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The Altered Andrew McCabe and Peter Strzok Documents Were Packaged for Circulation

On September 23, 2020, prosecutor Jocelyn Ballantine sent five documents to Sidney Powell:

  • The altered January 5, 2017 Strzok notes
  • The second set of altered Strzok notes
  • The altered Andrew McCabe notes
  • Texts between FBI analysts
  • A new set of Strzok-Page texts, which included new Privacy Act violations

The letter Ballantine sent accompanying those documents is dated September 23, but it wasn’t loaded to the docket until September 28. Like all her discovery letters, the version of the letter uploaded to the docket informs Powell that, “These materials are covered by the Protective Order entered by the Court on February 21, 2018.”

In her letter providing realtered sets of the notes, the only change Ballantine described to the documents pertained to the removal of the sticky notes — which weren’t actually removed, but instead whited out electronically (and probably weren’t sticky notes in McCabe’s case at all).

But there was another change made to all of them: the “subject to protective order” footnote was restored to the documents.

The altered January 5, 2017 Strzok notes, without the footer:

The realtered January 5, 2017 Strzok notes, with the footer:

The second set of Strzok notes (originally altered to read March 28), without the footer:

The second set of Strzok notes, with the footer.

The altered McCabe notes, with the footer redacted out:

The realtered McCabe notes, with the footer unredacted:

Notably, there’s no declassification stamp on McCabe’s notes.

The Page-Strzok notes don’t have a protective order footer. Nor do the FBI analyst texts.

So all the documents sent to Sidney Powell on September 23 had no protective order stamp, and in the case of McCabe’s notes, they had the protective order stamp covered over.

The altered notes have all since been realtered, and rather than trying to certify the Strzok-Page texts, in today’s declaration, Ballantine just told Judge Emmet Sullivan DOJ wasn’t relying on them — no blood no foul. Presumably, there’s something fishy with the FBI analyst texts, because there’s something fishy with all of these documents.

But given the fact that the protective order footer was redacted in the McCabe notes, it cannot be accidental. These documents — the documents with the “inadvertent” alterations — also were all packaged up such that if Sidney Powell shared them (say, with the President’s campaign lawyer), Powell could claim these were somehow exempt.

Shorter DOJ: We Made Shit Up … Please Free Mike Flynn

Congratulations to the lawyers who worked all weekend to meet Judge Emmet Sullivan’s deadline to certify all the documents (with just eight explicit caveats and then another slew built in) submitted in the Mike Flynn motion to dismiss proceeding. I doubted you could pull it off time-wise.

In your rush you seem to have provided Judge Sullivan even more evidence that nothing about this proceeding is normal. Indeed, some of this submission almost makes Sidney Powell’s submissions look tidy by comparison.

The slew of caveats

Effectively, the certification (signed by Jocelyn Ballantine, with individual declarations signed by three others, in part because there are things that Ballantine almost certainly knows are inaccurate or include material omissions), says there have been no material alterations to the documents submitted in the proceeding except for:

  1. Redactions done in the name of classification, law enforcement sensitive, or privacy that serve to hide material information pertaining to Brandon Van Grack, Bill Barnett, and the reason a third document was altered by adding a date (at a minimum)
  2. A set of texts where “irrelevant information and excess metadata” was excluded and an error introduced in the process of creating a table showing “corrected date, corrected time,” which raises far more questions about the provenance of the document
  3. The Bill Barnett interview report that DOJ had submitted to Sullivan as “a 302” is instead a “report” that is not being certified in normal fashion, in part, because DOJ is hiding redactions that withhold material information about Brandon Van Grack
  4. An NSL declaration done by Jocelyn Ballantine that may hide the existence of at least one earlier financial NSL served on Mike Flynn that WDMO didn’t ask her to summarize
  5. A new set of text messages between Peter Strzok and Lisa Page that DOJ admits they’re not relying on (but nevertheless committed an additional Privacy Act violation in releasing), which was not redacted to hide personal information
  6. Three documents submitted by Sidney Powell that DOJ won’t certify (two of which, however, are probably more accurate than what DOJ has submitted)
  7. “Unintelligible” markings in transcripts of notes where DOJ was unsuccessful at getting the author or their lawyer to conduct a last minute review over a matter of hours on a Sunday (DOJ does not specify how many of their transcripts this includes); some of these appear significant
  8. Inconsistencies on how redactions and unintelligible text were marked in transcriptions which, in some cases, is affirmatively misleading
  9. Lots of documents where the certification doesn’t list the Bates numbers, with some hilarious results
  10. Inconsistencies on whether DOJ certifies all copies of a particular document that got submitted multiple times, which in one case would raise questions about the production of these documents
  11. An admission that, for some reason, the motion to dismiss didn’t rely on the final 302 of Flynn’s January 24, 2017 interview
  12. A new inaccurate date, ironically describing a Kevin Clinesmith email
  13. A claim that both Strzok and McCabe’s lawyers have confirmed their clients’ notes were not altered, but only Strzok’s lawyer is quoted

For all of the exhibits that accompanied the motion to dismiss, DOJ uses the docket number, not the exhibit number, even though Sullivan is supposed to be ruling on that MTD that uses exhibit numbers. That’ll make it a lot harder for him to use the transcriptions, which otherwise would make it more obvious that DOJ misrepresented what some of these documents say, including their “smoking gun,” the Bill Priestap notes.

In addition, in a lot of the documents with problems (including all undated notes to which dates were added), DOJ doesn’t include Bates numbers in its certification, even though it does elsewhere. There’s good reason for this. In the case of the re-altered altered documents, those new exhibits should have new Bates stamps, but don’t. In other cases, DOJ submitted multiple versions of the same document with different Bates stamps, in others, when they resubmitted exhibits they retained the Bates stamp. That’s … not a legal process reflecting any regularity.

DOJ still pretends to have no fucking clue about documents they relied on in the motion to dismiss

Perhaps the most pathetic (and by that I mean, I would hate to be the lawyer banking my bar membership on this ploy) detail in this package is the way they try to deal with the fact they’ve made false misrepresentations about Strzok’s January 5, 2017 notes. In one place in the table of documents, they describe the date of the notes this way:

In another, they describe it — the very same notes, just repackaged so they could submit them with the wrong date — this way:

Above both transcriptions, DOJ includes the following note.

I understand why DOJ is still claiming to be unsure about the date. It’s an attempt to minimize the damage from previously providing false dates so as to avoid being punished for knowing misrepresentations in their alterations (they’re still at risk though, because they’re incorrect dates kept changing). But this will just make it very easy for Sullivan to point out that the people making this representation are therefore confessing to being completely unfamiliar with documents on which the MTD heavily relies, which means he shouldn’t take the MTD all that seriously.

The shell game behind the actual declarations

As noted, this declaration is a filing signed by Jocelyn Ballantine, submitting declarations from three other people:

  • Executive Assistant Director John Brown, whose job it is to submit declarations like this
  • EDMO AUSA Sayler Fleming, one of the AUSAs conducting this irregular investigation
  • Keith Kohne, one of the FBI Agents conducting the investigation

Brown starts by excluding three documents from his general certification (these are the ones that Fleming and Kohne will be on the hook for):

5. To the best of my knowledge, and based on the information provided to me, the Government Exhibits described in Exhibit A, 9 with the exception of ECF Nos. 198-8 and 249-1, are true and correct copies of documents and records, including copies of select pages of a larger record, maintained by the FBI pursuant to the applicable records retention policy. See ECF Nos. 198-2, 198-3, 198-4, 198-5, 198-6, 198-7, 198-9, 198-10, 198-11, 198-12, 198-13, and 198-14 9 9

6 To the best of my knowledge, and based on the information provided to me, the Discovery Documents described in Exhibit B, with the exception of ECF Nos. 228-3, are true and correct copies of documents and records maintained by the FBI pursuant to the applicable records retention policy. See ECF Nos. 231-1, 237-1. 251-1, 9 257-1. 259-1, 9 259-2, 259-3, and 264-1

Effectively, he is saying these documents are real and that Ballantine’s claims about the reasons for classification are valid.

He then says this about Ballantine’s own summary, which purports to be a summary of all the NSLs used against Mike Flynn, but which may not include one or more financial NSLs obtained in 2016.

One of the Discovery Documents is a summary substitution of classified materials that were provided to DC-USAO by the FBI. See ECF 257-2. This summary substitution was prepared by AUSA Jocelyn Ballantine, and was reviewed, approved, and declassified by the FBI To the best of my knowledge, and based on the information provided to me, the information contained therein truly and correctly summarizes the underlying classified information provided by the FBI and maintained by the FBI pursuant to the applicable records retention policy.

He’s saying that her summary accurately summarizes what she says it does, but he’s not saying that her description of it is accurate (which it wouldn’t be if EDMO told her to leave out 2016 NSLs).

Then it’s Fleming’s turn. After reviewing her role in this shoddy review and asserting that she has no reason to believe that the documents she got from FBI were irregular, she then explains why she did a summary of the texts that Strzok and a bunch of other people sent in early 2017: Just to get rid of unnecessary metadata, she says.

3. Among the documents and records that I reviewed were spreadsheets of electronic messages exchanged between FBI personnel involved in the Michael T. Flynn investigation and prosecution. The spreadsheets produced to EDMO contained messages and metadata that were not relevant to my review.

4. I created Government Exhibit ECF 198-8 and Discovery Document ECF 228-3. These exhibits truly and correctly reflect excerpts from documents and record maintained by the FBI pursuant to the applicable records retention policy that were provided to EDMO/DC-USAO for review.1

Then she admits someone — she doesn’t say who — made an error.

1 There is a single typographical error in these exhibits. A single message (“Will do.”) from DAD Peter Strzok, sent on 4-Jan-17, is incorrectly identified as having been sent at 2:17PM; the message was actually sent at 2:18PM.

What she doesn’t explain, though, is why her table has two headings that show she or someone else had to “correct” the dates and times in the spreadsheet (which may be where the typo got introduced, or retained).

Given that heading, she has no business treating the data she got as reliable, because either she or someone upstream from her had to fix it.

Then Keith Kohne steps in, the guy who conducted an incompetent interview (and possibly one of the guys who altered dates on government exhibits). He doesn’t provide any explanation of why he’s making the declaration — not even the standard boilerplate you’d find in an affidavit. He says only,

 I, Keith Kohne, hereby declare, pursuant to 28 U.S.C. § 1746, that the document attached as Exhibit 1 to the Government’s Supplemental Filing in Support of Motion to Dismiss … is a true and correct copy of the report of the interview of William J. Barnett conducted on September 17, 2020.

Understand that this declaration lacks the certification afforded by the rules of FBI record-keeping. It lacks Brown’s certification that the data in was redacted properly (this was not). And it doesn’t explain why it wasn’t finalized as a 302 and submitted into FBI record-keeping systems.

Collectively, then, these declarations stop well short of certifying those texts, Ballantine’s summary, or the Barnett’s interview.

We already know that the Barnett interview is withholding material information. I guess we should assume there are problems with the other two documents as well.

Documents and comments

Here are the documents:

Draft closing communication (198-2) [Docket 2, Exhibit 1]

In the certification but not the exhibit referenced, DOJ redacts Bill Barnett’s name, who wrote the document, as well as that of Joe Pientka, who approved it. That serves to make it harder to figure out that the closing EC materially conflicts with unredacted claims Barnett made in his interview, particularly with regards to Barnett’s awareness that the investigation was a counterintelligence investigation considering 18 USC 951 charges.

It’s all the more problematic given that DOJ has submitted two versions of this document with the same Bates numbers; the earlier one does have the names redacted.

Opening Electronic Communication (198-3) [Docket 3, Exhibit 2]

This doesn’t include Bates numbers.

Mary McCord 302 (198-4) [Docket 4, Exhibit 3]

As with other documents, this one was specially declassified for this release. Another copy has been released under BuzzFeed’s FOIA.

Sally Yates 302 (198-5) [Docket 5, Exhibit 4]

Flynn got a summary of this before he allocuted his guilty plea before Sullivan.

170302 Jim Comey Transcript (198-6) [Docket 6, Exhibit 5]

As DOJ notes, HPSCI used a court reporter on this, so they didn’t have to certify it.

170214 Draft Flynn 302 (198-7) [Docket 7, Exhibit 6]

For some reason (I’ll return to this), DOJ submitted a draft version of the 302, rather than the final one (both have previously been submitted in this docket, and a less-redacted version of the 302 was released prior to this in BuzzFeed’s FOIA). Nowhere in the motion to dismiss does Timothy Shea acknowledge that he wasn’t relying on the final 302.

Text massages and electronic messages (198-8) [Docket 8, Exhibit 7]

The certification doesn’t include Bates stamps.

This is the document that has an admittedly minor error in one of the time stamps, saying that Strzok texted “Will do” at 2:18 instead of 2:17. But the error is interesting given that the table’s headings read, “Corrected Date, Corrected Time,” meaning these aren’t just copied, the times (and dates) were “corrected” (which is presumably where the error was introduced), raising questions about what they were corrected from. [My annotation.]

This is one of the documents that FBI EAD John Brown did not certify, which ought to raise questions about how these dates and times got “corrected.” Instead, the authentication reads:

Truly and correctly reflects information contained in documents and records maintained by the FBI, pursuant to the applicable records retention policy that were provided to EDMO.

Without an explanation of how why this data needed to be corrected, I think there are real questions whether this fulfills the requirement here.

Emails about the Logan Act (198-9) [Docket 9, Exhibit 8]

The certification doesn’t include Bates numbers.

170121-22 Emails about providing briefings (198-10) [Docket 10, Exhibit 9]

This certification doesn’t include Bates numbers.

170124 Emails of questions Flynn might ask (198-10) [Docket 10, Exhibit 9]

This certification doesn’t include Bates numbers. This matters both because they’re mixing docket number and exhibit number, but also because there are two copies of the identical document with a different Bates number in the docket.

Emails about 1001 warnings (198-10) [Docket 10, Exhibit 9]

This certification doesn’t include Bates numbers. This matters both because they’re mixing docket number and exhibit number, but also because there are two copies of the identical document with a different Bates number in the docket.

170124 Bill Priestap Notes (198-11) [Docket 11, Exhibit 10]

This certification doesn’t include Bates numbers. This matters both because they’re mixing docket number and exhibit number, but also because there are two copies of the same document with a different Bates number in the docket, yet both have the blue sticky that is hidden in later documents (raising questions about why there are two separate direct scans).

170124 Andrew McCabe write-up (198-12) [Docket 12, Exhibit 11]

This document doesn’t have a Bates stamp on it at all, which is especially problematic given that another less redacted version of the document is in this docket, with a Bates stamp of the same series as other documents submitted with the motion to dismiss.

The May version, with the Bates stamp, makes it clear that McCabe agreed with Flynn that leaks were a problem. [My annotations.]

The motion to dismiss version redacts that.

McCabe’s comment about leaks in no way qualifies under any claimed basis for redaction stated in certification.

It also appears to redact the prior declassification stamp.

One thing DOJ did by submitting this without a Bates stamp is avoided admitting that the document is not at all new, as the Motion to Dismiss suggested.

170124 Strzok and Pientka Notes of Flynn interview (198-13) [Docket 13, Exhibit 12]

These were released as the same exhibit, which given that they don’t use Bates numbers to identify which is which, effectively means they haven’t told Judge Sullivan which Agent’s notes are which, something that Sidney Powell wailed mightily about the last time it happened. They do, however, get it right in the transcript.

In the Pientka notes, however, there are numerous examples of things that are clear, at least from the context, that don’t get transcribed properly.

170822 Strzok 302 (198-14) [Docket 14, Exhibit 13]

This had already been produced in this docket.

200917 “Report” of Bill Barnett’s interview (249-1)

In the Government Supplemental Filing accompanying this interview, they claim that this is, “The FBI 302” of the Barnett interview. Here, they’re correctly noting that it’s not actually a 302, which makes it even more problematic than it already was.

The certification makes it clear that this “report” is maintained differently than normal 302s. Rather than certifying it as,

True and correct copy of a document or record maintained by the FBI pursuant to the applicable records retention policy.

It is instead certified as,

True and correct copy of the report of that interview.

I’m not sure Sullivan is going to be that thrilled that FBI itself is not treating this interview with the regularity of other investigative documents.

This “report” is probably one of the reasons why DOJ included this language in the filing.

There have been no material alterations made to any of the 14 Government Exhibits filed in support of the motion to dismiss and the supplement to the motion to dismiss. Several of the documents contain routine redactions made by the FBI to protect classified information, and/or law enforcement sensitive information, and/or made to comply with the Local Rule to remove Privacy Act information.

As I have laid out, DOJ withheld material information — most notably, all the nice things Barnett said about Brandon Van Grack — by redacting information that would otherwise be unsealed.

This is one of the documents that EAD John Brown did not certify; instead, one of the agents who did the interview did, which suggests it could not be certified properly. It also suggests that Ballantine, who knows it is withholding material information, doesn’t want to be in a position where she can see it (even though she sent an unredacted copy to Flynn).

Text messages (228-3)

The certification notes these are identical to the 198-8 text messages, with the error under heading, “corrected time.” It’s unclear why, in this one case, DOJ admitted to the same exhibit being filed multiple times, since in other cases they don’t note it.

170105 Strzok Notes (231-1)

The transcription of these notes don’t note the redactions. That’s significant because the only difference between this set of notes and the later, altered ones, is that they declassified a bit more information in the latter case.

170125 Gauhar Notes (237-1)

The transcription is inconsistent about whether it treats cross-outs as unintelligible or not, in one place treating a heading “Intro” as intelligible, but not references to “Thanksgiving” and “He said.”

170125 Strzok Notes (237-1)

By labeling these notes as Strzok’s, DOJ makes it more clear that they redacted information that must match other sets of notes from the same meeting.

170130 [Draft] Executive Summary of Flynn investigation (237-1)

The certification doesn’t reveal that this is a draft document, not a finalized one.

170330 Dana Boente Notes (237-1)

Undated McCabe Notes (248-2/259-1)

The transcription doesn’t note that McCabe crossed off his notes on Flynn. Nor does it admit that it redacted what appears to be a continuation of the discussion of Flynn.

The authentication notes that it is,

True and correct copy of a document or record maintained by the FBI pursuant to the applicable records retention policy (ECF 259-1)

That means they’re only certifying that this is something in FBI records (which it shouldn’t be, since it’s a re-altered altered document).

They also leave out Bates numbers, which is problematic because the re-altered document is technically a new document, but it retains the same Bates stamp.

170105 Strzok Notes (248-3/259-2)

The transcription reveals that two of the three new things revealed in the new copy were unintelligible to DOJ, which raises real questions about why they left it unredacted.

The authentication notes that it is,

True and correct copy of a document or record maintained by the FBI pursuant to the applicable records retention policy (ECF 259-2)

That means they’re only certifying that this is something in FBI records (which it shouldn’t be, since it’s a re-altered altered document).

They also leave out Bates numbers, which is problematic because the re-altered document is technically a new document, but it retains the same Bates stamp.

Undated Strzok Notes (248-4/259-3)

As with some others, the transcription doesn’t note all the redactions, which in this case raises questions about why they included notes from the day before.

In addition, they leave out a scribble in front of the word “willfullness” meaning Strzok switched what they were measuring with regards to whether Flynn’s lies about Turkey were deliberate.

The authentication notes that it is,

True and correct copy of a document or record maintained by the FBI pursuant to the applicable records retention policy (ECF 259-3)

That means they’re only certifying that this is something in FBI records (which it shouldn’t be, since it’s a re-altered altered document).

They also leave out Bates numbers, which is problematic because the re-altered document is technically a new document, but it retains the same Bates stamp.

170306 Jim Crowell Notes (251-1)

As expected, DOJ was thoroughly dishonest with this document. They don’t reveal that they’ve redacted something — either a date, or names — where they indicate that they’ve added a date. One way or another, this transcription is false.

Plus, if they’ve redacted the names of non-senior people in the meeting (which is the non-suspect excuse for the redaction), then they need to note that in the transcription. The alternative, of course, is worse, that they knowingly altered the date.

This is one instance where not revealing whether DOJ consulted with the author is especially problematic. But since Crowell is now a DC judge just next door to Sullivan’s courthouse, maybe he can just go ask.

170329 Gauhar Notes (251-1)

180119 Schools Notes (251-1)

161226 Clinesmith NSL Email (257-1)

The certification provides the wrong date for this email, labeling it 12/26/16. [My annotations.]

it was 12/23/16.

Unlike some of the other things here, I think this is just a sloppy error, not an affirmative misrepresentation. But it is ironic that they made the error with Clinesmith.

200924 Ballantine Summary Substitution of NSLs issued in Crossfire Razor (257-2)

In her notice of discovery correspondence accompanying this, Ballantine doesn’t note that she wrote this summary for EDMO to review for them to, in turn, give back to her to give to Flynn. That’s important, because it’s unclear whether the summary shows all NSLs, or only NSLs for the period in question. Both Barnett’s testimony and the Kevin Clinesmith email included suggest the latter.

170125 OGC Notes (264-1)

This doesn’t include Bates numbers, which is interesting because an older 2019 Bates stamp not seen elsewhere is included (possibly indicating that this was previously shared with DOJ IG).

The Government Agent Who Altered Andrew McCabe’s Notes Remains Unnamed

The frothers have convinced themselves that the sticky notes via which misleading dates were added to Peter Strzok and Andrew McCabe’s handwritten notes do not amount to “altering” those notes. That’s nonsense. Not only did the date added to Strzok’s notes suggest they could have been written on January 4, 2017 when several documents that had already been submitted in the docket (as well as other public documents) made it clear the notes had to have been written on January 5, 2017. But the added date — indicating that whoever wrote it thought the notes could be January 4 or 5 — don’t match the notice DOJ originally gave Sidney Powell about the notes, which suggested the could have been written on January 3.

There are further problems with the alterations, not least that DOJ claims that these documents were “scanned.” A comparison of the original set of notes with the altered one, along with the blue sticky visible on Bill Priestap’s notes with how the same kind of blue sticky appeared on McCabe’s altered notes make it clear these were copied, along with being scanned, a step that made the alterations far less visible.

Worse still, rather than providing unaltered versions of the notes, DOJ instead provided altered versions of the altered notes. That’s easiest to see by comparing the original, altered McCabe notes, where you can see the lined page underneath the added date.

With the altered altered notes.

It’s clear that rather than simply taking the sticky off, DOJ instead simply whited out the date, along with the lines of the page beneath it.

But you can see this by comparing the three versions of the Strzok notes. Unaltered:

First alteration:

Second alteration:

The sticky is still visible in the second alteration, which suggests they’ve done the same thing they did with McCabe’s altered notes, just edit out the alteration, rather than scan the original document. I suspect the reason they doubled down on altering documents is because doing otherwise would make it clear that the McCabe notes, in particular, could not have been “scanned,” because it would have made the blue sticky visible.

So tomorrow they’re going to have to certify that their re-altered notes are “authentic.”

There may be a far more interesting reason why DOJ chose to re-alter the altered documents rather than providing the originals.

In both Jocelyn Ballantine’s notice of discovery correspondence about the Strzok notes:

During the review, agents for EDMO placed a single yellow sticky note on each page of the notes with estimated dates (the notes themselves are undated). Those two sticky notes were inadvertently not removed when the notes were scanned.

I am providing replacement versions of these documents, and ask that you destroy the prior versions provided to you. We have determined, and confirmed with counsel for Peter Strzok, that the content of the notes was not otherwise altered.

And her notice of compliance, falsely claiming to comply with Judge Emmet Sullivan’s order to authenticate all the documents submitted in this case, she blamed WDMO FBI Agents for the alteration to Strzok’s notes.

In response to the Court and counsel’s questions, the government has learned that, during the review of the Strzok notes, FBI agents assigned to the EDMO review placed a single yellow sticky note on each page of the Strzok notes with estimated dates (the notes themselves are undated). Those two sticky notes were inadvertently not removed when the notes were scanned by FBI Headquarters, before they were forwarded to our office for production.

But her notice of discovery correspondence accompanying the newly altered McCabe notes:

At some point during the course of the review of this page of notes, government agents placed a clear sticky notes (with a colored tab) on this page of notes. On the clear portion of this tab was written the date of 5/10/2017. This sticky note was inadvertently not removed when the notes were scanned.

I am providing a replacement version of this document, and ask that you destroy the prior version provided to you. The content of the notes was not otherwise altered.

And her notice of compliance, she didn’t reveal who had altered McCabe’s notes.

Similarly, the government has learned that, at some point during the review of the McCabe notes, someone placed a blue “flag” with clear adhesive to the McCabe notes with an estimated date (the notes themselves are also undated). Again, the flag was inadvertently not removed when the notes were scanned by FBI Headquarters, before they were forwarded to our office for production.

In one case, she blames, “government agents,” in the other case, she blames “someone.” Blaming “someone” is not a very good way to convince a judge you’re not pulling a fast one.

Realtering the altered notes is not either.

Note, too, that while Ballantine says she has reviewed the contents of Strzok’s notes with his lawyer, she only claims that the content of the McCabe notes has not been altered. If the redactions change the meaning of the notes, falsely tying a SSCI briefing to the notes about Flynn, I can see why she might do that.

By realtering the notes, DOJ is hiding that the altered notes were not, in fact, scans (because if they had been scanned the alteration would have been obvious because the stickies in both cases were colored, and FBI’s scans pick up color).

But I suspect they’re also hiding who that “government agent” is who altered McCabe’s notes.

Chuck Grassley and Ron Johnson Produce a 285-Page Confession They’re Unfamiliar with the Public Record

Chuck Grassley and Ron Johnson recently released a 285-page report relitigating a story made public in 2017 about how Mueller’s team obtained records from General Services Administration. The report adopts an entirely opposite stance as the SSCI Russia Report did. The latter discussed how unheard of it was for an Administration to claim an expansive Transition privilege. Chuck and Ron are outraged that a criminal investigation have access to such files, and similarly outraged that the subjects of an investigation did not get notice that their files had been obtained.

The report also makes clear that, at first, Mueller relied on SSCI’s request for its records request, and only later in the summer made their own. In other words, Chuck and Ron have a complaint, in part, with SSCI (though they don’t say that).

The report is most useful for revealing which Transition officials Mueller’s team was interested in. On August 23, Mueller’s team sent a records request for these nine officials closely interacting with Flynn while he was secretly undermining sanctions and other Obama policies in “collusion” with Russia.

The nine Trump for America officials identified by the FBI were Daniel Gelbinovich, Sarah Flaherty, Michael G. Flynn, Michael T. Flynn, Keith Kellogg, Jared Kushner, K.T. McFarland, Jason Miller, and Michael Pompeo.114

Then Mueller’s team asked for the records of four more people — which appears to be the people who were at Mar-a-Lago when Flynn was secretly undermining sanctions with Russia.

The four Trump for America officials identified by the FBI were Sean Spicer, Reince Priebus, Stephen Bannon, and Marshall Billingslea.125 In the cover email, the FBI explained:

We have an additional four individuals we are currently interested it [sic]. … If possible, can you at least have their emails downloaded by tomorrow when I pick up the other information? . . . [W]e want to have it available when they swear out a warrant before then.126

Note, there’s a reference to the DC US Attorney’s office, too, so it’s possible they also needed these records as part of their investigation into the suspected bribe from Egypt that kept Trump afloat in August 2016.

But the craziest thing is how the report confesses that they are unaware of any legal process for these files.

Although the FBI’s August 30, 2017 cover email referenced applying for a search warrant, the Committees are aware of only one court-ordered disclosure of records, specifically, information related to the transition records of Lt. Gen. Flynn, K.T. McFarland, Michael Flynn’s son, and Daniel Gelbinovich.128

128 Order, In re Application of the U.S. for an Order Pursuant to 18 U.S.C. § 2703(d) Directed at Google Related to [the transition email accounts for those four individuals], 1:17-mc-2005 (D.D.C. Aug. 18, 2017) [GSA004400- 4404] (ordering the disclosure of customer/subscriber information but not content).

At one level, they’re being coy in that they claim to be interested in court-ordered disclosure. A document recently released via the Jeffrey Jensen review reveals that in February 2017, star witness and pro-Trump FBI Agent was obtaining some of this information using NSLs. Another document explains why, too: because one of the first things FBI had to do to understand why Flynn had lied to them was to determine if he was coordinating his story with those at Mar-a-Lago.

The lie that he didn’t even know Obama had imposed sanctions was not one of Flynn’s charged lies, but it was his most damning. He lied to hide that he had consulted with Mar-a-Lago before picking up a phone and secretly undermining sanctions in “collusion” with Russia.

Crazier still, Chuck and Ron didn’t go to the first place one should go to understand how legal process worked, the publicly released Mueller warrants. The warrant to access the devices and email of at least the original nine (plus one other person) is right there in the docket.

GSA transferred the requested records to the FBI, but FBI didn’t access them until it had a warrant.

In other words, this 285-page report is effectively a confession from Chuck and Ron that two Committee Chairs and a whole slew of staffers can’t figure out how to read the public record.

Maybe that’s a hazard of conducting investigations with no Democrats? It makes it harder to read accurately?

Judge Emmet Sullivan Just Created Four Big Problems for DOJ in the Mike Flynn Case

Judge Emmet Sullivan just issued an order that may well destroy DOJ’s presumption of regularity (the legal principle that unless the government really fucks up, you have to assume they didn’t fuck up) in the Mike Flynn case.

He noted that on September 29, he had ordered DOJ to certify all documents submitted as exhibits in the motion to dismiss proceeding, but that DOJ had not done so. Instead, it admitted that it had “inadvertently” altered two Peter Strzok and one Andrew McCabe documents, and asked for a mulligan.

So now he’s ordering DOJ to do what he first ordered: to certify all the exhibits submitted to this docket (both those submitted directly by DOJ and those submitted by Flynn’s team) and provide a transcription and the author and date of any handwritten notes.

MINUTE ORDER as to MICHAEL T. FLYNN. During the September 29, 2020 motion hearing, the Court informed the government that it would need government counsel to authenticate documents filed with the Court. See Hr’g Tr., ECF No. 266 at 91:19-92-21; see also Min. Order (Sept. 29, 2020) (ordering the parties to file any supplemental materials by no later than October 7, 2020). On October 7, 2020, the government filed [259] Notice of Compliance in which it stated that: (1) Federal Bureau of Investigation (“FBI”) agents assigned to review Mr. Strzok’s notes had placed sticky notes on the document with estimated dates, and the sticky notes had not been removed prior to scanning the documents for production purposes (see ECF Nos. 248-2, 248-3); and (2) a sticky note with an estimated date had been placed on the notes of Andrew McCabe, and the sticky note had not been removed prior to scanning the document for production purposes (see ECF No. 248-4). The government stated that the notes of Mr. Strzok and Mr. McCabe were otherwise unaltered, and it provided the unaltered versions of Mr. Strzok’s and Mr. McCabe’s notes. See Exs. to Notice of Compliance, ECF Nos. 259-1, 259-2, 259-3. However, the government did not address the Court’s authentication request despite the government’s acknowledgement that altered FBI records have been produced to Mr. Flynn and filed on the record in this case. See Notice of Compliance, ECF No. 259. The government has filed a motion to dismiss pursuant to Federal Rule of Criminal Procedure 48(a), has attached 13 Exhibits to that motion, and has cited the Exhibits throughout its motion to support its description of the factual background and its argument in support of dismissal. See generally Mot. Dismiss, ECF No. 198. The government has also filed a supplement to its motion and attached an Exhibit to that supplement. Suppl., ECF No. 249. Although the government relies heavily on these 14 Exhibits, the government has not provided a declaration attesting that the Exhibits are true and correct copies. “The presumption [of regularity] applies to government-produced documents” and “to the extent it is not rebutted–requires a court to treat the government’s record as accurate.” Latif v. Obama, 666 F.3d 746, 748, 750 (D.C. Cir. 2011). Here, however, the government has acknowledged that altered FBI records have been produced by the government and filed on the record in this case. See Notice of Compliance, ECF No. 259. Accordingly, the government is HEREBY ORDERED to file, by no later than October 26, 2020, a declaration pursuant to penalty of perjury under 28 U.S.C. sec. 1746 in support of its motion to dismiss that the Exhibits attached to its motion and supplement are true and correct copies. It is FURTHER ORDERED that the government’s declaration shall identify each exhibit by name, date, and author. It is FURTHER ORDERED that the government shall provide transcriptions of all handwritten notes contained in the Exhibits. The government has also filed on the record in this case numerous notices of filing discovery correspondence and Mr. Flynn has generally filed the discovery produced on the record in this case as Exhibits to his supplementary filings. See ECF Nos. [228], [231], [237], [248], [251], [257], [264]. The government has acknowledged that the discovery provided to Mr. Flynn and thereafter filed on the record contained altered FBI records. See Notice of Compliance, ECF No. 259. Accordingly, the government is HEREBY ORDERED to file, by no later than October 26, 2020, a declaration pursuant to penalty of perjury under 28 U.S.C. sec. 1746 that the discovery documents provided to Mr. Flynn and filed on the record in this case are true and correct copies. It is FURTHER ORDERED that the government’s declaration shall identify each discovery document by name, date, and author. It is FURTHER ORDERED that the government shall provide transcriptions of all handwritten notes contained in the Exhibits.

This is going to create four problems for DOJ.

First, there’s no way they can finish this by Monday. Even if the lawyers on this case were as familiar with these documents as they claimed to be, it would take more than this weekend to transcribe and double check everything. They will likely ask for an extension, one that would extend the order past the election.

Plus, once they do transcribe these documents, it will become crystal clear that parts of the notes — most notably, the Bill Priestap notes they’ve claimed are a smoking gun — in fact confirm that every single witness agreed on the purpose of the January 24, 2017 Mike Flynn interview: to see whether Flynn would lie. By submitting a transcript, then, they will have to admit they’ve misrepresented the substance of the documents.

Then, this order will catch them in their past false claims about the date of (at least) the January 5, 2017 Peter Strzok notes. As I’ve noted, DOJ has submitted several documents in this docket making it clear that Strzok’s notes must have been written on January 5, 2017. Except they falsely claimed not to know. There’s probably no easy way out of this problem.

Finally, there is this exhibit, which also had a date added, but a date added via means that cannot have been accidental.

It’s possible that that redaction doesn’t cover over an existing date (but my annotation, in red, may show the hash marks of a date). But I don’t see how DOJ can authenticate this, and they’re going to have to tell Sullivan who wrote it, making it really easy for journalists to call up the author and get him to confirm or deny the date.

Notably, after Strzok and McCabe’s lawyers gave notice that DOJ had altered their notes, Sidney Powell submitted a demand that Judge Sullivan prevent anyone else from telling him their notes had been altered. So maybe she has exhibits about which she has specific concerns.

The false Strzok claims, by themselves, are going to make a truthful declaration here difficult, if not impossible. But that’s not even the only problem this order will create for DOJ.

Update: There are two sets of documents Sullivan is now asking DOJ to ID the author, provide date, and transcribe: those linked in this post and those in this document cloud project.

Rat-Fucker Rashomon: Getting the “Highest Level of Government” to Free Julian Assange

On June 10, 2017, according to affidavits submitted as part of the Mueller investigation, Roger Stone DMed Julian Assange and told him he was doing everything he could to “address the issues at the highest level of Government.”

57. On or about June 10, 2017, Roger Stone wrote to Target Account 2, “I am doing everything possible to address the issues at the highest level of Government. Fed treatment of you and Wikileaks is an outrage. Must be circumspect in this forum as experience demonstrates it is monitored. Best regards R.” Target Account 2 wrote back, “Appreciated. Of course it is!”

On June 19, 2017, according to the Mueller Report, the President dictated a message for Corey Lewandowski to take to Jeff Sessions, telling the (recused) Attorney General to meet with Robert Mueller and order him to limit his investigation only to future election meddling, not the election meddling that had gotten Trump elected.

During the June 19 meeting, Lewandowski recalled that, after some small talk, the President brought up Sessions and criticized his recusal from the Russia investigation.605 The President told Lewandowski that Sessions was weak and that if the President had known about the likelihood of recusal in advance, he would not have appointed Sessions.606 The President then asked Lewandowski to deliver a message to Sessions and said “write this down.” 607 This was the first time the President had asked Lewandowski to take dictation, and Lewandowski wrote as fast as possible to make sure he captured the content correctly.608 The President directed that Sessions should give a speech publicly announcing:

I know that I recused myself from certain things having to do with specific areas. But our POTUS . .. is being treated very unfairly. He shouldn’t have a Special Prosecutor/Counsel b/c he hasn’t done anything wrong. I was on the campaign w/ him for nine months, there were no Russians involved with him. I know it for a fact b/c I was there. He didn’t do anything wrong except he ran the greatest campaign in American history.609

The dictated message went on to state that Sessions would meet with the Special Counsel to limit his jurisdiction to future election interference:

Now a group of people want to subvert the Constitution of the United States. T am going to meet with the Special Prosecutor to explain this is very unfair and let the Special Prosecutor move forward with investigating election meddling for future elections so that nothing can happen in future elections.610

Days after Roger Stone told Julian Assange that he was trying to resolve matters at the highest level of government, the President of the United States tried to issue a back channel order that would shut down the investigation into Assange — and by association, Stone.

According to Lewandowski, neither he nor Rick Dearborn (on whom he tried to pawn off the task) actually delivered the message. But according to Andrew Weissmann, when he and Jeannie Rhee first got briefed on the investigation into how Russia released the documents it had stolen around that time, they learned no one was investigating it.

This effort didn’t start in June 2017, though. It started at least seven months earlier.

The SSCI Report reveals that the day before the Podesta emails got released, Stone probably had a six minute phone call with the candidate via Keith Schiller’s phone.

On the afternoon of October 6, Stone received a call from Keith Schiller’s number. Stone returned the call about 20 minutes later, and spoke-almost certainly to Trump–for six minutes.1663 The substance of that conversation is not known to the Committee. However, at the time, Stone was focused on the potential for a WikiLeaks release, the Campaign was following WikiLeaks’s announcements, and Trump’s prior call with Stone on September 29, also using Schiller’s phone, related to a WikiLeaks release. Given these facts, it appears quite likely that Stone and Trump spoke about WikiLeaks.

The SSCI Report and the affidavits reveal that Stone postponed a lunch with Jerome Corsi on October 8 to go meet with Trump.

On or about October 8, 2016, STONE messaged CORSI at Target Account 2, “Lunch postponed- have to go see T.” CORSI responded to STONE, “Ok. I understand.”

According to Mike Flynn, in the wake of the Podesta release, senior campaign officials discussed reaching out to WikiLeaks.

Beginning on October 7, 2016, WikiLeaks released emails stolen from John Podesta, the chairman of Hillary Clinton’s 2016 presidential campaign. The defendant relayed to the government statements made in 2016 by senior campaign officials about WikiLeaks to which only a select few people were privy. For example, the defendant recalled conversations with senior campaign officials after the release of the Podesta emails, during which the prospect of reaching out to WikiLeaks was discussed.

And then, days later, Roger Stone tried to reach out to WikiLeaks — seemingly in response to WikiLeaks’ public disavowal of any tie to Stone — only to be rebuffed.

On October 13, 2016, while WikiLeaks was in the midst of releasing the hacked Podesta emails, @RogerJStoneJr sent a private direct message to the Twitter account @wikileaks. This account is the official Twitter account of WikiLeaks and has been described as such by numerous news reports. The message read: “Since I was all over national TV, cable and print defending WikiLeaks and assange against the claim that you are Russian agents and debunking the false charges of sexual assault as trumped up bs you may want to rexamine the strategy of attacking me- cordially R.”

Less than an hour later, @Wikileaks responded by direct message: “We appreciate that. However, the false claims of association are being used by the democrats to undermine the impact of our publications. Don’t go there if you don’t want us to correct you.”

On October 16, 2016, @RogerJStoneJr sent a direct message to @Wikileaks: “Ha! The more you \”correct\” me the more people think you’re lying. Your operation leaks like a sieve. You need to figure out who your friends are.”

But after the election, it was WikiLeaks that reached out to Stone.

On November 9, 2016, one day after the presidential election, @Wikileaks sent a direct message to @RogerJStoneJr containing a single word: “Happy?” @Wikileaks immediately followed up with another message less than a minute later: “We are now more free to communicate.”

At Stone’s trial, Randy Credico testified that in that same period after the election, he put Roger Stone in touch with Margaret Kunstler, Credico’s tie to WikiLeaks and one of the 1,000 lawyers (per a snarky answer from Credico) who represented Assange, to discuss a pardon.

Q. Had you put Mr. Stone directly in touch with Ms. Kunstler after the election?

A. Yes, I did.

Q. And why had you done that?

A. Well, sometime after the election, he wanted me to contact Mrs. Kunstler. He called me up and said that he had spoken to Judge Napolitano about getting Julian Assange a pardon and needed to talk to Mrs. Kunstler about it. So I said, Okay. And I sat on it. And I told her–I told her–she didn’t act on it. And then, eventually, she did, and they had a conversation.

Credico is very evasive about the timing of all this. Texts between him and Stone, introduced as an exhibit at Stone’s trial, show that Credico raised asylum on October 3, three hours before he boasted that he was best friends with Assange’s lawyer, meaning Kunstler.

But when asked about the timing, Credico refused to answer, or even answer a yes or no question about whether discussions began before the election. Note, these texts were ones that neither Credico nor Stone provided at first, on Credico’s part because he no longer had them; the government ultimately subpoenaed them from Stone after Stone shared them with Chuck Ross. The texts Stone produced go through November 14, but the ones released at trial stop on October 3.

Later affidavits make clear, however, that on November 15, seven days after Trump won an election with Julian Assange’s help, Trump’s rat-fucker sent Kunstler a link to download Signal and asked her to call him, which she said she’d do. (This was the first day Stone was using the iPhone 7 on which he sent her these texts.)

Additionally, text messages recovered from Stone’s iCloud account revealed that on or about November 15, 2016, Stone sent an attorney with the ability to contact Julian Assange a link to download the Signal application. 15 Approximately fifteen minutes after sending the link, Stone texted the attorney, “I’m on signal just dial my number.” The attorney responded, “I’ll call you.”

15 This attorney was a close friend of Credico’s and was the same friend Credico emailed on or about September 20, 2016 to pass along Stone’s request to Assange for emails connected to the allegations against then-candidate Clinton related to her service as Secretary of State.

So the pardon discussions Credico testified about under oath began no later then a week after Assange helped Trump get elected and Credico refused to rule out that they started on November 9 or even earlier. The SSCI Report notes Credico had a 12 minute call with Stone on October 5 and five more calls on October 6.

After Trump was inaugurated in early 2017, via an attorney he shared with Oleg Deripaska, Assange tried to leverage CIA’s hacking tools believed to have been stolen the previous April to obtain an immunity deal. Even while those discussions were ongoing, on March 7, 2017, WikiLeaks released the first installment of CIA’s hacking tools, a release they called Vault 7. According to witnesses at the trial of the accused source, Joshua Schulte, the Vault 7 release brought CIA’s hacking-based spying virtually to a halt while the agency tried to figure out who would be compromised by the release.

But that didn’t stop the pardon discussions between WikiLeaks, including Assange personally, and Stone. After another spat about whether Stone had had a back channel to WikiLeaks which they aired on CNN, Stone returned to a discussion of a pardon on April 7.

On or about March 27, 2017, Target Account 1 wrote to Roger Stone, “FYI, while we continue to be unhappy about false \”back channel\” claims, today CNN deliberately broke our off the record comments.”

On March 27, 2017, CNN reported that a representative of WikiLeaks, writing from an email address associated with WikiLeaks, denied that there was any backchannel communication during the Campaign between Stone and WikiLeaks. The same article quoted Stone as stating: “Since I never communicated with WikiLeaks, I guess I must be innocent of charges I knew about the hacking of Podesta’s email (speculation and conjecture) and the timing or scope of their subsequent disclosures. So I am clairvoyant or just a good guesser because the limited things I did predict (Oct disclosures) all came true. ”

On or about April 7, 2017, Roger Stone wrote to Target Account 1, ” I am JA’s only hope for a pardon the chances of which are actually (weirdly) enhanced by the bombing in Syria (which I opposed) . You have no idea how much your operation leaks. Discrediting me only hurts you. Why not consider saying nothing? PS- Why would anyone listen to that asshole Daniel Ellsberg.”

On April 13, in the wake of the Vault 7 hack, Mike Pompeo declared WikiLeaks a non-state hostile intelligence service often abetted by Russia.

It is time to call out WikiLeaks for what it really is – a non-state hostile intelligence service often abetted by state actors like Russia. In January of this year, our Intelligence Community determined that Russian military intelligence—the GRU—had used WikiLeaks to release data of US victims that the GRU had obtained through cyber operations against the Democratic National Committee. And the report also found that Russia’s primary propaganda outlet, RT, has actively collaborated with WikiLeaks.

In response, Stone took to InfoWars on April 18, calling on Pompeo to either provide proof of those Russian ties or resign, defending the release of the Vault 7 tools along the way.

The Intelligence agencies continue to insist that Julian Assange is an active Russian Agent and that Wikileaks is a Russian controlled asset. The agencies have no hard proof of this claim whatsoever. Assange has said repeatedly that he is affiliated with no nation state but the Intelligence Agencies continue to insist that he is under Russian control because it fits the narrative in which they must produce some evidence of Russian interference in our election because they used this charge to legally justify and rationalize the surveillance of Trump aides, myself included.

[snip]

President Donald Trump said on Oct, 10, 2016 “I love Wikileaks” and Pompeo who previously had praised the whistleblowing operation now called Wikileaks “a non-state hostile Intelligence service often abetted by state actors like Russia”. Mr. Pompeo must be pressed to immediately release any evidence he has that proves these statements. If he cannot do so ,the President should discharge him.

[snip]

Julian Assange does not work for the Russians. Given the import of the information that he ultimately disclosed about the Clinton campaign, the Obama administration and the deep secrets in the CIA’s Vault 7, he has educated the American people about the tactics and technology the CIA has used to spy on ordinary Americans.

Assange personally DMed Stone to thank him for the article, while claiming that Pompeo had stopped short of claiming that WikiLeaks had gotten the stolen DNC emails directly, thereby making WikiLeaks like any other media outlet.

On or about April 19, 2017, Assange, using Target Account 2, wrote to Stone, “Ace article in infowars. Appreciated. But note that U.S. intel is engages in slight of hand maoevers [sic]. Listen closely and you see they only claim that we received U.S. election leaks \”not directly\” or via a \”third party\” and do not know \”when\” etc. This line is Pompeo appears to be getting at with his \”abbeted\”. This correspnds to the same as all media and they do not make any allegation that WL or I am a Russia asset.”

It’s in that context — in the wake of Trump’s trusted CIA Director (and a former WikiLeaks booster himself) asserting serial cooperation between Russia and WikiLeaks — that Stone and Assange had the exchange that directly preceded Trump’s attempt to shut down any investigation into the leaks to WikiLeaks.

On June 4, Stone threatened to “bring down the entire house of cards” if the government moved on Assange (Stone kept a notebook during the campaign detailing all the calls he had had with Trump), then raised a pardon again, suggesting Assange had done nothing he needed to be pardoned for.

56. On or about June 4, 2017, Roger Stone wrote back to Target Account 2, “Still nonsense. As a journalist it doesn’t matter where you get information only that it is accurate and authentic. The New York Times printed the Pentagon Papers which were indisputably stolen from the government and the courts ruled it was legal to do so and refused to issue an order restraining the paper from publishing additional articles. If the US government moves on you I will bring down the entire house of cards. With the trumped-up sexual assault charges dropped I don’t know of any crime you need to be pardoned for – best regards. R.” Target Account 2 responded, “Between CIA and DoJ they’re doing quite a lot. On the DoJ side that’s coming most strongly from those obsessed with taking down Trump trying to squeeze us into a deal.”

57. On or about June 10, 2017, Roger Stone wrote to Target Account 2, “I am doing everything possible to address the issues at the highest level of Government. Fed treatment of you and Wikileaks is an outrage. Must be circumspect in this forum as experience demonstrates it is monitored. Best regards R.” Target Account 2 wrote back, “Appreciated. Of course it is!”

According to texts between Stone and Credico, Stone at least claimed to be pursuing a pardon in early 2018 (though he may have been doing that to buy Credico’s silence).

And it wasn’t just Stone involved in the discussions to free Assange.

Manafort’s Ecuador trip

While it’s not clear to what end, Paul Manafort took steps relating to Assange as well.

There’s the weird story by Ken Vogel, explaining that between those two Stone-Assange exchanges in April and June, 2017, long-time Roger Stone friend Paul Manafort went to Ecuador to negotiate Assange’s expulsion.

In mid-May 2017, Paul Manafort, facing intensifying pressure to settle debts and pay mounting legal bills, flew to Ecuador to offer his services to a potentially lucrative new client — the country’s incoming president, Lenín Moreno.

Mr. Manafort made the trip mainly to see if he could broker a deal under which China would invest in Ecuador’s power system, possibly yielding a fat commission for Mr. Manafort.

But the talks turned to a diplomatic sticking point between the United States and Ecuador: the fate of the WikiLeaks founder Julian Assange.

In at least two meetings with Mr. Manafort, Mr. Moreno and his aides discussed their desire to rid themselves of Mr. Assange, who has been holed up in the Ecuadorean Embassy in London since 2012, in exchange for concessions like debt relief from the United States, according to three people familiar with the talks, the details of which have not been previously reported.

They said Mr. Manafort suggested he could help negotiate a deal for the handover of Mr. Assange to the United States, which has long investigated Mr. Assange for the disclosure of secret documents and which later filed charges against him that have not yet been made public.

The story never explained whether Manafort wanted Assange handed over for trial, for a golf vacation, or for Russian exfiltration (as was reportedly planned for Assange later in 2017).

That Manafort went to Ecuador and negotiated for an Assange release accords, however, with the 302 of a witness who called in to Mueller’s team. The witness described that Manafort had told him or her, in real time, that he had gone to Ecuador, “to try to convince the incoming President to expel Assange from the Embassy in order to gain favor with the U.S.”

Neither of these stories should be considered reliable, as written. 302s that Bill Barr’s DOJ is willing to release in unredacted form, as this one is, tend to be false claims that make Trump look less suspect than he really is. And Manafort-adjacent sources were using Ken Vogel to plant less-damning cover stories during this period. Further, as we’ll see, the dates of them, November 28 and December 3, 2018, respectively, puts them in a period after Trump knew that Mueller was investigating efforts to pardon Assange.

Manafort went to Ecuador in May of 2017. At the time, his lifelong buddy Roger Stone was still pursuing some means to get Assange released. It’s unclear precisely what Manafort asked Lenín Moreno to do.

WikiLeaks cultivates Trump’s oldest son

A more interesting parallel timeline (one that becomes more interesting if you track the communications in tandem, as I do below) is the dalliance between Don Jr and WikiLeaks. The failson’s communications with WikiLeaks are one area where all of the Roger Stone stories withhold key details. The Mueller Report, for example, covers only three of the Don Jr-WikiLeaks exchanges, which it caveats by explaining that it addresses the ones “during the campaign period” (again, only the one where Don Jr accesses a non-public website using the private password WikiLeaks shared involved a prosecutorial decision and so needed to be included).

Like the Mueller Report, the SSCI Report describes in the body of the report Don Jr’s exchange with WikiLeaks in a period around the time that Trump and his closest advisors had discussed reaching out to WikILeaks.

(U) WikiLeaks also sought to coordinate its distribution of stolen documents with the Campaign. After Trump proclaimed at an October 10 rally, “I love WikiLeaks” and then posted about it on Twitter,1730 WikiLeaks resumed messaging with Trump Jr. On October 12, it said: “Strongly suggest your dad tweets this link if he mentions us … there’s many great stories the press are missing and we’re sure some of your follows [sic] will find it. btw we just released Podesta Emails Part 4.”1731 Shortly afterward, Trump tweeted: “Very little pick-up by the dishonest media of incredible information provided by WikiLeaks. So dishonest! Rigged System!”1732 Two days later, Donald Trump Jr. tweeted the link himself: “For those who have the time to read about all the corruption and hypocrisy all the @wikileaks emails are right here: wlsearch.tk.”1733 Trump Jr. admitted that this may have been in response to the request from WikiLeaks, but also suggested that it could have been part of a general practice of retweeting the. WikiLeaks releases when they came out. 1734

But it only presents one part of the exchange that Jr and WikiLeaks had on November 8 and 9, and it relegates that to a footnote.

1738 (U) Ibid., pp. 164-166. WikiLeaks continued to interact with Trump Jr. after the general election on November 8, 2016. On November 9, 2016, WikiLeaks wrote to Trump Jr.: “Wow. Obama people will surely try to delete records on the way out. Just a heads up.”

As to the affidavits, the warrant application for Julian Assange’s Twitter account described having earlier obtained Don Jr’s Twitter account, but didn’t refer to him by name. Instead, it referred to him as “a high level individual associated with the Campaign,” and described just the September exchange between the two of them.

After the Atlantic provided more of those DMs, Don Jr, as he had earlier with his June 9 emails, released them himself. The Election Day exchange of which SSCI made no mention pushes Don Jr to adopt a strategy Russia was also pushing — to refuse to concede (a strategy that Trump will undoubtedly adopt on November 4 if he loses).

Hi Don; if your father ‘loses’ we think it is much more interesting if he DOES NOT conceed [sic] and spends time CHALLENGING the media and other types of rigging that occurred–as he has implied that he might do. He is also much more likely to keep his base alive and energised this way and if he is going to start a new network, showing how corrupt the old ones are is helpful. The discussion about the rigging can be transformative as it exposes media corruption, primary corruption, PAC corruption etc. We don’t like corruption ither [sic] and our publications are effective at proving that this and other forms of corruption exists.

That doesn’t pertain to pardons (though it does demonstrate that WikiLeaks was not involved in a journalistic enterprise).

But a DM from December 16, 2016 the SSCI similarly excerpted in a footnote does discuss what amounts to a pardon:

Hi Don. Hope you’re doing well! In relation to Mr. Assange: Obama/Clinton placed pressure on Sweden, UK and Australia (his home country) to illicitly go after Mr. Assange. It would be real easy and helpful for your dad to suggest that Australia appoint Assange ambassador to DC “That’s a really smart tough guy and the most famous australian you have! ” or something similar. They won’t do it, but it will send the right signals to Australia, UK + Sweden to start following the law and stop bending it to ingratiate themselves with the Clintons. Background: justice4assange.com

When these DMs were released on November 14, 2017, Assange tweeted out a follow-up to the December 2016 one, adding a threat by hashtagging, Vault8, the source code to the CIA files, a single example of which WikiLeaks had just released on November 9, 2017.

Meanwhile, the one other example where WikiLeaks provided the President’s son advice — a pitch for him to release his own June 9 emails via WikiLeaks in July 2017 — WikiLeaks explicitly suggested that Don Jr contact Margaret Kunstler, the same lawyer who had been discussing pardons with Assange nine months earlier.

There appears to be more — far more — to Margaret Kunstler’s role. Two 302s identifiable as hers have been released in response to the BuzzFeed FOIA, an interview on October 29, 2018 involving Stone prosecutor Aaron Zelinsky and Obstruction prosecutor Andrew Goldstein, and a second interview, this one by phone, on November 20, 2018, this one adding Russian prosecutor Rush Atkinson along with Zelinsky and Goldstein. Both 302s were released on October 1, 2020, the most recent release. In the first interview, only Kunstler’s response stating that she did not pass on Stone’s September request for information about Libya to Julian Assange was partly unsealed; there are at least five more paragraphs that remain redacted as part of an ongoing investigation. The second is eight pages long and appears to have at least four sub-topics with separate headings. Aside from the introductory paragraph, it remains entirely redacted, with over half covered by a b7A ongoing investigation exemption.

The investigation into much of Stone’s activities appears to have been shut down. But the investigation into the pardon discussions appears to have been ongoing just three weeks ago.

The Mueller question

The discussion of efforts to free Julian Assange appears, primarily, in two versions of the Roger Stone story. Prosecutors at Stone’s trial used the discussions to explain which of Stone’s threats — those naming Kunstler directly — worked most effectively to delay Credico’s cooperation. It also appears in affidavits, though with Don Jr’s identity obscured.

The SSCI report relegates both the Don Jr and Stone pardon discussions with WikiLeaks to footnotes and doesn’t quote Stone using the word “pardon” in the excerpts it includes. It does so even though the SSCI Report describes Dana Rohrabacher’s attempt to broker an Assange pardon in August 2017 in the body of the text.

The Mueller Report doesn’t discuss pardon efforts for Assange where you might expect it, along with discussions of pardons for Manafort, Flynn, Stone himself, and Michael Cohen. Mention of the effort to free Assange appears in just one place: amid the questions asked of Trump in an appendix.

Did you have any discussions prior to January 20, 2017, regarding a potential pardon or other action to benefit Julian Assange? If yes, describe who you had the discussion(s) with, when, and the content of the discussion(s).

I do not recall having had any discussion during the campaign regarding a pardon or action to benefit Julian Assange.

That appendix explains that Mueller’s team submitted these questions on September 17, 2018 (before both of Kunstler’s interviews) and Trump returned them on November 20, 2018.

In the interim period, on October 30, 2018, Don Jr’s close buddy, Arthur Schwartz, for the first time in years of having listened to former Sputnik employee Cassandra Fairbanks’ lobbying for Julian Assange in the right wing chat room they both (along with Ric Grenell) participated in responded by telling her that he would be charged and expelled from the embassy, that a pardon was not going to fucking happen and — at some point, if Fairbanks can be believed — suggesting someone with whom Schwartz was lifelong friends might be affected.

Arthur Schwartz warned me that people would be able to overlook my previous support for WikiLeaks because I did not know some things which he claimed to know about, but that wouldn’t be so forgiving now that I was informed. He brought up my nine year old child during these comments, which I perceived as an intimidation tactic.

He repeatedly insisted that I stop advocating for WikiLeaks and Assange, telling me that “a pardon isn’t going to fucking happen.” He knew very specific details about a future prosecution against Assange that were later made public and that only those very close to the situation would have been aware of. He told me that it would be the “Manning” case that he would be charged with and that it would not involve Vault 7 publication or anything to do with the DNC. He also told me that they would be going after Chelsea Manning. I also recollect being told, I believe, that it would not be before Christmas.

[snip]

The other persons who Schwartz said might also be affected included individuals who he described as “lifelong friends.”

Shortly after Trump submitted his answers, two stories — one public, one via witness testimony to Mueller — claimed that Manafort’s visit to Moreno, at a time when his buddy Stone was seeking a pardon, was actually an attempt to expel him from the embassy.

In spite of what Schwartz told Cassandra, however, the pardon discussions aren’t over. Just before Julian Assange’s extradition hearing started, Roger Stone’s buddy Tucker Carlson invited Glenn Greenwald on to make a three minute pitch — one in which Glenn explained what a good way this would be for Trump to stick it to the Deep State — for both Assange and Ed Snowden.

Timeline

September 20, 2016: WikiLeaks DMs Don Jr a link to putintrump site, including a password.

October 3, 2016: Credico raises asylum for Assange and tells Stone he’s best friends with Assange’s lawyer. WikiLeaks DMs Don Jr asking him to push a story about Hillary drone-striking Assange; Don Jr notes he has already done so and asks what is coming on Wednesday.

October 5, 2016: Credico and Stone speak for 12 minutes.

October 6, 2016: Stone probably has a six minute call with Trump. Stone has five calls with Credico.

October 7, 2016: The release of the Podesta email swamps the DHS/ODNI release attributing the DNC hack and tying WikiLeaks to Russia

October 8, 2016: Stone and Trump probably meet.

Shortly after Podesta release: Senior campaign officials discuss reaching out to WikiLeaks.

October 10, 2016: Trump tweets “I love WikiLeaks.”

October 12, 2016: WikiLeaks disavows any back channel with Stone. WikiLeaks also DMs Don Jr suggesting he get his father to tweet a link. Don Jr tweets it that day.

October 13, 2016: Stone and WikiLeaks exchange DMs.

October 14, 2016: Trump tweets the link WikiLeaks sent to Don Jr.

October 16, 2016: Stone tells WikiLeaks “You need to figure out who your friends are.”

October 21, 2016: WikiLeaks suggests that Don Jr release Trump’s tax returns to WikiLeaks.

November 8, 2016: WikiLeaks DMs Don Jr to suggest Trump not concede if he loses.

November 9, 2016: WikiLeaks DMs Don Jr to claim Obama’s people will delete records on the way out. WikiLeaks DMs Stone to say, “We are now more free to communicate.”

November 14, 2016: Stone gets a new phone.

November 15, 2016: Stone texts Margaret Kunstler a link to Signal and tells her to call him on it, which she said she would do.

December 16, 2016: WikiLeaks suggests that he ask his dad to suggest Australia appoint Assange as Ambassador to the US.

January 6, 2017: WikiLeaks DMs Don Jr a John Harwood tweet asking, Who do you believe, America?

March 7, 2017: WikiLeaks starts releasing the Vault 7 files, effectively halting CIA’s hacking capability for a period.

March 27, 2017: Stone and WikiLeaks exchange more complaints about whether Stone had a back channel.

April 7, 2017: Stone writes WikiLeaks that he is “JA’s only hope for a pardon.”

April 13, 2017: Mike Pompeo calls WikiLeaks a non-state hostile intelligence service often abetted by Russia.

April 18, 2017: Stone calls on Pompeo to release proof of WikiLeaks’ Russian ties or resign.

April 19, 2017: Assange thanks Stone for the attack on Pompeo, but claims that Pompeo has stopped short of calling WikiLeaks a Russian asset.

April 26, 2017: Assange DMs Don Jr some video on “Fake News.”

May 2017: Manafort meets in Ecuador with Lenín Moreno to discuss Assange.

June 4, 2017: Stone DMs Assange, threatening to “bring down the entire house of cards” if the US government moves on Assange.

June 10, 2017: Roger Stone tells Assange he is “doing everything possible … at the highest level of Government” to help Assange.

June 19, 2017: Trump tries to give a back channel order to Jeff Sessions to limit the Mueller investigation to future election meddling, not the meddling that helped him get elected.

July 11, 2017: WikiLeaks DMs Don Jr to suggest he release his June 9 emails via WikiLeaks, providing him Margaret Kunstler’s contact information as if she would take the submission.

October 12, 2017: Mueller’s team obtains Don Jr’s Twitter content.

November 6, 2017: Mueller’s team obtains WikiLeaks and Assange’s Twitter content.

November 14, 2017: Don Jr releases his Twitter DMs with WikiLeaks. Julian Assange publicly references the December 16 DM, suggests he can open “luxury immunity suites for whistleblowers,” and includes a Vault8 hashtag (referencing CIA’s source code).

December 21, 2017: Reported attempt to exfiltrate Assange from the embassy; DOJ charges Assange with CFAA conspiracy.

January 6, 2018: Stone claims “I am working with others to get JA a blanket pardon.”

September 17, 2018: Mueller submits questions to Trump, including one about a pardon for Assange.

October 29, 2018: Mueller’s team interviews Kunstler.

October 30, 2018: Arthur Schwartz tells Cassandra Fairbanks there’s not going to be a fucking Assange pardon.

November 20, 2018: Trump returns his questions to Mueller. Mueller’s team interviews Kunstler.


The movie Rashomon demonstrated that any given narrative tells just one version of events, but that by listening to all available narratives, you might identify gaps and biases that get you closer to the truth.

I’m hoping that principle works even for squalid stories like the investigation into Roger Stone’s cheating in the 2016 election. This series will examine the differences between four stories about Roger Stone’s actions in 2016:

As I noted in the introductory post (which lays out how I generally understand the story each tells), each story has real gaps in one or more of these areas:

My hope is that by identifying these gaps and unpacking what they might say about the choices made in crafting each of these stories, we can get a better understanding of what actually happened — both in 2016 and in the investigations. The gaps will serve as a framework for this series.

Docket Tea Leaves: Manafort, Bannon, and Flynn

I’d like to point to some curious docket doings in cases pertaining to Paul Manafort, Steve Bannon, and Mike Flynn

Manafort

First, two things pertaining to Paul Manafort, who is serving his prison sentence from home. In his book, Andrew Weissmann raises the “other investigation” in which Manafort, on the day he succeeded in getting a plea deal, implicated someone — almost certainly Jared Kushner — and wondered why the material still hadn’t been released.

Most notably, at one point we asked him about an email he’d received in August 2016 from Roger Stone. Manafort gave a long explanation, the gist of which was to implicate two senior Trump campaign officials; it was related to an investigation in New York. (As the precise material is still under seal I cannot discuss the details, although it is unclear to me what the continued basis is for keeping all this material under seal.) We were trying to assess his credibility, fixating on signs of dishonesty—any indication that Manafort was still angling for a pardon, or attempting to play us. Volunteering this information, which implicated senior officials, suggested he may have written that possibility off, even though we all had continuing doubts.

It’s a damn good question given that Manafort’s defense and prosecutors filed a sealed joint motion about what else could be unsealed from Manafort’s breach determination. At the time, the government was proposing to unseal at least some of the information — and had even given proposals to Manafort’s lawyers to unseal them.

On May 29, 2020, the government provided counsel for Mr. Manafort with the last of the government’s proposals for lesser-redacted materials. Counsel for Mr. Manafort is now considering the government’s proposals, and the parties respectfully request additional time for counsel for Mr. Manafort to do so, and for the parties to confer and prepare the joint report for the Court.

But Judge Amy Berman Jackson hasn’t ruled yet. She’s busy as hell, but some of this information would be fairly important for voters to consider before they vote.

Meanwhile, in Manafort’s case in chief, on Tuesday, one of the two DC AUSAs who were on the docket swapped out for a different one.

The United States of America, by and through its attorney, the Acting United States Attorney for the District of Columbia, and Assistant United States Attorney Arvind Lal, hereby informs the Court that he is entering his appearance in this matter on behalf of the United States. Assistant United States Attorney Zia M. Faruqui no longer represents the United States in this matter.

Manafort’s serving his prison sentence from home. And the AUSA on the unsealing docket, Molly Gaston, remains on this one (so it shouldn’t pertain to the unsealing debate). There doesn’t seem to be a need to add new AUSAs when all he’s going to do is continue to sit in his condo until Trump pardons him.

Bannon

Meanwhile, on Wednesday, a sealed document was placed in Steve Bannon’s docket.

This could be a lot of things, and Bannon has three co-defendants, so it’s not even clear that it pertains to him. But it’s the first sealed document (as a simple fraud case, this shouldn’t involve any classified evidence). And it was filed the same day as the Hunter Biden faux-scandal broke.

NBC reported that the FBI is investigating whether this faux-scandal has ties to foreign intelligence.

Federal investigators are examining whether emails allegedly describing activities by Joe Biden and his son Hunter and found on a laptop at a Delaware repair shop are linked to a foreign intelligence operation, two people familiar with the matter told NBC News.

The FBI seized the laptop and a hard drive through a grand jury subpoena. The subpoena was later published by the New York Post. The bureau has declined to comment.

Though there are other sketchy aspects to the story, such as the claim that the shop owner, having been subpoenaed for the laptop, also made a copy and gave it to Rudy’s lawyer, Robert Costello.

“Before turning over the gear, the shop owner says, he made a copy of the hard drive and later gave it to former Mayor Rudy Giuliani’s lawyer, Robert Costello,” the Post said. “Steve Bannon, former adviser to President Trump, told The Post about the existence of the hard drive in late September and Giuliani provided The Post with a copy of it on Sunday.”

Bannon’s Chinese benefactor, Guo Wengui, was hyping the dirt before it was released.

Weeks before the New York Post began publishing what it claimed were the contents of Hunter Biden’s hard drive, a Sept. 25 segment on a YouTube channel run by a Chinese dissident streamer, who is linked to billionaire and Steve Bannon-backer Guo Wengui, broadcast a bizarre conspiracy theory. According to the streamer, Chinese politburo officials had “sent three hard disks of evidence” to the Justice Department and House Speaker Nancy Pelosi containing damaging information about Joe Biden as well as the origins of the coronavirus in a bid to undermine the rule of Chinese President Xi Jinping.

Three days later, a Twitter account linked to Guo and Bannon’s Himalaya movement subsequently amplified an edited clip of the segment alongside the pledge of a “Bombshell… 3 hard disk drives of videos and dossiers of Hunter Biden’s connections with the Chinese Communist Party (CCP) have been sent to Nancy Pelosi and DOJ. Big money and sex scandal!”

And Bannon was boasting of having the laptop on September 28.

If the FBI was already investigating this — including why the shop owner was handing out copies of the purported laptop — then the FBI may have been aware of Bannon’s activities before Wednesday.

The point is, some of this — particularly if it delves into fraud — would be a bail violation. There’s a status conference on October 26, so it’s possible we’ll get hints then.

Ultimately, I think Bannon is virtually guaranteed to be pardoned, because he still hasn’t told the full truth about 2016. So even if he were jailed, it’d likely be for a matter of days until Trump got him out again.

Flynn

Finally, there’s Flynn’s case. The one unopposed amicus — filed by the NACDL — got docketed today. It’s a strong case — far stronger than a similar argument that Sidney Powell tried to make — that Flynn should not be held in contempt for the lies he has told in Judge Emmet Sullivan’s case. It’s an argument that Sullivan would, I imagine, normally find persuasive, and the fact that he has docketed it today makes me wonder if he’s relying on it in his order on Flynn’s case.

The only problem with the brief is it misunderstands the full scope of Flynn’s lies to the court. The brief assumes all his lies pertain to his guilty pleas, and argue that defendants can’t be held accountable for perjury on coerced guilty pleas.

But — as I’ve noted repeatedly — the sworn declaration Flynn submitted as part of his attempt to withdraw his guilty plea, which DOJ’s recent excuses for blowing up his prosecution increasingly rely on, also conflicts with what Flynn said to the grand jury as well as evidence submitted in this docket, which shows notes from Covington recording Flynn telling lies about his engagement with Turkey (see the bold for a conflicting statement).

  • June 26, 2018: Mike Flynn testified to an EDVA grand jury, among other things, that:
    • “From the beginning,” his 2016 consulting project “was always on behalf of elements within the Turkish government,”
    • He and Bijan Kian would “always talk about Gulen as sort of a sharp point” in relations between Turkey and the US as part of the project (though there was some discussion about business climate)
    • “For the most part” “all of that work product [was] about Gulen”
    • When asked if he knew of any work product that didn’t relate to Gulen, Flynn answered, “I don’t think there was anything that we had done that had anything to do with, you know, anything else like business climates or stuff like that”
    • He was not aware of “any work done on researching the state of the business climate in Turkey”
    • He was not aware of “any meetings held with U.S. businesses or business associations”
    • He was not aware of “any work done regarding business opportunities and investment in Turkey”
    • He and his partner “didn’t have any conversations about” a November 8, 2016 op-ed published under his name until “Bijan [] sent me a draft of it a couple of days prior, maybe about a week prior”
  • January 29, 2020: Mike Flynn submitted a sworn declaration. Among the assertions he made were:
    • “On December 1, 2017 (reiterated on December 18, 2018), I pled guilty to lying to agents of the FBI. I am innocent of this crime.”
    • “I gave [Covington] the information they requested and answered their questions truthfully.”
    • “I still don’t remember if I discussed sanctions on a phone call with Ambassador Kislyak nor do I remember if we discussed the details of a UN vote on Israel.”
    • “My relationship with Covington disintegrated soon thereafter.” [After second proffer session.]
    • “I did not believe I had lied in my White House interview with the FBI agents.”
    • “In the preceding months leading up to this moment [when he agreed to the plea deal], I had read articles and heard rumors that the agents did not believe that I had lied.”
    • “It was well after I pled guilty on December 1, 2017, that I heard or read that the agents had stated that they did not believe that I had lied during the January 24, 2017, White House interview.”
    • “I agreed to plead guilty that next day, December 1, 2017, because of the intense pressure from the Special Counsel’s Office, which included a threat to indict my son, Michael, and the lack of crucial information from my counsel.”
    • “My former lawyers from Covington also assured me on November 30, 2017, that if I accepted the plea, my son Michael would be left in peace.”
    • “Regretfully I followed my lawyers’ strong advice to confirm my plea even though it was all I could do to not cry out ‘no’ when this Court asked me if I was guilty.”
    • “In truth, I never lied.”

Not to mention, Flynn’s sworn declaration is internally inconsistent. [Update: a few more of the amicus briefs have been approved, including one from former prosecutors.]

It’s also worth noting that the Bill Barnett 302, which included about a page worth of paragraphs that were “pending unsealing by the court” that have yet to be unsealed. Some of those must pertain to things Flynn claimed in his declaration. (Flynn’s defense, but not Judge Sullivan, has an unredacted copy.)

Finally, yesterday, DOJ either posted or updated a job description that could be Brandon Van Grack’s job leading DOJ’s more focused FARA practice, which Van Grack got moved to after the Mueller investigation (though it could also be a more junior position reporting to Van Grack).

The attorney for this position will focus on administering and enforcing FARA, with at least 50% of the attorney’s time devoted to FARA matters. The attorney’s FARA responsibilities will include preparing for and leading civil litigation, managing criminal investigations, conducting inspections, and drafting advisory opinions.

When DOJ tried to blow up Flynn’s prosecution, Van Grack withdrew from the case but did not quit, though the frothy right claimed he had been ousted. Just in the last while, Bruce Ohr was finally ousted from the office for a trumped up complaint that he shared intelligence on Russian threats, as he had done for years. Van Grack hasn’t filed anything in PACER since DOJ moved to withdraw the prosecution. That said, DOJ has repeatedly said DOJ did not violate Brady.

I don’t really know what to make of all this. But I thought I’d note what I’m seeing in the bottom of my tea cup.

“That’s Rudy.” Trump Proves, Yet Again, That He Would Just Ignore a Defensive Briefing

For years, the frothy right has wailed that candidate Donald Trump should have been given a defensive briefing back in July 2016, rather than have the FBI open an investigation to figure out which member(s) of his campaign had gotten advance notice that the Russians were planning on dropping emails to help Trump win. Never mind that his top advisor in the briefing where that would have occurred was secretly working for the Turkish government at the time.

The complaint has always rung hollow given that, after President Obama warned Trump against hiring Mike Flynn (the aforementioned secret agent for Turkey), Trump went ahead and hired him anyway.

Today, however, we have further proof that Trump would have done nothing if he had gotten a defensive briefing rather than have the FBI investigate whether — as turned out to be true, in every single case — Flynn and Paul Manafort and George Papadopoulos and Carter Page were trying to cash in on their ties to Trump with foreign governments.

Yesterday, the WaPo reported that Trump’s national security advisor warned Trump that Russia was feeding Trump bullshit though Rudy.

U.S. intelligence agencies warned the White House last year that President Trump’s personal lawyer Rudolph W. Giuliani was the target of an influence operation by Russian intelligence, according to four former officials familiar with the matter.

The warnings were based on multiple sources, including intercepted communications, that showed Giuliani was interacting with people tied to Russian intelligence during a December 2019 trip to Ukraine, where he was gathering information that he thought would expose corrupt acts by former vice president Joe Biden and his son Hunter.

The intelligence raised concerns that Giuliani was being used to feed Russian misinformation to the president, the former officials said, speaking on the condition of anonymity to discuss sensitive information and conversations.

The warnings to the White House, which have not previously been reported, led national security adviser Robert O’Brien to caution Trump in a private conversation that any information Giuliani brought back from Ukraine should be considered contaminated by Russia, one of the former officials said.

The message was, “Do what you want to do, but your friend Rudy has been worked by Russian assets in Ukraine,” this person said. Officials wanted “to protect the president from coming out and saying something stupid,” particularly since he was facing impeachment over his own efforts to strong-arm Ukraine’s president into investigating the Bidens.

But O’Brien emerged from the meeting uncertain whether he had gotten through to the president. Trump had “shrugged his shoulders” at O’Brien’s warning, the former official said, and dismissed concern about his lawyer’s activities by saying, “That’s Rudy.”

The WaPo goes on to reveal that Bill Barr and Pat Cipollone — who helped Trump survive impeachment for asking for this help — along with Chris Wray all understood that Rudy was being targeted by Russia.

Several senior administration officials “all had a common understanding” that Giuliani was being targeted by the Russians, said the former official who recounted O’Brien’s intervention. That group included Attorney General William P. Barr, FBI Director Christopher A. Wray and White Counsel Pat Cipollone.

Today, the NYT matched the WaPo story, albeit with one of their fewer than WaPo’s sources pushing back somewhat.

The agencies imparted the warning months before disclosing publicly in August that Moscow was trying to interfere in the election by taking aim at Mr. Biden’s campaign, the officials said. Mr. Trump and Mr. Giuliani have promoted unsubstantiated claims about Mr. Biden that have aligned with Russian disinformation efforts, and Mr. Giuliani has met with a Ukrainian lawmaker whom American officials believe is a Russian agent.

Robert C. O’Brien, the national security adviser, presented the warning about Mr. Giuliani to Mr. Trump in December. Two former officials gave conflicting accounts about its nature. One said the report was presented to Mr. Trump as unverified and vague, but another said the intelligence agencies had developed solid and credible information that Mr. Giuliani was being “worked over” by Russian operatives.

Mr. Trump shrugged it off, officials said, but the first former official cautioned that his reaction could have been colored in part by other information given to him not long before that appeared to back some of Mr. Giuliani’s claims about Ukraine.

Both stories, however, agree that Trump blew off this warning.

So in 2016, the FBI investigated and Trump wailed and cried and said he wished he had gotten a defensive briefing.

Last December, he got a defensive briefing, and he just let his attorney continue to mainline him Russian disinformation.

And along the way, Billy Barr seems to have sidelined a tip (and possibly tried to squelch others) — in the form of the whistleblower complaint that launched impeachment — that might get Rudy investigated for serving as such a willing agent of Russian intelligence.

Government Caught Between a Recusal Motion and Desperation

Last week, Sidney Powell made her first formal request that Judge Emmet Sullivan recuse.

In response, Judge Sullivan said (while noting the proper time for such a request was last year), file a motion.

Sidney did.

It was a shitshow.

Nevertheless, Judge Sullivan politely invited the government to weigh in.

They’ve now done so. While not disagreeing with Flynn, they argue that the way to proceed is on the motion to dismiss — and press for urgent response.

The United States of America, by and through its undersigned counsel, respectfully files this response to General Michael T. Flynn’s Motion to Disqualify Judge Emmet Sullivan, United States v. Flynn, 17-cr-232 (Doc. 161), filed on October 7, 2020. As this Court is aware, during the mandamus proceedings before the en banc Court of Appeals for the D.C. Circuit, General Flynn asked that “any further proceedings be conducted by a different judge.” In re Flynn, No. 20-2153, Doc. 1846621 at 24. While the government did not address that request in its written pleadings, when asked during oral argument, the government offered that it had “reluctantly come to the view that there is now at least a question about appearances of impartiality” because this Court’s filing of a petition for en banc review suggested a “level of investment in the proceedings that is problematic.” In re Flynn, No. 20-2153, Doc. 1859900 (Transcript of the August 11, 2020, Hearing) at 54. The D.C. Circuit rejected that view. In re Flynn, No. 20-5143, 2020 WL 5104220, at *16 (D.C. Cir. Aug. 31, 2020).

Based in part on subsequent events, including the hearing held before the Court on September 29, 2020, General Flynn again raises the serious charge that this Court is biased and has engaged in misconduct. The government does not believe that adjudicating General Flynn’s motion is the most appropriate way for this Court to proceed. Consistent with the en banc D.C. Circuit’s statement that “[a]s the underlying criminal case resumes in the District Court, we trust and expect the District Court to proceed with appropriate dispatch,” In re Flynn, 2020 WL 5104220, at *7, the government respectfully submits that instead the Court should immediately grant the unopposed motion to dismiss the criminal information with prejudice. Doing so would avoid any further delay to General Flynn and to the government, and would eliminate any need for the Court to address the disqualification motion, which would be moot.

This is a nifty way to use the purportedly agreeing sides against each other.

The government wants this done by November 3. That makes Sulliavan’s response to Powell on recusal easier.

 

The Desperation of the Jeffrey Jensen Investigation Already Made Clear that John Durham Won’t Indict

Yesterday, a sick man called into Maria Bartiromo’s show and wailed that his opponents had not been indicted.

Bartiromo: Mr. President. We now know from these documents that John Ratcliffe unveiled that it was Hilary Clinton’s idea to tie you to Russia in some way. It was successful. The whole country was talking about it for two and a half years. But what comes next, Mr. President? We can have all of these documents, we can see exactly what happened but unless John [Durham] comes out with a report or indictments unless Bill Barr comes out with a — a — some kind of a ruling here, do you think this is resonating on the American people?

Trump: Unless Bill Barr indicts these people for crimes, the greatest political crime in the history of our country, then we’re going to get little satisfaction unless I win and we’ll just have to go, because I won’t forget it. But these people should be indicted, this was the greatest political crime in the history of our country and that includes Obama and it includes Biden. These are people that spied on my campaign and we have everything. Now they say they have much more, OK? And I say, Bill, we’ve got plenty, you don’t need any more. We’ve got so much, Maria, even — just take a look at the Comey report, 78 pages of kill, done by Horowitz, and I have a lot of respect for Horowitz, and he said prosecute. He recommended prosecute and they didn’t prosecute. I was — I couldn’t believe it, but they didn’t do it, because they said we have much bigger fish to fry. Well, that’s OK, they indicted Flynn for lying and he didn’t lie. They destroyed many lives, Roger Stone, over nothing. They destroyed lives. Look at Manafort, they sent in a black book, it was a phony black book, phony, they made up a black book of cash that he got from Ukraine or someplace and he didn’t get any cash.

In the comment, he described speaking directly to Billy Barr about the urgency of prosecuting his political opponents.

In response to this attack, Billy Barr has started telling Republican members of Congress that John Durham isn’t going to indict before the election.

Attorney General Bill Barr has begun telling top Republicans that the Justice Department’s sweeping review into the origins of the Russia investigation will not be released before the election, a senior White House official and a congressional aide briefed on the conversations tell Axios.

Why it matters: Republicans had long hoped the report, led by U.S. Attorney John Durham, would be a bombshell containing revelations about what they allege were serious abuses by the Obama administration and intelligence community probing for connections between President Trump and Russia.

  • “This is the nightmare scenario. Essentially, the year and a half of arguably the number one issue for the Republican base is virtually meaningless if this doesn’t happen before the election,” a GOP congressional aide told Axios.
  • Barr has made clear that they should not expect any further indictments or a comprehensive report before Nov. 3, our sources say.

Barr is excusing the delay by saying that Durham is only going to prosecute stuff he can win.

What we’re hearing: Barr is communicating that Durham is taking his investigation extremely seriously and is focused on winning prosecutions.

  • According to one of the sources briefed on the conversations Barr said Durham is working in a deliberate and calculated fashion, and they need to be patient.
  • The general sense of the talks, the source says, is that Durham is not preoccupied with completing his probe by a certain deadline for political purposes.

This back and forth represents a fundamental misunderstanding of what must be going on.

The Durham investigation should not, at this point, be considered separately from the Jeffrey Jensen investigation attempting to invent a reason to blow up the Flynn prosecution. That’s been true since Barr appointed Jensen because Durham hadn’t yet discovered anything to dig Sidney Powell out of the hole she had dug Flynn. But it’s especially true now that documents that would be central to the Durham inquiry are being leaked left and right — whether it’s the report that the FBI knew that Igor Danchenko had been investigated (like Carter Page and Mike Flynn) as a possible Russian agent, or specific details about when the FBI obtained NSLs on Mike Flynn.

The investigative integrity of the Durham investigation has been shot beyond recovery.

Plus, the sheer desperation of the Jensen investigation raises real questions about whether a credible investigation could ever find anything that could sustain a prosecution, in any case. That’s because:

  • Jensen has repeatedly provided evidence that proves the opposite of what DOJ claims. For example, the Bill Priestap notes that DOJ claimed were a smoking gun actually show contemporaneous proof for the explanation that every single witness has offered for Mike Flynn’s interview — that they needed to see whether Flynn would tell the truth about his calls with Sergey Kisklyak. Plus, now there’s a Priestap 302, one DOJ is hiding, that further corroborates that point. That evidence blows all the claims about the centrality of the Logan Act to interviewing Flynn out of the water, and it’s already public.
  • Jensen’s investigators submitted altered exhibits to sustain easily disprovable claims. DOJ has claimed that this tampering with evidence was inadvertent — they simply forgot to take sticky notes off their files. That doesn’t explain all the added dates, however, undermining their excuse. Moreover, if they didn’t intentionally tamper with evidence, they’re left claiming either that they haven’t read the exhibits they’ve relied on thus far in this litigation, or that they’re so fucking stupid that they don’t realize they’ve already disproven their own assumptions about dates. Add in the way their “errors” got mainlined to the President via a lawyer meeting with Trump’s campaign lawyer, and the whole explanation gets so wobbly no prosecutor would want to proceed toward prosecution with problems that could so easily be discoverable (or already public).
  • Jensen’s investigators got star witness William Barnett to expose himself as a partisan willing to forget details to help Trump. Along with an analyst that was skeptical of the Flynn case (but who was moved off before the most damning evidence came in), Barnett would need to be the star witness in any case alleging impropriety in the investigation. But rather than hiding Barnett’s testimony and protecting his credibility, Jensen made a desperate bid to get his claims on the record and make it public. And what the 302 actually shows — even without a subpoena of Barnett’s personal ties and texts sent on FBI phones — is that in his interview, Barnett claimed not to understand the case (even though documents he filed show that he did, contemporaneously), and either did not remember or deliberately suppressed key evidence (not least that Flynn told Kislyak that Trump had been informed of his calls).  The 302 further showed Barnett presenting as “truth” of bias claims that instead show his willingness to make accusations about people he didn’t work with, even going so far as to repackage his own dickish behavior as an attempt to discredit Jeannie Rhee. Finally, by hiding how many good things Barnett had to say about Brandon Van Grack, DOJ has made it clear that the only thing Barnett can be used for is to admit that he, too, believes Flynn lied, didn’t have a problem with one of the key investigators in the case, and that his views held sway on the final Mueller Report. Had Durham managed this witness, Barnett might have been dynamite. Now, he would be, at best, an easily discredited partisan.

Jensen is working from the same evidence that Durham is. And what the Jensen investigation has shown is that it takes either willful ignorance or deliberate manipulation to spin this stuff as damning. And in the process, Jensen has destroyed the viability of a witness and possibly other pieces of evidence that any credible prosecution would use.

DOJ might make one last bid in giving Trump what he wants, allegations against his adversaries, by using the initial response in the McCabe and Strzok lawsuits as a platform to make unsubstantiated attacks on them (DOJ got an extension in both cases, but one that is still before the election). But those attacks will crumble just like the Jeffrey Jensen case has, and do so in a way that may make it easier for McCabe and Strzok to get expansive discovery at the underlying actions of people like Barnett.

Billy Barr has largely shot his wad in drumming up accusations against Trump’s critics. And along the way, he has proven how flimsy any such claims were in the first place.