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Updating the Mueller Docket: What Has Zainab Ahmad Been Working On?

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I’ve been meaning for some days to update my running commentary on what Mueller’s prosecutors are doing.

But yesterday’s Mike Flynn filing made a point that I’ve been meaning to make: counterterrorism and international extradition expert Zainab Ahmad remains on Mueller’s team, but we’ve barely heard from her.

I’ve recently updated my own running docket (which is far too unwieldy to fit on a page anymore). It also includes a number of related cases:

  • Michael Cohen’s SDNY prosecution
  • Sam Patten’s DC prosecution
  • Maria Butina’s DC prosecution
  • Elena Alekseevna Khusyaynova’s EDVA charges

I’ve also noted the departures of the prosecutors who have left (suggesting either that their part of the investigation is completed, or they’re bringing some part of it back to their home departments at DOJ to pursue).

One thing I’ve been following in recent Mueller activities is Jeannie Rhee’s seeming central role in what we’re seeing. If there’s a conspiracy-in-chief prosecution, she seems to be in charge of that.

Also of interest, Rush Atkinson appears to have ties to a seemingly disparate series of cases involving Russia: the IRA prosecution and related Pinedo case, the GRU prosecution. He’s also involved in both Michael Cohen’s Mueller prosecution and Jerome Corsi’s aborted cooperation. Notably, he’s not involved in the Andrew Miller subpoena, which may mean that he’s not involved in everything pertaining to Roger Stone. So his presence on a case may suggest a direct tie to Russians.

But perhaps the most interesting thing this docket shows is that, among the prosecutors (as distinct from the appellate specialists, though it’s unclear whether Elizabeth Prelogar is on the team for her Russian expertise as well as her appellate speciality or not), Zainab Ahmad is the only person whose work we’ve barely seen. While she has had a role in the Flynn cooperation, Brandon Van Grack (who’s in the process of transitioning back to his National Security Division home) took the lead on that.

As an experienced counterterrorism prosecutor normally located in EDNY (the district where JFK Airport is located), Ahmad is an expert in prosecutions involving extraditions (because of the JFK connection, many of those go through EDNY, and that’s where a lot of the important precedents are). Also of note, given the questions around whether there are two or three parts of a Mueller investigation on which Flynn cooperated, she’s an Arabic speaker.

We’ve not seen a substantive plea or charge related to what I’ll call the Middle Eastern graft (centered around, but not limited to, the Seychelles meeting Flynn attended), though we know that Mueller has spent a lot of time investigating it, and that’s an area where Flynn’s cooperation would be key. Given Ahmad’s skill set, it would make sense that she would be involved in those areas of the investigation.

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. 

Flynn’s Category C (or B iii) Cooperation: Mueller’s Expanded Investigation

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Yesterday, I argued that the structure of the addendum describing Flynn’s cooperation looks like this.

The section on cooperation describes Flynn’s assistance in three investigations. The Mueller investigation is actually the second thing listed, which I take to suggest that the the Mueller investigation is just the second most important. My wildarse guess is that these consist of A) a criminal national security investigation (the Turkish investigation tied to Reza Zarrab could be one possibility), B) the Mueller investigation, and C) a counterintelligence investigation into the Russians. But obviously the first and third are just a guess.

Between the three investigations, Flynn sat for 19 interviews with prosecutors.

Here’s the structure of how the body of the cooperation section describes the three investigations:

A Criminal Investigation:

11+ line paragraph

6.5 line paragraph

2 line paragraph

B Mueller investigation:

Introductory paragraph (9 lines)

i) Interactions between Transition Team and Russia (12 lines, just one or two sentences redacted)

ii) Topic two

10 line paragraph

9 line paragraph

C Entirely redacted investigation:

4.5 line paragraph

On Twitter, Elizabeth de la Vega argued that the ordering of the addendum doesn’t necessarily mean Category A is any more important than Mueller’s investigation, but that Category C was instead something under Mueller’s supervision.

That would mean the structure of the addendum looks like this:

A Criminal Investigation:

11+ line paragraph

6.5 line paragraph

2 line paragraph

B Mueller investigation:

Introductory paragraph (9 lines)

i) Interactions between Transition Team and Russia (12 lines, just one or two sentences redacted)

ii)Mueller investigation into something else:

10 line paragraph

9 line paragraph

iii) Mueller investigation into something else:

4.5 line paragraph

The description of SCO’s investigation covering “a range of issues” would be consistent with more than two topics.

If that’s right, we might learn the subject of that B iii cooperation by looking at more recent descriptions of the scope of Mueller’s investigation that show up in Jerome Corsi’s draft statement of the offense. As that describes, one of the things Mueller’s office told Corsi they were investigating pertained to any ties between Trump’s campaign, the Russian government, and WikiLeaks.

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 roughly correlates to the unredacted description of the parts of Mueller’s investigation in the addendum (though Wikileaks got added somewhere along the way).

the Special Counsel’s Office’s (“SCO”) investigation concerning any links or coordination between the Russian government and individuals associated with the campaign of President Donald J. Trump.

But there were two other categories Mueller was investigating by September 6 when they interviewed Corsi: GRU’s theft of the Democrats’ emails, and GRU’s provision of them to WikiLeaks.

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

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;

Even if one of those two categories describes the area on which Flynn provided cooperation (it’s possible, after all, that these are just the aspects of the Mueller scope that were pertinent to Corsi’s testimony, and there are other categories, like the Middle Eastern graft, that have also been included), it doesn’t necessarily tell us anything. Though — particularly given Corsi’s own ties to the Peter Smith effort — that could be one possible area of cooperation.

Still, I agree her reading may be the correct one (which would also explain why there’s not an introductory paragraph for what I had labeled Category C).

Update: In this post I lay out that we don’t yet know what extradition expert and Arabic speaker Zainab Ahmad has been working on. She has only shown up in Flynn’s docket thus far. She would be a likely candidate to oversee an investigation into the Middle Eastern graft that Flynn was involved with (in which the Seychelles meeting is key). So it may be that B(i) is the transition, B(ii) is the Middle Eastern graft, and B(iii) is another part of the investigation.

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. 

The Mueller Investigation Is the Second Most Important Investigation into Which Flynn Assisted

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The Flynn sentencing memo, with a largely redacted addendum describing his cooperation, is out. Effectively, Mueller recommends no prison time because of Flynn’s substantial cooperation, his early cooperation, his record of service to the country.

The section on cooperation describes Flynn’s assistance in three investigations. The Mueller investigation is actually the second thing listed, which I take to suggest that the the Mueller investigation is just the second most important. My wildarse guess is that these consist of A) a criminal national security investigation (the Turkish investigation tied to Reza Zarrab could be one possibility), B) the Mueller investigation, and C) a counterintelligence investigation into the Russians. But obviously the first and third are just a guess. [Update: This post considers another possibility, that the Mueller section involves three categories.)

Between the three investigations, Flynn sat for 19 interviews with prosecutors.

Here’s the structure of how the body of the cooperation section describes the three investigations:

A Criminal Investigation:

11+ line paragraph

6.5 line paragraph

2 line paragraph

B Mueller investigation:

Introductory paragraph (9 lines)

i) Interactions between Transition Team and Russia (12 lines, just one or two sentences redacted)

ii) Topic two

10 line paragraph

9 line paragraph

C Entirely redacted investigation:

4.5 line paragraph

The description of the first and third investigations are both almost entirely redacted.

The description of his cooperation with the Mueller investigation is split into two topics — i) interactions between the transition team and Russians, plus another ii) redacted section.

The transition discussions map what appeared in his criminal information. It does make it clear that Flynn reported false information to them about his conversation with Sergei Kislyak, which means what really went on between him and Kislyak goes beyond what appeared in emails involving KT McFarland, which is pretty damning by itself. That also suggests he really may have lied to Mike Pence.

The second, almost entirely redacted section, is actually the longest, and it’s two paragraphs. If the two sections split into the transition and post-inauguration period, there might be one paragraph on policy issues and another on his firing and obstruction.

The cooperation section emphasizes that Flynn cooperated early. It suggests that because he cooperated, “related firsthand witnesses” decided to be “forthcoming with the SCO and cooperate.” We know that happened with KT McFarland.

The memo also describes Flynn as “one of the few people with long-term and firsthand insight regarding events and issues under investigation by the SCO.” That says the Russian matters were actually fairly closely held, which is itself telling.

Finally, the description of the third investigation is just five lines long.

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. 

The Manafort Lying Cards I’d Show if I Were Playing Presidential Pardon Poker

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One detail from Paul Manafort’s status hearing yesterday did not surprise me: Andrew Weissmann said he was “ready to go immediately with his filing of details on Manafort’s alleged breach” of his plea agreement.  (Judge Amy Berman Jackson gave him a week, until December 7, to do so).

Weissmann plays coy about next steps

One detail surprised me a bit: Weissmann claimed the government hasn’t decided whether they’ll further charge Manafort.

Jackson asked Weissmann if the government planned to bring more charges against Manafort after noting that the report by prosecutors earlier this week repeatedly used the word “crimes” in describing new allegations against Manafort.

The “report seems to make a point with its vocabulary,” Jackson said.

Weissmann said they hadn’t made a decision yet, but that they did believe Manafort’s conduct would be relevant at sentencing on the charges he already pleaded guilty to.

It’s not really clear from the reporting precisely what the government would charge him with, either: either the hung charges from EDVA, those that had been dropped in DC, or something else.

I’m spitballing, of course, but the two details together suggest that while Mueller has a very specific story to tell about Manafort ready to go, they haven’t decided where to go once they tell that story — whether they plan to pressure him some more to provide evidence on the things he has lied about, or perhaps charge him in the case in chief. We’re not, then, getting the full Mueller report, but I expect we’ll get some fairly interesting accusations and — given past practice from this team — some primary evidence to back up those claims. Further, given Kevin Downing’s claim to be mystified about the substance of Manafort’s lies, I suspect the Manafort (and Trump) team will get specifics about what Mueller knows that they’re not yet aware of.

Mueller’s slow reveal

When they’ve laid out such details in the past, the Mueller team has significantly advanced the long slow process of getting Manafort to describe what really happened in 2016. Early on, they used a redlined copy of an op-ed Manafort did with Konstantin Kilimnik to argue that Manafort had violated the gag in the case; while revealing that op-ed didn’t elicit sanctions on Manafort, it put Manafort in a weaker spot with ABJ. It also may have been how Manafort learned that the government had (probably in mid-August 2017, so in the wake of the raid on his condo) seized the content of the email account he used to communicate with Kilimnik.

Then, for months, the government let Manafort submit one after another attempt to make bail. And only when he had finally done so, they moved to revoke bail by slapping on two additional obstruction charges. To substantiate those charges (in yet another speaking indictment), they not only revealed that Manafort and Kilimnik had tried to convince witnesses to lie about past work with Manafort, but in the process they revealed they had collected and parallel constructed both men’s WhatsApp and Telegram chats (and had, presumably, parallel constructed Manafort’s communications with Kiliminik going back over two years, importantly for our purposes, including the entire time period Manafort worked on Trump’s campaign).

Given all the discussion Friday about further indictments, it’s instructive that rather than just submitting a motion to revoke bail last June, the government had the grand jury indict those two new charges, with the effect that they didn’t have to call the Hapsburg witnesses publicly to describe the attempts to suborn perjury.

I’m not saying it will happen again. But it could.

In any case, that move had the result of getting Manafort thrown in the pokey (he got put in a nice one, at that point), adding pressure to flip.

The next month, as Manafort made an ill-considered attempt to move his trial to Roanoke, Judge TS Ellis instead moved him to the crummier Alexandria jail. In fighting both those moves, the government revealed several new details about how they were collecting his ongoing communications, both that they had heard him say damning things on a call to his spouse, but also that they heard him explaining that “he reads and composes emails on a second laptop that is shuttled in and out of the facility by his team.”

To sum up, thus far: over the course of the 400 days since Manafort was first indicted, the government has made Manafort disclose everything he was willing to put up for bail (that is, the liquid and legal stuff), while repeatedly providing hints about how they continued to thwart his counter-surveillance (and shitty opsec) methods, while providing mere snippets about what they were learning as a result. Meanwhile he has been sitting in increasingly shitty jail cells for over five months.

And now the government has a set of accusations about his lies all wrapped up with a bow, or maybe they’ll just roll out another indictment.

If we’re playing another round of poker

As I noted above, when we were at this stage in June, the government just indicted as a way of making it far easier for ABJ to revoke bail. Here, getting a grand jury to agree they had probable cause that Manafort lied to the FBI would even further surpass the good faith standard Mueller needs to deem Manafort in violation of his plea deal.

But let’s assume, for the moment, that they’re not going to do that, that they’re going to submit a declaration laying out Manafort’s lies. What lies would Mueller disclose to ratchet up the pressure on Manafort more?

It seems there are several potential lies that would continue to wear away at Manafort’s efforts to protect Trump.

Kilimnik on a boat

A year ago, Mueller made clear he knew what Manafort was clandestinely up to with Kilimnik. In June, Mueller made clear he knew what Manafort was clandestinely up to with Kilimnik. Just weeks before Manafort purportedly flipped, Mueller made it clear, with the plea deal of Sam Patten, he knew what Kiliminik was up to.

Are you sensing a theme here?

And since Mueller deemed Manafort in violation of his plea agreement, WSJ has reported that one thing Manafort lied about was Konstantin Kilimnik. That includes whether Manafort — at a time he was dead broke and setting off on a crime way to hide that fact and his ties to Russia — hopped on a yacht with Tom Barrack (the guy who got him the job in the first place) and Kilimnik.

He has questioned witnesses about a boat trip that Mr. Manafort took with Tom Barrack, a longtime friend of Mr. Trump, after Mr. Manafort was ousted from the Trump campaign in August 2016, say people familiar with the matter. Witnesses believed investigators were seeking to determine whether Mr. Manafort ever met with Mr. Kilimnik on that trip.

Particularly given that Mueller has two cooperating witnesses who were close with Kilimnik in this period, I assume we’ll get more — possibly substantially more — details about how the suspected GRU spy Kilimnik served as the handler for Trump’s campaign manager during a period when GRU was rolling out its stolen emails.

Hidden stash

I noted on Pod Save America the other day, Manafort’s calculations look idiotic if Mueller is about to seize the last of his ill-gotten gains, $46 million in forfeitures. It looks a little different if he’s got $100 million stashed in Cyprus that, if he is pardoned, he can go live off of.

That’s another thing the WSJ reported that Manafort lied about.

In his conversations with Mr. Mueller’s team, Mr. Manafort also allegedly misrepresented information about payments he received related to his lobbying work, the people familiar with the matter said.

Particularly given that Manafort hadn’t paid his mortgage on his Trump Tower condo, Mueller has permission under Manafort’s plea deal to replace that forfeiture with another. So after spending 6 months making Manafort identify the last of his liquid and legal holdings in the US, Mueller could go after whatever else Manafort has.

If Mueller not only proved Manafort was lying, but proved he had the funds to replace the forfeitures that he hadn’t actually owned, that would further constrain his finances going forward.

Trump’s pardon dangles

Between Michael Cohen and Mike Flynn, we’ll have sentencing hearings for two people known to have been floated pardons by Trump for their lies. Admittedly, both the public reporting based off leaks and Cohen’s language about pardons in his sentencing memo stops short of offering a guarantee — or, indeed, any direct conversations with attorneys.

He took these steps, moreover, despite regular public reports referring to the President’s consideration of pardons and pre-pardons in the SCO’s investigation. See, e.g., Sharon LaFraniere and Nicholas Fandos, Trump Raises Idea of Pardon For Manafort, N.Y. Times, Nov. 28, 2018, at A1; Carol D. Leonnig and Josh Dawsey, Trump Recently Sought His Lawyers’ Advice on Possibility of Pardoning Manafort, Giuliani Says, Washington Post (Aug. 23, 2018, https://www.washingtonpost.com/politics/trumpsought-his-lawyers-advice-weeks-ago-on-possibility-of-pardoning-manafort-but-they-counseled He took these steps, moreover, despite regular public reports referring to the President’s consideration of pardons and pre-pardons in the SCO’s investigation. See, e.g., Sharon LaFraniere and Nicholas Fandos, Trump Raises Idea of Pardon For Manafort, N.Y. Times, Nov. 28, 2018, at A1; Carol D. Leonnig and Josh Dawsey, Trump Recently Sought His Lawyers’ Advice on Possibility of Pardoning Manafort, Giuliani Says, Washington Post (Aug. 23, 2018, https://www.washingtonpost.com/politics/trumpsought-his-lawyers-advice-weeks-ago-on-possibility-of-pardoning-manafort-but-they-counseled.

[snip]

He could have fought the government and continued to hold to the party line, positioning himself perhaps for a pardon or clemency, but, instead – for himself, his family, and his country – he took personal responsibility for his own wrongdoing and contributed, and is prepared to continue to contribute, to an investigation that he views as thoroughly legitimate and vital.

According to ABC, pardons are one of the topics Cohen cooperated on.

So Mueller probably has evidence that Trump systematically offered pardons, and may have more than that.

If Mueller has proof that Trump offered Manafort a pardon to keep quiet (or that Manafort believed he had) and Manafort denied it, disclosing that now would be devastating, not least because it would force a judicial decision about whether that had actually happened.

If Mueller can present evidence, now, that Trump promised to pardon Manafort and then Manafort lied about it, then it would make it far harder for Trump to follow through on what was probably not a promise in any case without it being an obviously impeachable offense, if not worse.

And proving that lie might, in addition, change Manafort’s calculus about holding out for a pardon.

June 9 meeting

Finally there’s any number of key disclosures involving Trump about which Trump — as well as Manafort — have already submitted sworn statements. The key one of these involves the Trump Tower meeting. Trump’s lackeys have already made it clear he denied knowledge of the meeting.

President Donald Trump told special counsel Robert Mueller in writing that Roger Stone did not tell him about WikiLeaks, nor was he told about the 2016 Trump Tower meeting between his son, campaign officials and a Russian lawyer promising dirt on Hillary Clinton, according to two sources familiar with the matter.

One source described the President’s answers without providing any direct quotes and said the President made clear he was answering to the best of his recollection.

Given that Trump has made this clear, he must believe his answers match Manafort’s on this point.

But if Mueller has solid evidence — perhaps in the form of both witnesses and communications — then revealing that would undercut all the President’s claims about this meeting.

An even crazier possibility is if Mueller has found evidence — perhaps on those iPods I’m so obsessed about — that Manafort not only has proof to the contrary, but that Manafort was keeping records for his handler Kilimnik.

A big reason Trump seems to have turned on Cohen is that, in the course of reviewing the stuff SDNY seized from Cohen’s home, he discovered how much incriminating evidence Cohen was sitting on, whether intentionally (in the form of recordings) or not. Trump hasn’t gotten the same visibility on how damaging the materials seized in the Manafort raid were — though in the immediate aftermath, John Dowd panicked in the same way (though perhaps not as acutely) he did when SDNY raided Cohen. Heck! Who knows? Maybe there’s even hard evidence of a pardon dangle that was in Manafort’s condo by the time he was raided in July 2017, when the Trump people were trying to minimize Manafort’s awareness of the meeting.

The point being, if Mueller can provide evidence, it would be useful both to show that he has proof that Trump knew about the June 9 meeting (though that’s only the most obvious example) and that Manafort kept evidence showing that proof (as Cohen did, of other incriminating activities). The former would undercut the President’s relentless claims there was no collusion. The latter would lead the President to believe Manafort had betrayed him, like his former lawyer.

Mueller is sitting on a great deal of evidence right now, and neither Manafort’s nor Trump’s team seems to know what to expect. If they have the evidence to do so, it seems it would be very easy to replicate the betrayal that happened with Michael Cohen.

Update: I’m going to note that the outlets that have captured Weissmann’s comments differ in their quotes. ABC uses the passive voice.

“That determination has not been made,” special counsel prosecutor Andrew Weissman said, leaving the matter of a second trial open for consideration.

So does NBC.

“That determination has not been made yet,” U.S. Attorney Andrew Weissmann said when asked if the special counsel would lodge more charges.

But WaPo uses the first person plural.

“With respect to whether there will be additional charges, we have not made that determination yet,” Weissmann said.

Sometimes, especially when they’re in a media room (where they can talk to each other while things are proceeding), journalists can reinforce the wrong transcription. But I’m interested in the passive voice, if Weissmann actually used it, because it might leave open that Mueller’s team had decided, but the grand jury had not yet.

Is Jerome Corsi Trying to Get Trump to Intervene (Again)?

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When his former National Security Advisor was at risk for lying to the FBI and serving as an agent of a foreign government, Trump considered pardoning him to keep him from talking, but didn’t.

When his former Campaign Manager was at risk for serving as an agent of a foreign government (and, probably, a whole lot else), Trump considered pardoning him to keep him from talking, but didn’t.

I wonder if Jerome Corsi thinks his luck would be any better.

According to the conspiracy theorist’s own telling, he has been in discussions with Mueller’s investigators since late August. The following has happened recently:

November 8: On his podcast, Corsi suggests something big is going down with Mueller

November 9: Corsi appears before the grand jury and doesn’t give the answer — regarding how he learned that WikiLeaks would release John Podesta’s emails — that prosecutors expected; they told him they were going to charge him with perjury

November 12: On his podcast, Corsi says he expects to be indicted; a huge media frenzy follows

November 13: The media frenzy continues until (he claims), moments before starting an MSNBC interview, his lawyer tells him to call it off

November 23: Corsi goes to the WaPo (off the record), AP, and MSNBC (the latter two both on the record) to tell them he is in plea negotiations

The last time Corsi yanked the media chain, here’s what happened:

The reference to screaming and shouting appears to be based off Corsi’s claims of what went on in the grand jury.

So perhaps Corsi believes if he creates another media frenzy, Trump will take action.

Is it possible that whatever Corsi would tell investigators is more damning than what Mike Flynn and Paul Manafort have presumably already said? Recall that Roger Stone, in several of his many efforts to deflect any attention on his own actions, has suggested that Corsi had his own relationship with Trump (perhaps trying to suggest that if anything Corsi learned made its way to Trump, it would have been directly).

Stone suggested that the special counsel may actually be interested in Corsi’s relationship with Trump.

Corsi was a leading proponent of birtherism, the false conspiracy theory that Barack Obama was not born in the United States. In 2011, he wrote the book “Where’s the Birth Certificate?: The Case That Barack Obama is Not Eligible to be President.”

Around that time, Trump took up the conspiracy theory, questioning Obama’s citizenship and demanding that he release his birth certificate.

Stone said that during a conversation with Trump in 2011, “he said to me, ‘Who is this guy, Jerome Corsi?’” Stone recalled.

Stone said he asked Trump why he was inquiring about Corsi.

“I’ve been talking to him,” Stone recalled Trump saying.

Stone said that Corsi also met with Trump during the 2016 campaign.

And Corsi’s own lawyer has suggested Corsi declined to take part in criminal activity that Stone may have invited him to be a part of.

Gray said he was confident that Corsi has done nothing wrong. “Jerry Corsi made decisions that he would not take actions that would give him criminal liability,” he added, declining to elaborate.

Asked if Corsi had opportunities to take such actions, Gray said, “I wouldn’t say he was offered those opportunities. I would say he had communications with Roger Stone. We’ll supply those communications and be cooperative. My client didn’t act further that would give rise to any criminal liability.”

Of course, Corsi may not need a pardon to get himself out of the legal pickle he’s in. He may be counting on Acting Attorney General Matt Whitaker to bail him out. Whitaker was appointed the day before Corsi’s attempts to work the media; when firing Jeff Sessions, John Kelly made it clear Whitaker needed to be in place that day. And the same day that Corsi started this blitz, November 8, Michael Dreeben suggested both that Mueller could do all the things that prosecutors do without pre-approval — seeking immunity, making plea agreements, and bringing indictments — but also noted that subpoenaing a journalist is one of the things that requires Attorney General approval.

Prosecutors do this all the time. They seek immunity. They make plea agreements,. They bring indictments.

[snip]

If we want to subpoena a member of the media, or if we want to immunize a witness, we’re encouraged if we’re not sure what the policy or practice is, to consult with the relevant officials in the Department of Justice. If we wanted to appeal an adverse decision, we would have to get approval of the Solicitor General of the United States. So we’re operating within that sort of supervisory framework.

Given the other things Mueller’s team has said — notably, that any subpoenas they issued before Whitaker was appointed remain valid — it’s not clear Corsi even could roll back any cooperation he offered before Whitaker came in. But that doesn’t mean Corsi might not try, especially if past efforts proved to have some effect.

At the very least, Corsi may be trying to give Trump more basis to bitch about witch hunts.

Trump Refuses to Answer Why He Ordered Mike Flynn to Placate the Russians on Sanctions

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As I have repeatedly argued, a key detail of the Russian investigation that has never been adequately explained is the firing of Mike Flynn. Contrary to what Trump’s propaganda in early January 2017 suggested, it was no secret within the White House that Flynn had discussed delaying any response to Obama’s sanctions with Sergei Kislyak. Indeed, it is virtually certain Flynn did so on the Trump’s orders, conveyed via KT McFarland, and many of the people involved in creating Trump’s public explanations knew that.

Which is why it’s so interesting that Trump has refused to answer questions about the transition (in addition to questions about after inauguration).

But after months of negotiations with Mueller’s team, Trump’s lawyers have refused to answer any questions about his time as president-elect or president, arguing that the special counsel is not legally entitled to details about executive decision-making.

If, as I’ve posited, sanctions relief was one of the payoffs in a quid pro quo for election assistance, then by refusing to answer questions about the transition, Trump would effectively be refusing to go on the record about why he chose to undermine Obama’s policy (on this, and on assistance to Israel, probably among other things).

Now consider how this fits with regards to timing.

The WaPo reports that Trump was going to return his open book test to Mueller last Thursday, but balked, claiming they had questions about the legitimacy of the investigation.

Trump’s lawyers originally planned to submit the answers to Mueller last Thursday, but put on the brakes.

Giuliani said there were “more questions raised about the legitimacy of the investigation that we had to discuss and look into,” declining to elaborate.

That makes it more likely that the 10-day delay in a status report on Paul Manafort’s cooperation — from last Friday to next Monday — reflects Mueller’s effort to delay releasing that report until after he had received Trump’s responses (which, remember, he once said he’d return a day or so after returning from Paris).

It’s also possible that Trump got his first report on the status of the investigation from Whitaker last Thursday, one day after OLC released its memo deeming Whitaker’s appointment legal. Today, Chuck Schumer sent DOJ Inspector General Michael Horowitz a letter asking for an investigation into Whitaker’s communications with the White House, but I read it to relate exclusively to activity prior to his appointment as Acting Attorney General.

Or, less controversially, he may have gotten assurances from Whitaker that he, as Acting AG slash hatchetman, would deem transition period activities as protected by Executive Privilege.

And since we’re reading tea leaves, consider the additional motion Mueller submitted in the Mystery Appellant case.

Particularly given the motion Mueller submitted yesterday — which argued that any subpoena the Special Counsel issued before Whitaker’s appointment remains valid — I wonder whether the recent activity reflects Whitaker’s tampering as well, perhaps reflecting notice, after the OLC memo, that Whitaker does not agree with the subpoena. Today’s sealed motion is around 25% longer than yesterday’s brief, so it may be notice of that argument.

(I think the new motion raises the chances, slightly, that the Mystery Appellant is Trump, but if it were someone — like John Kelly — making an Executive Privilege claim, Whitaker’s intervention may rely on the same justification Trump might have made last week about withholding transition materials.)

In other words, not only is Trump trying to avoid providing sworn testimony about one key event in this investigation — his order to placate the Russians on sanctions — but there are other hints that Whitaker has started his work to undermine the Mueller investigation.

Still, it may be too little too late. Mike Flynn’s sentencing continues as scheduled, with his probation officer submitting his presentencing report today. The government will have to submit a report on his cooperation on December 4, in advance of his December 18 sentencing. So Mueller must feel confident he knows all the circumstances of those conversations with Kislyak regardless of Trump’s willingness to talk about it.

James Baker Channels a Road Map He and Comey and Andrew McCabe Might Navigate

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Some weeks ago, I used Leon Jaworski’s Road Map to imagine what an equivalent Robert Mueller Road Map, packaging grand jury information to share with the House Judiciary Committee, might look like.

Among other things I showed the close parallel between John Dean’s attempt to craft a cover story and Don McGahn’s attempts to do the same. That section included how Nixon worked Henry Petersen, then Assistant Attorney General for Criminal Division, to try to influence the investigation.

After substantiating what would have been the indictment against Nixon, the Watergate Road Map showed how Nixon had John Dean and others manufacture a false exonerating story. The Road Map cited things like:

  • Nixon’s public claims to have total confidence in John Dean
  • Nixon’s efforts to falsely claim to the Attorney General, Richard Kleindienst, that former AG John Mitchell might be the most culpable person among Nixon’s close aides
  • Nixon’s instructions to his top domestic political advisor, John Ehrlichman, to get involved in John Dean’s attempts to create an exculpatory story
  • Press Secretary Ron Ziegler’s public lies that no one knew about the crime
  • Nixon’s efforts to learn about what prosecutors had obtained from his close aides
  • Nixon’s private comments to his White House Counsel to try to explain away an incriminating comment
  • Nixon’s ongoing conversations with his White House Counsel about what he should say publicly to avoid admitting to the crime
  • Nixon’s multiple conversations with top DOJ official Henry Petersen, including his request that Petersen not investigate some crimes implicating the Plumbers
  • Nixon’s orders to his Chief of Staff, HR Haldeman, to research the evidence implicating himself in a crime

This is an area where there are multiple almost exact parallels with the investigation into Trump, particularly in Don McGahn’s assistance to the President to provide bogus explanations for both the Mike Flynn and Jim Comey firings — the former of which involved Press Secretary Sean Spicer and Chief of Staff Reince Priebus, the latter of which involved Trump’s top domestic political advisor Stephen Miller. There are also obvious parallels between the Petersen comments and the Comey ones. Finally, Trump has made great efforts to learn via Devin Nunes and other House allies what DOJ has investigated, including specifically regarding the Flynn firing.

One key point about all this: the parallels here are almost uncanny. But so is the larger structural point. These details did not make the draft Nixon indictment. There were just additional proof of his cover-up and abuse of power. The scope of what HJC might investigate regarding presidential abuse is actually broader than what might be charged in an indictment.

The equivalent details in the Mueller investigation — particularly the Comey firing — have gotten the bulk of the press coverage (and at one point formed a plurality of the questions Jay Sekulow imagined Mueller might ask). But the obstruction was never what the case in chief is, the obstruction started when Trump found firing Flynn to be preferable to explaining why he instructed Flynn, on December 29, to tell the Russians not to worry about Obama’s sanctions. In the case of the Russia investigation, there has yet to be an adequate public explanation for Flynn’s firing, and the Trump team’s efforts to do so continue to hint at the real exposure the President faces on conspiracy charges. [my emphasis]

Another section showed how Nixon was commenting on what he had said to Petersen and Attorney General Kleindienst was like Trump’s comments on Jim Comey and other DOJ officials.

That was all written from the outside.

Today, former FBI General Counsel James Baker performs the same task. He doesn’t describe the effort as such. Rather, he just says he finds certain things — particularly those having to do with Henry Petersen — attracted his (and Sarah Grant’s, with whom he wrote this) attention.

One of the aspects of the recently released Watergate “road map” and related documents that attracted our attention is the set of materials pertaining to interactions, direct and indirect, between President Richard M. Nixon and two senior Department of Justice officials.

The whole post starts with a description of how Petersen told Nixon that Haldeman and Ehrlichman were implicated in the break-in and advised him to fire them, only to have the President respond that he would not.

One of the officials later testified: “He said he couldn’t believe it. You know, just these are fine upstanding guys. Just couldn’t be, you know.” He impressed on the president, “We are here to alert you. We think we’ve got something. We could be wrong, but we are telling you it’s time for you to move to protect yourself and the presidency.” And he urged the president to “get rid” of the staffers in question; the president responded, “‘Yeah, and I don’t think I should. I’ve got to think about this and that and a thousand other things.’”

The parallel here, of course, is Mike Flynn, whom Sally Yates recommended Trump fire, but whom Trump kept on for almost two weeks because he had ordered him to engage in the suspect behavior in question.

The post goes on to describe how Nixon got that top DOJ figure to provide information on a DOJ investigation investigating him personally.

In addition, on two occasions President Nixon asked Petersen for written summaries of aspects of the Justice Department’s investigation, including information regarding Haldeman and Ehrlichman: “[H]e asked for a full exposition. Having got into it this far, he felt he needed all the information, and I said I would undertake to . . . try to do that.” The president asked Petersen “to be kept informed of these things” but did not expect Petersen to divulge grand jury material. Petersen said that he ultimately determined that he could not provide any additional information at that time because it would have involved disclosing grand jury material; the president accepted that conclusion. In the following two weeks, however, Petersen did provide the president with “very general” information about the investigation, and the president on one occasion asked him, “‘Well, what else is new?’”

According to the president’s logs, between March 13, 1973, and April 30, 1973, President Nixon had seven meetings and initiated 19 phone calls with Petersen. These calls included four on April 15, 1973, after Kleindienst and Petersen met with the president to recommend that he fire Haldeman and Ehrlichman, including one call from 11:45 p.m. to 11:53 p.m. It is difficult to recount concisely the details of all of these communications to the extent that they are reflected in the information that we reviewed. Suffice it to say that these communications and other information in the attachments to the road map indicate that the Justice Department provided the White House with certain information about the course of the investigation on an ongoing basis.

The president, in short, was using a senior Justice Department official to gather intelligence about an ongoing criminal investigation in which he was personally implicated.

The post also explains how Nixon tried to influence Petersen to speed up the investigation and by offering promotions.

On at least one occasion, President Nixon commented to Petersen on the pace of the investigation. Petersen testified: “Well, there was some discussion about the need for, you know—‘Hurry up and get this over with.’ ‘Yes. We’ll make haste as reasonably as we can.’”

President Nixon also discussed Petersen’s future role with him, as they concurrently discussed a live investigative matter. Petersen testified: “there were statements, during the course of the President’s conversations with me, ‘Now, you’ll have to serve as White House counsel,’ or, ‘You’re the adviser to the President now,’ which I, frankly, thought was a little heavy handed.”

It lays out how Nixon asked the top DOJ official whether he, personally, was under investigation.

Similarly, the Watergate Task Force report referenced above states that on April 27, 1973, “the President asked Petersen if he had any information implicating the President himself. Petersen said he did not.” The president, in other words, was asking the head of the Criminal Division whether he was personally under investigation.

And then it shows how HJC included such abuses in its articles of impeachment.

How was all of this presidential contact with the Justice Department understood in the context of Watergate? Pretty harshly. For example, Article II, paragraph 5, of the House Judiciary Committee’s July 27, 1974, Articles of Impeachment states in part that President Nixon:

In disregard of the rule of law, . . . knowingly misused the executive power by interfering with agencies of the executive branch, including the Federal Bureau of Investigation, the Criminal Division, and the Office of Watergate Special Prosecution Force, of the Department of Justice, and the Central Intelligence Agency, in violation of his duty to take care that the laws be faithfully executed.

President Nixon resigned on Aug. 9, 1974, and was pardoned by President Gerald Ford on Sept. 8, 1974.

As I noted in the post where I drew these parallels, we’re not in 1974 anymore, and there are a lot of reasons to doubt Trump will be impeached for acting in a similar manner as Nixon did.

But James Baker definitely seems to think the parallels are there.

What the Watergate Road Map Might Say about a Mueller Road Map

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In an interview last week, Rudy Giuliani explained that Trump had finished the open book test Mueller had given the President, but that they were withholding the answers until after tomorrow’s election, after which they’ll re-enter negotiations about whether Trump will actually answer questions on the Russian investigation in person or at all.

“I expect a day after the election we will be in serious discussions with them again, and I have a feeling they want to get it wrapped up one way or another.”

Meanwhile, one of the first of the post-election Administration shake-up stories focuses, unsurprisingly, on the likelihood that Trump will try to replace Jeff Sessions and/or Rod Rosenstein (though doesn’t headline the entire story “Trump set to try to end Mueller investigation,” as it should).

Some embattled officials, including Attorney General Jeff Sessions, are expected to be fired or actively pushed out by Trump after months of bitter recriminations.

[snip]

Among those most vulnerable to being dismissed are Sessions and Deputy Attorney General Rod J. Rosenstein, who is overseeing special counsel Robert S. Mueller III’s Russia investigation after Sessions recused himself. Trump has routinely berated Sessions, whom he faults for the Russia investigation, but he and Rosenstein have forged an improved rapport in recent months.

As I note in my TNR piece on the subject, there are several paths that Trump might take to attempt to kill the Mueller investigation, some of which might take more time and elicit more backlash. If Trump could convince Sessions to resign, for example, he could bring in Steven Bradbury or Alex Azar to replace him right away, meaning Rosenstein would no longer be Acting Attorney General overseeing Mueller, and they could do whatever they wanted with it (and remember, Bradbury already showed himself willing to engage in legally suspect cover-ups in hopes of career advancement with torture). Whereas firing Rosenstein would put someone else — Solicitor General Noel Francisco, who already obtained an ethics waiver for matters pertaining to Trump Campaign legal firm Jones Day, though it is unclear whether that extends to the Mueller investigation — in charge of overseeing Mueller immediately.

This may well be why Rudy is sitting on Trump’s open book test: because they’ve gamed out several possible paths depending on what kind of majority, if any, Republicans retain in the Senate (aside from trying to defeat African American gubernatorial candidates in swing states, Trump has focused his campaigning on retaining the Senate; FiveThirtyEight says the two most likely outcomes are that Republicans retain the same number of seats or lose just one, net). But they could well gain a few seats. If they have the numbers to rush through a Sessions replacement quickly, they’ll fire him, but if not, perhaps Trump will appease Mueller for a few weeks by turning in the answers to his questions.

That’s the background to what I focused on in my TNR piece last week: the Mueller report that Rudy has been talking about incessantly, in an utterly successful attempt to get most journalists covering this to ignore the evidence in front of them that Mueller would prefer to speak in indictments, might, instead, be the failsafe, the means by which Mueller would convey the fruits of his investigation to the House Judiciary Committee if Trump carries out a Wednesday morning massacre. And it was with that in mind that I analyzed how the Watergate Road Map served to do just that in this post.

In this post, I’d like to push that comparison further, to see what — if Mueller and his Watergate prosecutor James Quarles team member are using the Watergate precedent as a model — that might say about Mueller’s investigation. I’ll also lay out what a Mueller Road Map, if one awaits a Wednesday Morning Massacre in a safe somewhere, might include.

The Watergate prosecutors moved from compiling evidence to issuing the Road Map in just over six months

As early as August 1973, George Frampton had sent Archibald Cox a “summary of evidence” against the President. Along with laying out the gaps prosecutors had in their evidence about about what Nixon knew (remember, investigators had only learned of the White House taping system in July), it noted that any consideration of how his actions conflicted with his claims must examine his public comments closely.

That report paid particular attention to how Nixon’s White House Counsel had created a report that created a transparently false cover story. It described how Nixon continued to express full confidence in HR Haldeman and John Ehrlichman well after he knew they had been involved in the cover-up. It examined what Nixon must have thought the risks an investigation posed.

The Archives’ Road Map materials show that in the same 10 day period from January 22 to February 1, 1974 when the Special Prosecutor’s office was negotiating with the President’s lawyers about obtaining either his in-person testimony or at least answers to interrogatories, they were also working on a draft indictment of the President, charging four counts associated with his involvement in and knowledge of the bribe to Howard Hunt in March 1973. A month later, on March 1, 1974 (and so just 37 days after the time when Leon Jaworski and Nixon’s lawyers were still discussing an open book test for that more competent president), the grand jury issued the Road Map, a request to transmit grand jury evidence implicating the President to the House Judiciary Committee so it could be used in an impeachment.

Toto we’re not in 1974 anymore … and neither is the President

Let me clear about what follows: there’s still a reasonable chance Republicans retain the House, and it’s most likely that Republicans will retain the Senate. We’re not in a position where — unless Mueller reveals truly heinous crimes — Trump is at any imminent risk of being impeached. We can revisit all this on Wednesday after tomorrow’s elections and after Trump starts doing whatever he plans to do in response, but we are in a very different place than we were in 1974.

So I am not predicting that the Mueller investigation will end up the way the Watergate one did. Trump has far less concern for his country than Nixon did — an observation John Dean just made.

And Republicans have, almost but not quite universally, shown little appetite for holding Trump to account.

So I’m not commenting on what will happen. Rather, I’m asking how advanced the Mueller investigation might be — and what it may have been doing for the last 18 months — if it followed the model of the Watergate investigation.

One more caveat: I don’t intend to argue the evidence in this thread — though I think my series on what the Sekulow questions say stands up really well even six months later. For the rest of this post, I will assume that Mueller has obtained sufficient evidence to charge a conspiracy between Trump’s closest aides and representatives of the Russian government. Even if he doesn’t have that evidence, though, he may still package up a Road Map in case he is fired.

Jaworski had a draft indictment around the same time he considered giving Nixon an open book test

Even as the Watergate team was compiling questions they might pose to the President if Jaworski chose to pursue that route, they were drafting an indictment.

If the Mueller investigation has followed a similar path, that means that by the time Mueller gave Trump his open book test in October, he may have already drafted up an indictment covering Trump’s actions. That’s pretty reasonable to imagine given Paul Manafort’s plea deal in mid-September and Trump’s past statements about how his former campaign manager could implicate him personally, though inconsistent with Rudy’s claims (if we can trust him) that Manafort has not provided evidence against Trump.

Still, if the Jaworski Road Map is a guide, then Mueller’s team may have already laid out what a Trump indictment would look like if you could indict a sitting President. That said, given the complaints that DOJ had drafted a declination with Hillary before her interview, I would assume they would keep his name off it, as the Watergate team did in editing the Nixon indictment.

Then, a month after drawing up a draft indictment, Jaworski’s grand jury had a Road Map all packaged up ready to be sent to HJC.

Another crucial lesson of this comparison: Jaworksi did not wait for, and did not need, testimony from the President to put together a Road Map for HJC. While I’m sure he’ll continue pursuing getting Trump on the record, there’s no reason to believe Mueller needs that to provide evidence that Trump was part of this conspiracy to HJC.

Given that I think a Mueller report primarily serves as a failsafe at this point, I would expect that he would have some version of that ready to go before Wednesday. And that’s consistent with the reports — enthusiastically stoked by the President’s lawyers — that Mueller is ready to issue his findings.

If a Mueller report is meant to serve as a Road Map for an HJC led by Jerrold Nadler starting in January, then it is necessarily all ready to go (and hopefully copied and safely stored in multiple different locations), even if it might be added to in coming months.

The Road Map Section I included evidence to substantiate the the conspiracy

As I laid out here, the Watergate Road Map included four sections: 

I. Material bearing on a $75,000 payment to E. Howard Hunt and related events

II. Material bearing on the President’s “investigation”

III. Material bearing on events up to and including March 17, 1973

IV. The President’s public statements and material before the grand jury related thereto

The first section maps very closely to the overt acts laid out in the February 1 draft indictment, incorporating two acts into one and leaving off or possibly redacting one, but otherwise providing the grand jury evidence — plus some interim steps in the conspiracy — that Jaworski would have used to prove all the overt acts charged in the conspiracy charge from that draft indictment.

If Mueller intended to charge a quid pro quo conspiracy — that Trump accepted a Russian offer to drop dirt, possibly emails explicitly, in response for sanctions relief (and cooperation on Syria and other things) — then we could imagine the kinds of overt acts he might use to prove that:

  • Foreknowledge of an offer of dirt and possibly even emails (Rick Gates and Omarosa might provide that)
  • Trump involvement in the decision to accept that offer (Paul Manafort had a meeting with Trump on June 7, 2016 that might be relevant, as would the immediate aftermath of the June 9 meeting)
  • Trump signaling that his continued willingness to deliver on the conspiracy (as early as the George Papadopoulos plea, Mueller laid out some evidence of this, plus there is Trump’s request for Russia to find Hillary emails, which Mueller has already shown was immediately followed by intensified Russian hacking attempts)
  • Evidence Russia tailored releases in response to Trump campaign requests (Roger Stone may play a key role in this, but Mueller appears to know that Manafort even more explicitly asked Russia for help)
  • Evidence Trump moved to pay off his side of the deal, both by immediately moving to cooperate on Syria and by assuring Russia that the Trump Administration would reverse Obama’s sanctions

Remember, to be charged, a conspiracy does not have to have succeeded (that is, it doesn’t help Trump that he hasn’t yet succeeded in paying off his debt to Russia; it is enough that he agreed to do so and then took overt acts to further the conspiracy).

In other words, if Mueller has a Road Map sitting in his safe, and if I’m right that this is the conspiracy he would charge, there might be a section that included the overt acts that would appear in a draft indictment of Trump (and might appear in an indictment of Trump’s aides and spawn and the Russian representatives they conspired with), along with citations to the grand jury evidence Mueller has collected to substantiate those overt acts.

Note, this may explain whom Mueller chooses to put before the grand jury and not: that it’s based off what evidence Mueller believes he would need to pass on in sworn form to be of use for HJC, to (among other things) help HJC avoid the protracted fights over subpoenas they’ll face if Democrats do win a majority.

The Road Map Section II described how the White House Counsel tried to invent a cover story

After substantiating what would have been the indictment against Nixon, the Watergate Road Map showed how Nixon had John Dean and others manufacture a false exonerating story. The Road Map cited things like:

  • Nixon’s public claims to have total confidence in John Dean
  • Nixon’s efforts to falsely claim to the Attorney General, Richard Kleindienst, that former AG John Mitchell might be the most culpable person among Nixon’s close aides
  • Nixon’s instructions to his top domestic political advisor, John Ehrlichman, to get involved in John Dean’s attempts to create an exculpatory story
  • Press Secretary Ron Ziegler’s public lies that no one knew about the crime
  • Nixon’s efforts to learn about what prosecutors had obtained from his close aides
  • Nixon’s private comments to his White House Counsel to try to explain away an incriminating comment
  • Nixon’s ongoing conversations with his White House Counsel about what he should say publicly to avoid admitting to the crime
  • Nixon’s multiple conversations with top DOJ official Henry Petersen, including his request that Peterson not investigate some crimes implicating the Plumbers
  • Nixon’s orders to his Chief of Staff, HR Haldeman, to research the evidence implicating himself in a crime

This is an area where there are multiple almost exact parallels with the investigation into Trump, particularly in Don McGahn’s assistance to the President to provide bogus explanations for both the Mike Flynn and Jim Comey firings — the former of which involved Press Secretary Sean Spicer and Chief of Staff Reince Priebus, the latter of which involved Trump’s top domestic political advisor Stephen Miller. There are also obvious parallels between the Petersen comments and the Comey ones. Finally, Trump has made great efforts to learn via Devin Nunes and other House allies what DOJ has investigated, including specifically regarding the Flynn firing.

One key point about all this: the parallels here are almost uncanny. But so is the larger structural point. These details did not make the draft Nixon indictment. There were just additional proof of his cover-up and abuse of power. The scope of what HJC might investigate regarding presidential abuse is actually broader than what might be charged in an indictment.

The equivalent details in the Mueller investigation — particularly the Comey firing — have gotten the bulk of the press coverage (and at one point formed a plurality of the questions Jay Sekulow imagined Mueller might ask). But the obstruction was never what the case in chief is, the obstruction started when Trump found firing Flynn to be preferable to explaining why he instructed Flynn, on December 29, to tell the Russians not to worry about Obama’s sanctions. In the case of the Russia investigation, there has yet to be an adequate public explanation for Flynn’s firing, and the Trump team’s efforts to do so continue to hint at the real exposure the President faces on conspiracy charges.

In other words, I suspect that details about the Comey firing and Don McGahn’s invented explanations for it that made a Mueller Road Map might, as details of the John Dean’s Watergate investigation did in Jaworski’s Road Map, as much to be supporting details to the core evidence proving a conspiracy.

The Road Map Section III provided evidence that Nixon knew about the election conspiracy, and not just the cover-up

The third section included some of the most inflammatory stuff in Jaworski’s Road Map, showing that Nixon knew about the campaign dirty tricks and describing what happened during the 18 minute gap. Here’s where I suspect Jaworski’s Road Map may differ from Mueller’s: while much of this section provides circumstantial evidence to show that the President knew about the election crimes ahead of time, my guess is (particularly given Manafort’s plea) that Mueller has more than circumstantial evidence implicating Trump. In a case against Trump, the election conspiracy — not the cover-up, as it was for Nixon — is the conspiracy-in-chief that might implicate the President.

The Road Map Section III described Nixon’s discussions about using clemency to silence co-conspirators

One other area covered by this section, however, does have a direct parallel: in Nixon’s discussions about whether he could provide clemency to the Watergate defendants. With both Flynn and Manafort cooperating, Mueller must have direct descriptions of Trump’s pardon offers. What remains to be seen is if Mueller can substantiate (as he seems to be trying to do) Trump willingness to entertain any of the several efforts to win Julian Assange a pardon. There’s no precedent to treat offering a pardon as a crime unto itself, but it is precisely the kind of abuse of power the founders believed merited impeachment. Again, it’s another thing that might be in a Mueller Road Map that wouldn’t necessarily make an indictment.

The Road Map Section IV showed how Nixon’s public comments conflicted with his actions

We have had endless discussions about Trump’s comments about the Russian investigation on Twitter, and even by March, at least 8 of the questions Sekulow imagined Mueller wanted to ask pertained to Trump’s public statements.

  • What was the purpose of your April 11, 2017, statement to Maria Bartiromo?
  • What did you mean when you told Russian diplomats on May 10, 2017, that firing Mr. Comey had taken the pressure off?
  • What did you mean in your interview with Lester Holt about Mr. Comey and Russia?
  • What was the purpose of your May 12, 2017, tweet?
  • What was the purpose of the September and October 2017 statements, including tweets, regarding an investigation of Mr. Comey?
  • What is the reason for your continued criticism of Mr. Comey and his former deputy, Andrew G. McCabe?
  • What was the purpose of your July 2017 criticism of Mr. Sessions?
  • What involvement did you have in the communication strategy, including the release of Donald Trump Jr.’s emails?

The Watergate Road Map documents a number of public Nixon comments that, like Trump’s, are not themselves criminal, but are evidence the President was lying about his crimes and cover-up. The Watergate Road Map describes Nixon claiming that:

  • He did not know until his own investigation about efforts to pay off Watergate defendants
  • He did not know about offers of clemency
  • He did not know in March 1973 there was anything to cover up
  • His position has been to get the facts out about the crime, not cover them up
  • He ordered people to cooperate with the FBI
  • He had always pressed to get the full truth out
  • He had ordered legitimate investigations into what happened
  • He had met with Kleindienst and Peterson to review what he had learned in his investigation
  • He had not turned over evidence of a crime he knew of to prosecutors because he assumed Dean already had
  • He had learned more about the crimes between March and April 1973

Admittedly, Trump pretended to want real investigations — an internal investigation of what Flynn had told the FBI, and an external investigation into the election conspiracy — for a much briefer period than Nixon did (his comments to Maria Bartiromo, which I covered here, and Lester Holt, which I covered here, are key exceptions).

Still, there are a slew of conflicting comments Trump has made, some obviously to provide a cover story or incriminate key witnesses, that Mueller showed some interest in before turning in earnest to finalizing the conspiracy case in chief. A very central one involves the false claims that Flynn had said nothing about sanctions and that he was fired for lying to Mike Pence about that; probably at least 7 people knew those comments were false when Sean Spicer made them.  Then there are the at least 52 times he has claimed “No Collusion” or the 135 times he has complained about a “Witch Hunt” on Twitter.

Trump’s lawyers have complained that his public comments have no role in a criminal investigation (though the likelihood he spoke to Putin about how to respond as the June 9 meeting story broke surely does). But Mueller may be asking them for the same reason they were relevant to the Watergate investigation. They are evidence of abuse of power.

The Road Map included the case in chief, not all the potential crimes

Finally, there is one more important detail about the Road Map that I suspect would be matched in any Mueller Road Map: Not all the crimes the Special Prosecutor investigated made the Road Map. The Watergate team had a number of different task forces (as I suspect Mueller also does). And of those, just Watergate (and to a very limited degree, the cover-up of the Plumbers investigation) got included in the Road Map.

Here, we’ve already seen at least one crime get referred by Mueller, Trump’s campaign payoffs. I’ve long suggested that the Inauguration pay-to-play might also get referred (indeed, that may be the still-active part of the grand jury investigation that explains why SDNY refuses to release the warrants targeting Michael Cohen). Mueller might similarly refer any Saudi, Israeli, and Emirate campaign assistance to a US Attorney’s office for investigation. And while it’s virtually certain Mueller investigated the larger network of energy and other resource deals that seem to be part of what happened at the Seychelles meetings, any continuing investigation may have been referred (indeed, may have actually derived from) SDNY.

In other words, while a Mueller Road Map might include things beyond what would be necessary for a criminal indictment, it also may not include a good number of things we know Mueller to have examined, at least in passing.

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. 

Mueller Had Learned by February 22 that Roger Stone Was Pushing an Assange Pardon in January

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Mother Jones has a story describing Roger Stone claiming to Randy Credico in January that President Trump was about to pardon Julian Assange.

In early January, Roger Stone, the longtime Republican operative and adviser to Donald Trump, sent a text message to an associate stating that he was actively seeking a presidential pardon for WikiLeaks founder Julian Assange—and felt optimistic about his chances. “I am working with others to get JA a blanket pardon,” Stone wrote, in a January 6 exchange of text messages obtained by Mother Jones. “It’s very real and very possible. Don’t fuck it up.” Thirty-five minutes later Stone added: “Something very big about to go down.”

As the story notes, this is the third known effort by Assange supporters (the other two being an early 2017 effort by lobbyist Adam Waldman and an August 2017 effort by Dana Rohrabacher) to get him a pardon, and would have come in the immediate wake of a Christmas Eve 2017 plan to sneak him out of the Ecuadorian Embassy to get him to Ecuador or Russia.

As interesting as I find the story that Stone was working for an Assange pardon is how quickly Mueller found out about it. Sam Nunberg says he was asked if he knew anything about it.

Sam Nunberg, a former Trump campaign aide who once worked closely with Stone, told Mother Jones that prosecutors asked him during a February interview if Stone “ever discussed pardons and Assange.” Nunberg said he had not heard Stone discuss such an effort, and prosecutors did not raise the subject during his subsequent testimony before a grand jury.

His interview was on February 22.

That would say that Mueller’s team had learned about the effort less than two months later (and before the March 9 warrant for multiple cell phones I’ve long speculated might have included one of Stone’s).

Obviously, US intelligence and law enforcement agencies have to be tracking all of Assange’s accessible communications closely. So Mueller’s knowledge of the pardon effort may have come from Assange himself. If it came from Stone’s side, though, it would suggest he learned about it pretty quickly.

In any case, in the interim, Mueller would presumably have obtained a lot more information on this effort, including whatever durable communications Stone had with people close to Trump on the effort. Which means a question about pre-emptively pardoning Assange likely got added to the Mueller questions to Trump about his efforts to pre-emptively pardon Mike Flynn and Paul Manafort.

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. 

On the Roger Stone Investigation: Talking to Guccifer 2.0 or WikiLeaks Is Not a Crime

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Before I get further in my series on the known universe of hacked and leaked emails from 2016, I want to explain something about Roger Stone, especially given this WaPo story that provides interesting details but claims Mueller is pursuing them in hopes of answering this question:

Did longtime Trump adviser Roger Stone — or any other associate of the president — have advance knowledge of WikiLeaks’ plans to release hacked Democratic emails in 2016?

While I don’t claim to understand much more than the rest of the world about what the Mueller probe is doing, I say with a fair degree of certainty that Mueller has not had three prosecutors chasing leads on Roger Stone since February because he wants to know if Stone had advance knowledge of WikiLeaks’ plans on releasing emails. Knowing that WikiLeaks planned on releasing emails is not a crime.

Indeed, Assange at times (most notably on June 12) telegraphed what he was up to. There were WikiLeaks volunteers and some journalists who knew what WikiLeaks was up to. None of that, by itself, is a crime.

With that in mind, consider the following:

It matters what emails Stone claimed to know would be released

At the risk of spoiling my series, let me explain the significance of it. While knowing that WikiLeaks would release emails is not by itself a crime, advance knowledge becomes more interesting based on what Stone might have done with that knowledge. Here’s why:

  • DNC emails: Mueller has presumably tracked whether and to whom George Papadopoulos shared advance knowledge of the tip he got on April 26 that the Russians would release emails to help Trump. That’s important because if he can show meeting participants knew those emails had been offered, then June 9 meeting becomes an overt act in a conspiracy. While there’s no public allegation Stone knew that WikiLeaks would be releasing Hillary emails before Julian Assange stated that publicly on June 12 (after the Trump Tower meeting and therefore at most a response to the meeting), if Stone knew that WikiLeaks would be part of the delivery method it adds to evidence of a conspiracy.
  • Podesta emails: The Democrats’ focus on Stone has always been on his seeming advance knowledge that WikiLeaks would release the Podesta emails, though the public case that he did is in no way definitive. Even assuming he did learn in advance, there are multiple channels via which Stone might have learned the Podesta emails were coming (just as an example, Democrats have necessarily always been obfuscating about how much they knew). But any presumed advance knowledge is still only a crime if Stone in some way coordinated with it or encouraged ongoing hacking.
  • Deleted Hillary emails: While the evidence that Roger Stone knew that WikiLeaks would release Podesta’s emails is inconclusive, the evidence that he “knew” WikiLeaks had Hillary’s deleted emails is not. Stone made that claim over and over. It’s actually not public whether and when WikiLeaks obtained files purporting to be Hillary’s deleted emails, though we should assume they got at least some sets of purported emails via the Peter Smith effort. If Stone had involvement in that effort, it might be criminal (because operatives were soliciting stolen emails from criminal hackers, not just making use of what got released), though Stone says he was unaware of it.
  • DCCC emails: The DCCC files, which offered more operational data about downstream campaigns, might raise other problems under criminal law. That’s because the data offered was generally more operational than the DNC and Podesta emails offered, meaning operatives could use the stolen data to tweak their campaign efforts. And Guccifer 2.0 was sharing that data specifically with operatives, providing something of value to campaigns. Guccifer 2.0 tried to do the same with Stone. The text messages between Stone and Guccifer 2.0 show the persona trying to get Stone interested in some of the DCCC files pertaining to FL. But at least on those DMs, Stone demurred. That said, if Stone received and operationalized DCCC data in some of his rat-fucking, then it might raise criminal issues.

It matters from whom Stone learned (if he did) of WikiLeaks’ plans

A big part of Mueller’s focus seems to be on testing Stone’s public claims that his go-between with WikiLeaks was Randy Credico, who had ties to Assange but was not conspiring to help Trump win via those channels.

There are other possible go-betweens that would be of greater interest. For example, the public discussion of Stone’s potential advance knowledge seems to have forgotten the suspected role of Nigel Farage, with whom Stone dined at the RNC and later met at Trump’s inauguration. That would be of heightened interest, particularly given the way Stone suggested the vote had been rigged against Brexit and Trump when in reality Russians were rigging the vote for both.

It matters whether Stone lied about the whom or the what

Stone’s testimony to the House, in which he offered explanations about any advance knowledge and his Podesta comment, was sworn. If Mueller can show he lied in his sworn testimony, that is certainly technically a crime (indeed, Sam Patten got referred to Mueller based on on his false statements to the Senate Intelligence Committee). But it’s unlikely Mueller would charge, much less investigate, Stone for 8 months solely to prove whether he lied to Congress.

But if Stone did lie — claiming he learned of WikiLeaks’ plans from Credico when in fact he learned from someone also conspiring with the Russians — then those lies would lay out the import of Stone’s role, in what he was hypothetically trying to cover up.

Stone’s flip-flop on blaming the Russians at the moment he claimed to have knowledge of WikiLeaks’ plans is of likely interest

There’s a data point that seems very important in the Roger Stone story. On or around August 3, the very same day Stone told Sam Nunberg that he had dined with Julian Assange, Stone flip-flopped on his public statements about whether Russia had hacked Hillary or some 400 pound hacker in a basement had. During that period, he went from NY (where he met with Trump) to LA to coordinate with his dark money allies, then went home to Florida to write a column that became the first entry in Stone’s effort to obfuscate the Russian role in the hack. That flip-flop occurred just before Stone started making public claims about what WikiLeaks had.

I suspect that flip-flop is a real point of interest, and as such may involve some other kind of coordination that the press has no public visibility on (particularly given that his claimed meeting with Assange happened while he was meeting with his dark money people).

Mueller may have had probable cause Roger Stone broke the law by March

In the wake of Michael Caputo’s testimony, Roger Stone briefly claimed that he must have been targeted under FISA, apparently based on the fact that Mueller had (possibly encrypted) texts he didn’t provide himself showing that he and Caputo had had contact with a presumed Russian dangle they had hidden in prior sworn testimony. A more likely explanation is that Stone’s was one of the at-least five phones Mueller got a warrant for on March 9, in the wake of Rick Gates’ cooperation. But if that’s the case, then it means that Mueller already had shown probable cause Stone had committed some crime by the time he got this phone.

Mueller is scrutinizing Stone for more than just knowledge of WikiLeaks

Even the public reporting on Mueller’s investigative actions make it clear that he is scrutinizing Stone for more than just a hypothetical knowledge of, much less coordination with, WikiLeaks. He seems to have interest in the two incarnations of Stone’s Stop the Steal dark money group, which worked to intimidate Cruz supporters around the RNC and worked to suppress Democratic voters in the fall. There’s reason to suspect that the ways in which Stone and his people sloshed that money around did not follow campaign finance rules (in which case Don McGahn might have played a role). Certainly, Andrew Miller seems to worry that his own role in that sloshing might lead to criminal exposure. But Jerome Corsi has also suggested that Stone might have pitched some legally suspect actions to him, and those would constitute rat-fuckery, not campaign finance violations in the service of rat-fuckery.

Now, those other potential crimes might just be the gravy that Mueller has repeatedly used, charging people with unrelated crimes (like Mike Flynn’s Turkish influence peddling or Michael Cohen’s Stormy Daniel payoffs) to get their cooperation in the case in chief. Or they might be something that more closely ties to conspiracy with Russians.

The larger point, however, is that isolated details from Stone-friendly witnesses (and from Stone himself) may not be the most reliable way to understand where Mueller is going with his investigation of Stone. Certainly not witnesses who say Mueller has spent 8 months scrutinizing whether Stone lied about his foreknowledge of WikiLeaks’ 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.