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The Eight Trump Associates Whom DOJ Is Investigating

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Exactly a month ago, I did a post noting that the TV lawyers claiming there was no proof that DOJ was investigating anyone close to Trump were either ignorant of or ignoring six Trump associates who were being investigated. I wanted to update that post with developments from the last month, because (in addition to the contempt prosecution for Steve Bannon), we’ve learned of investigations into at least two more Trump associates.

Note that four of these — Sidney Powell, Alex Jones, Roger Stone, and Mark Meadows — definitely relate to January 6 and a fifth — the investigation into Rudy Giuliani — is scoped such that that it might include January 6 without anyone knowing about it.

Tom Barrack

Last week, Trump’s top donor, Tom Barrack, filed a motion to dismiss his indictment for serving as an unregistered agent of the Emirates.

As he did in a prior status hearing, that motion complained that Billy Barr’s efforts to undermine this investigation failed.

[T]he government’s unjustified two-year delay in charging Mr. Barrack also warrants dismissal of the indictment. The government had all the evidence on which the indictment was based in 2019. The indictment pleads the conspiracy terminated in April 2018, and the alleged false statements occurred in June 2019. Why the government waited more than two years, and until after a change in administration, is a question only it can answer, but it should answer it especially given the paramount First Amendment interests at stake. Had the government brought this case when its investigation was complete in 2019, recollections regarding Mr. Barrack’s June 2019 interview would have been fresh and the harm from the government’s failure to make a contemporaneous record might have been mitigated. The lengthy delay has also prejudiced Mr. Barrack’s ability to identify, preserve, and secure documentary evidence and obtain evidence from witnesses whose memories have faded. The government has provided no explanation for its delay, and the specter that the government intentionally delayed bringing this case for political reasons or tactical advantage hangs heavily over this case. Because Mr. Barrack has been deprived of a fair opportunity to defend himself, the indictment should be dismissed. [my emphasis]

Barrack and DOJ are also fighting over whether Barrack can unseal discovery in an attempt to discredit this investigation.

Barrack filed the specified materials in connection with pretextual arguments in his motion to dismiss, and he all but acknowledges that he seeks their unsealing in a bid to improperly influence public opinion.

As noted before, according to reporting from 2019, this investigation was a Mueller referral, so it’s proof that Garland’s DOJ will pursue such referrals. According to CNN reporting, the indictment was all ready to go in July 2020, a year before it was actually charged. That provides a measure of how long it took an investigation that was deemed complete at a time when Barr seemingly prohibited filing it to be resuscitated under Garland: at least four months.

Barrack’s prosecution proves that DOJ can indict a top Trump associate without leaks in advance. But it will also be an early test about a Trumpster’s ability to discredit the notion that any of them can be held accountable.

Jury selection for Barrack’s trial is now scheduled to start on September 7.

Rudy Giuliani

Since my last post on this topic, Special Master Barbara Jones reported on the progress of the privilege review of 16 devices seized from Rudy Giuliani on April 28, 2021.

Here’s a summary of what that review and the earlier known seizures of Rudy’s communications in the Ukraine-related investigation into Rudy:

The known warrants for Rudy’s phones pertain to whether, in the lead-up to Trump’s impeachment for trying to coerce Ukraine’s assistance in the 2020 election, Rudy was acting as an unregistered agent of Ukraine.

There’s good reason to believe DOJ could show probable cause to access Rudy’s phones from April 2018 (before he formally became Trump’s lawyer), because during that period he was attempting to buy Michael Cohen’s silence with a pardon. There’s equally good reason to believe that act of obstruction is one of the referrals still redacted in the Mueller Report.

On or about April l 7, 20 l 8, Cohen began speaking with an attorney, Robert Costello, who had a close relationship with Rudolph Giuliani, one of the President’s personal lawyers. 1022 Costello told Cohen that he had a “back channel of communication” to Giuliani, and that Giuliani had said the “channel” was “crucial” and “must be maintained.” 1023 On April 20, 2018, the New York Times published an article about the President’s relationship with and treatment of Cohen. 1024 The President responded with a series of tweets predicting that Cohen would not ” flip” :

The New York Times and a third rate reporter . . . are going out of their way to destroy Michael Cohen and his relationship with me in the hope that he will ‘flip. ‘ They use nonexistent ‘sources’ and a drunk/drugged up loser who hates Michael, a fine person with a wonderful family. Michael is a businessman for his own account/lawyer who I have always liked & respected. Most people will flip if the Government lets them out of trouble, even if it means lying or making up stories. Sorry, I don’t see Michael doing that despite the horrible Witch Hunt and the dishonest media! 1025

In an email that day to Cohen, Costello wrote that he had spoken with Giuliani. 1026 Costello told Cohen the conversation was “Very Very Positive[.] You are ‘loved’ … they are in our corner … . Sleep well tonight[], you have friends in high places.”1027

Similarly, there’s good reason to believe DOJ could show probable cause to access Rudy’s phone for his involvement in Trump’s attempted coup, not least because Rudy himself tweeted out some texts he exchanged with a Proud Boy associate discussing specific insurrectionists in the aftermath of the attack.

We wouldn’t know if DOJ had obtained warrants for those separate periods, because those periods will be covered by Jones’ review one way or another.

But because of the temporal scope Judge Paul Oetken approved last year, Jones has completed a privilege review of all communications that date between January 1, 2018 through April 28, 2021 on 8 of the devices seized from Rudy (April 28 was the day the devices were seized). We can’t know what dates during which Rudy was using those 8 devices. It could well be that they were older phones with nothing recent.

But we know that of the communications on the phone with the most texts and chats — the phone designated 1B05 — the government received 99.8% of any communications dated between January 1, 2018 and April 28, 2021 and they received those communications no later than January 21.

Of particular note, Rudy at first tried to claim privilege over 56 items from phone 1B05. He thought better of those claims in 19 cases. And then, after Jones deemed 37 of them not to be privileged, he backed off that claim as well. During a period when Jones and Rudy’s team would have been discussing those 37 items, Judge Oetken issued a ruling saying that the basis for any privilege claims (but not the substance of the communications) would have to be public. After precisely the same kind of ruling in the Michael Cohen Special Master review, Trump backed off his claim of privilege for Cohen’s recording about the hush payments. That may be what persuaded Rudy to withdraw his claim of privilege over those materials here, as well.

And whether or not DOJ has already accessed the communications Rudy conducted during 2020 and 2021 on any of the 16 devices seized from him, we know all the phones Rudy was using in April 2021 are in DOJ’s possession and that Judge Oetken has already approved a privilege review to cover those communications.

In any case, the details of the Rudy investigation show, at a minimum, that Barr went to extraordinary lengths to attempt to kill this investigation (and may have even ordered that FBI not review the materials seized in 2019). It took mere weeks after Garland took over, however, for the investigation to take very aggressive steps.

It also shows that SDNY managed to renew this investigation without major leaks.

Robert Costello

Last Friday, Steve Bannon revealed that DOJ had seized the toll records of his lawyer, Robert Costello, the same guy that would be at the center of any predication for any investigation into Rudy’s attempts to obstruct the Mueller investigation. Some outlets are claiming that this was just part of the investigation into Bannon, but that cannot be right, for several reasons. First, DOJ didn’t ask for the most intrusive set of those records — email metadata from between March 5 and November 12, 2021 — until the day they indicted Bannon. The returns on those requests could not have been presented to the grand jury, because DOJ didn’t receive them until December 7. Plus, scope of that request not only dates back to before the September 23 subpoena that is the basis for the Bannon contempt prosecution, it dates back before the January 6 Committee that issued the subpoena in the first place. DOJ obtained those Internet toll records for a reason that extends beyond the subpoena fight; they cannot pertain (just) to the known prosecution of Bannon.

It may well be they relate to obstruction related to Rudy though. Here’s DOJ’s letter responding to Bannon’s complaints about this seizure, which given some confusion bears further discussion.

We write in response to your January 6, 2022, letter requesting information about internal deliberations and investigative steps relating to Mr. Costello and any other attorneys who have represented Mr. Bannon. As you are aware, and as we discussed in a phone call with Mr. Corcoran and Mr. Schoen on December 2, 2021, Mr. Costello represented Mr. Bannon before the January 6th Select Committee (“the Committee”) in relation to the subpoena it issued to Mr. Bannon and is, therefore, a witness to the conduct charged in the Indictment. We understand that attorney Adam Katz also represented Mr. Bannon with respect to the Committee and, therefore, also is a potential witness. We are not aware of any other attorneys who represented Mr. Bannon with respect to the Committee.

Aside from the information that Mr. Costello voluntarily disclosed on behalf of Mr. Bannon during the investigation of this matter, the Government has not taken any steps to obtain any attorney work product relating to any attorney’s representation of Mr. Bannon or to obtain any confidential communications between Mr. Bannon, Mr. Costello, and Mr. Katz, or between Mr. Bannon and any other attorneys.

We have provided all discoverable material in the prosecution team’s possession, custody, or control relating to Mr. Costello’s and Mr. Katz’s involvement in the conduct charged in the Indictment.

The first paragraph explains a warning DOJ gave when Costello first raised noticing an appearance in the contempt prosecution for Bannon (it’s likely Costello had been tipped off by his firm that DOJ had obtained his toll records by that point). DOJ makes clear that, by voluntarily sitting for two meetings at which FBI agents were present, Costello made himself a witness about the basis for which Bannon gave for blowing off the Committee subpoena. As I have noted, Costello gave materially inconsistent answers at that meeting, likely giving the FBI probable cause to investigate whether he had made false statements; the easiest and least intrusive way to test whether his claims were true was to test whether his claims about the existence and timing of communications with Trump’s lawyers were true or not — thus the toll record seizure.

The remaining two paragraphs disclaim any impact on Bannon. Call records are not work product and, while sensitive, are not treated as privileged (and in any case, date to a period in which Costello was not representing Bannon criminally). The interviews were work-product, claims about the advice Costello gave Bannon (including the email Costello described in which he told Bannon to be BEWARE because he was likely to be referred to DOJ for prosecution). But Costello shared that work-product voluntarily. DOJ has not otherwise obtained the work-product or confidential content of Costello pertaining to Bannon.

That paragraph says nothing about Costello’s representation of Rudy, though.

And the following paragraph makes it more likely this statement intentionally stops short of covering all of Costello’s work product. It limits the statement about materials in its possession to the prosecution team (excluding, for example, SDNY prosecution teams). It doesn’t address confidential communications between Rudy and Costello. And for good measure, it limits its statements to Costello’s involvement in the January 6 subpoena, not other matters.

Costello may not count as a Trump associate directly. But this is all about Trump’s extended effort to obstruct investigations into his conduct. And because of the way Costello has, on at least two occasions, been the weak link that pierced privilege covering such cover-ups, may be a key investigative target.

Sidney Powell

Sidney Powell may be another key lawyer who pierced privilege.

Several different outlets have reported that there is a grand jury investigation into Sidney Powell’s grifting off lies about election fraud.

Since my last post on investigations into Trump’s associates, Sidney Powell’s lawyer revealed she is “cooperating” in that investigation, though in contemplating “cooperation” with the January 6 committee, she is reserving privilege claims about “advice” to Donald Trump.

A lawyer for Sidney Powell, a well-known, Trump-connected attorney, acknowledged that her organization’s fundraising connected to the 2020 election is subject to an ongoing federal criminal investigation.

Powell’s lawyer, Howard Kleinhendler, told CNN that his client “is cooperating” with the investigation into her organization, Defending the Republic, by the US Attorney’s Office in the District of Columbia. That cooperation includes “rolling productions” of documents.

[snip]

Still, when the committee asks Powell about communications she had with Trump, that is “going to get a little hairy,” Kleinhendler told CNN.

He said Powell believes that the times Trump called her to ask for legal advice may be covered by attorney-client privilege — even if he never paid her to be his or his campaign’s lawyer. Powell never worked as a lawyer for the former President personally or for the Trump campaign, Kleinhendler said.

“We’ll have to deal with that, and we’ll have to try to discuss with the committee to see how” to handle privilege issues, Kleinhendler said.

But Powell can’t claim privilege for the bulk of the period during which she was helping Trump steal the election. After Trump claimed Powell represented him on November 15, 2020, Rudy stated as clearly as he can manage on November 22 that, “Sidney Powell is practicing law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity.”

With that statement, Rudy effectively waived privilege for any communications implicating both of them from that date forward, long in advance of a December 18 meeting at which Powell purportedly told him about all the communications she sent him in the interim.

Similarly, most of these events post-date the time, November 25, when Powell can credibly claim to be representing Mike Flynn in an effort to nullify the consequences of his lies and foreign agent work, because that’s when Trump pardoned Flynn. Certainly, Powell’s claim to be criminally representing Flynn ended no later than December 8, when Emmet Sullivan dismissed the case. So she may want to claim privilege, but well before the critical meeting between Rudy, Powell, Flynn, and Patrick Byrne on December 18, all visible basis for that claim was affirmatively gone, and for anything seized from her email provider, she’s likely not going to be involved in making that claim anyway.

Mark Meadows

In a number of posts, I have argued that DOJ would be better off treating the January 6 contempt referral as, instead, a referral into obstruction of justice for the way Mark Meadows withheld or deleted evidence pertaining to the coup attempt.

I can’t prove that has happened.

What is certain, however, is that Deputy Attorney General Lisa Monaco confirmed that DOJ is investigating the fake electors.

“We’ve received those referrals. Our prosecutors are looking at those and I can’t say anything more on ongoing investigations,” Monaco said in an exclusive interview.

And the January 6 contempt referral made clear that communications in Meadows possession show that he was at the center of that effort.

Mr. Meadows received text messages and emails regarding apparent efforts to encourage Republican legislators in certain States to send alternate slates of electors to Congress, a plan which one Member of Congress acknowledged was ‘‘highly controversial’’ and to which Mr. Meadows responded, ‘‘I love it.’’ Mr. Meadows responded to a similar message by saying ‘‘[w]e are’’ and another such message by saying ‘‘Yes. Have a team on it.’’34

34Documents on file with the Select Committee (Meadows production).

Meadows has been frantically trying to ensure whichever of these communications occurred on his personal accounts get shared with the Archives. Which means DOJ now knows they can learn details of the fake elector conspiracy by obtaining those records from the Archives.

Alex Jones

Over the last year, DOJ has collected a great deal of evidence that the Oath Keepers, the Proud Boys, and an alarming number of former Marines worked together to open a second breach on the Capitol via the East doors. Instrumental to the success of this breach were a large number of MAGA tourists who joined in the breach. DOJ has proof that at least some of them were there because Alex Jones had lured them there by lying about a second Trump speech on the East side of the building.

DOJ has already arrested two of Jones’ employees: videographer Sam Montoya in April and on-air personality Owen Shroyer in August.

In a November DOJ response in the Shroyer case, Alex Jones was referred to as Person One, as numerous others believed to be under active investigation have been described. That filing debunked the cover story that Shroyer and Jones have used to excuse their actions on January 6. Judge Tim Kelly, who is also presiding over the most important Proud Boys cases, is currently reviewing Shroyer’s First Amendment challenge to his arrest.

This strand of the investigation has likely necessarily lagged the exploitation of former Alex Jones’ employee Joe Biggs’ iCloud and phone, which were made available to Biggs’ co-travelers in August. This post has more on the developments in the Montoya and Shroyer cases, including that a different prosecutor recently took over Monotya’s case.

Roger Stone

Roger Stone, who has close ties to both the Oath Keepers and Proud Boys who coordinated the attack on the Capitol, has shown up repeatedly in the Oath Keeper conspiracy. In March, DOJ debunked Connie Meggs’ claim not to know her co-conspirators by including a picture of an event she did with Roger Stone and Graydon Young (this was close to the time that Connie’s husband Kelly organized an alliance between Florida militias).

In a May 25 FBI interview, Mike Simmons, the field commander for the Oath Keepers on January 6, appears to have been specifically asked why Simmons had so many conversations with Joshua James, who was providing security for Roger Stone at the Willard the morning of the insurrection. Simmons appears to have explained that James called him every time Stone moved.

In June, Graydon Young, the Floridian who attended that Stone event with Connie, entered a cooperation agreement. Also in June, Mark Grods, one of the Oath Keepers who had been at the Willard that morning, entered a cooperation agreement. In September, Jason Dolan, a former Marine from Florida who also interacted with Stone in advance of the insurrection and who was waiting there on January 6 as the other Oath Keepers, a number of Proud Boys (including former Alex Jones employee Joe Biggs) and Alex Jones himself all converged at the top of the East steps just as the doors were opened from inside, entered a cooperation agreement.

Erik Prince

In my last post, I described a grand jury investigation into a powerful Trump associate that had subpoenaed witnesses in the investigation in the second half of last year. NYT just disclosed that investigation, which is into Erik Prince.

Mr. Prince is separately under investigation by the Justice Department on unrelated matters, according to people familiar with the case. The scope of that investigation is unclear.

The investigation reflects a reopening of an investigation Billy Barr shut down in 2019-2020. What’s interesting about it is the scope seems somewhat different and the investigating District is different than the earlier investigation. That may suggest that, for investigations that Barr shut down, DOJ would need to have a new evidence to reopen it. But the existence of this investigation shows, again, that Garland’s DOJ will go after powerful Trump associates.

In any case, I keep laying all this out, and TV lawyers keep angrily insisting that this public evidence does not exist.

I can’t guarantee that any of these investigations will lead to charges (or, in the case of Bannon and Barrack, convictions). Investigations alone will not save democracy.

But there is abundant evidence that DOJ is not shying away from aggressively investigating the suspect criminal conduct of Trump flunkies.

Why to Delay a Mark Meadows Indictment: Bannon Is Using His Contempt Prosecution to Monitor the Ongoing January 6 Investigation

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In this post, I described that DOJ would be smarter to charge Mark Meadows with obstruction for his destruction of records relevant to an ongoing investigation than to charge him for misdemeanor criminal contempt of Congress. That’s because obstruction, a felony, would pose the risk of real jail time, which would be more likely to convince Meadows to cooperate with investigators and explain what he did as part of an attempt to steal the election.

On December 15, the House voted to send the Mark Meadows contempt referral to DOJ for prosecution. Much to the chagrin of the TV lawyers, DOJ has not taken overt action against Meadows on the criminal contempt of Congress referral.

But as I’ve repeatedly argued, that referral is better considered — and would be more useful to the pursuit of justice — as a referral of Mark Meadows for a violation of the Presidential Records Act and obstruction of the DOJ criminal investigation that he knew to be ongoing.

Among the things included in the referral are:

  • A link to this Politico report quoting “a source close to former President Donald Trump’s ex-chief of staff,” insisting that, “all necessary and appropriate steps either were or are being taken” to ensure that Meadows is not deemed to have violated the Presidential Records Act by failing to share Presidential communications he conducted on his personal email and phone
  • Repeated references to Jonathan Swan’s coverage of the December 18 meeting at which Powell and others discussed seizing the voting machines
  • Indication that Meadows received notice on his personal phone (and so among the records withheld in violation of the PRA) the rally might get violent
  • A citation of a message that Meadows turned over to the committee (but presumably not, originally, to the Archives) in which Alyssa Farah urged, “You guys have to say something. Even if the president’s not willing to put out a statement, you should go to the [cameras] and say, ‘We condemn this. Please stand down.’ If you don’t, people are going to die”
  • Citation of several communications Meadows had with state politicians involved in the fake elector scheme (which Deputy Attorney General Lisa Monaco has confirmed they are investigating), including one where Meadows said, “I love it” and another where he said, “Have a team working on it;” Monaco’s confirmation puts Meadows on notice that his actions are the subject of a federal criminal investigation
  • A claim of election fraud sent to Meadows on his private email (and so among the materials he violated the PRA by withholding)
  • Citation of a tweet Meadows sent on December 21 reporting “‘Several members of Congress just finished a meeting in the Oval Office with President @realDonaldTrump, preparing to fight back against mounting evidence of voter fraud. Stay tuned”
  • Citation of this story describing that Meadows’ late December trip to Georgia to pressure election officials to find more votes could get him in legal trouble; when Fulton County DA Fannie Willis asked for increased protection in the wake of Trump’s calls for riots, she stated explicitly that she was criminally investigating, “former President Donald J. Trump and his associates,” putting Mark Meadows on notice that he’s under criminal investigation there, too

This entire process led Meadows and his attorney to make efforts to comply with the PRA, meaning they’ve been working to provide the communications cited here, as well as those Meadows intended to claim privilege over, to the Archives.

If they can’t comply — and some of the texts in question were sent via Signal, which is really hard to archive, and so may not have been preserved when Meadows sent his own phone back to his provider to be wiped and replaced — then Meadows will not just be in violation of the PRA (which is basically toothless) but also of obstructing the criminal investigation he knew was ongoing when he replaced his phone. Obstruction carries a far stiffer penalty than contempt of Congress does, and it serves as good evidence of involvement in a larger conspiracy.

As Carl Nichols, the Trump appointee presiding over the Steve Bannon criminal contempt case (and therefore likely to preside over one against Meadows if it were ever charged), criminal contempt is for someone from whom you’ve given up getting cooperation, not someone who still might offer useful cooperation.

Meanwhile if Meadows and his lawyer do belatedly comply with Meadows’ obligations under the PRA, it’s quite possible (particularly in the wake of the Supreme Court ruling denying Trump’s attempt to override Joe Biden’s privilege waiver) that DOJ has to do no more to obtain these records than to send a warrant to the Archives. If not, Meadows is now on notice that he is the subject of several criminal investigations (the fake elector one and the Fulton County one), and he may think twice before trying to withhold communications that are already in possession of the Archives.

So whether or not DOJ has these documents in their possession right now, they have the means to get them very easily.

When I’ve pointed this explanation out to those wondering why DOJ has yet to (visibly) act on the Meadows contempt referral the January 6 Select Committee the House sent over on December 14, they ask why DOJ can’t just charge Meadows with contempt now and then follow up with obstruction charges later.

The answer is clear. Doing so will make any ongoing investigation far more difficult.

We can see why that’s true from the Bannon case. Bannon has already used his contempt prosecution as a means to obtain evidence about an ongoing obstruction investigation implicating Trump.

In these two posts, I described what we know about DOJ seizing the call records for Robert Costello, the lawyer for both Steve Bannon and Rudy Giuliani, who is someone who has been at the center of Trump’s pardon dangling for years. There’s a full timeline here, but for the purposes of this post, the key details are:

  • On September 23, the House subpoenaed Bannon.
  • Around October 5, the lawyer for Bannon and Rudy started speaking with a lawyer for Trump, Justin Clark, about how to avoid responding on Bannon’s behalf.
  • Between then and Bannon’s deadlines, Costello twice invoked Trump to avoid complying (in an interview with DOJ, Costello admitted that, “CLARK would not identify for COSTELLO what would be covered under Executive Privilege” and “refused to reach out to the Committee on behalf of COSTELLO or BANNON,” though, “CLARK informed COSTELLO not to respond to item 17” (involving communications Bannon had with Rudy, Sidney Powell, and Mike Flynn).
  • Costello claimed he did not know the lawsuit Trump filed on October 18 was coming and also claims he had a draft in process to blow off another October 19 contempt deadline, but on the evening of October 18, he told a J6 staffer that Bannon would not show up.
  • Over the next three days, the J6 Committee went through the process of holding Bannon in contempt, completing the process on October 21.
  • On November 3, Costello met with the investigative team, ostensibly to persuade them not to indict Bannon; in the process, Costello made claims about his communications with Trump’s lawyers (as well as those for Meadows, Dan Scavino, and Kash Patel) that materially conflicted. In response, DOJ sought Costello’s call records, ultimately obtaining records dating back to the last act Costello did on Bannon’s behalf in the Build the Wall prosecution, March 5, 2021, thereby reflecting an interest in Costello’s actions that significantly precede the J6 Committee actions.
  • On November 12, DOJ indicted Bannon. At first, just Evan Corcoran and David Schoen (the latter of whom represented the former President in his January 6 related impeachment) filed notice as Bannon’s lawyers.
  • On December 2, Costello informed DOJ he would file a notice to join the Bannon defense team (he may have been tipped off by his firm that DOJ had asked for his call records for his business phone). DOJ noted that if Costello represented Bannon, it might impact Bannon’s ability to claim an Advice of Counsel defense. On December 8, Costello filed his notice of appearance on Bannon’s team.
  • On January 4, DOJ provided Bannon 790 pages of call records data pertaining to Costello (including from his law firm).

In the early appearances after Bannon’s indictment, DOJ said it wanted to go to trial immediately and believed the trial could take a matter of hours. Bannon, by contrast, wanted a fall trial, and believed the trial could take weeks. Carl Nichols, the Trump appointee who had a key role in the Harriet Miers contempt conflict who is presiding over the case, split the difference on time, and has otherwise seemed unconvinced by Bannon’s maximalist challenges to the indictment.

Nevertheless, because the trial did not happen immediately, until Bannon does go to trial (currently scheduled in July), then DOJ will be obliged to provide him a range of information that would be (as the Costello records clearly are) relevant to an ongoing obstruction investigation implicating Trump personally. And until DOJ has reason to claim a conflict has arisen between Costello’s representation of Rudy and Bannon (which would effectively tip Rudy off that he’s being investigated for January 6), anything shared with Bannon’s defense team will be shared with Rudy’s defense team (and probably, through Schoen, Trump’s).

Those wailing for immediate action got an indictment of Steve Bannon … which will, at most, lead to his jailing for a few months.

And in exchange, Bannon got records that suggest that DOJ treated his attorney as a suspect in a conspiracy to obstruct this (and the J6) investigation. Bannon got records that suggest that DOJ is investigating his lawyer’s activities going back at least to March 5. He was able to see some of the evidence DOJ has obtained in that ongoing investigation.

Until something resets the current status, the contempt prosecution of Bannon is far more useful to Bannon as a means to monitor the ongoing investigation into him and his co-conspirators than it is for DOJ. And DOJ is likely now limiting investigative steps into Bannon and Costello, accordingly, to avoid triggering a discovery obligation to share information with Bannon.

There are a whole lot of really good reasons why DOJ probably hasn’t acted on the Meadows referral yet — most notably that Judge Nichols, who would likely preside over a Meadows case as a related prosecution, has made it clear he believes criminal contempt is used only for those whom DOJ has no hope of coercing cooperation. If they charge Meadows with contempt, per Nichols, they have foresworn any hope of getting his cooperation.

Given what Meadows has already done, DOJ surely views the potential of Meadows’ cooperation as more useful than a time-consuming and restrictive contempt prosecution.

And that’s true, first and foremost, because charging Meadows with contempt now would further limit their ability to shield parts of their investigation from the suspected co-conspirators.

Update: Corrected the Build the Wall reference to mention Bannon, not Meadows.

When Lawyers’ Lawyers Need Lawyers: The Import of Robert Costello’s Toll Records — for Bannon, for Rudy, and for Donald Trump

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As I explained in this piece, the lawyer who represents both Rudy Giuliani and Steve Bannon — and who has been at the center of Trump’s pardon-dangling for almost three years — had two meetings with the Bannon prosecution team, where he made a number of claims that could not all be true. The first meeting Robert Costello had with DOJ was on November 3, with a follow-up on November 8, 2021.

Just two of the sets of mutually contradictory claims Costello made in his first interview are:

COSTELLO had not had communication with attorneys for TRUMP prior to that date. [October 18, 2021, when Trump filed a lawsuit challenging Executive Privilege waivers for the January 6 Committee]

And,

COSTELLO first had contact with [Attorney for Donald Trump Justin] CLARK on approximately October 4 or October 5, 2021.

Or:

COSTELLO did not discuss disposing of any documents requested in the Select Committee subpoena with any attorneys who represented former President TRUMP.

And,

Even though MICHAEL FLYNN was not an attorney, he was present during attorney-client-protected discussions. Those particular attorneys represented former President TRUMP and CLARK informed COSTELLO not to respond to item 17.

I would imagine there’s no better way to get the FBI to start investigating you for false statements then by making a bunch of mutually contradictory claims in one interview.

There were certainly other claims Costello made which he should have known to be false. For example, given that his other client, Rudy Giuliani, put out a statement asserting that Sidney Powell did not work for Trump, Costello likely knows that Powell’s presence at a meeting, along with non-lawyer Mike Flynn, would not implicate Trump’s privilege, even if a meeting between Costello client Bannon and Costello client Rudy could itself be considered privileged, which is a fantastic stretch in any case. But that’s a claim, he told the FBI, that he advised Bannon to make in refusing to respond to the January 6 subpoena by invoking Executive Privilege.

Nevertheless, the FBI did not have to obtain the content of Costello’s communications to test whether he lied at that meeting on November 3, given that so many of his fact claims could be tested simply by obtaining his call and email records to see whether he was speaking with Trump lawyers (and those for Mark Meadows, Dan Scavino, and Kash Patel) and if so, when, about which Costello made affirmative denials in his meeting with DOJ. If he was discussing with other lawyers how to deal with the Select Committee investigation at a time he claimed he was not, the FBI would have deemed that a suspected lie worthy of more investigation.

And that’s what the FBI did, making eight requests for records (four for phone records, four for Internet records, apparently covering his work and personal emails and phones) resulting in 790 pages, total.

Given the abundant detail included in the Motion to Compel (undoubtedly included to provide hypothetical co-conspirators some idea of the extent of the record seizure, including that no content was obtained), Bannon’s claims seem to be predictably overblown. There appear to be three grand jury subpoenas and just one 2703(d) order (to an Internet provider, likely someone like Google). That is, some of the eight requests appear to be an effort to figure out which phones and email were of interest, in advance of obtaining toll record themselves. Indeed, Bannon makes much out of the fact that DOJ obtained payment method associated with Costello’s phone, available with a basic subscriber request. And unless Costello is a remarkably stingy user of SMS texting, the request for those toll records appears to be narrowly tailored either by time or interlocutor; there are just two pages of SMS text toll records.

Here’s a summary of what the government appears to have obtained:

Bates stamp range: US 001093-001883

US 001093: Grand jury subpoena

US 001145-001768: 623-page return from Internet provider showing IP activity, status (read or unread, inbox, etc.) and other details concerning emails and other activity offered by the carrier obtained with a Section 2703(d) Order on November 11, 2021 [US 001733] that includes a case number [US 001732-001735] and returned on December 7, 2021.  Returns include:

  • US 001151-001249: 98 pages showing IP activity for the email account sought from March 5, 2021 through November 12, 2021, as well as a report on what other services from the provider Costello uses
  • US 001733, 001735, 001740, and 001742: Several references to a 2703(d) order or equivalent
  • US 001765: Grand jury subpoena

US 001769-001789: Costello’s 302s

US 001834: Case number

US 001842: Case number

US 001863: Subscriber record showing payment method for Costello’s cell phone

US 001866: Costello’s data usage

US 001872; Grand jury subpoena

US 001874-001875:  SMS (text messaging) information, including the numbers to which texts were sent and from which they were received

The government doesn’t appear to be treating these records as evidence in their contempt case against Bannon. As the  Bannon filing notes, the government only turned them over on January 4, after stating (before they had obtained the bulk of these records) that the evidence in their case-in-chief against Bannon only consisted of 200 documents.

It is curious that Government counsel delayed producing these documents until January 4, 2022. On November 18, 2021, the parties appeared before this Court. At that proceeding, Government counsel insisted that the Government was ready for trial, that this is a simple and straightforward case, and that it was ready immediately to provide Mr. Bannon with the discovery in the case, which it described as “less than 200 documents,” with “most of” it purportedly comprised of “materials the defendant already has ….” [11/18/2021 Hearing Tr. at 3].

Costello first joined Bannon’s criminal defense team over two weeks after Bannon was indicted, and after DOJ pointed out that Costello’s representation would pose a problem for any Advice of Counsel defense. Given that DOJ obtained toll records from Costello’s firm, it’s possible they tipped him off and he joined the Bannon team to create this problem after that.

Bannon’s filing also notes that the government hasn’t provided the subpoenas obtaining this material, as they would have if the subpoenas targeted him, personally.

Nowhere in the Government’s production was a copy of a court order authorizing the Government’s actions, nor was there a copy of any subpoena for the records, nor was there even any application for a court order or for authorization from the Department of Justice for subpoenas intended to obtain defense counsel’s personal and professional telephone and email records.

That makes sense: Bannon can’t be held responsible for the things his (and Rudy’s) lawyer says while sitting with the FBI. Costello is the one who made mutually contradictory claims, not Bannon.

But, at least as Bannon tells it, the team that seized these records appears to have taken little care to protect Costello’s other clients.

Furthermore, there was nothing in the production that indicated any effort to limit the access of the prosecutors assigned to this case to defense counsel’s personal and professional records, nor was there any indication of any filter in place to distinguish between attorney-client privileged or work-product privileged information that could be garnered from the records the Government obtained and non-privileged materials, nor was there any indication of any filter intended to protect confidential and privileged related to other clients of Mr. Costello and his law firm or intended to keep the prosecutors handling this case from access to any such privileged material.

Indeed, after wailing a bit about DOJ’s oblique response when asked about this seizure, the Bannon filing returned to Costello’s other clients and “witnesses” consulted in those representations.

Beyond all of the above, the Government’s response ignores the damage its actions risked causing for other clients of Mr. Costello and his law firm, for telephone calls and emails to and from other clients and witnesses consulted in relation to their cases would now be exposed by the Government’s efforts to obtain records for all of the attorney’s emails and telephone records.

And in fact, in a letter responding to Bannon’s questions about these records, DOJ made no representations about work product related to Costello’s other clients, even while emphasizing what the prosecution team (which is different from DOJ as a whole) has in its possession.

Aside from the information that Mr. Costello voluntarily disclosed on behalf of Mr. Bannon during the investigation of this matter, the Government has not taken any steps to obtain any attorney work product relating to any attorney’s representation of Mr. Bannon or to obtain any confidential communications between Mr. Bannon, Mr. Costello, and Mr. Katz, or between Mr. Bannon and any other attorneys.

We have provided all discoverable material in the prosecution team’s possession, custody, or control relating to Mr. Costello’s and Mr. Katz’s involvement in the conduct charged in the Indictment. The Government understands its discovery obligations under Federal Rule of Criminal Procedure 16; the Jencks Act; and Brady, Giglio, and their progeny, and will continue to comply with them should additional discoverable material come into the prosecution team’s possession, custody, or control.

That’s significant because of the temporal scope of the email metadata obtained: from March 5 through November 12, 2021, basically the last event for which Costello was representing Bannon in the Build the Wall criminal prosecution and his indictment on these new charges (though, again, Costello didn’t join his defense team for over two weeks). These records don’t include any period when Costello was criminally representing Bannon.

But they do cover a far broader period than would be necessary to understand what communications Costello had with lawyers for Donald Trump after Bannon was subpoenaed by the January 6 committee on September 23. Indeed, they cover a broader period than the entire January 6 Committee, which was created by House Resolution 503 on June 30, 2021.

Presumably, DOJ saw something in the initial records they were seeking — or in records obtained by others, or in another unseen ongoing investigation — to scope the Internet request for the entirety of the period between Costello’s past and current criminal representation of Bannon. Or they were already interested in Costello (for whom there was a possible referral in the Mueller investigation), and his interview with the FBI extended that interest.

That suggests this really isn’t about Bannon.

But the seized records do include the entirety of the period when Costello was helping Rudy review the contents of 16 devices seized by SDNY. Of note, Trump could have, but chose not to participate in that Special Master process. Because he moved to intervene, Dmitry Firtash is permitted to review the records seized from Victoria Toensing to protect his own interests, but Trump’s lawyers should not be getting notice of what was seized from Rudy.

Indeed, the conversations of interest regarding the Bannon representation happen to have taken place during a period during which Costello had gotten an extension to review the contents of the first seven devices seized from Rudy.

On September 28, 2021, I directed that Mr. Giuliani complete his review of the data contained on seven of these devices by October 6, 2021, which was later extended to October 12, 2021. These seven devices contain 2,226 items in total dated on or after January 1, 2018. Mr. Giuliani designated 3 items as privileged, and I am reserving decision on those 3 items. The remaining 2,223 items have been released to the Government.

Costello told the FBI he had no conversations with any Trump lawyers for this period. Even if he had conversations with other Trump lawyers during this review problem, it would conflict with what he told the FBI in his Bannon-related meeting.

It’s certainly possible that the only warrants at issue in the Special Master review are the Ukraine-related ones overtly used to seize Rudy’s devices, and that the SDNY team is completely excluded from accessing these records; if that’s the case, it would suggest there’s no investigation into Rudy out of DC, particularly not one in which JP Cooney or Molly Gaston are participating, both senior prosecutors at DC USAO.

Or there’s something far more interesting going on.

Update: I realized after I posted this that Costello’s 302s were included in the 790 pages Bannon complained about, meaning he claimed things were call records when instead they were the obvious justification for the call records. I’ve added and bolded those pages above.

Steve Bannon’s Lawyer Made Himself a Witness and Now Wants To Be Just a Lawyer

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Last night, along with a previously scheduled Motion for Discovery, Steve Bannon filed a Motion to Compel disclosure regarding some records requests DOJ made targeting Bannon’s attorney, Robert Costello. In it, he revealed that the government had obtained phone and Internet toll records (that is, metadata, not content) of his attorney spanning the period between the last event in Bannon’s prosecution in the Build the Wall fraud case, March 5, 2021, through the day he was indicted, November 11, 2021.

Predictably, the filing wails a lot about his lawyer being spied on and misrepresents what happened.

While Bannon included two exhibits with his Motion to Compel (a letter asking for information about the Costello material and the government response), Bannon included the most important information pertaining to the Costello records with his Motion for Discovery, not his Motion to Compel: reports of two interviews (302s) he did with DOJ and FBI, one on November 3 and the other on November 8, 2021.

At the time Costello gave the interviews, his representation of Bannon before the January 6 Select Committee was ended and Bannon had not yet been indicted. And as the first 302 notes, “there were no agreements or conditions governing the conversation between COSTELLO and representatives of USAO-DC or FBI.” Effectively, those interviews made Costello a voluntary fact-witness in the criminal case against Bannon, one exacerbated when Bannon belatedly added Costello to his criminal defense team and grew squishy about whether Bannon would invoke Costello’s advice in his own defense.

And Costello made so many contradictory claims in his 302s (to say nothing of providing evidence that Bannon knew well he had no privilege claim with which to refuse to testify entirely), that it is unsurprising that the FBI made records requests to test whether Costello lied in those interviews to the FBI. Among the claims Costello made about communications he had or did not have are:

  • J6 sent the subpoena to Costello (on September 23) before he had been able to consult with Bannon
  • Costello did not know who was representing the other people subpoenaed — Dan Scavino, Kash Patel, Mark Meadows, or Donald Trump — at the time of the subpoena
  • Through the entire subpoena response, Bannon and Costello have “operated independently of the others subpoenaed”
  • Costello was not told who was representing Trump, Meadows, or the others subpoenaed, but he found out on his own who represented Trump and Meadows
  • Costello sent the subpoena to Bannon to review
  • Costello’s advice to Bannon that he didn’t have to respond was verbal
  • Costello was sure he sent the J6 letters to Bannon; he wasn’t sure whether Bannon read the letters but Costello did quote lines from the letters to him
  • Costello sent Bannon an email that he ended with the word BEWARE because defying the subpoena could result in a referral to DOJ
  • Costello’s only contact with J6 Chief Counsel Kristin Amerling came the day before and the day of the subpoena service [the record shows she sent him at least one letter after that]
  • Costello tried to contact the attorney he believed was representing Trump (whom he didn’t name) but that attorney referred Costello to Justin Clark
  • Costello reached out to Clark a few days before October 6, though their first substantive conversation came when Clark responded
  • Costello did not provide any documents to attorneys for Trump for an Executive Privilege review
  • Justin Clark was vague but Costello was sure Trump asserted Executive Privilege with regards to Bannon
  • Clark would not ID for Costello what would be covered under Executive Privilege
  • In spite of Costello’s claims not to have consulted with any Trump lawyer, he also claimed that Clark told him not to respond to item 17 on the subpoena (covering Mike Flynn), because lawyers like Rudy Giuliani might have been present when Bannon communicated with Flynn
  • In spite of his admitted conversations with Justin Clark, Costello claimed he had not had communications with attorneys for Trump prior to October 18, 2021 (when Trump filed a lawsuit challenging the privilege waivers on materials from the Archives)
  • Costello had “an email or two” with Clark, who he believed filed the lawsuit, but he did not learn until later that Jesse Binnall filed the lawsuit
  • Costello sent copies of Bennie Thompson’s letters to the VA lawyer representing Trump (probably Binnall)
  • Costello had no advance knowledge of Trump’s lawsuit and would have handled things differently if he had
  • Attorneys representing Trump (Costello doesn’t name him or describe when this was) told him everyone who got a subpoena would get Executive Privilege
  • Costello did not talk about “disposing of any documents requested in the … subpoena with any attorneys who represented former President TRUMP”
  • Costello said he’d sent to USAO all memorializations of communications he had with the Committee, Clark, and Trump’s attorneys

Effectively, these claims only make any sense if he had extended discussions with an attorney who did not represent Donald Trump, on whose representation he advised Bannon that Trump wanted Bannon to invoke Executive Privilege. But even there, there are still all sorts of temporal problems with Costello’s claims (and probable inconsistencies regarding the timing of events on October 18, though I need to unpack what those are further).

Costello’s interviews were all over the map on other topics as well, topics that affect both Rudy Giuliani (whom Costello also represents) and Bannon: that he could and could not claim Executive or Attorney Client privilege over certain topics, that he advised or did not advise Bannon to do so, that he admits that Bannon provided no response about issues — most damningly, his public podcasts — that could in no way be covered by Executive Privilege.

But the key detail is that Costello’s claims about communications he had and did not have defy belief and (particularly with regards to Justin Clark) may be physically impossible.

So, in response to these interviews (and probably in possession of contradictory evidence from J6), DOJ obtained all the records they would need to test Costello’s claims.

As I’ve noted, Costello has played a key role in past obstruction efforts, going back to 2018. It’s certainly conceivable DOJ has an open investigation into Costello (and Rudy) for those activities.

Whether or not they already did, Costello gave them far more reason to question his role in obstructing investigations into Donald Trump in his two interviews.

Update: Here’s Bannon’s subpoena (h/t Kyle Cheney). It confirms that Item 17, which Clark told Costello to tell Bannon not to respond to, included Mike Flynn.

Timeline

March 5: Beginning date for Costello records request (last event involving Bannon and Costello in Kolfage)

September 22: First contact between J6 and Bannon

September 23: Bannon subpoena

September 24: Costello accepts service

October 6: Costello claims Clark invoked privilege

October 7, 10AM: Original deadline for document production

October 7, 5:05PM: Costello letter claiming Trump invoked privilege

October 8: Thompson letter to Bannon rejecting non-compliance

October 13: Second Costello letter, demanding accommodation with Trump

October 14, 10AM: Original date for Bannon testimony

October 15: Letter noticing failure to comply with subpoena, warning of contempt meeting, setting response deadline for October 18, 6PM

October 18: Thompson letter to Bannon with deadline; Trump sues Thompson and the Archives on privilege issues

October 19: Bannon claims they intended to respond; Amerling letter to Costello; J6 business meeting to hold Bannon in contempt

October 20: Rules committee meeting to hold Bannon in contempt

October 21 Bannon held in contempt

October 28: Matthew Graves confirmed as US Attorney

November 2: Kristin Amerling interview

November 3: First interview with Robert Costello

November 5: Matthew Graves sworn in as US Attorney

November 8: Second interview with Robert Costello

November 11: Subpoena to Internet provider

November 12: End date for Costello records request

November 12: Indictment

November 15: Bannon arrest; David Schoen and Evan Corcoran file notices of appearance

November 18: At status conference, government says there are just 200 documents of discovery

December 2: Costello moves to appear PHV; Government asks if Bannon intends to rely on advice of counsel defense

December 7: Returns on Internet provider (623 pages)

December 7 to 16: Bannon refuses to submit joint status report

January 4: DOJ turns over 790 pages of records from Costello

January 6: Bannon request for more information on Costello

January 7: Government response to Bannon request

January 14: Bannon discovery request letter; Bannon motion to compel regarding Costello

January 28: Government response to discovery demand

February 4: In guise of Motion to Compel, Bannon complains about “spying” on Robert Costello

Trump’s Coup Attempts: A Tale of Five Pardon Dangles

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In an analysis piece earlier this week, the NYT reported as newsworthy that,

Over the weekend, Mr. Trump also dangled, for the first time, that he could issue pardons to anyone facing charges for participating in the Jan. 6 attack if he is elected president again — the latest example of a yearslong flirtation with political violence.

Politico followed that with a report that Trump at least considered blanket pardons for those who might be implicated in January 6.

“Is it everybody that had a Trump sign or everybody who walked into the Capitol” who could be pardoned? Trump asked, according to that adviser. “He said, ‘Some people think I should pardon them.’ He thought if he could do it, these people would never have to testify or be deposed.”

Offering preemptive pardons is not a new idea for Trump. According to Michael Cohen, Trump also entertained bulk pardons with the Russian investigation before Jay Sekulow figured out that it would make it easier for people to testify against him.

Q What is – you had a conversation with Jay Sekulow about something called a pre-pardon?

A Yes.

Q How many conversations did you have with him about pre-pardoning

A One or two.

Q And what did he say to you?

A The problem with a pre-pardon is that you have to answer every question because technically you have immunity, so you can’t assert any Fifth Amendment privilege.

Q Let’s back up for a second, because that presupposes that you’ve already discussed the idea of you getting a pardon. Did Jay Sekulow tell you that the President was considering giving you a pardon?

A That’s not the way that he stated it, but we had a conversation, one at least – I believe it may have been two – and I am not 100 percent certain of the exact date that that occurred, but the concept of a pre-pardon was discussed, yes.

Q Okay. So if you said that’s not exactly how he said it, what do you remember him saying about the idea of you getting a pardon?

A Well, it wasn’t just me. It was globally, in order to, I guess, shut down, you know, this investigation. And I had said to him, you know, what .. well, you know, there’s always the possibility of a pre-pardon. And –

Q Let’s take your time, because it’s important for us to understand not just the gist of the conversation but who said what exactly. All right? So you mentioned something called a global pardon. Did he use that term?

A No.

Q Okay. What do you mean by a global pardon?

A Okay. That in order to shut this whole thing down, that this is how they were potentially going to do it, and everybody would just get a pardon. And said, well, it wouldn’t be a pardon, it would be a pre-pardon, because nobody’s been charged yet. So it ultimately just became, that’s not really something that could be accomplished, because then they’d have the right, again, to ask you questions, everyone on the team.

Q So when you say everyone, who do you mean?

A I guess whoever it is that you started to request to come in, testify, subpoenaed.

And in Trump’s last days in office, he considered pre-emptive pardons, but — in part because of Pat Cipollone’s opposition — he did not do so.

It is the case that Trump has now dangled pardons at a time he doesn’t have the power to grant them. Even that is not new, though, given that Roger Stone was brokering a Julian Assange pardon no later than November 15, 2016 and probably starting even before the election, in October 2016.

This latest dangle is more newsworthy, though — and for reporters who don’t want to enable Trump’s authoritarian power, ought to be reported as — an attempt to reclaim power he already lost after reneging on promises of pardons made while he still had the power to grant them.

It is not news that Trump used pardon dangles as one tool to attempt a coup on January 6. At least five people directly involved in the coup attempt benefitted from pardons, some awarded at key times in the planning process, with Steve Bannon’s issued at the last possible moment.

It is not news that Trump is making pardon dangles publicly to try to bend the will and buy the silence of others. This latest pardon dangle comes in the wake of five events, all of which pose a direct threat to Trump:

  • December 15: The Select Committee contempt referral for Mark Meadows that puts him at risk of Presidential Records Act and obstruction prosecution
  • January 12: The indictment on sedition charges of the Oath Keepers whose testimony could most directly damage Trump
  • January 19: SCOTUS’ refusal to reverse the DC Circuit order allowing the Archives to share Trump records
  • January 19: The delivery to prosecutors, on January 19, of a large number of texts and messages from Rudy Giuliani’s phones
  • January 20: The Select Committee request for Ivanka’s testimony, which strongly suggested she has violated the Presidential Records Act
  • January 21: The report from Sidney Powell’s attorney that she is “cooperating” in her own prosecution and the Select Committee

What’s newsworthy is that Trump is trying this tack after reneging on promises to three of the people involved (during the last days of his Administration, there were reports that Meadows, Rudy, and Ivanka all might receive pardons) that Trump made in the course of planning for the coup.

So I’d like to tell the story of five pardons — three granted, and two withheld — in the context of Trump’s attempted coup on January 6.

Michael Cohen pardon dangle

This first pardon necessary to understand what Trump is up to is one that didn’t happen: The pardon dangle to try to silence Michael Cohen. As the Mueller Report described. in the wake of a raid on Cohen, Robert Costello started reaching out as an envoy for Rudy Giuliani, offering pardons.

On or about April 17, 2018, Cohen began speaking with an attorney, Robert Costello, who had a close relationship with Rudolph Giuliani, one of the President’s personal lawyers. 1022 Costello told Cohen that he had a “back channel of communication” to Giuliani, and that Giuliani had said the “channel” was “crucial” and “must be maintained.” 1023 On April 20, 2018, the New York Times published an article about the President’s relationship with and treatment of Cohen. 1024 The President responded with a series of tweets predicting that Cohen would not ” flip” :

The New York Times and a third rate reporter . . . are going out of their way to destroy Michael Cohen and his relationship with me in the hope that he will ‘flip. ‘ They use nonexistent ‘sources’ and a drunk/drugged up loser who hates Michael, a fine person with a wonderful family. Michael is a businessman for his own account/lawyer who I have always liked & respected. Most people will flip if the Government lets them out of trouble, even if it means lying or making up stories. Sorry, I don’t see Michael doing that despite the horrible Witch Hunt and the dishonest media! 1025

In an email that day to Cohen, Costello wrote that he had spoken with Giuliani. 1026 Costello told Cohen the conversation was “Very Very Positive[.] You are ‘loved’ … they are in our corner … . Sleep well tonight[], you have friends in high places.”1027

According to Cohen, Rudy Giuliani and Robert Costello were at the heart of Trump’s efforts to buy silence.

But Cohen couldn’t be silent about his own plight, and so facing prosecution from that and after a privilege review of his files discovered the recording Cohen made of Trump’s hush payments, he started cooperating with Mueller, helping them to understand what Trump was trying to hide about his ties with the Kremlin during the election.

Cohen paid for that decision, too. He did more time, for example, than Roger Stone, who (like Cohen) had kept blackmail material on Trump. As such, Cohen served as a useful example to Trump: if you cooperated against Trump, Trump would ensure that you suffered a worse outcome than those who had sustained the lies to protect him.

Roger Stone commutation

Roger Stone kept a notebook recording every conversation he had with Donald Trump during the 2016 election. After the election, according to an unreliable October 2018 interview that Steve Bannon had with Mueller’s team, Stone got a meeting to which he brought what appears to be that notebook. Trump asked Bannon to attend, it seems, to ensure that Stone would be kicked out after a short time.

While BANNON was at Breitbart in 2013-2015, BANNON had a strong relationship with [redacted]. BANNON heard from [redacted] STONE was still talking to Trump and was an advisor. STONE subsequently made those statements to BANNON as well. BANNON was suspect and upset. BANNON believed you had to eep TRUMP “on program.” While BANNON was on the Trump Campaign he never heard any mention of STONE from TRUMP or anyone else on the campaign. After the win, STONE tried a full court press in order to get a meeting with TRUMP. [redacted] eventually set up a meeting with TRUMP and STONE in early December 2016 on the 26th floor of Trump Tower. TRUMP didn’t want to take the meeting with STONE. TRUMP told BANNON to be in the meeting and that after 5 minutes, if the meeting hadn’t concluded, to throw STONE out. STONE came in with a book he wrote and possibly had a folder and notes. [full sentence redacted] TRUMP didn’t say much to STONE beyond “Thanks, thanks a lot.”. To BANNON, this reinforced STONE [redacted] After five to six minutes, the meeting was over and STONE was out. STONE was [redacted] due to the fact that during the meeting TRUMP just stared.

That was Bannon’s second-to-last interview with Mueller’s team. A week after his last interview, at which Bannon also appeared before the grand jury, the FBI raided Stone’s homes. One of the things they explicitly looked for was that notebook.

53. On May 8, 2018, a law enforcement interview of [redacted] was conducted. [redacted] was an employee of Stone’s from approximately June 2016 through approximately December 2016 and resided in Stone’s previous New York apartment for a period of time. [redacted] provided information technology support for Stone, but was not f0rmally trained to do so. [redacted] was aware that Stone communicated with Trump during the 2016 presidential campaign, and afterward, both in person and by telephone. [redated] provided information about a meeting at Trump Tower between Trump and Stone during the time [redacted] worked for him, to which Sterne carried a “file booklet” with him. Stone told [redacted] the file booklet was important and that no one should touch it. [redacted] also said Stone maintained the file booklet in his closet.

54. On December 3, 2018, law enforcement conducted an interview of an individual (“Person 1 “) who previously had a professional relationship with a reporter who provided Person 1 with information about Stone. The reporter relayed to Person 1 that in or around January and February 2016, Stone and Trump were in constant communication and that Stone kept contemporaneous notes of the conversations. Stone’s purpose in keeping notes was to later provide a “post mortem of what went wrong.”

In November 2019, Stone was convicted for lying about the nature and Trump’s awareness of his back-channel to the Russian operation. Billy Barr went to extraordinary lengths to attempt to minimize the punishment Stone would suffer for covering that up. He went so far as claiming threats against a federal judge by Roger Stone and the Proud Boys, threats which foreshadowed January 6, were a mere technicality.

But in July 2020, the moment when Stone would have to report to prison approached. Stone made several public appearances telling a story that was impossible as told, the gist of which was that prosecutors had promised Stone they would fight for leniency if he would testify about the content of a subset of the conversations he had with Trump during the election. That had the desired effect: Trump commuted Stone’s sentence before he reported for prison, protecting Stone in a way he had not done for Paul Manafort.

Billy Barr minimized the damage this should have done to Trump’s electoral chances. The Attorney General sat on a footnote of the Mueller Report that revealed when all this occurred, Roger Stone was still under investigation for the hack-and-leak with Russia. Barr released that literally on the eve of the 2020 election, and to this day no major outlet has reported that Stone was still under investigation for conspiring with Russia after the Mueller Report was released.

Mike Flynn pardon

As I laid out in this post, Mike Flynn got next to nothing out of his his two year attempt to renege on his plea agreement with Robert Mueller.

  • Replaced competent lawyers with incompetent TV grifters
  • Released evidence he lied to his lawyers doing the FARA filing
  • Consented to waive privilege so DOJ could find more proof he lied
  • Debunked a slew of conspiracy theories
  • Got really damning transcripts released
  • Served 708 days of supervised release
  • Joined a gang
  • Got one of his gang members prosecuted for death threats against Judge Sullivan
  • Got a ruling — and, later, a clear statement from DOJ — that no abuse occurred
  • Exposed his son to further prosecution
  • Exposed DOJ to further scrutiny
  • Proved Judge Sullivan’s point about selling the country out

After 18 months of making repeatedly debunked claims that he had been victimized by DOJ, however, he did get the most expansive pardon Trump gave, one pardoning not just his underlying crimes, but also the crimes he committed during the process of performing that victimization.

Given everything that has happened since, it’s worth considering Flynn’s performance as a victim as part of Trump’s reelection campaign.

That became most evident on September 29, 2020. Earlier in the day, in a status hearing, Sidney Powell confessed that weeks earlier, she had spoken to Trump about the case, and asked him not to pardon Flynn.

More curious still, she admitted she had spoken with Trump’s campaign attorney, Jenna Ellis.

THE COURT: Let me ask you this before you get to your other objections since we’re talking about — since I raised the issue about communications and correspondence with the Department of Justice. Have you had discussions with the President about this case?

MS. POWELL: I have not, Your Honor, while the case was pending pre-motion to dismiss or otherwise other than an update as to what happened in it.

THE COURT: I’m sorry. I’m not sure I understand your answer. The question is whether you’ve had any discussions at all with the President of the United States about Mr. Flynn and about this case. Yes or no.

MS. POWELL: I’m sorry, Your Honor. I can’t discuss that.

THE COURT: What’s the reason why you can’t discuss that?

MS. POWELL: I would think any conversations that I had with the President would be protected by executive privilege.

THE COURT: Well, you don’t work for the government.

MS. POWELL: I don’t think the executive privilege is limited to people who work for the government.

THE COURT: So you’re purporting to invoke executive privilege not to answer the Court’s question about whether you discussed Mr. Flynn’s case with the President of the United States. Is that correct?

MS. POWELL: Yes. Other than the fact that after the government moved to dismiss or at some point in the last month or so, I provided the White House an update on the overall status of the litigation.

THE COURT: How did you provide that update? Was it in writing?

MS. POWELL: No, sir.

THE COURT: How did you provide that update? Who did you speak with?

MS. POWELL: I provided it in person to counsel for the President.

THE COURT: I mean the White House counsel or a deputy or who did you speak to?

MS. POWELL: Your Honor, I spoke with Jenna [Ellis] and I spoke with the President himself to provide a brief update of the status of the litigation within the last couple of weeks.

THE COURT: And did you make any request of the President?

MS. POWELL: No, sir. Other than he not issue a pardon.

THE COURT: All right. Prior to that discussion with the President — how many discussions with the President have you had about this case?

MS. POWELL: That’s the only one I recall.

THE COURT: So you’re not ruling out other — well, certainly, you would recall a discussion with the President of the United States, wouldn’t you?

MS. POWELL: Well, I’ve had a number of discussions with the President of the United States. I think the New York Times reported I’ve had five. So it seems like they probably have a number better than I know.

THE COURT: Are the New York Times’ representations erroneous?

MS. POWELL: I couldn’t tell you the number of times I’ve actually spoken with the President, Your Honor.

THE COURT: All right. About this case. But there’s been more than one though.

MS. POWELL: No, sir. I can tell you I spoke with one time to the President about this case to inform him of the general status of the litigation.

THE COURT: And was that within the last two weeks?

MS. POWELL: Time has a way of getting by for me, but it’s certainly well after the government moved to dismiss and probably if I recall correctly after the writ of mandamus was entered.

THE COURT: All right. Did you ever ask the President of the United States to request his Attorney General to appoint more attorneys in this case?

MS. POWELL: Oh, heavens, no.

THE COURT: All right. So very succinctly just so I have a clear understanding, what precisely — during the first time you spoke with the President of the United States, what precisely did you ask him to do in connection with this case? What did you ask him to do in connection with this case?

MS. POWELL: I never discussed this case with the President until recently when I asked him not to issue a pardon and gave him the general update of the status of the litigation. [my emphasis]

On the same day Powell admitted to speaking, some weeks earlier, to Trump’s campaign attorney Jenna Ellis, Trump delivered a pre-arranged attack against Joe Biden in the first debate.

President Donald J. Trump: (01:02:22)
We’ve caught them all. We’ve got it all on tape. We’ve caught them all. And by the way, you gave the idea for the Logan Act against General Flynn. You better take a look at that, because we caught you in a sense, and President Obama was sitting in the office.

This false claim was based off misrepresentations based on altered Peter Strzok notes released as part of Bill Barr’s efforts to reverse the prosecution of Flynn. There were other altered documents released for wider dissemination in this period, as well, including additional Strzok and Page texts that newly violated the Privacy Act, though after DOJ had to confess that they had altered those documents, any further focus on the altered documents were dropped.

And then, Trump pardoned his Agent of Turkey along with the Thanksgiving bird.

At the moment Trump would have informed Sidney Powell of that news, she was at Lin Wood’s plantation plotting ways to steal the election Trump had lost. If Flynn was not already with Powell plotting away at the moment he learned of his pardon, he would join her within 24 hours.

Within weeks, the recently-pardoned retired General and foreign agent that had been plotting away with Sidney Powell and Patrick Byrne, someone who had been seduced by an admitted Russian agent, was calling for military intervention. Flynn’s calls for insurrection were reported in real time, but the news was buried and the fact that Trump had just pardoned the man calling for a coup did not make the coverage.

Roger Stone pardon

During the first half of December, Roger Stone was palling around with the accused terrorists who would help physically obstruct the vote certification on January 6.

Days later, one of the Oath Keepers that Stone palled around with, Kelly Meggs, bragged of arranging an alliance with other accused terrorists that Stone also palled around with, the Proud Boys that Trump had told to “Stand Back and Stand By” in that same debate on September 29 where Trump had used a campaign attack packaged up by Sidney Powell.

On December 23, Trump pardoned Stone for the crimes of which he was convicted (but not those that were still under investigation).

On Christmas, Meggs specifically tied protection, almost certainly of Stone, and coordination with a Proud Boy, almost certainly Enrique Tarrio, in the same text.

On December 26, Stone associate Kelly Meggs called this an insurrection (albeit in response to Trump’s order) explicitly.

On December 27, Stone went to Mar-a-Lago to thank Trump for the pardon directly and to discuss how he would “ensure that Donald Trump continues as our president.”

Roger Stone, who received a Christmas week pardon from President Donald Trump, delivered a personal thank you to the president on Sunday at the Trump International Golf Club in West Palm Beach.

Stone wrote that he counseled the president on how he could “ensure that Donald Trump continues as our president.”

[snip]

Stone said via text that he deleted the words and images after he was notified the golf club has “a policy of prohibiting photos of club members or guests out of respect for their privacy.” He said he didn’t have any additional comment.

A photo posted and then removed from Roger Stone's Parler social media page shows President Donald Trump, left, Kimberly Guilfoyle, an unidentified man and Roger Stone at the Trump International Golf Club in West Palm Beach on Sunday.
A photo posted and then removed from Roger Stone’s Parler social media page shows President Donald Trump, left, Kimberly Guilfoyle, an unidentified man and Roger Stone at the Trump International Golf Club in West Palm Beach on Sunday.

One picture showed four people talking: Trump; Kimberly Guilfoyle, a senior adviser to the Trump campaign and Donald Trump Jr.’s girlfriend; Christopher Ruddy, the CEO of the website and cable channel Newsmax, which is based in Boca Raton; and Stone.

“I thanked President Trump in person tonight for pardoning me,” he wrote. “I also told the president exactly how he can appoint a special counsel with full subpoena power to ensure that those who are attempting to steal the 2020 election through voter fraud are charged and convicted and to ensure that Donald Trump continues as our president #StopTheSteal #rogerstonedidnothingwrong.”

The next day, Stone deleted the pictures of his face-to-face meeting with Trump.

On January 5 and 6, Stone continued to interact closely with the Oath Keepers (and some Proud Boys). The morning of the insurrection, one of the Oath Keepers since charged with sedition, Joshua James, checked in with the operational leader for the Oath Keepers that day every time that someone — almost certainly Stone — moved.

Two days after the insurrection, Kristin Davis tweeted out a picture of Stone signing his pardon paperwork. (h/t gal_suburban)

Stone never hid it: His pardon was directly tied to his efforts to keep Trump in power. Given that Stone’s pardon was not as expansive as Flynn’s, he remains at some legal exposure for prosecution for his later efforts (including his June 2017 efforts to shut down the investigation into Julian Assange), so he had a real incentive to do anything he could to keep Trump in power.

Steve Bannon

Three days after Trump lost the election, Steve Bannon — in planning for an illegal second Trump term — threatened to assassinate Chris Wray and Anthony Fauci. The same day, his very competent lawyer, Bill Burck (the guy who got him through a bunch of serial lies in the Mueller investigation), fired him as a client, even as he was facing fraud charges for cheating Trump’s rubes.

It wasn’t until December 11, well into the plotting for a coup, that Robert Costello — the very same lawyer who dangled a pardon to Michael Cohen over two years earlier — noticed his appearance. Costello’s representation of Bannon also meant that the same lawyer represented both Rudy and Bannon, two of the masterminds in the Willard War Room.

December 11, when Costello formally filed as Bannon’s lawyer, is around the same time, according to Dustin Stockton and Jennifer Lawrence, that Paul Gosar’s Chief of Staff tied a pardon for their own involvement in Bannon’s fraud to their efforts to overturn the election results.

In December 2020, as the tour rolled around the country, Stockton and Lawrence say they got a call from Rep. Paul Gosar (R-Ariz.) and his chief of staff, Thomas Van Flein. According to Stockton, Van Flein claimed he and the congressman had just met with Trump, who was considering giving them a “blanket pardon” to address the “We Build the Wall” investigation.

“We were just in the Oval Office speaking about pardons and your names came up,” Van Flein allegedly said. Van Flein did not respond to a request for comment.

Gosar suggested the bus tour was helping Stockton and Lawrence build support for a pardon from the caucus and Trump. “Keep up the good work,” Gosar said, according to Stockton. “Everybody’s seen what you’re doing.”

So it was probably assumed that, so long as Bannon kept helping Trump try to steal the election, he would would get a pardon. That was true even though Roger Stone made it clear after his trial that Bannon had testified in the grand jury against him.

But on the last day, among the very last pardons Trump granted, Trump pardoned Bannon not just for the crimes he had already been charged with, but any others that might arise from the Build the Wall project federally.

Rudy Giuliani left dangling

Almost three years after Rudy started helping Trump out of his legal troubles, in part by shamelessly dangling pardons to (at least) Cohen and Paul Manafort, Rudy got nothing. He got no pardon even though he was represented by Robert Costello, who had started the pardon dangles with him. He got no pardon even after working relentlessly — and exposing himself to further criminal exposure — trying to help Trump steal an election. Rudy got nothing, even though it was known that Barr had failed in his efforts to kill the Ukraine influence peddling investigation into Rudy.

While there had been abundant discussion of pardoning people who weren’t yet charged in early 2021, after Trump’s coup attempt, that plan was scotched.

It might not have happened in any case, given the conclusion Jay Sekulow had come to years earlier, the preemptive pardons make witnesses more likely to testify against Trump.

But because of the insurrection, Pat Cipollone got a lot more involved in pardons. And the insurrection made it virtually impossible to pardon the mastermind of the insurrection, Rudy Giuliani, even while making it all the more important to find a way to keep Rudy silent.

Ten days after (we now know) SDNY first obtained a warrant targeting Rudy Giuliani in the investigation used to justify seizing all his phones, Rudy boasted that he had “very, very good insurance.” Rudy certainly believed Trump would protect him.

But he didn’t.

That’s the angle through which Trump’s latest attempt to dangle pardons should be viewed. Rudy may be the most important person Trump needs to silence. But Trump had a chance to pardon Rudy when he had the authority, and he failed to do so.

Update: Added the SCOTUS decision to the list of things that must have Trump worried. h/t Brian Pillion

Key pardons of January 6 participants

February 18. 2020: Bernie Kerik

November 25, 2020: Mike Flynn

December 22, 2020: George Papadopoulos

December 23, 2020: Roger Stone and Paul Manafort

January 19, 2021: Steve Bannon

“I do share information[,] Rudy. You never read your emails, you never read your texts,” Sidney Powell purportedly said, while plotting a coup

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In Patrick Byrne’s February 1, 2021 telling of a series of December 18, 2020 meetings that was just retold by the NYT, Sidney Powell — who is currently under grand jury investigation — told Rudy Giuliani — who is currently under grand jury investigation– that she hadn’t been leaving him out of the loop. On the contrary, Powell explained as she tried to convince Rudy and with him the former President to adopt the plan she and Mike Flynn concocted to seize the voting machines, Powell had sent Rudy this information via email and text.

Finally, Trump stopped and scanned the three of us, and asked simply. “So what are you saying?” Thinking of the difference between the highly organized and disciplined approach I had experienced with Flynn and Sidney, versus the college sophomore bull-session approach of the Campaign and Rudy-World, I spoke up again: “Mr. President, I think you should appoint Sidney Powell your Special Counsel on these election matters and make General Flynn your Field Marshall over the whole effort. I know Rudy’s your lawyer and friend, and he can have a great role in this. Rudy should be personally advising you, and we don’t want to do anything to embarrass him. But it needs to be Sidney taking point legally on this. And if you really want to win, make General Flynn here the Field Marshall. If you do I put your chances at around 50-75%. You should see how he well he has this planned, it would run like clockwork…”

The President shook me off, saying, “No no, it’s got to be Rudy.”

[snip]

The three male [White House Counsel] lawyers edged closer to the front, and then as though as some hidden signal, they all started being bitches.

First was some comment about it not being right to use the National Guard. “The optics are terrible, Mr. President,” said one. “It would have to be the DHS.” I liked the National Guard idea because we needed to reestablish trust of the American people in the electoral process, and the US institution with the most trust is the one where people dress in military uniforms. Yet the National Guard is local, they are all around us, our colleagues at work, our “Citizen Soldiers”. But perhaps in a sign of flexibility, Flynn and Sidney allowed as how one could use the DHS instead of the National Guard.

[snip]

I took another shot at it with the President. “Again Sir, I know that Rudy is a friend of yours, he’s wonderful. He’s America’s Mayor. I love Rudy, I don’t want to embarrass him. But you should see how what Mike and Sidney have got going. It is so organized, so well-planned-” Again he cut me off, saying, “No no, it’s got to be Rudy…” On the inside I slumped.

[snip]

Eventually President Trump said that we would all meet in 30 minutes in the living quarters, in the “Yellow Oval” (I believe the room is called). In the meantime, Rudy was coming in and we had to find a way to make things work between Rudy and Sidney. As we parted he said, “You know, in 200 years there probably has not been a meeting in this room like what just happened…”. As he was leaving he brushed past me, stopped, and speaking low and quiet, said something quite kind and meaningful, showing me that he knew a lot more about me than I had guessed.

A few minutes later Sidney, Mike, Alyssa, and I were in the Cabinet Room. waiting for Rudy. It was dark, and we had to find a couple lamps to turn on. Mike and I were intent on making sure the meeting went well between Sidney and Rudy, so everyone could work happily together.

After 10 minutes Rudy came in, tying his tie, and said in not too gruff a manner, but with perhaps the gruffness of a man disturbed from his evening meal, “You know Sidney, if we are going to work together you have to share information.” I did not take his tone as being too aggressive, but one of trying to turn over a new leaf in a relationship, perhaps.

Sidney immediately told him, “I do share information Rudy. You never read your emails, you never read your texts.”

“That’s not true Sidney! I just need you to stop keeping me in the dark-“

“”Rudy I don’t keepo [sic] you in the dark! You-”

“Sidney you have to stop keeping everything to yourself! I cannot work with you if you don’t share with me!”

Within moments the conversation had spiraled out of control. After a minute of squabbling I tried to interject something helpful. “Mr. Mayor, it is true that since I arrived, everything we ever brought Sidney, she always said, ‘Get this to Rudy right away.’ It’s true. Absolutely everything we turned up, she told us to share with you. She never asked us to keep you in the dark about anything.” [my emphasis]

As NYT tells this story, a bunch of subpoenas pertaining to Powell and seizure and privilege review of 16 Rudy devices later, Rudy “vehemently opposed” the idea of having the military seize the voting machines, acceded to asking DHS to do so, but — after all the other witnesses had left the room, according to the story — warned Trump that the plan would get him impeached.

Six weeks after Election Day, with his hold on power slipping, President Donald J. Trump directed his lawyer, Rudolph W. Giuliani, to make a remarkable call. Mr. Trump wanted him to ask the Department of Homeland Security if it could legally take control of voting machines in key swing states, three people familiar with the matter said.

Mr. Giuliani did so, calling the department’s acting deputy secretary, who said he lacked the authority to audit or impound the machines.

Mr. Trump pressed Mr. Giuliani to make that inquiry after rejecting a separate effort by his outside advisers to have the Pentagon take control of the machines. And the outreach to the Department of Homeland Security came not long after Mr. Trump, in an Oval Office meeting with Attorney General William P. Barr, raised the possibility of whether the Justice Department could seize the machines, a previously undisclosed suggestion that Mr. Barr immediately shot down.

[snip]

Mr. Giuliani was vehemently opposed to the idea of the military taking part in the seizure of machines, according to two people familiar with the matter. The conflict between him and his legal team, and Mr. Flynn, Ms. Powell and Mr. Byrne came to a dramatic head on Dec. 18, 2020, during a meeting with Mr. Trump in the Oval Office.

At the meeting, Mr. Flynn and Ms. Powell presented Mr. Trump with a copy of the draft executive order authorizing the military to oversee the seizure of machines. After reading it, Mr. Trump summoned Mr. Giuliani to the Oval Office, according to one person familiar with the matter. When Mr. Giuliani read the draft order, he told Mr. Trump that the military could be used only if there was clear-cut evidence of foreign interference in the election.

Ms. Powell, who had spent the past month filing lawsuits claiming that China and other countries had hacked into voting machines, said she had such evidence, the person said. But Mr. Giuliani was adamant that the military should not be mobilized, the person said, and Mr. Trump ultimately heeded his advice.

Shortly after the Oval Office meeting, Mr. Waldron amended the draft executive order, suggesting that if the Defense Department could not oversee the seizure of machines then the Department of Homeland Security could, the person said.

Around that time, Mr. Trump asked Mr. Giuliani to call Kenneth T. Cuccinelli II, the acting deputy secretary at the Department of Homeland Security, to ask about the viability of the proposal, according to two people familiar with the matter. Mr. Cuccinelli said that homeland security officials could not take part in the plan.

[snip]

Even Mr. Giuliani, who had spent weeks peddling some of the most outrageous claims about election fraud, felt that the idea of bringing in the military was beyond the pale.

After Mr. Flynn and Ms. Powell left the Oval Office, according to a person familiar with the matter, Mr. Giuliani predicted that the plans they were proposing were going to get Mr. Trump impeached. [my emphasis]

The CNN version of this story (which, like Maggie Haberman, first started reporting this story out in December 2020, even before January 6, and long before the overt seizures of materials from two of the lawyers involved) chose not to grant Robert Costello anonymity for a quote about Rudy being “vehemently” opposed to the plan to use the military to seize the voting machines.

Reached earlier this month, Cuccinelli said his discussion with Giuliani “never developed to the point of talking about an executive order including such action that I recall.”

When asked about the executive order involving the military, Giuliani’s attorney, Robert Costello, said his client also shut that idea down when he became aware of it.

“As soon as he heard about this idea, he was vehemently against it, as was White House Counsel Pat Cipollone and then-President Trump,” Costello said.

But Giuliani and his team did continue to pursue other avenues for overturning the election based on the same conspiracies about election fraud cited in the draft executive order to justify the seizure of voting machines.

Trump also continued to entertain some of the same core elements of those executive orders, including the idea of installing a special counsel to investigate election fraud.

Nearly two weeks after White House aides pushed back on the suggestion of naming Powell to such a role, Trump raised the idea again during another Oval Office meeting, but this time floated Cuccinelli as a possible candidate, according to testimony provided to the Senate Judiciary Committee by former senior Justice Department officials who were present.

Meanwhile, Flynn remained adamant that election equipment was going to be seized and personally reached out to at least one senior defense official in mid-December attempting to enlist their help with his cause, according to a source familiar with the outreach. [my emphasis]

There’s really not all that much new in the story as laid out here, except that a bunch of people who know their communications are in the FBI’s hands (and, in the case of Costello, who has spent the last nine months reviewing the content of those communications, including those Byrne describes Powell claiming to have sent Rudy) providing updated versions of the least-damning story they can tell here.

Just one more key part of the story that has changed.

As CNN described it in the 2020 version of the story (but NYT did not), Mark Meadows was also involved.

White House aides who participated in the meeting, including White House chief of staff Mark Meadows and counsel Pat Cipollone, also pushed back intensely on the suggestion of naming Powell as a special counsel to investigate voter fraud allegations Trump’s own administration has dismissed (or, as seems more feasible, hiring her in the administration for some kind of investigatory role).

Meadows shows up in yesterday’s NYT story only as not being the one who let Powell and Flynn and Byrne in the White House.

When Mr. Flynn, Ms. Powell and Mr. Byrne arrived at the White House to discuss their plan to use the military to seize voting machines, they were not let into the Oval Office by a typical gatekeeper, like Mark Meadows, Mr. Trump’s chief of staff. Rather, they were escorted in by Garrett Ziegler, a young aide to another Trump adviser, Peter Navarro, according to Mr. Ziegler’s account.

“I waved in General Flynn and Sidney Powell on the Friday night of the 18th — for which Mark Meadows’s office revoked my guest privileges,” Mr. Ziegler said on a podcast, adding that he had done so because he was “frustrated with the current counsel” Mr. Trump was getting.

That guy — the former Chief of Staff who also was getting and sending a bunch of texts on his phone — that guy has also spent some time recently reviewing his communications. Not only did he review — and withhold — a bunch of communications before sharing some with the Select Committee, but once the Select Committee figured out that Meadows had violated the Presidential Records Act by failing to turn over those communications he conducted on his personal — but his emails! — devices, Meadows has been spending time trying to find such communications so he can share them with the National Archives to uncommit some crimes.

NARA, of course, has been ordered by a court to share such communications, even the ones that Trump might otherwise have invoked Executive Privilege over, with the Committee.

We’re going to get a lot of revised least-damning versions of these stories as more and more people review the communications that will be handed over to investigative bodies.

It’s worth comparing, then, the versions we’re getting now with those people were telling when they thought none of the emails and texts Sidney Powell sent would come out.

Update: Harpie is right. The Jonathan Swan version of this exchange, published exactly a year ago, is worth reading as well.

Barbara Jones’ Special Mastery of Releasing Donald Trump’s Lawyers’ Crime-Fraud Excepted Communications

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I knew Rudy Giuliani was in trouble when I read him — along with his lawyer Robert Costello, who allegedly tried to bribe Michael Cohen with a pardon in the wake of an SDNY seizure of his phones — claim that SDNY had first accessed Michael Cohen’s communications after SDNY seized Cohen’s phones in a search of his house and office.

In April 2018, the Government was in this exact same position it is in now in dealing with seizures made from the personal attorney to the President. This is now the second dawn raid of the office and home of an attorney for then President Trump. A year before they searched Giuliani’s iCloud account in November 2019, they were dealing with the raid of Michael Cohen’s home and law office. In Cohen v. United States, 18-mj-3161 (KMW), after conducting a search of President Trump’s personal lawyer’s home and law office, the Government opposed the appointment of a Special Master in a letter to the Court dated April 18, 2018. Counsel for Michael Cohen and intervening counsel for President Trump both requested that a Special Master be appointed and that the Special Master review the evidence, but only after counsel for the respective parties had reviewed the evidence and made their own claims of privilege. On the day of a scheduled conference to decide the issue, the Government, in a letter to Judge Wood, withdrew their opposition to the Special Master, but requested that the Special Master, and not defense counsel, review all the evidence and make the initial determinations of privilege. Judge Wood adopted the compromise and appointed a Special Master to review all materials. One of the Government’s counsel that signed that letter is counsel on this matter as well.

As a result, the Government was well aware that it had agreed to a Special Master in a case involving claims of attorney-client and executive privilege regarding the search and seizure of an attorney’s home and office when that attorney was the personal attorney for the President of the United States. Here, when faced with the exact same situation in November 2019, the Government decided on its own, to use its own Taint Team to sift through all of the evidence gathered and decide what materials were privileged. To make matters worse, not only was Giuliani not informed about this practice, but the Government also continued to keep him, the President and his counsel in the dark for 18 months while Giuliani cooperated with another office of the United States Attorney. Based on its experience in the Cohen case, the Government knew better, or should have known better, that it should not make unilateral, uninformed secret decisions about privilege, but clearly threw caution to the wind in its attempt in this investigation in search of a crime.

Was it really possible, I asked myself, that the President’s own lawyer, as well as the President’s lawyer’s lawyer, had no idea that Mueller’s team had obtained Michael Cohen’s Trump Organization emails from Microsoft with an August 1, 2017 warrant, content which they later shared with SDNY?  Was it really possible, I wondered, that Rudy and Costello didn’t know that Mueller also obtained Cohen’s Google and iCloud content, obtained a non-disclosure order for it, and then later passed it on to SDNY, which obtained a separate warrant to access it? Did they not know that that process started 8 months before SDNY raided Cohen’s home and office and took his devices, which then led to the appointment of Special Master Barbara Jones? Did they really not know that SDNY first obtained Cohen’s content with some covert warrants, reviewed that information with the use of a filter team, and only after that got some of the very same information by seizing Cohen’s phones, only with the later seizure, used a Special Master to sort out what was privileged and what was not?

After the government’s reply, I thought for sure they’d start to cop on. I figured Rudy and Costello — who collectively, allegedly tried to bribe Cohen’s silence about the crimes he had committed while purportedly providing legal representation for Donald Trump — would understand the significance of this passage of the government reply:

Giuliani also analogizes this case to Cohen, suggesting that the Government should have known to use a special master because it had just agreed to use one in that case. (Giuliani Ltr. at 11). But Cohen favors an opposite conclusion: there, as here, the Government first obtained covert search warrants for accounts belonging to the subject. The returns of those covert warrants were reviewed by a filter team—a process which was not challenged. Although Judge Wood ultimately appointed a special master in Cohen, she repeatedly made clear her view that the use of a filter team was acceptable and was consistent with the substantial body of law in this Circuit. (See, e.g., Cohen, Dkt. 38 at 8). However, based on the unique circumstances of the case—Cohen’s principal and perhaps only client was then the President, and the case was subject to significant public attention—Judge Wood believed, and the Government agreed, that the use of a special master was needed for the “perception of fairness, not fairness itself.” (Cohen, Dkt. 104 at 88). But even after appointing a special master, Judge Wood continued to recognize the appropriateness of the use of a filter team: at the end of the special master’s review, there was one cellphone that had not been decrypted, and Judge Wood ordered that the if the cellphone was ultimately extracted, the privilege review could be conducted by the Government’s filter team. (Cohen, Dkt. 103 at 6). Thus, following Cohen, it was entirely appropriate for the Government to use a filter team during the covert phase of its investigation, but in light of the intense public interest in this matter following the overt execution of the 2021 Warrants, the Government agrees that while the appointment of a special master is not necessary for fairness, it is in the interest of ensuring that the privilege review process is perceived as fair.

But I didn’t write up the implications of that yet, because I figured there was still something that might save Rudy and Victoria Toensing. Maybe they’d pick a Special Master who would apply dramatically different rules than Special Master Barbara Jones had with Cohen, particularly an approach that said Cohen and Trump could claim privilege and hide the content, but any legal argument about that privilege had to be public. Surely they would be smart enough not to pick Jones, right? Surely, I thought, Rudy and Costello wouldn’t be dumb enough to be lulled into agreeing to appoint Jones herself, perhaps based on a false sense of confidence that since she works at Rudy’s former firm, she’ll go easy on the Mayor?

And yet, yesterday the government wrote to inform Judge Paul Oetken that the parties had agreed on a single choice to serve as Special Master: Barbara Jones.

The Government writes on behalf of the parties to propose the appointment of the Honorable Barbara S. Jones, a retired federal judge with the law firm of Bracewell LLP, to serve as the court-appointed special master for this matter.

They further asked that Oetken write up an order applying the same approach as Jones used with Cohen with Rudy.

The Government respectfully requests that the Court appoint Judge Jones to serve as the special master in this matter because her background and the resources available to her at her law firm will allow her to complete a privilege review in a fair and efficient manner. Mr. Giuliani and Ms. Toensing, through counsel, have both agreed to the appointment of Judge Jones. The Government has conferred with Judge Jones and she is available to accept this appointment. The Government respectfully suggests that the Court issue an Order of Appointment similar to the one issued by Judge Wood in the Cohen matter, setting forth the duties of the special master, the reporting and judicial review requirements, terms of compensation, terms of engagement of other professionals, and other relevant provisions. Cohen, No. 18 Misc. 3161 (S.D.N.Y. Apr. 27, 2018) (Dkt. 30). Judge Jones is available to speak with the Court directly should the Court have any questions about her potential appointment.

Understand, the government has now gotten Rudy on the record begging that he get the same treatment as Michael Cohen. It has gotten Rudy on the record saying he prefers to have a Special Master rifle through his potentially privileged communications than a filter team.

Had this been done overtly, or through the Government’s less onerous subpoena powers, we would have requested that a Special Master to be appointed at the time.

It has also gotten Victoria Toensing to agree on the value of a Special Master (even though she requested she get first shot at reviewing her content).

Appoint a Special Master from the list of candidates proposed by the parties or another suitable candidate identified by the Court to oversee the process and resolve any disputes that may arise;

When former SDNY US Attorney Rudy Giuliani and former Deputy Assistant Attorney General Victoria Toensing made those comments, though, they probably didn’t think through the implication of filter team protocols that both presumably know or once knew, but which the government was kind enough to spell out in their reply to the lawyers’ letters:

As is its practice, the filter team did not release any potentially privileged materials based on the possible application of waiver or crime fraud principles, even if the applicability of those exceptions was apparent on the face of the document.

SDNY filter teams will not pass on potentially privileged materials seized from an attorney even if there is an obvious crime-fraud exception. By description, SDNY suggests that “the applicability of [such] exceptions was apparent on the face of” some of the communications — new copies of which SDNY seized last month — SDNY’s filter team reviewed already. But they couldn’t pass them on because that’s not how SDNY filter team protocols work.

And yet, as a result of Barbara Jones’ review of material seized from Donald Trump’s attorney’s devices, SDNY obtained evidence — of Michael Cohen negotiating hush payments with two women — that might otherwise have been privileged, but that was clearly evidence of a crime. In fact, Trump thought about fighting the release, except after Judge Kimba Wood ruled that legal disputes have to be public, Trump decided not to challenge its release.

An SDNY filter team cannot share evidence that shows a lawyer breaking the law in the service of doing Donald Trump’s dirty work.

But Special Masters can. And Barbara Jones already has.

When I first read these filings — especially SDNY’s very generous offer to pick up the tab for a Special Master — I thought it was just about timeliness, about getting Rudy’s evidence in hand as quickly as possible. But it’s not. It’s the only way that they can obtain materials that they know exist that show Rudy committing a crime in the guise of serving as a lawyer. Admittedly, it might just be materials implicating Lev Parnas and Igor Fruman. But, as happened to Cohen, it might also cover things Rudy did while allegedly doing lawyer stuff for Donald Trump.

Remember, this whole process started when John Dowd claimed that Parnas and Fruman helped Rudy represent Trump, Rudy represented Parnas and Fruman, and they also helped Toensing represent Dmitro Firtash.

Be advised  that Messrs. Parnas and Fruman assisted Mr. Giuliani in connection with his representation of President Trump. Mr. Parnas and Mr. Fruman have also been represented by Mr. Giuliani in connection with their personal and business affairs. They also assisted Joseph DiGenova and Victoria Toensing in their law practice. Thus, certain information you seek in your September 30, 2019, letter is protected by the attorney-client, attorney work product and other privileges.

John Dowd made an absurd claim that, even then, was a transparent attempt to hide real dirt behind attorney-client privilege. That’s precisely the material that SDNY is asking Barbara Jones to review to see whether it’s really privileged.

Update: Lev Parnas renewed his bid to force DOJ to go look for materials that help him at trial and support his selective prosecution claim. Along with describing some communications that he believes to exist that would be in Rudy’s files (such as proof of Rudy saying that one of their mutual Fraud Guarantee victims did no due diligence), Parnas outlines the evidence that he was prosecuted to shut him up. The Dowd actions are central to that.

The Government argues that, since Parnas was not yet attempting to cooperate with Congress at the time he was arrested, his selective prosecution claim is without merit. However, by the time of Parnas and Fruman’s arrest, Parnas had received a demand letter seeking evidence from the House Intelligence Committee, and been referred by Giuliani and Toensing to Attorney John Dowd—who had previously represented former President Trump. Attorney Dowd then secured a conflict waiver from Trump—who claimed not to know Parnas—by e-mail through the President’s chief impeachment counsel, Jay Sekulow. Next, Dowd met with Parnas and took custody of materials that he believed were responsive to Parnas’ demand letter. Then, Dowd informed the Intelligence Committee that Parnas would not be appearing as requested, and the evening before Parnas and Fruman were arrested wrote an e-mail to Giuliani, Jay Sekulow, Toensing, and others assuring that Parnas and Fruman would not be appearing to give a deposition or evidence against the former President. Giuliani then backed out of a planned trip to Vienna with Parnas and Fruman, and they were arrested as they boarded their flight. The following day, then-Attorney General William P. Barr made a “routine” visit to the SDNY, and, in the following months, sought the removal of SDNY U.S. Attorney Geoffrey Berman under still-undisclosed circumstances that may well have related to prosecutorial decisions made in Parnas and his co-defendants’ case.

Update: Oetken has indeed appointed Jones.

The [Thus Far] Missing Seth DuCharme Emails Pertaining to Rudy Giuliani’s Russian Disinformation

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As I’ve been harping of late, Billy Barr and Jeffrey Rosen went to great lengths to protect Rudy Giuliani’s efforts to obtain and disseminate what the Intelligence Community already knew was Russian-backed disinformation laundered through Andrii Derkach. That effort included the following:

  • For whatever reason, not warning Rudy that the Intelligence Community knew Russia was targeting him for an information operation before he traveled to his December 2019 meeting with Derkach
  • Prohibiting SDNY from expanding its existing investigation into Rudy’s foreign influence peddling to include his efforts with Derkach by making EDNY a gate-keeper for any such decisions
  • Asking Pittsburgh USA Attorney Scott Brady to accept the information that the IC already knew was Russian disinformation from Rudy
  • Doing nothing while Rudy continued to share information the IC already knew was Russian disinformation during an election
  • After belatedly opening an investigation into the Derkach effort that the IC had known was Russian disinformation for a year, opening it at EDNY and scoping it to ensure that Rudy’s own actions would not be a subject of the investigation

As a result of this remarkable effort, led by the Attorney General and Deputy Attorney General, to protect Russian disinformation, DOJ willingly ingested a bunch of Russian disinformation and used it to conduct an investigation into the son of the President’s opponent.

Last year, when it was disclosed that Barr had directed Brady to willingly accept this Russian disinformation, American Oversight FOIAed and then sued for the paper trail of the effort, submitted as four separate FOIAs:

  1. [To OIP and USAPAW] “Brady Order and Written Approval” — which specifically asked for “two readily-identifiable, specific documents” — described as:
    • The written approval of the Attorney General or Deputy Attorney General authorizing U.S. Attorney for the Western District of Pennsylvania (USAPAW) to create and/or administer a process for receiving purported investigatory information from Rudy Giuliani concerning matters that relate to former Vice President Biden
    • A copy of the Attorney General’s order directing USAPAW to conduct an evaluation, review, probe, assessment, “intake process,” preliminary investigation
  2. [To OIP and USAPAW] “Giuliani Directives, Guidance, & Communications,” described as:
    • All directives or guidance provided to USAPAW regarding an evaluation, review, probe, assessment, “intake process,” preliminary investigation, or other investigation of any information received from Rudy Giuliani, including information that may concern former Vice President Biden
    • All records reflecting communications between (1) the Office of the Attorney General or the Office of the Deputy Attorney General and (2) USAPAW regarding an evaluation, review, probe, assessment, preliminary investigation, or other investigation of any information received from Rudy Giuliani
    • All records reflecting communications within the OAG or the ODAG regarding any evaluation, review, probe, assessment, “intake process,” preliminary investigation, or other investigation of any information received from Rudy Giuliani, including information which may concern former Vice President Biden
  3. [To USAPAW] “Brady-Giuliani Communications,”described as all records reflecting communications between (1) USAPAW in the course of any evaluation, review, probe, assessment, “intake process,” preliminary investigation, or other investigation of any information received from Rudy Giuliani and (2) Rudy Giuliani, or any of Mr. Giuliani’s personal assistants or others communicating on his behalf, including but not limited to Jo Ann Zafonte, Christianne Allen, or Beau Wagner
  4.  [To USAPAW] “Brady-White House Communications,” described as any communications between (1) USAPAW in the course of any evaluation, review, probe, assessment, “intake process,” preliminary investigation, or other investigation of any information received from Rudy Giuliani and (2) anyone at the White House Office

Before American Oversight filed the lawsuit, the Trump Admin did two things that will have an effect on what we’re seeing. First, DOJ combined requests one and two above; as we’ll see, that had the effect of hiding that Barr didn’t put anything in writing. In addition, USAPAW told American Oversight that they were going to refer the request for such an order to Main Justice for referral.

While the lawsuit was filed under the Trump Administration, the substantive response to it started in February. The FOIA is a way to understand more about this effort — both how willing Barr’s DOJ was to put this scheme in writing, as well as the volume of paper trail that it generated.

The first status report, submitted on February 22, revealed the following based on an initial search:

  1. “Brady Order and Written Approval” and “Giuliani Directives, Guidance, & Communications” (aggregated) at Main DOJ: 8,851 items
  2. “Giuliani Directives, Guidance, & Communications” and “Brady-Giuliani Communications” at USAPAW: 1,400 pages
  3. “Brady-White House Communications:” none

The second status report, submitted on April 1, reported that of the initial search, the following was deemed potentially responsive:

  1. “Brady Order and Written Approval” and “Giuliani Directives, Guidance, & Communications” (aggregated) at Main DOJ: 30 pages referred
  2. “Giuliani Directives, Guidance, & Communications” and “Brady-Giuliani Communications” at USAPAW, of 272 pages reviewed so far:
    • 3 pages released in full
    • 189 pages referred to other agencies for consultation
    • 83 duplicates or non-responsive

Here is the USAPAW production.

The third status report, submitted on May 3, reported the following:

  1. “Brady Order and Written Approval” and “Giuliani Directives, Guidance, & Communications” (aggregated) at Main DOJ:
    • 18 pages released in partly redacted form
    • 4 pages withheld entirely under b5 deliberative exemption
    • 6 pages awaiting a response from some other component
  2. “Giuliani Directives, Guidance, & Communications” and “Brady-Giuliani Communications” at USAPAW, of 263 pages reviewed this month:
    • 5 pages released, 3 of which include b6, b7A and b7C redactions
    • 14 pages referred to another component
    • 244 pages non-responsive or duplicates

Here is the USAPAW production and here is the Main DOJ production.

Here’s what has currently been provided to American Oversight (go here for live links).

Note, this may be clarified in upcoming dumps, but for now, there appears to be something very irregular with the OIP response. At first, DOJ said there were up to 8,851 items that were responsive to American Oversight’s request. But with the next status report, DOJ said there were just 30 pages. The most recent release claimed to account for 28 of those 30 pages.

In the second joint status report, OIP stated that it had completed its search and its initial responsiveness and deduplication review of potentially responsive documents and identified approximately 30 pages of material likely responsive to Plaintiff’s request. See ECF No.7, ¶ 2. OIP further stated that it had sent these records out for consultation pursuant to the Department’s regulations, 28 C.F.R. § 16.4(d), and expected to be able to provide its first response to Plaintiff on or around April 29, 2021. Id. On April 29, 2021, OIP made its first interim response. It released 18 pages in part with portions redacted pursuant to Exemptions 5 and/or 6 and withheld four pages in full pursuant to Exemption 5. OIP is awaiting responses from other components on the remaining six pages.

The math looks like this:

18 pages released

4 pages withheld under b5 exemption*

6 pages referred to another component

Total: 28 pages

Remaining: 2 pages

That’s a problem because there are at least two pages of emails that were part of the USAPAW response that must have had a counterpart at DOJ, as well as one missing from both (though USAPAW has 1000 pages to release):

  • A January 3, 2020 email from Seth DuCharme to Scott Brady asking, “Scott do you have time for a quick call today in re a possible discreet assignment from OAG and ODAG?” (Brady’s response, which includes DuCharme’s original, is included in both, but the copy released by OIP was printed out from Brady’s account, not DuCharme’s).
  • A February 11, 2020 email from Brady to DuCharme, asking “Seth, do you have a few minutes to catch up today?” The email should exist in both accounts, and should be included in both OIP and USAPAW’s response.
  • A March 5, 2020 email from Brady to DuCharme, asking “Seth: do you have 5 minutes to talk today?”

Brady resigned effective February 26 and DuCharme resigned effective March 19. At the time he resigned, DuCharme was supervising an investigation into this Derkach stuff, one that excluded Rudy as a subject.

I assume this will become more clear with further releases (indeed, American Oversight may have the next installment already). Perhaps there’s a sound explanation. But thus far, it looks like only the Brady side of exchanges between him and DuCharme have been provided in response.

* The response letter to Jerry Nadler was two pages long, and the draft was sent twice (or there were two drafts), so those probably account for the 4 pages withheld on b5 exemptions.

Rudy Giuliani’s Alleged “Cooperation” Is a Threat to Lay out How Bill Barr and Jeffrey Rosen Protected Russian Disinformation

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Now that I’ve waded through Rudy Giulilani’s response to learning that SDNY had conducted a covert search on him in November 2019 before it conducted an overt search in April 2021, I’m certain Rudy engaged in just the kind of bad lawyering SDNY hoped he would — more on that in a week or so.

But a big part of his letter was not an attempt to engage in good lawyering, but instead to send messages to a variety of people. He provided co-conspirators a map they can use to understand which of their communications are in SDNY’s hands, and which are not. But he also laid out what he called his “cooperation,” which aside from minimal claims (which SDNY disputed) to have cooperated with SDNY against Lev Parnas and Igor Fruman, really amounts to the corrupt stuff he believed he was protected for because he did it on behalf of Donald Trump. Indeed, he claims that if Judge Paul Oetken only knew he had permission to do all this stuff, then he wouldn’t have approved the warrants against him.

It is unknown if the Government informed the Court of Giuliani’s cooperation with the State Department or his offers to cooperate with the SDNY or his actual cooperation with the Western District of Pennsylvania.

His first claim of “cooperation” revisits claims he made in the wake of the whistleblower complaint in 2019, claiming that he was working closely with State when he was lobbying to fire Marie Yovanovitch.

It was premature and unwarranted for the Government to seize Giuliani’s ESI because Giuliani had already cooperated with the US State Department (“State”) through Mike Pompeo, the Secretary of State, in March 2019 concerning Ukraine. He also cooperated again in July and August of 2019 at the request of the State Department in assisting them with regard to Ukraine.

This is almost certainly the meat of the SDNY investigation, and whatever else Rudy has done by invoking it, he has put Mike Pompeo on the hotseat.

It may not be a coincidence that in the wake of this letter, Gordon Sondland sued Mike Pompeo for covering up what really happened in State in 2019 and provided several excuses — most importantly, that Pompeo refused to let him access his own backup materials before testifying — for why his two existing sessions of sworn testimony might conflict with what SDNY seized from Rudy.

In his other claim of cooperation, Rudy detailed how he shared disinformation from Russian agent Andrii Derkach with DOJ, which he described as “cooperation” with Main Justice in the guise of its delegate, Pittsburgh US Attorney Scott Brady.

Before I repeat Rudy’s description of how he shared disinformation from Andrii Derkach with a hand-picked and very pro-Trump US Attorney, consider several details: first, immediately in the wake of the raid on Rudy in April, there were leaked explanations for how Rudy managed to meet with a known Russian agent — right in the middle of impeachment!! — even though both National Security Advisor Robert O’Brien and FBI’s Counterintelligence folks knew that Russia was feeding Derkach disinformation to feed to Rudy.

The WaPo originally reported that the FBI had warned Rudy, but had to retract that. Rudy never got warned.

Correction: An earlier version of this story, published Thursday, incorrectly reported that One America News was warned by the FBI that it was the target of a Russian influence operation. That version also said the FBI had provided a similar warning to Rudolph W. Giuliani, which he has since disputed. This version has been corrected to remove assertions that OAN and Giuliani received the warnings.

The FBI became aware in late 2019 that Rudolph W. Giuliani was the target of a Russian influence operation aimed at circulating falsehoods intended to damage President Biden politically ahead of last year’s election, according to people familiar with the matter.

Officials planned to warn Giuliani as part of an extensive effort by the bureau to alert members of Congress and at least one conservative media outlet, One America News, that they faced a risk of being used to further Russia’s attempt to influence the election’s outcome, said several current and former U.S. officials. All spoke on the condition of anonymity because the matter remains highly sensitive.

The FBI became aware of the Russian information operation at a time when Giuliani was deeply involved with former president Donald Trump’s 2020 reelection campaign and related activities in Ukraine to surface unflattering or incriminating information about the Biden family.

[snip]

In late 2019, before Giuliani’s trip to Kyiv, U.S. intelligence agencies warned the Trump White House that Giuliani was the target of a Russian influence operation, as The Post reported last year. Officials became concerned after obtaining evidence, including communications intercepts, that showed Giuliani was interacting with people tied to Russian intelligence. The warnings led then-national security adviser Robert C. O’Brien to caution Trump that any information Giuliani brought back from Ukraine should be considered contaminated by Russia.

Then, after matching the WaPo’s original story and similarly having to retract it, NBC offered an explanation why Rudy wasn’t given that briefing: because it would “complicate” what NBC called “the criminal investigation” into Rudy.

The FBI prepared a so-called “defensive” briefing for Rudy Giuliani in 2019 in which agents were poised to warn him he was being targeted by a Russian intelligence influence operation as he sought to gather opposition research on the Biden family, according to a source familiar with the matter.

But that briefing was not given, according to a second source familiar with the matter, because of concerns that the briefing could complicate the criminal investigation into the former New York City mayor.

Yet, at the time Rudy would have gotten this warning, SDNY had already shown probable cause Rudy was an agent of one or another pro-corruption Ukrainians, almost certainly Yuri Lutsenko in his efforts to fire Marie Yovanovitch. Without a Derkach angle to the SDNY investigation — an angle Jeffrey Rosen went to great lengths to prevent them from pursuing — it’s not clear how it would have complicated that investigation.

Rudy didn’t get his warning and instead of warning him, Trump said that was Rudy being Rudy. So Rudy first met with Lutsenko, the subject of the first investigation, and headed from that meeting directly to meet with Derkach.

A month later, Rosen issued a memo prohibiting any prosecutors from expanding the scope of their already opened investigations, which would have had the effect of preventing SDNY from investigating Rudy’s ongoing influence peddling for known Russian agent Andrii Derkach, about whom FBI decided not to warn Rudy even though everyone briefed on it knew it was a Russian intelligence operation.

But that wasn’t the only thing that Billy Barr and Rosen’s efforts to divvy up Ukrainian investigations did. After Rosen wrote that memo (ensuring no one could start an investigation into Rudy’s dalliances with Derkach), but still a week before Trump was acquitted for coercing dirt from Ukraine to use against Joe Biden, per Rudy’s timeline, Barr assigned Pittsburgh US Attorney Scott Brady to oversee intake of all Ukrainian dirt and, within a day, Rudy was in the business of sharing Derkach’s dirt directly with Pittsburgh’s US Attorney’s office.

In his letter, Rudy clearly identifies four of the nine people who rushed to accept Rudy’s dirt, which the government had identified as Russia disinformation before he went to collect it in December.

[I]n January 2020, counsel for Giuliani contacted high officials in the Justice Department, to inform them that Giuliani wanted to provide evidence for their consideration about the Ukraine. Within a day, the United States Attorney for the Western District of Pennsylvania, Scott W. Brady, contacted Giuliani’s counsel and offered to hold a meeting in Pittsburgh with both the United States Attorney’s office personnel and the FBI. Mayor Giuliani immediately accepted, and a meeting was scheduled for January 29, 2020.

On January 29, 2020, Mayor Giuliani and his counsel, flew to Pittsburgh at their own cost, where they were met by agents of the FBI and transported to FBI headquarters in Pittsburgh. Present at that meeting were the United States Attorney, the First Assistant United States Attorney, the Chief of the Criminal Division, and two additional Assistant United States Attorneys (“AUSA’s”) from the Western District of Pennsylvania. The FBI was represented by the Special Agent in Charge (“SAIC”) of the Pittsburgh FBI, the Assistant Special Agent in Charge (“ASAIC”), and three other special agents of the FBI.

Prior to the meeting, Giuliani’s counsel had provided the Pittsburgh United States Attorney’s office with documents and an extensive outline of the subject matter to be discussed, so that the Government could be fully informed and prepared to ask probing questions. Giuliani began the meeting by making a presentation with handouts. During his presentation, and at the end of it, the Mayor and his counsel answered every question they were asked, to the apparent satisfaction of all of the Government officials in the room. In addition to the presentation, Giuliani provided the Government with the names and addresses of individual witnesses, both in the United States and in Ukraine, that could corroborate and amplify the information that the Mayor was providing. Subsequent to that meeting, and covering a period of months, counsel for Giuliani received a number of inquiries, discussions and requests from the First Assistant United States Attorney. All requests were granted and all inquiries were answered. [my emphasis]

And, as Rudy tells it, that First AUSA kept coming back for more, a claim (like his other claims about the personnel involved) that matches a story published in the NYT after those involved knew that Trump had lost. That story also described that Brady kept pushing for inappropriate investigative steps until, ultimately, Seth DuCharme had to get involved.

Officials said that Mr. Brady almost immediately started pushing to take aggressive steps. He had a list of people he wanted F.B.I. agents to question. It was not clear whether they were the same witnesses that Mr. Giuliani and Mr. Costello had submitted, but a former law enforcement official said that Mr. Brady had wanted the F.B.I. to question people mentioned in Mr. Giuliani’s materials.

The steps were outside “normal investigative procedures,” one former senior law enforcement official with knowledge of the events said, particularly in an election year; Justice Department policy typically forbids investigators from making aggressive moves before elections that could affect the outcome of the vote if they become public.
The Pittsburgh F.B.I. office refused to comply without the approval of David L. Bowdich, the F.B.I.’s deputy director, the former official said.

Mr. Brady’s demands soon prompted a tense confrontation with F.B.I. officials at the bureau’s headquarters in Washington. The meeting was mediated by Seth D. DuCharme, now the acting U.S. attorney in Brooklyn and at the time a trusted aide and ally of Mr. Barr’s at the Justice Department in Washington.

Then, after Barr failed to replace Geoffrey Berman with a hand-picked flunky when he fired him on June 20 of last year, Barr instead installed DuCharme in Brooklyn on July 10, thereby making DuCharme (who had already been personally involved in Pittsburgh) the gatekeeper on any investigations pertaining to Ukraine. And sometime months after that — as Rudy continued to share known Russian disinformation during the election — DuCharme approved not an expansion of the investigation in SDNY that Barr tried to shut down by firing Berman, which would have been the logical thing to do if you were concerned about Russians interfering in our elections, but instead a parallel investigation in EDNY that, per the more recent NYT report, by design would not treat Rudy as a subject. Meanwhile, Rosen created repeated roadblocks — higher and higher levels of approvals for a search of Rudy — in an attempt to prevent SDNY from advancing their investigation into Rudy any further.

There are some involved in this story, like the FBI Agents who got promoted into the jobs formerly held by Andrew McCabe and Bill Priestap and Peter Strzok, who probably let all this happen because they knew the best way to advance their careers was to not make the mistake that their predecessors had made by trying to keep the country safe from Russian interference during an election. Others may rationalize what they did as a means to placate the President, perhaps imagining that it wouldn’t do that much damage to the country — that was the excuse cited by the NYT article on the Pittsburgh investigation. But those people, in recognizing Trump would lash out if they tried to investigate Russian interference in the 2020 election, would have therefore understood that Trump wanted Russian spies to interfere in the election and would be furious if they prevented it. They would have had to have understood that the way to keep Trump happy was to let Russia have its way. They would have been operating on the recognition that all the claims about what Trump did in 2016 were true, at least as far as 2020.

Plus, no one who pushed as hard as Scott Brady did can claim to be trying to placate the President.

Finally, worst of all, there are those who took a vow to “protect and defend against enemies foreign and domestic” who made affirmative attempts to protect not just the disinformation that Rudy was feeding to DOJ and FBI, but also protect Rudy for serving as the willful handmaiden of someone they knew was a Russian spy.

The Russian scandal of 2020 is, in many ways, even more scandalous than the Russian scandal of 2016. At least Paul Manafort and Roger Stone were in a position to claim plausible deniability. Bill Barr and Jeffrey Rosen are not.

Update: This email obtained via American Oversight shows that the decision to use Scott Brady to protect the Russian disinformation intake started earlier, by January 3.

Rudy Giuliani’s Support Role in the Mueller Report

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As I showed in the Rat-Fucker Rashomon series, it can be tremendously useful to compare how different inquiries into Russian interference in 2016 tell that story. That’s true not just of Roger Stone; it’s also true of Rudy Giuliani.

By the time SSCI finished its Russia Report, the shape of the 2020 Russian influence campaign was evident, and it shows up, in redacted form, in the final report. As part of that discussion, the SSCI Report deals with Rudy at least once in almost entirely redacted passages about the ongoing influence campaign involving Russian assets in Ukraine. That is, it clearly suggests the trajectory led to the influence campaigns that were still active in 2020.

Perhaps because SSCI had the advantage of seeing where Rudy would end up, it also included a few more details about Rudy from earlier on of interest. For example, before Paul Manafort discussed how to win Pennsylvania and how to carve up Ukraine on August 2, 2016, he met with Trump and Rudy Giuliani in Trump Tower.

Among the details SSCI shows of the Trump campaign exploiting documents leaked to WikiLeaks is a citation to an email, dated October 11, 2016, showing Rudy was in that loop.

When Rick Gates was asked what kind of contact Paul Manafort retained with Trump after he was ousted from the campaign, Gates revealed that Manafort told Gates that Rudy Giuliani was helping him place people in Administration positions.

And PsyGroup’s Joel Zamel claimed that Rudy introduced him to Jared Kushner some months after the inauguration; Kushner and Zamel had a meeting at the White House to discuss “human rights issues in the Middle East, Iran, and ‘counter-extremism’.”

Aside from the detail that Manafort was using Rudy as a side channel to influence the White House, those aren’t necessarily momentous details.

Still, those details show that Rudy was a participant in these events during 2016. And yet, Rudy doesn’t show up as such in discussions about 2016 in the Mueller Report. Rather, Rudy shows up exclusively as Trump’s lawyer, floating the pardons in an attempt to get witnesses to lie to cover up what really happened in 2016.

Rudy — who was not yet formally Trump’s personal counsel — and his current defense attorney, Robert Costello, didn’t succeed in getting Michael Cohen to shield Trump.

On or about April 17, 2018, Cohen began speaking with an attorney, Robert Costello, who had a close relationship with Rudolph Giuliani, one of the President’s personal lawyers. 1022 Costello told Cohen that he had a “back channel of communication” to Giuliani, and that Giuliani had said the “channel” was “crucial” and “must be maintained.” 1023 On April 20, 2018, the New York Times published an article about the President’s relationship with and treatment of Cohen. 1024 The President responded with a series of tweets predicting that Cohen would not ” flip” :

The New York Times and a third rate reporter . . . are going out of their way to destroy Michael Cohen and his relationship with me in the hope that he will ‘flip. ‘ They use nonexistent ‘sources’ and a drunk/drugged up loser who hates Michael, a fine person with a wonderful family. Michael is a businessman for his own account/lawyer who I have always liked & respected. Most people will flip if the Government lets them out of trouble, even if it means lying or making up stories. Sorry, I don’t see Michael doing that despite the horrible Witch Hunt and the dishonest media! 1025

In an email that day to Cohen, Costello wrote that he had spoken with Giuliani. 1026 Costello told Cohen the conversation was “Very Very Positive[.] You are ‘loved’ … they are in our corner … . Sleep well tonight[], you have friends in high places.”1027

But Rudy, acting as part of Joint Defense Agreement in the role of Trump’s personal counsel, did succeed in getting Paul Manafort to lie about what happened on August 2 and efforts to carve up Ukraine in the aftermath.

Immediately following the revocation of Manafort’s bail, the President’s personal lawyer, Rudolph Giuliani, gave a series of interviews in which he raised the possibility of a pardon for Manafort. Giuliani told the New York Daily News that “[w]hen the whole thing is over, things might get cleaned up with some presidential pardons.” 856 Giuliani also said in an interview that, although the President should not pardon anyone while the Special Counsel’s investigation was ongoing, “when the investigation is concluded, he’s kind of on his own, right?”857 In a CNN interview two days later, Giuliani said, ” I guess I should clarify this once and for all. . . . The president has issued no pardons in this investigation. The president is not going to issue pardons in this investigation …. When it’s over, hey, he’s the president of the United States. He retains his pardon power. Nobody is taking that away from him.”858 Giuliani rejected the suggestion that his and the President’s comments could signal to defendants that they should not cooperate in a criminal prosecution because a pardon might follow, saying the comments were “certainly not intended that way.”859 Giuliani said the comments only acknowledged that an individual involved in the investigation would not be “excluded from [ a pardon], if in fact the president and his advisors .. . come to the conclusion that you have been treated unfairly.”860 Giuliani observed that pardons were not unusual in political investigations but said, “That doesn’t mean they’re going to happen here. Doesn’t mean that anybody should rely on it. … Big signal is, nobody has been pardoned yet.” 561

[snip]

The President said that flipping was “not fair” and “almost ought to be outlawed.”880 ln response to a question about whether he was considering a pardon for Manafort, the President said, “T have great respect for what he’s done, in terms of what he’s gone through …. He worked for many, many people many, many years, and T would say what he did, some of the charges they threw against him, every consultant, every lobbyist in Washington probably does.”881 Giuliani told journalists that the President “really thinks Manafort has been horribly treated” and that he and the President had discussed the political fallout if the President pardoned Manafort.882 The next day, Giuliani told the Washington Post that the President had asked his lawyers for advice on the possibility of a pardon for Manafort and other aides, and had been counseled against considering a pardon until the investigation concluded.883

On September 14, 2018, Manafort pleaded guilty to charges in the District of Columbia and signed a plea agreement that required him to cooperate with investigators.884 Giuliani was reported to have publicly said that Manafort remained in a joint defense agreement with the President following Manafort’s guilty plea and agreement to cooperate, and that Manafort’s attorneys regularly briefed the President’s lawyers on the topics discussed and the information Manafort had provided in interviews with the Special Counsel’s Office.885 On November 26, 2018, the Special Counsel’s Office disclosed in a public court filing that Manafort had breached his plea agreement by lying about multiple subjects.886 The next day, Giuliani said that the President had been “upset for weeks” about what he considered to be “the un-American, horrible treatment of Manafort.”887

Also, for whatever reason — probably because he had word diarrhea — Rudy provided the best evidence that Trump knowingly lied on his written answers to Mueller when he claimed not to remember the Trump Tower Moscow dangles during the election.

Also in January 2019, Giuliani gave press interviews that appeared to confirm Cohen’s account that the Trump Organization pursued the Trump Tower Moscow project well past January 2016. Giuliani stated that ” it’s our understanding that [discussions about the Trump Moscow project] went on throughout 2016. Weren’t a lot of them, but there were conversations. Can’t be sure of the exact date. But the president can remember having conversations with him about it. The president also remembers-yeah, probably up-could be up to as far as October, November.” 1069

Rudy was treated so persistently as a lawyer in the Mueller Report, but not a participant, that he didn’t even make the Glossary of Referenced Persons.

That’s true even though Rudy did show up in interviews as a topic of interest.

For example, when Mike Flynn was asked on April 25, 2018, just days after Rudy officially became Trump’s defense attorney, who else besides he and Bannon were hunting for Hillary’s missing 33,000 emails, the former Director of Defense Intelligence named Rudy, because he was “a big cyber guy.”

When question[ed] who else might have information about on the email messages, FLYNN mentioned Rudy GIULIANI. GIULIANI was “a big cyber guy” who have a speech on the topic in Tel Aviv. GIULIANI had a ton of contacts and traveled quite a bit with TRUMP (FLYNN surmised approximately half of the time). GIULIANI had a certainty that the emails were out there and available. GIULIANI would have said this directly to TRUMP. The natural response from TRUMP was “why the hell could they not find them?”

After two more questions (about Barbara Ledeen’s efforts), Mueller’s team returned to Rudy. This time, former Director of Defense Intelligence explained that if Rudy said something, you could be sure it was factual.

GIULIANI had contacts at the FBI, though he was pretty “close hold” on who he spoke with there. If GIULIANI said something, you could take it to the bank as factual, FLYNN believed that GIULIANI acted in a manner which indicated had specific knowledge related to the emails. FLYNN reviewed GIULIANI’s speech for Tel Aviv, made some comments, and gave it back to GIULIANI. GIULIANI did not name drop. GIULIANI popped in throughout the campaign to help with certain events. FLYNN did not know if GIULIANI knew Russia hacked the DNC.

Two more questions later, in response to a question about whether Jeff Sessions attempted to find the emails, Flynn brought up Rudy again.

FLYNN was asked whether SESSIONS or CHRISTIE made any efforts to find an answer based on their law enforcement backgrounds. SESSIONS did not make any effort at all. GIULIANI had deeper discussion on the issue with the campaign. CHRISTIE was somewhere between the two in regards to effort. CHRISTIE always seemed to “puff” about what he could do. FLYNN observed that GIULIANI and CHRISTIE had extensive connections and contact in New York. They constantly brought information back to the campaign. They did not do a lot of name dropping but there was a certainty to their information. FLYNN did not remember either of them saying they had contact with WikiLeaks.

Several more questions later, Flynn raised Rudy again in a discussion of whether anyone reached out to other countries for the emails.

Flynn opined that if Russia had them, then China, Iran, and North Korea also had them. Those countries had the cyber capabilities to get them and CLINTON was the Secretary of State. FLYNN also thought hactivist groups operating in the [sic] Ukraine could have them. It was also likely Israel had them. FLYNN did not recall specific discussions on reaching out to these countries to find out what they had. GIULIANI could have reached out to Israel but FLYNN did not know.

In an interview six days later, Mueller’s team asked Flynn more about the role of the guy who had just become Trump’s defense attorney.

FLYNN did not recall Rudy GIULIANI saying specifically what he was doing to learn more about the missing email messages. GIULIANI seemed insightful to FLYNN on knowing when news would break. GIULIANI was working on cyber policy for TRUMP. FLYNN was not sure if GIULIANI got his information from the news or from actual contacts. FLYNN attended a couple of meetings at Trump Tower where GIULIANI was present. GIULIANIs conversations were always that Wikileaks would release the missing email messages, not Russia. FLYNN thought Russia would wait to see who won the election. If CLINTON won, Russia could then use them for leverage over her. Wikileaks claimed to have the desire to put information out in the public to damage CLINTON.

FLYNN did not participate in any conversations with GIULIANI that indicated GIULIANI “cast his net” with his contacts. GIULIANI was one of a number of people around TRUMP’s inner circle. GIULIANI agreed on who was behind the hack but was not really certain. GIULIANI was a close hold guy but might share what he was hearing. FLYNN recently saw a clip that during the campaign, GIULIANI said during an interview that there were more leaks to come. FLYNN recalled that was the kind of thing GIULIANI would say with certainty related to cyber. FLYNN listened to GIULIANI who came across as a judge and made remarks as though they were facts.

I have not done a systematic review of all this (and earlier releases are too redacted to be of much use on such issues). But it’s not just Flynn who had something interesting to say about Rudy. When discussing the Transition (and egregiously downplaying his own role in foreign policy), for example, Steve Bannon described the tension during the Transition because both Jeff Sessions and Rudy wanted to be Secretary of State. “Bannon thought Giuliani would have issues in his confirmation if he was nominated as Secretary of State, however, because of some of his companies and foreign contacts,” Bannon explained, acknowledging even then that Rudy was a foreign influence peddling risk.

Perhaps it’s because, when Rudy became Trump’s defense attorney, it made any inquiry into his role in 2016 awkward. But even though Rudy was a participant in all this, and even though Mike Flynn thought he might be the most likely person to “cast his net” for ways to pursue stolen emails, it’s not clear how aggressively the Mueller team considered what role Rudy had.