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Bamford’s Silence about How Maria Butina Got Thrown Back into Solitary

A number of people have asked me what I make of this piece from James Bamford, pitching the case against Maria Butina as a grave injustice, just after Paul Erickson (who may be the real intended beneficiary of this piece) was charged in the first of what is likely to be two indictments, and as the government extends her cooperation by two weeks.

There are parts that are worthwhile — such as his argument that because Butina didn’t return a bragging email from JD Gordon, it suggests she wasn’t trying to recruit him.

There are other parts I find weak.

Bamford oversells the degree to which the press sustained the serial honeypot angle — after all, some of us were debunking that claim back in September, when he appears to have been silent — without mentioning the fact that Butina first started proffering cooperation with prosecutors, presumably against Paul Erickson and George O’Neill, on September 26. The word “visa” doesn’t appear in the article’s discussion of Butina’s status as a grad student, leaving unrebutted the government’s claim that Butina chose to come to the US as a student because it provided travel privileges that served her influence operation. Bamford (who hasn’t covered the Mueller investigation) grossly overstates the significance of Mueller’s choice not to integrate Butina’s case into his own investigation. He also falsely treats all counterintelligence investigations into Russia as one ongoing investigation (see this post for my ongoing complaints about virtually everyone doing the same). He suggests that Butina will need to be traded for Paul Nicholas Whelan, when the government has already said she’ll be deported once she serves her sentence (which will likely be time served). He quotes Putin’s interest in Butina’s case, without noting that Russia has only shown the interest they showed in her in one other defendant, Yevgeniy Nikulin. And those are just a few of the details with which I take issue.

But these passages, in particular, strike me as problematic.

Since August 17, Butina has been housed at the Alexandria Detention Center, the same fortresslike building that holds Donald Trump’s former campaign manager, Paul Manafort. On November 10, she spent her 30th birthday in solitary confinement, in cell 2F02, a seven-by-ten-foot room with a steel door, cement bed, and two narrow windows, each three inches wide. She has been allowed outside for a total of 45 minutes. On December 13, Butina pleaded guilty to conspiracy to act as an unregistered agent of the Russian Federation. She faces a possible five-year sentence in federal prison.

[snip]

On November 23, 2018, Butina went to sleep on a blue mat atop the gray cement bed in her cell, her 81st day in solitary confinement. Hours later, in the middle of the night, she was awakened and marched to a new cell, 2E05, this one with a solid steel door and no food slot, preventing even the slightest communication. No reason was given, but her case had reached a critical point.

That’s true not just for the way Bamford obscures the timeline here — suggesting she was always in solitary — but because by obscuring that timeline, Bamford serves to hide that it was Bamford’s own communications with and about Butina that got her thrown back into solitary.

Butina’s lawyers laid out her protective custody status in a filing on November 27.

In addition to general population prisoners, the Alexandria detention center houses federal detainees awaiting trial before this court in “administrative segregation,” more commonly known as solitary confinement. This form of restrictive housing is not a disciplinary measure, but is purportedly used by corrections personnel to isolate inmates for their own protection or the safe operation of the facility.

[snip]

Between her commitment at the Correctional Treatment Facility in Washington, DC and then Alexandria detention center, Ms. Butina has been isolated in solitary confinement for approximately 67 days straight. Despite a subsequent release into general population that came at the undersigned’s repeated requests, correctional staff reinstated her total isolation on November 21, 2018 although no infraction nor occurrence justified the same.

The timeline they lay out makes it clear Butina was in protective custody from July 15 to around September 21, but then placed in the general population. The timeline is absolutely consistent with Butina agreeing to cooperate in order to get placed in general population (the motion to transport her was submitted September 21, so at the same time she was placed in the general population). The fact that the government uses solitary to coerce cooperation from prisoners deserves condemnation, and that definitely seems to have been at play here.

But even at a time she had active orders to be transported for cooperation (the court authorized a second request for transfer from late October through the time she pled guilty), Butina was placed back in solitary. The timeline her defense attorneys lay out, however, suggests that Bamford was incorrect in stating she was in solitary on her birthday on November 10. She wasn’t moved back to solitary until November 21.

On the afternoon of November 21, 2018, counsel received a never-before urgent phone call from a jailhouse counselor regarding Ms. Butina. The basis for that call was her return to solitary confinement. The undersigned called Chief Joseph Pankey and Captain Craig Davie in Alexandria in response. After conferring with them, however, it has become clear that the facility’s use of administrative segregation is a false pretext to mask an indefinite solitary confinement that is unjust and without cause.

Staff purported to base their decision to segregate on Ms. Butina referring a fellow inmate to her lawyers (that is, she gave her lawyers’ phone number to a fellow inmate), but staff did not find a disciplinary violation—major or minor. Chief Pankey and Captain Davie then resorted to the decision being “for her safety,” knowing that administrative segregation disallows an appeal internally.

As of the date of this filing, Ms. Butina has now been in solitary confinement for 22 hours a day for 6 consecutive days with no prospective release date. According to at least one deputy, the move to solitary confinement has also not been entered into the Alexandria detention center computer system, and Ms. Butina’s status is disclosed only by a piece of tape with handwriting attached to the guard stand.

And that’s important because of a detail that Bamford remains utterly silent about.

As laid out in a hearing transcript, around that time, the government recorded calls from Butina to “certain journalists” suggesting the journalist consult someone who had her lawyers’ first name.

DRISCOLL: The conflict raised by the government, I think the government does not think there’s been any violation of order by defense counsel, but due to circumstances regarding recorded calls that the government had of Ms. Butina and to certain journalists, the government raised the concern to us; and we wanted to raise it with the Court so that there would be no question when the plea is entered that the plea is knowing and voluntary, and we wanted to kind of preemptively, if necessary, get Ms. Butina separate counsel briefly to advise her on her rights, to make sure that she got her constitutional right to conflict-free advice.

[snip]

MR. KENERSON: The basic nature of the potential conflict is that this Court, I think, issued in an order back in September regarding Local Rule 57.7. The government has some jail calls from Ms. Butina in which she is talking to a reporter numerous times on those calls. She makes some references on those calls to individuals who could be — we don’t know that they’re defense counsel, but shares first name with defense counsel potentially acting as go-between at a certain point. That’s part one of the potential conflict. Part two is —

THE COURT: Wait. So, wait. Stop. Part one is a potential conflict. Do you see a conflict because you believe she’s acting at the behest of her attorneys or as a conduit for her attorneys to violate the Court’s order?

MR. KENERSON: It’s — someone viewing that in the light least favorable to defense counsel might be able to argue that this is some quantum of evidence that defense counsel possibly were engaged in assisting Ms. Butina in violating the Court’s order.

THE COURT: All right. But that goes to whether counsel, with the aid of his client, violated my — and I’ll use the colloquial term for it, my “gag order.” How does that go to — and maybe you’ll tell me; I cut you off. But how does that go to the voluntariness of her plea?

MR. KENERSON: So if there is an allegation that defense counsel assisting her somehow in violating the, again, to use the colloquial term the “gag order,” that would give defense counsel a reason to want to basically plead the case to avoid that potential violation from becoming public. And curry favor with the government.

Driscoll went on to explain why his client was talking to a journalist with whom she had a friendship that “predates all of this” in spite of her being subject to a gag order.

The circumstances, just so the Court’s aware, Ms. Butina has a friendship with a particular journalist that predates all of this. The journalist was working on a story about Ms. Butina prior to any of this coming up, prior to her Senate testimony, prior to her arrest, and had numerous on-the-record conversations with her prior to any of this happening. At the time the gag order was entered, I took the step of informing the journalist that, although he could continue to talk to Ms. Butina, he could not use any of their post gag-order conversations as the basis for any reporting, and the journalist has not, in any event, made any public statement or done any public reporting on the case to date.

Bamford’s own description of “a number of long lunches starting last March at a private club in downtown Washington, D.C.” make it clear he is the journalist in question.

Judge Chutkan was none too impressed with Driscoll’s advice.

THE COURT: Well, putting aside the questionable advisability of having your client talk to a reporter while she is pending trial and there’s a gag order present — and I understand you told the reporter that they couldn’t make any public statements, but as a former criminal defense attorney myself, I find that curious strategy.

Now, to be clear: Bamford never did publish anything on Butina during the period when the gag was in place (Chutkan lifted the gag on December 21). Even if Bamford had published something during that period, so long as Bamford did respect Driscoll’s advice that their ongoing conversations should be off the record, there was nothing Bamford could publish that would directly reflect her own statements.

And there’s very good reason to question whether the government threw Butina back into solitary because Bamford was reporting on her treatment. That is, it’s not outside the realm of our criminal justice system that Butina was placed back in solitary because a reporter had been tracking her case since before the investigation became public.

Instead of laying out the case for that, however, Bamford instead hides his own role in the process.

To be honest, I think the story is better understood as one about Paul Erickson and not Maria Butina. This story won’t help her at sentencing — that’s going to be based on her cooperation, not what a journalist who has already antagonized the government says about her. But it may help to spin Erickson and George O’Neill’s interest, as well as that of the NRA.

The public record certainly sustains the case that the government used solitary to induce Butina to cooperate — presumably to cooperate against Erickson and O’Neill. That certainly merits attention.

But then the government also used solitary to cut off Butina’s communications with Bamford himself. If it’s this story the government was retaliating against, Bamford should say that, rather than obscuring it.

This is a story about America’s reprehensible use of solitary confinement. But it doesn’t explain a key part of that process here. Given that the story seems to most benefit Erickson, I find that silence remarkable.

The Geography of Maria Butina’s Cooperation

The government had another embarrassing docket fail Friday, like the cut-and-paste release that disclosed charges filed in EDVA against Julian Assange.

Yesterday, a motion for permission to transport Maria Butina was briefly published to the docket, then withdrawn, but not before reporters who get automatic docket updates got copies. And the details in the filing suggest that Butina’s cooperation may be more limited than Mueller watchers would like.

The docket fail may stem from complaints that the judge in Butina’s case, Tanya Chutkan, made back on December 6, about how many details of Butina’s imminent plea deal attorneys were trying to keep sealed.

THE COURT: Why? Why is the fact that — you know, Mr. Driscoll, I have to tell you, I’m a little perplexed. In this case, you’ve filed several motions for transportation of your client to the U.S. Attorney’s Office, and you asked that that information be placed under seal; and that was certainly appropriate, and the government joined in that request. And I placed those requests under seal because the possibility of a defendant’s cooperation is always something that is very sensitive.

Since Butina’s plea, those prior motions to transport her that Chutkan referenced in her complaint — one dated September 21 asking to move her for a September 26 interview but lasting through October 25, and one dated October 23 specifically authorizing transport on November 7 but lasting through December 6 — were unsealed. Presumably, that’s why Friday’s order got filed unsealed, as well.

The problem, per CNN’s report, is that the latest one reveals Butina may be transported to testify before a grand jury in DC.

Russian political conspirator Maria Butina is set to meet with federal prosecutors in Washington and Virginia over the next several weeks, according to a court filing that was posted and quickly removed from a federal docket Friday afternoon.

Butina pleaded guilty Thursday to one criminal count of acting as an illegal foreign agent in the United States.
US attorneys may want to interview Butina in their offices well into January, according to the filing. She may also be requested to appear at the grand jury in Washington, according to the filing, which is a request to a federal judge to allow the currently detained Russian to be transported by the FBI for cooperation interviews.

“The purpose of the transfer is to interview the Inmate concerning an ongoing federal investigation,” the filing says.

So in addition to providing details about Butina’s future travel (possibly even a date) that might pose a security risk or put her in physical danger, it includes grand jury information that is supposed to remain secret.

All the filings together, however, reveal something of more interest: Butina has been proffering information to the Feds, probably primarily against her boyfriend, Paul Erickson, since September 26.

She was submitting to interviews in this investigation at a time when Erickson was regularly visiting her in jail.

Despite the ongoing investigations and his reported ties to Butina’s activities, Erickson frequently visits her in jail, two individuals with knowledge of the meetings told The Daily Beast. Erickson apparently expressed frustration to friends over the fact that jail staff forced him to sign into the main visitor log, fearing the media would find out.

You know how everyone hopes that a cooperating witness might wear a wire? In Butina’s case that could, potentially, have happened during her meetings with Erickson (though in the context of a jail visit, would hardly be necessary to capture the couple’s conversations). The period of her cooperation also sort of matches the time when she got moved from protective custody into the general population in Alexandria (67 days after her arrest would be September 20); she was subsequently put back in solitary, possibly because (as was discussed at the December 6 hearing) she had been communicating with the outside world via other detainees and at least one journalist.

While those revelations are of interest, what’s equally notable is the geography described, at least in the public filings. As noted, CNN says she’s cooperating on a federal investigation, singular, which is what the past motions said as well. And the locales to which she can be transported in the public filings — an interview room attached to the Alexandria jail, the DC US Attorney’s office, and a DC grand jury — don’t include Robert Mueller’s office, which is a different location in DC. There may be some involvement of the EDVA US Attorney’s Office (which might bode ill for the NRA, which is headquartered in that district). But thus far, there’s no sign that she’s being transported to cooperate with Mueller’s office.

That’s consistent with her plea, which only describes cooperation with the DC US Attorney’s office.

The plea deal is in no way definitive — after all, Mike Flynn’s plea said he’d cooperate “with this Office,” meaning SCO, but he has recently told us about cooperating with “other components of the Government” and the addendum to the government’s sentencing memo seems to reflect at least one criminal investigation outside of Mueller’s mandate (which is widely believed to involve Turkey).

But Butina has already been in custody almost as long as she’s likely to be sentenced to, meaning to do much more would entail holding her in jail to get her to cooperate for no benefit, something her lawyers presumably would be unwilling to countenance. So it may well be that she has told investigators about her boss (who, of course, retired suddenly not long ago) and her boyfriend. She may well even had gotten Erickson to incriminate himself in a venue where prosecutors easily collected it.

There’s no evidence, however, that she’s cooperating with Mueller or expected to.

Birds of a Feather: Comparing ‘Sparrows’ Chapman and Butina

Name: Anna Vasilyevna Kushchyenko Chapman Maria Valeryevna Butina
Born:

Place:

23 February 1982

Volgograd, Volgograd Oblast, Soviet Union

November 10, 1988

Barnaul, Siberia, Soviet Union

Education Economics (Masters)

Moscow University or RUDN University (unclear)

Moscow, Russia

Political Science, teaching

Altai State University

Barnaul, Siberia, Russia

Marital Status: Divorced (2006) Single
First Entered U.S.: 2009 2011
Visa Y/N: Unclear Yes
Visa Type: Unclear – Acquired residency in U.S. as British citizen by marriage Initially traveled to/from U.S. with Russian official Aleksandr Torshin; applied for F-1 student visa in 2016
Work in U.S.: CEO, PropertyFinder LLC (real estate sales) Special assistant to Aleksandr Torshin; gun rights activist; student
Arrested: 06/27/10 07/15/18
Charged with: 18 USC 371 Conspiracy,

18 USC 951 Agents of Foreign Governments

18 USC 371 Conspiracy,

18 USC 951 Agents of Foreign Governments

Though Marcy has already discussed Maria Butina’s recent attempt to avoid prosecution as a Russian spy under 18 USC 951, it’s worth comparing two Russian women charged on different occasions with violating the same act.

There are some similarities including the hair color, and some key differences — Chapman and Butina aren’t clones. Their behavior and achievements in the U.S. on behalf of Russia suggest a change in methodology over time.

The indictment charging Chapman included her mission, decrypted from a 2009 message sent to Chapman and a co-conspirator:

Butina’s mission appears to be similar, but there’s no decrypted message included in the Department of Justice’s Arrest Affidavit to compare with that in Chapman’s indictment. We must rely on Butina’s translation of another document she shared by email with ‘US Person-1,” believed to be Paul Erickson.

Both Chapman and Butina had missions or assignments; Butina’s appears to be worded more loosely but a full text of the email is not publicly available to make a more accurate assessment. Both women were expected to get close to and develop relationships with U.S. policy makers.

What may explain why Butina’s mission is worded a little differently: between the time Chapman receives her assignment and Butina shares her mission with U.S. Person-1, the policymakers have changed from Democrats to Republicans.

The Democrats were also much more difficult and distant; we can see in other interactions between Illegals Program spies including Chapman that targets weren’t as readily engaged as U.S Person-1. Though Americans who interacted with Illegals Program spies were amazingly credulous, the spies still didn’t get very close to their intended target, Hillary Clinton.

By the time Butina began her work in 2011, methods had changed. Instead of tradecraft seen in the Buryakov case circa 2013-2015 and the earlier Illegals Program circa 2010, Butina is initially accompanied by a Russian official – no need for Butina to implement additional traditional tradecraft to report intelligence when they are their own channel, subordinate spy to superior and minder. Once a relationship between Butina and US Person-1 had been well established, tradecraft was even more nominal – we don’t see in the Arrest Affidavit anything more complicated than a commercially available laptop computer and cellphone.

The descriptive name of the assignment on which Butina worked also indicated a shift — “Project Description ‘Diplomacy'” —  to building constructive (konstrucktivnyh) relations with an organization central to influence over the Republican Party, with an understanding that they (Russia in concert with Political Party 1 and Gun Rights Organization) had some ‘right to negotiate’. This is far more substantive than Chapman’s assignment to seek and develop ties with key contacts.

Spying operations changed along the arrest and deportation of the Illegals Program spies and in sync with a transition in U.S. Politics:

— The shift in Congress from Democratic Party to GOP with the 2010 election may have been a trigger for a new approach once the 112th Congress was sworn in;
— The transition happened in sync with the embrace of Torshin by the National Rifle Association (NRA);
— Change from Clinton to Kerry as Secretary of State likely played a role given the expectation Clinton would be the front runner for the Democratic Party’s presidential nomination.

But one key factor may have changed the tack Torshin and Butina took compared to Chapman and the Illegals: the Supreme Court decision in Citizens United, Appellant v. Federal Election Commission on January 21, 2010.

Now there was a means to funnel money to meet Torshin’s and Butina’s efforts without the level of difficulty other methods might have had before 2010. They could identify, meet, target, influence, and point to a candidate the NRA could fund using Russian money — in effect, developing and recruiting unwitting (or witting) agents.

They collected Republican members of Congress to exploit as useful idiots, in other words.

No wonder Butina had to hide behind a seemingly innocuous student status. Besides masking the reason why she was in the U.S., she needed to appear lower on the cultural status scale than the GOP’s easy marks on which she worked. In contrast, Chapman only needed the appearance of a real estate gig to enable her to poke around.

Note again in the excerpt from the DOJ’s Arrest Affidavit the ‘right to negotiate’ — does this suggest that Citizens United, combined with NRA’s welcome, that Russia felt it had an alternative (read: illegitimate) path to diplomacy, circumventing a Democratic White House between 2011 and 2017?

It’s clear something changed after 2010 at the NRA with regard to allocation of money between lobbying and campaigning.

Never mind that gun control advocacy group the Brady Foundation was outspent by an overwhelming amount. The NRA shifted its practice dramatically in 2012 from spending on lobbying instead to campaigning, just about the time Torshin had fully integrated Butina into a gun rights advocate as his “special assistant.”

In 2012 the NRA also transitioned away from relying as heavily on the  American Legislative Exchange Council (ALEC), doing more of its policy work and outreach directly through GOP candidates. ALEC executed a PR feint — backing away publicly from gun rights issues and the Stand Your Ground laws it helped promote — but in reality it was ceding to the NRA these efforts because ALEC was no longer needed after Citizens United as a legislative front. The NRA could handle their issues directly with candidates under the guise of campaign support.

The rest is history, with Butina taking selfies with NRA’s president David Keene and various GOP candidates to document her benchmarks along the way through Trump’s 2016 campaign.

(Conveniently, Trump trademarked his tagline, Make America Great Again, in November 2012.)

Butina’s legal team may argue against a charge of violating 18 USC 951 as a negotiating chip, claiming she didn’t spy. If either of these red-capped sparrows could have claimed they weren’t a spy, it wasn’t Butina. Her mission was successful in a way Anna Chapman could only have dreamed.

A Day after Maria Butina Argues Influence Operations Shouldn’t Be Charged as Spying, Plea Negotiations Start

As a number of people reported, on Friday, the government and Maria Butina got the court to delay her case by two weeks so they can try to resolve it, suggesting they’re in plea negotiations.

In support of this motion, the parties state that they continue to engage, as they did prior to yesterday’s defense filing, in negotiations regarding a potential resolution of this matter and that those negotiations would be potentially hindered by simultaneously engaging in motions practice. The parties further agree that to make the best and most efficient use of the Court’s time and resources to decide any motions in the event those negotiations are unsuccessful, it would be prudent to continue the upcoming hearing and its accompanying motions schedule for approximately two weeks.

As part of that delay, Butina withdrew a motion submitted on Thursday without prejudice (meaning she can resubmit it if plea talks fail). The motion asked the court to declare 18 USC 951 (which is what the US government charges foreign spies with) unconstitutional as applied to influence operations.

The motion lays out a bunch of hypothetical cases with vague parallels to Butina’s to lay out the danger of using 951 to prosecute those conducting influence operations. Some are farcical, in which a thoughtful grandmother takes on the role that Aleksandr Torshin does in Butina’s operation.

An unregistered, lonely grandson from an unpopular, provincial country accepts the advice of his grandmother about how to make friends. She thoughtfully directs him to go to prayer groups and same-interest meetups to meet people with common interests. He violates section 951 if the grandmother is a foreign official, even though the grandmother provided such direction while visiting the United States on holiday.

A non-hypothetical comparison, however, is more apt, arguing convincingly that an Israeli influence tour might be prosecuted if Israelis were treated with the suspicion Russians currently are.

Consider recent events regarding Israeli soldiers touring cities across the United States for the 11th Israeli Soldiers Tour to speak at venues, including college campuses, to raise awareness of the realities of their service.10 Sponsored by StandWithUs, an Israel advocacy group funded and supported by hasbara organizations and the Israeli government, these soldiers travel the United States to conduct influence operations intended to pacify U.S. views, change foreign policy, and put a human face on the Israeli military. Is there any doubt that such unregistered agents could be charged under the same interpretation of section 951 used against Maria– for operating in the United States as “agents” of Israel when directed to go to U.S. schools and then brief their IDF11 military commanders on their reception in the United States? Is there any doubt that they wouldn’t be? The point is not that such activities are improper. They are not. However, they are precisely the kind of educational exchanges and necessary uninhibited marketplace of ideas that are sought and encouraged when foreign students and visitors like Maria are admitted to U.S. universities.

The motion ultimately argues that before using 951 against an influence operation the statute should have the kind of limits that exist in the FARA statute.

To resolve the constitutional problem presented by the statute’s broad application, this court should—at least as to political activities—narrow the sweep of section 951 so that it aligns more closely with the constitutional safeguards recognized by Congress in the Foreign Agent Registration Act (known as “FARA”).

Worse, as for cases involving ‘political activities,’ it allows the government to pursue harsher penalties with additional restraints on individual liberty, compare 18 U.S.C. § 951 (10 years imprisonment) with 22 U.S.C. § 618 (5 years imprisonment), without enduring the additional cost of satisfying higher burdens of proof, see 22 U.S.C. §§ 611(o) and 618(a) (authorizing prosecution only for “willful” violations and specific kinds of “political activities”), thus circumventing the inherent check on government overreaching that the Fifth Amendment Due Process Clause was designed to instill. If left unchecked, federal investigators and prosecutors will have strong incentives to prosecute political activity cases under section 951 instead of FARA, so they can reap the law-enforcement benefits of section 951’s penalties without paying the price of higher burdens of proof.

To avoid that distortion, this court should consider the catch-all, sweeping application of section 951 when applied to political activities, in comparison with the statutory restraints of FARA as applied to the same, in assessing whether section 951 exposes Maria to the risk of arbitrary enforcement. Such an approach would provide an accurate answer to the doctrinal question at hand: whether section 951 is constitutionally deficient (and/or in need of a limiting construction) because it “confers on police a virtually unrestrained power to arrest and charge persons with a violation” thereby permitting “policemen, prosecutors, and juries to pursue their personal predilections.” Kolender, 461 U.S. at 358.

It’s a fair argument, at least in this case. Back in August, I did two posts pointing out there was little difference between what Paul Manafort was accused of in his DC case and Maria Butina was accused of.

It’s unclear whether the plea negotiations are a response to this motion or not. Some of the evidence against Butina described thus far suggests her operation has the approval of Putin himself (though the Israeli StandWithUs tour is the kind of thing Bibi Netanyahu likely loves). But other evidence — such as a claim she’s coordinating with FSB (which, after all, is the closest analogue to the FBI) appears sketchy. So while it’s possible that Butina is a privately funded spy running an influence operation on behalf of the Russian government, it’s also true that to prove that, the government may have to share more classified information than they care to. And while I’m skeptical the constitutional challenge to 951 would work (in part because courts are loathe to tamper with national security law, in part because the claim that Butina chose to come to the US as a student does seem to have been chosen with the influence operation in mind), the government probably wants to retain their ability to use it with clearcut spies engaging in influence operations.

So I could imagine the government might be willing to settle this with either a FARA plea (which would further reinforce the FARA regime Mueller has introduced) or a visa fraud charge, particularly if Butina were willing to implicate Paul Erickson and other Americans who had helped her efforts.

Just before Mike Flynn Was Interviewed by the FBI, Putin Increased His Participation in the National Prayer Breakfast

There are twin filings (gag, bail) in the Mariia Butina case that I will write up separately. For the moment, I wanted to point to this passage of the government’s motion opposing Butina being released.

On January 26, 2017, [Paul Erickson] asked an acquaintance for National Prayer Breakfast tickets, noting that tickets could “advance the cause of US/Russian reset (on our terms).” [Erickson] later noted, “I was ahead of this in December, but last weekend Putin decided to up his official delegation – if we can accommodate them, we can empower rational insiders that have been cultivated for three years.”

I note it solely for the timing: it shows that the weekend of January 21-22, 2017, Putin decided to increase the seniority of his representatives attending the National Prayer Breakfast, which took place on February 2, and that decision filtered down to Erickson and Butina.

At the time, Trump had plans to meet with Aleksandr Torshin, plans which were scrapped at the last minute.

The event had been planned as a meet and greet with President Trump and Alexander Torshin, the deputy governor of the Bank of Russia and a close ally of President Vladimir Putin, in a waiting room at the Washington Hilton before the National Prayer Breakfast on Feb. 2. Torshin, a top official in his country’s central bank, headed a Russian delegation to the annual event and was among a small number of guests who had been invited by Prayer Breakfast leaders to meet with Trump before it began.

But while reviewing the list of guests, a White House national security aide responsible for European affairs noticed Torshin’s name and flagged him as a figure who had “baggage,” a reference to his suspected ties to organized crime, an administration official told Yahoo News. Around the same time, a former campaign adviser alerted the White House that the meeting could exacerbate the political controversy over contacts between Trump associates and the Kremlin, another source familiar with the matter said.

It’s remarkable how many events relevant to the Mueller inquiry happened during those few weeks (and remember — Butina’s prosecution is being handled separately).

Update: This seems to suggest Butina believed there was a letter behind the earliest 2017 coverage of her (probably this Tim Mak story).

In early 2017, in response to the Russian Official’s comment to her that a reporter had contacted him about his relationship to the defendant, President Putin, and U.S. Person 1, among others, the defendant told the Russian Official that she had received inquiries from the same reporter. She told the Russian Official, “under no circumstances should you contact him. You didn’t even see the letter at all.”

Spy versus Spy: The Two Alleged Agents of Foreign Powers Sitting in the Alexandria Jail, Part Two (Mariia)

In this post, I laid out the difference between two laws criminalizing foreign agents of influence, 22 USC 611 et seq. (FARA) and 18 USC 951. Paul Manafort is charged with the former; Rick Gates, Mike Flynn, and Sam Patten have also all pled guilty to FARA related crimes; Mariia Butina is accused of the latter.

I think, particularly as Mueller’s investigation begins to put real teeth in FARA (and as nation-state spying hides under new kinds of cover and funding arrangements), the border between the two crimes will become increasingly tenuous. A comparison of Butina and Manafort shows some of the ways that’s clear.

Butina’s lawyer pitches her actions as lobbying

In response to her charges, her attorney Robert Driscoll has repeatedly denied she’s an agent of Russia, not by denying she did what Aleksandr Torshin instructed her to, but by claiming that hers is just a regulatory filing case.

“This is not an espionage case, this is not a spy case, this is a regulatory filing case,” in which Butina didn’t file the correct paperwork with the Justice Department, Driscoll told Robnson in arguing why she should be freed pending trial.

“She’s not an agent of the Russian Federation,” Driscoll told reporters after the hearing.

In a bid to overturn Magistrate Deborah Robinson’s decision to deny Butina bail, Driscoll minimizes the Russian’s activities as “going to dinners among intellectuals and foreign policy wonks to discuss U.S.-Russia relations, attending two National Prayer Breakfasts, and booking hotel rooms at the Washington Hilton, if true, is anything but an ‘obvious’ danger to the public.” He argues, “the allegations do not involve spying, tradecraft, classified information, or any other hallmarks of an espionage case.” To rebut any claim of covert operation, Driscoll points to the fact that one of the actions in her indictment — a dinner hosted by her unindicted co-conspirator, George O’Neill, just after the National Prayer Breakfast — was hosted by O’Neill and written up in the press (one of two stories he cited was written by O’Neill).

She is accused of arranging dinners to promote better relations between Russia and the United States although the very dinner that is listed as a predicate act for her alleged crimes was written about in Time Magazine and the American Conservative—hardly covert activity—and, in actuality, was initiated, organized, and directed by an American citizen, not the Russian government.3

He argues that the government charged Butina with section 951 as a tactical move, to make it easier to prosecute political activity (I’m not a lawyer, but I’m virtually certain he mis-states what the materials say about exempting political activity, not least because, per other materials, section 611 can be a subset of a section 951 violation).

To distract from the frailty of its charges, the government reprises that Ms. Butina is charged under section 951 and not FARA. However, that charging decision alone contradicts the Justice Department’s own policies, and perhaps was made as an attempt to aggrandize her conduct and mischaracterize her innocent political interest as nefarious.

That is, the Department of Justice (“DOJ”) Criminal Resource Manual makes a distinction between section 951 and a FARA violation. It describes FARA under section 611 et seq. as requiring an agent of a foreign principal engaged in political activities to register. See U.S. Dep’t of Justice, United States Attorneys’ Manual 9-90.700 and 9-90.701; and see Criminal Resource Manual at 2062. It also discusses other federal statutes like section 951, which is “aimed at persons loosely called foreign agents” but specifically exempts section 951 from applying to “foreign agents engaged in political activities.” Id. In plain English, DOJ further notes among frequently asked questions that section 951 is only “aimed at foreign government controlled agents engaged in non-political activities.”5

The government’s April, 2018 search warrant sought evidence of a potential violation under FARA.

[snip]

[A]lthough such allegations are unfounded and untrue, and although the government’s searches revealed no hidden transmitters, wads of cash, counterfeit passports, and plane tickets back to Moscow, the government still decided to paper a case against Ms. Butina under section 951. This decision shows that the government desired to overcharge and inflate her conduct for tactical advantages versus act with restraint or, at a minimum, be consistent with the DOJ and National Security Division’s own publicized understanding of appropriate charges.

And Driscoll doesn’t even concede she violated FARA.

[F]or reasons only it is aware, the government has charged Ms. Butina under 18 U.S.C. § 951 rather than the Foreign Agent Registration Act (“FARA”), 22 U.S.C. § 611 et seq., which generally carries civil penalties and much less severe criminal penalties (for circumstances far more egregious than the facts alleged here). Much like a FARA case, the government does not allege that Ms. Butina undertook any independently illegal activities in the United States. The only thing that made her alleged conduct illegal, if true, is that she did not notify the Attorney General prior to undertaking it.

[snip]

At bottom, the government’s case appears to be a novel attempt to stretch 18 U.S.C. § 951 to cover the activities of a foreign national student under the theory that her communications (about non-classified public source material) with contacts in her home country made her an “agent” of that country. The serious charges against her should be viewed in that context, which makes this case distinctly different from a typical section 951, “espionage-like or clandestine behavior” case.4

The lobbying included in Butina’s alleged crimes

To some extent, Driscoll is right: the government’s description of the allegations against Butina does focus closely on activity that might fall under FARA’s political activities (though, as noted, he cites a DOJ statement that suggests sections 611 and 951 are mutually exclusive, when by my understanding sections 611 can be a part of 951).

Many of the activities Butina is alleged to have done involve things that might be classified as lobbying. In her arrest affidavit, DOJ describes how Butina, with help from Paul Erickson, identified a network of influential Americans, including the NRA, to whom she could pitch closer relations with Russia. George O’Neill helped Butina set up a series of “friendship and dialogue” dinners. A number of her activities, such a publishing an article in The National Interest, are precisely the kinds of things FARA attempts to provide transparency on. This is where Driscoll gets his claim that Butina only “arrang[ed] dinners to promote better relations between Russia and the United States.”

Butina was directed by Aleksandr Torshin

A number of the allegations would support either a FARA or 951 violation.

The affidavit makes it clear she was following the directions of Aleksandr Torshin, the Deputy Governor of Russia’s Central Bank and as such an official representative of the government.

On the night of the election, for example, she asked for orders from Torshin, “I’m going to sleep. It’s 3 am here. I am ready for further orders.” The two moved to WhatsApp out of Torshin’s concern “all our phones are being listened to.” It’s clear, too, she and Torshin were hiding the role of the Russian government behind her actions. When she sent a report on a conference to establish a dialogue with US politicians, she said it “must be presented as a private initiative, not a government undertaking.”

The government even presented proof that Butina’s actions were approved by people close to Putin himself.

On March 14, 2016, Butina wrote O’Neill that what DOJ calls a  “representative of the Russian Presidential administration” had expressed approval “for building this communication channel,” suggesting she and Torshin had direct approval from Putin. “All we needed is <<yes>> from Putin’s side,” Butina explained to O’Neill.

With one exception, Driscoll largely offers bullshit in response to the government’s evidence she operated as a Russian government agent (indeed, his recognition that Butin advertised being Torshin’s special assistant on one of her business cards confirms that she continued to work for Torshin). He includes a letter of grad school recommendation for Butina for Columbia as proof of … it’s not clear what, particularly since Torshin includes his government affiliation on the letter.

Still: Paul Manafort was operating on behalf of a foreign government while Viktor Yanukovych remained in power, yet DOJ charged him with FARA, not section 951. The bar to meet foreignness under FARA is broader than it is under section 951, but lobbying for a foreign government can be sufficient to it. Yet Butina got charged under section 951, not FARA.

Paid by an oligarch

The exception to my claim that Driscoll offers little to rebut (in court filings — his statements to the press are another issue) that Butina was directed by the Russian government is the issue of her funding, which the government notes comes from an oligarch that Butina identified to the Senate Intelligence Committee as Konstantin Nikolaev.

Her Twitter messages, chat logs, and emails refer to a known Russian businessman with deep ties to the Russian Presidential Administration. This person often travels to the United States and has also been referred to as her “funder” throughout her correspondence; he was listed in Forbes as having a real-time net worth of $1.2 billion as of 2018. Immediately prior to her first trip to the United States in late 2014, Butina engaged in a series of text messages with a different wealthy Russian businessman regarding budgets for her trip to the United States and meetings with the aforementioned “funder.”

Driscoll points to this to disclaim a tie between her and the Russian state.

[T]he Russian Federation did not pay for her travel to the United States, her tuition, her living expenses, or make any payments to her at all.

This is actually an interesting point, because while FARA requires only that a person be working as an agent of a foreign principal (which might include, for example, an oligarch), section 951 requires that the agent be working on behalf of a foreign government. Butina no doubt still qualifies, given her tie to Torshin.

But particularly when comparing Manafort and Butina, both of whom worked at the border between laundered oligarch cash and government officials, the detail is of particular interest. If Russia outsources its intelligence operations to oligarchs (the Internet Research Agency’s Yevgeniy Prigozhin is another example), will that intelligence still qualify as spying under section 951?

In any case, thus far, the allegations against Butina and Manafort are fairly similar: both were hiding the fact that their political activities were backed by, and done in the interest of, Russian or Russian-backed entities.

The evidence for covert action

One area where Butina may go further than Manafort (at least for his pre-election work) is in the means by which she was trying to hide her work.

In spite of the great deal of publicity Butina made of her own actions — with all the pictures of her and powerful Republican men — the government affidavit also described Butina trying to set up (in her words) a “back channel” of communication with influential Americans.  On October 4, 2016, Erickson emailed a friend admitting he had “been involved in security a VERY private line of communication between the Kremlin and key [Republican] leaders through, of all conduits, the [NRA]. The affidavit describes Butina telling Torshin that her Russia-USA friendship society” is “currently ‘underground’ both here and there.” When discussing the list of delegates to the 2017 National Prayer Breakfast with Erickson in late November, she said the attendees were seeking to establish a “back channel of communication.”

Manafort was trying to hide that the lobbying he paid for was done for Yanukovych’s benefit, but there’s no allegation his pre-election work aimed to set up a secret channel of communication between Yanukovych and Congress.

Of particular interest, given the parallel efforts on voter suppression from Roger Stone and the Russians, Butina floated serving as an election observer. Torshin argued that “the risk of provocation is too high and the ‘media hype’ which comes after it.” But Butina argued she’d only do it incognito.

The honey pot claim

Then there’s the specific government insinuation that Butina was engaged in a honey pot operation. It substantiates this two ways — first, by suggesting she’s not that into Erickson.

Further, in papers seized by the FBI, Butina complained about living with U.S. Person 1 and expressed disdain for continuing to cohabitate with U.S. Person 1.

It also alleges she offered sex for favors.

For example, on at least one occasion, Butina offered an individual other than U.S. Person 1 sex in exchange for a position within a special interest organization.

Driscoll pretty convincingly argues the government misinterpreted this last bit.

The only evidence the government relied on for its explosive claim was an excerpt from an innocuous three-year-old text exchange (attached as Exhibit 3) sent in Russia between Ms. Butina and DK, her longtime friend, assistant, and public relations man for The Right to Bear Arms gun rights group that she founded.

DK, who often drove Ms. Butina’s car and thus was listed on the insurance, took the car for its annual government-required inspection and insurance renewal, and upon completion, texted (according to government translators), “I don’t know what you owe me for this insurance they put me through the wringer.” Ms. Butina jokingly replied, “Sex. Thank you so much. I have nothing else at all. Not a nickel to my name.” DK responded: “Ugh . . . ( ”—that is, with a sad face emoticon.

Aside from the fact that Maria is friends with DK’s wife and child and treats DK like a brother, the reference to sex is clearly a joke.

We still haven’t seen the government response to this, but what Driscoll presents does support his claim this is a “sexist smear.”

But Driscoll’s dismissal of the other claim — that Butina disdained living with Erickson — is far less convincing.

[I]n response to her girlfriend’s own complaints about her boyfriend’s failure to call in three weeks (accompanied by an angry face emoji) that Maria responds that her own boyfriend (Mr. Erickson) has been “bugging the sh*t out of me with his mom” and that she has “a feeling that I am residing in a nursing home.” “Send a link to the dating app[,]”

Driscoll spins this as an attack on Erickson’s now late mother, but doesn’t address the central allegation that she likened living with her much older boyfriend to living in a nursing home. Nor that she started the exchange by saying “let’s go have some fun with guys!!!” because she was “Bored. So there.” Furthermore, Butina seemed concerned that her use of Tinder would become public because she logged in using Facebook.

Though he has been sharing schmaltzy videos of Butina and Erickson with ABC, Driscoll also doesn’t address the fact that as early as May, Butina was proffering to flip on Erickson in fraud charges in South Dakota, which would have the effect of putting her in a position to negotiate permanent visa status independent of him, while limiting her own legal exposure.

A student visa or tourist one?

One key distinction between Manafort and Butina stems from the fact that she’s not a citizen.

The government’s detention motion also notes that Butina “use[d] deceit in a visa application.” They describe her attendance at American University as her cover, one she chose after rejecting carrying out the operation on tourist visas.

Butina chose a student visa from a range of options for her ultimate application, but not before a lengthy discussion of the risks associated with traveling to the United States repeatedly on a tourist visa. The FBI has discovered text messages and emails between U.S. Person 1 and Butina in which Butina would routinely ask U.S. Person 1 to help complete her academic assignments, by editing papers and answering exam questions. In other words, although she attended classes and completed coursework with outside help, attending American University was Butina’s cover while she continued to work on behalf of the Russian Official.

The government also notes that Butina claimed she was no longer employed by Torshin on her visa application. It points to her visa fraud as additional support that she did not intend to register as required by the law.

Butina entered the United States with the express purpose of working as part of a covert Russian influence campaign and did not disclose that fact—not on her visa application and not to the Attorney General.

Driscoll offers a narrow (and to my mind, unconvincing) defense, arguing the government hasn’t shown proof she lied on her form, when the claim is, instead, that intercepts show she applied for a student visa over a tourist visa because of the immigration advantages it offers.

[T]he government has also failed to provide any evidence to support its claim that Maria affirmatively lied on her application for a student visa should give this Court pause.

To be clear: this doesn’t mean Americans can’t be charged under section 951. In June, for example, DOJ charged Ron Rockwell Hansen under section 951 for spying for China.

But because Butina had to find a way to get and stay in the US, she had to game out the best way to do so, and that adds to the evidence that her entire purpose for being in the US is to push Russian policies. That is, it may be easier to charge a foreigner under section 951 because it often involves lying on visa forms.

Ongoing ties with Russian intelligence

Finally, there are ties with spooks.

The government alleges that Butina had ongoing ties with the Russian intelligence agencies, including a private meal with a suspected Russian intelligence operator, Oleg Zhiganov (whom Driscoll identified, to the government’s displeasure, to Politico).

FBI surveillance observed Butina in the company of a Russian diplomat in the weeks leading up to that official’s departure from the United States in March 2018. That Russian diplomat, with whom Butina was sharing a private meal, was suspected by the United States Government of being a Russian intelligence officer.

The government also cites from pointed to a conversation where Torshin likened Butina to Anna Chapman (see below) and argued that showed that Torshin treated her a covert spy. The government further points to a document suggesting she considered a job with FSB (though remains murky about other evidence that supports the claim).

Another document uncovered during the execution of a search warrant contained a hand-written note, entitled “Maria’s ‘Russian Patriots In-Waiting’ Organization,” and asking “How to respond to FSB offer of employment?” Based on this and other evidence, the FBI believes that the defendant was likely in contact with the FSB throughout her stay in the United States.

That said, the government also alleges that Manafort has had ongoing ties with Russian intelligence, in the form of Konstantin Kiliminik. So it’s not like ties to intelligence officers by itself merits a section 951 charge.

Recruiting assets

I suspect a key feature that may distinguish Butina from Manafort is that she had two Americans, Erickson and O’Neill, working with her. There’s even the allegation that she was seeking out time with JD Gordon in the lead-up to the election, suggesting she may have been recruiting assets within the new administration, an action akin to a formal spook. That is, she seems to have been recruiting agents.

That’s different from Manafort, employing a bunch of lobbyists (even while hiding some aspects of those engagements), because Manafort was hiring established professionals (or former European government officials).

I guess one question I have is whether the awareness of the recruitment targets is different.

Flight risk

While it matters little for the distinction between FARA and section 951, Driscoll suggests the fact that Butina hasn’t fled yet — notably did not in response to a report on her work — is proof she’s not an agent.

First, in February, 2017, the Daily Beast published an article about Maria, her connection to Aleksandr Torshin, her love of guns, and her activities in the United States, essentially alleging that her purpose in the United States might be to “infiltrate” American conservative political groups.13 If the government’s fanciful theory were correct, almost 18 month ago, Maria Butina was exposed, her handler identified, and her purpose in the United States published on the internet. She did not flee, visit the Russian Embassy, or make any effort to change her status as a student.

Curiously, he doesn’t address an intercept excerpted in the government’s detention motion, suggesting that in March 2017 there was an order against arresting her.

Specifically, in March 2017, after a series of media articles were published about Butina, the following conversation ensued:

Russian Official: Good morning! How are you faring there in the rays of the new fame?[] Are your admirers asking for your autographs yet? You have upstaged Anna Chapman. She poses with toy pistols, while you are being published with real ones. There are a hell of a lot of rumors circulating here about me too! Very funny!

[snip]

Butina: It’s the other thing that is important: evidently, there is an Order not to touch us. I believe it is a good sign.

Russian Official: For now – yes, but should things shift, then we are guaranteed a spot on the list of ‘agents of influence.” . . .

But as I noted, Butina’s flight risk would remain the same regardless of whether she had been charged with FARA or section 951.

Why Maria and not Manafort (yet)?

All of which raises a series of questions about what might distinguish Butina from Manafort:

  • How important is citizenship in this? And would dual citizenship — dual Russian Federation and US — change that? The government’s reliance on Butina’s alleged visa fraud would (and in other 951 cases has) have important repercussions for any subjects of the investigation who lied but have since obtained US citizenship.
  • Does who is paying for a person’s defense matter? Driscoll won’t say who is paying his bills, but neither do we know who is funding Manafort’s (thus far) much more expensive defense. In similar cases (such as Evgeny Buryakov, one of the spies who recruited Carter Page), the government filed for a Curcio hearing to make sure a person’s lawyer wasn’t representing the interests of the people paying his bills rather than the defendant, but in so doing proved that Buryakov was not a government agent. If a close Putin ally is paying for Manafort’s defense, does that change the calculus of who he’s working for?
  • At what point would obtaining useful information on political process in the US count as collecting intelligence? Manafort knows US politics better than almost anyone — he doesn’t need to recruit a source to learn that. Butina did. Does recruiting Erickson to learn about US politics amount to collecting intelligence?
  • Is beefed up FARA enforcement the proper tool to combat foreign influence operations, or is section 951, absent more covert operations, the way to go after foreign nationals engaging in influence operations?
  • Given how these two crimes might bleed into each other, are prosecutors threatening charges under section 951 to get pleas under FARA?
  • All this analysis is based off stuff Manafort did years ago, going back over a decade. It doesn’t address the stuff he is suspected of doing in during the 2016. For example, if Manafort was reporting back on an active Presidential campaign to Oleg Deripaska via suspected Russian intelligence agent Konstantin Kilimnik, is that a FARA violation, or a section 951 one? He got charged under FARA for his historic work. But I’m not sure his election-related work doesn’t pass the bar for a section 951 charge.

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

How to Charge Americans in Conspiracies with Russian Spies?

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. 

In general, Jack Goldsmith and I have long agreed about the problems with charging nation-state spies in the United States. So I read with great interest his post laying out “Uncomfortable Questions in the Wake of Russia Indictment 2.0 and Trump’s Press Conference With Putin.” Among other larger normative points, Goldsmith asks two questions. First, does indicting 12 GRU officers in the US expose our own nation-state hackers to be criminally prosecuted in other countries?

This is not a claim about the relative moral merits of the two countries’ cyber intrusions; it is simply a claim that each side unequivocally breaks the laws of the other in its cyber-espionage activities.

How will the United States respond when Russia and China and Iran start naming and indicting U.S. officials?  Maybe the United States thinks its concealment techniques are so good that the type of detailed attribution it made against the Russians is infeasible.  (The Shadow Brokers revealed the identities of specific NSA operators, so even if the National Security Agency is great at concealment as a matter of tradecraft that is no protection against an insider threat.)  Maybe Russia and China and Iran won’t bother indicting U.S. officials unless and until the indictments actually materialize into a trial, which they likely never will.  But what is the answer in principle?  And what is the U.S. policy (if any) that is being communicated to military and civilian operators who face this threat?  What is the U.S. government response to former NSA official Jake Williams, who worked in Tailored Access Operations and who presumably spoke for many others at NSA when he said that “charging military/gov hackers is dumb and WILL eventually hurt the US”?

And, how would any focus on WikiLeaks expose journalists in the United States to risks of prosecution themselves.

There is a lot of anger against WikiLeaks and a lot of support for indicting Julian Assange and others related to WikiLeaks for their part in publishing the information stolen by the Russians.  If Mueller goes in this direction, he will need to be very careful not to indict Assange for something U.S. journalists do every day.  U.S. newspapers publish information stolen via digital means all the time.  They also openly solicit such information through SecureDrop portals.  Some will say that Assange and others at WikiLeaks can be prosecuted without threatening “real journalists” by charging a conspiracy to steal and share stolen information. I am not at all sure such an indictment wouldn’t apply to many American journalists who actively aid leakers of classified information.

I hope to come back to the second point. As a journalist who had a working relationship with someone she came to believe had a role in the attack, I have thought about and discussed the topic with most, if not all, the lawyers I consulted on my way to sitting down with the FBI.

For the moment, though, I want to focus on Goldsmith’s first point, one I’ve made in the past repeatedly. If we start indicting uniformed military intelligence officers — or even contractors, like the trolls at Internet Research Agency might be deemed — do we put the freedom of movement of people like Jake Williams at risk? Normally, I’d absolutely agree with Goldsmith and Williams.

But as someone who has already written extensively about the ConFraudUs backbone that Robert Mueller has built into his cases, I want to argue this is an exception.

As I’ve noted previously, while Rod Rosenstein emphasized that the Internet Research Agency indictment included no allegations that Americans knowingly conspired with Russians, it nevertheless did describe three Americans whose activities in response to being contacted by Russian trolls remain inconclusive.

Rod Rosenstein was quite clear: “There is no allegation in the indictment that any American was a knowing participant in the alleged unlawful activity.” That said, there are three (presumed) Americans who, both the indictment and subsequent reporting make clear, are treated differently in the indictment than all the other Americans cited as innocent people duped by Russians: Campaign Official 1, Campaign Official 2, and Campaign Official 3. We know, from CNN’s coverage of Harry Miller’s role in building a cage to be used in a fake “jailed Hillary” stunt, that at least some other people described in the indictment were interviewed — in his case, for six hours! — by the FBI. But no one else is named using the convention to indicate those not indicted but perhaps more involved in the operation. Furthermore, the indictment doesn’t actually describe what action (if any) these three Trump campaign officials took after being contacted by trolls emailing under false names.

On approximately the same day, Defendants and their co-conspirators used the email address of a false U.S. persona, [email protected], to send an email to Campaign Official 1 at that donaldtrump.com email account, which read in part:

Hello [Campaign Official 1], [w]e are organizing a state-wide event in Florida on August, 20 to support Mr. Trump. Let us introduce ourselves first. “Being Patriotic” is a grassroots conservative online movement trying to unite people offline. . . . [W]e gained a huge lot of followers and decided to somehow help Mr. Trump get elected. You know, simple yelling on the Internet is not enough. There should be real action. We organized rallies in New York before. Now we’re focusing on purple states such as Florida.

The email also identified thirteen “confirmed locations” in Florida for the rallies and requested the campaign provide “assistance in each location.”

[snip]

Defendants and their co-conspirators used the false U.S. persona [email protected] account to send an email to Campaign Official 2 at that donaldtrump.com email account.

[snip]

On or about August 20, 2016, Defendants and their co-conspirators used the “Matt Skiber” Facebook account to contact Campaign Official 3.

Again, the DOJ convention of naming makes it clear these people have not been charged with anything. But we know from other Mueller indictments that those specifically named (which include the slew of Trump campaign officials named in the George Papadopoulos plea, KT McFarland and Jared Kushner in the Flynn plea, Kilimnik in the Van der Zwaan plea, and the various companies and foreign leaders that did Manafort’s bidding, including the Podesta Group and Mercury Public Affairs in his indictment) may be the next step in the investigation.

In the GRU indictment, non US person WikiLeaks is given the equivalent treatment.

On or about June 22, 2016, Organization I sent a private message to Guccifer 2.0 to “[s]end any new material [stolen from the DNC] here for us to review and it will have a much higher impact than what you are doing.” On or about July 6, 2016, Organization 1 added, “if you have anything hillary related we want it in the next tweo [sic] days prefable [sic] because the DNC [DemocraticNationalConvention] is approaching and she Will solidify bernie supporters behind her after.” The Conspirators responded,“0k . . . i see.” Organization I explained,“we think trump has only a 25% chance of winning against hillary . . . so conflict between bernie and hillary is interesting.”

But the activities of other American citizens — most notably Roger Stone and Donald Trump — are discussed obliquely, even if they’re not referred to using the standard of someone still under investigation. Here’s the Roger Stone passage.

On or aboutAugust 15,2016, the Conspirators,posing as Guccifer 2.0,wrote to a person who was in regular contact with senior members of the presidential campaign of Donald J. Trump, “thank u for writing back. . . do u find anyt[h]ing interesting in the docs i posted?” On or about August 17, 2016, the Conspirators added, “please tell me if i can help u anyhow . . . it would be a great pleasureto me.” On or about September 9, 2016,the Conspirators, again posing as Guccifer 2.0, referred to a stolen DCCC document posted online and asked the person, “what do u think of the info on the turnout model for the democrats entire presidential campaign.” The person responded,“[p]retty standard.”

The Trump one, of course, pertains to the response GRU hackers appear to have made when he asked for Russia to find Hillary’s emails on July 27.

For example, on or about July 27, 2016, the Conspirators attempted after hours to spearphish for the first time email accounts at a domain hosted by a third‑party provider and used by Clinton’s personal office. At or around the same time, they also targeted seventy‐six email addresses at the domain for the Clinton Campaign.

Finally, there is yesterday’s Mariia Butina complaint, which charges her as an unregistered Russian spy and describes Aleksandr Torshin as her boss, but which also describes the extensive and seemingly willful cooperation with Paul Erickson and another American, as well as with the RNC and NRA. Here’s one of the Americans, for example, telling Butina that her Russian bosses should take the advice he had given her about which Americans she needed to meet.

If you were to sit down with your special friends and make a list of ALL the most important contacts you could find in America for a time when the political situation between the U.S. and Russia will change, you could NOT do better than the list that I just emailed you. NO one — certainly not the “official” Russian Federation public relations representative in New York — could build a better list.

[snip]

All that you friends need to know is that meetings with the names on MY list would not be possible without the unknown names in your “business card” notebook. Keep them focused on who you are NOW able to meet, NOT the people you have ALREADY met.

Particularly as someone whose communications (including, but not limited to, that text) stand a decent chance of being quoted in an indictment in the foreseeable future, let me be very clear: none of these people have been accused of any wrong-doing.

But they do suggest a universe of people who have attracted investigative scrutiny, both by Mueller and by NSD, as willing co-conspirators with Russian spies.

Granted, there are three different kinds of Russian spies included in these three documents:

  • Uniformed military intelligence officers working from Moscow
  • Civilian employees who might be considered intelligence contractors working from St. Petersburg (though with three reconnaissance trips to the US included)
  • Butina and Torshin, both of whom probably committed visa fraud to engage as unregistered spies in the US

We have a specific crime for the latter (and, probably, the reconnaissance trips to the US by IRA employees), and if any of the US persons and entities in Butina’s indictment are deemed to have willingly joined her conspiracy, they might easily be charged as well. Eventually, I’m certain, Mueller will move to start naming Americans (besides Paul Manafort and Rick Gates) in conspiracy indictments, including ones involving Russian spies operating from Russia (like Konstantin Kilimnik). It seems necessary to include the Russians in some charging documents, because otherwise you’ll never be able to lay out the willful participation of everyone, Russian and American, in the charging documents naming the Americans.

So while I generally agree with Goldsmith and Williams, this case, where we’re clearly discussing a conspiracy between Russian spies — operating both from the US and from Russia (and other countries), wearing uniforms and civilian clothing –and Americans, it seems important to include them in charging documents somewhere.

On Manafort’s Referral of the Papadopoulos Offer(s)

I want to return to something from the George Papadopoulos plea agreement in light of last week’s HPSCI Russia reports. In it, there was a footnote describing Paul Manafort’s response to Papadopoulos’ email about efforts to set up a meeting between Trump and Putin.

On or about May 21, 2016, defendant PAPADOPOULOS emailed another high-ranking Campaign official, with the subject line “Request from Russia to meet Mr. Trump.” The email included the May 4 MFA Email and added: “Russia has been eager to meet Mr. Trump for quite sometime and have been reaching out to me to discuss.”2

2 The government notes that the official forwarded defendant PAPADOPOULOS’s email to another Campaign official (without including defendant PAPADOPOULOS) and stated:

“Let[‘]s discuss. We need someone to communicate that DT is not doing these trips. It should be someone low level in the campaign so as not to send any signal.”

The Majority HPSCI Report explains the email, first, by noting that it accompanied another one Papadopoulos forwarded regarding a proposed Greek meeting. Then it described Gates and Manafort referring the requests for “these meetings” to a correspond to both.

(U) Although the Committee has no information to indicate that Papadopoulos was successful in setting up any meetings between the Trump campaign and the Russian government, he worked with campaign chief executive Steve Bannon to broker a September 2016 meeting between candidate Trump and Egyptian president Abdel Fatah el-Sisi.181 Trump was apparently pleased with the meeting, which he described In an Interview as “very productive,” describing el-Sisi as “a fantastic guy.”182

(U) While on a trip to Athens, Greece in May 2016, Papadopoulos sent an email to Manafort stating that he expected to soon receive “an official invitation for Mr. Trump to visit Greece sometime this summer should his schedule allow.”183 In the same email to Manafort, Papadopoulos also forwarded a meeting Invitation from Ivan Timofeev, Director or [sic] Programs for the Russian International Affairs Council, and claimed that “Russia has been eager to meet Mr. Trump for quite sometime and have been reaching out to me to discuss. thought it would be prudent to send to you.”184

(U) As of May 2016, Manafort had not yet been elevated to campaign chairman, but had a long track record of work abroad. Manafort forwarded Papadopoulos’ email to his business and campaign deputy [Rick Gates] noting that we need someone to communicate that D[onald] T[rump] is not doing these trips.” 185 Manafort and [Gates] agreed to assign a response of a “general letter” to “our correspondence coordinator.” the person responsible for “responding to all mail of non-importance.”186

Curiously, this account is based off Gates’ production; it should exist in the campaign’s production as well.

The clarification would seem to suggest that Manafort was treating all requests for Trump meetings as formalities, to be responded to with a regrets letter sent by a low level clerk. But it still doesn’t explain what Manafort meant when he said “It should be someone low level in the campaign so as not to send any signal.”

But there’s another detail that may undermine the claim that Manafort responded to all requests for Russian meetings with regrets. As the Minority HPSCI Report makes clear, Manafort received another request for a Trump-Putin meeting within days of the Papadopoulos one, one tied to Aleksandr Torshin’s trip to the NRA meeting.

On May 10, 2016, Erickson reached out to Rick Dearborn, a longtime senior advisor to Jeff Sessions and a senior campaign official:

“Switching hats! I’m now writing to you and Sen. Sessions in your roles as Trump foreign policy experts / advisors. […] Happenstance and the (sometimes) international reach of the NRA placed me in a position a couple of years ago to slowly begin cultivating a back-channel to President Putin’s Kremlin. Russia is quietly but actively seeking a dialogue with the U.S. that isn’t forthcoming under the current administration. And for reasons that we can discuss in person or on the phone, the Kremlin believes that the only possibility of a true re-set in this relationship would be with a new Republican White House.”44

The email goes on to say that Russia planned to use the NRA’s annual convention to make “first contact” with the Trump campaign and that “Putin is deadly serious about building a good relationship with Mr. Trump. He wants to extend an invitation to Mr. Trump to visit him in the Kremlin before the election.”45

Dearborn communicated this request on May 17, 2016 to the highest levels of the Trump campaign, including Paul Manafort, Rick Gates, and Jared Kushner. The effort to establish a back-channel between Russia and the Trump campaign included a private meeting between Torshin and “someone of high rank in the Trump Campaign.”46 The private meeting would take place just prior to then-candidate Trump’s speech to the NRA. As explained in Dearborn’s email, such a meeting would provide Torshin an opportunity “to discuss an offer he claims to be carrying from President Putin to meet with DJT. They would also like DJT to visit Russia for a world summit on the persecution of Christians at which Putin and Trump would meet.”47

The account of the NRA outreach is a bit muddled between the two reports. But Kushner passed on a related one from Rick Clay — not because he didn’t want to take the meeting, but because he worried they couldn’t verify the back channel.

“Pass on this. A lot of people come claiming to carry messages. Very few we are able to verify. For now I think we decline such meetings,” as well as “(b)e careful.”

But as both reports make clear, Don Jr did meet, briefly, with Torshin, though there is no known record of their face-to-face exchange.

The Majority’s finding on this topic affirms that Trump Jr. met with a Russian government official, Alexander Torshin, at the event, but conveniently concludes that “the Committee found no evidence that the two discussed the presidential election.”48 As with many findings in the report, this relies solely on the voluntary and self-interested testimony of the individual in question, in this case Trump Jr. The Majority refused multiple requests by the Minority to interview witnesses central to this line of inquiry, including Torshin, Butina, Erickson, and others.

These accounts come from the Sessions and Dearborn production. Again, both should also be available via the campaign, but that’s not where they came from, and the NRA requests were also sent to Manafort and Gates (so Gates’ production should include any response from Manafort).

As noted in both reports, Don Jr. met Torshin briefly on May 19, two days after the request for a high level meeting got passed onto senior people in the campaign.

Both reports separate the timelines out by source — and the Majority one presents events out of order, which adds to the confusion. But here’s how the two outreach efforts look.

May 4 [this gets forwarded to Lewandowski, Clovis, and Manafort by May 21]:

Timofeev to Papadopolous “just talked to my colleagues from the MFA. [They are] open for cooperation. One of the options is to make a meeting for you at the North America Desk, if you are in Moscow.”

Papadopolous to Timofeev: “Glad the MFA is interested.”

May 4, Papadopoulos to Lewandowski (forwarding Timofeev email):

“What do you think? Is this something we want to move forward with?”

May 5: Papadopoulos has a conversation with Sam Clovis, then forwards Timofeev email, with header “Russia updates.”

May 8, Timofeev to Papadopoulos:

Emails about setting Papadopoulos up with the “MFA head of the US desk.”

May 10, Paul Erickson email to Rick Dearborn proposes a meeting between Torshin and “someone of high rank in the Trump Campaign … to discuss an offer [Torshin] claims to be carrying from President Putin to meet with DJT.”

May 13, Mifsud to Papadopoulos:

“an update” of what they had discussed in their “recent conversations,” including: “We will continue to liaise through you with the Russian counterparts in terms of what is needed for high level meeting of Mr. Trump with the Russian Federation.”

May 14, Papadopoulos to Lewandowski:

“Russian govemment[] ha[s] also relayed to me that they are interested in hostingMr. Trump.”

May 16: Rick Clay email to Rick Dearborn mentions an “overture to Mr. Trump from
President Putin.” Kushner responds, “Pass on this. A lot of people come claiming to carry messages. Very few we are able to verify. For now I think we decline such meetings.”

May 21, Papadopoulos to Paul Manafort, forwarding May 4 email:

“Request from Russia to meet Mr. Trump”

“Regarding the forwarded message, Russia has been eager to meet Mr. Trump for quite some time and have been reaching out to me to discuss.”

May 21, Manafort forwards Papadopoulos email to Rick Gates:

“Lets discuss. We need someone to communicate that DT is not doing these trips. It should be someone low level in the campaign so as not to send any signal.”

As noted, there should be more in the Gates production to describe what Manafort was up to, if he was indeed opposed to meetings themselves.

Of course, we don’t have that — though Mueller does have Gates wrapped up in a cooperation agreement.

Meanwhile, Don Jr kept doing meetings with Russians he would go on to disclaim. And weeks after all these invitations for high level meetings, he, Kushner, and Manafort took a meeting with someone all three had reason to trust, Aras Agalarov’s representatives.