Posts

The Closed Mueller Investigations: Erik Prince Skates on the Seychelles

Fresh off an ex parte hearing, DOJ released a spreadsheet of original Mueller redactions they’re now willing to withdraw (on top of the ones they withdrew after the Roger Stone trial).

There’s a bunch of Internet Research Agency redactions the government has withdrawn I won’t lay out.

More interesting are the select few the government withdrew pertaining to Trump flunkies.

There are three search warrants withdrawn:

  • A warrant for Rob Goldstone’s Facebook account (see footnote 298)
  • A warrant for George Papadopoulos’ Linked In account (see footnote 458)
  • A warrant for Erik Prince’s location data (see footnote 1047)

The only surprising disclosure is the last one. This suggests that any investigation into Prince’s lies about the Seychelles is good and dead.

Then there are the redactions of ongoing and referred investigations DOJ no longer considers secret. Those include:

  • The investigation of Podesta Group, Mercury/Clark & Weinstock, which SDNY closed
  • The references to FTI Consulting in the Greg Craig entry on D-4
  • An investigation into foreign campaign contributions, item 11 on ongoing investigations, which would have been closed by the DC US Attorney, and probably was the Mystery Appellant case.
  • A reference to Left Hand Ventures:
    • Left Hand Enterprises – During the course of the investigation, the Special Counsel’s Office uncovered evidence of potential wire fraud and FECA violations pertaining to Trump Campaign vendor Left Hand Enterprises That evidence was referred to the Public Integrity Section within DOJ’s Criminal Division and the FBI’s Washington Field Office
  • A reference to Rebuilding America Now:
    • Rebuilding America Now – During the course of the investigation, the Special Counsel’s Office uncovered evidence of potential FECA violations and potential kickback schemes pertaining to the Rebuilding America Now PAC That evidence was referred to the Public Integrity Section within DOJ’s Criminal Division and the FBI’s Washington Field Office

Both of the last two involve suspect Paul Manafort graft, including the kickback system by which he was suspected of getting paid.

This seems to suggest the investigation into some of Paul Manafort’s epic graft is also dead.

That means the bulk of the redacted ongoing investigations remain ongoing (or otherwise sensitive — and they could be counterintelligence investigations). They include around 10 referrals — including anything pertaining to Roger Stone (including Jerome Corsi) and the presumed George Nader child porn referral already prosecuted.

Update: Corrected an error to note the closure of item 11, the suspected bribe involving the Mystery Appellant. h/t d

Quid Pro Quo Redux, Part One: The Trump Tower Dangle

Last May, I wrote a series using the questions (as imagined by Jay Sekulow) Mueller had posed to Trump to lay out what theory of investigation Mueller might be pursuing — and what details we know about it. We’ve learned a lot more about the investigation and confirmed that the investigation focusing on Trump personally includes both a criminal and a counterintelligence component. I wanted to update the series. Because we know so much more about both sides of this quid pro quo, the organization of the series will be somewhat different.

November 9, 2013: During a 2013 Trip To Russia, What Communication and Relationships Did You Have with the Agalarovs and Russian Government Officials?

On November 9, 2013, Aras Agalorov helped Trump put on Miss Universe in Moscow; Trump Tower meeting attendees Rob Goldstone and Ike Kaveladze were both involved, as were Don Jr, Michael Cohen, and Keith Schiller. If the pee tape — or any kompromat involving “golden showers,” as Jim Comey claims Trump called it — exists, it was made on November 8, 2013.

The prior trip set up the 2016 quid pro quo in several ways. First, it deepened Trump’s desire for a Moscow Trump Tower — an effort the Agalrovs and Trumps pursued for years after the meeting. It established Trump’s enthusiasm for Vladimir Putin — though Putin reportedly disappointed Trump’s desire for a meeting on that prior occasion. It also introduced Trump to a bunch of other oligarchs.

Just after Trump kicked off his presidential bid, Emin invited Trump to his father’s birthday party in Moscow on November 8 (PDF 17), the first of a series of outreaches during Trump’s campaign which would continue through the election. The Agalarovs would remain the key handlers of the Trump family until shortly after the election, when first Sergei Kislyak, then Putin himself, would take over interacting with Trump and his family.

September 25, 2015 to November 2016: What Communication did you have with Michael D. Cohen, Felix Sater, and others, including foreign nationals, about Russian real estate developments during the campaign

By September 25, 2015, Felix Sater and Michael Cohen already had a Moscow design study completed for a Trump Tower in Moscow. Days later, Andrey Rozov was promising to build Donald Trump the tallest tower in Europe. In October 2015, Felix Sater (whose actions in brokering this deal seemed designed to ensure that Trump’s willingness to work with Russian military intelligence and sanctioned banks would leave a digital paper trail) started pitching the centrality of Putin to the deal. On October 28, at a time when his presidential bid was meeting unexpected success, Trump signed a Letter of Intent on a deal that stood to make him a fantastic sum of $300 million.

In the days after getting the signed letter of intent and in response to Trump publicly complimenting Putin at a press conference, Sater bizarrely tied the deal to getting Trump elected. He claimed to believe that if Putin complimented Trump’s deal-making prowess at a press conference tied to a then hypothetical Trump trip to Moscow, it would help Trump’s election chances.

Michael my next steps are very sensitive with Putins very very close people, we can pull this off. Michael lets go. 2 boys from Brooklyn getting a USA president elected.

Sater first tried to get commitments for both Cohen and Trump to travel to Moscow (with the documents to prove it) in December 2015. While Cohen was willing to share his passport, he held off on Trump’s. Perhaps as a result of Cohen’s increasing impatience with Sater’s swapping out a lightly sanctioned bank for a more compromising one, Cohen said he wanted to take more control. That led to him to reach out to Dmitry Peskov directly (who had been involved in Trump’s efforts to meet Putin in 2013), which in turn led him to have a 20 minute call with Peskov’s personal assistant on January 21, 2016. Over the course of that conversation, she would have taken notes recording Cohen committing to Trump’s willingness to work through a former GRU officer and with sanctioned banks to get his $300 million deal. By the next day, Putin’s office had that in hand, the first of many receipts he would obtain on Trump, making him susceptible to compromise regardless of what happened.

Cohen smartly shifted negotiations to the encrypted communication app Dust for a time. But when Sater renewed discussions about a trip to Russia to make this happen in May 2016, he did so on texts that would be accessible to law enforcement. And Cohen made it clear Trump had to seal the nomination before he would risk making his coziness with Putin public, making it crystal clear that the election and the Trump Tower deal remained linked in his brain.

Both Trump and Don Jr were thoroughly briefed on these negotiations. That means when Don Jr accepted a meeting offering dirt on Hillary as part of Russia’s support for Trump, he would have known that a $300 million real estate deal might depend on taking the meeting. Don Jr took the June 9, 2016 meeting and — per four sworn witnesses’ statements — agreed to revisit Magnitsky sanctions if his father won.

At almost exactly the moment that meeting broke up, Felix Sater texted Cohen to take the next step on a deal, a trip for him to St. Petersburg, potentially to meet with Putin personally. Oleg Deripaska and Sergei Millian (the latter of whom Cohen had also worked with in the past) would also have been at the event.

In the days after the Trump Tower meeting, Sater and Cohen were scrambling to put together the trip to St. Petersburg at the last minute. But they looked like they would pull it off, only to have the WaPo report, on June 14, 2016, that Russia hacked the DNC postpone the plans for the trip.

That said, Cohen only said, “he would not be traveling at that time.” The news that Russia hacked Trump’s opponent didn’t kill the deal. It just made it more difficult.

On July 22, 2016 — the day that WikiLeaks released the DNC emails — George Papadopoulos (possibly with the coaching of Ivan Timofeev) and Sergei Millian seem to have picked up keeping discussions of a deal alive from Cohen and Sater.

According to the President’s current teevee lawyer, Trump answered Mueller’s questions on this topic to allow for the possibility that the Russian deal remained active through November. He’s just not committing to any story about how long the deal remained (or remains) active.

One thing to remember about this Trump Tower deal. The deal was too good to be true (and to some degree that’s the point!). But it fed all of Trump’s character weaknesses. The promise of having the tallest tower in Europe would feed Trump’s narcissism. The fairly ridiculous claim Trump Organization stood to make $300 million off of it would have been irresistible to the highly indebted family.

And in exchange for that, Trump showed repeated and sustained willingness to deal with GRU-tied individuals and sanctioned banks. And at the June 9 meeting, his spawn made it clear he’d trade policy considerations to get the 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. 

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

How Trump “Directed” Don Jr’s June 9 “No Follow-Up” False Statement to Congress

In the New Republic, I have a piece expanding on what I laid out in my first post on last week’s BuzzFeed story. It should not have been a big deal that BuzzFeed claimed Trump had “directed” Michael Cohen to lie, because we already had plenty of evidence that Trump had induced his top aides to lie. In it, I note an even more clear cut example of Trump scripting his aides’ lies with the June 9 meeting.

Then last June, the Times published a January 2018 letter in which Trump’s lawyers admitted to Mueller’s office that “the President dictated a short but accurate response to the New York Times article on behalf of his son, Donald Trump, Jr.” The letter tied that statement directly to Don Jr.’s testimony to Congress about the infamous Trump Tower meeting in 2016, in which Don Jr. sought to procure damaging information about Hillary Clinton from Russian agents. “His son then followed up by making a full public disclosure regarding the meeting, including his public testimony that there was nothing to the meeting and certainly no evidence of collusion.” Trump’s statement to the Times claimed there had been “no follow-up” after the June 9 meeting, and Don Jr.’s testimony to Congress sustained that claim. But the public record shows there was follow-up after the election.

And I suggest, later in the piece, that what we know happened with the June 9 meeting is probably what happened with Cohen’s Trump Tower story.

Mueller has hinted that Trump’s other subordinates were involved in just one of these lies: Cohen’s. In a filing describing how Cohen explained “the circumstances of preparing and circulating his response to the congressional inquiries,” Cohen suggested he coordinated with “White House-based staff and legal counsel to Trump.”

That’s what the public record shows happened with Cohen’s statements about the Trump Tower meeting, in which he falsely claimed there was no “follow-up.”

As I suggested, how that happened is already in the public record, in documents released by the Senate Judiciary Committee.

As early as June 3, 2017, Trump Organization lawyer Alan Garten called Rob Goldstone to find out details about the June 9, 2016 meeting, including who the Russian lawyer who attended was. On June 26, Garten contacted Goldstone again to find out about and get contact information for Ike Kaveladze. In a call with Goldstone the next day, Garten expressed “concern” because the June 9 meeting “links Don Jr. to officials from Russia, which he has already denied meeting.”

On July 8, the White House put out a Trump (and Putin) statement claiming the meeting was only about adoptions, and therefore didn’t include any topic that was a campaign  issue. As part of that statement, Trump claimed that “there was no follow-up.”

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

On July 9, Don Jr put out his own statement, admitting that Goldstone had also offered dirt and that Magnitsky sanctions were discussed, but repeating that “no follow-up” line (as well as telling some other lies).

I was asked to have a meeting by an acquaintance I knew from the 2013 Miss Universe pageant with an individual who I was told might have information helpful to the campaign. I was not told her name prior to the meeting. I asked Jared and Paul to attend, but told them nothing of the substance. We had a meeting in June 2016. After pleasantries were exchanged, the woman stated that she had information that individuals connected to Russia were funding the Democratic National Committee and supporting Ms. Clinton. Her statements were vague, ambiguous and made no sense. No details or supporting information was provided or even offered. It quickly became clear that she had no meaningful information. She then changed subjects and began discussing the adoption of Russian children and mentioned the Magnitsky Act. It became clear to me that this was the true agenda all along and that the claims of potentially helpful information were a pretext for the meeting. I interrupted and advised her that my father was not an elected official, but rather a private citizen, and that her comments and concerns were better addressed if and when he held public office. The meeting lasted approximately 20 to 30 minutes. As it ended, my acquaintance apologized for taking up our time. That was the end of it and there was no further contact or follow-up of any kind. My father knew nothing of the meeting or these events. [my emphasis]

That’s when Goldstone — who had been on a cruise in Europe and so out of the loop — got angry that, after having asked for advance warning a week earlier, was now fielding calls from the press without first knowing what Trump had put out.

I had requested last week of you guys to see what was being put out, so I could be able to prepare our own statement but never received anything from you or your colleague. Can I please at least now see the statement you guys put out.

Goldstone wanted that statement, he explained to SJC, so he could match what Trump put out. “I just felt it would be useful if I knew what they had put out, the style, the type.” He wasn’t so much looking to coordinate; he was just trying to message effectively. “This — this  was area was really alien to me. I’m a music publicist. We talk about ego and nonsense. I’m not used to this kind of structured world.”

Then, on July 10, both Alan Futerfas and Alan Garten sent Goldstone a statement they wanted him to put out under his own name. It included the claim that there had been no follow-up.

As the person who arranged the meeting, I can definitely state that the statements I have read by Donald Trump Jr. are 100 percent accurate. The meeting was a complete waste of time, and Don was never told Ms. Veselnitskaya’s name prior to the meeting. Ms. Veselnitskaya mostly talked about the Magnitsky Act and Russian adoption laws, and the meeting lasted 20 to 30 minutes at most. There was never any follow-up and nothing ever came of the meeting. [my emphasis]

Goldstone told SJC he thought the “ludicrous” because it sounded nothing like him, and so kept trying to put out his own statement.

But (as SJC made clear in questions about the statement) the two Trump Organization Alans, who had been chasing down what happened at this meeting for over a month by the time they drafted a statement for Goldstone, had to have known that the statement they wanted Goldstone to adopt was partly incorrect (in spite of their exhortations that any statement be accurate). That’s because they would already have reviewed an email Goldstone sent to Rhonna Graff the previous fall.

On November 28, after ten days of efforts to set up another meeting for Veselnitskaya after the election and on directions that almost certainly had to have come from Don Jr, Goldstone sent Veselnitskaya’s latest statement on sanctions to Trump’s Assistant, Rhona Graff. On July 15, 2017, after Trump and Don Jr had already issued statements claiming there had been no follow-up to the meeting — and after Trump’s lawyers tried to get Goldstone to say that publicly, too — Graff forwarded Goldstone’s email back to show that there had, in fact, been follow-up.

Nevertheless, almost two months after Graff identified this proof of follow-up (there are also some calls between Don Jr and Goldstone that are in some ways even more damning, though Goldstone disclaims them), Don Jr continued to hew to the family line that there had not been follow-up.

Even in response to a direct question about it, Don Jr insisted there had been no follow-up,

Q. There was, in your view, no follow-up at all from this meeting?

A . Correct.

So Trump dictated a statement (and the lawyers tried to massage it even while leaving a number of lies in the statement), his son repeated it, his lawyers tried to get Goldstone to repeat it, even while they had clear documentary evidence it was not true.

And then Don Jr repeated that lie — there was no follow-up at all from this meeting — in September 2017, sustaining the lie his father first told, only this time to Congress, where it counts as a criminal false statement.

Last week, people on both sides of the aisle treated the BuzzFeed story as the first evidence that Trump had suborned false statements. It’s not. We’ve seen how he does so in very detailed form already.

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. 

Oleg Deripaska Met Sergei Millian at the St. Petersburg Forum Michael Cohen Would Have Met Putin

In a piece puzzling through why Oleg Deripaska — who wrote a deceptive op-ed that was published at his outlet — would get polling data from Trump’s campaign manager [Note, NYT has updated reporting to specify that Manafort sent the data to Serhiy Lyovochkin and Rinat Akhmetov], Chuck Ross mentions something that has entirely new meaning given recent disclosures. Oleg Deripaska met with Sergei Millian at the St. Petersburg Economic Forum in June 2016.

Deripaska has denied through intermediaries being a source for Steele, though he was spotted in June 2016 at an economic forum in St. Petersburg with Sergei Millian, an alleged source for the dossier.

Here’s a photo of the meeting, which Wendy Siegelman found.

Of course, Ross mostly cares about all this because Millian was allegedly a source for the Christopher Steele dossier, not for all the other events this one intersects with.

Consider the timeline of some key events below.

It shows that the email hacks paralleled Manafort’s increased responsibility on the campaign.

But even as Russia’s operation to release dirt on Hillary was proceeding (and Russians were reaching out to George Papadopoulos to dangle emails as well), Michael Cohen was negotiating a Trump Tower deal, via Felix Sater, which was premised on a meeting between him — and then later, Trump — and Vladimir Putin. On June 9 — the same day that Don Jr told Aras Agalarov’s representatives that the Trumps would revisit sanctions if Trump was elected — Cohen even started to book his travel for that meeting. He canceled those plans, however, on the same day Russia’s role in hacking the DNC became public.

But two key figures in the operation did meet at the St. Petersburg Forum: Deripaska and Millian. And Millian would pick up the Trump Tower deal after the RNC Convention, laundering it, at that point, through a junior staffer who had proven to be a useful go-between for the Russians.

We don’t know whether Deripaska, whom Steele was pitching as a viable partner to counter Russian organized crime, was a source for Steele’s dossier. We do know that Manafort is the one who pushed Trump to discredit the Russian investigation by attacking the dossier.

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. 

Timeline

January 12, 2016: Steele writes Bruce Ohr to say Oleg Deripaska may obtain a visa for later that year

January 20: Michael Cohen speaks with Dmitry Peskov’s personal assistant for 20 minutes about Trump Tower deal

January 21: Putin’s office contacts Felix Sater about Trump Tower deal

February 21: Steele sends Ohr Orbis reporting claiming Deripaska was not a tool of the Kremlin

February 29: Manafort drafts proposal to work for “free” for Trump

March 19: GRU hacks John Podesta

March 29: After the intervention of Roger Stone and Tom Barrack, Manafort joins the Trump campaign, initially only as Convention Chair

April: Manafort asks Kilimnik,”How do we use to get whole?”

April 18: GRU hacks into DNC via DCCC

April 26: George Papadopoulos learns Russians are offering election assistance in form of leaked emails

April 27: In first foreign policy speech Papadopoulos includes signal to Russians to meet

May 4: Cohen tells Sater he’ll do a trip to Russia before the Convention; Trump will do one after

May 5: Sater passes on Peskov invite to Cohen to attend St. Petersburg Forum to meet Putin or Medvedev

May 19: Manafort formally named campaign chair

May 21: Manafort forwards request for Trump meeting to Rick Gates, warning against sending a signal

June 3: Rob Golstone starts arranging meeting with Don Jr.

June 7: Manafort meets with Trump and Trump announces he’ll have an announcement about Hillary

June 8: GRU releases first emails via dcleaks

June 9: Trump Tower meeting presents dirt for sanctions relief; Cohen makes plans for trip to St. Petersburg Forum

June 14: WaPo reveals Russia hacked DNC; Cohen cancels plan for St. Petersburg trip

June 15: Guccifer 2.0 created

June 16-19: St. Petersburg forum (Putin does attend)

June 20: First Steele report, allegedly relying on Millian as one source

July 7: Manafort tells Kilimnik he’s willing to provide Deripaska private briefings; Ohr call with Steele about Deripaska

Week of July 15: Trump campaign prevents change making platform more belligerent to Ukraine

July 21: Sater visits Trump Tower

July 22: George Papadopoulos asks Ivan Timofeev to help prep for a meeting with Sergei Millian; Millian would eventually pitch Papadopoulos on Trump Tower Moscow deal

August 3: Manafort and Kilimnik meet in New York

August 17: Manafort fired from campaign

August: Manafort and Tom Barrack take boat trip, meet Kilimnik

October 18: Steele and Ohr discuss dispute between Ukraine and RUSAL

January 11 or 12, 2017: Manafort contacts Reince Priebus to tell him how to use the Steele dossier to discredit Russian investigation (remember, Manafort insists he didn’t lie about meeting with Trump officials, because those meetings happened before inauguration)

January 27: Papadopoulos agrees to meet FBI without a lawyer, in part in hopes of sustaining possibility of a job with Trump Admin and possibly a deal with Millian

January or February 2017: Manafort meets Kilimnik in Madrid

The Quid Pro Quo Was Even Tighter Than I Imagined

Way back in May, I did a six part series on what the questions (as imagined by Jay Sekulow) that Mueller wanted to ask to Trump said about his investigation.

Part One: The Mueller Questions Map Out Cultivation, a Quid Pro Quo, and a Cover-Up

Part Two: The Quid Pro Quo: a Putin Meeting and Election Assistance, in Exchange for Sanctions Relief

Part Three: The Quo: Policy and Real Estate Payoffs to Russia

Part Four: The Quest: Trump Learns of the Investigation

Part Five: Attempting a Cover-Up by Firing Comey

Part Six: Trump Exacerbates His Woes

I gotta say, I’m quite proud of the way the series has held up: while there’s a bunch I’d add to the series if I rewrote it today, there’s little that I’d retract.

And from the very start, I argued that the election conspiracy involves a quid pro quo. The second post described how, “over the course of the election, the Russians and Trump appear to have danced towards a quid pro quo, involving a Putin meeting and election assistance in exchange for sanctions relief if Trump won (as noted, the Russians dangled real estate deals to entice Trump based on the assumption he wouldn’t win).”

I still stand by the series, but recent developments in the case make it clear the quid pro quo is even tighter than I thought because of the way the Trump Tower Moscow dangle, which we now know was the payoff that required a meeting with Putin, hung over it all.

Consider this passage in the Mueller Cohen sentencing memo.

The defendant’s false statements obscured the fact that the Moscow Project was a lucrative business opportunity that sought, and likely required, the assistance of the Russian government. If the project was completed, the Company could have received hundreds of millions of dollars from Russian sources in licensing fees and other revenues. The fact that Cohen continued to work on the project and discuss it with Individual 1 well into the campaign was material to the ongoing congressional and SCO investigations, particularly because it occurred at a time of sustained efforts by the Russian government to interfere with the U.S. presidential election. Similarly, it was material that Cohen, during the campaign, had a substantive telephone call about the project with an assistant to the press secretary for the President of Russia.

Cohen’s lies, aside from attempting to short circuit the parallel Russian investigations, hid the following facts:

  • Trump Organization stood to earn “hundreds of millions of dollars from Russian sources” if the Trump Tower deal went through.
  • Cohen’s work on the deal continued “well into the campaign” even as the Russian government made “sustained efforts … to interfere in the U.S. presidential election.”
  • The project “likely required[] the assistance of the Russian government.”
  • “Cohen [during May 2016] had a substantive telephone call about the project with an assistant to the press secretary for the President of Russia [Dmitri Peskov].”

Now consider the line Rob Goldstone used to entice Don Jr into taking a meeting — a meeting that, Rudy Giuliani says Paul Manafort says prosecutors know Trump knew about — to hear about dirt on Hillary Clinton.

Less than three years after Trump’s ability to get a meeting with Putin during the Miss Universe contest had been portrayed, by Goldstone himself, as entirely reliant on the efforts of Aras Agalarov, Goldstone packaged this meeting as “part of  Russia and its government’s support for Mr. Trump.”

And while Goldstone testified that he didn’t mean anything specific about that phrase, he also testified that among the bare facts that Emin wanted conveyed in that message is that this meeting would benefit the Trumps — not the campaign, but the Trumps.

Q. — you talked about with my colleague, I know we have asked you a lot of questions. I just want to have you explain. When you say there — you wrote the statement “based on the bare facts I was given,” exactly what were the bare facts that you were given?

A. So, to the best of my recollection, when I spoke to Emin, he said to me: I would like you to set up a meeting. A Russian attorney met with my — a well-connected Russian attorney met with my dad in his office, and she appears to have or seems to have damaging information on the Democrats and its candidate, Hillary Clinton. And I think it could be useful to the Trumps.

He talked about the Trumps rather than the campaign. And he would like us to get a meeting. To me, that was it. That’s when I started pushing for more information. But those would be the bare facts: attorney, damaging information, Democrats, Hillary Clinton. [my emphasis]

Goldstone was just a go-between in efforts, going back to 2013 and involving Dmitri Peskov, to set up a meeting between Trump and Putin. And Emin was clearly not sharing everything with Goldstone. But Emin was more centrally involved, even in 2013, and (his comments to Goldstone make clear) remained so in 2016 and 2017. So Emin’s emphasis on the benefit for Trump is striking.

And whether or not that language about “part of Russia and its government’s support for Mr. Trump” was as innocent as Goldstone makes out, in context, it would have clear meaning for Don Jr, whom we know Cohen kept apprised of the efforts to renew the Trump Tower Moscow deal. The Trumps were monetizing this running-for-President thing, and they were happy to make campaign promises to Russians bearing dirt, because the point wasn’t to actually win the election. It was about the hundreds of millions they stood to gain.

And the very day of that June 9 meeting, Michael Cohen started making his travel plans to go meet top Russian officials in St. Petersburg, possibly even Putin himself, plans that were only scuttled when the Russian hack of the DNC got exposed.

Consider one more detail about this quid pro quo. We’ve already seen how broke Trump’s working for “free” campaign manager, Paul Manafort, was at the time (though yesterday’s Manafort filing makes it clear that Tom Barrack had a much bigger role in this than previously known, and may have been — may even still be! — the one paying Manafort’s bills). The SDNY Cohen filing describes why he had to use a HELOC to pay off Trump’s former sex partners.

In December 2015, Cohen contacted a bank (“Bank-3”) to apply for a home equity line of credit (“HELOC”). In his application for the HELOC, Cohen made false statements about his net worth and monthly expenses. Specifically, Cohen failed to disclose more than $20 million in debt he owed to another bank (“Bank-2”), and also materially understated his monthly expenses to Bank-3 by omitting at least $70,000 in monthly interest payments due to Bank-2 on that debt. (PSR ¶ 34). These statements were the latest in a series of false statements Cohen made to financial institutions in connection with credit applications.

While elsewhere, SDNY makes clear that Cohen has been hiding some liquid assets … somewhere, the amount of fraud he was conducting to keep his finances in order (to say nothing of his refusal to fully cooperate with SDNY’s investigation) suggest they may be the wrong kind of liquid.

An updated financial statement Cohen provided at closing reflected a positive $17 million net worth in addition to previously undisclosed liquid assets, a nearly $20 million increase from the false financial information Cohen had provided to Bank-2 just weeks earlier in the negotiations.

So Manafort was underwater and Cohen was underwater. How badly underwater do you expect we’ll learn Trump Organization is and was?

The Russians exploited Trump’s most venal instincts and those of all the people around him. And all the election help and policy payoffs were just side shows to Trump. So long as he showed a willingness to damage Hillary Clinton in any way available, the Russians were happy to have him believe this was just about a silly tower in Moscow.

As I disclosed in 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 First Amendment Wall-Splat that Anticipates Any Defense of a Trump Conspiracy or WikiLeaks Charge

Last week, lawyers from Jones Day representing the Trump campaign submitted a response to a lawsuit by two Democratic donors and a DNC employee (the case is referred to as Cockrum after donor Roy Cockrum) that presents an interesting, but imperfect, preview of any defense of a Trump conspiracy and/or a WikiLeaks charge in the election hack-and-leak.

Effectively, the Democrats attempt to hold the Trump campaign responsible for having their private information (social security numbers in the case of the donors and more personal conversations in the case of DNC employee Scott Comer) posted in the emails released by WikiLeaks on July 22, 2016. They do so by arguing that the Trump campaign conspired with agents of Russia, agreeing to provide policy considerations in exchange for the assistance presented by the email release, which therefore makes them parties to the injury associated with the hack-and-leak.

The campaign isn’t responsible for information released as part of their conspiracy because the First Amendment protects it

In response, the Trump campaign (represented by Jones Day, and therefore by more competent lawyers than some of the clowns representing the president in the Mueller investigation) only secondarily deny the campaign entered into a conspiracy with the Russians as governed by the laws invoked by plaintiffs (you should not take this emphasis as admission of guilt in a conspiracy, but rather the most efficacious way of defeating the lawsuit). As a primary defense, they point to First Amendment precedent to argue two things: First, the campaign can’t be held responsible for the theft of information because they only sought the dissemination of already stolen documents — they had nothing to do with the theft of the documents, the campaign argues.

In Bartnicki v. Vopper, 532 U.S. 514 (2001), the Supreme Court held that the First Amendment protects a speaker’s right to disclose stolen information if (1) the speaker was “not involved” in the acquisition and (2) the disclosure deals with “a matter of public concern.” Id. at 529, 535. There, union leaders spoke on the phone about using violence against school-board members to influence salary negotiations. Id. at 518–19. An unknown person secretly intercepted the call and shared the illegal recording with a local radio host, who played it on his show. Id. at 519. The Court ruled that the First Amendment protected the radio broadcast, because the host “played no part in the illegal interception” and “the subject matter of the conversation was a matter of public concern.” Id. at 525. The Court reasoned that “state action to punish the publication of truthful information seldom can satisfy constitutional standards.” Id. at 527. The state has an interest in deterring theft of information, but it must pursue that goal by imposing “an appropriate punishment” on “the interceptor”—not by punishing a speaker who was “not involved in the initial illegality.” Id. at 529. The state also has an interest in protecting “privacy of communication,” but “privacy concerns give way when balanced against the interest in publishing matters of public importance.” Id. at 533–34. In short, “a stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.” Id. at 535.

“An opposite rule”—under which a speaker may be punished for truthful disclosures on account of a “defect in the chain of title”—“would be fraught with danger.” Boehner v. McDermott, 484 F.3d 573, 586 (D.C. Cir. 2007) (opinion of Sentelle, J., joined by a majority of the en banc court). “U.S. newspapers publish information stolen via digital means all the time.” Jack L. Goldsmith, Uncomfortable Questions in the Wake of Russia Indictment 2.0 (July 16, 2018).1 Indeed, they “openly solicit such information.” Id. Punishing “conspiracy to publish stolen information” “would certainly narrow protections for ‘mainstream’ journalists.” Id.

The Campaign satisfies the first part of Bartnicki’s test: It “played no part in the illegal interception.” Bartnicki, 532 U.S. at 525. That is clear from Plaintiffs’ factual theory: “Defendants entered into an agreement with other parties, including agents of Russia and WikiLeaks, to have information stolen from the DNC publicly disseminated in a strategic way.” (Am. Compl. ¶ 16) (emphasis added). The complaint reinforces that theory on every page: “the publication of hacked information pursuant to the conspiracy” (id. ¶ 20); “conspiracy … to disseminate information” (id. ¶ 78); “extracting concessions … in exchange for the dissemination of the information” (id. ¶ 149); “an agreement to disseminate the hacked DNC emails”) (id. at 42); “motive to coordinate regarding such dissemination” (id. ¶ 153); “an agreement regarding the publication” (id. ¶ 154); “agreed … to publicly disclose” (id. ¶ 296) (all emphases added).

In a key move, the response points to the chronology (they incorrectly say) the plaintiffs lay out to show that the Campaign didn’t enter into a conspiracy with the Russians until after the theft had already taken place.

That is no surprise. Given Rule 11, Plaintiffs could not have alleged the Campaign’s involvement in the initial hack. According to Plaintiffs’ own account, Russian intelligence hacked the DNC’s networks “in July 2015,” and gained access to email accounts “by March 2016.” (Id. ¶ 86.) But the Campaign supposedly became motivated to work with Russia only in “the spring and summer of 2016” (id. at 25), and supposedly entered into the agreement in “secret meetings” in “April,” “May,” “June,” and “July” 2016 (id. ¶¶ 89–104). In other words, Plaintiffs themselves say that the alleged conspiracy was formed after the hack and after the acquisition of the emails—so that the Campaign could not have participated in the initial theft.

From there, the Campaign shifts to the second part of the First Amendment argument: what they encouraged the Russians (and WikiLeaks) to publish was a matter of public concern.

The Campaign also satisfies the second part of Bartnicki’s test: the disclosure deals with “a matter of public concern.” Bartnicki, 532 U.S. at 525. Whether speech deals with issues of public concern is “a matter of law.” Snyder v. Phelps, 580 F.3d 206, 220 (4th Cir. 2009). “Speech deals with matters of public concern when it can be fairly considered as relating to any matter of political, social, or other concern to the community, or when it is a subject of legitimate news interest.” Snyder v. Phelps, 562 U.S. 443, 453 (2011) (citations and quotation marks omitted). A court applying this test must examine the “content, form, and context” of the speech. Id.

Courts judge the public character of a disclosure in the aggregate, not line by line. Regardless of whether the particular sentence complained about is itself of public concern, the disclosure is constitutionally protected if the disclosure as a whole deals with a matter of public concern. For example, in Bartnicki, leaders of a teachers’ union spoke on the phone about “blow[ing] off [school-board members’] front porches” to influence salary negotiations. 532 U.S. at 519. Even though the threat to “blow off” porches was not itself speech about public issues, the First Amendment protected the disclosure because the host made it while “engaged in debate about” teacher pay—“a matter of public concern.” Id. at 535. The “public concern” test thus turns on the broader context of the disclosure, not the nature of the specific fact disclosed.

To substantiate their “public concern” defense, the response points to (and includes as exhibits) a handful emails out of the tens of thousands dumped in just the DNC release and some bad press coverage, and argues that because WikiLeaks has a policy of not redacting emails, the information that damaged the plaintiffs just came out along with this public concern information.

These emails revealed important information about the Clinton Campaign and Democratic Party. For example:

  • The emails revealed DNC officials’ hostility toward Senator Sanders. DNC figures discussed portraying Senator Sanders as an atheist, because “my Southern Baptist peeps would draw a big difference between a Jew and an atheist.” (Ex. 1.) They suggested pushing a media narrative that Senator Sanders “never ever had his act together, that his campaign was a mess.” (Ex. 2.) They opposed his push for additional debates. (Ex. 3.) They complained that he “has no understanding” of the Democratic Party. (Ex. 4.)
  • According to The New York Times, “thousands of emails” between donors and fundraisers revealed “in rarely seen detail the elaborate, ingratiating and often bluntly transactional exchanges necessary to harvest hundreds of millions of dollars from the party’s wealthy donor class.” These emails “capture[d] a world where seating charts are arranged with dollar totals in mind, where a White House celebration of gay pride is a thinly disguised occasion for rewarding wealthy donors and where physical proximity to the president is the most precious of currencies.” (Ex. 5.)
  • The emails revealed the coziness of the relationship between the DNC and the media. For example, they showed that reporters would ask DNC to pre-approve articles before publication. (Ex. 6.) They also showed DNC staffers talking about giving a CNN reporter “questions to ask us.” (Ex. 7.)
  • The emails revealed the DNC’s attitudes toward Hispanic voters. One memo discussed ways to “acquire the Hispanic consumer,” claiming that “Hispanics are the most brand loyal consumers in the World” and that “Hispanics are the most responsive to ‘story telling.’” (Ex. 8.) Another email pitched “a new video we’d like to use to mop up some more taco bowl engagement.” (Ex. 9.)

WikiLeaks, however, did not redact the emails, so the publication also included details that Plaintiffs describe as private.

In this scenario, even assuming the Trump campaign did enter a conspiracy with the Russians, the plaintiffs in this lawsuit were just collateral damage to disclosures protected by the First Amendment.

The conspiracy to hurt individual Democratic donors defense

As noted, the defense against the claim that the campaign entered into a conspiracy with the Russians is only a secondary part of the defense here. Perhaps that’s because this part of the defense is far weaker than the First Amendment part.

As part of it, the response notes that the plaintiffs would have had to enter into a conspiracy with the goal and the state of mind laid out by the two laws primarily cited by plaintiffs, to intimidate voters and to intentionally inflict harm on plaintiffs. Once again, this part of the argument treats the plaintiffs as collateral damage to the goals of embarrassing the DNC effectuated by the publication of materials by WikiLeaks, which has a policy of not redacting anything in its releases.

Plaintiffs do not plausibly allege these states of mind. For one thing, Plaintiffs allege that the object of the purported conspiracy was to promote the Trump Campaign and to embarrass the DNC and the Clinton Campaign. (Am. Compl. ¶ 190.) They do not allege facts showing that the Campaign even knew of Mr. Comer, Mr. Cockrum, or Mr. Schoenberg, much less that Campaign officials met with Russian agents for the purpose of disclosing these individuals’ social security numbers, gossip, and stomach-flu symptoms.

For another thing, Plaintiffs fail to address (let alone refute) the “obvious alternative explanation” for the disclosure of their emails (Iqbal, 556 U.S. at 682): WikiLeaks’ “accuracy policy,” under which WikiLeaks does not redact or “tamper with” the documents it discloses. (Ex. 10.) The upshot is that Plaintiffs do not plausibly allege that the Campaign acted with the purpose of intimidating Plaintiffs; do not plausibly allege that the Campaign acted with the specific intent to disclose Plaintiffs’ allegedly private emails; and do not plausibly allege that the Campaign acted with knowledge that the WikiLeaks email collection included Plaintiffs’ allegedly private emails.

It’s the other part of the conspiracy defense where the response is dangerously weak, given the possibility that Mueller will roll out another indictment providing more detail on negotiations between the campaign and Russia (which plaintiffs could then add in an amended complaint). Here, the campaign argues only that the plaintiffs haven’t shown proof of a conspiracy because they have not yet pointed to evidence that the campaign sought the DNC emails specifically, including the details that allegedly damaged the plaintiffs.

[T]he Amended Complaint fails to plausibly allege that the Campaign conspired with or aided and abetted the publishers of the DNC emails. Plaintiffs allege a series of meetings between the Campaign and Russian agents in 2016. (Id. ¶ 15.) But Plaintiffs do not allege that any of the meetings in any way concerned the DNC emails, much less the information about Plaintiffs contained in those emails. The allegation that people met to discuss something does not raise a plausible inference that they met to discuss collaborative efforts to release specific emails hacked from the DNC to influence an election, much less to intimidate or embarrass Plaintiffs. Cf. Twombly, 550 U.S. at 567 n.12 (regular meetings do not suggest conspiracy).

This argument may be sufficient for this civil suit, but for a number of reasons, such an argument would be totally insufficient in a criminal case. For starters, there likely is evidence, not least obtained from Paul Manafort’s cooperation, that the campaign had some idea of what they might get in exchange for entering into a quid pro quo with the Russians. As it is, Jones Day is utterly silent about Don Jr’s, “If it’s what you say I love it especially later in the summer” email, which reflects some expectation, already by June 3, 2016, of what the campaign would get for entering into a conspiracy, even though plaintiffs quote it in their complaint.

But also, the conspiracy charged in a criminal indictment would allege a different goal — in part, the embarrassment of the DNC and support of the Trump campaign that the campaign response stops far short of denying. So while with respect to the suit brought by these plaintiffs, the argument that the defendants did not have the mindset of trying to intimidate voters or damage the plaintiffs, if and when Mueller charges a conspiracy, it will argue a different mind set, to defraud the US’ election integrity, in part to obtain a thing of value from the Russians. And that mindset is going to be much easier to prove.

This response does next to nothing to deny that mindset.

Instead, much later in the response (as part of an argument that plaintiffs can’t claim a conspiracy to violate campaign finance laws because the FEC preempts it), the campaign does address what might be one defense in a criminal indictment charging that the Trump team conspired with Russia with the goal of obtaining illegal campaign donations in the form of dirt on Hillary. The response argues that such released emails do not constitute a thing of value, but are instead protected political speech.

Plaintiffs in all events fail to establish a conspiracy to violate any federal campaign-finance law. Plaintiffs assert that federal law prohibits foreign nationals from making “a contribution or donation of money or other thing of value” in connection with an election, 52 U.S.C. § 30121(a), and that “Defendant’s co-conspirators … contributed a ‘thing of value’ … in the form of the dissemination of hacked private emails” (Am. Compl. ¶ 215). This assertion is incorrect. For one, there is a fundamental difference between contributing a thing of value and engaging in pure political speech. Pure political speech constitutes “direct political expression”; in contrast, “while contributions may result in political expression if spent by a candidate or association to present views to the voters, the transformation of contributions into political debate involves speech by someone other than the contributor.” Buckley v. Valeo, 424 U.S. 1, 21–22 (1976). The disclosure of information about a political party is pure political speech, not a political contribution. The disclosure itself directly expresses political messages; unlike money, it does not need to be transformed into a political message by somebody else.

For another, treating a disclosure of information as a “contribution” would violate the First Amendment. The Supreme Court has held that the First Amendment guarantees Americans the right to receive political speech from foreigners. Lamont v. Postmaster General, 381 U.S. 301, 306 (1965). Yet under Plaintiffs’ theory, it would be illegal to solicit political information from a foreign national, because the provision of such information would amount to a “contribution.” For example, “if the Clinton campaign heard that Mar-a-Lago was employing illegal immigrants in Florida and staffers went down to interview the workers, that would be a crime.” Eugene Volokh, Can it be a crime to do opposition research by asking foreigners for information? (July 27, 2017).2 “Or say that Bernie Sanders’s campaign heard rumors of some misconduct by Clinton on her trips abroad—it wouldn’t be allowed to ask any foreigners about that.” Id. The First Amendment does not tolerate such results.

This claim, if it were substantiated, would have repercussions across Mueller’s work, extending to the Internet Research Agency indictment (indeed, Concord Consulting is trying to make similar arguments, though not as brazenly suggesting that foreigners have a First Amendment right to weigh in on our elections).

Yet, as I’ve noted, Mueller has already collected evidence of how much a similar campaign to the one the Russians conducted would cost a campaign, in the form of the spooked up Psy-Group campaign offered by Israelis and Gulf supporters: $3.31 million. That is, Mueller has the evidence to show that the Russians did not just release the information, but engaged in an entire social media campaign to maximize the value of the information they released, and that information goes beyond simple publication to the stuff that political consultants charge real money for.

The other problems with this defense

There is far more to the campaign’s defense (notably, extensive arguments about whether state or federal law applies to particularly parts of the complaint, and if it’s state law, whether it’s Maryland, New Jersey, and Tennessee as plaintiffs argue, or Virginia and New York as defendants do) than what I’ve laid out, and this suit would be a challenge in any case. But there are other problems with the defense.

In a piece on this response, Floyd Abrams argues that there are key differences between the primary First Amendment precedent on which the defense relies and this case. For example, the Bartnicki case focused on material the entirety of which was in the public interest, whereas the bulk of what the Russians gave WikiLeaks is not.

[T]he entirety of the wiretapped recording in Bartnicki was of undoubted public interest while some portions of the purloined DNC documents had a special claim to being of no sustainable public interest while inflicting substantial potential privacy harm—including social security numbers sent to the DNC which WikiLeaks, as it has repeatedly chosen to do, decided to make public.

Jones Day may well realize this is a weak part of their argument, as they return to WikiLeaks’ failure to redact information that had no public interest in a number of ways. At one point, they argue that if WikiLeaks redacted information some information of public interest might get withheld as part of the process.

To establish public-disclosure liability, a plaintiff must show that the facts at issue are not “of legitimate concern to the public”—in other words, that the facts are not “of the kind customarily regarded as ‘news.’” Second Restatement § 652D & comment g. Like the First Amendment test, the tort-law test requires courts to analyze speech “on an aggregate basis.” Alvarado v. KOB-TV, LLC, 493 F.3d 1210, 1221 (10th Cir. 2007). A publisher does not have to “parse out concededly public interest information” “from allegedly private facts.” Id. That is because redactions would undermine the “credibility” of a disclosure, causing the public to doubt its accuracy. Ross v. Midwest Commc’ns, Inc., 870 F.2d 271, 275 (5th Cir. 1989). Further, requiring publishers to redact—“to sort through an inventory of facts, to deliberate, and to catalogue”—“could cause critical information of legitimate public interest to be withheld until it becomes untimely and worthless to an informed public.” Star-Telegram, Inc. v. Doe, 915 S.W.2d 471, 475 (Tex. 1995).

At another point, they argue (this is one of their most ridiculous arguments) that WikiLeaks is just an intermediary that the Russians used to post injurious messages.

Under section 230 of the Communications Decency Act (47 U.S.C. § 230), a state may impose liability on “the original culpable party who posts [tortious] messages,” but not on “companies that serve as intermediaries for other parties’ potentially injurious messages.” Zeran v. America Online, 129 F.3d 327, 330–31 (4th Cir. 1997). As a result, a website that provides a forum where “third parties can post information” is not liable for the third party’s posted information. Klayman v. Zuckerberg, 753 F.3d 1354, 1358 (D.C. Cir. 2014). Since WikiLeaks provided a forum for a third party (the unnamed “Russian actors”) to publish content developed by that third party (the hacked emails), it cannot be held liable for the publication.

And the insistence that WikiLeaks is known not to redact information may hurt the Trump campaign if it gets that far.

Abrams also points to how entering into a conspiracy might change the legal liability of the Trump campaign.

[T]he Bartnicki defendants were at all times entirely independent of the person who surreptitiously made the wiretapped recording available to it while the Trump campaign is accused in Cockrum of conspiring with its alleged Russian source after the information had been hacked to make the information public.

Even for the purpose of this lawsuit, the claim that the Trump campaign entered into a conspiracy only after the information had been hacked may not be sustainable. After all, George Papadopoulos learned the Russians were going to release emails, of some sort (even if he believed they were Hillary server emails rather than DNC ones), well before the Russians were ejected from the DNC servers a month later. The Russians first contacted the Trump campaign about this conspiracy on April 26, 2016, after they had stolen the Podesta emails in March; but the DNC emails that are the subject of this lawsuit weren’t exfiltrated, at least according to the GRU indictment, until a month later.

Between on or about May 25, 2016 and June 1, 2016, the Conspirators hacked the DNC Microsoft Exchange Server and stole thousands of emails from the work accounts of DNC employees.

So Papadopoulos’ responsiveness might be enough to sustain a claim that the Trump campaign was engaged in this conspiracy before the emails in question were stolen. Indeed, this paragraph from the response (cited above) falsely claims that the plaintiffs suggested the theft ended in March.

Plaintiffs could not have alleged the Campaign’s involvement in the initial hack. According to Plaintiffs’ own account, Russian intelligence hacked the DNC’s networks “in July 2015,” and gained access to email accounts “by March 2016.” (Id. ¶ 86.) But the Campaign supposedly became motivated to work with Russia only in “the spring and summer of 2016” (id. at 25), and supposedly entered into the agreement in “secret meetings” in “April,” “May,” “June,” and “July” 2016 (id. ¶¶ 89–104). In other words, Plaintiffs themselves say that the alleged conspiracy was formed after the hack and after the acquisition of the emails—so that the Campaign could not have participated in the initial theft.

Here’s what the complaint really says:

In order to defeat Secretary Clinton and help elect Mr. Trump, hackers working on behalf of the Russian government broke into computer networks of U.S. political actors involved in the 2016 election, including the DNC and the Clinton Campaign. Elements of Russian intelligence gained unauthorized access to DNC networks in July 2015 and maintained that access until at least June 2016. By March 2016, the Russian General Staff Main Intelligence Directorate (GRU) gained unauthorized access to DNC networks, DCCC networks, and the personal email accounts of Democratic Party officials and political figures.

By May 2016, the GRU had copied large volumes of data from DNC networks, including email accounts of DNC staffers. Much of the GRU’s activity within the DNC networks took place between March and June 2016, at the very same time its agents were intensifying their outreach to and securing meetings with agents of the Trump Campaign.

[snip]

According to the indictment, “in and around April 2016, the Conspirators began to plan the release of materials stolen from the Clinton Campaign, DCCC, and DNC.” And “in or around June 2016,” when the Trump Campaign was taking meetings with Russian agents to “get information on an opponent,” the indicted Russians and their coconspirators began to “stage[] and release[]” the stolen emails.

All that said, if the plaintiffs are relying on the June 9 meeting to establish the conspiracy, or even Don Jr’s June 3 email enthusiastically responding to Rob Goldstone’s offer, the campaign can argue in this suit that the actual theft of the emails in question — the DNC emails revealing the donors social security numbers and Comer’s embarrassing comments — were, according to the public record, already stolen by the time the campaign entered into the conspiracy.

But that’s not going to work if Mueller charges a criminal conspiracy. That’s true, in part, because the criminal conspiracy would include the social media part of the Russian assistance, which continued well after the June 9 meeting (the plaintiffs here couldn’t argue the social media exploitation hurt them because the emails including the information damaging to them wasn’t promoted by Russian social media actors). It would also include the DCCC releases, which led to the provision of opposition research to Republican operatives.

Indeed, even the hacking continued after the June 9 meeting. As the plaintiffs pointed out, on July 27, Russian hackers even seemed to respond directly to Trump’s request for assistance.

191. On July 27, 2016, during the Democratic National Convention, Mr. Trump held a press conference in Florida. During his remarks, Mr. Trump called on Russia to continue its cyberattacks, stating, “Russia, if you’re listening, I hope you’re able to find the 30,000 [Secretary Clinton] emails that are missing.” Although the Trump Campaign—and later, then-White House press secretary Sean Spicer—claimed that Mr. Trump was “joking,” when Mr. Trump was asked at the time to clarify his remark and whether he was serious, Mr. Trump stated: “If Russia or China or any other country has those emails, I mean, to be honest with you, I’d love to see them.”

192. According to the July 13, 2018 indictment of twelve Russian nationals filed by the Special Counsel, agents of the Russian government attempted that same day—July 27, 2016— “to spearfish for the first time email accounts at a domain hosted by a third-party provider and used by Clinton’s personal office.” In other words, on the day that Mr. Trump publicly said that he hoped Russia would be able to find missing emails related to Secretary Clinton, Russian intelligence for the first time attempted to hack email accounts on Secretary Clinton’s own server.

That particular hack was not successful, but a hack of the Democrats’ AWS hosted analytics program in September was; see ¶34. As I understand it, the targeting of Hillary’s campaign went on in a series of waves, and those waves might be shown to correlate to Trump’s requests for assistance.

So, absent proof that someone in the campaign encouraged Papadopoulos after having learned about the emails in April, the plaintiffs in this suit will struggle to show that Russian hacking of the emails that injured them took place after Trump’s campaign entered into the conspiracy. But Mueller won’t have that problem. And all that’s before the Peter Smith operation, which asked for assistance from Guccifer 2.0 and reached out to presumed Russian hackers to obtain information from Hillary’s home server. Plus, that’s all separate from the social media campaign which continued to benefit the Trump campaign up to the election.

The ironies of a First Amendment defense

There’s a detail about this response, however, that (relying as it does on a strong First Amendment defense) deserves more attention. The response claims that the entire purpose of this suit suit is to obtain discovery on the President on a number of topics — notably his tax returns and business relationships — that Democrats have been unable to fully pursue elsewhere.

The object of this lawsuit is to launch a private investigation into the President of the United States. The Amended Complaint already foreshadows discovery into the President’s “tax returns” (Am. Compl. ¶ 238), his “business relationships” (id.), his conversations with “Director Comey” (id. ¶ 251), and on and on.

Much later, in the conspiracy section, in an argument that seems designed for Brett Kavanaugh’s review, the response argues that plaintiffs need a more plausible claim to be able to get discovery from the President.

Rule 8 requires a complaint to state a “plausible” claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A complaint satisfies this standard if its “factual content” raises a “reasonable inference” that the defendant engaged in the misconduct alleged. Id. at 678. This requirement protects defendants against “costly and protracted discovery” on a “largely groundless claim.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 558 (2007). This protection is essential here, where Plaintiffs’ explicit goal is to burden the President with discovery. The President’s “unique position in the constitutional scheme” requires him to “devote his undivided time and attention to his public duties.” Clinton v. Jones, 520 U.S. 681, 697–98 (1997). Courts must thus ensure that plaintiffs do not use “civil discovery” on “meritless claims” to interfere with his responsibilities. Cheney v. U.S. District Court, 542 U.S. 367, 386 (2004).

It’s only after making the claim that this suit is all about obtaining public interest information such as the President’s tax returns that the campaign makes an argument justifying the release of all this information in the name of public interest.

According to the logic Jones Day lays out here, the Democrats’ mistake was in not finding foreign hackers to steal and then publish Trump’s tax returns.

As I disclosed in 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. 

Rob Goldstone Continues to Work the Press to Spin His Role in the June 9 Meeting

There’s a really funny line in Rosalind Helderman’s profile of Rob Goldstone in conjunction with the release of his book. First, Helderman comically asserts that Goldstone — who did an interview for a long piece in the British Times that helped witnesses coordinate their stories last November — kept his mouth shut about his testimony.

Goldstone has emerged as a rare independent voice in the Russia story — one of the few witnesses who voluntarily sat with any investigator who asked and, out of courtesy to the process, kept his mouth shut along the way.

Helderman suggests she would know about witnesses who had provided testimony to investigators even if they kept their mouths shut. While it’s true that Helderman gets leaks from places few other journalists do (indeed, it’s one reason I did not share everything I knew with certain investigators, to prevent leaks through her), I’m fairly certain that a pretty significant number of witnesses have managed to stay quiet.

The comment is all the funnier given how the at-times-conflicting-with-the-sworn-record WaPo story ends, with Goldstone falsely claiming that the first time he started thinking of the June 9 meeting again after it happened was when the WaPo called him on July 9 and asked him if he set up the meeting.

Then, he said, he did his best to put the meeting out of his mind — until more than a year later, when the New York Times broke the news of the gathering.

Sitting at lunch at a cafe in Greece the next day, he received a call from a Post reporter, inquiring if he had set up the encounter.

The claim is false on a number of fronts. Goldstone made some efforts (albeit, according to his sworn testimony, reluctantly) to set up a November meeting following up on the June 9 meeting. And he started thinking about the meeting again at least at least as early as June 2, 2017, when Trump Organization lawyer Alan Garten reached out to him to learn more details about the meeting that Don Jr was denying ever took place.

Goldstone’s silence on both those details in his WaPo profile puts his actions in much more favorable light than they really were. They hide how substantive the meeting was treated by both sides.

And I find all that pretty amusing given that Goldstone doesn’t name which Post reporter reached out to him in July 2017.

Here’s that story’s byline:

And the reason that’s important is because, at least according to Goldstone on July 9, 2017, his involvement in the meeting got leaked.

His insinuation to Emin Agalarov (in a comment that makes clear he spoke with Helderman, not Hamburger) was that the Trump people had leaked his name to preemptively blame the Agalarov side for misrepresenting the meeting.

Whether or not Goldstone is correct about who leaked his involvement is actually a fairly important detail in the investigation. In any case, the story of the mutual recriminations between the Trumps and Agalarovs really reveals how early both sides realized the meeting was going to cause real problems for the Trumps.

Which is all the more reason for journalists to be honest about where there are and are not leaks.

As I disclosed in 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 Shiny Object of the May 2017 Russian Investigation: The Evidence Mostly Came in after August 1

There’s a reason today’s NYT story so infuriates me — to say nothing of Trump’s efforts to declassify documents from the Russia investigation that, because of the personnel moves of virtually everyone involved, would mostly end by August 1, 2017.

That’s because it’s clear that — because Peter Strzok lost an August 2016 battle to investigate more aggressively in summer and fall 2016 — DOJ, FBI, and then Mueller were only obtaining key information around about August 1, 2017, a year later. It’s no surprise, then, that (as the frothy right has been obsessing about recently) Lisa Page and Strzok weren’t sure if there was evidence of “collusion” on May 17, 2017. Of course they weren’t. The government hadn’t started collecting the evidence in earnest yet.

Consider the following investigative steps:

FBI appears not to have sent a preservation request to Government Services Administration for George Papadopoulos’ material until March 9, 2017, and they appear not to have pursued his privately held call records (especially the Facebook ones that would have revealed the existence of Ivan Timofeev) until some time later.

On June 6, 2017, the Mueller team was still debating whether they would access Section 702 materials, something they otherwise do routinely with assessments, to say nothing of fully predicated national security investigations.

The John Dowd letter wrongly claiming unprecedented cooperation reveals that Mueller started to receive the documents requested by congressional committees on July 21; that would presumably be the first that the government obtained the version of the June 9 emails that included Paul Manafort’s replies.

Copies of all documents provided to the committees by the Campaign, and all search term lists and the privilege log, were also provided to the Special Counsel.

  • By letter dated May 17, 2017, the Campaign received a request for documents from the Senate Select Committee on Intelligence (SSCI).
  • By letter dated June 7, 2017, the Campaign received a request for documents from the House Permanent Select Committee on Intelligence (HPSCI). The records requested included records generated from June 16, 2015, to 12pm on January 20, 2017, and hence, included the transition period.
  • The Campaign voluntarily responded to these requests by providing 840 documents on July 21, 2017, and another set of 4,800 documents on July 31, 2017. By letter dated July 19, 2017, the Campaign received a request for documents from the Senate Judiciary Committee (SJC).

Mueller sent a preservation request for Transition materials on June 22. He obtained all the emails and devices from 13 transition staffers in late August.

Specifically, on August 23, 2017, the FBI sent a letter (i.e., not a subpoena) to career GSA staff requesting copies of the emails, laptops, cell phones, and other materials associated with nine PTT members responsible for national security and policy matters. On August 30, 2017, the FBI sent a letter (again, not a subpoena) to career GSA staff requesting such materials for four additional senior PTT members.

The list of documents the White House provided, organized by Bates number, show that some key documents couldn’t have come in until July 2017. Indeed, documents pertaining to Comey’s firing appear to be the last of the document sets obtained, sometime after the disclosure of the June 9, 2016 meeting in July 2017.

BuzzFeed’s big scoop on financial transfers between Aras Agalarov and Ike Kaveladze around the time of the June 9 meeting shows banks didn’t start looking for such suspicious transfers until after the June 9 meeting was disclosed on July 8, 2017.

None of these transactions was discovered until 2017, after the New York Times revealed the Trump Tower meeting. Shortly after that report, investigators asked financial institutions to look back at their accounts to learn how money flowed among the people who planned and attended the meeting: Agalarov; Kaveladze; Agalarov’s pop star son, Emin; their employee, Rob Goldstone, who sent the original email to Trump Jr.; and others.

To unearth connections between some of their accounts, banks took an extraordinary step: They invoked a provision of the Patriot Act — a post-9/11 law that included new tools to track money laundering and terrorist financing. That provision, rarely used in the Trump-Russia investigation, allowed the banks to share information about customers with one another.

Three financial institutions — Citibank, JP Morgan Chase, and Morgan Stanley — discovered the $3.3 million that flowed from Agalarov to Kaveladze.

My interview with the FBI (I believe I was the second source about one aspect of what I shared, but believe I was the first about the stuff that tied more obviously to the campaign) was July 14. I believe my materials were moved under Mueller when Ryan Dickey got moved under Mueller in November, 2017.

So the constant six-year old soccer chases by journalists trying to learn what happened in May 2017 — when things were chaotic because Trump was breaking all norms and firing people who actually weren’t investigating that aggressively — to the detriment of attention on what happened in the months thereafter really does a huge disservice to the truth. The investigation into Trump’s conspiracy with Russia started in earnest around about August 1, 2017. Once the government actually started looking for evidence, I imagine the evidence of conspiracy was pretty obvious.

As I disclosed in 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 Is False to Claim There Was No Follow-Up to the June 9 Meeting

On July 15, 2017 — a week after the June 9 meeting was reported in a NYT story publishing the first of numerous White House statements attempting to explain the meeting — Rhona Graff sent Rob Goldstone an email (PDF 44). With only a garbled (perhaps autocorrected) explanation, she forwarded back to Goldstone an email Goldstone himself had sent her the previous November, attaching some talking points from Natalia Veselnitskaya about Bill Browder and the Magnitsky sanctions (for a copy of the talking points, see PDF 37 ff).

A week after the White House had first issued a statement saying, in part, “there was no follow up” on the June 9 meeting, Trump’s Executive Assistant was sharing with Goldstone a paper trail showing that there had been.

Rudy gets all the facts about the June 9 meeting wrong, again

That’s an important detail that gets missed every single time the punditocracy deals with attempts by Rudy Giuliani or his client to spin the June 9 meeting, as has happened in the wake of this TV appearance by Rudy on Meet the Press.

RUDY GIULIANI:

Well, because the meeting was originally for the purpose of getting information about, about Clinton. The meeting turned into a meeting —

CHUCK TODD:

Which in itself it’s attempted collusion. I understand —

RUDY GIULIANI:

No it’s not.

CHUCK TODD:

You just said it. The meeting was intended to get dirt on Hillary Clinton from a criminal lawyer.

(OVERTALK)

RUDY GIULIANI:

No, it wasn’t. No, no.

CHUCK TODD:

That was the intention of the meeting, you just said it.

RUDY GIULIANI:

That was the original intention of the meeting. It turned out to be a meeting about another subject and it was not pursued at all. And, of course, any meeting with regard to getting information on your opponent is something any candidate’s staff would take. If someone said, I have information about your opponent, you would take that meeting. If it happens to be a person with a Russian —

CHUCK TODD:

From the Russian government?

RUDY GIULIANI:

She didn’t represent the Russian government, she’s a private citizen. I don’t even know if they knew she was Russian at the time. All they had was her name.

CHUCK TODD:

They didn’t know she was Russian, I think they knew she was Russian, but ok.

RUDY GIULIANI:

Well, they knew it when they met with her, not when they set up the meeting. You, you told me, you, you asked me, you know, did they show an intention to do anything with Russians? Well, all they knew is that a woman with a Russian name wanted to meet with them. They didn’t know she was a representative of the Russian government and indeed, she’s not a representative of the Russian government. So, this is much ado about nothing. Plus, the President of the United States wasn’t at that meeting. He didn’t know about that meeting. He found out about it after and by the time he found out about it, it was nothing. So, I mean —

Don Jr. took a meeting expecting and accepting dirt from the Russian government

Numerous people have noted that Rudy was totally wrong about the terms on which Don Jr took the meeting in the first place. Rob Goldstone told Don Jr his boss, Aras Agalarov, would,

provide the Trump campaign with some official documents and information that would incriminate Hillary and her dealings with Russia and would be very useful to your father.

This is obviously very high level and sensitive information but is part of Russia and its government’s support for Mr. Trump.

Whether or not that’s what Don Jr got at the meeting (or a week later, when Guccifer 2.0 started releasing stolen documents and information), it is nevertheless the case that Don Jr accepted a meeting at which he expected to be offered dirt on Hillary that was “part of Russia and its government’s support for Mr. Trump.” Indeed, Don Jr specifically said he’d be willing to wait to receive that dirt until later in the summer.

If it’s what you say I love it especially later in the summer

The email exchange, by itself, goes a long way towards meeting the terms of a conspiracy, willfully engaging in an agreement to break the law (which includes both accepting things of value from a foreign government and, given events later in the summer, possibly conspiracy to hack a computer).

Remember: to be charged with conspiracy, the conspiracy doesn’t have to be successful. So even ignoring the “documents and information” the Russians started releasing a week later, that “it turned out to be a meeting about another subject,” as Rudy excuses, doesn’t help Jr. He took a meeting to obtain dirt.

Rudy is wrong about follow-up to the meeting as well

So the rest of that that sentence — “and it was not pursued at all” — actually isn’t necessary to an analysis of a conspiracy, because overt acts had already taken place. Still, on that point, too, Rudy is wrong.

The record shows that those behind the meeting did pursue the “it” in question — sanctions relief — fairly aggressively after the election, with some inconclusive cooperation from the Trump Administration. And even after the record on that pursuit goes dark, Russia as a state continued to pursue sanctions relief — indeed, continues even today, most recently by buttering up a series of Republican Senators visiting Moscow to lobby for it.

As I lay out below, Aras Agalarov’s US Vice President, Ike Kaveladze, pushed Goldstone to set up a second meeting, even if with lower level people. As far as we know, that meeting never got scheduled.

But even as the Agalorov effort to obtain sanctions relief fizzled, a more formal Russian effort started, then moved to a back channel.

The most important moment in any follow-up on the June 9 meeting request for sanctions relief came in the December 29, 2016 phones calls between Mike Flynn and Sergei Kislyak about sanctions, a discussion in which Flynn took close directions from KT McFarland, who was with Trump at Mar-a-Lago. Those are the phone calls Flynn lied to the FBI about, in spite of broad knowledge of the calls among transition aides. Those are the phone calls about which he got a plea deal to cooperate with the Mueller team.

Don Jr probably promised the Trumps would revisit sanctions after the election

According to most participants in the meeting who offered testimony to SJC, the Russians were right to expect a follow up discussion on Magnitsky sanctions. In fact, all the participants representing the Russian side save Goldstone (including Anatoli Samochornov, who is the only witness on either side not to have compared notes with at least some of the others before testifying) remembered Don Jr ending the June 9 meeting by saying they’d revisit the issue if or when his father won.

Natalia Veselnitskaya said Don Jr said they’d revisit the topic.

Mr. Trump, Jr. politely wound up the meeting with meaningless phrases about somewhat as follows: can do nothing about it, “if’ or “when” we come to power, we may return to this strange and confusing story.

Ike Kaveladze said that Don Jr said they might revisit the issue if his father won.

There was no request, but as I said, it was a suggestion that if Trump campaign wins, they might get back to the Magnitsky Act topic in the future.

Rinat Akhmetshin said that Don Jr said they would revisit Magnitsky when they won.

A. I don’t remember exact words which were said, but I remember at the end, Donald, Jr., said, you know, “Come back see us again when we win.” Not “if we win,” but “when we win.” And I kind of thought to myself like, “Yeah, right.” But it happened, so — but that’s something, see, he’s very kind of positive about, “When we win, come back and see us again.” Something to that effect, I guess.

Anatoli Samochornov, Veselnitskaya’s translator, who is the most independent witness and the only one who didn’t compare his story with others, said that Don Jr said they would revisit the issue if Trump won.

A. Like I described, I remember, not verbatim, the closing that Mr. Donald Trump, Jr., provided, but that’s all that I recall being said from the other side.

MR. PRIVOR: That closing being that Donald Trump, Jr., suggested —

MR. SAMOCHORNOV: If or when yes, and I do not remember if or when, but if or when my father becomes President, we will revisit this issue.

Just two people remember it differently. In an answer that, in some respects, exactly tracks statements that were massaged elsewhere by Trump’s lawyers, Rob Goldstone said Don Jr told Veselnitskaya to raise it with Obama.

And he stopped this in its tracks and said, with respect, I suggest that you address your — what seemed very valid concerns but to the Obama administration because they actually are in power. My father is a private citizen and, as such, it has no validity, of what you’re saying. Thank you very much for coming. I appreciate all your time. You know, we have a very busy schedule, and thank you.

And Don Jr himself remembers he ended the meeting by saying his father, a private citizen, couldn’t do anything about this.

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

Paul Manafort would have provided testimony on this point to the Senate Intelligence Committee, but stood up SJC after the raid on his condo the morning after he testified. And Jared left the room before any of this transpired.

In any case, given their impression that Don Jr, in a meeting offering dirt on Hillary, had committed to revisiting Magnitsky sanctions if his pop won the election, the Russian side of the meeting did follow-up after Trump won. And so they did.

Agalarov’s team spent ten days in November trying to get Veselnitskaya a follow-up meeting

Ten days after the election, November 18, Ike Kaveladze reported to his boss, Aras, that Rob Goldstone had already reached out to the Trump people (Kaveladze doesn’t say to whom) to follow up.

Q. Could you please take a look at the entry for November 18, 2016, at 17:45. This appears to  be a message from you to Aras Agalarov. Mr. Kaveladze, could you please translate the content of that message?

A. “Hello. Rob spoke with Trump people. They asked a short synopsis of what is she going to be discussing. Last time she produced a lot of emotions and less facts. Most of the people who took part in that meeting are moving to Washington, D. C. Some of them already fired. When they receive synopsis, they will decide who to send to that meeting.”

Goldstone apparently asked for a short synopsis of the topic presented at the meeting — what would turn out to be the Magnitsky Act — so the Trump team could figure out who should attend a follow-up meeting.

On November 23, Kaveladze sent Goldstone that synopsis.

Less than an hour later, Goldstone wrote back and noted that the synopsis was largely what Veselnitskaya had presented in June.

When Kaveladze pressed for a meeting, Goldstone got squirrelly, even while saying he’d speak to both Don [Jr] and Rhona after sending a synopsis.

When Kaveladze followed up on November 27, Goldstone claimed he had sent materials the week before. Kaveladze suggested that this meeting could happen on the assistant or lawyer level — something both Kaveladze and Goldstone had expressed regret hadn’t happened during the summer.

The next time Kaveladze followed up, Goldstone said that Emin might have to call directly (which Kaveladze took to mean making a call to Don Jr).

It appears only after that did Goldstone forward the synopsis to Rhona Graff, above. After which he told Kaveladze that he had “again” asked about a low level meeting.

After that follow-up call, Graff forwarded Goldstone’s email to Steve Bannon (who early this year argued the June 9 meeting should have been held with lawyers, not the top campaign officials, thought without objecting to the exchange in principle), explaining that Trump knew Aras well, but that she wasn’t “sure how to proceed, if at all.”

During this whole exchange, Kaveladze was juggling messages with Veselnitskaya who was in New York on Prevezon business and beginning to panic based on news reports that Trump would keep Preet Bharara on (Kaveladze would continue handling her throughout December, until handing her off to Agalarov attorney Scott Balber in January).

On November 29, he explained to Vesenitskaya that,

Robert says that logistics of organizations [sic] of meetings with Team Trump now would be difficult and lengthy. I’ve landed in Moscow. I will discuss this situation … with my boss.

Kaveladze did not explain from whom Goldstone learned that, or if it included another phone call. He had also told Goldstone he was in Moscow if he wanted to speak directly. As Kaveladze told SJC, he discusses important things with his boss face-to-face because,

Agalarov is based in Russia, and I’m pretty sure, you know, his phone is being, you know, monitored.

And that’s where, as far as we know, the Agalarov effort to follow up on the June 9 meeting, ended, with Kaveladze explaining things face-to-face to his boss. Which would make it follow-up, just unsuccessful follow-up.

At least two communications are unaccounted for

One key question about this follow-up is the role that Don Jr had in it.

None of these texts suggesting Goldstone had phone conversations with someone, probably Don Jr, as early as November 18 were turned over to SJC before Don Jr testified. Probably as a result, he was asked only about the November 28 email from Goldstone to Graff. He claims he was not aware of any part of the follow-up.

Q. It appears Mr. Goldstone continued his anti-Magnitsky effort beyond your June 9, 2016 meeting. Other than this e-mail, were you aware of any other effort he made on this issue after your meeting?

A. Not that I recall, no.

For his part, Goldstone claims he didn’t send anything before that November 28 email, in spite of telling Kaveladze, back in November 2016, that he had.

Q. So in your November 27th message to Mr. Kaveladze, you said you forwarded the information last week. The last email was an email sent on November 28th, the day after this message with Kaveladze, forwarding the document to Ms. Graff. Had you, in fact, forwarded the document the week before your November 27th message with Kaveladze?

A. I don’t recall, but because I know myself, and I know how I write , I would imagine that the minute he reminded me of it in here, I forwarded it to Rhona, probably the next day. So I don’t recall one before then, no.

Q. All right. Prior to sending that email to Ms. Graff on November 28th, 2016, did you speak with Ms. Graff or any other Trump associates about a second meeting with Veselnitskaya?

A. I don’t believe so.

Nevertheless, there are several known or reported communications unaccounted for: the one Goldstone had before November 18, any email he had the week before November 28 with the synopsis, and any follow-up call via which Goldstone would conclude that the logistics of organizing a meeting with Trump people would be difficult during the transition.

Mueller, of course, will know whether Goldstone and Don Jr communicated directly, and if so when. So he will have a sense of whether Don Jr and Goldstone’s claims, which seem to contradict contemporaneous records, are true or not.

The Russian side concludes there is no communication channel

The problem, at least as the Russian side saw it (possibly based off what Goldstone had reported back), was those logistics: a channel of communications. The next day, December 1 at 11:49AM, Kaveladze texted again (Veselnitskaya was by this point frantic because Trump had met with Preet Bharara, with her even discussing who Trump might, “Wet and not to wet” with respect to the US Attorney, which Kaveladze translated as “crush”), explaining that Aras planned on meeting with Trump to restore communications.

Unfortunately, we don’t have communication. My boss planned to meet with him. We will send a formal request. Hopefully after the meeting we will keep communication.

As far as we know, that meeting never happened. Though the Agalarov camp and the Trump camp would resume intense conversations in June 2017, as the Trump Organization began to try to understand the legal liability posed by the meeting. Trump’s lawyers would speak directly with both Kaveladze and Goldstone before Agalarov’s lawyer, Scott Balber, took over the discussions (indeed, he remained the key architect of the narrative from that point forward, probably for all sides). Those are the conversations that would lead, on July 15, Graff to remind Goldstone that he had emailed her to follow up on the June 9 meeting.

So while there was clearly follow-up, there was not a clear resolution to the June 9 meeting in which Veselnitskaya got Trump to adopt her preferred policy.

Other Russians pursue a communication channel

Unless the resolution moved to a different path.

As it happens (this may be a coincidence, or may be a sign of greater coordination that the Trump people claim they’re capable of), later on the same day after Kaveladze said his boss would seek to restore a channel of communication with Trump, Jared hosted a meeting in Don Jr’s office with Sergei Kislyak, attended by Mike Flynn. Even according to Jared’s prepared statement, that meeting was about establishing communication channels to Russia.

The meeting occurred in Trump Tower where we had our transition office, and lasted twenty-thirty minutes. Lt. General Michael Flynn (Ret.), who became the President’s National Security Advisor, also attended. During the meeting, after pleasantries were exchanged, as I had done in many of the meetings I had and would have with foreign officials, I stated our desire for a fresh start in relations. Also, as I had done in other meetings with foreign officials, I asked Ambassador Kislyak if he would identify the best person (whether the Ambassador or someone else) with whom to have direct discussions and who had contact with his President. The fact that I was asking about ways to start a dialogue after Election Day should of course be viewed as strong evidence that I was not aware of one that existed before Election Day.

The Ambassador expressed similar sentiments about relations, and then said he especially wanted to address US. policy in Syria, and that he wanted to convey information from what he called his “generals.” He said he wanted to provide information that would help inform the new administration. He said the generals could not easily come to the U.S. to convey this information and he asked if there was a secure line in the transition office to conduct a conversation. General Flynn or I explained that there were no such lines. I believed developing a thoughtful approach on Syria was a very high priority given the ongoing humanitarian crisis, and I asked if they had an existing communications channel at his embassy we could use where they would be comfortable transmitting the information they wanted to relay to General Flynn. The Ambassador said that would not be possible and so we all agreed that we would receive this information after the Inauguration. [emphasis original]

Don Jr, in his SJC testimony, is the one who revealed that this meeting took place in his own office (and therefore outside of transition space that might be more closely monitored). But he claims he didn’t attend because he was sweaty from a workout; he also claims he didn’t know about it beforehand.

Q. You mentioned during the conversation with my colleagues that you had become aware of a meeting or meetings with Ambassador Kislyak. Can you just explain like what meetings did you become aware of? When did they take place?

A. I don’t remember the exact timing of when they took place. I believe it was after we had already secured — meaning after the election, but I could be mistaken. The only reason I’m aware of it is because it occurred in my office. I came back from the gym and they were in there.

Q. So when you say after the election, you mean after November 8, 2016?

A. I believe so.

Q. Was it a meeting in December of 2016?

A. That would fit the description, yes, I believe so.

Q. So it was a meeting in Trump Tower?

A. Yes.

Q. In your office but you hadn’t known about it beforehand?

A. Correct.

Q. Do you know why they used your office?

A. It was open, I was at the gym.

Q. And who was in that meeting?

A. I believe it was Jared Kushner, the Ambassador, maybe Flynn, but I don’t remember.

Q. Anyone else, to the best of your recollection?

A. No, not that I recall.

Q. Was the meeting still ongoing when you returned?

A. I believe it was, yes.

Q. Did you go in and join the meeting?

A. No, I did not.

Q. Why not?

A. Because I didn’t know what it was about and I was sweaty from the gym.

Q. Did you ask Mr. Kushner or Lieutenant General Flynn about the meeting after?

A. No, I don’t think I did.

So Don Jr doesn’t remember any calls with Goldstone about following up on the June 9 meeting (though they likely occurred), and he says a meeting with the Russian Ambassador just happened to get scheduled into his workout window on the same day his liaison was seeking a new channel of communications.

Mind you, the subject of this attempt to set up a back channel, per Jared, would be cooperating on Syria, something I learned — from someone who played a significant role in the Russian election attack — that Trump was working on within 15 hours of the close of polls in Hawaii the day after the election.

But within short order, these very same players would shift focus of back channel communications to sanctions relief. Within weeks, Kislyak had set up a meeting with the head of a sanctioned bank, Sergey Gorkov, to meet with Jared. And shortly after that, Flynn would make a series of calls to Kislyak about delaying any response to Obama’s December 28 sanctions. This, in turn, would lead to a meeting involving Erik Prince and another sanctioned bank in Seychelles leading up to the inauguration.

Natalia Veselnitskaya never got her second meeting to pitch the end to Magnitsky sanctions, but Sergey Gorkov got a meeting.

The stakes of dissociating the June 9 meeting from any sanctions relief

By this point, Rudy’s credibility is so shot that when he makes a claim, we should assume that it (like any claim his client makes) is suspect, if not an outright lie.

As I noted above, whether or not there was follow-up on the June 9 meeting doesn’t really change whether Don Jr gleefully accepted a meeting expecting dirt from the Russian government on Hillary Clinton. He did. But in Rudy’s dodgy explanations for why the June 9 meeting isn’t criminal, he relies heavily on his claim — a claim that the Trump side has maintained since a week before Rhona Graff found the email that proved it wasn’t true — that there was no follow-up on the meeting.

But there was.

At a minimum, there were several weeks of follow-up on the Russian side, understandably trying to hold Don Jr to (what they remember as) his offer to revisit the issue of sanctions after the election. As part of that follow-up, there are hints that Don Jr was in the loop, even if both he and Goldstone can’t remember that happening.

The follow-up led by the Agalarovs was, as far as the public record indicates, inconclusive. The Agalarovs lost their communication channel (perhaps as Don Jr got sidelined), and so never did get their follow-up meeting.

But on the same day Trump’s long-time handler, Aras Agalarov, said he’d seek out a new channel of communications, Jared Kushner and Mike Flynn were sitting in Don Jr’s office, attempting to establish a back channel of communication, and solidifying a relationship that would, less than a month later, involve yet another overt act regarding sanctions relief. And that overt act — persuading Sergey Kislyak to defer any response to Obama’s new sanctions — was closely directed from Mar-a-Lago.

Update: Looks like Rudy keeps issuing bogus exonerations for Jr because Mueller is closing in on him.

Mueller may be closing in on his son Don Jr. “A lot of what Trump is doing is based on the fact [that] Mueller is going after Don Jr.,” a person close to the Trump family told me. “They’re squeezing Don Jr. right now.”

Don Jr.’s lawyer said, “I’m not going to comment.” Another person briefed on the investigation disputed the term “squeeze,” but said the Mueller team continues to ask for documents.

As I disclosed last month, 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 Epistemology of Security Clearance Dick-Waving

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

I really couldn’t be bothered to get hot and bothered about President Trump stripping John Brennan of his security clearance. Brennan himself has been involved in the politicization of security clearances (perhaps most directly in Jeffrey Sterling’s case), and to have David Petraeus, of all people, complain about politicized security clearances, discredits the pushback. I’m far more concerned about the loyalty policing at EPA, Interior, Department of Education, and on the DOJ team attacking ObamaCare than I am about Brennan, because the bullying of those more obscure people will have a tangible effect on Americans’ lives. Indeed, the fact that Trump issued a declaration stripping Brennan of his clearance on July 26 but we only learned about it on August 15 is a testament to how little impact this has, other than the posturing around it.

But it has led to dangerous politicization elsewhere.

After being stripped of his clearance, Brennan wrote this op-ed.

In it, Brennan spends six paragraphs setting up how deceitful are Russians generally and his former counterpart Alexander Bortnikov specifically, and how successfully they recruit targets, including Americans, leading from a description of Russian “perfidy” directly to deeming election tampering denials “hogwash.”

Brennan then turns to Trump. He leads his accusation that Trump “colluded” with Russia by describing how asking for Russian to find Hillary’s missing emails “openly authorized his followers to work” with Russians.

The already challenging work of the American intelligence and law enforcement communities was made more difficult in late July 2016, however, when Mr. Trump, then a presidential candidate, publicly called upon Russia to find the missing emails of Mrs. Clinton. By issuing such a statement, Mr. Trump was not only encouraging a foreign nation to collect intelligence against a United States citizen, but also openly authorizing his followers to work with our primary global adversary against his political opponent.

Brennan then points to what he has read in “the reporting of an open and free press” to declare Trump’s claims of no collusion — as he had just claimed Russia’s denials of election interference — to be “hogwash.”

Such a public clarion call certainly makes one wonder what Mr. Trump privately encouraged his advisers to do — and what they actually did — to win the election. While I had deep insight into Russian activities during the 2016 election, I now am aware — thanks to the reporting of an open and free press — of many more of the highly suspicious dalliances of some American citizens with people affiliated with the Russian intelligence services.

Mr. Trump’s claims of no collusion are, in a word, hogwash.

The only questions that remain are whether the collusion that took place constituted criminally liable conspiracy, whether obstruction of justice occurred to cover up any collusion or conspiracy, and how many members of “Trump Incorporated” attempted to defraud the government by laundering and concealing the movement of money into their pockets.

In response, Richard Burr issued this testy statement, defending Trump’s action of stripping the clearance of a former CIA Director with whom Burr got along splendidly when he was spying on Burr’s own separate branch of government oversight committee.

Director Brennan’s recent statements purport to know as fact that the Trump campaign colluded with a foreign power. If Director Brennan’s statement is based on intelligence he received while still leading the CIA, why didn’t he include it in the Intelligence Community Assessment released in 2017? If his statement is based on intelligence he has seen since leaving office, it constitutes an intelligence breach. If he has some other personal knowledge of or evidence of collusion, it should be disclosed to the Special Counsel, not The New York Times.

If, however, Director Brennan’s statement is purely political and based on conjecture, the president has full authority to revoke his security clearance as head of the Executive Branch.

I’m offended by Burr’s statement not just because it ignores the plain language of Brennan’s op-ed, which it links, but for the epistemology of the Russian investigation suggested by the Senate Intelligence Committee Chair. Here’s the logic of the statement:

1. Brennan “purports” to know Trump colluded with a foreign power

Here, Burr ignores how Brennan defines it — first “authorizing his followers to work” with Russia by calling on them to find Hillary’s missing emails, and then “highly suspicious dalliances of some American citizens with people affiliated with the Russian intelligence services” — stuff that’s public. He also ignores that Brennan himself says he doesn’t know whether the “collusion” involved constitutes a criminally liable conspiracy. That is, Brennan is defining collusion as something less than a criminal conspiracy to cooperate to cheat on the election, but Burr doesn’t care.

2. Why doesn’t Brennan’s claim show up in the Brennan-led Intelligence Community Assessment?

Again, Burr ignores Brennan’s description of becoming aware of this in the time period after he “had deep insight into Russian activities during the 2016 election” — so after he left the CIA — and taunts him that the ICA Brennan oversaw showed no evidence of collusion. The implication is Brennan’s ability to know if there were collusion ended on January 20, 2017. (Burr is also ignoring that there were two different investigations even while Brennan was in government — the intelligence investigation led by Brennan, which by law should not be targeting Americans, and the several parallel counterintelligence investigations at FBI, which could investigate Americans.)

Burr then presents three and only three possibilities for how Brennan might have knowledge of collusion, once again ignoring the free press that Brennan clearly attributes it to. First, either intelligence, or personal knowledge:

3. If Brennan has something called “intelligence” proving Trump’s collusion, then it must have come from an intelligence breach.

4. If he has something called “personal knowledge” of collusion, then it must only be shared with Mueller’s team, not with the NYT.

That’s it, according to the Senate Intelligence Chair, for real information about collusion. Either it’s intelligence to which Brennan is no longer entitled (assuming, of course, that Gina Haspel would have no reason to share intelligence about Russia with Brennan in some kind of consultation, which — if Brennan did then pass that on publicly, would be the only proper reason to strip his clearance). Or it’s “personal information,” usually called “evidence,” which may only be shared with Mueller and not with the press. “Intelligence,” which is the purview of the Intelligence Committee and the agencies it oversees. Or “evidence,” which is the purview of a DOJ investigation. Either/or.

That’s, of course, illogical, and not just because Burr’s own committee is investigating some of the same “evidence” that the FBI is, notably what happened on social media and what some witnesses have testified about, in secret, to the committee, and witnesses to both (like Rob Goldstone) have also commented publicly.

It’s illogical, too, because there are other ways to get real evidence of collusion. I believe I have evidence of collusion. I shared it with the FBI, sure. But after I revealed that I had provided information to the FBI in July, I also shared limited parts of it with some Republican Congressmen, in hopes of explaining to them how serious the investigation is and showing that entire parts of it don’t derive from Peter Strzok’s decisions. I’ve also discussed, prospectively, sharing it with some former top intelligence officials (unsurprisingly, not Brennan), in the interests of elucidating parts of the Russian attack they missed.

Yet even though his either/or proposition is false, Burr then uses it to proclaim Trump’s treatment of Brennan proper based on this remarkable statement:

5. “If, however, Director Brennan’s statement is purely political and based on conjecture, the president has full authority to revoke his security clearance as head of the Executive Branch.”

Having set up this false either/or proposition, Burr then suggests anything else must be “purely political” and “based on conjecture,” and — without showing the logical relation between the two clauses in this sentence — states that the President has the authority to revoke Brennan’s security clearance.

(If NOT (intelligence or evidence,) THEN political conjecture) THEN strip the damn clearance.

It is true that thus far the case law suggests that a President does have the authority to strip Brennan’s clearance (though a Brennan challenge, or even more easily, a Bruce Ohr challenge, might establish new limits to that authority). But that authority has no relationship to the claimed political or conjectural nature of Brennan’s comments. Not only does Burr suggest it does — suggest that stripping security clearances because of speech perceived to be political is not just proper but justified — but by yoking these two clauses together in one sentence, Burr suggests punishing political speech is in some way intimately tied to the authority therein.

Plus, as Brad Heath noted, Burr’s statement argues that Trump was right to strip Brennan’s clearance on July 26 because of statements Brennan made on August 16.

The Chairman of the Intelligence Committee, mind you, made this statement.

But here’s the reason why I really care about this.

Back when he was CIA Director, I openly criticized Brennan for the way he worked the press to get the most hawkish read of the Russian attack into the press. But I didn’t think his efforts arose from partisanship. Rather, it was an effort to raise alarm bells about the attack in the last weeks of the Administration. Such use of the press happens all the time when Administration officials are trying to advance their favored policy decisions.

Burr, however, is using his position of authority to affirmatively tie security clearances to speech he (or the President) deems excessively political. He’s doing it even as he argues there are just two appropriate categories of weighing whether collusion happened or not, intelligence (his purview) or evidence (Mueller’s). And he’s doing it as his committee is leading what has, up to this point, been the only Congressional investigation not utterly discredited by partisan bickering.

That pisses me off for several reasons. First, Burr is in the same breath being a raging partisan and asserting that his committee is one of the only entities that can appropriately weigh whether Trump conspired with Russia to win the election. He’s putting a thumb on the scale at precisely the moment that he claims only he (and Mueller) get to decide whether collusion happened. This raises real questions in my mind about what would happen if and when SSCI came upon information that shows Trump conspired with Russia. It raises real doubts in my mind about whether SSCI is able to conduct their investigation.

More importantly, he’s wrong. He’s wrong for the obvious reason that journalists are discovering important threads of the Russia investigation. Indeed, the part of SSCI’s work they’re most proud about — Russia’s use of social media — came out of a lot of really good reporting on the topic.

He’s wrong because we’re a democracy and whether Trump conspired with Russia will one day be most critically decided in a political sphere. As we get closer to that day, the American public has every right to read these two data points together and consider whether they show Trump and the Russians conspiring.

“Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.”

For example, on or about July 27, 2016, the Conspirators attempted after hours to spearphish for the first time email accounts at a domain hosted by a third-party provider and used by Clinton’s personal office. At or around the same time, they also targeted seventy-six email addresses at the domain for the Clinton Campaign.

And he’s wrong because none of the certified experts are getting the Russia story entirely right. As I said, I’ve had conversations in the last several months with Republican congressmen, former top intelligence officials, and a whole lot of experts on the Russian attack, including (but not limited to) top InfoSec people, other journalists, and some key witnesses. Even aside from the stuff I went to the FBI about (which might give me special insight to what happened, but also has made me admittedly blindered about other issues) all of those people, including me, have missed key things or gotten key details wrong. Just as one example, in conversations I’ve had with that ilk of people, every single person save one has either misread key parts of the GRU indictment or read in their prior assumptions (the one exception had the advantage of being a key witness behind at least two paragraphs of the indictment). That’s just one example, but it’s an example that suggests we need more honest discussion and less of Burr and Trump’s attempt to decertify democratic speech about what the President did.

The Chair of the Intelligence Committee, Richard Burr, effectively asserted that he is one of the few authorities with the right to say, based off what his committee does in private, whether Trump conspired with Russia or not, and that any citizen deigning to weigh in based off the public evidence may be properly disciplined by the President. The statement goes a long way to discredit the investigation his committee is doing, a real blow to his staffers’ success at bridging any partisan divide. Most importantly, because it so badly gets the epistemology of an attack that targeted all Americans wrong, it raises real questions about Burr’s understanding of the Russian attack at issue.