Posts

Three Things: Ukraine, Ukraine, Ukraine

[NB: Note the byline, thanks. /~Rayne]

Because community members are posting Ukraine content in the Durham-Sussman thread, I’m putting up a fresh post here to capture Ukraine related comments.

~ 3 ~

Look, we all should have and could have seen the current situation coming. Think about it.

— The annexation of Crimea by Russia in 2014 and the incursion into eastern Ukraine along with the shooting down of Malaysia Air MH-17;

— Paul Manafort, former consultant and lobbyist for pro-Russian former President of Ukraine Viktor Yanukovych, was Trump’s campaign manager in 2016  during which the GOP’s platform was tweaked in favor of Russia over Ukraine;

Sanctions placed on Russia at the end of the Obama administration for election hacking tweaked Putin;

— Trump was in Russia’s pocket before and after his inauguration, from his real estate and golf course development to his first visit by Russian foreign minister Sergei Lavrov in the White House in May 2017 and beyond;

Cyberattacks in 2017 which appeared to target Ukraine;

— The GOP’s failure to establish a new platform in 2018 and in 2020 besides the one created in 2016, leaving their position frozen in place;

— The laying of Nordstream 2 natural gas pipeline to Germany from Russia;

— The threat by Lavrov in 2019 about Georgia becoming a NATO member;

— Trump’s gross abuse of office over the Ukraine quid pro quo for which he was impeached by a Democratic-majority House but not convicted by a GOP-majority Senate in 2020;

— The change in leadership in Germany and the increasingly white nationalist fascist positions of European countries like Hungary;

— The questionable election in Belarus as a soft annexation by Russia.

I’m sure there’s much, much more to this list of predicate events and conditions but I want to get this post up and not write a book. I’ve already published a lengthy piece back in 2019 with a timeline documenting many points of conflict since WWII between Ukraine and Russia spelling out generations’ worth of tension.

We shouldn’t be surprised at all by the current situation. If anything we should be surprised this hadn’t ramped up more quickly last January-February while Biden was still getting his sea legs in office during a pandemic.

Of course now, during winter when natural gas supplies offer increased leverage on the EU, when it’s easier to move heavy equipment over frozen ground, when soldiers are more likely to want to wear masks so their faces don’t freeze off. There are a lot of not so obvious reasons why now.

One of them may be the possibility that 2022 is up in the air — the hold on Congress may be thin, and a lot of negative sentiment one way or the other can build up over the next 9 months. It may be too close to call.

The other may be that destabilization is at its maximum considering the majority of this country voted for Biden and GOP voters are killing themselves with COVID. A key ally, the United Kingdom, has nearly had enough of destabilization by Brexit and Boris Johnson, and may soon be angry enough to reject one if not both.

And then there’s time. Putin is 69 years old. The average life expectancy for men in Russia is a little over 73 years. Granted, Putin will have access to better care than the overwhelming majority of his countrymen. But time doesn’t care, and the pandemic has reduced access to quality health care for everyone by some degree everywhere. He doesn’t have long to do whatever it is he wants to do for his own ego trip and for his legacy.

Don’t need a clock to hear that tick-tock.

~ 2 ~

Here’s Michael McFaul about the increased tensions over Ukraine:

McFaul’s had a lot of experience dealing with Russia. A key point his expressed position doesn’t communicate is that Putin isn’t a legitimate leader with authority conferred upon him by a free citizenry — just ask Alexei Navalny. Oops, you really can’t do that freely.

What we are dealing with is another flavor of narcissist, this time one who is far more ruthless and clever than Trump, retaining power with an iron grip and a lot of defenestrations and dead journalists. We are dealing with a mob boss of mob bosses who wants to protect his turf absolutely and wants to add yet more turf.

We are constrained by being a democracy and the needs of our NATO allies and the people of Ukraine.

We’re somehow going to have to navigate that difference to protect Ukraine and NATO.

~ 1 ~

But why are we bothering at all? Why don’t we let fishstick heir and now Russian asset Tucker Carlson persuade us that Russia is merely protecting its interests with those +100,000 Russian troops sitting at the Ukraine-Russia border?

The U.S. is party to the 1994 Budapest Memorandum on Security Assurances — as is Russia and the UK — in which it was agreed that the parties would “respect the independence and sovereignty and the existing borders of Ukraine” and “refrain from the threat or use of force” against Ukraine.

Russia is and has been in violation of this agreement since 2014.

The U.S. is a proponent of democracy, and Ukraine is a democracy. If Ukraine asks our assistance to protect its democracy and enforce the 1994 Budapest Memorandum, we should provide aid.

The U.S. is a NATO member; under Article 5 of the North Atlantic Treaty, any attack on a NATO member is an attack on all of NATO. NATO’s EU members rely heavily on natural gas supplied through Ukrainian pipelines; any effort to cut off natural gas to and through Ukraine poses an economic attack — hybrid warfare, in other words. Cyber attacks on Ukraine which affect NATO members may also constitute hybrid warfare. We may be engaged just as we were in 2017 when Ukraine was attacked with NotPetya since U.S. business interests were affected.

~ 0 ~

Let’s confine comments on Ukraine-Russia to posts about Ukraine, please. Marcy may have a Ukraine-related post soon as well. Leave the January 6-related comments under those posts.

Five Percent of Mueller Pre-Grand Jury Interviews Pertain to Still Ongoing Investigations

The other day, I asked Jason Leopold where the Mueller FOIA release was this month. DOJ remains under obligation to hand over hundreds of pages a month in response to his FOIA, and they usually hand it over in the first days of the month.

He shared this month’s release, which makes it clear DOJ did something pretty dickish to him. DOJ turned over notice it was withholding 696 consecutive pages of materials, all of which invoke the b73 exemption for grand jury materials. Effectively, DOJ just dumped a bunch of interviews conducted before grand jury testimony, all of which DOJ has been withholding under that grand jury exemption, to fulfill their monthly obligation.

And because these are consecutive pages, we can’t glean information from them in the same way we can pages (such as those pertaining to Steve Bannon’s January 2019 Grand Jury appearance) turned over as part of other releases.

But there is, however, one detail that we can learn from this. Of the 696 grand jury related pages DOJ withheld, 40 of them also invoke the b7A exemption for an ongoing investigation.

That means that, in addition to the grand jury exemption, more than 5% of the pages were also withheld for ongoing investigations. We have no idea if these interviews are representative of the total. We also can’t see how many individual interviews these records include. But of this batch, it’s over 5%.

To be sure, given what we’ve seen of late, I don’t think that means we’re going to see indictments based on the Trump cases. While individual pages of the Stone, Bannon, and Flynn materials released in the last year reflect ongoing investigations, a whole lot of Sam Patten’s materials do (or at least did, last summer).

Patten, you’ll recall, was sort of a mirror image for Konstantin Kilimnik to Paul Manafort, another American political consultant that he used to access US networks. Patten was referred to Mueller by the Senate Intelligence Committee because he lied in his interview with the Committee. After that he entered into a cooperation agreement where he shared a whole bunch of what he had learned about how Russia interferes in Ukrainian politics (and through that, in US politics).

That is, my guess is that a bunch of these ongoing investigations pertain to stuff like counterintelligence investigations leading to the Treasury sanctions imposed yesterday, including one person who had worked with Kilimnik to interfere in the 2020 US elections.

Whatever it is, though, the only value of DOJ pulling this dickish move is to give a sense of how much of this material remains ongoing.

Ten Things TV Lawyers Can Do Rather than Whinging about Merrick Garland

I continue to have little patience for the people–many of them paid to expound as lawyers on TV–who spend their time whinging that Merrick Garland is not moving quickly enough to hold Trump accountable rather than spending their time doing other more productive things to protect democracy.

I’m not aware that any of these people has tracked the January 6 investigation closely enough to name those one or two degrees away from the former President who have been charged or are clearly subjects of investigation. Similarly, I’ve seen none do reporting on the current status of Rudy Giuliani’s phones, which after a Special Master review will release a bunch of information to prosecutors to use under any warrant that DOJ might have. Indeed, many of the same people complain that Trump has not been accountable for his Ukraine extortion, without recognizing that any Ukraine charges for Trump would almost certainly have to go through that Rudy investigation. The approval for the search on Rudy’s phones may have been among the first decisions Lisa Monaco made as Deputy Attorney General.

It’s not so much that I’m certain DOJ would prosecute Trump for his serial attempts to overthrow democracy. There are tea leaves that DOJ could get there via a combination of working up from pawns who stormed the Capitol and down from rooks referred from the January 6 Commission. But I’m more exasperated with the claims that there were crimes wrapped with a bow (such as Trump’s extortion of Ukraine) that Garland’s DOJ could have charged on March 11, when he was sworn in. Even the Tom Barrack prosecution, a Mueller referral which reportedly was all set to indict in July 2020, took six months after Biden’s inauguration before it was indicted. The January 6 investigation started less than eleven months ago; eleven months into the Russian investigation, Coffee Boy George Papadopoulos had not yet been arrested and he was still months away from pleading guilty, on a simple false statements charge. We have no idea how much deliberate damage Billy Barr did to other ongoing investigations arising out of the Mueller investigation, but his public actions in the Mike Flynn, Roger Stone, and Paul Manafort cases suggests it is likely considerable. As for the January 6 investigation, as I’ve noted, it took nine months from the time FBI learned that a Capitol Police Officer had warned Jacob Hiles to delete his Facebook posts until the time DOJ indicted Michael Riley on two counts of obstruction. To imagine that DOJ would have already indicted Trump on anything he might be hypothetically under investigation at this point, particularly relating to January 6, is just denial about how long investigations take, even assuming the subject were not the former President with abundant access to free or RNC-provided legal representation.

It’s not that I don’t understand the gravity of the threat. I absolutely share the panic of those who believe that if something doesn’t happen by midterms, Republicans will take over the House and shut every last bit of accountability down. I agree the threat to democracy is grave.

But there is no rule that permits DOJ to skip investigative steps and due process simply because people have invested in DOJ as the last bulwark of democracy, or because the target is the greatest threat to democracy America has faced since the Civil War. DOJ investigations take time. And that is one reason why, if people are hoping some damning indictment will save our democracy, they’re investing their hopes in the wrong place, because an investigation into Trump simply will not be rolled out that quickly. Even if Trump were indicted by mid-terms, the Republicans have invested so much energy into delegitimizing rule of law it’s not clear it would sway Fox viewers or even independent voters.

I can’t tell you whether DOJ will indict Trump. I can tell you that if they do, it will not come in time to be the one thing that saves democracy.

And so, because I believe the panicked hand-wringing is about the least productive way to save democracy, I made a list. Here are ten way that TV lawyers could better spend their time than whinging that Merrick Garland hasn’t indicted Donald Trump yet:

  1. Counter the propaganda effort to treat the Jan 6 defendants as martyrs.
  2. Explain how brown and black defendants actually faced worse conditions in the DC jail — and have complained with no results for years.
  3. Explain how DOJ has lost cases against white terrorists (including on sedition charges) in the past.
  4. Describe what really goes into an indictment, what kind of evidence is required, how long it takes, and the approvals that are needed to help people understand what to really expect.
  5. Emphasize the prosecutions/charges/investigations that have or are occurring.
  6. Describe the damage done by Trump’s pardons.
  7. Describe the way that even loyal Trumpsters will be and have been harmed as he corrupts the rule of law.
  8. Focus on the efforts of Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson to undercut the investigation into Project Veritas’ suspected theft of Ashely Biden’s diary
  9. Explain how shoddy John Durham’s indictments are.
  10. Focus on the legal threats to democracy in the states.

Counter the propaganda effort to treat the Jan 6 defendants as martyrs

Whether or not Trump is ever charged with crimes related to January 6, the right wing noise machine has already kicked into gear trying to make it harder to prosecute other culprits for the January 6 riot. They’ve done so by falsely claiming:

  • The event was just a protest like the protests of Brett Kavanaugh’s confirmation, a claim DOJ already debunked, in part by showing that the Kavanaugh protestors who briefly halted his confirmation hearing had been legally admitted.
  • They’re being treated more harshly than those who used violence at BLM or Portland protests. DOJ has submitted multiple filings showing that such claims are based on cherry-picked data that ignore the state charges many of these defendants face, the better quality of evidence against Jan 6ers (in part because they bragged about their actions on social media), and the more heinous goal of the protest involved.
  • Large numbers of non-violent January 6 are being held in pretrial detention. In reality, the overwhelming majority of those detained were charged either in a militia conspiracy or for assaulting cops. The exceptions to this rule are generally people (like Brandon Fellows or Thomas Robertson) who violated pretrial release conditions. Additionally, a good number of those accused of assaulting cops have been released.
  • January 6 defendants are subjected to especially onerous treatment in jail. Many of the conditions they’re complaining about are COVID restrictions imposed on all detainees (though often more restrictive for those who, like a lot of January 6 defendants, choose not to get vaccinated). And in an inspection triggered by January 6 defendant Christopher Worrell’s complaints, the Marshals determined that the other part of the DC jail violated Federal standards, though the part in which the Jan 6ers are held did not.
  • January 6 defendants are just patriots trying to save the country. In reality, of course, these people were attempting to invalidate the legal votes of 81 million Americans.

Again, all these claims are easily shown to be false. But far too many people with a platform are allowing them to go unanswered, instead complaining that DOJ is not doing enough to defend the rule of law. This sustained effort to turn the Jan 6ers into martyrs will achieve real hold unless it is systematically countered.

Explain how brown and black defendants actually faced worse conditions in the DC jail — and have complained with no results for years

As noted above, after Proud Boy assault defendant Worrell complained about the treatment he received in DC jail, the Marshals conducted a snap inspection. They discovered that the older part of the DC jail, one housing other detainees but not Jan 6ers, did not meet Federal standards and have started transferring those detainees to a prison in Pennsylvania.

What has gotten far less attention is that problems with the DC jail have been known for decades. Even though the problems occasionally have gotten passing attention, in general it has been allowed to remain in the inadequate condition the Marshals purportedly discovered anew because a white person complained.

This is an example, then, when a white person has claimed himself to be the victim when, in fact, it’s yet another example of how brown and black people have less access to justice than similarly situated white people.

This development deserves focused attention, most of all because it is unjust. But such attention will flip the script that Jan 6ers are using in an attempt to get sympathy from those who don’t understand the truth.

Explain how DOJ has lost cases against white terrorists (including on sedition charges) in the past

There’s a lot of impatience that DOJ hasn’t simply charged January 6 defendants with sedition or insurrection.

Thus far, DOJ has chosen to use a less inflammatory and more flexible statute, obstruction, instead. Obstruction comes with enhancements — for threatening violence or especially obstructive behavior — that DOJ has used to tailor sentencing recommendations.

The wisdom of this approach will soon be tested, as several DC Judges weigh challenges to the application of the statute. If the application is overturned, it’s unclear whether DOJ will charge something else, like sedition, instead.

But DOJ probably chose their current approach for very good reason: because sedition is harder to prove than obstruction, and in the past, white terrorists have successfully beaten such charges. That’s true for a lot of reasons, partly because the absence of a material support statute makes association with a right wing terrorist group harder to prosecute.

A cable personality whom I have great respect for — NBC’s Barb McQuade — knows this as well as anyone, as she was US Attorney when a sedition conspiracy case against the Hutaree collapsed. In that case, DOJ had trouble proving that defendants wanted to overthrow the US government, the kind of evidentiary claim that DOJ will face in January 6 trials, even as currently charged.

There are real challenges to prosecuting white terrorism. Some education on this point would alleviate some of the impatience about the charging decisions DOJ has made.

Describe what really goes into an indictment, what kind of evidence is required, how long it takes, and the approvals that are needed to help people understand what to really expect

In the period between the time Steve Bannon was referred to DOJ for contempt and the time he was charged, a number of commentators used the delay to explain what it takes to get an indictment (against a high profile political figure) that stands a chance of work; one good example is this column by Joyce Vance.

There have been and are numerous examples of similar delays — the Tom Barrack indictment and the Rudy Giuliani Special Master review are two — that offer similar teaching opportunities about the process and protections involved in indicting someone.

Due process takes time. And yet in an era of instant gratification, few people understand why that’s the case. If we’re going to defend due process even while trying to defend our democracy, more education about what due process involves would temper some of the panic.

Emphasize the prosecutions/charges/investigations against Trump that have or are occurring

Given the din calling for prosecution of Donald Trump, you’d think none of his associates had been prosecuted. As Teri Kanefield noted the other day, it would be far better if, instead of saying Trump had suffered no consequences for his actions, there was some focus instead on where he had.

Trump’s business is currently under indictment with multiple investigations into it ongoing. His charity was shut down and fined for self-dealing. Trump’s Inauguration Committee will be civilly tried for paying above market rates to Trump Organization.

His Campaign Manager, his National Security Advisor, his Coffee Boy, his Rat-Fucker, and one of his personal lawyers were found guilty of lying to cover up what really happened with Russia in 2016. Several of these men (as well as a top RNC donor) also admitted they were secretly working for frenemy countries, including (in Mike Flynn’s case), while receiving classified briefings as Trump’s top national security aide. Trump’s biggest campaign donor, Tom Barrack, is being prosecuted for using the access he purchased to Trump to do the bidding of the Emirates. Another of Trump’s personal lawyers, Rudy Giuliani, is under investigation for the same crime, secretly working for another country while claiming to represent the interests of the President of the United States.

The sheer scale of this is especially breathtaking when you consider the projection the GOP has — successfully — focused on Hunter Biden for similar crimes. Even with years of effort and help from Russia, the GOP has not yet been able to prove that the President’s son’s influence peddling or potential tax accounting violated the law. Yet the GOP continues to focus on him relentlessly, even as the long list of Republicans who admit to the same crime continues to grow.

Trump has already proven to be the most corrupt president in some time, possibly ever. And instead of relentless messaging about that, Democrats are complaining about Merrick Garland.

Describe the damage done by Trump’s pardons

One reason why it’s hard to focus on all those criminal prosecutions is because Trump pardoned his way out of it. With the exception of Michael Cohen and Rick Gates, all the people who lied to cover up his Russian ties were pardoned, as was Steve Bannon and others who personally benefitted Trump.

Perhaps because these pardons happened in the wake of January 6, Trump avoided some of the shame he might otherwise have experienced for these pardons. But for several reasons, there should be renewed attention to them.

That’s true, for starters, because Trump’s pardons put the entire country at risk. By pardoning Eddie Gallagher for war crimes, for example, the US risks being treated as a human rights abuser by international bodies. The military faces additional disciplinary challenges. And those who cooperated against Gallagher effectively paid a real cost for cooperating against him only to see him escape consequences.

Paul Manafort’s pardon is another one that deserves renewed attention. That’s true not just because the pardon ended up halting the forfeiture that otherwise would have paid for the Mueller investigation, the cost of which right wingers claimed to care about. It’s true because Trump has basically dismissed the import of industrial scale tax cheating (even while right wingers insinuate that Hunter Biden might have made one error on his taxes). And finally, it’s true because Trump made an affirmative choice that a guy who facilitated Russia’s effort to undermine democracy in 2016, sharing information directly with someone deemed to be a Russian spy, should not be punished for his actions.

Finally, there should be renewed attention on what Trump got for his pardons. Did Steve Bannon and Mike Flynn pay central roles in January 6 in exchange for a pardon?

The US needs some means to prohibit such self-serving pardons like Trump pursued. But in the meantime, there needs to be some effort to shame Trump for relying on such bribes to stay out of prison himself.

Describe the way that even loyal Trumpsters will be and have been harmed as he corrupts the rule of law

Donald Trump pardoned Steve Bannon for defrauding a bunch of Trump loyalists. According to very recent reporting, Sidney Powell is under investigation (and being abandoned by her former allies) on suspicion she defrauded the thousands of Trump supporters who sent money to support her election conspiracy theories.

Meanwhile, the Republican Party continues to dump money into protecting Trump for his own crimes, even as Republicans lose races that could have benefitted from the money.

However, some RNC members and donors accused the party of running afoul of its own neutrality rules and misplacing its priorities. Some of these same officials who spoke to CNN also questioned why the party would foot the legal bills of a self-professed billionaire who was sitting on a $102 million war chest as recently as July and has previously used his various political committees to cover legal costs. According to FEC filings from August, the former President’s Make America Great Again committee has paid Jones Day more than $37,000 since the beginning of the year, while his Make America Great

Again super PAC has paid a combined $7.8 million to attorneys handling his lawsuits related to the 2020 election.

“This is not normal. Nothing about this is normal, especially since he’s not only a former President but a billionaire,” said a former top RNC official.

“What does any of this have to do with assisting Republicans in 2022 or preparing for the 2024 primary?” the official added.

Bill Palatucci, a national committeeman from New Jersey, said the fact that the RNC made the payments to Trump’s attorneys in October was particularly frustrating given his own plea to party officials that same month for additional resources as the New Jersey GOP sought to push Republican Jack Ciattarelli over the finish line in his challenge to incumbent Democratic Gov. Phil Murphy.

“We sure as heck could have used $121,000,” Palatucci told CNN.

Loyal Trumpsters are the victim of one after another grift, and that should be emphasized to make it clear who is really taking advantage of them.

And one after another former Trump loyalist get themselves in their own legal trouble. One of the messages Michael Cohen tried to share in his testimony before going to prison was that “if [other Republicans] follow blindly, like I have,” they will end up like he did, going to prison. Hundreds of January 6 defendants — some of whom imagined they, too, might benefit from Trump’s clemency (they still might, but they’ll have to wait) — are learning Cohen’s lesson the hard way.

Kleptocracy only benefits those at the top. And yet Trump’s supporters continue to aggressively pursue policies that will make the US more of a kleptocracy.

It’s fairly easy to demonstrate the damage degrading rule of law in exchange for a kleptocracy is. Except average people aren’t going to understand that unless high profile experts make that case.

Focus on the efforts of Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson to undercut the investigation into Project Veritas’ suspected theft of Ashely Biden’s diary

The Project Veritas scandal remains obscure and may never amount to charges against PV itself. Yet even as it has become clear that DOJ is investigating theft, key Republicans Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson are trying to shut down the investigation into that theft. Chuck Grassley’s efforts to do so are particularly noxious given that a long-term staffer of his, Barbara Ledeen, is a sometime co-conspirator of Project Veritas.

Republicans have undermined legitimate investigations into Trump, over and over, with little pushback from the press. This is an example where it would seem especially easy to inflict a political cost (especially since Grassley is up for re-election next year).

It would be far more useful, in defending rule of law, to impose political costs on undermining the investigations that commentators are demanding from DOJ than it is to complain (incorrectly) that such investigations aren’t happening. Merrick Garland (however imperfect) is not the enemy of rule of law here, Jim Jordan is.

Explain how shoddy John Durham’s indictments are

One of the complaints that David Rothkopf made in the column that kicked off my latest bout of impatience with the hand-wringing about Garland complained that Garland “is letting” Durham charge those who raise concerns about Trump’s ties to Russia, even while (Rothkopf assumes) ignoring Trump’s own efforts to obstruct the investigation.

We have seen that Garland is letting the highly politicized investigation of special prosecutor John Durham into the conduct of the Trump-Russia investigation continue (by continuing its funding). We therefore have the real prospect that those who sought to look into the Trump-Russia ties that both Mueller and Congressional investigations have demonstrated were real, unprecedented and dangerous might be prosecuted while those who actively sought the help of a foreign enemy to win an election will not be.

As I have noted, both of Durham’s indictments have been shoddy work, hanging charges on Twitter rants and other hearsay evidence.

And while there was some worthwhile criticism of the Michael Sussmann indictment (perhaps because he’s well-connected in DC), Democrats seem to take Durham’s word that Igor Danchenko — and not Christopher Steele or Russian disinformation — is responsible for the flaws in the dossier. Perhaps as a result, the legal experts who could point out how ridiculous it is to rely on a Twitter feed for a key factual claim have remained silent.

With such silence, it is not (just) Garland who “is letting [Duram’s] highly politicized investigation” continue unchecked, but also the experts whose criticism could do something to rein him in.

If the investigation is politicized — and it is — then Durham is a far more appropriate target than Garland.

Focus on the legal threats to democracy in the states

There has, admittedly, been deserved focus on the ways Republicans are chipping away at democratic representation in the states.

But that is where the battle for democracy is being fought. And in most of the states where Trump attempted to undermine the 2020 election, there are follow-on legal issues, whether it’s the investigation into the suspected voting machine theft in Colorado (including into a former campaign manager for Lauren Boebert), a seemingly related investigation in Ohio, or the effort to criminalize efforts to ease voting by seniors during the pandemic in Wisconsin.

Republicans are trying to criminalize democracy. That makes it all the more important to ensure that the call for rule of law remains laser focused on the criminal efforts to cheat to win, if for no other reason than to shame those involved.

The threat to democracy is undoubtedly grave. Republicans are deploying their considerable propaganda effort into legitimizing that attack on democracy (even while suggesting Biden has committed the kind of graft that Trump engaged in non-stop, classic projection).

In the face of that unrelenting effort, expert commentators who support democracy have a choice: They can defend the rule of law and shame those who have denigrated it, or they can spend their time complaining about the guy trying, however imperfectly, to defend it himself. The latter will make Garland less able to do his job, the former will help him do whatever he is willing and able to do.

Update: Added “suspected” to the PV bullet.

The Disinformation that Got Told: Michael Cohen Was, in Fact, Hiding Secret Communications with the Kremlin

CJR was kind enough to invite me on to discuss media accountability and the Steele dossier with Erik Wemple last week.

On the show, I made the argument that it’s not enough to identify the things that didn’t, but should have, shown up in the dossier: like George Papadopoulos getting advance warning of the Russian operation not far from Christopher Steele’s office, or a dirt-for-sanctions-relief meeting in Trump Tower attended by a client of Fusion GPS, or a deputy for Steele client Oleg Deripaska, Konstantin Kilimnik, trading Trump’s campaign manager $19 million in debt relief to obtain the campaign’s strategy.

Given the way that, on July 30, 2016, Deripaska used Steele (via his lawyers) to make Manafort more vulnerable just days before, on August 2, 2016, Deripaska used that vulnerability to carry out a key step in the election operation, it is reasonable to consider whether any disinformation in the dossier became a key part of the Russian operation. That makes it important to look at the stories that did get told in it, to understand how they related to other aspects of the operation.

In the CJR podcast, Erik Wemple was — as he has been in the past — skeptical.

Wheeler: If, in fact, the dossier is full of disinformation, which is what every Republican in Congress believes and what I think is largely the case, then the question is not, what was the access. The question was, why did Oleg Deripaska learn about it, as the DOJ IG Report suggests happened, why did he learn about it before the second report? Why did two Russian intelligence people learn about it before the second report, and why did the stories that get told get told? So, yes, there’s the absence of, you know, Papadopoulos in London, but the stories of Michael Cohen in Prague which are the, the, the most easily debunked, do, are near misses on things that were really happening in the Russian operation. Michael Cohen was in fact covering up stuff about Russia at the time — he was covering up the Trump Tower deal. Michael Cohen was also covering stuff having to do with sex at the time. You put those two together and you’ve got the Prague thing. That’s a pretty near miss.

Wemple: Is it though? The allegation in the dossier was that he was meeting with Kremlin representatives — as I recall — to —

Wheeler: And he called up the Kremlin and got Putin’s involvement in the Trump Tower deal.

Wemple: But he met in Prague to cover up or figure out how to pay hackers, if I recall the allegation.

Wheeler: Yeah yeah yeah. Yup.

Wemple: I don’t know. I don’t see it as being that close to what Michael Cohen actually did but we can —

Wheeler: Right, but do you deny that Michael Cohen was covering up stuff about Russia that involved, actually, the Kremlin?

Wemple: Well, it’s clear that he was involved in keeping quiet the Trump Tower —

Wheeler: Okay. Which involved the Kremlin. And involved a GRU officer.

Wemple: Unquestionably, no question.

Wheeler: Okay. So that’s my point. Russia knew that. Russia knew that when Trump made a statement in July of 2016 that he had no business in Russia — which by the way, Durham is reacting against; he’s trying to claim it was unreasonable for cybersecurity researchers to respond to that and say, that’s very alarming, which was very alarming. As soon as Trump made that comment, in July of 2016 (and he had made it a bunch of times before that), Russia knew that Michael Cohen and Donald Trump and a number of other people were lying, publicly, about this ridiculously lucrative deal that involved the Kremlin and involved a GRU officer. And so the Prague story is absolutely garbage. And that came from Olga Galkina, right?

Wemple: It did. Who’s a middle school friend of Danchenko

Wheeler: Right. She’s central to the Danchenko indictment. One of the things that Durham charges Danchenko with is trying to hide how obvious, how much Galkina knew about that. And he didn’t hide it at all. I think that allegation is completely, is completely easily debunked if you actually read the interview. But my point is that, in fact, Michael Cohen was covering up communications with the Kremlin and with a GRU officer. And Russia knew that. And if those Michael Cohen reports which, by January 2017, the FBI believed to be disinformation, so if those were disinformation, why did we get that form of disinformation, when in fact Michael Cohen — and if you read Danchenko, Galkina knew, right away, Michael Cohen’s name. She was ready for it, so those questions. If you want to talk about media accountability, those questions have to be asked as well.

The details of any disinformation in the dossier — the possibility that Russian intelligence deliberately planted false stories about secret communications Michael Cohen had with the Kremlin — are important because they may have served the overall Russian operation. In some cases, such as the claim that Carter Page was Paul Manafort’s purported go-between with Russia rather than Konstantin Kilimnik, might have provided cover. The claims that Russia had years old FSB intercepts of Hillary they planned to release as kompromat, rather than recently stolen emails from John Podesta, would similarly provide cover. In others, disinformation might have worked in the same way Oleg Deripaska’s double game did, increasing the vulnerability of Trump’s people even while making it more likely they’d do what Russia wanted.

I have argued in the past that the Trump Tower deal wasn’t important because it showed that Trump was pursuing a real estate deal while running for President. Rather, it was important to the success of the Russian operation because it gave Russia proof, before any hint of the Russian operation became public, that Donald Trump would be willing to work, in secret, with sanctioned banks and a GRU officer to make an impossibly lucrative real estate deal happen.

[T]here is a piece of the Cohen statement of the offense the significance of which hasn’t gotten sufficient attention. That’s the detail that Dmitry Peskov’s personal assistant took detailed notes from a 20-minute January 20, 2016 phone call with Cohen, which led to Putin’s office contacting Felix Sater the next day.

On or about January 16, 2016, COHEN emailed [Peskov]’s office again, said he was trying to reach another high-level Russian official, and asked for someone who spoke English to contact him.

On or about January 20, 2016 , COHEN received an email from the personal assistant to [Peskov] (“Assistant 1 “), stating that she had been trying to reach COHEN and requesting that he call her using a Moscow-based phone number she provided.

Shortly after receiving the email, COHEN called Assistant 1 and spoke to her for approximately 20 minutes. On that call, COHEN described his position at the Company and outlined the proposed Moscow Project, including the Russian development company with which the Company had partnered. COHEN requested assistance in moving the project forward, both in securing land to build the proposed tower and financing the construction. Assistant 1 asked detailed questions and took notes, stating that she would follow up with others in Russia.

The day after COHEN’s call with Assistant 1, [Sater] contacted him, asking for a call. Individual 2 wrote to COHEN, “It’s about [the President of Russia] they called today.”

Cohen had lied about this, claiming that he had emailed Peskov’s public comment line just once, but gotten no response.

This language is important not just because it shows that Cohen lied.  It’s important because of what Cohen would have said to Peskov’s assistant. And it’s important because a written record of what Cohen said got handed on to Putin’s office, if not Putin himself.

[snip]

[W]hen Cohen called Peskov’s assistant, he would have told her that he was speaking on behalf of Donald Trump, that Trump remained interested in a Trump Tower in Moscow (as he had been in 2013, the last time Putin had dangled a personal meeting with Trump), and that on Trump’s behalf Cohen was willing to discuss making a deal involving both a sanctioned bank (whichever one it was) and a former GRU officer.

The impossibly lucrative real estate deal was useful to the Russian operation because it ensured that, even before GRU hacked the DNC, Putin had collected receipts showing that Trump’s personal lawyer had secretly been in discussions about a deal brokered by a GRU officer and sanctioned banks for Trump’s benefit. Trump would want to (and in fact did) keep this fact from voters because it would have proven he was lying about having business interests in Russia. The attribution of the DNC hack to the GRU made Trump’s secret more inflammatory, because it meant Trump stood to benefit personally from the same people who hacked his opponent. Trump and Cohen couldn’t have known all that when Cohen called Peskov in January. But Russia did. Indeed, that may well have been the entire point.

The Cohen-in-Prague story includes outlines of Trump’s real secret: contact by Trump’s personal lawyer with the Kremlin and those who conducted the DNC hack. But the Cohen-in-Prague story displaced the key details of that secret, providing a place and personal details that would be even more damning, but also easier to debunk.

In fact, when Michael Cohen broke the law (by lying to Congress) to cover up this secret, when the Trump Organization withheld from Congress the most damning documents about it, when Trump told his most provable lie to Mueller about it, they (along with Felix Sater and others) used the Cohen-in-Prague story as an easy way to issue true denials while limiting admissions (and lying) about the extent of the Trump Tower deal. Here’s what I described, in August 2017, about the way Cohen used Prague denials to pre-empt his limited (and therefore false) admissions of his pursuit of the Trump Tower deal.

There are real, unanswered questions about the provenance of the document as leaked by BuzzFeed. Some of the circumstances surrounding its production — most notably its funders and their claimed goals, and Steele’s production of a final report, based off voluntarily provided information, for free — raise real questions about parts of the dossier. I think it quite likely some parts of the dossier, especially the last, most inflammatory report (which accuses Cohen of attending a meeting where payments from Trump to the hackers that targeted the Democrats were discussed), were disinformation fed by the Russians. I believe the Intelligence Community is almost certainly lying about what they knew about the dossier. I believe the Russians know precisely how the dossier got constructed (remember, a suspected source for it died in mysterious circumstances in December), and they expect the exposure of those details will discredit it.

So while I think there are truths in the dossier, I do think its current form includes rumor and even affirmative disinformation meant to discredit it.

With that said — and remembering all the time that shortly after this letter got written, documents were disclosed showing Cohen was involved in brokering a deal that Sater thought might get Trump elected — here’s my analysis of the document.

[Cohen’s letter to Congress] is pitched around the claim that HPSCI “included Mr. Cohen in its inquiry based solely upon certain sensational allegations contained” in the Steele dossier. “Absent those allegations,” the letter continues, “Mr. Cohen would not be involved in your investigation.” The idea — presented two weeks before disclosure of emails showing Cohen brokering a deal with Russians in early 2016 — is if Cohen can discredit the dossier, then he will have shown that there is no reason to investigate him or his role brokering deals with the Russians. Even the denial of any documents of interest is limited to the dossier: “We have not uncovered a single document that would in any way corroborate the Dossier’s allegations regarding Mr. Cohen, nor do we believe that any such document exists.”

With that, Cohen’s lawyers address the allegations in the dossier, one by one. As a result, the rebuttal reads kind of like this:

I Did Not Go to Prague I Did Not Go to Prague I Did Not Go to Prague I Did Not Go to Prague

Cohen literally denies that he ever traveled to Prague six times, as well as denying carefully worded, often quoted, versions of meeting with Russians in a European capital in 2016. Of course that formulation — He did not participate in meetings of any kind with Kremlin officials in Prague in August 2016 — stops well short of other potential ties to Russians. And two of his denials look very different given the emails disclosed two weeks later showing an attempt to broker a deal that Felix Sater thought might get Trump elected, including an email from him to one of the most trusted agents of the Kremlin.

Mr. Cohen is not aware of any “secret TRUMP campaign/Kremlin relationship.”

Mr. Cohen is not aware of any indirect communications between the “TRUMP team” and “trusted agents” of the Kremlin.

The Cohen-in-Prague story provided an easy way for Cohen to issue true denials. But it also magnified the risk of the secret — a secret Russia knew — they were keeping, because they committed crimes to keep the secret.

There can be little doubt that, if the Cohen-in-Prague story was deliberate disinformation, it was wildly successful. Indeed, most Trump supporters — including many of the people debunking the dossier full time — seemed to believe that if they could prove that Cohen never went to Prague, that by itself would amount to proof that Trump had no ties with Russia in 2016, a claim every bit as outlandish as the pee tape.

If the Cohen-in-Prague story was deliberate disinformation, it was spectacularly successful, both for obscuring the Trump Tower discussions and for creating an easily debunked stand-in for Trump’s real cooperation, distracting from Manafort’s role.

Years later, we now know there were reasons to think the Cohen-in-Prague story was deliberate disinformation from the start. A declassified DOJ IG footnote describes that, even before the Igor Danchenko interviews in January 2017, FBI had received intelligence suggesting that was the case.

In addition to the information in Steele’s Delta file documenting Steele’s frequent contacts with representatives for multiple Russian oligarchs, we identified reporting the Crossfire Hurricane team received from [redacted] indicating the potential for Russian disinformation influencing Steele’s election reporting. A January 12, 2017, report relayed information from [redacted] outlining an inaccuracy in a limited subset of Steele’s reporting about the activities of Michael Cohen. The [redacted] stated that it did not have high confidence in this subset of Steele’s reporting and assessed that the referenced subset was part of a Russian disinformation campaign to denigrate U.S. foreign relations. [italicized language declassified]

If it was disinformation, Danchenko’s source for it, his childhood friend Olga Galkina, seems to have been prepared. When Danchenko described the sourcing of the report, he explained that that Galkina was “almost immediately” familiar with Cohen when he asked.

[Danchenko] began his explanation of the Prague and Michael Cohen-related reports by stating that Christopher Steele had given him 4-5 names to research for the election-related tasking. He could only remember three of the names: Carter Page, Paul Manafort and Michael Cohen. When he talked to [Galkina] in the fall of 2016 — he believes it was a phone call — he rattled off these names and, out of them, he was surprised to hear that [Galkina] immediately [later [Danchenko] softened this to  “almost immediately”] recognized Cohen’s name.

[snip]

Danchenko believes he had 2, maybe even 3, conversations with [Galkina] on this topic later in October. Nothing on Prague and Cohen was collected during the [redacted] trip in [redacted]. The first conversation is the one during which he believes [Galkina] noted her recognition of Cohen’s name. The second conversation is the one in which she discussed Prague, the visit of Cohen plus three other individuals, and the meeting with the Russia side. There may have been a third conversation on the topic, but [Danchenko] could not recall exactly and said that they had also talked about “a private subject.”

Several details in the Danchenko indictment explain why Galkina might be prepared.

Charles Dolan, the PR Executive whom Danchenko introduced to Galkina that spring, had worked directly with Dmitry Peskov for years and remained in touch with Putin’s Press Secretary in conjunction with an event he was helping plan in October 2016. During the summer, Dolan recommended Galkina to Peskov for a job in the Presidential Administration.

[F]rom in or about 2006 through in or about 2014, the Russian Federation retained PR Executive-I and his then-employer to handle global public relations for the Russian government and a state-owned energy company. PR Executive-I served as a lead consultant during that project and frequently interacted with senior Russian Federation leadership whose names would later appear in the Company Reports, including the Press Secretary of the Russian Presidential Administration (“Russian Press Secretary-I”), the Deputy Press Secretary (“Russian Deputy Press Secretary-I”), and others in the Russian Presidential Press Department.

[snip]

In anticipation of the June 2016 Planning Trip to Moscow, PR Executive-I also communicated with Russian Press Secretary-I and Russian Deputy Press Secretary-I, both of whom worked in the Kremlin and, as noted above, also appeared in the Company Reports.

[snip]

Additionally, on or about July 13, 2016, Russian Sub-Source-I sent a message to a Russia-based associate and stated that PR Executive-I had written a letter to Russian Press Secretary-I in support of Russian-Sub-Source-I’s candidacy for a position in the Russian Presidential Administration.

As it was, Danchenko attributed of any mention of Peskov in the dossier to Galkina. But Galkina’s real ties to Peskov, the person who knew more about Michael Cohen and Trump’s secret than anyone else in Russia — who knew they were pursuing an impossibly lucrative real estate deal involving sanctioned banks and a retired GRU officer with Peskov’s help — had been enhanced in months leading up to that reporting. Galkina’s ties to Peskov would had been enhanced in a way that may have made her source relationship with Danchenko even more evident to Russian spooks (though it would always have been easy to discover).

That is, Dolan’s business relationships with the Russian government may not be important because Galkina appeared to share his enthusiasm for Hillary — the reason Durham included garden variety business networking in the midst of the Danchenko indictment. Rather, it may be important because it made her a much more lucrative target for disinformation.

Olga Galkina was in a position where, if Russia had wanted to tell the secret they knew Trump was keeping from voters, she might have learned the truth behind Cohen’s real, hidden communications with the Kremlin, a truth that voters had a right to know. Instead, she told a false story that mirrored certain aspects of the story that Cohen would do prison time in a failed attempt to hide, but which instead became an easily debunked stand-in for the real story of Trump’s enthusiasm for Russia’s efforts to tamper in America’s democracy.

If the dossier was significantly disinformation, then all Americans were victims of it. It turned a legitimate concern about real Russian interference into American elections into one of the biggest sources of political polarization in recent history. Like the social media trolling from Internet Research Agency, it stoked divisions, with the added benefit that it led significant numbers of Trump voters to trust the Russians who were feeding that disinformation more than they trust the current President. One viral Twitter thread earlier this year even claimed that the dossier (and therefore any Russian disinformation in it) led directly to and justified the attack on the Capitol on January 6. As such, disinformation injected into the dossier should increasingly be treated as a potential central part of the 2016 Russian influence operation — perhaps its most successful and lasting part.

Erik Wemple has spent a lot of time pushing CNN into committing the same reporting failures with the Danchenko indictment as they did on the dossier itself. But that has left largely unexamined the question of why the stories that did get told got told, which may be far more important to understanding how Russia was willing to screw both Paul Manafort and Hillary Clinton.


Danchenko posts

The Igor Danchenko Indictment: Structure

John Durham May Have Made Igor Danchenko “Aggrieved” Under FISA

“Yes and No:” John Durham Confuses Networking with Intelligence Collection

Daisy-Chain: The FBI Appears to Have Asked Danchenko Whether Dolan Was a Source for Steele, Not Danchenko

Source 6A: John Durham’s Twitter Charges

John Durham: Destroying the Purported Victims to Save Them

John Durham’s Cut-and-Paste Failures — and Other Indices of Unreliability

Aleksej Gubarev Drops Lawsuit after DOJ Confirms Steele Dossier Report Naming Gubarev’s Company Came from His Employee

In Story Purporting to “Reckon” with Steele’s Baseless Insinuations, CNN Spreads Durham’s Unsubstantiated Insinuations

On CIPA and Sequestration: Durham’s Discovery Deadends

The Disinformation that Got Told: Michael Cohen Was, in Fact, Hiding Secret Communications with the Kremlin

Michael Sussmann Attempts to Bill [of Particulars] Durham for His Sloppy Indictment Language

“Without prejudice to any other pretrial motions”

Michael Sussmann’s lawyers reserve their right to challenge the Durham indictment of Sussmann via other pretrial motions in their motion for a Bill of Particulars six different times. The motion does so three different times when noting that Durham used squishy language to paraphrase Sussmann’s alleged lie and couldn’t seem to decide whether he affirmatively lied or lied by omission.

Mr. Sussmann is entitled to understand which particular crime he must defend himself against. Without prejudice to any other pretrial motions Mr. Sussmann may bring on the matter, Mr. Sussmann is also entitled to additional particulars regarding the alleged omissions in the Indictment, including regarding the legal duty, if any, that required him to disclose the allegedly omitted information the Indictment suggests he should have disclosed.

[snip]

The Special Counsel should be required to clarify which crime he believes Mr. Sussmann committed and, to the extent the Special Counsel is proceeding on an omissions theory, he should be required to provide additional particulars (without prejudice to any motions Mr. Sussmann may make later).

[snip]

To the extent that the Special Counsel believes the Indictment is alleging a material omission under Section 1001(a)(1), and without prejudicing any other motions Mr. Sussmann may make on this issue, the Special Counsel should be required to clarify: (1) what specific information Mr. Sussmann failed to disclose; (2) to whom he failed to disclose it; (3) what legal duty required Mr. Sussmann to make the required disclosure; and (4) why the omission was material. See United States v. Safavian, 528 F.3d 957, 964 (D.C. Cir. 2008). [my emphasis]

It does so twice when asking that Durham address problems with his claims that Sussmann’s alleged lie was material.

The Indictment does make several allegations regarding materiality, and yet these allegations are vague, imprecise, and inconsistent. Suggesting the FBI might have asked more questions, taken other steps, or allocated resources differently, without specifying how or why it would have done so, leaves Mr. Sussmann having to guess about the meaning of the allegations that the Special Counsel has leveled against him. Accordingly, without prejudice to any pretrial motions Mr. Sussmann may make regarding materiality, Mr. Sussmann requests that the Court order the Special Counsel to provide more detail about why the purported false statement was material.

[snip]

Accordingly, without prejudice to any pretrial motions Mr. Sussmann may make regarding materiality, Mr. Sussmann requests that the Special Counsel be ordered to provide more detail about why the purported false statement was material. See Fed. R. Crim. P. 7(c)(1). [my emphasis]

And the motion does so again when pointing out that Durham hasn’t included specifics about another alleged lie, to just two of an unidentified number of people who attended a meeting at CIA, which Sussmann elsewhere describes as improper inclusion of 404(b) material in an indictment.

Without prejudicing any other motions Mr. Sussmann may make on this issue, the Special Counsel should first be required to clarify the false statement alleged to have been made to the two anonymous Agency-2 employees, and any other individuals present at the meeting, in February 2017. [my emphasis]

A list of things John Durham didn’t provide in his Michael Sussmann indictment

It’s only after making it clear that this is just his opening move before filing a motion to dismiss and other legal challenges to the indictment…

The Indictment is seriously vulnerable to challenge as a matter of law, and Mr. Sussmann will make relevant pretrial motions at the appropriate time. For now, Mr. Sussmann moves for a bill of particulars.

…that Sussmann lays out a list of things he claims he can’t figure out from Durham’s sloppy indictment:

For the foregoing reasons, this Motion for a Bill of Particulars should be granted, and the Court should order the Special Counsel to promptly:

A. Provide particulars regarding the specific false statement the Special Counsel alleges Mr. Sussmann made to Mr. Baker, namely:

1. The exact words of Mr. Sussmann’s alleged false statement;

2. The specific context in which the statement was made so that the meaning of the words is clear;

3. What part of the statement is allegedly false, i.e., whether the statement was false because Mr. Sussmann allegedly stated he was not “acting on behalf of any client in conveying particular allegations concerning a Presidential Candidate” as alleged in Paragraph 46, or if he falsely stated that he was not doing any “work” on behalf of a client more generally, as alleged in Paragraphs 4, 27(a), 28;

4. What is meant by “his work,” as referenced in Paragraph 4;

5. What is meant by “acting [or acted] on behalf of any client” as alleged in Paragraphs 27(a) and 30; and

6. What “this” refers to in the Assistant Director’s notes referenced in Paragraph 28.

B. Provide particulars regarding the statutory violation charged and, if applicable any alleged omissions, namely:

1. Which crime the Special Counsel believes Mr. Sussmann has committed; and

2. To the extent the Special Counsel alleges that Mr. Sussmann made a material omission in violation of 18 U.S.C. § 1001(a)(1), as suggested by Paragraph 30 of the Indictment –

a. the specific information Mr. Sussmann allegedly failed to disclose;

b. to whom he allegedly failed to make that disclosure;

c. what legal duty required Mr. Sussmann to disclose such information; and

d. why the allegedly omitted information was material.

C. Provide particulars regarding how the alleged false statement to Mr. Baker was material, specifically:

1. The “other reasons” Mr. Sussmann’s false statement was material, as alleged in Paragraphs 5 and 32;

2. What “his work” refers to as referenced in Paragraph 5, what about such work was unknown to the FBI, and how the “political nature of his work” was material to the FBI’s investigation;

3. How Mr. Sussmann’s alleged false statement was material to the FBI’s ability to “assess and uncover the origins of the relevant data and technical analysis,” as alleged in Paragraph 5, when Mr. Sussmann disclosed the origins of the data and technical analysis;

4. How Mr. Sussmann’s role as a paid advocate was materially “relevant” to the FBI’s investigation, as alleged in Paragraph 32, given that the information itself raised serious national security concerns and the FBI otherwise enables civilians to provide anonymous tips; and

5. What potential questions, additional steps, resource allocations, or more complete information the FBI would have gathered absent Mr. Sussmann’s false statement, as alleged in Paragraph 32.

D. Provide particulars regarding the alleged false statement Mr. Sussmann made to all Agency-2 employees and representatives, as alleged in Paragraphs 39 and 42, namely:

1. The exact words of Mr. Sussmann’s alleged false statement;

2. The specific context in which the statement was made so that the meaning of the words is clear;

3. What portion of the statement is allegedly false;

4. The identities of all individuals to whom the statement was made, including:

a. both Employee-1 and Employee-2 as referenced in Paragraph 42; and

b. anyone else present who also heard the false statement.

E. Provide particulars regarding the identities of the “representatives and agents of the Clinton Campaign” referenced in Paragraph 6.

Motions for a Bill of Particular rarely work

Make no mistake, most demands for a Bill of Particulars like this fail. The prosecution will argue that everything Sussmann needs is in the indictment and, if Judge Christopher Cooper agrees, Sussmann will just submit his motion to dismiss and other challenges like he’s clearly planning to do anyway.

That’s almost certainly what will happen for several of these requests, such as the names of Clinton Campaign personnel Durham accuses Sussmann of coordinating with on the Alfa Bank materials. But Sussmann likely doesn’t really need these names because he likely knows that Durham has nothing to substantiate this claim. If he did, Durham would have described such evidence in his speaking indictment. Sussmann may well know there are no names — of campaign personnel with whom he personally coordinated in advance of the James Baker meeting, at least — to give, because he didn’t coordinate with anyone from the campaign (Durham probably wants to substantiate this claim by charging Marc Elias in a conspiracy with Sussmann, but that all depends on being able to prove that anyone was lying about all this).

Similarly, Sussmann seems to know — and Durham may not — that there were more than just two people at a February 9, 2017 meeting at which Sussmann tried to bring new concerns to the attention of the government. This request seems to suggest there was at least one and possibly other witnesses who were at this meeting that Durham should know of who didn’t corroborate a claim that Sussmann lied, witnesses Durham didn’t mention in his indictment.

Likewise, Sussmann is unlikely to get very far asking for more details about Durham’s materiality claim, in particular, Durham’s repeated allegation that what he presented were just some, “among other reasons,” why Sussmann’s alleged lie was material. Prosecutors will argue that materiality is a matter for the jury to decide. But if Sussmann can force Durham to admit he has a theory of prosecution he hasn’t included in his indictment — that Durham believes that, rather than raising a real anomaly to the FBI’s attention because it was a real anomaly, lawyers who were paid by Hillary were trying to start a witch hunt against Donald Trump (never mind that the actual investigation that would prove at least three Trump officials, and probably Trump himself, got advance warning of a Russian attack on Hillary started three weeks before the meeting at which Sussmann is alleged to have lied) — then it will make it far easier for Sussmann to attack the indictment down the road.

What a false statement charge is supposed to look like

But Sussmann may succeed on his key complaint, that Durham has built a 27-page indictment around a false claim allegation without any means to clearly lay out what was the specific lie Sussmann told.

To understand what Sussmann means when he says,

It is simply not enough for the Indictment to make allegations generally about the substance of the purported false statement. Rather, the law requires that the Special Counsel identify the specific false statement made, i.e., the precise words that were allegedly used.

We can look at the false statements that Trump’s associates made to cover up the Trump campaign’s ties to Russia. For example, for each of six charged lies in the Roger Stone indictment, Mueller’s prosecutors quoted the precise questions he was asked as well as his response, then laid out specific evidence that each lie was a lie.

22. During his HPSCI testimony, STONE was asked, “So you have no emails to anyone concerning the allegations of hacked documents . . . or any discussions you have had with third parties about [the head of Organization 1]? You have no emails, no texts, no documents whatsoever, any kind of that nature?” STONE falsely and misleadingly answered, “That is correct. Not to my knowledge.”

23. In truth and in fact, STONE had sent and received numerous emails and text messages during the 2016 campaign in which he discussed Organization 1, its head, and its possession of hacked emails. At the time of his false testimony, STONE was still in possession of many of these emails and text messages, including:

a. The email from STONE to Person 1 on or about July 25, 2016 that read in part, “Get to [the head of Organization 1] [a]t Ecuadorian Embassy in London and get the pending [Organization 1] emails . . . they deal with Foundation, allegedly.”;

b. The email from STONE to Person 1 on or about July 31, 2016 that said an associate of Person 1 “should see [the head of Organization 1].”;

c. The email from Person 1 to STONE on or about August 2, 2016 that stated in part, “Word is friend in embassy plans 2 more dumps. One shortly after I’m back. 2nd in Oct. Impact planned to be very damaging.”;

d. Dozens of text messages and emails, beginning on or about August 19, 2016 and continuing through the election, between STONE and Person 2 in which they discussed Organization 1 and the head of Organization 1;

e. The email from STONE on or about October 3, 2016 to the supporter involved with the Trump Campaign, which read in part, “Spoke to my friend in London last night. The payload is still coming.”; and

f. The emails on or about October 4, 2016 between STONE and the high-ranking member of the Trump Campaign, including STONE’s statement that Organization 1 would release “a load every week going forward.”

For some of Stone’s charged lies, prosecutors even had communications with Jerome Corsi or Randy Credico or one of his lawyers showing Stone planned in advance to lie.

In George Papadopoulos’ statement of offense, for each of several lies outlined, prosecutors laid out specifically what he told the FBI and then laid out how Papadopoulos’ own communications records and his later testimony proved those statements to be false.

c. Defendant PAPADOPOULOS claimed he met a certain female Russian national before he joined the Campaign and that their communications consisted of emails such as, ‘”Hi , how are you?”‘ In truth and in fact, however, defendant PAPADOPOULOS met the female Russian national on or about March 24, 2016, after he had become an adviser to the Campaign; he believed that she had connections to Russian government officials; and he sought to use her Russian connections over a period of months in an effort to arrange a meeting between the Campaign and Russian government officials.

The most recent Mueller backup liberated by Jason Leopold reveals that, in addition to Papaodpoulos’ communications and later testimony that prove this particular claim to be an intentional lie, Papadopoulos also emailed the FBI on January 27 after consulting his records, laying out his claim that he met Olga before he joined the Trump campaign and never met her after that.

As promised, wanted to send you the name of the individual that Joseph Mifsud introduced me to over lunch in February or early March (while I was working with the London Center of International Law Practice and did not even know at that time whether or not I would even have moved back to the U.S. or especially worked on another presidential campaign).

He introduced her as his student, but was looking to impress her by meeting with me fresh off my Ben Carson gig. That is all I know. Never met her again.

I could go on for each of the false statements charged against Trump’s flunkies (and also show how, when Andrew Weissmann fell short of this kind of evidence, Amy Berman Jackson ruled against prosecutors on two of five claimed lies alleged in Paul Manafort’s plea breach determination).

Even Mike Flynn’s statement of offense, substantiating a charge that Trump loyalists have spent years wailing about, laid out clearly the two charged lies.

During the interview, FLYNN falsely stated that he did not ask Russia’s Ambassador to the United States (“Russian Ambassador”) to refrain from escalating the situation in response to sanctions that the United States had imposed against Russia. FLYNN also falsely stated that he did not remember a follow-up conversation in which the Russian Ambassador stated that Russia had chosen to moderate its response to those sanctions as a result of FL YNN’s request.

[snip]

During the January 24 voluntary interview, FLYNN made additional false statements about calls he made to Russia and several other countries regarding a resolution submitted by Egypt to the United Nations Security Council on December 21, 2016. Specifically FLYNN falsely stated that he only asked the countries’ positions on the vote, and that he did not request that any of the countries take any particular action on the resolution. FLYNN also falsely stated that the Russian Ambassador never described to him Russia’s response to FL YNN’s request regarding the resolution.

Not only did prosecutors describe what a transcript of these calls said, but they also had testimony from both Flynn himself and KT McFarland substantiating that these were lies. They even had a text that Flynn sent McFarland, before any of these intercepts had leaked, that Flynn later admitted he had deliberately written to cover up the content of his calls with Sergey Kislyak.

Then, after Sidney Powell spent six months trying to claim that one of Flynn’s lies wasn’t clearly laid out in his original 302, Judge Emmet Sullivan meticulously pointed out that the notes of both FBI interviewers matched every iteration of Flynn’s 302.

Having carefully reviewed the interviewing FBI agents’ notes, the draft interview reports, the final version of the FD302, and the statements contained therein, the Court agrees with the government that those documents are “consistent and clear that [Mr. Flynn] made multiple false statements to the [FBI] agents about his communications with the Russian Ambassador on January 24, 2017.” Gov’t’s Surreply, ECF No. 132 at 4-5. The Court rejects Mr. Flynn’s request for additional information regarding the drafting process for the FD-302s and a search for the “original 302,” see Def.’s Sur-Surreply, ECF No. 135 at 8- 10, because the interviewing FBI agents’ notes, the draft interview reports, the final version of the FD-302, and Mr. Flynn’s own admissions of his false statements make clear that Mr. Flynn made those false statements.

These are what false statements charges are supposed to look like. They’re backed by contemporaneous admissible evidence and laid out in specific detail in charging documents.

Trump and his supporters have wailed for years about these charges. Except prosecutors had evidence to substantiate them, the kind of evidence Durham makes no claim to have.

What few witnesses Durham has may not all agree on Sussmann’s alleged lies

Sussmann is more likely to succeed with his request to have his alleged false statement laid out in quote form and in context — and even if he doesn’t, he may back Durham into a corner he doesn’t want to be in — because Sussmann has presented several central questions about what the allegation really is. Is it that Sussmann didn’t offer up that he was working with (Sussmann claims) Rodney Joffe or  (Durham also alleges) Hillary on the Alfa Bank issues? Is it that Sussmann falsely claimed not to be billing the meeting with James Baker (evidence of which Durham has not presented)? Or does Durham have any shred of evidence that Baker affirmatively asked Sussmann, “are you sharing this on behalf of a client,” or even less supported in the indictment, “are you sharing this on behalf of Trump’s opponent, Hillary Clinton”? Similarly, Durham doesn’t explain whether when he claims that Sussmann lied about “this,” or “his work,” he means about the meetings that were actually billed to Hillary’s campaign internally at Perkins Coie (even if Hillary paid no money specifically tied to those meetings), or that the meeting with Baker was billed to one or another client (no evidence of which Durham presents). Those details will all be necessary for Durham to prove his case and for Sussmann to rebut it. And Sussmann needs to know whether he should focus his time on the absence of billing records substantiating that he met with Baker and then billed it to Hillary (something implicated by the meaning of “this” and “his work”), or whether he needs to focus on showing whether Priestap distinguished these allegations from the other claims about a Russian information operation undeniably targeting Hillary (something implicating whether this is supposed to be a crime of commission or omission).

It’s quite possible that Durham has presented these allegations using such squishy language because what little evidence he has doesn’t actually agree on the claimed lies. That is, it may be that Baker believes Sussmann simply didn’t bother explaining which client he was working for, but Bill Priestap, the next in line in a game of telephone, differently understood from Baker’s report that Sussmann affirmatively failed to provide Baker information that (Priestap’s own notes prove) the FBI already had anyway, that he was working with Hillary Clinton.

If, having had these weaknesses laid out by Sussmann’s attorneys, Durham can show that all his evidence actually substantiates the same false claim, he could get a superseding indictment making that clear. But once he does that, it may tie his hands at trial.

But it’s distinctly possible that Durham can’t prove that what little evidence he has backs the same interpretation of Sussmann’s alleged lie. That is, there may be a reason — on top of the fact that he has no contemporaneous transcript from a witness — that he avoided being more specific in his indictment, and that’s because it was the only way he could cobble together enough evidence to get a grand jury to indict.

So while much of the rest of this motion of a Bill of Particulars may serve only to call attention to gaping holes in the rest of the indictment, the request for specifics about what, specifically, Sussmann is alleged to have said when he lied may succeed. And even if it doesn’t, it may force Durham to commit to an interpretation that not all of his thin evidence would ultimately support.

John Durham Is the Jim Jordan of Ken Starrs

Last Thursday, John Durham indicted Michael Sussmann, the Perkins Coie lawyer who advised the DNC, DCCC, and Clinton Campaign about cybersecurity in 2016 as they struggled to deal with a hostile nation-state attack aiming — in part — to help elect their opponent. The indictment accuses Sussmann of lying to FBI General Counsel James Baker at a September 19, 2016 meeting at which Sussmann shared information about the curious DNS traffic between a server used by a Trump marketing contractor and Alfa Bank.

emptywheel’s long history of debunking the Alfa Bank story

Before I unpack the indictment, let me remind readers that when this story first publicly broke, I explained why the Spectrum Health (aka my boob hospital at the time) aspect of the allegations made no sense, criticized Hillary’s team (including Jake Sullivan) for jumping on the story, and echoed Rob Graham’s criticism of the researchers who accessed DNS data to conduct this research.

In addition to his technical debunking, Robert Graham made an equally important point: researchers shouldn’t be accessing this data for ad-lib investigations into presidential candidates, and it’s not even clear who would have access to it all except the NSA.

The big story isn’t the conspiracy theory about Trump, but that these malware researchers exploited their privileged access for some purpose other than malware research.

[snip]

In short, of all the sources of “DNS malware information” I’ve heard about, none of it would deliver the information these researchers claim to have (well, except the NSA with their transatlantic undersea taps, of course).

[snip]

[B]efore Tea Leaves started pushing this story to the press, the FBI had been investigating it for two months.

Which, to my mind, raises even more questions about the anonymous researchers’ identities, because (small world and all) the FBI likely knows them, in which case they may have known that the FBI wasn’t jumping on the story by the time they started pitching it.

Or the FBI doesn’t know them, which raises still more questions about the provenance of these files.

Ah well, if President Hillary starts a war with Russia based off Iraq-War style dodgy documents, at least I’ll have the satisfaction of knowing my boob clinic is right there on the front lines.

In March 2017, I observed that the weird Alfa Bank entry in the Steele dossier suggested a feedback loop between the Alfa Bank server story and the dossier project. Then days after that, I noted all the ways that the packaging of this story made it more suspect.

In 2018, I complained about the way Dexter Filkins had strained to sustain the story, while noting that people ought to look more closely at why Alfa Bank might be the focus here; the Mueller Report since confirmed that within weeks after the story broke publicly, Vladimir Putin pushed Oligarchs from Alfa Bank to fight harder against western sanctions, something that the alleged source for the Alfa Bank entry in the dossier seemed to parrot.

In short, I not only have consistently criticized this story, but done so in ways that anticipate the most justifiable parts of the indictment. It’s only the last bit — how the Alfa narrative echoes Putin’s interests — that this indictment doesn’t incorporate.

I guess with five more years Durham might get there…

So in unpacking this indictment, I’m in no way defending the Alfa Bank – Trump Tower story. It was a sketchy allegation, the packaging of it was suspect, and those who conducted the research arguably violated ethical guidelines.

I got to where Durham got in this indictment years and years ago. But that doesn’t make it a crime.

John Durham’s “narrative”

Moreover, that doesn’t mean Durham should tell as strained a “narrative” as those who packaged up this story. Central to Durham’s indictment is an assumption that if a victim of a crime who believed at the time that the crime had a — since confirmed — political goal reports suspicious, potentially related details, the victim must be motivated exclusively out of self-interest, not good citizenship or a concern about national security. That is, this entire indictment assumes that when Russia attacks a Presidential candidate, that is not itself a national security concern, but instead nothing more than a political dispute.

Effectively, John Durham has made it a crime for someone victimized by a Russian influence operation to try to chase down Russian influence operations.

Tech Executive-1 and Clinton both had retained Perkins Coie long before this, with Sussmann getting involved specifically for cybersecurity help in the wake of the Russian hack

The indictment, perhaps deliberately, obscures the timeline and facts leading up to the charged lie. But here’s the story it tells. First, all of Durham’s subjects established contracts with each other, even though all of those contracts (including Fusion GPS’) had scopes far larger than oppo research on Trump’s relationship with Russia.

  • In February 2015, Tech Executive-1 (whom I’ll call TE-1 for brevity) retained Sussmann to deal with a US government agency [Durham does not say whether this matter was resolved or continued in this period in 2016, which is central to the question of what kind of client of Sussmann’s TE-1 was].
  • In April 2015, the Clinton Campaign retained Perkins Coie and made Marc Elias the Campaign’s General Counsel.
  • In April 2016, the victim of a Russian government election-related attack, the DNC, retained Sussmann to help it deal with aftermath, which included meeting with the FBI. As the indictment describes this was not just legal support but cybersecurity.
  • [After a Republican retained them first and on a date that Durham doesn’t reveal,] Perkins Coie retained Fusion GPS to conduct oppo research on Trump pertaining to Russia [and other topics, though Durham doesn’t mention those other topics].

Durham only mentions in passing, later, that the researchers involved here similarly knew each other through relationships that focused on cybersecurity and predated these events.

Via means and on specific dates that Durham doesn’t always provide, Tea Leaves, TE-1, Sussmann, and two Researchers got the DNS data showing an anomaly

There are two sets of research here: that done in a university setting and that done at companies associated with TE-1, though TE-1 is the pivot to both. As depicted, Durham suggests the former are more legally exposed than the latter.

  • By some time in late July 2016 [the exact date Durham doesn’t provide], a guy who always operated under the pseudonym Tea Leaves but whom Durham heavy-handedly calls “Originator-1” instead had assembled “purported DNS data” reflecting apparent DNS lookups between Alfa Bank and “mail1.trump-email.com” that spanned from May 4 through July 29.
  • Tea Leaves was a business associate of TE-1 and via means Durham doesn’t describe, the data Tea Leaves gathered was shared with TE-1.
  • “In or about July 2016” [at a time that, because of the laws of physics, must post-date the late July date when Tea Leaves collected this data and the date when he shared them with TE-1], TE-1 alerted Sussmann to the data.
  • On July 31, Sussmann billed the Clinton Campaign for 24 minutes with the billing description, “communications with Marc Elias regarding server issue.”
  • At some point [Durham doesn’t provide even a month, but by context it was at least as early as July 2016 and could have been far, far earlier], TE-1’s company provided a university with data for a government contract ultimately not contracted until November 2016, including the DNS data from an Executive Branch office of the US government that Tech Exec-1’s company had gotten as a sub-contractor to the US government. [This date of this is critical because it would be the trigger for a Conspiracy to Defraud charge, if Durham goes there.]
  • In or about August 2016 [Durham doesn’t provide a date], a federal government was finalizing but had not yet signed a cybersecurity research contract with [presumably] that same university to receive and analyze large quantities of public and non-public data “to identify the perpetrators of malicious cyber-attacks and protect U.S. national security.” Tea Leaves was the founder of a company that the university was considering [Durham doesn’t provide the date of consideration, but generally these things precede finalization] for a subcontract with the government contract.

TE-1 directs employees of companies under his control to research this issue

Though Durham’s indictment is somewhat vague, at least one piece of research from companies associated with TE-1 was shared with the FBI; it appears that other threads of research were not shared.

  • In or about early August 2016 [the dates of which Durham doesn’t provide], TE-1 directed personnel at two companies in which he had an ownership interest to search for what the indictment calls, “any Internet data reflecting potential connections or communications between Trump or his associates and Russia,” which Durham describes to be “derogatory information on Trump.” In connection with this tasking, TE-1 later stated [on a date Durham doesn’t describe] he was working with someone who had close ties to the Democratic Party.
  • At some point, an individual tasked with this work described being “uncomfortable regarding this tasking,” [Durham doesn’t describe when he learned this or whether there is any contemporaneous proof].
  • At some point [Durham doesn’t describe the date], TE-1 provided one of his companies with personal (but publicly available) data from six Trump associates and one purported US-based lobbyist for Alfa Bank and directed these individuals should be the focus of that company’s data queries and analysis [Durham doesn’t say whether these six associates overlapped with the people Fusion had been tasked to research, nor does he allege they got included in the eventual reports to the FBI; both details are needed to assess his case].
  • On August 12, 2016, Sussmann, Elias, and TE-1 met in Elias’ office; Sussmann billed his time to the Clinton Campaign describing, “confidential meetings with Elias, others.”
  • On August 15, employees at one of the companies queried their holdings against a set of addresses that referred to Trump and/or Alfa Bank.
  • During the same time period [Durham doesn’t specify when], employees at Internet Company-3 drafted a written paper that included technical observations that Sussmann would later convey to the FBI.

Around the time this started, Sussmann met Fusion and a bunch of meetings happened that were billed to Hillary

  • On July 29, Sussmann and Marc Elias met with Fusion GPS [Durham doesn’t affirmatively claim this data pertained to the server issue], and Sussmann billed his time to the Hillary Campaign under “General Political Advice,” a different description than all the other Fusion meetings that Durham more credibly claims relate to the Alfa Bank allegation.
  • Around “the same [August] time period” [Durham doesn’t provide the date], Sussmann, Elias, and Fusion personnel began exchanging emails with the subject line, “Connecting you all by email;” [Durham doesn’t say who initiated the email, but it suggests that before this period, Sussmann and Fusion did not have direct contact].
  • On August 17, 2016, Sussmann, Elias, and TE-1 conducted an additional conference call, for which Sussmann billed his time to the Clinton campaign, noting “telephone conference with” TE-1 and Elias.
  • On August 19, 2016, Sussman and Elias had another in-person meeting that Sussmann described as a meeting with TE-1, which was billed as a “confidential meeting with Elias, others.”

Researchers 1 and 2 and Tea Leaves worked with TE-1 on a “storyline” and “narrative” with varying degrees of skepticism expressed

This is the stuff Durham–with some justification–will and has used to taint all this as a political project.

  • On July 29, Researcher-2 emailed Researcher-1 the data compiled by Tea Leaves [Durham provides no evidence that TE-1 was involved in this exchange].
  • On August 19, Researcher-1 queried Internet data maintained by TE-1’s company [it is not clear but this suggests it was not the data turned over to the University] for the aforementioned mail1.trump-email.com domain. Researcher-1 then emailed TE-1 with the list of domains that had communicated with it, saying the list, “does not make much sense with the storyline you have.”
  • On August 20, Tea Leaves emailed Tech Exec-1, Researcher-1, and Researcher 2, stating that, “even if we found what [TE-1] asks us to find in DNS, we don’t see the money flow, and we don’t see the content of some message saying, ‘send money here’.” Tea Leaves then explained that one could fill out sales forms and cause them, “to appear to communicate with each other in DNS.” Tea Leaves then noted that “it’s just not the case that you can rest assured that Hillary’s opposition research and whatever professional gov and investigative journalists are also digging come up with the same things.”
  • On August 20, TE-1 clarified that the task was “indeed broad,” and that,
    • Being able to provide evidence of *anything* that shows an attempt to behave badly in relation to this [Durham doesn’t describe what the antecedent of “this” is], the VIPs would be happy. They’re looking for a true story that could be used as the basis for closer examination.
  • Still on August 20, seemingly distinguishing between that task and the Alfa Bank allegations, TE-1 said, “the prior hypothesis was all that they needed: mailserver dedicated or related to trump … and with traffic almost exclusively with Alfa was sufficient to do the job. … Trump has claimed he and his company have had NO dealings with .ru other than the failed Casino, and the Miss universe pageant. He claims absolutely NO interaction with any financial institutions. So any potential like that would be jackpot.” [Ellipses original]
  • On August 21, TE-1 emailed the recipients [but not, apparently, Sussmann], urging them to do further research on Trump which would “given the base of a very useful narrative.” He added that he didn’t believe the trump-email.com domain was a secret communications channel but a “red herring,” because the host was “a legitimate valid company,” stating they could “ignore it, together with others that seem to be part of the marketing world.”
  • On August 22, Researcher-1 raised doubts about whether, using only the tools they were currently using, they could prove their hypothesis. Among the concerns raised is that they couldn’t prove that “this is not spoofed [] traffic.” [brackets original; bolded in the original]
  • Later in or about August 2016 [on dates Durham doesn’t provide], TE-1 exchanged emails with personnel from Fusion.

Sussmann drafts a white paper and (via unstated means) TE-1 gets Researchers 1 and 2 and Tea Leaves to review it

  • Between September 5 and September 14, Sussmann drafted a white paper, generally billing his time to the Clinton Campaign, but on September 14, billing time to both Clinton and TE-1.
  • On September 14, TE-1 [not Sussmann] sent the white paper he had drafted to Researcher 1, Researcher 2, and Tea Leaves to ask them if a review of less than an hour would show this to be plausible. Though some of them noted how limited the standard of “plausibility” was, they agreed it was plausible, and Researcher 2 said [Durham does not quote the specific language here] “the paper should be shared with government officials.”

Sussmann shares this and other information with James Baker and–Durham claims–affirmatively lies about whether he is representing someone

  • Both before the September 19 meeting and after it (notably in a September 12 meeting involving the NYTimes, in which Marc Elias also participated), Sussmann spoke to the press about what Durham credibly suggests was the Alfa Bank white paper. Sussmann billed this to Clinton.
  • On September 19, Sussmann met with Baker and provided him with three white papers and a thumb drive with data. Durham doesn’t actually make clear where all three of these came from.
  • On September 19, Sussmann met with James Baker. Durham claims that “he stated falsely that he was not acting on behalf of any client” [which Durham cannot quote because there’s no contemporaneous record], that he had been approached by multiple cyber experts [Durham doesn’t say whether the three he named were Researcher 1, Researcher 2, and Tea Leaves or other people, as seems to be the case], three white papers [which I may return to because this is another problematic spot in his story], and some of the data, which Durham calls “purported.”
  • Immediately after the September 19 meeting, Baker met with Bill Priestap whose notes read:
    • Michael Sussman[n] — Atty: Perkins Coie — said not doing this for any client
      • Represents DNC, Clinton Foundation, etc. []
      • Been approached by Prominent Cyber People (Academic or Corp. POCs), People like: [three names redacted]
  • Durham substantiates a claim that Sussmann billed the meeting itself to Hillary to a description, “work and communications regarding confidential project,” that does not, at least as he quotes it, mention a meeting with the FBI General Counsel at all.

Some of this — the reference to crafting a narrative and a storyline — is damning and validates my discomfort with the political nature of this project five years ago. Other parts of this emphasize the researchers’ insistence on truth from at least parts of this effort. Still others (such as the recognition that this could be spoofed data) will almost certainly end up being presented as exculpatory if this ever goes to trial, but Durham seems to think is inculpatory.

In one place, Durham describes “aforementioned views,” plural, that the Alfa Bank data was a “red herring,” something only attributed to TE-1 in the indictment, seemingly presenting TE-1’s stated view on August 21 to everyone involved, including Sussmann, who does not appear to have been on that email chain. He claims Sussmann, Researcher 1 and 2, TE-1, and Tea Leaves drafted the white paper(s) shared with the FBI, but all he substantiates is a less than one hour review by everyone but Sussmann. He leaves out a great deal of detail about what Jean Camp and someone using the moniker Tea Leaves did and said, publicly, after the FBI meeting, which may totally undercut Durham’s “narrative.”

But other parts, even of the story that Durham tells, are problematic for his narrative. First, there is not (yet) the least hint that Tea Leaves — whom he calls “The Originator” — fabricated this data (or even packaged it up misleadingly, though I think there is evidence he did). Nor is there the least hint that TE-1 asked Tea Leaves to come up with the data. That part of the story is fundamentally important and Durham simply ignores it with that legally unnecessary — particularly given that Durham clearly labels this person as Tea Leaves — moniker “Originator,” giving the anomalous forensic data a kind of virgin birth. And while two of the four tech experts described herein (there appear to be at least three others not described) expressed some doubt about the meaning of it, none of them seems to have doubted that there was an anomaly in the Trump marketing server and Alfa Bank.

Based on this story, though, Durham insinuates Sussmann fed information that he, Sussmann, knew to be bullshit to the FBI on behalf of both Hillary and TE-1, and in so doing affirmatively hid that the bullshit “storyline” was designed to help Hillary which (he claims) would have led the FBI to treat it differently.

In spite of a lot of thus far extraneous details, that’s the only crime he has alleged.

The existing case is remarkably weak

As a number of people have noted, as charged this is a remarkably weak case. Ben Wittes dedicates a section of his post on this indictment to those weaknesses. They are, succinctly:

  • The evidence regarding the core allegation in the indictment pits Sussmann’s word against James Baker’s; there are no other witnesses.
  • After the meeting with Baker, Sussmann repeatedly admitted under oath he was representing a client, a detail which could be exculpatory or inculpatory.
  • Baker testified to Congress he did believe Sussmann was representing a client (meaning Baker will be used to discredit Baker, the one witness to Sussmann’s alleged lie).
  • Even in Bill Priestap’s nearly-contemporaneous notes which are the only documentation of Sussmann’s comments, he describes Sussmann as Hillary’s lawyer (including for the Clinton Foundation, which may be incorrect), so FBI knew full well that Sussmann represented Hillary.
  • Priestap’s notes may be inadmissible hearsay at trial.

The NYT article predicting these charges also claim Durham is conflating Sussmann’s tracking of his hourly work with the actual money charged to the Hillary campaign.

Moreover, internal billing records Mr. Durham is said to have obtained from Perkins Coie are said to show that when Mr. Sussmann logged certain hours as working on the Alfa Bank matter — though not the meeting with Mr. Baker — he billed the time to Mrs. Clinton’s 2016 campaign.

[snip]

They are also said to have argued that the billing records are misleading because Mr. Sussmann was not charging his client for work on the Alfa Bank matter, but needed to show internally that he was working on something. He was discussing the matter with Mr. Elias and the campaign paid a flat monthly retainer to the firm, so Mr. Sussmann’s hours did not result in any additional charges, they said.

There are a number of other ways that Sussmann’s presumably well-funded defense will combat these charges. But as to the allegation buried amid all these details, Durham’s evidence is weak.

Durham’s materiality broadcasts his bid for a ConFraudUS conspiracy

But that’s not what this is about.

Durham is not just alleging that Sussmann was hiding that he was working for Hillary. He is also claiming that Sussmann was at the same time representing TE-1 at that meeting. In the indictment, I think that’s based on a single data point — that Sussmann billed TE-1’s company for “communications regarding confidential project” on September 14. I’m not sure whether that makes the false statements case still weaker or stronger.

But it’s a key part of where Durham obviously wants to go.

Not only are many of the details Durham included in the indictment irrelevant to the false statements charge, but if they were crimes by themselves, they would have been tolled under any five year statute of limitations already. There are only two conceivable purposes for including them in this indictment. First, to give the Alfa Bank Oligarchs more cause to sue more people, effectively a US prosecutor assisting Russians in cynical lawfare. Durham’s investigation incorporates stuff the Oligarchs have already liberated, so is itself derivative of Russian lawfare. Effectively, that means that a prosecutor working for Bill Barr’s DOJ pursued a prosecution that was complementary to an intelligence-related effort by foreigners who pay Kirkland & Ellis a lot of money. Sussmann will have real cause to question whether Brian Benczkowski (who recused from matters involving this aspect of Alfa Bank) or any other Kirkland & Ellis lawyer had a role in this strand of the investigation.

Then there’s the most obvious way to extend the statute of limitations on the events that happened in July and August 2016: to include them in a conspiracy that continued after those dates (and indeed, Durham refers to Elias, Researcher 1 and 2, and Tea Leaves in the way DOJ often uses to refer to charged or uncharged co-conspirators).

Given the extended statement Durham includes to explain why Sussmann’s alleged lie is material under the charged statute, that’s undoubtedly where Durham wants to head with his investigation.

SUSSMANN’s lie was material because, among other reasons, SUSSMANN’s false statement misled the FBI General Counsel and other FBI personnel concerning the political nature of his work and deprived the FBI of information that might have permitted it more fully to assess and uncover the origins of the relevant data and technical analysis, including the identities and motivations of SUSSMANN’s clients.

Had the FBI uncovered the origins of the relevant data and analysis and as alleged below, it might have learned, among other things that (i) in compiling and analyzing the Russian Bank-1 allegations, Tech Executive-1 had exploited his access to non-public data at multiple Internet companies to conduct opposition research concerning Trump; (ii) in furtherance of these efforts, Tech Executive-1 had enlisted, and was continuing to enlist, the assistance of researchers at a U.S.-based university who were receiving and analyzing Internet data in connection with a pending federal government cybersecurity research contract; and (iii) SUSSMAN, Tech Executive-1, and Law Firm-1 had coordinated, and were continuing to coordinate, with representatives and agents of the Clinton Campaign with regard to the data and written materials that Sussmann gave to the FBI and the media.

Don’t get me wrong. This will clearly pass the incredibly low standard for materiality under existing precedent. Though Sussmann will surely make much of citing the invented standard Billy Barr used to try to dismiss the Mike Flynn prosecution, which first requires the investigation in question to be legitimate.

The Government is not persuaded that the January 24, 2017 interview was conducted with a legitimate investigative basis and therefore does not believe Mr. Flynn’s statements were material even if untrue. Moreover, we not believe that the Government can prove either the relevant false statements or their materiality beyond a reasonable doubt.

[snip]

In any event, there was no question at the FBI as to the content of the calls; the FBI had in its possession word-for-word transcripts of the actual communications between Mr. Flynn and Mr. Kislyak. See Ex. 5 at 3; Ex. 13. at 3. With no dispute as to what was in fact said, there was no factual basis for the predication of a new counterintelligence investigation. Nor was there a justification or need to interview Mr. Flynn as to his own personal recollections of what had been said. Whatever gaps in his memory Mr. Flynn might or might not reveal upon an interview regurgitating the content of those calls would not have implicated legitimate counterintelligence interests or somehow exposed Mr. Flynn as beholden to Russia.

If DOJ had no interest in figuring out whether Trump was undermining sanctions to pay off a quid pro quo, they sure as hell have no interest in launching a 3-year investigation to figure out the tie between these allegations and Hillary that was obvious to Priestap in real time, particularly given how quickly the FBI dismissed the allegations in 2017 and given that the allegations are not publicly known to have had a tie to their larger Russian investigation.

Still, while Durham will have no trouble proving Sussmann’s claimed lie meets the standards of materiality, Durham’s claims for it are ridiculous.

It’s a load of horseshit that FBI would have treated this tip any differently — which amounted to investigating it, alerting the press there was nothing to it, then dismissing it pretty quickly, as far as is public — if they knew that Sussmann was formally being paid at that meeting by Hillary, if he in fact was. Priestap knew Sussmann was representing Hillary and said as much in the best evidence Durham has! In fact, FBI’s warning to the NYT about this story in October could be presented as evidence that FBI already incorporated an assumption this came from Hillary.

Likewise, it’s a load of horseshit that FBI couldn’t know that the Bureau needed to ID the researchers behind the project. If I was able to figure that was important out before the 2016 election, and I did, then the experts at the FBI surely figured that out.

But what Durham’s materiality statement emphasizes — what Durham claims Sussmann intended to hide with his claimed lie — is that, “researchers at a U.S.-based university … were receiving and analyzing Internet data in connection with a pending federal government cybersecurity research contract.” That’s the significance of ¶¶23a through e of the indictment, which describe how TE-1 provided data that included some from an Executive Branch office of the U.S. government, which his company had obtained “as a sub-contractor in a sensitive relationship between the U.S. government and another company,” to the university at which Researcher 1 and 2 were working, and both with his university researcher allies and employees of his own company, he tasked people to research Donald Trump. Durham is suggesting that subset of data taints the whole pool that TE-1 shared, making it a Federal interest.

It’s not just that Durham is working on a theory that Sussmann deliberately dealt garbage to the FBI (which GOP sources also did on the Clinton Foundation) while trying to hide that fact. It’s that data originally sourced from the government was used in doing that research.

It’s actually the kind of argument that DOJ prosecutors typically succeed with. Except it’s all premised on proving that Sussman was trying to hide all this in his meeting with Baker. Even if the evidence surrounding the meeting weren’t so flimsy, this is another degree of motive that Durham is straining mightily to make.

Durham needs Sussmann to have lied, because a deliberate attempt to obscure the rest is necessary for his “storyline.” His evidence that Sussmann lied — much less, deliberately — is shoddy. But if he can’t get that, then his hopes for a larger “narrative” collapse.

The parts of the story Durham doesn’t tell

That becomes more clear when you consider some details that Durham doesn’t include in his indictment.

Two details that were public to everyone involved make it clear why Durham’s silence about the exact dates in July when this operation started is so corrupt.

On July 22, WikiLeaks published emails that were at the time believed and since have been confirmed by the FBI to have been hacked by Russia. Durham hides the dates in July when many of these events transpired, but everything he includes suggests this activity post-dated the time when WikiLeaks published stolen emails and the entire security community in the US, surely including every researcher mentioned in this story, coalesced on the belief that Russia was the culprit. Durham refers to Russia’s attack on Hillary (and therefore on the US) inaccurately as, “the hacking of its email servers by the Russian government” and “a hack” (the hack went well beyond just email and continued through the period of Sussmann’s meeting with Baker). But, amazingly, Durham’s “narrative” doesn’t account for the fact that Hillary was targeted not just with an attack but with an information operation. And the timeline he presents here affirmatively hides that these events took place after the entire security community understood that there was an information operation aspect to the attack.

Then, on July 27, Trump gave a press conference in Florida where he said numerous things that make all the actions of Sussmann and others justifiable on national security grounds. First, Trump raised doubts about the Russian attribution of the DNC hack that, by that point in July, was the consensus among national security experts, undoubtedly including every tech expert mentioned in this indictment.

I watched this guy Mook and he talked about we think it was Russia that hacked. Now, first of all was what was said on those that’s so bad but he said I watched it. I think he was live. But he said we think it was Russia that hacked.

And then he said — and this is in person sitting and watching television as I’ve been doing — and then he said could be Trump, yeah, yeah. Trump, Trump, oh yeah, Trump. He reminded me of John Lovitz for “Saturday Night Live” in the liar (ph) where he’d go yes, yes, I went to Harvard, Harvard, yes, yes. This is the guy, you have to see it. Yes, it could be Trump, yes, yes. So it is so farfetched. It’s so ridiculous. Honestly I wish I had that power. I’d love to have that power but Russia has no respect for our country.

And that’s why — if it is Russia, nobody even knows this, it’s probably China, or it could be somebody sitting in his bed. But it shows how weak we are, it shows how disrespected we are. Total — assuming it’s Russia or China or one of the major countries and competitors, it’s a total sign of disrespect for our country. Putin and the leaders throughout the world have no respect for our country anymore and they certainly have no respect for our leader. So I know nothing about it.

Trump then offered his bullshit explanation for why he wouldn’t release his tax returns, framing it in terms of whether he had business ties to Russia.

TRUMP: Because it’s under order. And I’ll release them when the audits completed. Nobody would release when it’s under — I’ve had audits for 15 or 16 years. Every year I have a routine audit. I’m under audit, when the audits complete I’ll release them. But zero, I mean I will tell you right now, zero, I have nothing to do with Russia, yes?

Trump then said the nation-state hack of his opponent wasn’t the important thing, the content of the emails that were released was, thereby encouraging the press to participate in the information operation aspect of this attack.

He already did something today where he said don’t blame them, essentially, for your incompetence. Let me tell you, it’s not even about Russia or China or whoever it is that’s doing the hacking. It was about the things that were said in those e-mails. They were terrible things, talking about Jewish, talking about race, talking about atheist, trying to pin labels on people — what was said was a disgrace, and it was Debbie Wasserman Schultz, and believe me, as sure as you’re sitting there, Hillary Clinton knew about it. She knew everything.

Trump then asked Russia to further hack his opponent.

Russia, if you’re listening, I hope you’re able to find the 30,000 e-mails that are missing.

Trump then doubled down on the comment he made about his taxes, assuring the press that he had “zero” business ties with Russia.

TRUMP: No, I have nothing to do with Russia, John (ph). How many times do I have say that? Are you a smart man? I have nothing to with Russia, I have nothing to do with Russia.

And even — for anything. What do I have to do with Russia? You know the closest I came to Russia, I bought a house a number of years ago in Palm Beach, Florida.

Palm Beach is a very expensive place. There was a man who went bankrupt and I bought the house for $40 million and I sold it to a Russian for $100 million including brokerage commissions. So I sold it. So I bought it for 40, I told it for 100 to a Russian. That was a number of years ago. I guess probably I sell condos to Russians, OK?

QUESTION: (OFF-MIKE)

TRUMP: Of course I can. I told you, other than normal stuff — I buy a house if I sold it to a Russian. I have nothing to do with Russia. I said that Putin has much better leadership qualities than Obama, but who doesn’t know that?

QUESTION: (OFF-MIKE)

TRUMP: Of course not. I own the Trump organization. Zero, zero. Go ahead.

Trump then reiterated his claim that no one could attribute the DNC hack to Russia.

TRUMP: No, but they seem to be, if it’s Russians. I have no idea. It’s probably not Russia. Nobody knows if it’s Russia. You know the sad thing is? That with the technology and the genius we have in this country, not in government unfortunately, but with the genius we have in government, we don’t even know who took the Democratic National Committee e-mails. We don’t even know who it is.

I heard this morning, one report said they don’t think it’s Russia, they think it might be China. Another report said it might be just a hacker, some guy with a 200 I.Q. that can’t get up in the morning, OK? Nobody knows. Honestly they have no idea if it’s Russia. Might be Russia. But if it’s any foreign country, it shows how little respect they have for the United States. Yes, ma’am.

Finally, Trump also stated that he would consider lifting sanctions on Russia.

QUESTION: I would like to know if you became president, would you recognize (inaudible) Crimea as Russian territory? And also if the U.S. would lift sanctions that are (inaudible)?

TRUMP: We’ll be looking at that. Yeah, we’ll be looking.

Each of these comments, individually, would have raised eyebrows. The same comments, made by an American citizen, would equally have raised alarms among those committed to cybersecurity.

But for a presidential candidate to encourage the hostile nation-state information operation targeting his opponent, then ask the hostile nation-state to further target her, in conjunction with the repeated denials of any business ties to Russia raised real, legitimate questions about whether Trump was putting his own interests above the national security of the country.

You might excuse Durham for excluding this from his indictment because after all he was busy indicting a ham sandwich based on hearsay evidence he might be able to exclude these facts at trial. Except that an August 20 comment from TE-1 that Durham quotes in his indictment may be a direct reference to (and at the least incorporates knowledge of) this press conference.

Trump has claimed he and his company have had NO dealings with .ru other than the failed Casino, and the Miss universe pageant. He claims absolutely NO interaction with any financial institutions. So any potential like that would be jackpot.

That is, Durham included what appears to be a reference to the July 27 press conference. It appears (though Durham obscures this point) that all the actions laid out in this indictment post-date the press conference. Virtually everyone in the US committed to ensuring America’s national security was alarmed by Trump’s comments in this press conference. Yet Durham doesn’t acknowledge that all these actions took place in the wake of public comments that made it reasonable for those committed to cybersecurity to treat Donald Trump as a national security threat, irrespective of partisan affiliation.

Durham will work hard to exclude detail of Trump’s press conference from trial. But I assume that if any of the named subjects of this investigation were to take the stand at trial, they would point out that it was objectively reasonable after July 27 to have national security concerns based on Trump’s encouragement of Russia’s attack on Hillary Clinton and his defensive denials of any business ties. Any of the named subjects of the indictment would be able to make a strong case that there was reason to want to, as a matter of national security, test Trump’s claim to have no financial ties to Russia. Indeed, the bipartisan SSCI Report concluded that Trump posed multiple counterintelligence concerns, and therefore has concluded that Durham’s portrayal of politics as the only potential motive here to be false.

Central to Durham’s theory of prosecution is that there was no sound national security basis to respond to anomalous forensic data suggesting a possible financial tie between Trump and Russia. Except that, after that July 27 speech — and all of these events appear to post-date it — that theory is unsustainable.

The parts of the story Durham doesn’t tell

And not only was it objectively reasonable to test whether Trump’s claims to have “zero” business ties to Russia were false, but those suspecting that Trump was hiding such ties were, in fact, correct.

According to Michael Cohen, when Trump walked off the stage from that July 27 press conference, Cohen asked Trump why he had claimed that he had zero business ties with Russia when he had in fact been pursuing an impossibly lucrative deal to brand a Trump Tower in Moscow. And we now know that within hours of Trump’s request, GRU hackers made a renewed assault on Hillary’s own servers. By the time security researchers pursued anomalous data suggesting covert communications with a Russian bank, Cohen had already participated in discussions about working with two sanctioned Russian banks to fund the Trump Tower deal, had agreed to work with a former GRU officer to broker it, had spoken to an aide of Dmitry Peskov, and had been told that Putin was personally involved in making the deal happen. Just on the Trump Tower basis alone, Trump had publicly lied in such a way that posed a counterintelligence risk to America.

But that was not the only thing that Trump had done by the date when a bunch of security researchers responded to anomalous forensic data to test whether Trump was hiding further ties to Russia’s attack on Hillary Clinton.

In March, Trump hired Paul Manafort, a financially desperate political operative with close ties to a Russian intelligence officer, Konstantin Kilimnik, who (SSCI provided three redacted examples of) may have been involved in the hack-and-leak operation. In April, Manafort started leveraging his relationship with Trump to try to make money. In May, Manafort started regularly sending Kilimnik the campaign’s internal polling data. All that happened before researchers started testing Trump’s claims to have had no tie to Russia. On July 28, Kilimnik emailed Manafort to set up a meeting to talk about the future of Ukraine. Just days after the researchers started the inquiry, on August 2, Manafort met with Kilimnik to discuss carving up Ukraine in the same meeting where he described his strategy to win the election.

In April, an academic with close ties to Russia, Joseph Mifsud, told an unqualified braggart whom Trump had added to his team to pretend he had a foreign policy plan, George Papadopoulos, that Russia had thousands of Hillary’s emails that they intended to release to help Trump.

In May, according to Rick Gates’ testimony, Roger Stone started claiming he had advance knowledge of what would become the WikiLeaks releases. On or about June 15, per Gates, Stone told him that “he had contact with Guccifer 2.” According to a warrant affidavit targeting Stone, he searched Google on “Guccifer” before the Guccifer website went up that day. On June 23, Manafort called Stone and then the two old friends met for 30 minutes in the Trump cafeteria. On June 30, Stone spoke to Trump. According to multiple sources (including Michael Cohen), Stone knew of the DNC drop before it happened.

In June, Don Jr accepted a meeting with Natalia Veselnitskaya at which he believed he would get dirt on Hillary Clinton. At the meeting, Veselnitskaya asked Don Jr to end sanctions on Russia, and the candidate’s son said his dad would reconsider it if he won.

In short, the researchers who, in the wake of Trump’s damning comments, were testing whether Trump had lied about having ties to Russia, not only had objectively reasonable reasons to do that research. But their suspicions were proven correct, over and over again.

Durham describes the outcome of the FBI investigation into the allegations this way:

The FBI’s investigation of these allegations nevertheless concluded that there was insufficient evidence to support the allegations of a secret communications channel with Russian Bank-1. In particular, and among other things, the FBI’s investigation revealed that the email server at issue was not owned or operated by the Trump Organization but, rather, had been administered by a mass marketing email company that sent advertisements for Trump hotels and hundreds of other clients.

Nothing here suggests the FBI disproved that this was an anomaly.

And there’s one more detail that Durham didn’t include in the Sussmann indictment: on July 26, Australia first shared their report about what George Papadopoulos told Alexander Downer in May. The next day, July 27, the FBI Legat in the UK got the tip. On July 31 — before the substantive research into the Alfa Bank allegation began — the FBI opened an UNSUB investigation into who got advance warning about the Russian operation and shared it with George Papadopoulos. In other words, by hiding the dates when Tea Leaves first discovered the anomalous data, Durham is hiding not just the damning things that publicly happened before the Alfa Bank operation got started, but probably details about the tip that turned into the Crossfire Hurricane investigation.

In the wake of the Sussmann indictment, the usual Russian denialists have claimed that this proves that what they call “Russiagate” was all a fraud.

Such claims defy the rules of physics, suggesting that events that happened after the FBI opened an investigation to learn how and why the Trump campaign (via three channels, as it turns out) learned of the Russian attack in advance were in fact the cause of it.

It is likely that Durham will be able to exclude all these details from a Michael Sussmann trial, at least if it remains just a false statements case. He will be able to convince Judge Christopher Cooper, who is presiding over the case, that this information — that the researchers not only had reason to believe Trump presented a cybersecurity risk to the country, but that the researchers turned out to be right, and that FBI had itself determined there was reason to carry out the same kinds of investigations that the researchers did, possibly before any one of them took a single step — is irrelevant to the case against Sussmann. But if Durham charges ConFraudUS based on a claim that it was illegitimate to look into why Donald Trump was inviting Russia to hack his opponent, it will become centrally important that, before these researchers started conducting their investigation, the FBI had likewise decided such an investigation had merit.

The Alfa Bank story was sleazy and unethical. But it was still, nevertheless, an instance where someone representing the victim of a nation-state attack attempted to chase down information that may have pertained to that nation-state attack.

John Durham will go down in history as the guy who decided that torturing detainees, even in excess of legal guidance, was not a crime, but a victim sharing concerns about nation-state hacking is.

Update: It’s likely that Richard Burt was one of the people investigated as part of this effort. Per the Mueller Report, he was the person Petr Aven asked to establish a tie with Trump’s transition in 2016.

After the December 2016 all-hands meeting, A ven tried to establish a connection to the Trump team. A ven instructed Richard Burt to make contact with the incoming Trump Administration. Burt was on the board of directors for LetterOne (L 1 ), another company headed by Aven, and had done work for Alfa-Bank. 1169 Burt had previously served as U.S. ambassador to Germany and Assistant Secretary of State for European and Canadian Affairs, and one of his primary roles with Alfa-Bank and Ll was to facilitate introductions to business contacts in the United States and other Western countries. 1170

While at a L1 board meeting held in Luxembourg in late December 2016, Aven pulled Burt aside and told him that he had spoken to someone high in the Russian government who expressed interest in establishing a communications channel between the Kremlin and the Trump Transition Team. 1171 Aven asked for Burt’s help in contacting members of the Transition Team. 1172 Although Burt had been responsible for helping Aven build connections in the past, Burt viewed Aven’s request as unusual and outside the normal realm of his dealings with Aven. 1173

Burt, who is a member of the board of CNI (discussed at Volume I, Section IV.A.4, supra), 1174 decided to approach CNI president Dimitri Simes for help facilitating A ven’ s request, recalling that Simes had some relationship with Kushner. 1175 At the time, Simes was lobbying the Trump Transition Team, on Burt’s behalf, to appoint Burt U.S. ambassador to Russia.1176

Burt contacted Simes by telephone and asked if he could arrange a meeting with Kushner to discuss setting up a high-level communications channel between Putin and the incoming Administration. 1177 Simes told the Office that he declined and stated to Burt that setting up such a channel was not a good idea in light of the media attention surrounding Russian influence in the U.S. presidential election. 1178 According to Simes, he understood that Burt was seeking a secret channel, and Simes did not want CNI to be seen as an intermediary between the Russian government and the incoming Administration. 1179 Based on what Simes had read in the media, he stated that he already had concerns that Trump’s business connections could be exploited by Russia, and Simes said that he did not want CNI to have any involvement or apparent involvement in facilitating any connection. 118

Update: Corrected scope of Benczkowski’s recusal. His should cover the server issue (and Alfa Bank issues for the first two years he was CRM).

Update: Brian Krebs wrote a post laying out all the people who still believe there’s something going on technically. I don’t think that’s inconsistent, at all, with this one. As noted, everyone who looked at this believes it’s an anomaly. What I keep pointing to is the aftermath of that anomaly got Alfa Bank to act in a certain way that is consistent with Putin’s interests. Krebs notes that it has also led to a lot of scrutiny of security researchers in the US, not unlike the way the aftermath of the Steele dossier discredited most top Russian experts in the US government.

Update: This transcript of Preet Bharara and Joyce Vance discussing the many weaknesses of the Durham indictment largely replicates what I’ve laid out here but is worth a review.

How Rick Gates Used Maggie Haberman and Ken Vogel

Last week, DOJ released a reprocessed set of most of Rick Gates’ 302s in Jason Leopold’s FOIA for Mueller materials. I used that as an opportunity to pull together all of his 302s to capture the content and pull out the materials withheld under b7A exemptions (b7A exemptions reflect ongoing investigations — though many of these are clearly just counterintelligence investigations into Ukraine’s attempts to influence US politics). I did the same thing for Steve Bannon, Mike Flynn, and Sam Patten’s files.

Reading all the 302s like this shows this, at times, Gates went wobbly on Mueller’s team. And it provides yet more evidence that a NYT article — bylined by two reporters that came up in Gates’ interviews, Maggie Haberman and Ken Vogel — was a (wildly successful) attempt to misrepresent how damning were Gates’ admissions about Paul Manafort’s efforts to provide ongoing campaign updates to Russian intelligence officer Konstantin Kilimnik.

Nevertheless, the NYT has never issued a correction.

It’s not news that Gates went wobbly on his cooperation. Andrew Weissmann described the beginning process of this in his book, Where the Law Ends. But the 302s suggest it was not a one-time event.

As Weissmann told it in his book published before all the 302s came out, in one of his first proffers, Gates told prosecutors that he himself was skimming money from Manafort.

Gates said he understood and, from there, we began in earnest, alternating between Gates admitting his guilt for the crimes he and Manafort had committed and our teasing out information he had about others. This can be an awkward dance, but Gates seemed to be forthcoming. For example, after walking us through how, precisely, he’d helped Manafort launder money from his offshore accounts, Gates explained that he’d also personally stolen money from Ukraine by inflating the invoices he submitted for their political consulting work then pocketing that excess cash. Gates had never told Manafort about this skimming, he said, or reported that extra income on his taxes. We hadn’t known about this—it was new information, and encouraging, since it signaled that Gates understood that he could not hide or minimize his own criminality anymore.

That may have happened in his first interview, on January 29, 2018, when he described diverting income from his DMP work to an account in London.

Having gotten Gates to admit cheating Manafort, Weissmann then turned to what he called a “Jackpot” moment, when Gates described two things: that, at the August 2 meeting in the Havana Room, Manafort had told Kilimnik how he planned to win the campaign (a question Weissmann’s team was obsessed with understanding), and also that Manafort had ordered Gates to send Konstantin Kilimnik polling data throughout the campaign (of which Mueller’s team did not have prior knowledge).

“I learned of that meeting on the same day that it happened,” Gates explained. “Paul asked if I could join him and ‘KK,’ ” as Gates called Kilimnik. “The meeting was supposed to be over dinner, but I got there late.”

I did not look over at Omer, but I knew he was thinking what I was, that it was good that Gates was being forthright so far and confirming what we knew.

“Do you know how long they had already been there?” I asked.

“I don’t, but I think I was fairly late getting there. They were well into the meal.”

“What do you recall being discussed?” Omer asked. “A few things,” Gates explained. One subject was money—certain oligarchs in Ukraine still owed Manafort a considerable amount. Another was a legal dispute between Manafort and the Russian oligarch Oleg Deripaska. We asked Gates if there was any new or unusual information raised about these issues, but he said no—those problems had been percolating for a while. This was not, it seemed, enough of a reason for Kilimnik to come to New York from Moscow.

“What else do you recall being discussed?” Omer asked.

“There was discussion about the campaign,” Gates said. “Paul told KK about his strategy to go after white working-class Democrats in general, and he discussed four battleground states and polling.”

“Did he name any states?” I asked.

“Michigan, Wisconsin, Pennsylvania, and Minnesota,” Gates said.

“Did he specifically mention those states, and did he describe them as battleground states, or is that your description?” I asked.

“No,” Gates said. “Paul described them that way. And, yes, I remember those four states coming up.”

“And he described polling?” Omer asked.

“Yes, but I had been sending our internal polling data to KK all along,” Gates explained. “So this was a follow-up on that, as opposed to something out of the blue.”

“I’m sorry,” I said, “but why were you sending polling data to Kilimnik?”

“Paul told me to send him the data, periodically. So I did. I’d send it using WhatsApp or some other encrypted platform. I assume it was to help Paul financially. I just did what Paul told me to do.”

“KK didn’t have any position on the campaign, right?” I asked.

The 302 from that same first interview shows Gates raised Manafort’s election year meetings with Kilimnik, though he got some details wrong, as I’ll return to. Gates addressed the Havana Bar meeting in his second interview, too, though he continued to tell an implausible story.

In his third interview, Gates attempted to lie about whether he had deleted documents; after a long discussion (still redacted because of an ongoing investigation), Gates admitted “maybe” he had deleted documents after learning of Mueller’s investigation.

In the fourth interview (at which Gates referenced false claims floated in the press to suggest the Mueller investigation had dodgy beginnings), Gates attempted to hide that he had lied to Mercury Public Affairs and Podesta Group about who their Ukrainian client really was, only to admit that “overtime” he realized what he had told them was not truthful; ultimately he admitted that “we got cute” by registering (and getting Podesta Group to register) under the Lobbying Disclosure Act and not FARA. At least as recorded in the 302, that’s the interview where Gates first lied about a meeting Manafort had with Dana Rohrabacher. At the same interview, Gates’ lawyer, Tom Green (who is a friend of Mueller’s), made a statement attributing Gates’ failures to keep certain lobbying documents to DMP archiving policy; in his statement of offense, Manafort admitted he still had those documents when he submitted his lobbying filings.

Weissmann’s book describes catching Gates in the lie about Rohrabacher.

Not long after I reentered the room, our interview with Gates turned to the FARA charges. Gates explained, in a convoluted fashion, that he and Manafort had believed there was no need to register under FARA since they were not personally doing any of the lobbying themselves. Manafort understood now that the law required him to file, Gates said, but he hadn’t understood that at the time.

Nothing about this argument was credible. Manafort was not only a longtime lobbyist but an attorney himself; he had extensive experience navigating the FARA rules and had gotten entangled with the FARA Unit before. (In the eighties, Manafort had a presidential appointment in the Reagan administration, which normally would have prohibited him from also working as a lobbyist, but he’d requested a waiver from that facet of the FARA rules. Interestingly, when his request was denied by a responsible White House attorney, Manafort resigned from his public office in order to continue the more profitable private lobbying work.) We had even uncovered an email from Gates to Manafort that clearly set out the FARA regulations. It was inconceivable that they’d misunderstood the law. Even the factual premise of their purported misunderstanding was untrue: Manafort had personally acted as a lobbyist. We had emails showing that Gates had arranged a meeting for Manafort with the pro-Russia California congressman Dana Rohrabacher in March 2013, shortly after Rohrabacher became chair of the subcommittee that oversaw Ukraine issues.

It was clear that Gates was not being straight with us—not uncommon, initially, with people who try to cooperate; they tell the truth with various degrees of success at first. When we confronted Gates with the emails about the Rohrabacher meeting, Gates simply doubled down, floating an even more absurd claim. He acknowledged that, yes, Manafort and Rohrabacher had met in Washington in 2013, but Gates claimed that he remembered Manafort telling him at the time that the subject of Ukraine had never come up—and therefore, there’d been no reason for Manafort to register under FARA for this activity: It wasn’t actually lobbying.

This wasn’t true, either, and we had evidence to prove it. Gates and Manafort had prepared a memo after the Rohrabacher meeting for President Yanukovych of Ukraine, summarizing the discussion. That memo was one of the many damning documents we’d discovered from Manafort’s condo search. We showed it to Gates: Was everything written here a lie? we asked. He had no response.

Gates’s story was crumbling before our eyes. It was infuriating because it was so counterproductive for everyone, and, on a personal level, displayed a certain contempt for us, and a low opinion of our ability to discern the truth. The good faith we needed, on both sides, was evaporating.

I asked Tom Green, Gates’s counsel, to speak in private, and then decided with him that we should break for the day. I asked Tom to get to the bottom of whatever was happening. All along, Gates had seemed to have trouble when it came to discussing Manafort and his crimes. He was clearly straining to shed his allegiance to his old boss. Still, Gates was discussing his own crimes, and it wasn’t clear why he’d chosen to start lying, so stubbornly, now, about this particular point; the FARA charges weren’t even among the most serious ones we brought.

If there was some explanation, Tom would need to figure it out quickly. The lies we’d just been told were deflating for us, given how hopeful we’d been about Gates’s usefulness as a witness.

Right now, we told Tom, there was no way we could sign Gates up.

Ultimately, Gates would plead guilty to this lie about Rohrabacher as a separate false statement.

The next day, according to Weissmann’s book, Green had seemingly gotten Gates back on track.

Tom came back to our office the next day. “Look,” he said, “my client messed up.”

Gates was scared, he explained. This entire process was wrenching for him. Gates felt pulled between his desire to cooperate and his allegiance to Manafort, and his client had just momentarily broken down. He’d fed us the various cover stories yesterday to avoid implicating Paul on the FARA charges.

In his book, Weissmann doesn’t reflect on the other lies that Gates must have told before his team caught Gates in a lie they could prove was one. But Gates’ earlier testimony does conflict with what he would say later.

And even having recommitted to cooperating, it seems Gates was still shading the truth in those February sessions, at least until he actually pled guilty.

The released 302s show that on February 2, Gates admitted that they should have registered under FARA for the meeting with Rohrabacher. In the same interview, there are five pages discussing a redacted subject that remain exempted under a b7A (ongoing investigation) exemption. Even in that interview, even after admitting he was still on the DMP payroll in the months while everyone was trying to place Manafort on the Trump campaign, Gates offered implausible answers about why Manafort would ask him to provide updates to Oleg Deripaska in the guise of confirming a lawsuit that had been dismissed had been dismissed. Additionally, Gates explained away a briefing for Trump about Manafort’s ties to Ukraine as Manafort’s effort to have Gates prepared to answer press questions about the topic.

Importantly, given later admissions about Gates’ efforts to work the press, when asked about the emails with Kilimnik discussing campaign briefings that had been reported in the press the previous year, Gates claimed he hadn’t spoken to Manafort about those reports. Then, having claimed he and Manafort hadn’t concocted a cover story about them, he claimed that they were references to Deripaska’s lawsuit.

Gates was shown an email thread between Kilimnik and Manafort dated July 7, 2016 through July 29, 2016.

Gates stated he saw some of these email[s] in the news. Gates did not talk to Manafort about the emails when they were leaked to the press. In July 2016, the topic of conversation with Manafort was the Deripaska lawsuit.

But then shortly after, in the very same interview, Gates described talking to Manafort about the emails.

When this email came out in the news, Manafort told Gates, Brad Parscale and [redacted] that the article was “B.S.”

That is, Gates claimed not to have spoken to Manafort about the news, but then described doing just that, and based on that inconsistent claim, asserted that the emails about providing campaign briefings to Deripaska pertained to the lawsuit with the Russian oligarch.

In this interview where Gates was clearly trying to shade the truth, he nevertheless still admitted sending “confidential polling data derived from internal polls” to Kilimnik.

On February 7, Gates had his first interview with another Mueller team, the Russian team led by Jeannie Rhee. The interview largely focused on the role of Dmitri Simes had in Trump’s first foreign policy speech, and touched briefly on the various views people had about sanctions on Russia.

Even though the Mueller team would eventually obtain evidence that Roger Stone tried to influence this process through Gates, Gates never mentioned how he personally released news of the speech through Maggie Haberman as a way to inform Stone about it, effectively using Maggie as a vehicle to communicate with someone, Stone, whom Manafort treated as part of his team while hiding those direct ties.

On April 22, 2016, Maggie Haberman broke the news that Donald Trump would give a foreign policy speech. As she reported, the speech was scheduled to be held at the National Press Club and would be hosted by the Center for National Interest, a group that once had ties to the Richard Nixon Library.

Donald J. Trump will deliver his first foreign policy address at the National Press Club in Washington next week, his campaign said, at an event hosted by an organization founded by President Richard M. Nixon.

The speech, planned for lunchtime on Wednesday, will be Mr. Trump’s first major policy address since a national security speech last fall.

The speech will be hosted by the Center for the National Interest, formerly known as the Nixon Center, and the magazine it publishes, The National Interest, according to a news release provided by the Trump campaign.

The group, which left the Richard Nixon Presidential Library and Museum in 2011 to become a nonprofit, says on its website that it was founded by the former president to be a voice to promote “strategic realism in U.S. foreign policy.” Its associates include Henry A. Kissinger, the secretary of state under Nixon, as well as Senator Jeff Sessions, Republican of Alabama and a senior adviser to Mr. Trump. Roger Stone, a sometime adviser of Mr. Trump, is a former Nixon aide.

That night, according to texts released during his trial, Roger Stone wrote Rick Gates, furious that he had not been consulted about the details of the speech first — though Gates explained that he leaked it to Haberman so Stone would find out. “I cannot learn about a foreign policy speech from the media,” Trump’s rat-fucker said. “This is personally embarrassing. I’m out,” said the advisor who had supposedly quit the campaign almost a year earlier.

Among the things Stone bitched about learning from a leak to Maggie Haberman made partly for his benefit was about the venue. “No detail on venue and no input on content.”

In that same interview where Gates did not disclose Stone’s demand that he get a say on Trump’s foreign policy speeches, he nevertheless reiterated his admission that, “Gates sent Kilimnik both publicly available information and internal information from Fabrizio’s polls.” Gates also provided a description of Cambridge Analytica in the poll mix, though his descriptions of the campaign’s reliance on CA would remain inconsistent through the entirety of his cooperation with Mueller’s team.

Over the next two meetings, things seemed to get closer to finalizing the plea. In an interview on February 9, Gates further elaborated on why he had lied about the meeting with Rohrabacher. Prosecutors also got him on the record on an instance where he gave family members advance information about the acquisition of ID Watchdog, a company he had a stake in, by Equifax. Then in the following interview, Mueller’s team went through one after another crime he may have committed — insider trading (with IDW), bank fraud, bribery, “lack of candor under oath,” including during his 2014 FBI interview and the Skadden Report, campaign fraud, obstruction of justice, all of which would need to be on the record before he pled guilty.

After doing that, prosecutors got Gates on the record about key Mueller-related topics about which they wanted his cooperation, including Stone and Thomas Barrack. In their review of Gates’ description of the August 2 meeting, he confirmed that Deripaska was discussed (though claimed he only knew polling data was shared with the Ukrainian paymasters), and provided a really sketchy explanation of what this was all about:

Gates was asked why Kilimnik referred to Manafort’s “clever plan to defeat” Hillary Clinton in an email. Gates believed this referred to Manafort’s strategy to attack Clinton’s credibility. Gates was asked what was “clever” about this. Gates agreed that it was not clever and he did not know why Kilimnik characterized it as clever.

Gates did not trust Kilimnik. Gates did not know why Manafort was sharing internal polling data with Kilimnik. Gates said Kilimnik could have given the information to anyone.

That’s when the plea deal should have been finalized. But as Weissmann described in his book, it wasn’t.

Gates’ prior attorney (who was also representing someone else against whom Gates would testify), in the guise of demanding past payment, caused a sealed conference to be held before Amy Berman Jackson which alerted the press that he might be cooperating, which in turn generated a great deal of pressure on Gates not to flip (including the involvement of Sean Hannity). From Weissmann again:

But before we received the final versions back, with signatures, the process was disrupted yet again. Gates’s second defense counsel, Walter Mack, called our office unexpectedly and asked what the heck was going on: Was it true that his client was cooperating with the special counsel’s investigation?

It’s hard to convey the strangeness of Walter’s phone call: not only that he didn’t seem to know that Gates was seeking to cooperate, but that he was calling us for answers, instead of asking his own client, or his co-counsel Tom Green. We told Walter that he should direct those questions to Gates or Tom. It was not our place to be an intermediary between defendants and their various attorneys, or to mediate whatever spat Walter had just brought to our doorstep.

I’m still not sure what was going on behind the scenes. Later, Walter would claim a lack of payment from Gates—maybe that had something to do with it. But it was also hard to ignore that Walter happened to be simultaneously representing a man named Steven Brown in a separate case in New York. Brown had enlisted Gates in a fraudulent scheme and therefore could be harmed by information Gates might share if he cooperated.

Regardless, whatever dispute was playing out might have remained irrelevant to our case—except that Walter’s subsequent discussions with Tom apparently unraveled to the point that Walter filed a motion asking to be relieved as Gates’s counsel; this required all of us to appear briefly in court. The short proceeding had very little to do with our office and was under seal at the time, but our mere appearance at the courthouse roused interest from the reporters staking out the building. At the proceeding, the court told Tom to brief Walter on the cooperation progress. Shortly thereafter, someone leaked a story about Gates and his intention to cooperate to the Los Angeles Times.

This media attention was unsettling for Gates—as whoever leaked the story presumably knew it would be. It is hard enough to betray your former mentor, and walk away from your former life, by talking to government investigators. It is more daunting once you’ve seen your decision to cooperate spelled out in a national headline and are forced to discuss it with every friend and family member who calls to ask you if it’s true. Such press also sends out an alarm to those who’d seek to pull Gates back in line and away from the government.

As we feared, once the story ran, Gates got cold feet. Tom and I spoke nearly every day for the next two weeks. He explained that he was still working to convince his client to cooperate, and I expressed bafflement. I’d never seen anything like this before. Gates had passed the point of no return; because he’d already signed the proffer agreement and admitted his criminal liability to all of the charged crimes (and then some), he would be going to trial with effectively no defense if he backed out now. Tom assured me that Gates understood this—but he also said that Gates had lots of people loyal to the White House whispering in his ear.

So prosecutors drew up a second indictment against Manafort and Gates in Virginia. That, plus some advice from Charlie Black, may have been enough to get him back on board.

This time it seemed real. “He’s coming to my office to sign the papers right now,” Tom said.

I was relieved, but still skeptical. I told Tom I’d need to see him and Gates in our office again, to hear Gates explain what the hell had just happened. I also alerted him that we were, at that moment, pushing forward with our indictment in Virginia and, because the courthouse there didn’t allow phones or electronic devices, there was no way for me to call the prosecutors and stop it. Still, I assured Tom, this wouldn’t affect our deal: If Gates proved trustworthy, we’d move to dismiss this second set of charges in Virginia without prejudice and proceed in Washington as planned.

Gates came back into our office the next day. I leveled with him: “I’ve never had this experience before, and I need to understand what happened,” I said. “Why did you balk at the last minute? What’s going on?”

He seemed more vulnerable this time. He explained the intense pressure that Manafort and others were putting on him not to cooperate, how Manafort had told him that money could be raised to defray their legal expenses, and that the White House had their backs—code, Gates knew, to keep quiet and hold out for a pardon.

But, Gates went on, he’d also spoken to Charlie Black. Black had been in business with Manafort years ago, at the firm Black, Manafort, Stone and Kelly, then gone on to become a dean of Republican Party strategists and enjoyed a sterling reputation. (In a masterstroke, it turned out, at a moment when Tom was almost out of ideas, he had recruited Black to reach out to Gates and offer advice.) Black told Gates that, were he in a similar predicament, he would cooperate. Gates wasn’t an old man like Black and Manafort, Black explained; he needed to think about himself and his young family. And moreover, Black insisted, Gates would be foolish to count on a pardon. Trump was too self-absorbed to be dependable.

“I took this all in,” Gates said, “and I decided to follow Black’s advice.” Black’s encouragement seemed to have finally empowered Gates to turn on his old boss. “I know there’s a possibility that Paul will get a pardon in the end, and I’ll have to watch him walk free. But I decided I just have to deal with what I’ve done, and own what I have done.” He’d broken the law, he said. He needed to deal with the consequences now and do right by his family.

The first interviews after Gates pled guilty focused on this process, eliciting descriptions of all the people Gates had spoken to in prior days, including the Black conversation, three conversations where Manfort tried to find money to pay Gates’ legal bills, and others. A pardon came up but no one told him he would be pardoned. Someone also tried to help Gates find what would have been his fourth defense team. Gates explained that he had been told the Nunes Memo and the IG Report on the Hillary investigation would change the climate for his defense.

But after that, things started to move forward. Investigators got a list of all the encrypted comms Gates had used and those he knew Manafort had used. Then they began to turn back to all the Manafort graft Gates would help prosecutors untangle.

On March 1 — the first time prosecutors would return to two key Russia-related issues after Gates pled guilty, the August 2 meeting and Roger Stone — Gates revealed that he had lied to Ken Vogel in 2016 (who was then with Politico) about the Havana Club meeting. Gates started by (improbably) claiming he had never before read the June 19, 2017 WaPo story in which Konstantin Kilimnik provided a cover story for the August 2 meeting. That led him to admit lying to Vogel because he believed they’d get away without disclosing the meeting.

Gates stated that he hadn’t previously read the 6/19/2017 Washington Post article, which contained a statement from Konstantin Kilimnik regarding a meeting held in New York on 8/2/2016. Gates stated that following the 8/2/2016 meeting (which was held at New York’s Havana Club), Gates spoke to Paul Manafort regarding a subsequent Politico story about it. The author of the Politico article, Kenneth Vogel, had emailed a list of questions to Manafort. Manafort forwarded these questions to Gates, who answered “no” to all the questions. Gates admitted that he lied to Vogel with these responses. He had been assured no one would find out about this meeting. Gates stated that Jared Kushner became angry following the Politico article, unsure as to why Manafort would have such a meeting.

Then Gates admitted that Manafort did ask him whether anyone called him about the meeting — something still redacted for ongoing investigation. Effectively, Gates admitted that he understood that Manafort expected him to lie about the meeting.

Remember, during precisely this period in 2016, Oleg Deripaska was playing a double game, making Manafort more vulnerable even while getting him to share campaign campaign information. Perhaps not unrelatedly, much of the next month of Rick Gates interviews in 2018 focused on the Pericles lawsuit that Deripaska used as leverage against Manafort to put him in that more vulnerable position.

A March 21 interview covering things like Roger Stone and Cambridge Analytica remains significantly redacted (including one b7A redaction covering the latter topic added since this 302 was last released).

Something sort of interesting happened in April 2018. On two consecutive days, Gates told a slightly different story about Roger Stone. On April 10, Rhee and Aaron Zelinsky joined Manafort prosecutors Weissmann and Andres. At the beginning of the interview, Gates warned that someone was not happy he was cooperating. In the April 10 interview, Gates provided details about Stone’s ongoing relationship with Manafort that don’t appear, in unredacted form, elsewhere, as well as details of calls and meetings from June (these communications were a focus at Stone’s trial). Gates revealed that the day before Stone’s “Podesta time in the barrel” comment on August 21, 2016, Manafort told Gates Stone had told him the emails would come out (this is consistent with at least one of Manafort’s interviews). One subtext of this interview is that the means by which Lewandowski got fired in June was related to Stone’s bid to get Hillary’s emails.

In the April 10 interview, Gates described a June 15, 2016 phone call he had with Manafort and Stone where Stone said “he had been in contact with Guccifer 2.” The FBI spent much of 2018 trying to track down forensic proof that this had indeed happen.

In the same interview, Gates asserted that Manafort,

always intended to use Stone as an outside source of information. Manafort relied on Stone to do operative work and dig up opposition material. Manafort had conveyed to Gates that Stone was in the hunt for Clinton’s emails prior to the Crowdstrike report dated 06/14/2016 announcement. Stone told Gates and Manafort something major was going to happen and that a leak of information was coming.

All told this may be Gates’ most revelatory interview about Stone.

But an April 11 interview, which covers the same issues (and at which Rhee was not present), seems to back off the claim that Manafort was pushing Stone to go get the emails. “[N]o one told Stone to go get” the emails Assange had. In a separate interview that same day (without the Stone team), Weissmann and Andres asked Gates about contacts he had had, though that seems to refer to contacts during 2017. On April 17, an interview seemed to focus on something Manafort had done.

Prosecutors kept asking about his contacts during the investigation (as they did with Mike Flynn during the same period). On May 3, Gates described with whom he had contact since his last interview (on April 19). That included two conversations with Maggie Haberman. Later in May, Gates was interviewed about his and Manafort’s response to an July 2016 AP report on Manfort’s Ukraine graft. In July, Gates revealed that, prior to pleading guilty, Manafort had warned Gates against his attorney Tom Green. In different July interview, Gates also described being in contact with people about a NYT report on him.

Gates’ plea deal required he get prior approval before he revealed any information derived from his cooperation to a third party. But he appears to have remained in touch with the NYT anyway.

In August, investigators grilled Gates about a topic that they hadn’t known about but which he had admitted on the stand while testifying in Paul Manafort’s trial: That he may have submitted a false expense report to the Inauguration Committee, replicating a theft that he had earlier used against Manafort. That discussion remains redacted under b7A redactions. It was not addressed in the government sentencing memo for Gates. It’s one potential crime Gates admitted only after entering into the plea agreement.

During fall interviews, Gates addressed additional investigative interest (such as the spin-off prosecutions arising from Manafort’s graft). He provided an interview on Stone on October 25 (the day before Steve Bannon would be interviewed and one of his last interviews before the election) that generally accorded with past testimony. And he did a few interviews pertaining to Kilimnik (parallel to the time when Manafort was being questioned about the same topic), including one where he reiterated that,

GATES understood that the polling data he was sending to KILIMNIK would be given to LYOVOCHKIN and DERIPASKA. GATES believed MANAFORT would have sent the polling data to LYOVOCHKIN as part of his efforts to get money out of Ukraine. GATES believed MANAFORT would have sent the polling data to DERIPASKA [redacted]. GATES opined that MANAFORT believed that Trump’s strength in the polls would be advantageous to him.

GATES provided KILIMNIK a mix of public polls and the campaign’s Fabrizio polling data based on what MANAFORT thought looked good. The Fabrizio polls were more reliable because they used cell phone polling data.

GATES provided certainly weekly data automatically to KILIMNIK. MANAFORT and GATES would send additional polling data on an ad hoc basis. On multiple occasions, GATES and MANAFORT would receive a poll and MANAFORT would tell GATES to send it to KILIMNIK based on the poll’s content.

That is, while there were conflicting details, after the time Gates started cooperating, his story about sharing polls repeatedly (though not always) acknowledged that Deripaska was receiving the polls. He consistently said the polls included non-public data (though his excuses for doing so varied from interview to interview and never offered a plausible explanation). And while he shifted the timeline earlier during the first interviews where he was telling other lies, after that point Gates never disputed that Manafort provided a more detailed explanation of his campaign strategy to Kilimnik, and he admitted his data sharing continued at least through the time Manafort left the campaign on August 19.

Gates’ description of what happened after that had some variances, as did his description of what polls were included in the sharing — but they always included Fabrizio’s polls, which, based on past work, they were the ones with which Kilimnik would be most familiar.

On November 7, the day Jeff Sessions would be fired, making way for Billy Barr to be nominated and confirmed, Gates did two interviews without his attorney, Tom Green, present.

There was, among the released interviews (there are about 60 that have been released, plus some other identified 302s that haven’t been), just one more in 2018.

Then, in advance of a February 15, 2019 interview, Gates’ attorney reached out to correct a claim that prosecutors had made as part of Manafort’s breach hearing. The important correction was that “GATES did not recall bringing [a document he had printed out earlier that day for a planning meeting] to the [Havana Bar] meeting. Gates affirmed, however, that,

At the 08/02/2016 meeting with GATES, MANAFORT, and KILIMNIK there was a much more detailed discussion of internal polling data compared to the data GATES sent to KILIMNIK via WHATSAPP. At the dinner meeting, GATES, MANAFORT, and KILIMNIK discussed internal polling from FABRIZIO which included battleground states.

[snip]

GATES recalled MANAFORT discussed internal polling from other sources including CAMBRIDGE ANALYTICA. The information provided in this meeting by MANAFORT to KILIMNIK was based on internal information and polls; it was a synthesis that included internal polling data.

In addition to the major correction regarding the document he printed out, however, Gates altered his testimony from many (though not all) of his previous interviews in one key way. At an interview the day after Billy Barr was confirmed as Attorney General and as Mueller’s team were already drafting their report, Gates reported that,

DERIPASKA was also in the mix. GATES recalled, however, that the letter to DERIPASKA was related to MANAFORT’s and DERIPASKA’s legal dispute. GATES does not specifically know if MANAFORT sent internal polling data to DERIPASKA.

That is, in his first interview after Barr became Attorney General, Gates backed off a claim that (at least per the 302s) he had made as recently as late October, that he knew he was sending Deripaska the polling data.

Then, on February 22, Gates had a last interview, by phone (there must have been one or several in advance of the Stone and Greg Craig trials). For a third time, his attorney — Robert Mueller’s friend Tom Green — was not present.

The topic of the interview, like so many before, was whom Gates had had contact with about the investigation. But of course, this time, key details of the investigation, especially about sharing polling data with Kilimnik, had been revealed by one of those redaction failures that sometimes happen at opportune times. Gates described someone “alert[ing] GATES to the allegation discussed above,” but claimed “their communication had no substance.” Before and after that, though, redacted answers that Gates offered seemed to deny speaking to anyone about the allegations, whether the inquiry pertained to comparing notes about answers with others involved — as Gates had denied then disproved happened in summer 2017 — or lying to the media to minimize damage — as Gates had admitted lying to Ken Vogel about the very same allegation.

And in spite of the fact that Weissmann warned Gates at least once not to say anything about his communications with Green, Gates ended the interview by addressing a claim his attorney seems to have made. “GATES stated that his counsel GREEN had been mistaken in indicating to the Special Counsel’s Office that GATES,” with a long paragraph describing what Green had told prosecutors but that Gates, with Green absent, was denying.

It turns out, though, that the demonstrably false story that NYT told resembled the ones Gates told in interviews where he was also lying about Rohrabacher, a year earlier. The NYT claimed that Gates had only transferred the data during the spring, not in August. It claimed “most of the data was public.” And it claimed Gates had only shared the data with two Ukrainian oligarchs, and not Oleg Deripaska.

Both Mr. Manafort and Rick Gates, the deputy campaign manager, transferred the data to Mr. Kilimnik in the spring of 2016 as Mr. Trump clinched the Republican presidential nomination, according to a person knowledgeable about the situation. Most of the data was public, but some of it was developed by a private polling firm working for the campaign, according to the person.

Mr. Manafort asked Mr. Gates to tell Mr. Kilimnik to pass the data to two Ukrainian oligarchs, Serhiy Lyovochkin and Rinat Akhmetov, the person said. The oligarchs had financed Russian-aligned Ukrainian political parties that had hired Mr. Manafort as a political consultant.

In his first interview, Gates claimed that the two Kilimnik meetings happened in spring, March and May. He further claimed the last time he spoke to Kilimnik was in May 2016, not that August meeting nor later attempts to craft a cover story for the Skadden Arps intervention. He offered another reason entirely for the meeting than sharing campaign data: Yanukovych wanted Manafort to run his next campaign.

In his second interview, Gates was told clearly the meeting at the Havana Bar happened in August, but then, when he began to admit to sharing campaign information, suggested Manafort had shared “Manafort’s plan for the primaries.” When reminded again that the meeting happened in August, long after Trump sealed up the nomination, Gates still persisted by claiming “they must have talked about the delegate issue and Manafort’s plan to get Trump enough delegates to win the nomination.” This interview appears to be the first time Gates offered the explanations he settled on for sharing campaign strategy — to get the Ukrainians to pay their bills and to get Deripaska to drop his law suit. But when investigators asked the obvious question — why Manafort wanted to share campaign information from someone he thought was Russian intelligence Gates claimed none of this was secret.

Gates was asked why Manafort would provide strategy information on the Trump Campaign to someone he thought was Russian Intelligence. Gates stated that the information on the battleground states and strategy was not secret.

This comment appears between passages redacted for ongoing investigation, so it’s not really clear whether the “he” here means Gates (who later would admit he suspected Kilimnik was a spy) And yet, he and Manafort spent a good deal of time obfuscating about doing just that.

Back in January 2018, before he started getting caught in deliberate lies, Gates was telling stories that shifted the time and the substance regarding why he and Manafort shared campaign data with Konstantin Kilimnik. And then, just as the Mueller team started preparing to write their conclusions, the NYT published a story that adopted the same time shift and subject obfuscations.

And in between, Rick Gates shared details repeatedly about how he used Maggie Haberman and Ken Vogel.

The Still Active Konstantin Kilimnik Investigation

The government just released reprocessed versions of the Sam Patten 302s that it released in January 2020 as part of BuzzFeed’s FOIA for the Mueller interviews, with just one new disclosure (evidence that Steve Bannon knew of the DNC email release in advance). As a reminder, Sam Patten was the business partner of Konstantin Kilimnik who pled guilty in 2018 for FARA violations.

That DOJ released 40 pages in almost exactly the same form as it previously released them is not unique to Patten. DOJ likewise released George Papadopoulos, KT McFarland, and Erik Prince’s 302s with almost no new disclosures. Effectively, DOJ used its monthly release to BuzzFeed as an obnoxious way of conveying that, except for details showing that even Jerome Corsi was a cover story for Stone’s activities in 2016, DOJ isn’t going to release any more details about the Mueller investigation.

But the heavily redacted 302s are actually of significant interest. That’s because between the time these 302s were first released in January 2020 and now, the Senate Intelligence Committee released its own Russian investigation report, in August 2020. That report relied heavily on the 302s that remain so heavily redacted.

In fact, the declassification of the SSCI Report conducted by ODNI under John Ratcliffe at a time he was declassifying a slew of other documents to help Trump disclosed a great deal of material that, given the recent DOJ release, DOJ claims remain sensitive. The great majority of these passages — and indeed the majority of what remains redacted — were redacted in part using a b7A redaction, indicating an ongoing investigation. I’ve put in the materials that appear in the SSCI Report that remain redacted in this week’s release below, marking with italics what DOJ has released in the 302s.

Effectively, then, this structures the information already released by SSCI in such a way to show how the investigation of Patten — and through him, Manafort and Kilimnik progressed. It also shows what DOJ claims remains sensitive.

Patten interviewed in January 2018 with SSCI and lied to hide that he had used a straw donor to buy Inauguration tickets for Kilimnik and one of the Ukrainian oligarchs who was paying Manafort. Patten seems to have admitted his error as soon as Mueller got involved, because his first Mueller interview, on May 22, 2018, effectively truthfully admits to the crime he would eventually plead guilty to. But that 302 also describes what he learned of Kilimnik’s two trips to the US during the campaign (most of the details about the first one remain redacted). It describes how Patten let himself discount warnings that Kilimnik was a Russian spook, and also reveals how he continued to keep Kilimnik in the loop about the FBI investigation of him.

Heavily redacted passages seem to describe the relationship between Oleg Deripaska and Kilimnik, as well as Deripaska’s business in other countries.

A description of what bloggers and journalists Patten paid remains heavily redacted; the implication is that these are overseas, but given the career track of certain American journalists, the notion that Kilimnik or his bosses would buy off the press remain of interest. Discussions of Patten’s communications — many of which are surely included in unredacted form in the SSCI Report — remains entirely redacted.

Patten’s second interview, on May 30, 2018, provides a lot more details that would be pertinent to Manafort. Of particular interest, Kilimnik made a real effort to get Patten a job in the Trump Administration, an offer that Patten declined (he has publicly said he voted for Hillary in 2016). And Kilimnik pressed similar Ukrainian policies with Patten as he did with Manafort. His efforts to cultivate the two of them, it seems clear, was significantly an effort to carve up Ukraine for Russia.

A September meeting would have been prep for the Manafort trial that was due to start the next week.

And then after Mueller declared that Manafort had lied while he pretended to cooperate, Mueller brought Patten back — with a non-Mueller AUSA — for a substantive interview, much of which remains redacted. It’s clear that even then, Mueller was still trying to figure all that Kilimnik had done during his May 2016 trip to the US.

On the day Patten first appeared before the grand jury, Kilimnik texted him to try to get him to lie about the Inauguration tickets. And after Patten’s guilty plea was made public, Kilimnik offered to get one of the oligarchs to pay his bills. Parts of these documents that remain redacted show how Kilimnik was attempting to undermine the Russian investigation in other ways.

Among the things the 302s show is how Kilimnik was handling Patten — and presumably was also handling Manafort. For example, Patten used some of the same operational security that Manafort did with Kilimnik. Of particular interest, through at least the Inauguration, Kilimnik was lying to Patten about remaining in touch with Manafort. He was keeping his efforts with these two men compartmented.

The government’s sentencing memo in this case describes that, in addition to Manafort, Patten cooperated in “a number of other criminal investigations.”

Specifically, Patten was a potential witness in the case of United States v. Manafort, No. 17-cr-201 (ABJ), and he was willing and able to testify about Paul Manafort’s work in Ukraine for the Opposition Bloc and related matters. To prepare for his anticipated testimony, Patten met with prosecutors before trial and he provided documentary evidence supporting his expected testimony. Ultimately, because Manafort pled guilty in that case, Patten’s testimony was not needed. In addition, due to his prior work and experience as a political consultant overseas, Patten has served as a valuable resource for the government in a number of other criminal investigations, providing helpful information about additional individuals and entities

Between the sentencing memo and a May 2020 memo in support for early termination of his probation, the government referred to at least two meetings are not included in these 302s, with one taking place on April 17, 2020, not long before the FBI offered a $250,000 reward for Kilimnik in June 2020 and just a few months before Amy Berman Jackson first moved towards unsealing the Manafort breach documents in July 2020.

So one of those other investigations was likely into Kilimnik, suggesting the government conducted not just a counterintelligence investigation into him, but a criminal investigation into his role in 2016. But there’s virtually no chance that Kilimnik will ever wander into a country where the US can extradite him. Which will make for an interesting explanation when BuzzFeed asks why its reprocessed 302s continue to redact information that was declassified last year.

January 5, 2018: Patten SSCI interview

March 20, 2018: Attempted FBI interview

[release]

May 22, 2018 Mueller interview

Weissmann present

[first release]

[second release]

Presidential Inaugural Committee

In early January 2017, Kilimnik asked Patten to obtain tickets to the inauguration through the Presidential Inaugural Committee (PIC). According to Patten, Kilimnik made this request on behalf of Lyovochkin.623 Patten eventually obtained tickets through a straw purchaser, intended for Kilimnik, Lyovochkin, and Vadim Novinsky, a Ukrainian businessman and politician affiliated with the OB.

[snip]

Patten eventually obtained tickets through a straw · purchaser, intended for Kilimnik, Lyovochkin, and Vadim Novinsky, a Ukrainian business man and politician affiliated with the OB.6

[snip]

That evening [January 19], Patten, Kilimnik, Lyovochkin, and a pollster who had worked with Kilimnik and Patten in Ukraine had dinner together

On January 19, Patten, Kilimnik, Lyovochkin, and a pollster had dinner together.

That evening, Patten, Kilimnik, Lyovochkin, and a pollster who had worked with Kilimnik and Patten in Ukraine had dinner together.6

FARA

Some discussion of work in Ukraine. Heavily redacted, including b7A.

Konstantin Kilimnik

Background on ties at IRI.

Patten told the SCO that after he had left IRI, an IRI employee who worked at IRI’s Belarus desk, Trig Olson, made a claim that Kilimnik leaked information to Russian intelligence.1061 Olson based his assessment on a situation where information provided in a meeting that Kilimnik had attended was leaked to Russian intelligence.1062 Patten ultimately confronted Kilimnik about Olson’s allegation, and Kilimnik denied he was the source of the leak.1063

Patten said he was skeptical of Olson’s allegations about Kilimnik’s ties.to Russian intelligence in part because he believed Olson had a score to settle with Manafort because Olson had been fired from the McCain Campaign by Rick Davis, Manafort’s former business partner.

Kilimnik’s two trips to the US during the campaign

Patten wrongly believed that Kilimnik had flown to NY to meet with Manafort.

Patten was under the impression that Kilimnik may have traveled using private air travel arranged by Manafort, potentially on the Trump-owned plane.

Kilimnik told Patten that John Kerry’s Chief of Staff, Jonathan Finer, was “in space” at a meeting on May 6, 2016

Kilimnik was frustrated by this meeting, stating that he met “Finer or whatever the fuck is his. name. In total space.”

Patten said he understood “[i]n total space” to mean “in outer space” and.therefore not well informed on issues involving Ukraine.

August 2

At the meeting, Manafort walked Kilimnik through the state of the Trump Campaign, including its internal polling data, and Manafort’s plan to win

[snip]

This polling data included internal Trump Campaign polling data from Trump Campaign pollster and longtime Manafort associate Anthony Fabrizio.

[snip]

Kilimnik told Patten that at the New York cigar bar meeting, Manafort stated that they have a plan to beat Hillary Clinton which included Manafort bringing discipline and an organized strategy to the campaign. Moreover, because Clinton’s negatives were so low [sic]-if they could focus on her negatives they could win the election. Manafort discussed the Fabrizio internal Trump polling data with Kilimnik, and explained that Fabrizio ‘s polling numbers showed that the Clinton negatives, referred to as a ‘therm poll, ‘ were high. Thus, bas~d on this polling there was a chance Trump could win..

SSCI interview

Unredacted includes lies about FARA and PIC.

Additionally, Sam Patten, another key witness in the investigation due to his close relationship with Kilimnik, similarly engaged in conduct designed to obfuscate his relationship with Kilimnik. Patten withheld and deleted documents related to Kilimnik that were relevant to the Committee’s investigation.

Oleg Deripaska

Boyarkin

According to Patten, Kilimnik has met with Deripaska and Deripaska associates, including Boyarkin. Patten understood that Kilimnik was in continuous contact with Deripaska and his inner circle. FBI, FD-302, Patten 5/22/2018.

[snip]

Patten told the FBI that he recalled having a Skype call with Boyarkin and Kilimnik on May 24, 2015, about the Guinea project.1004 Patten told the Committee during his interview that he did not know a “Viktor Boyarkin.”1005 Patten later told the SCO that he did not lie to the Committee because at the time he only knew Boyarkin as “Viktor,” a Russian associate of Kilimnik’s who worked for Deripaska.1006

FBI, FD-302, Patten 5/22/2018. As noted above, Patten told the SCO that the proposals he worked on with Kilimnik related to Guinea, Kazakhstan, and others were for Deripaska. FBI, FD-302, Patten 5/22/2018

Viktor Yanukovych

Payments to Journalists/Bloggers

Largely b7A

Specific communications

Largely b7A

Steve Bannon (including advance knowledge of DNC release)

Largely unredacted

FBI visits

Some unredacted, including Patten telling others of FBI

During the execution of a search warrant on Patten’s home, Patten used his wife’s phone to send a text message to Kilimnik and then deleted the message:

[snip]

Patten told the FBI that after an initial visit to his home by what Patten believed to be FBI agents, he deleted emails, some of which pertained to work he had performed for Cambridge Analytica in Mexico because he had been told that his work there was “off the books.” FBI, FD-302, Patten 5/22/2018.

[Redacted (Kilimnik undermining RU investigation)]

One long B7A paragraph

Patten used foldering with Kilimnik.

Patten also engaged in foldering with Kilimnik.

May 30, 2018 Mueller interview

[first release]

[second release]

Andrew Weissmann present

2007

Half unredacted, discussion of rumors that Akhmetov was providing funding to Yushenko

Patten’s first engagement in Ukraine

Partially redacted, discussion of what Manafort was doing at same time

Patten wasn’t sure how all the bills got paid.

Patten, whom Kilimnik recruited to come to Ukraine in 2014 to assist the OB and who reported to Kilimnik, recalled that although Kilimnik worked from an office in Manafort’s firm in Kyiv, it was unclear to Patten whether Lyovochkin or Manafort was paying Kilimnik.213

213 Patten stated that he was hired by, paid by, and reported to Lyovochkin through Kilimnik for his 2014 work in Ukraine.

[snip]

Patten recalled one occasion during his first meeting with Manafort in Kyiv where Manafort had spoken highly of Kilimnik and called Kilimnik a “powerful little dude.”

2015

Patten described some contention over whether he worked for Lyovochkin or for Vitali Klitschko.

Patten’s Ukraine work with Kilimnik in support of Lyovochkin is consistent with Gates’s characterization. In early 2015, Vitali Klitschko, a former opposition leader during the Maydan protests, hired Patten to assist in his Kyiv mayoral campaign. Kilimnik arranged the meeting where Klitschko hired Patten. Lyovochkin, who was ostensibly not a part of Klitschko’s campaign or political party, paid Patten from an offshore account Lyovochkin controlled. Patten recalled one 2015 meeting with Klitschko and Kilimnik in which Klitschko kicked Kilimnik out of the meeting and told Patten that Patten worked for him (Klitschko) and not Lyovochkin. Klitschko told Patten that he kicked Kilimnik out because Kilimnik was too close to Lyovochkin. Patten, who worked in support of Klitschko for approximately a year, was paid $800,000—solely by Lyovochkin.

[redacted information about scope of work, including Guinea]

Redacted

Redacted

Redacted

2016 Current US policy to the Ukraine and Russia

Unredacted discussion of recent work

Manafort remained in the background of the campaign after being fired.

Kilimnik told Patten that Manafort stayed in the background, but still maintained contact and stayed close to Trump.

Kilimnik tried to convince Patten to get Manafort to get him an Admin job

Patten said he declined Kilimnik’s offer

[snip]

Kilimnik specifically sought to leverage Manafort’s contacts with the incoming Trump administration to advance Kilimnik’s agenda, particularly with regard to the Ukraine plan. Kilimnik thought that Trump could solve Ukraine’s problems because of Manafort’ s connection to Trump.

[snip]

After the U.S. presidential election, Kilimnik and Patten began developing ideas for peaceful settlement to the conflict in eastern Ukraine. Kilimnik and Patten drafted a paper outlining the plan, which was to decentralize power, limit Kyiv’s role in running the country, engage in direct bilateral talks between Poroshenko and Putin, and focus on local elections.763 The plan included having the United States serve as an honest broker and work directly with Russia at the highest levels to resolve the conflict.764

[snip]

Kilimnik used his work with Patten to test the viability of a Yanukovych return. Patten recalled conducting at least one poll with Kilimnik in 2017 as part of their ongoing work for the OB.767 In mid-2017, Kilimnik and Patten organized a survey at Kilimnik’s urging to, in part, discreetly measure voters’ openness to Yanukovych’s return768 According to Patten, Kilimnik thought that if Yanukovych returned to politics in eastern Ukraine, it would help the OB because Yanukovych would bring strong leadership back to the OB.769

Patten recalled that the poll tested a wide variety of issues, but included questions designed to test voters’ sentiment ofYanukovych. FBI, FD-302, Patten 5/30/2018. See also Email; Kilimnik to Patten and Garrett, July 11, 2017 (SSC! 2017-4885-3-000054) (responding to focus group testing, Kilimnik asked if respondents were “open to Yanuk return” which he believed was an “important question.”).

2017

Privacy-related redactions on recent work

Presidential Inaugural Committee

About half redacted

This section includes reference to “VY” having a Brussels office, which a later question makes clear he didn’t know was the Hapsburg Group

Hapsburg Group

Patten unfamiliar

Alex Van Der Zwaan

redacted

May 31, 2018 Grand Jury appearance

Kilimnik texts Patten about his grand jury testimony

[first release]

[second release]

FBI Agent takes pictures of something on Patten’s phone, almost certainly texts from Kilimnik about the grand jury testimony.

Texts from Kilimnik

On May 31, 2018, the day Patten was scheduled to testify before a grand jury, Kilimnik asked Patten if there was “anything I can help you with on the GJ [grand jury].”1095 Patten expressed concern to Kilimnik about his testimony related to purchasing inauguration tickets for Lyovochkin and money from Lyovochkin transferred to Patten for that purpose. 1096 Kilimnik offered Patten an “explanation,” suggesting to Patten a fabrication he could offer to the grand jury:

How about they sent it to us for a poll they wanted to do, and because they (as they typically do) canceled the poll you decided to use it for inauguration tickets. Do your client a favor. One failed to come, no one actually attended other than you and SL. Business development for us. 1097

June 6, 2018 Mueller interview

[first release]

[second release]

Weissmann present

[Redacted (consulting and FARA)]

Largely b7A

Department of State

Short section, b7A

June 12, 2018 Mueller interview

[first release]

[second release]

Weissmann present

Short FBI phone interview, redacted topic.

Patten and Kilimnik exchanged a December email after the one Kilimnik sent to Manafort

Patten may have written a one page Iraq solution proposal and provided it to Kilimnik, which Patten assumed would be provided to Manafort. At the time of the December email, Patten knew that Kilimnik was in Moscow and it was possible that Kilimnik shared this email with someone in Russia, but Patten did not know if Kilimnik did share it

August 31, 2018 Guilty plea

Guilty plea

September 6, 2018 Mueller interview

[first release]

[second release]

Weissman and Rhee present

Public update on restricted Facebook page

Review of

  • A document on travel information; Patten describes that someone called and informed him all his work had been for Opposition Block
  • A document about a parallel campaign to one Manafort and Gates had been running in Ukraine
  • A document pertaining to Petro Poroshenko
  • A document showing someone editing a document Patten had written
  • Possibly another document
  • A document about the political persecution of the Party of Regions members for advice on media campaign
  • Another document on work that was not reported under FARA
  • A response to a news article Patten sent
  • A 2017 BGR email on which he had put a FARA notice

Somewhere Lyovochkin get mentioned:

Patten further noted that Lyovochkin had previously managed Manafort’s account for Yanukovych.

September 19, 2018

[first release]

[second release]

Attorney proffer of screenshots of a PDF, almost certainly of Kilimnik’s offer to pay Patten’s legal fees.

In September 2018, Kilimnik offered to arrange for Patten to receive money from Lyovochkin even after Patten’s work for Lyovochkin had ceased and Patten’s cooperation with the Government was public. Kilimnik asked Patten about the possibility of”sending a post-factum invoice for lobbying to SL.” Kilimnik further stated that SL is “ready to do it” as compensation for Patten’s legal costs. Text Message, Klimnik to Patten, September 16,201

November 27, 2018 Mueller interview

[first release]

[second release]

Weissmann and anon AUSA present

Redacted

Redacted

Outreach to Mike Flynn

Patten’s latest contact with redacted

Ukraine

Miscellaneous

7 redacted questions (possibly whether he knew someone or specific documents), all but one b7A

Patten explained that he was unaware of any wedding, which is what Kilimnik said he was doing on his trip to the US in May 2016.

Patten, who was in contact with Kilimnik during his trip and met with him while he was in the United States, was unaware of any wedding.

[snip]

Patten understood that the main purpose of Kilimnik’s trip was to meet with Manafort.

[snip]

Patten recalled that Kilimnik stayed with him for one night during one of his trips to the United States, and later believed it might have been this trip.

More details around the inauguration.

The day of the inauguration, Patten, Lyovochkin, and Kilimnik had lunch in Alexandria, Virginia.627 Kilimnik told Patten that he was nervous that he would see Manafort because Kilimnik knew that Manafort resided in Alexandria.628 Patten believed Kilimnik was trying to distance himself from Manafort in furtherance of his work in Ukraine.629 Unbeknownst to Patten, Kilimnik and Lyovochkin met with Manafort at the Westin in Alexandria during this trip.630

[snip]

According to Patten, he and Kilimnik watched the inauguration in the lobby of the Mandarin Oriental hotel in Washington; D.C., where Patten understood Kilimnik was staying.632 That evening, Patten and Lyovochkin briefly attended an inaugural ball .. Kilimnik told Patten that he was staying in his hotel room.633

Ukrainian peace plan

Patten recalled Kilimnik discussing exiled former PoR members living in Moscow-including Yanukovych-whom Kilimnik collectively called “the refugees.”765 Kilimnik was interested in these refugees and their possible return to politics in Ukraine.766

[snip]

The poll revealed that Yanukovych was not viable at that time.770 While Patten was.aware thatKilimnik would periodically mention Y anukovych, Patten claimed he never got the sense that Kilimnik was trying to push Yanukovych’s retum.771 Patten also believed that Kilimnik was attempting to distance himself from Manafort in furtherance ofKilimnik’s own ongoing work in Ukraine.772

April 17, 2020 post-Mueller DOJ interview

Later meeting with DOJ.

The Significance of Tom Barrack’s Obstruction and False Statements Charges

I want to expand on something I said in this post about Tom Barrack’s charges: the obstruction and false statements charges against Trump’s big fundraiser make this case much more solid than many in the press (usually the same people claiming it’s a FARA case) are suggesting.

 In a June 20, 2019 interview with the FBI, the indictment alleges that Barrack lied about whether:

  1. Al Malik asked Barrack to do things for UAE
  2. Barrack downloaded an encrypted app to use to communicate with MbZ and other Emirati officials
  3. Barrack set up a meeting between MbZ and Trump and, generally, whether he had a role in facilitating communications between them
  4. He had a role in prepping MbZ for a September 2017 meeting with Trump

Curiously, the detention memo mentions two more lies that aren’t included in the indictment:

(1) writing a draft of a speech to be delivered by the Candidate in May 2016; (2) reviewing a PowerPoint presentation to be delivered to senior UAE officials on how to increase the UAE’s influence in the United States with his assistance;

In any case, this structure makes it easy to hold Barrack accountable at least via his lies to the FBI, and that he allegedly lied is powerful evidence that the full scope of the relationship was meant to be secret.

The headline charges are the foreign agent and conspiracy charges. But in addition to those charges, Barrack is also charged with obstruction and false statements. Most likely, if he were found guilty only on those charges, he’d face less time than from the foreign agent charge, but he’d still face prison.

Here’s what we know of the timeline: According to the Rashid Al Malik complaint, he was interviewed by the FBI on April 5, 2018. If the Intercept’s report that Mueller’s team conducted this interview is correct, this is likely his almost entirely redacted 302 (for an investigation that was ongoing in September 2020). Three days earlier, someone represented (as Barrack was) by Steptoe and Johnson had a pre-grand jury interview led by Zainab Ahmad that Andrew Weissmann joined while in progress. On April 8, three days after his own interview, Al Malik left the country and has been gone ever since.

In early 2019, Mueller’s team started handing off referrals, which may be why, in February 2019, the FBI sent subpoenas to Colony Capital.

In or about February 2019, Federal Bureau of Investigation (“FBI”) special agents served federal grand jury subpoenas on several individuals employed by or associated with Company A, including individuals that reported directly to the defendant THOMAS JOSEPH BARACK, in connection with the criminal investigation of the activities of the defendants RASHID SULTAN AL MALIK ALSHAHHI, BARRACK, and MATTHEW GRIMES.

Following the service of these federal grand jury subpoenas, the defendant THOMAS JOSEPH BARRACK volunteered to speak with FBI special agents. On or about June 20, 2019, FBI special agents interviewed BARRACK, in the presence of counsel, regarding the activities of the defendant RASHID SULTAN AL MALIK ALSHAHHI, BARRACK, and the defendant MATTHEW GRIMES. At the outset of the interview, United States government officials advised BARRACK, and confirmed that he understood, that lying to federal agents is a federal crime. Thereafter, during the course of the interview, BARRACK knowingly made numerous materially false statements relating to the activities of ALSHAHHI, BARRACK, and GRIMES.

At the time, of course, Barrack’s close ally was still President and Bill Barr was newly installed at the helm of DOJ, working hard to cover up the true results of the Mueller investigation and even beginning to take steps to protect Rudy Giuliani from his own foreign agent charges. Why wouldn’t Barrack lie?

Interestingly, the obstruction charge against Barrack suggests others were part of this.

On or about June 20, 2019, within the Eastern District of New York and elsewhere, the defendant THOMAS JOSEPH BARRACK, together with others, did knowingly, intentionally and corruptly obstruct, influence and impede, and attempt to obstruction, influence and impede, an official proceeding, to wit: a Federal Grand Jury.

In any case, Barrack is well-resourced and he’ll no doubt offer some solid defenses here, possibly including that he had earlier told the truth about some of this stuff, and so, any inaccuracies in his 2019 interview weren’t material.

But assuming the FBI didn’t charge a billionaire with false statements without having him dead to rights on the charges, by June 2019, the FBI foreclosed several of the defenses that Barrack might offer going forward: that he was doing all this as a legal commercial transaction (which is exempt from the foreign agent charges) or that he wasn’t really working for UAE, he just thought the alliance really served US interests and indulged the Emiratis by referring to MbZ asboss.” By denying very basic things that the FBI appears to have records for, then, Barrack made it a lot harder to argue — in 2021 — that’s there’s an innocent explanation for all this.

Five days after Barrack’s interview, the FBI obtained an arrest warrant for Al Malik, one that made Al Malik look like the bad guy here, taking advantage of poor Tom Barrack and poor Paulie Manafort.

But then DOJ kept investigating Barrack’s role in all this. According to CNN, before this time last year, EDNY prosecutors believed they had enough to add Barrack to the charges, but the appointed US Attorney “expressed misgivings.”

Federal prosecutors in Brooklyn investigating Tom Barrack, a prominent ally to former President Donald Trump, for allegedly violating foreign lobbying laws had enough evidence to bring charges last year, but held off doing so until the arrival of the new presidential administration, according to people briefed on the matter.

Prosecutors wanted to move forward on the case and believed they could obtain an indictment, one source familiar with the matter said. The source said the investigation was mostly done well before the time period when prosecutors are discouraged from advancing politically sensitive matters ahead of an election.

But two sources tell CNN the US attorney in Brooklyn at the time, Richard Donoghue, expressed misgivings about the case. It’s unclear if he delayed the case outright or if prosecutors chose not to move forward at the time knowing the US attorney would not support it.

Then-Attorney General William Barr was also known inside the department to have reservations, in general, about foreign lobbying cases, which the Justice Department has struggled to prosecute in the past.

A spokesman for the Brooklyn US attorney’s office declined to comment. [my emphasis]

This is a hugely important report, but it also lets the Barr DOJ off easy. That’s true, first of all, because this is not a foreign lobbying case (this is one of the many reasons I harp on the import of getting the charge right here). DOJ hasn’t struggled to prosecute 951 cases, though at the time prosecutors deferred these charges, Barr was busy letting Mike Flynn blow up the Bijan Kian case, which included both FARA and 951 in the conspiracy charge, along with 951 separately, but which charged only Ekim Alptekin with false statements. Had Mike Flynn held to the terms of his plea agreement, that case likely would have been a far easier guilty verdict.

What happened last year, though, is that after EDNY prosecutors had continued to investigate for a year after discovering that Barrack was in no way the innocent victim of accused foreign agent Rashid Al Malik and were prepared to try to hold Barrack, as well, accountable for a pretty dramatic undisclosed role in setting a pro-UAE foreign policy, Richard Donoghue, faced with evidence that one of Trump’s closest advisors wasn’t telling the truth about why he was doing the things he was doing (or even, that he was doing them), “had misgivings.”

Or maybe he had misgivings about how Trump and Barr would respond if he approved this.

In fact, all this must have happened more than a year ago, because on July 10, 2020, Barr announced he was swapping Donoghue for Seth DuCharme, his DOJ fixer. This CNN report doesn’t explain why this didn’t get charged under DuCharme, but maybe that’s the point.

So Donoghue — or maybe DuCharme — left all the repercussions to US foreign policy of Barrack’s undisclosed actions earlier in the Trump Administration remain in place.

Frankly, it’s not surprising that Donoghue and DuCharme — who were, at the time, also in charge of limiting any damage to Rudy for his undisclosed influence-peddling — didn’t approve this prosecution. That’s their job.

What may be the most interesting detail is that whereas Lisa Monaco approved the raid on Rudy on her first day in office, this prosecution has taken three more months to charge.

This case will sink or swim on the strength of the false statements charges, because if Barrack’s alleged lies in June 2019 were clearcut, when he presumably believed he would be protected by Barr and Trump, then it makes several likely defenses a lot harder to pull off now. It’s possible there’s some complicating factor (again, I think it possible that he told the truth about some of these questions when interviewed by Mueller in December 2017). But if not, then the alleged lies become the building blocks to proving the Foreign Agent charges.

In any case, the alleged false statements charges make the questions about why Barr’s DOJ thought it was okay to keep these secrets all the more important.

Paul Manafort Knew Tom Barrack Was Working with “Our Friends”

As I noted yesterday, Tom Barrack’s (known — there may have been a second) Mueller interview revealed what his indictment didn’t say explicitly: Paul Manafort was working with Barrack on a Trump energy speech at issue in the indictment. That suggests that one thing Manafort did for one of the guys that got him hired (the other was Roger Stone) was to cater campaign policy to him.

The complaint originally charged against alleged Barrack co-conspirator Rashid Al Malik on June 25, 2019 (obtained just five days after the FBI interviewed Barrack on these issues, which — according to the new indictment — would have alerted them that Barrack was trying to hide this relationship) provides more detail on Manafort’s role in that energy speech and other events relating to Barrack’s ties to UAE.

Even before the energy speech, for example, on May 1, 2016 Barrack emailed Manafort from Abu Dhabi where he was meeting with Mohamed bin Zayed.

On or about May 1, 2016, [Barrack] emailed a senior member of the Campaign ([Manafort]): “I am in Abu Dhabi with [MbZ]. Call if u can.” Later that day, [Barrack] emailed [Manafort] with an upbeat assessment of the meeting and mentioned the possibility of a meeting in the United States between the UAE leaders and [Trump].

Once Trump wrapped up his primary win on May 4, Barrack wrote Al Malik and told him to tell MbZ to “Pack his bags,” presumably for a visit to the US to meet with Trump (which may suggest that on this matter, as with the Russian one, Trump’s handlers tried to delay controversial meetings until after he sealed the nomination). Al Malik said that MbZ would meet with the two of them the next month when — he incorrectly anticipated — MbZ would be in the US to meet with Trump. The day Al Malik made that prediction, Barrack, “met with several senior members of the Campaign that same day in New York City.” Given Barrack’s past and future relationship with Jared Kushner, his meetings with people beyond Manafort (if even he met with Manafort) are of interest.

In the complaint, the language on the draft speech is far more detailed than in the indictment, possibly even consistent with Barrack writing the entire first draft of the speech, then sharing it with “him” (the complaint isn’t sure whether that’s a reference to Trump or Manafort).

The next day, May 14, 2016, after Al Malik asked for a specific mention of MbZ in it, Barrack and Manafort discussed whether to keep specific mention of MbZ and a Saudi (probably Mohammed bin Salman) in the speech.

[Barrack] wrote to [Manafort]: “How did you like the energy paper[?] I thought I did a really good job. The only sensitive part is whether you want to name [the senior UAE and KSA government officials] by name. But I think it would be a good idea.” [Manafort] replied: “I left their names in the draft.” [italicized brackets original, the others mine]

Six days later, Manafort wrote back complaining that, “It has become a more political speech but there is reference to working with our allies regarding energy policy.” After reading the “America First” speech as written, Barrack described it as “novice and imbecilic,” then said, “[H]e better figure out a way to get one paragraph to balance foreign-policy concerns for energy dependent allies in the gulf.” Later that day, Manafort wrote Barrack, “Send me an insert that works for our friends. I will push to get it included.” Barrack did send language, to which Manafort responded, “I am working to have paragraph added.”

When Barrack sent Al Malik the speech without the specific mention of MbZ the next day and Al Malik complained that it had been pulled, Barrack explained, “Delicate time. [MbZ] should have come!”

On May 26, Manafort sent Barrack the speech calling it the likely final version, and assuring Barrack that, “It has the language you want.”

To be clear, Manafort has not been charged and there’s no reason to believe he will be. But it shows he both knew what Barrack was up to, and was happy to use his position to facilitate foreign influence peddling.