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Matt Taibbi Attempts to Reinflate Patrick Byrne’s Maria Butina Story

The buzz around Patrick Byrne’s story about having an affair with Maria Butina has almost entirely subsided.

In spite of the fact that folks have moved on, Matt Taibbi, claiming that he’s writing now because Byrne “is taking a beating in the press,” has decided to write up the story.

The tale is now out, and Byrne, whom I’ve known and liked for almost a decade, is taking a beating in the press. It’s unfortunate, and the import of his story is going unnoticed because reporters are focusing instead on Byrne’s eccentricities.

Taibbi reveals that, “Byrne came to me months ago,” which would mean Taibbi was, like Sara Carter, one of the journalists Byrne told about this during the summer, which makes a second journalist who had not covered the Butina prosecution to whom Byrne chose to make claims about the Butina prosecution.

Taibbi explains that he didn’t tell Byrne’s story earlier because he couldn’t confirm it. “Unable to confirm enough of his story, I ended up hesitating.” He also admits that Byrne’s, “hyperbolic storytelling needs to be sorted with care.”

So let’s look at how Taibbi “sorts with care” this story.

He gets one of Byrne’s hyperbolic storytelling references wrong, claiming Byrne used “Men in Black” to refer to the “senior federal law enforcement officials, who encouraged him to pursue a relationship with the Russian.” While Byrne has always said his reasons for using this term would become clear, they never are, but he does explain that the “Men in Black” are actually the line agents who — he’s sure — felt horrible about making the request for him to reengage Butina in July 2016.

I wish to emphasize this: the Men In Black are honorable men and women, and they were extremely discomfited by this request. There was no leering. They felt horrible. I think they wanted me to refuse it. They insisted that in their careers they heard never heard of such a request.

And Taibbi continues to struggle when he discusses counterintelligence.

Taibbi misuses the term “agent” (which in spying lingo is the person recruited, not the one doing the recruiting), while making a big show of not using it to refer to Butina, even though that’s the legal charge she pled guilty to. “(I’m not using the words ‘Russian agent’ because the term is misleading: Butina was not convicted of espionage).” He then calls the 18 USC 971 charge — with which Anna Chapman and Carter Page recruiter Victor Podobnyy were also charged with — a technicality.

However, the government never made an espionage case, charging her with an obscure technicality: acting as an unregistered foreign agent.

While we were discussing this on Twitter, Taibbi made a technicality argument Butina’s lawyers tried but failed to make during the prosecution, that this was just like a FARA violation.

Then Taibbi argues that the real scandal about this is that DOJ took ‘no real action … for nearly a year.”

Byrne’s claims would be explosive if true in the smallest part. For instance, the government asserted in Butina’s sentencing memorandum that her “actions had the potential to damage the national security of the United States.”

If Byrne told authorities about Butina in July, 2015, and no real action was taken for nearly a year, that would fly in the face of the government’s assertions at sentencing about the threat she posed.

Aside from how difficult counterintelligence investigations are and all the reporting that shows Obama didn’t respond aggressively enough to Russian efforts, Taibbi’s story explains what happened. And that’s that she tried to get close to a presidential candidate’s son, and all of a sudden her aggressive effort to get close to politicians began to look different, which is when FBI reportedly came back to Byrne and asked him to help gather more information.

Then there’s the documentary sources Taibbi relied on to carefully sort Byrne’s “hyperbolic storytelling:”

  1. The CNN and Fox coverage of Byrne
  2. An ABC report on the initial filing that suggested Butina was engaged in a utilitarian relationship with Paul Erickson that addresses both the claim the defense refuted and the one that the defense offered a far less convincing rebuttal of; it does not link the filing
  3. The CNN report saying that Robert Mueller interviewed Butina about JD Gordon
  4. Byrne’s father’s NYT obituary
  5. An SI report on Bison Dele’s murder
  6. A WSJ report on changes to short selling after 2008
  7. A link to the main FreedomFest site
  8. A Business Insider account of Trump’s speech at FreedomFest
  9. A link to the website for Butina’s gun rights organization
  10. A link to Rolling Stone’s coverage of Russia, generally
  11. A link to a subpage on CFR’s website
  12. A link to a NYT story that includes the picture of her posing with Don Jr
  13. A KY story of Butina’s NRA appearance from after she was arrested
  14. The government’s sentencing memo in Butina’s case
  15. A preview of Peter Strzok’s public congressional testimony that Taibbi claims also featured Lisa Page (Page testified privately in July 2018, but those transcripts were not released until March of this year, so if they changed Byrne’s mind about the investigation it raises interesting questions about who told him about her testimony)
  16. A report of a NYT report on the filing where prosecutors retracted one, but not the second, claim to substantiate Butina’s relationship with Paul Erickson was overblown (neither the report itself nor the NYT story link to the filing)
  17. A WaPo report on Judge Chutkan’s admonishment of prosecutors in a hearing where she nevertheless granted their motion to deny Butina bail; the story also described Chutkan criticizing Butina’s lawyers’ public characterizations about evidence
  18. A CO report on the offer to give Butina her own reality TV show
  19. A Newsweek report about a NYT story on Butina’s effort to get a jet fuel deal with an NRA official’s wife; Butina’s lawyer, Robert Driscoll, presumably has access to the emails the NYT story is based on, but appears not to have shared them with Taibbi
  20. A NYT Report on John Durham’s appointment to review how the Russian investigation (which Taibbi of course calls “Russiagate”) got opened
  21. A Market Watch report deeming Byrne’s story “one of his most bizarre statements yet”

21 links. That’s a lot! Except just one of them is to a filing from the case, and the three stories most critical to Taibbi’s points about Butina’s treatment by the press don’t link to court filings themselves, which takes some doing.

That’s utterly crucial, because Taibbi misunderstands how the question of Butina’s possible use of sex came up in the case (indeed, he miscites what the WaPo report on Chutkan said). It was not a document about her tradecraft. Rather, it was part of what prosecutors used to argue that her relationship with Paul Erickson was utilitarian and therefore she should be denied bail.

During the course of this investigation, the FBI has determined that Butina gained access through U.S. Person 1 to an extensive network of U.S. persons in positions to influence political activities in the United States. Butina, age 29, and U.S. Person 1, age 56, are believed to have cohabitated and been involved in a personal relationship during the course of Butina’s activities in the United States. But this relationship does not represent a strong tie to the United States because Butina appears to treat it as simply a necessary aspect of her activities. For example, on at least one occasion, Butina offered an individual other than U.S. Person 1 sex in exchange for a position within a special interest organization. Further, in papers seized by the FBI, Butina complained about living with U.S. Person 1 and expressed disdain for continuing to cohabitate with U.S. Person 1.

The second allegation in that paragraph — that she bitched to a friend about living with Erickson — was not credibly refuted by her lawyers. In the followup filing that Taibbi references in a link claiming that Chutkan “threw out the sex charge,” prosecutors note that,

Even granting that the government’s understanding of this particular text conversation was mistaken, other communications and materials in the government’s possession (and produced to the defense) call into doubt the defendant’s claim that her relationship with U.S. Person 1 is a sufficiently strong tie to ensure her appearance in court to face the charges against her if she is released.

Given Byrne’s claims to have told the FBI about his relationship with her before all this, the reference to her using sex and prosecutors’ suggestion it may have happened more than once appears to be parallel construction to hide something the FBI otherwise believed (that she had initiated a sexual relationship with someone Torshin sent her to meet at a time she was supposedly romantically committed to Erickson), but the source of which they were trying to keep secret.

Especially if Byrne described that sexual relationship to the FBI like he described it in his own account, by loading his description of how they first slept together with insinuations about how spectacular she is.

A gentleman does not normally say, but it would be ridiculous to omit, given how germane it is: when I arrived, Maria made immediately clear that she had not been pretending. She had indeed watched my videos, and thought I was pretty cool. She, the Greater Moscow Powerlifting Champion (amateur) swept me and my liberalism off my feet. I was helpless, helpless I say….

Well, not really. About the “helpless” part, anyway. The rest is true. And I will say this: Maria is a spectacular woman. An unforgettable woman. So as to avoid returning to the subject, I will state once that every tryst with Maria she astonished me with her intellect, character, and intentions for the world. Great props to Mother Russia, for producing such a daughter.

To keep Church Ladies from hammering me on message boards, and because it is relevant: For Maria’s part, she sounded like there were some big-shot Republicans in her life in America she was seeing, she was back and forth to Russia, nothing was too serious, etc. I didn’t really pry.

Taibbi’s story replicates such insinuation, quoting Byrne describing Butina as having “one in a million” drive and ability in the same sentence addressing the two becoming intimate.

Later, Butina and Byrne made an arrangement to meet in New York. “We became intimate,” he says. Byrne says Butina impressed him as a being “one in a million” in terms of her drive and ability.

If you’re trying to convince people a woman is not a trained Red Sparrow, separate your comments about how spectacular she is from your descriptions of how she seduced you. And if you describe her this way, don’t be surprised if the government then goes on to make similar insinuations in court documents.

In other words, it may well be that the government made this claim because of what they knew about the timing and specifics of Byrne’s sexual relationship with Butina.

Taibbi seems to believe that people didn’t take this story more seriously because journalists covering it had to address Byrne’s eccentricities, just like he had to. What he utterly misunderstands — perhaps because he relied on thirdhand reports of the investigation rather than the source documents — is that Byrne’s story makes Butina’s far more damning.

I don’t doubt the main thrust of Byrne’s claim, that he had a serial affair with Butina and after it had ended the FBI asked him to resume contact. I do, however, know (because I did cover the Butina prosecution) that his story that Butina told him Aleksandr Torshin sent her to seek out Byrne confirms parts of the allegations against Butina. And Byrne’s story completely undermines two claims Butina made as part of her defense: that she had no idea she needed to register as a foreign agent (he warned her she did) and that she was truly in love with Paul Erickson.

There may be real questions about what Byrne’s relationship was and why the government didn’t disclose it to Butina’s lawyers. But any story about those questions should — as I do here — mention that Driscoll didn’t do two things (ask in writing and ask the government’s witness at sentencing, who likely also knew about Byrne) to pursue those questions either. It suggests he suspected he might not like the answers he would get.

Plus, there’s the question about why, if Byrne changed from believing there was a 2/3 chance she was a spy in July 2018 when she got arrested and referred in terms that may reflect what he told the FBI to believing she wasn’t, he didn’t do something about it then.

But Byrne’s story actually makes the government allegations against Butina stronger, not weaker and none of Taibbi’s “careful sorting” of Byrne’s “hyperbolic storytelling” changes that.

Maria Butina’s Lawyer Changes His Story about Her Romance with Paul Erickson

There are a number of inconsistencies and sketchy claims (about who he thinks was targeted by the FBI and the timing of his disclosures) in former Overstock CEO Patrick Byrne’s claims (Sara Carter’s story, NYT story, Fox Interview, Seth Hettena Q&A, Chris Cuomo interview) that he had been a “non-standard” informant for the FBI about Maria Butina.

The short version is that she sought him out in July 2015, telling him Aleksandr Torshin had asked her to do so, then started a sexual relationship with him, then later turned her attention to networking with presidential campaigns. All along the way, Byrne claims, he kept the FBI informed and acted on their requests regarding his relationship with Butina. Then, 9 months after she was arrested, in April 2019 and at a period too late to help her sentencing, he reached out to the FBI and first without counsel (in spite of his claim to Fox that a big Republican lawyer told him he’d go to jail for the rest of his life over this) and then with a lawyer told the FBI what had happened. He attributes coming forward to a conversation with Warren Buffet, though Buffet claims not to know what he was involved with.

I may return to the oddities in Byrne’s story.

For now, however, I’d like to examine what her lawyer Robert Driscoll has claimed about Byrne.

In a letter to John Durham, DOJ’s IG, and OPR (shared with Carter), Driscoll  suggested that he should have been provided details of what Byrne shared with the FBI as Brady information.

By email, letter, phone, and in person, the defense repeatedly pressed the government for any Brady material and was not provided any. In particular, we suggested to the government a strong suspicion that counterintelligence or other FBI investigators used confidential informants (“CIs”) in their investigation of Maria, and that information provided by such witnesses to the government might be relevant to guilt or sentencing. Moreover, we suggested that the government had presented Maria with one or more “dangles” — that is, orchestrated opportunities to provide the government  information unwittingly while being observed.

In writing, the government denied the existence of any such Brady material. Orally, during debrief sessions with Maria, I directly told the government that I believed Patrick Byrne, Chief Executive of Overstock.com, who had a sporadic relationship with Maria over a period of years prior to her arrest, was a government informant. My speculation was flatly denied. My associate Alfred Carry made similar assertions in a separate debrief that he covered and was also rebuffed.

Mr. Byrne has now contacted me and has confirmed that he, indeed, had a “non-standard arrangement” with the FBI for many years, and that beginning in 2015 through Maria’s arrest, he communicated and assisted government agents with their investigation of Maria. During this time, he stated he acted at the direction of the government and federal agents by, at their instruction, kindling a manipulative romantic relationship with her. He also told me that some of the details he provided the government regarding Maria in response was exculpatory — that is, he reported to the government that Maria’s behavior with him was inconsistent with her being a foreign agent and more likely an idealist and age-appropriate peace activist.

[snip]

Byrne evidently informed the government of many meetings with political and other figures that Maria had mentioned to him, often in advance of the meetings themselves. The government did not try to intervene or try to stop any meetings, nor did they express any concern. (This undercuts the government’s position at sentencing that Maria’s activities involved collection of information that could be of “substantial intelligence value to the Russian government” or pose a “serious potential to harm U.S. foreign policy interests and national security” as those same activities were observed and permitted for years.)

At some point prior to the 2016 election, when Byrne’s contact with Maria diminished or ceased, the government asked and encouraged him to renew contact with her and he did so, continuing to inform the government of her activities. Byrne states he was informed by government agents that his pursuit and involvement with Maria (and concomitant surveillance of her) was requested and directed from the highest levels of the FBI and intelligence community.

As time passed, Byrne became more and more convinced that Maria was what she said she was–an inquisitive student in favor of better U.S.-Russian relations–and not an agent of the Russian government or someone involved in espionage or illegal activities. He states he conveyed these thoughts and the corroborating facts and observations to the government.

Now, I absolutely don’t rule out the government withholding information that would be helpful to the defense. They do that far too often, and there are good reasons to doubt the prosecutors in this case. But Driscoll’s claim that this might be a Brady violation is premised on two things: first, that the FBI really considered Byrne an informant — which is what they denied when asked directly — and that the FBI considered anything he gave them to be exculpatory.

In fact, the story Byrne told is actually quite damning to Butina. From the very start, according to what he told Sara Carter, Butina was pursuing him, not vice versa. She told him, from the very start, she had been sent by Torshin and explained (credibly, given Putin’s interests) they were interested in Byrne because of his involvement in blockchain technology. And her offer of a trip to Russia with networking there matched her M.O. in approaching the NRA.

Byrne revealed details about his intimate relationship with the Russian gun right’s activist Butina. Byrne was a keynote speaker on July, 8, 2015 at Freedom Fest, a yearly Libertarian gathering that hosts top speakers in Las Vegas. Shortly after his address, Butina approached him. She told him she was the leader of a gun right’s organization in Russia. He congratulated her, spoke to her shortly, but then “brushed her off.”

The young redheaded Russian graduate student then approached him again over the course of the conference and explained that she worked for the Vice Chairman of the Central Bank of Russia and sent by them to make contact with Byrne.

She also said “Did you know you’re a famous man in Russia in certain circles? We watch your Youtube videos, we know about your relationship with Milton Friedman.”

She said she was appointed to lead Russia’s gun right’s group by Lieutenant-General Mikhail Kalashnikov, who was a Russian general, most notably known for his AK-47 machine gun design. Byrne says he considered the designation by Kalashnikov a significant honor, a signal of a kind he knows some mythical figures make on their way out. Byrne then had an “extensive conversation about Russian history and political situation.  Butina told him that the purpose of her visit was primarily to extend an invitation to Byrne to come to Russia to speak at the Central Bank. After that, there would be a trip to a major resort to meet with various intellectuals and dignitaries from the Russian power structure. Butina told Byrne the event would offer him the opportunity to meet senior Russian officials and oligarchs. She wanted to see Byrne again to start preparing him for such a trip.

Even more significantly, as Byrne tells it, after Butina first suggested she was using a romantic relationship with him as cover to explain their communications, she’s the one who first pushed sex.

He rented a hotel room with two bedrooms because he was under the impression that the romantic texts were simply her way to cover for communicating with him. However, she arrived at the hotel beforehand, occupied the room before Byrne’s arrival, and when he arrived,  she made clear that her flirtatious texts were not simply a disguise.

And Byrne claims he grew quite alarmed by Butina’s interest in networking with political campaigns.

“Eventually, her conversations became less about philosophy and it became clear that she was doing things that made me quite uncomfortable,” stated Byrne. “She was basically schmoozing around with the political class and eventually she said to me at one point I want to meet anyone in the Hillary campaign, the Cruz, the Rubio campaigns.”

Butina had also told Byrne, that Torshin, the Russian politician who she had been assisting while she was in the U.S., had sent her to the United States to meet other libertarians and build relations with political figures.

Byrne also claims he told Butina she needed to disclose her activities to the government, something that directly contradicts what Butina claimed repeatedly during the sentencing process, that, “If I had known to register as a foreign agent, I would have done so without delay.”

Byrne said he warned Butina: “Maria the United States is not like Russia, and knowing powerful people ‘like oligarchs and politicians’ won’t help if the FBI believes a line has been crossed.” Byrne believed Butina was naive but not blameless. He said during the interview, “If you’re reporting to any Russian official  as you’re doing this stuff and not disclosing yourself here, there are these men in black here and they don’t really give a shit who you know here -that’s not going to save you.”

It is true that Butina repeatedly told him she wasn’t a spy and Byrne ultimately became convinced that was true. But even in his description of that, he told Carter that he believed Butina was being used by US and Russian intelligence, not that he believed she had no tie to intelligence.

Although Byrne was concerned about Butina’s possible motives, he eventually became convinced that she was an intellectual being used by both the Russians and American intelligence apparatus. She was stuck between two highly contentious and secretive governments, he claimed. He relayed those concerns to the FBI, he said.

If that’s what he told the FBI, it does nothing to make her any less of an unregistered agent of Russia.

Very significantly, though, Butina’s involvement with Byrne during the period she was supposedly in a meaningful romantic relationship with Paul Erickson refutes the claims her attorneys have made about that relationship.

As I have laid out, from the very start, Driscoll portrayed the government’s claim that she caught Paul Erickson in a honey pot as sexism, with mixed success.

Then there’s the specific government insinuation that Butina was engaged in a honey pot operation. It substantiates this two ways — first, by suggesting she’s not that into Erickson.

Further, in papers seized by the FBI, Butina complained about living with U.S. Person 1 and expressed disdain for continuing to cohabitate with U.S. Person 1.

It also alleges she offered sex for favors.

For example, on at least one occasion, Butina offered an individual other than U.S. Person 1 sex in exchange for a position within a special interest organization.

Driscoll pretty convincingly argues the government misinterpreted this last bit.

The only evidence the government relied on for its explosive claim was an excerpt from an innocuous three-year-old text exchange (attached as Exhibit 3) sent in Russia between Ms. Butina and DK, her longtime friend, assistant, and public relations man for The Right to Bear Arms gun rights group that she founded.

DK, who often drove Ms. Butina’s car and thus was listed on the insurance, took the car for its annual government-required inspection and insurance renewal, and upon completion, texted (according to government translators), “I don’t know what you owe me for this insurance they put me through the wringer.” Ms. Butina jokingly replied, “Sex. Thank you so much. I have nothing else at all. Not a nickel to my name.” DK responded: “Ugh . . . ( ”—that is, with a sad face emoticon.

Aside from the fact that Maria is friends with DK’s wife and child and treats DK like a brother, the reference to sex is clearly a joke.

We still haven’t seen the government response to this, but what Driscoll presents does support his claim this is a “sexist smear.”

But Driscoll’s dismissal of the other claim — that Butina disdained living with Erickson — is far less convincing.

[I]n response to her girlfriend’s own complaints about her boyfriend’s failure to call in three weeks (accompanied by an angry face emoji) that Maria responds that her own boyfriend (Mr. Erickson) has been “bugging the sh*t out of me with his mom” and that she has “a feeling that I am residing in a nursing home.” “Send a link to the dating app[,]”

Driscoll spins this as an attack on Erickson’s now late mother, but doesn’t address the central allegation that she likened living with her much older boyfriend to living in a nursing home. Nor that she started the exchange by saying “let’s go have some fun with guys!!!” because she was “Bored. So there.” Furthermore, Butina seemed concerned that her use of Tinder would become public because she logged in using Facebook.

Though he has been sharing schmaltzy videos of Butina and Erickson with ABC, Driscoll also doesn’t address the fact that as early as May, Butina was proffering to flip on Erickson in fraud charges in South Dakota, which would have the effect of putting her in a position to negotiate permanent visa status independent of him, while limiting her own legal exposure.

Even in her sentencing memo — long after he knew of her relationship with Byrne, according to his public statements — Driscoll claimed she moved to the US in 2016 so she could be in the same hemisphere as Erickson.

On a personal level, Erickson and Maria kept in touch after the 2013 meeting and she began a romantic relationship with him in the following year.

[snip]

She also wished to be in the same hemisphere as her romantic interest. So Maria and Erickson explored both educational and business opportunities for her. This is the genesis of the Description of the Diplomacy Project proposal referenced in the Statement of Offense.

Among the events Butina planned to attend as part of that Diplomacy Project was the July 8-11 Freedom Fest convention where she first sought out Byrne. And before she moved to the US, she was already involved sexually with Byrne, according to his claims.

The portrayal of Butina’s relationship with Erickson as true romance has long been suspect — not only did she offer to flip on him in May 2018 (in exchange for which she might have gotten a permanent visa), but she did flip on him months before her plea deal. But if Byrne’s claims are true, it suggests she was using sexual relationships to help network in the US, and it further suggests Driscoll knew that when making claims about the import of her relationship with Erickson. If the FBI did obtain information from Byrne they chose (justifiably or not) not to release to defense attorneys, it might explain why they believed she was operating as a honey pot: because that’s what Byrne told them happened to him.

In his public comments to the NYT, Driscoll explained that Butina didn’t want to settle down (the implication is, with Byrne; he has claimed she wanted to settle down with Erickson).

“I think she admired him, but I don’t think she was looking to settle down,” Mr. Driscoll said.

In his comments to Carter, he suggests that he suspects there were other sources for the FBI.

Driscoll said there was suspicion that the FBI did not disclose all the information it had on Butina and he stated that he believed “Patrick is not the only one” who was giving information to the FBI.

“We’ve thought of several possibilities and some we are more confidant than others. I’m firmly convinced,” said Driscoll, who shared numerous letters and emails with this reporter that he exchanged with the FBI.

A seemingly disturbed homeless man, Hamdy Alex Abouhussein, who has asked to submit an amicus brief in Butina’s appeal (the public defender whom Judge Tanya Chutkan appointed to make sure that Driscoll had no conflicts when she pled guilty, AJ Kramer, is representing her in her appeal) claimed (incorrectly) that he’s the reason Butina got thrown into solitary and that FBI used Butina as a dangle to entrap him. So he also claims to have tried to provide exculpatory information.

Plainly, one cannot tell exactly when, before accepting Butina’s guilty plea, did Judge Chutkan learn of the jail’s blocking of Abouhussein’s letters to Butina, including his pictures, or the FBI dangle operation. Moreover, as the plea hearing transcript shows, Butina responded to the Judge’s sequence of questions about effectiveness of each of her then-three attorneys3, including the just-appointed for the plea negotiations role, A.J. Kramer4, who was yet to meet Abouhussein (they met outside the courtroom after the plea hearing, see pre-plea email from Abouhussein to Kramer, exh 2). Upon information and belief, Butina approved her attorneys’ performance only because they, under DOJ’s duress and a gag order, never informed her of the FBI dangle operation and surrendered to the prosecutors’ intimidation by keeping the dangle operation out of the public eye and trial record5. Admittedly, choice was either a rock or a hard place.

However, Judge Chutkan did sentence Butina to 18 months in prison after the notice of Abouhussein’s Amicus Brief Docket No. 77 was entered, which means Judge Chutkan was t/me/y presented with the “FBI dangle” and “letters blocked by Butina’s jail” Brady issues. Per Rule 51, this Honorable Court now has a lawful duty to investigate the issue of the FBI’s dangle operation that intentionally built up an oligarch-connected naive student as a false spy before casting her sex lure to hook the homeless Abouhussein, who was attending a public event at the Heritage Foundation to eat the free lunch as usual. Had he swallowed the lure6, any Grand Jury would indict this HamdySandwitch of a spy couple with ties to Putin, which explains Prosecutors’ honeypot sex allegations tainting Butina upon her arrest. Only in America!

So, yeah, there are other allegations, but Driscoll is right to suggest Byrne is more credible than, at least, this one.

But if Byrne’s story is credible, then it’s not clear that it helps Butina, at all, because it undermines the story her defense has been telling for a year.

Given her repeated assertions she’s happy with Driscoll’s representation, it’s unclear the basis for Butina’s appeal. I think the government operated in bad faith when they asked for 18 months, but that’s not a basis for an appeal. I think Driscoll made a mistake both by not arguing more forcibly that given the most relevant comparable sentence on 18 USC 951 charges, that of Carter Page recruiter Evgeny Buryakov’s 30 month sentence, a 9 month sentence would have been proportionate for someone like Butina who was neither recruiting nor operating covertly.

I also think that if Driscoll really cared about the declaration from former Assistant Director of FBI’s Counterintelligence Division, Robert Anderson Jr at her sentencing, he should have questioned what documents Anderson relied upon to judge that Butina was a spotter for Russian intelligence instead of deciding that, “I’m happy to leave the record as it is.” But if Driscoll had reason to believe the FBI had really damning information from Byrne that undercut his claims about Butina’s romance with Erickson, it might explain why he didn’t ask those questions.

The other day, Butina’s lawyer for her appeal AJ Kramer asked for an extension on his deadline to submit Butina’s appeal, which could mean he wants to add claims of Brady violations in her appeal (though he says he needs more time to consult the public record, and Driscoll and his associate Alfred Carry, by Driscoll’s own admission, never put their request for information about Byrne in writing).

But given Byrne’s public claims, it’s not actually clear that will help her case, as it mostly provides an explanation for why the FBI was so insistent on some of the allegations it did make.

Spy versus Spy: The Two Alleged Agents of Foreign Powers Sitting in the Alexandria Jail, Part Two (Mariia)

In this post, I laid out the difference between two laws criminalizing foreign agents of influence, 22 USC 611 et seq. (FARA) and 18 USC 951. Paul Manafort is charged with the former; Rick Gates, Mike Flynn, and Sam Patten have also all pled guilty to FARA related crimes; Mariia Butina is accused of the latter.

I think, particularly as Mueller’s investigation begins to put real teeth in FARA (and as nation-state spying hides under new kinds of cover and funding arrangements), the border between the two crimes will become increasingly tenuous. A comparison of Butina and Manafort shows some of the ways that’s clear.

Butina’s lawyer pitches her actions as lobbying

In response to her charges, her attorney Robert Driscoll has repeatedly denied she’s an agent of Russia, not by denying she did what Aleksandr Torshin instructed her to, but by claiming that hers is just a regulatory filing case.

“This is not an espionage case, this is not a spy case, this is a regulatory filing case,” in which Butina didn’t file the correct paperwork with the Justice Department, Driscoll told Robnson in arguing why she should be freed pending trial.

“She’s not an agent of the Russian Federation,” Driscoll told reporters after the hearing.

In a bid to overturn Magistrate Deborah Robinson’s decision to deny Butina bail, Driscoll minimizes the Russian’s activities as “going to dinners among intellectuals and foreign policy wonks to discuss U.S.-Russia relations, attending two National Prayer Breakfasts, and booking hotel rooms at the Washington Hilton, if true, is anything but an ‘obvious’ danger to the public.” He argues, “the allegations do not involve spying, tradecraft, classified information, or any other hallmarks of an espionage case.” To rebut any claim of covert operation, Driscoll points to the fact that one of the actions in her indictment — a dinner hosted by her unindicted co-conspirator, George O’Neill, just after the National Prayer Breakfast — was hosted by O’Neill and written up in the press (one of two stories he cited was written by O’Neill).

She is accused of arranging dinners to promote better relations between Russia and the United States although the very dinner that is listed as a predicate act for her alleged crimes was written about in Time Magazine and the American Conservative—hardly covert activity—and, in actuality, was initiated, organized, and directed by an American citizen, not the Russian government.3

He argues that the government charged Butina with section 951 as a tactical move, to make it easier to prosecute political activity (I’m not a lawyer, but I’m virtually certain he mis-states what the materials say about exempting political activity, not least because, per other materials, section 611 can be a subset of a section 951 violation).

To distract from the frailty of its charges, the government reprises that Ms. Butina is charged under section 951 and not FARA. However, that charging decision alone contradicts the Justice Department’s own policies, and perhaps was made as an attempt to aggrandize her conduct and mischaracterize her innocent political interest as nefarious.

That is, the Department of Justice (“DOJ”) Criminal Resource Manual makes a distinction between section 951 and a FARA violation. It describes FARA under section 611 et seq. as requiring an agent of a foreign principal engaged in political activities to register. See U.S. Dep’t of Justice, United States Attorneys’ Manual 9-90.700 and 9-90.701; and see Criminal Resource Manual at 2062. It also discusses other federal statutes like section 951, which is “aimed at persons loosely called foreign agents” but specifically exempts section 951 from applying to “foreign agents engaged in political activities.” Id. In plain English, DOJ further notes among frequently asked questions that section 951 is only “aimed at foreign government controlled agents engaged in non-political activities.”5

The government’s April, 2018 search warrant sought evidence of a potential violation under FARA.

[snip]

[A]lthough such allegations are unfounded and untrue, and although the government’s searches revealed no hidden transmitters, wads of cash, counterfeit passports, and plane tickets back to Moscow, the government still decided to paper a case against Ms. Butina under section 951. This decision shows that the government desired to overcharge and inflate her conduct for tactical advantages versus act with restraint or, at a minimum, be consistent with the DOJ and National Security Division’s own publicized understanding of appropriate charges.

And Driscoll doesn’t even concede she violated FARA.

[F]or reasons only it is aware, the government has charged Ms. Butina under 18 U.S.C. § 951 rather than the Foreign Agent Registration Act (“FARA”), 22 U.S.C. § 611 et seq., which generally carries civil penalties and much less severe criminal penalties (for circumstances far more egregious than the facts alleged here). Much like a FARA case, the government does not allege that Ms. Butina undertook any independently illegal activities in the United States. The only thing that made her alleged conduct illegal, if true, is that she did not notify the Attorney General prior to undertaking it.

[snip]

At bottom, the government’s case appears to be a novel attempt to stretch 18 U.S.C. § 951 to cover the activities of a foreign national student under the theory that her communications (about non-classified public source material) with contacts in her home country made her an “agent” of that country. The serious charges against her should be viewed in that context, which makes this case distinctly different from a typical section 951, “espionage-like or clandestine behavior” case.4

The lobbying included in Butina’s alleged crimes

To some extent, Driscoll is right: the government’s description of the allegations against Butina does focus closely on activity that might fall under FARA’s political activities (though, as noted, he cites a DOJ statement that suggests sections 611 and 951 are mutually exclusive, when by my understanding sections 611 can be a part of 951).

Many of the activities Butina is alleged to have done involve things that might be classified as lobbying. In her arrest affidavit, DOJ describes how Butina, with help from Paul Erickson, identified a network of influential Americans, including the NRA, to whom she could pitch closer relations with Russia. George O’Neill helped Butina set up a series of “friendship and dialogue” dinners. A number of her activities, such a publishing an article in The National Interest, are precisely the kinds of things FARA attempts to provide transparency on. This is where Driscoll gets his claim that Butina only “arrang[ed] dinners to promote better relations between Russia and the United States.”

Butina was directed by Aleksandr Torshin

A number of the allegations would support either a FARA or 951 violation.

The affidavit makes it clear she was following the directions of Aleksandr Torshin, the Deputy Governor of Russia’s Central Bank and as such an official representative of the government.

On the night of the election, for example, she asked for orders from Torshin, “I’m going to sleep. It’s 3 am here. I am ready for further orders.” The two moved to WhatsApp out of Torshin’s concern “all our phones are being listened to.” It’s clear, too, she and Torshin were hiding the role of the Russian government behind her actions. When she sent a report on a conference to establish a dialogue with US politicians, she said it “must be presented as a private initiative, not a government undertaking.”

The government even presented proof that Butina’s actions were approved by people close to Putin himself.

On March 14, 2016, Butina wrote O’Neill that what DOJ calls a  “representative of the Russian Presidential administration” had expressed approval “for building this communication channel,” suggesting she and Torshin had direct approval from Putin. “All we needed is <<yes>> from Putin’s side,” Butina explained to O’Neill.

With one exception, Driscoll largely offers bullshit in response to the government’s evidence she operated as a Russian government agent (indeed, his recognition that Butin advertised being Torshin’s special assistant on one of her business cards confirms that she continued to work for Torshin). He includes a letter of grad school recommendation for Butina for Columbia as proof of … it’s not clear what, particularly since Torshin includes his government affiliation on the letter.

Still: Paul Manafort was operating on behalf of a foreign government while Viktor Yanukovych remained in power, yet DOJ charged him with FARA, not section 951. The bar to meet foreignness under FARA is broader than it is under section 951, but lobbying for a foreign government can be sufficient to it. Yet Butina got charged under section 951, not FARA.

Paid by an oligarch

The exception to my claim that Driscoll offers little to rebut (in court filings — his statements to the press are another issue) that Butina was directed by the Russian government is the issue of her funding, which the government notes comes from an oligarch that Butina identified to the Senate Intelligence Committee as Konstantin Nikolaev.

Her Twitter messages, chat logs, and emails refer to a known Russian businessman with deep ties to the Russian Presidential Administration. This person often travels to the United States and has also been referred to as her “funder” throughout her correspondence; he was listed in Forbes as having a real-time net worth of $1.2 billion as of 2018. Immediately prior to her first trip to the United States in late 2014, Butina engaged in a series of text messages with a different wealthy Russian businessman regarding budgets for her trip to the United States and meetings with the aforementioned “funder.”

Driscoll points to this to disclaim a tie between her and the Russian state.

[T]he Russian Federation did not pay for her travel to the United States, her tuition, her living expenses, or make any payments to her at all.

This is actually an interesting point, because while FARA requires only that a person be working as an agent of a foreign principal (which might include, for example, an oligarch), section 951 requires that the agent be working on behalf of a foreign government. Butina no doubt still qualifies, given her tie to Torshin.

But particularly when comparing Manafort and Butina, both of whom worked at the border between laundered oligarch cash and government officials, the detail is of particular interest. If Russia outsources its intelligence operations to oligarchs (the Internet Research Agency’s Yevgeniy Prigozhin is another example), will that intelligence still qualify as spying under section 951?

In any case, thus far, the allegations against Butina and Manafort are fairly similar: both were hiding the fact that their political activities were backed by, and done in the interest of, Russian or Russian-backed entities.

The evidence for covert action

One area where Butina may go further than Manafort (at least for his pre-election work) is in the means by which she was trying to hide her work.

In spite of the great deal of publicity Butina made of her own actions — with all the pictures of her and powerful Republican men — the government affidavit also described Butina trying to set up (in her words) a “back channel” of communication with influential Americans.  On October 4, 2016, Erickson emailed a friend admitting he had “been involved in security a VERY private line of communication between the Kremlin and key [Republican] leaders through, of all conduits, the [NRA]. The affidavit describes Butina telling Torshin that her Russia-USA friendship society” is “currently ‘underground’ both here and there.” When discussing the list of delegates to the 2017 National Prayer Breakfast with Erickson in late November, she said the attendees were seeking to establish a “back channel of communication.”

Manafort was trying to hide that the lobbying he paid for was done for Yanukovych’s benefit, but there’s no allegation his pre-election work aimed to set up a secret channel of communication between Yanukovych and Congress.

Of particular interest, given the parallel efforts on voter suppression from Roger Stone and the Russians, Butina floated serving as an election observer. Torshin argued that “the risk of provocation is too high and the ‘media hype’ which comes after it.” But Butina argued she’d only do it incognito.

The honey pot claim

Then there’s the specific government insinuation that Butina was engaged in a honey pot operation. It substantiates this two ways — first, by suggesting she’s not that into Erickson.

Further, in papers seized by the FBI, Butina complained about living with U.S. Person 1 and expressed disdain for continuing to cohabitate with U.S. Person 1.

It also alleges she offered sex for favors.

For example, on at least one occasion, Butina offered an individual other than U.S. Person 1 sex in exchange for a position within a special interest organization.

Driscoll pretty convincingly argues the government misinterpreted this last bit.

The only evidence the government relied on for its explosive claim was an excerpt from an innocuous three-year-old text exchange (attached as Exhibit 3) sent in Russia between Ms. Butina and DK, her longtime friend, assistant, and public relations man for The Right to Bear Arms gun rights group that she founded.

DK, who often drove Ms. Butina’s car and thus was listed on the insurance, took the car for its annual government-required inspection and insurance renewal, and upon completion, texted (according to government translators), “I don’t know what you owe me for this insurance they put me through the wringer.” Ms. Butina jokingly replied, “Sex. Thank you so much. I have nothing else at all. Not a nickel to my name.” DK responded: “Ugh . . . ( ”—that is, with a sad face emoticon.

Aside from the fact that Maria is friends with DK’s wife and child and treats DK like a brother, the reference to sex is clearly a joke.

We still haven’t seen the government response to this, but what Driscoll presents does support his claim this is a “sexist smear.”

But Driscoll’s dismissal of the other claim — that Butina disdained living with Erickson — is far less convincing.

[I]n response to her girlfriend’s own complaints about her boyfriend’s failure to call in three weeks (accompanied by an angry face emoji) that Maria responds that her own boyfriend (Mr. Erickson) has been “bugging the sh*t out of me with his mom” and that she has “a feeling that I am residing in a nursing home.” “Send a link to the dating app[,]”

Driscoll spins this as an attack on Erickson’s now late mother, but doesn’t address the central allegation that she likened living with her much older boyfriend to living in a nursing home. Nor that she started the exchange by saying “let’s go have some fun with guys!!!” because she was “Bored. So there.” Furthermore, Butina seemed concerned that her use of Tinder would become public because she logged in using Facebook.

Though he has been sharing schmaltzy videos of Butina and Erickson with ABC, Driscoll also doesn’t address the fact that as early as May, Butina was proffering to flip on Erickson in fraud charges in South Dakota, which would have the effect of putting her in a position to negotiate permanent visa status independent of him, while limiting her own legal exposure.

A student visa or tourist one?

One key distinction between Manafort and Butina stems from the fact that she’s not a citizen.

The government’s detention motion also notes that Butina “use[d] deceit in a visa application.” They describe her attendance at American University as her cover, one she chose after rejecting carrying out the operation on tourist visas.

Butina chose a student visa from a range of options for her ultimate application, but not before a lengthy discussion of the risks associated with traveling to the United States repeatedly on a tourist visa. The FBI has discovered text messages and emails between U.S. Person 1 and Butina in which Butina would routinely ask U.S. Person 1 to help complete her academic assignments, by editing papers and answering exam questions. In other words, although she attended classes and completed coursework with outside help, attending American University was Butina’s cover while she continued to work on behalf of the Russian Official.

The government also notes that Butina claimed she was no longer employed by Torshin on her visa application. It points to her visa fraud as additional support that she did not intend to register as required by the law.

Butina entered the United States with the express purpose of working as part of a covert Russian influence campaign and did not disclose that fact—not on her visa application and not to the Attorney General.

Driscoll offers a narrow (and to my mind, unconvincing) defense, arguing the government hasn’t shown proof she lied on her form, when the claim is, instead, that intercepts show she applied for a student visa over a tourist visa because of the immigration advantages it offers.

[T]he government has also failed to provide any evidence to support its claim that Maria affirmatively lied on her application for a student visa should give this Court pause.

To be clear: this doesn’t mean Americans can’t be charged under section 951. In June, for example, DOJ charged Ron Rockwell Hansen under section 951 for spying for China.

But because Butina had to find a way to get and stay in the US, she had to game out the best way to do so, and that adds to the evidence that her entire purpose for being in the US is to push Russian policies. That is, it may be easier to charge a foreigner under section 951 because it often involves lying on visa forms.

Ongoing ties with Russian intelligence

Finally, there are ties with spooks.

The government alleges that Butina had ongoing ties with the Russian intelligence agencies, including a private meal with a suspected Russian intelligence operator, Oleg Zhiganov (whom Driscoll identified, to the government’s displeasure, to Politico).

FBI surveillance observed Butina in the company of a Russian diplomat in the weeks leading up to that official’s departure from the United States in March 2018. That Russian diplomat, with whom Butina was sharing a private meal, was suspected by the United States Government of being a Russian intelligence officer.

The government also cites from pointed to a conversation where Torshin likened Butina to Anna Chapman (see below) and argued that showed that Torshin treated her a covert spy. The government further points to a document suggesting she considered a job with FSB (though remains murky about other evidence that supports the claim).

Another document uncovered during the execution of a search warrant contained a hand-written note, entitled “Maria’s ‘Russian Patriots In-Waiting’ Organization,” and asking “How to respond to FSB offer of employment?” Based on this and other evidence, the FBI believes that the defendant was likely in contact with the FSB throughout her stay in the United States.

That said, the government also alleges that Manafort has had ongoing ties with Russian intelligence, in the form of Konstantin Kiliminik. So it’s not like ties to intelligence officers by itself merits a section 951 charge.

Recruiting assets

I suspect a key feature that may distinguish Butina from Manafort is that she had two Americans, Erickson and O’Neill, working with her. There’s even the allegation that she was seeking out time with JD Gordon in the lead-up to the election, suggesting she may have been recruiting assets within the new administration, an action akin to a formal spook. That is, she seems to have been recruiting agents.

That’s different from Manafort, employing a bunch of lobbyists (even while hiding some aspects of those engagements), because Manafort was hiring established professionals (or former European government officials).

I guess one question I have is whether the awareness of the recruitment targets is different.

Flight risk

While it matters little for the distinction between FARA and section 951, Driscoll suggests the fact that Butina hasn’t fled yet — notably did not in response to a report on her work — is proof she’s not an agent.

First, in February, 2017, the Daily Beast published an article about Maria, her connection to Aleksandr Torshin, her love of guns, and her activities in the United States, essentially alleging that her purpose in the United States might be to “infiltrate” American conservative political groups.13 If the government’s fanciful theory were correct, almost 18 month ago, Maria Butina was exposed, her handler identified, and her purpose in the United States published on the internet. She did not flee, visit the Russian Embassy, or make any effort to change her status as a student.

Curiously, he doesn’t address an intercept excerpted in the government’s detention motion, suggesting that in March 2017 there was an order against arresting her.

Specifically, in March 2017, after a series of media articles were published about Butina, the following conversation ensued:

Russian Official: Good morning! How are you faring there in the rays of the new fame?[] Are your admirers asking for your autographs yet? You have upstaged Anna Chapman. She poses with toy pistols, while you are being published with real ones. There are a hell of a lot of rumors circulating here about me too! Very funny!

[snip]

Butina: It’s the other thing that is important: evidently, there is an Order not to touch us. I believe it is a good sign.

Russian Official: For now – yes, but should things shift, then we are guaranteed a spot on the list of ‘agents of influence.” . . .

But as I noted, Butina’s flight risk would remain the same regardless of whether she had been charged with FARA or section 951.

Why Maria and not Manafort (yet)?

All of which raises a series of questions about what might distinguish Butina from Manafort:

  • How important is citizenship in this? And would dual citizenship — dual Russian Federation and US — change that? The government’s reliance on Butina’s alleged visa fraud would (and in other 951 cases has) have important repercussions for any subjects of the investigation who lied but have since obtained US citizenship.
  • Does who is paying for a person’s defense matter? Driscoll won’t say who is paying his bills, but neither do we know who is funding Manafort’s (thus far) much more expensive defense. In similar cases (such as Evgeny Buryakov, one of the spies who recruited Carter Page), the government filed for a Curcio hearing to make sure a person’s lawyer wasn’t representing the interests of the people paying his bills rather than the defendant, but in so doing proved that Buryakov was not a government agent. If a close Putin ally is paying for Manafort’s defense, does that change the calculus of who he’s working for?
  • At what point would obtaining useful information on political process in the US count as collecting intelligence? Manafort knows US politics better than almost anyone — he doesn’t need to recruit a source to learn that. Butina did. Does recruiting Erickson to learn about US politics amount to collecting intelligence?
  • Is beefed up FARA enforcement the proper tool to combat foreign influence operations, or is section 951, absent more covert operations, the way to go after foreign nationals engaging in influence operations?
  • Given how these two crimes might bleed into each other, are prosecutors threatening charges under section 951 to get pleas under FARA?
  • All this analysis is based off stuff Manafort did years ago, going back over a decade. It doesn’t address the stuff he is suspected of doing in during the 2016. For example, if Manafort was reporting back on an active Presidential campaign to Oleg Deripaska via suspected Russian intelligence agent Konstantin Kilimnik, is that a FARA violation, or a section 951 one? He got charged under FARA for his historic work. But I’m not sure his election-related work doesn’t pass the bar for a section 951 charge.

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