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On the Grassley-Feinstein Dispute

In a podcast with Preet Bharara this week, Sheldon Whitehouse had the following exchange about whether he thought Carter Page should have been surveilled. (after 24:30)

Whitehouse: I’ve got to be a little bit careful because I’m one of the few Senators who have been given access to the underlying material.

Bharara: Meaning the affidavit in support of the FISA application.

Whitehouse And related documents, yes. The package.

Bharara: And you’ve gone to read them?

Whitehouse: I’ve gone to read them.

Bharara: You didn’t send Trey Gowdy?

Whitehouse: [Laughs] I did not send Trey Gowdy. I actually went through them. And, so I’ve got to be careful because some of this is still classified. But the conclusion that I’ve reached is that there was abundant evidence outside of the Steele dossier that would have provoked any responsible FBI with a counterintelligence concern to look at whether Carter Page was an undisclosed foreign agent. And to this day the FBI continues to assert that he was a undisclosed Russian foreign agent.

For the following discussion, then, keep in mind that a very sober former US Attorney has read the case against Carter Page and says that the FBI still — still, after Page is as far as we know no longer under a FISA order — asserts he “was” an undisclosed foreign agent (it’s not clear what that past tense “was” is doing, as it could mean he was a foreign agent until the attention on him got too intense or remains one; also, I believe John Ratcliffe, a Republican on the House Judiciary Committee and also a former US Attorney, has read the application too).

With that background, I’d like to turn to the substance of the dispute between Chuck Grassley and Dianne Feinstein over the dossier, which has played out in the form of a referral of Christopher Steele to FBI for lying. In the wake of the Nunes memo theatrics, Grassley released first a heavily redacted version of the referral he and Lindsey Graham sent the FBI in early January, followed by a less-redacted version this week. The referral, even as a transparent political stunt, is nevertheless more substantive than Devin Nunes’ memo, leading some to take it more seriously.  Which may be why Feinstein released a rebuttal this week.

In case you’re wondering, I’m tracking footnote escalation in these documents. They line up this way:

  • 0: Nunes memo (0 footnotes over 4 pages, or 1 over 6 if you count Don McGahn’s cover letter)
  • 2.6: Grassley referral (26 footnotes over 10 pages)
  • 3.6: Schiff memo (36 footnotes, per HPSCI transcript, over 10 pages)
  • 5.4: Feinstein rebuttal (27 footnotes over 5 pages)

So let me answer a series of questions about the memo as a way of arguing that, while by all means the FBI’s use of consultants might bear more scrutiny, this is still a side-show.

Did Christopher Steele lie?

The Grassely-Graham referral says Steele may have lied, but doesn’t commit to whether classified documents obtained by the Senate Judiciary Committee (presumably including the first two Page applications), a declaration Steele submitted in a British lawsuit, or Steele’s statements to the FBI include lies.

The FBI has since provided the Committee access to classified documents relevant to the FBI’s relationship with Mr. Steele and whether the FBI relied on his dossier work. As explained in greater detail below, when information in those classified documents is evaluated in light of sworn statements by Mr. Steele in British litigation, it appears that either Mr. Steele lied to the FBI or the British court, or that the classified documents reviewed by the Committee contain materially false statements.

On September 3, 2017 — a good three months before the Grassley-Graham referral — I pointed to a number of things in the Steele declaration, specifically pertaining to who got the dossier or heard about it when, that I deemed “improbable.”

That was the genius of the joint (!!) Russian-Republican campaign of lawfare against the dossier. As Steele and BuzzFeed and Fusion tried to avoid liability for false claims against Webzilla and Alfa Bank and their owners, they were backed into corners where they had to admit that Democrats funded the dossier and made claims that might crumble as Congress scrutinized the dossier.

So, yeah, I think it quite possible that Steele told some stretchers.

Did Christopher Steele lie to the FBI?

But that only matters if he lied to the FBI (and not really even there). The UK is not about to extradite one of its former spies because of lies told in the UK — they’re not even going to extradite alleged hacker Lauri Love, because we’re a barbaric country. And I assume the Brits give their spooks even more leeway to fib a little to courts than the US does.

The most critical passage of the referral on this point, which appears to make a claim about whether Steele told the FBI he had shared information with the press before they first used his dossier in a Page application, looks like this.

The footnote in the middle of that redacted passage goes to an unredacted footnote that says,

The FBI has failed to provide the Committee the 1023s documenting all of Mr. Steele’s statements to the FBI, so the Committee is relying on the accuracy of the FBI’s representation to the FISC regarding the statements.

1023s are Confidential Human Source reports.

I say that’s the most important passage because the referral goes on to admit that in subsequent FISA applications the FBI explained that the relationship with Steele had been terminated because of his obvious involvement in the October 31, 2016 David Corn story. Graham and Grassley complain that the FBI didn’t use Steele’s defiance of the FBI request not to share this information with anyone besides the FBI to downgrade his credibility rankings. Apparently FISC was less concerned about that than Graham and Grassley, which may say more about standards for informants in FISA applications than Steele or Carter Page.

The footnote, though, is the biggest tell. That’s because Feinstein’s rebuttal makes it quite clear that after Grassley and Graham made their referral, SJC received documents — which, given what we know has been given to HPSCI, surely include those 1023s — that would alter the claims made in the referral.

The Department of Justice has provided documents regarding its interactions with Mr. Steele to the Judiciary Committee both before and after the criminal referral was made. Despite this, the Majority did not modify the criminal referral and pressed forward with its original claims, which do not take into account the additional information provided after the initial January 4 referral.

Feinstein then goes on to state, several times and underlining almost everything for emphasis, that the referral provides no proof that Steele was ever asked if he had served as the source for Isikoff.

  • Importantly, the criminal referral fails to identify when, if ever, Mr. Steele was asked about and provided a materially false statement about his press contacts.
  • Tellingly, it also fails to explain any circumstances which would have required Mr. Steele to seek the FBI’s permission to speak to the press or to disclose if he had done so.

[snip]

But the criminal referral provides no evidence that Steele was ever asked about the Isikoff article, or if asked that he lied.

In other words, between the redacted claim about what Steele said and Feinstein’s repeated claims that the referral presents no evidence Steele was asked about his prior contacts with the press, the evidence seems to suggest that Steele was probably not asked. And once he was, after the Corn article, he clearly did admit to the FBI he had spoken with the press. So while it appears Steele blew off the FBI’s warnings not to leak to the press, the evidence that he lied to the FBI appears far weaker.

Does it harm the viability of the FISA application?

That should end the analysis, because the ostensible purpose of the referral is a criminal referral, not to make an argument about the FISA process.

But let’s assess the memo’s efforts to discredit the FISA application.

In two places, the referral suggests the dossier played a bigger role in the FISA application than, for example, Whitehouse suggests.

Indeed, the documents we have reviewed show that the FBI took important investigative steps largely based on Mr. Steele’s information–and relying heavily on his credibility.

[snip]

Mr. Steele’s information formed a significant portion of the FBI’s warrant application, and the FISA application relied more heavily on Steele’s credibility than on any independent verification or corroboration for his claims. Thus the basis for the warrant authorizing surveillance on a U.S. citizen rests largely on Mr. Steele’s credibility.

These claims would be more convincing, however, if they acknowledged that FBI had to have obtained valuable foreign intelligence off their Page wiretap over the course of the year they had him wiretapped to get three more applications approved.

Indeed, had Grassley and Graham commented on the addition of new information in each application, their more justifiable complaint that the FBI did not alert FISC to the UK filings in which Steele admitted more contact with the press than (they claim) show up in the applications would be more compelling. If you’re going to bitch about newly learned information not showing up in subsequent applications, then admit that newly acquired information showed up.

Likewise, I’m very sympathetic with the substance of the Grassley-Graham complaint that Steele’s discussions with the press made it more likely that disinformation got inserted into the dossier (see my most recently post on that topic), but I think the Grassley-Graham complaint undermines itself in several ways.

Simply put, the more people who contemporaneously knew that Mr. Steele was compiling his dossier, the more likely it was vulnerable to manipulation. In fact, the British litigation, which involves a post-election dossier memorandum, Mr. Steele admitted that he received and included in it unsolicited–and unverified–allegations. That filing implies that implies that he similar received unsolicited intelligence on these matters prior to the election as well, stating that Mr. Steele “continued to receive unsolicited intelligence on the matters covered by the pre-election memoranda after the US Presidential election.” [my underline]

The passage is followed by an entirely redacted paragraph that likely talks about disinformation.

This is actually an important claim, not just because it raises the possibility that Page might be unfairly surveilled as part of a Russian effort to distract attention from others (though its use in a secret application wouldn’t have sown the discord it has had it not leaked), but also because we can check whether their claims hold up against the Steele declaration. It’s one place we can check the referral to see whether their arguments accurately reflect the underlying evidence.

Importantly, to support a claim the potential for disinformation in the Steele dossier show up in the form of unsolicited information earlier than they otherwise substantiate, they claim a statement in Steele’s earlier declaration pertains to pre-election memos. Here’s what it looks like in that declaration:

That is, Steele didn’t say he was getting unsolicited information prior to the election; this was, in both declarations, a reference to the single December report.

Moreover, while I absolutely agree that the last report is the most likely to be disinformation, the referral is actually not clear whether that December 13 report ever actually got included in a FISA application. There’s no reason it would have been. While the last report mentions Page, the mention is only a referral back to earlier claims that Trump’s camp was trying to clean up after reports of Page’s involvement with the Russians got made public. So the risk that the December memorandum consisted partially or wholly of disinformation is likely utterly irrelevant to the validity of the three later FISA orders targeting Page.

Which is to say that, while I think worries about disinformation are real (particularly given their reference to Rinat Akhmetshin allegedly learning about the dossier during the summer, which I wrote about here), the case Grassley and Graham make on that point both miscites Steele’s own declaration and overstates the impact of their argued case on a Page application.

What about the Michael Isikoff reference?

Perhaps the most interesting detail in the Grassley-Graham referral pertains to their obsession with the applications’ references to the September 23 Michael Isikoff article based off Steele’s early discussions with the press. Grassley-Graham claim there’s no information corroborating the dossier (there’s a redacted Comey quote that likely says something similar). In that context, they point to the reference to Isikoff without explaining what it was doing there.

The application appears to contain no additional information corroborating the dossier allegations against Mr. Page, although it does cite to a news article that appears to be sourced to Mr. Steele’s dossier as well.

Elsewhere, I’ve seen people suggest the reference to Isikoff may have justified the need for secrecy or something, rater than as corroboration. But neither the referral nor Feinstein’s rebuttal explains what the reference is doing.

In this passage, Grassley and Graham not only focus on Isikoff, but they ascribe certain motives to the way FBI referred to it, suggesting the claim that they did not believe Steele was a source for Isikoff was an attempt to “shield Mr. Steele’s credibility.”

There’s absolutely no reason the FBI would have seen the need to shield Steele’s credibility in October. He was credible. More troubling is that the FBI said much the same thing in January.

In the January reapplication, the FBI stated in a footnote that, “it did not believe that Steele gave information to Yahoo News that ‘published the September 23 News Article.”

Let’s do some math.

If I’m doing my math correctly, if the FISA reapplications happened at a regular 90 day interval, they’d look like this.

That’d be consistent with what the Nunes memo said about who signed what, and would fit the firing dates of January 30 for Yates and May 9 for Comey, as well as the start date for Rosenstein of April 26 (Chris Wray started on August 1).

If that’s right, then Isikoff wrote his second article on the Steele dossier, one that made it clear via a link his earlier piece had been based off Steele, before the second application was submitted (though the application would have been finished and submitted in preliminary form a week earlier, meaning FBI would have had to note the Isikoff piece immediately to get it into the application, but the topic of the Isikoff piece — that Steele was an FBI asset — might have attracted their attention).

But that’s probably not right because the Grassley-Graham referral describes a June, not July, reapplication, meaning the application would have been no later than the last week of June. That makes the reauthorization dates look more like this, distributing the extra days roughly proportionately:

That would put the second footnote claiming the FBI had no reason to believe the September Isikoff piece was based on Steele before the time when the second Isikoff piece made it clear.

I’m doing this for a second reason, however. It’s possible (particularly given Whitehouse’s comments) Carter Page remains under surveillance, but for some reason it’s no longer contentious.

That might be the case if the reapplications no longer rely on the dossier.

And I’m interested in that timing because, on September 9, I made what was implicit clear: That pointing to the September Isikoff piece to claim the Steele dossier had been corroborated was self-referential. I’m not positive I was the first, but by that point, the Isikoff thing would have been made explicit.

Does this matter at all to the Mueller inquiry?

Ultimately, though, particularly given the Nunes memo confirmation that the counterintelligence investigation into Trump’s people all stems from the George Papadopoulos tip, and not Page (particularly given the evidence that the FBI was very conservative in their investigation of him) there’s not enough in even the Grassley-Graham referral to raise questions about the Mueller investigation, especially given a point I made out in the Politico last week.

According to a mid-January status report in the case against Manafort and his deputy, Rick Gates, the government has turned over “more than 590,000 items” to his defense team, “including (but not limited to) financial records, records from vendors identified in the indictment, email communications involving the defendants, and corporate records.” He and Gates have received imaged copies of 87 laptops, phones and thumb drives, and copies off 19 search-warrant applications. He has not received, however, a FISA notice, which the government would be required to provide if they planned to use anything acquired using evidence obtained using the reported FISA warrant against Manafort. That’s evidence of just how much of a distraction Manafort’s strategy [of using the Steele dossier to discredit the Mueller investigation] is, of turning the dossier into a surrogate for the far more substantive case against him and others.

And it’s not just Manafort. Not a single thing in the George Papadopoulos and Michael Flynn guilty pleas—for lying to the FBI—stems from any recognizable mention in the dossier, either. Even if the Steele dossier were a poisoned fruit, rather than the kind of routine oppo research that Republicans themselves had pushed to the FBI to support investigations, Mueller has planted an entirely new tree blooming with incriminating details.

Thus the point of my graphic above. The Steele dossier evidence used in the Carter Page FISA application to support an investigation into Cater Page, no matter what else it says about the FISA application process or FBI candor, is just a small corner of the investigation into Trump’s people.

 

Are There Other Emails about the June 9 Meeting?

Something has been bugging me about this NYT story from last week reporting that, in a conference call with Mark Corallo on July 9, 2017 (see the timeline of events below), Hope Hicks told him emails on the June 9, 2016 Trump Tower meeting between Don Jr, Paul Manafort, and Jared Kushner and Natalia Veselnitskaya, Rinat Akhmetshin, Ike Kaveladze, and Rob Goldstone would never come out.

Corallo is planning to tell Mr. Mueller about a previously undisclosed conference call with Mr. Trump and Hope Hicks, the White House communications director, according to the three people. Mr. Corallo planned to tell investigators that Ms. Hicks said during the call that emails written by Donald Trump Jr. before the Trump Tower meeting — in which the younger Mr. Trump said he was eager to receive political dirt about Mrs. Clinton from the Russians — “will never get out.” That left Mr. Corallo with concerns that Ms. Hicks could be contemplating obstructing justice, the people said.

[snip]

In Mr. Corallo’s account — which he provided contemporaneously to three colleagues who later gave it to The Times — he told both Mr. Trump and Ms. Hicks that the statement drafted aboard Air Force One would backfire because documents would eventually surface showing that the meeting had been set up for the Trump campaign to get political dirt about Mrs. Clinton from the Russians.

According to his account, Ms. Hicks responded that the emails “will never get out” because only a few people had access to them.

As the story describes, the emails in question were already prepped (by the lawyers with whom Corallo worked on a day to day basis) to send to Congress, which would have made it really hard for anyone to withhold the emails.

Congress had requested records from Paul Manafort, Mr. Trump’s campaign chairman; Mr. Kushner; and other Trump campaign officials about meetings with Russians. And lawyers had already copied and stamped the emails for delivery to Capitol Hill.

But elsewhere in the story, the NYT admits that even as (or shortly after) that meeting transpired it already had the emails Don Jr released that day and was going to publish them itself.

The younger Mr. Trump ultimately released the emails after being told The Times was about to publish them.

The original story (as well as the second one) described that the meeting was discovered when Kushner disclosed it on one of his many revisions to his security clearance application and in a response from Paul Manafort to congressional inquiries.

The Trump Tower meeting was not disclosed to government officials until recently, when Mr. Kushner, who is also a senior White House aide, filed a revised version of a form required to obtain a security clearance.

[snip]

Manafort, the former campaign chairman, also recently disclosed the meeting, and Donald Trump Jr.’s role in organizing it, to congressional investigators who had questions about his foreign contacts, according to people familiar with the events.

But nothing in that description would mean Congress would have gotten the emails yet, which is where investigative materials normally get leaked to the press (though it’s possible Manafort had already turned them over).

Michael Wolff’s book reports the Bannon suspicion that a Jared aide (presumably Josh Raffel), who was in the initial meeting where Trump forced everyone else to say the June 9 meeting dealt primarily with adoptions, leaked the emails to the NYT.

Indeed, the best guess by many in the West Wing was that the details of the meeting had been leaked by the Kushner side, thus sacrificing Don Jr. in an attempt to deflect responsibility away from themselves.

[snip]

The lawyers, and spokesperson Mark Corallo, had been working to manage this news. But while in Hamburg, the president’s staff learned that the Times was developing a story that had far more details about the meeting—quite possibly supplied by the Kushner side—which it would publish on Saturday, July 8.

But it describes the Jared team as leaking details, not the emails themselves. Plus, it’s hard to see how the emails don’t also implicate Jared, unless he’s going to bank on having left the meeting as his means to defend himself even in light of all the other damning evidence he was willing to chat up Russians later in the year.

Furthermore, given that Jared was an active player in that first meeting, it’s hard to understand how Hicks wouldn’t have known that Jared would have to disclose any emails that involved him personally.

There’s one other detail of note. The NYT makes it clear that the lawyers (and Corallo) in DC were kept out of the loop on the panic on Air Force One and that they didn’t know the NYT was working on a story. Though it’s unclear where the Circa story that those lawyers (and Corallo) did contribute to came from, then, as it feels like an effort to pre-empt the NYT with a friendly outlet.

Significantly, the Circa story is the source of the claim that Trump didn’t know about the meeting that I noted here (which the lawyers are said to have believed, which is why the Trump and his family weren’t consulting with the lawyers).

President Trump was not aware of the meeting and did not attend it, according to the lawyers.

It’s also significant, though, because it adopts the line Paul Manafort seems to have convinced Reince Priebus to adopt, pointing to problems with the dossier and Fusion GPS as a way to discredit the entire investigation.

“We have learned from both our own investigation and public reports that the participants in the meeting misrepresented who they were and who they worked for,” said Mark Corallo, a spokesman for President Trump’s legal team. “Specifically, we have learned that the person who sought the meeting is associated with Fusion GPS, a firm which according to public reports, was retained by Democratic operatives to develop opposition research on the President and which commissioned the phony Steele dossier. ”

“These developments raise serious issues as to exactly who authorized and participated in any effort by Russian nationals to influence our election in any manner,” Corallo said.

I raise all this to highlight two possibilities: that the emails are all that exist, but that they were leaked by someone — Manafort? Bannon? Corallo? — to punish the White House for its first misleading lies about the meeting. Perhaps Gorelick leaked them, which might explain why she stopped representing Jared days later?

But there’s another possibility: that more emails exist, between Don Jr and Rob Goldstone (indeed, we know Goldstone sent follow-up emails involving Vkontakte). Or that there are communications between other players. In which case the release of the current emails might serve to distract from a fuller set that Hicks did succeed in burying.

In any case, not only is Corallo prepping his meeting with Mueller’s team, but Steve Bannon seems intent on meeting with Mueller before HPSCI has an opportunity to run interference with him.

A source familiar with the matter added that Bannon would instead answer all of special counsel Robert Mueller’s questions as part of his investigation.

So whatever particular complaints the Corallo/Kasowitz/Bannon/Priebus crowd has about the way things went down may soon be shared with Mueller.


Early July 7: NYT approaches WH officials and lawyers; WH schedules a conference call w/NYT for next morning.

July 7: Trump chats up Putin at dinner. (Note, whenever Melania decides it’s time to get revenge on Trump for treating her like shit, she can go tell Mueller what she overheard of this conversation.)

July 8, morning: Conference call doesn’t happen. NYT submits 14 questions about the meeting to the WH and lawyers of Trump campaign aides who attended the meeting (do these aides include all of Don Jr, Kushner, and Manafort?); Trump and his aides develop a response on Air Force One, with Hicks coordinating with Don Jr and his lawyer Alan Garten, who were both in NY, via text message.

July 8, afternoon: Jamie Gorelick provides a statement describing his revisions to his security clearance forms.

He has since submitted this information, including that during the campaign and transition, he had over 100 calls or meetings with representatives of more than 20 countries, most of which were during transition. Mr. Kushner has submitted additional updates and included, out of an abundance of caution, this meeting with a Russian person, which he briefly attended at the request of his brother-in-law Donald Trump Jr. As Mr. Kushner has consistently stated, he is eager to cooperate and share what he knows.

July 8, evening: Garten issues a statement in Don Jr’s name stating,

It was a short introductory meeting. I asked Jared and Paul to stop by. We primarily discussed a program about the adoption of Russian children that was active and popular with American families years ago and was since ended by the Russian government, but it was not a campaign issue at that time and there was no follow up. I was asked to attend the meeting by an acquaintance, but was not told the name of the person I would be meeting with beforehand.

July 8, 5PM: NYT publishes story.

July 8, slightly later: Circa publishes different story based on Mark Corallo’s statement, admitting Magnitsky Act discussion.

July 9, morning: Hope Hicks calls Corallo, with Trump in the room, accusing him of trafficking in conspiracy theories. It is this call, according to the NYT, where Hicks said the emails would never come out.

July 9: Don Jr issues a new statement.

After pleasantries were exchanged, the woman stated that she had information that individuals connected to Russia were funding the Democratic National Committee and supporting Mrs. Clinton. Her statements were vague, ambiguous and made no sense. No details or supporting information was provided or even offered. It quickly became clear that she had no meaningful information.

July 14: Jamie Gorelick quits representing Kushner on Russian issues.

July 20: Mark Corallo quits.

July 21: Marc Kasowitz quits.

 

Some lawyers and witnesses who have sat in or been briefed on the interviews have puzzled over Mr. Mueller’s interest in the episode. Lying to federal investigators is a crime; lying to the news media is not. For that reason, some of Mr. Trump’s advisers argue that Mr. Mueller has no grounds to ask the president about the statement and say he should refuse to discuss it.

Trump Has Told Friends and Aides that Paul Manafort Can Incriminate Him

This Howard Fineman piece is getting a lot of attention because it reveals that Trump plans to beat Mueller by forcing Jeff Sessions to investigate him and his team.

Sources say that Trump has adopted a two-track strategy to deal with the Mueller investigation.

One is an un-Trumpian passivity and trust. He keeps telling some in his circle that Mueller — any day now — will tell him he is off the hook for any charge of collusion with the Russians or obstruction of justice.

But Trump — who trusts no one, or at least no one for long — has now decided that he must have an alternative strategy that does not involve having Justice Department officials fire Mueller.

“I think he’s been convinced that firing Mueller would not only create a firestorm, it would play right into Mueller’s hands,” said another friend, “because it would give Mueller the moral high ground.”

Instead, as is now becoming plain, the Trump strategy is to discredit the investigation and the FBI without officially removing the leadership. Trump is even talking to friends about the possibility of asking Attorney General Jeff Sessions to consider prosecuting Mueller and his team.

“Here’s how it would work: ‘We’re sorry, Mr. Mueller, you won’t be able to run the federal grand jury today because he has to go testify to another federal grand jury,'” said one Trump adviser.

But the real eye-popping detail comes much earlier, where multiple sources (one source for this story is the omnipresent Chris Ruddy) anonymously tell Fineman that Trump has taken comfort in the fact that Paul Manafort isn’t going to flip on him.

He’s decided that a key witness in the Russia probe, Paul Manafort, isn’t going to “flip” and sell him out, friends and aides say.

Of course, the suggestion that Manafort could get a cooperation deal by flipping on Trump is admission that Manafort — one of the attendees at the June 9 meeting, among other things — could flip on him, that he has proof that Trump was part of the conspiracy with the Russians to tamper in the election.

Never mind that this admission exposes the lie Trump has been telling — that Manafort’s indictment only pertains to consulting he did for Ukraine years ago and therefore doesn’t pose a risk to Trump. Never mind that Trump’s confidence, given the signs that Rick Gates may be prepping to flip, may be premature.

Former Trump campaign aide Rick Gates has quietly added a prominent white-collar attorney, Tom Green, to his defense team, signaling that Gates’ approach to his not-guilty plea could be changing behind the scenes.

Green, a well-known Washington defense lawyer, was seen at special counsel Robert Mueller’s office twice last week. CNN is told by a source familiar with the matter that Green has joined Gates’ team.

Green isn’t listed in the court record as a lawyer in the case and works for a large law firm separate from Gates’ primary lawyers.

Green’s involvement suggests that there is an ongoing negotiation between the defendant’s team and the prosecutors.

[snip]

Superseding indictments, which would add or replace charges against both Gates and Manafort, have been prepared, according to a source close to the investigation. No additional charges have been filed so far. When there is a delay in filing charges after they’ve been prepared, it can indicate that negotiations of some nature are ongoing.

Most of all, I’m simply amazed at how stupid Trump is to be telling multiple people that Manafort could incriminate him.

I mean, sure, Mueller already knew that. But now he can start asking witnesses — including Steve Bannon, who recently doubled down on his suggestion that Manafort was a traitor, even if that young kid Don Jr is not, and who already has a date scheduled with Mueller’s team — whether Trump has told them this himself.

On Disinformation and the Dossier

By all accounts, the House will vote to release the Nunes memo tonight, even while Adam Schiff pushes to release his countering memo at the same time. Perhaps in advance of that, Andrew McCabe either chose to or was told to take leave today until such time as his pension kicks in in mid-March, ending his FBI career.

Since we’re going to be obsessing about the dossier for the next while again, I want to return to a question I’ve repeatedly raised: the possibility that some or even much of the Christopher Steele dossier could be the product of Russian disinformation. Certainly, at least by the time Fusion and Steele were pitching the dossier to the press in September 2016, the Russians might have gotten wind of the project and started to feed Steele’s sources disinformation. But there’s at least some reason to believe it could have happened much sooner.

Former CIA officer Daniel Hoffman argues the near misses are a mark of Russian disinformation

A number of spooks had advanced this idea in brief comments in the past. Today, former CIA officer Daniel Hoffman makes the arguement at more length at WSJ.

There is a third possibility, namely that the dossier was part of a Russian espionage disinformation plot targeting both parties and America’s political process. This is what seems most likely to me, having spent much of my 30-year government career, including with the CIA, observing Soviet and then Russian intelligence operations. If there is one thing I have learned, it’s that Vladimir Putin continues in the Soviet tradition of using disinformation and espionage as foreign-policy tools.

Hoffman points to what I consider the dossier’s abundance of near-misses (such as events involving the correct person in the wrong place or time) on correct information to back his case.

The pattern of such Russian operations is to sprinkle false information, designed to degrade the enemy’s social and political infrastructure, among true statements that enhance the veracity of the overall report. In 2009 the FSB wanted to soil the reputation of a U.S. diplomat responsible for reporting on human rights. So it fabricated a video, in part using real surveillance footage of the diplomat, that purported to show him with a prostitute in Moscow.

Similarly, some of the information in the Steele dossier is true. Carter Page, a Trump campaign adviser, did travel to Moscow in the summer of 2016. But he insists that the secret meetings the dossier alleges never happened. This is exactly what you’d expect if the Kremlin followed its usual playbook: accurate basic facts provided as bait to convince Americans that the fake info is real.

John Sipher, in our joint interview with Jeremy Scahill admitted such a thing was possible, though that the dossier still tied the hack to “collusion.”

The Russians are the best in the world at this disinformation and deception. I don’t think, based on what we saw in the June, the first of his reports, that the Russians would have controlled all of those sources and controlled that whole narrative. It just doesn’t seem to make sense to me. And if in fact they did control the information that was given to Mr. Steele at that time, you have to wonder what was the point. If they were trying to send a message that they had compromising information on Mr. Trump, that might be that they wanted Mr. Trump to know what they had so he would act accordingly. In terms of using kompromat you don’t have to go to the person and make the quid pro quo, you just have to let them know that you have the information and they’ll do the right thing. So, I do agree, as time went by, and as she mentioned, for example, that what GPS Fusion information had in the connections they had there’s, it’s certainly possible that the Russians could have come across some of these sources and provided disinformation especially as time went by. I don’t think that that’s out of the realm of possibility.

Nevertheless Sipher argued in response to Hoffman that the content of the dossier would rule against it being disinformation.

[Hoffman] did not address the content. If was disinformation, it was designed to hurt Trump.

The content of the dossier would have led Democrats to be complacent about the hacking

But I can think of several ways the information in the dossier, if it was disinformation, would help Trump. I have already noted how, if Democrats had used the intelligence provided by Steele in the very earliest reports in the dossier to gauge the risk posed by the hack, they would have been lulled into complacency, because Steele’s first reports clearly said any kompromat the Russians wanted to dump was old intercepts from Hillary’s trips to Russia, and even Steele’s first report after the WikiLeaks dump would not only not confirm Russia was behind the release, but would also contradict a year of public reporting on APT29 to claim that Russia had not had success breaching targets like the State Department and Hillary.

On June 20, Perkins Coie would have learned from a Steele report that the dirt Russia had on Hillary consisted of “bugged conversations she had on various visits to Russia and intercepted phone calls rather than any embarrassing conduct.” It would also have learned that “the dossier however had not yet been made available abroad, including to TRUMP or his campaign team.”

On July 19, Perkins Coie would have learned from a Steele report that at a meeting with a Kremlin official named Diyevkin which Carter Page insists didn’t take place, Diyevkin “rais[ed] a dossier of ‘kompromat’ the Kremlin possessed on TRUMP’s Democratic presidential rival, Hillary CLINTON, and its possible release to the Republican’s campaign team.” At that point in time, the reference to kompromat would still be to intercepted messages, not email.

On July 22, Wikileaks released the first trove of DNC emails.

On July 26 — days after Russian-supplied emails were being released to the press — Perkins Coie would receive a Steele report (based on June reporting) that claimed FSB had the lead on hacking in Russia. And the report would claim — counter to a great deal of publicly known evidence — that “there had been only limited success in penetrating the ‘first tier’ foreign targets.” That is, even after the Russian hacked emails got released to the public, Steele would still be providing information to the Democrats suggesting there was no risk of emails getting released because Russians just weren’t that good at hacking.

In fact, in his testimony to the House Intelligence Committee, in one of the few instances in either congressional appearance where he admitted that Steele was hired at almost precisely the same moment the Democrats were trying to get the FBI to make a public statement attributing the hack to Russia, Glenn Simpson explained that the Democrats did use Steele’s intelligence to “manage” the aftermath of the hack.

MR. SIMPSON: Well, this was a very unusual situation, because right around the time that the work started, it became public that the FBI suspected the Russians of hacking the DNC. And so there was sort of an extraordinary coincidence. It wasn’t really a coincidence but, you know, our own interest in Russia coincided with a lot of public disclosures that there was something going on with Russia.

And so what was originally envisioned as an original — as just a sort of a survey, a first cut of what might be — whether there might be something interesting about Donald Trump and Russia quickly became more of an effort to help my client manage a, you know, exceptional situation and understand what the heck was going on.

I also think it’s creepy that Guccifer 2.0 promised what he called a dossier on Hillary on the same day Steele delivered his first report, June 20, and delivered documents he claimed to be that dossier the next day.

There are multiple ways the Russians may have learned of the Steele dossier

Hoffman lays out a number of the reasons I believe Steele’s production process might have been uniquely susceptible to discovery.

There are three reasons the Kremlin would have detected Mr. Steele’s information gathering and seen an opportunity to intervene. First, Mr. Steele did not travel to Russia to acquire his information and instead relied on intermediaries. That is a weak link, since Russia’s internal police service, the FSB, devotes significant technical and human resources to blanket surveillance of Western private citizens and government officials, with a particular focus on uncovering their Russian contacts.

Second, Mr. Steele was an especially likely target for such surveillance given that he had retired from MI-6, the British spy agency, after serving in Moscow. Russians are fond of saying that there is no such thing as a “former” intelligence officer. The FSB would have had its eye on him.

Third, the Kremlin successfully hacked into the Democratic National Committee. Emails there could have tipped it off that the Clinton campaign was collecting information on Mr. Trump’s dealings in Russia.

I’d flesh out another, one the Republicans have been dancing close to for the last year. Because Fusion GPS did business with both the Democrats and, via Baker Hostetler, anti-Magnitsky lobbyists Natalia Veselnitskaya and Rinat Akhmetshin at the same time, it created a second source via which the Russians might learn that Hillary had a dossier. In addition to Simpson himself,  Fusion researcher Edward Baumgartner also worked with both Baker Hostetler and the Democrats at the same time. Simpson tried to minimize the overlap and the possibility for revealing the dossier, especially in his Senate testimony.

Q. We had talked about work for multiple clients. What steps were taken, if any, to make sure that the work that Mr. Baumgartner was doing for Prevezon was not shared across to the clients you were working for with regard to the presidential election?

A. He didn’t deal with them. He didn’t deal with the clients.

But the publicly released financial data shows a clear overlap in those projects and Baumgartner’s comments to BI show he worked quite closely with Veselnitskaya.

Baumgartner, a fluent Russian speaker, said he was hired by Fusion to serve as “an interface” with Veselnitskaya, who does not speak much English. They worked “very closely” together in Washington and Moscow, Baumgartner said, reviewing documents and finding witnesses who could bolster Prevezon’s case.

Simpson attended a dinner in DC on June 10, attended by both Veselnitskaya and Akhmetshin, in the aftermath of the Trump Tower meeting at which (per Simpson) “we had drinks before;” Baumgartner’s vague memory suggests he did too. When asked if Baumgartner knew Akhmetshin, which is virtually certain, Simpson said, “I don’t know.” So there were at least opportunities where people working on both campaigns might have disclosed details about the project for the Democrats (though both Simpson and Baumgartner said Baumgartner didn’t know about the Steele part of the project).

One other detail makes it more likely that Russians succeeded in planting at least some disinformation: both Luke Harding (who worked closely with Steele on his book) and Simpson describe Steele’s sources drying up as the focus on Trump’s ties to Russia grew. Simpson’s statement on this grossly understates (as he often does) how much focus there already publicly was on the Russian hack by the time he hired Steele.

So, you know, when Chris started asking around in Moscow about this the information was sitting there. It wasn’t a giant secret. People were talking about it freely. It was only, you know, later that it became a subject of great controversy and people clammed up, and at that time the whole issue of the hacking was also, you know, not really focused on Russia. So these things eventually converged into, you know, a major issue, but at the time it wasn’t one.

So if Steele’s regular sources were drying up, it makes it far more likely any new ones would be easy to compromised.

Russians seem to have planned to use the dossier to discredit the investigation — just as they are using it

Finally, I want to turn to another reason why I think parts of this may be disinformation. At least two of the reports — the Alfa Bank report (which was pretty clearly a feedback loop on another dodgy story) and the depiction of what should have been the Internet Research Association but was instead targeted at Webzilla, seem custom made to prepare the kind of lawfare that has discredited the dossier. Indeed, Alfa Bank and Webzilla’s owners both sued, suggesting they feel like they can survive discovery.

Look, now, at this detail from the letters Chuck Grassley sent out to the DNC, its top officials, and the Hillary campaign, and its top officials, trying to find out how much they knew about and used the dossier. Grassley also asks for any communications to, from, or relating to the following (I’ve rearranged and classified them).

Fusion and its formal employees: Fusion GPS; Bean LLC; Glenn Simpson; Mary Jacoby; Peter Fritsch; Tom Catan; Jason Felch; Neil King; David Michaels; Taylor Sears; Patrick Corcoran; Laura Sego; Jay Bagwell; Erica Castro; Nellie Ohr;

Fusion researcher who worked on both the Prevezon and Democratic projects: Edward Baumgartner;

Anti-Magnitsky lobbyists: Rinat Akhmetshin; Ed Lieberman;

Christopher Steele’s business and colleagues: Orbis Business Intelligence Limited; Orbis Business International Limited.; Walsingham Training Limited; Walsingham Partners Limited; Christopher Steele; Christopher Burrows; Sir Andrew Wood,

Hillary-related intelligence and policy types: Cody Shearer; Sidney Blumenthal; Jon Winer; Kathleen Kavalec; Victoria Nuland; Daniel Jones;

DOJ and FBI: Bruce Ohr; Peter Strzok; Andrew McCabe; James Baker; Sally Yates; Loretta Lynch;

Grassley, like me, doesn’t believe Brennan was out of the loop either: John Brennan

Oleg Deripaska and his lawyer: Oleg Deripaska; Paul Hauser;

It’s the last reference I’m particularly interested in.

When Simpson talked about how the dossier got leaked to BuzzFeed, he complains that, “I was very upset. I thought it was a very dangerous thing and that someone had violated my confidences, in any event.” The presumed story is that John McCain and his aide David Kramer were briefed by Andrew Wood at an event that Rinat Akhmetshin also attended, later obtained the memo (I’m still not convinced this was the full memo yet), McCain shared it, again, with the FBI, and Kramer leaked it to Buzzfeed.

But Grassley seems to think Russian oligarch Oleg Deripaska was in on the loop of this. Deripaska is important to this story not just for because he owns Paul Manafort (he figures heavily in this worthwhile profile of Manafort). But also because he’s got ties, through Rick Davis, to John McCain. This was just rehashed last year by Circa, which has been running interference on this story.

There is a report that Manafort laid out precisely the strategy focusing on the dossier that is still the main focus of GOP pushback on the charges against Trump and his campaign (and Manafort).

It was about a week before Trump’s inauguration, and Manafort wanted to brief Trump’s team on alleged inaccuracies in a recently released dossier of memos written by a former British spy for Trump’s opponents that alleged compromising ties among Russia, Trump and Trump’s associates, including Manafort.

“On the day that the dossier came out in the press, Paul called Reince, as a responsible ally of the president would do, and said this story about me is garbage, and a bunch of the other stuff in there seems implausible,” said a personclose to Manafort.

[snip]

According to a GOP operative familiar with Manafort’s conversation with Priebus, Manafort suggested the errors in the dossier discredited it, as well as the FBI investigation, since the bureau had reached a tentative (but later aborted) agreement to pay the former British spy to continue his research and had briefed both Trump and then-President Barack Obama on the dossier.

Manafort told Priebus that the dossier was tainted by inaccuracies and by the motivations of the people who initiated it, whom he alleged were Democratic activists and donors working in cahoots with Ukrainian government officials, according to the operative.

If Deripaska learned of the dossier — and obtained a copy from McCain or someone close to him — it would make it very easy to lay out the strategy we’re currently seeing.

Update: Welp, here’s why Grassley wants to know who among the Democrats spoke with Cody Shearer.

The FBI inquiry into alleged Russian collusion in the 2016 US presidential election has been given a second memo that independently set out many of the same allegations made in a dossier by Christopher Steele, the British former spy.

The second memo was written by Cody Shearer, a controversial political activist and former journalist who was close to the Clinton White House in the 1990s.

[snip]

The Shearer memo was provided to the FBI in October 2016.

It was handed to them by Steele – who had been given it by an American contact – after the FBI requested the former MI6 agent provide any documents or evidence that could be useful in its investigation, according to multiple sources.

The Guardian was told Steele warned the FBI he could not vouch for the veracity of the Shearer memo, but that he was providing a copy because it corresponded with what he had separately heard from his own independent sources.

Among other things, both documents allege Donald Trump was compromised during a 2013 trip to Moscow that involved lewd acts in a five-star hotel.

Dear JD Gordon [and Jared]: Mueller Has 17 Prosecutors; White House Obstruction Accounts for Just One

The WaPo has a piece reporting (with details about John Kelly’s “collusion” with Attorney General Jeff Sessions, who is supposed to be recused) what I noted here: Trump wants the Devin Nunes memo to come out, even in spite of the warnings about how releasing it will damage national security.

It rather absurdly claims that Mueller is “narrowing” his probe.

As Mueller narrows his probe — homing in on the ways Trump may have tried to impede the Russia investigation — a common thread ties many of the incidents together: a president accustomed to functioning as the executive of a private family business who does not seem to understand that his subordinates have sworn an oath to the Constitution rather than to him.

More amusing is this anonymous quote from JD Gordon.

A person who has spoken with Mueller’s team said investigators’ questions seemed at least partially designed to probe potential obstruction from Trump.

“The questions are about who was where in every meeting, what happened before and after, what the president was saying as he made decisions,” this person said, speaking on the condition of anonymity to recount a private session.

This person added that while it seemed unlikely Mueller’s team would yield any evidence of a coordinated effort to aid the Russians — “If you were on the campaign, you know we couldn’t even collude with ourselves,” he said — the investigators might find more details to support obstruction of justice. [my emphasis]

We know it was JD Gordon because he said precisely the same thing in an op-ed just after the George Papadopoulos plea made it clear Gordon and his buddies might be in a heap of trouble.

Trump camp too disorganized to collude

Criminalization of policy differences has descended upon America once again. The viciousness towards a sitting president and his team evokes memories of Bill Clinton’s 1998 impeachment. In the “witch hunt” Clinton was impeached for something unrelated to the Arkansas real estate deal which sparked the Whitewater investigation years earlier. Like a Soviet secret police chief once said: “Show me the man and I’ll find you the crime.” Indeed.

We’re seeing the same thing today. The Trump-Russia collusion story is a hoax and “witch hunt” of this century.

Like typical conspiracy theories, usually the simplest explanation is correct. The campaign was chaotic, understaffed and underpaid, if paid at all. We couldn’t collude amongst ourselves. [my emphasis]

Since JD Gordon is — by his own account — incompetent, I’m going to repeat the substance of this post I did even as he first rolled out this line, just to help him out.

Update: I’ve been informed that Jared Kushner has also used this “we couldn’t collude because we’re too incompetent” line, so perhaps he’s the one who believes he’s not at risk for engaging in a quid pro quo with Russians and others. 

Robert Mueller has 17 prosecutors. We’ve only seen what 10 of them are doing. And just one of them — Watergate prosecutor James Quarles — is known to be working on the White House obstruction case.

Here’s a census of Mueller’s prosecutors who’ve thus far shown what they’re working on:

Manafort docket:

  • Andrew Weismann (1)
  • Greg Andres (2)
  • Kyle Freeny (3)

Adam Jed (4), an appellate specialist, has appeared with these lawyers in grand jury appearances.

Papadopoulos docket:

  • Jeannie Rhee (5)
  • Andrew Goldstein (6)
  • Aaron Zelinsky (7)

Flynn docket:

  • Brandon L. Van Grack (8)
  • Zainab Ahmad (9)

Obstruction docket:

Even in these dockets, it’s clear Mueller is nowhere near done.

Flynn may have a status hearing scheduled for Thursday (though it’s not formally noted in the docket). I suspect, instead, we’ll get a joint status report like was submitted in Papadopoulos’ case on January 17, which basically said, “we’re very busy cooperating, don’t bug us until April 23.”

And CNN just reported that Mueller’s team has drafted superseding indictments against Paul Manafort and Rick Gates, and Gates appears to be prepping to flip.

Former Trump campaign aide Rick Gates has quietly added a prominent white-collar attorney, Tom Green, to his defense team, signaling that Gates’ approach to his not-guilty plea could be changing behind the scenes.

Green, a well-known Washington defense lawyer, was seen at special counsel Robert Mueller’s office twice last week. CNN is told by a source familiar with the matter that Green has joined Gates’ team.

Green isn’t listed in the court record as a lawyer in the case and works for a large law firm separate from Gates’ primary lawyers.

Green’s involvement suggests that there is an ongoing negotiation between the defendant’s team and the prosecutors.

[snip]

Superseding indictments, which would add or replace charges against both Gates and Manafort, have been prepared, according to a source close to the investigation. No additional charges have been filed so far. When there is a delay in filing charges after they’ve been prepared, it can indicate that negotiations of some nature are ongoing.

So even where we have some visibility, that visibility suggests there is plenty of work trying to see if there was any conspiracy tied to the election.

That leaves the following prosecutors, listed with their specialities:

  • Aaron Zebley (11): probably working on coordination
  • Michael Dreeben (12): appellate wizard
  • Elizabeth Prelogar (13): appellate specialist and Russian speaker
  • Scott Meisler (14): appellate specialist
  • Rush Atkinson (15): fraud prosecutor
  • Ryan Dickey (16): Cybersecurity (just added in November)
  • Mystery prosecutor (17)

I mean, Mueller hasn’t even revealed all his prosecutors yet, much less what they’re all working on.

But JD Gordon would have you believe the prosecutors’ attention to what meetings he and his buddies were in means Mueller is only investigating obstruction.

Why Did Trump Tweet an “In the Ball Park” Accurate Number for Hillary’s Total Staffers on June 9, 2016?

In this post, I showed how the George Papadopoulos filings suggest there was a signaling process that went on during 2016, as he and other staffers sent public signals to the Russians that may have suggested further commitment to a deal of some kind. In this post, I laid out a bunch of circumstantial evidence suggesting that the current, public story about the June 9, 2016 meeting is just a limited hangout, one that hides more damning details about what happened after Natalia Veselnitskaya and Rinat Akhmetshin left the meeting. I also examined the first Guccifer 2.0 documents and noted that, in addition to responding to and debunking the June 14 WaPo story, they might serve well to lay out (arguably, to oversell) the breadth of what the Russians had stolen.

With those details in mind, I want to return to a detail many others have already noted, Donald Trump’s tweet, just 40 minutes after the Trump Tower meeting started, referencing Hillary emails (albeit the ones she deleted off her server, not the still secret stolen ones).

Given that George Papadopoulos seemed to treat other public statements from the campaign (most notably Trump’s April 27 foreign policy speech) as signals to the Russians the campaign was prepared to take the next step, could this tweet be the same? A response, seemingly from the candidate himself, accepting a deal presented in the meeting?

The tweet may have involved one or another of the campaign’s data guys

Mind you, as Pseudonymous in NC noted, the tweet was done on an iPhone — this is the period from before Trump had switched to iPhones — meaning someone else, perhaps either Brad Parscale or Dan Scavino, tweeted it. PINC lays out reasons either one of Trump’s data guys might be of particular interest:

Per the Bloomberg pre-election “bunker” story, Parscale was one of the few with credentials to the boss’s account. Pre-written tweets during events like the debates went through the web client, but my guess is that Scavino and Parscale represent most of the ‘Twitter for iPhone’ tweets in 2016 and early 2017. Some of them are RTing Scavino’s personal account, and Caddy Dan is that kinda guy. Parscale has consistently used an iPhone, including the June 8th photo from the Tower.

Remember that Feinstein is interested in Scavino’s contacts with, er, VKontakte, and that’s before considering Parscale’s data op. Pretty much everything tweeted out during 2016 that relates to the specifics of hacked emails is sent from an iPhone.

And the intermediary for the VK connection was Goldstone, going back to January 2016. It’s interesting that neither Scavino nor Parscale have apparently been called in for chats with investigators, or if they have, we haven’t heard about it.

[snip]

What I’m thinking is that if there was indeed an after-meeting about “dirt in the form of emails”, Scavino or Parscale may have been brought into the room. And Goldstone had been put in touch with Scavino earlier that year.

This story revealing Goldstone’s communications about his role in brokering the VK contact doesn’t support the possibility that one of the data guys was brought into the room. Rather, Goldstone’s emails suggest he discussed the idea with Don Jr and Paul Manafort, presumably on June 9, but that Scavino was not included in the meeting, even though he had been looped in during earlier discussions about it.

The newly disclosed emails show that Goldstone was in contact with the campaign about two weeks after visiting Trump Tower.

“I’m following up on an email [from] a while back of something I had mentioned to Don and Paul Manafort during a meeting recently,” Goldstone wrote to Scavino on June 29. Goldstone wrote that his client, Emin Agalarov, and a “contact” at VK wanted to create a “Vote Trump 2016” promotion.

“At the time, Paul had said he would welcome it, and so I had the VK folks mock up a basic sample page, which I am resending for your approval now,” Goldstone wrote. “It would merely require Mr. Trump to drop in a short message to Russian-American voters or a generic message, depending on your choice, and the page can be up and running very quickly.”

In any case, the discussion about VK is yet another detail that makes it pretty likely Goldstone, at least, arrived early or stayed after Natalia Veselnitskaya and Rinat Akhmetshin left (in the WaPo story on this, Scott Balber denies VK came up at any meeting Ike Kaveladze attended).

One other possibility for who sent that Tweet, though: It would not be surprising if Don Jr had access to Pop’s account. At least recently, he has alternated between an iPhone and the web client to send his own tweets, so it’s possible any tweets he sent on Dad’s behalf would also be from an iPhone.

Where’s Trump get that number, 823? And why’d he use it?

But I’m at least as interested in why Trump (or rather, Scavino or Parscale or Don Jr) used the number “823” in the tweet. In the aftermath of the John Sipher interview Jeremy Scahill did, Sipher suggested to me might be some kind of signal, a code; he’s the pro–maybe he’s right.

But I was wondering whether it might, instead, reflect real-time knowledge of the Hillary campaign’s finances and resources. That is, I wondered whether that number might have, itself, reflected the sharing of some kind of data that could verify the Russians had compromised Hillary’s campaign (or at least researched it substantively enough to know more than the Trump camp did). The public use of the number, then, might serve as a signal that that message, and the inside data, had been received.

While the specific number is difficult to check, I’ve been told the 823 number would have been at least “in the ball park” of the real number of Hillary’s campaign staffers on June 9, 2016.

Politico’s analysis of the Hillary campaign’s May 20 FEC filing showed Hillary had 732 staffers at the time of the report. The day after the June 9 meeting, Philip Bump did a story comparing Hillary and Trump’s staffing (a slew of such stories in the weeks after the June 9 meeting was one reason Corey Lewandowski got replaced as campaign manager), referencing the tweet. But his analysis reflected the month’s long lag in FEC filings. Without doing cleanup (to figure out who got paid that frequently, whether anyone got paid monthly rather than bi-monthly), Clinton’s FEC filings seem to show 587 individual payroll disbursements at her headquarters on June 15, 2016.

I talked to a couple of people on the campaign who remember thinking about the tweet, and its use of the 823 number, in real time. Someone who was working on responding to such issues told me he thought, when the tweet came out, that it might have been just a guess (though now thinks it might come from misreading a report). But another Hillary staffer described taking note of the specific number in real time. That person did about 10 minutes of follow-up at the time, checking real-time FEC filings, and concluded that it might be an accurate number. Between headquarters staff, working (policy) teams, advance, and field staff, the person believes the 823 number could very well represent a close to real number of staffers Hillary had “working” on her campaign.

Of course, none of this would mean the number came from the Russians. Such estimates are done by (competent) political campaigns all the time. So it could have come from Trump’s data people — the same people who could have tweeted the tweet in Trump’s name — itself.

That said, in none of the other Trump tweets using the 30,000 or the 33,000 email number does he include a similarly specific detail — the closest comparison is one invocation of Chelsea’s wedding. Note, too, just one other of those tweets also came from an iPhone — the equally suspicious one on July 27, 2016 asking Russia to release those emails (though one of the others came from the web client).

One more point on the number: That night, at 8:22PM ET, someone on Reddit’s The_Donald thread posted, “Hillary has a staggering 823 staffers on her campaign; Donald Trump  has over 142,000.” Best as I understand it, the comment was almost immediately removed by moderators. I find that worth noting.

Mueller Wants to Delay Telling Manafort and Gates What Other Crimes It Knows They Committed

The government just submitted a request to modify the deadline Judge Amy Berman Jackson set to give Paul Manafort and Rick Gates notice of other crimes or bad acts it will introduce at trial, what is called a Rule 404(b) notice. Currently, they have to provide that notice on April 6, but the judge is now considering a September rather than a May trial date, so prosecutors want to bump the 404 notice back accordingly.

Mueller’s prosecutors don’t want to give Manafort and Gates more than a couple months notice of the other crimes they’re going to unload during the trial. They also note that if they give notice in April, they may have to provide multiple notices as they learn of other bad acts.

Premature disclosure raises issues as well. For example, in declining to require disclosure that is too early, courts have recognized that “the evidence the government wishes to offer may well change as the proof and possible defenses crystallize.”

[snip]

For similar reasons, early disclosure can result in multiple Rule 404(b) notices and multiply the rulings that a court needs to make, thus undermining the efficient use of judicial and party resources.

The government wants to wait until 8 weeks before the trial before giving notice.

At least two things appear to be going on here. First, Mueller doesn’t want to tip his hand to the many crimes it has found Manafort implicated in. Perhaps, he also wants to avoid making other obvious allegations about Manafort and Gates to preserve their credibility when they flip on the President and his family. But it also seems to suggest Mueller expects he’ll be finding other crimes Manafort and Gates committed for the next 8 months.

The June 9 Trump Tower Limited Hangout

I did two podcasts this week where I elaborated on my theory that the current story we have about the June 9, 2016 Trump Tower meeting is just a limited hangout, a partial story that I suspect serves to hide a later, more damning part of the meeting:

I first started suspecting that the current story — that Natalia Veselnitskaya pitched a request for Magnitsky sanctions relief in exchange for … almost no dirt on Hillary — was a limited hangout as I tracked Scott Balber’s repeated heavy-handed attempts to craft a story that could explain the known emails and documents.

I want to lay out my evolving, more developed theory here.

For weeks, Russians had been offering emails in exchange for meetings

The Trump campaign first learned about “dirt” on Hillary in the form of thousands of emails on April 26. The day after learning of those emails, George Papadopoulos sent two emails to Trump campaign staffers, that may have reflected a discussion of an early quid pro quo: some meetings — meant to lead to one between Trump and Putin — in exchange for emails.

To Stephen Miller, Papadopoulos wrote, “Have some interesting messages coming in from Moscow about a trip when the time is right.” To Corey Lewandowski, it appears he asked for a phone call “to discuss Russia’s interest in hosting Mr. Trump. Have been receiving a lot of calls over the last month about Putin wanting to host him and the  team  when the time is right.”

That same day, he sent his Russian handler, Ivan Timofeev, an email saying that the first major Trump foreign policy speech he helped author was a “signal to meet.” The speech spoke, in part, about making a great deal with Russia.

I believe an easing of tensions, and improved relations with Russia from a position of strength only is possible, absolutely possible. Common sense says this cycle, this horrible cycle of hostility must end and ideally will end soon. Good for both countries.

Some say the Russians won’t be reasonable. I intend to find out. If we can’t make a deal under my administration, a deal that’s great — not good, great — for America, but also good for Russia, then we will quickly walk from the table. It’s as simple as that. We’re going to find out.

Over the course of the next month, Papadopoulos sent a Timofeev invitation for a meeting  to move towards setting up a Putin-Trump meeting via email to Lewandowski (on May 4), to Sam Clovis (on May 5, after which they spoke by phone), and to Paul Manafort (on May 21), with additional back and forth in between.

Who is the Crown Prosecutor?

Around that time in late May, Natalia Veselnitskaya met with long-time Trump associate Aras Agalarov and mentioned her efforts to help Denis Katsyv in his legal fight with Bill Browder (note, elsewhere Veselnitskaya claimed she normally keeps her clients’ business compartmented, but claims not to have done so in this case) and to lobby against the Magnitsky sanctions. That’s where, according to Veselnitskaya, the idea of connecting her with Don Jr first came about, though she doesn’t remember who came up with the idea.

Around the end of May 2016, during a conversation with a good acquaintance of mine, being my client, Aras Agalarov on a topic that was not related to the United States, I shared the story faced when defending another client, Denis Katsyv, about how terribly misled the US Congress had been by the tax defrauder William Browder, convicted in Russia, who, through his lobbyists and his close-minded rank-and-file Congress staffers, succeeded in adopting the Act in the name of a person whom Browder practically hardly ever knew.

I considered it my duty to inform the Congress people about it and asked Mr. Agalarov if there was any possibility of helping me or my colleagues to do this. I do not remember who of us was struck by the idea that maybe his son could talk about this with Donald Trump, Jr., who, although a businessman, was sure to have some acquaintances among Congress people. After my conversation with Mr. Agalarov, I prepared a reference in case it would be necessary to hand over the request – to support the hearings in the Subcommittee in the US House Committee on Foreign Affairs as to the Magnitsky’s and Browder’s story, scheduled for mid-June.

The timing of this meeting is important. We know that the date on the document alleged to be the “dirt” handed to Don Jr — one that she claims she prepared “in case it would be necessary to hand over” is May 31. Either this meeting happened before May 31 (which is when Veselnitskaya described it to have taken place), or the document was instead drawn up exclusively for lobbying purposes (which would be unsurprising, but would be inconsistent with the testimony that uses the talking points to prove the meeting was only about Magnitsky sanctions). Elsewhere she gets sketchy about the date of the document, and produced as it was by Agalarov lawyer Scott Balber, we can’t be sure about the forensics of the document.

The reason the date is important, however, is that, in pitching the Trump Tower meeting on June 3, Rob Goldstone told Don Jr that Emin Agalarov’s father met with “the Crown Prosecutor” that morning.

Emin just called and asked me to contact you with something very interesting.

The Crown prosecutor of Russia met with his father Aras this morning and in their meeting offered to provide the Trump campaign with some official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to your father.

This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump – helped along by Aras and Emin. [my emphasis]

Admittedly, any discrepancy on dates might be due to the game of telephone going on — Aras to Emin to Goldstone. But if the meeting in question really did happen on June 3, then it significantly increases the likelihood that “Crown Prosecutor” is not at all a reference to Veselnitskaya (who claims to have met with Agalarov earlier), as has been claimed, but is to someone else, dealing a different kind of dirt.

Spoiler alert: I suspect it is not a reference to her.

In his version of this story, Goldstone says he only played this broker role reluctantly.

“I remember specifically saying to Emin, you know, we probably shouldn’t get involved in this. It’s politics, it’s Hillary Clinton and Donald Trump. Neither of us have any experience in this world. It’s not our forte. I deal with music. You’re a singer and a businessman.”

Don Jr seems to have shown no such reluctance. He emailed back 17 minutes later saying, “if it’s what you say I love it especially later in the summer.” He says that, in spite of the claim he made in his testimony that, “I had no additional information to validate what Rob was saying, I did not quite know what to make of his email.” Whatever Don Jr expected it to include on June 3, he may have gotten a clearer sense of what it was on June 6, when he spoke to Emin in a phone call set up in about an hour’s time, just as Emin got off the stage.

In fact, Don Jr had three “very short” phone calls in this period, but he’s getting forgetful in his old age and so doesn’t remember what transpired on them.

My phone records show three very short phone calls between Emin and me between June 6th and 7th. I do not recall speaking to Emin. It is possible that we left each other voice mail messages. I simply do not remember.

Veselnitskaya did not get her visa to come to the US until June 6. That’s the day when Goldstone, referencing Don Jr’s earlier instructions on timing, followed-up about a meeting.

Let me know when you are free to talk with Emin by phone about this Hillary info.

Ike Kaveladze’s still unexplained late inclusion in the meeting

Goldstone was still finalizing the meeting time on June 8 at 10:34 AM. But sometime, presumably after the time on June 7 at 6:14PM, when Don Jr told Goldstone that Paul Manafort and Jared Kushner would also attend, fellow Agalarov employee Ike Kaveladze got invited, though without Veselnitskaya ever learning why. At some unidentified time, Kaveladze called an associate of Goldstone’s and learned that the meeting would be about discussing “dirt” on Hillary Clinton — the same word Papadopoulos’ handlers had used.

Scott Balber, Kaveladze’s attorney, told The Daily Beast that before Kaveladze headed from Los Angeles to New York for the meeting, he saw an email noting that Kushner, Manafort, and Trump Jr. would all be involved. He thought it would be odd for them to attend the meeting, so he called Beniaminov before heading to New York. Both Beniaminov and Kaveladze have worked with the Agalarov’s real estate development company, the Crocus Group.

Balber said that Beniaminov told Kaveladze that he heard Rob Goldstone— Emin Agalarov’s music manager—discuss “dirt” on Hillary Clinton. It’s never become completely clear what kind of “dirt” the Russians were talking about.

Having learned of a meeting dealing dirt that included Don Jr, Kushner, and Manafort, Kaveladze got on a plane and flew to NYC.

According to Veselnitskaya’s very sketchy account, she got an email finalizing the meeting when she arrived in NYC on June 8 — an email that was also CC’ed to Kaveladze. She and Kaveladze spoke by phone sometime that day, and met sometime before the meeting.

With those present at the meeting, Samochernov, Kaveladze, and Akhmetshin, I spoke about the meeting on the day it was to be held, possibly, I mentioned it the day I arrived in New York when speaking with Kaveladze by phone, but I do not have exact information about it.

[snip]

We got acquainted first by phone when I was in Moscow. I met him personally first on June 9 shortly before the meeting.

[snip]

We had a phone call and met at a café, I do not remember where and at what café. I told him briefly what I knew about the Browder case, about the Ziffs and their possible support when lobbying his interests in the United States.

Like Don Jr’s memory of his phone calls with Emin, Veselnitskaya claims to have forgotten what got said in that phone call with Kaveladze.

Competing versions of the meeting

Which brings us to June 9.

We don’t know what Kaveladze’s schedule was. We do know that on the morning of June 9 — before lunch, which is when Veselnitskaya said Akhmetshin first got involved — Veselnitskaya asked Goldstone if she could bring Akhmetshin, whom she claimed had just “arrived that day in New York for an evening performance of Russian theatre stars.” Goldstone responded a half hour later, “Please bring them with you and meet Ike for your meeting at 4PM today.” (The copy of the email publicly released does not include the CC to Kaveladze that Veselnitskaya said was included.)

As I laid out in this post, Veselnitskaya says she arrived at the meeting with her translator, Kaveladze, and Akhmetshin, was met by Goldstone there, and brought to a board room where Don Jr and Manafort were already present.

I came to the meeting with Anatoly Samochornov, a translator, Irakly Kaveladze, a lawyer of my client who helped to arrange for the meeting, Rinat Akhmetshin, my colleague who was working with me on the Prevezon case. We were met by a big, stout man who introduced himself as Rob and escorted us on the elevator to the boardroom. I saw two men in the boardroom – one of them introduced himself as Donald Trump Jr., while the other did not introduce himself. Another young man entered the boardroom a little later and left it shortly afterwards. I found out much later that the two unidentified gentlemen were P. Manafort and J. Kushner.

According to Veselnitskaya, Kaveladze was introduced — to the extent he was — as “Ike.” Remember that he attended the 2013 dinner celebrating the Agalarov-brokered deal to bring Miss Universe to Moscow, meaning at least some in the Trump camp should know him.

Veselnitskaya’s account seems to line up with Jared Kushner’s, which basically has him arriving late, staying for about 10 minutes of Veselnitskaya’s discussion of adoptions (though he seems to be claiming not to be present for any discussion of Magnitsky sanctions), then asked his assistant to give him an excuse to leave.

I arrived at the meeting a little late. When I got there, the person who has since been identified as a Russian attorney was talking about the issue of a ban on U.S. adoptions of Russian children. I had no idea why that topic was being raised and quickly determined that my time was not well-spent at this meeting. Reviewing emails recently confirmed my memory that the meeting was a waste of our time and that, in looking for a polite way to leave and get back to my work, I actually emailed an assistant from the meeting after I had been there for ten or so minutes and wrote “Can u pls call me on my cell? Need excuse to get out of meeting.” I had not met the attorney before the meeting nor spoken with her since. I thought nothing more of this short meeting until it came to my attention recently. I did not read or recall this email exchange before it was shown to me by my lawyers when reviewing documents for submission to the committees. No part of the meeting I attended included anything about the campaign, there was no follow up to the meeting that I am aware of, I do not recall how many people were there (or their names), and I have no knowledge of any documents being offered or accepted.

Jared claims not to know who was at the meeting, which is somewhat credible given that he arrived after introductions.

For some reason, Goldstone holds out the claim this meeting started by talking about Democratic campaign donations then moved to sanctions.

Goldstone tells me that he only half-listened to the presentation from Natalia Veselnitskaya, the Russian lawyer, as he checked emails on his phone. But he insists, as Trump Jr has done, that the meeting ended awkwardly after she switched tack from discussing Democratic funding to US sanctions legislation and Moscow’s retaliatory policy that restricts Americans from adopting Russian children. “It was vague, generic nonsense,” Goldstone says.

[snip]

“Within minutes of starting, Jared said to her, ‘Could you just get to the point? I’m not sure I’m following what you’re saying,’ ” Goldstone says.

It was then that she started talking in detail about the provisions of the Magnitsky legislation and adoptions, he says. “I believe that she practised a classic bait-and-switch. She got in there on one pretext and really wanted to discuss something else.”

Don Jr’s memory of the meeting is somewhat different. Not only doesn’t he remember Akhmetshin’s presence at all, but he remembers Manafort arriving after the visitors were already in the conference room (mind you, I don’t consider this a significant discrepancy). And he definitely remembers adoptions being discussed at the same time as the sanctions.

As I recall, at or around 4 pm, Rob Goldstone came up to our offices and entered our conference room with a lawyer who I now know to be Natalia Veselnitskaya. Joining them was a translator and a man who was introduced to me as Irakli Kaveladze. After a few minutes, Jared and Paul joined. While numerous press outlets have reported that there were a total of eight people present at the meeting, I only recall seven. Because Rob was able to bring the entire group up by only giving his name to the security guard in the lobby, I had no advance warning regarding who or how many people would be attending. There is no attendance log to refer back to and I did not take notes.

After perfunctory greetings, the lawyer began telling the group very generally something about individuals connected to Russia supporting or funding Democratic Presidential Candidate Hillary Clinton or the Democratic National Committee. It was quite difficult for me to understand what she was saying or why. Given our busy schedules, we politely asked if she could be more specific and provide more clarity about her objective for the meeting. At that point, Ms. Veselnitskaya pivoted and began talking about the adoption of Russian children by U.S. citizens and something called the Magnitsky Act.

Until that day, I had never heard of the Magnitsky Act and had no familiarity with this issue. It was clear to me that her real purpose in asking for the meeting all along was to discuss Russian adoptions and the Magnitsky Act. At this point, Jared excused himself from the meeting to take a phone call.

Despite some minor differences in choreography, thus far the differences in the stories are not that substantial.

That changes, though, in the descriptions of how the meeting ended.

Don Jr claims he said that Trump was a private citizen so could do nothing to help.

I proceeded to quickly and politely end the meeting by telling Ms. Veselnitskaya that because my father was a private citizen there did not seem to be any point to having this discussion.

Goldstone claims something similar — that Don Jr told Veselnitskaya she should talk to Obama’s Administration, not the future Trump one.

“Don Jr ended it by telling her that she should be addressing her concerns to the Obama administration, because they were the ones in power.”

But in an an interview with Bloomberg that Veselnitskaya disavowed in her statement to SJC, she said that Don Jr suggested he would reconsider the sanctions “if we came to power.”

“Looking ahead, if we come to power, we can return to this issue and think what to do about it,’’ Trump Jr. said of the 2012 law, she recalled. “I understand our side may have messed up, but it’ll take a long time to get to the bottom of it,” he added, according to her.

The extra details in the contemporaneous record as interpreted by Glenn Simpson

As far as we know, there’s only one contemporaneous record of this meeting: the notes that Manafort — whom Veselnitskaya claimed “closed his eyes and fell asleep” during the 20 minute meeting — took on his phone. Glenn Simpson was asked to comment on Manafort’s notes in his Senate testimony. Some of what he describes confirms these public accounts: the early reference to Browder, the other reference to Juliana Glover, the reference to adoptions.

MR. DAVIS: These are the meeting notes from 3 the June 9th meeting at Trump Tower. These are Mr. Manafort’s notes or they’re contemporaneous.

BY THE WITNESS:

A. I could tell — obviously you know who Bill Browder is. Cyprus Offshore, Bill Browder’s structure, you know, investment — Hermitage Capital, his hedge fund, set up numerous companies in Cyprus to engage in inward investment into Russia, which is a common structure, both partially for tax reasons but also to have entities outside of Russia, you know, managing specific investments. I can only tell you I assume that’s what that references. I don’t know what the 133 million —

[snip]

A. I can skip down a couple. So “Value in Cyprus as inter,” I don’t know what that means. “Illici,” I don’t know what that means. “Active sponsors of RNC,” I don’t know what that means. “Browder hired Joanna Glover” is a mistaken reference to Juliana Glover, who was Dick Cheney’s press secretary during the Iraq war and associated with another foreign policy controversy. “Russian adoptions by American families” I assume is a reference to the adoption issue.

While Simpson doesn’t recognize the reference, in addition to the passing reference to Cyprus shell companies, the notes allegedly used for the meeting explain the 133 million reference.

In the period of late 1999 to 2004, two companies – Speedwagon Investments 1 and 2, registered in New York, and owned by the said U.S. investors, acting through three Cypriot companies, Giggs Enterprises Limited, Zhoda Limited, Peninsular Heights Limited illegally acquired more than 133 million Gazprom shares in the amount exceeding $80 million in the name of the Russian companies Kameya, Lor, Excalibur, Sterling Investments.

But there seems to be more extensive reference to Cyprus (the laundering of money through which, of course, Manafort is himself an expert; it features centrally in his indictment).

And none of the accounts of the meeting seem to explain Manafort’s half-written “illicit,” nor does “Active sponsors of RNC” appear anywhere.

So there appear to be two things in Manafort’s notes that aren’t explained by the several accounts of the meeting: RNC support (elsewhere attributed to the reference to Ziff brothers’ political donations, something which Manafort might independently know) and, most intriguingly, “illicit” (as well, as perhaps, the more central focus on Cyprus than reflected in the talking points).

Who left the conference room when?

This brings me to the question of who left the conference room when.

According to the LAT, Mueller’s team seems newly interested in an exchange between Ivanka, Veselnitskaya, and Akhmetshin, which attests to Ivanka’s awareness — whatever her spouse’s and brother’s ignorance — of Akhmetshin’s presence.

Investigators also are exploring the involvement of the president’s daughter, Ivanka Trump, who did not attend the half-hour sit-down on June 9, 2016, but briefly spoke with two of the participants, a Russian lawyer and a Russian-born Washington lobbyist. Details of the encounter were not previously known.

It occurred at the Trump Tower elevator as the Russian lawyer, Natalia Veselnitskaya, and the lobbyist, Rinat Akhmetshin, were leaving the building and consisted of pleasantries, a person familiar with the episode said. But Mueller’s investigators want to know every contact the two visitors had with Trump’s family members and inner circle.

But it also may suggest that, after arriving with the two Russians, Ike Kaveladze may have stayed on for a bit afterwards.

Which may be backed by another detail in the various accounts of the meeting. Both Don Jr …

She thanked us for our time and everyone left the conference room. As we walked out, I recall Rob coming over to me to apologize.

And Goldstone claim that the music promoter apologized for the meeting at the end.

As he emerged from the meeting, Goldstone says that he told Trump Jr he was “deeply embarrassed” that it had been an apparent waste of time.

If Goldstone “apologized” for the meeting, as he and Don Jr claim, it suggests Goldstone, at least, stayed behind long enough to say something that would otherwise be rude to say in front of Veselnitskaya. Don Jr’s claim of an apology might provide convenient excuse.

Perhaps most curious among the first-hand accounts is Goldstone’s claim that he thought the 20-30 minute meeting was “dragging on.”

He had not even planned to attend, but was encouraged to stay by Trump Jr. His biggest concern, he says, was that if the meeting dragged on, he would be caught in the notorious Lincoln Tunnel traffic on his journey home.

But her emails

At 4:40 PM, 40 minutes after the meeting started, Trump tweeted what would become one of the most famous exchanges of the campaign, his retort to Hillary Clinton’s taunt that he should delete his Twitter account with this response,

Did you say “dirt” in the form of Hillary emails?

Six days after that meeting, Guccifer 2.0 released the first of the documents stolen by hacking Democratic targets (though note, none of these are known to have come from the DNC, which is the only hack the WaPo reported on the day before; while some have been traced to Podesta’s emails, the others remain unaccounted for).

While I have argued that the specific content in that dump can be explained, in significant part, as an effort to respond to and rebut the claims CrowdStrike and the Democrats made to the WaPo, some of the documents would be particularly valuable in selling the Trump team on the value of any “dirt” on offer. That includes the oppo research on Trump himself (though that was definitely also a response to the WaPo), but also what purports to be a secret policy document stolen from Hillary’s Secretary of State computer, and a document on Hillary’s election plans. Significantly, all three of these documents were among the ones with the altered metadata, in part bearing the signature of Felix Edmundovich Dzerzhinsky.

In short, that first post from Guccifer 2.0 would not only refute the confident claims the Democrats made to the WaPo, but it would provide the Trump camp with a sense of the scope of documents on offer. Within that first week, Guccifer 2.0 would even offer what claimed to be a (heh) “dossier” on Hillary Clinton. (Given my concerns that Russians learned of the Steele dossier and filled it with disinformation, I find it rather interesting that Guccifer 2.0 first advertised this dossier on the same day, June 20, that Steele submitted the first report in his dossier.)

Eerie

If, in fact, there was a second part of this meeting, it seems to be the high level meeting that George Papadopoulos had been working on setting up for weeks, meetings discussed in the context of offering dirt in the form of emails. The Russians laid out a quo — relief of the Magnitsky sanctions — and a week later, provided the first installments of the quid — oppo research from Hillary Clinton.

That would more readily explain why, on June 14, Goldstone would forward this account of the DNC hack to Emin and Ike (but not the other attendees) declaring the DNC hack to be eerie in the wake of what transpired at the meeting.

In one email dated June 14, 2016, Goldstone forwarded a CNN story on Russia’s hacking of DNC emails to his client, Russian pop star Emin Agalarov, and Ike Kaveladze, a Russian who attended the meeting along with Trump Jr., Trump’s son-in-law Jared Kushner and Manafort, describing the news as “eerily weird” given what they had discussed at Trump Tower five days earlier.

And that, I suspect, is the real story that Scott Balber has been working so hard to obscure.

The Simpson Transcript: The Dossier as Predicate

I’m working towards a big post (or a series of small ones) on the Glenn Simpson transcript. I address some of my impressions in this Real News Network video with Aaron Maté from the other day.

Before I do that larger post, however, I want to address something Maté asked me about: whether the Simpson transcript — in which he says that Christopher Steele learned from the FBI about (what independent reporting confirms) the Papadopoulos tip from the Australians — supports or refutes the sharply contested arguments about whether the Steele dossier started the counterintelligence investigation or served as a key source for a FISA warrant against either Carter Page or Paul Manafort. Skeptics of the report that the investigation actually arose from the George Papadopoulos tip have argued that the latest PR effort around the dossier is an attempt to paper over the dossier as the true source of either the investigation or the FISA orders.

As I noted on RNN, the dossier doesn’t actually help the anti-Trump narrative as much as people have made out. Simpson testified that Steele decided to reach out to the FBI towards the end of June or beginning of July (after only the first dossier report had been done), and the conversation actually happened the first week of July (a questioner later refers to it as occurring July 5).

Q. And do you recall when you — when you and Mr. Steele decided kind of that he could or should take this to the FBI, approximately the time frame of that?

A. I believe it was sometime around the turn of the month. It would have been in late June or at latest early July. That’s my recollection.

[snip]

Q. Do you have any knowledge of when that first conversation actually then took place?

A. Over the last several months that this has become a public controversy I’ve learned the general date and I believe it was if first week of July, but I don’t believe he told me — if he told me the time, I don’t remember when he told me.

Simpson later admits his certainty about these dates comes from Fusion’s response to speculation and other reporting.

Q. And that information about that time, that first week of July, where does that come from?

A. It comes from news accounts of these events and conversations between Chris and I and some of my — presumably my business partners too. Generally speaking, we have, as you know, not been eager to discuss any of this in public and there’s been a lot of speculation and guessing and stories, many of which are wrong. So when an incorrect story comes out we would, you know, talk about it. So, you know, in the course of those kinds of things I generally obtained a sense of when things occurred that I might otherwise not be able to provide you.

Regardless of how accurate or not this report, it means that Steele spoke with the FBI weeks before the Australian tip is supposed to have come in, which was after Wikileaks started dumping the emails on July 22 (though as I noted with Maté, there are aspects of that story that are sketchy as well). The reference to Steele learning about what he now believes was the Papadopoulos tip reflects feedback from mid to late September, when the FBI told him his story had been corroborated by a human source, not from that first FBI meeting.

Essentially what he told me was they had other intelligence about this matter from an internal Trump campaign source and that — that they — my understanding was that they believed Chris at this point — that they believed Chris’s information might be credible because they had other intelligence that indicated the same thing and one of those pieces of intelligence was a human source from inside the Trump organization.

Later in the transcript Simpson responds in a way that suggests Steele was reading the FBI response rather than learning actual details of the tip; certainly he might have been able to corroborate it back in London.

Q. And did Mr. Steele tell you that the FBI had relayed this information to him?

A. He didn’t specifically say that.

Q. I’m going to have you take a look at one of the filings —

MR. FOSTER: I thought you said earlier that he did say the FBI told him.

MR. SIMPSON: I think I was saying we did not have the detailed conversations where he would debrief me on his discussions with the FBI. He would say very generic things like I saw them, they asked me a lot of questions, sounds like they have another source or they have another source. He wouldn’t put words in their mouth.

In other words, the record shows that (unless the public story about the Australian tip is really inaccurate) the pee tape report came in first, and then the Oz tip did.

That said, both of these tips came in before late July, which is when Jim Comey testified the CI investigation started.

Which is where this predicate debate has always gone wrong. It imagines that the FBI opened an investigation into one and only one thing. In addition to those two things, there were the actual hack and the Guccifer 2.0 persona — already perceived to be a Russian operation before the first Steele report came in — along with clear indications Wikileaks was involved with it. There was Carter Page’s publicly reported trip and speech in Russia, and the beginnings of the reawakening Paul Manafort scandal. And there were the concerns raised about the change in the GOP platform (though I think that got more press than the evidence justified).

So there were a whole bunch of things leading up to the opening of the investigation. And there’s no reason to believe just one predicated the investigation.

Similarly, the case on the FISA orders is mixed (though this is an area, in particular, where the FBI would have an incentive to release partial stories). One of the first reports on Carter Page’s FISA order dates it to late summer, when the Trump campaign was distancing itself from him. But later reporting said he had been tapped even before he joined the campaign, in conjunction with his earlier recruitment by Russian spies.

Manafort, too, was reportedly targeted under FISA because of his earlier dalliances with Russia. In his case, the wiretap had lapsed, but was restarted after new details of his corruption forced him off the campaign in August.

As I’ll write in my larger post on the Simpson transcript, I don’t think all this means the tie between the dossier and the FBI investigation is above reproach. But it does seem clear that, even if the dossier is one thing that justified the investigation, it was neither the earliest thing nor the only thing.

Incidental Collection Under Section 702 Has Probably Contributed to Trump’s Downfall, Too

As you’ve no doubt heard, the House passed the bad reauthorization to Section 702 yesterday. The Senate will vote on cloture on Tuesday — though both Rand Paul and Ron Wyden have threatened to filibuster it — and will almost certainly be voted into law after that.

I’ll have comment later on the rising costs, for politicians, for mindlessly reauthorizing these bills in a follow-up post.

Paul Ryan told President Trump Section 702 hasn’t affected his people

But for the moment, I want to comment on the debate that took place in response to Trump’s two tweets. The first tweet, which was clearly a response to a Judge Napolitano piece on Fox News yesterday morning, complaining about FISA.

Then, after a half hour lesson from Paul Ryan on the different FISA regimes (note, for some reason Devin Nunes was conspicuously absent from much of this process yesterday, both the coddling of the President and managing debate on the bill), a follow-up tweet hailing Section 702’s utility for “foreign surveillance of foreign bad guys on foreign land.”

In response to those tweets, many commenters stated, as a matter of fact, that Trump hasn’t been impacted by Section 702, that only traditional FISA intercepts drove key developments in the Russian investigation.

That’s unlikely to be true, and I suspect we already have evidence that that’s not the case.

It is true that incidental collection on a Title I got Mike Flynn in trouble

To defend the case that incidental collection off a traditional FISA order has impacted Trump’s administration, people point to the December 29, 2016 intercepts of communications between Sergey Kislyak and Mike Flynn which were cited in Flynn’s guilty plea. It is true that those intercepts were done under a traditional FISA order. Admiral Mike Rogers as much as confirmed that last March in his efforts to explain basic FISA law to the House Intelligence Committee Republicans who are supposed to oversee it.

Rogers: FISA collection on targets in the United States has nothing to do with 702, I just want to make sure we’re not confusing the two things here. 702 is collection overseas against non US persons.

And Speaker Ryan, fresh off his efforts to teach the President basic surveillance law, yesterday clarified — inaccurately — that,

Title 1 of the FISA law is what you see in the news that applies to U.S. citizens. That’s not what we’re talking about here. This is Title 7, Section 702. This is about foreign terrorists on foreign soil.

Whatever the facts about FISA orders targeting Carter Page and Paul Manafort, the intercepts that have done the most known damage to the Trump Administration so far targeted a foreigner on US soil, Sergey Kislyak, and Flynn just got picked up incidentally.

Papadopoulos’ affidavit and statement of offense make different claims about his false claims and obstruction

But as I said, I suspect it is highly likely the Trump Administration has also been brought down by an American being caught up incidentally in a Section 702 tasking. That’s because of several details pertaining to the George Papadopoulos plea which I nodded to here; they strongly suggest that Papadopoulos’ Facebook communications with Joseph Mifsud were first obtained by the FBI via Section 702, and only subsequently parallel constructed using a warrant. It’s further likely that the FBI obtained a preservation order on Papadopoulos’ Facebook account before he deleted it because of what they saw via Section 702. [Update: KC has alerted me that they may not have gotten a preservation order, but instead were able to access the Facebook account because that content doesn’t all go away when you deactivate an account, which is what the October 5 document describes as happening.]

Compare the two descriptions of how Papadopoulos obstructed justice. The July 28, 2017 affidavit supporting Papadopoulos’ arrest describes Papadopoulos destroying his Facebook account to hide conversations he had with Timofeev.

The next day, on or about February 17, 2017, however, GEORGE PAPADOPOULOS, the defendant, shut down his Facebook account, which he had maintained since approximately August 2005. Shortly after he shut down his account, PAPADOPOULOS created a new Facebook account.

The Facebook account that PAPADOPOULOS shut down the day after his interview with the FBI contained information about communications he had with Russian nationals and other foreign contacts during the Campaign, including communications that contradicted his statements to the FBI. More specifically, the following communications, among others, were contained in that Facebook account, which the FBI obtained through a judicially authorized search warrant.

The affidavit makes it clear that Papadopoulos attempted to hide “his interactions during the Campaign with foreign contacts, including Russian nationals.” The descriptions of the communications that Papadopoulos attempted to hide are described as “a Facebook account identified with Foreign Contact 2,” Timofeev.

The FBI recorded both interviews, suggesting they already by January 27 they had reason to worry that Papadopoulos might not tell the truth.

The October 5 statement of the offense describes one of Papadopoulos’ false statements this way:

PAPADOPOULOS failed to inform investigators that the Professor had introduced him to the Russian MFA Connection [Timofeev], despite being asked if he had met with Russian nationals or “[a]nyone with a Russian accent” during the Campaign. Indeed, while defendant PAPADOPOULOS told the FBI that he was involved in meetings and did “shuttle diplomacy” with officials from several other countries during the Campaign, he omitted the entire course of conduct with the Professor and the Russian MFA Connection regarding his efforts to establish meetings between the Campaign and Russian government officials.

And it describes his obstruction this way:

The next day, on or about February 17, 2017, defendant PAPADOPOULOS deactivated his Facebook account, which he had maintained since approximately August 2005 and which contained information about communications he had with the Professor and the Russian MFA Connection. Shortly after he deactivated his account, PAPADOPOULOS created a new Facebook account that did not contain the communications with the Professor and the Russian MFA Connection.

On or about February 23, 2017, defendant PAPADOPOULOS ceased using his cell phone number and began using a new number.

In neither document does FBI mention having the content of Papadopoulos’ April 2016 Skype calls with Timofeev and neither one cites data — such as texts — that might have been on his cell phone.

What FBI (probably) learned when

While we can’t be sure — after all, the government may simply be withholding more information from other suspects — the differences between the two legal filings and other public information suggest the following evolution in what the government knew of Papadopoulous’ communications with his interlocutors when. Most importantly, the FBI had learned of Papadopoulos’ communications with Joseph Mifsud and Olga Vinogradova before his two interviews, but they had not learned of his communications with Ivan Timofeev.

Late July 2016

In a drunken conversation in May 2016, Papadopoulos told the Australian Ambassador Alexander Downer that he had been told (by Joseph Mifsud, but it’s not clear Papadopoulos would have revealed that) the Russians had dirt on Hillary in the form of emails.

Before January 27, 2017

  • Papadopoulos might lie and so should be recorded
  • Papadopoulos had interesting communications with Joseph Mifsud and Olga Vinogradova
  • Since Timofeev did not come up in the interview, FBI appears not to have learned of those conversations yet

Before February 16, 2017

  • Papadopoulos’ Facebook was interesting enough to sustain a preservation request but (because FBI still didn’t know about Timofeev) FBI had not yet accessed its content via Papadopoulos [Though see update above]
  • FBI had not yet accessed Skype, which would have shown call records between Timofeev and Papadopoulos
  • FBI did not have a warrant on Papadopoulos’ phone and never obtained one before February 23

By July 28, 2017

  • FBI had obtained a warrant for Papadopoulos’ email
  • FBI had read the Facebook content Papadopoulos tried to delete, discovering the communications (and the relationship) with Timofeev
  • FBI had identified the Skype conversations that had taken place, but not in time to collect them using 702

By October 5, 2017

  • FBI had obtained far more email from the campaign side
  • FBI had discovered that, in addition to destroying his Facebook account, Papadopoulos had also gotten a new phone number (and, I suspect, a new phone), thereby destroying any stored texts on the phone

FBI probably tracked Papadopoulos’ Facebook communications with Mifsud before February 16

Again, this is just a guess, but given the evolution of FBI’s understanding about Papadopoulos laid out above, it seems highly likely that FBI had obtained some (but not all) of Mifsud’s communications before February 16, had submitted preservation requests to Papadopoulos’ providers, but had not yet obtained any legal process for content via Papadopoulos. Given that Papadopoulos’ Facebook content was preserved even in spite of his effort to destroy it, it seems clear the government had reason to know its content was of interest, but it did not yet know about his Facebook communications with Timofeev. This is how FBI routinely launders Section 702 information through criminal process, by getting a warrant for the very same content available at PRISM providers that they already obtained via PRISM. They key detail is that they appear to have known about the content of some but not all of Papadopoulos’ Facebook messages in time to preserve the account before February 16.

This strongly suggests the FBI had obtained Mifsud’s Facebook content, but not Papadopoulos’.

Once FBI opened a full investigation into the Russian ties — which we know they did in late July, in part because of that Papadopoulos conversation about the Mifsud comments — it could task and obtain a raw feed of any known PRISM account for any foreigner overseas associated with that investigation. Once it identified Mifsud as Papadopoulos’ interlocutor — and they would have been able to identify their common relationship from their common front organization, the London Centre of International Law Practice — they would have tasked Mifsud on any identifier they could collect.

And collecting on Facebook would be child’s play — just ask nicely. So it would be shocking if they hadn’t done it as soon as they identified that Mifsud was Papadopoulos’ interlocutor and that he had a Facebook account.

Incidental collection under 702 may have led to the preservation of evidence about the Timofeev relationship Papadopoulos tried to destroy

If all this is right — and it is admittedly just a string of well-educated guesses — then it means FBI’s ability to incidentally collect on Papapdopoulos by targeting Mifsud may have been what led them to take action to preserve Papadopoulos’ Facebook content, and with it evidence of ongoing communications with Timofeev that he had tried to hide.

And the fact that he did try to hide it is what led to Mueller flipping his first cooperating witness.

So if all this is right, then incidental collection on Papadopoulos under Section 702 may be every bit as central to Trump’s legal jeopardy right now as the incidental collection on Flynn under Title I. They’re both critical pieces in proving any hypothetical case that Trump traded policy considerations for the release of Hillary emails.

This is how Section 702 is supposed to work, and could be done under USA Rights

Let me be clear: I’m not saying the discovery of Papadopoulos’ Facebook communications with Mifsud and through them his Facebook communications with Timofeev is an abuse. On the contrary, this is how 702 is supposed to work.

If we’re going to have this program, it should be used to target suspect agents of a foreign power located overseas, as Mifsud clearly was. If he was targeted under 702, he was targeted appropriately.

But there is no reason to believe doing so required any of the more abusive uses of 702 that USA Rights would limit. Unless Mifsud was already tasked at FBI when they opened the investigation in July 2016, there’s no reason to believe this account could have been found off of a back door search at FBI. Mifsud may have been tasked at NSA or even CIA, but if he was, searching on Papadopoulos because the government suspected he was being recruited by a foreign power would fall under known justifications for back door searches at those foreign intelligence agencies (especially at CIA).

USA Rights would permit the use of this 702 information to support the criminal case against Papadopoulos, because it’s clearly a case of foreign government spying.

And no use of the Tor exception would be implicated with this search.

In other words, Section 702 as Ron Wyden and Rand Paul and Justin Amash and Zoe Lofgren would have it would still permit the use of Section 702 as a tool to — ultimately — lead FBI to figure out that Papadopoulos was hiding his contacts with Ivan Timofeev.

As it turns out, the kinds of people Trump’s foreign policy advisor George Papadopoulos was chatting up on Facebook — Joseph Mifsud and Ivan Timofeev — are precisely the kind of people the FBI considers “foreign bad guys on foreign land” for the purposes of Section 702, meaning the Bureau could get their Facebook account quite easily.

And the incidental collection of Americans of such conversations can be — may well have been — as dangerous to Donald Trump as the incidental collection of Americans under Title I.