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There’s No Crisis at the Border — There’s a Crisis in the White House

[NB: Whoops — forgot to remind readers to check the byline. This is the other pottymouth broad./ ~R]

Reports say that Vice President Pence and DHS Secretary Nielsen have been laying the groundwork for Trump’s speech tonight in which he is expected to complain about House Speaker Pelosi, Democrats, and the lack of funding for the goddamn wall he claimed Mexico would pay for while he campaigned in 2016. The word “crisis” was used 36 times.

Yet there’s no crisis at the border.

The State Department hasn’t published any documents or statements over the last two years indicating there was a crisis.

While talking about Trump’s speech today, Secretary of State Pompeo laughed — not exactly an indicator of crisis.

Bad numbers have been thrown around over the last couple of weeks, claiming that 4000 terrorists have been stopped at the border. Untrue: the number is somewhere between six and 12, and the designation “terrorist” is as specific as the No-Fly List. This means persons whose names match individuals who are under suspicion for political reasons — like musician Yusuf Islam, formerly known as Cat Stevens — may be the entirety of the 6-12 individuals stopped at the border. Hardly a crisis.

Secretary Nielsen can’t answer questions put to her by Congress about refugees at the southern border without prevarication; she can’t even say how many people, adults or children, have died in U.S. custody. Seems like a cabinet member would have accurate numbers at their finger tips in a genuine crisis.

That a handful of questionable individuals were halted at the border suggests the current system works. Not a crisis.

If funding has been the problem and the theater of angrily shutting down the government was intended to force funding approval, why didn’t the GOP fund it while they had a majority in the House? Why didn’t they fund it when they were in lame duck? Why didn’t they make a point of knocking down the massive tax cut by enough to fund the “fucken wall“?

If aliens breaching the border is a crisis, why were government services including border security shuttered at all instead of finding an alternative method for funding the wall?

And if aliens crossing into the U.S. was such an emergency, why did Trump’s campaign fund a broadcast TV ad placed during CBS’ 60 Minutes this past Sunday night, bashing Pelosi and the Democrats about wall funding?

Because the border hasn’t been and still isn’t a crisis; it’s a distraction from other issues Trump doesn’t want his base to notice. Because it’s a campaign issue that worked in 2016 with the same base eager to lap up his brand of white nationalist hate.

But you know what is a crisis?

Tens of thousands of Americans are dying every year from opioids and Trump has done dick-doodley-squat to work with Congress to shut down opioids. Oh, he’s talked about it? Great — a lot of useless hot air and fapping gestures made as Americans’ bodies pile up.

[Graphic: StatNews – note deaths from opioid variants]

At least 42,000 Americans died from opioid overdoses in 2016. But no speech tonight about this real crisis.

Another crisis: the cost of insulin. People who can’t afford the outrageous prices are risking permanent disability and death by rationing their use below prescribed levels. Worse yet, some government employees, contractors, and their families may be going without insulin right now because they can’t afford it while they are going unpaid. Trump is courting Americans’ deaths for the manufactured wall crisis.

Another crisis being swept under the rug: the government’s gross negligence in responding to Hurricane Maria, resulting in thousands of Americans deaths, and the continued abdication of leadership on climate change, contributing to deadly conditions like California’s wildfires resulting in at least 100 deaths. Who is being held accountable for these fatalities as they mount? How many will die during the next climate change-caused catastrophe?

Who is being held accountable for all the other real crises, like multiple corrupt cabinet members, the collapse of ethics in the White House, the mounting risks to national security posed by officials handling sensitive matters without adequate clearance, or the loss of trust in the U.S. among allies whose relationships have been devalued?

There’s no crisis at the border, but there is a crisis. This country is lead by a lying malignant narcissist who can’t see anyone or anything except for himself; he refuses to accept responsibility and accountability. He is incapable of admitting failure, particularly his failure to uphold his oath of office. He swore to faithfully execute the laws but his manufactured border crisis ignores this very simple and straightforward one:

8 U.S. Code § 1158 – Asylum
(a) Authority to apply for asylum
(1) In general
Any alien who is physically present in the United States or who arrives in the United States (whether or not at a designated port of arrival and including an alien who is brought to the United States after having been interdicted in international or United States waters), irrespective of such alien’s status, may apply for asylum in accordance with this section or, where applicable, section 1225(b) of this title.

His trash talk bashing the press also violates the First Amendment of the Constitution, which he swore to uphold and defend.

There’s a crisis when broadcast media corporations — after refusing twice to allow the first black president to address the nation on immigration — have allowed themselves to be bullied in to airing pure propaganda.

The networks have in these decisions breached the contract they have as licensed broadcasters, obligated to serve the public interest; they do so with great bias for a man who is a noted racist, having shut out the only president of color on the same issue of immigration. They do so after Trump has encouraged violence against media and elected officials by calling them enemies of state, ultimately resulting in mass bomb and shooting threats.

These media outlets also ignore history — very specific history Trump knows quite well, having read Hitler’s speeches and understanding the aims of Germany’s 1933 emergency Reichstag Fire Decree and Enabling Act — by giving Trump a platform for untruths, defamatory content, and near incitement, none of which serves the public interests.

Lastly, the press also gives preference to an extortive demand for funding labeled by Trump as a crisis — neatly fulfilling Trump’s claim of fake news media — when the only genuine emergency at the border is two-fold: the ongoing violations of U.N. treaties on refugees and human rights, resulting in the deaths of children and adults alike, and the suspension of government services which include border security.

The William Barr Case for Impeaching Donald Trump: From Whom Did Trump Suborn False Statements?

Last month, I argued that a memo William Barr wrote that many say disqualifies him to be Attorney General in fact (or perhaps, “also”) should make him utterly toxic to Trump, because he (unknowingly) makes the case for impeaching Trump.

That’s because of the specific content of a William Barr memo sent to Rod Rosenstein, first reported by WSJ last night. While I’m certain Barr didn’t intend to do so, the memo makes a compelling case that Trump must be impeached.

The memo is long, lacks pagination, and presents an alarming view of unitary executive power. 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.

Yet even before Barr finishes the first page, he states something that poses serious problems for the White House.

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.

Probably by the time Mueller’s office captured Peter Strzok’s testimony on July 19, 2017 — and almost certainly by the time they obtained Transition emails on August 23, 2017 (perhaps not coincidentally the day after Strzok’s 302 was formalized) showing Trump’s orchestration of Mike Flynn’s calls with Sergei Kislyak — Mueller has almost certainly had evidence that Trump suborned false statements from Mike Flynn. So even before he finishes the first page, Trump’s hand-picked guy to be Attorney General has made the argument that Trump broke the law and Mueller’s obstruction investigation is appropriate.

Today, as part of a rebuttal to Daniel Hemel and Eric Posner’s comments about the memo, Jack Goldsmith reviews an OLC memo they rely on to back my argument.

Barr’s invocation and application of the presidential plain-statement rule, far from shocking, is quite ordinary. It is so ordinary, in fact, that I doubt Mueller is pursuing the theory that Barr worries about, even though press reports have sometimes suggested that he is. (For similar doubts, see the analyses of Mikhaila Fogel and Benjamin Wittes and of Marty Lederman.) Deputy Attorney General Rod Rosenstein implied that Barr misunderstood Mueller’s theory when he stated that Barr did not have the “actual facts of the case.” One can read Rosenstein’s statement, as Marcy Wheeler does, to mean that Mueller possesses facts—including evidence that Trump suborned false statements from Flynn—to show that Trump has obstructed justice under Barr’s “evidence impairment” theory and that, under the Barr memorandum’s separate discussion of impeachment, Trump can be impeached.

If Wheeler is right, then the Barr memorandum is more likely to be cited in support of an article of impeachment of President Trump for obstruction of justice than it is to be cited, as Hemel and Posner suggest, to immunize Trump from obstruction. We will see if the Democrats presiding over Barr’s confirmation hearings are clever enough not to take Hemel and Posner’s suggestion that Barr’s memo is extreme, and instead use Barr’s memo, as Wheeler counsels, “to talk the incoming Attorney General into backing the logic of the Mueller probe and impeachment in a very public way.”

Given the stakes on all this, I wanted to focus on why I think the public record suggests strongly that Trump suborned perjury (actually, false statements), meaning that Barr has already made the case for impeachment.

Mike Flynn lied to hide consultations with the Transition Team at Mar-a-Lago

First, let’s consider what Mike Flynn lied about, which I lay out in detail here. In addition to lies about being a foreign agent for Turkey and trying to undercut an Obama foreign policy decision pertaining to Israeli settlements, Flynn admitted to lying about whether he discussed sanctions during a series of conversations with Sergey Kislyak. The focus in reporting has always been on the conversations with Kislyak, but as the statement of the offense makes clear, Flynn’s conversations with other Transition Team members — most notably his Deputy, KT McFarland — got almost as much emphasis.

On or about January 24, 2017, FLYNN agreed to be interviewed by agents from the FBI (“January 24 voluntary interview”). During the interview, FLYNN falsely stated that he did not ask Russia’s Ambassador to the United States (“Russian Ambassador”) to refrain from escalating the situation in response to sanctions that the United States had imposed against Russia. FLYNN also falsely stated that he did not remember a follow-up conversation in which the Russian Ambassador stated that Russia had chosen to moderate its response to those sanctions as a result of FL YNN’s request. In truth and in fact, however, FLYNN then and there knew that the following had occurred:

a. On or about December 28, 2016, then-President Barack Obama signed Executive Order 13757, which was to take effect the following day. The executive order announced sanctions against Russia in response to that government’s actions intended to interfere with the 2016 presidential election (“U.S. Sanctions”).

b. On or about December 28, 2016, the Russian Ambassador contacted FLYNN.

c. On or about December 29, 2016, FLYNN called a senior official of the Presidential Transition Team (“PTT official”), who was with other senior ·members of the Presidential Transition Team at the Mar-a-Lago resort in Palm Beach, Florida, to discuss what, if anything, to communicate to the Russian Ambassador about the U.S. Sanctions. On that call, FLYNN and the PTT official discussed the U.S. Sanctions, including the potential impact of those sanctions on the incoming administration’s foreign policy goals. The PIT official and FLYNN also discussed that the members of the Presidential Transition Team at Mar-a-Lago did not want Russia to escalate the situation.

d. Immediately after his phone call with the PTT official, FLYNN called the Russian Ambassador and requested that Russia not escalate the situation and only respond to the U.S. Sanctions in a reciprocal manner.

e. Shortly after his phone call with the Russian Ambassador, FLYNN spoke with the PTT official to report on the substance of his call with the Russian Ambassador, including their discussion of the U.S. Sanctions.

f. 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.

g. 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.

h. After his phone call with the Russian Ambassador, FLYNN spoke with senior members of the Presidential Transition Team about FLYNN’s conversations with the Russian Ambassador regarding the U.S. Sanctions and Russia’s decision not to escalate the situation. [my emphasis]

And the 302 (302s are what the FBI calls interview reports) makes this even more clear: Flynn was not only lying about the content of his calls with Kislyak, he was lying about his consultations with McFarland, and through her, the rest of the Transition Team, almost certainly including Trump. Flynn was lying about using language, “tit-for-tat,” that came right out of those consultations.

He was lying to hide that his interactions with Kislyak reflect a deliberate Trump Transition policy choice, rather than his own choice to freelance foreign policy.

Flynn got other people to lie — to the public and to the FBI

But it’s not just Flynn’s lies. It’s also the lies others in the Administration told. According to the NYT story of the relevant emails, at a minimum both McFarland and Sean Spicer would have known that Flynn got instructions ahead of his call with Kislyak and reported positively afterwards.

Mr. Bossert forwarded Ms. McFarland’s Dec. 29 email exchange about the sanctions to six other Trump advisers, including Mr. Flynn; Reince Priebus, who had been named as chief of staff; Stephen K. Bannon, the senior strategist; and Sean Spicer, who would become the press secretary.

That’s important because both McFarland and Spicer lied to the press about the call in early 2017.

Early on the morning of Jan. 13, 2017, McFarland phoned one of the authors of this article to rebut a column in The Washington Post, which said Flynn and Kislyak had spoken “several times” on Dec. 29, the day the Obama administration announced it was expelling 35 Russian officials and taking other punitive measures.

The column, by David Ignatius, questioned why Flynn was engaging in sensitive foreign policy discussions with Russia when Trump had yet to take office.

McFarland insisted in an on-the-record conversation that Flynn and Kislyak had never discussed sanctions and that they had actually spoken before the administration’s announcement on Dec. 29.

[snip]

McFarland’s earlier account from the on-the-record conversation also matches public statements from Sean Spicer, the transition team’s spokesman and future White House press secretary.

Spicer said that Flynn and Kislyak spoke Dec. 28, before the sanctions were announced, and that “the call centered around the logistics of setting up a call with the president of Russia and the president-elect after he was sworn in.”

“That was it, plain and simple,” he said.

Most of the focus on public statements about the Kislyak calls has been on Mike Pence, but there’s no public record that he was in the loop on discussions about the Kislyak call (nor is there a record of him being interviewed by either the FBI or Mueller, which is one of the reasons I keep saying there’s no public record of him doing anything for which he could or should be indicted).

With McFarland and Spicer, however, we can be sure they both knowingly lied when they told the press that sanctions had not come up.

That’s why I keep pointing to two passages from the addendum to Flynn’s sentencing memo describing the significance of his cooperation. This passage makes it clear there’s some significance to the fact that Transition Team people repeated Flynn’s lies.

This passage makes it clear that, in the wake of Flynn’s cooperation, several other people decided to cooperate.

We know that McFarland is included among the people who decided to be forthcoming with Mueller; Sean Spicer probably is too and others (like Reince Priebus) may be as well. Importantly, we know they decided to be forthcoming after not having been at first. McFarland, at a minimum, lied not just to the press, but also in her first interview with the FBI, after which she made a concerted effort to unforget what really transpired.

Note, too, that that redaction is the last line of the Flynn addendum. While we don’t know what it says, it’s likely that the addendum as a whole reflects something that Mueller seems to be doing with his cooperating witnesses: either finding ways to rehabilitate liars (as he did with Michael Cohen) or using their testimony to pressure others to tell the truth, resulting in witnesses who will be more credible on the stand (which is what I suspect he has done with a number of witnesses with Flynn).

Trump has changed stories about what his Administration knew about Flynn’s lies at least twice

The public record doesn’t actually say how it happened that McFarland and Spice lied about something they should have known to be false. As I’ve laid out, it’s clear that Flynn was not free-lancing when he discussed sanctions with Kislyak, but the record is still unclear about whether he was freelancing when he ordered others to lie about it or not.

But two things strongly suggest he was not.

First, nothing yet has come close to explaining Trump’s actions with Jim Comey, first asking for his loyalty, then, after firing Flynn, asking him to let Flynn’s lies go. That’s all the more true if, as is likely but not publicly proven yet, Pence also knew he was lying when he claimed sanctions didn’t come up in the Flynn-Kislyak call, because lying to Pence is the only explanation Trump has offered for firing Flynn.

It is virtually certain Flynn was following orders — Trump’s orders — when he engaged in discussions about sanctions with Kisylak. And so it is virtually certain that Trump knew, from before he was inaugurated, that his top aides were lying to the press. Yet Trump didn’t find those lies to be a fireable offense until it became clear the lies would lead to a sustained FBI investigation into why Flynn had Kislyak hold off on responding to sanctions.

And over the course of the Mueller investigation, Trump has struggled to come up with a credible explanation for why Flynn’s lies became a fireable offense only after the FBI started looking more closely at his plans for sanctions relief.

Don McGahn wrote a report inventing one explanation for the firing just after it happened (akin to the way he later orchestrated a paper trail justifying Comey’s firing). But even when he wrote the report, it was inconsistent with what Sally Yates told McGahn.

Then, after Flynn flipped and it became clear Comey also documented his side of events (and shared those events contemporaneously with others in DOJ and FBI), Trump’s lawyers tried to massage the story one more time.

Mike Flynn, KT McFarland, Sean Spicer, Don McGahn, and John Dowd (at a minimum — possibly Reince Priebus and others, too) have all had to revise the stories they told the press and even, for some, FBI or Mueller after the fact to try to come up with a non-incriminating explanation for why everyone lied, first to the press, and then to the government.

There’s really only one thing that might explain why at least five top Donald Trump aides or lawyers had to revise stories to try to come up with innocent explanations for non-credible stories they were willing to tell the government from the start. And that’s if Trump were involved in all these lies.

It may well be that Trump didn’t formally suborn false statements before Mike Flynn interviewed with the FBI on January 24, 2017. Perhaps he just instructed Flynn to lie to the press and Flynn sustained the story he had been ordered to tell when the FBI came calling (Trump may well be more involved in the lies that Michael Cohen told to Congress).

But there is little else that can explain why so many people were willing to tell bullshit stories about Flynn (both his conversation with Kislyak and his firing) except that Trump was involved in orchestrating those stories.

Mueller’s obstruction investigation was likely always premised on a theory of obstruction that Trump’s presumed Attorney General nominee William Barr has argued does merit investigation and impeachment: that Trump ordered his subordinates to lie to obstruct an investigation.

 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. 

No, Mike Pence Is Not Going to Be Indicted

For a long time, I’ve pissed off the frothy anti-Trumpers because I insist there is nothing in the public record that suggests Mike Pence will be indicted as part of the Mueller investigation. Yes, it is true that Paul Manafort — who may yet get indicted six more times at the rate he’s going — installed him, but on top of being a Russian-backed sleaze, he’s also an expert on getting Republicans elected, and he was right that Trump needed someone with real Evangelical credentials and close ties to the Koch network to get elected. Yes, it is true that he got warnings that Flynn was an unregistered foreign agent, but as Vice President, he’s not the guy who decided Flynn would make a swell National Security Advisor. And as I’ve long argued, the fact that Mike Pence knowingly lied — if that’s what he did do — to hide that Mike Flynn had discussed sanctions with Sergei Kislyak is not an indictable offense, not even close to one.

Besides, Robert Mueller seems to believe he didn’t knowingly lie.

That’s what this passage from the Addendum laying out Flynn’s cooperation means.

Pence is, of course, the most obvious person who repeated the false story that Flynn had not discussed sanctions with Kislyak. But we don’t even have to know that to focus on Pence. That’s because the sentencing memo itself lays out how the progression from the David Ignatius column to Pence’s appearance on Face the Nation led up to Flynn’s FBI interview, according that progression and Pence’s role in it particular emphasis.

Days prior to the FBI’s interview of the defendant, the Washington Post had published a story alleging that he had spoken with Russia’s ambassador to the United States on December 29, 2016, the day the United States announced sanctions and other measures against Russia in response to that government’s actions intended to interfere with the 2016 election (collectively, “sanctions”). See David Ignatius, Why did Obama Dawdle on Russia’s hacking?, WASH. POST (Jan. 12, 2017). The Post story queried whether the defendant’s actions violated the Logan Act, which prohibits U.S. citizens from corresponding with a foreign government with the intent to influence the conduct of that foreign government regarding disputes with the United States. See 18 U.S.C. § 953. Subsequent to the publication of the Post article and prior to the defendant’s FBI interview, members of President-Elect Trump’s transition team publicly stated that they had spoken to the defendant, and that he denied speaking to the Russian ambassador about the sanctions. See, e.g., Face the Nation transcript January 15, 2017: Pence, Manchin, Gingrich, CBS NEWS (Jan. 15, 2017).

So the sentencing memo tells us that the progression from Ignatius to Pence was important, and one of the unredacted bits describing Flynn’s cooperation states that Flynn conveyed false information to several senior members of the transition team, which they publicly repeated.

And then the passage describing Flynn’s cooperation regarding transition events ends with three redacted lines.

I have, in the past, doubted that Flynn told Pence and Sean Spicer that sanctions didn’t come up. But Mueller seems to have no doubt.

So when Pence claimed on the teevee that Flynn did not talk sanctions with Kislyak, he believed — because that’s what Flynn told him — that Flynn did not talk sanctions with Kislyak.

Where things (especially those three redacted lines) get interesting is when you look at the story Trump’s lawyers told Mueller in the wake of Flynn’s plea deal in January in an attempt to spin a story McGahn wrote days after Flynn got fired into something that would still hold up almost a year later. Effectively, the original McGahn narrative invented reasons (which are inconsistent with Sally Yates’ version of events) why Trump didn’t fire Flynn right away on January 26, but instead — in a series of conversations memorialized by the then FBI Director — tried to convince Jim Comey to drop things. The original McGahn narrative further invented reasons why Flynn’s lies to Pence mattered on February 13 (when they were used as an excuse to fire Flynn in an attempt to kill the investigation) when they hadn’t mattered on January 26.

As I’ve laid out here, things got still worse when, on January 29, 2o18, they had to try to make that story fit Don McGahn’s testimony from fall 2017, Transition documents seized during the summer that Trump witnesses only belatedly realized Mueller had, and Flynn’s decision to cooperate in November. The most interesting of the glaring problems with the story, however, is this one:

The Trump letter didn’t address two of the questions asked about Flynn’s firing. In addition to remaining silent about what Trump really knew about what Flynn said to Pence, it doesn’t address Trump’s involvement in the transition period communications with Sergey Kislyak. That’s important because that’s the question that Flynn’s initial interview should have revealed. Contrary to what the letter claims, then, Flynn’s plea and Trump’s silence in the letter about the substance of the plea is proof not that Trump didn’t obstruct, but that Trump continues to refuse to explain why Flynn asked Kislyak to hold off on responding to sanctions, to say nothing of whether Flynn did so on his orders.

Remember: according to public reports, Trump refused to answer any questions pertaining to the transition period. Since January 8, 2018, Mueller’s team has been trying to get him to address his knowledge and involvement in (among other things):

  1. Former National Security Advisor Lt. Gen. Michael Flynn — information regarding his contacts with Ambassador Kislyak about sanctions during the transition process;
  2. Lt. Gen. Flynn’s communications with Vice President Michael Pence regarding those contacts;

These, then, would be two of the questions Trump refused to answer by asserting Executive Privilege over issues from a period when he was not yet the Executive.

But then, Mueller probably doesn’t need Trump to answer questions to which the answer is almost certainly, “I ordered them.” As Flynn’s addendum on cooperation lays out, “the defendant’s decision to plead guilty and cooperate likely affected the decisions of related firsthand witnesses to be forthcoming with the SCO and cooperate,” which is (like the comment on Flynn’s lies to Pence) followed by several redacted lines, the last of the addendum. We know, for example, that one of the people that belatedly decided to unforget details she was a party to firsthand after Flynn flipped was KT McFarland, who would have conveyed Trump’s orders to Flynn.

In other words, with all the people who’ve followed Flynn’s lead and belatedly unforgotten what really happened, Mueller likely has abundant evidence both that Trump ordered both of these actions, and that his team kept inventing stories to try to explain away the aftermath.

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

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 Trump Organization Is Not the Sitting President

In his sentencing memorandum submitted late last night, Michael Cohen laid out what investigations he has cooperated with so far:

Beginning before the entry of his plea on August 21, 2018, and continuing thereafter through late November, Michael participated in seven voluntary interview meetings with the Special Counsel’s Office of the Department of Justice (“SCO”). He intends to continue to make himself available to the SCO as and when needed for additional questioning. He also agreed to plead guilty to an additional count, namely, making false statements to Congress, based in part on information that he voluntarily provided to the SCO in meetings governed by a limited-use immunity proffer agreement.

[snip]

Michael has also voluntarily met twice with representatives of the Office, and responded to questions concerning an ongoing investigation. In connection with this inquiry, he intends to continue to make himself available as and when needed by the Office.

Michael has similarly met voluntarily with representatives of the New York State Office of the Attorney General (“NYAG”) concerning a state court action in which the NYAG has sued the Donald J. Trump Foundation and certain individual defendants, including Donald J. Trump. He also provided the NYAG with documents concerning a separate open inquiry. As above, Michael intends to make himself available to the NYAG to provide any additional cooperation it may request in these matters.

So:

  1. The Mueller investigation
  2. An open SDNY investigation (possibly just the one on campaign finance violations Cohen pled to, possibly more)
  3. NYS’ Trump Foundation lawsuit
  4. Another NYS investigation

That puts Trump’s eponymous organizations — his company and his foundation — squarely in the bullseye of law enforcement. The known details of all those puts one or the other Trump organization as an actor in the investigation. And we’ve already seen hints that the Trump Organization was less than responsive to some document requests from Mueller, such as this detail in a story on the Trump Tower deal:

According to a person familiar with the investigation, Cohen and the Trump Organization could not produce some of the key records upon which Mueller relies. Other witnesses provided copies of those communications.

If there’s a conspiracy to obstruct Mueller’s investigation, I’m fairly certain the Trump Organization was one of the players in it.

This is something I started thinking more about after reading this Walter Dellinger analysis of the OLC opinions on whether you can indict a sitting President (which is a really worthwhile read in any case). He notes how, once the President (or Vice President) enters into a conspiracy, you’ve got to name him, whether or not you indict him, to properly lay out the conspiracy.

The Jaworski filing notes how critical it is to identify the president as one of the criminal accused: “the identification of each co-conspirator — regardless of station — is a prerequisite to making his declarations in furtherance of the conspiracy admissible against the other conspirators.”

Although the brief concludes that “it is by no means clear that a President is immune from indictment” during his term, the special prosecutor chose not to indict the sitting president on the basis of “practical arguments.” Those arguments, however,

cannot fairly be stretched to confer immunity on the President from being identified as an unindicted co-conspirator, when it is necessary to do so in connection with criminal proceedings against persons unquestionably liable to indictment.

Naming the president as an unindicted co-conspirator was necessary for the grand jury to return a “true bill,” Jaworski argued, and “required here to outline the full range of the alleged conspiracy.” There exists, moreover, “a legitimate public purpose in reporting the fact that serious criminal charges against a government official have been made.”

The mere fact that an official has a personal immunity from prosecution does not bar the prosecution from alleging and proving his complicity as part of a case against persons who have no such immunity.

It would not be fair “to the defendants … to blunt the sweep of the evidence artificially by excluding one person, however prominent and important, while identifying all others.”

It made me realize something has been missing from every analysis of the indictment question I’ve seen: whether you can indict a sitting President’s eponymous corporate entities. Under Dellinger’s analysis, you’d have to include the Trump Organization in any conspiracy involving a Trump Tower in Moscow — it was the entity that signed the Letter of Intent, would be the entity that would obtain funding, and would be the entity that would profit.

But the Trump Organization did not get elected the President of the United States (and while the claims are thin fictions, Trump has claimed to separate himself from the Organization and Foundation). So none of the Constitutional claims about indicting a sitting President, it seems to me, would apply.

If I’m right, there are a whole slew of implications, starting with the fact that (as I laid out on a Twitter rant this morning), it utterly changes the calculation Nixon faced as the walls started crumbling. Nixon could (and had the historical wisdom to) trade a pardon to avoid an impeachment fight; he didn’t save his presidency, but he salvaged his natural person. With Trump, a pardon won’t go far enough: he may well be facing the criminal indictment and possible financial ruin of his corporate person, and that would take a far different legal arrangement (such as a settlement or Deferred Prosecution Agreement) to salvage. Now throw in Trump’s narcissism, in which his own identity is inextricably linked to that of his brand. And, even beyond any difference in temperament between Nixon and Trump,  there’s no telling what he’d do if his corporate self were also cornered.

In other words, Trump might not be able to take the Nixon — resign for a pardon — deal, because that may not be enough to save his corporate personhood.

For virtually every other legal situation, it seems to me, existing in both natural and corporate form offers protection that can save both. But if you’re the President of the United States, simultaneously existing — and criminally conspiring — in corporate form may create all sorts of additional exposure any normal President would normally be protected from.

Update, 12/9: I’ve changed the title of this post, in part because comments here and on Twitter have convinced me that Mike Pence could pardon Trump Organization. The central point — that Trump seems to be ignoring the risk to his eponymous businesses — remains.

Pence Plays Statesman While Trump Tweets Angrily from a Florida Retirement Resort

Apparently, The Sun and a bunch of other media outlets claim to be able to distinguish Mike Pence’s regular wide-browed dark glare from the look he gave Putin when the Russian leader tapped him on the shoulder for a chat at the gala dinner in the Singapore ASEAN meeting. Maybe they’re right? But this looks to me like the same dark glare he always uses to make his retrograde policies look serious.

I’m more interested, however, that Pence not only lectured Putin about interfering in the 2016 election, but told Josh Rogin he did so.

When the plenary ended, the two men huddled in the corner for about 15 minutes as staff, security and translators swarmed around them. Pence decided to confront Putin about Russia’s interference in U.S. democracy.

“So I looked at him and I said, ‘We know what happened in 2016,’ ” Pence told me in an interview. “And I said, ‘As the president has told you, we’re not having it.’ ”

Putin denied that Russia had done anything wrong, but Pence stuck to his guns.

“And I said, ‘Mr. President, I’m very aware of what you’ve said about that, but I’m telling you we’re not having it,’ ” Pence said. “I wanted to reiterate what the president has said. I thought it was important he hear that from the vice president, too.”

Mind you, Pence could be lying about this, but if he did, Russia would likely correct him publicly.

Pence is bragging about his tough stance with Putin in the wake of stories — including one in the NYT — reporting on Trump’s increasing suspicions about the loyalty of the one guy he can’t fire.

In recent weeks, with his electoral prospects two years from now much on his mind, Mr. Trump has focused on the person who has most publicly tethered his fortunes to him. In one conversation after another he has asked aides and advisers a pointed question: Is Mike Pence loyal?

Mr. Trump has repeated the question so many times that he has alarmed some of his advisers. The president has not openly suggested dropping Mr. Pence from the ticket and picking another running mate, but the advisers say those kinds of questions usually indicate that he has grown irritated with someone.

And while the NYT pitches Trump’s questions about Pence’s loyalty in terms of picking a running mate for 2020 or installing Nick Ayers as Chief of Staff, it could have repercussions sooner rather than later.

After all, as I’ve long noted, Republicans in Congress like Pence more than they like Trump. So do some key Republican financial backers, starting with the Koch brothers.

Particularly given the way that Trump’s behavior led to huge losses in the midterms, more Republicans may seek to distance themselves from Trump. And depending on what and when Mueller unveils, that may become more urgent in days ahead. If Pence has already tried to distance himself from Trump’s Russian dalliance, that may make it easier.

Alfa-Trump Redux: Full Spectrum Circumstance

The Trump Tower – Alfa Bank story is back!

Back in October 2016, Franklin Foer wrote about some metadata analysis showing that a marketing server paid for by Trump Organization was messaging with a server at Russia’s Alfa Bank. The story, as Foer presented it, was quickly challenged. I myself focused on a side angle to the story: that in addition to communications with Alfa Bank, the Trump marketing server was also communicating with Grand Rapids’ Spectrum Health, which (the original public pitch of the story suggested) might show a tie between the DeVos family — or maybe Erik Prince — and Trump. From the vantage of October 2016, that didn’t make sense, as the DeVoses (as distinct from Betsy’s brother Erik) were actually remarkably hesitant to support Trump until after the DNS lookups ended.

Dexter Filkins has now reexamined the story. It concludes — via a proliferating set of academics and cybersecurity experts departing from the norm in both those fields and insisting on hiding their identities — that there must be some kind of communication going on.

(Max and his colleagues did not see any D.N.S. evidence that the Trump Organization was attempting to access the server; they speculated that the organization was using a virtual private network, or V.P.N., a common security measure that obscures users’ digital footprints.)

If this was a communications mechanism, it appeared to have been relatively simple, suggesting that it had been set up spontaneously and refined over time. Because the Trump Organization did not have administrative control of the server, Paul and Leto theorized that any such system would have incorporated software that one of the parties was already using. “The likely scenario is not that the people using the server were incredibly sophisticated networking geniuses doing something obscure and special,” Max said. “The likely scenario is that they adapted a server and vender already available to them, which they felt was away from prying eyes.” Leto told me that he envisioned “something like a bulletin-board system.” Or it could have been an instant-messaging system that was part of software already in use on the server.

Kramer, of Listrak, insisted that his company’s servers were used exclusively for mass marketing. “We only do one thing here,” he told me. But Listrak’s services can be integrated with numerous Cendyn software packages, some of which allow instant messaging. One possibility is Metron, used to manage events at hotels. In fact, the Trump Organization’s October, 2016, statement, blaming the unusual traffic on a “banking customer” of Cendyn, suggested that the communications had gone through Metron, which supports both messaging and e-mail.

The parties might also have been using Webmail—e-mail that leaves few digital traces, other than D.N.S. lookups. Or, Paul and Leto said, they could have been communicating through software used to compose marketing e-mails. They might have used a method called foldering, in which messages are written but not sent; instead, they are saved in a drafts folder, where an accomplice who also has access to the account can read them. “This is a very common way for people to communicate with each other who don’t want to be detected,” Leto told me.

I hope to return to some of the moves Filkins makes in his story generally after I come home from this trip. But for now, I just want to look at how Filkins deals with the Spectrum Health tie, which Filkins focuses on even more than Foer. Here’s how he introduces the connection:

Only one other entity seemed to be reaching out to the Trump Organization’s domain with any frequency: Spectrum Health, of Grand Rapids, Michigan. Spectrum Health is closely linked to the DeVos family; Richard DeVos, Jr., is the chairman of the board, and one of its hospitals is named after his mother. His wife, Betsy DeVos, was appointed Secretary of Education by Donald Trump. Her brother, Erik Prince, is a Trump associate who has attracted the scrutiny of Robert Mueller, the special counsel investigating Trump’s ties to Russia. Mueller has been looking into Prince’s meeting, following the election, with a Russian official in the Seychelles, at which he reportedly discussed setting up a back channel between Trump and the Russian President, Vladimir Putin. (Prince maintains that the meeting was “incidental.”) In the summer of 2016, Max and the others weren’t aware of any of this. “We didn’t know who DeVos was,” Max said.

This is a remarkable paragraph, repeating a lot of the shitty link analysis that people always do when they try to explain the Spectrum tie. In it, a children’s hospital named after Dick DeVos’ mother is the smoking gun in an international spy plot. Then, having utterly ignored the status of the relationship between the DeVoses and Trump at the time of the DNS lookups, Filkins looks at what has happened since: the appointment of close Mike Pence ally and leading GOP education ideologue Betsy to be Education Secretary, and Erik Prince’s covert meeting with an entirely different — and far more suspect — bank, using means that are precisely the kinds of means you’d expect Erik Prince to use (and not using the network of a hospital that his brother-in-law chairs but doesn’t run, because why the fuck would a Navy Seal use more covert methods that Navy Seals know well instead of using a server with an easily subpoenaed footprint in the US??).

The paragraph misses some other details of note. For example, after Dick got on a commercial puddle jumper to fly to interview with Trump, he was appointed to the FAA Advisory Board, another position for which he is an obvious and arguably well-qualified pick. It also doesn’t note that Prince — who is a separate political entity from his sister and brother-in-law — was threatening anti-Trump Republicans both before and after the election, something that might support this theory except for all the other more obvious ways Prince accomplished such efforts.

Which is to say that, while the piece acknowledges that to conclude the Trump – Alfa Bank records are suspect, you also have to explain why the Spectrum ones would be, it does no reporting to discern why that would be the case.

Later in the piece, after trying to explain DNC lookups involving a third entity that had previously only been alluded to (and only alluded to because without explanation, it would have and did problematize past claims), Filkins strains further to suggest the ties between Spectrum and Trump have been proven by events that have taken place since.

In one tranche of data that he gave them, they noticed that a third entity, in addition to Alfa Bank and Spectrum Health, had been looking up the Trump domain: Heartland Payment Systems, a payments processor based in Princeton. Of the thirty-five hundred D.N.S. queries seen for the Trump domain, Heartland made only seventy-six—but no other visible entity made more than two. Heartland had a link to Alfa Bank, but a tenuous one. It had recently been acquired by Global Payments, which, in 2009, had paid seventy-five million dollars for United Card Services, Russia’s leading credit-card-processing company; two years later, United Card Services bought Alfa Bank’s credit-card-processing unit. (A spokesperson for Global Payments said that her company had never had any relationship with the Trump Organization or with Alfa Bank, and that its U.S. and Russia operations functioned entirely independently.)

Spectrum Health has a similarly indirect business tie to Alfa Bank. Richard DeVos’ father co-founded Amway, and his brother, Doug, has served as the company’s president since 2002. In 2014, Amway joined with Alfa Bank to create an “Alfa-Amway” loyalty-card program in Russia. But such connections are circumstantial at best; the DeVos family seems far more clearly linked to Trump than to Russia.

It’s this sentence — “the DeVos family seems far more clearly linked to Trump than to Russia” — that exemplifies this story, and its epistemology, for me. It treats the DeVos family — Dick, his wife Betsy Prince DeVos, his brother Doug, his charitable mother Helen, and his brother-in-law Erik Prince, to say nothing of the hospital administrators that actually run Spectrum — as a monolith they’re simply not, reads their current varied relationships with Trump back into a history where only Erik’s relationship resembled his current one, and then concludes that a link with Dick through Helen-Betsy-Erik is all you need to explain why these presumed conspirators would use a hospital rather than any of the many entities the DeVoses privately hold (and therefore more directly manage) or the Prince entities that already have built-in covert channels with a proven past ability to reach out to oligarchs discretely.

I mean, I absolutely think there’s a place for more journalism on what Erik was doing during the election, his role as a cut-out to Trump, and how he has helped to discipline the Republican party since. Or, if you want to pursue some theory of nefarious plot explaining how the originally reluctant DeVoses came to become close Trump associates, you’d explore far more about Mike Pence’s obvious role in it all (to say nothing of Pence’s frequent meetings with the DeVoses since), something Jean Camp is well situated to do from Indiana.

But one thing any such journalism would show is that Prince has the ability to conduct convert communications via much more effective channels, and Betsy and Dick DeVos have the network to achieve their political goals via means that don’t require hijacking a hospital server they don’t directly control.

Meanwhile, the story doesn’t explore the tangential role of Alfa Bank, via Alex van der Zwaan, in the Skadden Arps part of the Paul Manafort story, and doesn’t explain that any focus on Alfa Bank prior to Trump’s inauguration might have distracted from the sanctioned Russian banks that, at least as far as is currently known, are the actual key players in the Trump Russia story. It also doesn’t explain that key events in any conspiracy between Trump and Russia were communicated via insecure Trump Organization hosted email, often (in Manafort’s case, for long after he had been indicted) backed up to the iCloud.

This Trump Tower – Alfa Bank story continues to spin journalists, not to mention academics and infosec experts, into uncharacteristic habits that don’t appear to be leading to any real clarity about the topic at hand.

Denial and Deception: Did Trump Really Hire and Fire the Suspected Russian Assets on His Campaign?

As I laid out a few weeks ago, 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.

Recent developments in both the investigations into Carter Page and Paul Manafort have focused attention on a question I’ve been wondering about for some time: how any investigation will prove whether suspected Russian assets on the Trump campaign were ever with the campaign or really got fired.

Carter Page’s alleged denial and deception that he did what a potentially disinformation-filled dossier says he did

First, consider the Carter Page FISA applications. As I’ve said repeatedly, I actually think the FBI should be held accountable for their inclusion of the September 23, 2016 Michael Isikoff article based off of Steele’s work given their credulity that that reporting wasn’t downstream from Steele, particularly their continued inclusion of it after such time as Isikoff had made it clear the report relied on Steele. To be clear — given that they include this from the start, I’m not suggesting bad faith on the part of the FBI; I’m arguing it reflects an inability to properly read journalism that gets integrated into secret affidavits (this is something almost certainly repeated in the Keith Gartenlaub case). If you’re going to use public reporting in affidavits that will never see the light of day, learn how to read journalistic sourcing, goddamnit.

The Page application defenders argue that the inclusion of Isikoff in the Page application is not big deal because it didn’t serve to corroborate the Steele dossier on which it was based. That’s generally true. Instead, Isikoff is used in a section titled, “Page’s Denial of Cooperation with the Russian Government to Influence the 2016 U.S. Presidential Election.” The section serves, I think, to show that Page was engaging in clandestine support of a Russian effort to undermine the election. The application claims FBI had probable cause that Page was an agent of a foreign power because he met clause E, someone who aids, abets, or conspires with someone engaging in clandestine activities, including sabotaging the election.

(A) knowingly engages in clandestine intelligence gathering activities for or on behalf of a foreign power, which activities involve or may involve a violation of the criminal statutes of the United States;

(B) pursuant to the direction of an intelligence service or network of a foreign power, knowingly engages in any other clandestine intelligence activities for or on behalf of such foreign power, which activities involve or are about to involve a violation of the criminal statutes of the United States;

(C) knowingly engages in sabotage or international terrorism, or activities that are in preparation therefor, for or on behalf of a foreign power;

[snip]

(E) knowingly aids or abets any person in the conduct of activities described in subparagraph (A), (B), or (C) or knowingly conspires with any person to engage in activities described in subparagraph (A), (B), or (C).

To prove this is all clandestine, the FBI needs to show Page and his alleged co-conspirators were hiding it, in spite of the public reporting on it.

The FBI cites this Josh Rogin interview with Page as well as a letter he sent to Jim Comey, to show that Page was denying that he was conspiring with Russians.

“All of these accusations are just complete garbage,” Page said about attacks on him by top officials in the Hillary Clinton presidential campaign, Senate Minority Leader Harry Reid (D-Nev.) and unnamed intelligence officials, who have suggested that on a July trip to Moscow, Page met with “highly-sanctioned individuals” and perhaps even discussed an unholy alliance between the Trump campaign and the Russian government.

As far as Page’s denials, he was specifically denying meeting with Igor Sechin and Igor Diveykin. He was definitely downplaying the likelihood that he got the invitation to Moscow because he was associated with Trump’s campaign, and he was not fulsome about having a quick exchange with other high ranking Russians.

But to this day, there is no evidence that Page did meet with Sechin and Diveykin (in the Schiff memo, he points to Page’s dodges about meeting other Russians as proof but it’s not). So citing Page’s denials to Rogin and Comey that he had had these meetings worked a lot like Saddam’s denials leading up to the Iraq War. Sometimes, when someone denies something, it’s true, and not proof of deception.

A similar structure appears to be repeated when what appears to be the section describing ongoing intelligence collection, starting with the third application (see PDF 340-1) excerpts a letter Page wrote in February 2017 attacking Hillary for “false evidence” that he met with Sechin and Diyevkin; as batshit as the letter sounds, as far as we know that specific claim is not true, and therefore this attack should only be treated as deception and denial if FBI has corroboration for other claims he denies here.

In other words, because the specific claims in the Steele dossier were the form of the accusations against Page, rather than the years-long effort the Russians made to recruit him, his willingness to play along, his interest in cuddling up to Russia, and his potential involvement in ensuring that Trump’s policy would be more pro-Russian than it otherwise might, Page’s specific denials of being an agent of Russia may well have been true even if in fact he was or at least reasonably looked like one based off other facts.

But was the Trump campaign deceiving about his departure from the campaign?

The applications don’t just show Page denying (correctly, as far as we know) that he met with Sechin and Diveykin. They also show great interest in the terms of his departure from the Trump campaign. Here’s part of what the application says about the Isikoff article:

Based on statements in the September 23rd News Article, as well as in other articles published by identified news organizations, Candidate #1’s campaign repeatedly made public statements in an attempt to distance Candidate #1 from Page. For example, the September 23rd News Article noted that Page’s precise role in Candidate #1’s campaign is unclear. According to the article, a spokesperson for Candidate #1’s campaign called Page an “informal foreign advisor” who” does not speak for [Candidate #1] or the campaign.” In addition, another spokesperson for Candidate #1’s campaign said that Page “has no role” and added “[w]e are not aware of his activities, past or present.” However, the article stated that the campaign spokesperson did not respond when asked why Candidate #1 had previously described Page as an advisor. In addition, on or about September 25, 2016, an identified news organization published an article that was based primarily on an interview with Candidate #1’s then campaign manager. During the interview, the campaign manager stated, “[Page is] not part of the campaign I’m running.” The campaign manager added that Page has not been part of Candidate #1’s national security or foreign policy briefings since he/she became campaign manager. In response to a question to a question from the interviewer regarding reports that Page was meeting with Russian officials to essentially attempt to conduct diplomatic negotiations with the Russian Government, the campaign manager responded, “If [Page is] doing that, he’s certainly not doing it with the permission or knowledge of the campaign . . . “

That passage is followed by three lines redacted under FOIA’s “techniques and procedures” (7E) and “enforcement proceedings” (7A) exemptions.

Again, this section seems dedicated to proving that Page and his conspirators are attempting to operate clandestinely — that they’re denying this ongoing operation. And the FBI treats Page’s and the campaign’s denials of any association as proof of deception.

To this day, of course, President Trump considers the Page FISA to be an investigation into his campaign.

Sure, the continued conflation of the Page FISA with his campaign serves a sustained strategy to confuse his base and discredit the investigation. But by willingly conflating the two, Trump only adds to the basis for which FBI might treat the conflicting admissions and denials of Page’s past and ongoing role in the campaign in fall 2016 as part of an effort to deceive.

Which is to say that while Page’s denials of meeting with Igor Sechin might be bogus analysis, the competing claims from the campaign — while they were likely at least partly incompetent efforts to limit damage during a campaign — might (especially as they persist) more justifiably be taken as proof of deception.

Steve Bannon got picked up on Page’s wiretaps in January 2017

All the more so given that Steve Bannon reached out to Page — via communication channels that were almost surely wiretapped — in early 2017 to prevent him from publicly appearing and reminding of his role on the campaign. As Page explained in his testimony to HPSCI:

MR. SCHIFF: Have you had any interaction with Steve Bannon?

MR. PAGE: We — we had a brief conversation in January, and we shared some text messages. That’s about it.

MR. SCHIFF: January of this year?

MR. PAGE: Yes.

MR. SCHIFF: What was the nature of your text message exchange?

MR. PAGE: It was — he had heard I was going to be on I believe it was an MSNBC event. And he just said it’s probably not a good idea. So —

MR. SCHIFF: And he heard this from?

MR. PAGE: I am not sure, but —

MR. SCHIFF: So he was telling you not to go on MSNBC?

MR. PAGE: Yes.

MR. SCHIFF: And he texted this to you?

MR. PAGE: He called me. It was right when I was — it was in mid-January, so —

MR. SCHIFF: And how did he have your number?

MR. PAGE: Well, I mean, I think there is the campaign had my number. He probably got it from the campaign, if I had to guess. I don’t know.

MR. SCHIFF: And did Mr. Bannon tell you why he didn’t want you to go on MSNBC?

MR. PAGE: No. But it turns out, I mean, I saw eventually the same day and in the same hour slot in the “Meet the Press” daily, it was Vice President Pence. And this is kind of a week after the dodgy dossier was fully released. And so I can understand, you know, given reality, why it might not be a good idea when he heard, probably from the producer — somehow the word got back via the producers that I would be on there, so —

MR. SCHIFF: I am not sure that I follow that, but in any event, apart from your speculating about it, what did he communicate as to why he thought you should not go on MSNBC?

MR. PAGE: I can’t recall the specifics.

MR. SCHIFF: Did he tell you he thought it would be hurtful to the President?

MR. PAGE: Not specifically, although there was a — I had received — we had some — letter exchanges perviously, kind of sharing — between Jones Day and myself, just saying — I forget the exact terminology, but — you know, the overall message was: Don’t give the wrong impression. Or my interpretation of the message was: Don’t give the wrong impression that you’re part of the administration or the Trump campaign.

And my response to that was, of course, I’m not. The only reason I ever talked to the media is to try to clear up this massive mess which has been created about my name.

[snip]

MR. SCHIFF: So, when Mr. Bannon called you to ask you not to go on, did he make any reference to the correspondence from the campaign?

MR. PAGE: I can’t recall. Again, I had just gotten off a 14-hour flight from Abu Dhabi.

MR. SCHIFF: He just made it clear he didn’t want you to do the interview?

MR. PAGE: That’s all I recall, yeah.

MR. SCHIFF: And what did you tell him?

MR. PAGE: I told him: I won’t do it. That’s fine. No big deal.

In the wake of the release of the Steele dossier, Trump’s top political advisor Steve Bannon (who, we now know, was in the loop on some discussions of a back channel to Russia) called up Carter Page on a wiretapped phone and told him not to go on MSNBC to try to rebut the Steele dossier.

I can get why that’d be sound judgment, from a political standpoint. But the attempt to quash a Page appearance and/or present any link to Pence during a period when he was pushing back about Mike Flynn and when Bannon was setting up back channels with Russians sure seems like an attempt to dissociate from Page as the visible symbol of conspiring with Russia all while continuing that conspiracy.

Speaking of Paul Manafort’s many conspiracies

Which brings me, finally, to a filing the government submitted in Paul Manafort’s DC trial yesterday.

Every time people claim that neither of the Manafort indictments relate to conspiring with Russia, I point out (in part) that Manafort sought to hide his long-term tie with Viktor Yanukovych and the Russian oligarchs paying his bills in an attempt to limit damage such associations would have to the ongoing Trump campaign. Effectively, when those ties became clear, Manafort stepped down and allegedly engaged in a conspiracy to hide those ties, all while remaining among Trump’s advisors.

In response to Manafort’s effort to preclude any mention of the Trump campaign in the DC case, the Mueller team argued they might discuss it if Manafort raises it in an attempt to impeach Rick Gates.

Manafort’s role in the Trump campaign, however, is relevant to the false-statement offenses charged in Counts 4 and 5 of the indictment. Indeed, Manafort’s position as chairman of the Trump campaign and his incentive to keep that position are relevant to his strong interest in distancing himself from former Ukrainian President Yanukovych, the subject of the false statements that he then reiterated to his FARA attorney to convey to the Department of Justice. In particular, the press reports described in paragraphs 26 and 27 of the indictment prompted Manafort and Gates to develop their scheme to conceal their lobbying. Dkt. 318 ¶¶ 26-27.

For example, on August 15, 2016, a member of the press e-mailed Manafort and copied a spokesperson for the Trump campaign to solicit a comment for a forthcoming story describing his lobbying. Gates corresponded with Manafort about this outreach and explained that he “provided” the journalist “information on background and then agreed that we would provide these answers to his questions on record.” He then proposed a series of answers to the journalist’s questions and asked Manafort to “review the below and let me know if anything else is needed,” to which Manafort replied, in part, “These answers look fine.” Gates sent a materially identical message to one of the principals of Company B approximately an hour later and “per our conversation.” The proposed answers Gates conveyed to Manafort, the press, and Company B are those excerpted in the indictment in paragraph 26.

An article by this member of the press associating Manafort with undisclosed lobbying on behalf of Ukraine was published shortly after Gates circulated the Manafort-approved false narrative to Company B and the member of the press. Manafort, Gates, and an associate of Manafort’s corresponded about how to respond to this article, including the publication of an article to “punch back” that contended that Manafort had in fact pushed President Yanukovych to join the European Union. Gates responded to the punch-back article that “[w]e need to get this out to as many places as possible. I will see if I can get it to some people,” and Manafort thanked the author by writing “I love you! Thank you.” Manafort resigned his position as chairman of the Trump campaign within days of the press article disclosing his lobbying for Ukraine.

Manafort’s role with the Trump campaign is thus relevant to his motive for undertaking the charged scheme to conceal his lobbying activities on behalf of Ukraine. Here, it would be difficult for the jury to understand why Manafort and Gates began crafting and disseminating a false story regarding their Ukrainian lobbying work nearly two years after that work ceased—but before any inquiry by the FARA Unit—without being made aware of the reason why public scrutiny of Manafort’s work intensified in mid-2016. Nor would Manafort’s motives for continuing to convey that false information to the FARA Unit make sense: having disseminated a false narrative to the press while his position on the Trump campaign was in peril, Manafort either had to admit these falsehoods publicly or continue telling the lie. [my emphasis]

Finally, Mueller is making this argument. The reason Manafort went to significant lengths in 2016 to avoid registering for all this Ukraine work, Mueller has finally argued, is because of his actions to deny the ties in an effort to remain on the Trump campaign and his effort to limit fallout afterwards.

This argument, of course, is unrelated to the competing stories that Trump told about why he fired Manafort (or whether, for example, Roger Stone was formally affiliated with the campaign during the period when he was reaching out to WikiLeaks and Guccifer 2.0). But since at least fall 2016 the FBI has been documenting efforts to lie about Trump’s willing ties to a bunch of people with close ties to Russians helping to steal the election and/or set up Trump as a Russian patsy.

And while the evidence that Page was lying when denying the specifics about the accusations against him in the dossier remains weak (at least as far as the unredacted sections are concerned), the evidence that the campaign has been involved in denial and deception since they got rid of first Manafort and then Page is not.

Carter Page’s incoherent ramblings may not actually be denial and deception. But Donald Trump’s sure look to be.

The Sekulow Questions, Part Six: Trump Exacerbates His Woes

In this series, it feels like time is marked by big Russian meetings and key firings.

I’m talking, of course, about my efforts to use the Mueller questions as imagined by Jay Sekulow to map out what the structure of the investigation (at least as it pertains to Trump personally) might be. Thus far, I’ve shown:

  • Russians, led by the Aras Agalarov and his son, cultivated Trump for years by dangling two things: real estate deals and close ties with Vladimir Putin.
  • During the election, the Russians and Trump appear to have danced towards a quid pro quo agreement, with the Russians offering dirt on Hillary Clinton in exchange for a commitment to sanctions relief, with some policy considerations thrown in.
  • During the transition period, Trump’s team took a series of actions that moved towards consummating the deal they had made with Russia, both in terms of policy concessions, particularly sanctions relief, and funding from Russian sources that could only be tapped if sanctions were lifted. The Trump team took measures to keep those actions secret.
  • Starting in January 2017, Trump came to learn that FBI was investigating Mike Flynn. His real reasons for firing Flynn remain unreported, but it appears he had some concerns that the investigation into Flynn would expose him personally to investigation.
  • After a failed attempt to quash the investigation into his Administration by firing Flynn, Trump grew increasingly angry that Jim Comey wouldn’t provide a quick exoneration without conducting an investigation first, leading to his firing.

May 10, 2017: What did you mean when you told Russian diplomats on May 10, 2017, that firing Mr. Comey had taken the pressure off?

Trump fired Comey just in time to report to Russian Ambassador Sergey Kislyak and Foreign Minister Sergey Lavrov in a meeting the next day that doing took the pressure off he felt because of Russia.

“I just fired the head of the F.B.I. He was crazy, a real nut job. I faced great pressure because of Russia. That’s taken off.” Remarkably, he also felt the need to reassure the Russians that, “I’m not under investigation.”

The reports that Trump’s lawyers need to have clearance because of the inclusion of this meeting in the list of questions suggests Mueller wants to learn more about the meeting beyond the public reports. That may include Trump’s sharing of classified information provided by the Israelis.

May 11, 2017: What did you mean in your interview with Lester Holt about Mr. Comey and Russia?

The day after meeting with the Russians, he told Lester Holt he was going to fire Comey regardless of what Rod Rosenstein recommended. [These are excerpts and a little rough; here’s a partial transcript that leaves out a lot of the Russian comments]

He’s a showboat, he’s a grand-stander, the FBI has been in turmoil, you know that. I know that. Everybody knows that. You take a look at the FBI a year ago, it was in virtual turmoil. Less than a year ago. It hasn’t recovered from that.

[in response to a question about Rosenstein’s recommendation] What I did was I was going to fire Comey. My decision. I was going to fire Comey. There’s no good time to do it, by the way. I was going to fire regardless of recommendation. [Rosenstein] made a recommendation, he’s highly respected. Very good guy, very smart guy. The Democrats like him. The Republicans like him. But regardless of recommendation I was going to fire Comey. Knowing there was no good time to do it.

And in fact when I decided to just do it, I said to myself, I said you know, this Russia thing with Trump and Russia is a made-up story, it’s an excuse by the Democrats for having lost an election that they should have won. And the reason they should have won it is the electoral college is almost impossible for a Republican to win. Very hard. Because you start off at such a disadvantage. So everybody was thinking, they should have won the election. This was an excuse for having lost an election.

I just want somebody that’s competent. I’m a big fan of the FBI. I love the people of the FBI.

As far as I’m concerned, I want that [investigation] to be absolutely done properly. When I did this now, I said I’ll probably, maybe confuse that. Maybe I’ll expand that, you know, lengthen the time because it should be over with, in my opinion, should have been over with a long time ago. ‘Cause all it is, is an excuse but I said to myself, I might even lengthen out the investigation, but I have to do the right thing for the American people.

[in response to question about why he put he was not under investigation in his termination letter] Because he told me that, I mean he told me that. I’ve heard that from others. I had a dinner him, he wanted to have dinner because he wanted to stay on, we had a very nice dinner at the White House very early on. [He asked to have dinner?] A dinner was arranged. I think he asked for the dinner. And he wanted to stay on as the FBI head. And I said, I’ll consider, we’ll see what happens. We had a very nice dinner. And at that time he told me you’re not under investigation. I knew anyway. First of all, when you’re under investigation, you’re giving all sorts of documents and everything. I knew I wasn’t under — and I heard it was stated at the committee, at some committee level, number one. Then during the phone call he said it, then during another phone call he said it. He said it at dinner, and then he said it twice during phone calls.

In one case I called him, in one case he called me.

I actually asked him, yes. I said, if it’s possible, would you let me know, am I under investigation? He said you are not under investigation. All I can tell you is that I know that I’m not under investigation. Personally. I’m not talking about campaigns, I’m not talking about anything else. I’m not under investigation.

[did you ask him to drop the investigation] No. Never. I want the investigation speeded up. Why would we do that? Iw ant to find out if there was a problem with an election having to do with Russia, or anyone else, any other country, I want it to be so strong and so good.

I want somebody that’s going to do a great job.

I think that looking into me and the campaign, I have nothing to do, his was set up by the Democrats. There’s no collusion between me and my campaign and the Russians. The other things is the Russians did not affect the vote.

If Russia hacked, If Russia had to anything to do with our election, I want to know about it. If Russia or anybody elseis trying to interfere with our elections I want to make sure that will never ever happen

[wiretapping] I was surprised [Comey said no spying] but I wasn’t angry. There’s a big thing going on right now, spying, to me that’s the big story.

I want a great FBI Director. I expect that [they will continue investigation].

[Flynn’s access to secrets] My White House Counsel it did not sound like an emergency. She didn’t make it sound that way either in the hearings the other day. It didn’t sound like it had to be done immediately. This man has served for many years. He’s a general. In my opinion a very good person. It would be very unfair to hear from someone we don’t even know to immediately run out and fire a general. We ultimately fired, but we fired for a different reason. Everything plays into it. We fired him because he said something to the Vice President that wasn’t true. He had clearance from the Obama Administration. I think it’s a very unfair thing that the media doesn’t talk about that.

I just sent a letter from one of the most prestigious law firms in the country that I have nothing to do with Russia, I have no investments in Russia, I don’t have property in Russia. I’m in total compliance in every way.

I had the Miss Universe Pageant in Moscow a long time ago. I have a certified letter. I’m not just saying that. I assume he’s gonna give the letter out. No loans, no nothing.

I never thought about it [optics of Lavrov meeting]. What difference does it make.

When I spoke with Putin he asked me whether I’d see Lavrov. I think we had a great discussion having to do with Syria, having to do with the Ukraine. Maybe that discussion will lead to peace.

Ultimately, Trump said several things here (aside from putting into the public record the meetings with Comey, though he got details that can almost certainly be proved wrong wrong). He differentiated between an investigation into himself personally and others, denied asking to halt the investigation into Flynn, provided his bogus self-exoneration claim of not having business ties with Russians. He also reiterated the claim he had been spied on.

May 12, 2017: What was the purpose of your May 12, 2017, tweet?

By this point, Trump and Comey were in a war of credibility. And Trump suggested that he might have tapes of his meetings with Comey.

The White House answers about whether there were tapes have dodged some, so it’s possible.

May 17, 2017: What did you think and what did you do in reaction to the news of the appointment of the special counsel?

In the wake of reporting that Comey had documented a request from Trump to halt the investigation into Flynn, on May 17, Rod Rosenstein appointed Robert Mueller to investigate any links between the Russian government and individuals associated with Trump’s campaign and “any matters that arose or may arise directly from the investigation.” The latter phrase made it clear that by firing Comey, Trump had put himself under investigation for obstructing the investigation in chief.

In the middle of a meeting with Sessions, Don McGahn, Mike Pence, and several others on replacing Comey, Rosenstein called McGahn and told him he had appointed Mueller. Trump took it out on Sessions, calling him an idiot and telling him he should resign. Sessions left and sent a resignation letter, but Pence, Steve Bannon, and Reince Priebus convinced him to hold off on accepting it. This piece describes Priebus’ side of that story.

May 31, 2017: Why did you hold Mr. Sessions’s resignation until May 31, 2017, and with whom did you discuss it?

Mueller has received testimony from most of the people who counseled Trump not to fire Sessions, including McGahn, Bannon, and Priebus (but not Pence). He has also gotten Sessions’ testimony on this point.

I’m particularly interested in whether Trump consulted with people not listed in the NYT story on this, such as Jared Kushner and Stephen Miller (who had counseled him to fire Comey in the first place). I also suspect that Trump had already reached out Flynn by this point to talk pardons.

June 8, 2017: What did you think about Mr. Comey’s June 8, 2017, testimony regarding Mr. Flynn, and what did you do about it?

On June 8, Comey testified to SSCI. The night before, he released a statement that reviewed much of what appeared in his memos. The hearing consisted of senators from each party trying to spin Comey’s report of being asked to drop the Flynn investigation, with little news  — though Comey did make clear the investigation covered false statements.

BLUNT: On the Flynn issue specifically, I believe you said earlier that you believe the president was suggesting you drop any investigation of Flynn’s account of his conversation with the Russian ambassador. Which was essentially misleading the vice president and others?

COMEY: Correct. I’m not going to go into the details but whether there were false statements made to government investigators, as well.

Comey refuted Trump’s claim that he didn’t ask him to stop the investigation into Flynn.

KING: In his press conference May 18th, the president responded, quote, no, no, when asked about asking you to stop the investigation into general Flynn. Is that a true statement?

COMEY: I don’t believe it is.

Comey said he viewed the Flynn investigation and the Russian one as touching, but separate, though raised the possibility of flipping Flynn.

KING: Back to Mr. Flynn. Would the — would closing out the Flynn investigation have impeded the overall Russian investigation?

COMEY: No. Well, unlikely, except to the extent — there is always a possibility if you have a criminal case against someone and squeeze them, flip them and they give you information about something else. But I saw the two as touching each other but separate.

Comey also revealed that he had shared memos memorializing his conversations with Trump with a friend.

BLUNT: You said something earlier and I don’t want to fail to follow up on, you said after dismissed, you gave information to a friend so that friend could get that information into the public media.

COMEY: Correct.

BLUNT: What kind of information was that? What kind of information did you give to a friend?

COMEY: That the — the Flynn conversation. The president had asked me to let the Flynn — forgetting my exact own words. But the conversation in the Oval Office.

Much of the hearing covered Sessions’ non-involvement. Comey deferred a number of questions to the closed session.

Trump used the Comey hearing — and his confirmation that at the time he left the president wasn’t under investigation — to have Marc Kasowitz make a statement claiming Trump never impeded the investigation and never demanded loyalty.

I am Marc Kasowitz, Predisent Trump’s personal lawyer.

Contrary to numerous false press accounts leading up to today’s hearing, Mr. Comey has now finally confirmed publicly what he repeatedly told the President privately: The President was not under investigation as part of any probe into Russian interference. He also admitted that there is no evidence that a single vote changed as a result of any Russian interference.

Mr Comey’s testimony also makes clear that the President never sought to impede the investigation into attempted Russian interference in the 2016 election, and in fact, according to Mr. Comey, the President told Mr. Comey “it would be good to find out” in that investigation if there were “some ‘satellite’ associates of his who did something wrong.” And he did not exclude anyone from that statement. Consistent with that statement, the President never, in form or substance, directed or suggested that Mr. Comey stop investigating anyone, including suggesting that that Mr. Comey“let Flynn go.” As he publicly stated the next day, he did say to Mr. Comey, “General Flynn is a good guy, he has been through a lot” and also “asked how is General Flynn is doing.”

Admiral Rogers testified that the President never “directed [him] to do anything . . . illegal, immoral, unethical or inappropriate” and never “pressured [him] to do so.” Director Coates said the same thing. The President likewise never pressured Mr. Comey. .

The President also never told Mr. Comey, “I need loyalty, I expect loyalty” in form or substance. Of course, the Office of the President is entitled to expect loyalty from those who are serving in an administration, and, from before this President took office to this day, it is overwhelmingly clear that there have been and continue to be those in government who are actively attempting to undermine this administration with selective and illegal leaks of classified information and privileged communications.

Kasowitz also accused Comey of leaking in order to lead to a special counsel investigation.

Mr. Comey has now admitted that he is one of these leakers. Today, Mr. Comey admitted that he unilaterally and surreptitiously made unauthorized disclosures to the press of privileged communications with the President. The leaks of this privileged information began no later than March 2017 when friends of Mr. Comey have stated he disclosed to them the conversations he had with the President during their January 27, 2017 dinner and February 14, 2017 White House meeting. Today, Mr. Comey admitted that he leaked to friends his purported memos of these privileged conversations, one of which he testified was classified. He also testified that immediately after he was terminated he authorized his friends to leak the contents of these memos to the press in order to “prompt the appointment of a special counsel.” Although Mr. Comey testified he only leaked the memos in response to a tweet, the public record reveals that the New York Times was quoting from these memos the day before the referenced tweet, which belies Mr. Comey’s excuse for this unauthorized disclosure of privileged information and appears to entirely retaliatory. We will leave it the appropriate authorities to determine whether this leaks should be investigated along with all those others being investigated. .

In sum, it is now established that there the President was not being investigated for colluding with the or attempting to obstruct that investigation. As the Committee pointed out today, these important facts for the country to know are virtually the only facts that have not leaked during the long course of these events.

This sort of kicked off the official campaign to discredit Comey and those who would back his story.

June 12, 2017: What did you think and do in reaction to the news that the special counsel was speaking to Mr. Rogers, Mr. Pompeo and Mr. Coats?

Public reports date Rogers and Coats’ interviews with Mueller to the week of June 12, 2017, so Pompeo’s must have been around that same time. Rogers and Coats, at least, testified that Trump tried to get them to state publicly that there was no collusion. They said the interaction was odd and uncomfortable, but that he did not order them to interfere.

Clearly, Trump responded to public reports of their being called as witnesses, though we don’t know what the response was. It’s possible that’s when Trump threatened to fire Mueller, only to back off when Don McGahn threatened to quit.

July 7, 2017: What involvement did you have in the communication strategy, including the release of Donald Trump Jr.’s emails?

I’ve laid out that I believe the evolving June 9 story is a limited hangout orchestrated by Agalarov lawyer Scott Balber. The strategy would have begun when Jared Kushner wrestled with the need to disclose the meeting, both in response to congressional investigations and for his clearance. Manafort, too, turned over emails backing the event about a month before the story came out publicly. This post talks about the response the weekend of the G-20 in Hamburg, including Ivanka sitting in on a meeting so Trump could strategize, and Hope Hicks suggesting the emails would never come out.

As a reminder, on the same day Trump had a second hour long meeting with Putin, he dictated Putin’s propaganda line that the meeting pertained to adoptions. Importantly, he hid what I’ve suggested was the quo in the quid pro quo, sanctions relief. Mueller undoubtedly would like to know if Putin helped him come up with that message, which would be really damning.

Mueller also wants to know about the decision to leak Don Jr’s emails. Bannon suspects that a Jared aide leaked the emails (his then lawyer Jamie Gorelick would cut back her work with him shortly thereafter). But remember: in a DM, Assange proposed that he give Wikileaks the email.

There’s clearly far more back story to the leaked email we don’t know yet.

If Trump’s involvement here involves coordination with Russians (like the Agalrovs, to say nothing of Putin) or Assange, it would provide damning evidence not of obstruction, but of collusion, an effort to coordinate a story about a key meeting. Trump’s lawyers have always suggested questions about Trump’s role in this statement are improper, which is itself a telling indicator that they don’t understand (or want to spin) the risk of the original June 9 meeting.

July 20, 2017: After the resignations, what efforts were made to reach out to Mr. Flynn about seeking immunity or possible pardon?

Mike Flynn tried to get Congressional immunity in March 2017, with Trump’s backing the effort in a tweet.

Mueller’s question seems to suggest even at that earlier period, someone from Trump’s camp reached out and discussed immunity with Flynn. Shortly before April 25, Trump also sent Flynn a message to “stay strong.” (h/t TC)

On July 20, the WaPo reported that Trump’s team was researching pardons. The NYT report first revealing that Trump offered pardons to Mike Flynn (and Manafort, who is curiously not mentioned in this question) describes it happening after John Dowd took over, in the wake of the revelation of the June 9 meeting and the Kasowitz firing. Dowd denied any such thing was happening on July 21, which is probably a good sign such discussions were taking place.

July 25, 2017: What was the purpose of your July 2017 criticism of Mr. Sessions? What discussions did you have with Reince Priebus in July 2017 about obtaining the Sessions resignation? With whom did you discuss it?

In late July, 2017, Trump accused Sessions of several sins: failing to crack down on leaks, failing to prosecute Hillary, and failing to fire Andrew McCabe. That must be the same time when Trump ordered Priebus to get Sessions’ resignation, which he dodged by stalling, which probably answers the “what was the purpose” question: to lay predicate to fire Sessions.

I’m particularly interested in the question about who Trump discussed this with, particularly given the provocative timing — the days before George Papadopoulos’s July 26 arrest and Paul Manafort’s July 27 condo search (using a warrant that, unlike a warrant from a May 27 storage unit search, invoked the June 9 meeting). It’s possible Trump had advance knowledge of this stuff (which would be alarming), but likely it’s a coincidence.

In any case, Mueller clearly has reason to believe Trump learned something about the investigation and discussed it with people that led him to try, again, to stop it by firing someone.

What was the purpose of the September and October 2017 statements, including tweets, regarding an investigation of Mr. Comey?

On September 1, Trump responded to reports that because Comey had a declination written before interviewing Hillary, he rigged the outcome of the investigation. In mid-October, in the wake of the Manafort indictment and George Papadopoulos plea, Trump returned to this attack. Rudy Giuliani has renewed this attack in recent days, which is presumably an attempt to undercut Comey’s credibility.

What discussions did you have regarding terminating the special counsel, and what did you do when that consideration was reported in January 2018?

The NYT report that Trump tried to fire Mueller in June 2017 made it clear that Mueller had received testimony about it (presumably from McGahn and others). Clearly, Mueller has reason to know that Trump did something else in response. Note that this report came out in the wake of the Michael Wolff book, which would give Mueller an excuse to call several of the relevant witnesses (such as Mark Corallo and Steve Bannon) as witnesses. This time period also closely follows the increasingly aggressive response in Congress.

What is the reason for your continued criticism of Mr. Comey and his former deputy, Andrew G. McCabe?

The assumption is that Trump continues to attack Comey and McCabe because doing so might harm their credibility with regards to an obstruction investigation, and that’s surely true (made all the worse by McCabe’s firing and his criminal referral).

But I increasingly believe (particularly given that the other contemporaneous witnesses to Comey’s concerns, like James Baker, are not named) that’s not the only reason Trump is doing this. My guess is it’s an attempt to undermine their decision to investigate Flynn. We now know, for example, that McCabe set up the interview with Flynn on Comey’s direction. So in addition to discrediting key witnesses against him, it seems possible that Trump is also trying to discredit the decision, at a time when  FBI was about to close a counterintelligence investigation into Flynn, to instead interview him, leading to the exposure of Trump’s efforts to undermine US policy during the transition period.

RESOURCES

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

Mueller questions as imagined by Jay Sekulow

CNN’s timeline of investigative events

Majority HPSCI Report

Minority HPSCI Report

Trump Twitter Archive

Jim Comey March 20, 2017 HPSCI testimony

Comey May 3, 2017 SJC testimony

Jim Comey June 8, 2017 SSCI testimony

Jim Comey written statement, June 8, 2017

Jim Comey memos

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

NPR Timeline on Trump’s ties to Aras Agalarov

George Papadopoulos complaint

George Papadopoulos statement of the offense

Mike Flynn statement of the offense

Internet Research Agency indictment

Text of the Don Jr Trump Tower Meeting emails

Jared Kushner’s statement to Congress

Erik Prince HPSCI transcript

THE SERIES

Part One: The Mueller Questions Map Out Cultivation, a Quid Pro Quo, and a Cover-Up

Part Two: The Quid Pro Quo: a Putin Meeting and Election Assistance, in Exchange for Sanctions Relief

Part Three: The Quo: Policy and Real Estate Payoffs to Russia

Part Four: The Quest: Trump Learns of the Investigation

Part Five: Attempting a Cover-Up by Firing Comey

The Quest: Trump Learns of the Investigation (Part Four)

In this series, I’m analyzing the Mueller questions as understood by Jay Sekulow and leaked to the NYT to show how they set up a more damning investigative framework than commentary has reflected.

This post laid out how the Agalarovs had been cultivating Trump for years, in part by dangling real estate deals and close ties with Vladimir Putin. This post shows how during the election, the Russians and Trump danced towards a quid pro quo agreement, with the Russians offering dirt on Hillary Clinton in exchange for a commitment to sanctions relief, with some policy considerations thrown in. This post laid out how, during the transition period, Trump’s team took a series of actions they attempted to keep secret that moved towards consummating the deal they had made with Russia, both in terms of policy concessions, particularly sanctions relief, and funding from Russian sources that could only be tapped if sanctions were lifted.

This post will look at Mueller’s reported investigative interest in Trump’s reaction to discovering the “Deep State” was investigating the election year operation, including the actions his team had tried to keep secret. Note, I have put all of the events leading up to Flynn’s firing here (not least because I think the firing itself often gets treated improperly as obstruction), though just some of the Jim Comey events. I will repeat the timeline of events in the next post, which overlaps temporally, for clarity.

January 6, 2017: What was your opinion of Mr. Comey during the transition?

This is a baseline question for Trump’s firing of Jim Comey. At a minimum, Trump would need to explain his decision to keep Comey. It also provides Trump an opportunity to rebut Comey’s claim that, in the January 6 meeting, Trump told Comey he:

had conducted myself honorably and had a great reputation. He said I was repeatedly put in impossible positions. He said you saved her and then they hated you for what you did later, but what coice did you have? He said he thought very highly of me and looked forward to working with me, saying he hoped I planned to stay on. I assured him I intended to stay. He said good.

January 6, 2017: What did you think about Mr. Comey’s intelligence briefing on Jan. 6, 2017, about Russian election interference?

One key detail Comey (and the other representatives of the intelligence community) would have detailed for Trump that day is not just that Russia interfered in the election, but their basis for concluding that “We also assess Putin and the Russian Government aspired to help President-elect Trump’s election chances,” a conclusion Republicans have objected to repeatedly.

In his book, but not his memos, Comey describes that immediately after the briefing, Trump first asked for assurances Russian interference hadn’t affected the outcome and then, with his team, started strategizing how to spin the conclusions so as to dismiss any outcome on the election.

‘I recall Trump listening without interrupting, and asking only one question, which was really more of a statement: “But you found there was no impact on the result, right?” The intelligence team said they had done no such analysis.

‘What I found telling was what Trump and his team didn’t ask. They were about to lead a country that had been attacked by a foreign adversary, yet they had no questions about what the future Russian threat might be.’

Instead, Trump and his team immediately started discussing how they would “spin” the information on Russia as if the intelligence officers were not in the room. ‘They were keen to emphasize that there was no impact on the vote, meaning that the Russians hadn’t elected Trump.’

This reflects the same concern expressed in the KT McFarland email from just days earlier (which probably reflected detailed Trump involvement) that acknowledging Russian involvement would “discredit[] Trump’s victory by saying it was due to Russian interference.”

January 6, 2017: What was your reaction to Mr. Comey’s briefing that day about other intelligence matters?

In its analysis of the questions, NYT takes this question to be exclusively about Comey’s briefing on the Steele dossier, and it may be. But in Obama’s January 5 briefing covering the same issues, according to Susan Rice, Comey and others discussed concerns about sharing classified information with the Trump team, especially Mike Flynn.

The memorandum to file drafted by Ambassador Rice memorialized an important national security discussion between President Obama and the FBI Director and the Deputy Attorney General. President Obama and his national security team were justifiably concerned about potential risks to the Nation’s security from sharing highly classified information about Russia with certain members of the Trump transition team, particularly Lt. Gen. Michael Flynn.

Even though concerns about Flynn came up in that Obama briefing, the FBI counterintelligence investigation did not. It’s possible that this passage from Comey’s memo, which describes the main part of the briefing and not that part dedicated to the Steele dossier, pertained to the counterintelligence concerns about Flynn,which Obama had already shared with Trump the previous fall; such a warning may or may not have included Flynn’s conversations with Sergey Kislyak.

If Comey briefed anything to do with Flynn, it would significantly change the importance of subsequent events.

As for the Steele dossier conversation, which surely is included with this question, Comey has claimed that Trump first tried to convince Comey is wasn’t true that he would need to “go there” to sleeping with prostitutes, “there were never prostitutes,” even though Trump’s reference to “the women who had falsely accused him of grabbing or touching them” actually undermined his defense.

Comey has also claimed that Trump seemed relieved when he said (in the context of the Steele briefing), that the FBI was not investigating him. Importantly, this took place after Comey had said he didn’t want people to claim the information came from the FBI.

I said media like CNN had them and were looking for a news hook. I said it was important that we not give them an excuse to write that the FBI has the material or [redacted] and that we were keeping it very close-hold.

[snip]

I responded that we were not investigating him and the stuff might be totally made up but that it was being said out of Russia and our job was to protect the President from efforts to coerce him. I said we try to understand what the Russians are doing and what they might do. I added that I also wanted him to know this in case it came out in the media.

He said he was grateful for the conversation, said more nice things about me and how he looks forward to working with me and we departed the room.

January 12, 2017: What was your reaction to news reports on Jan. 12, 2017?

On January 12, in the context of a discussion of Trump aiming for better relationships with Putin, David Ignatius reported revealed that Flynn had called Sergey Kislyak “several times,” asking whether but not asserting that it might be an attempt to undercut sanctions.

Trump said Wednesday that his relationship with President Vladimir Putin is “an asset, not a liability.” Fair enough, but until he’s president, Trump needs to let Obama manage U.S.-Russia policy.

Retired Lt. Gen. Michael T. Flynn, Trump’s choice for national security adviser, cultivates close Russian contacts. He has appeared on Russia Today and received a speaking fee from the cable network, which was described in last week’s unclassified intelligence briefing on Russian hacking as “the Kremlin’s principal international propaganda outlet.”

According to a senior U.S. government official, Flynn phoned Russian Ambassador Sergey Kislyak several times on Dec. 29, the day the Obama administration announced the expulsion of 35 Russian officials as well as other measures in retaliation for the hacking. What did Flynn say, and did it undercut the U.S. sanctions? The Logan Act(though never enforced) bars U.S. citizens from correspondence intending to influence a foreign government about “disputes” with the United States. Was its spirit violated? The Trump campaign didn’t immediately respond to a request for comment.

The report neither revealed the FBI had intercepts of the conversation nor confirmed an investigation. But it may have alerted Trump that the actions he was probably a party to weeks earlier might have legal consequences.

January 24: FBI interviews Mike Flynn and he lies about talking about sanctions

January 26 and 27, 2017: What did you know about Sally Yates’s meetings about Mr. Flynn?

According to Sally Yates’ public testimony, she met with Don McGahn to discuss Mike Flynn’s interview with the FBI on January 26, 2017. She framed it by describing that DOJ knew Mike Pence’s January 15 comments about Flynn’s conversations with Kislyak were not correct.

YATES: So I told them again that there were a number of press accounts of statements that had been made by the vice president and other high-ranking White House officials about General Flynn’s conduct that we knew to be untrue. And we told them how we knew that this – how we had this information, how we had acquired it, and how we knew that it was untrue.

And we walked the White House Counsel who also had an associate there with him through General Flynn’s underlying conduct, the contents of which I obviously cannot go through with you today because it’s classified. But we took him through in a fair amount of detail of the underlying conduct, what General Flynn had done, and then we walked through the various press accounts and how it had been falsely reported.

We also told the White House Counsel that General Flynn had been interviewed by the FBI on February [sic] 24. Mr. McGahn asked me how he did and I declined to give him an answer to that. And we then walked through with Mr. McGahn essentially why we were telling them about this and the first thing we did was to explain to Mr. McGahn that the underlying conduct that General Flynn had engaged in was problematic in and of itself.

Secondly, we told him we felt like the vice president and others were entitled to know that the information that they were conveying to the American people wasn’t true. And we wanted to make it really clear right out of the gate that we were not accusing Vice President Pence of knowingly providing false information to the American people.

And, in fact, Mr. McGahn responded back to me to let me know that anything that General Flynn would’ve said would have been based — excuse me — anything that Vice President Pence would have said would have been based on what General Flynn had told him.

We told him the third reason was — is because we 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.

I remember that Mr. McGahn asked me whether or not General Flynn should be fired, and I told him that that really wasn’t our call, that was up to them, but that we were giving them this information so that they could take action, and that was the first meeting.

Then there was a follow-up meeting on January 27. Among the five topics discussed, McGahn asked if Flynn was in legal jeopardy, and if “they” (presumably meaning he and the Associate WHCO in the meeting) could see the underlying intelligence.

WHITEHOUSE: Did you discuss criminal prosecution of Mr. Flynn — General Flynn?

YATES: My recollection is that did not really come up much in the first meeting. It did come up in the second meeting, when Mr. McGahn called me back the next morning and asked the — the morning after — this is the morning of the 27th, now — and asked me if I could come back to his office.

And so I went back with the NSD official, and there were essentially four topics that he wanted to discuss there, and one of those topics was precisely that. He asked about the applicability of certain statutes, certain criminal statutes and, more specifically,

[snip]

And there was a request made by Mr. McGahn, in the second meeting as to whether or not they would be able to look at the underlying evidence that we had that we had described for him of General Flynn’s conduct. And we told him that we were inclined to allow them to look at that underlying evidence, that we wanted to go back to DOJ and be able to make the logistical arrangements for that. This second meeting on the 27th occurred late in the afternoon, this is Friday the 27th. So we told him that we would work with the FBI over the weekend on this issue and get back with him on Monday morning. And I called him first thing Monday morning to let him know that we would allow them to come over and to review the underlying evidence.

By the time the materials for review became available on January 30, Yates had been fired, nominally because she refused to defend Trump’s Muslim ban.

The HPSCI report (particularly content newly unredacted on May 4; see PDF 63 ff) reveals there were several concerns about Flynn’s contradictory comments (which Republicans bizarrely present as conflict). First, there had been a counterintelligence investigation into Flynn still active in December 2016, though FBI may have been moving to shut it down. The interview may have been sparked by Logan Act concerns, or it may have been Flynn’s public comments to Pence (the Republican report ignores that this would pose a blackmail problem). Comey told HPSCI that the agents found Flynn — a lifetime intelligence officer — exhibited no physical signs of deceit, but made it clear the Agents did find his statements plainly conflicted with known facts.

When Mueller asks the President what he knew about the meetings, he likely wants to know (and already has answers from McGahn and likely the Associate) whether they told him about the Flynn interview, if so when, and in how much detail. If they did tell Trump, Mueller may also want to know about whether McGahn’s questions on the 27th (including whether Flynn was in legal jeopardy) reflect Trump’s own questions.

Obviously, one other subtext of this question pertains to whether Yates’ pursuit of Flynn contributed to her firing.

The other critical point about whether and what Trump knew of Yates’ meetings with McGahn: on January 27, he had his first creepy meeting with Jim Comey. Then, on January 28, he had his first phone call with Vladimir Putin, a call Flynn attended.

January 27, 2017: What was the purpose of your Jan. 27, 2017, dinner with Mr. Comey, and what was said?

At lunchtime on January 27 — so after McGahn had called Yates to set up a follow-up meeting and indicated concerns about Flynn’s legal jeopardy, but before that meeting happened — Trump called Comey and set up dinner that day. According to Comey, several minor things that would recur later came up, including questions about Andrew McCabe and Trump’s exposition of the Hillary email investigation.

In addition, five other key things happened at the meeting.

He invited the FBI to investigate “the Golden Showers” thing to prove it was a lie:

At this point, he turned to what he called “the golden showers thing”

[snip]

He said he had spoken to people who had been on the Miss Universe trip with him and they had reminded him that he didn’t stay over night in Russia for that. [this is not true]

[snip]

He said he thought maybe he should ask me to investigate the whole thing to prove it was a lie. I did not ask any questions. I replied that it was up to him, but I wouldn’t want to create a narrative that we were investigating him, because we were not and I worried such a thing would be misconstrued. Ii also said that is very difficult to disprove a lie. He said ‘maybe you’re right,’ but several times asked me to think about it and said he would also think about it.

He asked if the FBI leaks:

He asked whether the FBI leaks and I answered that of course in an organization of 36,000 we were going to have some of that, but I said I think the FBI leaks far less than people often say.

He asked if Comey wanted to keep his job, even though they had discussed it twice before:

He touched on my future at various points. The first time he asked “so what do you want to do,” explaining that lots of people wanted my job (“about 20 people”), that he thought very highly of me, but he would understand if I wanted to walk away given all I had been through, although he thought that would be bad for me personally because it would look like I had done something wrong, that he of course can make a change at FBI if he wants, but he wants to know what I think. There was no acknowledgement by him (or me) that we had already talked about this twice.

I responded by saying that he could fire me any time he wished, but that I wanted to stay and do a job I love to and think I am doing well.

He asked for loyalty:

He replied that he needed loyalty and expected loyalty.

[snip — this comes after the request for an investigation]

He then returned to loyalty, saying “I need loyalty.” I replied that he would always get honesty from me. He paused and said that’s what he wants, “honest loyalty.” I replied, “you will get that from me.”

He claimed to suspect Mike Flynn’s judgment because he had delayed in telling Trump about Putin’s congratulatory phone call:

He then went on to explain that he has serious reservations about Mike Flynn’s judgment and illustrated with a story from that day in which the President apparently discovered during his toast to Teresa May that [Vladimir Putin] had called four days ago. Apparently, as the President was toasting PM May, he was explaining that she had been the first to call him after his inauguration and Flynn interrupted to say that [Putin] had called (first, apparently). It was then that the President learned of [Putin’s] call and he confronted Flynn about it (not clear whether that was in the moment or after the lunch with PM May). Flynn said the return call was scheduled for Saturday, which prompted a heated reply from the President that six days was not an appropriate period of time to return a call from the [President] of a country like [Russia]. (“This isn’t [redacted] we are talking about.”) He said that if he called [redacted] and didn’t get a return call for six days he would be very upset. In telling the story, the President pointed his fingers at his head and said “the guy has serious judgment issues.” I did not comment at any point during this topic and there was no mention or acknowledgement of any FBI interest in or contact with General Flynn.

Trump would be hard pressed to argue the meeting was unrelated to the Yates meeting and the FBI investigation. Which would mean one thing Trump did — in a meeting where he also lied to claim he hadn’t had sex in Moscow — was to disclaim prior knowledge of the Putin meeting the next day (even while emphasizing the import of it).

Of course, the claim he thought Flynn had poor judgment didn’t lead him to keep Flynn out of the phone call with Putin the next day.

January 28: Trump, Pence, Flynn, Priebus, Bannon, and Spicer phone Vladimir Putin

February 9, 2017: What was your reaction to news reports on Feb. 8-9, 2017?

According to Jim Comey, he went for a meet and greet with Reince Priebus on February 8. While he was waiting, Mike Flynn sat down to chat with him though didn’t mention the FBI interview. Then, after clarifying that the conversation with Comey was a “private conversation,” he asked if there was a FISA order on Flynn. Comey appears to have answered in the negative. Priebus then took Comey in to meet with Trump, who defended his answer in an interview with Bill O’Reilly released on February 6) that “There are a lot of killers. You think our country’s so innocent?” After Comey criticized that part of the answer, Trump, “clearly noticed I had directly criticized him.” (h/t TC for reminding me to add this.) Since Yates had told McGahn how they knew Flynn had lied, Priebus’ question about a FISA order suggests the White House was trying to find out whether the collection was just incidental, or whether both sides of all Flynn’s conversations would have been picked up.

On February 9, the WaPo reported that Flynn had discussed sanctions, in spite of public denials from the White House that he had.

National security adviser Michael Flynn privately discussed U.S. sanctions against Russia with that country’s ambassador to the United States during the month before President Trump took office, contrary to public assertions by Trump officials, current and former U.S. officials said.

Flynn’s communications with Russian Ambassador Sergey Kislyak were interpreted by some senior U.S. officials as an inappropriate and potentially illegal signal to the Kremlin that it could expect a reprieve from sanctions that were being imposed by the Obama administration in late December to punish Russia for its alleged interference in the 2016 election.

Flynn on Wednesday [February 8] denied that he had discussed sanctions with Kislyak. Asked in an interview whether he had ever done so, he twice said, “No.”

On Thursday [February 9], Flynn, through his spokesman, backed away from the denial. The spokesman said Flynn “indicated that while he had no recollection of discussing sanctions, he couldn’t be certain that the topic never came up.”

Officials said this week that the FBI is continuing to examine Flynn’s communications with Kislyak. Several officials emphasized that while sanctions were discussed, they did not see evidence that Flynn had an intent to convey an explicit promise to take action after the inauguration.

In addition to tracking Flynn’s changing claims, it also noted that on January 15, Mike Pence had denied both any discussion of sanctions in the December call and discussions with Russia during the campaign.

On February 10, Trump was asked by reporters about Flynn’s answer. Trump played dumb: “I don’t know about that. I haven’t seen it. What report is that? I haven’t seen that. I’ll look into that.” (h/t TC)

Presumably, Mueller wants to know how surprised Trump was about this story (which actually builds on whether McGahn told him about the Yates conversation). But given Trump’s earlier question about FBI leaks, I also wonder whether Mueller knows that Trump knew this was coming. That is, some of the leaks may have come from closer to the White House, as an excuse to fire Flynn, using the same emphasis that the story (and Yates) had: the claim that Flynn had lied to Pence.

Except Mueller probably knows that the effort to soothe Russia’s concerns about sanctions made in December were a surprise to few top aides in the White House, least of all Trump.

February 13, 2017: How was the decision made to fire Mr. Flynn on Feb. 13, 2017?

We have remarkably little reporting on how and why Flynn was actually fired — mostly just the cover story that it was because Flynn lied to Pence — though after Flynn flipped last year, Trump newly claimed he had to fire Flynn because he lied to the FBI (something that, if the claims about the original 302 are correct, FBI hadn’t concluded at the time Trump fired him).

The thing is, neither story makes sense. It’s virtually certain that many people in the White House knew what Flynn had said to Sergey Kislyak back in December 2016; Tom Bossert was included in KT McFarland’s emails to Mike Flynn, and he sent it to Reince Priebus, Stephen Bannon, Sean Spicer, and at least two other people. All of those people, save Bossert, are known to have provided testimony to Mueller’s team.

But it also makes little sense to argue that Trump had to fire Flynn because he lied. If so, he would have done so either immediately, before the Putin meeting, or much later, after FBI actually came to the conclusion he had lied.

One logical explanation is that Flynn lied because he was told to lie, in an effort to continue to hide what the Trump Administration was doing in the transition period to pay off its debts to Russia. But faced with the prospect that the FBI would continue to investigate Flynn, Trump cut him out in an effort to end the investigation. Which explains why things with Comey proceeded the way they did.

Update: This post has been updated with new details surrounding February 8-10 and newly unredacted details from the HPSCI report.

RESOURCES

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

Mueller questions as imagined by Jay Sekulow

CNN’s timeline of investigative events

Majority HPSCI Report

Minority HPSCI Report

Trump Twitter Archive

Jim Comey March 20, 2017 HPSCI testimony

Comey May 3, 2017 SJC testimony

Jim Comey June 8, 2017 SSCI testimony

Jim Comey written statement, June 8, 2017

Jim Comey memos

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

NPR Timeline on Trump’s ties to Aras Agalarov

George Papadopoulos complaint

George Papadopoulos statement of the offense

Mike Flynn statement of the offense

Internet Research Agency indictment

Text of the Don Jr Trump Tower Meeting emails

Jared Kushner’s statement to Congress

Erik Prince HPSCI transcript

THE SERIES

Part One: The Mueller Questions Map Out Cultivation, a Quid Pro Quo, and a Cover-Up

Part Two: The Quid Pro Quo: a Putin Meeting and Election Assistance, in Exchange for Sanctions Relief

Part Three: The Quo: Policy and Real Estate Payoffs to Russia

Part Four: The Quest: Trump Learns of the Investigation

Part Five: Attempting a Cover-Up by Firing Comey

Part Six: Trump Exacerbates His Woes