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Dear Editors: Stop Trying to Predict the Mueller Report

Darren Samuelsohn, who gets credit for one of the most important courthouse scoops of the Mueller investigation — the challenge of a Mueller subpoena by a foreign-owned corporation — wrote a piece laying out, “The week that could reveal Mueller’s end-game.” It relies heavily on analysis from Matt Miller, who was among those people saying not just that Mueller was substantially done three weeks ago (apparently true) but that he would issue his report (didn’t happen as predicted). He also quotes Ty Cobb promising Mueller will finish by mid-March, which is something like 16 months after he first predicted the end date.

Yet Samuelsohn’s piece doesn’t mention his own Mystery Appellant scoop, which is currently scheduled for discussion on SCOTUS’ March 22 conference (and would take some time to coerce compliance after that), at all. This appears to be a case where a foreign owned corporation is shielding the potentially criminal behavior of an American citizen by claiming only the President can coerce it to comply, the kind of appellate question that might rival the one decided in US v. Nixon. Solicitor General Noel Francisco’s role in the defense of the subpoena seems to indicate the high stakes of this challenge. Yet even Samuelsohn seems ready to believe that the resolution of this challenge won’t hold up the end game of the Mueller investigation.

Samulesohn also doesn’t mention Andrew Miller’s challenge to a Mueller subpoena. He lost his challenge in the DC Circuit on February 26, but depending on whether this challenge is treated as a criminal or civil one, he still has time to ask for an en banc reconsideration. In the wake of Roger Stone’s indictment, Mueller’s team told Miller’s lawyer they still need his client’s testimony, apparently for other charges. Admittedly, that could just involve a superseding indictment for Stone down the road — which might explain why Mueller was looking for 8 months before trial — but it’s a loose end that won’t be tied anytime soon (unless Miller quietly complied without anyone noticing).

Even among the details that Samuelsohn lays out (status reports in Flynn and Gates, a gag review and status hearing in Stone’s case, and sentencing for Manafort), he misses a really intriguing one. In the wake of Mueller’s clarification regarding the circumstances behind the printing of polling data on August 2, 2016 and which oligarchs that got that data are Russian (a clarification that made it clear they reinterviewed Rick Gates just a month ago), Manafort submitted a sealed motion (docket 538) for Amy Berman Jackson to reconsider her breach determination.

In a minute order filed last Monday, she approved the filing of that motion under seal, but ordered Manafort’s lawyers and Mueller’s to get together to agree on a set of redactions to release that motion. While there have been several sealed motions submitted since then, we don’t yet have that motion for reconsideration.

Manafort’s lawyers have been working hard to publicly reveal details — spun using any of a variety of changing cover stories — about that August 2 meeting since last summer. They’ve already lost a bid to unseal more details of this dispute from one of the past hearings, and they may have lost a dispute here (or it may something that will be aired in Wednesday’s sentencing hearing).

It’s interesting not just that Manafort’s lawyers, in their relentless bid to perform as the guy holding the pardon pen most wants them to perform, are still trying to explain away why Trump’s campaign manager provided data to be shared with Russia at the same meeting he discussed what amounts to relief from the Ukraine related sanctions. But even as Kevin Downing tries yet again to offer a cover story, Mueller appears to be successfully hiding the full details of this incident.

If they’re done, there’s no reason to hide these details, yet ABJ seems to agree they do have reason to hide them.

It is at once possible — likely even! — that the bulk of the investigative work is done (allowing Mueller’s lead Agent to be put in charge of the Richmond FBI Office), but that there are remaining threads that Mueller needs for his final “report.” It’s even possible that everyone misunderstands what form that final report will take.

But thus far no editor has produced a story that adequately describes the signs of a nearing end that adequately accounts for the number of known loose ends that will take some weeks to be tied.

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

Which Came First: The Indemnity Fail or Cohen’s Cooperation Curiosity?

Michael Cohen is suing Trump Organization for refusing to fulfill an indemnity agreement they had. By itself, the suit offers the promise that these shitholes will rip each other apart in court. Discovery could be awesome, especially since the suit names Eric and Don Jr.

It also may lead other members of the Joint Defense Agreement to question how long Trump will remain loyal to them.

But I’m acutely interested in the timeline the lawsuit draws out for what it says about Trump’s efforts to cover-up his own criminal actions, laid out below. The italicized entries are ones I’ve added to Cohen’s own timeline — many of those dates come from this post on the timeline of the Special Master review of materials seized in the raid of Cohen’s home. The underlined ones are ones in Cohen’s complaint that I’ve editorialized on, to note where someone is known to have told a lie that coordinated with Cohen’s own lies.

As you can see, Trump’s spawn were happy to pay Cohen’s legal bills so long as he continued to tell the agreed upon lies.

But that changed when he got raided in April 2018. As I’ve noted, even though Cohen and Trump succeeded in getting a Special Master appointed to review all the discovery, that appointment didn’t succeed in withholding any of the most damning materials. But the Special Master process did give Trump an opportunity to review what Cohen had — including to identify what he had tape recordings of.

This probably led them to two conclusions. First, because Cohen had taped incriminating conversations (to ensure he’d get paid, Cohen explained in his OGR testimony), he had exposed Trump where he otherwise wouldn’t have been exposed. But because he hadn’t taped the most damning conversations — those implicating the Trump Tower Moscow deal and other Russia-related issues — they could fuck him over with relative impunity.

And that’s about when Trump stopped paying for Cohen’s silence. Notably, Cohen’s filing states that “On June 2018, Mr. Cohen began telling friends and family that he was willing to cooperate with the Special Counsel,” as if there once was a date there. He doesn’t give us that date.

But we can see from the timeline that it happened at a key point in the Special Master review, which is the same time Trump stopped paying for Cohen’s silence.

Two things are unclear to me.

First, as the title suggests, which came first, Cohen’s willingness to cooperate, or Trump’s newfound unwillingness to pay. My bet is it’s the latter, and my bet is it was a response to what they were seeing in the Special Master review. That is, once they decided that Cohen couldn’t hurt them, they cut him free, to sink on his own.

I’m also curious about why Cohen included Papadopoulos, Manafort, Gates, Page, Sessions, and Flynn in his timeline. He is not known to have testimony relating to any of these people — except, perhaps, Manafort. And they weren’t the only ones in Trump’s JDA (Gates has said he was never in the JDA) to have testified in this period (for example, KT McFarland had her first interview).

But it suggests Cohen may have more on the JDA he’s hanging over the others. Which may get litigated in this suit.

Timeline

August 2016: Karen McDougal catch and kill.

October 2016: Stormy Daniels hush payment.

January 13, 2017: SSCI opens Russian investigation.

January 25, 2017: HPSCI opens investigation.

January and February 2017: Cohen seeks reimbursement for hush payment to Daniels.

March 2017: Cohen named RNC Deputy Chair.

May 17, 2017: Mueller appointed.

~May 18, 2017: Cohen meets with Trump and Jay Sekulow, implicitly agree to tell a cover story.

End of May 2017: Cohen lawyers up with McDermott Will & Emery.

May 31, 2017: HPSCI subpoenas Cohen.

July 2017: Trump Organization enters into indemnity agreement in context of joint defense agreement.

August 28, 2017, Cohen sends letter making false statements to HPSCI and SSCI.

September 7, 2017: Don Jr testifies before SJC, repeating Cohen’s false statement on Trump Tower Moscow.

September 19, 2017: Cohen lies to SSCI about Trump Tower Moscow.

September 26, 2017: Roger Stone lies to HPSCI about relaying information about WikiLeaks to campaign, including Trump.

October 5, 2017: George Papadopoulos pleads guilty to making false statements to FBI agents relating to contacts he had with agents of the Russian government while working for the Trump Campaign.

October 25, 2017: Cohen testifies to SSCI, lying about Trump Tower Moscow.

October 25, 2017: First payment, in sum of $137,460, to McDermott.

October 30, 2017: Paul Manafort and Rick Gates indicted by a federal grand jury, including conspiracy against
the United States

November 2, 2017: Carter Page testifies before HPSCI.

November 14, 2017: AG Jeff Sessions testifies before HJC.

December 1, 2017: Mike Flynn pled guilty to lying to the FBI about conversations he had with the Russian ambassador.

December 6, 2017: Don Jr testified before the HPSCI, sustaining Cohen’s lies about Trump Tower Moscow.

December 2017: Don Jr and Eric Trump confirm they will continue to pay Cohen’s attorneys’ fees and expenses.

March 6, 2018: Daniels files a lawsuit against Trump and Cohen in CA seeking to invalidate NDA.

March 26, 2018: Daniels amends lawsuit to allege that Cohen defamed Daniels through public statements he made in or around February 2018.

~March 20, 2018: McDougal files a lawsuit against AMI seeking to invalidate the NDA.

April 5, 2018: Trump says, of payment to Daniels, “You’ll have to ask Michael Cohen. Michael is my attorney. You’ll have to ask Michael.”

April 9, 2018: Cohen raided.

April 9, 2018: Trump states, “So, I just heard that they[, the FBI,] broke into the office of one of my personal attorneys, a good man, and it’s a disgraceful situation. It’s a total witch hunt. I’ve been saying it for a long time. . . . It’s an attack on our country in a true sense. It’s an attack on what we all stand for.”

April 13, 2018: Challenge to seized materials, leading to appointment of Special Master.

April 21, 2018: Rudy Giuliani associate Robert Costello emails Cohen and tells him he “can sleep well tonight” because he “has friends in high places” to reassure Cohen that the President was not made him. Emails also say,

I just spoke to Rudy Giuliani and told him I was on your team. He asked me to tell you that he knows how tough this is on you and your family and he will make (sure) to tell the President. He said thank you for opening this back channel of communication and asked me to keep in touch.

There was never a doubt and they are in our corner, Rudy said this communication channel must be maintained. He called it crucial and noted how reassured they were that they had someone like me whom Rudy has known for so many years in this role

April 21, 2018: Trump tweets, “The New York Times and a third rate reporter named Maggie Haberman, known as a Crooked H flunkie who I don’t speak to and have nothing to do with, are going out of their way to destroy Michael Cohen and his relationship with me in the hope that he will ‘flip.’ They use . . . non-existent ‘sources’ and a drunk/drugged up loser who hates Michael, a fine person with a wonderful family. Michael is a businessman for his own account/lawyer who I have always liked & respected. Most people will flip if the Government lets them out of trouble, even if . . . it means lying or making up stories. Sorry, I don’t see Michael doing that despite the horrible Witch Hunt and the dishonest media!”

April 26, 2018: On Fox & Friends Trump states that Mr. Cohen is a “good person” and “great guy” who handled “a percentage of my overall legal work. . . . He represents me – like with this crazy Stormy Daniels deal he represented me. And, you know, from what I see he did absolutely nothing wrong. . . . I hope he’s in great shape.”

April 27, 2018: Kimba Wood appoints Barbara Jones as Special Master. 

Through May 2018: Trump Organization continues to pay Cohen’s legal fees, totaling $1.7 million.

May 6, 2018: George Stephanopoulos asks Rudy Giuliani, “Are you concerned at all that Michael Cohen’s going to cooperate with prosecutors?” Mr. Giuliani responds, “No. I expect that he is going to cooperate with them. I don’t think they’ll be happy with it because he doesn’t have any incriminating evidence about the president or himself. The man is an honest, honorable lawyer.”

June 4, 2018: Jones issues first report (covering a number of Cohen’s recordings), disagreeing with three claims of privilege. 

June 6, 2018: Trump lawyer Joanna Herndon requests that any challenge to Special Master decision be sealed. 

June 7, 2018: SDNY demands that any legal discussions of challenges be public. 

June 8, 2018: Judge Wood agrees with SDNY, leading Trump to withdraw certain privilege claims. 

June XX 2018: Cohen begins telling friends and family that he was willing to cooperate with the Special Counsel and federal prosecutors in connection with the SDNY Investigation.

June 2018: Trump Organization ceases to pay McDermott’s invoices, without notice or justification.

June 13, 2018: Daniels files a new lawsuit in CA against former attorney, Keith Davidson, and Cohen, alleging that they “colluded” and “acted in concert” to “manipulate” Daniels and benefit Trump.

June 14, 2018: NYAG subpoenas Cohen in Charitable Foundation suit.

June 15, 2018; Trump says, “I haven’t spoken to Michael in a long time. . . . [H]e’s not my lawyer anymore.”

June 22, 2018: Judge Wood finds that Cohen didn’t do much privileged lawyering.

July 2, 2018: Jones begins releasing files to SDNY.

July 2, 2018: Cohen tells Stephanopoulos, “To be crystal clear, my wife, my daughter and my son, and this country have my first loyalty … I will not be a punching bag as part of anyone’s defense strategy. I am not a villain of this story, and I will not allow others to try to depict me that way.”

July 23, 2018: Cohen withdraws privilege claims from 12 recordings. 

July 26, 2018: On CNN Rudy claims of Cohen, “He has lied all his life” and that he is a “pathological liar.”

August 7, 2018: Cohen begins meeting with Mueller. At his first proffer, he lies.

August 21, 2018: Cohen pleads guilty in SDNY.

September 12, 2018: First truthful Cohen proffer with Mueller.

November 29, 2018: Cohen pleads guilty with Mueller.

December 12, 2018: Cohen sentenced.

December 16, 2018: Trump tweets, “Remember, Michael Cohen only became a ‘Rat’ after the FBI did something which was absolutely unthinkable & unheard of until the Witch Hunt was illegally started. They BROKE INTO AN ATTORNEY’S OFFICE!”

January 25, 2019: Cohen asks for reimbursement for $1.9 million in legal fees and $1.9 in restitution.

Update, March 14: Included Robert Costello email.

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

On the Exonerating Information Rick Gates Just Provided

Yesterday, the government submitted a notice clarifying the record on the Paul Manafort breach determination. The bulk of the filing describes that, after reading about the dispute in public reporting on the topic, Rick Gates provided additional information on the topic that may corroborate part of Manafort’s story.

The new Gates information necessarily pertains to the sharing of polling data. That’s clearly true because it discusses all the same evidence the government used to substantiate Manafort’s lies about the polling data:

  • Multiple Rick Gates 302s
  • Some other fact about August 2, perhaps the clandestine nature of the meeting
  • Kilimnik emails discussing the polling data (I now realize that the government’s declaration makes it clear they have 8 emails referencing the polling data)
  • A Paul Manafort email telling Gates to print out the polling data, with the polling data attached

Here’s where that evidence shows up in the filing:

In addition, that passage cites paragraphs of the declaration, ¶55 and ¶56, that by structure necessarily deals with the sharing of poll data.

At first, I thought Gates’ new information corroborated the NYT story about Manafort sharing data with Kilimnik twice, once in May and once in August. But I now lean towards the new information corroborating Manafort’s story that he asked Gates to print out that data for a campaign meeting that day.

I say that in part because the order in which the corroboration was treated, with Manafort’s email coming last. In addition, this passage seems to reflect Gates using the poll data to prepare for a meeting.

As to this passage, I suspect it clarifies that just one of the oligarchs that Manafort intended to receive the data was Russian — Oleg Deripaska — and that (as Andrew Weissmann appeared to say at one point) the other recipients were his Ukrainian paymasters.

The transcript appears to have been corrected on that point. If that is the only change, it wouldn’t really change the key fact that Manafort shared data with a guy who was a central player in the election year conspiracy.

ABJ hasn’t demanded any additional briefing on this topic, so she may agree with the government that the issue of the email doesn’t otherwise change her ruling. As the government notes, Gates’ self-correction makes him more credible, and suggests the story he is telling — which appears to sustain the same explanation for the August 2 meeting — is as helpful to Manafort as possible, which is not at all.

Update: In her minute order on this (doing nothing about the breach determination), ABJ did indeed order the passage (page 36 line 16) where she discussed the recipients of the data to be corrected, making it virtually certain Manafort shared the data with one Russian and two Ukrainian oligarchs.

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

Did Mueller Ask Manafort Any Questions about His Early May 2016 Meeting with Kilimnik?

I’ll be honest with you. The reason I did this post — showing that the polling data Paul Manafort shared with Konstantin Kilimnik on August 2, 2016 amounted to at least 75 pages — (and a whole lot of background work not shown) was because I wanted to puzzle through the NYT’s latest story on what Manafort shared with Kilimnik when. Ken Vogel (who bylined both the other stories repeating the cover story someone fed them in January), perhaps faced with mounting evidence they got lied to, now says Manafort shared polling data with Kilimnik twice, once at the May meeting they had, and again at the August one.

And around the same time that he was passing through Washington nearly three years ago — just as Mr. Trump was clinching the Republican presidential nomination — he first received polling data about the 2016 election from two top Trump campaign officials, Mr. Manafort and Rick Gates, as Russia was beginning a social media operation intended to help Mr. Trump’s campaign.

[snip]

Around the time of Mr. Kilimnik’s trip to the United States in spring 2016, Mr. Manafort directed Mr. Gates to transfer some polling data to Mr. Kilimnik, including public polling and some developed by a private polling company working for the campaign, according to a person with knowledge of the arrangement.

Mr. Manafort asked Mr. Gates to tell Mr. Kilimnik to pass the data to Mr. Lyovochkin and Mr. Akhmetov, the person said. Representatives for both Mr. Lyovochkin and Mr. Akhmetov said they neither requested nor received the data, and would have had no use for it.

Mr. Mueller’s team has focused on what appears to have been another discussion about polling data in New York on Aug. 2, 2016. A partly redacted court transcript suggests that Mr. Gates, who entered a plea agreement with the special counsel that requires his cooperation, may have told prosecutors that Mr. Manafort had walked Mr. Kilimnik through detailed polling data at a meeting that day in the cigar lounge of the Grand Havana Room in Manhattan.

The meeting also included a conversation about one Ukrainian “peace plan,” according to court filings.

I think if Vogel were more confident about this, it’d be the lede. BREAKING: suspected Russian asset got Trump’s polling data over and over.

Instead, Vogel tries to finesse the earlier report — which this coverage unambiguously marks as an error — so as to pretend that when the NYT reported that a court filing referred to Manafort sharing polling data with Kilimnik, the court filing meant that had happened in spring, not August. The court dispute — as Vogel’s reference to Mueller’s team’s focus now concedes — all pertains to August.

The publication history of the NYT “correction”

Side note: the publishing history of the original January 8 NYT article is of particular interest, especially since the Newsdiffs site apparently didn’t track this article, According to the Internet archive, the original story (bylined by Sharon LaFraniere and Ken Vogel) posted by 20:22 on January 8. The only description of the polling data comes in the lede:

Paul Manafort shared Trump campaign polling data with an associate tied to Russian intelligence during the 2016 campaign, prosecutors alleged, according to a court filing unsealed on Tuesday.

The first version of the story to include more detail posted at 3:51 on January 9. This is the first version that includes Maggie Haberman on the byline (and Scott Shane and Andrew Kramer as contributors). This is the version that said Manafort knew Kilimnik was going to share the data with Oleg Deripaska. But it also introduces two things that are inaccurate: the timing, and that the data was public.

As a top official in President Trump’s campaign, Paul Manafort shared political polling data with a business associate tied to Russian intelligence, according to a court filing unsealed on Tuesday. The document provided the clearest evidence to date that the Trump campaign may have tried to coordinate with Russians during the 2016 presidential race.

[snip]

The document gave no indication of whether Mr. Trump was aware of the data transfer or how Mr. Kilimnik might have used the information. But from March to August 2016, when Mr. Manafort worked for the Trump campaign, Russia was engaged in a full-fledged operation using social media, stolen emails and other tactics to boost Mr. Trump, attack Mrs. Clinton and play on divisive issues such as race and guns. Polling data could conceivably have helped Russia hone those messages and target audiences to help swing votes to Mr. Trump.

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

Mr. Manafort asked Mr. Gates to tell Mr. Kilimnik to pass the data to Oleg V. Deripaska, a Russian oligarch who is close to the Kremlin and who has claimed that Mr. Manafort owed him money from a failed business venture, the person said. It is unclear whether Mr. Manafort was acting at the campaign’s behest or independently, trying to gain favor with someone to whom he was deeply in debt. [my emphasis]

So at that point, the story was:

  • Byline includes Maggie for the first time
  • Shared in spring
  • Mostly public
  • Intended for Deripaska

The story posts in a “corrected” form sometime before 19:23 on January 9. It retains the timing and public data claims, but changes the recipient with a “correction,” even while retaining an earlier paragraph about Deripaska that (particularly given the August handoff) should disprove the “correction.” It also adds a paragraph effectively admitting that it isn’t as obvious why two Ukrainian oligarchs would want the polling data in the way that Deripaska would have an obvious use for it.

About the same time, Mr. Manafort was also trying to curry favor with Oleg V. Deripaska, a Russian billionaire close to the Kremlin and an associate of Mr. Kilimnik. In July 2016, Mr. Manafort, then the Trump campaign chairman, told Mr. Kilimnik that he could offer Mr. Deripaska “private briefings,” according to emails reported by The Washington Post. Mr. Deripaska had claimed Mr. Manafort owed him millions from a failed business venture, and Mr. Manafort may have been trying to use his status in the campaign to hold him at bay.

[snip]

Mr. Manafort asked Mr. Gates to tell Mr. Kilimnik to pass the data to two Ukrainian oligarchs, Serhiy Lyovochkin and Rinat Akhmetov, the person said. The oligarchs, neither of whom responded to requests for comment, had financed Russian-aligned Ukrainian political parties that had hired Mr. Manafort as a political consultant.

Why Mr. Manafort wanted them to see American polling data is unclear. He might have hoped that any proof that he was managing a winning candidate would help him collect money he claimed to be owed for his work on behalf of the Ukrainian parties.

[snip]

A previous version of this article misidentified the people to whom Paul Manafort wanted a Russian associate to send polling data. Mr. Manafort wanted the data sent to two Ukrainian oligarchs, Serhiy Lyovochkin and Rinat Akhmetov, not Oleg V. Deripaska, a Russian oligarch close to the Kremlin.

There’s a part of me that wonders whether NYT was not so obstinate on the issue of this data being public and shared in spring because they’ve seen lawyers notes or even the 302 of Manafort’s testimony that Amy Berman Jackson has since ruled to be a lie. They’re still sourcing the claim to one individual in the know, which seems like pretty shaky sourcing to ignore after the plain language of the official court transcript of the February 4 hearing made it clear this was an August hand-off. So it may be they’ve got a non-public document that leads them to believe this is the case, even if that non-public document is just a record of Manafort lying.

Weissmann may have corrected the NYT in the breach determination hearing

But we know that after the NYT story, with its prominent Deripaska claim followed by its “correction,” the government submitted a declaration on January 15 in which most of the discussion of polling data was entirely redacted, then argued the point at length on February 4. In addition to Richard Westling’s comments that make it clear this wasn’t mostly public data, Andrew Weissmann argued (in passage that was mistakenly attributed to Westling in the transcript), that Manafort knew the data would be shared with two entities.

As noted, the last redaction in this passage would fit neither of the Ukrainian oligarchs named but would fit Deripaska, though that’s just one possibility. That said, given that the meeting was on August 2, in the context of Manafort “getting whole” with Deripaska, it would be inconceivable that Kilimnik would share the data only with the Ukrainians.

In addition to saying that Manafort was telling the lies he told in a bid to sustain hopes for a pardon, Weissmann also makes a reference to a lie told “three weeks ago.” Given the redaction fail, we can be certain that nothing in the Manafort filing (which was technically more than three weeks before the hearing) could be that lie. But the “correction” to the NYT could be.

Weissmann also moves directly from that discussion to an assertion that the question of sharing polling data went straight to the heart of Mueller’s mandate — investigating “witting or unwitting” coordination with Russia.

MR. WEISSMANN: So — so, first, in terms of the what it is that the special counsel is tasked with doing, as the Court knows from having that case litigated before you, is that there are different aspects to what we have to look at, and one is Russian efforts to interfere with the election, and the other is contacts, witting or unwitting, by Americans with Russia, and then whether there was — those contacts were more intentional or not. And for us, the issue of [2.5 lines redacted] is in the core of what it is that the special counsel is supposed to be investigating.

And we know from Amy Berman Jackson’s breach determination ruling that she found this was indeed a link with Russia — not Russian backed oligarchs, but Russia.

That’s circumstantial, but it seems that Weissmann was rebutting the notion that Manafort intended Kilimnik to share this information exclusively with Ukrainians, and not Russians. Whatever the case, ABJ has ruled that the sharing of this data did entail a link with the Russian government.

Manafort invokes some earlier meeting as a last ditch ploy in his final filing

Which brings me to ABJ’s mention of a totally new argument that Manafort apparently raised in their final brief.

Some background to this brief. During the debate over the polling data on February 4, Manafort’s lawyers tried to rebut the claim first by Richard Westling spinning the data, then by Kevin Downing claiming that Rick Gates had no credibility, as proven (he claimed) by Gates’ flop before the EDVA jury. ABJ then, on her own, gets the public report from a juror on the EDVA jury to prove Downing’s attacks are overblown. Through it all, the possibility that Gates might be called in to testify on this issue (which of course would allow ABJ to decide that he’s way more credible than Manafort, but then most people are). Ultimately, Manafort’s lawyers say they don’t want that to happen, but say they’ll submit one more brief.

That’s the one I cited in this post, referencing the polling data and Kilimnik’s emails about them. According to ABJ in her judgment hearing, after the entire breach determination was done, Manafort’s team tried to make a totally new argument about what Manafort was saying when he told Gates to print out the polling data.

More important to me, there’s other corroboration. There’s Exhibit 233, an [redacted — remember, this exhibit is the email with polling data attached] Now, I was told on February 8th, for the first time, in the third pleading that was filed in response to these allegations and after the hearing was over, that when Mr. Manafort said [3 lines redacted] There’s nothing provided to substantiate that, but there’s also nothing in the record to indicate one way or the other that the two men had met previously [redacted]

All Gates said to the FBI in Exhibit 236 on January 30th was that [redacted]. Is that text alone definitive? Am I relying on that solely? No. But is it corroborative of Gates’s statement that [redacted] Yes.

This seems to be an effort to suggest that the first three times Gates claimed Manafort shared polling data in proffer sessions in January and February 2018 he was saying something different than what he was saying in what they claim was a brand new claim on September 28, in testimony parallel to Manafort’s own. There’s nothing in the unredacted passages of that filing that explain this argument (though it does reference data from “prior to the Republican Convention and the start of the General Election,” which could be July 15 or could be May 2.

Ultimately, the ploy doesn’t work. ABJ goes through two different Gates 302s from January and another (which may be the stuff that had been ex parte at the February 4 hearing) from February 7, 2018 that all corroborate that Manafort ordered Gates to print out the polling data to be shared at that August 2 meeting.

I’m interested in this for two reasons. First, this new argument, made a month after someone first gave a false story to the NYT, seems to be referencing an earlier meeting between … somebody. Maybe Gates and Kilimnik?

But I do find that to be an interesting detail for two reasons. First, as noted, the NYT story, without correcting their initial outright error that the court dispute pertained to the August 2 meeting, now claims that Manafort directed Gates to deal poll data twice, once in May and once in August.

And around the same time that he was passing through Washington nearly three years ago — just as Mr. Trump was clinching the Republican presidential nomination — he first received polling data about the 2016 election from two top Trump campaign officials, Mr. Manafort and Rick Gates, as Russia was beginning a social media operation intended to help Mr. Trump’s campaign.

[snip]

Around the time of Mr. Kilimnik’s trip to the United States in spring 2016, Mr. Manafort directed Mr. Gates to transfer some polling data to Mr. Kilimnik, including public polling and some developed by a private polling company working for the campaign, according to a person with knowledge of the arrangement.

Mr. Manafort asked Mr. Gates to tell Mr. Kilimnik to pass the data to Mr. Lyovochkin and Mr. Akhmetov, the person said. Representatives for both Mr. Lyovochkin and Mr. Akhmetov said they neither requested nor received the data, and would have had no use for it.

Is that what Manafort’s team invented at this late date? A claim that the reference in the August 2 email to sharing data with Kilimnik was about a meeting that had transpired three months earlier?!?!

The May Kilimnik meeting never shows up in the breach determination

But it does raise some interesting questions. Notably, it’s not clear whether the May 2016 meeting between Manafort and Kilimnik came up at all during his cooperation.

The government’s January 15 declaration sets a start date on Manafort’s lies, “Beginning on August 2, 2016, and continuing until March 2018, Manafort and Kilimnik communicated about a [peace deal],” but that seems to relate exclusively to that peace deal. It doesn’t rule out a discussion of that earlier meeting (though it does seem to rule out Mueller knowing that Ukrainian sanctions came up, which actually is a good thing for Trump given the stink around the Ukrainian language in the Republican platform in July). 

Which leaves three possibilities, apart from Manafort’s efforts to separate the sharing of polling data from the discussions about a Ukraine peace deal.

  • Prosecutors didn’t discuss the May meeting at all with Manafort during his cooperation
  • Prosecutors discussed the May meeting with Manafort (which may have included a meeting with Trump) and he told the truth about it
  • Manafort lied about the May meeting, but prosecutors didn’t want to lay out what they really know about it

All would be interesting. I mean, even aside from the possibility that Trump met Kilimnik, the early May meeting should be of significant interest because at least two other events closely coincide with it:

  • On May 4, Ivan Timofeev tells George Papadopoulos he has been cleared to start negotiations with Papadopoulos, which leads him to forward an email discussing such an offer to multiple people on the campaign, including (on May 21), Manafort
  • After their discussions about a Trump Tower had moved to Dust between January and May, Felix Sater sends Michael Cohen texts moving to set up his and Trump’s trips to Moscow.

In other words, May 4 or thereabouts, just a week after the Russians first dangled the emails to Papadopoulos, the plot appears to start up again. That coinkydink of significant events would seem to be something prosecutors would want to discuss with Manafort.

If they did, they’re not telling us whether he told the truth.

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

Quid Pro Quo Redux, Part Two: Russian Government Involvement in All Three Conspiracy Agreements

Given reports that Mueller will “report” imminently, I’m not sure I’m going to finish the second version of my Quid Pro Quo series laying out the evidence of a conspiracy between the Trump campaign and Russia trading campaign help and real estate deals for sanctions relief (here’s the initial series; here’s the first post of this second series). But I’d like to make a point as a way of showing that Amy Berman Jackson deemed Paul Manafort’s August 2, 2016 meeting with Konstantin Kilimnik to be evidence of a link between the Russian government and the campaign.

We know of at least five conversations at which various people entered into what I describe as a quid pro quo conspiracy:

  1. January 20, 2016, when Michael Cohen told Dmitry Peskov’s personal assistant that Trump would be willing to work with a GRU-tied broker and (soft and hard) sanctioned banks in pursuit of a $300 million Trump Tower deal in Russia.
  2. June 9, 2016, when Don Jr, knowing that currying favor with Russia could mean $300 million to the family, took a meeting offering dirt on Hillary Clinton as “part of  Russia and its government’s support for Mr. Trump.” At the end of the meeting, per the testimony of at least four attendees, Don Jr said they’d revisit Magnitsky sanctions if his dad won.
  3. August 2, 2016, when Paul Manafort and Rick Gates had a clandestine meeting with Konstantin Kilimnik at which Trump’s campaign manager walked Kilimnik through highly detailed poll data and the two discussed a “peace” plan for Ukraine understood to amount to sanctions relief.
  4. December 29, 2016, when (working on instructions relayed by KT McFarland, who was at Mar-a-Lago with Trump) Mike Flynn said something to Sergey Kislyak that led Putin not to respond to Obama’s election-related sanctions.
  5. January 11, 2017, when Erik Prince, acting as a back channel for Trump, met with sanctioned sovereign wealth fund Russian Direct Investment Fund CEO Kirill Dmitriev.

Remember: to enter into a conspiracy you have to agree to one object of a conspiracy (a conspiracy might have multiple objectives), and take an overt act to further that conspiracy. You don’t have to agree to all objects of the conspiracy, nor do you have to know about all parts of it.

The key conversations in this conspiracy, it seems to me, are the middle three: the June 9 Trump Tower plus dirt for sanctions relief agreement, the August 2 election assistance for sanctions agreement, and the December 29 reassurance that Trump would revisit Obama’s sanctions. The involvement of the Russian government in the fourth one — with Sergey Kislyak and Mike Flynn on a series of phone calls relaying messages back and forth between Putin and Trump — is obvious (as it is for the first and fifth).

It’s the other two where, in recent months, the government has solidified its proof of direct Russian government involvement.

Natalia Veselnitskaya, Russian government agent, at the June 9 meeting

They did so for the June 9 meeting on December 20 when they charged Natalia Veselnitskaya with obstruction of justice. The indictment alleges that an MLAT request served on the Russian government in the Prevezon case was actually drafted by Veselnitskaya. As Joshua Yaffa argued after the indictment was unsealed on January 8, the indictment will probably never result in prison time for Veselnitskaya but it does substantiate a claim that she is an agent of Russia.

In short, the U.S. Attorney’s office alleges that a document that was ostensibly prepared by the office of Russia’s general prosecutor and sent to its counterparts in the U.S. Department of Justice was in fact drafted, or at least edited, by Veselnitskaya herself, who then went on to cite the document as independent proof of her version of events. In this manner, the U.S. Attorney’s office alleges, “Veselnitskaya obstructed the civil proceeding in the Prevezon action then pending in this District.”

[snip]

Veselnitskaya is unlikely ever to return to the United States. This means that U.S. prosecutors are probably less interested in this particular, narrow matter than in what filing charges allows them to do going forward. “If the government wants on record that Natalia is a Russian government agent, this indictment serves this purpose,” the former member of the Prevezon defense team told me. That is to say, if and when charges are filed in relation to the Trump Tower meeting, prosecutors now have a building block on which to argue that, in her actions in the United States, Veselnitskaya did not represent merely herself and her client but the interests of Russian officials. That should worry Donald Trump, Jr., and Jared Kushner, who attended the meeting with Veselnitskaya, and, in turn, the President himself.

So when Don Jr told Veselnitskaya on June 9, 2016, that Trump would revisit sanctions if he won, he was effectively telling an agent of the Russian government that.

Konstantin Kilimnik, Russian government link, at the August 2 meeting

While the redactions require logic to demonstrate the case, Amy Berman Jackson’s explanation of her breach decision shows she believes that Konstantin Kilimnik — regardless of his alleged ties to the GRU — served as a link to the Russian government at that August 2 meeting.

Early on in the hearing, while ruling that she regards Manafort’s attempts to backtrack on his confession to conspiring with Kilimnik to witness tamper in 2018 to be bad faith but not proven, she questions Manafort’s loyalties while calling Kilimnik his “Russian conspirator.”

To me, this is definitely an example of a situation in which the Office of Special Counsel legitimately concluded he’s lying to minimize things here, he’s not being forthcoming, this isn’t what cooperation is supposed to be. This is a problematic attempt to shield his Russian conspirator from liability and it gives rise to legitimate questions about where his loyalties lie.

When she turns to the two-fold lies about Manafort’s ongoing meetings with Kilimnik (which starts on page 28, line 2), here’s what ABJ judges, up to the point where she talks about whether Kilimnik is a tie to Russia:

  • Manafort’s most problematic Ukraine peace deal lie is that he never discussed a peace deal after August because he thought it was a bad idea. His subsequent emails supporting one show that claim to be an “alternative narrative.”
  • Manafort’s denial of the Madrid meeting amounts to denying a contact. (29)
  • Manafort offered “a series of revised explanations” about providing questions for a poll on a Ukraine peace deal in conjunction with running another campaign in Ukraine. (29-30)
  • Manafort’s claims to have forgotten about the August 2 meeting because he was so busy running Trump’s campaign in fact show the opposite. That’s because sharing polling data “relates to the campaign.” If he was “so single-mindedly focused on the campaign, then the meeting he took time to attend” to share polling data and discuss a Ukraine “peace” plan had a purpose related to the campaign. Or, if he only took the meeting to curry favor with Ukrainian and Russian paymasters, “well, in that case he’s not being straight with me about how single-minded he was. It’s not good either way.” (31)
  • The clandestine nature of the meeting, with Gates and Manafort arriving and leaving separately “because of the media attention focused at that very time on Manafort’ relationships with Ukraine” further undermines his claims he can’t remember the meeting. (32)
  • In heavily redacted language, ABJ lays out why she finds Gates’ testimony on the August 2 meeting credible. (33-35)
  • There’s further corroboration surrounding the August 2 meeting, which Manafort appears to have tried to rebut with information newly submitted on February 8 (which seems to relate to an earlier meeting and may be an effort to suggest this was dated polling information). (34)
  • There are a series of emails from Kilimnik to somebody else (possibly ones sharing the information) that corroborate Gates’ story. (35)
  • The defense claim that the polls are gibberish doesn’t fly because Manafort, Gates, and Kilimnik all understood them. Indeed, these polls (presumably from Fabrizio) were the ones Manafort preferred and that Kilimnik would understand. (35-36)

The discussion of whether Kilimnik amounts to a tie to Russia starts on 36; it is a response to Manafort’s attempt to disprove that this exchange is material by arguing that Mueller has alleged, but not proven, that Kilimnik has ties to Russian intelligence (which suggests not even Manafort is claiming that these events don’t amount to a tie with Russia). ABJ starts that discussion by moving directly from describing (in a heavily redacted passage) who the intended recipients of the data were to the Russian question.

Also, the evidence indicates that it was understood that [redacted–poll data] would be [redacted] from Kilimnik [redacted] including [redacted], and [redacted]. Whether Kilimnik is tied to Russian intelligence or he’s not, I think the specific representation by the Office of Special Counsel was that he had been, quote, assessed by the FBI, quote, to have a relationship with Russian intelligence, close quote.

The only way that ABJ would make that transition, logically, is if the descriptions behind some of those redactions are Russians. If they were just the Ukrainian oligarchs the NYT claims they were, this entire passage — and Manafort’s attempted rebuttal of them (that is, to deny its import because Kilimnik himself has no ties to Russian intelligence) — makes zero sense.

Having made that transition, ABJ then lays out why she doesn’t have to determine whether Kilimnik is himself Russian intelligence to determine that he does amount to a tie to the Russian government.

Whether that’s true, I have not been provided with the evidence that I would need to decide, nor do I have to decide because it’s outside the scope of this hearing. And whether it’s true or not, one cannot quibble about the materiality of this meeting.

In other words, I disagree with the defendant’s statement in docket 503, filed in connection with the dispute over the redactions, that, quote, the Office of Special Counsel’s explanation as to why Mr. Manafort’s alleged false statements are important and material turns on the claim that he is understood by the FBI to have a relationship with Russian intelligence.

I don’t think that’s a fair characterization of what was said. The intelligence reference was just one factor in a series of factors the prosecutor listed. And the language of the appointment order, “any links,” is sufficiently broad to get over the relatively low hurdle of materiality in this instance, and to make the [redaction] Kilimnik and [redaction] material to the FBI’s inquiry, no matter what his particular relationship was on that date.

From there, ABJ dismisses the defense claim that because Kilimnik made comments about various loyalties (possibly to the press, possibly to the State Department), he couldn’t be Russian intelligence. She even suggests that an email sent on August 18, 2016, at a time when Manafort’s ties to Ukraine were becoming incredibly toxic, may not be all that reliable. She notes the timing: “Manafort was gone the next day.”

Having dismissed that claim, ABJ then judges that “Manafort made intentional false statements to the FBI and the grand jury with respect to the material issue of his interactions with Kilimnik, including, in particular, [redacted; this must either be a reference to the August 2 meeting generally or the sharing of polling data].

But then ABJ makes a more general statement, having reviewed the multiple efforts Manafort made to obscure his relationship with Kilimnik. In it, she repeats again that he is a link to Russia, whether or not he’s an active spy.

On that note, I also want to say we’ve now spent considerable time talking about multiple clusters of false or misleading or incomplete or needed-to-be-prodded-by-counsel statements, all of which center around the defendant’s relationship or communications with Mr. Kilimnik. This is a topic at the undisputed core of the Office of Special Counsel’s investigation into, as paragraph (b) of the appointment order put it, Any links and/or coordination between the Russian government and individuals associated with the campaign.

Mr. Kilimnik doesn’t have to be in the government or even be an active spy to be a link. The fact that all of this is the case, that we have now been over Kilimnik, Kilimnik, and Kilimnik makes the defense argument that I should find the inaccurate statements to be unintentional because they’re all so random and disconnected, which was an argument that was made in the hearing, is very unpersuasive.  [my emphasis]

To have ruled this conversation material, ABJ rules that Kilimnik (especially the sharing of this polling data, seemingly) amounts to a link with the Russian Government, whether or not he has ties to Russian intelligence. And note, this is a link to the Russian government, not just a link to a Russian like Oleg Deripaska.

We don’t know why that is so; it seems like it relates to the recipients of this polling data. But we know she considers him one, according to the preponderance of the evidence she has seen.

Mind you, if this is all moving just to a report claiming such a conspiracy, but stopping short of charging one, then it may not matter all that much.

But for the three main exchanges in which Trump flunkies entered into agreements that form part of a larger conspiracy, at least one key player has been deemed to have a tie to the Russian government this year (and of course the other two exchanges — Cohen to Peskov and Prince to Kirill — also have obvious Russian government involvement).

RESOURCES

These are some of the most useful resources in mapping these events.

Mueller questions as imagined by Jay Sekulow

CNN’s timeline of investigative events

Majority HPSCI Report

Minority HPSCI Report

Trump Twitter Archive

Jim Comey March 20, 2017 HPSCI testimony

Comey May 3, 2017 SJC testimony

Jim Comey June 8, 2017 SSCI testimony

Jim Comey written statement, June 8, 2017

Jim Comey memos

Sally Yates and James Clapper Senate Judiciary Committee testimony, May 8, 2017

NPR Timeline on Trump’s ties to Aras Agalarov

George Papadopoulos complaint

George Papadopoulos statement of the offense

Mike Flynn 302

Mike Flynn statement of the offense

Mike Flynn cooperation addendum

Peter Strzok 302 (describing Flynn’s interview)

Michael Cohen statement of the offense

Internet Research Agency indictment

GRU indictment

Senate Judiciary Committee materials on June 9 meeting

BuzzFeed documents on Trump Tower deal

Text of the Don Jr Trump Tower Meeting emails

Jared Kushner’s statement to Congress

Erik Prince HPSCI transcript

Government declaration supporting breach determination

Manafort breach hearing

Amy Berman Jackson breach determination hearing

Amy Berman Jackson order finding Manafort breached his plea deal

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

The Unseen Aspects of Paul Manafort’s Lies and Truth-Telling Are as Telling as the Ones We’ve Seen

As noted, yesterday Judge Amy Berman Jackson ruled that Mueller’s team had proven Paul Manafort lied in three of the five areas they accused him of lying about:

  • The kickback scheme via which he got paid
  • Meetings with Konstantin Kilimnik to share polling data and discuss a “peace” deal with Ukraine
  • The role of a 7-character named person in an attempt to salvage Trump’s campaign being investigated in another district

The ruling is damning, and Manafort now may face what amounts to a life sentence (though, in her order ABJ noted that whether she’ll give him credit for acceptance of responsibility at sentencing depends “on a number of additional factors”).

Yet, in spite of the mounting evidence that Manafort shared polling data at a meeting where he also discussed a Ukrainian peace deal (a backdoor way of giving Russia sanctions relief), in spite of how damning this breach discussion has been, ABJ’s ruling is still just one step in an ongoing process.

I say that for several reasons that have to do with what we didn’t see as part of this breach determination.

We’re only seeing half of Manafort’s cooperation

First, we’re only seeing material relating to half of Manafort’s cooperation. In his declaration on the breach determination, FBI Agent Jeffrey Weiland described Manafort’s cooperation to include 14 sessions:

  • 3 pre-plea proffer sessions: September 11, 12, and 13
  • 9 debriefing sessions: September 20, 21, 25, 26, 27, October 1, October 5, October 11, and October 16
  • 2 grand jury appearances: October 26 and November 2

If I’ve tracked everything properly, the descriptions of Manafort’s lies only include material from some of those sessions:

  • 3 pre-plea proffer sessions: September 11, 12, and 13
  • 5 debriefing sessions: September 20, 21, October 1, October 5, and October 16
  • 1 grand jury appearance: October 26

That means there are three debriefing sessions and a grand jury appearance we haven’t heard anything about yet:

  • 4 debriefing sessions: September 25, 26, 27, and October 11
  • 1 grand jury appearance: November 2

In the breach hearing, Richard Westling claimed that the material we’ve seen constitutes just a “small set” of the topics covered in Manafort’s cooperation and he says some of the other topics were “more sensitive topics.”

WESTLING: And I think, you know, the last point that I would make is that given that relatively small set of areas where this occurred, whether even the allegations are being made, you know, we note that there’s not really a lot to explain. There’s no pattern, there’s no clear motive that would suggest someone who was trying to intentionally not share information. And many of the more sensitive topics that we’re aware of from a — all of us paying attention to what’s gone in the news cycle over the last many months, you know, are things where these issues didn’t come up, where there wasn’t a complaint about the information Mr. Manafort provided. And so we think that’s important context as we get started here today.

THE COURT: Do I have — and I don’t think I need them for today, but I’m certain that what you just said is also going to be a part of your acceptance of responsibility argument and argument at sentencing. Do I have the 302s from 12 days of interviews? Do I have everything, or do I only have what was given to me because it bore on the particular issues that I’m being asked to rule on today?

MR. WEISSMANN: Judge, you do not have everything. We are happy to give you the — all of the 302s. We just gave you — you have, I think, the majority of them, but not all of them.

THE COURT: Okay. And I don’t know that — if I need them. But, it’s hard to assess — and I certainly don’t think they should be a public part of any sentencing submission. But, if you want me to put this in context of more that was said, it helps to have it.

Now, it’s possible that Manafort did tell the truth about these more sensitive topics. It’s possible that (for example, with regards to Trump’s foreknowledge of the June 9 meeting), Manafort lied but prosecutors don’t have proof he did. Or it’s possible they know he lied about other issues but for investigative reasons, don’t want to share the proof they know he lied.

One of the other topics Manafort would have been asked about — which Westling’s reference to “what’s gone in the news cycle over the last many months” may reference — pertains to Roger Stone’s actions.

ABJ asked for — and presumably has or will obtain — the rest of the 302s from Manafort’s cooperation, so she may end up agreeing with Manafort’s lawyers that some of his cooperation was quite valuable.

Mueller was interested in Manafort’s cooperation, in part, to obtain intelligence

As I’ve noted before, Andrew Weissmann described Manafort’s cooperation to be somewhat unusual for the extent to which Mueller was seeking intelligence, rather than criminal evidence. Though he makes clear that that was true, as well, of Rick Gates’ early cooperation.

[T]here’s enormous interest in what I will call — for lack of a better term — the intelligence that could be gathered from having a cooperating witness in this particular investigation

[snip]

And with Mr. Gates, we also wanted to make sure that we could get information, and we thought that there was — I think there was certainly a significant issue. And we dealt with it by having the defendant plead to something in addition to take — to have the ramification for it. But that is to show, I think, an example of wanting the intelligence, but dealing with what we considered to be, you know, unacceptable behavior from the Government, particularly from somebody whose information we would rely on, and potentially ask the jury to rely on.

So we may never see a great deal of what Manafort was asked about.

Mueller is still protecting an ongoing investigation

That said, Mueller is still protecting both his and the other DOJ ongoing investigation. We know what Mueller is protecting from the redactions in the transcript.

ABJ noted that much of what they discussed at the breach hearing could be unsealed, while noting that Mueller felt more strongly about keeping some things secret.

I think a large portion of what we discussed could be public. I think there are certain issues where you probably only need to redact out names and turn them back into entities. And then there are may be one or two issues where we’re really talking about something that was completely redacted at every point prior to this and will continue to be. And, hopefully, you’ll both be on the same page about that with respect to what of the investigation is not yet public. I think the Office of Special Counsel has the stronger point of view about that.

Certainly, all the names had to be redacted, under DOJ guidelines prohibiting the publication of anyone’s name who has not been charged. Likewise, the other investigation is not Mueller’s to reveal (in any case, it seems to be still active, even if Manafort’s refusal to cooperate may have protected the target of it).

But more of the rest of the discussion could have been unsealed if Mueller didn’t have ongoing interests in the topics. Those topics include Manafort’s ongoing communications with the Administration, Ukrainian peace deal/sanctions relief, and his sharing of polling data (though there’s one reference to sharing polling data on page 19 that may have gotten missed by the censors). Mueller redacted those things even though Weissmann makes clear that they believe the polling data goes to the core of what they are investigating.

MR. WEISSMANN: So — so, first, in terms of the what it is that the special counsel is tasked with doing, as the Court knows from having that case litigated before you, is that there are different aspects to what we have to look at, and one is Russian efforts to interfere with the election, and the other is contacts, witting or unwitting, by Americans with Russia, and then whether there was — those contacts were more intentional or not. And for us, the issue of [2 lines redacted] is in the core of what it is that the special counsel is supposed to be investigating.

Note his use of the present progressive. They’re still trying to answer the question about whether that August 2 amounts to witting conspiracy with Russia.

Mueller is still sitting on information about the shared polling data

It may well be that, given Manafort’s refusal to cooperate on this issue, Mueller will never be able to charge Trump’s campaign for sharing polling data with Russia in the context of sanctions relief.

But they are sitting on more information than came out publicly in this breach discussion. Starting on page 93 of the transcript, ABJ, on her own, brings up other information she has seen, that pertains to the topic.

THE COURT: I need to ask the Office of Special Counsel about something ex parte because — and so I apologize for that, but I need to do that. And it may be after I talk to them, they tell me there’s no problem with sharing it with you. But I have received information in this case, in this binder, and in other means, and I just want to make sure I understand something. And so, I can’t — I need to ask —

MR. DOWNING: We would object. But we don’t know he —

THE COURT: I note your objection. And I will deem your objection also to be a request that what we’re about to discuss be revealed to you. And that will be the first thing I’m going to ask. And we can do it at the end, after we’re done, or you can just have him come to the bench for a minute.

The ex parte discussion on this topic is fairly short. But after the lunch break, Weissmann tells ABJ that the material she was thinking of remains redacted. But he does point her to two Gates 302s from early in his cooperation that seem to provide some of the same information.

THE COURT: All right. Let me start with you, Mr. Weissmann. Is there anything further you can add to what we talked about, that you can add publicly?

MR. WEISSMANN: Yes. Yes, Your Honor. So, we haven’t finished our review, but we believe that the material that you asked about was redacted.

THE COURT: Okay.

MR. WEISSMANN: However, I would like to direct your attention to two exhibits in the record. If you recall, I mentioned that I recalled that Mr. Gates had, very early on in his cooperation, given us information about [redacted]. And there are two 302s that are dated in, I believe, both in January of 2018. So before he actually pled guilty, so in connection with his proffers. So, the first one is Exhibit 222. And if you look at page 17 of that exhibit, there’s a long explanation of communications with [redacted] that refer to [redacted] at the direction of Mr. Manafort. And then if you look — and that is dated January 31st, 2018. And that was, of course, provided to counsel in connection with the Eastern District of Virginia trial. And Exhibit 236, and I believe I referred you previously to page 3, and I would also refer you to page 5. Both of those refer to [redacted] and also refer to the discussions of the — discussions of [redacted] at the August 2nd, 2016 meeting.

THE COURT: All right. I will look at all of that. So for right now, I’m going to leave the little conversation that we had ex parte, ex parte with your objection noted.

MR. WEISSMANN: Judge, we will continue to look to see if there is any portion that was unredacted to confirm that.

Given the issues she has presided over, this may pertain to one of the search warrant affidavits that Manafort tried to get completely unsealed last year, but which ABJ suggested pertained to other people.

In any case, there’s more on the sharing of polling data that ABJ knows about, this is relevant to its importance, but that does not appear in the unsealed transcript.

Mueller didn’t reveal all the evidence of Manafort’s attempts to contact the Administration

Finally, there appear to be communications between Manafort and Administration officials that Mueller did not release as part of this process. The government stated that clearly in a footnote (on page 27) of its breach declaration.

This is not a complete listing of such contacts Manafort had with Administration officials. Further, for the purpose of proving the falsity of Manafort’s assertions in this section, the government is not relying on communications that may have taken place, with Manafort’s consent, through his legal counsel.

And, in a bid to refute Manafort’s claim, in the redaction fail filing, that, “Mr. Manafort was well aware that the Special Counsel’s attorneys and investigators had scrutinized all of his electronic communications” because “Mr. Manafort voluntarily produced numerous electronic devices and passwords at the request of the Government,” Agent Weiland states that the FBI had found more than 10 devices or documents for which Manafort hadn’t shared a password.

Defendant said in his pleading that he has provided electronic to the government. However, although he has provided some electronic data, passwords, and documents, in more than ten instances he did not provide passwords to access his electronic communications, thumb drives, or documents.

Mueller’s team remains coy about how many of those 10 accounts, thumb drives, or documents they’ve been able to access without his assistance.

And Greg Andres provides some hints about what those other conversations involve: Manafort providing information about the investigation.

MR. ANDRES: Sure. Judge, throughout the interviews with Mr. Manafort and some of the issues we’ve discussed today, you see that he constantly either minimizes the information he has about the administration or any contact with the administration. So there’s an issue whether or not during his cooperation he’s communicating with [15 character redaction] or providing information about the questions or other things that are happening in the special counsel investigation, whether he’s sharing that with other people. And this is another example of Mr. Manafort —

THE COURT: That hasn’t been given to me as we’re troubled by this or he wasn’t truthful about that, so I don’t see how to put this in the context of that because I don’t know about that.

MR. ANDRES: Well, so for example, in the No. 4, the one that Mr. Manafort — that Mr. Weissmann just talked about with respect to the [redacted, other investigation], you see Mr. Manafort changing his story so as not to implicate either [redacted] or someone in [redacted]. I think, with respect to this issue, again, Mr. Manafort is trying to distance himself from the administration and saying he’s not having contact with the administration at a time when he’s under at least one indictment.

THE COURT: But you’re not suggesting right now that there’s more information in here about other efforts to distance himself from the administration or to deny a relationship or to deny reporting back to them?

MR. ANDRES: We’re not relying on any other evidence of that issue.

Particularly given that Manafort, between his early September proffers and his October 5 lies about the other investigation, managed to match his own testimony to that of the Trump associate being targeted in it, those communications may even date as recently as last fall (though that would mean he was communicating with the Administration from jail).

The fact that Mueller has other communications between Manafort and the Administration — but chose not to bolster their argument that Manafort lied about ongoing communications with the White House — suggests protecting what he wants to do with those communications is more valuable than convincing ABJ that Manafort lied about this topic (and, indeed, this is one of the two topics where she did not rule for the government).

For all the debate about whether Mueller is almost done or not, the things we didn’t learn about during this breach discussion are just as interesting as the things we did learn about. They suggest that all the discussion about cooperation deals (including my own) often forgets that Mueller is seeking both criminal evidence and intelligence on what the Russians were doing. They also suggest that Manafort may have provided testimony that bears on other parts of the investigation we’ve recently learned about (which might include Stone, or the Trump Tower deal) — but we can’t be sure whether Manafort told the truth, or whether he lied but Mueller either can’t prove or doesn’t want to reveal that he knows Manafort lied. They suggest that Mueller would still like to make the case, in whatever form, that Manafort intentionally gave the Russians polling data with the understanding that he’d push a Ukrainian peace deal that amounted to sanctions relief — but Manafort’s refusal to cooperate on this point might thwart that effort. Finally, they make it clear that Manafort remained a part of an effort to obstruct this investigation, including via means that bypassed the Joint Defense Agreement Trump has exploited.

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

Paul Manafort Sold Out Donald Trump — and His Anonymous Leakers Are Lying about It Publicly

Back when Paul Manafort’s lawyers redaction fail first revealed that Manafort lied about sharing polling data with Konstantin Kilimnik, someone made the following claim to the NYT:

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

Given what appears in the breach hearing transcript, that appears to be a totally blatant lie. And Manafort’s lawyers appear to have made similar cynical lies in that hearing to deny what Manafort had actually done.

For reference, here are the other filings on Manafort’s breach:

The data was incredibly detailed

The discussion of the polling data starts on page 82. Judge Amy Berman Jackson starts by noting that Manafort tried to deny the data had been shared and claimed at one point that it was just public data.

He said it just was public information.

Later in the hearing, when Manafort’s lawyers suggest that this was mostly public data — part of the claim that someone leaked to the NYT — ABJ asked then why the pollster (this is probably a reference to Tony Fabrizio, whom Mueller met with in the weeks before Rick Gates flipped and after Gates first revealed that they had shared the data) was making so much money.

In response, Richard Westling, from the same defense team working so hard to claim this was public data, then wildly shifted, arguing that the data was so detailed it would be meaningless to someone like him. In response, ABJ notes that that’s what makes the sharing of it so important.

But, as Weissmann lays out, not only had Kilimnik worked for Manafort (and therefore with this pollster, Fabrizio) for many years — so would know how to read the data — Manafort walked him through the data at the August 2 meeting.

Later in this exchange, ABJ has an ex parte discussion with the prosecutors, to see if something she’s been made aware of can be shared with Manafort’s lawyers. Remember: she is also presiding over Sam Patten’s case. Patten worked with both Gates and Manafort, and was working with Kilimnik in this period. He not only might be able to corroborate the data-sharing story, but he would be able to help Kilimnik use it, even if the years of working with Manafort hadn’t already prepared Kilimnik to do so himself. When Patten submitted a status report on December 31, it was filed under seal; his next status report is due on Monday.

The data was shared with multiple people, which Manafort considered a win-win

Andrew Weissmann lays out that Manafort ultimately admitted that the data would be shared both with a named individual and with some other entity. And he describes Manafort considering the sharing of that data to be a win-win, perhaps suggesting that it might help Donald Trump, but even if it didn’t, it would get him work in Ukraine and Russia down the road.

Weissmann returns to that — sharing this data, for Manafort, was a win-win, unless the fact that he shared the data subsequently became public.

Mr. Manafort had said there was no downside to Mr. Manafort doing it.

[snip]

MR. WEISSMANN: And meaning all of this is a benefit. The negative, as I said, was it coming out that he did this.

Of course, now it’s public and Manafort is willing to lie himself into further prison time to try to downplay that he shared detailed polling data with someone the FBI maintains has ties to the same Russian agency that hacked the DNC right in the middle of the campaign.

Update: JL notes that neither of the two Ukrainian oligarchs identified by NYT’s leakers, Lyovochkin and Akhmetov, fit the 9-character redaction after “Mr.” in the last screen cap. But “Deripaska” does. And we know this meeting was specifically focused on Kilimnik reporting back to Deripaska. In addition, Deripaska’s plane was in NY just after the meeting.

Manafort and Gates shared the data on August 2, not in the spring

At least according to ABJ’s understanding, Gates and Manafort shared the data not in the spring (as claimed to the NYT) but at the August 2, 2016 meeting at the Havana Club, to which — discussion elsewhere made clear — the two men came and left separately, emphasizing the clandestine nature of this hand-off.

ABJ’s understanding is backed by several Gates’ 302s, which must also correlate with emails that, per ABJ, corroborate Gates’ account.

Even before ABJ made that point, Westling appears to suggest that what Gates shared with Kilimnik was the most recent data.

One other reason this is important — but which didn’t get mentioned in this hearing: Manafort shared incredibly detailed polling information with someone who has ties to GRU a month before GRU went back to hack Hillary’s analytics. So they had very detailed data from both sides.

Kevin Downing twice attempts to render a jury verdict against Gates

Manafort’s team, generally, tries to claim that the sharing of polling data is just a matter of Gates’ word against Manafort’s, in spite of there being emails involving Manafort himself on sharing the data (and, apparently, emails showing whom Kilimnik shared them with).

But when ABJ notes that the poll data hand-off happened at the August 2 Havana Club meeting, in a fit of desperation, Kevin Downing claims that this all depended on Gates’ testimony and ABJ shouldn’t take anything he said as true because the jury found he totally lacked credibility. ABJ warns him twice not to go there.

MR. DOWNING: Your Honor, one other point. I know this Court hasn’t had the opportunity to review the testimony, probably, of Mr. Gates from Eastern District of Virginia, but he was found so incredible by the jury that a juror said to the press that they completely disregarded his entire testimony. So to the extent that this Court would cite Mr. Gates as any evidence, I think a review of the findings of the jurors in EDVA should be undertaken because if he is not corroborated —

THE COURT: Don’t. Don’t.

MR. DOWNING: Your Honor, it’s a fact.

THE COURT: I’m not going to base anything on what one juror said to the press.

In spite of having been warned once, Downing again returns to what the juror in EDVA said later in the hearing.

MR. DOWNING: And I will admit, on my end I won’t take it as a failure on my part because I did not think this Court wouldn’t take into consideration the fact how he was found to have no credibility at all by the jury over there.

THE COURT: You cannot keep saying that.

MR. DOWNING: I can keep saying it, Your Honor, because it’s true

THE COURT: First of all, you’re asking me to make a determination about what 12 jurors concluded because of what one juror was quoted in the paper as saying, which right now I don’t even have in front of me. But I believe she said we decided to vote on whether or not we could find him beyond a reasonable doubt, putting his testimony aside, which is different than saying we agreed, as 12 people, that nothing he said was true.

MR. DOWNING: That’s — that’s —

THE COURT: That’s totally different.

MR. DOWNING: I disagree with you. But I could go and get the press account of that.

THE COURT: I don’t know. I don’t have the press account. The press account is not evidence.

Downing floats bringing ABJ the press account himself, but then suggests he could provide the transcript. ABJ even offers to call Gates before her to testify.

Over lunch, ABJ goes on her own to find that press account. And, as she explains immediately after lunch, she doesn’t agree with Downing’s reading of it. Indeed, she calls it hyperbolic.

I went back and read the article that I believe I read at the time and, indeed, there was a juror who spoke publicly. She spoke publicly because she said she wanted the public to know that while she wanted Mr. Manafort to be not guilty, the evidence was overwhelming.

She indicated that the only reason he was not convicted on all counts was because of a lone holdout in the jury. She did not attribute that to Mr. Gates’s credibility. And reportedly, she did say, as I thought I recalled, some of us had a problem accepting his testimony because he took the plea. So we agreed to throw out his testimony and look at the paperwork. And then she added, I think he would have done anything to preserve himself, that’s just obvious in the fact that he flipped on Manafort.

So, I don’t believe — there’s certainly not anything in this record for these proceedings, or the public record, for that matter, that supports your argument that I should consider the fact that the jury unanimously concluded he was a liar, as was reported in the press by a juror, and threw out his testimony. I don’t believe that that is what the newspaper articles reported. Not that I would have relied on the newspaper article or what happened in the Eastern District of Virginia anyway, but I believe your argument was a little hyperbolic.

Manafort’s lawyers knew about this allegation because they tried to air it during the EDVA trial

In addition to trying to claim that this matter just pits Gates against Manafort, Manafort’s lawyers try to claim that Gates only made the claim about sharing polling data last fall, late in the process of his cooperation, meaning that they didn’t have an opportunity to prep their client on it.

I may be wrong about this, but we have a note — a September 27th, 2018 interview which we did not see until this submission was made, where Mr. Gates makes that statement.

Mr. Weissmann has suggested we had all of Mr. Gates’s 302s where he said this previously. I don’t think he said it before that interview. And so as far as we know, that’s new testimony from Mr. Gates compared to what he said in prior proffer sessions, where I think he said something more like it was more what was publicly available.

Weissmann corrects that by noting that at a proffer on January 30, 2018, Gates laid all that out.

Mr. Weissmann, with respect to the specific argument that they just made that this was a new twist by Mr. Gates, only in the 302 that they most recently received, do you have anything you want to add to that, respond to that?

MR. WEISSMANN: Yes, I do. So, I would direct the Court’s attention to Exhibit 236, which is a 302 with respect to Mr. Gates, and the date of that is January 30th, 2018.

He later notes the two 302s from early in Gates’ cooperation where that came up (it was actually January 31, not January 30).

In any case, after first raising Gates’ proffer from January mentioning Manafort sharing this polling data, Weissmann notes that Kevin Downing called attention to this during the EDVA trial.

Back in September, I suggested that Greg Andres’ success at getting this sidebar sealed probably had something to do with Manafort’s willingness to take a fairly shitty plea deal. It was a big fucking deal at the time. And the notion that Kevin Downing — who tried to get the information in the public record at the trial — is now claiming he didn’t know about it is simply contemptuous.

Manafort lied about sharing data with a Russian asset in hopes of getting a pardon

And this is where what appears to be at least the second reference in the hearing to Manafort’s hopes of getting a pardon appears (by context, this is almost certainly Weissmann, though the transcript labels it as Westling).

Manafort knows well what he did in August 2016. But he — and his lawyers, and whoever lied anonymously to the NYT — continue to lie about it in hopes that, by refusing to confirm that he conspired with Russia to get Trump elected, Trump will pay him off with a pardon.

The truth appears to be that Manafort walked Konstantin Kilimnik through recent, highly detailed polling data at a clandestine meeting in NYC on August 2, 2016, in part because even if it didn’t help Trump, it might help his own fortunes down the way. And he’s willing to bet that lying about that fact is his best chance for a pardon.

Update, from the comments: Eureka notes that the same night Manafort shared campaign data, probably with Oleg Deripaska, Stone defended him, insisting he was doing “everything humanly possible to help” Trump.

Aug 2, 2016 09:59:24 PM The idea that @PaulManafort is not doing everything humanly possible to help @realDonaldTrump win is patently false [Twitter for iPhone]

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

Pardons and Spooks: The Back Story of Paulie’s Plea

Yesterday, the court released a redacted transcript of the hearing on whether and how badly Paul Manafort violated his plea agreement.

The transcript makes it more clear than it already was that Manafort’s “cooperation” was a bid to avoid trial without helping the government prove that Trump conspired with Russia. Manafort did that by:

  • Inventing a rolling cover story for why the kickback scheme he used to pay himself as campaign chairman didn’t violate campaign finance (and money laundering) laws, including the ones prohibiting the coordination between campaigns and PACs
  • Claiming that while he may have pled guilty to conspiring with someone tied to Russian intelligence, Konstantin Kilimnik, Kilimnik hadn’t really wanted to conspire with him
  • Disclaiming an interest in a Ukraine peace deal (which the transcript appears to suggest he admitted amounted to sanctions relief) even though he showed an interest in it in the thick of the campaign, in December 2016, during the inauguration, a month after the inauguration, and even while facing down this prosecution
  • Accusing Rick Gates of lying about sharing polling data with Kilimnik
  • Changing his testimony regarding the criminal intent behind someone’s efforts — possibly Michael Cohen — to salvage Trump’s candidacy
  • Denying that efforts to reach out to Trump amounted to an ongoing relationship

The changed testimony, which I had previously thought pertained to Steven Calk but which very clearly relates instead to something closer to the campaign (possibly the campaign’s foreknowledge of efforts to kill the Access Hollywood story by using the WikiLeaks dump), is the most fascinating part of the transcript. I hope to return to it after today’s hearing with Matt Whitaker.

That said, the transcript might be most interesting for the way Mueller’s team describes the cooperation generally.

Andrew Weissmann framed the entire discussion by talking about why, just days before Manafort’s second trial, the government entered into a plea deal with him without first having verified the truth of what he proffered. He described two factors that weren’t present in normal circumstances that would lead them to do that. The first was a hope that Manafort could help them collect intelligence on the operation.

One was, there’s enormous interest in what I will call — for lack of a better term — the intelligence that could be gathered from having a cooperating witness in this particular investigation. And that would account for the Government agreeing to have Mr. Manafort cooperate, even though it was after a trial. Because that’s certainly an — not — not — it’s not that that never happens, but it’s more atypical.

The other is redacted, but it seems to be a reference to a pardon.

By the same token, there was an unusual factor — the second unusual factor, which was [1.5 lines redacted] the normal motives and incentives that are built into a cooperation agreement.

Much later, during the discussion of Manafort ordering Gates to pass on polling data, what appears to be one of the prosecutors even points to why Manafort would lie in hopes of increasing his chances for a pardon.

[redacted] would have, I think, negative consequences in terms of the other motive that Mr. Manafort could have, which is to at least augment his chances for a pardon.

I’ve been saying through this entire process that all the normal conclusions one might draw about someone making a plea deal have to be discarded given the way Trump has clearly floated pardons; the lesson applies here, as well as to Jerome Corsi (and probably applied to Michael Cohen before Trump realized he had no tapes of the most damning conversations they had).

It appears the prosecutors agree.

Update: Rereading the transcript while I wait for the Whitaker hearing to resume. Here’s another instance where Weissmann suggests the normal incentives to cooperate weren’t in place, presumably because of a hoped for pardon.

And to take — to go back to the example of Mr. Manafort’s saying to us: Well, that’s not what I said previously. What that showed is that the incentives of the agreement, where there are benefits to be had by cooperating, there are disincentives; because if you’re caught lying, that you can have serious consequences. It told us that those incentives were not working — were not working adequately. So, all of that factored into why we were making this decision.

Update: At the very end of the Matt Whitaker hearing today, TX Congresswoman Veronica Escobar asked the Acting Attorney General a really interesting question about pardons:

Escobar: Did you ever create, direct the creation of, see, or become aware of, the existence of any documents relating to pardons of any individual?

Whitaker: Uh, I am aware of documents relating to pardons of individuals, yes.

Admittedly, his response lacked any of his big “tells,” (such as drinking water or sneering or gritting his jaw), so this could be an answer pertaining to the normal role of the Attorney General in pardons (and Trump hasn’t pardoned all that many people, in any case). But it was an interesting exchange in any case.

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

The Timing of the Inauguration Subpoena

By last May, it was clear that part of Mueller’s investigation covered how Russians laundered money to Trump and his associates via his inauguration fund. It turns out that Sam Patten started talking to prosecutors about his own laundering of Ukrainian money into the inauguration that month. And during Paul Manafort’s trial last summer, Rick Gates had to admit to stealing money from Trump’s inauguration fund. Around that time, I started predicting that Mueller would spin off such “garden variety” corruption to other parts of DOJ.

Meanwhile, the press’ efforts to liberate Michael Cohen’s April 9 search warrant affidavits failed because so many other people were named in it.

Among the things seized in that raid was a recording from Cohen to Stephanie Winston Wolkoff, who handled some of the money that disappeared from Trump’s inauguration.

In April raids of Mr. Cohen’s home, office and hotel room, Federal Bureau of Investigation agents obtained a recorded conversation between Mr. Cohen and Stephanie Winston Wolkoff, a former adviser to Melania Trump who worked on the inaugural events. In the recording, Ms. Wolkoff expressed concern about how the inaugural committee was spending money, according to a person familiar with the Cohen investigation.

The Wall Street Journal couldn’t determine when the conversation between Mr. Cohen and Ms. Wolkoff took place, or why it was recorded. The recording is now in the hands of federal prosecutors in Manhattan, a person familiar with the matter said.

And yet it was just in recent days that SDNY has subpoenaed the inauguration committee for the materials that will reveal all the other ways that Trump profited off his inauguration.

The subpoena broadly asks for all documents related to the committee’s donors and vendors, including documents related to the Federal Election Commission filings in which the committee disclosed its donations. It also seeks records related to any “benefits” such as tickets, photo opportunities or receptions that donors received in exchange for their contributions.

[snip]

Among the subpoena’s requests is one for documents regarding any donations to the committee “made by or on behalf of foreign nationals, including but not limited to any communications regarding or relating to the possibility of donations by foreign nationals.”

The subpoena also asks for documents related to “donations or payments made by donors directly to contractors and/or vendors” used by the committee, including any communications related to the possibility of such donations being “made or directed to contractors or vendors.”

The subpoena seeks information relating to a bunch of conspiracy-related crimes — parallel to the crimes Mueller looked at in the Russian investigation, but including other countries.

It discloses that prosecutors are investigating a litany of potential crimes: conspiracy against the US, false statements, mail fraud, wire fraud, money laundering, inaugural committee disclosure violations, and violations of laws prohibiting contributions by foreign nations and contributions in the name of another person, also known as straw donors.

This investigation may explain why SDNY alum Guy Petrillo dropped Michael Cohen in recent weeks: since Cohen refused to cooperate with SDNY on what would have been this investigation, he’s likely to face further criminal exposure for his efforts to get rich off the big party.

My guess is that SDNY is only now getting around to digging into what is surely a vast swamp of corruption because Mueller asked them to wait until his inauguration related equities were done. Which may be consistent with reports that his investigation is coming to a head, perhaps pending just the Mystery Appellant, Andrew Miller, and William Barr’s confirmation. Which may mean that after the results in Mueller’s Russian investigation soften Trump up, this investigation will just be ripening, possibly even at a time where Trump can be indicted.

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

It’s Not So Much that Manafort Lied and Lied and Lied, It’s that His Truth Evolved

Paul Manafort submitted his filing arguing that he didn’t intentionally lie when he lied repeatedly to Mueller last fall. The structure of the filing largely tracks that of Mueller’s submission last week, though it appears to have a more substantive introduction to his discussions of a peace deal with Konstantin Kilimnik, resulting this organization:

  • Payment to/from Rebuilding America Now (0-series exhibits)
  • Konstantin Kilimnik’s role in witness tampering (100-series exhibits)
  • Interactions with Kilimnik (200-series exhibits)

a) Discussions of the Ukraine Peace Deal

b) One meeting

c) Another meeting

d) A 2018 proposal

e) Manafort’s false statements (almost certainly about sharing polling data)

  • Another DOJ investigation (possibly that of Steve Calk) (300-series exhibits)
  • Manafort’s contact with the Administration (400-series exhibits)

Did Manafort change excuses for forgetting about a Ukrainian peace deal?

This filing is heavily redacted, so it’d be rash to make conclusions based on what little we can see. But it seems possible Manafort is offering a slightly different excuse for forgetting some discussions about Ukrainian peace deals than he earlier offered.

In his redaction fail filing, Manafort claimed he forgot about his discussions with Kilimnik about peace because he was so busy running Trump’s campaign.

In fact, during a proffer meeting held with the Special Counsel on September 11, 2018, Mr. Manafort explained to the Government attorneys and investigators that he would have given the Ukrainian peace plan more thought, had the issue not been raised during the period he was engaged with work related to the presidential campaign. Issues and communications related to Ukrainian political events simply were not at the forefront of Mr. Manafort’s mind during the period at issue and it is not surprising at all that Mr. Manafort was unable to recall specific details prior to having his recollection refreshed. The same is true with regard to the Government’s allegation that Mr. Manafort lied about sharing polling data with Mr. Kilimnik related to the 2016 presidential campaign. (See Doc. 460 at 6).

I’ve observed that that’s a pretty shitty excuse for forgetting a Madrid meeting in 2017 and writing a report on a Ukraine plan in 2018.

But in this filing, Manafort seems to be arguing that he forgot about one discussion of a peace plan because he did not consider it viable, but he considered a different one viable.

During the interview, there was continual confusion when discussing [redacted] because Mr. Manafort differentiated between the [redacted] discussed at the [redacted], which Mr. Manafort did not feel would work and did not support, and [redacted]. While Mr. Manafort did not initially recall Mr. Kilimnik’s follow up contact about [redacted], after his recollection was refreshed by showing him email, he readily acknowledged that he had seen the email at the time.5

That still doesn’t seem to explain his 2018 peace plan — which he after all wrote a proposal for.

In any case, he seems to have significantly changed his excuse as the number of times he discussed Ukrainian peace plans proliferated well beyond the campaign.

Could Rick Gates make a showing?

In response to an ABJ order the government submitted a filing stating that it couldn’t say whether it would provide witness testimony Friday until after it saw Manafort’s filing.

The question of whether live testimony will be necessary to resolve any factual issue will depend on the defendant’s upcoming submission. The defense has not submitted any evidence to date. If it does not, the Court can resolve the factual issues based on the evidence submitted, drawing inferences regarding intent from that evidence, with the benefit of the parties’ arguments at the conference scheduled for January 25th. If there are material factual disputes, however, witness testimony will assist in the resolution of those issues. Finally, the government is of course prepared to proceed with witness testimony if the Court believes it will assist in resolution of the matter.

At the time, I imagined they were thinking only of the FBI Agent who submitted the declaration in the case.

But Manafort twice either reinterprets or disputes Gates’ testimony, once on whether Manafort told the truth about sharing polling data with Kilimnik.

And once (even more heavily redacted) on whether Manafort had ongoing contacts with the Administration (in an earlier filing, Manafort had claimed Mueller was relying on hearsay regarding one of its claims). So it’s possible that’s the witness the government had in mind.

That said, in the language in Manafort’s filing addressing whether addition evidence is needed, he said no additional evidence was needed.

Manafort believes that the information the Court has received, including pleadings and various exhibits, provide a sufficient factual record to allow the Court to decide the issues presented without the need for additional evidence.

Paulie still hiding the campaign finance violations

As I’ve noted before, the reason Manafort’s lies about getting a loan or whatever via Rebuilding America Now matter is that whatever the scheme entailed, it likely would have amounted to a campaign finance violation because he, the campaign manager, would have been coordinating (indeed, seemingly getting paid by!) a SuperPAC. It’s fairly clear he kept changing his story about this (though it remains clear, now, that the payment served to pay his legal fees). Ultimately, though, Manafort effectively says no-harm-no-foul because he paid taxes on the payment.

As Mr. Manafort clarified to the OSC, there was no agreement about the terms of the payment of Mr. Manafort’s legal fees. This resulted in confusion as to whether the funds amounted to a loan, income, or even a gift. In an abundance of caution, Mr. Manafort ultimately reported the amount as income on his tax returns.

[snip]

Finally, the OSC claims that Mr. Manafort lied when he discussed that the payment might have been a loan. (Doc. 474 at 4, ¶7). This discussion was aimed at explaining the loan agreement, which Mr. Manafort had not remembered previously, and his continuing confusion about how the money was being treated by the payor. The uncertainty of the terms of the payment were verified by Mr. Manafort’s civil attorney and accountant.

Importantly, it should be noted that Mr. Manafort reported the payment on his own tax return as income. See Gov. Ex. 15. Further, Mr. Manafort identified that the payment came from [redacted]. Id. At bottom, then, there was no attempt to conceal the payment or the source on the income tax return that he filed with the government, and he ultimately chose to report the payment as income—the most tax disadvantageous manner in which it could have been handled.

But that entirely dodges the reason why Manafort would have wanted to obscure the relationship here in the first place, which is that if he admits it was all thought out ahead of time then the Trump campaign is exposed legally.

ABJ insists on Manafort’s presence

Having read all these filings, in unredacted form, ABJ did set a hearing for Friday morning, as she said she might do. Manafort’s lawyers asked — as they have in past hearings — for Manafort to be excused (remember, it’s a pain in the ass to get transported from the jail). But ABJ refused this request, noting,

Given the number of court appearances defendant has been permitted to waive, the significance of the issues at stake, and the fact that his being available to consult with counsel may reduce the likelihood that the defense position with respect to the issues discussed will change after the hearing, defendant’s motion is denied without prejudice to future motions.

His lawyers are now asking for permission for him to wear a suit.

It’s hard to read what she means with the minute order — aside from wanting to resolve this issue at the hearing. She clearly isn’t treating the government’s claims as a slam dunk (nor should she, considering the grave consequences for Manafort).

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