

On February 9, the WaPo reported that Flynn had discussed sanctions, in spite of public denials from the White House that he had.

National security adviser Michael Flynn privately discussed U.S. sanctions against Russia with that country’s ambassador to the United States during the month before President Trump took office, contrary to public assertions by Trump officials, current and former U.S. officials said.

Flynn’s communications with Russian Ambassador Sergey Kislyak were interpreted by some senior U.S. officials as an inappropriate and potentially illegal signal to the Kremlin that it could expect a reprieve from sanctions that were being imposed by the Obama administration in late December to punish Russia for its alleged interference in the 2016 election.

Flynn on Wednesday [February 8] denied that he had discussed sanctions with Kislyak. Asked in an interview whether he had ever done so, he twice said, “No.”

On Thursday [February 9], Flynn, through his spokesman, backed away from the denial. The spokesman said Flynn “indicated that while he had no recollection of discussing sanctions, he couldn’t be certain that the topic never came up.”

Officials said this week that the FBI is continuing to examine Flynn’s communications with Kislyak. Several officials emphasized that while sanctions were discussed, they did not see evidence that Flynn had an intent to convey an explicit promise to take action after the inauguration.

In addition to tracking Flynn’s changing claims, it also noted that on January 15, Mike Pence had denied both any discussion of sanctions in the December call and discussions with Russia during the campaign.

On February 10, Trump was asked by reporters about Flynn’s answer. Trump played dumb: “I don’t know about that. I haven’t seen it. What report is that? I haven’t seen that. I’ll look into that.” (h/t TC)

Presumably, Mueller wants to know how surprised Trump was about this story (which actually builds on whether McGahn told him about the Yates conversation). But given Trump’s earlier question about FBI leaks, I also wonder whether Mueller knows that Trump knew this was coming. That is, some of the leaks may have come from closer to the White House, as an excuse to fire Flynn, using the same emphasis that the story (and Yates) had: the claim that Flynn had lied to Pence.

Except Mueller probably knows that the effort to soothe Russia’s concerns about sanctions made in December were a surprise to few top aides in the White House, least of all Trump.

February 13, 2017: How was the decision made to fire Mr. Flynn on Feb. 13, 2017?

We have remarkably little reporting on how and why Flynn was actually fired — mostly just the cover story that it was because Flynn lied to Pence — though after Flynn flipped last year, Trump newly claimed he had to fire Flynn because he lied to the FBI (something that, if the claims about the original 302 are correct, FBI hadn’t concluded at the time Trump fired him).

The thing is, neither story makes sense. It’s virtually certain that many people in the White House knew what Flynn had said to Sergey Kislyak back in December 2016; Tom Bossert was included in KT McFarland’s emails to Mike Flynn, and he sent it to Reince Priebus, Stephen Bannon, Sean Spicer, and at least two other people. All of those people, save Bossert, are known to have provided testimony to Mueller’s team.

But it also makes little sense to argue that Trump had to fire Flynn because he lied. If so, he would have done so either immediately, before the Putin meeting, or much later, after FBI actually came to the conclusion he had lied.

One logical explanation is that Flynn lied because he was told to lie, in an effort to continue to hide what the Trump Administration was doing in the transition period to pay off its debts to Russia. But faced with the prospect that the FBI would continue to investigate Flynn, Trump cut him out in an effort to end the investigation. Which explains why things with Comey proceeded the way they did.

Update: This post has been updated with new details surrounding February 8-10 and newly unredacted details from the HPSCI report.

RESOURCES

These are some of the most useful resources in mapping these events.

Mueller questions as imagined by Jay Sekulow

CNN’s timeline of investigative events

Majority HPSCI Report

Minority HPSCI Report

Trump Twitter Archive

Jim Comey March 20, 2017 HPSCI testimony

Comey May 3, 2017 SJC testimony

Jim Comey June 8, 2017 SSCI testimony

Jim Comey written statement, June 8, 2017

Jim Comey memos

Sally Yates and James Clapper Senate Judiciary Committee testimony, May 8, 2017

NPR Timeline on Trump’s ties to Aras Agalarov

George Papadopoulos complaint

George Papadopoulos statement of the offense

Mike Flynn statement of the offense

Internet Research Agency indictment

Text of the Don Jr Trump Tower Meeting emails

Jared Kushner’s statement to Congress

Erik Prince HPSCI transcript

THE SERIES

Part One: The Mueller Questions Map Out Cultivation, a Quid Pro Quo, and a Cover-Up

Part Two: The Quid Pro Quo: a Putin Meeting and Election Assistance, in Exchange for Sanctions Relief

Part Three: The Quo: Policy and Real Estate Payoffs to Russia

Part Four: The Quest: Trump Learns of the Investigation

Part Five: Attempting a Cover-Up by Firing Comey

Part Six: Trump Exacerbates His Woes

The Quo: Policy and Real Estate Payoffs to Russia (Part Three)

In this series, I’m analyzing the Mueller questions written down by Jay Sekulow and leaked to the NYT to show how they set up a damning investigative framework. This post laid out how the Agalarovs had been cultivating Trump for years, in part by dangling real estate deals and close ties with Vladimir Putin. This post shows how during the election, the Russians and Trump danced towards a quid pro quo agreement, with the Russians offering dirt on Hillary Clinton in exchange for a commitment to sanctions relief, with some policy considerations thrown in.

Here, I’ll lay out the questions that show Mueller’s interest in how Trump and the Russians began settling the quid pro quo during the transition. To the extent these are quid pro quo payoffs, and not simply Logan Act violations, they’d be key elements in a conspiracy.

The quo: policy payoffs

Immediately after the election, the Russians called to collect on their winnings.

According to Jared Kushner’s statement to Congress, the day after the election, Putin sent a congratulatory email to the campaign. In response, he reopened communications with Sergey Kislyak. A day later, the Agalarovs emailed congratulations to let the Trumps know they were “always at your disposal here in Russia.”

“Don!!! Amazing run and a glorious victory!!!!! Congratulations to you and your dad, we are proud and happy for you !!!!!! Always at your disposal here in Russia

On November 28, Rob Goldstone sent an email passing on sanctions materials to Trump’s assistant Rhona Graff.

“Aras Agalarov has asked me to pass on this document in the hope it can be passed on to the appropriate team.

Natalia Veselnitskaya, too, followed up on her Magnitsky request.

In addition to the sanctions demand, according to Jared, the Russians emphasized policy concessions on Syria. A retracted Brian Ross story said that emphasis started even before the election, but in reality the outreach happened almost immediately after the election.

December 1, 2016: What did you know during the transition about an attempt to establish back-channel communication to Russia, and Jared Kushner’s efforts?

On December 1, Jared and Flynn met with Sergey Kislyak. Jared reportedly asked for the Russians to provide a secure channel. Jared claims the idea for a secure channel came from Kislyak (Mueller likely has intercepts that clarify Kislyak’s version of the story). But he makes it clear the back channel pertained to Syrian policy.

[Kislyak] especially wanted to address U.S. policy in Syria, and that he wanted to convey information from what he called his “generals.” He said he wanted to provide information that would help inform the new administration. He said the generals could not easily come to the U.S. to convey this information and he asked if there was a secure line in the transition office to conduct a conversation. General Flynn or I explained that there were no such lines. I believed developing a thoughtful approach on Syria was a very high priority given the ongoing humanitarian crisis, and I asked if they had an existing communications channel at his embassy we could use where they would be comfortable transmitting the information they wanted to relay to General Flynn. The Ambassador said that would not be possible and so we all agreed that we would receive this information after the Inauguration.

Given how often Kushner and Trump talk face to face, this may be one of the questions about which Mueller has the least certainty of the answer. But we know that in Jared’s interview with Mueller’s prosecutors, they focused on that meeting. They also asked if he had information that exonerated Flynn; his answers (and Flynn’s reported unhappiness that Trump had proven disloyal) led immediately to Flynn’s plea deal, so for some reason Mueller must believe Flynn over Kushner.

Mueller’s interest in how much Trump knew about Kushner’s pursuit of a back channel is important for several reasons. It provides evidence that Kushner (and the Trump Administration generally) was engaged in what I call ConFraudUs on foreign policy, pretending to pursue US foreign policy that actually served other interests. And Kushner’s pursuit, possibly at Trump’s direction, of unmonitored channels is important background to Trump’s response as it became clear the FBI had collected evidence of wrong-doing during the transition.

Curiously, Sekulow’s version of these questions does not include one about Kushner’s December 13 meeting with Sergey Gorkov, the head of the sanctioned Vnesheconombank.

December 29, 2016: What did you know about phone calls that Mr. Flynn made with the Russian ambassador, Sergey I. Kislyak, in late December 2016?

According to Flynn’s Statement of Offense, as he was on the phone with Kislyak, he was coordinating closely with a transition official we know to be KT McFarland.

On or about December 29, 2016, FLYNN called a senior official of the Presidential Transition Team (“PTT official”), who was with other senior ·members of the Presidential Transition Team at the Mar-a-Lago resort in Palm Beach, Florida, to discuss what, if anything, to communicate to the Russian Ambassador about the U.S. Sanctions. On that call, FLYNN and the PTT official discussed the U.S. Sanctions, including the potential impact of those sanctions on the incoming administration’s foreign policy goals. The PIT official and FLYNN also discussed that the members of the Presidential Transition Team at Mar-a-Lago did not want Russia to escalate the situation.

Immediately after his phone call with the PTT official, FLYNN called the Russian Ambassador and requested that Russia not escalate the situation and only respond to the U.S. Sanctions in a reciprocal manner.

Shortly after his phone call with the Russian Ambassador, FLYNN spoke with the PTT official to report on the substance of his call with the Russian Ambassador, including their discussion of the U.S. Sanctions.

On or about December 30, 2016, Russian President Vladimir Putin released a statement indicating that Russia would not take retaliatory measures in response to the U.S. Sanctions at that time.

On or about December 31, 2016, the Russian Ambassador called FLYNN and informed him that Russia had chosen not to retaliate in response to FL YNN’s request.

After his phone call with the Russian Ambassador, FLYNN spoke with senior members of the Presidential Transition Team about FL YNN’s conversations with the Russian Ambassador regarding the U.S. Sanctions and Russia’s decision not to escalate the situation.

We know Mueller has an email — one the transition probably didn’t turn over to Congress in voluntary discovery, and about which they may have intended to invoke executive privilege — that captures part of the discussion about sanctions. Of critical importance, the transition team opposed these sanctions for two reasons: 1) because they wanted better relations with Russia and 2) because they believed that sanctioning Russia for tampering with the election created the appearance that Trump wouldn’t have won without Russia’s help.

On Dec. 29, a transition adviser to Mr. Trump, K. T. McFarland, wrote in an email to a colleague that sanctions announced hours before by the Obama administration in retaliation for Russian election meddling were aimed at discrediting Mr. Trump’s victory. The sanctions could also make it much harder for Mr. Trump to ease tensions with Russia, “which has just thrown the U.S.A. election to him,” she wrote in the emails obtained by The Times.

[snip]

Mr. Obama, she wrote, was trying to “box Trump in diplomatically with Russia,” which could limit his options with other countries, including Iran and Syria. “Russia is key that unlocks door,” she wrote.

She also wrote that the sanctions over Russian election meddling were intended to “lure Trump in trap of saying something” in defense of Russia, and were aimed at “discrediting Trump’s victory by saying it was due to Russian interference.”

“If there is a tit-for-tat escalation Trump will have difficulty improving relations with Russia, which has just thrown U.S.A. election to him,” she wrote.

In other words, Mueller has a good deal of evidence showing that Flynn’s actions were closely directed from Mar-A-Lago. He has multiple different versions from people involved about how closely Trump was involved in this direction. He also has substantial evidence that suggests that the worry about diminishing the victory idea actually comes from Trump. The question, then, aims not just to prove that Trump ordered Flynn to undermine the official policy of the United States at a time when he did not have the authority to set US foreign policy, but also to tie these orders to the response Trump took as FBI started discovering his conspiracy with the Russians.

January 11, 2017: What do you know about a 2017 meeting in Seychelles involving Erik Prince?

After Jared asked for a back channel, after UAE’s crown prince Mohamed bin Zayed al-Nahyan made an unannounced visit to Trump Tower with Jared, Flynn, and Steve Bannon in December, Erik Prince ended up at a meeting in the Seychelles set up by Nahyan with Russian Direct Investment Fund head Kirill Dmitriev and a bunch of other shady funders. On top of looking like the back channel Jared had been seeking in December, the meeting is also a logical follow-on to Jared’s meeting with Gorkov (RDIF is a somewhat less sanctioned subsidiary of Vnesheconombank).

Mueller has George Nader’s testimony about what happened at this meeting, and probably a good deal of SIGINT, which reportedly shows that Erik Prince lied in his HPSCI testimony when he claimed his meeting with Dmitriev had been a chance encounter.

On or around January 11, 2017, I traveled to the Seychelles to meet with some potential customers from the UAE for the logistics business of which I am chairman. After the meeting, they mentioned a guy I should meet who was also in town to see them, a Kyrill Dmitriev from Russia, who ran some sort of hedge fund.

I met him in the hotel bar, and we chatted on topics ranging from oil and commodity prices to how much his country wished for resumption of normal trade relations with the — relationship with the USA.

Even Prince’s testimony ties sanctions relief with policy considerations in Syria and elsewhere that countered the official policy of the US. And it likely also ties those policy considerations to the personal enrichment of people like Prince and Jared, if not Trump personally.

One note: by repeatedly pitching Trump and his associates using businesses under sanction, the Russians provided Trump with his own incentive to relieve sanctions, the opportunity for Russian investment.

Late January, 2017: What do you know about a Ukrainian peace proposal provided to Mr. Cohen in 2017?

In late January 2017, just after the inauguration, Ukrainian parliament member Andrii Artemenko met with Felix Sater and Michael Cohen to propose a peace deal for Ukraine that would have Ukrainian voters endorse a long term lease of Crimea for Russia and undermine the government  of Petro Poroshenko. Cohen passed on the plan to Flynn just before he resigned. Sater — who claims to be cooperating with Mueller — said that the deal was endorsed by Russia.

Given Sater’s involvement in brokering both the Trump Tower deal and this with Cohen, it’s possible that this deal is another thing that ties policy concessions to Russia with business deals for Trump. Mueller will have both Sater and Flynn’s version of this story. Any records pertaining to it seized by SDNY will be preserved until such time as Mueller asks for them.

RESOURCES

These are some of the most useful resources in mapping these events.

Mueller questions as imagined by Jay Sekulow

CNN’s timeline of investigative events

Majority HPSCI Report

Minority HPSCI Report

Trump Twitter Archive

Jim Comey March 20, 2017 HPSCI testimony

Comey May 3, 2017 SJC testimony

Jim Comey June 8, 2017 SSCI testimony

Jim Comey written statement, June 8, 2017

Jim Comey memos

Sally Yates and James Clapper Senate Judiciary Committee testimony, May 8, 2017

NPR Timeline on Trump’s ties to Aras Agalarov

George Papadopoulos complaint

George Papadopoulos statement of the offense

Mike Flynn statement of the offense

Internet Research Agency indictment

Text of the Don Jr Trump Tower Meeting emails

Jared Kushner’s statement to Congress

Erik Prince HPSCI transcript

THE SERIES

Part One: The Mueller Questions Map Out Cultivation, a Quid Pro Quo, and a Cover-Up

Part Two: The Quid Pro Quo: a Putin Meeting and Election Assistance, in Exchange for Sanctions Relief

Part Three: The Quo: Policy and Real Estate Payoffs to Russia

Part Four: The Quest: Trump Learns of the Investigation

Part Five: Attempting a Cover-Up by Firing Comey

Part Six: Trump Exacerbates His Woes

“What Did the President Do and What Do His Lawyers Claim He Was Thinking?”

Ever since Richard Nixon, the big question one asks of presidential involvement in scandals is about the cover-up: “what did the president know and when did he know it?” Not so Trump in the investigation into his campaign’s conspiracy with Russia.

Robert Mueller’s prosecutors are already asking about the president’s actions: “What did the president do and what was he thinking when he did it?” WaPo describes the Trump team’s effort to dodge such questions by offering a summary of what his lawyers claim he did and was thinking.

The written materials provided to Mueller’s office include summaries of internal White House memos and contemporaneous correspondence about events Mueller is investigating, including the ousters of national security adviser Michael Flynn and FBI Director James B. Comey. The documents describe the White House players involved and the president’s actions.

Special counsel investigators have told Trump’s lawyers that their main questions about the president fall into two simple categories, the two people said: “What did he do?” and “What was he thinking when he did it?”

Trump’s lawyers expect Mueller’s team to ask whether Trump knew about Flynn’s communications with Russian Ambassador Sergey Kislyak during the presidential transition, for example, and what instructions, if any, the president gave Flynn about the contact, according to two advisers.

Trump said in February that he fired Flynn because he had misled Vice President Pence about his contact with Kislyak. He said he fired Comey because he had mishandled an investigation of Democratic presidential candidate Hillary Clinton.

CNN’s version of the same story seems to suggest such a summary is something they’ve already done, that what was new about last week was a sit-down with Watergate lawyer James Quarles.

As President Donald Trump’s reaction to special counsel Robert Mueller grows more irate by the day, attorneys on both sides sat down last week in a rare face-to-face discussion about the topics investigators could inquire of the President. It was the first in-person meeting after several weeks of informal discussions between the two sides, according to two sources familiar with the talks.

Mueller’s team added granularity to the topics it originally discussed with the defense team months ago, like the firing of FBI Director James Comey, according to one of the sources.

[snip]

The President’s attorneys sent the special counsel a summary of evidence they had turned over to prosecutors already, a practice they’ve followed multiple times throughout the investigation. Mueller himself didn’t attend the meeting. But prosecutors including former Watergate prosecutor James Quarles III gave Trump’s lawyers enough detail that the President’s team wrote a memo with possible questions they expect to be asked of him.

In addition to Trump’s involvement in directing Mike Flynn to ask Sergey Kislyak to defer any response to the new sanctions imposed in December 2016, CNN says that Jeff Sessions’ involvement in firing Comey is also on the list of questions they have for the president.

This time around, for instance, the prosecutors said they would ask about Attorney General Jeff Sessions’ involvement in the Comey dismissal and what Trump knew about national security adviser Michael Flynn’s phone calls with then-Russian Ambassador Sergey Kislyak in late December 2016.

[snip]

CNN reported in January that Mueller’s team had given the President’s lawyers general topics for an interview, such as Trump’s request that Comey drop the investigation into Flynn, his reaction to Comey’s May 2017 testimony on Capitol Hill, and Trump’s contact with intelligence officials about the Russia investigation.

A source familiar with the talks said more recent discussions about Trump’s interview also touched on Sessions and Flynn. Sessions previously spoke to Mueller’s team while investigators looked into possible obstruction of justice. And during the transition, Flynn had spoken to Kisklyak about sanctions and the United Nations, then lied to investigators about the calls before Trump fired him. Flynn pleaded guilty to lying to investigators and agreed to cooperate with Mueller in December.

The questions about Sessions and Flynn are both interesting because of recent events.

First, CNN’s story reporting an interest in Sessions’ role in Comey’s firing came out after the report that Sessions and the president traveled separately yesterday to the opioid event they appeared at together. I found that odd at first — Trump should be happy that Sessions fired Andy McCabe for him last Friday. Perhaps Trump is mad that by firing McCabe, Sessions and Rod Rosenstein have taken one excuse he could use to fire both of them off the table. Or perhaps Sessions has realized that he needs to avoid talking to Trump about his own conversations with prosecutors. But if Sessions has become a witness against Trump and the discussions last week made that clear, then it puts the president in a particularly exquisite bind, because the Senate would not take kindly if Trump fired one of their own after he went to such lengths to fire McCabe.

The separate flight is all the more interesting given the news that three witnesses have testified that Sessions was actually more supportive of Trump’s outreach to Russia than he himself (and JD Gordon) has claimed.

And given Mueller’s apparent efforts to confirm what has long been obvious — that KT McFarland was relaying Trump’s orders to Flynn on what to say to Kislyak back in December 2016, consider Mike Flynn’s odd campaign appearance last Friday. Amid stories that he’s beginning to rebuild his life, Flynn started a campaign speech for a right wing nut job attempting to unseat Maxine Waters by alluding to his unfair treatment in an unfair process.

“I’m not here to complain about who has done me wrong or how unfair I’ve been treated or how unfair the entire process has been,” Flynn said to a small audience, which laughed at his remark, though Flynn did not.

Flynn then went on to reflect his role in getting Trump elected.

“All of us are imperfect,” he said. “Heck, I used to introduce … Trump during our various campaign stops as an imperfect candidate. I mean, clearly, he’s not a traditional politician. But his ‘Make America Great Again’ philosophy energized the country enough to get him overwhelmingly elected.”

“Whether we like it or not, that’s what happened,” Flynn added.

Particularly given the others who’ve endorsed Omar Navarro, like Roger Stone and Alex Jones, you’d think this was all a dig at Mueller, and it may well be. Except that Jared Kushner had an opportunity to exonerate Flynn last fall; his failure to do so is what led Flynn to flip, leading to these questions about whether Trump ordered Flynn to ask the Russians to delay their response to sanctions.

Now, any confirmation that the president ordered Flynn to ask Kislyak to delay his response on one level makes Flynn’s effort less damning: it’s one thing for an incoming National Security Advisor to freelance in trying to undermine the incumbent’s policies. It’s another thing for the incoming president to do so.

But contrary to the obstruction narrative that every fool has been repeating, Mueller is not just interested in how and why Jim Comey got fired. He’s also interested in why Trump fired Flynn. That question becomes more pressing if the president ordered Flynn to chat up Kislyak, and if the president ordered Flynn to lie to hide what he had done (leading to his lie to the FBI). Why not just admit that that was incoming policy? Why not just admit to the FBI that Flynn was acting on Trump’s orders? Instead of doing that, Flynn lied and Trump tried instead to thwart the investigation into Flynn, up to and including firing Comey.

Why fire Comey just before the meeting with the Russians and then brag about it to them?

For months, credulous journalists have been distinguishing between the president’s presumed obstruction and the substantive conspiracy others were being accused of, as if no Trump flunkies were involved in the cover-up and Trump was walled off from the conspiracy. But that distinction has never held up, especially not given the interest in why Trump fired Flynn.

“What did the president do and what the fuck was he thinking when he did it?” are questions not about the cover-up, but about the substantive crime.

And that’s the question Mueller’s Watergate prosecutor has now posed to the president’s lawyers.

The Silent Cast of Characters in the Very Noisy Recent Mueller Moves

A fuck-ton has happened in the Mueller investigation already this month. Amid the noisy pleas and indictments, we’ve seen indications of hidden cooperation from a range of people, cooperation that may point to where Mueller’s next steps are.

Here, arranged by the date of the development, are hints at who either was or soon is likely to be talking to Mueller’s team.

February 1: In a proffer to Mueller’s team, Rick Gates lied about a March 19, 2013 meeting with Paul Manafort, Vin Weber, and Dana Rohrabacher.

Rohrabacher’s statement in response to the guilty plea is inconsistent with the version laid out in the plea, suggesting he’s not the means by which Mueller’s team learned it was a lie.

After the guilty plea on Friday, a spokesman for Rohrabacher, who has sought better relations with Russia, said: “As the congressman has acknowledged before, the meeting was a dinner with two longtime acquaintances –- Manafort and Weber –- from back in his White House and early congressional days.”

“The three reminisced and talked mostly about politics,” the spokesman said. “The subject of Ukraine came up in passing. It is no secret that Manafort represented Viktor Yanukovych’s interests, but as chairman of the relevant European subcommittee, the congressman has listened to all points of view on Ukraine.”

This suggests someone else provided the version of the meeting the government included in the plea. While it’s possible the other version came from Gates’ former lawyers, it’s more likely the version came from someone else. Vin Weber is the most likely source of that information.

Back in August 2016, as news of the secret ledger was breaking,Weber suggested he may have been misled by Manafort, both as to the purpose of his lobbying and regarding the need to register as a foreign agent for Ukraine. If he felt that way in August 2016, I imagine he came to feel that even more strongly as Manafort’s legal woes intensified.

February 9: Returning a call from John Kelly but speaking to Don McGahn, Rod Rosenstein spoke of “important new information” about Jared Kushner that will delay his clearance.

Given all the evidence that suggests Jared faces very significant exposure in this investigation, this new information could be any number of things. But two possibilities are likely. First, it might reflect Jared’s January 3 disclosure of additional business interests in yet another update to his SF-86, or his family’s increasing debt over the last year.

More likely, it reflects things the government has learned from Mike Flynn (who has an incentive to burn Jared, given that the President’s son-in-law was asked for and didn’t provide exonerating information tied to Flynn’s own lies to the FBI). Indeed, that seems to be one theory of those who reported on this phone call.

Kushner’s actions during the transition have been referenced in the guilty plea of former Trump national security adviser Michael Flynn, who admitted he lied to the FBI about contacts with then-Russian Ambassador Sergey Kislyak. Prosecutors said Flynn was acting in consultation with a senior Trump transition official, whom people familiar with the matter have identified as Kushner.

All that said, there are two more possibilities. Given that she appears to have lied to the Senate Foreign Relations Committee in her confirmation process, KT McFarland would be an obvious follow-up interview after the Mike Flynn plea; she asked Trump to withdraw her nomination to be Ambassador to Singapore on February 3. And February 9 might be (though probably isn’t, quite) late enough to catch the first sessions of Steve Bannon’s 20 hours of interviews with Mueller, and Bannon has long had it in for Jared.

February 14: Alex Van der Zwaan got caught and pled guilty to lying about communications he had with Rick Gates, Konstantin Kilimnik, and Greg Craig in September 2016. On top of whatever he had to say to prosecutors between his second interview on December 1 and his plea on February 14, both Craig and Skadden Arps have surely provided a great deal of cooperation before and since September 2016. (As I was finishing this, NYT posted this story that details some, but not all, of that cooperation.)

February 16: As I noted in my post on the Internet Research Agency indictment, Rod Rosenstein was quite clear: “There is no allegation in the indictment that any American was a knowing participant in the alleged unlawful activity.” That said, there are three (presumed) Americans who, both the indictment and subsequent reporting make clear, are treated differently in the indictment than all the other Americans cited as innocent people duped by Russians: Campaign Official 1, Campaign Official 2, and Campaign Official 3. We know, from CNN’s coverage of Harry Miller’s role in building a cage to be used in a fake “jailed Hillary” stunt, that at least some other people described in the indictment were interviewed — in his case, for six hours! — by the FBI. But no one else is named using the convention to indicate those not indicted but perhaps more involved in the operation. Furthermore, the indictment doesn’t actually describe what action (if any) these three Trump campaign officials took after being contacted by trolls emailing under false names.

On approximately the same day, Defendants and their co-conspirators used the email address of a false U.S. persona, [email protected], to send an email to Campaign Official 1 at that donaldtrump.com email account, which read in part:

Hello [Campaign Official 1], [w]e are organizing a state-wide event in Florida on August, 20 to support Mr. Trump. Let us introduce ourselves first. “Being Patriotic” is a grassroots conservative online movement trying to unite people offline. . . . [W]e gained a huge lot of followers and decided to somehow help Mr. Trump get elected. You know, simple yelling on the Internet is not enough. There should be real action. We organized rallies in New York before. Now we’re focusing on purple states such as Florida.

The email also identified thirteen “confirmed locations” in Florida for the rallies and requested the campaign provide “assistance in each location.”

[snip]

Defendants and their co-conspirators used the false U.S. persona [email protected] account to send an email to Campaign Official 2 at that donaldtrump.com email account.

[snip]

On or about August 20, 2016, Defendants and their co-conspirators used the “Matt Skiber” Facebook account to contact Campaign Official 3.

Again, the DOJ convention of naming makes it clear these people have not been charged with anything. But we know from other Mueller indictments that those specifically named (which include the slew of Trump campaign officials named in the George Papadopoulos plea, KT McFarland and Jared Kushner in the Flynn plea, Kilimnik in the Van der Zwaan plea, and the various companies and foreign leaders that did Manafort’s bidding, including the Podesta Group and Mercury Public Affairs in his indictment) may be the next step in the investigation. As a reminder: Florida Republicans are those who most tangibly can be shown to have benefitted from Russia’s hack-and-leak, given that Guccifer 2.0 leaked a slew of Democratic targeting data for the state. (In perhaps related news, this week Tom Rooney became the third Florida Republican member of Congress to announce his retirement this cycle, which is all the more interesting given that he’s been involved in the HPSCI investigation into Russian tampering.)

February 23: Manafort’s superseding indictment (a version of which was originally filed February 16) added the description of the Hapsburg Group for former European officials who lobbied at the direction (to some degree via cut-outs) of Manafort.

MANAFORT explained in an “EYES ONLY” memorandum created in or about June 2012 that the purpose of the “SUPER VIP” effort would be to “assemble a small group of high-level European highly influencial [sic] champions and politically credible friends who can act informally and without any visible relationship with the Government of Ukraine.” The group was managed by a former European Chancellor, Foreign Politician A, in coordination with MANAFORT.

It may be that the government only recently obtained this document (meaning it was not among the 590,000 pages of documents obtained and turned over to Manafort in discovery thus far). But it’s likely this also reflects further testimony. Former Austrian Chancellor Alfred Gusenbauer denied he is Foreign Politician A to BBC, though that may be a non-denial denial tied to his claim he wasn’t directed by Manafort and only met him a few times (this Austrian story suggests only he doesn’t remember what American or English firm paid him). NYT reported that Gusenbauer’s lobbying during the relevant time period was registered under Mercury Public Affairs. This is another piece of evidence suggesting the group — and Vin Weber personally — has been cooperating since the original indictment.

Note, I assume that Mercury/Weber’s cooperation has been mirrored by Tony Podesta’s.

New Right Hook: Mike Flynn Lied When He Admitted to a Judge He Lied to the FBI

Apparently, the latest Grassley-Graham effort to spin a very understandable reaction to the discovery that the incoming National Security Advisor might be compromised by Russia — to have a meeting about whether that requires a change in the government’s investigative approach and then memorialize the meeting — as a Christopher Steele plots is not an isolated event. To accompany the Grassley-Graham effort to obscure, the right wing is now seeing a conspiracy, best captured in this Byron York piece with follow-ups elsewhere, in Mike Flynn’s guilty plea.

At issue is leaked March 2017 testimony from Jim Comey (in a piece complaining about the leak of Flynn’s FISA intercepts) that the FBI agents who interviewed Flynn on January 24, 2017 believed any inaccuracies in Flynn’s interview with the FBI were unintentional.

In March 2017, then-FBI Director James Comey briefed a number of Capitol Hill lawmakers on the Trump-Russia investigation.

[snip]

According to two sources familiar with the meetings, Comey told lawmakers that the FBI agents who interviewed Flynn did not believe that Flynn had lied to them, or that any inaccuracies in his answers were intentional. As a result, some of those in attendance came away with the impression that Flynn would not be charged with a crime pertaining to the Jan. 24 interview.

From that, York spins out a slew of laughable claims: Mike Flynn would have no reason to address the FBI amid swirling coverage of lies about Russian ties! The Deputy Attorney General “sends” FBI agents to conduct interviews! DOJ “effectively gave” Jim Comey authority to decide Hillary’s fate but then fired him for usurping that authority! They lead up to York’s theory that DOJ may have overridden the FBI agents in forcing Flynn to sign a plea admitting he made false statements.

It could be that the FBI agents who did the questioning were overruled by Justice Department officials who came up with theories like Flynn’s alleged violation of the Logan Act or his alleged vulnerability to blackmail.

[snip]

To some Republicans, it appears the Justice Department used a never-enforced law and a convoluted theory as a pretext to question Flynn — and then, when FBI questioners came away believing Flynn had not lied to them, forged ahead with a false-statements prosecution anyway. The Flynn matter is at the very heart of the Trump-Russia affair, and there is still a lot to learn about it.

Along the way, York feigns apparent ignorance of everything he knows about how criminal investigations work.

For example, York pretends to be unaware of all the pieces of evidence that have surfaced since that time that have changed the context of Flynn’s January 24 interview. There’s the weird dinner Trump invited Comey to on January 27, a day after Sally Yates first raised concerns about the interview with White House Counsel Don McGahn, where Trump told Comey “I need loyalty, I expect loyalty.” There’s the more troubling meeting on February 14, where (after asserting that Flynn had indeed lied to Mike Pence) Trump asked Comey to drop the Flynn investigation.

He repeated that Flynn hadn’t done anything wrong on his calls with the Russians, but had misled the Vice President. He then said, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.”

There’s the March 30 phone call in which the President complained about the “cloud” of the Russian investigation. There’s the April 11 phone call where the President complained about that “cloud” again, and asked for public exoneration. There’s the newly reported Don McGahn call following that conversation, to Dana Boente asking for public exoneration. There’s Comey’s May 9 firing, just in time for Trump to tell Russians on May 10 that firing that “nut job” relieved pressure on him. There’s the letter Trump drafted with Stephen Miller’s help that made it clear Comey was being fired because of the Russian investigation.

Already by the time of Comey’s firing, the White House claim that Mike Flynn got fired because he lied about his conversations to Sergey Kislyak to Mike Pence, was falling apart.

Then, in August, the Mueller team obtained the transition emails that transition lawyers had withheld from congressional requests (and therefore from Mueller), including those of Flynn himself, Jared Kushner, and KT McFarland. The transition would go on to squawk that these emails, which didn’t include Trump and dated to before Trump became President, were subject to executive privilege, alerting Mueller that the emails would have been withheld because the emails (some sent from Mar-A-Lago) reflected the involvement of Trump. Not to mention that the emails tied conversations about Russia to the “thrown election.”

Then there’s Jared Kushner’s interview with Mueller’s team in the weeks before Mike Flynn decided to plead guilty. At it, prosecutors asked Jared if he had any information that might exculpate Flynn.

One source said the nature of this conversation was principally to make sure Kushner doesn’t have information that exonerates Flynn.

There were reports that Flynn felt like he had been sold out just before he flipped, and I would bet this is part of the reason why. In addition to instructions regarding the sanction calls with Kislyak, which were directed by KT McFarland, Flynn’s statement of offense describes someone we know to be Kushner directing Flynn to call countries, including Russia, to try to persuade them to avoid a vote on Israeli West Bank settlements.

On or about December 22, 2016, a very senior member of the Presidential Transition Team directed FLYNN to contact officials from foreign governments, including Russia, to learn where each government stood on the resolution and to influence those governments to delay the vote or defeat the resolution.

Granted, Mueller’s team didn’t make the point of the lies as obvious as they did with the George Papadopoulos plea, where they made clear Papadopoulos lied to hide that he learned of the “dirt” on Hillary in the form of emails after he started on the campaign and whether he told the campaign about those emails (not to mention that he had contacts with Ivan Timofeev).

Mueller’s not telling us why Flynn’s lies came to have more significance as Mueller collected more and more evidence.

But what they make clear is that the significance of Flynn’s lies was not, as it first appeared, that he was trying to hide the subject of the calls from Mike Pence. I mean, maybe he did lie to Pence about those calls. But discussions about how to work with the Russians were not secret; they included at least Kushner, McFarland, Tom Bossert, Reince Priebus, Steve Bannon, and Sean Spicer. Some of those conversations happened with McFarland emailing while at Mar-A-Lago with the President-Elect.

So given the weight of the evidence collected since, Flynn’s lies now appear neither an effort to avoid incriminating himself on Logan Act charges, nor an effort to cover up a lie he told others in the White House, but the opposite. His lies appear to have hidden how broadly held the Russian discussions were within the transition team, not to mention that he was ordered to make the requests he did, possibly by people relaying orders from Trump, rather than doing them on his own.

That, by itself, doesn’t make the Flynn conversations (as distinct from the lies) illegal. But it means Trump went to great lengths to try to prevent Flynn from suffering any consequences for lying to hide the degree to which negotiations with Russia during the transition period were the official policy of the Trump team. And when Trump (or rather, his son-in-law) stopped protecting Flynn on that point, Flynn decided to admit to a judge that he had been knowingly lying.

It doesn’t take a conspiracy to realize that the FBI Agents who interviewed Flynn in January had none of the evidence since made available largely because Trump tried so hard to protect Flynn that he fired his FBI Director over it. It takes looking at the evidence, which makes it clear why those false statements looked very different as it became clear Flynn, after acting on Trump transition team instructions, got sold out as other senior Trump officials started trying to protect themselves.

Tom Bossert Brings You … Axis of CyberEvil!

I was struck, when reviewing the NYT article on the KT McFarland email, how central Homeland Security Czar Tom Bossert was to the discussion of asking Russia not blow off Obama’s Russia sanctions.

“Key will be Russia’s response over the next few days,” Ms. McFarland wrote in an email to another transition official, Thomas P. Bossert, now the president’s homeland security adviser.

[snip]

Mr. Bossert forwarded Ms. McFarland’s Dec. 29 email exchange about the sanctions to six other Trump advisers, including Mr. Flynn; Reince Priebus, who had been named as chief of staff; Stephen K. Bannon, the senior strategist; and Sean Spicer, who would become the press secretary.

[snip]

Mr. Bossert replied by urging all the top advisers to “defend election legitimacy now.”

[snip]

Obama administration officials were expecting a “bellicose” response to the expulsions and sanctions, according to the email exchange between Ms. McFarland and Mr. Bossert. Lisa Monaco, Mr. Obama’s homeland security adviser, had told Mr. Bossert that “the Russians have already responded with strong threats, promising to retaliate,” according to the emails.

There Tom Bossert was, with a bunch of political hacks, undercutting the then-President as part of an effort to “defend election legitimacy now.”

Which is one of the reasons I find Bossert’s attribution of WannaCry to North Korea — in a ridiculously shitty op-ed — so sketchy now, as Trump needs a distraction and contemplates an insane plan to pick a war with North Korea.

The guy who — well after it was broadly known to be wrong — officially claimed WannaCry was spread by phishing is now offering this as his evidence that North Korea is the culprit:

We do not make this allegation lightly. It is based on evidence.

A representative of the government whose tools created this attack, said this without irony.

The U.S. must lead this effort, rallying allies and responsible tech companies throughout the free world to increase the security and resilience of the internet.

And the guy whose boss has, twice in the last week, made googly eyes at Vladimir Putin said this as if he could do so credibly.

As we make the internet safer, we will continue to hold accountable those who harm or threaten us, whether they act alone or on behalf of criminal organizations or hostile nations.

Much of the op-ed is a campaign ad falsely claiming a big break with the Obama Administration.

Change has started at the White House. President Trump has made his expectations clear. He has ordered the modernization of government information-technology to enhance the security of the systems we run on behalf of the American people. He continued sanctions on Russian hackers and directed the most transparent and effective government effort in the world to find and share vulnerabilities in important software. We share almost all the vulnerabilities we find with developers, allowing them to create patches. Even the American Civil Liberties Union praised him for that. He has asked that we improve our efforts to share intrusion evidence with hacking targets, from individual Americans to big businesses. And there is more to come.

A number of the specific items Bossert pointed to to claim action are notable for the shoddy evidence underlying them, starting with the Behzad Mesri case and continuing to Kaspersky — which has consistently had more information on the compromises we blame it for than the US government.

When we must, the U.S. will act alone to impose costs and consequences for cyber malfeasance. This year, the Trump administration ordered the removal of all Kaspersky software from government systems. A company that could bring data back to Russia represents an unacceptable risk on federal networks. Major companies and retailers followed suit. We brought charges against Iranian hackers who hacked several U.S. companies, including HBO. If those hackers travel, we will arrest them and bring them to justice. We also indicted Russian hackers and a Canadian acting in concert with them. A few weeks ago, we charged three Chinese nationals for hacking, theft of trade secrets and identity theft. There will almost certainly be more indictments to come.

The Yahoo case, which is backed by impressive evidence, was based on evidence gathered under Obama, from whose Administration Bossert claims to have made a break.

And this kind of bullshit — in an op-ed allegedly focused on North Korea — is worthy of David Frum playing on a TRS-80.

Going forward, we must call out bad behavior, including that of the corrupt regime in Tehran.

Especially ending as it does with a thinly disguised call for war.

As for North Korea, it continues to threaten America, Europe and the rest of the world—and not just with its nuclear aspirations. It is increasingly using cyberattacks to fund its reckless behavior and cause disruption across the world. Mr. Trump has already pulled many levers of pressure to address North Korea’s unacceptable nuclear and missile developments, and we will continue to use our maximum pressure strategy to curb Pyongyang’s ability to mount attacks, cyber or otherwise.

I mean, maybe dirt poor North Korea really did build malware designed not to make money. But this is not the op-ed to credibly make that argument.

Why Republicans Launched the GSA Email Attack Now

I think most people are missing the significance of why the Republicans launched their attack on the GSA over the weekend (this post is a summary of what we know, with updates).

That’s true, in part, because people are misunderstanding what the Trump for America team recently learned. It’s not — as many have claimed — that they only recently learned Mueller had emails beyond what TFA had turned over to Congress and through that to Mueller. As Axios reported, “Trump officials discovered Mueller had the emails when his prosecutors used them as the basis for questions to witnesses, the sources said.” That is, Mueller has been asking questions based off these emails for months.

The timing of this complaint — not the complaint itself — is key

What TFA only discovered last week, according to their letter, at least, is how Mueller obtained them — by asking, just like prosecutors reviewing government communications in the course of investigating possible violations of the Espionage Act always do, especially if the subjects of the investigation have access to classified documents.

We discovered the unauthorized disclosures by the GSA on December 12 and 13, 2017. When we learned that the Special Counsel’s Office had received certain laptops and cell phones containing privileged materials, we initially raised our concerns with Brandon Van Grack in the Special Counsel’s Office on December 12, 2017. Mr. Van Grack confirmed that the Special Counsel’s Office had obtained certain laptops, cell phones, and at least one iPad from the GSA – but he assured us that the Special Counsel’s investigation did not recover any emails or other relevant data from that hardware. During this exchange, Mr. Van Grack failed to disclose the critical fact that undercut the importance of his representations, namely, that the Special Counsel’s Office had simultaneously received from the GSA tens of thousands of emails, including a very significant volume of privileged material, and that the Special Counsel’s Office was actively using those materials without any notice to TFA.1 Mr. Van Grack also declined to inform us of the identities of the 13 individuals whose materials were at issue.

The government has great leeway to access government communications, as Peter Strzok, the former counterintelligence FBI Agent who just had his own communications leaked and then released to the world, would probably be all too happy to tell you. All the more so given allegations that files went missing from the Transition SCIF, just as Jared Kushner was talking about back channel communications with the Russians.

So what’s new is not that Mueller had the emails (about which no one has complained before). But that he obtained the email inboxes of 13 people, including Jared, from GSA without letting the Transition do their own review of what to turn over.

Trump’s team may face obstruction charges

As I made clear here, it appears that one reason the Trump people are so angry is that Mueller has probably caught them failing to turn over emails that are absolutely material to the investigation, such as KT McFarland’s “Thrown election” email. Whoever did these document reviews may now be exposed to obstruction charges for withholding such material, which in turn would give Mueller leverage over them for their own further cooperation.

[Update: I should have said, withholding emails will only be a problem if the Transition was otherwise obligated (say, by subpoena) to turn them over. Mueller did subpoena the campaign for a similar set of emails; but since he didn’t need to from GSA, he may not have here.]

Mueller has far more damning information on Jared than Trump’s folks expected

Just as importantly, Axios explicitly said the emails include Jared Kushner’s emails (indeed, given his public claims about how many people he spoke to during the transition, I wouldn’t be surprised if his was the email box that had 7,000 emails).

As I have shown, Jared has been approaching disclosure issues (at least with Congress) very narrowly, ignoring clear requests to turn over his discussions about the topic of the investigation, and not just with the targets of it. If Mueller obtained all his emails, he’d have those “about” emails that Jared purposely and contemptuously has withheld from others.

We know that Jared is a key interim Mueller target here (and Abbe Lowell’s search for a crisis communications firm to help sure suggests Jared’s defense team knows that too). We know he felt the need to explain how he went from responding to a personalized Vladimir Putin congratulatory email on November 9 to asking Dmitri Simes for Sergei Kislyak’s name.

Take, for example, the public statement prepared for testimony to congressional committees by the president’s son-in-law and adviser Jared Kushner. There, he revealed that on the day after the election, in response to a congratulatory email from Russian President Vladimir Putin, he asked the publisher of The National Interest, Dimitri Simes, for the name of Russia’s ambassador to the United States. “On November 9, the day after the election, I could not even remember the name of the Russian ambassador,” Kushner claimed. “When the campaign received an email purporting to be an official note of congratulations from President Putin, I was asked how we could verify it was real. To do so, I thought the best way would be to ask the only contact I recalled meeting from the Russian government, which was the ambassador I had met months earlier, so I sent an email asking Mr. Simes, ‘What is the name of the Russian ambassador?’”

We also know that Mueller’s team has expressed some skepticism about Kushner’s previous public claims — and I would bet money this includes that email.

CNN recently reported, however, that in an interview conducted in the weeks before Flynn’s plea deal, “Mueller’s team asked Kushner to clear up some questions he was asked by lawmakers and details that emerged through media reports.” So Mueller’s team may now have doubts about the explanation Kushner offered for his interest in speaking with Kislyak as one of the first things he did after his father-in-law got elected.

If Mueller has all Jared’s emails and those emails disclose far more about the negotiations with all foreign powers conducted during the transition (including with Bibi Netanyahu on settlements, but obviously also with Russia), and Trump’s people recognize those emails expose Jared to serious charges, then of course they’re going to complain now, as the expectation that Mueller might soon indict Kushner grows.

Mueller has an outline of places where Trump was personally involved

Most importantly, consider what those morons laid out: they want to claim that these emails from the transition period — emails they insist were not government emails — are protected by Executive Privilege.

The legal claim is ridiculous; as I and far smarter people have noted, you don’t get Executive Privilege until you become the actual Executive on inauguration day.

But that they made the claim is telling (and really fucking stupid).

Because that tells us which emails Trump officials believe involve communications directly with Trump. The KT McFarland email, which we know was written from Mar-a-Lago, is a case in point. Did they withhold that because they believe it reflects a conversation with Trump? If so, then we know that Trump was personally involved in the orders to Mike Flynn to ask the Russians to hold off on retaliating for Obama’s sanctions. It might even mean that the language attributed to McFarland — about Russia being the key that unlocks doors, efforts to “discredit[] Trump’s victory by saying it was due to Russian interference, “thrown elections,” and Obama boxing Trump in — is actually Trump’s own language. Indeed, it does sound like stuff he says all the time.

And given that the emails include “speculation about vulnerabilities of Trump nominees, strategizing about press statements, and policy planning on everything from war to taxes,” it might even reflect Trump’s own explanations of why — for example — he couldn’t nominate Flynn to be CIA Director because of his ties to Russia and Turkey.

In the wake of his plea agreement, Flynn’s surrogate made it clear that Trump ordered him to carry out certain actions, especially with Russia. That’s likely a big reason why, in the wake of the Flynn plea, Trump’s people are now squawking that Mueller obtained these emails, emails that may lay out those orders.

Heck. These emails might even reflect Trump ordering Flynn to lie about his outreach to Russia.

Maybe that’s why Trump’s aides have promised to demand Mueller return the emails in question.

All of which is to say, there are things about these emails that explain why this attack is coming now, beyond just a generalized effort to discredit Mueller. The attack is designed to discredit specific avenues of investigation Mueller clearly has in hand. And those avenues reveal far more about the seriousness of the investigation than anything Ty Cobb is willing to claim to appease the President.

That said, the attack is probably too little, too late.

Trump Appears to Have Withheld the KT McFarland Email about the “Thrown Election”

This post explains what appears to be the real reason for the fake outrage about Mueller obtaining information from GSA: by doing so, he appears to have obtained proof that the Transition was withholding emails material to the investigation. Go to this post for a more general summary of what we know about the claim. 

Here’s the letter that Trump For America lawyer sent to Congress to cause a big hullabaloo about how Robert Mueller obtained transition period emails. I unpacked it in this Twitter thread and commented on it in an update to this post.

But this passage deserves a separate post, because it seems to go to the heart of why the Republicans are spewing propaganda like this.

Additionally, certain portions of the PTT materials the Special Counsel’s Office obtained from the GSA, including materials that are susceptible to privilege claims, have been leaked to the press by unknown persons. Moreover, the leaked records have been provided to the press without important context and in a manner that appears calculated to inflict maximum reputational damage on the PTT and its personnel, without the inclusion of records showing that PTT personnel acted properly – which in turn forces TFA to make an impossible choice between (a) protecting its legal privileges by keeping its records confidential and (b) waiving its privileges by publicly releasing records that counteract the selective leaks and misguided news reports. In short, since the GSA improperly provided them to the Special Counsel’s Office, the PTT’s privileged materials have not only been reviewed privately by the Special Counsel’s Office without notification to TFA – they have also been misused publicly.

Kory Langhofer is insinuating — without quite risking the claim — that after GSA shared certain emails with Robert Mueller’s office, “unknown persons” leaked them to the press. The insinuation is that Mueller’s team leaked them.

I can think of just one set of emails that fit this description: emails from KT McFarland that provided proof that Mike Flynn lied to the FBI about his conversations with Sergei Kislyak on December 29, 2016. The NYT quoted extensively from them in a December 2 story.

Among other things, McFarland stated in the emails that Russia “has just thrown the U.S.A. election to” Trump.

On Dec. 29, a transition adviser to Mr. Trump, K. T. McFarland, wrote in an email to a colleague that sanctions announced hours before by the Obama administration in retaliation for Russian election meddling were aimed at discrediting Mr. Trump’s victory. The sanctions could also make it much harder for Mr. Trump to ease tensions with Russia, “which has just thrown the U.S.A. election to him,” she wrote in the emails obtained by The Times.

[snip]

Mr. Obama, she wrote, was trying to “box Trump in diplomatically with Russia,” which could limit his options with other countries, including Iran and Syria. “Russia is key that unlocks door,” she wrote.

She also wrote that the sanctions over Russian election meddling were intended to “lure Trump in trap of saying something” in defense of Russia, and were aimed at “discrediting Trump’s victory by saying it was due to Russian interference.”

“If there is a tit-for-tat escalation Trump will have difficulty improving relations with Russia, which has just thrown U.S.A. election to him,” she wrote.

Contrary to Langhofer’s suggestion, NYT made some effort to mitigate the damage of McFarland’s comment seemingly confirming the Trump team knew the election had been stolen, including speaking to a White House lawyer about it.

It is not clear whether Ms. McFarland was saying she believed that the election had in fact been thrown. A White House lawyer said on Friday that she meant only that the Democrats were portraying it that way.

And while NYT’s explanation that they got the emails “from someone who had access to transition team communications” certainly could include Mueller’s team among the culprits, it could also include GSA officials themselves or — even more likely — a former Trump official with a grudge. At least three were CCed on the email in question: Bannon, Priebus, and Spicer.

Mr. Bossert forwarded Ms. McFarland’s Dec. 29 email exchange about the sanctions to six other Trump advisers, including Mr. Flynn; Reince Priebus, who had been named as chief of staff; Stephen K. Bannon, the senior strategist; and Sean Spicer, who would become the press secretary.

In other words, Langhofer uses the leak as an excuse to suggest wrong-doing by Mueller, when other possibilities are far more likely.

But consider the other implication of this: Langhofer is suggesting that this email chain (which included no named active lawyers, nor included Trump directly, though they were written in Trump’s presence at Mar a Lago) is “susceptible to privilege claims.” He is further suggesting that GSA is the only way this email could have been released (ignoring, of course, the Bannon/Priebus/Spicer) options.

If that’s right, then he’s suggesting that Trump was involved in this email chain directly. There’s no reason to believe he was CCed. But since the emails were written from Mar-a-Lago, it’s likely he was consulted in the drafting of the emails.

In addition, Langhofer is also admitting that Trump’s team didn’t release these emails directly — at least not to Congress.

Emails which couldn’t be more central to the point of Mueller’s investigation.

Did the GOP just admit that Trump withheld this email? Because if so, it suggests the “thrown election” comment is far more damning than the NYT laid out.

Update: It’s not clear whether Mueller ever tried to obtain these records via GSA (though it’s possible FBI obtained emails before the inauguration). But this, from the letter, makes it clear at least Congress had made requests, which led TFA to try to take GSA out of the loop even though SCO had a document preservation request.

In order to comply with congressional document production requests, TFA ordered from the GSA electronic copies of all PTT emails and other data. Career GSA staff initially expressed concern that providing copies of PTT emails to TFA might violate a document preservation request that the GSA had received from the Special Counsel’s Office.

Withholding this email from Congress would be particularly problematic, as McFarland testified in conjunction with her now-frozen nomination to be Ambassador to Singapore that she knew nothing about Flynn’s communications with Kislyak. h/t SS

Update: Ah, this explains how Mueller was getting emails: via voluntary production, along with everything the Transition was giving Congress. Which means the email was withheld, and this October subpoena was an attempt to see whether they’d cough it up on their own.

Special counsel Robert Mueller’s team in mid-October issued a subpoena to President Donald Trump’s campaign requesting Russia-related documents from more than a dozen top officials, according to a person familiar with the matter.

The subpoena, which requested documents and emails from the listed campaign officials that reference a set of Russia-related keywords, marked Mr. Mueller’s first official order for information from the campaign, according to the person. The subpoena didn’t compel any officials to testify before Mr. Mueller’s grand jury, the person said.

The subpoena caught the campaign by surprise, the person said. The campaign had previously been voluntarily complying with the special counsel’s requests for information, and had been sharing with Mr. Mueller’s team the documents it provided to congressional committees as part of their probes of Russian interference into the 2016 presidential election.

[snip]

Mueller’s team had previously issued subpoenas individually to several top campaign officials, including former campaign chairman Paul Manafort and former national security adviser Mike Flynn.

[Correction: I’ve been corrected on this passage, which makes it clear this is about campaign emails, not transition ones. But I assume he made parallel requests for all three phases of Trump organization.]

Update: Mueller’s spox, Peter Carr, issued a statement saying, “When we have obtained emails in the course of our ongoing criminal investigation, we have secured either the account owner’s consent or appropriate criminal process.” Given what I’ve laid out here, I actually think “C” may have been the case:

  • Subpoena to Flynn, obtain voluntary compliance for specific things as well as evidence shared with Congress prior to August
  • In August (perhaps after being alerted to withheld documents by Priebus/Spicer/Bannon/Papadopoulos?) obtain emails from GSA, technically the device owners
  • In October, subpoena for Russian-related emails from the same ~13 people

Trump Transition Team Outraged To Be Treated as Transition Team!!

This is a general post on the GOP claim Mueller improperly obtained emails from ~13 Transition officials, updated as new news comes available. This post explains what is really going on: the Transition appears to have withheld emails — including the KT McFarland one referring to the election as having been “thrown” — and Mueller obtained proof they were withholding things. 

Both Fox News and Axios have pieces reflecting the outrage!!! among Trump people that they got asked questions about emails they thought they had hidden from Mueller’s investigation. Axios reveals that Mueller obtained the full contents of 12 accounts (Reuters says 13), one including 7,000 emails, from people on the “political leadership” and “foreign-policy team;” it says it includes “sensitive emails of Jared Kushner.”

Fox reveals that a transition lawyer wrote Congress today claiming that it was unlawful for government employees to turn over emails hosted on government servers for a criminal investigation.

A lawyer for the Trump presidential transition team is accusing Special Counsel Robert Mueller’s office of inappropriately obtaining transition documents as part of its Russia probe, including confidential attorney-client communications and privileged communications.

In a letter obtained by Fox News and sent to House and Senate committees on Saturday, the transition team’s attorney alleges “unlawful conduct” by the career staff at the General Services Administration in handing over transition documents to the special counsel’s office.

Officials familiar with the case argue Mueller could have a problem relating to the 4th Amendment – which protects against unreasonable searches and seizures.

Kory Langhofer, the counsel to Trump for America, wrote in the letter that the the GSA “did not own or control the records in question.”

But, Langhofer says, Mueller’s team has “extensively used the materials in question, including portions that are susceptible to claims of privilege.”

And Axios explains that the Trump people actually sorted through this stuff. “The sources say that transition officials assumed that Mueller would come calling, and had sifted through the emails and separated the ones they considered privileged.”

I’m really looking forward to hearing the full story about this, rather than just this partisan spin. For example, I’m interested in whether Mueller realized via some means (perhaps from someone like Reince Priebus or Sean Spicer — update, or George Papadopoulos) that the White House had withheld stuff that was clearly responsive to his requests, so he used that to ask GSA to turn over the full set.

I’m also interested in how they’ll claim any of this was privileged. The top 13 political and foreign policy people on the Trump team might include (asterisks mark people confirmed to be among those whose accounts were obtained):

  1. Pence
  2. Bannon
  3. Jared*
  4. Flynn*
  5. KT McFarland
  6. Spicer
  7. Priebus
  8. Nunes
  9. Sessions
  10. Seb Gorka
  11. Stephen Miller
  12. Hope Hicks
  13. Ivanka
  14. Don Jr
  15. Rebekah Mercer
  16. Kelly Anne Conway
  17. Rudy Giuliani
  18. Steven Mnuchin
  19. Rick Gates
  20. Corey Lewandowski
  21. Tom Bossert

Just one of those people — Sessions — is a practicing lawyer (and he wasn’t, then), and he wasn’t playing a legal role in the transition (though both Sessions and Nunes may have been using their congressional email, in which case Mueller likely would show far more deference; update: I’ve added Rudy 911 to the list, and he’d obviously qualify as a practicing lawyer). Though I suppose they might have been talking with a lawyer. But I would bet Mueller’s legal whiz, Michael Dreeben, would point to the Clinton White House Counsel precedent and say that transition lawyers don’t get privilege.

Furthermore, Trump wasn’t President yet! This has come up repeatedly in congressional hearings. You don’t get privilege until after you’re president, in part to prevent you from doing things like — say — undermining existing foreign policy efforts of the actually still serving President. So even if these people were repeating things Trump said, it wouldn’t be entitled to privilege yet.

Finally, consider that some of these people were testifying to the grand jury months and months ago. But we’re only seeing this complaint today. That’s probably true for two reasons. One, because Mueller used the emails in question (most notably, the emails between McFarland and Flynn from December 29 where they discussed Russian sanctions) to obtain a guilty plea from Flynn. And, second, because Republicans are pushing to get Trump to fire Mueller.

Update: I’ve added Pence, Don Jr., Ivanka, Hope Hicks, Kelly Anne Conway, Rudy Giuliani, Steven Mnuchin back in here.

Update: Here’s more from Reuters.

Langhofer, the Trump transition team lawyer, wrote in his letter that the GSA’s transfer of materials was discovered on Dec. 12 and 13.

The FBI had requested the materials from GSA staff last Aug. 23, asking for copies of the emails, laptops, cell phones and other materials associated with nine members of the Trump transition team response for national security and policy matters, the letter said.

On Aug. 30, the FBI requested the materials of four additional senior members of the Trump transition team, it said.

The GSA transfer may only have been discovered this week (probably as a result of Congress’ investigation). But the witnesses had to have known these emails went beyond the scope of what the transition turned over. And the request date definitely is late enough for Mueller to have discovered not everything got turned over, perhaps even from George Papadopoulos, who flipped in late July.

Update: One more thing. Remember that there were worries that transition officials were copying files out of a SCIF. That, by itself, would create an Insider Threat concern that would merit FBI obtaining these emails directly.

Update: Here’s a report dated June 15 on a transition lawyer instructing aides and volunteers to save anything relating to Russia, Ukraine, or known targets (Flynn, Manafort, Page, Gates, and Stone).

Update: AP reports that Flynn was (unsurprisingly) among those whose email was obtained.

Update: Here’s the letter. I unpacked it here. It’s a load of — I believe this is the technical term — shite. First, it stakes everything on PTT not being an agency. That doesn’t matter at all for a criminal investigation — Robert Mueller was no FOIAing this stuff. It then later invokes a bunch of privileges (the exception is the attorney client one) that only come with the consequent responsibilities. It then complains that Mueller’s team didn’t use a taint team.

Perhaps the craziest thing is they call for a law that would only permit someone to access such emails for a national security purpose — as if an espionage related investigation isn’t national security purpose!

Update: Chris Geidner got GSA’s side of the story. Turns out they claim the now dead cover up GC didn’t make the agreement the TFA lawyer says he did. In any case, GSA device users agreed their devices could be monitored.

“Beckler never made that commitment,” he said of the claim that any requests for transition records would be routed to the Trump campaign’s counsel.

Specifically, Loewentritt said, “in using our devices,” transition team members were informed that materials “would not be held back in any law enforcement” actions.

Loewentritt read to BuzzFeed News a series of agreements that anyone had to agree to when using GSA materials during the transition, including that there could be monitoring and auditing of devices and that, “Therefore, no expectation of privacy can be assumed.”

Update: Mueller’s spox, Peter Carr, issued a statement saying, “When we have obtained emails in the course of our ongoing criminal investigation, we have secured either the account owner’s consent or appropriate criminal process.”