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But Her Emails: How Trump Trained the GOP to Hate Rule of Law 1

Note: I haven’t quite finished spinning my Ball of Thread out of which I will explain how Trump trained the GOP to hate rule of law. But for a number of reasons — this great Heather Cox Richardson piece marking the Maidan anniversary and Paul Manafort’s role in it, the arrest of Alexander Smirnov in conjunction with a 2020 attempt, assisted by Bill Barr, to frame Joe Biden, and the heightened urgency of the fate of Ukraine — I thought I’d publish this now.

In an alternate reality, the final report laying out how Trump knowingly requested and accepted help — help he may have denied, but which did come from Russia — to win the 2016 election might have started with a nod to these exhibits, submitted in conjunction with Paul Manafort’s guilty plea on September 14, 2018.

The criminal information and exhibits describe Manafort’s efforts to help Viktor Yanukovych neutralize his pro-Western female opponent, Yulia Tymoshenko, first by prosecuting her for corruption, then by launching an increasingly complex transnational influence operation to “plant some stink on Tymo” to justify the prosecution. The exhibits describe how Manafort tried to spin a Skadden Arps report finding that Tymoshenko’s criminal intent “is almost non-existent,” and then how Manafort criminally covered up that effort at spin. There’s even a passage describing how Manafort manufactured a claim that Tymoshenko was antisemitic by getting an Israeli to make a statement to the NYPost.

“Bada bing bada boom,” Manafort bragged about his success in manufacturing a fake election scandal.

It was all an effort, Manafort described, to claim Ukraine was building a “‘rule of law’ democracy” so the EU and US would ignore Yanukovich’s human rights violations.

In that same alternate reality, Manafort would have honored his plea deal, and in the days following Manafort’s September 14 plea, he would have elaborated on the things he told prosecutors in the days leading up to it and some others they likely wanted to know. He might have explained how his Ukrainian backers and probably Konstantin Kilimnik — who a number of people, but not Manafort, admitted might be a Russian spy — seemed to know by December 2015 that Manafort would run Donald Trump’s campaign. Manafort might have revealed more about his meeting with Kilimnik on August 2, 2016, at which he reviewed polling that showed the key to winning was driving up Hillary’s negatives; Manafort might also have explained the relationship between that election discussion and two other topics discussed that night: how he would get paid millions and Kilimnik’s plan to carve up Ukraine for Russia’s benefit. If Manafort had fulfilled his plea deal, he might have explained what his long-time friend Roger Stone pitched to him on August 3, the day after that secret cigar bar meeting, as a way to “save Trump’s ass.”

He might have said more than he otherwise did about how Stone learned, within a few weeks after that August 3 conversation, that WikiLeaks would be dropping emails stolen from John Podesta that would show, Stone hoped, that Hillary’s campaign manager had the same kind of Russian exposures that Manafort did.

Manafort would be vindicated because he had to leave the campaign for being too pro-Russian, and this would show that Podesta also had links to Russia and would have to leave.

None of that happened.

Manafort seems to have decided — perhaps after a conversation his attorney had with Rudy Giuliani around the same day he flipped — to string out Mueller’s prosecutors until after the midterms. After the election Trump fired Jeff Sessions and ultimately replaced him with someone who would shut down the investigation and see to it that Manafort’s imprisonment remained comfortable, and not just comfortable, but amenable to further collusion with Rudy on schemes that would frame Hunter Biden for tax and influence peddling crimes in Ukraine, until such time as Trump could pardon his former campaign manager for tax and influence peddling crimes in Ukraine.

In this alternate reality, then, the story of how Trump taught Republicans to hate rule of law might start with a story of how his campaign manager had spun corruption as rule of law in the past, in Ukraine, and how the 2016 election did something similar in the US.

But then, Republicans didn’t need Paul Manafort’s help to demonize Hillary Clinton. That had been a core focus of the Republican party since her spouse’s presidency. That unrelenting focus on criminalizing the Clintons (and via that narrative, dehumanizing Democrats, thereby heightening polarization) had been nourished over three decades in an increasingly airtight Fox News bubble, one newly challenged by even sloppier, more radical propaganda outlets.

In the years before the election contest with Trump, the right wing propaganda machine manufactured two criminal investigations into Hillary to “plant some stink” on her.

In January 2016 — fifteen years after DOJ first investigated the Clinton Foundation  — three different FBI offices opened investigations into the Clinton Foundation based entirely or substantially on Peter Schweizer’s Clinton Cash. Notably. At least one of the FBI agents handling an informant on that investigation was affirmatively pro-Trump. “I saw a lot of scared MFers on … [my way to work] this morning,” one gloated the day after the election. “Start looking for new jobs fellas. Haha.” As NYT first reported, that investigation remained open until after Trump left office.

And by the time Manafort joined Trump’s campaign in March 2016, House Republicans were three years into their endless Benghazi investigations. After years of pushing, that had morphed into the investigation into Hillary’s private server, which would merge right into the public and private pursuit of Hillary’s deleted emails. “Russia, if you’re listening,” Trump begged a hostile country to find those deleted emails for him, even as his ascendant National Security Advisor worked with a Senate staffer to find out of hostile powers had gotten copies.

Details of both investigations into Hillary leaked, with a slew of stories (one, two, three) fed through Devlin Barrett (then still at WSJ) in the days before the election.

Of course it was Jim Comey who did the real damage, first by usurping DOJ’s authority to issue a prosecutorial decision and then planting some stink on Hillary while doing so. That led to a series of congressional hearings, and ultimately to the reopening of the investigation, predictably leaking days before the election.

Among the many but-fors that decided that election, Comey’s actions were easily the most important. Comey did this — made repeated attempts to stave off claims of partisanship — in a naive bid he could convince the hoards chanting “Lock her up!” of the legitimacy of the decision not to charge.

We’ll never know, but that effort, the orchestrated campaign to criminalize Hillary followed by a ham-handed effort to convince right wingers of the legitimacy of a considered prosecutorial decision, by itself, may have been enough to carry Trump to victory.

This, then, was the raw material Russia exploited in 2016 — stoking both sides of a deep partisan divide fueled by two decades of a propaganda focused on criminalizing Hillary Clinton.

The Republicans proved in that election (or reconfirmed the Whitewater test) that if only they repeated allegations often enough, loudly enough, preferably over and over again in Congress, eventually some criminal investigation would result, a criminal investigation that Republicans could then amplify.

The Republicans came to that election with an unshakeable belief that Hillary was a criminal and if DOJ said she wasn’t, there must be something wrong with DOJ, not any shortcomings in the evidentiary case.

And then Russia dropped a match on that already flaming bonfire.

The First Time Trump “Colluded” with Russia Was To Help Bibi Netanyahu

The first time Donald Trump worked via back channel with Russia to undermine Barack Obama’s foreign policy, it was to help Bibi Netanyahu dodge repercussions for illegal settlements in the West Bank.

And yet that effort — and the way that Jared Kushner mobilized a group of countries to undermine the sitting President’s foreign policy decision — has gone unmentioned in recent months, even as Bibi blows off Joe Biden’s requests for moderation in advance of the November election, even as Vladimir Putin holds overt meetings with Hamas, even as Kushner — effectively an employee of Mohammed bin Salman at this point — meets with Qatar and tours Kfar Aza.

The Mueller Report actually soft-pedaled what happened in December 2016.

On December 21, 2016, Egypt submitted a resolution to the United Nations Security Council calling on Israel to cease settlement activities in Palestinian territory.1208 The Security Council, which includes Russia, was scheduled to vote on the resolution the following day.1209 There was speculation in the media that the Obama Administration would not oppose the resolution.1210

According to Flynn, the Transition Team regarded the vote as a significant issue and wanted to support Israel by opposing the resolution.1211 On December 22, 2016, multiple members of the Transition Team, as well as President-Elect Trump, communicated with foreign government officials to determine their views on the resolution and to rally support to delay the vote or defeat the resolution.1212 Kushner led the effort for the Transition Team; Flynn was responsible for the Russian government.1213 Minutes after an early morning phone call with Kushner on December 22, Flynn called Kislyak.1214 According to Flynn, he informed Kislyak about the vote and the Transition Team’s opposition to the resolution, and requested that Russia vote against or delay the resolution.1215 Later that day, President-Elect Trump spoke with Egyptian President Abdel Fattah al-Sisi about the vote.1216 Ultimately, Egypt postponed the vote.1217

On December 23, 2016, Malaysia, New Zealand, Senegal, and Venezuela resubmitted the resolution.1218 Throughout the day, members of the Transition Team continued to talk with foreign leaders about the resolution, with Flynn continuing to lead the outreach with the Russian government through Kislyak.1219 When Flynn again spoke with Kislyak, Kislyak informed Flynn that if the resolution came to a vote, Russia would not vote against it.1220 The resolution later passed 14-0, with the United States abstaining.1221 [my emphasis]

1208 Karen DeYoung, How the U.S. Came to Abstain on a U.N. Resolution Condemning Israeli Settlements, Washington Post (Dec. 28, 2016).

1209 Karen DeYoung, How the U.S. Came to Abstain on a U.N. Resolution Condemning Israeli Settlements, Washington Post (Dec. 28, 2016).

1210 Michelle Nichols & Lesley Wroughton, U.S. Intended to Allow Passage of U.N. Draft Critical of Israel, Reuters (Dec. 21, 2016).

1211 Flynn 11/16/17 302, at 12; Flynn 11/17/17 302, at 2.

1212 Flynn 11/16/17 302, at 12-14; Flynn 11/17/17 302, at 2.

1213 Flynn 11/16/17 302, at 12-14; Flynn 11/17/17 302, at 2; Kushner 11/1/17 302, at 3; 12/22/16 Email, Kushner to Flynn; 12/22/16 Email, McFarland to et al.

1214 Flynn 11/16/17 302, at 13; Call Records of Michael T. Flynn

1215 Statement of Offense ¶ 3(d), United States v. Michael T. Flynn, No. 1:17-cr-232 (D.D.C. Dec. 1, 2017), Doc. 4 (“Flynn Statement of Offense”); Flynn 11/16/17 302, at 12-13.

1216 Flynn 11/17/17 302, at 2; Flynn 11/16/17 302, at 13.

1217 U.N. Vote on Israeli Settlement Postponed, “Potentially Indefinitely”, Reuters (Dec. 22, 2016).

1218 Somini Sengupta & Rick Gladstone, Rebuffing Israel, U.S. Allows Censure Over Settlements, New York Times (Dec. 23, 2016).

1219 Flynn 11/16/17 302, at 12-14; Kushner 11/1/17 302, at 3; 12/23/16 Email, Flynn to Kushner et al.

1220 Flynn Statement of Offense ¶ 3(g).

1221 Israel’s Settlements Have No Legal Validity, Constitute Flagrant Violation of International Law, Security Council Reaffirms, 7853rd Meeting (PM), United Nations Security Council (Dec. 23, 2016).

This account separates the description of the December 1, 2016 meeting including Sergey Kislyak and Flynn at which Jared suggested setting up a back channel via secure Russian channels, as well as the December 13, 2016 meeting with sanctioned banker Sergey Gorkov at Tom Barrack’s office, a meeting Jared claimed was diplomatic but Gorkov claimed pertained to business.

The Report doesn’t reveal which Senator’s office alerted Flynn to the risk that Obama would allow Israel be sanctioned.

The Report doesn’t describe all the calls that took place on December 22. In a warrant affidavit targeting Flynn, multiple calls are described as taking place on Flynn’s phone — suggesting the possibility that Trump used Flynn’s phone to call al-Sisi. McFarland later noted that Flynn, “worked it all day with trump from Mara lago.”

The Report did not mention that Jared asked toand did — release a false report claiming that Egypt had initiated this effort.

Can we make it clear that Al Sisi reached out to DJT so it doesn’t look like we reached out to intercede? This happens to be the true fact patter and better for this to be out there.

Because it remained under investigation, the Report doesn’t mention the suspected $10 million payment an Egyptian bank had given Trump in September 2016, important background to Trump’s call to al-Sisi.

It doesn’t describe that KT McFarland had likened the effort to undercut Obama’s foreign policy to Richard Nixon’s effort to forestall peace in Vietnam and Ronald Reagan’s effort to delay the release of hostages from Iran.

Based on her study of prior presidential transitions, McFarland believed the sorts of things Flynn did were not unusual. She cited Richard Nixon’s involvement in Vietnam War peace talks and Ronald Reagan’s purported dealings with Iran to free American hostages during an incoming administration. Most incoming administrations did similar things. No “red light” or “alarm bells” went off in her head when she heard what Flynn was doing. The President-elect made his support for Israel very clear during the campaign and contrasted his position with President Obama, who he believed had not treated Israel fairly.

And Mueller — likely working under the normally safe assumption that the call intercepts with Sergey Kislyak would never be released — left out several damning details revealed when John Ratcliffe did release the transcripts in May 2020.

First, Mueller implies that Egypt, by itself, decided to delay the vote, but on their second call, Sergey Kislyak told Flynn that they would push for a delay too.

Kislyak: Uh, I just wanted as a follow up to share with you several points. One, that, uh, your previous, uh, uh, telephone call, I reported to Moscow and it was considered at the highest level in Russia. Secondly, uh, uh, here we are pointing [PH], uh, taking into account, uh, entirely your, uh, arguments.

Flynn: Yes.

Kislyak: To raise a proposal or an idea of continued consultations in New York. We will do it.

Flynn: Okay.

Kislyak: Uh, to give time for working out something, uh, that would be, would be, uh, less controversial.

Flynn: Okay. That. .. That’s good news.

[snip]

Kislyak: But, uh, responding to your, uh, telephone call and our conversations, we will try to help, uh, to~ uh~ postpone the vote and to allow for consultations.

Flynn: Okay. That’s .. that’s good.

In Kislyak’s call with Flynn (in which he had to cut off the blubbering General to make his carefully scripted points), he made it clear that he had discussed the topic with “the highest level in Russia,” which can only mean Putin.

When Flynn called Kislyak back on December 29, the Russian Ambassador told him that they were not going to support Obama’s other framework for the Middle East at the time.

KISLYAK: Oh, General, thank you very much for calling me back. I was trying to reach you for quite a while because I have several, uh, issues to raise with you —

FLYNN: Uh huh.

KISLYAK: – rather to inform you. If you’ll allow me, one by one.

FLYNN: Please.

KISLYAK: One, uh, since you were interested in the issue of the Middle East and you called me on that issue

FLYNN: Uh huh.

KISLYAK: We wanted to convey to you and through you to the President Elect that we had uh significant reservations about the idea of adopting now the principles for the Middle East, uh, that our American colleagues are pushing for. So we are not going to support it to — in the quartet, or in the Security Council. And we have conveyed to our American colleagues. So in the spirit of full transparency I was asked to inform you as well.

FLYNN: Okay.

KfSLYAK: So it’s not something that we – Russia – are going to support.

FLYNN: Okay that’s good.

Kislyak tied that, implicitly, to a demand to reverse Obama’s sanctions; he used Flynn’s discussion about cooperating on counterterrorism to note that GRU and FSB would need to be part of the cooperation.

FLYNN: We have to eliminate the common threat.

KISLYAK: We agree. One fo the problems among the measures that have been announced today is that now FSB and GRU are sanctions, are sanctioned, and I ask myself, uh, does it mean that the United States isn’t willing to work on terrorist threats?

FLYNN: Yeah, yeah.

KISLYAK: Because that’s the people who are exactly, uh, fighting the terrorists.

Most importantly, a point utterly inconsistent with the conclusion in the Mueller Report that it was never clear if Trump knew of this back channel, on their December 31 call, Flynn told Kislyak that “boss is aware” of an invite that Kislyak had extended.

Remember that a pro-Trump FBI agent was pushing the conclusion that all this was a big misunderstanding, a conclusion that largely held the day.

And that’s just what is included. Ratcliffe didn’t release the December 22 transcript, the one that started this discussion.

Flynn was in Mar-a-Lago on December 22 — and the December 29 transcript suggests that Flynn may have been on speaker phone (he made the call from his hotel phone, and so could have had his own phone connected back to MAL). So it’s not impossible that Trump was actually involved in the calls placed on December 22. As bolded above, in the Report, Mueller didn’t describe what he knew from the transcripts; instead, he attributed his version of the December 22 calls to Flynn.

At a time when Trump was advised — at least partly — by adults, he didn’t hesitate to intervene back channel to undercut his Democratic predecessor in order to help Bibi Netanyahu. Per KT McFarland, it was all in the tradition of Nixon and Reagan intervening in foreign policy to help win an election.

This post is part of a Ball of Thread I’m putting together before I attempt to explain how Trump trained Republicans to hate rule of law. See this post for an explanation of my Ball of Thread.

Donald Trump Raises Conflict Concerns about His Mike Flynn Pardon

The data mules for Trump’s latest tirade seem to think his claims that Sidney Powell was never his lawyer are all an attempt to deny he ever took legal advice from Powell in the wake of her plea deal in Georgia.

But the substance of his tirade is far more interesting than that.

Trump doesn’t just claim that Sidney Powell was never his attorney — a claim that conflicts with claims Trump made in real time.

He says she would have been conflicted.

Immediately after Trump claims Sidney Powell would have been conflicted (because of what? Trump doesn’t say), the former President turns to the Thanksgiving pardon he gave to confessed agent of Turkey, Mike Flynn.

Trump implies he gave Flynn a pardon because, “He was an innocent man, much like many other innocent people who are being persecuted by this now Fascist government of ours.” But as we’ve just reviewed thanks to Flynn’s stupid lawsuit against DOJ, the pardon itself did not make that claim. Only a White House press release about the pardon did.

Plus, the pardon couldn’t have been based on innocence, not entirely, anyway, because Flynn made false statements in the process of reneging off his prior guilty plea to making false statements. It is quite literally impossible for Flynn to have been innocent of making any unlawful false statements, because the things he said in the process of reneging on his plea deal completely contradicted things he had said under oath earlier. The Flynn pardon was easily the most expansive of any pardons Trump gave (perhaps save the clemency for Roger Stone found in Trump’s desk drawer, which could pardon Stone for murdering someone on Fifth Avenue for all we know). It had to be written that broadly to prevent Judge Sullivan from referring Flynn for perjury before his court. The pardon covered not just the lies Flynn told the FBI on January 24, 2017, it also covered claims Flynn made before an EDVA grand jury and in plea colloquies before Sullivan.

So here we are, just days after DOJ submitted a response to Trump’s claim of absolute immunity that argued — among other things — that a presidential pardon given as part of a quid pro quo would be unlawful, and Trump is offering up not just that Sidney Powell wasn’t his attorney in November 2020 when he claimed she was, but that she would have been conflicted — apparently because of her representation of Mike Flynn! — from being his attorney.

In real time, I addressed the possibility that Trump’s public claims about whether Sidney Powell was or was not his attorney may have been an attempt to eliminate the conflict problem with Flynn’s pardon.

I wonder whether some smart lawyer grew concerned that Sidney Powell was claiming to represent the President even while she was representing someone asking for a pardon.

On November 15, Trump explicitly named Powell as part of his team. On November [19], Powell appeared at Rudy the Dripper’s press conference. On November 22, Rudy and Jenna Ellis made a show of cutting ties with her.

Sidney Powell is practice law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity.

According to Maggie Haberman, either he didn’t like her appearance and/or advisors convinced Trump to separate himself from her nutjobbery. Three days later, November 25, Trump pardoned Powell’s client. The next day, after days of promising to Bring the Kraken, Powell finally started releasing her epically batshit suits. Trump has promoted them.

Indeed, it even appears some Administration lawyers are still associated with Powell’s efforts.

I’m not sure I understand whether there would be a conflict between Powell representing Trump (for free, inevitably, as all lawyers do), making desperate efforts to overturn the election at the same time she was trying to ensure her client did no prison time. If that’s a conflict, it may still exist anyway given Powell’s admission to Judge Sullivan that she had repeatedly discussed Flynn with Trump’s campaign lawyer, Jenna Ellis. The fact that DOJ packaged up altered documents to support a Trump attack on Biden may make those ties more important anyway (or lead to more details about them becoming public).

That was the publicly available timeline (and Maggie Haberman’s public explanation) when I wrote the post on November 27, 2020, just two days after the pardon.

But Trump’s January 6 indictment adds a few details to that timeline in the single solitary paragraph addressing Powell’s overt acts, which happens to be tucked away in the section on Georgia, the state where Powell just pled guilty.

On November 16, 2020, on the Defendant’s behalf, his executive assistant sent CoConspirator 3 and others a document containing bullet points critical of a certain voting machine company, writing, “See attached – Please include as is, or almost as is, in lawsuit.” CoConspirator 3 responded nine minutes later, writing, “IT MUST GO IN ALL SUITS IN GA AND PA IMMEDIATELY WITH A FRAUD CLAIM THAT REQUIRES THE ENTIRE ELECTION TO BE SET ASIDE in those states and machines impounded for non-partisan professional inspection.” On November 25, Co-Conspirator 3 filed a lawsuit against the Governor of Georgia falsely alleging “massive election fraud” accomplished through the voting machine company’s election software and hardware. Before the lawsuit was even filed, the Defendant retweeted a post promoting it. The Defendant did this despite the fact that when he had discussed CoConspirator 3’s far-fetched public claims regarding the voting machine company in private with advisors, the Defendant had conceded that they were unsupported and that Co-Conspirator 3 sounded “crazy.” Co-Conspirator 3’s Georgia lawsuit was dismissed on December 7.

Here’s how the timeline looks with the details from the indictment added in:

  • November 15: Trump says publicly Powell was part of his team
  • November 16: Nine minutes after Trump demanded lawsuits include attacks on Dominion, Powell orders that all forthcoming lawsuits include it: “IT MUST GO IN ALL SUITS IN GA AND PA IMMEDIATELY WITH A FRAUD CLAIM THAT REQUIRES THE ENTIRE ELECTION TO BE SET ASIDE”
  • November 19: Powell appears at the Rudy the Dripper press conference, looking far less embarrassing than the President’s lawyer, which didn’t stop Maggie Haberman from claiming that Powell’s appearance was the reason Trump was cutting Powell from his legal team
  • November 22: Jenna Ellis and Rudy make a big show of cutting ties with Powell
  • November 25: Having ordered that all lawsuits include the Dominion attack Trump ordered, Sidney Powell then files the first lawsuit including such an attack; on the very same day, Trump pardons her client and then starts disseminating her bullshit attacks on Dominion

At least according to the indictment, it all happens on the same day: The lawsuit attacking Dominion, the pardon, Trump’s celebration of the lawsuit attacking Dominion.

The indictment focuses on Trump’s claims that Powell was crazy — and up until now I have believed that’s in there as a guaranteed way to show that Trump was pushing lies he had disavowed.

But with Trump ranting about cooperating witness Sidney Powell’s conflicts, I’m no longer so sure.

Update: Fixed date of hair dye presser, h/t critter.

Mike Flynn Invites DOJ to Review Judge Emmet Sullivan’s Non-Exoneration

I’ve been missing out on some fun.

When Mike Flynn sued DOJ in Florida for malicious prosecution (docket, complaint, amended complaint, response to MTD), I set an alert but figured it would be too stupid to follow along closely and so haven’t been following closely until something led me to peek this morning.

It is stupid.

But it has, nevertheless, elicited some interesting arguments on the part of DOJ (motion to dismiss, motion to dismiss amended complaint). That’s because it has forced DOJ to engage with Bill Barr’s corrupt attempt to dismiss Flynn’s prosecution in 2020 (the second of these MTDs, which I treat here, was filed in mid-September).

DOJ argues the DC standard for malicious prosecution applies here. If it does, it means that Flynn has to prove that:

  1. The criminal prosecution was procured by investigative or law enforcement officers (as opposed to prosecutors)
  2. There was no probable cause to support the charges even though Flynn pled guilty to them, twice
  3. The criminal prosecution terminated in Plaintiff’s favor

Flynn unsurprisingly bases his claims substantially on texts Peter Strzok sent Lisa Page and even DOJ’s improperly released letter from David Bowdich dismissing Strzok (currently the subject of a lawsuit in which Trump was deposed four days ago).

It also relies heavily on — but does not submit as evidence — the testimony of Bill Barnett. Barnett is pro-Trump FBI agent who, unlike Strzok, remained on the case when Flynn was actually charged. As part of an election stunt, Barr released an interview with Barnett that wildly contradicted his own past actions and redacted all mention of Brandon Van Grack, about whom Barnett had favorable things to say.

You can see the problem here.

Flynn tried, but cannot argue, that Jeannie Rhee and Robert Mueller procured a malicious prosecution of him (for some reason — possibly because the Barnett report describes what a nice guy Van Grack was — Flynn removed Van Grack from his amended complaint).

To win this case, Flynn has to show that an FBI agent did mean things to him. But the FBI agent on the case when he was charged was Barnett, not Strzok. To argue that earlier investigative steps amount to mean things, Flynn has to argue that an agent who reportedly sent pro-Trump texts on his FBI phone filed malicious National Security Letters targeting him.

Since that argument is such a loser, Flynn has substantially attempted to argue that because the FBI did mean things to Carter Page, it equates to mean things against him too.

As DOJ notes, even Carter Page’s lawsuit failed.

Flynn also has to explain away why he twice pled guilty to the charges against him if there was no probable cause to justify the investigation in the first place.

Here, there can be no dispute that there was probable cause for the United States to file the criminal information because Plaintiff had already agreed to plead guilty to the charge at the time it was filed. See Criminal Case, ECF No. 3 (plea agreement with Plaintiff’s signature dated November 30, 2017), Criminal Case, ECF No. 154 (describing exchange of plea documents in days prior to the filing of the criminal information). Plaintiff’s plea agreement expressly states that Plaintiff is entering the plea “voluntarily and of [his] own free will,” after having discussed the plea with his attorneys, because he is “in fact guilty of the offense.” Criminal Case, ECF No. 3 at 10. In connection with the plea, Plaintiff also signed, under penalty of perjury, a “Statement of the Offense,” which set forth the factual predicate for his guilty plea. Criminal Case, ECF No. 4. In the Statement of the Offense, Plaintiff expressly stipulated and agreed that “[Plaintiff’s] false statements and omissions impeded and otherwise had a material impact on the FBI’s ongoing investigation into the existence of any links or coordination between individuals with the [Trump] Campaign and Russia’s efforts to interfere with the 2016 presidential election.” Id. at ¶ 1-2. Subsequently, Plaintiff twice affirmed, under oath, in open court that he was pleading guilty—not based upon any threats or promises but—because he was, in fact, guilty of the offense charged. See Criminal Case, ECF Nos. 16, 103.

Plaintiff’s own agreement to plead guilty to the criminal information conclusively establishes that there were “reasonable grounds”—i.e., probable cause—for the United States to institute the criminal charges. Indeed, numerous courts have held that a guilty plea “conclusively establishes that probable cause existed.” Cuellar v. Love, No. 11-CV-3632 NSR, 2014 WL 1486458, at *5 (S.D.N.Y. Apr. 11, 2014) (collecting cases); see also Walker v. Clearfield Cnty. Dist. Att’y, 413 F. App’x 481, 483 (3d Cir. 2011) (concluding “that a guilty plea—even one for a lesser offense—does not permit a later assertion of no probable cause”); Morrison v. Vine, No. 17-CV-996-LJV-HBS, 2021 WL 1229558, at *3 (W.D.N.Y. Feb. 25, 2021) (collecting cases for proposition that “guilty plea established probable cause for his criminal prosecution”), report and recommendation adopted, 2021 WL 1226446 (W.D.N.Y. Mar. 31, 2021). Plaintiff’s guilty plea thus “establishes probable cause for commencing the proceeding against him and therefore serves as an absolute defense to the malicious prosecution claim.”

Flynn claims he pled guilty (at least the first time) because DOJ threatened to prosecute his son.

The Amended Complaint alleges that Plaintiff “entered into a plea agreement, not because he thought he had done something wrong—he hadn’t—but because SCO had threatened his son with prosecution.” ECF No. 34 ¶ 128; see also id. at ¶ 136 (alleging that “SCO was aware that it had coerced the guilty plea”). Plaintiff’s allegation is totally devoid of supporting factual allegations regarding the alleged threat—such as what specific threat was made, who allegedly made the threat, or when the threat was made. Plaintiff’s threadbare allegation of coercion is insufficient to overcome the presumption established by Plaintiff’s guilty plea.

As DOJ notes, Flynn doesn’t even try to substantiate this claim. That’s probably because if he did, it’d lead right back to Van Grack and Barnett, not Strzok.

Since Flynn can’t prove either that an FBI agent caused charges to be filed against him or that there was no probable cause justifying it, this suit should not succeed.

But things get interesting on the third prong.

That’s because DOJ points to Judge Emmet Sullivan’s refusal to dismiss Flynn’s prosecution in the face of Barr’s attempts to do so to show that the case did not affirm Flynn’s innocence.

In or around February 2020, then-Attorney General William Barr appointed several prosecutors to review the Criminal Case, and, at the conclusion of their review, they recommended dismissal of the Criminal Case against Plaintiff. ECF No. 34. ¶¶ 147-48. On May 7, 2020, then-United States Attorney for the District of Columbia, Timothy Shea, who had not previously appeared in the case, moved to dismiss the criminal information. Id. ¶¶ 148, 151; ECF No. 34-4; Criminal Case, ECF No. 198. U.S. Attorney Shea argued that dismissal was warranted because the Government believed it could not prove “to a jury beyond a reasonable doubt” that: (1) Plaintiff’s false statements to FBI agents were “material” to any FBI investigation; and (2) Plaintiff knowingly and willfully made false statements during the interview. ECF 34-4 at 17-18. U.S. District Court Judge Emmet Sullivan did not immediately grant the motion and, instead, on May 13, 2020, appointed an amicus curiae “to present arguments in opposition to the government’s Motion to Dismiss.” Criminal Case, ECF No. 205 at 1; see also ECF No. 34 ¶ 162.

On November 25, 2020, prior to Judge Sullivan ruling on the motion to withdraw and motion to dismiss, President Trump granted Plaintiff a pardon. The presidential pardon provided Plaintiff “a full and unconditional pardon” for the charge of making false statements to federal investigators, as charged in the criminal information, and all possible offenses within the investigatory authority or jurisdiction of Special Counsel Mueller. Criminal Case, ECF No. 308-1. On the same day the pardon was issued, the White House Press Secretary released a statement addressing the pardon, stating that Plaintiff “should not require a pardon [because h]e is an innocent man.” ECF No. 34 ¶ 163.7 However, the text of the executive pardon did not indicate that the pardon was based on innocence. See Criminal Case, ECF No. 308-1.

On November 30, 2020, the United States Attorney’s Office filed a notice of the executive pardon and consent motion to dismiss, arguing that the Criminal Case was moot due to Plaintiff’s acceptance of the pardon. Criminal Case, ECF No. 308. On December 8, 2020, Judge Sullivan issued an opinion dismissing the Criminal Case as moot. Criminal Case, ECF No. 311.8 In doing so, Judge Sullivan addressed the arguments for dismissal raised in the still pending motion to dismiss filed by U.S. Attorney Shea. Id. at 28-40. Judge Sullivan first stated that the motion to dismiss appeared pretextual given the surrounding circumstances, including Plaintiff’s prior position as an advisor to President Trump and President Trump’s continued interest in the criminal case. Id. at 28-29. Judge Sullivan then commented that the motion to dismiss relied upon a new, “more circumscribed” definition of “materiality,” without offering any comprehensible reasoning for shifting to the “highly-constrained interpretation of materiality.” Id. at 30, 32. Judge Sullivan then reviewed the record evidence and found the motion to dismiss did not undertake “a considered judgment” when determining that “falsity” could not be proven beyond a reasonable doubt. Id. at 38. Judge Sullivan thus suggested that the motion to dismiss “present[ed] a close question,” but refrained from ruling on the merits and denied the motion as moot “in view of the President’s decision to pardon” Plaintiff and Plaintiff’s acceptance of the pardon. Id. at 38

7 See Statement from the Press Secretary Regarding Executive Grant of Clemency for General Michael T. Flynn (Nov. 25, 2020), available at https://trumpwhitehouse.archives.gov/briefings-statements/statement-press-secretaryregarding-executive-grant-clemency-general-michael-t-flynn/.

8 Because Judge Sullivan’s opinion is referenced in—and central to—Plaintiff’s Amended Complaint, ECF No. 34 ¶¶ 165-67, it may be considered by the Court in resolving this motion to dismiss. See Hodge v. Orlando Utilities Comm’n, No. 609-CV-1059- ORL-19DAB, 2009 WL 5067758, at *3 (M.D. Fla. Dec. 15, 2009); infra Argument, § I.

Much later, the motion to dismiss gets into a legalistic argument about whether accepting a pardon is recognition of guilt. Ultimately, though, DOJ notes that those legalistic arguments aren’t at issue here, because Sullivan so clearly laid out that he was dismissing the case only because the pardon — a pardon that Trump did not claim arose from innocence — mooted his authority to decide on Flynn’s innocence or guilt.

22 Although Plaintiff alleges that several independent prosecutors recommended dismissal of the Criminal Case and that, in response, U.S. Attorney Shea, on behalf of the government, moved to dismiss the criminal information, ECF No. 34 ¶ 148, Plaintiff acknowledges that Judge Sullivan “refused to approve the DOJ’s dismissal of its prosecution” and ultimately dismissed the case only “after [Plaintiff] received a full presidential pardon,” id. at ¶¶ 162, 167. In his Opinion addressing dismissal, Judge Sullivan expressed concerns about the merits of U.S. Attorney Shea’s motion and noted that the facts presented “a close question” regarding whether the court should defer to the prosecutor’s discretion to dismiss the charges but refrained from resolving that question in light of Plaintiff’s acceptance of the pardon. Criminal Case, ECF No. 311 at 38.

23 Although “[s]ome courts . . . have considered whether a plaintiff has identified facts surrounding the dismissal . . . that, if proven, would demonstrate that the termination of the criminal case tended to show the plaintiff’s innocence,” Clark v. D.C., 241 F. Supp. 3d 24, 34 (D.D.C. 2017), those cases are inapposite. Here, there is no ambiguity with regard to whether the court’s dismissal order tended to show Plaintiff’s innocence, because the order explained that the termination of the case was not based upon Plaintiff’s potential innocence but instead the case was dismissed as moot in light of Plaintiff’s acceptance of a pardon. Criminal Case, ECF No. 311; Cf. Clark, 241 F. Supp. 3d at 34 (finding allegations of favorable termination sufficient where court granted government’s motion to dismiss without prejudice where neither the motion nor the order offered any information on the basis for dismissal).

In 2020, Judge Sullivan went to a great deal of effort to thread a very fine needle, using Trump’s corrupt pardon as a way to avoid any reversible error even while stopping well short of declaring Flynn innocent. I wrote then that,

it is not relevant to Trump’s pardon of Mike Flynn. But one thing Sullivan did in his opinion was to reject Billy Barr’s new reality in a way that may be invoked for any related matters before DC District courts.

That’s what I find so interesting about this motion to dismiss: DOJ has (quietly) used the reality of Sullivan’s carefully crafted opinion to dismiss Barr’s corrupt attempt to reverse the prosecution and Flynn’s fantasies of innocence.

It’s a rare DOJ rebuke of DOJ. And it’s one entirely enabled by that Sullivan opinion.

Trump’s People: The Prettyman Pardons

As we wait for Trump to be arraigned in Prettyman Courthouse, I thought it worthwhile to list the 16 men who were prosecuted in Prettyman Courthouse that Trump pardoned, and their crimes:

  1. Scooter Libby: Obstruction of justice and perjury
  2. David Safavian: Obstruction of justice and false statements
  3. Mike Flynn: False statements
  4. Alex Van Der Zwaan: False statements
  5. George Papadopoulos: False statements
  6. Paul Slough, Manslaughter (Blackwater Nisour Square)
  7. Nicholas Slatten: Murder (Blackwater Nisour Square)
  8. Evan Liberty: Manslaughter (Blackwater Nisour Square)
  9. Dustin Laurent Heard: Manslaughter (Blackwater Nisour Square)
  10. Roger Stone: Obstruction of a proceeding, false statements, witness tampering
  11. Paul Manafort: Conspiracy to defraud the US (money laundering and FARA), conspiracy to obstruct (witness tampering)
  12. Robert Coughlin: Conflict of interest
  13. Todd Boulanger: Wire fraud
  14. Elliot Broidy: Conspiracy to violate FARA
  15. Douglas Jemal, Wire fraud
  16. Aviem Sella, Espionage

Four of these men lied to cover up Trump’s own Russian ties; a fifth, the son-in-law of Alfa Bank oligarch German Khan, Alex Van Der Zwaan, lied to cover up Manafort’s past Ukraine graft. A sixth, Elliot Broidy, did fundraising for Trump.

These are Trump’s people.

A lot of Republicans are wailing that Trump shouldn’t be prosecuted in DC. Marsha Blackburn is arguing that Trump should be treated differently than her constituents Lisa Eisenhart and Eric Munchel, who were prosecuted for conspiracy to obstruct the vote count, just like Trump is facing. Tim Scott is arguing that Trump should be treated differently than his constituent George Tenney, who was prosecuted for obstructing the vote count, just like Trump is facing.

But if anything, it is more appropriate to prosecute Trump in DC than Munchel (Zip Tie Guy) and Tenney (who opened the East Door of the Capitol). After all, he was a resident of DC when his alleged crimes were committed.

More importantly, even just the list of those he pardoned make it clear that Prettyman felons are his kind of people. Donald Trump is precisely where he belongs today.

The “Crazy” Kraken Conspirator

Sidney Powell is undoubtedly co-conspirator 3 in Trump’s January 6 indictment.

Co-Conspirator 3, an attorney whose unfounded claims of election fraud the Defendant privately acknowledged to others sounded “crazy.” Nonetheless, the Defendant embraced and publicly amplified Co-Conspirator 3’s disinformation.

But her role — as described — is actually very limited. Just one paragraph describes her actions:

20. On November 16, 2020, on the Defendant’s behalf, his executive assistant sent Co-Conspirator 3 and others a document containing bullet points critical of a certain voting machine company, writing, “See attached – Please include as is, or almost as is, in lawsuit.” Co-Conspirator 3 responded nine minutes later, writing, “IT MUST GO IN ALL SUITS IN GA AND PA IMMEDIATELY WITH A FRAUD CLAIM THAT REQUIRES THE ENTIRE ELECTION TO BE SET ASIDE in those states and machines impounded for non-partisan professional inspection.” On November 25, Co-Conspirator 3 filed a lawsuit against the Governor of Georgia falsely alleging “massive election fraud” accomplished through the voting machine company’s election software and hardware. Before the lawsuit was even filed, the Defendant retweeted a post promoting it. The Defendant did this despite the fact that when he had discussed Co-Conspirator 3’s far-fetched public claims regarding the voting machine company in private with advisors, the Defendant had conceded that they were unsupported and that Co-Conspirator 3 sounded “crazy.” Co-Conspirator 3’s Georgia lawsuit was dismissed on December 7.

Go back and look! Her most famous role — when she got cleared into the White House and told Trump he should make her Special Counsel and seize the voting machines — doesn’t appear at all. Indeed, my greatest disappointment with the indictment is that it doesn’t explain one of the enduring mysteries of January 6: what led Trump to adopt January 6 as his plan shortly after that meeting.

It describes Trump’s December 19 tweet — the tweet that triggered thousands of MAGAts to start planning a trip to DC — but not what led up to it.

Curse you, Jack Smith!!!

What a remarkable structure, then, for including Sidney Powell in this indictment.

From the description of Powell at the beginning, it makes it sound like she is in there as proof that Trump knew his claims were false: In November, he declared her crazy. But he nevertheless kept magnifying her craziness.

That would almost help prove that Trump knew she was a liar when he used her propaganda.

But paragraph 20 says something different: It says that on November 16, on a date she was still ostensibly on Rudy’s team, Trump fed her the Dominion voting machine false claims and told her — Trump told Powell, not vice versa — to include the Dominion claims.

The false claims about Dominion, according to this, came from Trump.

And then, after Rudy and Jenna Ellis publicly separated themselves from her, Powell submitted the first of a number of lawsuits that would rely on the Dominion claim.

And when called on her crazy, Sidney Powell claimed that, “no reasonable person would conclude that [her] statements were truly statements of fact.”

It’s not just Trump who thinks she’s crazy, she thinks she’s crazy.

But once she filed that lawsuit, on November 25, Trump boosted it.

That’s all pretty interesting timing given something else that was occurring at the very same time. At a time when they were both together in South Carolina plotting how to steal the election for Trump, Trump pardoned Mike Flynn.

The same crazy that went into Sidney Powell’s election disinformation went into her claims about Flynn. If Trump thought she was crazy, he should never have pardoned Flynn.

It gets still more interesting from there — including to where Powell funded at least some of the Oath Keepers’ defense — including, possibly, Kelly Meggs’ attorney, Stan Woodward.

You get the idea.

Even without her plan to seize the voting machines on December 18, even without Flynn’s call for martial law in the days leading up to it, the timeline laid out in the indictment — where Trump gave Powell the Dominion claims, then decided she was crazy, then pardoned her client based off her crazy claims — sure piles up some interesting implications in what are just two paragraphs of a 130-paragraph indictment.

KT McFarland Likened Trump’s Transition Interventions to the Iran October Surprise

In an FBI interview on September 14, 2017, KT McFarland likened Mike Flynn’s transition period interference with Obama policy to Richard Nixon’s Chennault Affair and what she called Reagan’s “purported dealings with Iran to free American hostages.”

Based on her study of prior presidential transitions, McFarland believed the sorts of things Flynn did were not unusual. She cited Richard Nixon’s involvement in Vietnam War peace talks and Ronald Reagan’s purported dealings with Iran to free American hostages during their transitions as precedent for proactive foreign policy engagements by an incoming administration. Most incoming administrations did similar things. No “red light” or “alarm bells” went off in her head when she head what Flynn was doing. The President-elect made his support for Israel very clear during the campaign and contrasted his position with President Obama, who he believed had not treated Israel fairly.

To be clear: She was only talking about Flynn’s request of Russia, on December 22, to help stave off a UN vote condemning Israeli illegal settlements. At that point in September 2017, she was still claiming not to remember the calls Flynn made on December 29 to undermine Obama’s sanctions on Russia itself. She wouldn’t unforget those calls until after Flynn pled guilty a month and a half later.

But to the extent that she was happy to acknowledge that Trump’s National Security Advisor — her boss — was undermining US policy, she rationalized it by comparing it to Nixon and Reagan’s efforts to undermine US policy for political gain.

Only, it wasn’t just Flynn involved in undermining Obama’s foreign policy. Records from Mueller’s investigation show the following sequence on December 22:

  • 6:02AM: A “senior advisor to a Republican Senator” writes McFarland, cc’ing Flynn and others, warning that the UNSC was “voting to condemn Israeli settlements at 10a.m.” yet Obama was silent
  • 8:46AM: Flynn and Kushner speak for four minutes
  • 8:53AM: Flynn calls Sergei Kislyak, then calls a representative of the Egyptian government and speaks to him for four minutes
  • 8:59AM Flynn speaks to Kislyak for three minutes
  • Flynn had “several additional” calls with the representative of the Egyptian government
  • Egypt delayed the vote

When the President’s son-in-law read a draft statement from Egypt noting that Abdel Fattah El-Sisi had spoken with Trump that day and had “agreed to lay the groundwork … to drive the establishment of a true peace between the Arabs and the Israelis,” Kushner asked whether they could alter the statement. “Can we make it clear that Al Sisi reached out to DJT so it doesn’t look like we reached out to intercede?” He then falsely claimed, on an email with others like Reince Priebus that, “This happens to be the true fact pattern and better for this to be out there.”

Only it wasn’t the true fact pattern. Flynn had reached out. Not Sisi.

Indeed, this incident was probably the start of Kushner’s Abraham Accords, which in turn probably relates to why the Saudis paid Kushner $2 billion after he left the White House.

And it wasn’t just Flynn involved. Flynn made all these calls from Mar-a-Lago. After Egypt delayed the vote, McFarland bragged that Flynn, “had worked it all day with trump from Mara lago.” [my emphasis]

Trump was involved too.

That December 22 transcript was withheld from those released in 2020. But on a later call with Kislyak — the one where he asked Kislyak to hold off on sanctions — analysts suggested “he may be using a speaker phone.” Had Flynn used a speaker phone on December 22, when he was in Mar-a-Lago with Trump, Trump would have been on that call as well.

The next day, McFarland bragged still some more. She suggested Flynn should leak to the press about,

the crucial role [he] played in working your contacts built up over the decades to get administration ambush Israel headed off. You worked the phones with Japanese Russians Egyptians Spanish etc and reversed a sure defeat for Israel by kerry/Obama/susan rice/samantha power cabal.

In 2016, McFarland wanted Flynn to get credit in the press that he had undermined US policy to help Israel. In 2017, she rationalized doing so because Nixon and Reagan had done similar things in their day.

I raise all this not just because I wonder whether Bill Barr killed the investigation into whether Egypt kept Trump’s campaign alive in September 2016 with a $10 million donation.

I raise all this because NYT, on the verge of Jimmy Carter’s death, has finally revealed who reached out to Iran to get them to hold Americans hostage longer to help Reagan win the White House.

It was former Texas Governor John Connolly.

It was 1980 and Jimmy Carter was in the White House, bedeviled by a hostage crisis in Iran that had paralyzed his presidency and hampered his effort to win a second term. Mr. Carter’s best chance for victory was to free the 52 Americans held captive before Election Day. That was something that Mr. Barnes said his mentor was determined to prevent.

His mentor was John B. Connally Jr., a titan of American politics and former Texas governor who had served three presidents and just lost his own bid for the White House. A former Democrat, Mr. Connally had sought the Republican nomination in 1980 only to be swamped by former Gov. Ronald Reagan of California. Now Mr. Connally resolved to help Mr. Reagan beat Mr. Carter and in the process, Mr. Barnes said, make his own case for becoming secretary of state or defense in a new administration.

What happened next Mr. Barnes has largely kept secret for nearly 43 years. Mr. Connally, he said, took him to one Middle Eastern capital after another that summer, meeting with a host of regional leaders to deliver a blunt message to be passed to Iran: Don’t release the hostages before the election. Mr. Reagan will win and give you a better deal.

Then shortly after returning home, Mr. Barnes said, Mr. Connally reported to William J. Casey, the chairman of Mr. Reagan’s campaign and later director of the Central Intelligence Agency, briefing him about the trip in an airport lounge.

At that moment of history, when Reagan won a victory in part thanks to Connally’s sacrifice of Americans’ freedom, KT McFarland was at the height of her credibility on foreign policy, fresh off going ABD in a PhD program. With the new Republican regime, she worked first for Texas Senator John Tower on the Senate Armed Services Committee, then for Cap Weinberger at DOD.

KT McFarland, who derives any foreign policy credibility to that moment created by an effort to harm US policy for political gain, likened what Trump did to what Reagan had done before.

“Wink:” Where Jeff Gerth’s “No There, There” in the Russian Investigation Went

On July 28, 2017, Robert Mueller’s investigators served two warrants on the company (probably Rackspace) that hosted Paul Manafort’s DMP emails to obtain Manafort, Rick Gates, and Konstantin Kilimnik’s company emails.

Mueller obtained several things with that warrant that remain unresolved. Those are just some of the many things about the Russian investigation — the one Jeff Gerth claims had no there, there — that remain unanswered, four years after Mueller closed up shop.

Manafort’s lies about the plan to carve up Ukraine

One thing Mueller obtained with that warrant would have been an email Manafort sent Konstantin Kilimnik on April 11, 2016, “How do we get whole” with Oleg Deripaska, Manafort asked. The email showed that Manafort was using his position as the “free” campaign manager for Donald Trump to fix his legal and financial woes.

Another was an email Kilimnik wrote, but did not send, on December 8, 2016, but which Manafort knew to and did read, a “foldering” technique to prevent interception also used by terrorists. The email referenced a plan to carve up Ukraine that Kilimnik had first pitched to Manafort on August 2, 2016.

Russians at the very top level are in principle not against this plan and will work with the BG to start the process of uniting DNR and LNR into one entity, with security issues resolved (i.e. Russian troops withdrawn, radical criminal elements eliminated). The rest will be done by the BG and his people.

[snip]

All that is required to start the process is a very minor ‘wink’ (or slight push) from DT saying ‘he wants peace in Ukraine and Donbass [sic] back in Ukraine’ and a decision to be a ‘special representative’ and manage this process.

The email — and a text Kilimnik sent around the same time — talked about “recreating old friendship” with Deripaska at an in-person meeting. Less than a month later, Manafort flew to Madrid and met with a different Deripaska associate.

Six years later, we don’t know the fate of Manafort’s efforts to “get whole” with Deripaska, to recreate that old friendship.

It’s something that Manafort promised to tell Mueller’s prosecutors on September 13, 2018, when he entered into a plea agreement that averted a damaging trial during the election season. But it’s something that, Judge Amy Berman Jackson found, Manafort lied to hide from prosecutors in the ensuing weeks. We know that the last thing on Manafort’s schedule before he met with Kilimnik on August 2, 2016 was a meeting with Trump and Rudy Giuliani. We know that during the period when Manafort was lying to hide what happened with this plan to carve up Ukraine, his lawyer was speaking regularly with Trump’s lawyer, Rudy Giuliani. We know that during the period when Rudy Giuliani was seeking campaign assistance from Ukraine, he was consulting with Manafort. We know that Trump tried to coerce Volodymyr Zelenskyy to enter into a quid pro quo on July 25, 2019, but was caught by a whistleblower. We know that Bill Barr went to extraordinary lengths to protect Rudy Giuliani from any consequences for his dalliance with Russian agents in Ukraine.

We know that on December 24, 2020, Donald Trump pardoned Manafort, rewarding him for his lies. Yesterday, a judge in Florida approved a $3 million fine to settle Manafort’s failure to reveal the money he earned from working in Ukraine, money Manafort got to keep as a result of Trump’s pardon.

SDNY alleges that even as Manafort was lying about his plans with Kilimnik in September 2018, a different Deripaska associate was cultivating recently retired FBI Special Agent in Charge Charles McGonigal, someone who could tell him about what DOJ was learning (or not learning) from Manafort. We know that Seth DuCharme, who played a key role in Barr’s efforts to protect Rudy, now represents McGonigal.

We know that after Trump’s efforts to exploit dirt from Ukraine failed and Joe Biden became President, Russia expanded its invasion of Ukraine, trying to achieve by force what it attempted to achieve by coercing Trump’s “free” campaign manager and his personal attorney.

When I wrote the last installment of my series demonstrating the false claims about “Russiagate” made by Jeff Gerth, I wrote a long passage (included below) that showed what Mueller was discovering in August 2017, a period when Gerth falsely claimed prosecutors had determined there was “no there, there” to Trump’s ties to Russia.

There was not only a lot there, where Gerth never bothered to look. In fact, the “there, there” remains unresolved and raw, six years later.

The investment in Michael Cohen

Take the investigation into Michael Cohen. One thing Mueller would discover in August 2017 is that Trump Organization was not fully complying with subpoenas, at least not subpoenas from Congress. As I noted in my piece, Mueller almost certainly obtained an email with an August 1, 2017 warrant that showed Michael Cohen had direct contact with the Kremlin during the campaign. The email also showed, Mueller would learn once Felix Sater and Cohen began to explain this to investigators, that Cohen and Trump were willing to do business with a former GRU officer and sanctioned banks in pursuit of an impossibly lucrative real estate deal in Moscow. The email obtained in August 2017 was proof that Trump was publicly lying about his ongoing pursuit of business in Russia. And for two more years, Trump kept that secret from the American public. That entire time, Russia knew he was lying to the American people. Russia knew, the American public did not.

Mueller got that email by asking Microsoft, not Trump Organization, for the email. But shortly after Mueller did so, Microsoft made it far harder to obtained enterprise emails without notifying Microsoft’s client. There are other questions about missing records — such as a letter Trump sent to then Deputy Prime Minister Sergei Prikhodko — that might have been answered with more records from Trump Organization.

There’s also the matter of the big infusion of money — more than $400,000 over the course of a few months — that Cohen got from a Columbus Nova, in investment fund controlled by Russian oligarch Viktor Vekselberg. Mueller investigated whether the money had some tie to the different Ukrainian peace deal that Felix Sater got Cohen to bring to the White House.

It didn’t. As Cohen explained to Mueller in 2018, he got the money to explain how Trump worked to Andrew Intrater, who claimed to be looking to spend money on an infrastructure project in the US.

The pitch was to assist in Columbus Nova’s infrastructure fund. [redacted] invests in several different areas. At the time, there were discussions of significant foreign investment interest dedicated to U.S. infrastructure.

[snip]

In Cohen’s discussions with [Intrater] Cohen did not provide any non-public information. Cohen was not selling non-public information. Cohen could assist [Intrater] because Cohen understood Trump and what Trump was looking for.

But the payment, while legal, remains dodgy as hell.

Republicans, certainly, don’t want to talk about it. When Mark Meadows accused Cohen of omitting his contracts with foreign companies at his 2019 testimony before the Oversight Committee, Trump’s future Chief of Staff made no mention of Columbus Nova.

Mr. MEADOWS. Mr. Cohen, I’m going to come back to the question I asked before, with regards to your false statement that you submitted to Congress. On here, it was very clear, that it asked for contracts with foreign entities over the last two years. Have you had any foreign contract with foreign entities, whether it’s Novartis or the Korean airline or Kazakhstan BTA Bank? Your testimony earlier said that you had contracts with them. In fact, you went into detail——

Mr. COHEN. I believe it talks about lobbying. I did no lobbying. On top of that they are not government——

Mr. MEADOWS. In your testimony — I’m not asking about lobbying, Mr. Cohen.

Mr. COHEN. They are not government agencies. They are privately and——

Mr. MEADOWS. Do you have—do you have foreign contracts——

Mr. COHEN [continuing]. publicly traded companies.

Nor did Republicans include Nova in the FARA referral they sent to DOJ.

But Viktor Vekselberg was among the oligarchs Treasury would sanction in in 2018, along with Deripaska and Alexandr Torshin, and he was among the first people hit with expanded sanctions last year, after the invasion.

A December 2018 article about those payments to Cohen and the sanctions against Vekselberg was likely the article that Vekselberg associate Vladimir Voronchenko was sharing in 2018, which was cited as proof he knew of the sanctions, in his indictment for maintaining Vekselberg’s US properties in his own name after Vekselberg was sanctioned. Today, the government started the process of seizing Vekselberg’s US properties.

And questions about whether Vekselberg is influencing politics through his cousin, Intrater, have been renewed amid disclosures about Intrater’s big funding for the imposter Congressman George Santos.

“Sort of a spy deal going on”

Then there’s the matter of Julian Assange, whose extradition remains hung up at the final approval stage.

When Candace Owens confronted Trump about why he didn’t pardon Assange last year, he got really defensive, folding his arms. He explained, seemingly referring to Assange and probably referencing the Vault 7 and Vault 8 releases of stolen CIA hacking tools, “in one case, you have sort of a spy deal going on … there were some spying things, and there were some bad things released that really set us back and really hurt us with what they did.”

But Twitter DMs Mueller obtained with the first August 2017 warrant targeting Roger Stone showed that, in the wake of Mike Pompeo’s designation of WikiLeaks as a non-state intelligence service in the wake of that release, Stone and Assange discussed a pardon. On June 4, 2017, Stone said, “I don’t know of any crime you need to be pardoned for.” On June 10, Stone told Assange, “I am doing everything possible to address the issues at the highest level of government.”

Nine days later, on June 19, 2017, Trump ordered Corey Lewandowski to order Jeff Sessions to limit the investigation to prospective meddling from Russian, an order that — had Lewandowski obeyed — would have had the effect of shutting down the entire investigation, including that into Assange’s role in the hack-and-leak.

Texts obtained from Stone much later would show that he and Randy Credico discussed asylum for Assange on October 3, 2016 — before WikiLeaks started releasing the John Podesta emails.

And Credico had set Stone up to discuss the pardon with Margaret Kunstler by November 15, 2016.

Stone claimed to be pursuing a pardon for Assange at least through early 2018. It was only after Mueller asked Trump about such pardon discussions in September 2018 that Don Jr’s close friend Arthur Schwartz told Cassandra Fairbanks the pardon wouldn’t happen.

Those pardon discussions are just one of the things that Stone held over Trump’s head to ensure he’d never do prison time.

Stone kept a notebook of all the conversations he had with Trump during the 2016 election. He may have brought it with him to a meeting he had with Trump in December 2016.

After the win, STONE tried a full court press in order to get a meeting with TRUMP. [redacted] eventually set up a meeting with TRUMP and STONE in early December 2016 on the 26th floor of Trump Tower. TRUMP didn’t want to take the meeting with STONE. TRUMP told BANNON to be in the meeting and that after 5 minutes, if the meeting hadn’t concluded, to throw STONE out. STONE came in with a book he wrote and possibly had a folder and notes. [full sentence redacted] TRUMP didn’t say much to STONE beyond “Thanks, thanks a lot.”. To BANNON, this reinforced STONE [redacted] After five to six minutes, the meeting was over and STONE was out. STONE was [redacted] due to the fact that during the meeting TRUMP just stared.

After Stone was convicted of lying to cover up the real nature of his contacts with Russia during the election, he lobbied for a pardon by claiming, repeatedly and publicly, that prosecutors offered him a deal if he would reveal the content of the phone conversations he had with Trump during the election.

On December 23, 2020, Stone got that pardon. Four days later, Stone and Trump spoke about January 6 at Mar-a-Lago. That same day, also at Mar-a-Lago, Kimberly Guilfoyle, started the planning for Trump to speak (at that point, the plan included a march to the Capitol).

Earlier this month, DOJ included Stone’s contacts with Proud Boy Dan Scott at a January 3 Florida rally in Scott’s statement of offense for attempting to obstruct the January 6 vote certification. It included Stone’s ties to various Oath Keepers as part of the proof DOJ used to prosecute Stewart Rhodes of sedition.

“The boss is aware”

It took an extra week for prosecutors in the Mike Flynn case to get approval for his sentencing memo in early 2020. So senior officials at DOJ had to have approved of the explanation of why Flynn’s lies about calling the Russian Ambassador to undermine Obama’s sanctions on Russia were serious. “Any effort to undermine the recently imposed sanctions, which were enacted to punish the Russian government for interfering in the 2016 election,” the memo explained, “could have been evidence of links or coordination between the Trump Campaign and Russia.”

From the time that Mueller’s team obtained KT McFarland’s transition device and email on August 25, 2017, they had reason to believe Flynn’s calls with the Russian Ambassador were a group affair, not (as Trump had claimed) simply Flynn’s doing. McFarland’s emails showed that before Flynn called Kislyak, he had received an email from Tom Bossert reporting on what Lisa Monaco told him about Russia’s response to the sanctions, immediately after which he spoke to McFarland from his hotel phone for 11 minutes.

Mueller came pretty close to concluding that was why Flynn intervened with the Russian Ambassador, too. “Some evidence suggests that the President knew about the existence and content of Flynn’s calls when they occurred,” the Mueller Report explained in laying out reasons why Trump might have wanted to fire Jim Comey. “[B]ut the evidence is inconclusive and could not be relied upon to establish the President’s knowledge.” That’s because, after first denying that such calls happened at all, KT McFarland ultimately claimed not to remember telling Trump about the calls and Steve Bannon claimed not to remember discussing it with Flynn.

That was the conclusion Mueller reached in early 2019, a conclusion that already didn’t account for the fact that Flynn called the Russian Ambassador from a hotel phone, not his cell, or that he admitted that he and McFarland had deliberately written a text to cover up the contact. But the following year, in his effort to protect Trump, Bill Barr and other Republicans made available multiple pieces of evidence that make Trump’s knowledge of Flynn’s contacts more clear.

For example, after the House Intelligence Committee transcripts came out in 2020, it became clear that the White House had used Steve Bannon’s two appearances, with the assistance of Devin Nunes, to script certain answers. One of those answers denied continuing to discuss how to end sanctions against Russia after the inauguration. That scripting process happened between the time Flynn pled guilty and the time Bannon first denied remembering knowing of the sanctions discussion. Effectively, the White House scripted Bannon to deny knowledge of those sanction discussions in December 2016.

Then, in September 2020, as part of his efforts to justify overturning the prosecution of Flynn, Barr released the interview report from FBI agent Bill Barnett, who reportedly sent pro Trump texts on his FBI issued phone. It described how, after refusing to take part in that part of the Flynn investigation four different times, he nevertheless, “decided to work at the SCO hoping his perspective would keep them from ‘group think.'” He described being told that “was the only person who believed MCFARLAND was not holding back the information about TRUMP’s knowledge of [the sanction discussions].” He then asked a series of questions that would provide space for a denial: “BARNETT asked questions such as ‘Do you know that as a fact or are you speculating?’ and ‘Did you pass information from TRUMP to FLYNN?'”

Importantly, Barnett claimed it was “astro projection” that Trump directed Flynn’s contacts with the Ambassador.

He said that even after John Ratcliffe declassified the evidence that Mueller could never have used in the investigation, but which proved it wasn’t projection at all: the transcripts of Flynn’s calls with then-Ambassador Kislyak. They reveal that in the call on December 31, 2016, which Kislyak made to tell Flynn that “our conversation was also taken into account in Moscow” when Putin decided not to retaliate against the US for its sanctions, Flynn told Kislyak that “the boss is aware” of a plan to speak the day after Trump would be inaugurated. That would only be possible had Flynn either told Trump directly or had McFarland passed it along.

Once Barr came in, Flynn attempted to unwind all the things he had said to Mueller, directly contradicting multiple sworn statements. Just weeks after DOJ noted the centrality of Flynn’s lies to the question of whether Trump attempted to reverse sanctions just after Russia helped get him elected, Barr, too, joined the process of attempting to reverse the impact of the things Flynn had admitted to under oath. That effort extended to introducing notes with added, incorrect dates that Trump used in an effort to blame Biden for the investigation into Flynn. “We caught you,” Trump claimed to Biden in a prepared debate attack about the investigation that showed how his team first contacted Obama’s team to learn what they knew of the Russian response to sanctions, minutes before they called Russia to undermine those sanctions.

On November 25, Trump pardoned Flynn not just for his lies about the calls to the Russian Ambassador and working for Türkiye, but for any lies he told during the period he was reneging on his plea agreement. That same week, Flynn and Sidney Powell were in South Carolina together plotting ways to undermine Joe Biden’s election. Three weeks later, they would pitch Trump on a plan to seize the voting machines so he could stay in office.

When Bill Barr wrote his corrupt memo claiming there was no evidence that Trump obstructed the Mueller investigation, he was silent about the topic he had admitted, three times, would amount to obstruction: those pardon dangles. Those pardons aren’t just proof that Trump obstructed the investigation, stripping prosecutors of the leverage they might use to get Paul Manafort, Roger Stone, and Mike Flynn to tell the truth. But they’re also some of the most compelling proof that the secrets Stone and Manafort kept would have confirmed the suspicions that Trump coordinated with Russia in an attack on US democracy.

Update, 3/14: Corrected that Mueller closed up shop four years ago, not three. Time flies!

Links

CJR’s Error at Word 18

The Blind Spots of CJR’s “Russiagate” [sic] Narrative

Jeff Gerth’s Undisclosed Dissemination of Russian Intelligence Product

Jeff Gerth Declares No There, Where He Never Checked

“Wink:” Where Jeff Gerth’s “No There, There” in the Russian Investigation Went

My own disclosure statement

An attempted reconstruction of the articles Gerth includes in his inquiry

A list of the questions I sent to CJR


Just days earlier, on July 28, 2017, DOJ had already established probable cause to arrest George Papadopoulos for false statements and obstructing the investigation. His FBI interviews in the days after August 2 would go to the core questions of the campaign’s knowledge and encouragement of Russia’s interference. On August 11, Papadopoulos described, but then backed off certainty about, a memory of Sam Clovis getting upset when Papadopoulos told Clovis “they,” the Russians, have Hillary’s emails. On August 19, Papadopoulos professed to be unable to explain what his own notes planning a September 2016 meeting in London with the “Office of Putin” meant.

The investigation into Paul Manafort, too, was only beginning to take steps that would reveal suspect ties to Russia. Also on July 28, for example, DOJ obtained the first known warrant including conspiracy among the charges under investigation, and the first known warrant listing the June 9 meeting within the scope of the investigation. On August 17, DOJ would show probable cause to obtain emails from Manafort’s business involving ManafortGates, and Konstantin Kilimnik that would (among other things) show damning messages sent between Manafort and Kilimnik using the foldering technique, likely including Manafort’s sustained involvement in a plan to carve up Ukraine that started on August 2, 2016 (which Gerth omits from his description of that meeting).

Similarly, Mueller was still collecting evidence explaining why Flynn might have lied about his calls with Sergey Kislyak. On August 25, Mueller obtained a probable cause warrant to access devices owned by the GSA showing that Flynn had coordinated his calls with other transition officials, including those with Trump at Mar-a-Lago, when he called Kislyak to undermine Obama’s sanctions against Russia.

Plus, Mueller was just beginning to investigate at least two Trump associates that Rosenstein would include in an expanded scope in October 2017. On July 18, Mueller would obtain a probable cause warrant that built off Suspicious Activity Reports submitted to Treasury. That first known warrant targeting Michael Cohen never mentioned the long-debunked allegations about Cohen in the Steele dossier. Instead, the warrant affidavit would cite five deposits in the first five months of 2017 from Viktor Vekselberg’s Renova Group, totaling over $400K, $300K in payments from Korean Aerospace Industries, and almost $200K from Novartis, all of which conflicted with Cohen’s claim that the bank account in question would focus on domestic clients. On August 1, Mueller would obtain a probable cause warrant for Cohen’s Trump Organization emails from Microsoft. Mueller did so using a loophole that Microsoft would sue to close shortly afterwards, a move which likely stymied the investigation into a suspected $10 million donation to Trump, via an Egyptian bank, that kept him in the race in September 2016. That warrant for Trump Organization emails likely obtained Cohen’s January 2016 contact with the Kremlin – the one not turned over, to Congress at least, in response to a subpoena – a contact that Cohen would lie to Congress about four week later.

On August 7, Mueller used a probable cause warrant to obtain Roger Stone’s Twitter content, which revealed a mid-October 2016 exchange with WikiLeaks that disproved the rat-fucker’s public claims that he had never communicated with WikiLeaks during the campaign (a fact that Gerth gets wrong in the less than 1% of his series he dedicates to Stone). It also revealed that the day after the election, WikiLeaks assured Stone via DM that “we are now more free to communicate.” Those communications would, in one week (the subsequent investigation showed), turn into pardon discussions, which provides important background to the June 2017 Twitter DMs Stone had with Julian Assange, obtained with that August warrant, about “doing everything possible to address [Assange’s] issues at the highest level of Government.”

Jeff Gerth Declares No There, Where He Never Checked

In Part One of this series, I noted that Jeff Gerth couldn’t make it through his first sentence without making an error (two errors, if you’re a hard grader). In Part Three, I noted that the fact set Gerth draws on is not the Mueller investigation itself or even the underlying Russian hack-and-leak campaign, but the investigations into that investigation.

That’s how Gerth came to rely on a Russian intelligence report of uncertain reliability to make claims about Hillary Clinton’s motives without actually disclosing he was doing it.

Gerth’s reliance on people like Lindsey Graham and Sidney Powell and John Durham and a host of angry men who post highlighted screen caps on Twitter is a problem, because they’re not reliable. They’re the obvious source of many of his outright errors.

Gerth falsely claimed the DOJ IG Report vindicated Devin Nunes’ memo – but he didn’t check that (I did). He applauded retractions based off John Durham claims that couldn’t withstand the scrutiny of a jury. At least twice, he falsely claimed that investigations – the SSCI investigation’s findings about Konstantin Kilimnik, Mueller’s investigations about Prigozhin’s ties to the Russian government – showed no evidence rather than that much of it remains classified.

These are just a few of a host of smaller errors that would have been caught in any robust fact check.

Gerth invents exculpatory evidence Bill Barr says doesn’t exist

Some of his bigger errors, though, are especially revealing.

Of particular interest, given how Gerth ignores much of NYT and (especially) WaPo reporting about Mike Flynn, he misrepresents what happened with Trump’s former National Security Adviser. In Part Four of his piece, Gerth accurately describes DOJ’s claimed reason for reversing the prosecution of Flynn.

In May 2020, the Justice Department dropped the case against Flynn for lying to the FBI after a review by Jensen, the US Attorney in St. Louis. The department cited the FBI’s “frail and shifting justifications for its ongoing probe of Mr. Flynn” and said that the FBI interview of Flynn was “conducted without any legitimate investigative basis.”

In making fact claims about the Flynn investigation, Gerth doesn’t describe how obviously false this claim was. He doesn’t meet his own standard of referring to competing sides of an issue – particularly egregious given how radically DOJ’s own position changed between January and May. 

But at least he accurately reported what DOJ claimed.

In Part Three, however, Gerth falsely claims that DOJ found “exculpatory” evidence, which Gerth surely knows has a legal meaning.

Flynn later tried to withdraw his plea after a Justice Department review found exculpatory evidence, including the fact that the lead agent on his case wanted to shut it down in early January but was overruled by higher-ups. The Justice Department then moved to have the charges dismissed, but a federal judge wanted to know more, so Flynn was pardoned by Trump.

[snip]

Other FBI documents, released in 2020, reflect the same assessment: the inquiry into possible ties between the campaign and Russia, according to one of the agents involved in the case, “seemed to be winding down” then. [my emphasis]

DOJ found no exculpatory evidence; if they had, it would have amounted to a Brady violation. Long before DOJ reversed course on the Flynn prosecution, it had argued that Flynn was not entitled to much of the evidence Bill Barr subsequently made available. In any case, Judge Emmet Sullivan, the judge who, since presiding over the Ted Stevens case, has adopted a particularly expansive view of Brady material, wrote a meticulous, 92-page opinion, ruling that none of that was Brady material. Jocelyn Ballantine, the AUSA stuck trying to reverse course on claims she had previously made to the court, described that DOJ’s reversal on Flynn was discretionary.

While those documents, along with other recently available information, see, e.g., Doc. 198-6, are relevant to the government’s discretionary decision to dismiss this case, the government’s motion is not based on defendant Flynn’s broad allegations of prosecutorial misconduct. Flynn’s allegations are unfounded and provide no basis for impugning the prosecutors from the D.C. United States Attorney’s Office. 

Barr repeated that assessment in testimony to the House Judiciary Committee – there was no Brady violation. 

Mr. Collins: (01:17:42)

Well, there’s another part of this as well that concerns what has been given to the courts and in the interviews, and that is that the facts were not disclosed to Flynn prior to the interview. That seems like a Brady violation, to me. Do you believe that there’s a Brady violation there in this case? [crosstalk 01:17:56]

Wiliam Barr: (01:17:56)

No, there wasn’t a Brady violation there, but I think what the council concluded was that the only purpose of the interview, the only purpose was to try to catch him in saying something that they could then say was a lie.

The only one who said there was exculpatory information was Sidney Powell, the same person who would go on to claim that “no reasonable person” would believe her election fraud claims were statements of fact. That’s the standard CJR adopted in this series, the Sidney Powell standard.

And when Sullivan issued a final ruling in the case – stating that Flynn’s pardon did not render him innocent – Sullivan noted that “the government had been aware of much of this evidence since early on in the case,” meaning it would be covered by his earlier Brady opinion (indeed, almost all of the “new” documents were specifically addressed in his earlier Brady opinion).

Along with his false claim about exculpatory information, Gerth’s relies on an unusual interview of case agent Bill Barnett (the bolded language above; Gerth neither names nor links the interview), which is particularly problematic. That’s true, first of all, because in the interview, Barnett suggests (improbably) he did not understand the counterintelligence side of the investigation (a point Jim Comey made in congressional testimony). His claims about the evidence conflict with known details. Even so, his interview shows that he believed that Flynn lied in his interview with the FBI, contradicting a key false claim made by “Russiagate” purveyors talking about Flynn’s case. Worse, from a legal perspective, when DOJ submitted his memo to the docket, they redacted AUSA Brandon Van Grack’s name in the interview report, which had the effect of hiding from Judge Sullivan material information – that Barnett had no complaints with Van Grack’s performance and that Van Grack made sure Barnett’s favorable views about Trump and KT McFarland were aired in prosecutorial decisions. That is, the memo actually proves that DOJ was trying to hide that there was no exculpatory information, not that there was any.

To sustain his false claims about Flynn, then, Gerth does the same thing he did with his purported review of NYT and WaPo reporting: rely on a “Russiagate” narrative, rather than the actual facts.

Gerth plays “gotcha” with thin evidence before the evidence is collected

Gerth’s errors about the investigation get far weirder in a series of instances where Gerth scolds the press for not covering statements – either released after some delay or spoken retrospectively – to claim there was no substance to the investigation.

WaPo only included James Clapper’s statement that, by the end of his tenure, the intelligence community had found no evidence of “collusion” at the end of a story otherwise focused on his denial that Trump himself had been targeted under FISA, Gerth complains, “while the Times ignored it” in their story. But, as Clapper noted himself in the interview in question, that reflected the investigation as it existed on January 20, 2017, over forty days earlier. “This could have unfolded or become available in the time since I left the government.” Clapper was right: In the interim period, Flynn had lied to the FBI about his calls with Sergey Kislyak during the transition (which, again, was covered in stories that Gerth omitted from his review of NYT and WaPo reporting) and Papadopoulos had confirmed he got advance notice of the Russian interference, while lying about the timing of it. This is a favorite “Russiagate” move, but it’s just stupid, demanding anyone measure the facts of an investigation by what it used to look like several months in the past.

Gerth also complains that the NYT “omitted” any mention of a text Pete Strzok sent Lisa Page on May 19, 2017 after it was publicly released on January 23, 2018. In the text, Strzok explains that he might not join the Mueller team because “my gut sense and concern there’s no there there.” Gerth suggests reporting it, eight months after the fact, “might have helped readers better understand why Mueller failed to bring any criminal charges involving collusion [sic] or conspiracy with Russia.”

Yet the disclosure in no way substantiates what Gerth fancies it does – because (as other documents he relies on show, as well as a great deal of public documentation about the investigation he does not mention) – with the very notable exception of the FISA warrants targeting Carter Page, the investigation had barely begun to obtain warrants to collect evidence yet in May 2017. Indeed, Strzok’s is one of several comments that Gerth seizes on that reveal the former FBI agent didn’t have it in for Trump and instead repeatedly took steps to protect Trump and Flynn’s interests. But Gerth never complains that the press didn’t cover that aspect of the leaked texts and declassified investigative records. As noted, Gerth opines that, “One traditional journalistic standard that wasn’t always followed in the Trump-Russia coverage is the need to report facts that run counter to the prevailing narrative.” The implications of the investigative steps Strzok actually took in the Russian investigation are clearly an example, but not one Gerth has any interest in.

A particularly bizarre example of this is when Gerth relies on a comment that Rod Rosenstein made, in 2020, about the state of the investigation when he approved a memo scoping the investigation on August 2, 2017. “By August, the collusion [sic] investigation had not panned out, according to 2020 testimony by Rod Rosenstein, the deputy attorney general who oversaw Mueller,” Gerth claims.

He appears to base that claim on this exchange with Lindsey Graham on June 3, 2020:

Lindsey Graham: (34:20) I’m not arguing with you about assigning it to Mueller. I’m saying, was there a legitimate reason to believe that any of the people named in this letter were actively working with the Russians in August, 2017?

Rod Rosenstein: (34:34) In August, 2017?

Lindsey Graham: (34:36) That’s when you signed the memo.

Rod Rosenstein: (34:38) My understanding, Senator, was that there was reasonable suspicion.

Lindsey Graham: (34:42) What is it? What was it?

Rod Rosenstein: (34:44) Now, again, Senator, the investigation has concluded and these people were not conspiring with the Russians, the information available at the time included-

Lindsey Graham: (34:55) Well, why do we have the Mueller investigation at all, if we had concluded they working with the Russians?

Rod Rosenstein: (35:00) I don’t believe we had concluded it at that time.

Lindsey Graham: (35:02) I am saying in January the 4th, 2017, the FBI had discounted Flynn, there was no evidence that Carter Page worked with the Russians, the dossier was a bunch of garbage and Papadopoulos is all over the place, not knowing he’s being recorded, denying working with the Russians, nobody’s ever been prosecuted for working with the Russians. The point is the whole concept that the campaign was colluding with the Russians, there was no there there in August, 2017. Do you agree with that general statement or not?

Rod Rosenstein: (35:39) I agree with that general statement. [my emphasis]

Gerth’s apparent citation of this exchange is telling. The hearing itself was part of a concerted effort by a Trump ally — relying on people like Bill Barnett — to muddle the actual results of the Mueller investigation. Gerth makes much of Mueller’s “painful” delivery during the Special Counsel’s May 2019 congressional testimony, but in this Senate hearing, Rosenstein – who was struggling to answer why he authorized the most problematic FISA application targeting Carter Page – proved easily bullied. Sure, he did “agree with [Lindsey Graham’s] general statement” that “there was no there there in August, 2017” when Rosenstein had written a new scope statement for the investigation. But Rosenstein said that just 61 seconds after he noted that he understood Mueller to have “reasonable suspicion” that Trump’s associates were working with Russia.

And as Gerth and Graham are both supposed to understand, the [Acting] Attorney General supervising a Special Counsel investigation is not involved in the day-to-day steps of it. Rosenstein’s answers make it clear he either didn’t remember, didn’t know, or didn’t want to talk about those details.

In fact, the public record shows, Mueller had more than reasonable suspicion that Trump’s aides had inappropriate contacts with Russians or others involved in the interference operation. 

Just days earlier, on July 28, 2017, DOJ had already established probable cause to arrest George Papadopoulos for false statements and obstructing the investigation. His FBI interviews in the days after August 2 would go to the core questions of the campaign’s knowledge and encouragement of Russia’s interference. On August 11, Papadopoulos described, but then backed off certainty about, a memory of Sam Clovis getting upset when Papadopoulos told Clovis “they,” the Russians, have Hillary’s emails. On September 19, Papadopoulos professed to be unable to explain what his own notes planning a September 2016 meeting in London with the “Office of Putin” meant.

The investigation into Paul Manafort, too, was only beginning to take steps that would reveal suspect ties to Russia. Also on July 28, for example, DOJ obtained the first known warrant including conspiracy among the charges under investigation, and the first known warrant listing the June 9 meeting within the scope of the investigation. On August 17, DOJ would show probable cause to obtain emails from Manafort’s business involving Manafort, Gates, and Konstantin Kilimnik that would (among other things) show damning messages sent between Manafort and Kilimnik using the foldering technique, likely including Manafort’s sustained involvement in a plan to carve up Ukraine that started on August 2, 2016 (which Gerth omits from his description of that meeting).

Similarly, Mueller was still collecting evidence explaining why Flynn might have lied about his calls with Sergey Kislyak. On August 25, Mueller obtained a probable cause warrant to access devices owned by the GSA showing that Flynn had coordinated his calls with other transition officials, including those with Trump at Mar-a-Lago, when he called Kislyak to undermine Obama’s sanctions against Russia.

Plus, Mueller was just beginning to investigate at least two Trump associates that Rosenstein would include in an expanded scope in October 2017. On July 18, Mueller would obtain a probable cause warrant that built off Suspicious Activity Reports submitted to Treasury. That first known warrant targeting Michael Cohen never mentioned the long-debunked allegations about Cohen in the Steele dossier. Instead, the warrant affidavit would cite five deposits in the first five months of 2017 from Viktor Vekselberg’s Renova Group, totaling over $400K, $300K in payments from Korean Aerospace Industries, and almost $200K from Novartis, all of which conflicted with Cohen’s claim that the bank account in question would focus on domestic clients. On August 1, Mueller would obtain a probable cause warrant for Cohen’s Trump Organization emails from Microsoft. Mueller did so using a loophole that Microsoft would sue to close shortly afterwards, a move which likely stymied the investigation into a suspected $10 million donation to Trump, via an Egyptian bank, that kept him in the race in September 2016. That warrant for Trump Organization emails likely obtained Cohen’s January 2016 contact with the Kremlin – the one not turned over, to Congress at least, in response to a subpoena – a contact that Cohen would lie to Congress about four week later

On August 7, Mueller used a probable cause warrant to obtain Roger Stone’s Twitter content, which revealed a mid-October 2016 exchange with WikiLeaks that disproved the rat-fucker’s public claims that he had never communicated with WikiLeaks during the campaign (a fact that Gerth gets wrong in the less than 1% of his series he dedicates to Stone). It also revealed that the day after the election, WikiLeaks assured Stone via DM that “we are now more free to communicate.” Those communications would, in one week (the subsequent investigation showed), turn into pardon discussions, which provides important background to the June 2017 Twitter DMs Stone had with Julian Assange, obtained with that August warrant, about “doing everything possible to address [Assange’s] issues at the highest level of Government.”

Gerth’s reliance on Rosenstein, at best, ignores the context of the former Deputy Attorney General’s quivering in the face of his own exposure in the errors in the Carter Page applications. It ignores Rosenstein’s statement, 61 seconds earlier, about reasonable suspicion. More importantly, it relies on a witness who wouldn’t know what investigators had discovered and by when, all the while remaining blissfully ignorant of (or, worse, suppressing) publicly available details that reveal the actual state of the investigation in August 2017.

Based on such a shoddy reporting approach, Gerth calls all these investigative discoveries – details about plans for a meeting with Putin’s office in September 2016, foldered emails about carving up Ukraine, coordination with Mar-a-Lago on Flynn’s calls about sanctions with Sergey Kislyak, $400K in suspicious payments from a Russian oligarch, and proof that Stone was lying about contact with WikiLeaks – “no there, there.” 

Gerth insists that journalists should disclose the known details about the investigation – such as that Strzok didn’t think there would be anything before Mueller started obtaining warrants to check — but rather than holding himself to that standard, he instead makes provably false statements about what investigators knew, and could have known, when. 

When asked about both the Flynn and the Rosenstein claims, twice, CJR did not respond. “[T]he vast majority of items” I raised “are editorial notes from you, as in ways you would have written the piece differently,” Pope said in response to my list of questions, “rather than issues of fact that need to be addressed by CJR.”

Sweeping misstatements about trolls

Gerth’s legal misrepresentations are perhaps most telling in his discussion of the case against Russian oligarch Yevgeniy Prigozhin, twelve human trolls who worked for Internet Research Agency, the IRA itself, and two shell companies Prigozhin allegedly used to fund the IRA. 

This is going to get weedy, but it’s important because it’s an instance where Gerth simply adopts the false claims of another “Russiagate” propagandist as his own.

Gerth makes two claims: That the judge handling the case “rebuked” “the Mueller [R]eport” for claiming the “IRA” was part of a “sweeping” Russian government effort when (Gerth claimed) prosecutors weren’t prepared to prove that tie. And, he claims, “one criminal case” was dropped by DOJ.

The Mueller report’s implication that the IRA was part of a “sweeping” Russian government meddling campaign in 2016 was later rebuked by a federal Judge handling an IRA-related case. The indictment of the IRA, the judge found, alleged “only private conduct by private actors” and “does not link the [IRA] to the Russian government.” The prosecutors made clear they were not prepared to show that the IRA efforts were a government operation. Mueller’s report does refer to “ties” between Putin and the owner of the IRA—he is sometimes referred to as “Putin’s Cook”—and the fact that “the two have appeared together in public photographs.” Mueller’s source for that was an article in the Times.

[snip]

(One criminal case involving Russian trolling that was prosecuted was dropped by the Justice Department in March 2020. The Times, in its story about the decision, only quoted the prosecutor, while the Wall Street Journal and Washington Post also included quotes from the Russian company’s American lawyer.)

Before I lay out the many errors here, let me address Gerth’s complaint that the NYT quoted only prosecutors in their stories about DOJ’s decision to drop charges against Concord, whereas the WSJ and WaPo “include[] quotes from the Russian company’s American lawyer.” He doesn’t mention that NYT quoted a Twitter account boasting of leaking Mueller’s materials, one proximate reason DOJ dropped the case. But the entire complaint underscores Gerth’s fundamental misrepresentation of this issue: The dispute in question was a dispute about prejudicial pretrial statements, not about what prosecutors planned to prove in court. After Judge Dabney Friedrich issued her rebuke, neither side was supposed to be giving quotes to journalists. 

And because DOJ didn’t dismiss an entire criminal case, DOJ remained gagged under Judge Friedrich’s order. DOJ dismissed only the charges against the defendants in question, which Gerth describes as the “IRA” (Internet Research Agency) five times in one paragraph.

But Gerth got the defendant wrong. Here’s the passage of the judge’s order Gerth claims to be citing.

But the indictment, which alleges that private Russian entities and individuals conducted an “information warfare” campaign designed to sow discord among U.S. voters, Indictment ¶ 10, does not link the defendants to the Russian government. Save for a single allegation that Concord and Concord Catering had several “government contracts” (with no further elaboration), id. ¶ 11, the indictment alleges only private conduct by private actors. [my emphasis]

“The defendants” here were Concord Management and Consulting, the shell companies Prigozhin allegedly used to fund the IRA, the same defendants against which DOJ dropped charges. (Friedrich refers to IRA as Concord’s “co-defendant” when she discusses them.) The difference matters because – as even that passage makes clear – there was no question about the contracts that Concord had with the Russian government.

DOJ dismissed the charges against Concord because it was acting as a true shell company, using its flexibility as a corporate person to show up to contest the charges and obtain sensitive discovery, while dodging parts of the protective order and any possibility it would ever be arrested. I laid out DOJ’s decision to drop the charges, rebutting false claims from both right and left, in this post. Gerth must know that the decision only pertained to two corporate shell defendants. The WSJ story he cites, for example, makes that clear in the headline: “Judge Dismisses Part of Robert Mueller’s Case Against Russian Firm.” The NYT version clarified the dismissal involved just “two Russian shell companies.” 

And as for Friedrich’s rebuke, as I noted, it was about pretrial prejudice, Concord’s ability to get a fair trial, not about what prosecutors planned to prove at trial. Gerth appears to have made up the claim that prosecutors “made clear they were not prepared to show that the IRA [sic] efforts were a government operation.” On the contrary, prosecutor Jonathan Kravis explained in a hearing on Concord’s motion that they had not yet decided whether they would present it at trial.

THE COURT: And is that something that the government plans to introduce at trial in this case?

KRAVIS: I’m not certain of the answer to that question at this point.

Given the charges, they didn’t need to prove that Concord was working with the Russian government. The single conspiracy count against Concord didn’t require proving Prigozhin’s substantial ties to the Russian government. It required showing only that members of the conspiracy deliberately thwarted FEC and DOJ’s ability to enforce campaign finance and FARA laws, both of which only require a tie to a foreign principal, not a foreign government.

Similarly, Gerth falsely insinuates that Mueller didn’t have evidence of such ties by suggesting the only evidence in the report was a reference to a NYT article. As he did with the SSCI case laying out reasons it judged Kilimnik to be a spy, Gerth is here referring to a two page, almost entirely redacted section, and insinuating that a bunch of redacted evidence is the same as no evidence, just a reference to the NYT. A sentence unsealed after this dispute shows that this passage relied, in part, on details of Prigozhin’s ties to the Russian military.

Finally, Gerth misrepresents both the substance of the rebuke and its primary target. Concord’s complaint about prejudicial language (both the alleged tie to Russia and outright claims it was illegal) focused first and foremost on Bill Barr’s language, and only secondarily on the Mueller Report. While Friedrich’s order rebuking the government did cite language in the Mueller Report, she deemed that language a violation in conjunction with Barr’s far more definitive tie between Russia and the corporate defendants, particularly made in Senate testimony. 

Similarly, the Attorney General drew a link between the Russian government and this case during a press conference in which he stated that “[t]he Special Counsel’s report outlines two main efforts by the Russian government to influence the 2016 election.” Press Conference Tr. (emphasis added). The “[f]irst” involved “efforts by the Internet Research Agency, a Russian company with close ties to the Russian government, to sow social discord among American voters through disinformation and social media operations.” Id. The “[s]econd” involved “efforts by Russian military officials associated with the GRU,” a Russian intelligence agency, to hack and leak private documents and emails from the Democratic Party and the Clinton Campaign. Id. The Attorney General further stated the Report’s “bottom line”: “After nearly two years of investigation, thousands of subpoenas, and hundreds of warrants and witness interviews, the Special Counsel confirmed that the Russian government sponsored efforts to illegally interfere with the 2016 presidential election but did not find that the Trump campaign or other Americans colluded in those schemes.” Id. (emphases added). In context, it is clear that one of these “efforts” or “schemes” attributed to the Russian government was the information warfare campaign alleged in the indictment. Id. Thus, the Attorney General “confirmed” what the indictment does not allege—that Concord’s and its co-defendants’ activities were “sponsored” by the “Russian government” and part of a two-pronged attack on our nation’s democratic institutions. Id. This bottom-line conclusion was highlighted in multiple press articles following the Report’s release.

In fact, Friedrich pointed to Mueller’s closing press conference on May 29 as proof of the care with which DOJ was trying to avoid such prejudice.

In delivering his remarks, the Special Counsel carefully distinguished between the efforts by “Russian intelligence officers who were part of the Russian military” and the efforts detailed “in a separate indictment” by “a private Russian entity engaged in a social media operation where Russian citizens posed as Americans in order to interfere in the election.” Special Counsel Statement Tr. (emphases added). He also repeatedly referred to the activities described in the Report as “allegations” and made clear that his Office was “not commenting on the guilt or innocence of any specific defendant.” Id. The Special Counsel added that the defendants were “presumed innocent unless and until proven guilty in court.”

As to Gerth’s insinuation that Friedrich was rebuking Mueller for including “IRA” in his observation that, “The Russian government interfered in the 2016 presidential election in sweeping and systematic fashion,” she did not include the “sweeping” comment quoted by Gerth. While Concord cited the “sweeping” language in its initial motion, it dropped it in its reply. The reference didn’t come up in the hearing on the matter. And Friedrich’s order did not mention the “sweeping and systematic” claim either, which in the report was tied to the hack-and-leak campaign. So not only wasn’t that claim rebuked, but by yoking that claim to IRA, Gerth is doing precisely what Concord complained about, applying language that pertained to other parts of Russia’s operation to Prigozhin’s corporations. Gerth is himself engaged in the kind of sloppy journalism that Concord complained about.

Virtually everything Gerth said in his comments about “IRA” was wrong in one way or another.

The sloppiness of this section is important for another reason.

As far as I’m aware, the claims were first made by Aaron Maté in a piece listing questions he wanted asked in Mueller’s congressional testimony.

Why did you suggest that juvenile clickbait from a Russian troll farm was part of a “sweeping and systematic” Russian government interference effort?

The Mueller report begins by declaring that “[t]he Russian government interfered in the 2016 presidential election in sweeping and systematic fashion.” A few paragraphs later, Mueller tells us that Russian interference occurred “principally through two operations.” The first of these operations was “a social media campaign that favored presidential candidate Donald J. Trump and disparaged presidential candidate Hillary Clinton,” carried out by a Russian troll farm known as the Internet Research Agency (IRA).

The inference here is that the IRA was a part of the Russian government’s “sweeping and systematic” interference campaign. Yet Mueller’s team has been forced to admit in court that this was a false insinuation. Earlier this month, a federal judge rebuked Mueller and the Justice Department for suggesting that the troll farm’s social media activities “were undertaken on behalf of, if not at the direction of, the Russian government.” US District Judge Dabney Friedrich noted that Mueller’s February 2018 indictment of the IRA “does not link the [IRA] to the Russian government” and alleges “only private conduct by private actors.” Jonathan Kravis, a senior prosecutor on the Mueller team, acknowledged that this is the case. “[T]he report itself does not state anywhere that the Russian government was behind the Internet Research Agency activity,” Kravis told the court.

Maté made the claim that “sweeping” was included in there, he made the claim (and the substitution in brackets) that this was about the IRA, Maté made up the claim that this was about evidence rather than pretrial prejudice (indeed, his first version of this, since corrected, falsely attributed Concord’s complaint that DOJ had “improperly suggested a link” between “IRA and the Kremlin” to Friedrich). Most of Gerth’s errors first appeared in Maté’s piece, and Gerth doesn’t include Maté’s one quote – Friedrich’s judgment that the Mueller Report had suggested the trolling done by Concord’s co-defendant IRA was “undertaken on behalf of … the Russian government” – where Friedrich most directly condemned the Report.

From Maté’s piece, the claims were magnified through “Russiagate” channels and invoked days later in some erroneous questioning by Tom McClintock in the Mueller appearance that Gerth invoked in word 18 of his 23,000 word series.

MCCLINTOCK: But — but you — you have left the clear impression throughout the country, through your report, that it — it was the Russian government behind the troll farms. And yet, when you’re called upon to provide actual evidence in court, you fail to do so.

MUELLER: Well, I would again dispute your characterization of what occurred in that — in that proceeding.

Gerth, who starts his 23,000-word series citing Mueller’s testimony and scolds journalists repeatedly for not presenting contrary views, doesn’t include Mueller directly disputing the claim – made by McClintock, made by Gerth, and made by Maté – that the government failed to present such evidence. Gerth has been told his claims here are false, in the Mueller testimony he made the opening gambit of his series. And yet, he repeated Maté’s errors anyway.

Maté is one of the many “Russiagate” proponents – along with Matt Taibbi, Glenn Greenwald, Paul Sperry, John Solomon, Barry Maier – of whom Gerth speaks favorably at length (curiously, he doesn’t mention Chuck Ross, who unlike the others did important, substantive reporting on the dossier). I asked Pope whether Gerth had assessed some of the erroneous reports of these “Russiagate” figures, and mentioned this misrepresentation of Friedrich’s order specifically.

Do you believe Aaron Maté’s treatment of the Concord prosecution is accurate (including his misrepresentation of an order Dabney Friedrich issued, which this piece appears to rely on)? [my emphasis]

Pope refused to address the erroneous reporting of “Russiagate” proponents that Gerth was citing approvingly. “[Y]ou ask us to comment on or defend the actions of other people and institutions, including Trump, the FBI, Erik Wemple, the Department of Justice, Glenn Greenwald, and others. Those questions should be addressed to them, not us.”

No. Since CJR adopted Maté’s errors as their own, the question was rightly addressed to Pope. 

Pope’s silence about questions specifically raised about Maté, his refusal to own up to the errors Gerth borrowed from him, are particularly telling: In Duncan Campbell’s recent description of how CJR spiked a story on the Nation magazine’s credulous Russian reporting, Campbell revealed that the last edits Pope made before sending it to an interminable fact check pertained to Maté.

Pope then wanted the 6,000-word and fully edited report cut by 1,000 words, mainly to remove material about the errors in The Nation article. Among sections cut down were passages showing how, from 2014 onwards, vanden Heuvel had hired a series of pro-Russian correspondents after they had praised her husband. Among the new intake was a Russian and Syrian Government supporting broadcaster, Aaron Maté, taken on in 2017 after he had platformed Cohen on his show The Real News.

Maté became the magazine’s prolific ‘Russiagate’ correspondent. Vanden Heuvel was later to tell Maté in a broadcast in October 2020 that “Steve always valued your work… your writing for The Nation was always important to him as it is to me… I think what you do at RealClearInvestigations is factual, is bullet–, and I was reading them to Steve in the last weeks, trying to rile him up.” Maté responded: “I’m forever indebted to you and Steve.”

That is, CJR has covered for Maté in the past, and here they refuse to hold themselves accountable for adopting his errors.

The Columbia Journalism Review blew off one or another clear error – errors that came from people like Sidney Powell! – by claiming the actual facts were mere “editorial notes.”

And along the way, Gerth declared that details about plans for a meeting with Putin’s office in September 2016, foldered emails about carving up Ukraine, coordination with Mar-a-Lago on Flynn’s calls about sanctions with Sergey Kislyak, $400K in suspicious payments from a Russian oligarch, and proof that Stone was lying about contact with WikiLeaks amounted to “no there there.” 

CJR claimed that it “has been examining the American media’s coverage of Trump and Russia in granular detail.” This review has shown how ridiculous that claim is. What it did, in the name of scolding other journalists while misrepresenting their work, was create the “Russiagate” narrative they defined the entire project by. They did so by skipping key events of 2016, ignoring the vast majority of the NYT and WaPo reporting they claimed to review, substituting the dossier for actual media coverage, and passing off a Russian intelligence product with no notice. To prove they found the “Russiagate” narrative they had dishonestly created, they simply parroted  the work of people from their same “Russiagate” bubble, all the while ignoring vast swaths of contradictory evidence in the documentary record. 

CJR invented a Russiagate narrative via omission and factual error. Then they boasted that they had found what their own journalistic failures created.

Update: A stats prof from Columbia caught Gerth making errors — or more likely, adopting others’ errors — in his key statistical claim about declining trust for media.

Links

CJR’s Error at Word 18

The Blind Spots of CJR’s “Russiagate” [sic] Narrative

Jeff Gerth’s Undisclosed Dissemination of Russian Intelligence Product

Jeff Gerth Declares No There, Where He Never Checked

“Wink:” Where Jeff Gerth’s “No There, There” in the Russian Investigation Went

My own disclosure statement

An attempted reconstruction of the articles Gerth includes in his inquiry

A list of the questions I sent to CJR

Update: Date of Papadopoulos’ claimed inability to read his own notes corrected.

Johnny McEntee: Enforcer of Trump’s Authority to Invoke the Insurrection Act

CNN’s ace Prettyman stakeout reporters spied John McEntee, Trump’s body man turned personnel enforcer, going into a grand jury appearance Friday.

That led me to spend quality time with his January 6 Committee transcript this weekend; I was trying to get a sense of whether this interview — one of the first that would have been scheduled after DOJ had an opportunity to read J6C transcripts turned over in early December — gave a sense of why Jack Smith prioritized McEntee.

I agree with CNN, this is likely part of it:

When testifying to the House committee, McEntee recalled a meeting in the Oval Office on Vice President Mike Pence’s role in certifying the election, in which he said he was asked to look into precedent. McEntee also recounted in-person exchanges between Trump and Pence, in which he heard Trump say, “Michael, do the right thing,” and “Do what you think is right, Mike.”

Here’s how it appears in the transcript.

Q Did you ever witness any conversations between the President and the Vice President about the Vice President’s role?

A No. No.

Q Or any phone calls? Anything like that?

A I remember the President saying, “Michael, do the right thing.” You know, “Do what you think is right, Mike.” That’s all I heard him say.

Q You heard him say that to Vice President Pence?

A Yeah.

Q Was it over the phone or in person?

A In person.

Q Okay. And was that in the Oval Office?

A Yeah.

Q Was anybody else there?

A I think Short was there, yeah.

Q Do you remember when that was?

A I don’t. It was, like, when he was going up for the evening, the President, and they were just finishing something up, so I came in to, like, grab all his stuff, and then he said that to him.

Q Okay.

A At the conclusion of the day at some point.

Q And did the Vice President say anything in response?

A No. He just nodded.

If credible, it would be exculpatory. DOJ needs to interview anyone who might have exculpatory information before they make a decision to charge Trump.

They may also be trying to get all testimony about Trump’s comments to Mike Pence before they move to interview Mike Pence, because they’d need to make a case they couldn’t get his testimony anywhere else.

But McEntee was not particularly credible, and I would imagine with call records and other testimony, DOJ would be able to prove that.

Indeed, even in the J6C testimony, McEntee got caught providing a dubious explanation for a call he had with Trump after the attack on January 6. At first, he claimed most of his conversation with Trump consisted of “colorful” comments about the people who resigned on January 6.

Q Did President Trump ever talk to you about the events of January 6th even after the fact?

A Just vaguely that night when we spoke.

Q Okay. Tell us about that conversation.

A I called, and I just went down the list of all the people who had resigned.

And then we discussed a little bit about each just colorfully. And then he just said this is a crazy day and, you know, I’ll see you tomorrow. But he didn’t go into many details.

Q Okay. Can you remember anything else he said about the events of that day?

A I can’t, other than he acknowledged that it was, like, wild, and we would talk tomorrow, you know, or next — we’ll see you in the morning, or something like that.

Q Okay.

A We were mostly going through all these people that resigned, and then kind of talked about them. And I was just relaying, because O’Brien called me and said you got to let him know I’m not resigning. So then I called, and he said, well, who has resigned? And then, like, I went through the list of the ones I knew at the time. And then the next day some more came out.

Q When the President said it was a crazy day, or something to that effect, what was his tone?

Q A Kind of like a little disbelief. Like, wow, like, can you believe this shit, you know?

A  Did he express any sadness over the violence?

Q No. I mean, I think he was shocked by, you know, it getting a little out of control, but I don’t remember sadness, specifically.

But in a final question, J6C pointed out the problem with that. Trump didn’t know any of the people who resigned on January 6; the people he knew who resigned only resigned on January 7.

Q I just want to ask, that conversation that January 6th evening, I think from the — the diary indicates it’s a 20-minute-long conversation. And you described it.

Many of the people who resigned that day Mr. Trump didn’t even know. In fact, the ones that he did know didn’t resign till the next day.

So 20 minutes is a long conversation, Mr. McEntee, and I’m wondering if you could just describe, when you say “disbelief” and “day is crazy,” what more color can you add to the feelings of that day as expressed to you?

A You know, it’s hard to remember, honestly. I don’t remember any details we went into about it. I know we went through each person, and I had to explain who each person was, so that took a minute or two on each –

There are other parts of McEntee’s testimony that strain credulity. He has little explanation for how he spent his day on January 6. He claimed not to understand most of what he was doing as he served as a go-between, between Steve Bannon and the White House via Bannon’s Chief of Staff Alexandra Preate. His response to being asked about a rumor that he slept at the White House for several days after the attack was weak — “not that I’m aware of.”

McEntee also described Trump using his (McEntee’s) phone — and he was a bit squishy about whether it was just his White House phone, or also his personal one — from time to time. McEntee likely learned this habit from working with Keith Schiller, who offered the same service as a body man.

But there’s an aspect of McEntee’s testimony that is far more alarming.

Shortly after returning to the White House in 2020, he was elevated to run personnel. He was wildly unqualified for the task, as intended for a government bureaucracy, but he was quite adept at politicizing every bit of the political appointment process, and demanding absolutely loyalty in the process.

And in that role, McEntee served as a means to drive the policy of the entire Pentagon.

The committee first reviewed McEntee’s role in firing Mark Esper for refusing to invoke the Insurrection Act during the summer of 2020. Then it turned to how, after simply interviewing Douglas MacGregor for an advisory role at the Pentagon, McEntee sent a memo to DOD ordering them, days after the election was called for Biden, to withdraw from Afghanistan and Somalia.

The exchange led his attorney, David Warrington, who at the time was paid by Trump’s PAC and who still represents a slew of January 6 witnesses, to go on an extended complaint about the scope of questions.

McEntee’s role in enforcing policy came up again in an exchange about the response to Army Secretary Ryan McCarthy saying, on December 18, that the military would play no role in determining the outcome of the election.

On December 18th, the Secretary of the Army, Ryan McCarthy, and the Army Chief of Staff issued a statement that there was no role for the U.S. military in determining the outcome of an American election.

Do you remember what impact, if any, that had on the White House?

A I don’t remember that being brought up.

Q Do you remember conveying a message to Secretary Miller about the White House’s frustration that DOD, particularly the Secretary of Army, had issued such a  statement?

A No, I don’t remember. I don’t remember that.

Q Secretary Miller told the committee that he was contacted by you soon after the statement was made and you asked why McCarthy made the statement and, quote, “wanted me,” meaning Mr. Miller, “to remind McCarthy that the President was not going to — it was — I know this sounds kind of wonky, but it was an authorities issue. He,” meaning you, “said the President is not going to invoke the Insurrection Act but that doesn’t mean he couldn’t, which I thought was an interesting comment because it dealt with the authority, not so much — the concern was not with what McCarthy said, was the way I interpreted it. It was the fact that the Secretary of Army was saying he had authorities that actually resided with the President.”

This was a response to Mike Flynn’s call for martial law, but it also came after Stewart Rhodes had already called for Trump to invoke the Insurrection Act several times. And it also came as Flynn and others were advising Trump to seize the voting machines.

After getting McEntee to deny remembering this and claiming any interference at DOD was simply in his role as Assistant to the President, J6C then brought out a note, written by McEntee, that Trump or someone else had ripped up before it was preserved by the Archives.

It showed that McEntee had intervened in this response in a personnel, not an assistant, function — because he got Miller to agree to fire McCarthy and others if they ever made comments about DOD’s role in the election again.

McEntee claimed he remembers none of that.

Q One second. Sorry.

These are handwritten notes that have been produced to us from the National Archives.

Is that your handwriting, Mr. McEntee?

A It looks like it, yes.

Q And it looks like the page has been torn. But it says, “Chris Miller spoke to both of them and anticipates no more statements coming out.” And then in parentheses, “If another happens, he will fire them.”

Do you remember writing this?

A No, I don’t remember writing this.

Q But this is your handwriting?

A Yes.

Q So, just want to be clear. This is your handwriting, but you have no memory of calling Secretary Miller and requesting him to call Secretary McCarthy to express the President’s disappointment with the statement regarding there’s no role of military in the United States election?

This is important background to McCarthy’s indolent response to the attack on January 6. Trump’s chief enforcer had already intervened to make sure he didn’t do anything to fall afoul of Trump’s whims.

But it’s also important background to another comment in the interview.

As I suggested in this post, the J6C transcripts make it clear that a long-public reference to Trump requesting 10,000 National Guard on January 3 was misrepresented, no doubt deliberately so. Trump made the request not, as reported, in the interest of keeping his followers safe. Rather, he first floated having 10,000 Guard after it became clear the National Park Service would not approve a permit for a march to the Capitol, out of security concerns.

Effectively, Trump floated having 10,000 Guard present on January 6 to enable his march to the Capitol.

And that, plus McEntee’s role in firing Esper because he refused to invoke the Insurrection Act and his threats of firing McCarthy because he said DOD would not intervene in the election, makes this reference all the more chilling. When asked about his role in the rally, McEntee described that he intervened to ask Christopher Miller to involve the Guard.

Q Did you have any conversations with the President that day?

A Only that night.

Q Okay. We’ll get to that in a minute. Did you go to the rally on the Ellipse?

A No.

Q Were you involved in any conversations about planning the rally?

A No.

Q Were you aware of any discussions about groups such as the Proud Boys, Oath Keepers, or anybody else being involved in the protests?

A I was not. The only thing I had to do that even remotely dealt with the rally was the President wanted to make sure it was safe. And either a day or two or three before, he had me call Chris Miller and ask if we could bring the National Guard in.

Q Okay. What did Mr. Miller say?

A I think he said he would look into it.

Q And do you know if anything happened after that?

A I don’t know if anything happened or came of it, no.

Q Did you report back to the President on what Secretary Miller said?

A I just let him know that I relayed his message to Chris, yeah.

Having earlier claimed not to recall using threats of firing to make demands on DOD and having earlier disclaimed any knowledge of Trump’s plan to walk to the Capitol, here’s the bullshit explanation McEntee offered for why Trump wanted to involve the Guard.

Q And did the President say anything about why he wanted the National Guard there?

A I think because that summer we had the Republican Convention. And if you remember, like, Rand Paul was getting attacked in the street. And, I don’t know, it just got kind of crazy. So this time he thought we’re going to have so many people, like, you know, we need to make sure that this city is safe. That kind of a thing.

Q Do you know why he said it to you?

A No, I think it was just on his mind and I just happened to be next to him. So he said call Chris and let him know. So I just called Chris.

Q Were you traveling at the time?

A We could have been, like, golfing, yeah, or something. You know, we could have been at his golf course maybe.

As I said above, I agree with CNN that one thing Jack Smith’s team would have wanted to ask McEntee about was his claim to have heard, alone among all known witnesses, Trump say something exculpatory.

DOJ would also want to see whether McEntee wanted to reiterate some of the more fantastic claims he made to J6C, especially knowing that DOJ would have the legal means to disprove some of them.

DOJ likely would want to ask about a conversation McEntee had with Trump, along with Dan Scavino (who has definitely appeared before the grand jury) and Molly Michael (who has definitely been interviewed in the stolen document case and likely interviewed in J6C), about testifying to J6C.

But depending on what other witnesses DOJ has already interviewed, DOJ may want to know more about McEntee’s role in arranging an ostensible Praetorian Guard for the President as he walked to the Capitol as they moved to certify his loss.

McEntee was among the people referred to, publicly at least, in the mix for a pardon after January 6. In his interview, McEntee only discussed that pardon, if it happened, in the context of a blanket pardon for staffers involved in January 6.

It was never entirely clear why McEntee might need one.

Unless he has knowledge of Trump’s attempt to use the National Guard as a Praetorian Guard to accompany his own march on the Capitol.