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Beryl Howell’s Whack-a-Mole Grand Juries

Coverage of the May 29 court hearing that led Roger Stone aide Andrew Miller to testify before a different grand jury describes how his attorney, Paul Kamenar, tried to argue it would be an abuse of the grand jury, because Stone has already been indicted. But after prosecutors (including former Mueller prosecutor Aaron Zelinsky) explained why they needed Miller’s testimony ex parte, Howell upheld the contempt order. (See also CNN and ABC’s coverage.)

Miller, of St. Louis, was on speakerphone Wednesday for the hearing at which U.S. District Chief Judge Beryl A. Howell denied a last-ditch motion by Miller’s attorney, Paul D. Kamenar, to block his client’s grand jury appearance.

Kamenar argued it is an abuse of grand jury process for prosecutors to seek pretrial testimony from a witness about a subject who has already been indicted, also noting that Mueller has issued his final report.

[snip]

Howell said it was long-settled law that prosecutors can properly obtain grand jury testimony to develop additional charges against an indicted target, or to investigate individuals not yet facing charges. Prosecutors can also use evidence against Stone in his pending November trial if it was collected incidentally and not the primary focus of Miller’s questioning, she said.

“The government is not abusing the grand jury process in this case, and the government has need of Mr. Miller’s testimony,” Howell ruled from the bench, upholding her August contempt finding when Miller failed to testify.

“If Mr. Miller does not appear before the grand jury on Friday, he will be in contempt and there will be an arrest warrant issued for him. Do you understand, Mr. Miller?” Howell asked.

“Yes, your honor,” Miller answered over speakerphone.

Prosecutors told the judge in a sealed bench conversation about the ongoing matters in which they seek Miller’s help, but not before Kamenar said that in a May 6 email prosecutors confirmed that one question would regard “what work he did for Stone from 2016 on.”

Presumably, Howell would have known (because she has presided over Mueller’s grand jury from the start) that Miller would testify before a different grand jury.

We now know that Howell had a similar conversation over two months earlier in a hearing (starting at PDF 166) in the Mystery Appellant’s somewhat successful effort to withhold information the government wanted about a state-owned bank. At the hearing, DC Assistant US Attorney Zia Faruqui had replaced Zainab Ahmad as lead prosecutor on the issue (he had started to take over earlier in March, certainly by March 21).

Howell started the hearing by asking why the subpoena was still pending given that Mueller had announced the end of his investigation a week earlier.

Howell: [T]he first question I am going to ask the Government is in the last paragraph of their reply which is: What are we doing here? Why isn’t this whole matter over as of 5 p.m., March 22, when Mr. Mueller delivered his report?

Fauqui: Your Honor, I can say with absolute certainty that the case is robust, ongoing; we are working within our office. The matter was transferred back in fact to the U.S. Attorney’s Office. We have met numerous times with agents. We have reviewed materials, and our plan is to go forward with our investigative steps. We are in constant communication with the special counsel’s office.

It’s very different, I think, to the outside world; but, within the Government, theoretically we are one Government. One AUSA may leave, one prosecutor; but, when there is a case of this import, there is no reason that it would stop because a separate focused matter has been presented with a letter and report.

In response, Howell makes it very clear that this subpoena — for which she would have seen abundant sealed description — was originally presented to her as part of the investigation into Russian influence in the 2016 election, which leads her to be really confused about why the government would still need the information.

Howell: Well, correct me if I’m wrong, but this matter was presented to the Court as one part of the investigation into whether there was Russian influence with the 2016 election, presidential election; and that’s been resolved by the — at least the summary of the special counsel’s report. So there are other aspects of that investigation that led in other directions. So I thought this part — this particular subpoena and leg of the investigation was also related precisely to what Mr. Mueller said he resolved in his report delivered at 5 p.m. on March 22.

So are you saying that this is a different aspect of this investigation related to different inquiries than that?

Faruqui: Yes. That’s correct, Your Honor. I am happy to approach. I think it’s —

Howell: Well, there’s been nothing submitted that — in the Government’s opposition papers that provides any detail about how these records have continuing relevancy to something subject to investigation by the grand jury to warrant continued fines to coerce additional compliance, which we’re going to get to in a minute, or whether there is anything all relevant to an ongoing grand jury investigation from these records that the Government’s continuing to seek.

Faruqui then explains that this matter started in the DC US Attorney’s Office, got bumped to Mueller, and has now been passed back to DC.

Faruqui: So if we can have an opportunity now, or we can refer to portions of the ex parte prior affidavits of the special counsel, I think we can either now or file supplemental briefing to Your Honor to try to further elucidate that. Certainly, the special counsel’s remit, I think, allowed them to take this investigation in.

The investigation initially came into our office and was passed to the special counsel at that time because I think there was a question within the realm of their remit. However, I think it’s very clear I think the matter —

Howell: So are you saying that this investigation started with the D.C. U.S. Attorney’s Office, spent some time within the special counsel’s jurisdiction, so to speak, and is now being given back to the U.S. Attorney’s Office?

Faruqui describes the investigation as being very time consuming and resource-intensive.

Faruqui: That is correct, Your Honor. And it does in fact involve issues that have not or are in any way close to being resolved and very much is a live issue that requires, I think, a great deal of resources, time, and attention by the Government, which is why we believe the subpoena is in fact still a live controversy that requires, I think, a great of [sic] deal resources, time, and attention by the Government, which is why we believe the subpoena is in fact still a live controversy that requires contempt because it goes to the core of the question in this investigation.

Howell: All right. Well, before I got the Government’s opposition, I didn’t know whether the Government’s opposition was going to be, oh, forget the whole thing. I have read all of the ex parte filings, and I am puzzled.

Faurqui: We can supplement —

Howell: What’s still going on here?

Faruqui: We can certainly supplement, Your Honor, with an additional ex parte supplement that will go into greater detail explaining what is being investigated and how it is in no way resolved by what may or may not be in the Mueller report or in AG Barr’s letter to Congress and the public.

These are live issues that require immediate attention from the U.S. Attorney’s Office and from which the grand jury — because the grand jury matter is still alive and being thoroughly investigated, we require the Court to intervene and assist us as we try to force the contemnor to comply fully with our subpoena.

Howell then makes sure the government still is really using a grand jury and Faruqui — in a detail that probably parallels and precedes what happened with Stone’s case — explains that they’re still using the existing grand jury but plan to move onto a new one when the Mueller one expires.

Howell: So you are still presenting evidence to this grand jury that was being used by the special counsel’s office?

Faruqui: We — yesterday, anticipating that the grand jury may or may not — what its life cycle is, it’s a little unclear.

Howell: Well, I am very aware of its life cycle.

Faruqui: We are unaware. I apologize, Your Honor, Yes. It’s your grand jury; you certainly know.

We are trying to sort those issues out with the special counsel. However, we have reopened it yesterday in the grand jury, understanding that the current grand juries that are soon to expire; but with the intention that, when those expire, we will reopen a new one. We do plan to seek additional records, both in — and, potentially, additional testimony as well.

This exchange has significance beyond the Mystery Appellant matter, to Stone and (because the government insists there is are ongoing investigations pertaining to the stuff covered in Paul Manafort’s plea breach hearing) Manafort as well. This case might not even be considered a referral in Mueller’s report, given that it started in DCUSAO. But from Faruqui’s description — and Mystery Appellant’s invocations, at times, to only being bound by Presidential sanctions and turning this into a diplomatic incident — this is a very significant and serious investigation.

Howell, having read multiple secret filings that led her to believe this was about Russian interference in the US election, got really confused after reading Bill Barr’s 4-page memo declaring victory and then learning that something this big, that must, in some way, relate to Russian interference, is still pending.

Aside from being a testament to just how misleading Barr’s memo was, that such confusion was possible for someone privy to the details of the investigation should focus far more attention on the limited scope of Barr’s exonerations. They pertain just to Russian election interference (not, say, graft), and just conspiring with the Russian government (though, if it’s a Russian bank, the Mystery Appellant clearly counts as that). And even the election-related events continue only through the Transition, not afterwards.

The Mueller Investigation is over and Trump has declared victory, but it appears that what Mueller achieved was protecting significant aspects of it long enough to see them metastasize to new grand juries.

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

On Once and Future Mueller Grand Juries: The Texts Obtained from Andrew Miller Overlap with Roger Stone’s Voter Suppression

Yesterday, two events provided an indication of how extensive what at one time was the Mueller investigation was.

First, Chief Judge Beryl Howell unsealed enough of the Mystery Appellant challenge to reveal that that part of the investigation started in the DC US Attorney’s Office before Mueller got hired and continues. The Mystery Appellant started turning over stuff voluntarily last December, but prosecutors believe it withheld information. Mystery Appellant very clearly waited Mueller out, and it appears that prosecutors did not expect Mueller to finish when he did (which may suggest Bill Barr did shut Mueller down early). The government seems to have a pretty clear idea of what Mystery Appellant withheld.

One of the prosecutors on the case is one of the ones that picked up Paul Manafort’s case.

I’ll write more about what the Mystery Appellant shows up later.

The other piece of news is that Roger Stone’s associate, Andrew Miller, actually testified before a different grand jury, not the Mueller one, and got a follow-up subpoena requiring him to produce all his texts with Roger Stone from October 2016 to March 2017.

A former aide to political operative Roger Stone has turned over to a grand jury all of his text messages with Stone from October 2016 to March 2017, as well as the written agenda for Stone while he was at the Republican National Convention in 2016.

The aide, Andrew Miller, turned over the documents in response to a federal grand jury subpoena following his two-hour testimony last Friday before the body, according to communications between Miller’s lawyer and the government that were reviewed by POLITICO.

[snip]

Adding to the intrigue is the fact that Miller testified before a new grand jury rather than the one convened by Mueller that Miller was initially fighting, and that he was held in contempt over.

That may explain a few of the things we’ve seen recently.

First, recall that Mueller announced, on short notice, that he was done once Miller agreed to testify, but quit before he did testify (Mueller actually quit minutes before the hearing where Howell forced Miller to testify). I wondered then if there was some jurisdictional reason he did that, and this second grand jury may be the reason: that Mueller used his authority to ensure Miller did testify, but resigned in a way to ensure that the other grand jury had uncontested jurisdiction over this.

Now consider this redaction in the Mueller Report showing what appear to be two issues referred elsewhere.

The redaction btC-3 shows it pertains to either Stone or his case. I had suggested that it might be WikiLeaks (this part of the list is in alpha order). But MelissaN suggested it may be Roger Stone himself. This second grand jury (and a Rod Rosenstein comment that the WikiLeaks investigation never left EDVA) may support that.

Now consider the timeline in this post. It shows that the Stone dark money group that he used to prep claims that Hillary was stealing the vote, Stop the Steal, was active during precisely the period the government asked for Miller’s texts with Stone (this was the second incarnation of this group–Stone used an earlier one to harass Ted Cruz voters in advance of the GOP Convention). Indeed, the group pays Miller $5,000 right at the beginning of it (though he also received a few payments from Stone during the summer).

October 4, 2016: Stone tells Bannon to get Rebekah Mercer to send money for his “the targeted black digital campaign thru a C-4”

Following October 5, 2016: Mariia Butina and Aleksandr Torshin discuss whether she should serve as a US election observer; Torshin suggests “the risk of provocation is too high and the ‘media hype’ which comes after it,” but Butina suggests she would do it “Only incognito! Right now everything has to be quiet and careful.”

October 13, 2016: Stop the Steal pays Andrew Miller $5,000

October 23, 2016: Stone tweets out message saying Clinton supporters can “VOTE the NEW way on Tues. Nov 8th by texting HILLARY to 8888”

October 28, 2016: GRU officer Anatoliy Kovalev and co-conspirators visit websites of counties in GA, IA, and FL to identify vulnerabilities

October 30, 2016: Ohio Democratic Party sues Ohio Republican Party to prevent Stop the Steal voter suppression; Democrats also sue in NV, AZ, and PA

November 3, 2016: Filings in ODP lawsuit describing Stop the Steal (declarationexhibits)

November 4, 2016: Judge James Gwyn issues Temporary Restraining Order against Trump, Stone, and Stop the Steal

November 4, 2016: Guccifer 2.0 post claiming Democrats may rig the elections

November 7, 2016: Sixth Circuit issues a stay in OH TRO

December 14, 2016: Women versus Hillary gives $158.97 to CRAG

December 19, 2016: Stop the Steal pays $5,000 to Alejandro Vidal for “fundraising expenses”

December 19, 2016: Stop the Steal pays $3,500 to C Josi and Co.

December 21, 2016: Stop the Steal pays $1,500 to The Townsend Group

December 27, 2016: Stop the Steal pays $3,500 to Kristen [sic] Davis

December 28, 2016: Stop the Steal gives $94 to CRAG

December 29, 2016: Stop the Steal pays Jerry Steven Gray $4,000 for “fundraising expenses”

December 30, 2016: Stop the Steal pays 2,692 total to unnamed recipients

January 19, 2017: Stop the Steal pays $5,000 for fundraising expenses to Alejandro Vidal

February 8, 2017: Stop the Steal pays Kristen [sic] Davis $3,500 for “fundraising expenses”

February 15, 2017: Stop Steal pays Brad Boeck $862 for sales consultant consulting fee

Remember, too, that Andrew Miller once said he’d invoke the Fifth if asked to testify about his role in these dark money groups.

Miller had asked for “some grant of immunity” regarding financial transactions involving political action committees for which he assisted Stone, according to Alicia Dearn, an attorney for Miller.

On that issue, Miller “would be asserting” his Fifth Amendment right to refuse to answer questions, Dearn said.

And consider that wire fraud variously appeared among the crimes listed on the various warrants targeting Stone (these particular warrants would likely have been the ones issued during the period when Miller was most actively challenging his subpoena).

  • Beryl Howell, CFAA: include “all crimes” (18 U.S.C. § 3 (accessory after the fact); 18 U.S.C. § 4 (misprision of a felony); 18 U.S.C. § 371 (conspiracy); 18 U.S.C. §§ 1505 and 1512 (obstruction of justice); 18 U.S.C. § 1513 (witness tampering); 18 U.S.C. § 1343 (wire fraud); 18 U.S.C. § 1349 (attempt and conspiracy to commit wire fraud), and 52 U.S.C. § 30121 (foreign contribution ban)
  • Beryl Howell, CFAA: includes “all crimes”
  • Beryl Howell, CFAA: includes “all crimes”
  • Beryl Howell, CFAA: ¶¶ 35-40 discuss Stone’s communications with WikiLeaks and Julian Assange: includes “all crimes”
  • Rudolph Contreras, CFAA: ¶ 24 discusses private Twitter message between Stone and Guccifer 2.0: includes “all crimes”
  • James Boasberg, CFAA: includes “all crimes”
  • James Boasberg, CFAA: includes “all crimes”

All of that would be consistent with the possibility that Mueller formally referred (rather than simply passing off) two distinct investigations as he finished up, based on these interim warrants that included wire fraud, one of which focuses on his voter suppression efforts.

Finally, note that by referring this, Mueller may have put it in a place where the decisions Rod Rosenstein made about how aggressively to charge crimes would no longer hold.

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.