Posts

The Dispute over the Accusation Maria Butina Is a Spotter Distracts from Clear Case She Should Be Sent Home

Let me start by saying that I think the government should put Maria Butina, who is currently scheduled to be sentenced Friday, on a plane and send her home. The impression given when she signed a plea deal is that she might get a six month sentence. She has cooperated fully — the government is submitting a sealed downward departure letter describing her cooperation — and the period of her cooperation has been extended a bit. She has already been detained nine months.

Even according to the government’s own sentencing memorandum, the defense can and should compellingly argue that she has served a fair sentence. The most directly relevant case the government points to in its memo is that of Evgeny Buryakov, one of the guys who tried to recruit Carter Page.

In United States v. Buryakov, No. 15-CR-73 (S.D.N.Y.), the defendant pled guilty to violating § 951, stemming from an agreement to take actions within the United States at the direction of a Russian government official. The parties agreed, pursuant to Fed. R. Crim. P. 11(c)(1)(C), to a sentence of 30 months of incarceration. The court accepted that agreement and imposed a sentence of 30 months.

Buryakov pled guilty, but after far more litigation, including some CIPA hearings. He did not (at least according to the public record) cooperate with the government at all. And while the government dropped some of their claims, they considered Buryakov as an undisclosed SVR Agent, someone who operated clandestinely as a trained professional, as compared to Butina, whom the government doesn’t claim is a trained intelligence officer and who operated overtly. The comparison with Buryakov, then, makes a solid argument that Butina should be shipped home immediately. She started cooperating early and the government deems her cooperation valuable. And the government agrees she’s not the same kind of clandestine spy that Buryakov was.

That, to me, seems like a slam dunk case supporting a just outcome, which would be for Butina to be on the next flight home.

All that said, I have a very different opinion than Butina’s defense attorneys on the government’s submission of a declaration from the former Assistant Director of FBI’s Counterintelligence Division, Robert Anderson Jr., accompanying their request for an eighteen month sentence. After the government submitted the declaration (which they claim they warned the defense about on April 10, though the defense complains they only learned Anderson’s identity on the April 17), the defense asked for it to be stricken, complaining that the government is submitting a new, unsubstantiated case.

Again, I think the government’s request for an eighteen month sentence is bullshit, given the facts that both sides agree on and the precedents they cite. And the defense is right about some of their complaints about Anderson’s declaration — most notably, that it doesn’t cite which case materials he relies on to make his declaration suggesting Butina functioned as a spotter for Russian intelligence.

But their complaints about the substance of Anderson’s declaration are made in isolation from the government’s sentencing memo. As such, they don’t address what I think are weaknesses of their own sentencing memorandum. Those weaknesses, put together with the claims the government and Anderson make, do leave the impression that the defense is trying to downplay Butina’s enthusiasm for a project that (exhibits presented by the government show) she believed would increase her own influence within Russia.

The defense explanation for Butina’s gun rights activism comes off as complete BS.

She returned to the issue of gun rights. Her father had taught her how to use a hunting rifle as a child, a hobby they both shared. Her gun rights advocacy had also been one of the most popular issues in her campaign for local office right after graduating, and she already started a small gun rights group in Barnaul. Using social networking websites, Maria was able to form a formidable group in Moscow, organizing demonstrations and protests, particularly on the issue of personal safety. Based on her admiration of western democratic freedoms, a group name was chosen: the Right to Bear Arms.

Notably, gun advocacy in Russia has little to do with gun advocacy in the United States. A hundred years ago, during the Russian Civil War, guns were confiscated by the precursor of the Soviet Union. With few exceptions, Russians today cannot carry or own most firearms. Yet, the issue of gun rights was important to Maria as a matter of self-defense, when for every five people murdered in the United States, there were fifteen murdered in Russia.1 For Maria, gun rights— however unpopular—was a means for personal safety, and Maria sought support for her advocacy from across the political spectrum. It didn’t matter to her whether the person was liberal, conservative, in government, or oppositional, and she had a slogan written on her office door that read “anyone who supports gun rights may come in, but you leave your flag behind.”

[snip]

As Maria’s group membership multiplied, she planned an annual convention for fall 2013, with similar gun-rights organizations from around the world invited to Moscow for the meeting. Torshin gave Maria the contact information for David Keene (a former NRA President), who Torshin met on a prior trip to the United States. Because Torshin did not speak or write English, Maria reached out to Keene to invite him and any other NRA members for her group’s annual meeting. Keene accepted the invitation and asked Paul Erickson to accompany him. Maria was elated.

This passage, and other parts of the memo, can’t decide whether Butina’s is a strictly Russian phenomenon or a way to solidify her ties with America. It admits Russia doesn’t support gun rights but doesn’t explain, then, the great support she got.

And the defense again claims that the government dropped all accusations she used romance for recruiting, except that’s not true. They never dropped the suggestion her relationship with Erickson was utilitarian — a claim bolstered by Butina’s willingess to cooperate against him and enthusiasm for returning home. And the defense discussion of the relationship between the two also rings hollow (as did their earlier efforts to make it look authentic), especially as it related to her project, Description of Diplomacy (a copy of which the government entered as an exhibit).

She also wished to be in the same hemisphere as her romantic interest. So Maria and Erickson explored both educational and business opportunities for her. This is the genesis of the Description of the Diplomacy Project proposal referenced in the Statement of Offense.

If the only reason she came to the US was to be with Erickson, grad school by itself would have been adequate.

The exhibits included — even before you get to the Anderson declaration — are why the government’s sentencing memo comes off as more credible as to the substance. Perhaps most compelling are Butina’s repeated concerns that she and Aleksandr Torshin remain the people with the handle on the Russian government’s exploitation of the NRA and National Prayer Breakfast as influence channels.

Following the Gun Rights Organization trip to Moscow, the defendant and the Russian Official discussed the need to “hold the spot” now that “everyone has realized that [the Gun Rights Organization] is a valuable contact,” and she noted that there will be “attempts to seize the initiative.” Exhibit 2. Butina has since confirmed that she was worried about others within the Russian government or a political group or activist noticing that the contacts she had built with the Gun Rights Organization were valuable and cutting her and the Russian Official out of the loop.

[snip]

According to a document written by Butina after the event, in the lead-up to the National Prayer Breakfast, she and the Russian Official were promised a private meeting with the President of the United States by one of the organizers of the event. A copy of this document is attached hereto as Exhibit 8. This promised meeting never materialized. After the event, and Butina’s and the Russian Official’s failure to meet privately with the President, she was worried that another Russian national (i.e., not the Russian Official) would attempt to seize the initiative, as demonstrated in her Twitter conversation with the Russian Official:

Butina: It would be good if you could talk directly with the MFA or the administration. Before [Russian national who attended the breakfast] worms his way in there.

Russian Official: Everything will be fine. I already conducted the necessary informal consultations on Saturday. I just don’t want to overload Twitter, which is read.

We need to build relationships with the USA, but there are many who oppose this! . . . According to Butina, this other Russian national referred to was another member of the Russian government whom Butina feared would overtake her and the Russian Official as the primary Russian point of contact for the National Prayer Breakfast.

If all this networking was exclusively about being close to Erickson, why would Butina care so much that she and Torshin were viewed as the brokers of these links to the US? And this kind of competitive oligarch-focused influence operation is the modus operandi we’ve seen from much of Russia’s efforts in recent years.

That’s why — caveats about the form of the declaration, which Butina’s lawyers will undoubtedly emphasize if sentencing happens Friday — I don’t have much problem with Anderson’s explanation of how the Butina collected could — and likely was — useful for Russia. I also don’t think the evidence presented is — as the defense claims — all that new (indeed, some reporters are claiming some of the details — such as that Butina claimed to have input over who would be Secretary of State — are new, but they are not).

I do recognize it’s probably an attempt to parallel construct stuff FBI knows via other channels that — by having an ostensible outsider deliver — they can make intelligence claims in an unclassified setting. As such, it surely serves as an opportunity for those close to the FBI to lay out a counterintelligence claim about Russia’s methods, generally, as it was interpreted as by Andrew Weiss. But neither of those things change the fact that what Butina did doesn’t compare to what Buryakov did, and by distinguishing those details from Buryakov, Butina’s lawyers could easily back their case it’s time to send her home.

I think prosecutors are being assholes for not letting Butina go. Holding her any longer is not going to serve as a deterrent to Russia, as they claim.

But that’s them about being asshole prosecutors generally (and, presumably, trying to use this case to boost their careers). Whatever the narrative about why Butina did what she did (and, again, the government’s is more credible at this point), the assertions made by both sides still only justifies sending her home.

Update: Judge Tanya Chutkan has denied this request, noting that she offered to give them more time to respond to it, but they didn’t take her up on it.

MINUTE ORDER as to Mariia Butina: Defendant’s 102 Motion to Exclude and Strike the Declaration of Robert Anderson, Jr. is DENIED. Defendant has had notice of the government’s intent to call Mr. Anderson as a witness or submit a Declaration from him since April 10, 2019. The court “may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information [the court] may consider, or the source from which it may come.” United States v. McCrory, 930 F.2d 63, 68 (D.C. Cir. 1991) (quotation marks and citations omitted); see also United States v. Beaulieu, 893 F.2d 1177, 1179 (10th Cir. 1990) (“[C]ourts have traditionally been allowed to consider all sources of information in formulating an appropriate sentence.”). The defense did not request additional time to prepare a rebuttal to Mr. Anderson’s Declaration, despite the court’s willingness to adjourn sentencing in order for it to do so. Therefore, the Sentencing Hearing will not be adjourned. Signed by Judge Tanya S. Chutkan on 4/25/2019.(lctsc3) (Entered: 04/25/2019)

Two Trajectories: Sleazy Influence Peddler Paul Manafort and Foreign Agent Prosecutor Brandon Van Grack

Like many, while I expected TS Ellis to give Paul Manafort a light sentence, I’m shocked by just how light it was.

Ellis gave Manafort 47 months of prison time for crimes that the sentencing guidelines say should start at a 19 year sentence. Even if Amy Berman Jackson gives Manafort the stiffest sentence she can give him — 10 years — and makes it consecutive, he’ll still be facing less than the what sentencing guidelines recommend. Ellis even declined to fine Manafort beyond the $24 million he’ll have to pay in restitution (Zoe Tillman lays out the money issues here).

There are a number of reasons to be outraged by this.

Ellis explicitly suggested that Manafort’s crimes were less serious than similar organized crime that people of color would commit. In the wake of this sentence, any number of people (especially defense attorneys) have pointed to non-violent criminals facing more prison time than Manafort. That said, I agree with those who suggest we should aim to bring those other sentences down in line with what the civilized world imposes, and not instead bump white collar criminals up to the barbaric levels that come out of the drug war.

Ellis gave this sentence even though Manafort expressed no remorse. Ellis commented that “I was surprised that I did not hear you express regret for engaging in wrongful conduct. In other words, you didn’t say, ‘I really, really regret not doing what the law requires,'” but nevertheless sentenced him as if he had.

Perhaps most infuriating were the backflips Ellis did to spin Paul Manafort as a good man. He emphasized that Manafort was “not before the court for any allegation that he or anybody at his direction colluded with the Russian government to influence the 2016 presidential election,” which is true; but Ellis received the breach determination materials showing that at a time when Manafort was purportedly cooperating, he instead lied about sharing polling data with a suspected Russian asset while discussing a Ukrainian peace deal that he knew amounted to sanctions relief, a quid pro quo. Because those materials go to the issue of whether Manafort took responsibility and was a risk for recidivism, they were fair game for consideration, but Ellis didn’t consider them.

Indeed, because of time served, Ellis effectively sentenced Manafort to an equivalent sentence that Michael Cohen faces having committed an order of magnitude less financial fraud, pled guilty, and provided limited cooperation to the government. Effectively, then, Ellis has sanctioned Manafort’s successful effort to avoid cooperating in the case in chief, on how he and Trump conspired with Russia to exploit our democratic process.

Instead of referring to the materials on Manafort’s refusal to cooperate, Ellis instead just regurgitated defense materials and claimed that aside from stealing millions of dollars from taxpayers and whatever else went on before Amy Berman Jackson, Manafort had “lived an otherwise blameless life.”

And that’s where I step away from a generalized discussion of the barbaric nature of our criminal justice system to look specifically at the barbaric nature of what Paul Manafort has done with his life. I feel much the way Franklin Foer does.

In an otherwise blameless life, Paul Manafort lobbied on behalf of the tobacco industry and wangled millions in tax breaks for corporations.

In an otherwise blameless life, he helped Philippine President Ferdinand Marcos bolster his image in Washington after he assassinated his primary political opponent.

In an otherwise blameless life, he worked to keep arms flowing to the Angolan generalissimo Jonas Savimbi, a monstrous leader bankrolled by the apartheid government in South Africa. While Manafort helped portray his client as an anti-communist “freedom fighter,” Savimbi’s army planted millions of land mines in peasant fields, resulting in 15,000 amputees.

[snip]

In an otherwise blameless life, he spent a decade as the chief political adviser to a clique of former gangsters in Ukraine. This clique hoped to capture control of the state so that it could enrich itself with government contracts and privatization agreements. This was a group closely allied with the Kremlin, and Manafort masterminded its rise to power—thereby enabling Ukraine’s slide into Vladimir Putin’s orbit.

[snip]

In an otherwise blameless life, he produced a public-relations campaign to convince Washington that Ukrainian President Viktor Yanukovych was acting within his democratic rights and duties when he imprisoned his most compelling rival for power.

In an otherwise blameless life, he stood mute as Yanukovych’s police killed 130 protesters in the Maidan.

Paul Manafort invented the profession of sleazy influence peddler. His own daughter once acknowledged, “Don’t fool yourself. That money we have is blood money.” And our democracy, as well as more corrupt regimes around the globe where Manafort was happy to work, are much less just because of Manafort’s life’s work.

Which is why I take more solace in something that happened the night before Manafort’s sentencing: A CNN report that DOJ has put Brandon Van Grack — a prosecutor who, under Mueller, prosecuted Mike Flynn and his sleazy influence peddler business partners — in charge of a renewed effort to crack down on unregistered sleazy influence peddlers.

The initiative at the Justice Department to pursue violations of the Foreign Agents Registration Act, which requires that an entity representing a foreign political party or government file public reports detailing the relationship, will be overseen by Brandon Van Grack, who left Mueller’s team in recent months to rejoin the national security division.

Van Grack’s appointment to the newly created position and the Justice Department’s interest in expanding its pursuit of foreign influence cases stemmed largely from the impact of Russian operations on the 2016 presidential election, John Demers, the head of the national security division, said Wednesday at a conference on white-collar crime.

With Van Grack’s new role, the Justice Department will shift “from treating FARA as an administrative obligation and regulatory obligation to one that is increasingly an enforcement priority,” Demers said.

He also pointed to the impact of a recent settlement with one of the country’s highest-profile law firms — Skadden, Arps, Slate, Meagher & Flom LLP — on the department’s decision to escalate its enforcement in that area.

[snip]

Demers added that the Justice Department is considering seeking congressional authorization for administrative subpoena power to enforce the Foreign Agents Registration Act, which it currently lacks.

“That’s something that we’re taking a hard look at,” he said. Referencing Skadden, he added: “Do I think the firm would have behaved differently if they had received a subpoena versus they had just received a letter? Yes.”

This marks a decision to treat FARA violations — sleazy influence peddling that hides the ultimate foreign customer — as a real risk to our country. As I have laid out in my comparison of Manafort’s “otherwise blameless life” and Maria Butina’s efforts to infiltrate right wing politics, a venal insider with an already rich political network will be far more effective (and insidious) than even a beautiful woman backed by a mobbed up foreign government official and abetted by her own washed out Republican insider.

I don’t know what Mueller is doing with all the evidence of a conspiracy that he continues to protect. I don’t know that he’ll be able to deliver a prosecutorial conclusion that will deliver justice for the sleazy things that Trump did to win the election. Prosecuting very powerful people is very difficult, and we shouldn’t forget that.

But one other point of this entire investigative process was to learn lessons, to make it harder for hostile outsiders to hijack our democratic process going forward.

In letting Manafort off with a metaphorical wrist-slap, TS Ellis did nothing to deter others who, like Manafort, will sell out our country for an ostrich skin jacket. Even ABJ will face some difficult challenges in DC when she tries to sentence FARA crimes (particularly those of Sam Patten, who cooperated) without precedents to do so.

But the way to build those precedents — the way to establish a record that causes a Skadden Arps or a Rob Kelner to treat FARA registration as the official declaration to the government that it is — is to pursue more of these cases, against sleazy influence peddlers working for all foreign entities, not just the ones we despise.

So Manafort may get off easy for helping Russia interfere in our election in a bid to line up his next gig white-washing brutal oligarchs.

But along the way, our justice system may be adapting to the certainty that he did not live an otherwise blameless life

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

The Metadata of the HJC Requests

While the rest of us were looking at the content of the letters the House Judiciary Committee was sending out to witnesses yesterday, @zedster was looking at the metadata. The requests have dates and times reflecting three different production days: towards end of the work day on March 1 (Friday), a slew starting just after 3PM on March 3 (Sunday), with some individualized documents between then and Sunday evening, with a ton of work being done until 1:30 AM March 4 (Monday morning), and four more trickling in after that.

I think the production dates likely reflect a number of different factors.

First, the letters are boilerplate, which may explain why most of those were done first. Three things might explain a delay on any of those letters: either a late decision to include them in the request, delayed approval by SDNY or Mueller for the request, or some difficulty finding the proper addressee for the letter (usually, but not always, the person’s counsel of record). Not all of these addresses are correct: as one example, Erik Prince reportedly has gotten a new lawyer since Victoria Toensing first represented him, but has refused to tell reporters who represents him now; his letter is addressed to Toensing.

One other possible explanation for late dates on the letters is that the decision to call them came out of Michael Cohen’s testimony last week (and some of those witnesses would have had to have been approved by SDNY as well). As an example, the last document in this set is the one to Viktor Vekelsberg, which clearly relates to Michael Cohen (though interest in him may have come out of Cohen’s HPSCI testimony).

The other two late letters are Cambridge Analytica and Donald Trump Revocable Trust. Both appear to be revisions — a third revision for the former and a second for the latter.

That said, the letters completed after March 1 are interesting: Aside from some institutional letters (like FBI and GSA), they appear to be likely subjects of ongoing investigative interest, whether because of the investigation into Trump’s inauguration, Roger Stone’s prosecution, Maria Butina’s cooperation, ongoing sensitivities relating to Paul Manafort, or the National Enquirer.

Some of these topics happen to be the last topics listed on the Schedule As (I got this from Jared Kushner’s Schedule A which is one of if not the most extensive), including WikiLeaks, Manafort’s sharing of polling data (with the Ukrainian oligarchs, but no Oleg Deripaska), Michael Cohen’s Russian-related graft, and Transition graft, including with the Gulf States. There’s no separate category of documents tied to the NRA.

The Schedule As were based off boilerplate and tailored very loosely based on the recipient; this may have been an area where prosecutors weighed in. These later approvals include a slew of Cambridge Analytica people (remember, Sam Patten, who had ties to the organization, was not included in this request at all). Alexander Nix’s Schedule A is a revision. So is Trump Organization lawyer Alan Garten’s. Some of the people central to any obstruction inquiry — Don McGahn, Jeff Sessions, former McGahn Chief of Staff Annie Donaldson, and Jay Sekulow — were among the last Schedule As printed out.

All of this is just reading tea leaves.

But it does seem to reflect some ongoing sensitivities (the Gulf States, Cambridge Analytica, and obstruction) that got approved last, with some areas (Oleg Deripaska) being significantly excluded.

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

Bamford’s Silence about How Maria Butina Got Thrown Back into Solitary

A number of people have asked me what I make of this piece from James Bamford, pitching the case against Maria Butina as a grave injustice, just after Paul Erickson (who may be the real intended beneficiary of this piece) was charged in the first of what is likely to be two indictments, and as the government extends her cooperation by two weeks.

There are parts that are worthwhile — such as his argument that because Butina didn’t return a bragging email from JD Gordon, it suggests she wasn’t trying to recruit him.

There are other parts I find weak.

Bamford oversells the degree to which the press sustained the serial honeypot angle — after all, some of us were debunking that claim back in September, when he appears to have been silent — without mentioning the fact that Butina first started proffering cooperation with prosecutors, presumably against Paul Erickson and George O’Neill, on September 26. The word “visa” doesn’t appear in the article’s discussion of Butina’s status as a grad student, leaving unrebutted the government’s claim that Butina chose to come to the US as a student because it provided travel privileges that served her influence operation. Bamford (who hasn’t covered the Mueller investigation) grossly overstates the significance of Mueller’s choice not to integrate Butina’s case into his own investigation. He also falsely treats all counterintelligence investigations into Russia as one ongoing investigation (see this post for my ongoing complaints about virtually everyone doing the same). He suggests that Butina will need to be traded for Paul Nicholas Whelan, when the government has already said she’ll be deported once she serves her sentence (which will likely be time served). He quotes Putin’s interest in Butina’s case, without noting that Russia has only shown the interest they showed in her in one other defendant, Yevgeniy Nikulin. And those are just a few of the details with which I take issue.

But these passages, in particular, strike me as problematic.

Since August 17, Butina has been housed at the Alexandria Detention Center, the same fortresslike building that holds Donald Trump’s former campaign manager, Paul Manafort. On November 10, she spent her 30th birthday in solitary confinement, in cell 2F02, a seven-by-ten-foot room with a steel door, cement bed, and two narrow windows, each three inches wide. She has been allowed outside for a total of 45 minutes. On December 13, Butina pleaded guilty to conspiracy to act as an unregistered agent of the Russian Federation. She faces a possible five-year sentence in federal prison.

[snip]

On November 23, 2018, Butina went to sleep on a blue mat atop the gray cement bed in her cell, her 81st day in solitary confinement. Hours later, in the middle of the night, she was awakened and marched to a new cell, 2E05, this one with a solid steel door and no food slot, preventing even the slightest communication. No reason was given, but her case had reached a critical point.

That’s true not just for the way Bamford obscures the timeline here — suggesting she was always in solitary — but because by obscuring that timeline, Bamford serves to hide that it was Bamford’s own communications with and about Butina that got her thrown back into solitary.

Butina’s lawyers laid out her protective custody status in a filing on November 27.

In addition to general population prisoners, the Alexandria detention center houses federal detainees awaiting trial before this court in “administrative segregation,” more commonly known as solitary confinement. This form of restrictive housing is not a disciplinary measure, but is purportedly used by corrections personnel to isolate inmates for their own protection or the safe operation of the facility.

[snip]

Between her commitment at the Correctional Treatment Facility in Washington, DC and then Alexandria detention center, Ms. Butina has been isolated in solitary confinement for approximately 67 days straight. Despite a subsequent release into general population that came at the undersigned’s repeated requests, correctional staff reinstated her total isolation on November 21, 2018 although no infraction nor occurrence justified the same.

The timeline they lay out makes it clear Butina was in protective custody from July 15 to around September 21, but then placed in the general population. The timeline is absolutely consistent with Butina agreeing to cooperate in order to get placed in general population (the motion to transport her was submitted September 21, so at the same time she was placed in the general population). The fact that the government uses solitary to coerce cooperation from prisoners deserves condemnation, and that definitely seems to have been at play here.

But even at a time she had active orders to be transported for cooperation (the court authorized a second request for transfer from late October through the time she pled guilty), Butina was placed back in solitary. The timeline her defense attorneys lay out, however, suggests that Bamford was incorrect in stating she was in solitary on her birthday on November 10. She wasn’t moved back to solitary until November 21.

On the afternoon of November 21, 2018, counsel received a never-before urgent phone call from a jailhouse counselor regarding Ms. Butina. The basis for that call was her return to solitary confinement. The undersigned called Chief Joseph Pankey and Captain Craig Davie in Alexandria in response. After conferring with them, however, it has become clear that the facility’s use of administrative segregation is a false pretext to mask an indefinite solitary confinement that is unjust and without cause.

Staff purported to base their decision to segregate on Ms. Butina referring a fellow inmate to her lawyers (that is, she gave her lawyers’ phone number to a fellow inmate), but staff did not find a disciplinary violation—major or minor. Chief Pankey and Captain Davie then resorted to the decision being “for her safety,” knowing that administrative segregation disallows an appeal internally.

As of the date of this filing, Ms. Butina has now been in solitary confinement for 22 hours a day for 6 consecutive days with no prospective release date. According to at least one deputy, the move to solitary confinement has also not been entered into the Alexandria detention center computer system, and Ms. Butina’s status is disclosed only by a piece of tape with handwriting attached to the guard stand.

And that’s important because of a detail that Bamford remains utterly silent about.

As laid out in a hearing transcript, around that time, the government recorded calls from Butina to “certain journalists” suggesting the journalist consult someone who had her lawyers’ first name.

DRISCOLL: The conflict raised by the government, I think the government does not think there’s been any violation of order by defense counsel, but due to circumstances regarding recorded calls that the government had of Ms. Butina and to certain journalists, the government raised the concern to us; and we wanted to raise it with the Court so that there would be no question when the plea is entered that the plea is knowing and voluntary, and we wanted to kind of preemptively, if necessary, get Ms. Butina separate counsel briefly to advise her on her rights, to make sure that she got her constitutional right to conflict-free advice.

[snip]

MR. KENERSON: The basic nature of the potential conflict is that this Court, I think, issued in an order back in September regarding Local Rule 57.7. The government has some jail calls from Ms. Butina in which she is talking to a reporter numerous times on those calls. She makes some references on those calls to individuals who could be — we don’t know that they’re defense counsel, but shares first name with defense counsel potentially acting as go-between at a certain point. That’s part one of the potential conflict. Part two is —

THE COURT: Wait. So, wait. Stop. Part one is a potential conflict. Do you see a conflict because you believe she’s acting at the behest of her attorneys or as a conduit for her attorneys to violate the Court’s order?

MR. KENERSON: It’s — someone viewing that in the light least favorable to defense counsel might be able to argue that this is some quantum of evidence that defense counsel possibly were engaged in assisting Ms. Butina in violating the Court’s order.

THE COURT: All right. But that goes to whether counsel, with the aid of his client, violated my — and I’ll use the colloquial term for it, my “gag order.” How does that go to — and maybe you’ll tell me; I cut you off. But how does that go to the voluntariness of her plea?

MR. KENERSON: So if there is an allegation that defense counsel assisting her somehow in violating the, again, to use the colloquial term the “gag order,” that would give defense counsel a reason to want to basically plead the case to avoid that potential violation from becoming public. And curry favor with the government.

Driscoll went on to explain why his client was talking to a journalist with whom she had a friendship that “predates all of this” in spite of her being subject to a gag order.

The circumstances, just so the Court’s aware, Ms. Butina has a friendship with a particular journalist that predates all of this. The journalist was working on a story about Ms. Butina prior to any of this coming up, prior to her Senate testimony, prior to her arrest, and had numerous on-the-record conversations with her prior to any of this happening. At the time the gag order was entered, I took the step of informing the journalist that, although he could continue to talk to Ms. Butina, he could not use any of their post gag-order conversations as the basis for any reporting, and the journalist has not, in any event, made any public statement or done any public reporting on the case to date.

Bamford’s own description of “a number of long lunches starting last March at a private club in downtown Washington, D.C.” make it clear he is the journalist in question.

Judge Chutkan was none too impressed with Driscoll’s advice.

THE COURT: Well, putting aside the questionable advisability of having your client talk to a reporter while she is pending trial and there’s a gag order present — and I understand you told the reporter that they couldn’t make any public statements, but as a former criminal defense attorney myself, I find that curious strategy.

Now, to be clear: Bamford never did publish anything on Butina during the period when the gag was in place (Chutkan lifted the gag on December 21). Even if Bamford had published something during that period, so long as Bamford did respect Driscoll’s advice that their ongoing conversations should be off the record, there was nothing Bamford could publish that would directly reflect her own statements.

And there’s very good reason to question whether the government threw Butina back into solitary because Bamford was reporting on her treatment. That is, it’s not outside the realm of our criminal justice system that Butina was placed back in solitary because a reporter had been tracking her case since before the investigation became public.

Instead of laying out the case for that, however, Bamford instead hides his own role in the process.

To be honest, I think the story is better understood as one about Paul Erickson and not Maria Butina. This story won’t help her at sentencing — that’s going to be based on her cooperation, not what a journalist who has already antagonized the government says about her. But it may help to spin Erickson and George O’Neill’s interest, as well as that of the NRA.

The public record certainly sustains the case that the government used solitary to induce Butina to cooperate — presumably to cooperate against Erickson and O’Neill. That certainly merits attention.

But then the government also used solitary to cut off Butina’s communications with Bamford himself. If it’s this story the government was retaliating against, Bamford should say that, rather than obscuring it.

This is a story about America’s reprehensible use of solitary confinement. But it doesn’t explain a key part of that process here. Given that the story seems to most benefit Erickson, I find that silence remarkable.

The Geography of Maria Butina’s Cooperation

The government had another embarrassing docket fail Friday, like the cut-and-paste release that disclosed charges filed in EDVA against Julian Assange.

Yesterday, a motion for permission to transport Maria Butina was briefly published to the docket, then withdrawn, but not before reporters who get automatic docket updates got copies. And the details in the filing suggest that Butina’s cooperation may be more limited than Mueller watchers would like.

The docket fail may stem from complaints that the judge in Butina’s case, Tanya Chutkan, made back on December 6, about how many details of Butina’s imminent plea deal attorneys were trying to keep sealed.

THE COURT: Why? Why is the fact that — you know, Mr. Driscoll, I have to tell you, I’m a little perplexed. In this case, you’ve filed several motions for transportation of your client to the U.S. Attorney’s Office, and you asked that that information be placed under seal; and that was certainly appropriate, and the government joined in that request. And I placed those requests under seal because the possibility of a defendant’s cooperation is always something that is very sensitive.

Since Butina’s plea, those prior motions to transport her that Chutkan referenced in her complaint — one dated September 21 asking to move her for a September 26 interview but lasting through October 25, and one dated October 23 specifically authorizing transport on November 7 but lasting through December 6 — were unsealed. Presumably, that’s why Friday’s order got filed unsealed, as well.

The problem, per CNN’s report, is that the latest one reveals Butina may be transported to testify before a grand jury in DC.

Russian political conspirator Maria Butina is set to meet with federal prosecutors in Washington and Virginia over the next several weeks, according to a court filing that was posted and quickly removed from a federal docket Friday afternoon.

Butina pleaded guilty Thursday to one criminal count of acting as an illegal foreign agent in the United States.
US attorneys may want to interview Butina in their offices well into January, according to the filing. She may also be requested to appear at the grand jury in Washington, according to the filing, which is a request to a federal judge to allow the currently detained Russian to be transported by the FBI for cooperation interviews.

“The purpose of the transfer is to interview the Inmate concerning an ongoing federal investigation,” the filing says.

So in addition to providing details about Butina’s future travel (possibly even a date) that might pose a security risk or put her in physical danger, it includes grand jury information that is supposed to remain secret.

All the filings together, however, reveal something of more interest: Butina has been proffering information to the Feds, probably primarily against her boyfriend, Paul Erickson, since September 26.

She was submitting to interviews in this investigation at a time when Erickson was regularly visiting her in jail.

Despite the ongoing investigations and his reported ties to Butina’s activities, Erickson frequently visits her in jail, two individuals with knowledge of the meetings told The Daily Beast. Erickson apparently expressed frustration to friends over the fact that jail staff forced him to sign into the main visitor log, fearing the media would find out.

You know how everyone hopes that a cooperating witness might wear a wire? In Butina’s case that could, potentially, have happened during her meetings with Erickson (though in the context of a jail visit, would hardly be necessary to capture the couple’s conversations). The period of her cooperation also sort of matches the time when she got moved from protective custody into the general population in Alexandria (67 days after her arrest would be September 20); she was subsequently put back in solitary, possibly because (as was discussed at the December 6 hearing) she had been communicating with the outside world via other detainees and at least one journalist.

While those revelations are of interest, what’s equally notable is the geography described, at least in the public filings. As noted, CNN says she’s cooperating on a federal investigation, singular, which is what the past motions said as well. And the locales to which she can be transported in the public filings — an interview room attached to the Alexandria jail, the DC US Attorney’s office, and a DC grand jury — don’t include Robert Mueller’s office, which is a different location in DC. There may be some involvement of the EDVA US Attorney’s Office (which might bode ill for the NRA, which is headquartered in that district). But thus far, there’s no sign that she’s being transported to cooperate with Mueller’s office.

That’s consistent with her plea, which only describes cooperation with the DC US Attorney’s office.

The plea deal is in no way definitive — after all, Mike Flynn’s plea said he’d cooperate “with this Office,” meaning SCO, but he has recently told us about cooperating with “other components of the Government” and the addendum to the government’s sentencing memo seems to reflect at least one criminal investigation outside of Mueller’s mandate (which is widely believed to involve Turkey).

But Butina has already been in custody almost as long as she’s likely to be sentenced to, meaning to do much more would entail holding her in jail to get her to cooperate for no benefit, something her lawyers presumably would be unwilling to countenance. So it may well be that she has told investigators about her boss (who, of course, retired suddenly not long ago) and her boyfriend. She may well even had gotten Erickson to incriminate himself in a venue where prosecutors easily collected it.

There’s no evidence, however, that she’s cooperating with Mueller or expected to.

Updating the Mueller Docket: What Has Zainab Ahmad Been Working On?

I’ve been meaning for some days to update my running commentary on what Mueller’s prosecutors are doing.

But yesterday’s Mike Flynn filing made a point that I’ve been meaning to make: counterterrorism and international extradition expert Zainab Ahmad remains on Mueller’s team, but we’ve barely heard from her.

I’ve recently updated my own running docket (which is far too unwieldy to fit on a page anymore). It also includes a number of related cases:

  • Michael Cohen’s SDNY prosecution
  • Sam Patten’s DC prosecution
  • Maria Butina’s DC prosecution
  • Elena Alekseevna Khusyaynova’s EDVA charges

I’ve also noted the departures of the prosecutors who have left (suggesting either that their part of the investigation is completed, or they’re bringing some part of it back to their home departments at DOJ to pursue).

One thing I’ve been following in recent Mueller activities is Jeannie Rhee’s seeming central role in what we’re seeing. If there’s a conspiracy-in-chief prosecution, she seems to be in charge of that.

Also of interest, Rush Atkinson appears to have ties to a seemingly disparate series of cases involving Russia: the IRA prosecution and related Pinedo case, the GRU prosecution. He’s also involved in both Michael Cohen’s Mueller prosecution and Jerome Corsi’s aborted cooperation. Notably, he’s not involved in the Andrew Miller subpoena, which may mean that he’s not involved in everything pertaining to Roger Stone. So his presence on a case may suggest a direct tie to Russians.

But perhaps the most interesting thing this docket shows is that, among the prosecutors (as distinct from the appellate specialists, though it’s unclear whether Elizabeth Prelogar is on the team for her Russian expertise as well as her appellate speciality or not), Zainab Ahmad is the only person whose work we’ve barely seen. While she has had a role in the Flynn cooperation, Brandon Van Grack (who’s in the process of transitioning back to his National Security Division home) took the lead on that.

As an experienced counterterrorism prosecutor normally located in EDNY (the district where JFK Airport is located), Ahmad is an expert in prosecutions involving extraditions (because of the JFK connection, many of those go through EDNY, and that’s where a lot of the important precedents are). Also of note, given the questions around whether there are two or three parts of a Mueller investigation on which Flynn cooperated, she’s an Arabic speaker.

We’ve not seen a substantive plea or charge related to what I’ll call the Middle Eastern graft (centered around, but not limited to, the Seychelles meeting Flynn attended), though we know that Mueller has spent a lot of time investigating it, and that’s an area where Flynn’s cooperation would be key. Given Ahmad’s skill set, it would make sense that she would be involved in those areas of the investigation.

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

Birds of a Feather: Comparing ‘Sparrows’ Chapman and Butina

Name: Anna Vasilyevna Kushchyenko Chapman Maria Valeryevna Butina
Born:

Place:

23 February 1982

Volgograd, Volgograd Oblast, Soviet Union

November 10, 1988

Barnaul, Siberia, Soviet Union

Education Economics (Masters)

Moscow University or RUDN University (unclear)

Moscow, Russia

Political Science, teaching

Altai State University

Barnaul, Siberia, Russia

Marital Status: Divorced (2006) Single
First Entered U.S.: 2009 2011
Visa Y/N: Unclear Yes
Visa Type: Unclear – Acquired residency in U.S. as British citizen by marriage Initially traveled to/from U.S. with Russian official Aleksandr Torshin; applied for F-1 student visa in 2016
Work in U.S.: CEO, PropertyFinder LLC (real estate sales) Special assistant to Aleksandr Torshin; gun rights activist; student
Arrested: 06/27/10 07/15/18
Charged with: 18 USC 371 Conspiracy,

18 USC 951 Agents of Foreign Governments

18 USC 371 Conspiracy,

18 USC 951 Agents of Foreign Governments

Though Marcy has already discussed Maria Butina’s recent attempt to avoid prosecution as a Russian spy under 18 USC 951, it’s worth comparing two Russian women charged on different occasions with violating the same act.

There are some similarities including the hair color, and some key differences — Chapman and Butina aren’t clones. Their behavior and achievements in the U.S. on behalf of Russia suggest a change in methodology over time.

The indictment charging Chapman included her mission, decrypted from a 2009 message sent to Chapman and a co-conspirator:

Butina’s mission appears to be similar, but there’s no decrypted message included in the Department of Justice’s Arrest Affidavit to compare with that in Chapman’s indictment. We must rely on Butina’s translation of another document she shared by email with ‘US Person-1,” believed to be Paul Erickson.

Both Chapman and Butina had missions or assignments; Butina’s appears to be worded more loosely but a full text of the email is not publicly available to make a more accurate assessment. Both women were expected to get close to and develop relationships with U.S. policy makers.

What may explain why Butina’s mission is worded a little differently: between the time Chapman receives her assignment and Butina shares her mission with U.S. Person-1, the policymakers have changed from Democrats to Republicans.

The Democrats were also much more difficult and distant; we can see in other interactions between Illegals Program spies including Chapman that targets weren’t as readily engaged as U.S Person-1. Though Americans who interacted with Illegals Program spies were amazingly credulous, the spies still didn’t get very close to their intended target, Hillary Clinton.

By the time Butina began her work in 2011, methods had changed. Instead of tradecraft seen in the Buryakov case circa 2013-2015 and the earlier Illegals Program circa 2010, Butina is initially accompanied by a Russian official – no need for Butina to implement additional traditional tradecraft to report intelligence when they are their own channel, subordinate spy to superior and minder. Once a relationship between Butina and US Person-1 had been well established, tradecraft was even more nominal – we don’t see in the Arrest Affidavit anything more complicated than a commercially available laptop computer and cellphone.

The descriptive name of the assignment on which Butina worked also indicated a shift — “Project Description ‘Diplomacy'” —  to building constructive (konstrucktivnyh) relations with an organization central to influence over the Republican Party, with an understanding that they (Russia in concert with Political Party 1 and Gun Rights Organization) had some ‘right to negotiate’. This is far more substantive than Chapman’s assignment to seek and develop ties with key contacts.

Spying operations changed along the arrest and deportation of the Illegals Program spies and in sync with a transition in U.S. Politics:

— The shift in Congress from Democratic Party to GOP with the 2010 election may have been a trigger for a new approach once the 112th Congress was sworn in;
— The transition happened in sync with the embrace of Torshin by the National Rifle Association (NRA);
— Change from Clinton to Kerry as Secretary of State likely played a role given the expectation Clinton would be the front runner for the Democratic Party’s presidential nomination.

But one key factor may have changed the tack Torshin and Butina took compared to Chapman and the Illegals: the Supreme Court decision in Citizens United, Appellant v. Federal Election Commission on January 21, 2010.

Now there was a means to funnel money to meet Torshin’s and Butina’s efforts without the level of difficulty other methods might have had before 2010. They could identify, meet, target, influence, and point to a candidate the NRA could fund using Russian money — in effect, developing and recruiting unwitting (or witting) agents.

They collected Republican members of Congress to exploit as useful idiots, in other words.

No wonder Butina had to hide behind a seemingly innocuous student status. Besides masking the reason why she was in the U.S., she needed to appear lower on the cultural status scale than the GOP’s easy marks on which she worked. In contrast, Chapman only needed the appearance of a real estate gig to enable her to poke around.

Note again in the excerpt from the DOJ’s Arrest Affidavit the ‘right to negotiate’ — does this suggest that Citizens United, combined with NRA’s welcome, that Russia felt it had an alternative (read: illegitimate) path to diplomacy, circumventing a Democratic White House between 2011 and 2017?

It’s clear something changed after 2010 at the NRA with regard to allocation of money between lobbying and campaigning.

Never mind that gun control advocacy group the Brady Foundation was outspent by an overwhelming amount. The NRA shifted its practice dramatically in 2012 from spending on lobbying instead to campaigning, just about the time Torshin had fully integrated Butina into a gun rights advocate as his “special assistant.”

In 2012 the NRA also transitioned away from relying as heavily on the  American Legislative Exchange Council (ALEC), doing more of its policy work and outreach directly through GOP candidates. ALEC executed a PR feint — backing away publicly from gun rights issues and the Stand Your Ground laws it helped promote — but in reality it was ceding to the NRA these efforts because ALEC was no longer needed after Citizens United as a legislative front. The NRA could handle their issues directly with candidates under the guise of campaign support.

The rest is history, with Butina taking selfies with NRA’s president David Keene and various GOP candidates to document her benchmarks along the way through Trump’s 2016 campaign.

(Conveniently, Trump trademarked his tagline, Make America Great Again, in November 2012.)

Butina’s legal team may argue against a charge of violating 18 USC 951 as a negotiating chip, claiming she didn’t spy. If either of these red-capped sparrows could have claimed they weren’t a spy, it wasn’t Butina. Her mission was successful in a way Anna Chapman could only have dreamed.

A Day after Maria Butina Argues Influence Operations Shouldn’t Be Charged as Spying, Plea Negotiations Start

As a number of people reported, on Friday, the government and Maria Butina got the court to delay her case by two weeks so they can try to resolve it, suggesting they’re in plea negotiations.

In support of this motion, the parties state that they continue to engage, as they did prior to yesterday’s defense filing, in negotiations regarding a potential resolution of this matter and that those negotiations would be potentially hindered by simultaneously engaging in motions practice. The parties further agree that to make the best and most efficient use of the Court’s time and resources to decide any motions in the event those negotiations are unsuccessful, it would be prudent to continue the upcoming hearing and its accompanying motions schedule for approximately two weeks.

As part of that delay, Butina withdrew a motion submitted on Thursday without prejudice (meaning she can resubmit it if plea talks fail). The motion asked the court to declare 18 USC 951 (which is what the US government charges foreign spies with) unconstitutional as applied to influence operations.

The motion lays out a bunch of hypothetical cases with vague parallels to Butina’s to lay out the danger of using 951 to prosecute those conducting influence operations. Some are farcical, in which a thoughtful grandmother takes on the role that Aleksandr Torshin does in Butina’s operation.

An unregistered, lonely grandson from an unpopular, provincial country accepts the advice of his grandmother about how to make friends. She thoughtfully directs him to go to prayer groups and same-interest meetups to meet people with common interests. He violates section 951 if the grandmother is a foreign official, even though the grandmother provided such direction while visiting the United States on holiday.

A non-hypothetical comparison, however, is more apt, arguing convincingly that an Israeli influence tour might be prosecuted if Israelis were treated with the suspicion Russians currently are.

Consider recent events regarding Israeli soldiers touring cities across the United States for the 11th Israeli Soldiers Tour to speak at venues, including college campuses, to raise awareness of the realities of their service.10 Sponsored by StandWithUs, an Israel advocacy group funded and supported by hasbara organizations and the Israeli government, these soldiers travel the United States to conduct influence operations intended to pacify U.S. views, change foreign policy, and put a human face on the Israeli military. Is there any doubt that such unregistered agents could be charged under the same interpretation of section 951 used against Maria– for operating in the United States as “agents” of Israel when directed to go to U.S. schools and then brief their IDF11 military commanders on their reception in the United States? Is there any doubt that they wouldn’t be? The point is not that such activities are improper. They are not. However, they are precisely the kind of educational exchanges and necessary uninhibited marketplace of ideas that are sought and encouraged when foreign students and visitors like Maria are admitted to U.S. universities.

The motion ultimately argues that before using 951 against an influence operation the statute should have the kind of limits that exist in the FARA statute.

To resolve the constitutional problem presented by the statute’s broad application, this court should—at least as to political activities—narrow the sweep of section 951 so that it aligns more closely with the constitutional safeguards recognized by Congress in the Foreign Agent Registration Act (known as “FARA”).

Worse, as for cases involving ‘political activities,’ it allows the government to pursue harsher penalties with additional restraints on individual liberty, compare 18 U.S.C. § 951 (10 years imprisonment) with 22 U.S.C. § 618 (5 years imprisonment), without enduring the additional cost of satisfying higher burdens of proof, see 22 U.S.C. §§ 611(o) and 618(a) (authorizing prosecution only for “willful” violations and specific kinds of “political activities”), thus circumventing the inherent check on government overreaching that the Fifth Amendment Due Process Clause was designed to instill. If left unchecked, federal investigators and prosecutors will have strong incentives to prosecute political activity cases under section 951 instead of FARA, so they can reap the law-enforcement benefits of section 951’s penalties without paying the price of higher burdens of proof.

To avoid that distortion, this court should consider the catch-all, sweeping application of section 951 when applied to political activities, in comparison with the statutory restraints of FARA as applied to the same, in assessing whether section 951 exposes Maria to the risk of arbitrary enforcement. Such an approach would provide an accurate answer to the doctrinal question at hand: whether section 951 is constitutionally deficient (and/or in need of a limiting construction) because it “confers on police a virtually unrestrained power to arrest and charge persons with a violation” thereby permitting “policemen, prosecutors, and juries to pursue their personal predilections.” Kolender, 461 U.S. at 358.

It’s a fair argument, at least in this case. Back in August, I did two posts pointing out there was little difference between what Paul Manafort was accused of in his DC case and Maria Butina was accused of.

It’s unclear whether the plea negotiations are a response to this motion or not. Some of the evidence against Butina described thus far suggests her operation has the approval of Putin himself (though the Israeli StandWithUs tour is the kind of thing Bibi Netanyahu likely loves). But other evidence — such as a claim she’s coordinating with FSB (which, after all, is the closest analogue to the FBI) appears sketchy. So while it’s possible that Butina is a privately funded spy running an influence operation on behalf of the Russian government, it’s also true that to prove that, the government may have to share more classified information than they care to. And while I’m skeptical the constitutional challenge to 951 would work (in part because courts are loathe to tamper with national security law, in part because the claim that Butina chose to come to the US as a student does seem to have been chosen with the influence operation in mind), the government probably wants to retain their ability to use it with clearcut spies engaging in influence operations.

So I could imagine the government might be willing to settle this with either a FARA plea (which would further reinforce the FARA regime Mueller has introduced) or a visa fraud charge, particularly if Butina were willing to implicate Paul Erickson and other Americans who had helped her efforts.

Maria Butina’s Legal Team Embraces Disinformation (with Help from Russia)

One key prong of Republican propaganda attempting to discredit the Mueller investigation has been to claim Trump associates were targeted by informants. Perhaps the most brazen example was when Roger Stone claimed a Russian whose offer of dirt he entertained (but claims to have refused to pay for) was an FBI informant. But George Papapdopoulos has spawned an entire subindustry of such claims.

It appears that Maria Butina’s attorneys have adopted that approach. In a letter to her attorneys the prosecutors posted to the docket the other day, they insist (as DOJ has had to insist to Republicans in Congress) that they are not sitting on evidence of approaches by informants.

During our previous discussions, you have advanced certain hypothetical scenarios involving your client, including a supposed “dangle” operation or the acquisition of exculpatory information from “Cis,” which we take to mean confidential government informants. It appeared at the time of our discussions, that you based these ideas not on firsthand knowledge of any events, but rather on speculation based on claims made in some unidentified media articles. Inexplicably, however, in your October 18, 2018 email, you–for the first time–firmly assert that “[w]e know this information exists [and] have called it out by name…” [emphasis added]. The government was surprised by this newly adamant assertion, and we invite you to provide us any additional information you may have concerning the provenance or existence of the information you request.

Notwithstanding its speculative nature, the government took your original request seriously and made specific inquiries about the hypothetical scenarios you advanced. Regarding the scenarios described in your October 18, 2018 email, based on our reviews to date, we are not aware of any information that would trigger any disclosure obligations regarding either a “dangle,” successful or otherwise, or information obtained from any confidential informant. We are aware of no surveillance targeting your client that occurred prior to in or around [redacted] We will obviously continue to review the government’s holdings for such information, as well as any additional surveillance records of your client and we will continue to discuss with you any other materials that you consider potentially exculpatory. If that ongoing review yields information that should be disclosed to you, we will certainly do so.

Don’t get me wrong. DOJ has a history of playing games with discovery, or of interpreting discovery narrowly so as to hide other prongs of an investigation. So the allegation from Butina’s lawyers, by itself, is not outrageous.

Except it seems to be a part of the Devin Nunes/Mark Meadows/Jim Jordan propaganda effort in Congress, driven by a bunch of half-wits who leak information that they don’t understand.

Indeed, this incident raises real questions for me on whether the House effort has now taken not only to defending Donald Trump, but also Maria Butina, an alleged foreign spy whose own writings indicate Putin knew of her operation.

Meanwhile, DOJ’s letter to Butina’s team reveals that they have not picked up a hard drive of discovery DOJ made available a month ago.

With respect to materials provided to you so far, we have made an FBI CART examiner available to you to help you navigate the electronic evidence, and we made a second hard drive of electronic evidence available to you over a month ago, which you have thus far reclined to retrieve.

The claim that Butina’s team has left evidence sitting for a month comes just days before Russia’s Foreign Affairs spokesperson, Maria Zakharova, claimed that DOJ has not handed over discovery to her and used that to claim DOJ is treating her unfairly.

It is baffling that the court considering Maria Butina’s case has not yet handed over the case material to her, although the hearing is scheduled for November 13. Unfortunately, this gives us yet another reason to doubt the impartiality of American justice system.

Again, it is not unheard of for DOJ to play games with discovery. But in this case, particularly in context of obvious propaganda serving Trump and other Republicans’ interest, it seems like Butina’s defenders both in and outside the country have decided on a disinformation strategy rather than a direct defense of her case.

Update: The parties just asked for Butina’s case to be put off for three weeks to deal with discovery. Maybe in the interim, the government will find the evidence of informants sidling up to Butina that the claim is not exculpatory.

Is a Tie with Vladimir Putin What Makes Mariia Butina More of a Spy than Paul Manafort?

Given my continued obsession with the border between the spying charge (18 USC 951) with which Mariia Butina got charged and the FARA charge (22 USC 611 et seq.) with which Paul Manafort got charged, I find this footnote from the government’s opposition to Butina’s request for bail of particular interest.

14 The defendant also attempts to rely on the government’s search warrant seeking “evidence of a potential violation under FARA.” ECF No. 23-1 at 7. As the defendant later acknowledges, id. at 15, the search warrants the government obtained for the defendant’s residence authorized it to search for potential violations of 18 U.S.C. §§ 371 and 951, as well as 22 U.S.C. § 611 et seq.

It reveals that at the time they searched Butina’s residence on April 25, 2018, the FBI had not determined whether they considered her just a sleazy foreign influence peddler or a spy. The government had explained that, in that or a subsequent search they found several pieces of evidence she had ties to the FSB, including a note reflecting a job offer. The search also included access to her devices, which revealed a slew of “taskings” from Aleksandr Torshin, which the government will use (if this ever goes to trial) to prove Butina worked as an agent for the Russian government.

So that may be one of the things that led them to charge her as a spy, rather than just a sleazy influence peddler.

The opposition filing provides more details, however, that may explain the charge.

Pre-meditation: the operation started in 2015

I had noted, here, that one difference between Butina and Manafort likely stemmed from her necessity to lie to get a visa, something the government repeats here.

In 2016, the defendant applied for and was granted an F1 student visa to study at American University in Washington, D.C. On her application, she identified her current employer as “Antares LLC” and described the Russian Official as a previous employer. Nonetheless, once resident in the United States, the defendant continued her efforts at the direction of the Russian Official to establish connections with U.S. Political Party 1 and other U.S. officials and political operatives.

They also defend a claim they made about her current visa, which she obtained to ensure she’d be able to travel back and forth from Russia, another detail the defense had spun to great effect.

The defense asserts, ECF No. 23-1 at 13 n.12 & ECF No. 23-8, that the government made a misrepresentation regarding the type of visa for which the defendant recently applied and implies that it did so intentionally. The government acknowledges the error in its Memorandum in Support of Detention regarding the label it applied to the visa. ECF No. 8 at 8. But the substance of the government’s contention—that the defendant could travel to and from the United States per her new visa’s terms, but not per the terms of her F-1 visa after her graduation—is true of the Optional and Practical Training visa extension for which the defendant applied. In other words, the “B1/B2” label the government used to describe the visa was incorrect, but its underlying its argument was correct.

But this filing also adds further details of how pre-meditated Butina’s plan was, describing a plan she wrote up in March 2015.

Beginning as early as 2015, the defendant wrote a proposal intended for Russian officials laying out her plan to serve as an unofficial agent or representative to promote the political interests of the Russian Federation vis-à-vis the United States.

[snip]

In 2015, the defendant created a document entitled “Description of the Diplomacy Project,” in March 2015, which included a proposal to cultivate political contacts in the United States.

Interestingly, amid a list of Russian officials the FBI has evidence she had contact with, is a phone call she had with Sergey Kislyak in May 2015, when this operation was still in the planning stages.

At the detention hearing on July 18, 2018, defense counsel argued, “There’s no evidence [the defendant has] been in a diplomatic car. There’s no evidence that she’s been to the embassy. There’s no evidence that she’s been in contact with the consulate. ECF No. 12 at 55:21-25. But after the government proffered that it had seen photos of the defendant with the former Russian ambassador to the United States, ECF No. 12 at 58:8-18, counsel admitted that he was aware of at least one photograph of the defendant with the former Ambassador at “a movie screening hosted by a Russian cultural group in Washington.” Id. at 59:19-21. The government now proffers that it possesses additional photographs of the defendant and the Russian Official with the former Russian ambassador to the United States; that the defendant’s calendar shows a call with the former ambassador in May 2015; and that the defendant’s journal reflects her plan to meet with the current Russian ambassador to the United States upon his arrival to the United States. The government also possesses a photograph of the defendant with the Russian ambassador dated October 2017. [my emphasis]

Putin’s personal involvement

Finally, as noted here, this filing provides more evidence of Putin’s involvement (even though one premise of the operation is to suggest some in Russia are planning for a post-Putin future). The filing describes Erickson calling Torshin “Putin’s emissary.”

The government has developed other evidence over the course of the conspiracy that establishes taskings by the Russian Official (whom U.S. Person 1 has referred to as “Putin’s emissary”) and actions within the United States in response to those taskings by the defendant

It describes Erickson pitching Putin’s involvement when arranging for the Russian delegation to the National Prayer Breakfast.

Reaction to the delegation’s presence in America will be relayed DIRECTLY to President Putin and Foreign Minister Sergey Lavrov (who both had to personally approve the delegation’s travel to this event).

And that Putin involvement came at the last minute — the weekend of January 20-21, 2017.

[Erickson] noted, “I was ahead of this in December, but last weekend Putin decided to up his official delegation – if we can accommodate them, we can empower rational insiders that have been cultivated for three years.”

Diplomatic attention even beyond propaganda-making

All of which may explain why the Russians have made such an effort to pressure for Butina’s release.

Since the detention hearing in this case, the actions of the Russian Federation and its officials toward the defendant have confirmed her relationship with, and value to, her own government. To date, the Russian government has conducted six consular visits with the defendant. It also has passed four diplomatic notes to the U.S. Department of State.2 According to the Russian Ministry of Foreign Affairs, Russian Foreign Minister Sergey Lavrov has spoken to the U.S. Secretary of State twice to complain about this prosecution.3 The official Kremlin Twitter account changed its avatar to the defendant’s face and started a #FreeMariaButina hashtag. RT, a Russian television network funded by the Russian government, has published numerous articles on its website criticizing this prosecution and the defendant’s detention.4 Russia has issued more diplomatic notes on the defendant’s behalf in the past month than for any other Russian citizen imprisoned in the United States in the past year. Put simply, the Russian government has given this case much more attention than other cases.

2 Diplomatic notes are used for official correspondence between the U.S. Government and a foreign government. The Department of State serves as the official channel for diplomatic communications between the U.S. government and a foreign government.

3 Press release on Foreign Minister Sergey Lavrov’s telephone conversation with US Secretary of State Mike Pompeo, July 21, 2018 available at http://www.mid.ru/en/web/guest/foreign_policy/news/-/asset_publisher/cKNonkJE02Bw/ content/id/3302434 (last accessed Sept. 7, 2018); Press Release on Foreign Minister Sergey Lavrov’s telephone conversation with US Secretary of State Mike Pompeo, August 23, 2018, available at http://www.mid.ru/en/web/guest/foreign_policy/news/-/asset_publisher/ cKNonkJE02Bw/content/id/3323966 (last accessed September 7, 2018).

4 See, e.g., “Accused ‘Russian Agent’ Butina moved to another jail, now in ‘borderline torture’ conditions,” RT, August 19, 2018, available at https://www.rt.com/usa/436301-butinamoved-torture-prison/ (last accessed Sept. 2, 2018); “‘A real witch hunt’: Moscow says student Butina is being held as ‘political prisoner’ by US,” RT, July 26, 2018, available

Though, of course, some of this is the simple counterpart to what Butina’s attorneys complain DOJ is doing: because she’s a pretty woman, she makes for good propaganda that Russia can use to accuse the US of abuse. Still — Butina has gotten more reported attention than even Yevgeniy Nikulin, another case the Russian government has shown exceptional interest in.

Spying doesn’t require tradecraft

Her lawyers’ opposition to a government bid for a gag order repeats, in more dramatic fashion, a claim they had made in their bid for bail: that the government has presented no evidence of traditional tradecraft.

Maria Butina is in a cell, pretrial, 22 hours a day for crimes she did not commit and for government falsehoods and never-tested theories of culpability that have not (and will never) pan out. For all of the government insinuation and media coverage of Hollywood style, spy-novel allegations, in reality this case is bereft of any tradecraft or covert activity whatsoever. There are no dead drops, no brush passes, no secret communication devices, no bags of cash or payoffs, no bribes, no confidential secret information gathering, no espionage type activity, and no agency or agreement to commit crime.

Ultimately, though, the government relies on the elements of the offense, and confirm what I had suggested here — “he mis-states what the materials say about exempting political activity, not least because, per other materials, section 611 can be a subset of a section 951 violation.”

The elements of a violation of 18 U.S.C. § 951 are that (1) the defendant acted in the United States as an agent of a foreign government; (2) that the defendant failed to notify the Attorney General of the United States that she would be acting in the United States as an agent of a foreign government prior to so acting; and (3) that the defendant acted knowingly, and knew that she had not notified the attorney general.

But neither the USAM nor the Criminal Resource Manual contain any provisions that “specifically exempt[] section 951 from applying to ‘foreign agents engaged in political activities.’” ECF No. 23-1 at 7. Setting aside whether the defendant’s alleged activities are “purely political”—which the government does not concede—the sections of the USAM and Criminal Resource Manual cited by the defendant do not specifically exempt political activity undertaken at the behest of a foreign government or foreign government official from prosecution under 18 U.S.C. § 951. Further, the Inspector General’s Report cited by the defendant, id. at 6, n.4, quotes National Security Division officials as stating, “unlike FARA . . . Section 951 can be aimed at political or non-political activities of agents under the control of foreign governments.” U.S. DOJ, Office of the Inspector General, Audit of the National Security Division’s Enforcement and Administration of the Foreign Agents Registration Act, at ii (Sep. 2016), available at https://oig.justice.gov/reports/2016/a1624.pdf (last visited Aug. 26, 2018). More importantly, the USAM “is not intended to, does not, and may not be relied upon to create any rights, substantive or procedural, enforceable at law by any party in any matter civil or criminal.” United States v. Goodwin, 57 F.3d 815, 818 (9th Cir. 1995) (quoting USAM § 1-1.100); cf. United States v. Caceras, 440 U.S. 741, 754 (1979) (IRS manual does not confer any substantive rights on taxpayers but is instead only an internal statement of penalty policy and philosophy). 14

One final thing: this opposition motion makes it clear how pissed Butina and Torshin were when news of the DNC hack broke, knowing it would focus more attention to their own operation.

In July 2016, in a series of revealing communications, the defendant, U.S. Person 1, and the Russian Official expressed concern about how their operation might be affected by news reports that Russia had hacked the emails of the Political Party 2 National Committee. U.S. Person 1 worried that “it complicates the hell out of nearly a year of quiet back-channel diplomacy in establishing links between reformers inside the Kremlin and a putative [Political Party 1] administration (regardless of nominee or president). . . . What a colossal waste of lead time.” The defendant told the Russian Official, “Right now I’m sitting here very quietly after the scandal about our FSB hacking into [Political Party 2’s] emails. My all too blunt attempts to befriend politicians right now will probably be misinterpreted, as you yourself can understand.” The Russian Official responded by telling the defendant, she was “doing the right thing.”

Parallel processing: Not just about Trump

And it describes Butina first latching on to Scott Walker before picking up with Trump.

At some point, she identified a particular candidate (“Political Candidate 1”), whom she believed to have the best chance of becoming Political Party 1’s nominee for President. On July 14, 2015, the Russian Official requested that the defendant send him a report about Political Candidate 1’s announcement of his candidacy for the Presidency. She did so the next morning. After recounting Political Candidate 1’s speech, the defendant reported that she had a “short personal contact” with Political Candidate 1, with whom she had had previous personal contact, as well as one of his three advisors in matters of international politics. The day prior, the defendant had written to the Russian Official, “Judging from American polls – our bet on [Political Candidate 1] is correct.”

It describes the arc of the operation as an attempt to be well-positioned after the 2016 election.

[Butina] was working as an undeclared agent on behalf of the Russian Federation to position herself and that official to exert Russian influence over U.S. policies towards Russia after the 2016 Presidential election.

All that leads me to believe that the government is beginning to view the Torshin operation as a parallel effort to the election hack one, an effort that had Putin’s direct involvement in.

So it’s not just that the government has decided she has real ties to Russia’s spooks. It’s that the scope of her effort, and the involvement of Putin, raises the stakes for her custody, but also for any attempt to learn how these operations fit together.