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Mike Flynn Forgets He Was Shit-Canned by Presidents of Both Parties

In a lawsuit attempting to kill an existing subpoena from the January 6 Committee and an as-yet unidentified subpoena to Verizon, Mike Flynn accuses Bennie Thompson of opposing Barack Obama. That’s the only logical conclusion one can draw from Flynn’s claim that the people behind the subpoena of him, “belong to the political party that opposed the President under whom General Flynn served.”

The body that issued the Subpoena is composed of 9 members, 7 of whom belong to the political party that opposed the President under whom General Flynn served. The remaining two members were Republicans hand-picked by Speaker Pelosi because they were vocal opponents of former President Trump from within the Republican Party.

As Flynn himself points out in his lawsuit, he served Barack Obama as Defense Intelligence Agency head for over two years, a total of 744 days. He served Donald Trump as National Security Advisor for around 24 days, a laughably short tenure even by the standards of the Trump Administration.

Plaintiff Lieutenant General Michael Flynn is a retired Lieutenant General in the United States Army, served as the Director of the Defense Intelligence Agency from July 2012 to August 2014, and was the National Security Advisor at the start of the Trump Administration.

Mike Flynn was shit-canned by both Presidents.

Nevertheless, a man fired by Presidents of both parties wants to claim a mere subpoena is a witch hunt against him.

Flynn, predictably, gets a lot else wrong in this lawsuit. His depiction of how Billy Barr attempted, but — even after appointing a team that altered DOJ documents as part of their attempt — failed to blow up the prosecution of him gets details big and small wrong.

He was famously led into a perjury trap by the Federal Bureau of Investigation, pled guilty to making a false statement after the government threatened his son and then agreed not to prosecute his son if he pled guilty. He later sought to withdraw that plea under the guidance of new counsel after the discovery of exculpatory evidence that was withheld from him prior to his guilty plea. When the Department of Justice decided to drop the charges against him, a court stayed his sentencing while the Court considered whether to force the Department of Justice to prosecute him. Ultimately, General Flynn received a Presidential pardon.

There was no perjury trap, his very good Covington lawyers were especially worried about Flynn’s exposure as a secret agent of Turkey, none of the evidence was deemed to be exculpatory, and he had already been prosecuted.

It is true that after Sidney Powell did more harm then good, Trump pardoned the man he shit-canned. It’s also true that Flynn remained equivocal about whether Donald Trump knew about his efforts to undermine sanctions during the Transition — though transcripts of his calls with Sergey Kislyak show that he told Russia’s Ambassador, at least, that Trump did know.

But there are several details in this lawsuit — like all of these lawsuits challenging the January 6 Committee, which appear to be at least partly an attempt to coordinate cover stories — of interest.

As Josh Gerstein observed, the lawsuit is full of dated information.

On January 6, 2021, a large group of people in Washington, D.C., entered the U.S. Capitol, breached security, and disrupted the counting of Electoral College votes until order was restored. The U.S. Department of Justice has arrested more than 500 individuals in connection with those activities on January 6th. General Flynn was not part of, nor was he present, at the Capitol grounds during any of those activities at the Capitol that day. Like most Americans, he saw those troubling events unfold on television.

[snip]

Former President Trump appealed the district court’s order, and the D.C. Circuit Court of Appeals enjoined NARA from releasing the disputed Presidential records pending its ruling. See Mem. Op. 17, Trump v. Thompson, No. 1:21-cv-2769 (D.D.C. Nov. 9, 2021).

On November 30, 2021, the D.C. Circuit held oral argument on the merits of former President Trump’s appeal. This case is still pending.

While I’m not surprised the Dhillon Law Group cited details about the January 6 investigation that are four months out of date, you’d think they — or Flynn, via Jesse Binall, who was part of the Sidney Powell team that represented him — would have heard of the legal thumping that the DC Circuit gave Jesse Binall on December 9.

As Katelyn Polantz observed, by filing this in his home district in Florida (albeit in the wrong district at first), Flynn sets up the possibility of a circuit split with the DC Circuit decision that Dhillon Law Group hasn’t heard about yet.

So this may be part of a concerted plan, but one that being implemented with the legal incompetence characteristic of Trump (and Flynn) lawyers.

Particularly given how dated this lawsuit is, I’m particularly interested in Flynn’s reliance on the investigation into Sidney Powell’s grift to explain his hesitations about cooperating with the Committee.

Flynn bases his knowledge about the investigation into Sidney Powell on a November 30 WaPo story (though he credits NYT with the scoop), not personal knowledge of the investigation.

In 2021, General Flynn was briefly a board member of a nonprofit founded and led by his defense counsel, Ms. Powell, called Defending the Republic. In September 2021, a federal prosecutor handling the January 6 Capitol attack as well as the criminal contempt of Congress proceedings against individuals referred by the Select Committee also subpoenaed the records of Defending the Republic in connection with a criminal investigation into its activities.

[snip]

In September 2021, the Department of Justice obtained a grand jury subpoena for records of a nonprofit General Flynn briefly served as a director, which was founded and led by his criminal defense counsel, Sidney Powell. The subpoena was signed by an Assistant U.S. Attorney prosecuting matters related to the January 6 Capitol attack as well as contempt of Congress charges against Stephen K. Bannon for not complying with the Committee’s subpoena. Isaac Stanley-Becker, Emma Brown, and Rosalind Helderman, Prosecutors Demanded Records of Sidney Powell’s Fundraising Groups As Part of Criminal Probe, NEW YORK TIMES, Nov. 30, 2021.

Here’s a December 1 Daily Beast story with other details of the investigation (which may come from Lin Wood or Patrick Byrne). Here’s my post noting that the virgin birth of the grift times awkwardly with Flynn’s own pardon.

In language immediately preceding one of those descriptions, Flynn misleadingly claims that the Committee subpoena against him starts “just before” DOJ “sought to dismiss the charges against him in May of 2020.”

(The Subpoena curiously seeks documents from General Flynn starting just before the Department of Justice sought to dismiss the charges against him in May of 2020, and long before the 2020 election or the January 2021 attack on the Capitol.) In late 2020, General Flynn publicly stated his concerns about the integrity of the 2020 elections, as did many other citizens. General Flynn did not organize or speak at any events on January 6 in Washington D.C.

The start date for the subpoena actually starts on April 1.

Still, I find it interesting that Flynn is so worried about what happened during Billy Barr’s failed attempt to blow up his prosecution. And I find it interesting that Flynn claims to have no firsthand knowledge of the investigation Molly Gaston is leading into Sidney Powell’s grift.

Incidentally, Gaston originally pulled three January 6 cases in the investigation’s early days, those of Robert Packer, Robert Gieswein, and Derrick Evans, just the latter of which, involving a then-West Virginia state politician, had any possible public corruption component. But, at a time of immense staffing shortages at DC’s US Attorney’s Office, she dropped off those cases on February 18 (in the case of Packer) and March 29 (in the case of Gieswein and Evans). I’ve long wondered what, in the weeks after Merrick Garland came in, became a higher priority for the DC US Attorney’s leading public corruption prosecutor. We now know one thing she picked up in the interim was the prosecution of Michael Riley, the Capitol Police Officer who advised rioter Jacob Hiles to delete Facebook posts about his role in the riot. And by September, Gaston’s grand jury investigation into Sidney Powell’s grift had started taking overt steps like subpoenaing Powell’s nonprofit.

Anyway, back to Mike Flynn.

Unlike the other people suing, Flynn appears to be uncertain about whether Verizon received a January 6 Committee subpoena targeting him. John Eastman returned the subpoena targeting him with his lawsuit. Alexander included the notice of the subpoena — dated December 2 — he received from Verizon. Meadows also included the notice of the subpoena.

But Flynn doesn’t include documentation like that to substantiate his basis for believing that Verizon got a subpoena targeting him. Rather, he says that he thinks Verizon got a subpoena targeting him — from the January 6 Committee — because they got one for Mark Meadows.

Upon information and belief, the Select Committee is not only targeting a wide variety of individuals with sweeping subpoenas, but also is obtaining extensive private records about various individuals—including cooperating witnesses—by issuing subpoenas to their telecommunications providers.

For example, the Select Committee issued a subpoena to Verizon Wireless seeking subscriber information and cell phone data associated with former White House Chief of Staff, Mark Meadows (the “Verizon Subpoena”). The subscriber information requested includes subscriber names and contact information, authorized users, time of service provided, account changes, associated IP addresses, and other metadata. The cell phone data requested could include all calls, text messages, and other records of communications associated with that phone number. This data can be used for historic cell site analysis. The Verizon Subpoena requested all of Mr. Meadows’ personal cell phone data for four months: from October 1, 2020, and January 31, 2021.

That is, unless Verizon has lost track of whom to bill for his cell service (or unless the General is confused about who is service provider is), it appears that Flynn — who was, for a period, on the board of the Powell nonprofit already being investigated by a grand jury in September — didn’t get a letter on December 2 alerting him that January 6 had subpoenaed his phone records.

Don’t get me wrong: particularly given his propensity to lie, Mike Flynn is not wrong to invoke the Fifth Amendment to avoid answering questions from the January 6 Committee (though he still is on the hook for the document request). That would be true even if Molly Gaston weren’t investigating Sidney Powell, but with the investigation, he’s quite right to invoke the Fifth (again — he did so with the SSCI Russian investigation too).

But if there’s a reason why the House Committee didn’t feel the need to ask for his phone records, that may be the least of his worries.

The most interesting aspect of the January 6 investigation that no one is covering — not even in a NYT story on criminal referrals — is the means by and extent to which the Committee is deconflicting with DOJ. There must be a legislative affairs person doing this near full time, unless Thompson and Liz Cheney — the daughter of someone who played a key role in screwing up Iran-Contra by refusing to do this — are doing this at a higher level. But the story about whom the Committee hasn’t subpoenaed — which includes both Sidney Powell and Rudy Giuliani, both known to be under investigation by DOJ — is as interesting as who they have.

The Virgin Birth of Sidney Powell’s Fraud Fund

On the list of things those whinging about Merrick Garland seem to have missed is this Daily Beast story reporting that a grand jury is investigating Sidney Powell’s grift.

For months, a federal investigation running out of Washington, D.C., has been demanding documents and asking potential witnesses questions about Powell, according to three people familiar with the matter. Similarly, a separate investigation into Powell’s anti-democratic activities took place in the Sunshine State earlier this year—and has already produced results, and punished Powell and her far-right group.

The federal probe, which has not been previously reported, is examining the finances of Defending the Republic, an organization founded by Powell to fund her “Kraken” lawsuits to overturn the 2020 election, the sources said. According to two of the people familiar with the matter, a grand jury was empaneled, and subpoenas and documents requests have gone out to multiple individuals as recently as September.

The story is most amusing because it airs the entertaining feud between Powell, Lin Wood, Patrick Byrne, and the Flynns. The story airs the claims of those feuding with Powell who say, at a time this is under criminal investigation, that they were uninvolved with the grift.

Powell created Defending the Republic with great fanfare in December 2020 and listed a who’s who of pro-Trump election conspiracy world on its incorporation paperwork. The group’s board originally included former Trump national security adviser Mike Flynn, his brother Joe, and QAnon enthusiast Lin Wooda fellow Trump-connected lawyer who recently started feuding with Powell.Attorneys for Defending the Republic claim that Wood was mistakenly listedas a board member and subsequently removed from registration filings.

Overstock.com founder Patrick Byrne, who briefly served as Defending the Republic’s CEO, says he had his own concerns about the group’s finances.

In a phone call with Wood that Wood surreptitiously recorded, Byrne claimed that Byrne, Michael Flynn, and Flynn’s brother Joseph Flynn quit the group in April after Powell refused to allow an audit of Defending the Republic’s accounts.

“I gave her a laundry list of things she had to clean up and told her she had to get an auditor,” Byrne told Wood on the call.

[snip]

While working as Defending the Republic’s CEO, Byrne said he became concerned that Powell was using the money for herself and may have potentially violated the law in the process. Byrne said he had determined that he faced no legal liability himself, but had been tempted to “drop a dime on” Powell and alert law enforcement.

“Sidney’s just running this as a scam,” Byrne told Wood.

The Daily Beast story on the criminal investigation into Powell then turns to some details laid out in the Dominion lawsuit against the Kraken lawyer. Powell had her Defending the Republic site up and running on November 23, before she incorporated it on December 1, 2020; and she advertised it falsely as a 501(c)(3), donations to which are tax deductible, rather than a 501(c)(4), which are not.

Defendant Defending the Republic, Inc. (“Powell’s fundraising website”) is the corporate form that was belatedly incorporated to solicit “millions of dollars” online at https://defendingtherepublic.org/, a website created shortly after the 2020 election. The separate corporate entity for Powell’s fundraising website was not created until December 1, 2020, after Powell had appeared on television to solicit donations to the website and after the website began representing to potential donors that it was a 501(c)(4) organization.8

18. On or before January 7, 2021, defendingtherepublic.org began representing to potential donors that it is a “501c3 (Status Pending) Non-Profit.”9

19. Unlike contributions to 501(c)(3) organizations, contributions to 501(c)(4) organizations are not tax deductible.

20. As of January 7, 2021, Defending the Republic, Inc. did not appear in a search of 501(c)(3) organizations or 501(c)(4) organizations on the IRS website.10

8 Sidney Powell talks about her allegations regarding the computerized voting systems on election night, Washington Examiner (Nov. 20, 2020), available at, https://www.washingtonexaminer.com/videos/sidney-powell-talks-about-her-allegationsregarding-the-computerized-voting-systems-on-election-night (last visited Jan. 4, 2021) (Ex. 5); Sidney Powell on Lou Dobbs Tonight on 11/30/20, YouTube (Nov. 30, 2020), available at, https://www.youtube.com/watch?v=4uMr-TRZNCw (last visited Jan. 4, 2021) (Ex. 6); Defending the Republic (Nov. 23, 2020), available at, https://web.archive.org/web/20201123034128/https://defendingtherepublic.org/ (Ex. 7).

9 Defending the Republic Contact Page, available at, https://defendingtherepublic.org/?page_id=15 (last visited Jan. 7, 2021).

10 Compare November 23, 2020 capture of https://defendingtherepublic.org/ (Ex. 7) with IRS Tax Exempt Organization Search, available at, https://apps.irs.gov/app/eos/allSearch (Ex. 8).

Daily Beast presents this as further evidence supporting claims from Byrne (who should not be trusted either) that this money was going to support Powell, not sowing conspiracy theories.

But I’m interested in it for a different reason: the way in which Trump named Powell as part of his team, then cut her off, and then pardoned her client and co-grifter, Mike Flynn. Only after that did she formally register the grift.

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 20, 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.

Powell

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).

But if Powell’s involvement made Pat Cipollone and/or Bill Barr — who presumably share the challenging task of helping Trump write pardons that don’t backfire — squeamish, it might explain the timing.

In other words, one of the things that may be of interest to this grand jury is why Sidney Powell started raising money before she had the legal vehicle to do so.

But that would also focus some attention on the fact that Sidney Powell started raising money to help sowing Trump’s conspiracy theories before Trump had pardoned her client (after she told Trump, in the summer, not to do so, yet, something she made clear in a hearing on September 29).

Sidney Powell started raising funds to support her efforts to undermine the election by November 23. On November 25, Trump gave her a thing of value — a pardon for her client. Only 5 days later did Powell make such fundraising legal.

It was always the case that Flynn’s pardon was wrapped up in propaganda to get elected. As I’ve noted, Trump used the alteration Bill Barr’s DOJ made to Peter Strzok’s notes, along with Powell’s false claims about it, to launch a prepared debate attack on Joe Biden.

But now the details of how Powell took overt steps to help Trump try to overthrow the election before Trump gave her something in value are before a grand jury.

Ten Things TV Lawyers Can Do Rather than Whinging about Merrick Garland

I continue to have little patience for the people–many of them paid to expound as lawyers on TV–who spend their time whinging that Merrick Garland is not moving quickly enough to hold Trump accountable rather than spending their time doing other more productive things to protect democracy.

I’m not aware that any of these people has tracked the January 6 investigation closely enough to name those one or two degrees away from the former President who have been charged or are clearly subjects of investigation. Similarly, I’ve seen none do reporting on the current status of Rudy Giuliani’s phones, which after a Special Master review will release a bunch of information to prosecutors to use under any warrant that DOJ might have. Indeed, many of the same people complain that Trump has not been accountable for his Ukraine extortion, without recognizing that any Ukraine charges for Trump would almost certainly have to go through that Rudy investigation. The approval for the search on Rudy’s phones may have been among the first decisions Lisa Monaco made as Deputy Attorney General.

It’s not so much that I’m certain DOJ would prosecute Trump for his serial attempts to overthrow democracy. There are tea leaves that DOJ could get there via a combination of working up from pawns who stormed the Capitol and down from rooks referred from the January 6 Commission. But I’m more exasperated with the claims that there were crimes wrapped with a bow (such as Trump’s extortion of Ukraine) that Garland’s DOJ could have charged on March 11, when he was sworn in. Even the Tom Barrack prosecution, a Mueller referral which reportedly was all set to indict in July 2020, took six months after Biden’s inauguration before it was indicted. The January 6 investigation started less than eleven months ago; eleven months into the Russian investigation, Coffee Boy George Papadopoulos had not yet been arrested and he was still months away from pleading guilty, on a simple false statements charge. We have no idea how much deliberate damage Billy Barr did to other ongoing investigations arising out of the Mueller investigation, but his public actions in the Mike Flynn, Roger Stone, and Paul Manafort cases suggests it is likely considerable. As for the January 6 investigation, as I’ve noted, it took nine months from the time FBI learned that a Capitol Police Officer had warned Jacob Hiles to delete his Facebook posts until the time DOJ indicted Michael Riley on two counts of obstruction. To imagine that DOJ would have already indicted Trump on anything he might be hypothetically under investigation at this point, particularly relating to January 6, is just denial about how long investigations take, even assuming the subject were not the former President with abundant access to free or RNC-provided legal representation.

It’s not that I don’t understand the gravity of the threat. I absolutely share the panic of those who believe that if something doesn’t happen by midterms, Republicans will take over the House and shut every last bit of accountability down. I agree the threat to democracy is grave.

But there is no rule that permits DOJ to skip investigative steps and due process simply because people have invested in DOJ as the last bulwark of democracy, or because the target is the greatest threat to democracy America has faced since the Civil War. DOJ investigations take time. And that is one reason why, if people are hoping some damning indictment will save our democracy, they’re investing their hopes in the wrong place, because an investigation into Trump simply will not be rolled out that quickly. Even if Trump were indicted by mid-terms, the Republicans have invested so much energy into delegitimizing rule of law it’s not clear it would sway Fox viewers or even independent voters.

I can’t tell you whether DOJ will indict Trump. I can tell you that if they do, it will not come in time to be the one thing that saves democracy.

And so, because I believe the panicked hand-wringing is about the least productive way to save democracy, I made a list. Here are ten way that TV lawyers could better spend their time than whinging that Merrick Garland hasn’t indicted Donald Trump yet:

  1. Counter the propaganda effort to treat the Jan 6 defendants as martyrs.
  2. Explain how brown and black defendants actually faced worse conditions in the DC jail — and have complained with no results for years.
  3. Explain how DOJ has lost cases against white terrorists (including on sedition charges) in the past.
  4. Describe what really goes into an indictment, what kind of evidence is required, how long it takes, and the approvals that are needed to help people understand what to really expect.
  5. Emphasize the prosecutions/charges/investigations that have or are occurring.
  6. Describe the damage done by Trump’s pardons.
  7. Describe the way that even loyal Trumpsters will be and have been harmed as he corrupts the rule of law.
  8. Focus on the efforts of Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson to undercut the investigation into Project Veritas’ suspected theft of Ashely Biden’s diary
  9. Explain how shoddy John Durham’s indictments are.
  10. Focus on the legal threats to democracy in the states.

Counter the propaganda effort to treat the Jan 6 defendants as martyrs

Whether or not Trump is ever charged with crimes related to January 6, the right wing noise machine has already kicked into gear trying to make it harder to prosecute other culprits for the January 6 riot. They’ve done so by falsely claiming:

  • The event was just a protest like the protests of Brett Kavanaugh’s confirmation, a claim DOJ already debunked, in part by showing that the Kavanaugh protestors who briefly halted his confirmation hearing had been legally admitted.
  • They’re being treated more harshly than those who used violence at BLM or Portland protests. DOJ has submitted multiple filings showing that such claims are based on cherry-picked data that ignore the state charges many of these defendants face, the better quality of evidence against Jan 6ers (in part because they bragged about their actions on social media), and the more heinous goal of the protest involved.
  • Large numbers of non-violent January 6 are being held in pretrial detention. In reality, the overwhelming majority of those detained were charged either in a militia conspiracy or for assaulting cops. The exceptions to this rule are generally people (like Brandon Fellows or Thomas Robertson) who violated pretrial release conditions. Additionally, a good number of those accused of assaulting cops have been released.
  • January 6 defendants are subjected to especially onerous treatment in jail. Many of the conditions they’re complaining about are COVID restrictions imposed on all detainees (though often more restrictive for those who, like a lot of January 6 defendants, choose not to get vaccinated). And in an inspection triggered by January 6 defendant Christopher Worrell’s complaints, the Marshals determined that the other part of the DC jail violated Federal standards, though the part in which the Jan 6ers are held did not.
  • January 6 defendants are just patriots trying to save the country. In reality, of course, these people were attempting to invalidate the legal votes of 81 million Americans.

Again, all these claims are easily shown to be false. But far too many people with a platform are allowing them to go unanswered, instead complaining that DOJ is not doing enough to defend the rule of law. This sustained effort to turn the Jan 6ers into martyrs will achieve real hold unless it is systematically countered.

Explain how brown and black defendants actually faced worse conditions in the DC jail — and have complained with no results for years

As noted above, after Proud Boy assault defendant Worrell complained about the treatment he received in DC jail, the Marshals conducted a snap inspection. They discovered that the older part of the DC jail, one housing other detainees but not Jan 6ers, did not meet Federal standards and have started transferring those detainees to a prison in Pennsylvania.

What has gotten far less attention is that problems with the DC jail have been known for decades. Even though the problems occasionally have gotten passing attention, in general it has been allowed to remain in the inadequate condition the Marshals purportedly discovered anew because a white person complained.

This is an example, then, when a white person has claimed himself to be the victim when, in fact, it’s yet another example of how brown and black people have less access to justice than similarly situated white people.

This development deserves focused attention, most of all because it is unjust. But such attention will flip the script that Jan 6ers are using in an attempt to get sympathy from those who don’t understand the truth.

Explain how DOJ has lost cases against white terrorists (including on sedition charges) in the past

There’s a lot of impatience that DOJ hasn’t simply charged January 6 defendants with sedition or insurrection.

Thus far, DOJ has chosen to use a less inflammatory and more flexible statute, obstruction, instead. Obstruction comes with enhancements — for threatening violence or especially obstructive behavior — that DOJ has used to tailor sentencing recommendations.

The wisdom of this approach will soon be tested, as several DC Judges weigh challenges to the application of the statute. If the application is overturned, it’s unclear whether DOJ will charge something else, like sedition, instead.

But DOJ probably chose their current approach for very good reason: because sedition is harder to prove than obstruction, and in the past, white terrorists have successfully beaten such charges. That’s true for a lot of reasons, partly because the absence of a material support statute makes association with a right wing terrorist group harder to prosecute.

A cable personality whom I have great respect for — NBC’s Barb McQuade — knows this as well as anyone, as she was US Attorney when a sedition conspiracy case against the Hutaree collapsed. In that case, DOJ had trouble proving that defendants wanted to overthrow the US government, the kind of evidentiary claim that DOJ will face in January 6 trials, even as currently charged.

There are real challenges to prosecuting white terrorism. Some education on this point would alleviate some of the impatience about the charging decisions DOJ has made.

Describe what really goes into an indictment, what kind of evidence is required, how long it takes, and the approvals that are needed to help people understand what to really expect

In the period between the time Steve Bannon was referred to DOJ for contempt and the time he was charged, a number of commentators used the delay to explain what it takes to get an indictment (against a high profile political figure) that stands a chance of work; one good example is this column by Joyce Vance.

There have been and are numerous examples of similar delays — the Tom Barrack indictment and the Rudy Giuliani Special Master review are two — that offer similar teaching opportunities about the process and protections involved in indicting someone.

Due process takes time. And yet in an era of instant gratification, few people understand why that’s the case. If we’re going to defend due process even while trying to defend our democracy, more education about what due process involves would temper some of the panic.

Emphasize the prosecutions/charges/investigations against Trump that have or are occurring

Given the din calling for prosecution of Donald Trump, you’d think none of his associates had been prosecuted. As Teri Kanefield noted the other day, it would be far better if, instead of saying Trump had suffered no consequences for his actions, there was some focus instead on where he had.

Trump’s business is currently under indictment with multiple investigations into it ongoing. His charity was shut down and fined for self-dealing. Trump’s Inauguration Committee will be civilly tried for paying above market rates to Trump Organization.

His Campaign Manager, his National Security Advisor, his Coffee Boy, his Rat-Fucker, and one of his personal lawyers were found guilty of lying to cover up what really happened with Russia in 2016. Several of these men (as well as a top RNC donor) also admitted they were secretly working for frenemy countries, including (in Mike Flynn’s case), while receiving classified briefings as Trump’s top national security aide. Trump’s biggest campaign donor, Tom Barrack, is being prosecuted for using the access he purchased to Trump to do the bidding of the Emirates. Another of Trump’s personal lawyers, Rudy Giuliani, is under investigation for the same crime, secretly working for another country while claiming to represent the interests of the President of the United States.

The sheer scale of this is especially breathtaking when you consider the projection the GOP has — successfully — focused on Hunter Biden for similar crimes. Even with years of effort and help from Russia, the GOP has not yet been able to prove that the President’s son’s influence peddling or potential tax accounting violated the law. Yet the GOP continues to focus on him relentlessly, even as the long list of Republicans who admit to the same crime continues to grow.

Trump has already proven to be the most corrupt president in some time, possibly ever. And instead of relentless messaging about that, Democrats are complaining about Merrick Garland.

Describe the damage done by Trump’s pardons

One reason why it’s hard to focus on all those criminal prosecutions is because Trump pardoned his way out of it. With the exception of Michael Cohen and Rick Gates, all the people who lied to cover up his Russian ties were pardoned, as was Steve Bannon and others who personally benefitted Trump.

Perhaps because these pardons happened in the wake of January 6, Trump avoided some of the shame he might otherwise have experienced for these pardons. But for several reasons, there should be renewed attention to them.

That’s true, for starters, because Trump’s pardons put the entire country at risk. By pardoning Eddie Gallagher for war crimes, for example, the US risks being treated as a human rights abuser by international bodies. The military faces additional disciplinary challenges. And those who cooperated against Gallagher effectively paid a real cost for cooperating against him only to see him escape consequences.

Paul Manafort’s pardon is another one that deserves renewed attention. That’s true not just because the pardon ended up halting the forfeiture that otherwise would have paid for the Mueller investigation, the cost of which right wingers claimed to care about. It’s true because Trump has basically dismissed the import of industrial scale tax cheating (even while right wingers insinuate that Hunter Biden might have made one error on his taxes). And finally, it’s true because Trump made an affirmative choice that a guy who facilitated Russia’s effort to undermine democracy in 2016, sharing information directly with someone deemed to be a Russian spy, should not be punished for his actions.

Finally, there should be renewed attention on what Trump got for his pardons. Did Steve Bannon and Mike Flynn pay central roles in January 6 in exchange for a pardon?

The US needs some means to prohibit such self-serving pardons like Trump pursued. But in the meantime, there needs to be some effort to shame Trump for relying on such bribes to stay out of prison himself.

Describe the way that even loyal Trumpsters will be and have been harmed as he corrupts the rule of law

Donald Trump pardoned Steve Bannon for defrauding a bunch of Trump loyalists. According to very recent reporting, Sidney Powell is under investigation (and being abandoned by her former allies) on suspicion she defrauded the thousands of Trump supporters who sent money to support her election conspiracy theories.

Meanwhile, the Republican Party continues to dump money into protecting Trump for his own crimes, even as Republicans lose races that could have benefitted from the money.

However, some RNC members and donors accused the party of running afoul of its own neutrality rules and misplacing its priorities. Some of these same officials who spoke to CNN also questioned why the party would foot the legal bills of a self-professed billionaire who was sitting on a $102 million war chest as recently as July and has previously used his various political committees to cover legal costs. According to FEC filings from August, the former President’s Make America Great Again committee has paid Jones Day more than $37,000 since the beginning of the year, while his Make America Great

Again super PAC has paid a combined $7.8 million to attorneys handling his lawsuits related to the 2020 election.

“This is not normal. Nothing about this is normal, especially since he’s not only a former President but a billionaire,” said a former top RNC official.

“What does any of this have to do with assisting Republicans in 2022 or preparing for the 2024 primary?” the official added.

Bill Palatucci, a national committeeman from New Jersey, said the fact that the RNC made the payments to Trump’s attorneys in October was particularly frustrating given his own plea to party officials that same month for additional resources as the New Jersey GOP sought to push Republican Jack Ciattarelli over the finish line in his challenge to incumbent Democratic Gov. Phil Murphy.

“We sure as heck could have used $121,000,” Palatucci told CNN.

Loyal Trumpsters are the victim of one after another grift, and that should be emphasized to make it clear who is really taking advantage of them.

And one after another former Trump loyalist get themselves in their own legal trouble. One of the messages Michael Cohen tried to share in his testimony before going to prison was that “if [other Republicans] follow blindly, like I have,” they will end up like he did, going to prison. Hundreds of January 6 defendants — some of whom imagined they, too, might benefit from Trump’s clemency (they still might, but they’ll have to wait) — are learning Cohen’s lesson the hard way.

Kleptocracy only benefits those at the top. And yet Trump’s supporters continue to aggressively pursue policies that will make the US more of a kleptocracy.

It’s fairly easy to demonstrate the damage degrading rule of law in exchange for a kleptocracy is. Except average people aren’t going to understand that unless high profile experts make that case.

Focus on the efforts of Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson to undercut the investigation into Project Veritas’ suspected theft of Ashely Biden’s diary

The Project Veritas scandal remains obscure and may never amount to charges against PV itself. Yet even as it has become clear that DOJ is investigating theft, key Republicans Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson are trying to shut down the investigation into that theft. Chuck Grassley’s efforts to do so are particularly noxious given that a long-term staffer of his, Barbara Ledeen, is a sometime co-conspirator of Project Veritas.

Republicans have undermined legitimate investigations into Trump, over and over, with little pushback from the press. This is an example where it would seem especially easy to inflict a political cost (especially since Grassley is up for re-election next year).

It would be far more useful, in defending rule of law, to impose political costs on undermining the investigations that commentators are demanding from DOJ than it is to complain (incorrectly) that such investigations aren’t happening. Merrick Garland (however imperfect) is not the enemy of rule of law here, Jim Jordan is.

Explain how shoddy John Durham’s indictments are

One of the complaints that David Rothkopf made in the column that kicked off my latest bout of impatience with the hand-wringing about Garland complained that Garland “is letting” Durham charge those who raise concerns about Trump’s ties to Russia, even while (Rothkopf assumes) ignoring Trump’s own efforts to obstruct the investigation.

We have seen that Garland is letting the highly politicized investigation of special prosecutor John Durham into the conduct of the Trump-Russia investigation continue (by continuing its funding). We therefore have the real prospect that those who sought to look into the Trump-Russia ties that both Mueller and Congressional investigations have demonstrated were real, unprecedented and dangerous might be prosecuted while those who actively sought the help of a foreign enemy to win an election will not be.

As I have noted, both of Durham’s indictments have been shoddy work, hanging charges on Twitter rants and other hearsay evidence.

And while there was some worthwhile criticism of the Michael Sussmann indictment (perhaps because he’s well-connected in DC), Democrats seem to take Durham’s word that Igor Danchenko — and not Christopher Steele or Russian disinformation — is responsible for the flaws in the dossier. Perhaps as a result, the legal experts who could point out how ridiculous it is to rely on a Twitter feed for a key factual claim have remained silent.

With such silence, it is not (just) Garland who “is letting [Duram’s] highly politicized investigation” continue unchecked, but also the experts whose criticism could do something to rein him in.

If the investigation is politicized — and it is — then Durham is a far more appropriate target than Garland.

Focus on the legal threats to democracy in the states

There has, admittedly, been deserved focus on the ways Republicans are chipping away at democratic representation in the states.

But that is where the battle for democracy is being fought. And in most of the states where Trump attempted to undermine the 2020 election, there are follow-on legal issues, whether it’s the investigation into the suspected voting machine theft in Colorado (including into a former campaign manager for Lauren Boebert), a seemingly related investigation in Ohio, or the effort to criminalize efforts to ease voting by seniors during the pandemic in Wisconsin.

Republicans are trying to criminalize democracy. That makes it all the more important to ensure that the call for rule of law remains laser focused on the criminal efforts to cheat to win, if for no other reason than to shame those involved.

The threat to democracy is undoubtedly grave. Republicans are deploying their considerable propaganda effort into legitimizing that attack on democracy (even while suggesting Biden has committed the kind of graft that Trump engaged in non-stop, classic projection).

In the face of that unrelenting effort, expert commentators who support democracy have a choice: They can defend the rule of law and shame those who have denigrated it, or they can spend their time complaining about the guy trying, however imperfectly, to defend it himself. The latter will make Garland less able to do his job, the former will help him do whatever he is willing and able to do.

Update: Added “suspected” to the PV bullet.

Hillary’s Candidate Briefing Was More Contentious than Mike Flynn’s

The DOJ IG Report on Carter Page revealed that FBI Agent Joe Pientka was selected as the FBI counterintelligence briefer for both Presidential candidates in 2016 in part to give him familiarity with Mike Flynn, shortly after the former DIA head became one subject in the UNSUB investigation into how the Trump campaign got advance notice of the Russian election operation.

The FBI selected SSA 1, the supervisor for the Crossfire Hurricane investigation, to provide the FBI security briefings for Trump and Clinton. 478 SSA 1 told us that one of the reasons for his selection was that ODNI had informed the FBI that one of the two Trump campaign advisors attending the August 17 briefing would be Flynn. He further stated that the briefing provided him “the opportunity to gain assessment and possibly have some level of familiarity with [Flynn]. So, should we get to the point where we need to do a subject interview … I would have that to fall back on.”

Since then, Republicans have never stopped wailing about how badly Flynn was treated in this briefing — never mentioning that Flynn was secretly working for Turkey when he sat in on this briefing, meaning FBI should have scrutinized him more closely than they did.

The CIA just released the latest chapter of its running history of Presidential briefing, the one covering Trump. (h/t Micah Zenko)

It provides accounts of the candidate briefings given to both Trump and Hillary. Its account of the first Trump one makes no specific mention of Pientka’s investigative role. Nor does it mention that at the time Flynn was asking “tactical” questions about the Middle East, he was on Turkey’s payroll.

Trump was accompanied by two advisors, New Jersey Governor Chris Christie and Lt. Gen. (ret.) Michael Flynn. The briefing team, led by Gistaro, included six of the substantive experts and a colleague from the ODNI Transition Team who was available to record and take follow-up action related to any questions that might arise and not be answered on the spot.

Gistaro led off with a substantive overview of the highest priority issues the IC was following, then turned to his colleagues to elaborate on developments in their areas of specialization. They briefed on terrorism, cyber security, counterterrorism, ISIS, the civil war in Syria, the security situation in Iraq, and the Iranian nuclear program. Gistaro recalled that he was careful to watch the clock and intervene as necessary so that the briefers each had an opportunity to say their piece but did not run over their allotted time. Nevertheless, the briefing went on for two and a half hours, longer than scheduled, and even then could not cover all the planned subjects. It was agreed that a second session was necessary.

In this first session, Trump was primarily a listener. He did ask some “big picture” questions, reflecting the fact that the material was new to him. Because several of the issues related to matters Flynn had dealt with in the military, he was the most active questioner. In Gistaro’s words, “He was on his home turf.” Most of Flynn’s questions were on the Middle East and were quite tactical. However, a few of his questions, especially on Iran, raised policy issues and had to be turned aside for referral, if he wished, to the national security advisor. Trump’s verdict on the session was a “thumbs-up” to IC officers as he departed. Christie later described the briefing as outstanding.

Here’s the FBI summary of that briefing, which focused primarily on questions about Russia, not Turkey, which might have been really useful once FBI discovered that Flynn was secretly on their payroll.

The history separates its account of the second briefing from claims Trump made about the briefing days later in a town hall by several pages.

Trump received a second preelection briefing roughly two weeks later, on 2 September, also at the FBI office in Manhattan. Again, Trump was accompanied by Christie and Flynn. This one-and-a-half-hour briefing rounded out the agreed list of topics, focusing on cyber security, Russia, China, and North Korea. On this occasion, Trump had numerous questions, some of which raised policy issues. Most, however, reflected his interest in financial and trade matters and in press reports about Russia’s reported interference in the US election campaign.

At the briefing of 2 September, Trump told the briefers that he valued the first session in August and their expertise. They were surprised when he assured them that “the nasty things he was saying” publicly about the Intelligence Community “don’t apply to you.” Afterward, Flynn complimented the briefers in remarks to the press.

[snip]

[O]fficials were anxious to see what issues related to intelligence would arise during the debates in 2016, including whether the candidates would make direct or indirect reference to information they had received in their preelection briefings. This anxiousness was reinforced before the formal candidate debates during a quasi debate on 7 September, when Trump and Clinton were questioned, separately, by NBC newsman Matt Lauer. On this occasion, Trump made reference to intelligence briefers’ “body language” in suggesting that they were “not happy” with policies of the Obama administration. These comments caused outrage in the following days among news commentators and former intelligence officers and prompted reporters to dig for information about what had transpired during Trump’s briefings.

Thus, unlike with some other instances, this account doesn’t make clear whether Trump was lying outright about his public comment. Notably, too, this account makes no mention of Flynn’s own role in lying about the briefing, which seems remarkable given the comment about his compliment to the briefers.

Given how the history soft-pedals these issues, it makes the description of the single Hillary briefing all the more jarring.

Clinton, although feeling under the weather and unavoidably delayed 20 minutes, joined the briefers in a small secure room (SCIF, in intelligence argot) at the FBI field office in White Plains, New York, on 27 August. Given all that Clinton was going through related to her handling of personal emails during the campaign, Gistaro regretted that the first question the security officer asked Clinton as she approached the room was whether she had any cell phones with her. The Secretary very professionally assured the questioner that she had left her cell phones at home

Hillary, of course, had been cleared of misconduct before that August 27 briefing, and was well-versed in the use of SCIFs. Yet she was treated by the security officer as a suspect.

Whereas Mike Flynn, who was quite literally working for a frenemy government during both of these classified briefings, and under investigation for suspect ties to Russia, was nevertheless freely served up answers to all the tactical questions he posed.

Steve Bannon Was Made to Testify, Truthfully, Once

Chuck Rosenberg has an interesting prosecutor’s analysis arguing — based on Steve Bannon’s indictment for fraud — that Bannon can never be made to testify truthfully, and so DOJ should be considering criminal contempt to send a message.

Recall, in August 2020, federal prosecutors in Manhattan indicted Bannon and others for “defraud[ing] hundreds of thousands of donors, capitalizing on their interest in funding a border wall to raise millions of dollars, under the false pretense that all of that money would be spent on construction,” according to a Justice Department press release. As a legal matter, that meant that a grand jury found probable cause to believe that several defendants – including Bannon – committed an egregious fraud. Before Bannon could be tried on those felony charges, former President Trump pardoned him.

It makes sense for Justice Department prosecutors to ask whether Bannon – accused of defrauding hundreds of thousands of donors – would tell the truth about the January 6 insurrection. And because Bannon has demonstrated his disdain for the work of the select committee, helped spread election misinformation and fanned the flames ahead of the insurrection, it seems that he might be an unwilling witness and an untruthful witness. In that case, pressuring Bannon to testify seems pointless.

The notion of letting someone off the subpoena hook because they are unwilling to testify, or because they are untruthful, or both, is distasteful. Accountability matters, before Congress and in the criminal justice system. We should expect people to come forward and tell Congress what they know, to help better understand the events leading up to that awful day and to ensure that something like that never happens again.

But some people are more interested in staging insurrections and discrediting valid elections than they are in speaking the truth. Some people might use a congressional forum not to help heal the nation, but to further sow division. In that case, pursuing civil contempt against Bannon to pressure him to testify makes little sense. But charging him with criminal contempt – punishing his defiance – sends the right message to him and others.

I’m in no position to question Rosenberg’s wisdom speaking as a prosecutor.

But the public record suggests that Bannon can be coerced to testify in damning ways. That’s what happened with the Mueller investigation, possibly assisted with Bannon’s staged testimony to the House Intelligence Committee.

Steve Bannon is known to have testified in various forms at least nine times (this post analyzes Bannon’s second Mueller interview, this post describes how he read from a White House script at his second HPSCI interview, this post describes how he inched closer to the truth, and this post includes links and analysis on the Mueller interviews liberated by BuzzFeed).

  1. January 16, 2018: Bannon did an interview with the House Intelligence Committee at which he refused to testify about the Transition and Administration and falsely claimed the campaign would have all relevant emails on Russian interference, which served to cover-up damning emails he had with Roger Stone.
  2. February 12, 2018: Bannon’s first Mueller interview largely covered obstruction; as with the HPSCI interview days later and the SSCI interview nine months later, Bannon hid his involvement in sanctions discussions during the transition.
  3. February 14, 2018: Bannon’s second Mueller interview finished obstruction topics and covered campaign related events and included some breathtaking lies about his role and knowledge of optimizing the hacked releases.
  4. February 15, 2018: After Devin Nunes shared the transcript of his first interview with the White House, Bannon did another HPSCI interview and largely read from a pre-arranged script from the White House designed to hide (among other things) his involvement in discussions about sanctions before Mike Flynn attempted to undermine Obama’s sanctions on Russia.
  5. October 26, 2018: After Mueller obtained communications proving a number of Bannon’s lies in the earlier interviews, he inched closer to the truth on obstruction and the WikiLeaks releases (including about a December 2016 meeting between Roger Stone and Trump that Trump wanted Bannon to attend as a witness), though still told incredible stories about his ties to Russia during the transition.
  6. November 19, 2018: In an appearance before the Senate Intelligence Committee, he told suspected lies that the committee referred for prosecution. [I’ve excerpted the parts of his testimony quoted in the SSCI Report here.]
  7. January 19, 2019: The content of a January 19, 2019 interview and grand jury appearance (one that took place after Mueller obtained Bannon’s HPSCI transcripts) remains entirely sealed, but he was forced to adhere to some of it at Roger Stone’s trial and Stone has recently accused Bannon of betrayal in this appearance.
  8. Unknown date (possibly July 26, 2019): A trial prep interview with DC’s AUSAs at which Bannon tried to back off his grand jury testimony.
  9. November 8, 2019: After prosecutors forced him to match his grand jury testimony, Bannon testified to speaking to Stone about the hacked emails both before and after he joined the Trump campaign.

Somehow, Mueller’s attorneys were able to get Bannon to be more truthful in that grand jury appearance, and then with it, they forced him to adhere to his more damning testimony at Roger Stone’s trial. But Stone’s continued attacks on Bannon suggest Bannon’s grand jury testimony extended beyond his trial testimony.

My guess is that Mueller’s team got Bannon to tell something approximating the truth on some topics via a range of tactics. First, Bannon originally lied about when he used his personal email on the campaign; after Mueller obtained some damning emails with Roger Stone from that email, Bannon conceded more of the truth. Additionally, Bannon clearly was playing different audiences for different purposes (for example, Republicans ensured that the entirety of the HPSCI investigation served to get Trump flunkies to tell false cover stories, and as noted, Bannon literally read from a White House issued script in his second appearance). But that likely served to alert prosecutors to what Bannon was trying to hide (and in the case of Bannon’s efforts to hide his knowledge of discussion of sanctions during the transition, Mueller actually got somewhat useful testimony from Flynn). Finally, it seems likely that prosecutors used earlier lies to coerce Bannon to tell the truth later in their investigation.

To be clear, the January 6 Select Committee doesn’t have the time to coerce some truths out of Steve Bannon, though it’s possible that DOJ could use any testimony he did offer as Mueller’s team seems to have done during their investigation, as a means to corner him about prior lies.

In any case, tough his testimony helped convict Roger Stone (after which Trump pardoned the rat-fucker), whatever truths Bannon told during the Mueller investigation were useless. The truthful bits remained sealed in an unreleased 302 and grand jury testimony, of no use to the public.

Still, the overriding lesson from Bannon’s book of laughter and forgetting is that his past lies and changing loyalties can be exploited, if you have the time to really work on him.

Michael Sussmann Attempts to Bill [of Particulars] Durham for His Sloppy Indictment Language

“Without prejudice to any other pretrial motions”

Michael Sussmann’s lawyers reserve their right to challenge the Durham indictment of Sussmann via other pretrial motions in their motion for a Bill of Particulars six different times. The motion does so three different times when noting that Durham used squishy language to paraphrase Sussmann’s alleged lie and couldn’t seem to decide whether he affirmatively lied or lied by omission.

Mr. Sussmann is entitled to understand which particular crime he must defend himself against. Without prejudice to any other pretrial motions Mr. Sussmann may bring on the matter, Mr. Sussmann is also entitled to additional particulars regarding the alleged omissions in the Indictment, including regarding the legal duty, if any, that required him to disclose the allegedly omitted information the Indictment suggests he should have disclosed.

[snip]

The Special Counsel should be required to clarify which crime he believes Mr. Sussmann committed and, to the extent the Special Counsel is proceeding on an omissions theory, he should be required to provide additional particulars (without prejudice to any motions Mr. Sussmann may make later).

[snip]

To the extent that the Special Counsel believes the Indictment is alleging a material omission under Section 1001(a)(1), and without prejudicing any other motions Mr. Sussmann may make on this issue, the Special Counsel should be required to clarify: (1) what specific information Mr. Sussmann failed to disclose; (2) to whom he failed to disclose it; (3) what legal duty required Mr. Sussmann to make the required disclosure; and (4) why the omission was material. See United States v. Safavian, 528 F.3d 957, 964 (D.C. Cir. 2008). [my emphasis]

It does so twice when asking that Durham address problems with his claims that Sussmann’s alleged lie was material.

The Indictment does make several allegations regarding materiality, and yet these allegations are vague, imprecise, and inconsistent. Suggesting the FBI might have asked more questions, taken other steps, or allocated resources differently, without specifying how or why it would have done so, leaves Mr. Sussmann having to guess about the meaning of the allegations that the Special Counsel has leveled against him. Accordingly, without prejudice to any pretrial motions Mr. Sussmann may make regarding materiality, Mr. Sussmann requests that the Court order the Special Counsel to provide more detail about why the purported false statement was material.

[snip]

Accordingly, without prejudice to any pretrial motions Mr. Sussmann may make regarding materiality, Mr. Sussmann requests that the Special Counsel be ordered to provide more detail about why the purported false statement was material. See Fed. R. Crim. P. 7(c)(1). [my emphasis]

And the motion does so again when pointing out that Durham hasn’t included specifics about another alleged lie, to just two of an unidentified number of people who attended a meeting at CIA, which Sussmann elsewhere describes as improper inclusion of 404(b) material in an indictment.

Without prejudicing any other motions Mr. Sussmann may make on this issue, the Special Counsel should first be required to clarify the false statement alleged to have been made to the two anonymous Agency-2 employees, and any other individuals present at the meeting, in February 2017. [my emphasis]

A list of things John Durham didn’t provide in his Michael Sussmann indictment

It’s only after making it clear that this is just his opening move before filing a motion to dismiss and other legal challenges to the indictment…

The Indictment is seriously vulnerable to challenge as a matter of law, and Mr. Sussmann will make relevant pretrial motions at the appropriate time. For now, Mr. Sussmann moves for a bill of particulars.

…that Sussmann lays out a list of things he claims he can’t figure out from Durham’s sloppy indictment:

For the foregoing reasons, this Motion for a Bill of Particulars should be granted, and the Court should order the Special Counsel to promptly:

A. Provide particulars regarding the specific false statement the Special Counsel alleges Mr. Sussmann made to Mr. Baker, namely:

1. The exact words of Mr. Sussmann’s alleged false statement;

2. The specific context in which the statement was made so that the meaning of the words is clear;

3. What part of the statement is allegedly false, i.e., whether the statement was false because Mr. Sussmann allegedly stated he was not “acting on behalf of any client in conveying particular allegations concerning a Presidential Candidate” as alleged in Paragraph 46, or if he falsely stated that he was not doing any “work” on behalf of a client more generally, as alleged in Paragraphs 4, 27(a), 28;

4. What is meant by “his work,” as referenced in Paragraph 4;

5. What is meant by “acting [or acted] on behalf of any client” as alleged in Paragraphs 27(a) and 30; and

6. What “this” refers to in the Assistant Director’s notes referenced in Paragraph 28.

B. Provide particulars regarding the statutory violation charged and, if applicable any alleged omissions, namely:

1. Which crime the Special Counsel believes Mr. Sussmann has committed; and

2. To the extent the Special Counsel alleges that Mr. Sussmann made a material omission in violation of 18 U.S.C. § 1001(a)(1), as suggested by Paragraph 30 of the Indictment –

a. the specific information Mr. Sussmann allegedly failed to disclose;

b. to whom he allegedly failed to make that disclosure;

c. what legal duty required Mr. Sussmann to disclose such information; and

d. why the allegedly omitted information was material.

C. Provide particulars regarding how the alleged false statement to Mr. Baker was material, specifically:

1. The “other reasons” Mr. Sussmann’s false statement was material, as alleged in Paragraphs 5 and 32;

2. What “his work” refers to as referenced in Paragraph 5, what about such work was unknown to the FBI, and how the “political nature of his work” was material to the FBI’s investigation;

3. How Mr. Sussmann’s alleged false statement was material to the FBI’s ability to “assess and uncover the origins of the relevant data and technical analysis,” as alleged in Paragraph 5, when Mr. Sussmann disclosed the origins of the data and technical analysis;

4. How Mr. Sussmann’s role as a paid advocate was materially “relevant” to the FBI’s investigation, as alleged in Paragraph 32, given that the information itself raised serious national security concerns and the FBI otherwise enables civilians to provide anonymous tips; and

5. What potential questions, additional steps, resource allocations, or more complete information the FBI would have gathered absent Mr. Sussmann’s false statement, as alleged in Paragraph 32.

D. Provide particulars regarding the alleged false statement Mr. Sussmann made to all Agency-2 employees and representatives, as alleged in Paragraphs 39 and 42, namely:

1. The exact words of Mr. Sussmann’s alleged false statement;

2. The specific context in which the statement was made so that the meaning of the words is clear;

3. What portion of the statement is allegedly false;

4. The identities of all individuals to whom the statement was made, including:

a. both Employee-1 and Employee-2 as referenced in Paragraph 42; and

b. anyone else present who also heard the false statement.

E. Provide particulars regarding the identities of the “representatives and agents of the Clinton Campaign” referenced in Paragraph 6.

Motions for a Bill of Particular rarely work

Make no mistake, most demands for a Bill of Particulars like this fail. The prosecution will argue that everything Sussmann needs is in the indictment and, if Judge Christopher Cooper agrees, Sussmann will just submit his motion to dismiss and other challenges like he’s clearly planning to do anyway.

That’s almost certainly what will happen for several of these requests, such as the names of Clinton Campaign personnel Durham accuses Sussmann of coordinating with on the Alfa Bank materials. But Sussmann likely doesn’t really need these names because he likely knows that Durham has nothing to substantiate this claim. If he did, Durham would have described such evidence in his speaking indictment. Sussmann may well know there are no names — of campaign personnel with whom he personally coordinated in advance of the James Baker meeting, at least — to give, because he didn’t coordinate with anyone from the campaign (Durham probably wants to substantiate this claim by charging Marc Elias in a conspiracy with Sussmann, but that all depends on being able to prove that anyone was lying about all this).

Similarly, Sussmann seems to know — and Durham may not — that there were more than just two people at a February 9, 2017 meeting at which Sussmann tried to bring new concerns to the attention of the government. This request seems to suggest there was at least one and possibly other witnesses who were at this meeting that Durham should know of who didn’t corroborate a claim that Sussmann lied, witnesses Durham didn’t mention in his indictment.

Likewise, Sussmann is unlikely to get very far asking for more details about Durham’s materiality claim, in particular, Durham’s repeated allegation that what he presented were just some, “among other reasons,” why Sussmann’s alleged lie was material. Prosecutors will argue that materiality is a matter for the jury to decide. But if Sussmann can force Durham to admit he has a theory of prosecution he hasn’t included in his indictment — that Durham believes that, rather than raising a real anomaly to the FBI’s attention because it was a real anomaly, lawyers who were paid by Hillary were trying to start a witch hunt against Donald Trump (never mind that the actual investigation that would prove at least three Trump officials, and probably Trump himself, got advance warning of a Russian attack on Hillary started three weeks before the meeting at which Sussmann is alleged to have lied) — then it will make it far easier for Sussmann to attack the indictment down the road.

What a false statement charge is supposed to look like

But Sussmann may succeed on his key complaint, that Durham has built a 27-page indictment around a false claim allegation without any means to clearly lay out what was the specific lie Sussmann told.

To understand what Sussmann means when he says,

It is simply not enough for the Indictment to make allegations generally about the substance of the purported false statement. Rather, the law requires that the Special Counsel identify the specific false statement made, i.e., the precise words that were allegedly used.

We can look at the false statements that Trump’s associates made to cover up the Trump campaign’s ties to Russia. For example, for each of six charged lies in the Roger Stone indictment, Mueller’s prosecutors quoted the precise questions he was asked as well as his response, then laid out specific evidence that each lie was a lie.

22. During his HPSCI testimony, STONE was asked, “So you have no emails to anyone concerning the allegations of hacked documents . . . or any discussions you have had with third parties about [the head of Organization 1]? You have no emails, no texts, no documents whatsoever, any kind of that nature?” STONE falsely and misleadingly answered, “That is correct. Not to my knowledge.”

23. In truth and in fact, STONE had sent and received numerous emails and text messages during the 2016 campaign in which he discussed Organization 1, its head, and its possession of hacked emails. At the time of his false testimony, STONE was still in possession of many of these emails and text messages, including:

a. The email from STONE to Person 1 on or about July 25, 2016 that read in part, “Get to [the head of Organization 1] [a]t Ecuadorian Embassy in London and get the pending [Organization 1] emails . . . they deal with Foundation, allegedly.”;

b. The email from STONE to Person 1 on or about July 31, 2016 that said an associate of Person 1 “should see [the head of Organization 1].”;

c. The email from Person 1 to STONE on or about August 2, 2016 that stated in part, “Word is friend in embassy plans 2 more dumps. One shortly after I’m back. 2nd in Oct. Impact planned to be very damaging.”;

d. Dozens of text messages and emails, beginning on or about August 19, 2016 and continuing through the election, between STONE and Person 2 in which they discussed Organization 1 and the head of Organization 1;

e. The email from STONE on or about October 3, 2016 to the supporter involved with the Trump Campaign, which read in part, “Spoke to my friend in London last night. The payload is still coming.”; and

f. The emails on or about October 4, 2016 between STONE and the high-ranking member of the Trump Campaign, including STONE’s statement that Organization 1 would release “a load every week going forward.”

For some of Stone’s charged lies, prosecutors even had communications with Jerome Corsi or Randy Credico or one of his lawyers showing Stone planned in advance to lie.

In George Papadopoulos’ statement of offense, for each of several lies outlined, prosecutors laid out specifically what he told the FBI and then laid out how Papadopoulos’ own communications records and his later testimony proved those statements to be false.

c. Defendant PAPADOPOULOS claimed he met a certain female Russian national before he joined the Campaign and that their communications consisted of emails such as, ‘”Hi , how are you?”‘ In truth and in fact, however, defendant PAPADOPOULOS met the female Russian national on or about March 24, 2016, after he had become an adviser to the Campaign; he believed that she had connections to Russian government officials; and he sought to use her Russian connections over a period of months in an effort to arrange a meeting between the Campaign and Russian government officials.

The most recent Mueller backup liberated by Jason Leopold reveals that, in addition to Papaodpoulos’ communications and later testimony that prove this particular claim to be an intentional lie, Papadopoulos also emailed the FBI on January 27 after consulting his records, laying out his claim that he met Olga before he joined the Trump campaign and never met her after that.

As promised, wanted to send you the name of the individual that Joseph Mifsud introduced me to over lunch in February or early March (while I was working with the London Center of International Law Practice and did not even know at that time whether or not I would even have moved back to the U.S. or especially worked on another presidential campaign).

He introduced her as his student, but was looking to impress her by meeting with me fresh off my Ben Carson gig. That is all I know. Never met her again.

I could go on for each of the false statements charged against Trump’s flunkies (and also show how, when Andrew Weissmann fell short of this kind of evidence, Amy Berman Jackson ruled against prosecutors on two of five claimed lies alleged in Paul Manafort’s plea breach determination).

Even Mike Flynn’s statement of offense, substantiating a charge that Trump loyalists have spent years wailing about, laid out clearly the two charged lies.

During the interview, FLYNN falsely stated that he did not ask Russia’s Ambassador to the United States (“Russian Ambassador”) to refrain from escalating the situation in response to sanctions that the United States had imposed against Russia. FLYNN also falsely stated that he did not remember a follow-up conversation in which the Russian Ambassador stated that Russia had chosen to moderate its response to those sanctions as a result of FL YNN’s request.

[snip]

During the January 24 voluntary interview, FLYNN made additional false statements about calls he made to Russia and several other countries regarding a resolution submitted by Egypt to the United Nations Security Council on December 21, 2016. Specifically FLYNN falsely stated that he only asked the countries’ positions on the vote, and that he did not request that any of the countries take any particular action on the resolution. FLYNN also falsely stated that the Russian Ambassador never described to him Russia’s response to FL YNN’s request regarding the resolution.

Not only did prosecutors describe what a transcript of these calls said, but they also had testimony from both Flynn himself and KT McFarland substantiating that these were lies. They even had a text that Flynn sent McFarland, before any of these intercepts had leaked, that Flynn later admitted he had deliberately written to cover up the content of his calls with Sergey Kislyak.

Then, after Sidney Powell spent six months trying to claim that one of Flynn’s lies wasn’t clearly laid out in his original 302, Judge Emmet Sullivan meticulously pointed out that the notes of both FBI interviewers matched every iteration of Flynn’s 302.

Having carefully reviewed the interviewing FBI agents’ notes, the draft interview reports, the final version of the FD302, and the statements contained therein, the Court agrees with the government that those documents are “consistent and clear that [Mr. Flynn] made multiple false statements to the [FBI] agents about his communications with the Russian Ambassador on January 24, 2017.” Gov’t’s Surreply, ECF No. 132 at 4-5. The Court rejects Mr. Flynn’s request for additional information regarding the drafting process for the FD-302s and a search for the “original 302,” see Def.’s Sur-Surreply, ECF No. 135 at 8- 10, because the interviewing FBI agents’ notes, the draft interview reports, the final version of the FD-302, and Mr. Flynn’s own admissions of his false statements make clear that Mr. Flynn made those false statements.

These are what false statements charges are supposed to look like. They’re backed by contemporaneous admissible evidence and laid out in specific detail in charging documents.

Trump and his supporters have wailed for years about these charges. Except prosecutors had evidence to substantiate them, the kind of evidence Durham makes no claim to have.

What few witnesses Durham has may not all agree on Sussmann’s alleged lies

Sussmann is more likely to succeed with his request to have his alleged false statement laid out in quote form and in context — and even if he doesn’t, he may back Durham into a corner he doesn’t want to be in — because Sussmann has presented several central questions about what the allegation really is. Is it that Sussmann didn’t offer up that he was working with (Sussmann claims) Rodney Joffe or  (Durham also alleges) Hillary on the Alfa Bank issues? Is it that Sussmann falsely claimed not to be billing the meeting with James Baker (evidence of which Durham has not presented)? Or does Durham have any shred of evidence that Baker affirmatively asked Sussmann, “are you sharing this on behalf of a client,” or even less supported in the indictment, “are you sharing this on behalf of Trump’s opponent, Hillary Clinton”? Similarly, Durham doesn’t explain whether when he claims that Sussmann lied about “this,” or “his work,” he means about the meetings that were actually billed to Hillary’s campaign internally at Perkins Coie (even if Hillary paid no money specifically tied to those meetings), or that the meeting with Baker was billed to one or another client (no evidence of which Durham presents). Those details will all be necessary for Durham to prove his case and for Sussmann to rebut it. And Sussmann needs to know whether he should focus his time on the absence of billing records substantiating that he met with Baker and then billed it to Hillary (something implicated by the meaning of “this” and “his work”), or whether he needs to focus on showing whether Priestap distinguished these allegations from the other claims about a Russian information operation undeniably targeting Hillary (something implicating whether this is supposed to be a crime of commission or omission).

It’s quite possible that Durham has presented these allegations using such squishy language because what little evidence he has doesn’t actually agree on the claimed lies. That is, it may be that Baker believes Sussmann simply didn’t bother explaining which client he was working for, but Bill Priestap, the next in line in a game of telephone, differently understood from Baker’s report that Sussmann affirmatively failed to provide Baker information that (Priestap’s own notes prove) the FBI already had anyway, that he was working with Hillary Clinton.

If, having had these weaknesses laid out by Sussmann’s attorneys, Durham can show that all his evidence actually substantiates the same false claim, he could get a superseding indictment making that clear. But once he does that, it may tie his hands at trial.

But it’s distinctly possible that Durham can’t prove that what little evidence he has backs the same interpretation of Sussmann’s alleged lie. That is, there may be a reason — on top of the fact that he has no contemporaneous transcript from a witness — that he avoided being more specific in his indictment, and that’s because it was the only way he could cobble together enough evidence to get a grand jury to indict.

So while much of the rest of this motion of a Bill of Particulars may serve only to call attention to gaping holes in the rest of the indictment, the request for specifics about what, specifically, Sussmann is alleged to have said when he lied may succeed. And even if it doesn’t, it may force Durham to commit to an interpretation that not all of his thin evidence would ultimately support.

John Durham Is the Jim Jordan of Ken Starrs

Last Thursday, John Durham indicted Michael Sussmann, the Perkins Coie lawyer who advised the DNC, DCCC, and Clinton Campaign about cybersecurity in 2016 as they struggled to deal with a hostile nation-state attack aiming — in part — to help elect their opponent. The indictment accuses Sussmann of lying to FBI General Counsel James Baker at a September 19, 2016 meeting at which Sussmann shared information about the curious DNS traffic between a server used by a Trump marketing contractor and Alfa Bank.

emptywheel’s long history of debunking the Alfa Bank story

Before I unpack the indictment, let me remind readers that when this story first publicly broke, I explained why the Spectrum Health (aka my boob hospital at the time) aspect of the allegations made no sense, criticized Hillary’s team (including Jake Sullivan) for jumping on the story, and echoed Rob Graham’s criticism of the researchers who accessed DNS data to conduct this research.

In addition to his technical debunking, Robert Graham made an equally important point: researchers shouldn’t be accessing this data for ad-lib investigations into presidential candidates, and it’s not even clear who would have access to it all except the NSA.

The big story isn’t the conspiracy theory about Trump, but that these malware researchers exploited their privileged access for some purpose other than malware research.

[snip]

In short, of all the sources of “DNS malware information” I’ve heard about, none of it would deliver the information these researchers claim to have (well, except the NSA with their transatlantic undersea taps, of course).

[snip]

[B]efore Tea Leaves started pushing this story to the press, the FBI had been investigating it for two months.

Which, to my mind, raises even more questions about the anonymous researchers’ identities, because (small world and all) the FBI likely knows them, in which case they may have known that the FBI wasn’t jumping on the story by the time they started pitching it.

Or the FBI doesn’t know them, which raises still more questions about the provenance of these files.

Ah well, if President Hillary starts a war with Russia based off Iraq-War style dodgy documents, at least I’ll have the satisfaction of knowing my boob clinic is right there on the front lines.

In March 2017, I observed that the weird Alfa Bank entry in the Steele dossier suggested a feedback loop between the Alfa Bank server story and the dossier project. Then days after that, I noted all the ways that the packaging of this story made it more suspect.

In 2018, I complained about the way Dexter Filkins had strained to sustain the story, while noting that people ought to look more closely at why Alfa Bank might be the focus here; the Mueller Report since confirmed that within weeks after the story broke publicly, Vladimir Putin pushed Oligarchs from Alfa Bank to fight harder against western sanctions, something that the alleged source for the Alfa Bank entry in the dossier seemed to parrot.

In short, I not only have consistently criticized this story, but done so in ways that anticipate the most justifiable parts of the indictment. It’s only the last bit — how the Alfa narrative echoes Putin’s interests — that this indictment doesn’t incorporate.

I guess with five more years Durham might get there…

So in unpacking this indictment, I’m in no way defending the Alfa Bank – Trump Tower story. It was a sketchy allegation, the packaging of it was suspect, and those who conducted the research arguably violated ethical guidelines.

I got to where Durham got in this indictment years and years ago. But that doesn’t make it a crime.

John Durham’s “narrative”

Moreover, that doesn’t mean Durham should tell as strained a “narrative” as those who packaged up this story. Central to Durham’s indictment is an assumption that if a victim of a crime who believed at the time that the crime had a — since confirmed — political goal reports suspicious, potentially related details, the victim must be motivated exclusively out of self-interest, not good citizenship or a concern about national security. That is, this entire indictment assumes that when Russia attacks a Presidential candidate, that is not itself a national security concern, but instead nothing more than a political dispute.

Effectively, John Durham has made it a crime for someone victimized by a Russian influence operation to try to chase down Russian influence operations.

Tech Executive-1 and Clinton both had retained Perkins Coie long before this, with Sussmann getting involved specifically for cybersecurity help in the wake of the Russian hack

The indictment, perhaps deliberately, obscures the timeline and facts leading up to the charged lie. But here’s the story it tells. First, all of Durham’s subjects established contracts with each other, even though all of those contracts (including Fusion GPS’) had scopes far larger than oppo research on Trump’s relationship with Russia.

  • In February 2015, Tech Executive-1 (whom I’ll call TE-1 for brevity) retained Sussmann to deal with a US government agency [Durham does not say whether this matter was resolved or continued in this period in 2016, which is central to the question of what kind of client of Sussmann’s TE-1 was].
  • In April 2015, the Clinton Campaign retained Perkins Coie and made Marc Elias the Campaign’s General Counsel.
  • In April 2016, the victim of a Russian government election-related attack, the DNC, retained Sussmann to help it deal with aftermath, which included meeting with the FBI. As the indictment describes this was not just legal support but cybersecurity.
  • [After a Republican retained them first and on a date that Durham doesn’t reveal,] Perkins Coie retained Fusion GPS to conduct oppo research on Trump pertaining to Russia [and other topics, though Durham doesn’t mention those other topics].

Durham only mentions in passing, later, that the researchers involved here similarly knew each other through relationships that focused on cybersecurity and predated these events.

Via means and on specific dates that Durham doesn’t always provide, Tea Leaves, TE-1, Sussmann, and two Researchers got the DNS data showing an anomaly

There are two sets of research here: that done in a university setting and that done at companies associated with TE-1, though TE-1 is the pivot to both. As depicted, Durham suggests the former are more legally exposed than the latter.

  • By some time in late July 2016 [the exact date Durham doesn’t provide], a guy who always operated under the pseudonym Tea Leaves but whom Durham heavy-handedly calls “Originator-1” instead had assembled “purported DNS data” reflecting apparent DNS lookups between Alfa Bank and “mail1.trump-email.com” that spanned from May 4 through July 29.
  • Tea Leaves was a business associate of TE-1 and via means Durham doesn’t describe, the data Tea Leaves gathered was shared with TE-1.
  • “In or about July 2016” [at a time that, because of the laws of physics, must post-date the late July date when Tea Leaves collected this data and the date when he shared them with TE-1], TE-1 alerted Sussmann to the data.
  • On July 31, Sussmann billed the Clinton Campaign for 24 minutes with the billing description, “communications with Marc Elias regarding server issue.”
  • At some point [Durham doesn’t provide even a month, but by context it was at least as early as July 2016 and could have been far, far earlier], TE-1’s company provided a university with data for a government contract ultimately not contracted until November 2016, including the DNS data from an Executive Branch office of the US government that Tech Exec-1’s company had gotten as a sub-contractor to the US government. [This date of this is critical because it would be the trigger for a Conspiracy to Defraud charge, if Durham goes there.]
  • In or about August 2016 [Durham doesn’t provide a date], a federal government was finalizing but had not yet signed a cybersecurity research contract with [presumably] that same university to receive and analyze large quantities of public and non-public data “to identify the perpetrators of malicious cyber-attacks and protect U.S. national security.” Tea Leaves was the founder of a company that the university was considering [Durham doesn’t provide the date of consideration, but generally these things precede finalization] for a subcontract with the government contract.

TE-1 directs employees of companies under his control to research this issue

Though Durham’s indictment is somewhat vague, at least one piece of research from companies associated with TE-1 was shared with the FBI; it appears that other threads of research were not shared.

  • In or about early August 2016 [the dates of which Durham doesn’t provide], TE-1 directed personnel at two companies in which he had an ownership interest to search for what the indictment calls, “any Internet data reflecting potential connections or communications between Trump or his associates and Russia,” which Durham describes to be “derogatory information on Trump.” In connection with this tasking, TE-1 later stated [on a date Durham doesn’t describe] he was working with someone who had close ties to the Democratic Party.
  • At some point, an individual tasked with this work described being “uncomfortable regarding this tasking,” [Durham doesn’t describe when he learned this or whether there is any contemporaneous proof].
  • At some point [Durham doesn’t describe the date], TE-1 provided one of his companies with personal (but publicly available) data from six Trump associates and one purported US-based lobbyist for Alfa Bank and directed these individuals should be the focus of that company’s data queries and analysis [Durham doesn’t say whether these six associates overlapped with the people Fusion had been tasked to research, nor does he allege they got included in the eventual reports to the FBI; both details are needed to assess his case].
  • On August 12, 2016, Sussmann, Elias, and TE-1 met in Elias’ office; Sussmann billed his time to the Clinton Campaign describing, “confidential meetings with Elias, others.”
  • On August 15, employees at one of the companies queried their holdings against a set of addresses that referred to Trump and/or Alfa Bank.
  • During the same time period [Durham doesn’t specify when], employees at Internet Company-3 drafted a written paper that included technical observations that Sussmann would later convey to the FBI.

Around the time this started, Sussmann met Fusion and a bunch of meetings happened that were billed to Hillary

  • On July 29, Sussmann and Marc Elias met with Fusion GPS [Durham doesn’t affirmatively claim this data pertained to the server issue], and Sussmann billed his time to the Hillary Campaign under “General Political Advice,” a different description than all the other Fusion meetings that Durham more credibly claims relate to the Alfa Bank allegation.
  • Around “the same [August] time period” [Durham doesn’t provide the date], Sussmann, Elias, and Fusion personnel began exchanging emails with the subject line, “Connecting you all by email;” [Durham doesn’t say who initiated the email, but it suggests that before this period, Sussmann and Fusion did not have direct contact].
  • On August 17, 2016, Sussmann, Elias, and TE-1 conducted an additional conference call, for which Sussmann billed his time to the Clinton campaign, noting “telephone conference with” TE-1 and Elias.
  • On August 19, 2016, Sussman and Elias had another in-person meeting that Sussmann described as a meeting with TE-1, which was billed as a “confidential meeting with Elias, others.”

Researchers 1 and 2 and Tea Leaves worked with TE-1 on a “storyline” and “narrative” with varying degrees of skepticism expressed

This is the stuff Durham–with some justification–will and has used to taint all this as a political project.

  • On July 29, Researcher-2 emailed Researcher-1 the data compiled by Tea Leaves [Durham provides no evidence that TE-1 was involved in this exchange].
  • On August 19, Researcher-1 queried Internet data maintained by TE-1’s company [it is not clear but this suggests it was not the data turned over to the University] for the aforementioned mail1.trump-email.com domain. Researcher-1 then emailed TE-1 with the list of domains that had communicated with it, saying the list, “does not make much sense with the storyline you have.”
  • On August 20, Tea Leaves emailed Tech Exec-1, Researcher-1, and Researcher 2, stating that, “even if we found what [TE-1] asks us to find in DNS, we don’t see the money flow, and we don’t see the content of some message saying, ‘send money here’.” Tea Leaves then explained that one could fill out sales forms and cause them, “to appear to communicate with each other in DNS.” Tea Leaves then noted that “it’s just not the case that you can rest assured that Hillary’s opposition research and whatever professional gov and investigative journalists are also digging come up with the same things.”
  • On August 20, TE-1 clarified that the task was “indeed broad,” and that,
    • Being able to provide evidence of *anything* that shows an attempt to behave badly in relation to this [Durham doesn’t describe what the antecedent of “this” is], the VIPs would be happy. They’re looking for a true story that could be used as the basis for closer examination.
  • Still on August 20, seemingly distinguishing between that task and the Alfa Bank allegations, TE-1 said, “the prior hypothesis was all that they needed: mailserver dedicated or related to trump … and with traffic almost exclusively with Alfa was sufficient to do the job. … Trump has claimed he and his company have had NO dealings with .ru other than the failed Casino, and the Miss universe pageant. He claims absolutely NO interaction with any financial institutions. So any potential like that would be jackpot.” [Ellipses original]
  • On August 21, TE-1 emailed the recipients [but not, apparently, Sussmann], urging them to do further research on Trump which would “given the base of a very useful narrative.” He added that he didn’t believe the trump-email.com domain was a secret communications channel but a “red herring,” because the host was “a legitimate valid company,” stating they could “ignore it, together with others that seem to be part of the marketing world.”
  • On August 22, Researcher-1 raised doubts about whether, using only the tools they were currently using, they could prove their hypothesis. Among the concerns raised is that they couldn’t prove that “this is not spoofed [] traffic.” [brackets original; bolded in the original]
  • Later in or about August 2016 [on dates Durham doesn’t provide], TE-1 exchanged emails with personnel from Fusion.

Sussmann drafts a white paper and (via unstated means) TE-1 gets Researchers 1 and 2 and Tea Leaves to review it

  • Between September 5 and September 14, Sussmann drafted a white paper, generally billing his time to the Clinton Campaign, but on September 14, billing time to both Clinton and TE-1.
  • On September 14, TE-1 [not Sussmann] sent the white paper he had drafted to Researcher 1, Researcher 2, and Tea Leaves to ask them if a review of less than an hour would show this to be plausible. Though some of them noted how limited the standard of “plausibility” was, they agreed it was plausible, and Researcher 2 said [Durham does not quote the specific language here] “the paper should be shared with government officials.”

Sussmann shares this and other information with James Baker and–Durham claims–affirmatively lies about whether he is representing someone

  • Both before the September 19 meeting and after it (notably in a September 12 meeting involving the NYTimes, in which Marc Elias also participated), Sussmann spoke to the press about what Durham credibly suggests was the Alfa Bank white paper. Sussmann billed this to Clinton.
  • On September 19, Sussmann met with Baker and provided him with three white papers and a thumb drive with data. Durham doesn’t actually make clear where all three of these came from.
  • On September 19, Sussmann met with James Baker. Durham claims that “he stated falsely that he was not acting on behalf of any client” [which Durham cannot quote because there’s no contemporaneous record], that he had been approached by multiple cyber experts [Durham doesn’t say whether the three he named were Researcher 1, Researcher 2, and Tea Leaves or other people, as seems to be the case], three white papers [which I may return to because this is another problematic spot in his story], and some of the data, which Durham calls “purported.”
  • Immediately after the September 19 meeting, Baker met with Bill Priestap whose notes read:
    • Michael Sussman[n] — Atty: Perkins Coie — said not doing this for any client
      • Represents DNC, Clinton Foundation, etc. []
      • Been approached by Prominent Cyber People (Academic or Corp. POCs), People like: [three names redacted]
  • Durham substantiates a claim that Sussmann billed the meeting itself to Hillary to a description, “work and communications regarding confidential project,” that does not, at least as he quotes it, mention a meeting with the FBI General Counsel at all.

Some of this — the reference to crafting a narrative and a storyline — is damning and validates my discomfort with the political nature of this project five years ago. Other parts of this emphasize the researchers’ insistence on truth from at least parts of this effort. Still others (such as the recognition that this could be spoofed data) will almost certainly end up being presented as exculpatory if this ever goes to trial, but Durham seems to think is inculpatory.

In one place, Durham describes “aforementioned views,” plural, that the Alfa Bank data was a “red herring,” something only attributed to TE-1 in the indictment, seemingly presenting TE-1’s stated view on August 21 to everyone involved, including Sussmann, who does not appear to have been on that email chain. He claims Sussmann, Researcher 1 and 2, TE-1, and Tea Leaves drafted the white paper(s) shared with the FBI, but all he substantiates is a less than one hour review by everyone but Sussmann. He leaves out a great deal of detail about what Jean Camp and someone using the moniker Tea Leaves did and said, publicly, after the FBI meeting, which may totally undercut Durham’s “narrative.”

But other parts, even of the story that Durham tells, are problematic for his narrative. First, there is not (yet) the least hint that Tea Leaves — whom he calls “The Originator” — fabricated this data (or even packaged it up misleadingly, though I think there is evidence he did). Nor is there the least hint that TE-1 asked Tea Leaves to come up with the data. That part of the story is fundamentally important and Durham simply ignores it with that legally unnecessary — particularly given that Durham clearly labels this person as Tea Leaves — moniker “Originator,” giving the anomalous forensic data a kind of virgin birth. And while two of the four tech experts described herein (there appear to be at least three others not described) expressed some doubt about the meaning of it, none of them seems to have doubted that there was an anomaly in the Trump marketing server and Alfa Bank.

Based on this story, though, Durham insinuates Sussmann fed information that he, Sussmann, knew to be bullshit to the FBI on behalf of both Hillary and TE-1, and in so doing affirmatively hid that the bullshit “storyline” was designed to help Hillary which (he claims) would have led the FBI to treat it differently.

In spite of a lot of thus far extraneous details, that’s the only crime he has alleged.

The existing case is remarkably weak

As a number of people have noted, as charged this is a remarkably weak case. Ben Wittes dedicates a section of his post on this indictment to those weaknesses. They are, succinctly:

  • The evidence regarding the core allegation in the indictment pits Sussmann’s word against James Baker’s; there are no other witnesses.
  • After the meeting with Baker, Sussmann repeatedly admitted under oath he was representing a client, a detail which could be exculpatory or inculpatory.
  • Baker testified to Congress he did believe Sussmann was representing a client (meaning Baker will be used to discredit Baker, the one witness to Sussmann’s alleged lie).
  • Even in Bill Priestap’s nearly-contemporaneous notes which are the only documentation of Sussmann’s comments, he describes Sussmann as Hillary’s lawyer (including for the Clinton Foundation, which may be incorrect), so FBI knew full well that Sussmann represented Hillary.
  • Priestap’s notes may be inadmissible hearsay at trial.

The NYT article predicting these charges also claim Durham is conflating Sussmann’s tracking of his hourly work with the actual money charged to the Hillary campaign.

Moreover, internal billing records Mr. Durham is said to have obtained from Perkins Coie are said to show that when Mr. Sussmann logged certain hours as working on the Alfa Bank matter — though not the meeting with Mr. Baker — he billed the time to Mrs. Clinton’s 2016 campaign.

[snip]

They are also said to have argued that the billing records are misleading because Mr. Sussmann was not charging his client for work on the Alfa Bank matter, but needed to show internally that he was working on something. He was discussing the matter with Mr. Elias and the campaign paid a flat monthly retainer to the firm, so Mr. Sussmann’s hours did not result in any additional charges, they said.

There are a number of other ways that Sussmann’s presumably well-funded defense will combat these charges. But as to the allegation buried amid all these details, Durham’s evidence is weak.

Durham’s materiality broadcasts his bid for a ConFraudUS conspiracy

But that’s not what this is about.

Durham is not just alleging that Sussmann was hiding that he was working for Hillary. He is also claiming that Sussmann was at the same time representing TE-1 at that meeting. In the indictment, I think that’s based on a single data point — that Sussmann billed TE-1’s company for “communications regarding confidential project” on September 14. I’m not sure whether that makes the false statements case still weaker or stronger.

But it’s a key part of where Durham obviously wants to go.

Not only are many of the details Durham included in the indictment irrelevant to the false statements charge, but if they were crimes by themselves, they would have been tolled under any five year statute of limitations already. There are only two conceivable purposes for including them in this indictment. First, to give the Alfa Bank Oligarchs more cause to sue more people, effectively a US prosecutor assisting Russians in cynical lawfare. Durham’s investigation incorporates stuff the Oligarchs have already liberated, so is itself derivative of Russian lawfare. Effectively, that means that a prosecutor working for Bill Barr’s DOJ pursued a prosecution that was complementary to an intelligence-related effort by foreigners who pay Kirkland & Ellis a lot of money. Sussmann will have real cause to question whether Brian Benczkowski (who recused from matters involving this aspect of Alfa Bank) or any other Kirkland & Ellis lawyer had a role in this strand of the investigation.

Then there’s the most obvious way to extend the statute of limitations on the events that happened in July and August 2016: to include them in a conspiracy that continued after those dates (and indeed, Durham refers to Elias, Researcher 1 and 2, and Tea Leaves in the way DOJ often uses to refer to charged or uncharged co-conspirators).

Given the extended statement Durham includes to explain why Sussmann’s alleged lie is material under the charged statute, that’s undoubtedly where Durham wants to head with his investigation.

SUSSMANN’s lie was material because, among other reasons, SUSSMANN’s false statement misled the FBI General Counsel and other FBI personnel concerning the political nature of his work and deprived the FBI of information that might have permitted it more fully to assess and uncover the origins of the relevant data and technical analysis, including the identities and motivations of SUSSMANN’s clients.

Had the FBI uncovered the origins of the relevant data and analysis and as alleged below, it might have learned, among other things that (i) in compiling and analyzing the Russian Bank-1 allegations, Tech Executive-1 had exploited his access to non-public data at multiple Internet companies to conduct opposition research concerning Trump; (ii) in furtherance of these efforts, Tech Executive-1 had enlisted, and was continuing to enlist, the assistance of researchers at a U.S.-based university who were receiving and analyzing Internet data in connection with a pending federal government cybersecurity research contract; and (iii) SUSSMAN, Tech Executive-1, and Law Firm-1 had coordinated, and were continuing to coordinate, with representatives and agents of the Clinton Campaign with regard to the data and written materials that Sussmann gave to the FBI and the media.

Don’t get me wrong. This will clearly pass the incredibly low standard for materiality under existing precedent. Though Sussmann will surely make much of citing the invented standard Billy Barr used to try to dismiss the Mike Flynn prosecution, which first requires the investigation in question to be legitimate.

The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue. Moreover, we not believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt.

[snip]

In any event, there was no question at the FBI as to the content of the calls; the FBI had in its possession word-for-word transcripts of the actual communications between Mr. Flynn and Mr. Kislyak. See Ex. 5 at 3; Ex. 13. at 3. With no dispute as to what was in fact said, there was no factual basis for the predication of a new counterintelligence investigation. Nor was there a justification or need to interview Mr. Flynn as to his own personal recollections of what had been said. Whatever gaps in his memory Mr. Flynn might or might not reveal upon an interview regurgitating the content of those calls would not have implicated legitimate counterintelligence interests or somehow exposed Mr. Flynn as beholden to Russia.

If DOJ had no interest in figuring out whether Trump was undermining sanctions to pay off a quid pro quo, they sure as hell have no interest in launching a 3-year investigation to figure out the tie between these allegations and Hillary that was obvious to Priestap in real time, particularly given how quickly the FBI dismissed the allegations in 2017 and given that the allegations are not publicly known to have had a tie to their larger Russian investigation.

Still, while Durham will have no trouble proving Sussmann’s claimed lie meets the standards of materiality, Durham’s claims for it are ridiculous.

It’s a load of horseshit that FBI would have treated this tip any differently — which amounted to investigating it, alerting the press there was nothing to it, then dismissing it pretty quickly, as far as is public — if they knew that Sussmann was formally being paid at that meeting by Hillary, if he in fact was. Priestap knew Sussmann was representing Hillary and said as much in the best evidence Durham has! In fact, FBI’s warning to the NYT about this story in October could be presented as evidence that FBI already incorporated an assumption this came from Hillary.

Likewise, it’s a load of horseshit that FBI couldn’t know that the Bureau needed to ID the researchers behind the project. If I was able to figure that was important out before the 2016 election, and I did, then the experts at the FBI surely figured that out.

But what Durham’s materiality statement emphasizes — what Durham claims Sussmann intended to hide with his claimed lie — is that, “researchers at a U.S.-based university … were receiving and analyzing Internet data in connection with a pending federal government cybersecurity research contract.” That’s the significance of ¶¶23a through e of the indictment, which describe how TE-1 provided data that included some from an Executive Branch office of the U.S. government, which his company had obtained “as a sub-contractor in a sensitive relationship between the U.S. government and another company,” to the university at which Researcher 1 and 2 were working, and both with his university researcher allies and employees of his own company, he tasked people to research Donald Trump. Durham is suggesting that subset of data taints the whole pool that TE-1 shared, making it a Federal interest.

It’s not just that Durham is working on a theory that Sussmann deliberately dealt garbage to the FBI (which GOP sources also did on the Clinton Foundation) while trying to hide that fact. It’s that data originally sourced from the government was used in doing that research.

It’s actually the kind of argument that DOJ prosecutors typically succeed with. Except it’s all premised on proving that Sussman was trying to hide all this in his meeting with Baker. Even if the evidence surrounding the meeting weren’t so flimsy, this is another degree of motive that Durham is straining mightily to make.

Durham needs Sussmann to have lied, because a deliberate attempt to obscure the rest is necessary for his “storyline.” His evidence that Sussmann lied — much less, deliberately — is shoddy. But if he can’t get that, then his hopes for a larger “narrative” collapse.

The parts of the story Durham doesn’t tell

That becomes more clear when you consider some details that Durham doesn’t include in his indictment.

Two details that were public to everyone involved make it clear why Durham’s silence about the exact dates in July when this operation started is so corrupt.

On July 22, WikiLeaks published emails that were at the time believed and since have been confirmed by the FBI to have been hacked by Russia. Durham hides the dates in July when many of these events transpired, but everything he includes suggests this activity post-dated the time when WikiLeaks published stolen emails and the entire security community in the US, surely including every researcher mentioned in this story, coalesced on the belief that Russia was the culprit. Durham refers to Russia’s attack on Hillary (and therefore on the US) inaccurately as, “the hacking of its email servers by the Russian government” and “a hack” (the hack went well beyond just email and continued through the period of Sussmann’s meeting with Baker). But, amazingly, Durham’s “narrative” doesn’t account for the fact that Hillary was targeted not just with an attack but with an information operation. And the timeline he presents here affirmatively hides that these events took place after the entire security community understood that there was an information operation aspect to the attack.

Then, on July 27, Trump gave a press conference in Florida where he said numerous things that make all the actions of Sussmann and others justifiable on national security grounds. First, Trump raised doubts about the Russian attribution of the DNC hack that, by that point in July, was the consensus among national security experts, undoubtedly including every tech expert mentioned in this indictment.

I watched this guy Mook and he talked about we think it was Russia that hacked. Now, first of all was what was said on those that’s so bad but he said I watched it. I think he was live. But he said we think it was Russia that hacked.

And then he said — and this is in person sitting and watching television as I’ve been doing — and then he said could be Trump, yeah, yeah. Trump, Trump, oh yeah, Trump. He reminded me of John Lovitz for “Saturday Night Live” in the liar (ph) where he’d go yes, yes, I went to Harvard, Harvard, yes, yes. This is the guy, you have to see it. Yes, it could be Trump, yes, yes. So it is so farfetched. It’s so ridiculous. Honestly I wish I had that power. I’d love to have that power but Russia has no respect for our country.

And that’s why — if it is Russia, nobody even knows this, it’s probably China, or it could be somebody sitting in his bed. But it shows how weak we are, it shows how disrespected we are. Total — assuming it’s Russia or China or one of the major countries and competitors, it’s a total sign of disrespect for our country. Putin and the leaders throughout the world have no respect for our country anymore and they certainly have no respect for our leader. So I know nothing about it.

Trump then offered his bullshit explanation for why he wouldn’t release his tax returns, framing it in terms of whether he had business ties to Russia.

TRUMP: Because it’s under order. And I’ll release them when the audits completed. Nobody would release when it’s under — I’ve had audits for 15 or 16 years. Every year I have a routine audit. I’m under audit, when the audits complete I’ll release them. But zero, I mean I will tell you right now, zero, I have nothing to do with Russia, yes?

Trump then said the nation-state hack of his opponent wasn’t the important thing, the content of the emails that were released was, thereby encouraging the press to participate in the information operation aspect of this attack.

He already did something today where he said don’t blame them, essentially, for your incompetence. Let me tell you, it’s not even about Russia or China or whoever it is that’s doing the hacking. It was about the things that were said in those e-mails. They were terrible things, talking about Jewish, talking about race, talking about atheist, trying to pin labels on people — what was said was a disgrace, and it was Debbie Wasserman Schultz, and believe me, as sure as you’re sitting there, Hillary Clinton knew about it. She knew everything.

Trump then asked Russia to further hack his opponent.

Russia, if you’re listening, I hope you’re able to find the 30,000 e-mails that are missing.

Trump then doubled down on the comment he made about his taxes, assuring the press that he had “zero” business ties with Russia.

TRUMP: No, I have nothing to do with Russia, John (ph). How many times do I have say that? Are you a smart man? I have nothing to with Russia, I have nothing to do with Russia.

And even — for anything. What do I have to do with Russia? You know the closest I came to Russia, I bought a house a number of years ago in Palm Beach, Florida.

Palm Beach is a very expensive place. There was a man who went bankrupt and I bought the house for $40 million and I sold it to a Russian for $100 million including brokerage commissions. So I sold it. So I bought it for 40, I told it for 100 to a Russian. That was a number of years ago. I guess probably I sell condos to Russians, OK?

QUESTION: (OFF-MIKE)

TRUMP: Of course I can. I told you, other than normal stuff — I buy a house if I sold it to a Russian. I have nothing to do with Russia. I said that Putin has much better leadership qualities than Obama, but who doesn’t know that?

QUESTION: (OFF-MIKE)

TRUMP: Of course not. I own the Trump organization. Zero, zero. Go ahead.

Trump then reiterated his claim that no one could attribute the DNC hack to Russia.

TRUMP: No, but they seem to be, if it’s Russians. I have no idea. It’s probably not Russia. Nobody knows if it’s Russia. You know the sad thing is? That with the technology and the genius we have in this country, not in government unfortunately, but with the genius we have in government, we don’t even know who took the Democratic National Committee e-mails. We don’t even know who it is.

I heard this morning, one report said they don’t think it’s Russia, they think it might be China. Another report said it might be just a hacker, some guy with a 200 I.Q. that can’t get up in the morning, OK? Nobody knows. Honestly they have no idea if it’s Russia. Might be Russia. But if it’s any foreign country, it shows how little respect they have for the United States. Yes, ma’am.

Finally, Trump also stated that he would consider lifting sanctions on Russia.

QUESTION: I would like to know if you became president, would you recognize (inaudible) Crimea as Russian territory? And also if the U.S. would lift sanctions that are (inaudible)?

TRUMP: We’ll be looking at that. Yeah, we’ll be looking.

Each of these comments, individually, would have raised eyebrows. The same comments, made by an American citizen, would equally have raised alarms among those committed to cybersecurity.

But for a presidential candidate to encourage the hostile nation-state information operation targeting his opponent, then ask the hostile nation-state to further target her, in conjunction with the repeated denials of any business ties to Russia raised real, legitimate questions about whether Trump was putting his own interests above the national security of the country.

You might excuse Durham for excluding this from his indictment because after all he was busy indicting a ham sandwich based on hearsay evidence he might be able to exclude these facts at trial. Except that an August 20 comment from TE-1 that Durham quotes in his indictment may be a direct reference to (and at the least incorporates knowledge of) this press conference.

Trump has claimed he and his company have had NO dealings with .ru other than the failed Casino, and the Miss universe pageant. He claims absolutely NO interaction with any financial institutions. So any potential like that would be jackpot.

That is, Durham included what appears to be a reference to the July 27 press conference. It appears (though Durham obscures this point) that all the actions laid out in this indictment post-date the press conference. Virtually everyone in the US committed to ensuring America’s national security was alarmed by Trump’s comments in this press conference. Yet Durham doesn’t acknowledge that all these actions took place in the wake of public comments that made it reasonable for those committed to cybersecurity to treat Donald Trump as a national security threat, irrespective of partisan affiliation.

Durham will work hard to exclude detail of Trump’s press conference from trial. But I assume that if any of the named subjects of this investigation were to take the stand at trial, they would point out that it was objectively reasonable after July 27 to have national security concerns based on Trump’s encouragement of Russia’s attack on Hillary Clinton and his defensive denials of any business ties. Any of the named subjects of the indictment would be able to make a strong case that there was reason to want to, as a matter of national security, test Trump’s claim to have no financial ties to Russia. Indeed, the bipartisan SSCI Report concluded that Trump posed multiple counterintelligence concerns, and therefore has concluded that Durham’s portrayal of politics as the only potential motive here to be false.

Central to Durham’s theory of prosecution is that there was no sound national security basis to respond to anomalous forensic data suggesting a possible financial tie between Trump and Russia. Except that, after that July 27 speech — and all of these events appear to post-date it — that theory is unsustainable.

The parts of the story Durham doesn’t tell

And not only was it objectively reasonable to test whether Trump’s claims to have “zero” business ties to Russia were false, but those suspecting that Trump was hiding such ties were, in fact, correct.

According to Michael Cohen, when Trump walked off the stage from that July 27 press conference, Cohen asked Trump why he had claimed that he had zero business ties with Russia when he had in fact been pursuing an impossibly lucrative deal to brand a Trump Tower in Moscow. And we now know that within hours of Trump’s request, GRU hackers made a renewed assault on Hillary’s own servers. By the time security researchers pursued anomalous data suggesting covert communications with a Russian bank, Cohen had already participated in discussions about working with two sanctioned Russian banks to fund the Trump Tower deal, had agreed to work with a former GRU officer to broker it, had spoken to an aide of Dmitry Peskov, and had been told that Putin was personally involved in making the deal happen. Just on the Trump Tower basis alone, Trump had publicly lied in such a way that posed a counterintelligence risk to America.

But that was not the only thing that Trump had done by the date when a bunch of security researchers responded to anomalous forensic data to test whether Trump was hiding further ties to Russia’s attack on Hillary Clinton.

In March, Trump hired Paul Manafort, a financially desperate political operative with close ties to a Russian intelligence officer, Konstantin Kilimnik, who (SSCI provided three redacted examples of) may have been involved in the hack-and-leak operation. In April, Manafort started leveraging his relationship with Trump to try to make money. In May, Manafort started regularly sending Kilimnik the campaign’s internal polling data. All that happened before researchers started testing Trump’s claims to have had no tie to Russia. On July 28, Kilimnik emailed Manafort to set up a meeting to talk about the future of Ukraine. Just days after the researchers started the inquiry, on August 2, Manafort met with Kilimnik to discuss carving up Ukraine in the same meeting where he described his strategy to win the election.

In April, an academic with close ties to Russia, Joseph Mifsud, told an unqualified braggart whom Trump had added to his team to pretend he had a foreign policy plan, George Papadopoulos, that Russia had thousands of Hillary’s emails that they intended to release to help Trump.

In May, according to Rick Gates’ testimony, Roger Stone started claiming he had advance knowledge of what would become the WikiLeaks releases. On or about June 15, per Gates, Stone told him that “he had contact with Guccifer 2.” According to a warrant affidavit targeting Stone, he searched Google on “Guccifer” before the Guccifer website went up that day. On June 23, Manafort called Stone and then the two old friends met for 30 minutes in the Trump cafeteria. On June 30, Stone spoke to Trump. According to multiple sources (including Michael Cohen), Stone knew of the DNC drop before it happened.

In June, Don Jr accepted a meeting with Natalia Veselnitskaya at which he believed he would get dirt on Hillary Clinton. At the meeting, Veselnitskaya asked Don Jr to end sanctions on Russia, and the candidate’s son said his dad would reconsider it if he won.

In short, the researchers who, in the wake of Trump’s damning comments, were testing whether Trump had lied about having ties to Russia, not only had objectively reasonable reasons to do that research. But their suspicions were proven correct, over and over again.

Durham describes the outcome of the FBI investigation into the allegations this way:

The FBI’s investigation of these allegations nevertheless concluded that there was insufficient evidence to support the allegations of a secret communications channel with Russian Bank-1. In particular, and among other things, the FBI’s investigation revealed that the email server at issue was not owned or operated by the Trump Organization but, rather, had been administered by a mass marketing email company that sent advertisements for Trump hotels and hundreds of other clients.

Nothing here suggests the FBI disproved that this was an anomaly.

And there’s one more detail that Durham didn’t include in the Sussmann indictment: on July 26, Australia first shared their report about what George Papadopoulos told Alexander Downer in May. The next day, July 27, the FBI Legat in the UK got the tip. On July 31 — before the substantive research into the Alfa Bank allegation began — the FBI opened an UNSUB investigation into who got advance warning about the Russian operation and shared it with George Papadopoulos. In other words, by hiding the dates when Tea Leaves first discovered the anomalous data, Durham is hiding not just the damning things that publicly happened before the Alfa Bank operation got started, but probably details about the tip that turned into the Crossfire Hurricane investigation.

In the wake of the Sussmann indictment, the usual Russian denialists have claimed that this proves that what they call “Russiagate” was all a fraud.

Such claims defy the rules of physics, suggesting that events that happened after the FBI opened an investigation to learn how and why the Trump campaign (via three channels, as it turns out) learned of the Russian attack in advance were in fact the cause of it.

It is likely that Durham will be able to exclude all these details from a Michael Sussmann trial, at least if it remains just a false statements case. He will be able to convince Judge Christopher Cooper, who is presiding over the case, that this information — that the researchers not only had reason to believe Trump presented a cybersecurity risk to the country, but that the researchers turned out to be right, and that FBI had itself determined there was reason to carry out the same kinds of investigations that the researchers did, possibly before any one of them took a single step — is irrelevant to the case against Sussmann. But if Durham charges ConFraudUS based on a claim that it was illegitimate to look into why Donald Trump was inviting Russia to hack his opponent, it will become centrally important that, before these researchers started conducting their investigation, the FBI had likewise decided such an investigation had merit.

The Alfa Bank story was sleazy and unethical. But it was still, nevertheless, an instance where someone representing the victim of a nation-state attack attempted to chase down information that may have pertained to that nation-state attack.

John Durham will go down in history as the guy who decided that torturing detainees, even in excess of legal guidance, was not a crime, but a victim sharing concerns about nation-state hacking is.

Update: It’s likely that Richard Burt was one of the people investigated as part of this effort. Per the Mueller Report, he was the person Petr Aven asked to establish a tie with Trump’s transition in 2016.

After the December 2016 all-hands meeting, A ven tried to establish a connection to the Trump team. A ven instructed Richard Burt to make contact with the incoming Trump Administration. Burt was on the board of directors for LetterOne (L 1 ), another company headed by Aven, and had done work for Alfa-Bank. 1169 Burt had previously served as U.S. ambassador to Germany and Assistant Secretary of State for European and Canadian Affairs, and one of his primary roles with Alfa-Bank and Ll was to facilitate introductions to business contacts in the United States and other Western countries. 1170

While at a L1 board meeting held in Luxembourg in late December 2016, Aven pulled Burt aside and told him that he had spoken to someone high in the Russian government who expressed interest in establishing a communications channel between the Kremlin and the Trump Transition Team. 1171 Aven asked for Burt’s help in contacting members of the Transition Team. 1172 Although Burt had been responsible for helping Aven build connections in the past, Burt viewed Aven’s request as unusual and outside the normal realm of his dealings with Aven. 1173

Burt, who is a member of the board of CNI (discussed at Volume I, Section IV.A.4, supra), 1174 decided to approach CNI president Dimitri Simes for help facilitating A ven’ s request, recalling that Simes had some relationship with Kushner. 1175 At the time, Simes was lobbying the Trump Transition Team, on Burt’s behalf, to appoint Burt U.S. ambassador to Russia.1176

Burt contacted Simes by telephone and asked if he could arrange a meeting with Kushner to discuss setting up a high-level communications channel between Putin and the incoming Administration. 1177 Simes told the Office that he declined and stated to Burt that setting up such a channel was not a good idea in light of the media attention surrounding Russian influence in the U.S. presidential election. 1178 According to Simes, he understood that Burt was seeking a secret channel, and Simes did not want CNI to be seen as an intermediary between the Russian government and the incoming Administration. 1179 Based on what Simes had read in the media, he stated that he already had concerns that Trump’s business connections could be exploited by Russia, and Simes said that he did not want CNI to have any involvement or apparent involvement in facilitating any connection. 118

Update: Corrected scope of Benczkowski’s recusal. His should cover the server issue (and Alfa Bank issues for the first two years he was CRM).

Update: Brian Krebs wrote a post laying out all the people who still believe there’s something going on technically. I don’t think that’s inconsistent, at all, with this one. As noted, everyone who looked at this believes it’s an anomaly. What I keep pointing to is the aftermath of that anomaly got Alfa Bank to act in a certain way that is consistent with Putin’s interests. Krebs notes that it has also led to a lot of scrutiny of security researchers in the US, not unlike the way the aftermath of the Steele dossier discredited most top Russian experts in the US government.

Update: This transcript of Preet Bharara and Joyce Vance discussing the many weaknesses of the Durham indictment largely replicates what I’ve laid out here but is worth a review.

DOJ Put Someone Who Enabled Sidney Powell’s Lies — Jocelyn Ballantine — in Charge of Prosecuting the Proud Boys

Because of Joe Biggs’ role at the nexus between the mob that attacked Congress and those that orchestrated the mob, his prosecution is the most important case in the entire January 6 investigation. If you prosecute him and his alleged co-conspirators successfully, you might also succeed in holding those who incited the attack on the Capitol accountable. If you botch the Biggs prosecution, then all the most important people will go free.

Which is why it is so unbelievable that DOJ put someone who enabled Sidney Powell’s election season lies about the Mike Flynn prosecution, Jocelyn Ballantine, on that prosecution team.

Yesterday, at the beginning of the Ethan Nordean and Joe Biggs hearing, prosecutor Jason McCullough told the court that in addition to him and Luke Jones, Ballantine was present at the hearing for the prosecution. He may have said that she was “overseeing” this prosecution. (I’ve got a request for clarification in with the US Attorney’s office.)

Ballantine has not filed a notice of appearance in the case (nor does she show on the minute notice for yesterday’s hearing). In the one other January 6 case where she has been noticeably involved — electronically signing the indictment for Nick Kennedy — she likewise has not filed a notice of appearance.

Less than a year ago when she assisted in DOJ’s attempts to overturn the Mike Flynn prosecution, Ballantine did three things that should disqualify her from any DOJ prosecution team, much less serving on the most important prosecution in the entire January 6 investigation:

  • On September 23, she provided three documents that were altered to Sidney Powell, one of which Trump used six days later in a packaged debate attack on Joe Biden
  • On September 24, she submitted an FBI interview report that redacted information — references to Brandon Van Grack — that was material to the proceedings before Judge Emmet Sullivan
  • On October 26, she claimed that lawyers for Peter Strzok and Andrew McCabe had checked their clients’ notes to confirm there were no other alterations to documents submitted to the docket; both lawyers refused to review the documents

After doing these things in support of Bill Barr’s effort to undermine the Flynn prosecution (and within days of the Flynn pardon), Ballantine was given a confidential temporary duty assignment (it may have been a CIA assignment). Apparently she’s back at DC USAO now.

Three documents got altered and another violated Strzok and Page’s privacy

As a reminder, after DOJ moved to hold Mike Flynn accountable for reneging on his plea agreement, Billy Barr put the St. Louis US Attorney, Jeffrey Jensen, in charge of a “review” of the case, which DOJ would later offer as its excuse for attempting to overturn the prosecution.

On September 23, Ballantine provided Powell with five documents, purportedly from Jensen’s investigation into the Flynn prosecution:

I outlined the added date on the first set of Strzok notes here:

There was never any question that the notes could have been taken no earlier than January 5, because they memorialized Jim Comey’s retelling of a meeting that other documentation, including documents submitted in the Flynn docket, shows took place on January 5. Even Chuck Grassley knows what date the meeting took place.

But DOJ, while using the notes as a central part of their excuse for trying to overturn the Flynn prosecution, nevertheless repeatedly suggested that there was uncertainty about the date of the notes, claiming they might have been taken days earlier. And then, relying on DOJ’s false representations about the date, Sidney Powell claimed they they showed that Joe Biden — and not, as documented in Mary McCord’s 302, Bob Litt — was the one who first raised the possibility that Flynn may have violated the Logan Act.

Strzok’s notes believed to be of January 4, 2017, reveal that former President Obama, James Comey, Sally Yates, Joe Biden, and apparently Susan Rice discussed the transcripts of Flynn’s calls and how to proceed against him. Mr. Obama himself directed that “the right people” investigate General Flynn. This caused former FBI Director Comey to acknowledge the obvious: General Flynn’s phone calls with Ambassador Kislyak “appear legit.” According to Strzok’s notes, it appears that Vice President Biden personally raised the idea of the Logan Act.

During the day on September 29, Powell disclosed to Judge Sullivan that she had spoken to Trump (as well as Jenna Ellis) about the case. Then, later that night, Trump delivered a prepared attack on Biden that replicated Powell’s false claim that Biden was behind the renewed investigation into Flynn.

President Donald J. Trump: (01:02:22)
We’ve caught them all. We’ve got it all on tape. We’ve caught them all. And by the way, you gave the idea for the Logan Act against General Flynn. You better take a look at that, because we caught you in a sense, and President Obama was sitting in the office.

In a matter of days, then, what DOJ would claim was an inadvertent error got turned into a campaign attack from the President.

When DOJ first confessed to altering these notes, they claimed all the changes were inadvertent.

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

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

There are multiple reasons to believe this is false. For example, when DOJ submitted notes that Jim Crowell took, they added a date in a redaction, something that could in no way be inadvertent. And as noted, the January 5 notes had already been submitted, without the date change (though then, too, DOJ claimed not to know the date of the document).

But the most important tell is that, when Ballantine sent Powell the three documents altered to add dates, the protective order footer on the documents had been removed in all three, in the case of McCabe’s notes, actually redacted. When she released the re-altered documents (someone digitally removed the date in the McCabe notes rather than providing a new scan), the footer had been added back in. This can easily be seen by comparing the altered documents with the re-altered documents.

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

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

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

The second set of Strzok notes, with the footer.

The altered McCabe noteswith the footer redacted out:

The realtered McCabe notes, with the footer unredacted:

This is something that had to have happened at DOJ (see William Ockham’s comments below and this post for proof in the metadata that these changes had to have been done by Ballantine). The redaction of the footers strongly suggests that they were provided to Powell with the intention of facilitating their further circulation (the other two documents she shared with Powell that day had no protective order footer). In addition, each of these documents should have a new Bates stamp.

DOJ redacted Brandon Van Grack’s non-misconduct

On September 24, DOJ submitted a report of an FBI interview Jeffrey Jensen’s team did with an Agent who sent pro-Trump texts on his FBI-issued phone, Bill Barnett. In the interview, Barnett made claims that conflicted with actions he had taken on the case. He claimed to be unaware of evidence central to the case against Flynn (for example, that Flynn told Sergey Kislyak that Trump knew of something said on one of their calls). He seemed unaware of the difference between a counterintelligence investigation and a criminal one. And he made claims about Mueller prosecutors — Jeannie Rhee and Andrew Weissmann — with whom he didn’t work directly. In short, the interview was obviously designed to tell a politically convenient story, not the truth.

Even worse than the politicized claims that Barnett made, the FBI or DOJ redacted the interview report such that all reference to Brandon Van Grack was redacted, substituting instead with the label, “SCO Atty 1.” (References to Jeannie Rhee, Andrew Weissmann, and Andrew Goldstein were not redacted; there are probable references to Adam Jed and Zainab Ahmad that are not labeled at all.)

The result of redacting Van Grack’s name is that it hid from Judge Sullivan many complimentary things that Barnett had to say about Van Grack:

Van Grack’s conduct was central to DOJ’s excuse for throwing out the Flynn prosecution. Powell repeatedly accused Van Grack, by name, of engaging in gross prosecutorial misconduct. Yet the report was submitted to Judge Sullivan in such a way as to hide that Barnett had no apparent complaints about Van Grack’s actions on the Flynn case.

I have no reason to believe that Ballantine made those redactions. But according to the discovery letter she sent to Powell, she sent an unredacted copy to Flynn’s team, while acknowledging that the one she was submitting to the docket was redacted. Thus, she had to have known she was hiding material information from the Court when she submitted the interview report.

Ballantine falsely claimed Strzok and McCabe validated their notes

After some of these alterations were made public, Judge Sullivan ordered DOJ to authenticate all the documents they had submitted as part of their effort to overturn the Flynn prosecution. The filing submitted in response was a masterpiece of obfuscation, with three different people making claims while dodging full authentication for some of the most problematic documents. In the filing that Ballantine submitted, she claimed that Michael Bromwich and Aitan Goelman, lawyers for McCabe and Strzok, “confirmed” that no content was altered in the notes.

The government acknowledges its obligation to produce true and accurate copies of documents. The government has fully admitted its administrative error with respect to the failure to remove three reviewer sticky notes containing estimated date notations affixed to three pages of undated notes (two belonging to former Deputy Assistant Director Peter Strzok, and one page belonging to former Deputy Director Andrew McCabe) prior to their disclosure. These dates were derived from surrounding pages’ dates in order to aid secondary reviewers. These three sticky notes were inadvertently not removed when the relevant documents were scanned by the FBI for production in discovery. See ECF 259. The government reiterates, however, that the content of those exhibits was not altered in any way, as confirmed by attorneys for both former FBI employees. [underline original]

According to an email Bromwich sent Ballantine, when Ballantine asked for help validating the transcripts DOJ did of McCabe’s notes, McCabe declined to do so.

I have spoken with Mr. McCabe and he declines to provide you with any information in response to your request.

He believes DOJ’s conduct in this case is a shocking betrayal of the traditions of the Department of the Justice and undermines the rule of law that he spent his career defending and upholding. If you share with the Court our decision not to provide you with assistance, we ask that you share the reason.

We would of course respond to any request that comes directly from the Court.

And according to an email Goelman sent to Ballantine, they said they could not check transcriptions without the original copies of documents.

Sorry not to get back to you until now.  We have looked at the attachments to the email you sent yesterday (Sunday) afternoon.  We are unable to certify the authenticity of all of the attachments or the accuracy of the transcriptions.  To do so, we would need both more time and access to the original notes, particularly given that U.S. Attorney Jensen’s team has already been caught altering Pete’s notes in two instances.  However, we do want to call your attention to the fact that Exhibit 198-11 is mislabeled, and that these notes are not the notes of Pete “and another agent” taken during the Flynn interview.

Additionally, we want to register our objection to AUSA Ken Kohl’s material misstatements to Judge Sullivan during the September 29, 2020, 2020, [sic] telephonic hearing, during which Mr. Kohl inaccurately represented that Pete viewed himself as an “insurance policy” against President Trump’s election.

I have no reason to believe the content was altered, though I suspect other things were done to McCabe’s notes to misrepresent the context of a reference in his notes to Flynn. But not only had McCabe and Strzok not validated their notes, but they had both pointedly refused to. Indeed, during this same time period, DOJ was refusing to let McCabe see his own notes to prepare for testimony before the Senate Judiciary Committee. Nevertheless, Ballantine represented to Judge Sullivan that they had.

It baffles me why DOJ would put Ballantine on the most important January 6 case. Among other things, the conduct I’ve laid out here will make it easy for the defendants to accuse DOJ of similar misconduct on the Proud Boys case — and doing just that happens to be Nordean’s primary defense strategy.

But I’m mindful that there are people in DC’s US Attorney’s Office (not Ballantine) who took actions in the past that may have made the January 6 attack more likely. In a sentencing memo done on Barr’s orders, prosecutors attempting to minimize the potential sentence against Roger Stone suggested that a threat four Proud Boys helped Roger Stone make against Amy Berman Jackson was no big deal, unworthy of a sentencing enhancement.

Second, the two-level enhancement for obstruction of justice (§ 3C1.1) overlaps to a degree with the offense conduct in this case. Moreover, it is unclear to what extent the defendant’s obstructive conduct actually prejudiced the government at trial.

Judge Jackson disagreed with this assessment. In applying the enhancement, she presciently described how dangerous Stone and the Proud Boys could be if they incited others.

Here, the defendant willfully engaged in behavior that a rational person would find to be inherently obstructive. It’s important to note that he didn’t just fire off a few intemperate emails. He used the tools of social media to achieve the broadest dissemination possible. It wasn’t accidental. He had a staff that helped him do it.

As the defendant emphasized in emails introduced into evidence in this case, using the new social media is his “sweet spot.” It’s his area of expertise. And even the letters submitted on his behalf by his friends emphasized that incendiary activity is precisely what he is specifically known for. He knew exactly what he was doing. And by choosing Instagram and Twitter as his platforms, he understood that he was multiplying the number of people who would hear his message.

By deliberately stoking public opinion against prosecution and the Court in this matter, he willfully increased the risk that someone else, with even poorer judgment than he has, would act on his behalf. This is intolerable to the administration of justice, and the Court cannot sit idly by, shrug its shoulder and say: Oh, that’s just Roger being Roger, or it wouldn’t have grounds to act the next time someone tries it.

The behavior was designed to disrupt and divert the proceedings, and the impact was compounded by the defendant’s disingenuousness.

The people at DOJ who claimed that this toxic team was not dangerous in the past may want to downplay the critical role that Stone and the Proud Boys played — using the same kind of incendiary behavior — in the January 6 assault.

Whatever the reason, though, it is inexcusable that DOJ would put someone like Ballantine on this case. Given Ballantine’s past actions, it risks sabotaging the entire January 6 investigation.

DOJ quite literally put someone who, less than a year ago, facilitated Sidney Powell’s lies onto a prosecution team investigating the aftermath of further Sidney Powell lies.

Update: DC USAO’s media person refused to clarify what Ballantine’s role is, even though it was publicly acknowledged in court.

We are not commenting on cases beyond what is stated or submitted to the Court. We have no comment in response to your question.

Update: Added links to William Ockham’s proof that Ballantine made the realteration of the McCabe notes.

Update: One more point on this. I am not claiming here that anyone at DOJ is deliberately trying to sabotage the January 6 investigation, just that putting someone who, less than a year ago, made multiple representations to a judge that could call into question her candor going forward could discredit the Proud Boys investigation. I think it possible that supervisors at DC USAO put her on the team because they urgently need resources and she was available (possibly newly so after the end of her TDY). I think it possible that supervisors at DC USAO who are also implicated in Barr’s politicization, perhaps more closely tied to the intervention in the Stone case, put her there with corrupt intent.

But it’s also important to understand that up until February 2020, she was viewed as a diligent, ruthless prosecutor. I presume she buckled under a great deal of pressure after that and found herself in a place where competing demands — her duty of candor to the Court and orders from superiors all the way up to the Attorney General — became increasingly impossible to square.

Importantly, Lisa Monaco’s chief deputy John Carlin, and probably Monaco herself, would know Ballantine from their past tenure in the National Security Division as that heretofore ruthless national security prosecutor. The only mainstream outlet that covered anything other than DOJ’s admission they had added post-its to the notes was Politico. And the instinct not to punish career employees like Ballantine would mean what she would have avoided any scrutiny with the transition. So her assignment to the case is not itself evidence of an attempt to sabotage the prosecution.

DOJ Treated Jerome Corsi as News Media but Not Roger Stone or Randy Credico (or Julian Assange)

Yesterday, DOJ released both an updated list of times when its media guidelines came into play (here are the 2016, 2017, and 2018 reports), as well as a summary of DOJ’s attempts to get records related to CNN, NYT, and WaPo reporting.

The former has raised some questions about how Mueller’s investigation applied these rules (as a reminder, my interview with the FBI was not with Mueller, though based on a month-long approval process I know to have occurred, I believe there is an entry in the 2017 report that pertains to me).

They’re easier to understand if you work through the second one, for legal process in 2019, first.

In the prosecution of an individual charged with obstructing the investigation into Russian interference in the 2016 presidential election, a United States Attorney authorized the issuance of a subpoena to a member of the news media for testimony. The member of the news media expressly agreed to testify pursuant to the subpoena. Because the member of the news media expressly agreed to testify, Attorney General authorization was not required. See 28 C.F.R. § 50.10(c)(3)(i)(A). The prosecution team did not call the member of the news media at trial.

There was just one trial of anyone for obstructing the investigation into Russian interference in 2016. George Papadopoulos, Mike Flynn, Michael Cohen, and Richard Pinedo never went to trial (nor did Alex Van der Zwaan, though his obstruction covered earlier events). Paul Manafort did go to trial for his tax cheating, but not for interfering with the Russian investigation (his plea breach hearing, which did pertain to lies he told to cover up his role in the Russian interference, was not a trial).

That means this has to be a reference to Roger Stone’s trial.

Two witnesses are known to have been subpoenaed, but not called to testify: Andrew Miller and Jerome Corsi. Randy Credico, a radio personality, testified at great length, including about how he booked Julian Assange and Roger Stone to appear on his radio show.

That’s not enough to prove that the reference is to Corsi (in part because there could have been other witnesses who were subpoenaed but not called to testify that we don’t know about). But now consider the second reference to the Mueller investigation, for something that happened in 2018.

In connection with an investigation into an alleged conspiracy involving persons or entities associated with a foreign government hacking the computers of a United States political party’s central organization, the Deputy Attorney General, acting as Attorney General, authorized the issuance of a grand jury subpoena duces tecum for the production of toll records from a cellular service provider for a telephone used by a member of the news media suspected of participating the conspiracy, as well as an application for a search warrant to search the member of the news media’s internet cloud and email accounts. Following the initial authorization, the Deputy Attorney General, acting as Attorney General, later authorized a voluntary interview of, and the issuance of a testimonial grand jury subpoena to, the member of the news media. All of this information was necessary to further the investigation of whether the member of the news media was involved in the conspiracy to unlawfully obtain and utilize the information from the hacked political party or other victims.

This is a description of someone investigated as a suspect.

While Mueller reviewed whether Don Jr violated the CFAA for accessing a non-public website he got sent a password to, the investigation into whether someone was part of the hack-and-leak conspiracy focused on Roger Stone (and Julian Assange, who does not obviously show up anywhere in this report, even though Mueller obtained a warrant targeting him as well). Two people were known to have been investigated as fellow suspects of Stone: Corsi and Ted Malloch. Mueller’s team obtained warrants and subpoenas targeting both. In Malloch’s case, however, the government is only known to have obtained his phone and his Gmail.

In Corsi’s case, however, Mueller targeted his Apple accounts, as well as email accounts held at CSC Holdings, and Windstream.

Mueller is not, however, known to have obtained a warrant targeting Credico.

If the government treated Corsi as a member of the news media in 2018, when they obtained warrants targeting him as a suspected co-conspirator of Roger Stone, then they likely treated him as a member of the news media in 2019, when they subpoenaed him — but did not call him — as a witness in Stone’s trial. That is, the available evidence strongly suggests that Corsi is the person described in both Mueller entries.

Which, in turn, suggests that DOJ treated Corsi — but not Stone or Credico — as members of the news media.

For what it’s worth, I’m virtually certain that there’s still a Mueller entry missing, pertaining to a member of the news media who asked for a subpoena before he would share materials relating to his work. That person has never been publicly referenced in Mueller-related investigative materials since released, but I believe 302s from the investigation reflect FBI having obtained the materials they were asking for from that member of the news media. But that incident would have fit under 28 CFR 50.10(c)(3)(i)(A), when a member of the news media agrees to provide information so long as he gets a subpoena, which under the media guidelines does not require Attorney General approval.

Update: There’s an important point that has been forgotten by these debates but which is implied in Merrick Garland’s statements about the media policy. There are other means to obtain records on people playing a journalistic function: under FISA, by providing probable cause that they are an agent of a foreign power.

The Guardian “Scoop” Would Shift the Timeline and Bureaucracy of the Known 2016 Russian Operation

Luke Harding has a story based on alleged Russian documents that show that Vladimir Putin personally approved of the 2016 Russian operation on January 22, 2016.

In advance of a known meeting — which Russia claimed at the time was convened to talk about Moldova — the Guardian claims Putin was presented with a plan on how an influence operation might work. Putin purportedly approved the operation at the publicly announced meeting. And then all three intelligence agencies implemented it.

The author appears to be Vladimir Symonenko, the senior official in charge of the Kremlin’s expert department – which provides Putin with analytical material and reports, some of them based on foreign intelligence.

The papers indicate that on 14 January 2016 Symonenko circulated a three-page executive summary of his team’s conclusions and recommendations.

In a signed order two days later, Putin instructed the then chief of his foreign policy directorate, Alexander Manzhosin, to convene a closed briefing of the national security council.

Its purpose was to further study the document, the order says. Manzhosin was given a deadline of five days to make arrangements.

What was said inside the second-floor Kremlin senate building room is unknown. But the president and his intelligence officials appear to have signed off on a multi-agency plan to interfere in US democracy, framed in terms of justified self-defence.

[snip]

After the meeting, according to a separate leaked document, Putin issued a decree setting up a new and secret interdepartmental commission. Its urgent task was to realise the goals set out in the “special part” of document No 32-04 \ vd.

Members of the new working body were stated to include Shoigu, Fradkov and Bortnikov. Shoigu was named commission chair. The decree – ukaz in Russian – said the group should take practical steps against the US as soon as possible. These were justified on national security grounds and in accordance with a 2010 federal law, 390-FZ, which allows the council to formulate state policy on security matters.

According to the document, each spy agency was given a role. The defence minister was instructed to coordinate the work of subdivisions and services. Shoigu was also responsible for collecting and systematising necessary information and for “preparing measures to act on the information environment of the object” – a command, it seems, to hack sensitive American cyber-targets identified by the SVR.

The SVR was told to gather additional information to support the commission’s activities. The FSB was assigned counter-intelligence. Putin approved the apparent document, dated 22 January 2016, which his chancellery stamped.

Because the analysis presented in this story says things that many people now believe — that Trump was unstable, that he harmed the US, that Russia’s operation sowed division in the US — it had been uncritically embraced by many.

But experts are raising some cautions. Thomas Rid raises cautions here (not all of which I agree with). Matt Tait raises more cautions here (not all of which I agree with). Craig Unger quotes more experts raising questions about the document.

What few are doing, however, is comparing the claims in the Guardian document to what we (think we) know about the 2016 operation, which not only is a good way to test their accuracy but also might answer the question Douglas London raised with Unger: “‘Coincidence and convenience are red flags in espionage,’ he told SpyTalk. ‘So why now?'”

If these documents are disinformation, they would change the known story in at least two ways. The resulting story would sustain a claim that both key events and key players in the 2016 Russian operation weren’t really part of that operation. That is, if this is disinformation, it likely was told to try to obscure who were the most important players in the 2016 operation and what events were part of it.

A January 22 approval would suggest presumed parts of the 2016 operation weren’t actually part of it

If the Russian operation weren’t approved until January 22, then events believed to be part of the operation that happened before that might be dissociated from it.

Perhaps the most important temporal conflict these documents would introduce would be the Trump Tower Moscow dangle. That effort — floated by Felix Sater and relying on a former GRU officer as a broker — started in fall 2015 and ratcheted up in December 2015. Importantly, a key call Michael Cohen had with Dmitri Peskov’s assistant took place before Putin allegedly approved the operation, on January 20.

On January 20, 2016, Cohen received an email from Elena Poliakova, Peskov’s personal assistant. Writing from her personal email account, Poliakova stated that she had been trying to reach Cohen and asked that he call her on the personal number that she provided.350 Shortly after receiving Poliakova’s email, Cohen called and spoke to her for 20 minutes.351 Cohen described to Poliakova his position at the Trump Organization and outlined the proposed Trump Moscow project, including information about the Russian counterparty with which the Trump Organization had partnered. Cohen requested assistance in moving the project forward, both in securing land to build the project and with financing. According to Cohen, Poliakova asked detailed questions and took notes, stating that she would need to follow up with others in Russia.352

The next day — so still one day before, according to the Guardian document, Putin approved the 2016 operation — Sater responded to Cohen claiming that Putin’s office had called.

However, the day after Cohen’s call with Poliakova, Sater texted Cohen, asking him to “[c]all me when you have a few minutes to chat .. . It’s about Putin they called today.”353 Sater then sent a draft invitation for Cohen to visit Moscow to discuss the Trump Moscow project, 354

If Putin didn’t approve the 2016 operation until January 22, Russia and Trump might claim, this effort wasn’t really an attempt to offer Trump financial salvation in exchange for policy considerations and other quid pro quo that became part of the operation, but instead was a viable (albeit ridiculously lucrative) real estate offer. Indeed, if Russia wanted to bail Trump out of the financial difficulties created by the prosecution of Trump Organization now, they might want to launder this earlier real estate dangle so as to dissociate it with any attempt to buy a president, or else any deals from this point forward might be deemed a continuation of an earlier conspiracy or even an effort to keep Trump afloat long enough to run again in 2024.

Similarly, also before the purported January 22 approval date, Deputy Prime Minister Sergei Prikhodko started a several month outreach to Trump, one that would be sustained through March.

Trump received and turned down an invitation to the St. Petersburg International Economic Forum. In late December 2015, Mira Duma-a contact oflvanka Trump’s from the fashion industry-first passed along invitations for Ivanka Trump and candidate Trump from Sergei Prikhodko, a Deputy Prime Minister of the Russian Federation.377 On January 14, 2016, Rhona Graff sent an email to Duma stating that Trump was “honored to be asked to participate in the highly prestigious” Forum event, but that he would “have to decline” the invitation given his “very grueling and full travel schedule” as a presidential candidate.378 Graff asked Duma whether she recommended that Graff “send a formal note to the Deputy Prime Minister” declining his invitation; Duma replied that a formal note would be “great.”379

It does not appear that Graff prepared that note immediately. According to written answers from President Trump,380 Graff received an email from Deputy Prime Minister Prikhodko on March 17, 2016, again inviting Trump to participate in the 2016 Forum in St. Petersburg.381 Two weeks later, on March 31, 2016, Graff prepared for Trump’s signature a two-paragraph letter declining the invitation.382 The letter stated that Trump’s “schedule has become extremely demanding” because of the presidential campaign, that he “already ha[ d] several commitments in the United States” for the time of the Forum, but that he otherwise “would have gladly given every consideration to attending such an important event.”383 Graff forwarded the letter to another executive assistant at the Trump Organization with instructions to print the document on letterhead for Trump to sign.384

We don’t know what this outreach might have entailed, but like the Trump Tower deal, Trump Organization appears to have withheld evidence about this outreach from one or another investigator, in this case any evidence that Trump declined Prikhodko’s invitation.

Finally there’s the weird way this fits Mike Flynn’s known timeline. To be clear, Flynn was not a full-time part of the Trump campaign when he and his son went to Moscow for the RT Gala in December 2015 and, before he went, he met with Sergei Kislyak in the US. While Flynn was sharing some advice with Trump (as well as some of the other Republican candidates), he would only join Trump’s campaign full time months later. But when Flynn visited Russia, he had prior ties with the GRU. He would later tell the FBI he believed then-GRU head Igor Sergun could work with the US. Days after Flynn’s visit, Sergun died unexpectedly in Syria, and Flynn called Kislyak on January 5 to offer his condolences, the first of Flynn’s 2016 calls with Kislyak picked up on FISA intercepts. Sergun’s death was only widely made public weeks later, after this purported meeting, and there were questions about the circumstances of the death. Those things are probably unrelated, but days after the head of GRU died seems curious timing to put GRU in charge of a risky operation.

The described organization shifts the existing understanding of the 2016 operation

The timing of this meeting, just days after the death of Sergun, is important to explain a claim made in it: that Sergei Shoigu was purportedly put in charge of the GRU part of the operation, its most important part. A January 22 meeting would take place before Sergun’s replacement, Igor Korobov, was appointed (and the suggestion of the story is that Shoigu remained in charge after the later appointment).

And under Shoigu, everything was all tidy and bureaucratic.

According to the document, each spy agency was given a role. The defence minister was instructed to coordinate the work of subdivisions and services. Shoigu was also responsible for collecting and systematising necessary information and for “preparing measures to act on the information environment of the object” – a command, it seems, to hack sensitive American cyber-targets identified by the SVR.

The SVR was told to gather additional information to support the commission’s activities. The FSB was assigned counter-intelligence.

For a lot of reasons I find the designation of FSB for counterintelligence weird, because that’s what they would always be doing and that effort would necessarily (and presumed aspects of which did) long precede any individual operation. Plus, by the end of the year, Putin had taken out two top FSB officers for treason, a prosecution that was later used to offer counter-narratives to the 2016 operation.

But it’s the rest of this narrative that would be intriguing, if true. It would seem to offer an explanation that has never publicly been answered by the US: what the relationship was between the DNC hack by the SVR that started in 2015 to the DNC hack by the GRU that started in 2016. That said, SVR is not known to have hacked several other targets of the 2016 operation: John Podesta individually, state election infrastructure, election vendors, and Hillary’s analytics hosted on an AWS server.

The narrative would be particularly interesting, if true, in the wake of the Solar Winds hack, because it might suggest there will be a GRU sabotage operation following on the entities targeted by SVR. Or maybe Russia wants the west to think that to be true.

That said, there’s a huge part of this neat bureaucratic description not mentioned: The central role of Oligarchs in the 2016 operation.

One might discount the need to include specific instructions for Yevgeniy Prigozhin, as his Internet Research Agency was already engaged in sowing division. But you’d think a description of the bureaucratic structure of the 2016 operation would at least note that a big part of the operation would be accomplished by a known private entity. Furthermore, there are redacted hints in public filings both that Prigozhin’s team interacted with GRU, and that he and Putin had specific conversations about the operation. None of that is accounted for (or arguably, even consistent with) this story.

And that’s the thing: if testimony that Alfa Bank’s Petr Aven gave to the Mueller team is accurate, his role in the 2016 operation got tasked both individually and more generally in quarterly Oligarch meetings with Putin, not through intelligence agencies.

Aven told the Office that he is one of approximately 50 wealthy Russian businessmen who regularly meet with Putin in the Kremlin; these 50 men are often referred to as “oligarchs.”977 Aven told the Office that he met on a quarterly basis with Putin, including in the fourth quarter (Q4) of 2016, shortly after the U.S. presidential election.978 Aven said that he took these meetings seriously and understood that any suggestions or critiques that Putin made during these meetings were implicit directives, and that there would be consequences for Aven if he did not follow through.979 As was typical, the 2016 Q4 meeting with Putin was preceded by a preparatory meeting with Putin’s chief of staff, Anton Vaino.980

According to Aven, at his Q4 2016 one-on-one meeting with Putin,98 1 Putin raised the prospect that the United States would impose additional sanctions on Russian interests, including sanctions against Aven and/or Alfa-Bank.982 Putin suggested that Aven needed to take steps to protect himself and Alfa-Bank.983 Aven also testified that Putin spoke of the difficulty faced by the Russian government in getting in touch with the incoming Trump Administration.984 According to Aven, Putin indicated that he did not know with whom formally to speak and generally did not know the people around the President-Elect.985

Aras Agalarov played a partly successful role in the 2016 operation (in fact, Rob Goldstone offered Trump help from Vkontakte before the January 22 meeting, on January 18). Oleg Deripaska played a wildly successful role (a role that included manipulating Harding’s known source, Christopher Steele). A credible story that their roles got tasked through intelligence agencies and not via meetings directly with Putin might insulate them from responsibility, particularly as the US focuses more explicitly on Konstantin Kilimnik’s role, and particularly for things like sanctions adjudications. But it’s far more credible that something similar to what happened with Aven happened, and happened before the January 22 meeting in question.

Russian kompromat on Trump was never going to be a pee tape

In addition to shifting the timing and presumed bureaucratic structure of the 2016 operation, this story seems to reinflate the expectation of a goddamned pee tape.

There is also apparent confirmation that the Kremlin possesses kompromat, or potentially compromising material, on the future president, collected – the document says – from Trump’s earlier “non-official visits to Russian Federation territory”.

The paper refers to “certain events” that happened during Trump’s trips to Moscow. Security council members are invited to find details in appendix five, at paragraph five, the document states. It is unclear what the appendix contains.

The SSCI Report laid out three different rumors about sexual kompromat, on top of the Steele dossier. But every time someone focuses on a goddamn pee tape, they ignore several details. First, Per his own testimony, Cohen learned of such alleged kompromat shortly after 2013. Even if it existed, it would have far less impact than the many other allegations of sexual abuse that actually did come out in 2016, or the allegations that Trump was cheating on Melania shortly after she gave birth with high profile sex workers. Plus, such stories would have been easily accessible for anyone who wanted to outbid Trump for them.

A pee tape was never going to be the most effective kompromat on Trump, no matter how much people still wish to see humiliating pictures of Trump with sex workers. Financial ties would be.

Importantly, given the way this story would shift the operative start date after much of the discussion about the Trump Tower, Trump hid the Trump Tower Moscow dangle the way he would a pee tape, lying both in real time and to Mueller about it. That is, Trump treated the Trump Tower Moscow dangle as kompromat, which likely was part of the point.

Sure, it’s possible that these documents that magically appear are authentic. It’s also possible that Russia has reasons they want to tell a new story about the timing and key players in the known 2016 operation. Why they would want to do that may be the most interesting aspect of this story.