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Jared’s Clearance and the Foreign Policy Version of Conspiracy to Defraud America


I confess there is no multi-day Trump story I’ve looked forward to more than the problem with Jared Kushner’s clearance. And it is officially here. Last night, the NYT described how Jared is butting heads with John Kelly over whether he’ll lose clearance under Kelly’s post-Rob Porter mandate that people who can’t be cleared won’t be kept around anymore.

Kushner, frustrated about the security clearance issue and concerned that Mr. Kelly has targeted him personally with the directive, has told colleagues at the White House that he is reluctant to give up his high-level access, the officials said. In the talks, the officials say, Mr. Kushner has insisted that he maintain his current level of access, including the ability to review the daily intelligence briefing when he sees fit.

Today CNN and WaPo weigh in, with CNN nodding towards the conflict this will present Trump.

Though a source familiar with the situation said Kushner has not yet appealed to the President directly about his access to highly classified information, those close to Trump believe he would be inclined to grant his son-in-law access if asked. This source pointed to the fact that Kushner is part of the President’s family and has outlasted all of his rivals in Trump’s inner circle, including former chief of staff Reince Priebus, former chief strategist Steve Bannon, former campaign manager Corey Lewandowski and former deputy campaign manager David Bossie.

Trump, however, has given Kelly his full support in efforts to reform the White House’s system of security clearances, and has told his chief of staff that changes need to be made to bring the system into order, according to a person who has spoken to him about the matter. Kelly has interpreted that as a wide-ranging mandate that would include Kushner, a person familiar with the matter said. The person said Trump and Kelly would likely discuss the matter this week, if they haven’t already, before Kelly’s self-imposed Friday deadline.

WaPo brings the appropriate level of skepticism over whether Kushner can really do his Fake Peace Plan job without clearance.

It is not clear how Kushner could perform his job without a high-level security clearance.

He holds a broad range of responsibilities, from overseeing peace efforts in the Middle East to improving the efficiency of the federal government. And he is the administration’s interlocutor with key allies, including China and Saudi Arabia, where he has developed a personal relationship with the young crown prince, Mohammed bin Salman.

[snip]

And apart from staff on the National Security Council, he issues more requests for information to the intelligence community than any White House employee, according to a person with knowledge of the situation, who spoke on the condition of anonymity to describe private discussions.

More importantly, WaPo includes a series of false bravado quotes from Jared’s defense attorney, Abbe Lowell, who bizarrely offered up his judgement that Jared is speaking with foreign officials “properly.”

“My inquiries to those involved again have confirmed that there are a dozen or more people at Mr. Kushner’s level whose process is delayed, that it is not uncommon for this process to take this long in a new administration, that the current backlogs are being addressed, and no concerns were raised about Mr. Kushner’s application,” he said in a statement.

[snip]

Lowell said Kushner’s job is “to talk with foreign officials, which he has done and continues to do properly.”

I’ve come to think of Kushner’s clearance process in similar terms to the way I’ve thought of the bail process Mueller has used with Paul Manafort and Rick Gates: While Gates ultimately did make bail, Manafort is still (!) almost four months after his arrest, struggling to show enough liquidity free of taint from his money laundering to alter his release conditions. The process of making bail (and having to serially beg to attend his kids’ soccer events) seems to have been one of the factors that brought Gates to the point of flipping, but along the way, he probably gave Mueller’s team far more leverage in plea negotiations, because they know how little Gates actually has to pay a defense attorney to oversee the flip (indeed, that may lie behind the confusion over Gates’ current legal representation).

Kushner’s liquidity problems are literally an order of magnitude greater than these men. But unlike them, he made the idiotic decision to work in the White House, and thereby to undergo the scrutiny of sworn statements laying out all the financial vulnerabilities and foreign entanglements that might make him susceptible to blackmail.

Which brings me back to my description of how Mueller is leveraging “conspiracy to defraud the United States” (what I will henceforward refer to as ConFraudUS*) charges to prosecute political influence peddling for which our regulatory system has completely collapsed. With the Internet Research Agency indictment, Mueller charged ConFraudUS because the trolls bypassed a campaign finance system that no longer works. With Manafort and Gates, Mueller charged ConFraudUS because they bypassed Foreign Agents Registration Act requirements that have never been enforced.

In the old days, to pursue the kind of quid pro quo we see outlines of, in which Trump officials (from George Papadopoulos’ proposed business with Sergei Millian to the possibility Kushner might get bailed out by the Russian Direct Investment Fund, which is itself a cut-out for the sanctioned Vnesheconombank, whose head, Sergey Gorkov, Kushner met in December 2016), you’d pursue bribery. But post-Bob McDonnell, bribery is a far tougher charge to make stick, as Mueller prosecutor Andrew Goldstein, who worked on the Sheldon Silver prosecution team, knows well.

What if, however, you could charge people whose meetings seamlessly tie the foreign policy decisions of the United States with discussions of their own financial interests, with ConFraudUS? That might make it easier to charge someone whose foreign policy decisions don’t serve the US interest but might enrich them for the quid pro quo entailed.

Which is why I’m interested in the report that Mueller has shown increased interest (almost certainly tied to Steven Bannon’s public pronouncements that, “It goes through Deutsche Bank and all the Kushner shit”) in Jared’s foreign financial dealings, how he has mixed his business interests and US foreign policy.

One line of questioning from Mueller’s team involves discussions Kushner had with Chinese investors during the transition, according to the sources familiar with the inquiry.
A week after Trump’s election, Kushner met with the chairman and other executives of Anbang Insurance, the Chinese conglomerate that also owns the Waldorf Astoria hotel in New York, according to The New York Times.

At the time, Kushner and Anbang’s chairman, Wu Xiaohui, were close to finishing a deal for the Chinese insurer to invest in the flagship Kushner Companies property, 666 Fifth Avenue. Talks between the two companies collapsed in March, according to the Times.

Mueller’s team has also asked about Kushner’s dealings with a Qatari investor regarding the same property, according to one of the sources. Kushner and his company were negotiating for financing from a prominent Qatari investor, former prime minister Hamad bin Jassim Al Thani, according to The Intercept. But as with Anbang, these efforts stalled.

Lowell’s false bravado in this report is even more ridiculous than that in the clearance stories.

A representative for Kushner declined to comment prior to the publication of this story. After publication, Kushner attorney Abbe Lowell told CNN in a statement, “Another anonymous source with questionable motives now contradicts the facts — in all of Mr. Kushner’s extensive cooperation with all inquiries, there has not been a single question asked nor document sought on the 666 building or Kushner Co. deals. Nor would there be any reason to question these regular business transactions.”

Lowell may not have turned over any documents relating to 666 Fifth Avenue. But Deutsche Bank got subpoenas even before Bannon started running his mouth (albeit in a separate EDNY probe). Moreover, the key detail under my imagined ConFraudUS charge would be whether Kushner did things — like try to get Chinese investors visas — that didn’t serve or indeed violated the interests of the United States. Admittedly, the President gets largely unfettered control over the foreign policy of the United States (though Trump has defied Congress in areas where they do have some control). But to the extent Jared pursued his own business interests during the transition, he wouldn’t be able to claim to rely on presidential prerogative.

Which brings me back to Jared’s long struggle to get a security clearance.

Abbe Lowell may not have turned over the financial documents on 666 Fifth Avenue that would show how susceptible Jared’s debt woes make him to foreign influence. But he has serially provided that evidence in support of Jared’s almost certainly futile attempt to convince the FBI he should get a permanent TS/SCI security clearance.

I laid this out yesterday at the very end of my Democracy Now appearance:

I think—the reason why Kushner’s business deals are important, we’ve talked—and in the intro, this wasn’t the only example of—there’s the Don Jr. We’ve talked about how poorly Trump’s people have separated his business interests from the interests of the country. The same is even more true for Jared Kushner, whose family business is basically bankrupt. And over and over again, he’s been shown to be in negotiations with entities, including Russians, but also Chinese and Middle Eastern. So, you know, he’ll go in and say, “OK, we’ll talk about this grand peace plan,” which is not about peace at all, “but, oh, by the way, can you bail out our 666 Park Avenue building, which is badly underwater?” And I think Mueller could make the same argument he’s made with the IRA indictment and the Manafort indictment, and say that Jared Kushner is pretending to be serving America’s foreign policy interests, but in fact he is just doing his own bidding. He’s just trying to bail out his own company. So I wouldn’t be surprised if he’s moving towards a very similar indictment on conspiracy to defraud the United States, having to do with his conflicts of interest.

AMY GOODMAN: And, of course, interesting that Kushner also hasn’t managed to get top security clearance, when he’s a senior adviser to President Trump, as Porter didn’t because he beat his wives, etc. And then you’ve got Donald Jr. now in India promoting Trump businesses, as, of course, Donald Trump is the president of the United States. And he’s standing with the prime minister of India as he does this, promoting the Trump brand, Marcy.

MARCY WHEELER: Exactly. I mean, if Trump and his son and his son-in-law are pretending to be doing the business of the United States but are instead just trying to enrich themselves, again, I don’t think it’s a—you know, we’ve talked about the Emoluments Clause and how you go after the Trump campaign—the Trump officials for their egregious conflicts of interest. And, frankly, it extends into his Cabinet. But what Mueller seems to be doing, with some very good appellate lawyers, by the way, is to be laying out this framework that if you are pretending to be doing something in the interest of the United States but are actually doing something else, serving somebody else’s bidding, whether it’s Russia, pro-Russian Ukrainian political party, or whether it’s your own family business, then they’re going to go after you for a conspiracy charge. And I wouldn’t be surprised if these conspiracy charges all kind of link up at the end, in this kind of grand moment of—I think that’s where he’s headed.

Remember, Trump and his spawn never really thought they’d win the election. Instead, they seemed interested in, among other things, a Trump Tower in Moscow and refinancing 666 Park Avenue. But if they made deals with Russians in hopes such personal financial benefits would result, a ConFraudUS charge might be a way to prosecute them for it.

*I originally shortened this “CTDTUS,” but following Peter Crowley’s suggestion, I’m instead using “ConFraudUS.”

 

[Note: At the top of this post there is an embedded video of Marcy’s interview with Democracy Now. It isn’t rendering properly on all browsers and operating systems and may appear as a blank space. You can watch the video or listen to audio at this link. /~R]

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

Open Thread: All in the Families?

This is an open thread dedicated to this morning’s news. By now many of  you have heard that Alex van der Zwaan, a lawyer at mega-lawfirm Skadden, Arps, Slate, Meagher & Flom, was charged today by Team Mueller for making false statements while answering questions about his work for the Ukrainian Ministry of Justice in its case against Ukraine’s former prime minister Yulia Tymoshenko.

The “materially false, fictitious, and fraudulent statements and representations” arose from questions about interactions related to Paul Manafort’s partner Rick Gates and “Person A.”

[insert blogger’s laugh] Gee, I wonder who Person A could be? *

You can read the short and sweet court filing here (pdf).

These folks from Team Mueller signed the filing: Andrew Weissman, Greg Andres, Kyle Feeny, Brian Richardson. Add them and this assignment to Marcy’s bingo card

Richardson is a new name, which Marcy noted, already wondering if he is Mystery Prosecutor 17? She’ll probably elaborate in a separate post.

For a little background on Skadden Arps’ relationship to Ukraine, see this this NYT piece from September 21 last year: Skadden, Big New York Law Firm, Faces Questions on Work With Manafort

There was related legal news last autumn — emphasis on related.

Alfa Bank co-owners German Khan, Mikhail Fridman, and Peter Aven filed suit last October against Fusion GPS and Glenn Simpson claiming the Steele dossier was defamatory. Their reputations were “gravely” damaged as the dossier indicated they were engaged in criminal activity with Russia’s president Vladimir Putin.

Khan just happens to be van der Zwaan’s father-in-law. It’s a small world, yes?

It’ll be amusing if the Mueller-led investigation ends up unintentionally corralling multiple families.

* EDIT — 1:30 pm EST — I meant to add that  Andrea Manafort Shand, Paul Manafort’s daughter, was an associate at Skadden Arps-Washington DC office. I haven’t seen anything to suggest she’s involved in any way with today’s charges or that she’s Person A but stranger things have happened. Like the leaking of hacked text messages between Manafort’s daughters which have not been disavowed.

– – – – –

In case you missed it this morning, Marcy was on Democracy Now this morning, talking about the Mueller probe and the IRA indictment last Friday.

A transcript isn’t up as I type this but the video and audio are up on the main site under the Daily Show at the right side of Democracy Now’s homepage. I’ll add a link to the transcript as it becomes available.

Have at it!

 

Blogger since 2002, political activist since 2003, geek since birth. Opinions informed by mixed-race, multi-ethnic, cis-female condition, further shaped by kind friends of all persuasions. Sci-tech frenemy, wannabe artist, decent cook, determined author, successful troublemaker. Mother of invention and two excessively smart-assed young adult kids. Attended School of Hard Knocks; Rather Unfortunate Smallish Private Business School in Midwest; Affordable Mid-State Community College w/evening classes. Self-employed at Tiny Consulting Business; previously at Large-ish Chemical Company with HQ in Midwest in multiple marginalizing corporate drone roles, and at Rather Big IT Service Provider as a project manager, preceded by a motley assortment of gigs before the gig economy was a thing. Blogging experience includes a personal blog at the original blogs.salon.com, managing editor for a state-based news site, and a stint at Firedoglake before landing here at emptywheel as technology’s less-virginal-but-still-accursed Cassandra.

The Conspiracy to Defraud the United States Backbone of the Internet Research Agency and Manafort Indictments

In this post, I suggested there was an important parallel between the structure of the Internet Research Agency indictment rolled out Friday and the Paul Manafort and Rick Gates indictment.

Both use a conspiracy to defraud the US (of its ability to enforce campaign finance and transparency law) as their backbone.

Just as way of comparison, Charge 1 in the IRA indictment alleges conspiracy to defraud the US because defendants impaired the lawful functions of the FEC, DOJ, and State in administering disclosure about foreign involvement in US politics.

From in or around 2014 to the present, in the District of Columbia and elsewhere, Defendants, together with others known and unknown to the Grand Jury, knowingly and intentionally conspired to defraud the United States by impairing, obstructing, and defeating the lawful functions of the Federal Election Commission, the U.S. Department of Justice, and the U.S. Department of State in administering federal requirements for disclosure of foreign involvement in certain domestic activities.

Charge 1 in the Manafort indictment alleges conspiracy to defraud the US because the defendants impaired the lawful functions of DOJ and Treasury to require disclosures about foreign political activity in US politics.

From in or about and between 2006 and 2017, both dates being approximate and inclusive, in the District of Columbia and elsewhere, the defendants PAUL J. MANAFORT, JR., and RICHARD W. GATES III, together with others, knowingly and intentionally conspired to defraud the United States by impeding, impairing, obstructing, and defeating the lawful governmental functions of a government agency, namely the Department of Justice and the Department of the Treasury, and to commit offenses against the United States, to wit, the violations of law charged.

Whatever else is true, both indictments start there, and go onto other related crimes (compellingly money laundering for Manafort and identity theft for IRA) from there.

Several people have already commented on the use of the conspiracy to defraud as backbone in the IRA indictment. Jamil Jaffer (not the Knight Foundation civil liberties guy, but the hawkish former DOJ NatSec guy) argued that this structure might provide a way to charge Americans who help foreigners interfere with our elections.

Today’s indictment also represents a significant step forward for the Mueller investigation and, in many ways, breaks new ground for a federal indictment. The conspiracy charge is significant because if upheld by a federal court, it shows how additional conspiracy charges might be brought against individuals–even Americans–that help foreigners interfere with our electoral system.

The Democrats’ campaign finance guru Bob Bauer laid this out in considerable more depth. He starts by observing that while evidence of campaign finance violations is abundant, Mueller instead uses only the backbone.

The indictment alleges facts that support charges of federal campaign finance law violations—such as the prohibition on foreign national contributions—but does not charge any such offenses. This is clearly not for want of evidence, since the indictment sets out in considerable detail the millions in foreign national spending to influence the 2016 election.

While it’s not clear that this is why Mueller approached it this way, Bauer notes that foreigners aren’t going to comply with campaign finance laws and the FEC is largely dysfunctional anyway.

Now, of course, those engaged in illegal campaign finance activity, such as spending from foreign national sources, won’t ever make an exception and comply with self-incriminating reporting requirements. And the irony of the premise–that the FEC would get the job done if given the needed facts–will not be lost on those who have observed the agency’s decline.

So, while in that paragraph, he didn’t go that far, Bauer implies that Mueller couldn’t charge campaign finance violations because the legal infrastructure for enforcing our country’s campaign finance laws has been shredded.

When I pointed out this parallel on Twitter, Jaffer argued the difference was that the Manafort indictment charged FARA violations (counts 3 through 6) in addition to the conspiracy to defraud backbone.

Plus in the Manafort case, it isn’t just a pure bootstrap because they they also charge the underlying crimes. Here, not so.

But let’s look at what Paul Manafort lawyer Kevin Downing argued after his arraignment: the surprising thing about the Manafort indictment is that Mueller charged Foreign Agents Registration Act, because it had so rarely been charged before and only once led to a conviction.

Today, you see an indictment brought by an office of Special Counsel using a very novel theory to prosecute Mr. Manafort regarding a FARA filing. The United States government has only used that offense six times since 1966 and it only resulted in one conviction.

Downing doesn’t dispute the letter of the law. He instead credibly disputes that Manafort could be expected to believe the law means what it says because it has never been enforced.

Admittedly, immediately after the indictment, there was a surge of compliance with FARA.

The number of first-time filings like SCL Social Limited’s rose 50 percent to 102 between 2016 and 2017, an NBC News analysis found. The number of supplemental filings, which include details about campaign donations, meetings and phone calls more than doubled from 618 to 1,244 last year as lobbyists scrambled to avoid the same fate as some of Trump’s associates and their business partners.

But that is, itself, testament to the fact that, at least when charged, no one believed FARA was a law. FARA, like other prohibitions on foreign campaign donations, didn’t work because those donating the money didn’t give a fuck and the agencies — FEC, DOJ, State, Treasury — mandated with protecting us from foreign tampering couldn’t do their jobs without the required reporting.

So we have a range of dysfunctional campaign transparency and finance laws, and two indictments charged as conspiracy to defraud the agencies empowered to oversee those laws, and only thereafter substantiated with more traditional crimes like money laundering and identity theft.

You see the parallel yet?

After arguing that FEC doesn’t work anymore anyway, Bauer argues you’re not going to charge foreigners with campaign finance violations because that would break too much legal ground.

Mueller and his team may have concluded that straight statutory campaign finance allegations rest on too much untested ground and would complicate what may well be the next phase of their investigation.  This consideration would not affect the foreign national side of the case: Foreign nationals are plainly prohibited from spending in the manner detailed in the indictment. But how the law reaches American co-conspirators is less certain, and the special counsel’s theory of the case, pleading the campaign finance aspect of the case through conspiracy-to-defraud, may allow more securely for the prosecution of American actors.

So to sum up thus far: campaign finance expert Bob Bauer, after admitting the FEC has been gutted, further argues that the theory of the conspiracy to defraud is necessitated by the involvement of foreign actors. His argument is based largely on the exclusion of FEC charges.

Yet Bob Mueller omitted any direct charge for violations of the Federal Election Campaign Act.

Instead, the indictment builds the campaign finance issues into a conspiracy to defraud the United States—it alleges that the Russians conspired to obstruct the capacity of the Federal Election Commission (FEC) to enforce the law.  The act of obstruction was a failure to report their illegal expenditures. If the FEC did not know about the expenditures, it could not enforce the law.

Click through to read that part of Bauer’s argument. Bauer seems to argue (I’m not convinced) that Mueller left off the FEC violations because he was only indicting foreigners.

But Bauer turns immediately to an invented necessity (having already proven that the underlying law is basically defunct) of sucking in Americans’ complicity that otherwise might hypothetically be covered by FEC.

If, however, Mueller possesses evidence of Americans’ complicity in these violations, he may have decided on a different theory of the campaign finance case that more reliably sweeps in U.S. citizen misconduct.

On the face of it, the law prohibits a U.S. campaign or person from “soliciting” something “of value” from a foreign national, and it bars rendering “substantial assistance” to illegal foreign national spending. It seems clear that the facts known to date implicate these rules. It is also true that there is little precedent and arguably an increased risk of a defense grounded in the “vagueness” of these prohibitions.  Some commentators have expressed unease about the constitutional limiting principle that would govern the enforcement of these provisions. I do not share this view, but it is held strongly in some quarters and, therefore, appropriately and respectfully noted.

The Mueller indictment is conceivably one way to solve this problem.

Bauer argues, breathtakingly, that instead of using America’s defunct campaign finance and transparency law, Mueller can use America’s insanely overbroad conspiracy law.

It alleges a conspiracy to prevent the FEC from taking up and addressing the regulatory issues, and American co-conspirators may be brought in on any overt act in furtherance of this illegal scheme. Any U.S. citizen who intentionally supported the Russian electoral intervention could be liable. Examples would include U.S. citizens engaged in conversations like those in Trump Tower in summer of 2016, or Don, Jr.’s communications with WikiLeaks about the timing of the release of stolen emails.  The conspiracy to defraud the United States could also envelop any Americans who helped cover the Russians’ illegal electoral program by lying to federal authorities about the campaign’s Russian contacts.

That is, Bauer is imagining Mueller might charge Trump associates in a conspiracy with IRA because they did really attenuated things — things like meeting with Russian lawyers in Trump Tower — that are associated with the conspiracy. That’s effectively what Jaffer argued, thought not in as unattenuated a way. “It shows how additional conspiracy charges might be brought against individuals–even Americans–that help foreigners interfere with our electoral system. ”

Maybe Bauer, who has the advantage of actually being an expert and a lawyer and a muckety muck, is right on this point.

But my guess is Mueller is, thus far, doing something more modest and more exciting.

To understand why, consider what Manafort is both alleged, in his indictment, to have done, and what is hanging over his head. He is alleged to have laundered both political influence (via some subordinate lobbying firms, including Tony Podesta’s) and money. The allegation is that this money and influence stems from misrepresenting the interests of his pro-Russian Party of Regions work in influence-peddling in the United States.

It is illegal to act as an agent of a foreign principal engaged in certain United States influence activities without registering the affiliation. Specifically, a person who engages in lobbying or public relations work in the United States (hereafter collectively referred to as lobbying) for a foreign principal such as the Government of Ukraine or the Party of Regions is required to provide a detailed written registration statement to the United States Department of Justice. The filing, made under oath, must disclose the name of the foreign principal, the financial payments to the lobbyist, and the measures undertaken for the foreign principal, among other information. A person required to make such a filing must further make in all lobbying material a “conspicuous statement” that the materials are distributed on behalf of the foreign principal, among other things. The filing thus permits public awareness and evaluation of the activities of a lobbyist who acts as an agent of a foreign power or foreign political party in the United States.

Effectively, the Manafort indictment argues that Manafort illegally hid the influence of Russian money and persuasion on US politics — in the form of face-to-face lobbying, among other things — in the same way that IRA obscured the financial backing and persuasion of Russia in the 2016 operation. The hidden object, Russian money and influence, is the same in both conspiracies to defraud the US indictments.

One of the biggest complaints from Republicans about the Manafort indictment, including from the President, is that Manafort’s Party of Regions work has nothing to do with his campaign. But once you define it as a conspiracy to hide Russian involvement in our politics, it goes right to the heart of whether the people running the Trump campaign, via their one-time campaign manager Paul Manafort, were honest about whose interest the campaign served.

Which brings us to the stuff hanging over Manafort’s head, the stuff Mueller seems to be trying to flip him to get. Manafort is suspected of acting as Trump’s campaign manager during key periods of staffing and policy commitment while serving the interests of Russia via some oligarch cut-outs, notably but not exclusively Oleg Deripaska.

It’s not clear how you’d charge this, in an era where campaign finance and transparency are dead. Particularly given that Manafort worked for free, bypassing every law imposed on actual donations, and therefore making it really easy for a foreign country to pay you to run a campaign.

Until you get to the conspiracy to defraud framework, to Manafort’s role in a conspiracy to hide the fact that the Russians were actually paying him to ensure Trump got elected.

I don’t actually think Don Jr will be charged (as Bauer surmised might be possible) with conspiracy to defraud based off the IRA indictment because he attended that June 9 meeting; the campaign’s data people might be different.

Which is to say that Mueller is not going to name Trump or his spawn in a conspiracy to defraud the government based off really attenuated claims that the conspiracy all derived from the IRA operation. The import of the Manafort charges (even in the limited form they exist) is that Mueller seems to be larding on the “conspiracy to defraud” charges from multiple directions, from Russians and whatever co-conspirator intermediaries to those who paid Manafort’s bills for getting Trump past the challenge of the Republican convention. Though I expect once that Marine running SCO gets all his leverage points into place they might all have that conspiracy to defraud structure. Including, I suspect, the foreign policy priorities implemented, at Jared Kushner’s direction, immediately after the election.

There are many acts, starting with the June 9 Trump Tower meeting, where principals might have criminal liability directly. But the IRA indictment made me realize why the Manafort indictment was so solidly within the scope of Mueller’s authority: because the larger project is to demonstrate that, by bypassing the agencies mandated with preventing foreign sabotage of our democratic process, the Russian-backed efforts broke a more fundamental law.

And I’m certain they’ll get there with far more evidence than Mueller laid out in the IRA indictment. But I suspect they all will use that conspiracy structure as backbone.

Update: Cleaned this up for clarity purposes.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

What Did Mueller Achieve with the Internet Research Agency Indictment?

Back during Nunes Week, Trey Gowdy described the importance of Robert Mueller’s investigation by stating that we were only seeing half of what he was doing. The other half of his work, Gowdy said, was the counterintelligence side, the investigation into what Russia did to the US in 2016.

Friday, Rod Rosenstein rolled out the first glimpse of the other half of that investigation, an indictment of 13 Russians tied to the Internet Research Agency, the Russian troll factory. The indictment accuses IRA of 8 crimes: criminal conspiracy to defraud the United States, conspiracy to commit wire fraud and bank fraud, and five counts of aggravated identity theft.

In the wake of that indictment, the court unsealed a February 7  plea agreement with Californian Richard Pinedo, for identity theft (basically, selling bank account numbers; the information doesn’t identify the users who purchased the bank account numbers as IRA personnel who used them to set up “American” identities, but that is clearly what happened).

The 13 Russians charged in the IRA indictment — which include Yevgeniy Prigozhin, the close Putin associate who owns the company, those in charge of the operation (which was not limited to US targeting), down to a few of the analysts who did the troll work — will never be extradited to the US, though the most senior among them will surely be sanctioned. Nor will Putin in any way retaliate against them — they were doing work he approved of! Further, by criminalizing “information warfare” (as the Russians admitted they were engaged in, and as we do too, under the same name) we risk our own information warriors being indicted in other countries.

So what purpose did the indictment serve? Here are some thoughts:

Creating a paper trail

Rosenstein and Chris Wray have both said they believe investigators should speak through indictments and other official documents, not through Comeyesque press conferences. Here we have an indictment that serves as a record of what Mueller’s team has found.

We would probably have gotten it in any case, as Jeff Sessions’ DOJ has emphasized bringing more cybersecurity related indictments.

But that we did get it addresses one of the questions we’ve gotten about the Mueller investigation: whether we’ll get to read a report of what he has found.

To the extent that something is indictable, even if that indictment would name Russians or others located overseas, I guess we should expect more of the same.

Establishing bipartisan credibility for the larger investigation

The reason I keep pointing to Gowdy’s statements in support of the investigation in the last several weeks is because his actions seem to reflect one of the most partisan Republicans reacting soberly to an attack on the country, rather than just one party.

And while the details of the indictment — most notably that the trolls affirmatively supported Bernie Sanders as well as Trump — have resurfaced the old primary recriminations, for the most part, the indictment has provided a way for people from both parties to agree to the reality of the attack. Trump said Mueller did a good job with the indictment (admittedly, he may be currying favor). Trump’s National Security Advisor HR McMaster responded to the indictment by declaring the evidence that Russia interfered in the election “incontrovertible.” This indictment offers a way for even self-interested Republicans to start acknowledging the reality of what happened.

The indictment also gave Rod Rosenstein an opportunity to own this investigation with a press conference announcing it. None of the prosecutors tied to the case appeared (since I track these things, know that Jeannie Rhee, Rush Atkinson, and Ryan Dickey are on the docket), just Rosenstein. Hopefully, tying him to this non-offensive indictment will make it harder to fire Rosenstein, and thereby further protect Mueller.

Reiterating the crime of conspiracy to defraud the United States

The most interesting of the three crimes charged in the IRA indictment is the first, the conspiracy to defraud the United States. The indictment describes the conspiracy this way:

U.S. law bans foreign nationals from making certain expenditures or financial disbursements for the purpose of influencing federal elections. U.S. law also bars agents of any foreign entity from engaging in political activities within the United States without first registering with the Attorney General. And U.S. law requires certain foreign nationals seeking entry to the United States to obtain a visa by providing truthful and accurate information to the government.

Effectively, Mueller is saying that it’s not illegal, per se, to engage in political trolling (AKA information warfare), but it is if you don’t but are legally obliged to register before you do so. That’s an important distinction, because much of what these trolls did is accepted behavior in American politics — all sides did this in 2016, including people employed by campaigns and others expressing their own political opinions. Trolling (AKA information warfare) only becomes illegal when you don’t carry out the required transparency or reporting before you do so.

The charge of a conspiracy to defraud the United States has a very important parallel elsewhere in this investigation, in the first charge in the Paul Manafort and Rick Gates indictment. The indictment explains,

It is illegal to act as an agent of a foreign principal engaged in certain United States influence activities without registering the affiliation. Specifically, a person who engages in lobbying or public relations work in the United States (hereafter collectively referred to as lobbying) for a foreign principal such as the Government of Ukraine or the Party of Regions is required to provide a detailed written registration statement to the United States Department of Justice. The filing, made under oath, must disclose the name of the foreign principal, the financial payments to the lobbyist, and the measures undertaken for the foreign principal, among other information. A person required to make such a filing must further make in all lobbying material a “conspicuous statement” that the materials are distributed on behalf of the foreign principal, among other things. The filing thus permits public awareness and evaluation of the activities of a lobbyist who acts as an agent of a foreign power or foreign political party in the United States.

The Manafort indictment then argues that by hiding that the lobbying work they were doing was on behalf of Ukraine’s Party of Regions they, “knowingly and intentionally conspired to defraud the United States by impeding impairing, obstructing, and defeating the lawful governmental functions of a government agency, namely the Department of Justice and the Department of the Treasury.” I’ll have more to say about this parallel in coming days, but suffice it to say that Mueller is alleging that Manafort is the mirror image of the troll farm, engaging in politics while hiding on whose behalf he’s doing it (he was arguably doing the same in Ukraine). [Update: see this post for more on how this might work.]

In both cases, the indictments substantiate the conspiracy by naming a variety of crimes, like money laundering and identity theft.

I suspect we’ll be seeing more of this structure going forward (and suspect it’s something the numerous appellate specialists on Mueller’s team have been spending a lot of time thinking about).

Laying out how Americans might be involved with or without “colluding”

Much has been made of Rosenstein’s line, “There is no allegation in the indictment that any American was a knowing participant in the alleged unlawful activity.” I don’t read too much into that. Rather, I think Rosenstein included it because the indictment does explicitly and implicitly describe actions many Americans and possible Americans took that were part of this conspiracy. That includes:

Illegal compensated acvitities

  • Richard Pinedo: Selling Russian trolls (and others) bank account numbers they can use to conduct identity fraud
  • Unknown persons: Providing social security numbers and fake US drivers licenses of Americans
  • Unknown persons: Selling stolen credit card information

Presumptively legal compensated activities

  • Unknown Americans: Renting servers in the US to run VPNs to hide their foreign location
  • Yahoo, Gmail, Paypal: Providing email and PayPal accounts the Russians used as the basis for social media accounts
  • Twitter, Instagram, Facebook: Providing those social media accounts
  • Twitter, Instagram, Facebook: Selling advertisements on social media
  • Unknown Trump associates: Paying for IRA rally expenses
  • Paid providers: Building a cage, acquiring a costume, and posing as Hillary in prison stunt at a FL event
  • Unknown US person: Providing posters for a Support Hillary, Save American Muslims rally
  • Unknown American: Holding a sign in front of the White House on May 29, 2016

Uncompensated activities

  • Unknown Americans: Interacting with Aleksandra Krylova and Anna Bogacheva when they traveled to the US sometime between June 4 and June 26, 2014 to conduct reconnaissance and another co-conspirator that November
  • Members of the media: Accepting tips and promoting IRA events
  • A member of a real TX-based Tea Party organization: Advising the conspirators to focus on the purple states “like Colorado, Virginia & Florida”
  • Unwitting members, volunteers, and supporters of the Trump Campaign involved in local community outreach, as well as grassroots groups that supported then-candidate Trump: Distributing IRA materials through existing channels of those groups
  • Administrators of large social media groups focused on U.S. politics: Promoting IRA events
  • Trump volunteer: Providing signs for the March for Trump event and otherwise recruiting for it
  • A Florida-based political activist identified as the “Chair for the Trump Campaign” in a particular Florida county: Advising on more locations and logistics for the Florida Trump event
  • Campaign Officials 1, 2, and 3: discussing the Florida events

Later the indictment describes a database of 100 real US persons whom the trolls treated as recruiting targets, complete with profiling.

On or about August 24, 2016, Defendants and their co-conspirators updated an internal ORGANIZATION list of over 100 real U.S. persons contacted through ORGANIZATION-controlled false U.S. persona accounts and tracked to monitor recruitment efforts and requests. The list included contact information for the U.S. persons, a summary of their political views, and activities they had been asked to perform by Defendants and their co-conspirators.

Here’s the important thing about all this. While Pinedo pled guilty and faces 12-18 months even with his cooperation agreement (and even there, while the information makes it clear he knew he was dealing with foreigners, his lawyer has made it clear he didn’t know who or what he was dealing with), there are only two other known illegal roles in this conspiracy, and there’s no reason those roles would have had to be carried out by Americans. Perhaps Mueller has others cooperating, perhaps those other criminals are unknown. But as for the rest, they are (as Rosenstein made clear) not guilty of any kind of conspiracy with Russia.

DOJ just rolled out an indictment in which probably 20 Americans can recognize themselves (many of whom were likely interviewed), about as many as all the Trump officials named in one or another plea agreement so far. Yet, as far as Mueller knows, none of these people did anything but conduct business or engage in sincerely held politics. They almost certainly had far less reason to be suspicious of the trolls they were being used by than Facebook and Twitter. Those actions have been tainted now through no fault of their own.

Which is something to remember: I’ve seen Hillary supporters, in the same breath, criticize Bernie or Jill Stein supporters because their preferred candidate was treated favorably by the trolls, yet in the same breath suggesting the black and Muslim activists targeted are innocent victims.

Obviously, Hillary and her supporters are victims. But everyone is, even the Trump volunteers. Because to the extent they had honestly held beliefs, the Russian operation tainted those beliefs, it diminished the weight of their honestly held beliefs. They were used by Russian trolls, most of them without the same profit motive that led Facebook and Twitter to allow themselves to be used. And we should remember that.

Hinting at what the US has

There are, however, a few tactical things this indictment does, starting with hinting at what other evidence the US has. This indictment was relatively easy, in that Adrian Chen (in a June 2015 article that still gets too little attention), Facebook and (to a lesser extent) other social media outlets, the Daily Beast, and SSCI generally have already laid out what IRA did. The indictment slaps some criminal charges on fraudulent behavior that enabled it, and without showing much about any additional evidence Mueller collected, you’ve got a showy indictment.

There are two hints, however, of the additional evidence used (which, given that the named conspirators will never face trial, will never need to be disclosed or explained). First, in a passage about how IRA started to cover their tracks after Mueller started focusing on this activity, there’s the reference to Irina Kaverzina.

On or about September 13, 2017, KAVERZINA wrote in an email to a family member: “We had a slight crisis here at work: the FBI busted our activity (not a joke). So, I got preoccupied with covering tracks together with the colleagues.”

Kaverzina was just a low-level troll and this may be nothing more than Section 702 collected email off GMail or Yahoo, or it may be a more formal intercept. But Mueller obtained communications from at least one of the indictees. Emails from more senior people, such as Prigozhin or his more senior managers (or the IT guys buying server space in the US) would be more interesting.

Plus, Mueller likely obtained cooperation from one IRA employee, the unnamed person who traveled to Atlanta in November 2014 for reconnaissance. Had that person not cooperated, he or she would have been named in the indictment.

Nevertheless establishing the political stakes

I said above that none of the hundred-plus Americans who were unknowingly used by trolls should be considered anything but victims. Their chosen political views, loathsome or not, have now been tainted, and not because of anything they’ve done except perhaps show too much trust or credulity.

But there are hints that Mueller is using this indictment to set up a more important point.

For example, the indictment (perhaps because of Mueller’s mandate) focuses on political activities supporting or opposing one or another 2016 candidate. Even where topics (immigration, Muslim religion, race) are not necessarily tied to the election, they’re presented here as such. Unless Facebook’s public reports are wrong, this is a very different emphasis than what Facebook has said the IRA focused on. Which is to say that Mueller’s team are focusing on a subset of the known IRA trolling, the subset that involves the 2016 contest between Trump and Hillary.

And there are several events, in particular, that may one day serve as details in a larger conspiracy. Most interesting, for the timing and location, are the twin anti-Hillary and pro-Trump events in NYC in June and July 2016.

In or around June and July 2016, Defendants and their co-conspirators used the Facebook group “Being Patriotic,” the Twitter account @March_for_Trump, and other ORGANIZATION accounts to organize two political rallies in New York. The first rally was called “March for Trump” and held on June 25, 2016. The second rally was called “Down with Hillary” and held on July 23, 2016.

a. In or around June through July 2016, Defendants and their co-conspirators purchased advertisements on Facebook to promote the “March for Trump” and “Down with Hillary” rallies.

b. Defendants and their co-conspirators used false U.S. personas to send individualized messages to real U.S. persons to request that they participate in and help organize the rally. To assist their efforts, Defendants and their co-conspirators, through false U.S. personas, offered money to certain U.S. persons to cover rally expenses.

c. On or about June 5, 2016, Defendants and their co-conspirators, while posing as a U.S. grassroots activist, used the account @March_for_Trump to contact a volunteer for the Trump Campaign in New York. The volunteer agreed to provide signs for the “March for Trump” rally.

[snip]

On or about July 23, 2016, Defendants and their co-conspirators used the email address of a false U.S. persona, [email protected], to send out press releases to over thirty media outlets promoting the “Down With Hillary” rally at Trump Tower in New York City.

The description of a IRA-organized event at Trump Tower the day after WikiLeaks dropped the DNC emails, in particular, suggests the possibility of a great deal of coordination, coordination with people in the US.

Similarly, the extended descriptions of events in Florida may also take on added relevance in the future, particularly coming as they did in tandem with Guccifer 2.0’s release of DCCC data targeting FL. (And this, in turn, should focus even more attention on the FL congressmen like Matt Gaetz and Ron DeSantis who’re leading the pushback on Mueller’s investigation.)

Using the term “co-conspirator” 119 times

Perhaps most interesting, given the tiny nods to what other intelligence Mueller might have, are the 119 uses of the word “co-conspirators.” Almost all of these uses seem to necessarily mean unnamed IRA employees working from the same St. Petersburg location described as trolling. Several times the co-conspirators are clearly described as located in Russia. So it may be that all references to co-conspirators here are just a way to refer to the 70 other people involved in this operation at IRA. But that’s not necessarily the case.

Other uses of “co-conspirator” involve wider knowledge, perhaps an outsider’s knowledge of a go-between role Prigozhin might have had.

But others are things that might have involved a stateside co-conspirator, such as the mention of co-conspirators helping to set up the May 29, 2016 Prigozhin birthday tribute in front of the White House, co-conspirators tracking US social media use, co-conspirators engaged in identity theft, co-conspirators promoting claims of voter fraud, co-conspirators destroying data. Several of those things (such as tracking US social media use or claiming Hillary was going to steal the election) are things we know Trump associates were also doing. Others might be facilitated by someone stateside. So those uses of the term could be people not employed by IRA.

Which is to say, this indictment might be (probably is) intended to address just the activities of those employed by IRA. But that’s not necessarily the case.

Update: added the public indictment part.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

The Gates Flip and the 404(b) Delay

CNN reported tonight that, after not getting funded by rich GOP donors (perhaps in part because Trump thinks his cooperation won’t imperil him), Paul Manafort’s deputy, Rick Gates, is about to flip.

Gates has already spoken to Mueller’s team about his case and has been in plea negotiations for about a month. He’s had what criminal lawyers call a “Queen for a Day” interview, in which a defendant answers any questions from the prosecutors’ team, including about his own case and other potential criminal activity he witnessed.

[snip]

Once a plea deal is in place, Gates would become the third known cooperator in Mueller’s sprawling probe into Russian interference in the 2016 presidential election. It would also increase the pressure to cooperate on Gates’ co-defendant Paul Manafort, Trump’s former campaign chairman, who has pleaded not guilty to Mueller’s indictment and is preparing for a trial on alleged financial crimes unrelated to the campaign. Gates pleaded not guilty on October 30 alongside Manafort.

[snip]

Gates has told associates he had hoped for outside assistance from a legal defense fund, but deep-pocketed GOP donors have shown little interest in helping either Gates or Manafort cover their legal fees, two sources said.

The judge has already acknowledged that Gates could not show he had $5 million in assets to secure his bail. His financial situation is further hampered by assets he would have to forfeit to the government if found guilty of money laundering charges. A complex criminal case such as this could cost a defendant more than a million dollars in legal fees, especially if he were to go to trial, according to several people familiar with the legal industry.

Hopefully I’ll have time tomorrow to lay out what Gates might have offered Mueller. But for now, I want to look at a detail from the Gates/Manafort docket.

On Wednesday, Judge Amy Berman Jackson held a status conference. With Manafort, she appears to have discussed his continued efforts to make bail (one thing that CNN reports pressured Gates financially enough that made him willing to flip).

With Gates, she appears to have discussed his confusing legal situation, where his existing lawyers are trying to ditch him so his new lawyer, Tom Green, can finalize this plea deal. The night before, Gates had filed a pro se motion asking Berman Jackson to hold off on deciding whether his current lawyers can ditch him until February 21.

In response, Berman Jackson granted Gates his week.

Defendant Manafort’s (1) Sealed Motion 153 for Reconsideration of Conditions of Release remains under advisement. Defendant Manafort (1) must supplement the Motion. The 161 Motion to Withdraw as Counsel for Defendant Gates (2) remains under advisement. Defendant Gates is to advise the Court of his position on the Motion by 5:00 PM on Wednesday, 2/21/2018.

Just as interesting, Berman Jackson held off on resetting deadlines and on deciding whether or not the government can delay providing 404(b) notice of the evidence of other crimes the government will submit at trial.

The Current Briefing and Hearing schedules that were established at the Status Conference held on 1/16/2018, and in the Minute Order issued on 1/17/2018 are suspended pending further Order of the Court. The government’s 155 Motion to Modify the Court’s Schedule for Rule 404(b) Notice and Briefing remains under advisement. SO ORDERED. By Judge Amy Berman Jackson on 2/14/2018. (jth) (Entered: 02/14/2018)

I noted, when the government submitted that request, that Mueller’s team likely wanted to hide what other crimes Manafort and Gates had committed to save their value for when they testify against Trump and his family.

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

Everything’s on hold, now, until Gates can plead guilty to crimes that involve only indirect taint of conspiring with the Russians, so the government doesn’t yet have to reveal how much it knows of that taint, at least not publicly.

I could be wrong, but this may answer something we’ve been trying to understand about George Papadopoulos and Mike Flynn — whether the government let them plead to far lesser crimes because that’s all they’ve got or because Mueller is trying to keep his witnesses relatively clean for when they testify against Trump.

I think Mueller’s trying to keep them clean, and in the process trying to keep his poker hand still close to the chest for when he starts to use it against the big guns.

I’m also interested in the timing, which would put at least one more guilty plea into place before Rachel Brand leaves.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

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

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

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

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

More amusing is this anonymous quote from JD Gordon.

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

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

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

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

Trump camp too disorganized to collude

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

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

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

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

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

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

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

Manafort docket:

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

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

Papadopoulos docket:

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

Flynn docket:

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

Obstruction docket:

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

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

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

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

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

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

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

[snip]

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

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

That leaves the following prosecutors, listed with their specialities:

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

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

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

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

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

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

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

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

[snip]

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

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

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

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

What Explains Trump’s Focus on Manafort?

As I noted yesterday on Twitter, the transcript of NYT’s interview with Donald Trump reads like this:

collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion collusion

23 times Trump either denied any evidence of collusion between his campaign and Russia or alleged collusion between Hillary and … I’m not entirely clear who she was supposed to have colluded with.

Whatever else this interview was, it was also a testament to Trump’s continued obsession with trying to deny any guilt.

Which is why I’m so interested in both the form and the singular focus on Trump’s denial of Paul Manafort.

SCHMIDT: What’s your expectation on Mueller? When do you —

TRUMP: I have no expectation. I can only tell you that there is absolutely no collusion. Everybody knows it. And you know who knows it better than anybody? The Democrats. They walk around blinking at each other.

SCHMIDT: But when do you think he’ll be done in regards to you —

TRUMP: I don’t know.

SCHMIDT: But does that bother you?

TRUMP: No, it doesn’t bother me because I hope that he’s going to be fair. I think that he’s going to be fair. And based on that [inaudible]. There’s been no collusion. But I think he’s going to be fair. And if he’s fair — because everybody knows the answer already, Michael. I want you to treat me fairly. O.K.?

SCHMIDT: Believe me. This is —

TRUMP: Everybody knows the answer already. There was no collusion. None whatsoever.

_________

TRUMP: Maybe I’ll just say a little bit of a [inaudible]. I’ve always found Paul Manafort to be a very nice man. And I found him to be an honorable person. Paul only worked for me for a few months. Paul worked for Ronald Reagan. His firm worked for John McCain, worked for Bob Dole, worked for many Republicans for far longer than he worked for me. And you’re talking about what Paul was many years ago before I ever heard of him. He worked for me for — what was it, three and a half months?

SCHMIDT: A very short period of time.

TRUMP: Three and a half months. [Inaudible] So, that’s that. Let’s just say — I think that Bob Mueller will be fair, and everybody knows that there was no collusion.

The interview started with a discussion of Jeff Sessions’ recusal, which led Trump to claim he won because he campaigned better than Hillary, but then Mike Schmidt returned to Russia, which returned Trump to his “no collusion” line.

Then Schmidt permits Trump to go off the record about … something. Then the interview goes back on the record with Trump apparently deciding to offer up details after all. He offers the following defense of Manafort:

  • He’s a nice, honorable man
  • Manafort worked for other Republicans too
  • Manafort didn’t work (on the campaign) for Trump long at all
  • Trump never heard of the man who lived in Trump Tower and had had a firm with Trump’s buddy Roger Stone

Having already had two people flip on him and agree to cooperate with prosecutors, Trump starts by flattering Manafort. He rightly reminds that Manafort has long been tolerated in the Republican party, even after Manafort’s fondness for working with thugs became widely known.

Trump then dismisses any Manafort taint based on time associated with the campaign (three and a half key months of the campaign, during the period when Russians were reaching out to provide dirt), not based on his actions for the campaign.

Finally, by falsely claiming he didn’t know Manafort, Trump absolves himself of any prior taint the lobbyist had.

As I said, I’m interested in this passage not just for Trump’s lame attempt at defending himself, but also that he did so. It’s only Manafort Trump feels the need to defend himself against, not Flynn (whom Trump reportedly is preparing to accuse of lying), not Papadopoulos, and not even Rick Gates (who, after all, hung around the campaign through the transition).

The Daily Beast did do an uninteresting piece suggesting Mueller’s team may get a superseding indictment against Manafort, but it doesn’t even imagine Mueller getting to the guts of the case, perhaps by indicting Manafort based on his ongoing reporting on the campaign to Oleg Deripaska via Konstantin Kilimnik, the latter of whom also served as a go-between in an effort to help Manafort write a self-defensive op-ed. Instead, it imagines only that Manafort will get a superseding indictment on tax charges.

Alternately, Schmidt may have said something during that off the record section that directly raised Manafort. Schmidt’s regular beat is the FBI, not Mar a Lago, so he may know something far more interesting than the Daily Beast does about where Mueller is going.

Whatever the reason, Trump seems far more worried about damage Manafort can do to him right now than any damage Flynn can.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

The Bail Fight that Manafort and Gates Can’t Win

Three weeks after their indictment, Paul Manafort and Rick Gates are still fighting over their bail conditions.

That was most recently demonstrated by the government’s response to Gates’ request for permission to (basically) serve as house husband, with leave to spend over two hours every day to ferrying his kids to school while purportedly under house arrest, a motion the court denied. The government objected to the request because “To date, only the defendant’s signature secures his bond (together with his house arrest),” though the problem might be more accurately described as Gates fucking around with bail negotiations, probably because he can’t substantiate his assets in such a way that they can be posted for bail.

In a telephone call late on the afternoon of November 15, 2017, defense counsel informed the government that they intended to make a bail modification motion and sought the government’s position. The government responded that it was not able to take a position until it had the opportunity to review the defendant’s motion.

[snip]

Although more than two weeks have passed since the defendant’s arrest, he has not completed any paperwork to post his house, or any other property, and has failed to answer a series of questions about his assets.

[snip]

Only yesterday did the defendant offer to arrange interviews of his two proposed non-family-member sureties, both of whom apparently live outside the Washington, D.C. area.3 Finally, the government continues to have concerns about the accuracy of the defendant’s account of his net assets, which has evolved from the representation that he had “limited assets that include only a single home,” ECF#21 at 5; to his most recent Personal Financial Statement, which included a securities/brokerage account valued at more than $1.3 million and a total net worth of more than $3.4 million.

3 Those interviews are now scheduled for Thursday, November 16, 2017. Counsel has noted that one proposed surety already serves as a surety for a relative who is currently charged in the United States District Court for the Southern District of New York, a circumstance that, at least at first blush, raises certain concerns.

Though it was even more clearly laid out in the government’s November 5 opposition to Manafort’s request to change his bail conditions, in which the government laid out the difficulties of finding $10 million that Manafort can post for bail. In that they laid out three different line items in Manafort’s assets, two of which he wants to post for bail, that the government believes are inflated.

A. 5th Avenue, New York, NY (claimed net asset value $3 million):

The government does not presently have sufficient information to assess the claimed net asset value of this property, or even to be confident that the property has equity in it at all. Based on communications with Manafort’s counsel, the government understands that the $3 million net asset value is based on a fair market value of $6 million, reduced by a $3 million mortgage on the property obtained from UBS. This fair market value is not, however, backed by an appraisal or even any open source estimates (which in many cases may not be particularly accurate). Rather, Manafort provided the government with an open source estimate for a different unit in the building, listed as approximately $4.5 million, which Manafort believes is below the fair market value of his own unit, which is on a higher floor. Meanwhile, the government has searched open source real estate value estimators and found one that lists the value of Manafort’s own unit as $2.5 million, and another that lists the value as $2.7 million.

Until an independent appraisal of the property is obtained, the government cannot agree that this property is appropriate as a security.

[snip]

C. St. James Drive, Palm Beach Gardens, FL (claimed net asset value $1.5 million):

Based on the information available to the government, we are comfortable with the use of this property as security, although the open source estimate provided to the government by Manafort shows a fair market value of $1.25 million rather than $1.5 million. As a condition of using this property as security, Manafort and his wife should be required to waive any homestead exemption that may be available under Florida law and to agree not to encumber the property in any way.

[snip]

Although Manafort has provided the government with a spreadsheet listing his total assets at approximately $28 million, the government has yet to substantiate Manafort’s net worth. Indeed, we continue to have questions about that sum. For example, with respect to a property held by Manafort in Brooklyn, he asserted the value at $9 million, when a recent appraisal comes in at substantially lower (in the $5 to $6 million range). The spreadsheet provided by Manafort also lists values of other assets, such as securities, that do not match information available to the government or that cannot be substantiated at this time. Additionally, in prior years, through at least 2014, Manafort reported a $6 million asset in Ukraine on his tax returns; Manafort has claimed that it lost all value. In short, the government seeks to further understand the full extent of Manafort’s wealth.

They’re doing this while appearing quite reasonable (for example, letting Manafort’s wife and daughter serve as sureties, not to mention letting them stay out of jail altogether). It seems increasingly clear why: because the very process of trying to negotiate bail, for both men, is involving a whole lot of disclosure — which presumably replicates documentation the government has collected on its own — of further money laundering. In just those three paragraphs, for example, the government has laid out almost $10 million in money that Manafort has either vanished or lost as his money laundering vehicles lose value.

Meanwhile Bloomberg has a piece — the long overdue counterpart to my (still) favorite piece of Manafort journalism, the Weekly Standard piece showing it is impossible to spend $1 million on antique rugs in Alexandria — that lays out the discrepancies between the amounts the indictment say Manafort spent on his homes in the Hamptons and Florida and what his contractors reported would be spent.

Special Counsel Robert Mueller, in his indictment, says that a Hamptons firm got $5.4 million in wire transfers from Cyprus over 71 payments. But building permits over the same period examined by Bloomberg show that renovations by Manafort’s Hamptons’ contractor were estimated to cost $1.2 million. That’s less than a quarter of what was ultimately sent—an apparent discrepancy that could draw scrutiny from investigators.

[snip]

Building permits in Southampton estimate that the cost of SP & C’s renovations would come to $687,000. In Brooklyn, the work is estimated to cost $527,900 though it isn’t clear whether SP & C or another contractor completed the project. Either way, the estimates fall more than $4 million short of the amount “Vendor A” was paid.

[snip]

During an inspection in April 2013, the Southampton assessor determined that the replacement cost of the pool house was $132,172, a less than a third of the quoted price. A pergola, estimated to cost $35,000, would cost $16,550 to replace by the assessor.

Lisa Goree, Southampton’s sole assessor, said renovation costs aren’t necessarily reflected in a home’s assessed value. “He could spend $1 million on a statue in front of the house,” she said. “It doesn’t mean we’re going to increase the assessment by a million dollars.”

There is also a gap between renovation estimates on Manafort’s Florida 3,300-square-foot house—located in a gated community overlooking a golf course and palm-lined canal—and the amount paid to a “Vendor J, a contractor in Florida,” according to the indictment. He wired $432,487 to the Florida contractor; building permits estimate that renovations on his Palm Beach Gardens house would cost about $140,000.

Incidentally, a friend told me one of her friends has been at the Hamptons property, and was led to believe it was actually owned by Manafort’s nephew.

I feel like Mueller’s prosecutors are playing with these two men as cats play with balls, just patiently batting them around, waiting for the inevitable admission that they can’t make bail because they don’t have assets they can put up because everything they own has been laundered. At which point, after getting the judge rule over and over that they’re flight risks, I suppose the government will move to throw them in the pokey, which will finally get them to consider flipping.

Update: Totally unrelated, but totally related, Global Witness has an investigation of how Trump has partnered with a whole lot of mobsters who use his Panama property as a laundering vehicle.

Update: Here we are Monday and Gates and Manafort still haven’t found anything liquid to put up as bail. Not only that, but in a filing raising a potential conflict with one of Gates’ money laundering expert lawyers, prosecutors reveal Gates is trying to have his partner from a movie-related firm’s brother serve as surety while also doing so for the partner.

Marc Brown, the brother of defendant Steven Brown, was proposed by Gates as a potential surety despite the facts that they seemingly do not have a significant relationship, they have not had regular contact over the past ten years, and Marc Brown currently serves as a surety for his brother Steven in his ongoing criminal prosecution in New York. In an interview with the Special Counsel’s Office on November 16, Marc Brown listed as a reason for seeking to support Gates that they belonged to the same fraternity (although they did not attend the same college) and that, as such, he felt duty bound to help Gates. Of note, Marc Brown’s financial assets were significantly lower, almost by half, than previously represented by Gates.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.

The False Statements George Papadopoulos Made about “Dirt” Were Designed to Hide Whether He Told the Campaign about the Emails

In response to Monday’s server hiccups and in anticipation that Mueller is nowhere near done, we expanded our server capacity overnight. If you think you’ll rely on emptywheel reporting on the Mueller probe, please consider a donation to support the site

Other outlets have now caught up to this post I wrote on Monday showing that a footnote in George Papadopoulos’ plea, describing a May 21, 2016 exchange between Paul Manafort and Rick Gates, probably means Manafort was trying to hide the campaign’s outreach to Russia rather than tamp it down via a low level staffer.

I want to turn now to some other details that become clear when similarly comparing Papadopoulos’ plea with the complaint, written two months earlier. In the plea, Papadopoulos’ false statements are listed as:

  1. PAPADOPOULOS met the professor and learned about Russian “dirt” before he joined the campaign
  2. PAPADOPOULOS’s contacts with the professor were inconsequential
  3. PAPADOPOULOS met the female Russian national before he joined the campaign, and his contacts with her were inconsequential

That is, the plea describes these false statements to pertain to the timing and significance of Papadopoulos’ communications with Professor Joseph Mifsud and the still unnamed woman that Papadopoulos once believed was the niece of Vladimir Putin (this WaPo story has the best descriptions of who is who in the documents). The plea disproves those three false statements by focusing on the timing of his meetings with the two (and his complete silence about Russian International Affairs Council program director Ivan Timofeev) and the sheer volume of his communications with the two. Significantly, the plea focuses on the impact of “omitt[ing] the entire course of conduct with the Professor and [Timofeev] regarding his efforts to establish meetings between the Campaign and Russian government officials.”

As I have noted, the grand jury testimony of at least one other person, Sam Clovis, appears to have downplayed that latter point, the assertiveness with which the campaign tried to set up meetings with the Russians. That and the limited hangout of these details shared with the WaPo in August suggests Trump people, collectively, know that email records show evidence the campaign was trying to set up meetings, and that more than one person has been lying to downplay how assertive they were.

The false statements as laid out in the affidavit supporting the complaint, however, have a significantly different emphasis. False statements 1 and 2 (as I’ve numbered them) were treated as one discussion under the heading “False Statements by PAPADOPOULOS Regarding Foreign Contact 1.” The first three paragraphs of the discussion look like this:

13. During the course of his January 27, 2017 interview with the FBI, GEORGE PAPADOPOULOS, the defendant, acknowledged that he knew a particular professor of diplomacy based in London (“Foreign Contact 1”). Foreign Contact 1 is a citizen of a country in the Mediterranean and an associate of several Russian nationals, as described further below. PAPADOPOULOS stated that Foreign Contact 1 told him that the Russians had “dirt” on Clinton.

a. PAPADOPOULOS told the Agents that, in the early part of 2016, Foreign Contact 1 “actually told me that the Russians had emails of Clinton. That guy told me.” PAPADOPOULOS further stated that Foreign Contact 1 told him that the Russians “have dirt on her,” meaning Clinton, and that “they have thousands of emails.”

b. PAPADOPOULOS, however, claimed to have received this information prior to joining the Campaign. He told Agents: “This isn’t like [Foreign Contact 1 was] messaging me while I’m in April with Trump.”

c. PAPADOPOULOS stated that he did not tell anyone on the Campaign about the “dirt” on Clinton because he “didn’t even know [if] that was real or fake or he was just guessing because I don’t know, because the guy [Foreign Contact 1]  seems like he’s … he’s a nothing.”

Laid out this way, the description of the false statements makes the import of them far more clear (import that the Special Counsel seems to want to obscure for now). Papadopoulos lied about the circumstances of his conversations with Mifsud — the FBI appears to have believed when they arrested him in July — as part of a story to explain why, after having heard about dirt in the form of thousands of emails from Hillary, he didn’t tell anyone else on the campaign about them. Laid out like this, it’s clear Papadopoulos was trying to hide both when he learned about the emails (just three days before the DNC did, as it turns out, not much earlier as he seems to have suggested in January), but also how important he took those emails to be (which in his false story, he tied to to a false story about how credible he found Mifsud to be).

FBI found those lies to be significant enough to arrest him over because they obscured whether he had told anyone on the campaign that the Russians had dirt in the form of Hillary emails.

To be sure, nothing in any of the documents released so far answer the questions that Papadopoulos surely spent two months explaining to the FBI: whether he told the campaign (almost certainly yes, or he wouldn’t have lied in the first place) and when (with the big import being on whether that information trickled up to Paul Manafort and Jared Kushner before they attended a meeting on June 9, 2016 in hopes of obtaining such dirt).

I’m sure that’s intentional. You gotta keep everyone else guessing about what Mueller knows.

But we can be pretty sure what the answers are.

Between the time they arrested Papadopoulos and the time he pled guilty, he became more forthcoming about his extensive efforts to broker a meeting between the campaign and the Russians, something Mifsud made clear was a high priority for the Russians. Mueller is perfectly happy — after securing the testimony of people like Clovis — to let everyone know that.

But Mueller is still hiding the pretty obvious answer to the question about whether Papadopoulos lied about Mifsud specifically to hide that he told people on the campaign that Russians had emails to deal in conjunction with such meetings.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including Vice, Motherboard, the Nation, the Atlantic, Al Jazeera, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse in Grand Rapids, MI.