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Bill Barr’s Bullshit Claim that Trump Obstructed the Investigation Out of Frustration and Anger

I’ve grown increasingly bothered by the justification William Barr made for Trump’s obstruction of the Russian investigation. Basically, the Attorney General of the United States argued that because the President was “frustrated and angered” about the investigation into the Russian ties he kept lying about, his obstruction was not corrupt.

In assessing the President’s actions discussed in the report, it is important to bear in mind the context.  President Trump faced an unprecedented situation.  As he entered into office, and sought to perform his responsibilities as President, [1] federal agents and prosecutors were scrutinizing his conduct before and after taking office, and the conduct of some of his associates.  At the same time, there was relentless speculation in the news media about the President’s personal culpability.  Yet, as he said from the beginning, [2] there was in fact no collusion.  And as the Special Counsel’s report acknowledges, there is substantial evidence to show that the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency, [3] propelled by his political opponents, and [4] fueled by illegal leaks.  Nonetheless, [5] the White House fully cooperated with the Special Counsel’s investigation, providing unfettered access to campaign and White House documents, [6] directing senior aides to testify freely, and asserting no privilege claims.  And at the same time, [7] the President took no act that in fact deprived the Special Counsel of the documents and witnesses necessary to complete his investigation. Apart from whether the acts were obstructive, this evidence of non-corrupt motives weighs heavily against any allegation that the President had a corrupt intent to obstruct the investigation.

There are, of course, a slew of errors in this passage, which I address by number.

  1. Federal Agents and prosecutors weren’t investigating the President until after he had committed several acts of obstruction
  2. The report doesn’t address collusion, it addresses a criminal conspiracy; Roger Stone’s actions, done at the behest of Trump, probably reach any measure for “collusion”
  3. There’s no evidence that the Steele dossier drove the FBI investigation — and certainly not the Mueller investigation that Trump obstructed
  4. The only leak that had a substantial effect on this investigation was the one about Flynn being picked on Sergei Kislyak’s FISA intercept, but it may not have been illegal (if John Brennan authorized the leak, for example, it would have been done with the consent of an original classification authority), and Flynn’s actions would have been included as part of the already-predicated counterintelligence investigation into him in any case
  5. Trump personally refused to cooperate with the investigation; his responses to Mueller’s questions are outright contemptuous
  6. Trump knew several of his aides were lying and encouraged that
  7. Trump was probably involved in withholding key emails about the Moscow Trump Tower project and probably had a role in attempts to withhold Transition emails possessed by GSA

But the thing that has really begun to irk me is the Attorney General’s claim that, “as the Special Counsel’s report acknowledges, there is substantial evidence to show that the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency,” which is the core of Barr’s excuse for the President’s obstructive acts: the President was frustrated and so it’s cool that he totally undermined rule of law.

Barr is largely wrong about what the report says about the President’s anger and frustration, though, and to the extent he’s not, he’s basically arguing it’s cool for the President to be angry that the system worked as it should.

To show how much he exaggerates that, I reviewed below what the Mueller Report says about the President’s:

  • Frustrations
  • Anger
  • Motivations for obstructing the investigation

There are several categories of references that are on-point to Trump’s feelings about the investigation. In the two most persistent cases, Trump was angry that people engaged in ethical behavior. He was angry and frustrated that Jeff Sessions followed ethics guidelines and recused from the investigation.  He was angry that Comey adhered to DOJ guidelines (both general and specific with respect to this investigation) about confirming or denying targets of an investigation (though the report also describes Trump denying he was angry). So one category of evidence that shows Trump was angry or frustrated — which the Attorney General claims justifies his obstruction — involves Trump reacting emotionally because people did the ethically correct thing.

In one case, he was angry that his administration got caught doing something improper. Trump was angry that Mike Flynn’s totally inappropriate secret efforts to undermine Obama’s policy towards Russia got exposed. He also was angry at Flynn for other reasons, though. Yes, Trump may be right to be angry if this was illegally leaked (something that hasn’t yet been proven), but ultimately he’s pissed that he got caught doing something wrong.

In the sections that deal with Trump’s motives for obstructive acts, the report describes what might be described as frustration about two things. First, that the focus on Russia (both the investigation and the press coverage of it) delegitimized his victory. If Barr thinks this justifies obstruction of justice, it suggests that he thinks Trump is entitled — after having cheered Russia’s hacks of his opponent — not to have it reflect on his own victory. Effectively, the Attorney General seems to think Trump should be able to benefit from help from a foreign adversary — with his encouragement!! — and then have no one mention that, which is an alarming prospect.

The report also describes how Trump was frustrated that he was stymied in foreign policy, most especially in his desire to work with Russia, by the focus on the Russian investigation. This is particularly interesting, as some of the policies Trump was thwarted in pursuing — reversing sanctions on Russia — might have been proof of a quid pro quo (remember, Trump refused to answer all questions about sanctions, even one covering the election period). Given the report’s silence on the most alarming interactions with Trump (such as Putin’s involvement in writing the June 9 statement), there could be more to Trump’s frustrations, which any Attorney General pretending to care about American national security should attend to. In any case, while the Constitution permits the President great leeway to set the country’s foreign policy, it does expect the President will be subject to political pressure on those decisions. That Trump is frustrated that the manner in which he won — plus his encouragement of it and his subsequent lies about it — has constrained his ability to work with Russia is not something that should justify obstruction of justice.

Some of the other descriptions of Trump’s response to the investigation describe him making false claims — denying that Russia did the hack, preferred him, and also denying he had business with Russia. That is, Trump was not denying the allegations in the dossier, but was denying other things that were, in fact, true. That’s also not a basis to obstruct an investigation, that it will expose your lies.

For most of the instances after Trump himself became the subject of the investigation, the Mueller Report concludes Trump was motivated out of a desire to shield his own conduct — that is, pure corrupt obstruction.

In short, even to the extent that the Mueller Report confirms Barr’s claim that Trump was motivated out of frustration, in the most justifiable case (that Trump was prevented from working closely with Russia), Barr is excusing obstruction of justice because Trump got political pressure he deserved for his actions. But in most cases, Trump was frustrated by the ethical actions of others, that he got caught doing something wrong, that winning while cheering the interference of a hostile power aiming to help you undermines your legitimacy. That any lawyer would think such things — which basically amount to a democracy holding someone accountable — would justify obstruction of justice is downright insane.

Nevertheless, that’s where Attorney General Barr has taken us.


Frustration

Four of six references to frustration in the report describe Trump directly.

In the context of reaching out to WikiLeaks, one described Trump’s frustration that Hillary’s deleted emails had not been found.

Gates recalled candidate Trump being generally frustrated that the Clinton emails had not been found.

Chris Christie hypothetically describes Trump as being “frustrated” with the investigation.

The President asked Christie what he meant, and Christie told the President not to talk about the investigation even if he was frustrated at times.222

Trump was frustrated with Comey before his March 20 testimony, which got worse afterwards.

According to McGahn and Donaldson, the President had expressed frustration with Comey before his March 20 testimony, and the testimony made matters worse.318

Trump was frustrated that the Russian investigation made relations with Russia difficult.

The President expressed frustration with the Russia investigation, saying that it made relations with the Russians difficult.348 The President told Rogers “the thing with the Russians [wa]s messing up” his ability to get things done with Russia.349

Anger

The following are the nine of ten references to “angry” and all eleven references to “anger” in the Report involve Trump directly.

A double instance describes Trump being angry — but he was angry that the WaPo had correctly reported that Flynn undermined Obama’s sanctions on Russia. Trump is described another time as being angry that Flynn’s actions were exposed.

On January 12, 2017, a Washington Post columnist reported that Flynn and Kislyak communicated on the day the Obama Administration announced the Russia sanctions. 122 The column questioned whether Flynn had said something to “undercut the U.S. sanctions” and whether Flynn’s communications had violated the letter or spirit of the Logan Act. 123

President-Elect Trump called Priebus after the story was published and expressed anger about it. 124 Priebus recalled that the President-Elect asked, “What the hell is this all about?”125 Priebus called Flynn and told him that the President-Elect was angry about the reporting on Flynn’s conversations with Kislyak. 126 Flynn recalled that he felt a lot of pressure because Priebus had spoken to the “boss” and said Flynn needed to “kill the story.” 127

The President paid careful attention to negative coverage of Flynn and reacted with annoyance and anger when the story broke disclosing that Flynn had discussed sanctions with Kislyak.

Trump was angry with Flynn that his behavior with Sergey Kislyak was causing him trouble again.

The President instructed McGahn to work with Priebus and Bannon to look into the matter further and directed that they not discuss it with any other officials. 154 Priebus recalled that the President was angry with Flynn in light of what Yates had told the White House and said, “not again, this guy, this stuff.” 155

Trump was also angry at Flynn for other things, including his stupid spawn.

Hicks said that the President thought Flynn had bad judgment and was angered by tweets sent by Flynn and his son, and she described Flynn as “being on thin ice” by early February 2017.

The Report describes Trump being angry at Jeff Sessions four times for following DOJ guidelines on recusal.

Hicks recalled that after Sessions recused, the President was angry and scolded Sessions in her presence, but she could not remember exactly when that conversation occurred.

The President became angry and lambasted the Attorney General for his decision to recuse from the investigation, stating, “How could you let this happen, Jeff?”505

And after Sessions announced his recusal on March 2, the President expressed anger at the decision and told advisors that he should have an Attorney General who would protect him. That weekend, the President took Sessions aside at an event and urged him to “unrecuse.”

The President became very upset and directed his anger at Sessions.393 According to notes written by Hunt, the President said, “This is terrible Jeff. It’s all because you recused.

Trump was also angry at McGahn because Sessions recused.

The President expressed anger at McGahn about the recusal and brought up Roy Cohn, stating that he wished Cohn was his attorney.294

One instance reports Trump denying that he fired Comey because he was angry about the Russian investigation.

The next day, the President acknowledged in a television interview that he was going to fire Comey regardless of the Department of Justice’s recommendation and that when he “decided to just do it,” he was thinking that “this thing with Trump and Russia is a made-up story.” In response to a question about whether he was angry with Comey about the Russia investigation, the President said, “As far as I’m concerned, I want that thing to be absolutely done properly,” adding that firing Comey “might even lengthen out the investigation.”

But two other references describes Trump being angry that Comey complied with DOJ guidelines and instructions and did not specifically say Trump was not under investigation.

After Comey publicly confirmed the existence of the FBT’s Russia investigation on March 20, 2017, the President was “beside himself’ and expressed anger that Comey did not issue a statement correcting any misperception that the President himself was under investigation.

But during his May 3 testimony, Comey refused to answer questions about whether the President was being investigated. Comey’s refusal angered the President, who criticized Sessions for leaving him isolated and exposed, saying “You left me on an island.

Trump claimed others were angry that Hillary was not being investigated.

On October 29, 2017, the President tweeted that there was “ANGER & UNITY” over a “lack of investigation” of Clinton and “the Comey fix,” and concluded: “DO SOMETHTNG!”756

Trump claimed others were angry because Mike Flynn was prosecuted for lying to the FBI and DOJ.

On December 15, 2017, the President responded to a press inquiry about whether he was considering a pardon for Flynn by saying, “I don’t want to talk about pardons for Michael Flynn yet. We’ll see what happens. Let’s see. I can say this: When you look at what’s gone on with the FBI and with the Justice Department, people are very, very angry.”845

Trump twice accused Mueller’s prosecutors of being angry (and being Democrats).

On July 31, 2018, Manafort’s criminal trial began in the Eastern District of Virginia, generating substantial news coverage.862 The next day, the President tweeted, “This is a terrible situation and Attorney General Jeff Sessions should stop this Rigged Witch Hunt right now, before it continues to stain our country any further. Bob Mueller is totally conflicted, and his 17 Angry Democrats that are doing his dirty work are a disgrace to USA!”86

“While the disgusting Fake News is doing everything within their power not to report it that way, at least 3 major players are intimating that the Angry Mueller Gang of Dems is viciously telling witnesses to lie about facts & they will get relief. This is our Joseph McCarthy Era!” @rea!DonaldTrump 11/28/ 18 (8:39 a.m. ET) Tweet.

Motivations

As far as motive, the report has several discussions of Trump’s motives after every act of obstruction it analyzes, but it also suggests that those motives are different before and after he fired Comey and made himself a focus of the investigation.

Although the series of events we investigated involved discrete acts, the overall pattern of the President’s conduct towards the investigations can shed light on the nature of the President’s acts and the inferences that can be drawn about his intent. In particular, the actions we investigated can be divided into two phases, reflecting a possible shift in the President’s motives. The first phase covered the period from the President’s first interactions with Comey through the President’s firing of Come. During that time, the President had been repeatedly told he was not personally under investigation. Soon after the firing of Comey and the appointment of the Special Counsel, however, the President became aware that his own conduct was being investigated in an obstruction-of-justice inquiry. At that point, the President engaged in a second phase of conduct, involving public attacks on the investigation, non-public efforts to control it, and efforts in both public and private to encourage witnesses not to cooperate with the investigation. Judgments about the nature of the President’s motives during each phase would be informed by the totality of the evidence.

The Flynn section includes a passage that describes Trump being angry that Russia’s interference tainted his own victory.

Evidence does establish that the President connected the Flynn investigation to the FBI’s broader Russia investigation and that he believed, as he told Christie, that terminating Flynn would end “the whole Russia thing.” Flynn’s firing occurred at a time when the media and Congress were raising questions about Russia’s interference in the election and whether members of the President’s campaign had colluded with Russia. Multiple witnesses recalled that the President viewed the Russia investigations as a challenge to the legitimacy of his election. The President paid careful attention to negative coverage of Flynn and reacted with annoyance and anger when the story broke disclosing that Flynn had discussed sanctions with Kislyak. Just hours before meeting one-on-one with Corney, the President told Christie that firing Flynn would put an end to the Russia inquiries.

The confirmation of the investigation section includes a lot of language about protecting himself but also concern about the legitimacy of his victory and his ability to work with Russia.

Evidence indicates that the President was angered by both the existence of the Russia investigation and the public reporting that he was under investigation, which he knew was not true based on Comey’s representations. The President complained to advisors that if people thought Russia helped him with the election, it would detract from what he had accomplished.

Other evidence indicates that the President was concerned about the impact of the Russia investigation on his ability to govern. The President complained that the perception that he was under investigation was hurting his ability to conduct foreign relations, particularly with Russia. The President told Coats he “can’t do anything with Russia,” he told Rogers that “the thing with the Russians” was interfering with his ability to conduct foreign affairs, and he told Corney that “he was trying to run the country and the cloud of this Russia business was making that difficult.”

The Comey firing passage does suggest Trump was frustrated he couldn’t work with Russia, but also shows that he had reason to worry an investigation would show he had broken the law, and he worried the investigation would delegitimize his victory.

We also considered why it was important to the President that Comey announce publicly that he was not under investigation. Some evidence indicates that the President believed that the erroneous perception he was under investigation harmed his ability to manage domestic and foreign affairs, particularly in dealings with Russia. The President told Comey that the “cloud” of “this Russia business” was making it difficult to run the country. The President told Sessions and McGahn that foreign leaders had expressed sympathy to him for being under investigation and that the perception he was under investigation was hurting his ability to address foreign relations issues. The President complained to Rogers that “the thing with the Russians [ was] messing up” his ability to get things done with Russia, and told Coats, “I can’t do anything with Russia, there’s things I’d like to do with Russia, with trade, with ISIS, they’re all over me with this.” The President also may have viewed Comey as insubordinate for his failure to make clear in the May 3 testimony that the President was not under investigation.

[snip]

As described in Volume I, the evidence uncovered in the investigation did not establish that the President or those close to him were involved in the charged Russian computer-hacking or active-measure conspiracies, or that the President otherwise had an unlawful relationship with any Russian official. But the evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns. Although the President publicly stated during and after the election that he had no connection to Russia, the Trump Organization, through Michael Cohen, was pursuing the proposed Trump Tower Moscow project through June 2016 and candidate Trump was repeatedly briefed on the ro ress of those efforts.498 In addition, some witnesses said that Trump was aware that [redacted] at a time when public reports stated that Russian intelligence officials were behind the hacks, and that Trump privately sought information about future WikiLeaks releases.499 More broadly, multiple witnesses described the President’s preoccupation with press coverage of the Russia investigation and his persistent concern that it raised questions about the legitimacy of his election.500

The report describes his efforts to fire Mueller, efforts to limit the scope of Mueller’s investigation, attacks on Sessions, and attempt to get McGahn to write a false statement denying he tried to fire Mueller as an effort to stop the investigation into himself for obstruction.

Substantial evidence indicates that the President’s attempts to remove the Special Counsel were linked to the Special Counsel’s oversight of investigations that involved the President’s conduct- and, most immediately, to reports that the President was being investigated for potential obstruction of justice.

Substantial evidence indicates that the President’s effort to have Sessions limit the scope of the Special Counsel’s investigation to future election interference was intended to prevent further investigative scrutiny of the President’s and his campaign’s conduct.

There is evidence that at least one purpose of the President’s conduct toward Sessions was to have Sessions assume control over the Russia investigation and supervise it in a way that would restrict its scope.

Substantial evidence indicates that in repeatedly urging McGahn to dispute that he was ordered to have the Special Counsel terminated, the President acted for the purpose of influencing McGahn ‘s account in order to deflect or prevent further scrutiny of the President’s conduct towards the investigation.

The report explains that Trump wrote the June 9 statement in an attempt to avoid public disclosure about the meeting.

The evidence establishes the President’s substantial involvement in the communications strategy related to information about his campaign’s connections to Russia and his desire to minimize public disclosures about those connections.

While the analysis on floating a pardon for Flynn is inconclusive and that on Stone is redacted, the report does say that Trump floated a pardon to Manafort to encourage him not to cooperate and also to influence his jury.

Evidence concerning the President’s conduct towards Manafort indicates that the President intended to encourage Manafort to not cooperate with the government.

And the report concludes that Trump’s efforts to discourage Cohen from cooperating were an attempt to cover up Trump’s own conduct during the campaign.

In analyzing the President’s intent in his actions towards Cohen as a potential witness, there is evidence that could support the inference that the President intended to discourage Cohen from cooperating with the government because Cohen’s information would shed adverse light on the President’s campaign-period conduct and statements.

Update: Fixed mention of Trump Tower meeting when I meant Trump Tower Moscow.

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. 

The Mueller Report Redactions and the Claims about “Collusion”

On Volume II page 121 of the Mueller Report, a partial transcript of the call Trump’s lawyer (WaPo says this is John Dowd) placed to Mike Flynn’s lawyer on November 22, 2017 appears, along with even more damning details about a follow-up call from the following day.

In late November 2017, Flynn began to cooperate with this Office. On November 22, 2017, Flynn withdrew from a joint defense agreement he had with the President.833 Flynn’s counsel told the President’s personal counsel and counsel for the White House that Flynn could no longer have confidential communications with the White House or the President.834 Later that night, the President’s personal counsel left a voicemail for Flynn’s counsel that said:

I understand your situation, but let me see if I can’t state it in starker terms. . . . [I]t wouldn’t surprise me if you’ve gone on to make a deal with … the government. … [I]f . .. there’s information that implicates the President, then we’ve got a national security issue, . . . so, you know, . . . we need some kind of heads up. Um, just for the sake of protecting all our interests ifwe can …. [R]emember what we’ve always said about the ‘ President and his feelings toward Flynn and, that still remains …. 835

On November 23, 2017, Flynn’s attorneys returned the call from the President’s personal counsel to acknowledge receipt of the voicemail.836 Flynn ‘s attorneys reiterated that they were no longer in a position to share information under any sort of privilege.837 According to Flynn’s attorneys, the President’s personal counsel was indignant and vocal in his disagreement.838 The President’s personal counsel said that he interpreted what they said to him as a reflection of Flynn’s hostility towards the President and that he planned to inform his client of that interpretation.839 Flynn’s attorneys understood that statement to be an attempt to make them reconsider their position because the President’s personal counsel believed that Flynn would be disturbed to know that such a message would be conveyed to the President.840

This is, of course, the call referenced in Flynn’s less redacted cooperation addendum released last week. A whole slew of reporters who have claimed to have read the Mueller Report over the last month claimed that this passage had been redacted in the report, which is something that Quinta Jurecic and I had a bit of a laugh about on Chris Hayes’ show Friday night.

In fact, there’s likely to be very little of great interest submitted when the government complies with Judge Emmet Sullivan’s order to submit an unclassified version of the Flynn passages of the report by May 31.

The revelation in Flynn’s cooperation addendum that he provided information on close-hold discussions about WikiLeaks means some of those conversations may be unsealed in that production. But aside from that, this redaction on Volume I page 183 — footnoting a discussion of the consideration of whether Flynn was a foreign agent and probably discussing an ongoing counterintelligence investigation into Russians, not Flynn — is the one of the only Flynn-related passages that might be of any interest that is not otherwise grand jury material.

With just a few notable exceptions, the redactions aren’t that nefarious.

Using Grand Jury redactions to protect the President from political pressure

I’ve noted two exceptions to that. One is the way DOJ used grand jury redactions to hide the details of how both Donald Trumps refused to testify (even while Jr continues to be willing to testify before congressional committees that don’t have all the evidence against him).

There are two redactions hiding details of what happened when Jr was subpoenaed.

Volume I page 117 on the June 9 meeting:

Volume II page 105 on President Trump’s involvement in writing the June 9 statement.

And there are two redactions hiding the discussion of subpoenaing Trump.

Volume II page 12 introducing the obstruction of justice analysis.

Appendix C introducing Trump’s non-responsive answers.

These redactions are all ones that Congress should ask more about. If Don Jr told Mueller he would invoke the Fifth, we deserve to know that (particularly given his willingness to appear with less informed committees). More importantly, the role of Trump’s refusal to answer questions (as well as any concerns he had about Don Jr’s jeopardy) are necessary parts to any discussion of obstruction of justice.

Plus, the President of the United States should not be able to hide his unwillingness to cooperate with an investigation into his own wrong-doing by claiming it’s grand jury material.

The use of “Personal Privacy” to hide central players

In his description of the four types of redactions in the report, Bill Barr described the fourth — “personal privacy” — as relating to “peripheral third parties.”

As I explained in my letter of April 18, 2019, the redactions in the public report fall into four categories: (1) grand-jury information, the disclosure of which is prohibited by Federal Rule of Criminal Procedure 6(e); (2) investigative techniques, which reflect material identified by the intelligence and law enforcement communities as potentially compromising sensitive sources, methods, or techniques, as well as information that could harm ongoing intelligence or law enforcement activities; (3) information that, if released, could harm ongoing law enforcement matters, including charged cases where court rules and orders bar public disclosure by the parties of case information; and (4) information that would unduly infringe upon the personal privacy and reputational interests of peripheral third parties, which includes deliberation about decisions not to recommend prosecution of such parties.

Some of the PP redactions do pertain to genuinely peripheral players.

For example, sometimes they hide the random people with whom Russian trolls communicated.

In others, they hide the names of other victims of GRU hacking (including Colin Powell, who is not a private person but is peripheral to this discussion).

In other places, they hide the names of genuinely unrelated people or businesses.

But as I have noted, Mueller treated this category as a declinations decision, not a privacy one.

I previously sent you a letter dated March 25, 2019, that enclosed the introduction and executive summary for each volume of the Special Counsel’s report marked with redactions to remove any information that potentially could be protected by Federal Rule of Criminal Procedure 6(e); that concerned declination decisions; or that related to a charged case. [my emphasis]

Among the people Barr claims are “peripheral” players who have been investigated but not charged are Don Jr in the second redaction in this passage:

Carter Page on page 183.

And KT McFarland and several other key players on page 199.

Don’t get me wrong: I think these redactions are absolutely proper. The description of them, however, is not. Barr is pretending these people are “peripheral” to avoid having to admit, “in addition to Trump’s Campaign Manager, Deputy Campaign Manager, Personal Lawyer, Life-Long Rat-Fucker, National Security Advisor, and Foreign Policy Advisor who have either pled guilty to, been found by a judge to have, or been indicted for lying in an official proceeding, Mueller seriously considered charging at least three other Trump associates with lying.”

The expansive redactions pertaining to WikiLeaks and Roger Stone

So aside from the grand jury redactions hiding how Trump Sr and Jr dodged testifying and the way Barr describes the declinations redactions, I think the redactions are generally pretty judicious. I’m less certain, though, about the redactions pertaining to Roger Stone, the bulk of which appear in Volume I pages 51 to 59, 188 to 191, 196 to 197. and Volume II, pages 17 to 18 and 128 to 130.

There are two reasons to redact this information: most importantly, to comply with the gag order imposed by Amy Berman Jackson that prohibits lawyers on either side from making statements that “pose a substantial likelihood of material prejudice” to Stone’s case, or to hide information from Stone that he doesn’t otherwise know.

Except that we know he has already gotten the latter category of information in discovery. In a filing opposing Stone’s bid to get an unredacted copy of the Mueller Report, prosecutors noted that “disclosable information that may have been redacted from the public version of the Special Counsel’s report to the Attorney General is already being provided to the defendant in discovery.”

And it seems highly likely that some of the information in these redacted passages is stuff that would only prejudice Stone’s case by raising the import of it to Trump.

Consider, for starters, that (unless I’m mistaken) not a word from Stone’s indictment appears in this Report. For example, the descriptions of how Stone asked Jerome Corsi to ask Ted Malloch to find out what WikiLeaks had coming and a follow-up email reflecting knowledge that John Podesta would be targeted must be reflected on pages 55 and 56.

On or about July 25, 2016, STONE sent an email to Person 1 with the subject line, “Get to [the head of Organization 1].” The body of the message read, “Get to [the head of Organization 1] [a]t Ecuadorian Embassy in London and get the pending [Organization 1] emails . . . they deal with Foundation, allegedly.” On or about the same day, Person 1 forwarded STONE’s email to an associate who lived in the United Kingdom and was a supporter of the Trump Campaign.

On or about July 31, 2016, STONE emailed Person 1 with the subject line, “Call me MON.” The body of the email read in part that Person 1’s associate in the United Kingdom “should see [the head of Organization 1].”

On or about August 2, 2016, Person 1 emailed STONE. Person 1 wrote that he was currently in Europe and planned to return in or around mid-August. Person 1 stated in part, “Word is friend in embassy plans 2 more dumps. One shortly after I’m back. 2nd in Oct. Impact planned to be very damaging.” The phrase “friend in embassy” referred to the head of Organization 1. Person 1 added in the same email, “Time to let more than [the Clinton Campaign chairman] to be exposed as in bed wenemy if they are not ready to drop HRC. That appears to be the game hackers are now about. Would not hurt to start suggesting HRC old, memory bad, has stroke – neither he nor she well. I expect that much of next dump focus, setting stage for Foundation debacle.”

Page 56 actually includes new proof that Stone and Corsi had confirmed that Podesta’s emails were coming. Malloch describes Corsi telling him about Podesta’s emails, not vice versa.

Malloch stated to investigators that beginnin in or about Au ust 2016, he and Corsi had multiple Face Time discussions about WikiLeaks [redacted] had made a connection to Assange and that the hacked emails of John Podesta would be released prior to Election Day and would be helpful to the Trump Campaign. In one conversation in or around August or September 2016, Corsi told Malloch that the release of the Podesta emails was coming, after which “we” were going to be in the driver’s seat.221

Likewise, the indictment makes it clear that Stone was talking to the campaign about WikiLeaks releases.

ROGER JASON STONE, JR. was a political consultant who worked for decades in U.S. politics and on U.S. political campaigns. STONE was an official on the U.S. presidential campaign of Donald J. Trump (“Trump Campaign”) until in or around August 2015, and maintained regular contact with and publicly supported the Trump Campaign through the 2016 election.

During the summer of 2016, STONE spoke to senior Trump Campaign officials about Organization 1 and information it might have had that would be damaging to the Clinton Campaign. STONE was contacted by senior Trump Campaign officials to inquire about future releases by Organization 1.

[snip]

By in or around June and July 2016, STONE informed senior Trump Campaign officials that he had information indicating Organization 1 had documents whose release would be damaging to the Clinton Campaign. The head of Organization 1 was located at all relevant times at the Ecuadorian Embassy in London, United Kingdom.

After the July 22, 2016 release of stolen DNC emails by Organization 1, a senior Trump Campaign official was directed to contact STONE about any additional releases and what other damaging information Organization 1 had regarding the Clinton Campaign. STONE thereafter told the Trump Campaign about potential future releases of damaging material by Organization 1.

We see outlines of precisely who those references are to in the report.

Most notably, after describing Trump’s enthusiasm after Stone told Trump while Michael Cohen was listening on the speaker phone that the DNC emails would drop in a few days just before they did (which Cohen described in his testimony to Oversight), these two paragraphs, appear to to describe Manafort and Trump’s enthusiasm after the DNC release, with Manafort telling both Stone directly and Gates that he wanted to be kept informed via Stone of what was coming. And having gotten some indication of what was coming, the campaign started making plans to optimize those releases. It appears that Gates, like Cohen before him, witnessed a Stone-Trump call where the rat-fucker told the candidate what was coming.

These pages also have more background about how important all this was to Trump, who was frustrated that Hillary’s deleted emails hadn’t been found (something also told, in Flynn’s voice, in the Peter Smith section).

The references to Stone in these passages may well be appropriately redacted. But the descriptions of conversations between Trump and Manafort or Gates should not impact Stone’s defense — unless you want to argue that Trump’s personal involvement in Stone’s rat-fucking might change the deliberations for a jury. They don’t serve to hide Stone’s actions. They hide Trump’s enthusiasm for using materials stolen by Russia to win.

This affects the “collusion” discussion

All of this has particular import given the basis on which Attorney General Bill Barr tried to exonerate the President for obstruction. In Barr’s 4-page summary of the report, Barr emphasized that Trump did not conspire or coordinate with the Russian government, even going so far as to suggest that no Trump associate “conspired or coordinated with the Russian government on these efforts,” efforts which in context include, “publicly disseminat[ing hacked] materials through various intermediaries, including WikiLeaks.”

As the report states: “[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

[snip]

In assessing potential conspiracy charges, the Special Counsel also considered whether members of the Trump campaign “coordinated” with Russian election interference activities. The Special Counsel defined “coordinated” as an “agreement–tacit or express–between the Trump Campaign and the Russian government on election interference.”

[snip]

The second element involved the Russian government’s efforts to conduct computer hacking operations designed to gather and disseminate information to influence the election. The Special Counsel found that Russian government actors successfully hacked into computers and obtained emails from persons affiliated with the Clinton campaign and Democratic Party organizations, and publicly disseminated those materials through various intermediaries, including WikiLeaks. Based on these activities, the Special Counsel brought criminal charges against a number of Russian military officers for conspiring to hack into computers in the United States for purposes of influencing the election. But as noted above, the Special Counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in these efforts, despite multiple offers from Russian-affiliated individuals to assist the Trump campaign.

Of course, that leaves off coordinating with WikiLeaks because WikiLeaks is not the Russian government, even while in context it would be included.

Similarly, in Barr’s “no collusion” press conference, he again emphasized that Trump’s people were not involved in the hacking. Then he made a remarkable rhetorical move [I’ve numbered the key sentences].

But again, the Special Counsel’s report did not find any evidence that members of the Trump campaign or anyone associated with the campaign conspired or coordinated with the Russian government in its hacking operations.  In other words, there was no evidence of Trump campaign “collusion” with the Russian government’s hacking.

The Special Counsel’s investigation also examined Russian efforts to publish stolen emails and documents on the internet.  The Special Counsel found that, after the GRU disseminated some of the stolen materials through its own controlled entities, DCLeaks and Guccifer 2.0, the GRU transferred some of the stolen materials to Wikileaks for publication.  Wikileaks then made a series of document dumps.  [1] The Special Counsel also investigated whether any member or affiliate of the Trump campaign encouraged or otherwise played a role in these dissemination efforts.  [2] Under applicable law, publication of these types of materials would not be criminal unless the publisher also participated in the underlying hacking conspiracy.  [3] Here too, the Special Counsel’s report did not find that any person associated with the Trump campaign illegally participated in the dissemination of the materials.

Given what we know to be in the report, those three sentences look like this:

  1. Mueller asked, did any Trump affiliate encourage or otherwise play a role in WikiLeaks’ dissemination?
  2. By the way, if a Trump affiliate had played a role in the dissemination it wouldn’t be illegal unless the Trump affiliate had also helped Russia do the hacking.
  3. After finding that a Trump affiliate had played a role in the dissemination, Mueller then determined that that role was not illegal.

Again, “collusion” is not a legal term. It describes coordination — legal or not — in sordid activities. What these three sentences would say, if Barr had been honest, is that Mueller did find coordination, but because Stone (via yet unidentified means) coordinated with WikiLeaks, not Russia itself, Mueller didn’t find that the coordination was illegal.

Note that even Bill Barr, who’s a pretty shameless hack, still qualified the “no collusion” judgment on which he presents his obstruction analysis as pertaining to Russia.

After finding no underlying collusion with Russia, the Special Counsel’s report goes on to consider whether certain actions of the President could amount to obstruction of the Special Counsel’s investigation.  As I addressed in my March 24th letter, the Special Counsel did not make a traditional prosecutorial judgment regarding this allegation.  Instead, the report recounts ten episodes involving the President and discusses potential legal theories for connecting these actions to elements of an obstruction offense.

After carefully reviewing the facts and legal theories outlined in the report, and in consultation with the Office of Legal Counsel and other Department lawyers, the Deputy Attorney General and I concluded that the evidence developed by the Special Counsel is not sufficient to establish that the President committed an obstruction-of-justice offense.

Barr bases his obstruction analysis on “collusion,” not conspiracy. But his 1-2-3 gimmick above lays out that non-criminal “collusion” did happen, only that it happened with WikiLeaks.

For his part, Mueller points to those same passages that get redacted in the first discussion in his background discussion for the obstruction volume.

Importantly, the redaction in this footnote makes it clear that the campaign was relying on what they were learning from Stone to plan their communication strategy for upcoming releases.

Remember, in his charging decisions on campaign finance, Mueller didn’t actually say no crime had been committed. He said the evidence was not sufficient to obtain and sustain a criminal conviction.

The Office similarly determined that the contacts between Campaign officials and Russia-linked individuals either did not involve the commission of a federal crime or, in the case of campaign-finance offenses, that our evidence was not sufficient to obtain and sustain a criminal conviction.

There are multiple places where the report makes it clear that, in addition to the June 9 meeting, the campaign finance crimes reviewed included the WikiLeaks releases, including the Table of Contents.

Indeed, the paragraph describing why Trump may have wanted to fire Jim Comey focuses closely on the campaign’s response to the WikiLeaks releases.

In addition, the President had a motive to put the FBI’s Russia investigation behind him. The evidence does not establish that the termination of Comey was designed to cover up a conspiracy between the Trump Campaign and Russia: As described in Volume I, the evidence uncovered in the investigation did not establish that the President or those close to him were involved in the charged Russian computer-hacking or active-measure conspiracies, or that the President otherwise had an unlawful relationship with any Russian official. But the evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns. Although the President publicly stated during and after the election that he had no connection to Russia, the Trump Organization, through Michael Cohen, was pursuing the proposed Trump Tower Moscow project through June 2016 and candidate Trump was repeatedly briefed on the progress of those efforts.498 In addition, some witnesses said that Trump was aware that [redacted] at a time when public reports stated that Russian intelligence officials were behind the hacks, and that Trump privately sought information about future WikiLeaks releases.499 More broadly, multiple witnesses described the President’s preoccupation with press coverage of the Russia investigation and his persistent concern that it raised questions about the legitimacy of his election.500 [my emphasis]

And a more general discussion of Trump’s motives later in the obstruction discussion raises it — and the possibility that it would be judged to be criminal — explicitly.

In this investigation, the evidence does not establish that the President was involved in an underlying crime related to Russian election interference. But the evidence does point to a range of other possible personal motives animating the President’s conduct. These include concerns that continued investigation would call into question the legitimacy of his election and potential uncertainty about whether certain events–such as advance notice of WikiLeaks’s release of hacked information or the June 9, 2016 meeting between senior campaign officials and Russians–could be seen as criminal activity by the President, his campaign, or his family. [my emphasis]

The most damning revelations about the President’s own actions during the campaign in this report pertain to his exploitation of the WikiLeaks releases. They go directly to the question of criminal liability (which Mueller says he couldn’t charge for evidentiary reasons, not because he didn’t think it was a crime), and if you want to talk “collusion” as opposed to “conspiracy” — as the President does — it goes to “collusion.”

And in the guise of protecting Roger Stone’s right to a fair trial — and possibly with an eye towards preserving the President’s ability to pardon Stone before a trial reveals even more of these details — DOJ used a heavy hand on the redactions pertaining to Trump’s own personal involvement in exploiting the benefit his campaign received from WikiLeaks releasing emails that Russia stole from Hillary. These details are the bulk of what DOJ is hiding by offering just a small number of members of Congress to review the less-redacted version of the report.

Perhaps Mueller agreed with all these redactions; it’s a question I hope he gets asked when he finally testifies. But the redactions serve to hide what was clearly a close call on prosecution and one of the most damning explanations for Trump’s obstruction, an explanation that involved his own actions on the campaign.

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. 

“I Have Been Sending Everything to Victor:” On Paul Manafort’s Treasury-Sanctioned Meeting Planner, Viktor Boyarkin

Because the Mueller Report is a prosecutions and declinations report, it’s pretty circumspect in its suggestions that someone might be a spy. Admittedly, it makes an exception for Konstantin Kilimnik, about whom it provides five pieces of evidence and a comment redacted for sources and methods reasons — on top of repeating the FBI’s assessment — that he’s spooked up.

Manafort told the Office that he did not believe Kilimnik was working as a Russian “spy.”859 The FBI, however, assesses that Kilimnik has ties to Russian intelligence.860 Several pieces of the Office’s evidence-including witness interviews and emails obtained through court-authorized search warrants-support that assessment:

  • Kilimnik was born on April 27, 1970, in Dnipropetrovsk Ob last, then of the Soviet Union, and attended the Military Institute of the Ministry of Defense from 1987 until 1992.861 Sam Patten, a business partner to Kilimnik,862 stated that Kilimnik told him that he was a translator in the Russian army for seven years and that he later worked in the Russian armament industry selling arms and military equipment. 863
  • U.S. government visa records reveal that Kilimnik obtained a visa to travel to the United States with a Russian diplomatic passport in 1997. 864
  • Kilimnik worked for the International Republican Institute’ s (IRI) Moscow office, where he did translation work and general office management from 1998 to 2005.865 While another official recalled the incident differently,866 one former associate of Kilimnik’s at TRI told the FBI that Kilimnik was fired from his post because his links to Russian intelligence were too strong. The same individual stated that it was well known at IRI that Kilimnik had links to the Russian government.867
  • Jonathan Hawker, a British national who was a public relations consultant at FTI Consulting, worked with DMI on a public relations campaign for Yanukovych. After Hawker’s work for DMI ended, Kilimnik contacted Hawker about working for a Russian government entity on a public-relations project that would promote, in Western and Ukrainian media, Russia’s position on its 2014 invasion of Crimea. 868
  • Gates suspected that Kilimnik was a “spy,” a view that he shared with Manafort, Hawker, and Alexander van der Zwaan,869 an attorney who had worked with DMI on a report for the Ukrainian Ministry of ForeignAffairs.870

[Investigative Technique Redaction]

For others, they simply note — as they do here for Kilimnik — that a non-diplomat came to the US on a diplomatic or military visa. That’s what they do for Viktor Boyarkin, another close Deripaska aide: they just casually mention that he was in the US on a visa that doesn’t match the rest of his biography.

Kilimnik also maintained a relationship with Deripaska’s deputy, Viktor Boyarkin,857 a Russian national who previously served in the defense attache office of the Russian Embassy to the United States.858

For some reason, Mueller doesn’t invoke another description of Boyarkin in his report: That Trump’s own Treasury Department sanctioned him in December.

OLEG DERIPASKA RELATED DESIGNATION

Victor Alekseyevich Boyarkin (Boyarkin) is a former GRU officer who reports directly to Deripaska and has led business negotiations on Deripaska’s behalf.  Deripaska and Boyarkin were involved in providing Russian financial support to a Montenegrin political party ahead of Montenegro’s 2016 elections.  Boyarkin was designated pursuant to Executive Orders (E.O.) 13661 and 13662 for having acted or purported to act for or on behalf of, directly or indirectly, Oleg Deripaska, who was previously designated pursuant to E.O. 13661 for having acted or purported to act for or on behalf of a senior Russian government official, as well as pursuant to E.O. 13662 for operating in the energy sector of the Russian Federation economy, as well as with entities 50 percent or more owned by designated persons.

And while that sanction description is itself fairly coy, Boyarkin’s company in that batch of sanctions is telling: It includes several entities related to the Internet Research Agency’s trolling project, nine of the GRU officers indicted in the DNC hack, some of the related GRU officers who hacked the World Anti-Doping Federation, and the two GRU officers who tried to kill Sergei Skripal.

I guess noting that Kilimnik has ties to a guy who got sanctioned with all the other key players in the election year interference would be too obvious?

In an interview with Time last fall, Boyarkin boasted that Manafort spent his time running Trump’s campaign “offering ways to pay [the money he owed Oleg Deripaska] back.

Boyarkin told TIME this fall that he was in touch with Trump’s then-campaign chairman, Paul Manafort, in the heat of the presidential race on behalf of the Russian oligarch. “He owed us a lot of money,” Boyarkin says. “And he was offering ways to pay it back.”

That same Time article suggests that Manafort may have been involved, through Deripaska, in Montenegro’s 2016 election that resulted in a coup attempt, which is what Boyarkin got sanctioned for.

Boyarkin, you see, is the guy through whom Kilimnik was sending the stuff ultimately designated for Deripaska. The Mueller Report notes that explicitly with regards to the reporting Manafort did on his role in the campaign to his paymasters.

Immediately upon joining the Campaign, Manafort directed Gates to prepare for his review separate memoranda addressed to Deripaska, Akhmetov, Serhiy Lyovochkin, and Boris Kolesnikov,879 the last three being Ukrainian oligarchs who were senior Opposition Bloc officials. 880 The memoranda described Manafort’ s appointment to the Trump Campaign and indicated his willingness to consult on Ukrainian politics in the future. On March 30, 2016, Gates emailed the memoranda and a press release announcing Manafort’ s appointment to Kilimnik for translation and dissemination.881 Manafort later followed up with Kilimnik to ensure his messages had been delivered, emailing on April 11, 2016 to ask whether Kilimnik had shown “our friends” the media coverage of his new role. 882 Kilimnik replied, “Absolutely. Every article.” Manafort further asked: “How do we use to get whole. Has Ovd [Oleg Vladimirovich Deripaska] operation seen?” Kilimnik wrote back the same day, “Yes, I have been sending everything to Victor [Boyarkin, Deripaska’s deputy], who has been forwarding the coverage directly to OVD.”883

Manafort’s July offer for briefings for Deripaska also went through Boyarkin.

For example, in response to a July 7, 20 I 6, email from a Ukrainian reporter about Manafort’ s failed Deripaska-backed investment, Manafort asked Kilimnik whether there had been any movement on “this issue with our friend.”897 Gates stated that “our friend” likely referred to Deripaska,898 and Manafort told the Office that the “issue” (and “our biggest interest,” as stated below) was a solution to the Deripaska-Pericles issue.899 Kilimnik replied:

I am carefully optimistic on the question of our biggest interest. Our friend [Boyarkin] said there is lately significantly more attention to the campaign in his boss’ [Deripaska’s] mind, and he will be most likely looking for ways to reach out to you pretty soon, understanding all the time sensitivity. I am more than sure that it will be resolved and we will get back to the original relationship with V. ‘s boss [Deripaska].900

Eight minutes later, Manafort replied that Kilimnik should tell Boyarkin’s “boss,” a reference to Deripaska, “that if he needs private briefings we can accommodate.”901

Presumably, if Kilimnik sent everything designated for Deripaska to Boyarkin, that would include polling data and the campaign’s plans on how to win Michigan (indeed, there’s a redaction in the breach hearing that likely refers to Boyarkin) shared in that meeting on August 2, 2016 where Manafort and Kilimnik also discussed how to carve up Ukraine and how to get his debts forgiven by Deripaska.

That’s what makes a second meeting in Madrid (there’s a February one that Kilimnik also attended, which was included among the lies reviewed in Manafort’s breach determination) so interesting. In January, Manafort met with yet another Deripaska guy who once had an inexplicable diplomatic visa for the US, Georgiy Oganov.

Manafort’s activities in early 2017 included meetings relating to Ukraine and Russia. The first meeting, which took place in Madrid, Spain in January 2017, was with Georgiy Oganov. Oganov, who had previously worked at the Russian Embassy in the United States, was a senior executive at a Deripaska company and was believed to report directly to Deripaska.940 Manafort initially denied attending the meeting. When he later acknowledged it, he claimed that the meeting had been arranged by his lawyers and concerned only the Pericles lawsuit.941 Other evidence, however, provides reason to doubt Manafort’s statement that the sole topic of the meeting was the Pericles lawsuit. In particular, text messages to Manafort from a number associated with Kilimnik suggest that Kilimnik and Boyarkin-not Manafort’s counsel-had arranged the meeting between Manafort and Oganov.942 Kilimnik’s message states that the meeting was supposed to be “not about money or Pericles” but instead “about recreating [the] old friendship”-ostensibly between Manafort and Deripaska-“and talking about global politics.”943 Manafort also replied by text that he “need[s] this finished before Jan. 20,”944 which appears to be a reference to resolving Pericles before the inauguration.

While this wasn’t detailed in discernible way in Manafort’s breach determination, according to the report, he nevertheless lied about this meeting, too, in particular that it was not primarily about debt relief, but was instead about setting up his old relationship with Deripaska, which Rick Gates explained, “Deripaska used Manafort to install friendly political officials in countries where Deripaska had business interests.”

Boyarkin — the guy whom Treasury sanctioned along with a bunch of other key players in the election year operation — set up that meeting to “recreate the old friendship.”

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. 

Chuck Ross Gets Pissy about Russian Disinformation

I noted a while back that after covering the dossier full time, Chuck Ross had finally figured out it might be Russian disinformation.

In his coverage of the then State Department Deputy Assistant Secretary of State for European and Eurasian Affairs notes of a briefing from Christopher Steele, he continues that beat, but proves himself to utterly misunderstand the significance of disinformation — and do some of his most dishonest reporting to boot.

The notes from Kathleen Kavalec, which Citizens United liberated and which have been feeding the frothy right and the credulous left for a week, show that she recognized the raw intelligence she was being briefed on had problems, most notably in the claim that payments to a network of Russians in the US were paid out of the Russian Consulate in Miami — a consulate that Kavalec notes in her own notes does not exist (though which is curiously in the same place as Roger Stone).

That said, there are parts of it that actually accord with what we know: that Dmitry Peskov was in the loop, that the election year operation was not run by FSB, and that Russian thought they could keep this operation anonymous but failed. Even the claim that Carter Page was involved is more credible than the actual dossier claims about him, given that when he was in Russia, according to the Mueller Report, Peskov considered meeting with Page but then said,

“I have read about [Page]. Specialists say that he is far from being the main one. So I better not initiate a meeting in the Kremlin.”

The most ridiculous thing in Kavalec’s notes are how the Trump Tower-Alfa Bank-Spectrum Health hoax had gotten into the Christoper Steele reporting chain, which I correctly laid out in March 2017. As Steele (or Jonathan Winer, who may have briefed Kavalec in a game of telephone) understood it, the DNS look ups included Tor and was used by Paul Manafort to communicate with Alfa. That makes the entire story even stupider than it always has been, both on technical grounds (which in turn suggests Steele doesn’t understand computers, which is apparent from every single one of his cybersecurity reports), on logistics (why would Paul Manafort communicate from his Trump Tower condo via a server in Pennsylvania), and Manafort’s own habits (we know him to use foldering and WhatsApp, not Tor).

In other words, Kavalec’s notes, which show either the even rawer  intelligence on which Steele based his raw intelligence reports or a game of telephone that inserted errors at each re-telling, show them to be at once shittier and in a few areas also potentially more accurate than the dossier itself.

It’s on a different area — Kavalec’s citation of Putin advisor Vladislav Surkov and former head of SVR Vyacheslav Trubnikov where Ross totally blows how disinformation works.

Ross takes these Kavalaec notes…

Which get translated into this typed summary by Kavalaec:

And he invents from that that Vyacheslav Trubnikov and Vladislav Surkov are sources, for Steele, for the pee tape allegation.

In her notes, State Department official Kathleen Kavalec also referred to the two Russians — former Russian foreign intelligence chief Vyacheslav Trubnikov and Putin aide Vladislav Surkov — as “sources.”

The references to Trubnikov and Surkov, which have not previously been reported, are not definitive proof that either were sources for Steele’s dossier or that they were involved in an effort to collect blackmail material on Trump.

[snip]

Trubnikov and Surkov are not identified by name in Steele’s dossier, which the FBI used as part of its investigation into possible collusion between the Trump campaign and Russia. But the information that the former British spy attributed to the two Russians involves the dossier’s most salacious allegation: that the Russian government had sexually compromising material on Trump.

Kavalec’s notes said Steele claimed Trump was “filmed engaged in compromising activities” with Russian prostitutes in 2013, but that “the Russians have not needed to use the ‘kompromat’ on [Trump] as he was already in cooperation.”

Steele, who operates a private intelligence firm in London, told Kavalec that Putin and some of his top advisers were running the Trump operation.

“Presidential Advisor Vladislov Surkov and Vyasheslov Trubnikov (former head of Russian External Intelligence Service — SVR) are also involved,” wrote Kavalec, who served as deputy assistant secretary of state for European and Eurasian issues.

Kavalec’s handwritten notes also contain a reference to Trubnikov and Surkov as “sources,” but with no additional explanation.

Trubnikov served as head of Russia’s for

eign intelligence service, SVR, from 1996 to 2000. He went on to serve as first deputy for foreign affairs and ambassador to India.

The unverified allegations of sexual blackmail material on Trump are included in the June 20, 2016, memo from Steele’s dossier. Steele had been hired that same month by Fusion GPS, an opposition research firm the DNC and the Clinton campaign paid to investigate Trump.

Citing “a former top level Russian intelligence officer still active inside the Kremlin,” Steele claimed Russian authorities had gathered a substantial amount of “embarrassing material” on Trump and would “be able to blackmail him if they so wished.”

It is difficult to know how to interpret Steele’s claims about Trubnikov and Surkov, given the numerous problems that have emerged with the former British spy’s reporting.

As a threshold matter, this is a gross misreading of Kavalec’s notes. As Ross screencaps, her actual notes put Trubnikov and Surkov’s names under a July heading. The pee tape appears just once in the Steele dossier, in a report dated June 20, 2016. So if Trubnikov and Surkov were sources for Steele in July, they could not be the sources for the pee tape allegation. Moreover, Trubnikov and Surkov appear on a separate page from the reference to the Ritz in her original notes that would reflect a pee tape discussion, and she seems to say the source for that allegation is complicated.

But at least as Kavalec renders the reference to Trubnikov and Surkov in her typed summary of her own notes — which is where Ross gets the claim they’re sources for the pee tape — they are not sources for Steele but instead participants in the election year operation.

Steele stressed that while Trump was filmed in compromising activities with prostitutes in the Ritz Carlton, the Russians have not needed to use that “kompromat” on him as h was already interested in cooperation. (Steele said he is persuaded the story about the prostitutes is accurate because they had their source speak with hotel contacts who confirmed 1) that the FBS was in the hotel while Trump was there and 2) Trump regularly availed himself of prostitutes while in Moscow.) Steele indicated that this operation is run by the Kremlin — former Kremlin COS Sergey Ivanov, Dmitry Peskov and President Putin — and not the FSB. Presidential Advisor Vladislov [sic] Surkov and Vyacheslov [sic] Trubnikov (former head of Russian External Intelligence Service — SVR) are also involved.

Indeed, per Kavalec’s notes, Steele had just one source for the pee tape allegation, not two.

So Ross is, for starters, misreading what Kavalec’s notes say (which is not to say her own rendering of the notes — in either her handwritten notes or typed up summary — is accurate; this is ultimately a giant game of telephone).

But then, in a long piece that includes two paragraphs on how the Mueller Report debunked “Steele’s core claim of a ‘well-developed conspiracy’ between the Trump campaign and the Kremlin,” Ross doesn’t mention what the Report says about the pee tape.

The special counsel’s report all but debunked Steele’s core claim of a “well-developed conspiracy” between the Trump campaign and Kremlin. The report also said Michael Cohen did not visit Prague, which is where Steele claimed the former Trump lawyer met with Kremlin insiders to pay off computer hackers. (RELATED: Mueller Report Undercuts Several Steele Dossier Claims)

Public evidence has not backed up other allegations, including about “kompromat” on Trump. The president has vehemently denied the sex tape claim, and individuals who were with Trump during his Moscow trip have cast doubt on the allegation, saying Trump had virtually no time to take part in the steamy activities described by Steele.

The pee tape is the dossier claim that the Mueller Report most directly corroborates (though, given that Mueller never figured out what Manafort was doing sharing polling data he knew would be shared with Oleg Deripaska, in part because of Trump’s obstruction, we can’t discount the possibility he was coordinating more directly).

In the guise of explaining why Trump may have reacted badly when Jim Comey briefed him on the dossier, Mueller explained how Giorgi Rtskhiladze called Michael Cohen just before the election to assure him that he had “stopped flow of tapes from Russia,” which Rtskhiladze took to mean kompromat from the same 2013 trip Steele said the kompromat came from.

Comey’s briefing included the Steele reporting’s unverified allegation that the Russians had compromising tapes of the President involving conduct when he was a private citizen during a 2013 trip to Moscow for the Miss Universe Pageant. During the 2016 presidential campaign, a similar claim may have reached candidate Trump. On October 30, 20 I 6, Michael Cohen received a text from Russian businessman Giorgi Rtskhiladze that said, “Stopped flow of tapes from Russia but not sure if there’s anything else. Just so you know …. ” 10/30/16 Text Message, Rtskhiladze to Cohen. Rtskhiladze said “tapes” referred to compromising tapes of Trump rumored to be held by persons associated with the Russian real estate conglomerate Crocus Group, which had helped host the 2013 Miss Universe Pageant in Russia. Rtskhiladze 4/4/18 302, at 12. Cohen said he spoke to Trump about the issue after receiving the texts from Rtskhiladze. Cohen 9/12/18 302, at 13. Rtskhiladze said he was told the tapes were fake, but he did not communicate that to Cohen. Rtskhiladze 5/10/18 302, at 7.

Rtskhiladze has complained about how Mueller’s team portrayed this. But not only does his complaint contradict itself on the key issue of whether the tapes were real or not, it actually provides more reason to question whether the tapes exist or not (as Rtskhiladze worked so hard to deny he had seen them).

I’m not saying the tapes exist — but that’s the point about Russian disinformation, they don’t have to exist. There are four possibilities at this point:

  1. Steele made up the allegation, which no one is alleging
  2. The tape exists but is actually doctored to falsely claim either that Trump was sleeping with prostitutes or was engaging in kink in the Ritz Carlton
  3. The tape exists and is real
  4. The tape doesn’t exist, but someone lied when they told Steele’s source about it, and  Rtskhiladze or someone in his orbit heard of that lie (perhaps by Steele blabbing his mouth in DC) and Rtskhiladze repeated the lie to try to ingratiate himself to Cohen and make Trump fear the Agalarovs (which is who Rtskhiladze claimed had the tapes)

If you believe the dossier is substantially Russian disinformation, then either 2 or 4 are possibilities. Either one, though, changes the import of Russian disinformation, because it shows that Russia was just as happy to target Trump with disinformation in 2016 as they were with Hillary (something I strongly believe to be true).

That possibility would totally fuck with Chuck’s story — which also entails making much of the mention of the fact that Stefan Halper, someone the US government paid to collect intelligence on people including Russians, invited Trubnikov to an event where Halper might collect information from him.

Virtually all the denialists argue that we should not talk about how the pee tape appears in the Mueller Report, even though both Cohen and Rtskhiladze — seemingly independently — seem to have the same understanding of what those text messages relate to, even though both have said that they don’t believe the tapes to actually exist.

For Chuck Ross, the possibility that the Russians might actually use disinformation to manipulate Trump independent of any disinformation fed to Steele would totally fuck up his narrative, even though it is fundamental to the likelihood that the Russians fed Steele disinformation.

Chuck wants this to feed his partisan narrative that the Democrats — in compiling the same kind of oppo research that Steve Bannon did with Clinton Cash — did something bad (they did something incompetent, which is different) and the Russians capitalized on that to make Trump look bad (with information that, in significant parts, alleges things that really happened, but with other people involved). But real or fake, the pee tape referenced by Rtskhiladze undermines that narrative. It means that Russians were happy to sow disinformation targeting everyone.

Unsurprisingly, then, Chuck remains silent about it.

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. 

The Scope and Results of the Mueller Report

There’s a Twitter account, TrumpHop, that tweets out Donald Trump’s tweets from years earlier, which is a really disorienting way to remind yourself how crazy he’s been since he’s been on Twitter. This morning, it recalled that two years ago today, Trump was inventing excuses for having shared highly classified Israeli intelligence at the same meeting where he boasted to Sergei Lavrov that he fired Jim Comey a week earlier because of the Russian investigation.

Two years ago, Rod Rosenstein — the same guy who stood, mostly stoically, as a prop for Bill Barr’s deceitful press conference spinning the Mueller Report one last time before releasing it — was in a panic, trying to decide what to do about a President who had fired the FBI Director to end an investigation into what might be real counterintelligence compromise on his part by a hostile foreign country and then went on to share intelligence with that same hostile foreign country. Tomorrow is the two year anniversary of Mueller’s appointment.

As I noted days after the Mueller Report was released, it is utterly silent on that sharing of information and two of the other most alarming incidents between Trump and Russia (though that may be for sound constitutional, rather than scope reasons) — Trump’s conversation with Putin about the subject of his own June 9 false statement even as he was drafting that statement, and the Helsinki meeting. That said, it cannot be true that Mueller didn’t consider those counterintelligence issues, because his treatment of Mike Flynn would have been far different if he didn’t have good reason to be sure — even if he deliberately obscures the reasons why he’s sure in the report — that Flynn, at the time under active counterintelligence investigation for his suspect ties to Russia, wasn’t entirely freelancing when he undermined US policy to offer sanctions considerations to Russia on December 29, 2016.

Nevertheless, a rising cry of people are suggesting that because we weren’t told the results of the counterintelligence investigation (whether it included the President or, because of constitutional reasons, did not), Mueller did not conduct a counterintelligence investigation. He (and, especially, FBI Agents working alongside him) did. Here’s what the report says, specifically, about the FBI writing up CI and Foreign Intelligence reports to share with the rest of FBI.

From its inception, the Office recognized that its investigation could identify foreign intelligence and counterintelligence information relevant to the FBI’s broader national security mission. FBI personnel who assisted the Office established procedures to identify and convey such information to the FBI. The FBI’s Counterintelligence Division met with the Office regularly for that purpose for most of the Office’s tenure. For more than the past year, the FBI also embedded personnel at the Office who did not work on the Special Counsel’s investigation, but whose purpose was to review the results of the investigation and to send-in writing-summaries of foreign intelligence and counterintelligence information to FBIHQ and FBI Field Offices. Those communications and other correspondence between the Office and the FBI contain information derived from the investigation, not all of which is contained in this Volume. This Volume is a summary. It contains, in the Office’s judgment, that information necessary to account for the Special Counsel’s prosecution and declination decisions and to describe the investigation’s main factual results.

Mueller didn’t report on it, as he states explicitly, because that’s outside the scope of what he was required and permitted to report under the regulations governing his appointment, which call for a prosecutions and declinations report.

That’s just one of the misconceptions of the scope, intent, and results of the Mueller Report that persists (and not just among the denialist crowd), almost a month after its release.

The Mueller Report does not purport to tell us what happened — that would be a violation of the regulations establishing the Special Counsel. It only describes the prosecutorial and declination decisions. The scope of those decisions includes:

  • Who criminally conspired in two Russian election interference efforts (just one American was charged, but he did not know he was helping Russians troll the US)
  • Whether Trump’s associates were agents of a foreign power in violation of FARA or 18 USC 951, including whether they were agents of Ukraine (as Paul Manafort and Rick Gates were before the election), Israel (as lots of evidence suggested George Papadopoulos might have been), Turkey (as Mike Flynn admitted he had been during and for a short while after the election), as well as Russia
  • Whether Trump’s associates conspired with Russia in some way; Mueller’s review included a quid pro quo, but his prosecutorial decisions did not include things unrelated to Russia’s election interference (which might, for example, include pure graft, including during the Transition period or related to the inauguration)
  • Which of Trump’s associates got charged with lying (Flynn, Papadopoulos, Michael Cohen, Roger Stone), were ruled by a judge to have lied (Paul Manafort), and which lied but were not charged (at least three others, including KT McFarland) in an effort to obstruct the investigation
  • Whether accepting a meeting offering dirt as part of the Russian government’s assistance to Trump or optimizing WikiLeaks’ release of emails stolen by Russia to help Trump’s campaign amount to accepting illegal donations from foreigners
  • Whether Trump’s numerous efforts to undermine the investigation amount to obstruction

Two facts necessarily follow from Mueller’s limit in his report to prosecutorial decisions rather than describing what happened, both of which are explained on page 2 of the report (though even the Attorney General, to say nothing of the denialist crowd, appears not to have read that far). First, Mueller did not weigh whether Trump “colluded” with Russia, because that’s not a crime that could be prosecuted or declined.

In evaluating whether evidence about collective action of multiple individuals constituted a crime, we applied the framework of conspiracy law, not the concept of “collusion.” In so doing, the Office recognized that the word “collud[e]” was used in communications with the Acting Attorney General confirming certain aspects of the investigation’s scope and that the term has frequently been invoked in public reporting about the investigation. But collusion is not a specific offense or theory of liability found in the United States Code, nor is it a term of art in federal criminal law.

Because “collusion” is not a crime, Mueller could not weigh in one way or another without being in violation of the regulations underlying his appointment. Mind you, Bill Barr could have changed these reporting requirements if he wanted and asked Mueller to comment on “collusion.” He did not.

In addition, Mueller’s measure was always whether his investigation “established” one or another crime. But stating that he did not establish a crime is not the same as saying there was no evidence of that crime.

A statement that the investigation did not establish particular facts does not mean there was no evidence of those facts.

Mueller describes in very general way that he didn’t get all the information he’d have liked to weigh whether or not conspiracy was committed.

The investigation did not always yield admissible information or testimony, or a complete picture of the activities undertaken by subjects of the investigation. Some individuals invoked their Fifth Amendment right against compelled self-incrimination and were not, in the Office’s judgment, appropriate candidates for grants of immunity. The Office limited its pursuit of other witnesses and information–such as information known to attorneys or individuals claiming to be members of the media–in light of internal Department of Justice policies. See, e.g. , Justice Manual §§ 9-13.400, 13.410. Some of the information obtained via court process, moreover, was presumptively covered by legal privilege and was screened from investigators by a filter (or “taint”) team. Even when individuals testified or agreed to be interviewed, they sometimes provided information that was false or incomplete, leading to some of the false-statements charges described above. And the Office faced practical limits on its ability to access relevant evidence as well-numerous witnesses and subjects lived abroad, and documents were held outside the United States.

Further, the Office learned that some of the individuals we interviewed or whose conduct we investigated–including some associated with the Trump Campaign—deleted relevant communications or communicated during the relevant period using applications that feature encryption or that do not provide for long-term retention of data or communications records. In such cases, the Office was not able to corroborate witness statements through comparison to contemporaneous communications or fully question witnesses about statements that appeared inconsistent with other known facts.

More specifically, we know this language covers at least the following limits on the investigation:

  • Encryption or evidence destruction prevented Mueller from clarifying details of the handoff to WikiLeaks, Gates’ sharing (on Manafort’s orders) of polling data with Russia, Manafort’s communications with various people, and Erik Prince and Steve Bannon’s communications about the Seychelles meeting with Kirill Dmitriev
  • Mueller did not pursue the role of Trump and other associates’ lawyers’ substantial, known role in obstruction
  • Mueller likely did not pursue an interview with Julian Assange (and other media figures), because that would violate US Attorney Handbook warnings against compelling the sharing of journalism work product to investigate a crime related to that work product
  • Some foreigners avoided cooperating with the investigation by staying out of the country; Emin Agalarov canceled an entire US tour to avoid testifying about what kind of dirt he offered Don Jr
  • Both Donald Trumps refused to be interviewed
  • President Trump refused to answer all questions pertaining to his actions after inauguration, all but one question about the Transition, and all questions about sanctions; his other answers were largely contemptuous and in a number of cases conflict with his own public statements or the testimony of his associates

Finally a more subtle point about the results, which will set up my next post. Mueller clearly states that he did not establish a conspiracy between Trump’s people and the Russian government on election interference. By definition, that excludes whatever coordination Roger Stone had with WikiLeaks (and even with the extensive redactions, it’s clear Mueller had real First Amendment concerns with charging that coordination). But whereas Mueller said that the contacts between Trump’s associates and Russians did not amount to a crime, he suggested that the two campaign finance issues he explored — the June 9 meeting and the release of stolen emails — were crimes but not ones he could sustain a conviction for.

The Office similarly determined that the contacts between Campaign officials and Russia-linked individuals either did not involve the commission of a federal crime or, in the case of campaign-finance offenses, that our evidence was not sufficient to obtain and sustain a criminal conviction.

The gaps in evidence that Mueller was able to collect strongly impact this last judgment: as he laid out, he needed to know what Don Jr understood when he accepted the June 9 meeting, and without interviewing either Emin Agalarov and/or Jr, he couldn’t get at Jr’s understanding of the dirt offered.

As I’ve noted repeatedly, it is absolutely false to claim –as Attorney General Barr did — that Mueller’s report says there was no underlying crime to cover up with Trump’s obstruction. Mueller specifically mentions SDNY’s prosecution of Trump’s hush payments to Stormy Daniels and Karen McDougal, a crime which was charged, and which was one of the explicit purposes behind the raid on Cohen’s home and office. And as such, that crime is pertinent to the pardon dangle for Cohen.

In January 2018, the media reported that Cohen had arranged a $130,000 payment during the campaign to prevent a woman from publicly discussing an alleged sexual encounter she had with the President before he ran for office.1007 This Office did not investigate Cohen’s campaign period payments to women. 1008 However, those events, as described here, are potentially relevant to the President’s and his personal counsel’s interactions with Cohen as a witness who later began to cooperate with the government.

But with regards to the Russian-related campaign finance investigation, Mueller describes that Trump may have believed those would be criminal.

[T]he evidence does indicate that a thorough FBI investigation would uncover facts about the campaign and the President personally that the President could have understood to be crimes or that would give rise to personal and political concerns.

The distinction about whether a crime was committed versus whether it was charged may be subtle. But it is an important one for the obstruction investigation. And as I’ll show, that may have interesting repercussions going forward.

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. 

Rick Gates’ Status Report Suggests Trump Will Be a Focus of Roger Stone’s Trial

As I noted yesterday, the government submitted a status report in Rick Gates’ case yesterday — the first since Mueller submitted his report. In the past several prior reports, the government had asked for sixty day extensions, but here, the government is asking for over three months.

The prosecutors who submitted the report — who are both on the Greg Craig prosecution team — make one reason for the longer extension clear: they’re scheduling the next status report for after Craig’s trial is expected to finish.

To date: (1) defendant Gates continues to cooperate with the government as required by his Plea Agreement, and (2) this Court has scheduled a trial in United States v. Craig, 19-CR-125 (ABJ), to begin on August 12, 2019,

Gates is not obviously mentioned in Craig’s indictment, but Paul Manafort is central to it, so presumably prosecutors want to have Gates explain why Manafort thought it so important that Craig hide the source of the funding for the Skadden Arps payment, Victor Pinchuk, which parallels the reasons why Manafort wanted everyone else who worked for him to keep their Ukrainian paymasters secret.

But prosecutors also mention Roger Stone’s November trial (though none of Stone’s prosecutors are on this filing).

another trial, United States v. Stone, 19-CR-18 (ABJ), to begin November 5, 2019

That’s interesting given the way the very redacted passages treating Stone’s charges in the Mueller Report flesh out Gates’ role as a liaison between Trump and Stone in the effort to optimize the WikiLeaks releases. Stone’s indictment had been coy on this point (so much so, I’ve wondered whether Big Dick Toilet Salesman told Mueller to stop mentioning Trump in charging documents after the Michael Cohen plea). It describes senior members of the campaign contacting Stone to find out what WikiLeaks had coming.

During the summer of 2016, STONE spoke to senior Trump Campaign officials about Organization 1 and information it might have had that would be damaging to the Clinton Campaign. STONE was contacted by senior Trump Campaign officials to inquire about future releases by Organization 1.

[snip]

By in or around June and July 2016, STONE informed senior Trump Campaign officials that he had information indicating Organization 1 had documents whose release would be damaging to the Clinton Campaign.

And there’s this very pregnant passage using the passive voice to describe someone — the indictment doesn’t name who — directing a senior campaign official to contact Stone about further releases, which would lead to Stone’s efforts to find out, in part via Jerome Corsi, what was coming in late July and early August.

After the July 22, 2016 release of stolen DNC emails by Organization 1, a senior Trump Campaign official was directed to contact STONE about any additional releases and what other damaging information Organization 1 had regarding the Clinton Campaign. STONE thereafter told the Trump Campaign about potential future releases of damaging material by Organization 1.

Stone has denied it happened but said if it did, Gates would have been the one who reached out to him.

And while the passage of the Mueller Report describing all this is heavily redacted, it does seem to confirm that — after Trump and Manafort both showed great interest in the WikiLeaks releases, at least Manafort and probably both (given the reference to Manafort “separately” telling Gates to stay in touch with Stone) told Gates to reach out to Stone.

[snip]

In addition, Gates seems to have witnessed Trump take a call from Stone at which the then candidate’s rat-fucker informed him about the upcoming WikiLeaks releases.

Given all the documentary evidence the government has against Stone, Gates’ testimony is probably not necessary to prove that Stone lied to the House Intelligence Committee about his efforts to optimize the WikiLeaks releases. But it may serve several prosecutorial roles.

First, given that Stone was interacting with Trump directly on the WikiLeaks releases, Gates’ (as well as Michael Cohen and even Manafort’s, the latter of whom seems to have uncharacteristically told the truth on this to the grand jury) confirmation that such contacts occurred could easily explain Stone’s motive to lie to HPSCI — which would serve to protect Trump. This is all the more true given how brazenly Trump lied about this point in his sworn answers to Mueller.

I recall that in the months leading up to the election there was considerable media reporting about the possible hacking and release of campaign-related information and there was a lot of talk about this matter. At the time, I was generally aware of these media reports and may have discussed these issues with my campaign staff or others, but at this point in time – more than two years later – I have no recollection of any particular conversation, when it occurred, or who the participants were.

I do not recall being aware during the campaign of any communications between [Stone, Donald Trump, Jr., Manafort, or Gates] and anyone I understood to be a representative of WikiLeaks or any of the other individuals or entities referred to in the question.

[snip]

I was in Trump Tower in New York City on October 7, 2016. I have no recollection of being told that WikiLeaks possessed or might possess emails related to John Podesta before the release of Mr. Podesta’s emails was reported by the media. Likewise, I have no recollection of being told that Roger Stone, anyone acting as an intermediary for Roger Stone, or anyone associated with my campaign had communicated with WikiLeaks on October 7, 2016.

I do not recall being told during the campaign that Roger Stone or anyone associated with my campaign had discussions with [WikiLeaks, Guccifer 2.0, or DCLeaks] regarding the content or timing of release of hacked emails.

I spoke by telephone with Roger Stone from time to time during the campaign. I have no recollection of the specifics of any conversations I had with Mr. Stone between June 1.2016 and November 8, 2016. I do not recall discussing WikiLeaks with him, nor do I recall being aware of Mr. Stone having discussed WikiLeaks with individuals associated with my campaign, although I was aware that WikiLeaks was the subject of media reporting and campaign-related discussion at the time.

Gates will not only help to prove that Trump knew all this was going on, but that the campaign had dedicated resources to make use of Stone’s disclosures.

In addition, the government’s ability to tie the President directly to this part of the operation will make it harder (though nothing is beyond Trump) to pardon Stone before the trial, even while it will provide incentive to Trump to do so. Trump’s centrality in all this may be one reason William Barr is so aggressively protecting the Stone related disclosures, including with his refusals to share unredacted copies of the report with Congress: because Trump’s documented role in encouraging Stone’s efforts is far stronger than it is in any of the other potential incidences of election tampering.

Finally, all this may change the calculus if and when Julian Assange gets extradited to the US. Trump was asked about — but refused to answer — whether he considered a pardon for Assange.

Trump’s lies to Mueller are perhaps best documented as they pertain to WikiLeaks. Using Gates as a witness at Stone’s trial will make the trial an exhibition of the President’s lies as much as those of his rat-fucker.

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. 

A Tale of Three (Former) Mueller Dockets

Because I’m wondering why Robert Mueller remains a DOJ employee, which makes it harder for the House Judiciary Committee to get his testimony by subpoenaing him, I wanted to observe the status of three different former Mueller dockets, three weeks after Mueller submitted his “final report.”

The mass swap: Paul Manafort

First, there’s Manafort’s (and Rick Gates’) docket. On March 25, the first work day after delivery of the report, every single Mueller prosecutor filed a notice of withdrawal (Kyle Freeny had already withdrawn on October 17, 2008):

  • Adam Jed
  • Andrew Weissmann
  • Elizabeth Prelogar
  • Greg Andres
  • Jeanie Rhee
  • Michael Dreeben
  • Scott Meisler

Those seven prosecutors were replaced with a remarkably large team, considering Manafort is supposedly done, Rick Gates only awaits sentencing, and Konstantin Kilimnik presumably will never show up in the US to be prosecuted on his single witness tampering charge. The team includes:

  • Deborah Curtis
  • Fernando Campoamor-Sanchez
  • Jonathan Kravis
  • Molly Gaston
  • Zia Mustafa Faruqui

The large team for a prosecution that’s supposedly over is interesting for two reasons. First, Campoamor-Sanchez and Gaston just filed a status report in Gates’ case saying he’s not ready for sentencing. They specifically mention both Greg Craig’s August 12 trial (both are on that prosecutorial team) and Roger Stone’s November 5 trial suggesting they’ll hold off on sentencing him until after those are done.

More interesting still has been the government response to WaPo’s effort to unseal the redactions in Manafort’s plea breach proceedings. At first, Dreeben and Jed filed appearances, signing a request for an extension on March 19, just three days before Mueller finished a report that included new details about issues (the sharing of polling data and the Ukraine “peace” deals) that made up one of the most redacted topics in the breach proceedings. On March 27, Dreeben, Jed, and DC AUSA Jonathan Kravis filed another request for an extension, citing the transfer of “this matter” to the DC US Attorney’s office. After securing that extension on March 28, Dreeben, but not Jed, filed a notice of withdrawal on March 29. On April 15, Kravis responded by saying that the government could not yet unseal the documents — it went through and listed all the documents at issue — because of ongoing investigations, plural, and privacy concerns; the filing said WaPo should check back in six months.

We know what some of the ongoing investigations are: there’s the government’s effort to learn via what kickback system Manafort got paid, as well as some other attempt to save Trump’s campaign in August 2016 where Manafort’s lies aligned with those of the person trying to avoid prosecution after he signed the plea.

Still, that doesn’t explain why the polling and Ukraine stuff can’t be unsealed. Unless the government’s trying to hide Manafort’s lies about it all. Or the government continues to investigate Manafort’s post-election efforts to help Russia carve up Ukraine.

The new addition: Mike Flynn

Compare that to Mike Flynn’s case, which seems to be a mid-point between Manafort and Gates’ status. There, Brandon Van Grack (who has been put in charge of DOJ’s new FARA unit) and Zainab Ahmad (who has moved back to her old prosecutor job) remain on the docket. On April 9, Deborah Curtis joined that docket. She seems to be dealing with the ongoing counterintelligence interests arising out of Flynn’s case. She has joined Brandon Van Grack in WaPo’s suit to obtain the sentencing documents not yet made public. The government has to submit a response to WaPo’s request in that case tomorrow.

And on May 7, prosecutors in the Bijan Kian case requested and got an extension on some discovery materials; previously there had been a delay in turning over materials related to Flynn’s cooperation with Mueller.

The hybrid: Roger Stone

Finally, there’s Stone’s case. That case is different because DC AUSAs were included from the time Stone was indicted.

  • Jonathan Kravis
  • Michael Marando

Several of the Mueller prosecutors filed withdrawal notices on April 16, presumably when the considerable work of redacting all the Stone references in the Mueller Report was done.

  • Jeannie Rhee
  • Rush Atkinson

Andrew Goldstein didn’t file his notice of withdrawal until April 30, the day of Stone’s last status hearing. Adam Jed, one of Mueller’s appellate specialists, filed a notice of appearance that day, not long after Stone submitted a bunch of largely frivolous challenges to his prosecution that tie in part to Mueller’s mandate. One other Mueller prosecutor, Aaron Zelinsky, remains on the docket.

Zelinsky’s continued presence on the docket may be tied to the Andrew Miller challenge to a subpoena. I’ve wondered if Mueller remains at DOJ to keep that and the Mystery Appellant subpoena challenges active.

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

Trump’s Excuse for His Promised Speech on Hillary Clinton

On June 21, 2016, the day after Christopher Steele submitted the first installment in his dossier, Guccifer 2.0 published what the persona deemed a dossier on Hillary Clinton. It included a bunch of files — many dating to April 2015 — that summarized potential attacks on Hillary, often providing rebuttals. These documents appear to be the kind of reports campaigns do to prepare for attacks they expect to be hit with.

The “dossier” included four files relating to the Clinton Foundation (two of which were responses to the Peter Schweizer book Clinton Cash), one on defenses to attacks on her email server, another on attacks on Bill and Chelsea, and a summary of the attacks GOP primary candidates had made on her, a number of which focused on national security. While the files were definitely dated (and the financial records, in particular, worthless), it is the closest thing to a “dossier” of “kompromat” released during the entire Russian operation.

The timing of that release and its focus — including on Schweizer’s book — is worth revisiting given the explanation Trump gave Mueller (starting on PDF 427) for his aborted promise, on June 7, 2016 to, “give a major speech on probably Monday of next week and we’re going to be discussing all of the things that have taken place with the Clintons.”

g. On June 7, 2016, you gave a speech in which you said, in part, “I am going to give a major speech on probably Monday of next week and we’re going to be discussing all of the things that have taken place with the Clintons.”

i. Why did you make that statement?

ii. What information did you plan to share with respect to the Clintons?

iii. What did you believe the source(s) of that information would be?

iv. Did you expect any of the information to have come from the June 9 meeting?

v. Did anyone help draft the speech that you were referring to? If so, who?

v. Why did you ultimately not give the speech you referenced on June 7, 2016?

[snip]

In remarks I delivered the night I won the California, New Jersey, New Mexico, Montana, and South Dakota Republican primaries, I said, “I am going to give a major speech on probably Monday of next week and we’re going to be discussing all of the things that have taken place with the Clintons.” In general, l expected to give a speech referencing the publicly available, negative information about the Clintons, including, for example, Mrs. Clinton’s failed policies, the Clintons’ use of the State Department to further their interests and the interests of the Clinton Foundation, Mrs. Clinton’s improper use of a private server for State Department business, the destruction of 33,000 emails on that server, and Mrs. Clinton’s temperamental unsuitability for the office of President.

In the course of preparing to respond to your questions, I have become aware that the Campaign documents already produced to you reflect the drafting, evolution, and sources of information for the speech I expected to give “probably” on the Monday following my June 7, 2016 comments. These documents generally show that the text of the speech was initially drafted by Campaign staff with input from various outside advisors and was based on publicly available material, including, in particular, information from the book Clinton Cash by Peter Schweizer.

The Pulse Nightclub terrorist attack took place in the early morning hours of Sunday, June 12, 2016. In light of that tragedy, I gave a speech directed more specifically to national security and terrorism than to the Clintons. That speech was delivered at the Saint Anselm College Institute of Politics in Manchester, New Hampshire, and, as reported, opened with the following:

This was going to be a speech on Hillary Clinton and how bad a President, especially in these times of Radical Islamic Terrorism, she would be. Even her former Secret Service Agent, who has seen her under pressure and in times of stress, has stated that she lacks the temperament and integrity to be president. There will be plenty of opportunity to discuss these important issues at a later time, and I will deliver that speech soon. But today there is only one thing to discuss: the growing threat of terrorism inside of our borders.

I continued to speak about Mrs. Clinton’s failings throughout the campaign, using the information prepared for inclusion in the speech to which I referred on June 7, 2016.

If the documents submitted to Mueller do back his claims that the speech was in preparation ahead of time, then Trump’s answer is one of the most responsive ones he gave Mueller. But we’ve already seen one instance — whether Trump ever declined an invitation to St. Petersburg from Russian Deputy Prime Minister Sergei Prikhodko (if footnotes are understood to be comprehensive, Trump submitted an unsigned letter, but not a signed copy or the emails that supposedly extended the invitation) — where Trump’s written responses claimed that documentation submitted to Mueller substantiated more than they appear to have.

And Trump didn’t really answer the question why he didn’t give a designated speech focused on those topics; he instead simply suggested he covered those topics along the way, generally.

Elsewhere, the report describes a discussion at a meeting that Mueller believes happened on June 6 relayed by Rick Gates at which Don Jr promised damaging information about the Clinton Foundation which — though vague — appears to reference an upcoming meeting.

Rick Gates, who was the deputy campaign chairman, stated during interviews with the Office that in the days before June 9, 2016 Trump Jr. announced at a regular morning meeting of senior campaign staff and Trump family members that he had a lead on negative information about the Clinton Foundation.703 Gates believed that Trump Jr. said the information was coming from a group in Kyrgyzstan and that he was introduced to the group by a friend. 704 Gates recalled that the meeting was attended by Trump Jr., Eric Trump, Paul Manafort, Hope Hicks, and, joining late, Ivanka Trump and Jared Kushner. According to Gates, Manafort warned the group that the meeting likely would not yield vital information and they should be careful.705 Hicks denied any knowledge of the June 9 meeting before 2017,706 and Kushner did not recall if the planned June 9 meeting came up at all earlier that week.707 [my emphasis]

Which is why I find it interesting that Guccifer 2.0 released a set of documents that — while not all that exciting, were nevertheless directly on point regarding the topics Trump claimed were already being drafted into a speech he’d give.

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

Why Didn’t Mueller Hold Counterintelligence Suspect Mike Flynn Responsible for Sanctions Call?

There’s a problem with the way the Mueller Report describes events pertaining to Mike Flynn.

It describes how someone under active counterintelligence investigation for his ties to Russia and already on thin ice with the President-Elect got on the phone and, through the Russian Ambassador, persuaded Vladimir Putin to hold off on retaliating for US sanctions. It describes how Flynn avoided leaving a paper trail of that call. Ultimately, the report remains inconclusive about whether Flynn made that call on his own initiative — which would seem to bolster the case he had suspect loyalties with the Russians — or at the direction of the President — in which case his actions would be appropriate from a constitutional standpoint (because this is the kind of thing the President can choose to do), but not a legal one (because he was purposely hiding it from the Obama Administration). One or the other would seem to be a necessary conclusion, but the Mueller Report reaches neither one.

In part, that’s because both Flynn and KT McFarland seem to have protected President Trump’s plausible deniability even after both got caught lying about these events. But it also appears that Mueller is more certain about the answer than he lets on in the public report.

This is the subject that, in my post noting that the Mueller Report has huge gaps precisely where the most acute counterintelligence concerns about Trump’s relationship with Putin are, I suggested created a logical problem for the report as a whole.

If it is the case that Flynn did what he did on Trump’s orders — which seems the only possible conclusion given Mueller’s favorable treatment of Flynn — then it changes the meaning of all of Trump’s actions with regard to the Russian investigation, but also suggests that that conclusion remains a counterintelligence one, not a criminal one.

Mike Flynn was under active counterintelligence investigation but he’s not an Agent of Russia

According to the Mueller Report, the first Rosenstein memo laying out the detailed scope of the investigation, dated August 2, 2017, included “four sets of allegations involving Michael Flynn, the former National Security Advisor to President Trump.” Two of those four must be his unregistered sleazy influence peddling for Turkey (which he got to plead off of as part of his plea agreement) and the Peter Smith operation to obtain Hillary’s deleted emails (about which his testimony is reflected in the Mueller Report).

Then there’s the counterintelligence investigation into Flynn. We’ve known that the FBI had a counterintelligence investigation into Flynn since before HPSCI released its Russian Report, and a later release of that report described that the investigation was still active when the FBI interviewed Flynn on January 24, 2017.

A key focus of that investigation —  one reflected in Flynn’s January 24, 2017 302 — was his paid attendance at a December 10, 2015 RT event in Moscow in December 2015, where he sat with Putin. The Mueller Report makes just one reference to that event, and only as a way of describing the public reporting on Trump flunkies’ ties to Russia during the campaign.

Beginning in February 2016 and continuing through the summer, the media reported that several Trump campaign advisors appeared to have ties to Russia. For example, the press reported that campaign advisor Michael Flynn was seated next to Vladimir Putin at an RT gala in Moscow in December 2015 and that Flynn had appeared regularly on RT as an analyst.15

15 See, e.g., Mark Hosenball & Steve Holland, Trump being advised by ex-US. Lieutenant General who favors closer Russia ties, Reuters (Feb. 26, 2016); Tom Hamburger et al., Inside Trump’s financial ties to Russia and his unusual flattery of Vladimir Putin, Washington Post (June 17, 2016). Certain matters pertaining to Flynn are described in Volume I, Section TV.B.7, supra.

However, in addition to that trip, the FBI must have been scrutinizing earlier Kislyak contacts that don’t show up in the Report at all:

  • A meeting on December 2, 2015 (described in the HPSCI report) that Kislyak that Flynn and his failson attended in advance of the RT trip at the Russian Embassy
  • A call to Kislyak sometime after GRU head Igor Sergun’s death in Lebanon on January 6, 2016; in his interview with the FBI; Flynn said he called to offer condolences, though he used that excuse for other calls that involved substantive policy discussions; he also claimed, not entirely credibly, not to be associated with the Trump campaign yet
  • Other conversations during the campaign that Flynn revealed to friends that otherwise don’t show up in public documents

In one of the only (unredacted) references to the counterintelligence investigation into Flynn, the Mueller Report describes that Flynn’s contacts with Kislyak became a key focus of that investigation.

Previously, the FBI had opened an investigation of Flynn based on his relationship with the Russian government.105 Flynn’s contacts with Kislyak became a key component of that investigation.10

But that passage doesn’t reveal the scope of those contacts and, in spite of detailed analysis of other people’s contacts with Kislyak (including an invite to JD Gordan to his residence that appears similar to the December 2015 one Kislyak extended to Flynn and his son), the Report doesn’t mention those earlier contacts.

Perhaps far more interesting, in the report’s analysis of whether any Trump aide was an agent of Russia, it does not include Flynn in the paragraph explaining why Paul Manafort, George Papadopoulos, and Carter Page were not charged as such. Instead, his foreign influence peddling is treated in a separate paragraph discussing just Turkey.

In addition, the investigation produced evidence of FARA violations involving Michael Flynn. Those potential violations, however, concerned a country other than Russia (i.e., Turkey) and were resolved when Flynn admitted to the underlying facts in the Statement of Offense that accompanied his guilty plea to a false-statements charge. Statement of Offense, United States v. Michael T Flynn, No. l:17-cr-232 (D.D.C. Dec. 1, 2017), Doc. 4 (“Flynn Statement of Offense”). 1281

The footnote to that paragraph, which given the admission elsewhere that a separate counterintelligence investigation into Flynn focused on Russia, likely deals with Russia, is entirely redacted for Harm to Ongoing Matters reasons.

While we can’t be sure (hell, we can’t even be totally sure this does relate to Russia!), this seems to suggest that the investigation into Russian efforts to cultivate Flynn is ongoing, but he has been absolved of any responsibility for — as an intelligence officer with 30 years of counterintelligence training — nevertheless falling prey to such efforts.

All of which is to say that, along with the descriptions of Trump’s most alarming interactions with Russians including Vladimir Putin, many of Flynn’s contacts with Kislyak and other Russians (including not just Putin but the guy who headed GRU until just before the election hacking started in earnest in January 2016) appear to be treated as counterintelligence information not suitable for public sharing.

The Mueller Report deliberately obscures key details of the timeline on the sanctions call

That’s important to note, because the counterintelligence conclusion on Flynn has to be utterly central to the analysis of Trump’s attempt to obstruct the investigation into Flynn.

The two discussions in the Mueller Report (Volume I pages 168 to 173 and Volume II pages 24 to 48) of Flynn’s December 2016 conversations with Sergey Kislyak are totally unsatisfying, probably in part because two key witnesses (Flynn and KT McFarland, and possibly others including Steve Bannon) lied when the FBI first interviewed them about the calls; they had also created a deliberately misleading paper trail for the events.

In both places, the Report provides times for some events on December 29, but obscures the most critical part of the timeline. I’ve put the Volume I language at the end of this post. It provides the following timeline for December 29, 2016:

1:53PM: McFarland and other Transition Team members and advisors (including Flynn, via email) discuss sanctions.

2:07PM: [Transition Team Member] Flaherty, an aide to McFarland, texts Flynn a link to a NYT article about the sanctions.

2:29PM: McFarland calls Flynn, but they don’t talk.

Shortly after 2:29PM: McFarland and Bannon discuss sanctions; according to McFarland’s clean-up interview, she may have told Bannon that Flynn would speak to Kislyak that night.

3:14PM: Flynn texts Flaherty and asks “time for a call??,” meaning McFarland. Flaherty responds that McFarland was on the phone with Tom Bossert. Flynn informs Flaherty in writing that he had a call with Kislyak coming up, using the language, “tit for tat,” that McFarland used on emails with others and that Flynn himself would use with Kislyak later that day.

Tit for tat w Russia not good. Russian AMBO reaching out to me today.

Sometime in here but the Report doesn’t tell us precisely when: Flynn talks to Michael Ledeen, KT McFarland, and then Kislyak. [my emphasis]

4:43PM: McFarland emails other transition team members saying that,  “Gen [F]lynn is talking to russian ambassador this evening.”

Before 5:45PM: McFarland briefed President-Elect Trump, Steve Bannon, Reince Priebus, Sean Spicer, and others on the sanctions. McFarland remembers that someone at the briefing may have mentioned the upcoming Kislyak call.

After the briefing: McFarland and Flynn speak by phone. Flynn tells McFarland, “that the Russian response to the sanctions was not going to be escalatory because they wanted a good relationship with the incoming Administration,” and McFarland tells Flynn about the briefing with Trump.

The next day, December 30, 2016 — after Putin announced they would not retaliate to Obama’s sanctions — Flynn sent a text message to McFarland that very deliberately did not reflect the true content of his communication with Kislyak, reportedly because he wanted to hide that from the Obama Administration (the Trump team had falsely told Obama they would not fuck with their existing policy initiatives).

Shortly thereafter, Flynn sent a text message to McFarland summarizing his call with Kislyak from the day before, which she emailed to Kushner, Bannon, Priebus, and other Transition Team members. 1265 The text message and email did not include sanctions as one of the topics discussed with Kislyak. 1266 Flynn told the Office that he did not document his discussion of sanctions because it could be perceived as getting in the way of the Obama Administration’s foreign policy.126

On December 31, after Kislyak called again to tell Flynn that Putin had decided not to retaliate because of the Trump Administration request not to, he and McFarland communicated again about their attempts to convince Russia not to respond to sanctions. Flynn spoke with others that day but “does not recall” whether they discussed the sanctions, though he remembers (but Bannon does not) that Bannon seemed to know about Flynn’s conversation with Kislyak.

The narrative for the same events in the obstruction section has less detail, but infuriatingly, similarly manages to leave out all the details (in bold above) about when Flynn spoke to McFarland and when he called Kisylak.

The thing is, Mueller knows precisely when those Flynn calls happened. The Volume I version of events make it clear they have the call records of Flynn, Michael Ledeen, and McFarland that would provide a precise timeline.

They just refuse to provide those times and the times of key emails, which would add to the clarity about whether Trump learned of Flynn’s plans before he contacted Kislyak.

In the “Intent” discussion regarding obstruction, however, the report suggests that the Trump briefing, where sanctions did come up, preceded the first Flynn call to Kislyak (even though the timeline here suggests it did not).

In advance of Flynn’s initial call with Kislyak, the President attended a meeting where the sanctions were discussed and an advisor may have mentioned that Flynn was scheduled to talk to Kislyak.

That’s particularly interesting given that the Volume II discussion of events describes how, after Trump fired Flynn, he also fired KT McFarland but offered her a position as Ambassador to Singapore. There’s very little discussion of the explanation for her firing, but they do describe how Trump tried to make McFarland write a memo — very similar to the false one he tried to make Don McGahn write denying that Trump had ordered him to have Rod Rosenstein removed — denying that he had any role in Flynn’s discussion with Kislyak about sanctions. McFarland did not write the memo, as she explained in a Memo for the Record, because she did not know whether Trump had spoken with Flynn or with Russia directly.

The next day, the President asked Priebus to have McFarland draft an internal email that would confirm that the President did not direct Flynn to call the Russian Ambassador about sanctions.253 Priebus said he told the President he would only direct McFarland to write such a letter if she were comfortable with it.254 Priebus called McFarland into his office to convey the President’s request that she memorialize in writing that the President did not direct Flynn to talk to Kislyak.255 McFarland told Priebus she did not know whether the President had directed Flynn to talk to Kislyak about sanctions, and she declined to say yes or no to the request.256

256 KTMF _00000047 (McFarland 2/26/ 17 Memorandum_ for the Record) (“I said I did not know whether he did or didn’t, but was in Maralago the week between Christmas and New Year’s (while Flynn was on vacation in Carribean) and I was not aware of any Flynn-Trump, or Trump-Russian phone calls”); McFarland 12/22/ 17 302, at 17.

Again, at a minimum, Mueller knows if Trump called Flynn, and may know if Trump called Kislyak or — more likely — Putin. But he’s not telling.

Trump was already pissy with Flynn, so why didn’t he blame him for the sanctions calls?

There’s one more contradictory detail about Trump’s behavior in this narrative.

According to enough witnesses to make it a reliable claim, Trump had already soured on Flynn in December 2016, before all this blew up (but not before Obama warned Trump and Elijah Cummings warned Mike Pence about Flynn’s suspect loyalties).

Several witnesses said that the President was unhappy with Flynn for other reasons at this time. Bannon said that Flynn’s standing with the President was not good by December 2016. Bannon 2/12/18 302, at 12. The President-Elect had concerns because President Obama had warned him about Flynn shortly after the election. Bannon 2/12/18 302, at 4-5; Hicks 12/8/17 302, at 7 (President Obama’s comment sat with President-Elect Trump more than Hicks expected). Priebus said that the President had become unhappy with Flynn even before the story of his calls with Kislyak broke and had become so upset with Flynn that he would not look at him during intelligence briefings. Priebus 1/18/18 302, at 8. Hicks said that the President thought Flynn had bad judgment and was angered by tweets sent by Flynn and his son, and she described Flynn as “being on thin ice” by early February 2017. Hicks 12/8/17 302, at 7, 10

As I’ve noted before, Trump made the same complaint to Jim Comey in their “loyalty demand” dinner on January 27, 2017 — but he did so in the context of Flynn not informing him that Vladimir Putin had beaten Theresa May to congratulating him about his inauguration.

All these details — including that Flynn publicly informed Trump of Putin’s call — should make Flynn a bigger counterintelligence concern, not one that could be dismissed more easily than Page and Manafort and Papadopoulos.

Unless Mueller had more certainty that Trump was in the loop of these sanctions discussions — either through Flynn or directly with Putin — than he lets on in the public report.

Mike Flynn’s Interviews with Prosecutors

To sum up, Mueller knows that someone already under investigation for his suspect calls to Russia and Sergey Kislyak got on the phone with Kislyak and undercut the Obama Administration’s attempt to punish Russia for its election interference. Flynn deliberately created a false record of that call, then lied about it when it became public the following month, and continued to lie about it when the FBI asked him about it.Trump allegedly got pissy that Flynn’s counterintelligence exposure had already been raised by Obama, but also got pissy that Flynn wasn’t being obsequious enough to Putin. But, when this all began to blow up in the press, rather than firing Flynn right away for being a counterintelligence problem — the outcome Sally Yates clearly expected would be the no-brainer result — Trump instead repeatedly tried to protect Flynn.

Which is why the likelihood that a key part of Flynn’s cooperation, that relating to the counterintelligence side of the equation, is so interesting.

As I noted when the addendum showing Flynn’s cooperation came out, it likely broke into the Turkish influence peddling [A], two (or maybe three?) topics relating to Trump [B], as well as more classified part of the investigation conducted under Mueller [C].

A Criminal Investigation:

11+ line paragraph

6.5 line paragraph

2 line paragraph

B Mueller investigation:

Introductory paragraph (9 lines)

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

ii) Topic two

10 line paragraph

9 line paragraph

C Entirely redacted investigation:

4.5 line paragraph

The footnotes from the Mueller Report describing what Flynn told prosecutors when seems to reinforce this.

  1. November 16, 2017: Trump appoint Flynn as NSA, first call with Putin, Israel vote, communications with Kislyak, December Kislyak call
  2. November 17, 2017: Israel vote, December Kislyak call, especially comms with Mar a Lago, re Ignatius Flynn said he had not talked sanctions, Mar a Lago with Trump, Flynn’s last meeting with Trump, “we’ll take care of you”
  3. November 19, 2017: Why sanctions, whether he told others at MAL, comms on 12/29, re Ignatius Flynn said he had not talked sanctions, Mar a Lago with Trump
  4. November 20, 2017: Whether he told others at MAL, response to Ignatius
  5. November 21, 2017: Whether he told others at MAL, response to Ignatius, meeting with Trump
  6. November 29, 2017: Peter Smith
  7. January 11, 2018: November 30 meeting with Kislyak
  8. January 19, 2018: Flynn did not have specific recollection about telling POTUS on January 3, 2017
  9. April 25, 2018: Peter Smith
  10. May 1, 2018: Peter Smith
  11. September 26, 2018: Proffer response on meetings with Foresman

We know from court filings that Flynn had 19 interviews with prosecutors, of which four pertain to his sleazy influence peddling with Turkey. Here’s what that seems to suggest about his interviews (assuming, probably incorrectly, that they didn’t cover multiple topics at once):

  • Turkish influence peddling: 4 interviews, unknown dates
  • Transition events, 7 interviews: 11/16/17, 11/17/17, 11/19/17, 11/20/17, 11/21/17, 1/11/18, 1/19/18
  • Peter Smith, 3 interviews: 11/29/17, 4/25/18, 5/1/18
  • Counterintelligence: Remaining 5 interviews???, unknown dates

It’s possible, however, there’s a third “links” topic pertaining to Transition era graft, which for scope reasons would not appear in the Mueller Report.

The possibility that Flynn may have had five interviews dedicated to a counterintelligence investigation that implicated Trump would make this Brian Ross story far more interesting. As the Report lays out, when hints that Flynn flipped first came out on November 22, 2017, one of Trump’s lawyers (probably John Dowd) left a voice mail message (!!!) with one of Flynn’s lawyers (probably Rob Kelner). He specifically wanted a heads up about anything that “implicates the President” which would create a “national security issue.”

I understand your situation, but let me see if I can’t state it in starker terms. . . . [I]t wouldn’t surprise me if you’ve gone on to make a deal with … the government. … [I]f . .. there’s information that implicates the President, then we’ve got a national security issue, . . . so, you know, . . . we need some kind of heads up. Um, just for the sake of protecting all our interests ifwe can …. [R]emember what we’ve always said about the ‘ President and his feelings toward Flynn and, that still remains ….

The following day, Trump’s lawyer told Flynn’s that cooperating would reflect hostility to the President.

A week later, once the plea was official on December 1, Flynn had the following leaked to ABC.

During the campaign, Trump asked Flynn to be one of a small group of close advisors charged with improving relations in Russia and other hot spots. The source said Trump phoned Flynn shortly after the election to explicitly ask him to “serve as point person on Russia,” and to reach out personally to Russian officials to develop strategies to jointly combat ISIS.

[snip]

“Flynn is very angry,” the confidant told ABC News Friday. “He will cooperate truthfully on any question they ask him.” [my emphasis]

Only, originally, the story read that Trump asked Flynn to reach out to Russia before the election. The story is often cited as one of the big gaffes of the Russian investigation, but Mother Jones has since corroborated the pre-election timeline with two Flynn associates.

For some reason, Mueller did not hold Mike Flynn responsible for — at a time when he was under active counterintelligence investigation for his ties to Russia — undercutting the official policy of the US on punishing Russia for its election year attack. I wonder whether the content of up to five counterintelligence interviews with Flynn may explain why.

As they are elsewhere, the Washington Post is trying to liberate the filings about Flynn’s cooperation that would explain all this. On Thursday, Emmet Sullivan — the same judge who, after seeing all the sealed filings in Flynn’s case, used some really inflammatory language about Flynn’s loyalty — set a briefing schedule for that effort. Then, acting on his own on Friday, Sullivan scheduled a hearing for June 24 (after the next status report in Flynn’s case but before he would be sentenced) to discuss liberating those filings.

So maybe we’ll find out from the WaPo’s efforts to liberate those documents.

Timeline of known Flynn investigation

November 10, 2016: Obama warns Trump that Mike Flynn’s name kept surfacing in concerns about Russia.

November 18, 2016: Trump names Flynn National Security Adviser.

November 18, 2016: Elijah Cummings warns Mike Pence of Flynn’s Turkish lobbying.

Shortly after inauguration: On “first” call with Kislyak, Flynn responds to Ambassador’s invitation to Russian Embassy that, “You keep telling me that,” alerting others to previous contacts between them.

January 24, 2017: In interview with FBI, Flynn lies about his contacts with Sergey Kislyak.

January 26 and 27, 2017: Sally Yates warns the White House about Flynn’s lies.

February 2, 2017: WHCO lawyer John Eisenberg reviews materials on Flynn’s interview.

February 13, 2017: Flynn fired.

July 19, 2017: Peter Strzok interviewed, in part, about Flynn interview, presumably as part of obstruction investigation.

November 16, 2017: Interview covers: Trump appoint Flynn as NSA, first call with Putin, Israel vote, communications with Kislyak, December Kislyak call.

November 17, 2017: Interview covers: Israel vote, December Kislyak call, especially comms with Mar a Lago, re Ignatius Flynn said he had not talked sanctions, Mar a Lago with Trump, Flynn’s last meeting with Trump, “we’ll take care of you.”

November 19, 2017: Interview covers: Why sanctions, whether he told others at MAL, comms on 12/29, re Ignatius Flynn said he had not talked sanctions, Mar a Lago with Trump.

November 20, 2017: Interview covers: Whether he told others at MAL, response to Ignatius.

November 21, 2017: Interview covers: Whether he told others at MAL, response to Ignatius, meeting with Trump.

November 22, 2017: Flynn withdraws from Joint Defense Agreement; Trump’s lawyer leaves a message for Flynn’s lawyer stating, in part, “if… there’s information that implicates the President, then we’ve got a national security
issue,…so, you know,…we need some kind of heads up.”

November 23, 2017: Flynn’s attorney returns Trump’s attorney’s call, the latter says cooperation would reflect hostility to the President.

November 29, 2017: Interview covers Peter Smith.

December 1, 2017: Flynn pleads guilty, has story leaked to Brian Ross that his cooperation covers Trump’s orders that he take “serve as point person on Russia,” originally stating that the order preceded the election; the story is corrected to say the order comes ” shortly after the election.” Two Flynn associates subsequently told Mother Jones the contacts did start before the election.

January 11, 2018: Interview covers November 30 meeting with Kislyak.

January 19, 2018: Interview covers Flynn did not have specific recollection about telling POTUS on January 3, 2017.

April 25, 2018: Interview covers Peter Smith.

May 1, 2018: Interview covers Peter Smith.

September 17, 2018: Status report asking for sentencing.

September 26, 2018: Flynn’s attorney offers proffer response on meetings with Bob Foresman.

December 18, 2018: After Judge Emmet Sullivan invokes treason and selling out his country, Flynn delays sentencing.


The Volume I Narrative about December 29, 2016

Shortly thereafter, Flynn sent a text message to McFarland summarizing his call with Kislyak from the day before, which she emailed to Kushner, Bannon, Priebus, and other Transition Team members. 1265 The text message and email did not include sanctions as one of the topics discussed with Kislyak. 1266 Flynn told the Office that he did not document his discussion of sanctions because it could be perceived as getting in the way of the Obama Administration’s foreign policy.126

The sanctions were announced publicly on December 29, 2016. 1231 At 1 :53 p.m. that day, McFarland began exchanging emails with multiple Transition Team members and advisors about the impact the sanctions would have on the incoming Administration. 1232 At 2:07 p.m., a Transition Team member texted Flynn a link to a New York Times article about the sanctions. 1233 At 2:29 p.m., McFarland called Flynn, but they did not talk. 1234 Shortly thereafter, McFarland and Bannon discussed the sanctions. 1235 According to McFarland, Bannon remarked that the sanctions would hurt their ability to have good relations with Russia, and that Russian escalation would make things more difficult. 1236 McFarland believed she told Bannon that Flynn was scheduled to talk to Kislyak later that night. 1237 McFarland also believed she may have discussed the sanctions with Priebus, and likewise told him that Flynn was scheduled to talk to Kislyak that night. 1238 At 3: 14 p.m., Flynn texted a Transition Team member who was assisting McFarland, “Time for a call???”1239 The Transition Team member responded that McFarland was on the phone with Tom Bossert, a Transition Team senior official, to which Flynn responded, “Tit for tat w Russia not good. Russian AMBO reaching out to me today.” 1240

Flynn recalled that he chose not to communicate with Kislyak about the sanctions until he had heard from the team at Mar-a-Lago.1241 He first spoke with Michael Ledeen, 1242 a Transition Team member who advised on foreign policy and national security matters, for 20 minutes. 1243 Flynn then spoke with McFarland for almost 20 minutes to discuss what, if anything, to communicate to Kislyak about the sanctions. 1244 On that call, McFarland and Flynn discussed the sanctions, including their potential impact on the incoming Trump Administration’s foreign policy goals. 1245 McFarland and Flynn also discussed that Transition Team members in Mar-a-Lago did not want Russia to escalate the situation. 1246 They both understood that Flynn would relay a message to Kislyak in hopes of making sure the situation would not get out of hand.1247

Immediately after speaking with McFarland, Flynn called and spoke with Kislyak. 1248 Flynn discussed multiple topics with Kislyak, including the sanctions, scheduling a video teleconference between President-Elect Trump and Putin, an upcoming terrorism conference, and Russia’s views about the Middle East. 1249 With respect to the sanctions, Flynn requested that Russia not escalate the situation, not get into a “tit for tat,” and only respond to the sanctions in a reciprocal manner.1250

Multiple Transition Team members were aware that Flynn was speaking with Kislyak that day. In addition to her conversations with Bannon and Reince Priebus, at 4:43 p.m., McFarland sent an email to Transition Team members about the sanctions, informing the group that “Gen [F]lynn is talking to russian ambassador this evening.” 1251 Less than an hour later, McFarland briefed President-Elect Trump. Bannon, Priebus, Sean Spicer, and other Transition Team members were present. 1252 During the briefing, President-Elect Trump asked McFarland if the Russians did “it,” meaning the intrusions intended to influence the presidential election. 1253 McFarland said yes, and President-Elect Trump expressed doubt that it was the Russians.1254 McFarland also discussed potential Russian responses to the sanctions, and said Russia’s response would be an indicator of what the Russians wanted going forward. 1255 President-Elect Trump opined that the sanctions provided him with leverage to use with the Russians. 1256 McFarland recalled that at the end of the meeting, someone may have mentioned to President-Elect Trump that Flynn was speaking to the Russian ambassador that evening. 1257

After the briefing, Flynn and McFarland spoke over the phone. 1258 Flynn reported on the substance of his call with Kislyak, including their discussion of the sanctions. 1259 According to McFarland, Flynn mentioned that the Russian response to the sanctions was not going to be escalatory because they wanted a good relationship with the incoming Administration.1260 McFarland also gave Flynn a summary of her recent briefing with President-Elect Trump. 1261

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. 

Did Rod Rosenstein Pressure Mueller to Enter the Plea Deal with Paul Manafort?

Bill Barr’s admission the other day that he and Rod Rosenstein started talking about how to deny that Trump obstructed justice on March 5, long before even getting the Mueller Report, has raised real questions about whether the two men pushed Mueller to finish his investigation (even though the Mystery Appellant and Andrew Miller subpoenas were still pending).

But I’ve started wondering whether Rosenstein — the guy who promised Trump he’d “land the plane” while he was trying to keep his job — hasn’t been pressuring Mueller to finish up even longer than that.

At the beginning of Manafort’s breach hearing, Andrew Weissmann described how this plea deal was different from most normal plea deals.

There were two points that I wanted to make to the Court. There are a number of subparts to them.

But, the first point has to do with sort of the context in which we operated at the time that we entered into the agreement. As the Court will recall, the agreement was entered into just shortly before the trial was to commence before this Court, and it was after three proffer sessions. And then, of course, there were many debriefings after that. And a couple things about that timing that are relevant.

One, at the end of the third proffer session, before entering into the agreement, we had made clear to the defense that we were willing to go forward. But, that given the limited opportunity, and yet the need to make a decision because of the eminent [sic] trial, we wanted to make clear to the defense that, of course, we were going in with good faith.

But we could not say at that point that we either could say the defendant was being truthful or that the defendant was going to be able to meet the substantial assistance prong. In other words, two parts of the agreement.

Of course, I think everyone was hopeful that all of that would be met. But we wanted to make it clear to the defense that they weren’t being misled in any way as to what we were thinking.

And the second component of that is, I think, something unusual — there were two factors that were unusual in this case compared to, I think, the cases that all of us at this table have had in the past. One was, there’s enormous interest in what I will call — for lack of a better term — the intelligence that could be gathered from having a cooperating witness in this particular investigation. And that would account for the Government agreeing to have Mr. Manafort cooperate, even though it was after a trial. Because that’s certainly an — not — not — it’s not that that never happens, but it’s more atypical.

By the same token, there was an unusual factor — the second unusual factor, which was [redacted] the normal motives and incentives that are built into a cooperation agreement.

To sum up, it was unusual because:

  • They didn’t do all the vetting they would normally do before entering into a plea deal,
  • There was a big push to avoid the September 2018 trial
  • They entered a plea deal when they weren’t sure about Manafort’s reliability in part to get intelligence, not prosecutorial information
  • Another factor, which is redacted, which by context is likely to be Trump’s floating of a pardon

In other words, there was great pressure to enter into this plea deal that led them not to do the vetting they would normally have.

We already know from the breach determination that Manafort said some things during his proffers that led prosecutors to give him the plea deal, but about which he promptly changed his story. Those subjects include, at a minimum, the degree to which his business associate Konstantin Kilimnik had formally entered into a conspiracy with him, how his kickback system worked, and the criminality of some Trump associate who tried something in August 2016 to save Trump’s campaign.

But the breach determination also revealed that Manafort was always lying about his ongoing discussions with Kilimnik about a “peace” deal. Over the course of his “cooperation,” he came to admit some parts of it after being shown evidence, but he never offered up those details.

That means that when Mueller entered into that plea deal, they knew Manafort was lying to them, at least about the Ukrainian “peace” deals and his coordination with Kilimnik.

But the Mueller Report also reveals were also two details Manafort told them during his proffers that the prosecutors didn’t believe. Manafort told prosecutors that he could not recall “anyone informing candidate Trump of the [June 9] meeting, including Trump Jr;” prosecutors already had other testimony suggesting this was false, and the day after Manafort told them this on September 11, 2018 (and before they actually finalized the deal), Michael Cohen described Don Jr discussing a meeting secretly with Trump in this time period.  That same day, Manafort also told prosecutors, “that he did not believe Kilimnik was working as a Russian ‘spy,'” even though several other Kilimnik colleagues, including Rick Gates, had told Mueller’s team he was.

So Mueller knew Manafort was lying, and yet still gave him a plea deal, which had the effect of averting a trial that would have been a key focus of press attention during the midterm elections. I laid out how Manafort’s failed plea ended up providing cover during the election season in this post.

Rudy Giuliani, remember, repeatedly said that Mueller would have to wrap up the entire investigation before DOJ’s 90 day election season.

I know there are a lot of DOJ beat reporters trying to chase down whether Barr told Mueller he had to finish up as soon as he got cleared to oversee the investigation in March. But I wonder whether Rosenstein wasn’t already pressuring Mueller to finish, going back to August. If he was, that would change the import of Trump’s tactic to avoid testifying — first stalling through the election, and then refusing any real cooperation — significantly.

It would also change the import of the fact that prosecutors still claim that the investigation into Manafort is ongoing.

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.