Posts

About the Two Investigations into Donald Trump

/113 Comments/in , /by

I’m still pretty cranky about the timing and form of Andrew McCabe’s publicity tour.

But since it’s out there, I’d like to comment on three details, two of which have gotten significant comment elsewhere.

Trump wanted Rod Rosenstein to include Russia in the reasons he should fire Comey

The first is that Trump specifically asked Rosenstein to include Russia — McCabe doesn’t further specify what he meant — in the letter recommending he fire Jim Comey.

McCabe says that the basis for both investigations was in Mr. Trump’s own statements. First, Mr. Trump had asked FBI Director Comey to drop the investigation of National Security Adviser Michael Flynn, who has since pleaded guilty to lying to the FBI about his Russian contacts.  Then, to justify firing Comey, Mr. Trump asked his deputy attorney general, Rod Rosenstein, to write a memo listing the reasons Comey had to go. And according to McCabe, Mr. Trump made a request for that memo that came as a surprise.

Andrew McCabe: Rod was concerned by his interactions with the president, who seemed to be very focused on firing the director and saying things like, “Make sure you put Russia in your memo.” That concerned Rod in the same way that it concerned me and the FBI investigators on the Russia case.

If Deputy Attorney General Rosenstein listed the Russia investigation in his memo to the White House, it could look like he was obstructing the Russia probe by suggesting Comey’s firing. And by implication, it would give the president cover.

Scott Pelley: He didn’t wanna put Russia in his memo.

Andrew McCabe: He did not. He explained to the president that he did not need Russia in his memo. And the president responded, “I understand that, I am asking you to put Russia in the memo anyway.”

When the memo justifying Comey’s firing was made public, Russia was not in it. But, Mr. Trump made the connection anyway, telling NBC, then, Russian diplomats that the Russian investigation was among the reasons he fired Comey.

The most obvious explanation for this is that Trump wanted to box DOJ in, to prevent them from expanding their investigative focus from one campaign foreign policy advisor, a second campaign foreign policy advisor, his former campaign manager, his National Security Advisor, and his lifelong political advisor to the one thing those five men had in common, Trump.

But it’s also possible that Trump wanted Rosenstein to do what Don McGahn had narrowly prevented Trump from doing, effectively shifting the obstruction to Rosenstein. That seems like what Rosenstein was worried about, an impression he may have gotten from his instructions from McGahn, laying out the case that investigating Russia would get you fired.

It’s possible, too, that Trump was particularly interested in the public statement for the benefit of the Russians, a view supported by the fact that Trump made sure he fired Comey before his meeting with Sergey Lavrov and Sergey Kislyak, and then stated that he had more freedom with Comey gone. That is, it’s possible he needed to prove to the Russians that he could control his own DOJ.

The order to Rosenstein was one of the predications for the investigation into Trump

McCabe elaborates on a story told at least partly by the Peter Strzok-Lisa Page texts: that the day after Trump fired Comey, FBI moved to open two investigations into Trump. A number of people have suggested McCabe just vaguely pointed to Trump’s statements, but he’s more specific than that. One of the statements was that order to Rosenstein to include Russia in the firing memo.

Scott Pelley: How long was it after that that you decided to start the obstruction of justice and counterintelligence investigations involving the president?

Andrew McCabe: I think the next day, I met with the team investigating the Russia cases. And I asked the team to go back and conduct an assessment to determine where are we with these efforts and what steps do we need to take going forward. I was very concerned that I was able to put the Russia case on absolutely solid ground in an indelible fashion that were I removed quickly or reassigned or fired that the case could not be closed or vanish in the night without a trace.

[snip]

Andrew McCabe: There were a number of things that caused us to believe that we had adequate predication or adequate reason and facts, to open the investigation. The president had been speaking in a derogatory way about our investigative efforts for weeks, describing it as a witch hunt…

President Trump on Feb. 16, 2017: Russia is a ruse. I have nothing to do with Russia. Haven’t made a phone call to Russia in years.

Andrew McCabe: …publicly undermining the effort of the investigation. The president had gone to Jim Comey and specifically asked him to discontinue the investigation of Mike Flynn which was a part of our Russia case. The president, then, fired the director. In the firing of the director, the president specifically asked Rod Rosenstein to write the memo justifying the firing and told Rod to include Russia in the memo. Rod, of course, did not do that. That was on the president’s mind. Then, the president made those public comments that you’ve referenced both on NBC and to the Russians which was captured in the Oval Office. Put together, these circumstances were articulable facts that indicated that a crime may have been committed. The president may have been engaged in obstruction of justice in the firing of Jim Comey.

As McCabe describes it, the other things are obstruction-related: Trump’s attacks on the Russian investigation.

But remember, McCabe had heard the substance of Mike Flynn’s comments to Sergei Kislyak. The rest of us have seen just outlines of it. In some way, Mike Flynn convinced Sergei Kislyak on December 29, 2016, that Russia had Trump’s assurances on sanctions relief. Trump may well have come up specifically. In any case, the FBI would have had good reason — from Flynn’s lies, and his call records showing his consultations before he lied — to suspect Trump had ordered Flynn’s statements to Kislyak.

McCabe describes the genesis of the obstruction and the counterintelligence investigation

Finally, McCabe provides additional details to the dual investigation into Trump: the obstruction one arising out of Trump’s efforts to kill the Russian investigation, and the counterintelligence one into whether Trump was doing that at Russia’s behest (which goes back to my initial point, that Trump may have wanted Russia included in the firing memos as a signal to Russia he could kill the investigation).

Andrew McCabe: …publicly undermining the effort of the investigation. The president had gone to Jim Comey and specifically asked him to discontinue the investigation of Mike Flynn which was a part of our Russia case. The president, then, fired the director. In the firing of the director, the president specifically asked Rod Rosenstein to write the memo justifying the firing and told Rod to include Russia in the memo. Rod, of course, did not do that. That was on the president’s mind. Then, the president made those public comments that you’ve referenced both on NBC and to the Russians which was captured in the Oval Office. Put together, these circumstances were articulable facts that indicated that a crime may have been committed. The president may have been engaged in obstruction of justice in the firing of Jim Comey.

Scott Pelley: What was it specifically that caused you to launch the counterintelligence investigation?

Andrew McCabe: It’s many of those same concerns that cause us to be concerned about a national security threat. And the idea is, if the president committed obstruction of justice, fired the director of the of the FBI to negatively impact or to shut down our investigation of Russia’s malign activity and possibly in support of his campaign, as a counterintelligence investigator you have to ask yourself, “Why would a president of the United States do that?” So all those same sorts of facts cause us to wonder is there an inappropriate relationship, a connection between this president and our most fearsome enemy, the government of Russia?

Scott Pelley: Are you saying that the president is in league with the Russians?

Andrew McCabe: I’m saying that the FBI had reason to investigate that. Right, to investigate the existence of an investigation doesn’t mean someone is guilty. I would say, Scott, if we failed to open an investigation under those circumstances, we wouldn’t be doing our jobs.

With that laid out, I’d like to look at Rod Rosenstein’s August 2 memo laying out precisely what Mueller was — and had, from the start — been authorized to investigate, which both Paul Manafort and the President’s flunkies in Congress spent a great deal of effort trying to unseal. Knowing as we now do that the redacted passages include at least one and probably two bullet points relating to Trump himself, it seems more clear than every that once you lay out the investigations into Trump’s flunkies known to have been predicated at the time, that’s all that would have been included in the memo:

  • Obstruction investigation into Trump
  • Counterintelligence investigation into Trump
  • Election conspiracy investigation into Manafort
  • Ukrainian influence peddling investigation into Manafort
  • Transition conspiracy investigation into Flynn
  • Turkish influence peddling investigation into Flynn
  • Counterintelligence investigation into Carter Page
  • Election conspiracy investigation into George Papadopoulos
  • Election conspiracy investigation into Roger Stone

At that point, there wouldn’t have been space for at least two of the three bullets that now exist on a scope memo, as laid out by Jerome Corsi’s draft plea (though “c” may have been there in conjunction with Stone).

At the time of the interview, the Special Counsel’s Office was investigating the Russian government’s efforts to interfere in the 2016 presidential election, including:

a. the theft of campaign-related emails and other documents by the Russian government’s Main Intelligence Directorate of the General Staff (“GRU”);

b. the GRU’s provision of certain of those documents to an organization (“Organization 1”) for public release in order to expand the GRU’s interference in the 2016 U.S. presidential election campaign; and

c. the nature of any connections between individuals associated with the U.S. presidential campaign of Donald J. Trump (“Trump Campaign”) and the Russian government or Organization 1.

That’s another to believe — as I have long argued — that bullets a and b got moved under Mueller at a later time, probably around November 2017. After Flynn flipped, the Middle Eastern pass-through corruption would likely have been added, and inauguration graft probably got added after Rick Gates flipped (before the non-Russian parts of both got spun off).

One thing that means, if I’m correct, is that at the time Mueller was hired, the investigation consisted of predicated investigations into probably six individuals. While there would have been a counterintelligence and criminal aspect to both, there was a criminal aspect to each of the investigations, with specific possible crimes envisioned. If that’s right, it means a lot of hot air about Mueller’s appointment simply misunderstood what part of Comey’s confirmed investigation got put under Mueller at first.

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.

In any case, the certainty that there are at least one and probably two bullets pertaining to Trump in that August 2 memo is interesting for a few more reasons.

It makes it far more likely that the Strzok 302 — based on a July 19, 2017 interview, drafted the following day, and finalized August 22 — was an effort to formalize Mueller’s authorization to investigate the President. The part of the 302 that pertains to Mike Flynn’s interview takes up the middle third of the report. The rest must lay out the larger investigations, how the FBI found the intercepts between Flynn and Kislyak, and what the response to the interview was at DOJ.

The 302 is sandwiched between two events. First, it follows by just a few weeks the release of the June 9 meeting emails. Indeed, the interview itself took place on the day the NYT published the interview where Trump admits he and Putin spoke about adoptions — effectively making it clear that Putin, not Trump, drafted a statement downplaying that the meeting had established a dirt-for-sanctions relief quid pro quo.

The 302 was also drafted the day before Mueller started pursuing the transition emails and other comms from GSA that would have made it clear that Trump ordered Flynn’s statements and key members of the transition team knew that.

Specifically, on August 23, 2017, the FBI sent a letter (i.e., not a subpoena) to career GSA staff requesting copies of the emails, laptops, cell phones, and other materials associated with nine PTT members responsible for national security and policy matters. On August 30, 2017, the FBI sent a letter (again, not a subpoena) to career GSA staff requesting such materials for four additional senior PTT members.

It also happens to precede, by days, when Michael Horowitz would inform Christopher Wray and then Mueller about the Page-Strzok texts, though that is almost certainly an almost unbelievable coincidence.

In any case, as I’ve noted, unsealing that August 2 memo has been like a crown jewel for the obstructionists, as if they knew that it laid out the investigation into Donald Trump. That effort has been part of a strategy to suggest any investigation into Trump had to be improper, even one investigating whether he engaged in a quid pro quo even before the General Election started, trading US policy considerations — starting with, but not limited to, sanctions relief — in exchange for help getting elected.

The obstructionists want to claim that an investigation that started with George Papadopoulos and then Carter Page and then Mike Flynn (the obstructionists always seem to be silent about Paul Manafort and Roger Stone, as if they knew who engaged in substantive conspiracy with the Russians) should not end up with Donald Trump. And they do so, I think, to suggest that at the moment it discovered that quid pro quo in July 2017, it was already illegitimate.

But as McCabe said, “the FBI had reason to investigate that. Right, to investigate the existence of an investigation doesn’t mean someone is guilty. I would say, Scott, if we failed to open an investigation under those circumstances, we wouldn’t be doing our jobs.”

It just turned out that Trump was guilty.

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. 

Four Sentences: What the Legal System Has Said about the Suspect Loyalty of Trump’s Aides

/136 Comments/in , /by

In an attempt to undercut Andrew McCabe’s publicity tour, the President is on a tear, attacking what he claims was McCabe and Rod Rosenstein’s “treasonous” insurance policy.

We’re at a point where both sides are making claims of treason, which only serves to feed the intensity of both sides, without convincing Trump’s supporters (and other denialists) that the concerns about Trump’s loyalty — and therefore the investigation that McCabe opened into him — are well-grounded.

But there are neutral third party observers here, weighing the claims of loyalty. Four different sentencing processes have sided with those questioning the loyalty of Trump and those close to him.

George Papadopoulos

In the first two cases where Trump flunkies have been sentenced, the flunkies themselves have pointed to how their own misplaced loyalties caused them to commit crimes. In George Papadopoulos’ sentencing memo, he attributed the actions that led to his prosecution — his attempts to broker a meeting between Putin and Trump — to a desire to curry Trump’s favor.

Eager to show his value to the campaign, George announced at the meeting that he had connections that could facilitate a foreign policy meeting between Mr. Trump and Russian President Vladimir Putin. While some in the room rebuffed George’s offer, Mr. Trump nodded with approval and deferred to Mr. Sessions who appeared to like the idea and stated that the campaign should look into it.

George’s giddiness over Mr. Trump’s recognition was prominent during the days that followed the March 31, 2016 meeting. He had a sense of unbridled loyalty to the candidate and his campaign and set about trying to organize the meeting with President Putin.

Papadopoulos says he lied to the FBI out of loyalty to Trump.

Mr. Papadopoulos misled investigators to save his professional aspirations and preserve a perhaps misguided loyalty to his master.

[snip]

George explained that he was in discussions with senior Trump administration officials about a position and the last thing he wanted was “something like this” casting the administration in a bad light. The agents assured him that his cooperation would remain confidential.

More specifically, he lied to avoid tainting the Trump campaign with any tie to Russia.

George found himself personally conflicted during the interrogation as he felt obligated to assist the FBI but also wanted to distance himself and his work on the Trump campaign from that investigation. Attempting to reconcile these competing interests, George provided information he thought was important to the investigation while, at the same time, misleading the agents about the timing, nature, and extent of his contacts with Professor Mifsud, Olga, and Ivan Timofeev. In his answers, George falsely distanced his interactions with these players from his campaign work. At one point, George told the agents that he did not want to “get too in-depth” because he did not know what it would mean for his professional future. He told the agents he was “trying to help the country and you guys, but I don’t want to jeopardize my career.”

George lied about material facts central to the investigation. To generalize, the FBI was looking into Russian contacts with members of the Trump campaign as part of its larger investigation into Russian interference with the 2016 election. This issue had dominated the news for several months with stories concerning Carter Page and Paul Manafort. The agents placed this issue squarely on the table before George and he balked. In his hesitation, George lied, minimized, and omitted material facts. Out of loyalty to the new president and his desire to be part of the administration, he hoisted himself upon his own petard.

I have argued that this memo served the dual purpose of accepting responsibility while signaling others and reaffirming his loyalty to Trump, and I stand by that. Given his efforts to reverse his sentence, Papadopoulos show of contrition at his hearing was just that, a ruse. But it was one of the things that convinced Judge Randolph Moss to impose just two weeks. Another, however, were the comments of Papadopoulos’ lawyer, Thomas Breen, who argued Trump had obstructed the Mueller investigation far more than his client had.

Trump, Breen said, “hindered this investigation more than George Papadopoulos ever could,” by calling the FBI’s Russia inquiry a “witch hunt” and casting doubt on credible allegations of wrongdoing by his associates.

“The president of the United States, the commander in chief, told the world that this was fake news,” Breen said, contrasting this with Mueller’s “professional” and “well-prepared” team.

In imposing prison time, Moss emphasized that Papadopoulos lied about a manner of grave importance.

The judge noted that most defendants convicted on a false-statement charge don’t get any prison time, but he said he considered the Mueller investigation “a matter of enormous importance.” Moss, an appointee of President Barack Obama who served as a top Justice Department official under President Bill Clinton, described the inquiry as an attempt to investigate an “effort to interfere in our democracy.”

“It’s important that the public know there are real consequences when you mislead and tell lies to the FBI about a matter of grave national importance,” he said.

[snip]

Breen said his client was trying to preserve his job prospects in the Trump administration, but Moss told the lawyer that those were “not noble reasons to tell a lie.”

“This was fairly calculated,” the judge said. “It took six months for Mr. Papadopoulos to correct the record.”

So Papadopoulos’ lawyers agreed his loyalties were misplaced and Judge Moss judged that Papadopoulos’ lies pertained to something that strikes at the integrity of our democracy.

Michael Cohen

As Papadopoulos did, Michael Cohen attributed his obstruction to his blind loyalty to Trump and a desire to sustain Trump’s false narrative denying ties to Russia.

I made these misstatements to be consistent with Individual 1’s political messaging and out of loyalty to Individual 1.

In his cynical, Lanny Davis-crafted statement at sentencing, Cohen talked about how he put loyalty to Trump over that to his family, ending with an apology to the US.

 I blame myself for the conduct which has brought me here today, and it was my own weakness, and a blind loyalty to this man that led me to choose a path of darkness over light. It is for these reasons I chose to participate in the elicit act of the President rather than to listen to my own inner voice which should have warned me that the campaign finance violations that I later pled guilty to were insidious.

Recently, the President Tweeted a statement calling me weak, and he was correct, but for a much different reason than he was implying. It was because time and time again I felt it was my duty to cover up his dirty deeds rather than to listen to my own inner voice and my moral compass. My weakness can be characterized as a blind loyalty to Donald Trump, and I was weak for not having the strength to question and to refuse his demands.

[snip]

I stand behind my statement that I made to George Stephanopoulos, that my wife, my daughter, my son have my first loyalty and always will. I put family and country first. My departure as a loyal soldier to the President bears a very hefty price.

For months now the President of the United States, one of the most powerful men in the world, publicly mocks me, calling me a rat and a liar, and insists that the Court sentence me to the absolute maximum time in prison. Not only is this improper; it creates a false sense that the President can weigh in on the outcome of judicial proceedings that implicate him.

[snip]

I want to apologize to the people of the United States. You deserve to know the truth and lying to you was unjust.

In sentencing Cohen, Judge William Pauley pointed to how his ties to Trump and the access that gave him led him to lose his moral compass.

[H]is entire professional life apparently revolved around the Trump organization. He thrived on his access to wealthy and powerful people, and he became one himself.

[snip]

But somewhere along the way Mr. Cohen appears to have lost his moral compass and sought instead to monetize his new-found influence. That trajectory, unfortunately, has led him to this courtroom today.

Cohen’s guilty plea — particularly the way he tried to cabin off cooperation implicating his family — is cynical as hell. But to the extent he is willing to help prosecutors, it entails being treated as a traitor by the President.

Mike Flynn

The other two Trump flunkies who’ve gotten close to sentencing are even more striking — in part because they have been less successful at crafting a fiction about setting their loyalty to Trump or other paymasters aside.

Flynn was set to get probation until he and his lawyer used their own sentencing memo to continue the line all the other loyal Trump flunkies have, suggesting that the investigation was illegitimate.

There are, at the same time, some additional facts regarding the circumstances of the FBI interview of General Flynn on January 24, 2017, that are relevant to the Court’s consideration of a just punishment.

At 12:35 p.m. on January 24, 2017, the first Tuesday after the presidential inauguration, General Flynn received a phone call from then-Deputy Director of the FBI, Andrew McCabe, on a secure phone in his office in the West Wing.20 General Flynn had for many years been accustomed to working in cooperation with the FBI on matters of national security. He and Mr. McCabe briefly discussed a security training session the FBI had recently conducted at the White House before Mr. McCabe, by his own account, stated that he “felt that we needed to have two of our agents sit down” with General Flynn to talk about his communications with Russian representatives.21

Mr. McCabe’s account states: “I explained that I thought the quickest way to get this done was to have a conversation between [General Flynn] and the agents only. I further stated that if LTG Flynn wished to include anyone else in the meeting, like the White House Counsel for instance, that I would need to involve the Department of Justice. [General Flynn] stated that this would not be necessary and agreed to meet with the agents without any additional participants.”22

Less than two hours later, at 2:15 p.m., FBI Deputy Assistant Director Peter Strzok and a second FBI agent arrived at the White House to interview General Flynn.23 By the agents’ account, General Flynn was “relaxed and jocular” and offered to give the agents “a little tour” of the area around his West Wing office. 24 The agents did not provide General Flynn with a warning of the penalties for making a false statement under 18 U.S.C. § 1001 before, during, or after the interview. Prior to the FBI’s interview of General Flynn, Mr. McCabe and other FBI officials “decided the agents would not warn Flynn that it was a crime to lie during an FBI interview because they wanted Flynn to be relaxed, and they were concerned that giving the warnings might adversely affect the rapport,” one of the agents reported.25 Before the interview, FBI officials had also decided that, if “Flynn said he did not remember something they knew he said, they would use the exact words Flynn used, . . . to try to refresh his recollection. If Flynn still would not confirm what he said, . . . they would not confront him or talk him through it.”26 One of the agents reported that General Flynn was “unguarded” during the interview and “clearly saw the FBI agents as allies.”27

While Emmet Sullivan — ever on guard against prosecutorial misconduct — might have done so anyway, this led the judge to ask for the paperwork behind Flynn’s claims. Which in turn led to the production of really damning details of Flynn’s lies. That, in turn, led Sullivan to hesitate before sentencing Flynn, in part because the “great deal of nonpublic information in this case” he read led him to grow disgusted about what Flynn had done. Sullivan, as the first judge to read in detail about Mueller’s underlying investigation, said some absolutely remarkable things (and note, at least some of this language pertains to Flynn selling out to Turkey, not Russia).

I’m going to also take into consideration the aggravating circumstances, and the aggravating circumstances are serious. Not only did you lie to the FBI, but you lied to senior officials in the Trump Transition Team and Administration. Those lies caused the then-Vice President-Elect, incoming Chief of Staff, and then-Press Secretary to lie to the American people. Moreover, you lied to the FBI about three different topics, and you made those false statements while you were serving as the National Security Advisor, the President of the United States’ most senior national security aid. I can’t minimize that.

Two months later you again made false statements in multiple documents filed pursuant to the Foreign Agents Registration Act. So, all along you were an unregistered agent of a foreign country, while serving as the National Security Advisor to the President of the United States.

[snip]

COURT: All right. I really don’t know the answer to this question, but given the fact that the then-President of the United States imposed sanctions against Russia for interfering with federal elections in this country, is there an opinion about the conduct of the defendant the following days that rises to the level of treasonous activity on his part?

[snip]

I mean, arguably, that undermines everything this flag over here stands for (indicating). Arguably, you sold your country out. The Court’s going to consider all of that. I cannot assure you that if you proceed today you will not receive a sentence of incarceration. But I have to also tell you that at some point, if and when the government says you’ve concluded with your cooperation, you could be incarcerated.

It could be that any sentence of incarceration imposed after your further cooperation is completed would be for less time than a sentence may be today. I can’t make any guarantees, but I’m not hiding my disgust, my disdain for this criminal offense.

So in this case, Flynn’s bid to discredit the investigation instead led to remarkable comments about how Flynn’s underlying crimes — the ones he lied to cover-up — amount to selling out his country.

Paul Manafort

Which brings us to Paul Manafort, who is currently facing what amount to be several life sentences because he refused to cooperate, even after promising to do so, against Trump and his Ukrainian and Russian paymasters. As I have noted, Manafort’s lies served to avoid giving the government evidence that Trump conspired with Russia to get elected.

But don’t take my word for it. In announcing her ruling in the breach determination last week, Amy Berman Jackson paid special attention to Manafort’s lies about Konstantin Kilimnik. The most important lie, it seems, pertains to Manafort sharing of detailed polling data with Kilimnik at a meeting where they also discussed sanctions relief in the guise of a Ukrainian peace detail. The description of whom Manafort intended that data to be shared with is redacted. But ABJ moved directly from describing the intended recipients to judging that sharing the data amounts to a link with Russia.

Also, the evidence indicates that it was understood that [redacted] 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. 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.

[snip]

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 [redacted] Kilimnik and [redacted] material to the FBI’s inquiry, no matter what his particular relationship was on that date.

She continued by saying that she didn’t even have to determine whether — as the government claims — Kilimnik has active ties to GRU. Whatever Kilimnik’s ties to Russian military intelligence, ABJ still considers his relationship with Manafort to implicate coordination with the Russian government.

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.

ABJ’s most striking comments, however, came in language introducing why, even though she didn’t find that Mueller’s team had proven Manafort’s lies about conspiring with Kilimnik to be proven by a preponderance of the evidence, it nevertheless was obvious that what Manafort was trying to do in disclaiming a conspiracy with Kilimnik was to “shield his Russian conspirator.”

Mr. Manafort doesn’t just say to the agents, Kilimnik doesn’t believe he was pressuring the witness, or Kilimnik didn’t think he was suborning perjury, he didn’t intend to violate U.S. law, he makes the affirmative assertion that Kilimnik believed the project was a European project, when Manafort plainly knew that Kilimnik knew it wasn’t and the documents plainly reflect that it wasn’t, and that was the basis for the conspiracy count to which he pled guilty in the first place.

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.

We have yet to get Mueller’s sentencing memo in the DC case or ABJ’s response to any claims they may make about why Manafort chose to face a life sentence rather than tell the truth about his conspiracies with Konstantin Kilimnik.

But it’s pretty clear that ABJ believes Manafort’s lies suggest he has suspect loyalties.

Four times so far in this investigation, Trump’s aides have started the sentencing process for their crimes designed to obstruction Robert Mueller’s investigation. All four times, before four different judges, their misplaced loyalty to Trump above country has come up. And with both Flynn and Manafort — where the judges have seen significant amounts of non-public information about the crimes they lied to cover-up — two very reasonable judges have raised explicit questions about whether Trump’s aides had betrayed their country.

Trump wants this to be a case of contested claims of betrayal. But the judges who have reviewed the record have used striking language about who betrayed their country.

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. 

Peter Carr Speaks

/101 Comments/in , /by

Yesterday, Mueller’s spox Peter Carr issued a statement vaguely denying Thursday’s Buzzfeed story claiming that Trump ordered Michael Cohen to lie.

BuzzFeed’s description of specific statements to the special counsel’s office, and characterization of documents and testimony obtained by this office, regarding Michael Cohen’s congressional testimony are not accurate.

Clearly, there are parts of the story that are correct, in that they provide specific details that match the vague ones Mueller himself has released.

The new details in the story include a price tag for the Trump Tower detail: Trump, “hoped could bring his company profits in excess of $300 million” (Mueller’s sentencing memorandum stated that the deal might be worth “hundreds of millions of dollars from Russian sources in licensing fees and other revenues”).  It quantifies how many times Trump and Cohen spoke about the deal: Trump, “had at least 10 face-to-face meetings with Cohen about the deal during the campaign.” It also confirms that Don Jr and Ivanka were the “family members” described in Cohen’s allocution who were apprised of the details.

That, by itself, suggests that Buzzfeed’s sources have direct access to some of this evidence.

But one thing Mueller is almost certainly responding to is a claim that puts blame for the lies Cohen told to Congress on Trump. Michael Cohen is under oath saying not that Trump ordered him to lie, but that he lied to match the messaging that Trump was using.

By 2017 I was no longer employed in this capacity, but continued to serve on several matters as an attorney to the former CEO of the Trump Organization and now President of the United States, who is referred to as Individual 1 in the information.

As I had in the years before the election, I continued in 2017 to follow the day-to-day political messaging that both Individual 1 and his staff and advisers repeatedly broadcast, and I stayed in close contact with these advisers to Individual 1. As such, I was aware of Individual 1’s repeated disavowals of commercial and political ties between himself and Russia, his repeated statements that investigations of such ties were politically motivated and without evidence, and that any contact with Russian nationals by Individual 1’s campaign or the Trump Organization had all terminated before the Iowa Caucus, which was on February 1 of 2016.

In 2017, I was scheduled to appear before the Senate Select Committee on Intelligence as well as the House Permanent Select Committee on Intelligence concerning matters under their investigation, including principally whether Russia was involved in or interfered in the 2016 campaign and election.

In connection with my appearances, I submitted a written statement to Congress, including, amongst other things, a description of a proposed real estate project in Moscow that I had worked on while I was employed by the Trump Organization.

That description was false — I knew at the time — in that I had asserted that all efforts concerning the project had ceased in January of 2016 when, in fact, they had continued through June of 2016;

That I had very limited discussions with Individual 1 and others in the company concerning the project, when in fact I had more extensive communications; and,

Lastly, that I had never agreed to travel to Russia in connection with the project and had never asked Individual 1 to travel, when in fact I took steps to and had discussions with Individual 1 about travel to Russia.

And I would like to note that I did not in fact travel there, nor have I ever been to Russia.

I made these misstatements to be consistent with Individual 1’s political messaging and out of loyalty to Individual 1. [my emphasis]

That’s a point I made yesterday: Buzzfeed’s story materially differed from the sworn testimony in the case, and even if their sources were right that, in fact, Trump sanctioned Cohen’s lie, they should have explained why Mueller says differently.

Notably, Cohen’s allocution says that he “stayed in close contact with these advisers to Individual 1,” not that he was talking to Trump directly. It’d be hard (though by no means impossible) to have been ordered directly by Trump to lie if he was no longer in day-to-day contact with Trump.

Carr is also seemingly objecting to this characterization:

The special counsel’s office learned about Trump’s directive for Cohen to lie to Congress through interviews with multiple witnesses from the Trump Organization and internal company emails, text messages, and a cache of other documents.

That’s unsurprising. He’s denying that Mueller has documents and Trump Organization (which may be different from White House) witnesses that would make Cohen’s sworn allocution false. In any case, Trump doesn’t use email, so there’s no email where Trump ordered Cohen to lie.

My very strong suspicion is that this happened — and Mueller pushed back — for two reasons.

First, as I noted yesterday, Buzzfeed’s sources appear to have access to primary evidence, but their focal awareness of what Cohen said to Mueller appears to be limited to precisely what Cohen’s sentencing memo had. That is, Buzzfeed didn’t receive any of the details that would be more useful for understanding how the Trump Tower deal relates to any larger conspiracy between Trump and Russia, they received the details that made it into the sentencing memo.

Cohen’s sentencing went through SDNY, where his other guilty plea was, which means SDNY (both the US Attorney’s office and the FBI Field Office) would have visibility on that process. So it’s likely that Buzzfeed’s sources are there, which would be consistent with the two descriptions Buzzfeed provided for their two law enforcement sources.

two federal law enforcement officials involved in an investigation of the matter

law enforcement sources familiar with his testimony to the special counsel

If that’s right, it explains a big part of what happened. As I noted yesterday, there’s a stark difference in the way that Cohen allocuted his hush payments for Trump and the way he allocuted his lies for Trump. Regarding the hush payments, he says he acted at the direction of Trump.

With respect to the conduct charged in these Counts, Michael kept his client contemporaneously informed and acted on his client’s instructions. This is not an excuse, and Michael accepts that he acted wrongfully. Nevertheless, we respectfully request that the Court consider that as personal counsel to Client-1, Michael felt obligated to assist Client-1, on Client-1’s instruction, to attempt to prevent Woman-1 and Woman-2 from disseminating narratives that would adversely affect the Campaign and cause personal embarrassment to Client-1 and his family. [my emphasis]

Regarding the lies to Congress, he says he was just trying to advance Trump’s political messaging.

Michael’s false statements to Congress likewise sprung regrettably from Michael’s effort, as a loyal ally and then-champion of Client-1, to support and advance Client-1’s political messaging. [my emphasis]

Both these statements would have been written in consultation with the prosecutors running the case. So SDNY used a fairly aggressive frame to implicate Trump in the hush payments, whereas Mueller was much more circumspect about Trump’s role.

The difference may, in part, be that when Cohen made those hush payments he was still working directly for Trump, and so was in a position to get a direct order rather than speaking (as he said he was) with Trump’s advisers. But even if both cases basically show Trump making his intentions known and Cohen executing those intentions, there’s a good reason for the asymmetry on the description.

Cohen is not a cooperating witness for SDNY. While they continue to investigate Trump and Trump Organization for campaign finance violations, they’re not relying on Cohen to make that case. They’re relying on immunized testimony from Allen  Weisselberg and David Pecker. So SDNY (whether people in the office or FBI Agents assigned to the case) has no incentive to be exacting in their description of the evidence on the Trump Tower deal. They can go big, just like they did in the hush payment allocution.

Cohen is, however, a cooperating witness for Mueller. If and when they make a case that the Trump Tower deal was part of a larger election year conspiracy, they will likely need to be able to call Cohen to the stand and describe the truth of how he kept Trump and Don Jr in the loop on the deal, most notably to explain how it factored into Don Jr’s mindset when he accepted a meeting offering dirt in exchange for sanctions relief. They need Cohen to explain that Don Jr would have understood there was $300 million riding on that meeting.

Everything about how Mueller’s team has handled Cohen attests to that possibility. They didn’t need to charge him with false statements and the charge did not add any prison time to his sentence. They didn’t need to make him publicly explain, under oath, why he lied. But by doing that, they began to rehabilitate Cohen publicly. In spite of Cohen’s significant cooperation, they didn’t offer him a 5K letter at sentencing, meaning he’s still on the hook for cooperation; unlike Mike Flynn, for example, he’s not getting a sentence reduction before he takes the stand. But because of the way they handled it, they can mandate his silence about what he told Mueller, demand that Congress limit the scope of his testimony next month, and dictate any response Cohen made yesterday to the story.

The possibility they’ll put Cohen on the stand is likely one reason why Cohen’s allocution about the Trump Tower lies is so much more modest than the SDNY allocution: Mueller will need to be able to corroborate, with other documentary evidence, everything that Cohen will ultimately testify to. And so while they may have reason to believe Trump approved of the lies being told on his behalf — maybe even ordered people at Trump Organization or his spawn to do what they needed to sustain the lies (which might look to SDNY law enforcement as clear evidence that he was directing the lies) — Mueller is not going to set the bar for proof of Cohen’s statement anywhere further than they need for a possible larger conspiracy case. And they don’t need to prove that Trump had a role in Cohen’s lies. Rather, they need to be able to prove that Cohen kept Trump and Don Jr in the loop on the deal itself.

If all this is right, it — and not the magnitude of any errors in the Buzzfeed story (because there have been a number of other big stories where the errors were clearly just as significant) — explains why Carr issued a statement yesterday. First, to make it very clear that in Mueller’s mind, Cohen’s allocution was honest, that he wasn’t (for example) protecting Trump in taking responsibility for the initial lie. But also, to make sure the bar they very deliberately set for Cohen’s testimony remained precisely where they put it in his plea allocution. The last thing Mueller needs is a juror who thinks that unless they show an email with Trump ordering Cohen to lie, then Cohen’s testimony is false. And by making this unprecedented statement, Mueller will make it harder for any defense attorney to raise the bar on what Mueller needs to prove in this case.

There’s probably another reason why Carr made this statement. I don’t doubt that Mueller hates Jason Leopold and Anthony Cormier for the way they got the financial transfer part of this story when no one else did, and more of the Moscow Tower deal story than others (which seems to be forgotten in the squawking about Buzzfeed’s loneliness on this latest story).

But I suspect Carr took this step, even more, as a message to SDNY and any other Agents working tangents of this case. Because of the way Mueller is spinning off parts of this case, he has less control over some aspects of it, like Cohen’s plea. And in this specific case (again, presuming I’m right about the SDNY sourcing), Buzzfeed’s sources just jeopardized Mueller’s hard-earned reputation, built over 20 months, for not leaking. By emphasizing in his statement what happened in “the special counsel’s office,” “testimony obtained by this office,” Carr strongly suggests that the people who served as sources had nothing to do with the office.

A couple more points. A lot of people are complaining that Carr didn’t more aggressively warn Buzzfeed off the story (though he did provide what sounds like Cohen’s allocution, which — if it had been reviewed by one of Buzzfeed’s superb legal reporters — probably would have led to the cautions I raised yesterday). I get why that would be nice. But I think people really misunderstand the degree to which Mueller knows that every single action they take will eventually be subjected to scrutiny courtesy of a Judicial Watch FOIA. And any hint at all that Carr provided any inkling about the case to journalists will be blown up by Trump and his lawyers.

Finally, the actions Carr took yesterday (and Mueller’s big-footing on Cohen’s testimony before the Oversight Committee next month) only make sense if Cohen might have to play a role in a possible trial, and not a report submitted confidentially to Attorney General William Barr. That’s what more likely explains Carr’s response than anything else: the discrepancy between what Buzzfeed reported and what Cohen allocuted posed a risk to a possible jury trial. And that may explain another reason why Mueller is a lot more modest about Trump’s role in Cohen’s lies than SDNY is.

Trump’s not going to be indicted by Mueller — at least not before he leaves office via election defeat or impeachment. So Mueller’s focus needs to be on the crimes of those he can charge, like Don Jr. That doesn’t rule out that the evidence he’s looking at shows that Trump oversaw a series of coordinated false statements. He did! With Mike Flynn’s lies, Don McGahn’s clean up of Flynn and Jim Comey’s firings, the response to the June 9 meeting, and yes, this Trump Tower deal, nothing explains the coordinated story-telling of multiple Trump flunkies other than Trump’s approval of those lies. It is, frankly, journalistic malpractice that the press hasn’t noted that, especially on the June 9 meeting, the evidence that Trump lied and ordered others to has already been made public. Trump’s tacit (and explicit, with the June 9 statement) approval of serial false statements, to Congress, to the FBI Director, to FBI Agents, and to Mueller, is an impeachable offense. Multiple outlets have gotten solid proof of that, they just haven’t stated the obvious like Buzzfeed did, perhaps in part because they’re relying on White House sources for their reporting.

But Mueller won’t need to allege that for his case in chief, at least not on the issue of the Trump Tower deal. Because the events that matter to Mueller’s case in chief — the events to which Cohen might have to serve as a witness — happened in 2016, not 2017 or 2018. And the guilt that Mueller would need to prove beyond a reasonable doubt if he does indict this conspiracy is not Trump’s guilt — except as an unindicted co-conspirator. It is Don Jr’s guilt.

So outlets that are suggesting that Mueller’s pushback backs off any evidence that Trump committed a crime make no more sense than the original Buzzfeed report (and ignore the actual evidence of how Cohen’s lies evolved, an evolution in which these outlets were active participants). The only thing that explains Carr issuing such an unprecedented statement is if Cohen’s ability to testify on the stand must be preserved.

Robert Mueller has the unenviable task of needing to sustain as much credibility for a bunch of serial liars as possible, starting with Michael Cohen. Buzzfeed’s story — whether generally true or erroneous on details about Trump Organization witnesses or totally wrong — threatened that effort.

And that’s why, I strongly suspect, Peter Carr finally publicly spoke.

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. 

Compromise: Before Trump Won His First Primary, Putin Collected His First Receipt

/134 Comments/in , , /by

In this post, I noted that, while important, the Buzzfeed story on Trump’s role in Michael Cohen’s lies to Congress did not advance our understanding of  how the Trump Tower deal fits into the larger Trump conspiracy with Russia.

It doesn’t include a number of details that would be more important for understanding how the Trump Tower deal relates to other parts of Trump’s conspiracy with Russians: who (if not Trump himself or Don Jr) was the senior campaign official who knew of Cohen’s negotiations, precisely what Don Jr knew of the negotiations on June 3 when he took a meeting described to be “part of  Russia and its government’s support for Mr. Trump,” and whether the timing of Cohen’s plans for a trip to St. Petersburg — which started on June 9 and ended on June 14 — related somehow to the June 9 Trump Tower meeting and the June 14 revelation that Russians had hacked the DNC. It’d also be useful to know whether Cohen had any 2016 dealings with Ike Kaveladze, who knew of Cohen from the 2013 business dealings between Trump and the Agalarovs, and who had a curious reaction to a video of him in the wake of the June 9 meeting story breaking. Those are the details that would advance the story of how the Trump Tower deal relates to Russia’s efforts to hack the election.

But there is a piece of the Cohen statement of the offense the significance of which hasn’t gotten sufficient attention. That’s the detail that Dmitry Peskov’s personal assistant took detailed notes from a 20-minute January 20, 2016 phone call with Cohen, which led to Putin’s office contacting Felix Sater the next day.

On or about January 16, 2016, COHEN emailed [Peskov]’s office again, said he was trying to reach another high-level Russian official, and asked for someone who spoke English to contact him.

On or about January 20, 2016 , COHEN received an email from the personal assistant to [Peskov] (“Assistant 1 “), stating that she had been trying to reach COHEN and requesting that he call her using a Moscow-based phone number she provided.

Shortly after receiving the email, COHEN called Assistant 1 and spoke to her for approximately 20 minutes. On that call, COHEN described his position at the Company and outlined the proposed Moscow Project, including the Russian development company with which the Company had partnered. COHEN requested assistance in moving the project forward, both in securing land to build the proposed tower and financing the construction. Assistant 1 asked detailed questions and took notes, stating that she would follow up with others in Russia.

The day after COHEN’s call with Assistant 1, [Sater] contacted him, asking for a call. Individual 2 wrote to COHEN, “It’s about [the President of Russia] they called today.”

Cohen had lied about this, claiming that he had emailed Peskov’s public comment line just once, but gotten no response.

This language is important not just because it shows that Cohen lied.  It’s important because of what Cohen would have said to Peskov’s assistant. And it’s important because a written record of what Cohen said got handed on to Putin’s office, if not Putin himself.

BuzzFeed’s piece from May reveals that Cohen would have been in discussions with one of two banks in January 2016: VTB or GenBank.

Their surrogates in Moscow would be meeting with Putin and a “top deputy” just two days later, and they had financing: VTB Bank President and Chairman Andrey Kostin was on board to fund the project, Sater said in an email.

The bank was a dicey choice. VTB was under US sanctions at the time, with American citizens and companies forbidden to do business with it. Asked by congressional investigators if he knew the bank was blacklisted, Sater responded: “Of course. I wasn’t seeking funding, the local development partner would have. Trump Organization never gets financing from local partners.”

[snip]

New Year’s Eve 2015, he sent Cohen an image of a letter from GenBank — not VTB Bank, as they had earlier discussed — inviting the men to Moscow for a visit.

Just nine days earlier, the US Treasury Department had sanctioned GenBank for operating in Crimea after the disputed Russian takeover. GenBank became the first Russian financial institution to move into the Crimean peninsula.

Both were sanctioned. While Sater (who seems to have knowingly set this trap) dismissed the import of the sanctions, Cohen clearly knew — and left record that he knew in communications with Sater — that they were the intended funders.

A former GRU officer contact of Sater’s was key to obtaining funding from VTB.

This friend is a former member of the GRU, Russia’s military intelligence unit that the US intelligence community believes interfered during the 2016 election.

[snip]

[On December 19], Sater told Cohen that their invitations and visas were being arranged by VTB Bank, and that Kostin, the bank’s powerful president and chairman, would meet Cohen in Moscow. Key to getting VTB on board was the former GRU spy; Sater told congressional and special counsel investigators that the former spy said he had a source at VTB Bank who would support the deal.

Obtaining funding from GenBank would have relied on Putin and Peskov.

Sater told Cohen that GenBank operates “through Putin’s administration and nothing gets done there without approval from the top. The meetings in Moscow will be with ministers — in US, that’s cabinet-level and with Putin’s top administration people. This likely will include Dmitry Peskov, Putin’s press secretary. To discuss goals, meeting agenda and meeting time between Putin and Trump.”

The BuzzFeed article makes it clear that Sater’s GRU contact got back involved after Cohen’s conversation with Peskov’s assistant.

All of which is to say that when Cohen called Peskov’s assistant, he would have told her that he was speaking on behalf of Donald Trump, that Trump remained interested in a Trump Tower in Moscow (as he had been in 2013, the last time Putin had dangled a personal meeting with Trump), and that on Trump’s behalf Cohen was willing to discuss making a deal involving both a sanctioned bank (whichever one it was) and a former GRU officer.

So it’s not just that Trump was pursuing a real estate deal while running for President. He was pursuing a real estate deal involving a sanctioned  bank — possibly one sanctioned for its involvement in Crimea — and involving someone with ties to the intelligence agency that was preparing to hack Hillary Clinton’s campaign manager.

Cohen told Peskov’s assistant Trump was willing to negotiate that deal while running for President. The assistant wrote all that down (how Mueller knows this is an interesting question on its own right). And then she or Peskov passed on at least the content of the notes to get Putin’s office to contact Sater.

And all that happened before Trump performed unexpectedly well in the Iowa caucuses on February 1.

Last year, I argued that — pee tape or no — the kompromat Putin has on Trump consists of a series of receipts of Trump formally communicating his willingness to enter into a conspiracy with Russia, receipts that would be devastating if Putin released them.

Trump and the Russians were engaged in a call-and-response, a call-and-response that appears in the Papadopoulos plea and (as Lawfare notes) the GRU indictment, one that ultimately did deal dirt and got at least efforts to undermine US sanctions (to say nothing of the Syria effort that Trump was implementing less than 14 hours after polls closed, an effort that has been a key part of both Jared Kushner and Mike Flynn’s claims about the Russian interactions).

At each stage of this romance with Russia, Russia got a Trump flunkie (first, Papadopoulos) or Trump himself to publicly engage in the call-and-response. All of that led up to the point where, on July 16, 2018, after Rod Rosenstein loaded Trump up with a carefully crafted indictment showing Putin that Mueller knew certain things that Trump wouldn’t fully understand, Trump came out of a meeting with Putin looking like he had been thoroughly owned and stood before the entire world and spoke from Putin’s script in defiance of what the US intelligence community has said.

People are looking in the entirely wrong place for the kompromat that Putin has on Trump, and missing all the evidence of it right in front of their faces.

Vladimir Putin obtained receipts at each stage of this romance of Trump’s willing engagement in a conspiracy with Russians for help getting elected. Putin knows what each of those receipts mean.

What Cohen’s plea deal makes clear is that Putin pocketed the first of those receipts — a receipt showing Trump’s willingness to work with both sanctioned banks and the GRU — even before the first vote was cast. Even before GRU hacked its first Democratic target (though APT 29 had been spying on the Democrats since the previous summer).

Discussing a real estate deal is not, as Trump has repeated, illegal. If that’s all this were about, Trump and Cohen might not have lied about it.

But it’s not. Even before the GRU hacked John Podesta, even before Don Jr told his June 9 visitors that his dad would consider lifting sanctions if he got elected, Michael Cohen let a key Putin deputy know that Trump would be happy to discuss real estate deals that involved both partnering with the GRU and with sanctioned banks.

And Putin has been sitting on that receipt ever since.

Update: 22-paragraphs into a 1400-word story on the latest developments in the Trump Tower Moscow story yesterday, the NYT revealed the name of the officer, without explaining why the connection is important to the larger story of a GRU-led operation targeting the US election.

One of the people Mr. Sater contacted was Evgeny Shmykov, a former general in Russian military intelligence who once worked with anti-Taliban fighters in Afghanistan. Mr. Sater appears to have seen Mr. Shmykov as a conduit to get Russian government approval for the Trump project.

According to emails reviewed by The Times, Mr. Sater sent an urgent message to Mr. Cohen in late 2015 saying that Mr. Shmykov was on the phone and he needed passport information for Mr. Cohen and Mr. Trump so they could receive visas.

As I disclosed in 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. 

About the BuzzFeed Scoop: It’s Important, But It Oversells the Lying Part

/141 Comments/in , /by

BuzzFeed has an important story that fleshes out what was made clear in Michael Cohen’s allocution, sentencing memo, and the public record (including earlier BuzzFeed reports). Trump and his kids knew a lot about Cohen’s negotiations for a Trump Tower, and also knew and helped sustain his lies to Congress. BuzzFeed even suggests that all the lying came from Trump; on that issue, the story is problematic for reasons I lay out below.

The new details in the story include a price tag for the Trump Tower detail: Trump, “hoped could bring his company profits in excess of $300 million” (Mueller’s sentencing memorandum stated that the deal might be worth “hundreds of millions of dollars from Russian sources in licensing fees and other revenues”).  It quantifies how many times Trump and Cohen spoke about the deal: Trump, “had at least 10 face-to-face meetings with Cohen about the deal during the campaign.” It also confirms that Don Jr and Ivanka were the “family members” described in Cohen’s allocution who were apprised of the details.

Cohen gave Trump’s children “very detailed updates.”

[snip]

The two law enforcement sources disputed this characterization and said that [Don Jr] and Cohen had multiple, detailed conversations on this subject during the campaign.

It doesn’t include a number of details that would be more important for understanding how the Trump Tower deal relates to other parts of Trump’s conspiracy with Russians: who (if not Trump himself or Don Jr) was the senior campaign official who knew of Cohen’s negotiations, precisely what Don Jr knew of the negotiations on June 3 when he took a meeting described to be “part of  Russia and its government’s support for Mr. Trump,” and whether the timing of Cohen’s plans for a trip to St. Petersburg — which started on June 9 and ended on June 14 — related somehow to the June 9 Trump Tower meeting and the June 14 revelation that Russians had hacked the DNC. It’d also be useful to know whether Cohen had any 2016 dealings with Ike Kaveladze, who knew of Cohen from the 2013 business dealings between Trump and the Agalarovs, and who had a curious reaction to a video of him in the wake of the June 9 meeting story breaking. Those are the details that would advance the story of how the Trump Tower deal relates to Russia’s efforts to hack the election.

That said, I have qualms about the way the story deals with the perjury side of this. First, it makes an absurd claim that this is the first time we’ve heard that Trump told someone to lie.

Cohen’s testimony marks a significant new frontier: It is the first known example of Trump explicitly telling a subordinate to lie directly about his own dealings with Russia.

The NYT first reported that Trump floated pardons to Mike Flynn and Paul Manafort in March of last year and they also reported that Mueller had asked Trump about discussions with Flynn about his testimony by the same month. The entire story leading up to Flynn’s firing includes a series of lies, and like Cohen’s false claims about the Trump Tower story featured the kind of matching lies that require coordination (though Trump’s directions to Flynn probably did not include foreknowledge of his FBI interview, so legally the import is that he sustained Flynn’s lies). Manafort, under whatever expectation of a pardon, spent the two months leading up to the election perjuring himself about his ongoing work with Konstantin Kilimnik and communications with the White House, all while reporting back to Trump via his lawyer. Trump had Don McGahn craft a letter to Comey (who, after all, was part of the FBI when he received it) about his firing that hid that he did it because of the Russia investigation, after first writing a statement that acknowledged that clearly. And Trump himself dictated (probably in consultation with Vladimir Putin) a misleading statement about the June 9 Trump Tower meeting, only part of which got cleaned up before Don Jr repeated the misleading comments before Congress. Trump’s current defense attorney Jay Sekulow even went on teevee last August to apologize for repeating a lie Trump told about the June 9 meeting; while he told that lie publicly, the statement Don Jr told to Congress retained part of that lie. Not all of those amount to suborning perjury, but some of them do, and they’ve been public for a long time.

Buzzfeed also suggests that the lying all came from Trump:

the law enforcement sources familiar with his testimony to the special counsel said he had confirmed that Trump directed him to lie to Congress

Cohen’s own public sworn testimony on this issue is slightly different though. He said,

I made these misstatements to be consistent with Individual 1’s political messaging and out of loyalty to Individual 1,

The latter detail may be semantics. After all, Trump Organization necessarily withheld documents from Congress to sustain Cohen’s (and Don Jr’s) lies. So the directive to lie and the coordination obviously came from the top (though some of it was achieved by Cohen’s leaks to the press). And the sentencing memo’s statement that “Cohen described the circumstances of preparing and circulating his response to the congressional inquiries, while continuing to accept responsibility for the false statements contained within it,” make it clear he could have blamed others for the coordination of his lies. But Cohen is on the record suggesting he chose to lie, in contrast to his allocutions with the hush payments, where he said Trump directed him to undertake the criminal activity. The discrepancy on this issue — which could be cleared up with a few details — may otherwise subject Cohen to accusations of perjury in his allocation.

And heck, if Cohen downplayed Trump’s direction of his lies, then that is newsworthy in and of itself.

I’m more concerned that Buzzfeed claimed, on January 17, 2019, that this is the first evidence that Trump ordered someone to lie about Russia. Normally, I’d excuse this kind of exaggeration to get eyeballs as normal publicity for a story. But not coming, as it does, two days after Trump’s nominee to be Attorney General stated clearly in his confirmation hearing that suborning perjury would be clearly criminal, even if done by the President. Yes, William Barr already made that clear in his memo on the Mueller investigation. But few people besides me realized that fact until, in Tuesday’s hearing, he was asked to confirm that things we know Trump has done — such as float pardons — amount to a crime.

And the response to this story, coming two days after Barr made that statement, has been to suggest that the stuff included in it — as distinct from the long line of lies we already knew Trump suborned — would put Trump at legal jeopardy under Barr that he’s not already in.

Trump is already getting itchy upon discovering that Barr has a close relationship with Mueller.

President Donald Trump was startled Tuesday as he watched television coverage of his nominee for attorney general describing a warm relationship with the special counsel Robert Mueller in front of the Senate Judiciary Committee, according to three people familiar with the matter.

During the first day of his confirmation hearing, William Barr described telling the President the first time he met him in June 2017 that he was friends with Mueller, referring to him on a first name basis.

“I told him how well I knew Bob Mueller and that the Barrs and Muellers were good friends and would be good friends when this was all over,” Barr said. “Bob is a straight-shooter and should be dealt with as such.”

While Barr said during his hearing that Trump “was interested” in hearing about the friendship, the details that emerged this week caught the President off guard, the three sources said. He bristled at Barr’s description of the close relationship, complaining to aides he didn’t realize how much their work overlapped or that they were so close.

I think Barr will be shitty on a range of issues (though he’s less of a bigot and homophobe than Jeff Sessions and the Big Dick Toilet Salesman). But there are many reasons to believe, from his testimony, that he won’t interfere with the Mueller investigation. The overhyped claims in this Buzzfeed story, however, are likely to make Trump newly aware of that fact, and could have negative and unnecessary consequences (and in that way, I worry the Buzzfeed story is like NYT’s two underreported stories about the aftermath of the Jim Comey firing, which both did significant damage that could have been avoided with more awareness of the rest of Russian story and more context).

The Buzzfeed story is important for the concrete details it adds to a story we already knew — and these reporters deserve a ton of kudos for consistently leading on this part of the story. But it has unnecessarily overhyped the uniqueness of Trump’s role in these lies, in a way that could have detrimental effect on the country’s ability to actually obtain some kind of justice for those lies.

Update: The language in Cohen’s own sentencing memorandum similarly sets up a contrast in the language used to discuss the hush payments, where his lawyers emphasize Trump’s direction.

With respect to the conduct charged in these Counts, Michael kept his client contemporaneously informed and acted on his client’s instructions. This is not an excuse, and Michael accepts that he acted wrongfully. Nevertheless, we respectfully request that the Court consider that as personal counsel to Client-1, Michael felt obligated to assist Client-1, on Client-1’s instruction, to attempt to prevent Woman-1 and Woman-2 from disseminating narratives that would adversely affect the Campaign and cause personal embarrassment to Client-1 and his family. [my emphasis]

Compare that with their discussion of his Trump Tower lies, which emphasizes his efforts to reinforce Trump’s messaging, but lacks any mention of Trump’s direction.

Michael’s false statements to Congress likewise sprung regrettably from Michael’s effort, as a loyal ally and then-champion of Client-1, to support and advance Client-1’s political messaging. At the time that he was requested to appear before the Senate Select Committee on Intelligence and House Permanent Select Committee on Intelligence, Michael was serving as personal attorney to the President, and followed daily the political messages that both Client-1 and his staff and supporters repeatedly and forcefully broadcast. Furthermore, in the weeks during which his then-counsel prepared his written response to the Congressional Committees, Michael remained in close and regular contact with White House-based staff and legal counsel to Client-1.

As such, he was (a) fully aware of Client-1’s repeated disavowals of commercial and political ties between himself and Russia, as well as the strongly voiced mantra of Client-1 that investigations of such ties were politically motivated and without evidentiary support, and (b) specifically knew, consistent with Client-1’s aim to dismiss and minimize the merit of the SCO investigation, that Client-1 and his public spokespersons were seeking to portray contact with Russian representatives in any form by Client-1, the Campaign or the Trump Organization as having effectively terminated before the Iowa caucuses of February 1, 2016.

Seeking to stay in line with this message, Michael told Congress that his communications and efforts to finalize a building project in Moscow on behalf of the Trump Organization, which he began pursuing in 2015, had come to an end in January 2016, when a general inquiry he made to the Kremlin went unanswered. [my emphasis]

Cohen’s lawyer uses clearly different language on these two issues, language that suggests in the latter case Trump’s “direction” might be what it was for Mike Flynn’s lies.

 

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. 

Why Is Trump in a Joint Defense Agreement with Manafort If Rudy Concedes Manafort May Have “Colluded”?

/39 Comments/in , /by

Rudy Giuliani had yet another of his limited hangout meltdowns on CNN last night. (This thread has the best summary I’ve seen until CNN posts a transcript.) In it, Rudy significantly moved his previous goalposts on “collusion,” by claiming that he had never said no one on the campaign had “colluded,” he had only made such claims about the President.

Rudy: I never said there was no collusion between the campaign or between people in the campaign. I have no idea —

Cuomo: Yes you have.

Rudy: I have not. I said the President of the United States. There is not a single bit of evidence the President of the United States committed the only crime you could commit here, conspired with the Russians to hack the DNC.

[snip]

Cuomo: The guy running his campaign was working on an issue at the same time as the convention.

Rudy: He didn’t say nobody, he said he didn’t. He said he didn’t. He didn’t say nobody. How would you know that nobody in your campaign–

Cuomo: He actually did say that, Rudy — as far as I know.

Rudy: Well I didn’t say that. Well, as far as he knows that’s true!

In this clip, Rudy even says, “I have no idea — never have — what other people were doing.”

Except he did — or claimed he did. Rudy has claimed over and over again that he’s sure the President is not at any risk of being charged with “collusion” because he knows what all of the critical witnesses — who are all in a Joint Defense Agreement with the President — told Mueller.

GIULIANI: Well, I have a pretty good idea because I have seen all the documents that they have. We have debriefed all their witnesses. And we have pressed them numerous times.

BASH: You have debriefed all of their witnesses?

GIULIANI: Well, I think so, I mean, the ones that were — the ones that were involved in the joint defense agreement, which constitutes all the critical ones.

That’s actually not true. Rick Gates was reportedly never part of a JDA. Mike Flynn famously pulled out of it to turn state’s evidence. Don McGahn apparently didn’t share all the details of his 30 hours of interviews with Mueller’s team.

But it is true with respect to one person: Paul Manafort. Hell, even after Manafort flipped, his lawyer continued to brief Rudy about what was said and Rudy based certain defense strategy decisions — most notably whether and how to answer Mueller’s questionnaire for the President — on what he heard from Manafort’s lawyer Kevin Downing.

Rudy says he never learned that Manafort had shared campaign polling data with Konstantin Kilimnik until Manafort’s lawyers “accidentally” failed to redact that detail a few weeks ago (in fact, Rudy hilariously blames that revelation on a leak). Yet he was getting briefed on what Manafort was saying — he was in a Joint Defense Agreement!! — during the entire period when Manafort was lying about sharing polling data with Kilimnik.

Rudy insists that, even if Manafort “colluded,” the President did not. And yet, the President was in — remains in, as far as we know — a Joint Defense Agreement with this guy that Rudy now concedes may have “colluded” during the election.

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. 

William Barr’s Asymmetric Confusion about Shitty Mueller Reporting

/76 Comments/in , , /by

It turns out that once and future Attorney General William Barr has been better able to wade past shitty reporting on the outcome of the Mueller investigation than he has shitty reporting on the public evidence about what Mueller has found.

In two of my posts on Barr’s memo about the Mueller investigation (one, two), I note that Barr’s project consists of writing up 19 pages on a subject that start with an admission he knows nothing about the subject.

Barr also adopts the logically and ethically problematic stance of assuming, in a memo that states, “I realize I am in the dark about many facts” in the second sentence, that he knows what Mueller is up to, repeating over and over claims about what theory of obstruction he knows Mueller is pursuing.

Both in his prepared statement yesterday and in his testimony, he excused his memo by blaming his badly mistaken understanding of what Mueller was doing on media reports.

[M]y memo was narrow in scope, explaining my thinking on a specific obstruction-of-justice theory under a single statute that I thought, based on media reports, the Special Counsel might be considering.

He’s not wrong! I have long bitched about shitty Mueller reporting that suggested Mueller was primarily investigating whether Trump obstructed justice. Such problems persist even in recent reports that the counterintelligence focus on Trump was any different from the obstruction inquiry.

The investigation the F.B.I. opened into Mr. Trump also had a criminal aspect, which has long been publicly known: whether his firing of Mr. Comey constituted obstruction of justice.

That has, in turn, led to claims that the counterintelligence concerns stemmed exclusively from the firing of Jim Comey and not a slew of other behaviors going back some time before that.

So Barr might be excused for totally misunderstanding what the public evidence from the Mueller investigation actually showed (though not his willingness to comment without first learning what the evidence actually was), because most mainstream media reports badly misreported the public record.

Curiously, Barr didn’t get snookered by the other topic that is consistently badly reported (and badly reportedly, most likely, for the same reason — because Trump’s team has seeded that shitty reporting): whether and how Mueller will issue a report. A great deal of yesterday’s testimony pertained to whether Barr will release “the Mueller report.” Barr promised, in his his prepared testimony and later, to release as much of the results of the investigation as he could.

I also believe it is very important that the public and Congress be informed of the results of the Special Counsel’s work. For that reason, my goal will be to provide as much transparency as I can consistent with the law.

But both Democratic and Republican Senators were concerned by that (which is itself a testament to wildly divergent understandings of what Mueller is looking at), with John Kennedy going so far as suggesting Barr should release all the grand jury materials and Dianne Feinstein conditioning her vote on whether Barr commits to make Mueller’s report public.

In fact, Barr did two things. First, he said he’d speak to Rod Rosenstein and Mueller to understand what their current plans for a report were. But he also repeatedly cited the regulations to argue that Mueller’s report is — by regulation — confidential.

For shits and giggles and because I knew what response I’d get, I asked Mueller’s spokesperson Peter Carr what form their report will take today. I wasn’t disappointed. His response was to attach their governing regulations and call attention to the language that describes the mandated Special Counsel Report.

Thanks for reaching out. All I can point you to is the regulations that govern our office, which are attached. Section 600.8 states the following:

(c) Closing documentation. At the conclusion of the Special Counsel’s work, he or she shall provide the Attorney General with a confidential report explaining the prosecution or declination decisions reached by the Special Counsel. [my emphasis]

That is, if you ask Mueller — or the closest thing we get, his spokesperson — he will answer precisely what Barr did: that his mandated report is simply a confidential prosecutions and declinations report.

That shouldn’t be surprising, either. Mueller continues to use pseudonyms for identities of people in his filings — like Donald Trump himself — that are readily identifiable, based on the principle that DOJ doesn’t refer to uncharged individuals. It’s a principle that explains part of why Mueller submitted yesterday’s Manafort filing in heavily redacted form.

[T]he redactions relate to ongoing law enforcement investigations or uncharged individuals, and public disclosure of certain information in the submission could unduly risk harming those efforts.

In other words, virtually all of the coverage of the “Mueller report” has promised it will be something other than we had reason to believe — short of an indictment request overridden by the Attorney General — that it would be.

By the same token, there’s abundant reason to believe that that’s not what the “Mueller report” will be.

Yesterday, the same day questions about a Mueller report were central to Barr’s confirmation hearing, the WSJ reported this entirely unsurprising detail about Michael Cohen’s testimony before the Oversight Committee on February 7.

Mr. Cohen, who is scheduled to speak in an open hearing on Capitol Hill for the first time Feb. 7, won’t be able to talk about topics that he has discussed with special counsel Robert Mueller, according to a person close to Mr. Cohen.

The indication that Cohen’s testimony will be sharply limited (presumably based on the intercession of Mueller’s congressional liaison, Stephen Kelly, about whom we’re likely to hear more in coming days) suggests several things: First, Mueller doesn’t expect to be done with Michael Cohen by February 7. That, in turn, suggests that all the claims — which I’ve heard too — that Mueller will soon issue a “report” likely misunderstand what form that report will take, because a one-time report covering the importance of Trump Tower deals to entice Trump’s family would present little reason to silence Cohen next month, particularly because he’d be free to talk about it anyway. But if something more public — such as an indictment, even if it’s just of Trump Organization — or if a non-public report that can be conveyed to the House Judiciary Committee is in the works, then you’d want to silence Cohen. Indeed, contrary to a lot of other bad reporting, Cohen remains on the hook in his cooperation with Mueller; he won’t get a reduction in sentence until they decide he has done enough to get a year lopped off his existing sentence.

That many reporters are being told by reliable sources that Mueller will soon unveil a “report” and that Mueller still officially maintains that their required report won’t be public suggests Mueller is moving towards yet another speaking indictment, which is how he has always reported. That’s consistent with the limits on Cohen’s report, it’s consistent with reports that Mueller is presenting evidence against Jerome Corsi to a grand jury, and it’s consistent with what we saw in yesterday’s Manafort filing (which presented evidence of Trump campaign crimes dating to 2016).

I have my concerns about Barr, especially his willingness to make policy decisions informed only by right wing propaganda (on which point he was worse on his testimony about immigration and criminal justice issues than on Mueller). Those concerns extend to what will happen if Barr gets to decide what parts of a Mueller report gets made public; it’s clear that Barr currently believes that Mueller will issue a report finding that Trump did nothing criminal. Those concerns are heightened by the fact that on virtually every other topic, Barr had not done enough homework to answer basic questions (the most remarkable instance of which was his confession that he hasn’t read the Supreme Court’s decision in Carpenter), but he was prepared to state, correctly, that Mueller’s report will be confidential, addressed solely to him.

I have other concerns. Once CSPAN fixes their transcript, I hope to show how badly hypocritical Barr is about both Matt Whitaker and Donald Trump’s sleazy influence peddling. His comments about recusal from the Mueller investigation were troubling. And he seems to believe — as he explained to Patrick Leahy near the end of the hearing — that in November 2017 there remained, after DOJ had investigated both and after Mueller had rolled out the George Papadopoulos plea deal showing him trying to hide that he was discussing emails and meetings with Putin in the days after he became a foreign policy advisor to Trump, more evidence to support an investigation of the Uranium One and Clinton Foundation allegations than into “collusion.”

But Barr also strongly suggested he would not step in the way of any Mueller indictments. And Senators did get him on the record agreeing that if Trump suborned perjury it would be criminal. And he respects Mueller, so if Mueller shows him evidence that Trump has been gravely compromised, then he should take that evidence seriously.

Barr appears to be an arrogant man who believes right wing propaganda is sufficient evidence to base policy decisions on.

But he also has a better idea of what the regulations say to expect from a Mueller report — as distinct from Mueller indictments — than the Senators questioning him did.

Update: This useful JustSecurity piece lays out the regulations and the Attorney General’s discretion.

As I disclosed 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. 

Compromise: Sally Yates’ Warning about Vulnerability to Blackmail Applied to Trump Even More than Mike Flynn

/136 Comments/in /by

Given the news that the FBI opened a Counterintelligence investigation into Trump in the week after he fired Jim Comey on May 9, 2017 (CNN’s account is actually far more useful than NYT’s), I want to look at part of what Sally Yates testified — the day before Trump fired Jim Comey — that she told Don McGahn when she let him know that Mike Flynn had lied to the public and the FBI about what he said to Sergei Kislyak on December 29, 2016.

Effectively, Yates laid out how, because the Russians would have known that Flynn had lied, it would be easy to blackmail him.

[W]e were concerned that the American people had been misled about the underlying conduct and what General Flynn had done, and additionally, that we weren’t the only ones that knew all of this, that the Russians also knew about what General Flynn had done.

And the Russians also knew that General Flynn had misled the vice president and others, because in the media accounts, it was clear from the vice president and others that they were repeating what General Flynn had told them, and that this was a problem because not only did we believe that the Russians knew this, but that they likely had proof of this information.

And that created a compromise situation, a situation where the national security adviser essentially could be blackmailed by the Russians. Finally, we told them that we were giving them all of this information so that they could take action, the action that they deemed appropriate.

At the time she delivered these comments to McGahn in January 2017, Yates would have known only that Flynn had lied.

Even at the time she testified about the exchange with McGahn in May, neither she nor the FBI would yet have had tangible evidence that Flynn had been acting on Trump’s orders when he told Kislyak to hold off on responding to sanctions. Likewise, neither she nor the FBI knew at the time that Trump’s spawn had, the summer before, agreed to consider lifting sanctions if his dad got elected. Neither Yates nor the FBI would have known that the Russians were offering a Trump Tower deal and dirt on Hillary Clinton to induce Don Jr to commit to revisit sanctions. And, neither Yates nor the FBI would have known that Don McGahn had written up a misleading report justifying the firing of Mike Flynn (who, after all, had only done what he had been ordered), that directly conflicted with Yates’ account of the conversation.

For all those reasons, Yates would not have known that this theory — that covering up the Tower-for-sanctions quid pro quo, the commitment to deliver on sanctions relief, and the bogus reason for firing Mike Flynn made a person susceptible to blackmail — actually applied to Trump, not (just) Flynn. Indeed, for a variety of reasons Trump was more susceptible to blackmail than Flynn, because Flynn had just been doing what he was told, didn’t have a prior bribe to hide, and might expect a pardon if he successfully protected the President.

Indeed, Yates would not know how, from the moment David Ignatius revealed that the FBI had discovered the transcripts of Flynn’s conversations with Sergei Kislyak, the Russians would have had Trump by the nuts. All the more so given that the FBI also had a transcript of Kislyak explicitly informing Flynn that Putin had based his response to Obama’s sanctions on December 30, 2016 on Flynn’s assurances about sanctions. Putin, that old KGB hand, made sure there was a record of the Russians making it clear that their response was entirely premised on whatever promises Flynn had made (at Trump’s direction).

From the moment the Russians learned the FBI had found those transcripts, Trump would have had to prevent the FBI from discovering that he had ordered Flynn to make those comments, and had ordered him to do so to pay off his election debt.

From that moment forward, Trump would be stuck committing one after another act of obstruction in an attempt to prevent the FBI from discovering the full truth. Each of those acts would put him deeper in the hole, because each time he engaged in obstruction, the Russians would measure his increasing vulnerability.

Almost a month before he took an oath to protect and defend the Constitution, Donald Trump clandestinely took an action to undercut the official policy of America’s President. From that moment forward, he had as much at stake as the Russians in thwarting the investigation into the election year operation.

And Putin has capitalized on that compromise ever since.

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. 

William Barr Falsely Denies His Mueller Memo Makes the Case for Impeachment

/57 Comments/in , , /by

William Barr has released his opening statement for his confirmation hearing tomorrow. While it surely is tailored to address the biggest concerns about his nomination, there’s a lot to like about it.

He suggests he’s not as big of a hawk on criminal justice as he used to be. He emphasizes the need to protect the right to vote. He seems to suggest a concern about rising hate crimes.

And — as most outlets have focused on — he affirms the importance of Robert Mueller finishing his work and being able to publish his findings.

First, I believe it is vitally important that the Special Counsel be allowed to complete his investigation. I have known Bob Mueller personally and professionally for 30 years. We worked closely together throughout my previous tenure at the Department of Justice under President Bush. We’ve been friends since. I have the utmost respect for Bob and his distinguished record of public service. When he was named special counsel, I said that his selection was “good news” and that, knowing him, I had confidence he would handle the matter properly. I still have that confidence today.

Given his public actions to date, I expect that the Special Counsel is well along in his investigation. At the same time, the President has been steadfast that he was not involved in any collusion with Russian interference in the election. I believe it is in the best interest of everyone – the President, Congress, and, most importantly, the American people – that this matter be resolved by allowing the Special Counsel to complete his work. The country needs a credible resolution of these issues. If confirmed, I will not permit partisan politics, personal interests, or any other improper consideration to interfere with this or any other investigation. I will follow the Special Counsel regulations scrupulously and in good faith, and on my watch, Bob will be allowed to complete his work.

Second, I also believe it is very important that the public and Congress be informed of the results of the Special Counsel’s work. For that reason, my goal will be to provide as much transparency as I can consistent with the law. I can assure you that, where judgments are to be made by me, I will make those judgments based solely on the law and will let no personal, political, or other improper interests influence my decision.

I’m most interested, however, in the way that Barr addresses the memo on the Mueller investigation he wrote last year. In comments also surely designed to reassure Democrats, Barr claims that the memo only addressed one theory of obstruction.

I would like to briefly address the memorandum that I wrote last June. I wrote the memo as a former Attorney General who has often weighed in on legal issues of public importance, and I distributed it broadly so that other lawyers would have the benefit of my views. As I explained in a recent letter to Ranking Member Feinstein, my memo was narrow in scope, explaining my thinking on a specific obstruction-of-justice theory under a single statute that I thought, based on media reports, the Special Counsel might be considering. The memo did not address – or in any way question – the Special Counsel’s core investigation into Russian interference in the 2016 election. Nor did it address other potential obstruction-of-justice theories or argue, as some have erroneously suggested, that a President can never obstruct justice. I wrote it myself, on my own initiative, without assistance, and based solely on public information.

The claim that that’s what he addressed — which I correctly unpacked here — is important because, as Jack Goldsmith has since laid out, Barr’s views on that theory of obstruction fit solidly within OLC precedent.

Yet Barr makes a false claim in that paragraph: that his memo “did [not] address other potential obstruction-of-justice theories.” Indeed, before he finishes his first page, he addresses another potential obstruction-of-justice theory:

Obviously, the President and any other official can commit obstruction in this classic sense of sabotaging a proceeding’s truth-finding function. Thus, for example, if a President knowingly destroys or alters evidence, suborns perjury, or induces a witness to change testimony, or commits any act deliberately impairing the integrity or availability of evidence, then he, like anyone else, commits the crime of obstruction. Indeed, the acts of obstruction alleged against Presidents Nixon and Clinton in their respective impeachments were all such “bad acts” involving the impairment of evidence. Enforcing these laws against the President in no way infringes on the President’s plenary power over law enforcement because exercising this discretion — such as his complete authority to start or stop a law enforcement proceeding — does not involve commission of any of these inherently wrongful subversive acts.

It’s right there, on the bottom of his first page, another potential obstruction of justice theory.

As if his reference to Nixon and Clinton didn’t already make it clear, the rest of his memo describes that the proper remedy when the President engages in such crimes is impeachment.

And, as I have laid out, the public evidence (even before recent disclosures about how the FBI worried that Trump was literally taking orders from Russian when he fired Comey) provides strong circumstantial evidence that Trump attempted to impair the integrity and availability of evidence to the FBI, possibly including suborning perjury from Mike Flynn.

While Barr doesn’t presume to dictate whether Congress must judge such behavior adequate to sustain impeachment, he certainly sees it as an adequate basis for impeachment.

Which is why I find his statement troubling. He’s not only placating Democrats with this statement (and opposing any possibility that the President can be charged for criminal acts). He’s also backing off the clear implication of his memo, that if Trump engaged in witness tampering, it would be improper.

All that’s separate from the wisdom and ethics of writing 19 pages, as he did, on a theory based off a really skewed understanding of the evidence, or accepting a job after having done so in the scope of job considerations.

To be sure, if Barr really intends to let Mueller finish and ensure the right to vote, he may be the best Attorney General candidate we’re likely to get from Trump. But he still needs to be asked whether he backs the implications of his memo, which actually back impeachment.

Update: This is fairly batshit. In a letter to Lindsey Graham dated yesterday — the same day Barr released opening statements that say “Nor did [his memo] address other potential obstruction-of-justice theories,” he said that his entire memo was a different theory of obstruction of justice.

The principal conclusion of my memo is that the actions prohibited by section 1512(c) are, generally speaking, the hiding, withholding, destroying, or altering of evidence – in other words, acts that impair the availability or integrity of evidence in a proceeding. The memorandum did not suggest that a President can never obstruct justice. Quite the contrary, it expressed my belief that a President, just like anyone else, can obstruct justice if he or she engages in wrongful actions that impair the availability of evidence. Nor did the memorandum claim, as some have incorrectly suggested, that a President can never obstruct justice whenever he or she is exercising a constitutional function. If a President, acting with the requisite intent, engages in the kind of evidence impairment the statute prohibits – regardless whether it involves the exercise of his or her constitutional powers or not – then a President commits obstruction of justice under the statute. It is as simple as that.

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. 

Trump’s “Official Acts” to Pay Off a Russian Bribe Should Make Impeachment a Legal Issue, Not Just a Political One

/187 Comments/in , , /by

The pearl clutchers screamed about Congresswoman Rashida Tlaib saying that we need to impeach the motherfucker, Donald Trump, demeaning the presidency.* While I’m glad that she has refused to back down from her beliefs in the face of the attacks, I think her more substantial argument about impeachment deserves further attention (which I hope to return to in a later post). More important, I think that the response to Tlaib’s comments has resulted in members of both parties retreating to a debate about Trump’s impeachment using the old formulation that it’s a political, not a legal question.

It is true that impeachment is political question insofar as, so long as there’s the political will, a president can be impeached for anything, even lying about a consensual blowjob immaterial to an investigation into financial scandal. But impeachment is also a legal question. Indeed, the Constitution mandates that the President be removed from office if he is impeached and convicted not just for the unenumerated grab bag of “high crimes and misdemeanors” — where Congress exercises the political will to decide whether a blowjob merits impeachment — but also the enumerated crimes of treason and bribery.

The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.

In spite of Emmet Sullivan’s question — as one of the only people who has read sealed documents laying out what Trump’s transition team did — about whether Mueller’s investigators considered charging Mike Flynn with treason, there’s no chance that Trump will be named in a treason charge.

But there is very good chance he will be named in a conspiracy involving a quid pro quo trading dirt and real estate deals for sanctions relief and other policy considerations.

The other day, I realized something ironic: in precisely the same period Trump was entering in an apparent quid pro quo with Russians, John Roberts was authoring a unanimous Supreme Court decision that clarified the limits of quid pro quo bribery.

And while the Supreme Court believed that Governor Bob McDonnell had not accepted bribes for setting up meetings in exchange for gifts, the language Roberts wrote in the weeks after Trump’s son told some Russians they would revisit Magnitsky sanctions if his father won does not so narrow the definition of bribery as to make Trump’s actions legally excusable.

Roberts described an official act this way:

In sum, an “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” The “question, matter, cause, suit, proceeding or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that “question, matter, cause, suit, proceeding or controversy,” or agree to do so.

Notably, the bribed public official doesn’t actually have to follow through on the official act he agreed to take, so it doesn’t help Trump that Congress has repeatedly prevented him from overturning sanctions on Russia.

Under this Court’s precedents, a public official is not required to actually make a decision or take an action on a “question, matter, cause, suit, proceeding or controversy”; it is enough that the official agree to do so.

And there are a number of data points in the public record that suggest Trump did believe he had made a deal with the Russians and that Russia had what it believed was a commitment from Trump. For example, four of the people who attended the June 9 meeting testified (most under oath) that Don Jr said his father would revisit sanctions relief if he got elected.

Natalia Veselnitskaya said Don Jr said they’d revisit the topic.

Mr. Trump, Jr. politely wound up the meeting with meaningless phrases about somewhat as follows: can do nothing about it, “if’ or “when” we come to power, we may return to this strange and confusing story.

Ike Kaveladze said that Don Jr said they might revisit the issue if his father won.

There was no request, but as I said, it was a suggestion that if Trump campaign wins, they might get back to the Magnitsky Act topic in the future.

Rinat Akhmetshin said that Don Jr said they would revisit Magnitsky when they won.

A. I don’t remember exact words which were said, but I remember at the end, Donald, Jr., said, you know, “Come back see us again when we win.” Not “if we win,” but “when we win.” And I kind of thought to myself like, “Yeah, right.” But it happened, so — but that’s something, see, he’s very kind of positive about, “When we win, come back and see us again.” Something to that effect, I guess.

Anatoli Samochornov, Veselnitskaya’s translator, who is the most independent witness and the only one who didn’t compare his story with others, said that Don Jr said they would revisit the issue if Trump won.

A. Like I described, I remember, not verbatim, the closing that Mr. Donald Trump, Jr., provided, but that’s all that I recall being said from the other side.

MR. PRIVOR: That closing being that Donald Trump, Jr., suggested —

MR. SAMOCHORNOV: If or when yes, and I do not remember if or when, but if or when my father becomes President, we will revisit this issue.

And Ike Kaveladze, in the call back to his boss to report on the meeting that witnesses observed, was happy with the outcome of the meeting.

It’s not just the Russians who seem to have acted on the meeting. Michael Cohen’s allocution seems to suggest that the meeting tied directly to the negotiations over a Trump Tower, because he took steps to travel to Russian on the day of the meeting.

From on or about June 9 to June 14, 2016, Individual 2 sent numerous messages to COHEN about the travel, including forms for COHEN to complete. However, on or about June 14 , 2016, COHEN met Individual 2 in the lobby of the Company’s headquarters to inform Individual 2 he would not be traveling at that time.

Remember: a “senior campaign official” was involved in discussions about trips to Russia. And had the President’s personal lawyer actually taken this trip to St. Petersburg, the plan was to meet Vladimir Putin (who did attend the forum that year).

While the dates provided in Cohen’s allocution also suggest the disclosure that Russia hacked the DNC halted Cohen’s plans “at that time,” we know that the plans did resume after that canceled trip into July.

The Russians certainly believed they had an agreement. They put in some effort to meet again after Trump won. While finding an appropriate communication channel failed for the Agalarovs, Flynn and Jared Kushner moved to establish a back channel via Sergey Kislyak. When Trump met with Preet Bharara and reportedly agreed to keep him on, Veselnitskaya panicked, and suggested Trump planned to keep him on so he could take him out.

In its indictment of Veselnitskaya, DOJ just established that she was actually working as part of the Russian government when she claimed to have fought to get an MLAT request in her Prevezon case. And Veselnitskaya believed that after Trump won the election, he would take out the prosecutor whom she was facing in court. Ultimately, Trump did take out Preet, firing all his US Attorneys in an effort to do so.

And details from Mike Flynn’s allocution provide one important piece of evidence that Russians believed they had received a commitment from Trump.

After Obama imposed sanctions on Russia partly in retaliation for the election year operation, Trump’s team panicked, both because they wanted to improve relations with Russia, but also because Russia’s role in his victory delegitimized the victory. That is, even those unlikely to be unaware of any quid pro quo recognized that the public accounting of Russia’s role in helping defeat Hillary would make it all the more difficult to deal with Russia.

Obama is doing three things politically:

  • discrediting Trump’s victory by saying it was due to Russian interference
  • lure trump into trap of saying something today that casts doubt on report on Russia’s culpability and then next week release report that catches Russia red handed
  • box trump in diplomatically with Russia. If there is a tit-for-tat escalation trump will have difficulty improving relations with Russia which has just thrown USA election to him.

Trump’s response, however, was to reach out to Russia and assure them they didn’t need to worry about Obama’s new policy. In response, the Russians made it very clear that Putin had decided not to respond based on the assurances that Flynn gave Kislyak.

On or about December 30, 2016, Russian President Vladimir Putin released a statement indicating that Russia would not take retaliatory measures in response to the U.S. Sanctions at that time.

On or about December 31, 2016, the Russian Ambassador called FLYNN and informed him that Russia had chosen not to retaliate in response to FL YNN’s request.

Mueller, of course, has the full transcript of what Flynn said to Kislyak that successfully placated Putin. It is highly likely the transcript provides explicit evidence of an official act to pay off his side of the deal, sanctions relief.

All of which is to say that Mueller may well be finalizing a conspiracy indictment of Don Jr and Trump Org laying out a quid pro quo in which Trump agreed to provide sanctions relief (and some other stuff) in exchange for Russia’s help winning the election.

That Mueller might be able to show all this is bribery may not affect Republican willingness to take the action laid out in the Constitution, to convict Trump in an impeachment inquiry. But given that the Constitution specifically envisions impeaching a President who has accepted a bribe, commentators should stop treating impeachment exclusively as a political issue.

Update: I posted this before I had read this analysis from Jack Goldsmith raising concerns about investigating the President for foreign policy decisions. While I think Goldsmith raises key points, he focuses on actions Trump took as President. But that’s one reason I think the transition activities are so important. If I’m right that the calls to Kislyak amount to an official act, then Trump took it to undermine the official policy of the government, not set it as President. Further, The Trump team had been asked — and at least one person had agreed — to not undermine Obama’s policies during the transition. There were several efforts to hide that they were doing so: the indications they couldn’t reengage on Magnitsky sanctions using the same channels as they used during the election, the request for a back channel, and the meeting with Mohammed bin Zayed al-Nahyan that Susan Rice discovered by unmasking the identities of those who met with him.

The actions Trump took that led to Flynn and Comey’s firings were part of an effort to hide these clandestine efforts during the transition. Yes, they were conducted while he was President. But they were conducted to cover up actions taken before he became President. This is why I keep harping on the remarkable lack of curiosity about why Trump really fired Flynn. The public story Trump is telling is assuredly false. The real reason almost certainly ties back to these transition period actions.

As I disclosed in 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. 

*Full disclosure: I donated to Tlaib’s campaign.