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Trump’s Never-Declined Invitation from Deputy Prime Minister Sergei Prikhodko

In an interview with NYT last year, George Papadopoulos claimed that he had a call scheduled with Stephen Miller on April 27, 2016, when he probably would have told him that Joseph Mifsud had just told him that Russians had dirt on Hillary Clinton in the form of thousands of emails they planned to drop anonymously to help Donald Trump. But the call didn’t go through.

PAPADOPOULOS: That’s all I can say. I mean, actually, and the reason why I don’t know how much wiggle room — I don’t think I’m really leaving myself any wiggle room at all because probably 99 percent of my communication with the campaign was over email. You know, I was living in London. You know, I met some officials face to face very briefly. So the place I would have potentially sent this information — I think it’s public — I mentioned to Stephen Miller I’m receiving interesting messages from Moscow about a meeting, when the time is right. That was the same day that I had received that information. I think I had a scheduled call with Miller that same day, never went through, and perhaps that’s where it went. It just stayed in my mind.

[Later in the interview.]

MAZZETTI: One of the things that seems the most puzzling out of this whole Trump-Russia story is that you’re told about this pretty explosive information. It is information that would no doubt help the Trump campaign. You wanted to help the Trump campaign. You were very eager to gain, cement, a place in the campaign. And yet, you say you didn’t tell anyone about it but you did tell the Australian diplomat and the Greek foreign minister. Seems strange for people to sort of —

PAPADOPOULOS: I allegedly told the Australian, and I certainly told the Greek foreign minister, but let’s not forget, though, at the time I was shuffling between Europe quite frequently. I wasn’t at a campaign headquarters, where I would have the opportunity to sit down and probably talk with campaign heads. So, I actually I don’t find it shocking that I wouldn’t have told them something like this, considering my interactions with the campaign was, as I stated, probably 99 percent done via email. And maybe — you never know — maybe if the call between myself and Stephen Miller occurred that day, I would have told him. But that call never went through, and we’re left with receiving interesting messages from Moscow. It’s how fate works sometimes, I guess.

According to his statement of offense, after his second interview with the FBI, he got a new phone number, suggesting he ditched his cell phone.

On or about February 23, 20 17, defendant PAPADOPOULOS ceased using his cell phone number and began using a new number.

According to the government’s sentencing memo in his case, Papadopoulos hid the existence of a different phone he used to communicate with Mifsud while in London until his fourth and final interview with the FBI.

The defendant also did not notify the government about a cellular phone he used in London during the course of the campaign – that had on it substantial communications between the defendant and the Professor – until his fourth and final proffer session.

This was a guy working pretty hard to hide his communications — including any he had on encrypted apps that would bypass his phone company.

Which is why I find details about the Trump Organization response — or rather, non-response — to an invitation from Russia’s Deputy Prime Minister, Sergei Prikhodko, to attend the St. Petersburg International Economic Forum, the same event Cohen was supposed to attend to arrange the Trump Tower Moscow deal.

Here’s what the timeline of that invitation looks like, according to the Mueller Report (starting at page 78 of Volume I).

December 21, 2015: Mira Duma emails Ivanka passing along Prikhodko’s invite as an attachment

January 7, 2016: Ivanka forwards email to Rhona Graff

January 14, 2016: Graff replies to Duma by email saying Trump would have to decline because of his travel schedule, asking whether she should send a formal declination

January 15, 2016: Duma replies that a formal denial note would be appropriate

March 17, 2016 (according to Trump’s written response, though no email is cited in the report): Prikhodko emails Graff again inviting Trump to SPIEF

March 31, 2016: Graff prepares a two-paragraph letter declining the invitation and forwards it to another assistant to have Trump sign it, which he doesn’t sign

March 31, 2016: Robert Foresman follows up a phone introduction by Mark Burnett with an email to Graff, explaining that he had set up a back channel between George W Bush and Putin and discussing an “approach” by “senior Kremlin officials” asking for a meeting with Lewandowski about topics he did not want to include on an unsecure email

March 31, 2016: At a meeting of Trump’s foreign policy advisors, he responds favorably to Papadopoulos’ pitch to set up a meeting between Trump and Putin

April 4, 2016: Graff forwards that email to the same assistant who had put the invitation declination on letterhead

April 26, 2016: Foresman reminds Graff

April 27, 2016: Graff forwards the initial March 31 email and the April 26 email to Lewandowski

April 27, 2016: Papadopoulos emails Miller, “Have some interesting messages coming in from Moscow about a trip when the time is right”

April 27, 2016: Papadopoulos emails Lewandowski,  “to discuss Russia’s interest in hosting Mr. Trump. Have been receiving a lot of calls over the last month about Putin wanting to host him and the team when the time is right”

April 30, 2016: Foresman reminds Graff again, suggesting a meeting with Don Jr or Eric Trump, so he could convey information that “should be conveyed to [the candidate] personally or [to] someone [the candidate] absolutely trusts”

May 2, 2016: Graff forwards the April 30 email to Stephen Miller

May 4, 2016: Cohen tells Sater he would travel before the RNC in July, and Trump would “once he becomes the nominee after the convention”

May 5, 2016: Sater extends invitation purportedly from Peskov to SPIEF

Ultimately, there’s no record Trump did decline the invitation from Prikhodko (nor does the report cite the email he purportedly sent to Graff). Nor does the report describe what happened after Foresman’s invite got sent to Miller.

But it does show that in the wake of Papadopoulos purportedly failing to tell Miller the Russians were offering dirt, he was the guy Lewandowski wanted to field an offer a possible back channel with Russia.

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. 

Giorgi Rtslchiladze’s Honor Has Been Sullied because He Can’t Decide Whether He Knows the Tapes He Suppressed Exist or Not

The image for this post is associated with this post.

Giorgi Rtslchiladze believes his honor has been sullied by Robert Mueller.

Rtslchiladze is a naturalized American businessman from Georgia who shows up several times in the Mueller Report.

First, the section that describes Michael Cohen’s attempts to negotiate a Trump Tower deal explains that Cohen pitched Rtslchiladze on a Trump Tower deal in fall 2015, before deciding to pursue the Sater deal instead.

Also during the fall of 2015, Cohen communicated about the Trump Moscow proposal with Giorgi Rtslchiladze, a business executive who previously had been involved in a development deal with the Trump Organization in Batumi, Georgia.313 Cohen stated that he spoke to Rtskhiladze in part because Rtskhiladze had pursued business ventures in Moscow, including a licensing deal with the Agalarov-owned Crocus Group.314 On September 22, 2015, Cohen forwarded a preliminary design study for the Trump Moscow project to Rtskhiladze, adding “I look forward to your reply about this spectacular project in Moscow.” Rtskhiladze forwarded Cohen’s email to an associate and wrote, “first we could organize the meeting in New York at the highest level of the Russian Government and Mr. Trump this project would definitely receive the worldwide attention.”315 On September 24, 2015, Rtskhiladze sent Cohen an attachment that he described as a proposed “[l]etter to the Mayor of Moscow from Trump org,” explaining that “[w]e need to send this letter to the Mayor of Moscow (second guy in Russia) he is aware of the potential project and will pledge his support.”316 In a second email to Cohen sent the same day, Rtslchiladze provided a translation of the letter, which described the Trump Moscow project as a “symbol of stronger economic, business and cultural relationships between New York and Moscow and therefore United States and the Russian Federation.”317 On September 27, 2015, Rtslchiladze sent another email to Cohen, proposing that the Trump Organization partner on the Trump Moscow project with “Global Development Group LLC,” which he described as being controlled by Michail Posikhin, a Russian architect, and Simon Nizharadze.318 Cohen told the Office that he ultimately declined the proposal and instead continued to work with I.C. Expert, the company represented by Felix Sater.319

313 Rtskhiladze was a U.S.-based executive of the Georgian company Silk Road Group. In approximately 2011, Silk Road Group and the Trump Organization entered into a licensing agreement to build a Trump-branded property in Batumi, Georgia. Rtskhiladze was also involved in discussions for a Trum -branded ro’ect in Astana, Kazakhstan. The Office twice interviewed Rtskhiladze, [redacted]

The details on this second Trump Tower deal show that at some of the initiative for an election season Trump Tower deal came from Trump, not the Russians. This Rtskhiladze deal is noteworthy because he pursued (note the word) deals in the past with the Crocus Group — the Agalarov company — and because Mueller at least suggests he doesn’t entirely buy Rtslchiladze’s representation of the ownership of Global Development Group. Note that Rtskhiladze himself promised Cohen he had ties to the Mayor of Moscow.

An interview with Rtskhiladze is also footnoted in a discussion of Trump Organization’s decision to close out certain business deals in the wake of the election.

After the election, the Trump Organization sought to formally close out certain deals in advance of the inauguration.945

945 Cohen 9/18/18 302, at 1-2; see also Rtskhiladze 4/4/18 302, at 8-9.

The report doesn’t explain why Trump Org would have any open business deals with Rtskhiladze in November 2016.

Note that Silk Road Group is funded by Kazakh bank BTA group, payments to Michael Cohen from which were one of the reasons Mueller investigated him in the first place (and which has sued Felix Sater for attempting to launder funds through a Trump Tower deal).

It’s the second mention of Rtskhiladze that has sullied his name, according to reports and a letter his attorney sent Bill Barr asking for a retraction (Rtskhiladze’s attorney, A. Scott Bolden, works for the same firm, ReedSmith, that is engaging in a trollish defense of Concord Management; the letter he released to the press is actually a revised version of one he sent the day before).

As part of an explanation of why Jim Comey briefed Trump on the Steele dossier on January 6, 2017, a footnote explains that Rtskhiladze texted Cohen about compromising tapes in October 2016.

112 Comey 1/7/17 Memorandum, at 1-2; Comey 11/15/17 302, at 3. Comey’s briefing included the Steele reporting’s unverified allegation that the Russians had compromising tapes of the President involving conduct when he was a private citizen during a 2013 trip to Moscow for the Miss Universe Pageant. During the 2016 presidential campaign, a similar claim may have reached candidate Trump. On October 30, 20 I 6, Michael Cohen received a text from Russian businessman Giorgi Rtskhiladze that said, “Stopped flow of tapes from Russia but not sure if there’s anything else. Just so you know …. ” 10/30/16 Text Message, Rtskhiladze to Cohen. Rtskhiladze said “tapes” referred to compromising tapes of Trump rumored to be held by persons associated with the Russian real estate conglomerate Crocus Group, which had helped host the 2013 Miss Universe Pageant in Russia. Rtskhiladze 4/4/18 302, at 12. Cohen said he spoke to Trump about the issue after receiving the texts from Rtskhiladze. Cohen 9/ 12/ 18 302, at 13. Rtskhiladze said he was told the tapes were fake, but he did not communicate that to Cohen. Rtskhiladze 5/10/18 302, at 7.

As I read it, the entire point of including this reference is not to substantiate the existence of a pee tape. Rather, it’s to explain why Trump may have believed in the existence of one. It actually provides one explanation that makes Trump’s response to Comey’s briefing (as reflected in Comey’s own notes on it) less incriminating, not least his oblique reference to the Stormy Daniels and Susan McDougal allegations.

After all, the communications between Rtskhiladze and Cohen on October 30, 2016 would have happened just days after Cohen paid off Stormy Daniels on October 27. It would be unsurprising if Cohen discussed both with Trump at the same time.

Rtskhiladze is  complaining about a number of things. Some of them are fair complaints about how his communications with Cohen were portrayed in the footnote.

  • Referring to Rtskhiladze as a “Russian” businessman, his lawyer claims, it “implies he participated in a conspiracy to collude or interfere with the 2016 U.S. presidential elections.”
  • Quoting from the texts in isolation, “the isolated texts are suggestive of nefarious undertakings and, as such, defame Mr. Rtskhiladze’s character. Viewing the texts in their entirety against the backdrop of Mssrs. Cohen and Rtskhiladze’s cordial relationship places them in their proper context.”
  • Quoting the “‘Stopping the flow’ gives the impression that you are referencing the alleged salacious content of the alleged acts viewed on the tapes. To the contrary, this was a colloquialism by Mr. Rtskhiladze indicating that there was nothing to the rumors of the tapes, and that he did not believe there were any tapes, nor had he seen what was on the tapes, even if they existed.”
  • Misquoting the text without the word “some” — making the correct quote “stopped flow of some tapes from Russia.” Bolden claims, illogically, that the word some “is crucial as it establishes the fact that Mr. Rtskhiladze had no knowledge of the tapes’ content.”

That last bullet point, of course, makes zero sense. From there, the letter gets even more self-contradictory. Bolden first claims,

The texts that were excised from the Mueller Report clearly indicate that Mr. Rtskhiladze does not have direct knowledge of what was said at the party in Moscow, which he did not attend. Mr. Rtskhiladze also does not know and cannot identify who allegedly made the statements about the tapes. Furthermore, Mr. Rtskhiladze has never seen the tapes and cannot opine on whether they exist. [my emphasis]

Just a few paragraphs after claiming that Rtskhiladze does not know whether the tapes he assured Cohen he had suppressed existed or not, his attorney then claims that he knew the tapes did not exist.

The suggestion that Mr. Rtskhiladze tried to curry favor with Mr. Cohen, the Trump Organization and possibly President Trump himself by allegedly texting that he had “stopped the flow of tapes from Russia” — knowing all the while that the tapes did not exist — is an outrageous and sensation distortion of the communications between Mssrs. Cohen and Rtskhiladze.

Footnote 112 of the Mueller Report would  have the world believe that Mr. Rtskhiladze is at best a caricature of an idle gossip or, worse, an opportunist with deep ties to the Russian business community2 and privy to untoward conduct by President Trump that Mr. Rtskhiladze and others intended to use to embarrass then Candidate Trump, derail his campaign and/or manipulate him after assuming the elected office. There is not a scintilla of evidence to support these inferences and to suggest otherwise is defamatory. [my emphasis]

Footnote 2 in this passage references the other discussions of Rtskhiladze in the report, which show him telling Cohen he had ties to (among others) the Mayor of Moscow; Rtskhiladze doesn’t contest that he has the ties laid out on those sections.

I mean, Bolden is right: these texts do suggest that Rtskhiladze is either a gossip or, more likely, trying to capitalize on information he claimed to not only know about, but be able to affect.

But he’s not actually offering a less damning explanation for them.

What he has done, however, is to call far more attention to them, all in a way that purports to assail Mueller’s credibility, but instead raises even more questions about the relationship between him and Cohen.

Finally, Bolden issues a non-denial denial of having ties with Crocus.

In a similar vein, Mr. Rtskhiladze has not had contact or dealings with the Crocus Group in 14 years, although he considers Crocus a reputable and successful business group. It is inaccurately stated that Mr. Rtskhiladze had a licensing deal with the Crocus Group.

As I noted above, the report doesn’t claim that Rtskhiladze had a licensing deal, it said he was pursuing one. And there’s nothing about this non-denial denial that might suggest Rtskhiladze heard a rumor that — say — fellow Georgian-American Ike Kaveladze was bragging about some compromising tapes, and he made an effort to chase it down.

So one other possible purpose of Bolden’s efforts to impugn Mueller’s integrity all while bringing more publicity to the incident that he claims makes his client look bad is to try to diminish any ill-will the Agalarovs feel towards Rtskhiladze.

Ultimately, though, Rtskhiladze’s lawyer is making thoroughly contradictory claims about this incident rather than offering a less damning explanation of it.

Update: I engaged with the spokesperson for Rtskhiladze, and specifically mentioned the inconsistency between his claim that he didn’t know if the video existed and that he affirmatively did not know. She said that was a typo, and promised to write the most up-to-date statement, but did not send anything.

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 Significance of Trump’s Obstruction of Investigation of His Family’s Campaign Finance Crimes, Plural

In the Barr Memo usurping Congress’ role in determining whether the evidence presented in the Mueller Report amounts to obstruction, he based a lot of his judgment finding no obstruction on the fact that Mueller “did not establish” that Trump and his campaign conspired with Russia.

In making this determination, we noted that the Special Counsel recognized that “the evidence does not establish that the President was involved in an underlying crime related to Russian election interference,” and that, while not determinative, the absence of such evidence bears upon the President’s intent with respect to obstruction.

The line is unbelievably cynical for several reasons. First, right at the beginning of the report, Mueller points out that his use of “did not establish” does not mean “there was no evidence.”

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

Yet in spite of that warning, Barr nevertheless claims that Mueller’s observation that he did not establish Trump’s involvement in a crime related the Russia’s election interference amounts to an “absence of such evidence.”

Moreover, Barr takes that quote out of the context of Mueller’s discussions about the corrupt motives that Trump might have to obstruct the investigation. (I’ve bolded the actual sentence Barr quotes, but included both of Mueller’s discussions of Trump’s implication in potential crimes.)

In addition, the President had a motive to put the FBI’s Russia investigation behind him. The evidence does not establish that the termination of Comey was designed to cover up a conspiracy between the Trump Campaign and Russia: As described in Volume I, the evidence uncovered in the investigation did not establish that the President or those close to him were involved in the charged Russian computer-hacking or active-measure conspiracies, or that the President otherwise had an unlawful relationship with any Russian official. But the evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns. Although the President publicly stated during and after the election that he had no connection to Russia, the Trump Organization, through Michael Cohen, was pursuing the proposed Trump Tower Moscow project through June 2016 and candidate Trump was repeatedly briefed on the progress of those efforts.498 In addition, some witnesses said that Trump was aware that [redacted] at a time when public reports stated that Russian intelligence officials were behind the hacks, and that Trump privately sought information about future WikiLeaks releases.499 More broadly, multiple witnesses described the President’s preoccupation with press coverage of the Russia investigation and his persistent concern that it raised questions about the legitimacy of his election.500

[snip]

Second, many obstruction cases involve the attempted or actual cover-up of an underlying crime. Personal criminal conduct can furnish strong evidence that the individual had an improper obstructive purpose, see, e.g. , United States v. Willoughby, 860 F.2d 15, 24 (2d Cir. 1988), or that he contemplated an effect on an official proceeding, see, e.g., United States v. Binday, 804 F.3d 558, 591 (2d Cir. 2015). But proof of such a crime is not an element of an obstruction offense. See United States v. Greer, 872 F.3d 790, 798 (6th Cir. 2017) (stating, in applying the obstruction sentencing guideline, that “obstruction of a criminal investigation is punishable even if the prosecution is ultimately unsuccessful or even if the investigation ultimately reveals no underlying crime”). Obstruction of justice can be motivated by a desire to protect non-criminal personal interests, to protect against investigations where underlying criminal liability falls into a gray area, or to avoid personal embarrassment. The injury to the integrity of the justice system is the same regardless of whether a person committed an underlying wrong. In this investigation, the evidence does not establish that the President was involved in an underlying crime related to Russian election interference. But the evidence does point to a range of other possible personal motives animating the President’s conduct. These include concerns that continued investigation would call into question the legitimacy of his election and potential uncertainty about whether certain events-such as advance notice of WikiLeaks’s release of hacked information or the June 9, 2016 meeting between senior campaign officials and Russians could be seen as criminal activity by the President, his campaign, or his family.

In both of these discussions, Mueller suggests that Trump may have believed his orders to Roger Stone to optimize WikiLeaks’ releases might be a crime when he obstructed the investigation; and in the discussion Barr extracts the quote from, he also suggests that Trump may have believed the June 9 meeting amounted to a crime.

The former is important given that Trump blatantly lied in his responses to Mueller about talking to Stone about his efforts to optimize WikiLeaks releases, even though at least three witnesses say he did. The prosecutorial decision with regards to WikiLeaks spans Volume I pages 176 to 179, but aside from a footnote explaining why they didn’t charge WikiLeaks for trafficking in stolen property, it is entirely redacted. The prosecutorial decision on Stone optimizing the release of stolen documents spans 188 to 190; it is also largely redacted, though it’s clear there were First Amendment concerns about pursuing it. Note that prosecutors continue to investigate Stone.

By contrast, the discussion of Mueller’s decision not to charge the June 9 meeting as a campaign finance violation is not redacted. Ultimately, Mueller’s team decided not to prosecute it because they did not have admissible evidence that Don Jr and the others knew taking the meeting and the offered dirt was illegal (which raises questions about whether they have hearsay or SIGINT suggesting they did), and because they had a hard time placing a value on the information offered.

The Office considered whether to charge Trump Campaign officials with crimes in connection with the June 9 meeting described in Volume I, Section IV.A.5, supra. The Office concluded that, in light of the government’s substantial burden of proof on issues of intent (“knowing” and “willful”), and the difficulty of establishing the value of the offered information, criminal charges would not meet the Justice Manual standard that “the admissible evidence will probably be sufficient to obtain and sustain a conviction.” Justice Manual§ 9-27.220.

[snip]

There are reasonable arguments that the offered information would constitute a “thing of value” within the meaning of these provisions, but the Office determined that the government would not be likely to obtain and sustain a conviction for two other reasons: first, the Office did not obtain admissible evidence likely to meet the government’s burden to prove beyond a reasonable doubt that these individuals acted “willfully,” i.e., with general knowledge of the illegality of their conduct; and, second, the government would likely encounter difficulty in proving beyond a reasonable doubt that the value of the promised information exceeded the threshold for a criminal violation, see 52 U.S.C. § 30109(d)(l)(A)(i).

[snip]

Additionally, in light of the unresolved legal questions about whether giving “documents and information” of the sort offered here constitutes a campaign contribution, Trump Jr. could mount a factual defense that he did not believe his response to the offer and the June 9 meeting itself violated the law. Given his less direct involvement in arranging the June 9 meeting, Kushner could likely mount a similar defense. And, while Manafort is experienced with political campaigns, the Office has not developed evidence showing that he had relevant knowledge of these legal issues.

[snip]

Accordingly, taking into account the high burden to establish a culpable mental state in a campaign-finance prosecution and the difficulty in establishing the required valuation, the Office decided not to pursue criminal campaign-finance charges against Trump Jr. or other campaign officials for the events culminating in the June 9 meeting. [my emphasis]

This analysis is critically important for a number of reasons.

First, the Report did not say this was not a crime. Rather, it said that under Justice Manual guidelines, Mueller’s team should not prosecute the case because they were unlikely to get and sustain a conviction. The analysis suggests there was a crime, but not one Mueller would win conviction on at trial.

That, by itself, blows Barr’s analysis on obstruction out of the water, because Mueller argued that this probably was a crime. Barr says Trump could not have obstructed justice because there was no underlying crime, but in fact, Mueller said there was a crime, just not one that could be prosecuted successfully.

But it’s crucially important to an impeachment inquiry for another reason (and explains one of the apparent referrals for attempted witnesses tampering of Rudy Giuliani friend Robert Costello to SDNY — though I suspect the fact that the passages  describing Trump’s attempt to tamper with Cohen’s testimony are unredacted means SDNY will not prosecute).

Mueller’s analysis of Don Jr’s receipt of dirt from foreigners could not be prosecuted because it wasn’t clear there was a crime and he didn’t have evidence that those who engaged in the crime knew it was a crime.

But SDNY has already decided that Trump’s hush payments are a crime. And in that case, it’s far harder for Trump to claim he didn’t know it was a crime for corporations to donate to presidential campaigns, because FEC investigated him and Cohen for it in 2011. A pity for Trump that he continues to alienate the guy who saved him from legal repercussions on that crime the last time, Don McGahn.

Mueller treats the question of whether Trump obstructed Cohen’s testimony in its own section, separate from his pressure on Mike Flynn, Paul Manafort, and Roger Stone not to cooperate. After laying out Jay Sekulow’s role in suborning Cohen’s false testimony on the Moscow Trump Tower deal, Mueller actually mentions the hush payments as part of the obstruction consideration.

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

The report shows how, as he did with the Trump Tower deal, Cohen released false statements covering up the President’s actions. It describes the search of Cohen’s property and Trump’s reaction. It describes elaborate efforts to convey to Cohen he’d be “taken care of” if he did not cooperate.

Cohen also recalled speaking with the President’s personal counsel about pardons after the searches of his home and office had occurred, at a time when the media had reported that pardon discussions were occurring at the White House. 1031 Cohen told the President’s personal counsel he had been a loyal lawyer and servant, and he said that after the searches he was in an uncomfortable position and wanted to know what was in it for him. 1032 According to Cohen, the President’s personal counsel responded that Cohen should stay on message, that the investigation was a witch hunt, and that everything would be fine. 1033 Cohen understood based on this conversation and previous conversations about pardons with the President’s personal counsel that as long as he stayed on message, he would be taken care of by the President, either through a pardon or through the investigation being shut down. 1034

The report describes how, after Cohen pled guilty to the hush payments and implicated Trump in them, Trump turned on him.

On August 21, 2018, Cohen pleaded guilty in the Southern District of New York to eight felony charges, including two counts of campaign-finance violations based on the payments he had made during the final weeks of the campaign to women who said they had affairs with the President. 1044 During the plea hearing, Cohen stated that he had worked “at the direction of’ the candidate in making those payments. 1045 The next day, the President contrasted Cohen’s cooperation with Manafort’s refusal to cooperate, tweeting, “I feel very badly for Paul Manafort and his wonderful family. ‘Justice’ took a 12 year old tax case, among other things, applied tremendous pressure on him and, unlike Michael Cohen, he refused to ‘break’-make up stories in order to get a ‘deal.’ Such respect for a brave man!”1046

Only after that does it focus, again, on Trump’s efforts to cover up the Trump Tower Moscow deal, and Trump’s retaliation against Cohen for cooperating on that issue.

When the report conducts the analysis of whether this amounts to obstruction, it includes the SDNY case in both the “nexus to an official proceeding” and “intent” sections.

Nexus to an official proceeding. The President’s relevant”conduct towards Cohen occurred when the President knew the Special Counsel’s Office, Congress, and the U.S. Attorney’s Office for the Southern District of New York were investigating Cohen’s conduct. The President acknowledged through his public statements and tweets that Cohen potentially could cooperate with the government investigations.

[snip]

The President’s concern about Cohen cooperating may have been directed at the Southern District of New York investigation into other aspects of the President’s dealings with Cohen rather than an investigation of Trump Tower Moscow

In other words, even though Mueller didn’t prosecute the hush payments, he treated as one of the things Trump was attempting to obstruct with Cohen’s testimony.

This analysis renders Barr’s judgment — that Trump could not commit obstruction of justice because he didn’t commit the underlying crime — utterly irrelevant and wrong with regards to the President’s efforts to obstruct Cohen’s testimony.

Even with the June 9 meeting, Barr is wrong: Mueller believed there as a crime, he just didn’t believe he could prosecute it.

But SDNY has already decided — and obtained a guilty plea naming Trump as a co-conspirator — that the hush payment investigation that Trump was also obstructing was a crime, with the necessary proof that the criminals knew it was a crime. The 2011 precedent would further back that case.

Barr’s attempt to exonerate Trump on obstruction heavily depends on the fact that DOJ didn’t find a crime involving Trump.

Except DOJ did.

emptywheel’s Mueller Report coverage

The Significance of Trump’s Obstruction of Investigation of His Family’s Campaign Finance Crimes, Plural

How “Collusion” Appears in the Mueller Report

Putin’s Ghost: The Counterintelligence Calculus Not Included in the Obstruction Analysis

Working Twitter Threads on the Mueller Report

The Trump Men and the Grand Jury Redactions

Mueller’s Language about “Collusion,” Coordination, and Conspiracy

The Many Lies and Prevarications of Bill Barr

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 Debate We May Be Having Tomorrow: If Trump Obstructed Justice to Hide Compromise by Russia, Could that Be a Crime?

In my How to Read the Mueller Report post, I said that if Bill Barr’s memo (which claims the report is broken into just two sections, one on the trolls and hack-and-leak activities, and one on the obstruction question) is to be believed, the report won’t provide much detail about the second half of Mueller’s mandate: to figure out the nature of links between Trump’s flunkies and various Russians.

But we have good reason to believe Barr’s memo is not reliable.

Plus, there’s this passage that came out during the pushback from Mueller’s team.

According to a senior law enforcement official who has spoken to members of Mueller’s team, Mueller team members say it includes detailed accounts of Trump campaign contacts with Russia. While Mueller found no coordination or criminal conspiracy, the official said, some on the special counsel’s team say his findings paint a picture of a campaign whose members were manipulated by a sophisticated Russian intelligence operation. Some of that information may be classified, the official said, so it’s not clear whether it will be released in a few weeks when Barr makes public a redacted version of the Mueller report.

At the time Mueller’s prosecutors were leaking to correct Barr’s misleading portrayal of their report, a story said that the report actually shows that Trump’s team was susceptible to the manipulation of people working for Russia.

That is, it may not so much be that Mueller’s team found Trump and his flunkies’ conduct criminal. Rather, maybe they found their conduct naive — susceptible to compromise by Russia.

Their venality likely contributed to their vulnerability as well.

Such a conclusion is what I was pointing to when I suggested one question the report will answer is, “Did Mueller decide Don Jr is simply too stupid to enter into a conspiracy?” The evidence already in the public record, after all, shows that Don Jr took a meeting offering dirt at a time when he believed that cozying up to Russia could help the family business land a ridiculously lucrative $300 million real estate deal. At the end of the meeting, he told Russians who might be deemed agents of the government that the Trumps would revisit sanctions relief if his dad got elected. And contrary to the Trump camp’s public claims, there not only was follow-up after Trump won, but Trump himself did make moves towards giving Russia that sanctions relief.

That exchange could fit all the elements of a conspiracy charge: an agreement to trade dirt and real estate for sanctions relief and overt acts to further the conspiracy. Unless you figured the key player at the center of the agreement to enter into a conspiracy, Don Jr, is too stupid to know what he’s doing.

The leaked conclusion that Trump’s flunkies were manipulated by a sophisticated intelligence operation sure seems to support the “too stupid to enter into a conspiracy” conclusion.

All that said, the only way that such analysis would be consistent with both the regulatory mandate of the report (limiting the report to a discussion of prosecutions and declinations) and Barr’s description of it (saying it was split into the hack-and-leak and trolling section, and the obstruction section) would be if that analysis appeared in the obstruction section. (Frankly, I suspect Barr’s memo is wrong on this point, as Mueller would need to explain that Don Jr is too stupid to enter into a conspiracy, if that’s why he decided not to charge him in one).

That is, it may be that what Trump was obstructing was not criminal conduct, a knowingly engaged conspiracy, but stupid conduct, his failson saying all the words that amount to entering into a conspiracy, without realizing he was entering into one.

The reason Trump may have fired Mike Flynn and Jim Comey and pushed Michael Cohen to lie to Congress may be to hide that he got badly used by Putin’s envoys who appealed to Trump’s narcissism and greed to get him (in the form of his especially stupid son) to agree to sanctions relief.

Such a conclusion would be consistent with the reason Barr exonerated Trump, in usurping Congress’ authority to make that judgment: Trump and his failson didn’t so much knowingly commit a crime — they didn’t mean to enter into a conspiracy with the Russians, it just happened because they’re too weak to resist. Under such analysis, because Trump didn’t commit a crime, he had no crime to obstruct, and therefore did not obstruct.

Again, this is all hypothesis based on the known outlines of the report, at least as presented by an Attorney General who can’t be trusted.

Given that it’s a possibility, however, I want to prepare for the possibility that tomorrow we’ll be debating whether a President can obstruct justice to prevent voters from learning how badly he and his dumb son compromised themselves in an foreign intelligence operation in the course of running a presidential election to get rich.

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. 

Three Times William Barr Said Trading Pardons for False Testimony Was Obstruction of Justice

In the discussion of the Bill Barr memo in the last two days, the discussion of Barr’s claimed views on obstruction have mostly focused on the crazier parts of the memo that got him the job, and not even the passage at the bottom of the first page where he claimed to believe that if a President suborned perjury, it’d be a crime for him just as it would be for anyone else.

Obviously, the President and any other official can commit obstruction in this classic sense of sabotaging a proceeding’s truth-finding function. Thus, for example, if a President knowingly destroys or alters evidence, suborns perjury, or induces a witness to change testimony, or commits any act deliberately impairing the integrity or availability of evidence, then he, like anyone else, commits the crime of obstruction.

There has been far less attention to what he said in his confirmation hearing (where Lindsey Graham did not put him under oath). There were three substantive exchanges about what might constitute obstruction of justice for a President. And all of them get perilously close to behavior that Barr, now ensconced as Attorney General, claimed Sunday did not amount to obstruction of justice.

When Barr answered these questions, he appeared to have little awareness that Trump had floated pardons to — at least — Paul Manafort, Mike Flynn, and Michael Cohen. The first time he got asked about a pardon for false testimony, he stated clearly that would be a crime.

Patrick Leahy, specifically invoking Barr’s sanction of the Caspar Weinberger pardon that squelched the Iran-Contra investigation, asked Barr about pardons.

Leahy: Do you believe a president could lawfully issue a pardon in exchange for the recipient’s promise to not incriminate him?

Barr: No, that would be a crime.

Then, in this exchange from Amy Klobuchar, it appeared to take Barr several questions before he realized she knew more about the evidence than he did, and started couching his answers.

Klobuchar: You wrote on page one that a President persuading a person to commit perjury would be obstruction. Is that right?

Barr: [Pause] Yes. Any person who persuades another —

Klobuchar: Okay. You also said that a President or any person convincing a witness to change testimony would be obstruction. Is that right?

Barr: Yes.

Klobuchar: And on page two, you said that a President deliberately impairing the integrity or availability of evidence would be an obstruction. Is that correct?

Barr: Yes.

Klobuchar: OK. And so what if a President told a witness not to cooperate with an investigation or hinted at a pardon?

Barr: I’d have to now the specifics facts, I’d have to know the specific facts.

Klobuchar: OK. And you wrote on page one that if a President knowingly destroys or alters evidence, that would be obstruction?

Barr: Yes.

Klobuchar: OK. So what if a President drafted a misleading statement to conceal the purpose of a meeting. Would that be obstruction?

Barr: Again, I’d have to know the specifics.

Shortly after that exchange, Lindsey Graham tried to clarify the issue, asking the pardon question at a more basic level, coaching another not to testify, as Trump has done on Twitter repeatedly.

Lindsey: So if there was some reason to believe that the President tried to coach somebody not to testify or testify falsely, that could be obstruction of justice?

Barr: Yes, under that, under an obstruction statute, yes.

Lindsey: So if there’s some evidence that the President tried to conceal evidence? That would be obstruction of justice, potentially?

Barr: [nods]

Admittedly, by the third exchange, both Lindsey and Barr were hedging far more carefully about the set of facts.

But on three different occasions during his confirmation hearing, Barr made some kind of statement that said floating pardons for false testimony would be a crime.

And then, on Sunday, he said it wasn’t a crime.

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. 

There’s a Decent Chance Jon Karl’s Source Is Being or Was Investigated for Obstruction

Jonathan Karl, ABC White House correspondent, reported yesterday with a certainty I’m hearing from none of the DOJ beat reporters that Mueller’s report will amount to nothing.

Sources familiar with the investigation believe there are no more indictments coming from the special counsel. If Mueller follows the guidance of the man who appointed him and supervised his investigation, he cannot publicly disparage those who have not been charged with a crime.

From that, he spun out a letter Rod Rosenstein wrote at a time when Republicans were trying to expose some bureau and CIA informants, and ignored the intent of the Mueller Report, to suggest that Mueller can’t say anything bad (in a confidential report to Bill Barr, not to Congress) about Trump.

[W]e don’t need to speculate on the scope – the man who appointed Mueller has already given us a potential road map on what to expect from the special counsel.

The bottom line: Do not expect a harsh condemnation of President Donald Trump or any of his associates if they have not been charged with crimes.

I said yesterday I have no idea what The Mueller Report will bring — or even if The Mueller Report is actually where we’ll learn about Mueller’s findings. I said that, while there’s abundant evidence of a conspiracy between Trump and the Russians, it may never get charged, including for reasons that have to do with DOJ’s treatment of sitting presidents. That remains true.

But what is also likely true is that at least one of Jonathan Karl’s sources saying that they “believe there are no more indictments coming from” Mueller is either currently or already has been investigated for obstruction.

That’s because the chief source of claims like this — particularly in reporting from White House correspondents — is one or another of Trump’s lawyers, especially Right Wing operative Jay Sekulow and TV lawyer Rudy Giuliani. And we now know that both would have at least been scrutinized for obstruction.

In Sekulow’s case, Michael Cohen says the lawyer edited his perjurious statement to Congress. And even in the Sekulow denial — as reported by ABC News — he denies just that he changed the timeline of Cohen’s statement, not that he edited it.

During a closed-door hearing with the House Intelligence Committee on Wednesday, Michael Cohen, the former personal attorney and fixer to President Donald Trump, shared documents and emails with committee members showing what he said were edits to the false statement he provided to Congress in 2017, in an effort to bolster his public testimony last week, according to two sources familiar with the matter.

Testifying publicly before the House Oversight Committee last week, Cohen said Trump’s current personal lawyer Jay Sekulow changed the former Trump loyalist’s statement to the House and Senate Intelligence Committees regarding the duration of discussions about the Trump Tower Moscow project before he submitted it to Capitol Hill.

Last week Sekulow denied the claims in a statement to ABC News.

“Today’s testimony by Michael Cohen that attorneys for the President edited or changed his statement to Congress to alter the duration of the Trump Tower Moscow negotiations is completely false.”

Mueller cited Cohen’s description of his communications with the White House in this period — and specifically the circumstances of preparing the statement — among the ways he helped the investigation.

Third, Cohen provided relevant and useful information concerning his contacts with persons connected to the White House during the 2017–2018 time period.

Fourth, Cohen described the circumstances of preparing and circulating his response to the congressional inquiries, while continuing to accept responsibility for the false statements contained within it.

With regards to Rudy, ABC News was among the outlets that recently provided details of what appears to be a pardon dangle to Cohen after he was raided.

In the weeks following the federal raids on former Michael Cohen’s law office and residences last April, President Donald Trump’s former lawyer and confidant was contacted by two New York attorneys who claimed to be in close contact with Rudy Giuliani, the current personal attorney to Trump, according to sources with direct knowledge of the discussions.

The outreach came just as Cohen, who spent more than a decade advocating for Trump, was wrangling with the most consequential decision of his life; whether to remain in a joint defense agreement with the president and others, or to flip on the man to whom he had pledged immutable loyalty. The sources described the lawyers’ contact with Cohen as an effort to keep him in the tent.

Yet for all the attention paid to what Cohen was willing to say about the president, his reluctance to answer a question about the last communications he had with Trump or someone acting on his behalf made news on its own. Cohen clammed up and claimed that federal prosecutors were actively probing that very issue.

“Unfortunately, this topic is something that’s being investigated right now by the Southern District of New York, and I’ve been asked by them not to discuss and not to talk about these issues,” Cohen said.

The sources familiar with the contacts said the two lawyers first reached out to Cohen late in April of last year and that the discussions continued for about two months. The attorneys, who have no known formal ties to the White House, urged Cohen not to leave the joint defense agreement, the sources told ABC News, and also offered a Plan B. In the event Cohen opted to exit the agreement, they could join his legal team and act as a conduit between Cohen and the president’s lawyers.

At one point in the discussions, one of the attorneys sent Cohen a phone screenshot to prove they were in touch with Giuliani, the sources said.

According to ABC’s sources, this matter is currently under investigation by SDNY.

I mean, it’s certainly possible that someone else is sourcing Karl’s seeming unique certainty about what will come of the Mueller report. It’s certainly possible that ABC’s White House correspondent has better sources at DOJ than all the DOJ reporters who say they don’t know. It’s certainly possible his sources don’t include someone that DOJ had at least reason to believe had participated in obstruction.

But if Karl’s sources are people that his own outlet has reported to be under investigation for obstruction, he ought to at least temper his certainty that they can be believed.

Update: Rudy has gone on the record with exactly the line that Karl regurgitated yesterday.

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 More Interesting Michael Cohen Redactions: On Viktor Vekselberg

The materials backing the raid on Michael Cohen released yesterday suggest — give the large swaths of redacted pagers — that the investigation into hush payments continues. But the filings also suggest something about Mueller’s investigation.

One of the earliest warrants, dated February 28, 2018, obtained access to a USB drive holding the contents of Cohen’s Gmail account from June 1, 2015 to November 14, 2017 and a business account handed to SDNY from Mueller. The Agent’s affidavit (starting at PDF 36), describes how Mueller got access to those accounts in support of false bank entries, money laundering, and two foreign agent charges, then substantiates the need to access the same information in support of conspiracy, false bank entires, and bank fraud charges.

SDNY does not cite FARA or 951 among the crimes it was investigating.

Nevertheless, the affiant describes how the government came to be interested in Cohen’s Essential Consulting account, an account at First Republic that he hid when negotiating how to deal with his taxi medallion business. The account must have come to Mueller’s attention because of the FARA/Foreign Agent interest.

Cohen started the account on October 26, 2016. We now know he did so to pay off Stormy Daniels, but even on February 28, 2018, SDNY did not include that among the crimes it was investigating. Cohen told the bank Essential Consulting was a real estate consulting company for which his clients would be domestic individuals, which was one of the false statements he made to his bank. The affidavit notes:

[T]here is probable cause to believe that Cohen’s statements and the intended purpose of the account and source of funds for the account were false. Specifically, the account was not intended to receive–and does not appear to have received–money in connection with real estate consulting work; in addition, the account has received substantial payments from foreign sources.

A redaction about a third of a page long follows.

Then, the affidavit describes how a forensic accountant determined the account was used for other purposes, describing five payments. Those payment amounts and sources were:

  • $583,332,98 from Columbus Nova LLC, which is an investment firm controlled by Viktor Vekselberg’s Renova Group
  • $999,800 from Novartis Instruments
  • $550,000 from AT&T
  • $600,000 from Korea Aerospace Industries (KAI)
  • $150,000 from Kazkommertsbank, a Kazakhstani bank, which was listed on accounts as BTA Bank

Following the description of Columbus Nova, there is a redaction.

The affidavit then describes that emails and interviews with people at AT&T and Novartis show that the payments were associated with political consulting and notes that they may violate FARA, which this affidavit was not intended to investigate.

the aforementioned payments to the Essential Consultants Account and MDC&A ostensibly were for political consulting work, including consulting for international clients on issues pending before the Trump Administration.10

10 Based on my review of public sources, I have learned that Cohen is not registered as a lobbyist or a person acting as an agent of foreign principals, as may have been required by the Foreign Agents Registration Act.

It then describes emails supporting that claim for just four of the five companies:

  • KAI
  • BTA
  • AT&T
  • Novartis

In other words, even in the first affidavit, the SDNY Agent includes Columbus Nova, but then drops that out when he substantiates that the account was used for something other than Cohen had told the bank. One way or another, any FARA exposure related to KAI and BTA were still in DC. But Columbus Nova was treated differently than the other foreign entities.

And the discussion of why remains redacted. That may be because nothing ever came of it — though almost $600K is hard to explain away. Remarkably, Republicans remained silent about this payment during Cohen’s congressional testimony, even while they made a big deal about his payments from KAI and BTA.

The 18 pages of still-redacted discussion of the hush payments is interesting, because it suggests SDNY continues to pursue that prosecution, a prosecution that features a recording of Donald Trump admitting criminal intent.

But the small redactions around the Columbus Nova payment are far more interesting.

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 (Unsealed Parts of the) Michael Cohen Investigation

As noted, the search warrants leading up to and used in the April 9 search of Michael Cohen have been partly unsealed. In this post, I want to lay out what we know about how the investigation into Cohen developed.

On July 18, 2017, Mueller’s team got a warrant on Michael Cohen’s Google activity from January 1, 2016 to July 18, 2017, for which they would already have obtained the call records showing whom he was emailing when using it and a preservation order. At the time, they were investigating:

  • False statements to a financial institution
  • Money laundering
  • Acting as an unregistered foreign agent
  • FARA violations

On August 8, 2017, Mueller’s team got a warrant for Cohen’s iCloud account.

On November 13, 2017, they got a warrant for activity associated with a business account, MCDPC, which was hosted by 1&1, as well as for Cohen’s Gmail account going back to June 1, 2015. On November 7, 2017 and January 4, 2018, Mueller got pen registers to obtain records of everyone Cohen was talking to in real time.

While sorting through that evidence, they appear to have discovered more of the bank fraud associated with his taxi medallions.

On February 2, 2018, Mueller provided SDNY a subset of content from Cohen’s iCloud. On February 8, 2018, Mueller referred some of the crimes they were investigating to SDNY, including the taxi medallion payments and other money laundering, and handed them a USB drive with the stuff obtained in those earlier email warrants (but not yet the iCloud one). That month, SDNY got some of the emails turned over as hard copies from third parties using a subpoena, and accessed the toll records for the emails. Before accessing the content, on February 16, 2018, SDNY got a d-order for header information for the two accounts handed over by Mueller. They also interviewed and acquired emails from a number of employees at Sterling, from whom Cohen was getting a loan. Then, on February 28, 2018, SDNY submitted affidavits to access the content handed over from Mueller and to obtain everything in the accounts from the interim period (that is, since November 14), as well as another Gmail and AOL account associated with the taxi medallion related bank fraud.

This suggests that while they had found his Essential Consultants bank account and recognized that he was using it for things he hadn’t informed the bank about, they were not yet focusing on hush payments as an illegal campaign donation.

On March 7, 2018, Mueller handed over the iCloud material to SDNY.

In early April, SDNY started a slew of legal process leading up to its search of Cohen’s properties.

According to the letter associated with this release, they got a warrant for out of jurisdiction materials on April 5 (reportedly for stuff held overseas). I’m still trying to find that in the attachments.

Then, on April 7, 2018, it obtained a warrant to search the existing collection for material related to illegal campaign finance.

Also on April 7, SDNY got a warrant for prospective and historical location data associated with Cohen’s AT&T phones for the periods from October 1, 2016 to November 8, 2016 and January 1, 2018 to present. The campaign finance crimes were the only ones specified in this warrant.

On April 8, SDNY got a warrant for Cohen’s condo, office, safe deposit box, and hotel, as well as two iPhones. This covered all the crimes to which Cohen pled guilty in SDNY, as well as his sleazy influence peddling with BTA, KAI, AT&T, and Novartis, but not Columbus Nova (I’ll return to this). They also got a warrant to use a Stingray to figure out which room he was in at the hotel (like the location searches on his phone, this was just for his campaign finance crimes). Then, on April 9, they went back and got another warrant for the specific room at Loews hotel.

In the materials from SDNY, some names are redacted. The biggest redactions (suggesting ongoing investigation) pertain to the campaign finance crimes, meaning Trump and Trump Organization are in trouble. There may also be redacted material associated with Cohen’s sleazy influence peddling.

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. 

By July 18, 2017, Mueller Had Probable Cause Michael Cohen Was an Unregistered Foreign Agent

SDNY has released the warrants behind his April 9 raid, which are here. They actually include a series of warrants, showing how first Mueller got warrants, then handed parts of the investigation over to SDNY, which then obtained its own warrants tied to the crimes they were investigating. These two affidavits (one, two) are the ones showing that hand-off — basically SDNY asking, on February 28, 2018, for access to email accounts and storage devices that Mueller had already accessed. The second one describes Mueller’s first warrant on Cohen to be dated July 18, 2017.

The same affidavit describes the crimes listed in the earlier warrants. Among those crimes — unsurprisingly — was conspiracy to defraud the US. More surprising, however, are 18 USC §§ 951 (acting as an unregistered foreign agent) and 611 (FARA).

The latter may be tied to Cohen’s work with a Kazakhstan bank (BTA Bank) and Korean airspace company (Korea Aerospace Industries) — which were basically his efforts to monetize his ties to Trump after the election. These were the deals that Republicans made such a big deal about when Cohen testified to the Oversight Committee.

In addition, Cohen was working for Columbus Nova, which was ultimately controlled by Victor Vekselberg. That would be of immediate concern for the question of Russian influence.

The 951 charge, however, is more interesting. It could relate to the same thing (basically arguing that because he was working for instrumentalities of foreign countries, he was their agent — basically a “soft” spy). Or it could relate to his efforts to negotiate a Trump Tower deal for Trump. Note that the November 13 warrant basically extended the first warrant back to June 1, 2015, which would we know would cover the Trump Tower deal (and precede any tie to BTA or KAI).

951 is a charge I always suspected might be used with Paul Manafort (it still might), or even Jared Kushner. But it appears that Mueller’s worries about Trump’s closest associates acting as spies wasn’t limited to Manafort and Flynn, but extended, too, to his personal lawyer. And Mueller already had evidence of that fact by July 18, 2017.

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. 

“I Can’t Be Seen Taking Credit for HIS Victory:” The Purpose of Roger Stone’s Paperback

Towards the end of the day on January 14, amid a three day stint writing the 3,000 word introduction that would justify reissuing his 2016 book, Making of the President, Roger Stone rejected the title suggested by his publisher, Skyhorse Publishing, “The Myth of Collusion; The Inside Story of How I REALLY Helped Trump Win.” He suggests instead, “The Myth of Collusion; The Inside Story of How Donald Trump really won,” noting, “I really can’t be seen taking credit for HIS victory.”

That’s the title the book now bears.

That exchange — and a number of other ones revealed in the correspondence Stone’s lawyers submitted in an attempt to persuade Judge Amy Berman Jackson they weren’t just trying to get publicity for the book when asking for a “clarification” regarding the book on March 1 — raises interesting questions about why he reissued the book how and when he did.

On one level, the explanation is easy: his publishers expected the original book, Making of the President, would be a big seller. They made 100,000 copies when it first came out in January 2017. The book flopped.

So in November 2018, Stone’s rising notoriety — and more importantly, the increased polarization surrounding the Mueller probe — provided an opportunity to recoup some of the losses on the hardcover. At that level, the reissue needs no explanation other than the obvious formula publishers use to make money: Exacerbate and profit off of controversy.

But that doesn’t explain why the project started on November 15, 2018 rather than any time in the year and a half earlier, when Skyhorse would have all those same goals. Nor does it explain how Stone went from expressing no interest in the project to rushing it through quickly in mid-December.

Given the timeline of events and a few stray comments in the correspondence (as I laid out here, Stone has probably withheld at least eight exchanges with his publisher from the court submission, after letting the publisher review what correspondence was there), I think he’s got several other purposes.

As noted below, Skyhorse first approached Stone on November 15, in the wake of the Democrats winning the House in midterm elections. On January 14, Skyhorse president Tony Lyons suggests that “We can send copies [of the book] to all U.S. Senators.” Those two details suggest that Skyhorse intended the book, on top of the obvious financial incentives, to capitalize on the general right wing campaign to discredit the Mueller investigation in an effort to stave off impeachment.

The delay between the time — on November 15 — when Skyhorse first pitched the reissue and the time — mid-December — when Stone and his lawyer, Grant Smith, start engaging in earnest suggests two other factors may be in play.

First, while Stone had been saying that Mueller would indict him for months, the aftermath of the Corsi “cooperation” starting on November 26 made Stone’s jeopardy more immediate. Yes, Corsi’s attempt to make his own cooperation useless may have delayed Stone’s indictment, but the details Corsi described to be in his own forthcoming Mueller-smearing book made it clear the Special Counsel believed Stone had successfully affected the timing of the release of the John Podesta emails on October 7, 2016, in a successful attempt to dampen some of the impact of the Access Hollywood video.

That’s why the specific content of the new introduction Stone finished on January 13, 2019, which he notes is more substantive than Skyhorse initially planned, is of interest. In the introduction, Stone:

  • Describes learning he was under investigation on January 20, 2017
  • Discounts his May 2016 interactions with “Henry Greenberg” — a Russian offering dirt on Hillary Clinton — by claiming Greenberg was acting as an FBI informant
  • Attributes any foreknowledge of WikiLeaks’ release to Randy Credico and not Jerome Corsi or their yet unidentified far more damning source while disclaiming any real foreknowledge
  • Gives Manafort pollster, Tony Fabrizio, credit for the decision to focus on Michigan, Wisconsin, and Pennsylvania in the last days of the election
  • Mentions Alex Jones’ foreboding mood on election night
  • Accuses Trump of selling out to mainstream party interests, choosing Reince Preebus over Steve Bannon
  • Blames Jeff Sessions for recusing from the Russian investigation
  • Harps on the Steele dossier
  • Dubiously claims that in January 2017, he didn’t know how central Mueller’s focus would be on him
  • Suggests any charges would be illegitimate
  • Complains about his financial plight
  • Falsely claims the many stories about his associates’ testimony comes from Mueller and not he himself
  • Repeats his Randy Credico cover story and discounts his lies to HPSCI by claiming his lawyers only found his texts to Credico after the fact
  • Suggests Hillary had ties to Russia
  • Notes that Trump became a subject of the investigation after he fired Jim Comey

Some of this is fairly breathtaking, given that Corsi’s theatrics had long ago proven Stone’s Credico cover story to be false. But of course, by the time Stone wrote this, he knew that he was at risk at a minimum for false statements charges, so he was stuck repeating the long-discredited HPSCI cover story. Which may be why his attorney, Grant Smith, provided some edits of the introduction on January 15 (something Smith should have but did not disclose in the filing to Amy Berman Jackson). Stone will now be stuck with this cover story, just as Corsi is stuck with the equally implausible cover story in his book.

But to some degree, that’s clearly one purpose this introduction serves: to “retake the narrative” (as Skyhorse’s editor Mike Campbell described it when pitching Stone on the project) and try to sell at least frothy right wingers on his cover story.

Another is to make money. Stone’s first response — over three weeks after Skyhorse first floated the paperback project — was to complain that because the publisher printed way too many copies of the hard cover, which was done as part of a joint venture, he made no money off the deal (a claim that Skyhorse corrects, slightly, in the follow-up). That’s why Skyhorse ended the joint venture: to mitigate the risk to Stone and by doing so to convince him to participate in the project.

More interesting — given the January stories suggesting that Jerome Corsi may have gotten a six month severance deal as part of a bid to have him sustain Stone’s cover story — is that Stone seemingly reversed his opinion about doing the project between December 9, when he said he was uninterested, and Monday, December 17, when Smith said they were ready to move forward, because Stone urgently needed money by the next day to pay off his collaborators in the book project.

From the public record, I’m actually fairly confused about who these collaborators are. A number of them would be the witnesses interviewed by Mueller’s grand jury.

But the book itself — because it retains the Acknowledgements section from the original — thanks Corsi third, after only Richard Nixon and Juanita Broaddrick, and lauds what Stone calls Corsi’s “investigative report[ing].”

Remember: A key product of that “investigative reporting” was the report Stone asked Corsi to write on August 30, 2016, to invent a cover for why he was discussing John Podesta and Joule Holdings in mid-August 2016. Things had already gone to hell by the time this book was released in e-book form on February 18 and they (appear to) have continued to disintegrate since then.

But I am very interested in who Stone paid off with that urgently wired payment in December. And because it happened before Stone was raided on January 25, Mueller likely knows the answer, if he didn’t already.

Which brings me to the last likely purpose of this paperback, one that goes to the core of whether Stone was trying to publicize its release with his little stunt about “clarifying” whether or not it would violate his gag.

Stone’s decision to do this paperback came not long after Stone repeated a formula other Trump associates bidding for a pardon have engaged in: promise publicly you won’t testify against Trump, then deny you’re asking for a pardon.

[T]here’s no circumstance under which I would testify against the president because I’d have to bear false witness against him. I’d have to make things up and I’m not going to do that. I’ve had no discussion regarding a pardon.

The next day, Trump let Stone and all the world know he had gotten the message.

Every person who is bidding for a Trump pardon is doing whatever they can — from reinforcing the conspiracy theories about the genesis of the investigation, to declaring ABJ found “no collusion” minutes after she warned lawyers not to make such claims, to sustaining embarrassingly thin cover stories explaining away evidence of a conspiracy — to hew to Trump’s strategy for beating this rap. Indeed, the Michael Cohen lawsuit claiming Trump stopped paying promised legal fees as soon as Cohen decided to cooperate with prosecutors suggests Trump’s co-conspirators may be doing this not just in hopes of a pardon, but also to get their legal fees reimbursed.

Which brings me back to Stone’s concern that the title, “The Myth of Collusion; The Inside Story of How I REALLY Helped Trump Win” would suggest he was taking credit for Trump’s win.

There are two reasons why such an appearance might undermine Stone’s goals for the book.

Stone has loudly claimed credit for his role in Trump’s victory, particularly as compared Steve Bannon. And evidence that will come out in his eventual trial will show him claiming credit, specifically, for successfully working with WikiLeaks.

Of course, Trump is a narcissist. And the surest way to piss him off — and in doing so, ruin any chance for a pardon — is to do anything to suggest he doesn’t get full credit for all the success he has in life.

But there may, in fact, be another reason Stone was quick to object to getting credit for all the things he did to get Trump elected.

At least according to Jerome Corsi, Stone, on indirect orders from Trump, took the lead in trying to learn about and with that knowledge, optimize the release of the materials Russia stole from Hillary’s campaign. If non-public details about what Stone did — or even the public claim that Stone managed the timing of the Podesta email release — had a bigger impact on the election outcome than we currently know, then Stone would have all the more reason to want to downplay his contribution.

That is, if Stone’s efforts to maximize the value of Russia’s active measures campaign really were key, then the last thing he’d want to do is release a paperback crowing about that.

Of course, because of the boneheaded efforts of his lawyers, his concerns about doing so are now public.

Update: I’ve corrected my characterization of Skyhorse. They’re not ideological. But they do feed off of controversy.


October 30, 2018: ABC reports that Stone hired Bruce Rogow in September, a First Amendment specialist who has done extensive work with Trump Organization.

October 31, 2018: Date Corsi stops making any pretense of cooperating with Mueller inquiry.

November 6, 2018: Democrats win the House in mid-term elections.

November 7, 2018: Trump fires Jeff Sessions, appoints Big Dick Toilet Salesman Matt Whitaker Acting Attorney General.

November 8, 2018: Prosecutors first tell Manafort they’ll find he breached plea deal.

November 12, 2018: Date Corsi starts blowing up his “cooperation” publicly.

November 14, 2018: Date of plea deal offered by Mueller to Corsi.

November 15, 2018: Mike Campbell pitches Stone on a paperback — in part to ‘retake the narrative — including a draft of the new introduction.

November 18, 2018: Jerome Corsi writes up his cover story for how he figured out John Podesta’s emails would be released.

November 20, 2018: After much equivocation, Trump finally turns in his written responses to Mueller.

November 21, 2018: Dean Notte reaches out to Grant Smith suggesting a resolution to all the back and forth on their joint venture, settling the past relationship in conjunction with a new paperback.

November 22, 2018: Corsi writes up collapse of his claim to cooperate.

November 23, 2018: Date Mueller offers Corsi a plea deal.

November 26, 2018: Jerome Corsi publicly rejects plea deal from Mueller and leaks the draft statement of offense providing new details on his communications with Stone.

November 26, 2019: Mueller deems Paul Manafort to be in breach of his plea agreement because he lied to the FBI and prosecutors while ostensibly cooperating.

November 27, 2018: Initial reports on contents of Jerome Corsi’s book, including allegations that Stone delayed release of John Podesta emails to blunt the impact of the Access Hollywood video.

November 29, 2018: Michael Cohen pleads guilty in Mueller related cooperation deal.

December 2, 2018: Roger Stone claims in ABC appearance he’d never testify against Trump and that he has not asked for a pardon.

December 3, 2018: Trump hails Stone’s promise not to cooperate against him.

December 9, 2018: Stone replies to Campbell saying that because he never made money on Making of the President, he has no interest.

December 13, 2018: Tony Lyons and Grant Smith negotiate a deal under which Sky Horse would buy Stone out of his hardcover deal with short turnaround, then expect to finalize a paperbook by mid January. This is how Stone gets removed from the joint venture — in an effort to minimize his risk.

December 14, 2018: Mueller formally requests Roger Stone’s transcript from House Intelligence Committee.

December 17, 2018: Smith, saying he and Stone have discussed the deal at length, sends back a proposal for how it could work. This is where he asks for payment the next day, to pay someone off for work on the original book.

For some reason, in the ensuing back-and-forth, Smith presses to delay decision on the title until January.

December 19, 2018: It takes two days to get an agreement signed and Stone’s payment wired.

December 20, 2018: HPSCI votes to release Stone’s transcript to Mueller.

January 8, 2019: Paul Manafort’s redaction fail alerts co-conspirators that Mueller knows he shared polling data with Konstantin Kilimnik.

January 13, 2019: Stone drafts new introduction, which he notes is “substantially longer and better than the draft sent to me by your folks.” He asks about the title again.

January 14, 2019: Stone sends the draft to Smith and Lyons. It is 3386 words long. Lyons responds, suggesting as title, “The Myth of Collusion; The Inside Story of How I REALLY Helped Trump Win.” Lyons also notes Stone can share the book with Senators.

Stone responds suggesting that he could live with, “The Myth of Collusion; The Inside Story of How Donald Trump really won,” noting, “I really can’t be seen taking credit for HIS victory.”

By end of day, Skyhorse’s Mike Campbell responds with his edits.

January 15, 2019: The next morning, Smith responds with his edits, reminding that Stone has to give final approval. Stone does so before lunch. Skyhorse moves to working on the cover. Late that day Campbell sends book jacket copy emphasizing Mueller’s “witch hunt.”

January 15, 2019: Mueller filing makes clear that not all Manafort’s interviews and grand jury appearances involve him lying.

January 16, 2019: Tony Lyons starts planning for the promotional tour, asking Stone whether he can be in NYC for a March 5 release. They email back and forth about which cover to use.

January 18, 2019: By end of day Friday, Skyhorse is wiring Stone payment for the new introduction.

January 24, 2019: Mike Campbell tells Stone the paperback “is printing soon,” and asks what address he should send Stone’s copies to. WaPo reports that Mueller is investigating whether Jerome Corsi’s “severance payments” from InfoWars were an effort to have him sustain Stone’s story. It also reports that Corsi’s stepson, Andrew Stettner, appeared before the grand jury. That same day, the grand jury indicts Stone, but not Corsi.

January 25, 2019, 6:00 AM: Arrest of Roger Stone.

January 25, 2019, 2:10 PM: Starting the afternoon after Stone got arrested, Tony Lyons starts working with Smith on some limited post-arrest publicity. He says Hannity is interested in having Stone Monday, January 28 “Will he do it?” Smith replies hours later on the same day his client was arrested warning, “I need to talk to them before.”

January 26, 2019: Lyons asks Smith if Stone is willing to do a CNN appearance Monday morning, teasing, “I guess he could put them on the spot about how they really go to this house with the FBI.”

January 27, 2019: Smith responds to the CNN invitation, “Roger is fully booked.” When Lyons asks for a list of those “fully booked” bookings, Smith only refers to the Hannity appearance on the 28th, and notes that Kristin Davis is handling the schedule. Davis notes he’s also doing Laura Ingraham.

January 28, 2019: The plans for Hannity continue on Monday, with Smith again asking for the Hannity folks to speak to him “to confirm the details.” In that thread, Davis and Lyons talk about how amazing it would be to support “another New York Times Bestseller” for Stone.

February 15, 2019: After two weeks — during which Stone was indicted, made several appearances before judges, and had his attorneys submit their first argument against a gag — Stone responded to Campbell’s January 24 email providing his address, and then asking “what is the plan for launch?” (a topic which had already been broached with Lyons on January 16). Campbell describes the 300-400 media outlets who got a review copy, then describes the 8 journalists who expressed an interest in it. Stone warns Campbell, “recognize that the judge may issue a gag order any day now” and admits “I also have to be wary of media outlets I want to interview me but don’t really want to talk about the book.”

February 18, 2019: Release of ebook version of Stone’s reissued book.

February 21, 2019: After Stone released an Instagram post implicitly threatening her, Amy Berman Jackson imposes a gag on Stone based on public safety considerations.

March 1, 2019: Ostensible official release date of paperback of Stone’s book. Stone submits “clarification” claiming that the book publication does not violate the gag.

March 12, 2019: Official release date of Corsi hard cover, which Mueller may need for indictment.

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.