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Rod Rosenstein’s Unfortunate Vocabulary: Defining a Criminal Investigation by “Links” and “Collusion”

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Rod Rosenstein is the very unlikely hero of the Mueller investigation. “Rod is a survivor,” Jim Comey said after getting fired. “And you don’t get to survive that long across administrations without making compromises.”

Yet here we are, 22 months after he appointed Robert Mueller to investigate an investigation Trump tried to kill by firing Comey, awaiting the results of that investigation.

At times, I think Rosenstein didn’t imagine (and doesn’t now acknowledge) the damage his bend-don’t-break has done along the way. While based off the very sound precedent that existed until Comey’s declination speech about Hillary, it seems ridiculous for him to claim that the full results of the Mueller investigation can’t be shared with Congress, as he’s now claiming, given how he has provided unprecedented disclosure to Congress about the investigation already, including the first ever unsealed probable cause FISA application.

It will take some years to measure whether Rosenstein chose the best or perhaps only the least worst approach to the last several years.

But there’s one thing he did that really makes me uncomfortable, today, as we all await the results of the Mueller report: his mandate to Mueller.

As has been noted countless times in the last 22 months, Rosenstein asked Mueller to investigate:

    • any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and
    • any matters that arose or may arise directly from the investigation;
    • any other matters with the scope of 28 C.F.R. § 600.4(a).
  • if the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters.

We actually know the answer to the first bullet, in part: As I laid out here, during five key interactions pertaining to the question of a possible conspiracy between Trump’s associates and Russia, there was direct contact between someone the government has deemed an agent of Russia and the Trump campaign:

  1. January 20, 2016, when Michael Cohen told Dmitry Peskov’s personal assistant that Trump would be willing to work with a GRU-tied broker and (soft and hard) sanctioned banks in pursuit of a $300 million Trump Tower deal in Russia.
  2. June 9, 2016, when Don Jr, knowing that currying favor with Russia could mean $300 million to the family, took a meeting offering dirt on Hillary Clinton as “part of  Russia and its government’s support for Mr. Trump.” At the end of the meeting, per the testimony of at least four attendees, Don Jr said they’d revisit Magnitsky sanctions if his dad won.
  3. August 2, 2016, when Paul Manafort and Rick Gates had a clandestine meeting with Konstantin Kilimnik at which Trump’s campaign manager walked Kilimnik through highly detailed poll data and the two discussed a “peace” plan for Ukraine understood to amount to sanctions relief.
  4. December 29, 2016, when (working on instructions relayed by KT McFarland, who was at Mar-a-Lago with Trump) Mike Flynn said something to Sergey Kislyak that led Putin not to respond to Obama’s election-related sanctions.
  5. January 11, 2017, when Erik Prince, acting as a back channel for Trump, met with sanctioned sovereign wealth fund Russian Direct Investment Fund CEO Kirill Dmitriev.

That Peskov’s assistant (and whatever representative from Putin’s office that called Felix Sater the next day), Sergey Kislyak, and Kirill Dmitriev are agents of Russia is clear. With the indictment of Natalia Veselnitskaya in December, the government deemed her to be working as an agent of Russia during the same time period she pitched sanctions relief to Trump’s campaign. And while the government hasn’t proven it beyond quoting Rick Gates acknowledging he knew of Konstantin Kilimnik’s past with the GRU and FBI’s belief that he continues to have ties, the government certainly maintains that Kilimnik does have ties to Russian intelligence.

Those are links. It’d be useful to have an official report on them. But since Mueller hasn’t charged them as a conspiracy, we may only learn what we’ve seen in plea agreements or official testimony to Congress.

Likewise Rosenstein’s invocation of “collusion” in the unredacted parts of his memo describing the scope of the investigation as it existed in August 2017 (it expanded and contracted after that point, so there are like different memos).

Allegations that Paul Manafort:

  • committed a crime or crimes by colluding with Russian government officials with respect to the Russian government’s efforts to interfere with the 2016 election for President of the United States, in violation of United States law;

Here, unlike in the initial mandate, Rosenstein at least noted that Mueller was assessing whether crimes were committed in using that squishy language. But he used the word “collusion,” which started to be politicized by March 2017, when Comey tried to correct it once and for all.

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election, and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.

[snip]

Collusion is not a legal term. It is not one I have used today. I said we are investigating to see if there is any coordination between people associated with the campaign– [my emphasis]

Sure, “collusion” might be understood to incorporate a bunch of possible crimes, and so appropriately didn’t limit Mueller to one specific crime as he investigated Manafort (but then, so did the term, “coordination”). But I nevertheless think that using the word has confused the issue of what Rosenstein intended Mueller to be able to reveal, which would instead be conspiracy and a bunch of other crimes covering up evidence of coordination that Mueller has found necessary and appropriate to charge, and not whether there was “collusion.”

All the while, people on both sides of this debate have taken “collusion” to mean whatever minimalist or maximalist interpretation of wrong-doing that best serves their side.

There are two things at issue: whether Trump and his aides coordinated in a way that is criminal, which would be a conspiracy, and whether Trump has coordinated with Russia in a way that would be an abuse of power and/or puts the nation at risk.

Both are legitimate questions. And while Rosenstein says only crimes that are indicted are appropriate to reveal (and he may well be right about that, as a principle), he did ask Mueller to conduct an investigation of that other stuff, and Congress has deferred to Mueller even while that other stuff is squarely within their mandate.

Ideally, this weeks focus on Mueller’s discoveries would be on what the actual evidence showed, which we know to include, at a minimum, the following:

  • Trump pursued a ridiculously lucrative $300 million real estate deal even though the deal would use sanctioned banks, involve a former GRU officer as a broker, and require Putin’s personal involvement at least through July 2016.
  • The Russians chose to alert the campaign that they planned to dump Hillary emails, again packaging it with the promise of a meeting with Putin.
  • After the Russians had offered those emails and at a time when the family was pursuing that $300 million real estate deal, Don Jr took a meeting offering dirt on Hillary Clinton as “part of Russia and its government’s support for Mr. Trump.” At the end (per the sworn testimony of four people at the meeting) he said his father would revisit Magnitsky sanctions relief if he won. Contrary to the claim made in a statement authored by Trump, there was some effort to follow up on Jr’s assurances after the election.
  • The campaign asked rat-fucker Roger Stone to optimize the WikiLeaks releases and according to Jerome Corsi he had some success doing so.
  • In what Andrew Weissmann called a win-win (presumably meaning it could help Trump’s campaign or lead to a future business gig for him), Manafort provided Konstantin Kilimnik with polling data that got shared with Ukrainian and Russian oligarchs. At the same meeting, he discussed a “peace” plan for Ukraine that would amount to sanctions relief.
  • Trump undercut Obama’s response to the Russian hacks in December 2016, in part because he believed retaliation for the hacks devalued his victory. Either for that reason, to pay off Russia, and/or to pursue his preferred policy, Trump tried to mitigate any sanctions, an attempt that has (with the notable exception of those targeting Oleg Deripaska) been thwarted by Congress.

Instead, however, we’re still arguing about a word — collusion — that was stripped of all meaning years ago, with the result that Mueller’s presumably very measured assessment of what happened cannot serve as the arbiter of truth we need.

Rosenstein may well be the unlikely hero of preserving some semblance of rule of law in this country. But along the way, his choice of language has unfortunately twice fostered the confusion about where the line between crime and misconduct is.

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

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

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

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

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

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

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

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

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

Judge Amy Berman Jackson Lays the Precedent for FARA

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I said while following yesterday’s live tweets of the Paul Manafort sentencing that, because so few FARA cases have been criminally prosecuted, Manafort’s will set some precedent going forward, as DOJ moves to put some prosecutorial teeth behind the law. So I wanted to look at the various things she said yesterday about it.

First, there’s the way she characterizes Manafort’s own actions. After calling out the way Manafort claims his entire life’s work has been about spreading democracy without actually presenting evidence to support the case (and leaving unstated the obvious fact that in fact he was more often serving dictators), she then notes that ultimately it was easier for him to get a win for his clients if he hid who he was working for.

The sentencing memorandum also states: Mr. Manafort has spent his life advancing American ideals and principles. It starts with his work on numerous political campaigns and positions within some of the administrations, and it goes on to say during his years outside of government service, Mr. Manafort also worked with world leaders. He has spent a lifetime promoting American democratic values and assisting emerging democracies to adopt reforms necessary to become a part of Western society.

At times he interacted with politicians and business people in emerging countries to assist in the development of American beliefs of equal justice, human rights, and free markets. There aren’t really any exhibits or letters that go along with that, so I don’t have the facts or the record before me that would permit me to either accept or question what is a very general description. It will fall to others in other settings to assess whether the way the defendant chose to market the access he gained during political campaigns and the work he did for the clients he represented has been characterized accurately. So it doesn’t factor into my consideration of the history and characteristics of the defendant.

[snip]

It may have been that in addition to thinking of his own finances, he had his clients’ ability to win in mind. He knew that revealing the true source behind the lobbying activities would have made those activities ineffective and unsuccessful, as the prosecutor said. Secrecy was integral. But that willingness to win at all costs was contrary to laws designed to ensure transparency in the political process and the legislative process. So it cannot possibly justify the behavior, particularly when there’s no question that this defendant knew better and he knew exactly what he was doing.

This is important background for how she distinguishes lobbying, even for sleazy clients, and lobbying without disclosing it.

It is important to note, in case there’s any confusion, notwithstanding the use of the word “agent,” an unregistered foreign agent is not a spy. He is a lobbyist. Lobbying is not illegal. Being paid to do it, even on behalf of clients who others might view as unseemly or odious or even tyrannical is not illegal, if you follow the laws that govern foreign financial transactions and pay your taxes. But this defendant kept his money offshore and under wraps so he wouldn’t have to pay.

[snip]

So what remains to be considered here? According to the defendant, it’s just an administrative matter, a regulatory crime, a violation of the Foreign Agent Registration Act. And that’s not a fair description. He was hiding the truth of who he represented from policymakers and the public, and that’s antithetical to the very American values that he told me he championed. And this was after he knew and already had been warned not to do it.

What becomes clear from this record is that defendant’s approach in his career, and what he didn’t abandon even after he was indicted, was that it’s all about strategy, positioning, public relations, spin. And you could say, well, there’s nothing wrong with that, at least if you’re not a journalist. But there is something wrong with it if you’re not simply advancing a position as part of a PR campaign.

It’s okay to say: Members of Congress, the government of the Ukraine, President Victor Yanukovych, would like you to consider the following when you consider how to respond to his actions, when you determine what the foreign policy of the United States should be. But what you were doing was lying to members of Congress and the American public, saying, look at this nice American PR firm, look at this nice U.S.-based law firm, look at this nice group of prominent former European officials, isn’t it great how they’ve all voluntarily stepped forward to stand up for Yanukovych and the new administration, when all along you were hiding that you and the Ukrainians actually had them on the payroll. This deliberate effort to obscure the facts, this disregard for truth undermines our political discourse and it infects our policymaking. If the people don’t have the facts, democracy can’t work.

That’s key background for how she treats Manafort’s specific violations of FARA. She dismisses Manafort’s claims that this is a mere registration violation in several ways that may lay important precedent: she invokes the money laundering (which prosecutors said was an important part of hiding the lobbying he was doing), the serial lies to DOJ — including lies told to his lawyer preparing his registration, and his efforts to get others (Tony Podesta, Vin Weber, and Greg Craig) to lie as well.

The other thing the sentencing statute tells me I’m supposed to do is I’m supposed to avoid unwarranted sentencing disparities among defendants with similar records who have been found guilty of similar conduct. With respect to sentencing disparities, the defense points primarily to other regulatory cases. But those involve, ordinarily, just a plain failure to register, or a plain failure to reveal a foreign bank account. They’re not analogous. They don’t involve, as here, a failure to register — to hide the existence of — multiple foreign bank accounts for the purpose of laundering millions of dollars, shielding millions of dollars from the IRS.

[snip]

I’ve got the regulatory FARA piece of Count 1 and the money laundering. And I don’t believe that’s covered by the Eastern District sentence and I think it has to be addressed. As I noted earlier, it’s not a mere oversight, it’s not a missing piece of paper. To the extent it could or should have been treated as a mere administrative matter, I think the defendant forfeited being able to rely on that sort of discretion on the part of law enforcement by having his lawyer lie to the Department of Justice twice on his behalf.

I do note that the Eastern District of Virginia found 30 months to be an appropriate sentence for the other single regulatory disclosure violation. And here, it wasn’t just a single failure to register; the defendant prevailed upon others in the scheme not to register either, and he admitted under oath at the plea that he caused them not to register.

Those three factors (the second of which was present in Mike Flynn’s FARA violation as well), are all likely to be aggravating factors that may got into criminal prosecution of FARA in the future.

Finally, there’s the timing. To rebut claims that these prosecutions were simply about long passed lobbying efforts, ABJ clearly describes the crime as persisting through the time Manafort twice lied to DOJ about his lobbying.

Furthermore, this conduct is not, as the defendant would have me conclude, old news. It’s not just some ancient failure to comply with a couple of regulations, something that took place so long before the campaign it’s just unfair and inappropriate to charge him for it in 2017. He pled guilty to laundering of funds through 2016. He pled guilty to a lobbying campaign in the United States for the government of Ukraine, Victor Yanukovych, and when he was out of office, his Party of Regions and the Opposition Bloc from 2005 to 2015. And the defense says, well, yes, but the government investigated and wrapped it all up and there wouldn’t have been a prosecution but for the appointment of the special counsel.

I’m not exactly sure what that prediction — which they’ve made to me repeatedly — is actually based on. I don’t believe there is evidence that a formal final determination was made. Prior to the time when anybody was even thinking about a special counsel, the Department of Justice was already looking into this matter. And when the Department of Justice — not the Office of Special Counsel — was looking into the matter, it asked Mr. Manafort questions. He lied to his own lawyers and he lied to the Department of Justice. He had them submit not one, but two letters, falsely stating that he had not performed lobbying activities in the United States on the part of the Ukraine.

That first lie was in November of 2016, after he resigned as campaign chair but well before the appointment of the special counsel. The second, in February, was after the special counsel investigation was underway. So it’s not entirely clear that a civil resolution would still have been possible at that point.

This, too, would have big implications for Flynn’s actions, since he lied to DOJ while he was at the White House.

Particularly given Manafort’s example, people are unlikely to wrack up these many aggravating factors in the future. But they do lay out a clear map for what a criminal FARA violation would look like in the future.

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

Mueller Is Close to Done, But the Andrew Weissmann Departure Is Overblown

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As my docket tracker of the Mueller and related investigations shows, around August 1, 2018, after finalizing the GRU indictment, Ryan Dickey returned to his duties elsewhere at DOJ.

Around October 1, 2018, after submitting a filing saying Mike Flynn was ready to be sentenced, Brandon Van Grack moved back to his duties elsewhere at DOJ (though he continues to be named in documents in the case, as he was Tuesday). He is now starting a prosecutorial focus on FARA.

Around October 15, 2018, Kyle Freeny, who had worked the money laundering angle on the GRU and Manafort cases, moved back to her duties elsewhere at DOJ.

Around December 31, 2018, after successfully defending the Mystery Appellant challenge in the DC Circuit, Scott Meisler moved back to his duties elsewhere at DOJ.

Today, after getting Paul Manafort sentenced to 7.5 years in prison, imposing a $24 million restitution payment, and an $11 million forfeiture (including of Manafort’s Trump Tower condo), multiple outlets are reporting that the guy in charge of prosecuting Manafort’s corruption, Andrew Weissmann, is moving to a job at NYU.

After each prosecutor has finished their work on the Mueller team, he or she has moved on. Weissmann’s departure is more final, since he’s leaving DOJ. But his departure continues a pattern that was set last summer. Finish your work, and move on.

Nevertheless, his departure is being taken as a surefire sign the Mueller investigation is closing up.

Let me be clear: I do agree Mueller is just about done with the investigation. He’s waiting on Mystery Appellant, possibly on Andrew Miller’s testimony; he may have been waiting on formal publication of Jerome Corsi’s book yesterday. Multiple other details suggest that Mueller expects to be able to share things in a month that he’s unable to share today.

None of that tells us what will happen in the next few weeks. There is abundant evidence that Trump entered into a quid pro quo conspiracy with Russia, trading dirt and dollars for sanctions relief and other policy considerations. But it’s unclear whether Mueller has certainty that he’d have an 85% chance of winning convictions, which is around what he’d need to convince DOJ to charge it. There is also abundant evidence that Trump and others obstructed the investigation, but charging Trump in that presents constitutional questions.

If Mueller does charge either of those things, I’d still expect him to resign and either retire or move back to WilmerHale and let other prosecutors prosecute it. That’s what Leon Jaworski did in Watergate.

The far more interesting detail from Carrie Johnson’s Weissmann report is that just some of Mueller’s team are returning to WilmerHale.

WilmerHale, the law firm that Mueller and several other prosecutors left to help create the special counsel team, is preparing for the return of some of its onetime law partners, three lawyers have told NPR in recent weeks.

I’m far more interested in the plans of James Quarles (who has been liaising with the White House and so presumably has a key part of the obstruction investigation) or Jeannie Rhee (who seems to have been overseeing the conspiracy investigation) than Mueller or his Chief of Staff, Aaron Zebley. Their plans might tell us more about what to expect in the next month (though Rhee appeared in Roger Stone’s status hearing today, and may be sticking around for his prosecution, which just got scheduled for November 5).

In any case, though, we don’t have long to wait, so it’s not clear that misreading the departure of Weissmann — which is better understood as part of the normal pattern of Mueller’s prosecutors leaving when they’re done — tells us anything useful.

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

Mike Flynn’s Cooperation and the Giglio Clock

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In a status filing yesterday, the government said, for the second time, that it is done with Mike Flynn. While Mike Flynn would like more time to make all the selling out of his country available to Emmet Sullivan look less ugly, Mueller said of Flynn’s cooperation,

[W]hile the defendant remains in a position to cooperate with law enforcement authorities, and could testify in the EDVA case should it proceed to trial, in the government’s view his cooperation is otherwise complete.

That is, unless Flynn can think of some other attempt to sell out the US for financial gain he wants to tell prosecutors about, the record on which he’ll be sentenced will remain largely the same.

And at least from that comment, Mueller’s team seems skeptical “the EDVA case” will go to trial.

Which is interesting because of the graymail that Flynn’s former sleazy influence peddling partner, Bijan Kian, is attempting in that EDVA case right now, and a request the government made yesterday in it.

Back on March 1, Kian moved to force the government to turn over all of Mike Flynn’s 302s under Giglio. (302s are what the FBI calls their interview reports, and Giglio is a discovery obligation to turn over the government communications it has about witnesses it will call to testify at trial). They pointed out that Flynn has a history of lying, even beyond the lies he pled guilty to, and the 302s the government had turned over were just a subset of the whole and were heavily redacted.

To date, the government has made available for defense counsel’s review certain FD-302 memoranda of interviews of Mr. Flynn. The government acknowledges that (i) the documents made available for review are an incomplete subset of all statements by Mr. Flynn to government agents (including the Office of Special Counsel) and (ii) a significant portion of the text of these documents has been heavily redacted.2

The government refused, noting that Flynn spoke to the government about a lot of things not having to do with his sleazy influence peddling having to do with Kian.

On February 22, 2019, the government responded that it “must decline [the] request,” basing its refusal on a government-determined standard of relevance that “General Flynn spoke to the FBI on a number of occasions on matters having nothing to do with Mr. Rafiekian specifically, or with Turkey or the Turkey project in general.”4 The government further stated, “We have read those 302s and are in the process of re-reviewing them with our Giglio obligations in mind . . . . Once we complete our prompt review of the unredacted 302s held by the Special Counsel’s Office, we will timely produce any Giglio information that we should find.”

Effectively, the defense was arguing that Flynn may have lied about the other topics he discussed with the government, so they need to see it so they can paint him as a liar during trial.

As I mentioned, this is really a (completely justifiable) graymail attempt rather than a legitimate search for proof of Flynn lying. Mueller’s team was pretty clear with Sullivan that once Flynn started cooperating, he cooperated in good faith.

But by asking for the 302s regarding the rest of his cooperation, Kian is asking for materials he knows the government is unwilling to share. All that stuff was kept sealed in December during Flynn’s aborted sentencing, we know some of it pertains to Trump’s potentially criminal conduct, and the other investigation on which Flynn cooperated (which is likely the CI side targeting Russia) appears to be even more sensitive than the potentially criminal conduct of the President of the United States. Kian is doing this to try to make going to trial more costly for the government. There’s abundant reason to believe that the government doesn’t need Flynn at trial for anything more than to certify the many emails on which he and Kian conducted their sleazy influence peddling, but given that he’s an unindicted co-conspirator, Kian is absolutely within his right to pretend that Flynn will be central.

This was supposed to be heard at a hearing last Friday, which got bumped to this Friday. But yesterday, the government just asked to have the hearing bumped four more weeks, to April 12, with their response to Kian’s request due April 5 (this request first reported by Josh Gerstein). That timing is pretty interesting, given that the government envisions finding “a potential resolution” that would moot Kian’s request.

The 302s of General Flynn’s interviews relating entirely to matters other than the pending charges against the defendant contain information concerning a number of sensitive matters, including ongoing investigations. The government is attempting to coordinate within the Department of Justice on a potential resolution that could moot much of the defendant’s request. However, this coordination requires time because of the various interests involved.

One resolution that would moot his request would be a plea (indeed, this case has seemed destined to be pled out to just the conspiracy to act as a Foreign Agent charge, just like Maria Butina did, from the start). Another would be the conclusion of the ongoing investigations that require his other 302s to be withheld. Or they might have another solution, such as summaries of the other 302s, akin to CIPA substitutions (which might be necessary in any case for an ongoing CI investigation into Russia).

Whatever the solution, DOJ thinks that solution will be available on April 5 where it’s not today.

Kian’s team has objected to that request, arguing that they need a lot of time to review this classified information. Again, this is graymail, but nevertheless a totally legitimate attempt to gain leverage in what are presumably plea discussions going on in the background.

Update: The judge denied the government’s motion for a continuance, which means the hearing will go forward on Friday morning.

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

Art of the Get-Screwed-in-Your-Russian-Quid-Pro-Quo Deal

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Donald J. Trump, self-proclaimed Master of the Deal, just got his ass handed to him in a high stakes nuclear negotiation by Kim Jong-Un, at a time when Trump had the full power of the United States and hundreds of experts available to help him.

And yet Russian conspiracy denialists believe that any conspiracy between said deal-maker and Vladimir Putin must show evidence that Trump came away with a big win over anything but the 2016 election. They believe this, even though Trump made any such deal at a time when he was desperate to avoid a humiliating loss, relying on negotiators like his feckless son Don Jr, his attention-craving personal lawyer Michael Cohen, and his financially exposed campaign manager Paul Manafort.

That’s what I learned last night when I walked Aaron Maté through the process of first claiming the Trump Tower deal went nowhere because Cohen and Felix Sater disagreed in December 2015, then admitting that Cohen and Sater were still at it in May and June 2016. By the end, Maté was dismissing Rudy Giuliani’s admission that the deal went through the election (which is itself a limited hangout designed to hide that a Trump Tower deal was pursued in two different forms after the election, as well as abundant evidence that other financial payoffs were dangled if not made) by pointing to Dmitry Peskov’s stories, which have changed right along with Michael Cohen’s evolving story.

Because there’s no shiny tower in Moscow with Trump’s name on it, Maté appears to believe, it is proof that when Don Jr took a meeting in June 2016 at which he (according to the sworn testimony of four people who attended) committed to revisit Magnitsky sanctions if his dad got elected, the possibility of a $300 million payoff didn’t factor in to Junior’s willingness to sign away American policy considerations on behalf of his father.

That’s not how criminal conspiracy law works.

If you sign up for a deal and take steps to make good on it — as Don Jr did on June 9, 2016 and Paul Manafort appears to have done on August 2, 2016 and Mike Flynn appears to have done, on Trump’s behalf, on December 29, 2016 — then it doesn’t matter if the partner to that deal fucks you over later in the process. And, after all, the Russians did continue to supply Trump with a steady supply of dirt on Hillary Clinton all through the election. They got Trump elected, or at least did what they could to help, even if that payoff wasn’t the one Trump was most interested in.

Do you think Oleg Deripaska, a key player in both the deal-making and likely in the cover-up of it, gives a shit if Paul Manafort — who had screwed Deripaska over years earlier — had his life ruined as part of the process of compromising a President and getting sanctions relief? My suspicion is we’ll learn that Deripaska actually magnified Manafort’s hurt, once he had gotten him to compromise himself and the campaign.

Do you think Putin really cares whether Trump — to say nothing of the United States — benefits from the stupid choices Trump made during the election? Putin — a far better “deal” maker than Trump — got a win-win either way: Either Trump succeeded in compromising America’s rule of law in an effort to squelch any investigation into what happened, robbing the United States of the claim to idealism that so irks the master kleptocrat, Putin, or Trump would spend his Administration desperately trying to find a way out, all the while Putin connives Trump into dismantling the alliances that keep Russia in check.

And, too, Putin’s election year operation exacerbated the polarization between Democrats and Republicans such that most Republicans and a goodly number of Democrats have been unable to step back and say, holy shit, this country got attacked and we need to come together to do something about it. Trump’s win got Republicans to fear Trump’s base so much that they care more about those fevered hordes than doing what is right for this country. And Democrats rightly want to punish Trump for cheating, but haven’t thought about what a least-damaging off-ramp for that cheater might look like.

Putin doesn’t care if Trump benefits from all this — though he is happy to keep toying with Trump like a cat plays before he eviscerates his mouse. He cares about whether he and his cronies win. And there are multiple ways for him to get a win out of this, whether or not Trump manages to eke out any kind of real payoff past the election.

And let’s be honest, Putin isn’t the only one playing this game. Certainly, Mohammed bin Salman feels the same way, even if his record of ruthless dealmaking is shorter and sloppier than Putin’s. The truth is that Donald Trump and Jared Kushner are easy marks for a whole range of skilled operators willing to stroke their egos and dangle loot, and over and over again they’ve let themselves be bested in foreign policy negotiations, to the detriment of the interests of the United States. That they are so bad at deal making in no way disproves their culpability.

There is no Trump Tower in Moscow. But there never had to be. All that was needed was the promise of a ridiculously lucrative narcissism-stroking deal for the Trump family to agree to shit that would hurt this country. And all the evidence suggests that they did, and continue to do so.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

[snip]

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

[snip]

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

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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

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

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

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

Eli Lake’s Serial Defense of Bibi Netanyahu’s Clandestine Tampering Makes Him the Poster Child Proving Ilhan Omar Right

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I haven’t really engaged in the serial debate over what Ilhan Omar or Rashida Tlaib should be permitted to say without being accused of anti-Semitism. Yes, as Muslim women, they are being selectively targeted, even as the President and Steve King make blatant racist comments with less pushback. But at least from afar, my sense was that the serial efforts to silence them have backfired, delineating (even as Bibi Netanyahu desperately shifts further right in a bid to retain power while being prosecuted for being a criminal sleaze) both the degree to which Congress has lagged the country in recognizing areas where Israel can and should be criticized and the degree to which a goodly number of American Jews agree with that. Omar and Tlaib will weather these attacks, I figure, and in the process, a lot of apology for Israeli human rights abuses will be exposed.

That was before I saw this astonishing column from Eli Lake. His specific attack — the purported complaint justifying the column — is that Omar has said, in several ways, that Israel has too much influence in Congress.

In response to a tweet from Representative Nita Lowey of New York, Omar explained that she “should not be expected to have allegiance/pledge support to a foreign country in order to serve my country in Congress.” The implication was that supporters of Israel in Congress were more loyal to the Jewish state than to America. The tweet followed an appearance at a Washington bookstore where she said she just wanted to talk about the influence of Israel on Congress without being called anti-Semitic.

Before he gets there, though, he rehearses past statements Omar has made that rightly were deemed tin-eared, but were also complaints about the influence of Israel in Congress.

That followed a tweet she sent last month suggesting that congressional support for Israel is “all about the Benjamins.”

Sensing a pattern? Omar has already had to apologize twice for her comments about Israel and its lobby. She didn’t know, she said, that saying Israel had hypnotized the world into accepting its war crimes might be offensive to Jews. She didn’t understand, she explained, how vile it is to say that members of Congress vote in favor of Israel because they are paid off. She says she opposes anti-Semitism but will not be silenced when it comes to the Jewish state’s pernicious efforts to shape U.S. foreign policy.

And before Eli Lake gets there, he first accuses elected Congresswoman Ilhan Omar — who, after all, is asking for a more balanced debate on Middle Eastern issues — of (!!!) “self-appointed policing of the national interest.” [my emphasis]

Now, before I go back and look at the truly disgusting accusation Lake makes of Omar because she opines that Israel has too much influence in Congress (Lake, down in paragraph nine, ultimately admits “criticism of the pro-Israel lobby is not in and of itself anti-Semitic”), let me talk about why it is so absurd that Lake, of all people, is making this attack.

Let’s pretend for the moment (I don’t agree, at all, but just for sake of debate) that Omar’s critics are right: that the language that she uses to criticize Israel’s influence on Congress continues to be anti-Semitic, which devalues her argument that Israel exercises detrimental influence in this country.

Now let’s consider how that argument comes from Eli Lake.

Lake has, twice, been the stenographer for complaints launched by Catholic congressman Devin Nunes about how the Executive Branch of the United States treats SIGINT capturing Israel’s efforts to undermine the official policy of the United States.

The second time was when Trump’s pick to be National Security Advisor, at a time when he was under active counterintelligence investigation for his ties to Russia, and at a time when he had not registered for serving as an agent of the state of Turkey, called up Russia’s ambassador to ask him to undercut the stated foreign policy position of then President Obama.

On or about December 21, 2016, Egypt submitted a resolution to the United Nations Security Council on the issue of Israeli settlements (“resolution”). The United Nations Security Council was scheduled to vote on the resolution the following day.

On or about December 22, 2016, a very senior member of the Presidential Transition Team directed FLYNN to contact officials from foreign governments, including Russia, to learn where each government stood on the resolution and to influence those governments to delay the vote or defeat the resolution.

On or about December 22, 2016, FLYNN contacted the Russian Ambassador about the pending vote. FLYNN informed the Russian Ambassador about the incoming administration’s opposition to the resolution, and requested that Russia vote against or delay the resolution.

As Lake himself reported, this Jared Kushner-led effort was coordinated with Bibi Netanyahu, whose lackeys were sharing their own intelligence to try to defeat the stated policy of the Administration at the time.

This was the context of Kushner’s instruction to Flynn last December. One transition official at the time said Kushner called Flynn to tell him he needed to get every foreign minister or ambassador from a country on the U.N. Security Council to delay or vote against the resolution. Much of this appeared to be coordinated also with Israeli prime minister Benjamin Netanyahu, whose envoys shared their own intelligence about the Obama administration’s lobbying efforts to get member states to support the resolution with the Trump transition team.

Now, not only did Mike Flynn (who was raised Catholic) call up the Russian Ambassador to try to thwart the policy of the United States, but he did so after someone in Trump’s transition told Obama that they would not undercut Obama’s policies before inauguration. When Flynn was asked about doing so by the FBI, he lied.

Those two attempts to hide this effort makes it a clandestine effort, backed by the intelligence of a foreign nation, to undercut the stated policy of the United States.

I mean, Devin Nunes was also upset that the Obama Administration caught Flynn and others trying to monetize policy considerations with the Emirates. But the 2017 panic over unmasking — sown largely by Eli Lake — has to do with Flynn and others being exposed for clandestinely working with foreign governments to undermine the stated policy of the US, and — at times in conjunction with that effort — to cash in on doing so.

Devin Nunes and Eli Lake think unmasking those communications was improper. (Here’s a tweet linking Lake’s series trying to claim this was some big civil liberties problem.)

According to Nunes as relayed by his scribe Eli Lake, the second unmasking panic built on an earlier one. The earlier one pertained (in part) to Israel sharing the intelligence it had collected by spying on Americans with Americans in an effort to undercut the policy of the President of the United States pursuing a peace deal with Iran.

Stepped-up NSA eavesdropping revealed to the White House how Mr. Netanyahu and his advisers had leaked details of the U.S.-Iran negotiations—learned through Israeli spying operations—to undermine the talks; coordinated talking points with Jewish-American groups against the deal; and asked undecided lawmakers what it would take to win their votes, according to current and former officials familiar with the intercepts.

As the WSJ (which Lake endorsed during our Twitter spat on this) laid out, unlike the Mike Flynn intercepts, the Obama Administration did not specifically ask for NSA to unmask any members of Congress; it let NSA decide what needed to be shared to make sense of the intercepts. But what NSA did share revealed how Israel was lobbying Congress to get votes to undercut the Administration. The intercepts also revealed which Israelis who had been privy to US classified briefings were leaking that information.

[T]he White House let the NSA decide what to share and what to withhold, officials said. “We didn’t say, ‘Do it,’ ” a senior U.S. official said. “We didn’t say, ‘Don’t do it.’ ”

[snip]

Netanyahu to deliver a speech to a joint session of Congress. A day later, Mr. Boehner called Ron Dermer, the Israeli ambassador, to get Mr. Netanyahu’s agreement.

Despite NSA surveillance, Obama administration officials said they were caught off guard when Mr. Boehner announced the invitation on Jan. 21.

Soon after, Israel’s lobbying campaign against the deal went into full swing on Capitol Hill, and it didn’t take long for administration and intelligence officials to realize the NSA was sweeping up the content of conversations with lawmakers.

The message to the NSA from the White House amounted to: “You decide” what to deliver, a former intelligence official said.

[snip]

The NSA reports allowed administration officials to peer inside Israeli efforts to turn Congress against the deal. Mr. Dermer was described as coaching unnamed U.S. organizations—which officials could tell from the context were Jewish-American groups—on lines of argument to use with lawmakers, and Israeli officials were reported pressing lawmakers to oppose the deal.

[snip]

A U.S. intelligence official familiar with the intercepts said Israel’s pitch to undecided lawmakers often included such questions as: “How can we get your vote? What’s it going to take?”

NSA intelligence reports helped the White House figure out which Israeli government officials had leaked information from confidential U.S. briefings. [my emphasis]

In other words, this earlier panic was handled the way surveillance is; it only became a problem because so many members of Congress, from both parties, were being caught up in calls with Bibi or his minions. That is, it only became a panic because Israel so aggressively and confidently believes it can bend the will of Congress.

Which seems to be Omar’s point.

So the second panic is based off a first one that deems normal surveillance improper because Israel generally and Bibi specifically so prolifically lobbies Congress that normal surveillance amounts to a breach of the separation of powers.

Which is why this thread started with me mocking that the chief scribe for Nunes’ complaints that Bibi’s efforts — in both 2014 and 2016 — to undermine the stated policy of the United States got picked up by the NSA.

After that, he spent the day complaining (seven times!) that I was writing a post on a breaking surveillance issue and doing an hour long conference call on surveillance, rather than explaining why spying on Bibi (and suspected foreign agent Mike Flynn) undermining stated US foreign policy wasn’t a civil liberties issue.

I hope you can see how Eli Lake, of all people, is not very persuasive in suggesting that Ilhan Omar’s views — that Israel has too much influence over Congress — must be silenced.

And Eli Lake, the chief scribe attempting to portray pretty exceptional efforts by Bibi Netanyahu to get Christians like Devin Nunes and Mike Flynn and Tom Cotton to undercut the stated policy of the US, doesn’t just scold elected Representative Ilhan Omar for being her, quote, “self-appointed policing of the national interest.” He also likens her — by spinning what his own actions prove to be Israel’s exceptional influence over Congress generally, including Christians — to David Duke.

Here is a Somali-American refugee success story, a woman who embodies the American ideal of citizenship not based on race, creed or religion. And yet, in barely two months in office, the Minnesota Democrat has repeatedly questioned the loyalty of Zionists.

Historically this kind of thing has been associated with the ugly nativist strain of American politics. David Duke famously called the federal government the ZOG, for Zionist-Occupied Government. A similar note was sounded by Pat Buchanan, who once called Congress Israel’s “amen corner.” More recently one finds this sentiment on the left: A few years back, the Center for American Progress parted ways with a few bloggers after they used the term “Israel Firster” to describe pro-Israel members of Congress.

I wouldn’t consider Devin Nunes or Mike Flynn or Tom Cotton to be Zionists at all (though Cotton is definitely a Neocon). But somehow Lake spins what his very career proves to be the case — that Israel exercises a great deal of influence in DC — to suggest Somali-American Omar is a nativist.

From anyone else, this would just be a stupid racist attack. But coming from Lake it is parody that nevertheless proves Omar’s point better than almost anything else could.

Update: Changed how I described Flynn’s FARA crime to match the timeline DOJ currently uses.

Quid Pro Quo Redux, Part Two: Russian Government Involvement in All Three Conspiracy Agreements

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Given reports that Mueller will “report” imminently, I’m not sure I’m going to finish the second version of my Quid Pro Quo series laying out the evidence of a conspiracy between the Trump campaign and Russia trading campaign help and real estate deals for sanctions relief (here’s the initial series; here’s the first post of this second series). But I’d like to make a point as a way of showing that Amy Berman Jackson deemed Paul Manafort’s August 2, 2016 meeting with Konstantin Kilimnik to be evidence of a link between the Russian government and the campaign.

We know of at least five conversations at which various people entered into what I describe as a quid pro quo conspiracy:

  1. January 20, 2016, when Michael Cohen told Dmitry Peskov’s personal assistant that Trump would be willing to work with a GRU-tied broker and (soft and hard) sanctioned banks in pursuit of a $300 million Trump Tower deal in Russia.
  2. June 9, 2016, when Don Jr, knowing that currying favor with Russia could mean $300 million to the family, took a meeting offering dirt on Hillary Clinton as “part of  Russia and its government’s support for Mr. Trump.” At the end of the meeting, per the testimony of at least four attendees, Don Jr said they’d revisit Magnitsky sanctions if his dad won.
  3. August 2, 2016, when Paul Manafort and Rick Gates had a clandestine meeting with Konstantin Kilimnik at which Trump’s campaign manager walked Kilimnik through highly detailed poll data and the two discussed a “peace” plan for Ukraine understood to amount to sanctions relief.
  4. December 29, 2016, when (working on instructions relayed by KT McFarland, who was at Mar-a-Lago with Trump) Mike Flynn said something to Sergey Kislyak that led Putin not to respond to Obama’s election-related sanctions.
  5. January 11, 2017, when Erik Prince, acting as a back channel for Trump, met with sanctioned sovereign wealth fund Russian Direct Investment Fund CEO Kirill Dmitriev.

Remember: to enter into a conspiracy you have to agree to one object of a conspiracy (a conspiracy might have multiple objectives), and take an overt act to further that conspiracy. You don’t have to agree to all objects of the conspiracy, nor do you have to know about all parts of it.

The key conversations in this conspiracy, it seems to me, are the middle three: the June 9 Trump Tower plus dirt for sanctions relief agreement, the August 2 election assistance for sanctions agreement, and the December 29 reassurance that Trump would revisit Obama’s sanctions. The involvement of the Russian government in the fourth one — with Sergey Kislyak and Mike Flynn on a series of phone calls relaying messages back and forth between Putin and Trump — is obvious (as it is for the first and fifth).

It’s the other two where, in recent months, the government has solidified its proof of direct Russian government involvement.

Natalia Veselnitskaya, Russian government agent, at the June 9 meeting

They did so for the June 9 meeting on December 20 when they charged Natalia Veselnitskaya with obstruction of justice. The indictment alleges that an MLAT request served on the Russian government in the Prevezon case was actually drafted by Veselnitskaya. As Joshua Yaffa argued after the indictment was unsealed on January 8, the indictment will probably never result in prison time for Veselnitskaya but it does substantiate a claim that she is an agent of Russia.

In short, the U.S. Attorney’s office alleges that a document that was ostensibly prepared by the office of Russia’s general prosecutor and sent to its counterparts in the U.S. Department of Justice was in fact drafted, or at least edited, by Veselnitskaya herself, who then went on to cite the document as independent proof of her version of events. In this manner, the U.S. Attorney’s office alleges, “Veselnitskaya obstructed the civil proceeding in the Prevezon action then pending in this District.”

[snip]

Veselnitskaya is unlikely ever to return to the United States. This means that U.S. prosecutors are probably less interested in this particular, narrow matter than in what filing charges allows them to do going forward. “If the government wants on record that Natalia is a Russian government agent, this indictment serves this purpose,” the former member of the Prevezon defense team told me. That is to say, if and when charges are filed in relation to the Trump Tower meeting, prosecutors now have a building block on which to argue that, in her actions in the United States, Veselnitskaya did not represent merely herself and her client but the interests of Russian officials. That should worry Donald Trump, Jr., and Jared Kushner, who attended the meeting with Veselnitskaya, and, in turn, the President himself.

So when Don Jr told Veselnitskaya on June 9, 2016, that Trump would revisit sanctions if he won, he was effectively telling an agent of the Russian government that.

Konstantin Kilimnik, Russian government link, at the August 2 meeting

While the redactions require logic to demonstrate the case, Amy Berman Jackson’s explanation of her breach decision shows she believes that Konstantin Kilimnik — regardless of his alleged ties to the GRU — served as a link to the Russian government at that August 2 meeting.

Early on in the hearing, while ruling that she regards Manafort’s attempts to backtrack on his confession to conspiring with Kilimnik to witness tamper in 2018 to be bad faith but not proven, she questions Manafort’s loyalties while calling Kilimnik his “Russian conspirator.”

To me, this is definitely an example of a situation in which the Office of Special Counsel legitimately concluded he’s lying to minimize things here, he’s not being forthcoming, this isn’t what cooperation is supposed to be. This is a problematic attempt to shield his Russian conspirator from liability and it gives rise to legitimate questions about where his loyalties lie.

When she turns to the two-fold lies about Manafort’s ongoing meetings with Kilimnik (which starts on page 28, line 2), here’s what ABJ judges, up to the point where she talks about whether Kilimnik is a tie to Russia:

  • Manafort’s most problematic Ukraine peace deal lie is that he never discussed a peace deal after August because he thought it was a bad idea. His subsequent emails supporting one show that claim to be an “alternative narrative.”
  • Manafort’s denial of the Madrid meeting amounts to denying a contact. (29)
  • Manafort offered “a series of revised explanations” about providing questions for a poll on a Ukraine peace deal in conjunction with running another campaign in Ukraine. (29-30)
  • Manafort’s claims to have forgotten about the August 2 meeting because he was so busy running Trump’s campaign in fact show the opposite. That’s because sharing polling data “relates to the campaign.” If he was “so single-mindedly focused on the campaign, then the meeting he took time to attend” to share polling data and discuss a Ukraine “peace” plan had a purpose related to the campaign. Or, if he only took the meeting to curry favor with Ukrainian and Russian paymasters, “well, in that case he’s not being straight with me about how single-minded he was. It’s not good either way.” (31)
  • The clandestine nature of the meeting, with Gates and Manafort arriving and leaving separately “because of the media attention focused at that very time on Manafort’ relationships with Ukraine” further undermines his claims he can’t remember the meeting. (32)
  • In heavily redacted language, ABJ lays out why she finds Gates’ testimony on the August 2 meeting credible. (33-35)
  • There’s further corroboration surrounding the August 2 meeting, which Manafort appears to have tried to rebut with information newly submitted on February 8 (which seems to relate to an earlier meeting and may be an effort to suggest this was dated polling information). (34)
  • There are a series of emails from Kilimnik to somebody else (possibly ones sharing the information) that corroborate Gates’ story. (35)
  • The defense claim that the polls are gibberish doesn’t fly because Manafort, Gates, and Kilimnik all understood them. Indeed, these polls (presumably from Fabrizio) were the ones Manafort preferred and that Kilimnik would understand. (35-36)

The discussion of whether Kilimnik amounts to a tie to Russia starts on 36; it is a response to Manafort’s attempt to disprove that this exchange is material by arguing that Mueller has alleged, but not proven, that Kilimnik has ties to Russian intelligence (which suggests not even Manafort is claiming that these events don’t amount to a tie with Russia). ABJ starts that discussion by moving directly from describing (in a heavily redacted passage) who the intended recipients of the data were to the Russian question.

Also, the evidence indicates that it was understood that [redacted–poll data] would be [redacted] from Kilimnik [redacted] including [redacted], and [redacted]. Whether Kilimnik is tied to Russian intelligence or he’s not, I think the specific representation by the Office of Special Counsel was that he had been, quote, assessed by the FBI, quote, to have a relationship with Russian intelligence, close quote.

The only way that ABJ would make that transition, logically, is if the descriptions behind some of those redactions are Russians. If they were just the Ukrainian oligarchs the NYT claims they were, this entire passage — and Manafort’s attempted rebuttal of them (that is, to deny its import because Kilimnik himself has no ties to Russian intelligence) — makes zero sense.

Having made that transition, ABJ then lays out why she doesn’t have to determine whether Kilimnik is himself Russian intelligence to determine that he does amount to a tie to the Russian government.

Whether that’s true, I have not been provided with the evidence that I would need to decide, nor do I have to decide because it’s outside the scope of this hearing. And whether it’s true or not, one cannot quibble about the materiality of this meeting.

In other words, I disagree with the defendant’s statement in docket 503, filed in connection with the dispute over the redactions, that, quote, the Office of Special Counsel’s explanation as to why Mr. Manafort’s alleged false statements are important and material turns on the claim that he is understood by the FBI to have a relationship with Russian intelligence.

I don’t think that’s a fair characterization of what was said. The intelligence reference was just one factor in a series of factors the prosecutor listed. And the language of the appointment order, “any links,” is sufficiently broad to get over the relatively low hurdle of materiality in this instance, and to make the [redaction] Kilimnik and [redaction] material to the FBI’s inquiry, no matter what his particular relationship was on that date.

From there, ABJ dismisses the defense claim that because Kilimnik made comments about various loyalties (possibly to the press, possibly to the State Department), he couldn’t be Russian intelligence. She even suggests that an email sent on August 18, 2016, at a time when Manafort’s ties to Ukraine were becoming incredibly toxic, may not be all that reliable. She notes the timing: “Manafort was gone the next day.”

Having dismissed that claim, ABJ then judges that “Manafort made intentional false statements to the FBI and the grand jury with respect to the material issue of his interactions with Kilimnik, including, in particular, [redacted; this must either be a reference to the August 2 meeting generally or the sharing of polling data].

But then ABJ makes a more general statement, having reviewed the multiple efforts Manafort made to obscure his relationship with Kilimnik. In it, she repeats again that he is a link to Russia, whether or not he’s an active spy.

On that note, I also want to say we’ve now spent considerable time talking about multiple clusters of false or misleading or incomplete or needed-to-be-prodded-by-counsel statements, all of which center around the defendant’s relationship or communications with Mr. Kilimnik. This is a topic at the undisputed core of the Office of Special Counsel’s investigation into, as paragraph (b) of the appointment order put it, Any links and/or coordination between the Russian government and individuals associated with the campaign.

Mr. Kilimnik doesn’t have to be in the government or even be an active spy to be a link. The fact that all of this is the case, that we have now been over Kilimnik, Kilimnik, and Kilimnik makes the defense argument that I should find the inaccurate statements to be unintentional because they’re all so random and disconnected, which was an argument that was made in the hearing, is very unpersuasive.  [my emphasis]

To have ruled this conversation material, ABJ rules that Kilimnik (especially the sharing of this polling data, seemingly) amounts to a link with the Russian Government, whether or not he has ties to Russian intelligence. And note, this is a link to the Russian government, not just a link to a Russian like Oleg Deripaska.

We don’t know why that is so; it seems like it relates to the recipients of this polling data. But we know she considers him one, according to the preponderance of the evidence she has seen.

Mind you, if this is all moving just to a report claiming such a conspiracy, but stopping short of charging one, then it may not matter all that much.

But for the three main exchanges in which Trump flunkies entered into agreements that form part of a larger conspiracy, at least one key player has been deemed to have a tie to the Russian government this year (and of course the other two exchanges — Cohen to Peskov and Prince to Kirill — also have obvious Russian government involvement).

RESOURCES

These are some of the most useful resources in mapping these events.

Mueller questions as imagined by Jay Sekulow

CNN’s timeline of investigative events

Majority HPSCI Report

Minority HPSCI Report

Trump Twitter Archive

Jim Comey March 20, 2017 HPSCI testimony

Comey May 3, 2017 SJC testimony

Jim Comey June 8, 2017 SSCI testimony

Jim Comey written statement, June 8, 2017

Jim Comey memos

Sally Yates and James Clapper Senate Judiciary Committee testimony, May 8, 2017

NPR Timeline on Trump’s ties to Aras Agalarov

George Papadopoulos complaint

George Papadopoulos statement of the offense

Mike Flynn 302

Mike Flynn statement of the offense

Mike Flynn cooperation addendum

Peter Strzok 302 (describing Flynn’s interview)

Michael Cohen statement of the offense

Internet Research Agency indictment

GRU indictment

Senate Judiciary Committee materials on June 9 meeting

BuzzFeed documents on Trump Tower deal

Text of the Don Jr Trump Tower Meeting emails

Jared Kushner’s statement to Congress

Erik Prince HPSCI transcript

Government declaration supporting breach determination

Manafort breach hearing

Amy Berman Jackson breach determination hearing

Amy Berman Jackson order finding Manafort breached his plea deal

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

On Mueller’s Choice Not to Elaborate on Paulie’s Lies

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Back in November, I noted that by finding Paul Manafort in breach of his plea deal, Mueller guaranteed he could write a report — in the form of a sentencing memo laying out the significance of his lies — that Big Dick Toilet Salesman could not suppress.

And that “detailed sentencing submission … sett[ing] forth the nature of the defendant’s crimes and lies” that Mueller mentions in the report?

There’s your Mueller report, which will be provided in a form that Matt Whitaker won’t be able to suppress.

Back in December, I noted that at each step of his investigation, Mueller has chosen to submit far more details into the public record than necessary, effectively issuing a report of his work along the way. The WaPo and AP have neat stories in the last few days substantiating that that remains the case.

Indeed, today’s sentencing memo reinforces that point, insofar as it includes 577 pages of trial exhibits laying out Manafort’s sleazy influence peddling with respect to Ukraine.

What it doesn’t do is what I suggested — had Mueller chosen to use it as such — he might do, if he believed his report would be suppressed by the then [Acting] Attorney General, which is to use this report to lay out extensive details of what his investigation discovered. Rather than doing that, which would totally be in the norm for sentencing memos (indeed, Mueller would have been able to present more than Manafort’s lies as related conduct), he instead simply notes that Amy Berman Jackson is already familiar with all that.

Manafort’s conduct after he pleaded guilty is pertinent to sentencing. It reflects a hardened adherence to committing  crimes and lack of remorse. As the Court is fully familiar with this proof, we do not repeat the evidence herein.

The sentencing memo then incorporates Special Counsel’s submissions on the breach determination.

The government relies on and incorporates herein its submissions on this issue.

In a footnote supporting the first statement, the memo cites ABJ’s order finding that Manafort had lied to protect a Trump flunkie in another investigation, lied to hide why and how he dealt polling data to Konstantin Kilimnik at a meeting where they also discussed a Ukrainian peace deal (which Manafort knew to be code for sanctions relief), lied about his ongoing discussions about a sanctions-relief peace deal, and lied about a kickback scheme he had with vendors he hired to work for Trump’s campaign. It also cites the transcript where she explained her ruling on those issues, which among other things deemed the August 2, 2016 meeting to be material to the investigation, including the core issue of coordination with the Russian government.

[O]ne cannot quibble about the materiality of this meeting.

[snip]

This is a topic at the undisputed core of the Office of Special Counsel’s investigation into, as paragraph (b) of the appointment order put it, Any links and/or coordination between the Russian government and individuals associated with the campaign.

A footnote supporting the second statement cites the FBI’s declaration supporting the breach determination, which also included a slew of exhibits.

Of course, the transcript, declaration, and exhibits are significantly (almost entirely, in the case of the breach exhibits) redacted. Some of those redactions are dictated by law and DOJ regulations. The grand jury transcripts are protected by grand jury secrecy rules. The description of the other DOJ investigation Manafort lied about is protected as an ongoing investigation. And names of unindicted people are protected per DOJ regulations.

But the rest of those materials are redacted for another reason: to protect the investigation.

In addition, we know that Mueller actually didn’t show all the evidence of Manafort’s ongoing communications with the Trump administration, including communications that “provid[e] information about the questions or other things that are happening in the special counsel investigation, … sharing that with other people.” That was the only area where ABJ totally disagreed with Mueller’s claim that Manafort was in breach (she agreed Manafort’s lies about conspiring with Kilimnik were not good faith cooperation, but said making a finding that they had proven it without a transcript was “challenging”). In other words, Mueller could have presented more evidence that Manafort continued to be in communication with Trump to get ABJ’s ruling on that topic too, but didn’t, at least in part because they didn’t want to share what they knew with Manafort.

So Mueller chose not to make that information available, when he could have, especially given reports (which I have no reason to doubt) that the investigation is substantially complete. Compare the decision to keep that stuff secret with what Mueller did in the George Papadopoulos, Mike Flynn, Michael Cohen, and draft Jerome Corsi pleas, and Roger Stone’s indictment. In each of the other accusations of lying, Mueller laid out juicy details that pointed to key details of the investigation. Here, in a case where they legitimately considered charging Manafort with more false statements charges, they chose to keep precisely the kind of stuff they had disclosed in other false statements accusations secret. Particularly on the issue of sharing polling data, which Andrew Weissmann described to be the “the core of what it is that the special counsel is supposed to be investigating” because they pertained to whether contacts with Russia “were more intentional or not,” Mueller kept the key details redacted to protect the ongoing investigation.

And by choosing to leave the record where it stands — by choosing not to describe what the evidence shows regarding that August 2 meeting in this sentencing memo — Mueller has deviated from the approach he has taken in every other instance (including this one, as it pertains to Manafort’s Ukrainian lobbying) where he had an opportunity to provide a speaking document.

So it was, in fact, the case that deeming Manafort to be in breach provided an opportunity — that Big Dick Toilet Salesman could not and did not prevent — to provide more information. We got snippets of that, especially on the August 2 meeting. If Mueller believed he could not present a substantive final report now, he could have presented those details in unredacted form.

But is also the case that Mueller deviated from past practice. And he did so not because he didn’t believe the lies were material, nor because he believed the lies weren’t criminal, as the lies that Papadopoulos, Flynn, Cohen, Corsi, and Stone all told also were. Both Weissmann and ABJ made it clear the lies, particularly about that August 2 meeting, were central to the topic of investigation. He deviated from past practice to protect an ongoing investigation we have every reason to believe is substantially completed.

That leads me to believe he’s certain he will be able to provide a report in some public form, presumably in the same kind of detail he has presented in all his other statements. He doesn’t need to avail himself of this opportunity to do so.

I don’t know what that means about what form the report will take. I don’t know what that means about what it will show with regards to criminal conduct (except that, presumably, we’ll get the details that remain hidden about the August 2 meeting and communications with Trump’s people).

But it does make it clear that even given the opportunity to follow past practice at a time when, according to most reporting, the investigation is substantially done, Mueller chose not to avail himself of that opportunity, instead just pointing to materials that hide the most important details to protect the investigation.

After predicting (given claims that have since not borne out that the report was coming out next week) that this sentencing memo would lay out precisely the details that Mueller chose to keep hidden with his citations to redacted documents, I argued “we’ll learn a lot abt what [reports that Mueller is done] means from Manafort’s sentencing memo tho.”

I believe it suggests that Mueller plans to and believes he can present the details about that August 2 meeting somewhere else.

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