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How to Charge Americans in Conspiracies with Russian Spies?

As I laid out a few weeks ago, 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. 

In general, Jack Goldsmith and I have long agreed about the problems with charging nation-state spies in the United States. So I read with great interest his post laying out “Uncomfortable Questions in the Wake of Russia Indictment 2.0 and Trump’s Press Conference With Putin.” Among other larger normative points, Goldsmith asks two questions. First, does indicting 12 GRU officers in the US expose our own nation-state hackers to be criminally prosecuted in other countries?

This is not a claim about the relative moral merits of the two countries’ cyber intrusions; it is simply a claim that each side unequivocally breaks the laws of the other in its cyber-espionage activities.

How will the United States respond when Russia and China and Iran start naming and indicting U.S. officials?  Maybe the United States thinks its concealment techniques are so good that the type of detailed attribution it made against the Russians is infeasible.  (The Shadow Brokers revealed the identities of specific NSA operators, so even if the National Security Agency is great at concealment as a matter of tradecraft that is no protection against an insider threat.)  Maybe Russia and China and Iran won’t bother indicting U.S. officials unless and until the indictments actually materialize into a trial, which they likely never will.  But what is the answer in principle?  And what is the U.S. policy (if any) that is being communicated to military and civilian operators who face this threat?  What is the U.S. government response to former NSA official Jake Williams, who worked in Tailored Access Operations and who presumably spoke for many others at NSA when he said that “charging military/gov hackers is dumb and WILL eventually hurt the US”?

And, how would any focus on WikiLeaks expose journalists in the United States to risks of prosecution themselves.

There is a lot of anger against WikiLeaks and a lot of support for indicting Julian Assange and others related to WikiLeaks for their part in publishing the information stolen by the Russians.  If Mueller goes in this direction, he will need to be very careful not to indict Assange for something U.S. journalists do every day.  U.S. newspapers publish information stolen via digital means all the time.  They also openly solicit such information through SecureDrop portals.  Some will say that Assange and others at WikiLeaks can be prosecuted without threatening “real journalists” by charging a conspiracy to steal and share stolen information. I am not at all sure such an indictment wouldn’t apply to many American journalists who actively aid leakers of classified information.

I hope to come back to the second point. As a journalist who had a working relationship with someone she came to believe had a role in the attack, I have thought about and discussed the topic with most, if not all, the lawyers I consulted on my way to sitting down with the FBI.

For the moment, though, I want to focus on Goldsmith’s first point, one I’ve made in the past repeatedly. If we start indicting uniformed military intelligence officers — or even contractors, like the trolls at Internet Research Agency might be deemed — do we put the freedom of movement of people like Jake Williams at risk? Normally, I’d absolutely agree with Goldsmith and Williams.

But as someone who has already written extensively about the ConFraudUs backbone that Robert Mueller has built into his cases, I want to argue this is an exception.

As I’ve noted previously, while Rod Rosenstein emphasized that the Internet Research Agency indictment included no allegations that Americans knowingly conspired with Russians, it nevertheless did describe three Americans whose activities in response to being contacted by Russian trolls remain inconclusive.

Rod Rosenstein was quite clear: “There is no allegation in the indictment that any American was a knowing participant in the alleged unlawful activity.” That said, there are three (presumed) Americans who, both the indictment and subsequent reporting make clear, are treated differently in the indictment than all the other Americans cited as innocent people duped by Russians: Campaign Official 1, Campaign Official 2, and Campaign Official 3. We know, from CNN’s coverage of Harry Miller’s role in building a cage to be used in a fake “jailed Hillary” stunt, that at least some other people described in the indictment were interviewed — in his case, for six hours! — by the FBI. But no one else is named using the convention to indicate those not indicted but perhaps more involved in the operation. Furthermore, the indictment doesn’t actually describe what action (if any) these three Trump campaign officials took after being contacted by trolls emailing under false names.

On approximately the same day, Defendants and their co-conspirators used the email address of a false U.S. persona, [email protected], to send an email to Campaign Official 1 at that donaldtrump.com email account, which read in part:

Hello [Campaign Official 1], [w]e are organizing a state-wide event in Florida on August, 20 to support Mr. Trump. Let us introduce ourselves first. “Being Patriotic” is a grassroots conservative online movement trying to unite people offline. . . . [W]e gained a huge lot of followers and decided to somehow help Mr. Trump get elected. You know, simple yelling on the Internet is not enough. There should be real action. We organized rallies in New York before. Now we’re focusing on purple states such as Florida.

The email also identified thirteen “confirmed locations” in Florida for the rallies and requested the campaign provide “assistance in each location.”

[snip]

Defendants and their co-conspirators used the false U.S. persona [email protected] account to send an email to Campaign Official 2 at that donaldtrump.com email account.

[snip]

On or about August 20, 2016, Defendants and their co-conspirators used the “Matt Skiber” Facebook account to contact Campaign Official 3.

Again, the DOJ convention of naming makes it clear these people have not been charged with anything. But we know from other Mueller indictments that those specifically named (which include the slew of Trump campaign officials named in the George Papadopoulos plea, KT McFarland and Jared Kushner in the Flynn plea, Kilimnik in the Van der Zwaan plea, and the various companies and foreign leaders that did Manafort’s bidding, including the Podesta Group and Mercury Public Affairs in his indictment) may be the next step in the investigation.

In the GRU indictment, non US person WikiLeaks is given the equivalent treatment.

On or about June 22, 2016, Organization I sent a private message to Guccifer 2.0 to “[s]end any new material [stolen from the DNC] here for us to review and it will have a much higher impact than what you are doing.” On or about July 6, 2016, Organization 1 added, “if you have anything hillary related we want it in the next tweo [sic] days prefable [sic] because the DNC [DemocraticNationalConvention] is approaching and she Will solidify bernie supporters behind her after.” The Conspirators responded,“0k . . . i see.” Organization I explained,“we think trump has only a 25% chance of winning against hillary . . . so conflict between bernie and hillary is interesting.”

But the activities of other American citizens — most notably Roger Stone and Donald Trump — are discussed obliquely, even if they’re not referred to using the standard of someone still under investigation. Here’s the Roger Stone passage.

On or aboutAugust 15,2016, the Conspirators,posing as Guccifer 2.0,wrote to a person who was in regular contact with senior members of the presidential campaign of Donald J. Trump, “thank u for writing back. . . do u find anyt[h]ing interesting in the docs i posted?” On or about August 17, 2016, the Conspirators added, “please tell me if i can help u anyhow . . . it would be a great pleasureto me.” On or about September 9, 2016,the Conspirators, again posing as Guccifer 2.0, referred to a stolen DCCC document posted online and asked the person, “what do u think of the info on the turnout model for the democrats entire presidential campaign.” The person responded,“[p]retty standard.”

The Trump one, of course, pertains to the response GRU hackers appear to have made when he asked for Russia to find Hillary’s emails on July 27.

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

Finally, there is yesterday’s Mariia Butina complaint, which charges her as an unregistered Russian spy and describes Aleksandr Torshin as her boss, but which also describes the extensive and seemingly willful cooperation with Paul Erickson and another American, as well as with the RNC and NRA. Here’s one of the Americans, for example, telling Butina that her Russian bosses should take the advice he had given her about which Americans she needed to meet.

If you were to sit down with your special friends and make a list of ALL the most important contacts you could find in America for a time when the political situation between the U.S. and Russia will change, you could NOT do better than the list that I just emailed you. NO one — certainly not the “official” Russian Federation public relations representative in New York — could build a better list.

[snip]

All that you friends need to know is that meetings with the names on MY list would not be possible without the unknown names in your “business card” notebook. Keep them focused on who you are NOW able to meet, NOT the people you have ALREADY met.

Particularly as someone whose communications (including, but not limited to, that text) stand a decent chance of being quoted in an indictment in the foreseeable future, let me be very clear: none of these people have been accused of any wrong-doing.

But they do suggest a universe of people who have attracted investigative scrutiny, both by Mueller and by NSD, as willing co-conspirators with Russian spies.

Granted, there are three different kinds of Russian spies included in these three documents:

  • Uniformed military intelligence officers working from Moscow
  • Civilian employees who might be considered intelligence contractors working from St. Petersburg (though with three reconnaissance trips to the US included)
  • Butina and Torshin, both of whom probably committed visa fraud to engage as unregistered spies in the US

We have a specific crime for the latter (and, probably, the reconnaissance trips to the US by IRA employees), and if any of the US persons and entities in Butina’s indictment are deemed to have willingly joined her conspiracy, they might easily be charged as well. Eventually, I’m certain, Mueller will move to start naming Americans (besides Paul Manafort and Rick Gates) in conspiracy indictments, including ones involving Russian spies operating from Russia (like Konstantin Kilimnik). It seems necessary to include the Russians in some charging documents, because otherwise you’ll never be able to lay out the willful participation of everyone, Russian and American, in the charging documents naming the Americans.

So while I generally agree with Goldsmith and Williams, this case, where we’re clearly discussing a conspiracy between Russian spies — operating both from the US and from Russia (and other countries), wearing uniforms and civilian clothing –and Americans, it seems important to include them in charging documents somewhere.

The Russian Hack

As I laid out last week, 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. 

Mueller’s team just announced (and announced the transfer, as I predicted) of the Russian hack indictment, naming 12 GRU officers for the hack of the Hillary campaign, the DNC, and the DCCC. This will be a working thread.

Rod Rosenstein, as he did with the Internet Research Agency, made clear there are no Americans named in this indictment (and that those who interacted with Guccifer 2.0 and DC Leaks did not know they were interacting with Russians). That said, here are some of the interesting nods in it.

Other known conspirators

The indictment names 12 officers — and (as conspiracy cases often do) — persons known and unknown to the Grand Jury.

Hillary’s campaign targeted more aggressively than previously reported

This is a detail I’ve known for quite some time: Hillary’s campaign actually faced far more persistent hacking threats than previously known. Of absolutely critical importance, the indictment makes it clear that GRU hackers spear-phished Hillary’s personal office on July 27, after Donald Trump asked Russia to find her emails.

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

I know a key witness in that part of the hack has been waiting to share his story (he’s quite happy this is finally out), so expect far more details on the targeting of the Hillary campaign itself, rather than just the DNC and DCCC, in coming days.

Wikileaks

The indictment doesn’t name Wikileaks, but alleges that Guccifer 2.0 released additional stolen documents through a website maintained by “Organization 1.” There’s an entire section on communications between Guccifer 2.0 and Wikileaks (starting on page 17). Among other things it quotes Wikileaks as saying on July 6,

if you have anything hillary related we want it in the next tweo [sic] days prefabl [sic] because the DNC [Democratic National Convention] is approaching and she will solidify bernie supporters behind her after.

This makes it clear that WikiLeaks was not only working directly with Guccifer 2.0, but doing so in ways that would antagonize Bernie-supporting progressives.

Cryptocurrency

The computer infrastructure (including computers in the US) here was paid for by cryptocurrency, not via payments laundered through the embassy (one of several claims about funding made in the Steele dossier).

May through June 2016

The indictment names Ivan Sergeyovich Yermakov as the person who hacked into the DNC email server and stole the emails released via WikiLeaks. This hack date is critical to the timing of the narrative. The emails exfiltrated and provided to Wikileaks were stolen from May 25 through June 1.

Note, too, the indictment says hackers remained in the DNC computers through June.

Servers

The hackers used a server in AZ but then ran that through a server “overseas.” The hackers leased a DCCC computer in Illinois. The use of infrastructure within the US suggests much of the hot air around transfer times — one of the key attempts to debunk the hack — is just that, hot air.

Targeted information

The indictment gives the search terms for some of the targeted information. For example, on April 15, 2016, the conspirators searched for Hillary, Cruz, and Trump, as well as “Benghazi investigations.”

It describes a search on a server in Moscow for some of the terms used in the original Guccifer 2.0 post, including “some hundred sheets,” “illuminati,” “think twice about” “company’s competence” (referring to CrowdStrike).

Crowdstrike

The indictment describes Crowdstrike’s efforts to oust the hackers, but notes that a Linux based version of X-Agent remained on DNC’s network until October 2016.

Analytics

I have been saying forever that the easiest way to steal the election would be to steal Hillary’s analytics. The indictment revals that,

In or around September 2016, the Conspirators also successfully gained access to DNC computers hosted on a third-party cloud-computing service. These computers contained test applications related to the DNC’s analytics. After conducting reconnaissance, the Conspirators gathered data by creating backups, or “snapshots,” of the DNC’s cloud-based systems using the cloud provider’s own technology.

The indictment is silent about what happened to this stolen analytics data.

Republicans

The indictment notes that DCLeaks also released emails of Republicans that were hacked in 2015 (though I think it actually included some that were more recent than that).

Alice Donovan

Alice Donovan pitched news articles to various outlets. It was also the name used for DC Leaks’ Facebook account. This name (and a few others in the indictment) connects the hack and leak with the wider disinformation campaign.

Requested Stolen Information

The indictment describes how a candidate for Congress asked for information. I think I know who this is, but need to check.

It describes Guccifer 2.0 providing documents to Aaron Nevins, which I have covered repeatedly.

And it describes a journalist who obtained Black Lives Matters documents. As his DMs make clear, this was then Breitbart and current Sputnik journalist Lee Stranahan.

Stranahan is the journalist who helped Roger Stone write the column claiming that Guccifer 2.0 was an American.

It describes Guccifer 2.0’s interactions with Roger Stone (see paragraph 44).

State and vendor servers

The language describing the efforts to hack state sites, starting on page 25, is very specific, down to the named GRU officer. It describes Kovalev stealing the information of 500,000 voters (this is probably from Illinois).

Note, the indictment describes Kovalev deleting information in response to an FBI alert on the hacks of the state server. It doesn’t say whether he did so in response to public reporting on it.

Timeline

February 1, 2016: gfade147 0.026043 bitcoin transaction

March 2016: Conspirators hack email accounts of volunteers and employees of Hillary campaign, including John Podesta

March 2016: Yermakov spearphishes two accounts that would be leaked to DC Leaks

March 14, 2016 through April 28, 2016: Conspirators use same pool of bitcoin to purchase VPN and lease server in Malaysia

March 15, 2016: Yermakov runs technical query for DNC IP configurations and searches for open source info on DNC network, Dem Party, and Hillary

March 19, 2016: Lukashev spearphish Podesta personal email using john356gh

March 21, 2016: Lukashev steals contents of Podesta’s email account, over 50,000 emails (he is named Victim 3 later in indictment)

March 25, 2016: Lukashev spearphishes Victims 1 (personal email) and 2 using john356gh; their emails later released on DCLeaks

March 28, 2016: Yermakov researched Victims 1 and 2 on social media

April 2016: Kozachek customizes X-Agent

April 2016: Conspirators hack into DCCC and DNC networks, plant X-Agent malware

April 2016: Conspirators plan release of materials stolen from Clinton Campaign, DCCC, and DNC

April 6, 2016: Conspirators create email for fake Clinton Campaign team member to spearphish Clinton campaign; DCCC Employee 1 clicks spearphish link

April 7, 2016: Yermakov runs technical query for DCCC’s internet protocol configurations

April 12, 2016: Conspirators use stolen credentials of DCCC employee to access network; Victim 4 DCCC email victimized

April 14, 2016: Conspirators use X-Agent keylog and screenshot functions to surveil DCCC Employee 1

April 15, 2016: Conspirators search hacked DCCC computer for “hillary,” “cruz,” “trump” and copied “Benghazi investigations” folder

April 15, 2016: Victim 5 DCCC email victimized

April 18, 2016: Conspirators hack into DNC through DCCC using credentials of DCCC employee with access to DNC server; Victim 6 DCCC email victimized

April 19, 2016: Kozachek, Yershov, and co-conspirators remotely configure middle server

April 19, 2016: Conspirators register dcleaks using operational email [email protected]

April 20, 2016: Conspirators direct X-Agent malware on DCCC computers to connect to middle server

April 22, 2016: Conspirators use X-Agent keylog and screenshot function to surveil DCCC Employee 2

April 22, 2016: Conspirators compress oppo research for exfil to server in Illinois

April 26, 2016: George Papadopolous learns Russians are offering election assistance in the form of leaked emails

April 28, 2016: Conspirators use bitcoin associated with Guccifer 2.0 VPN to lease Malaysian server hosting dcleaks.com

April 28, 2016: Conspirators test IL server

May 2016: Yermakov hacks DNC server

May 10, 2016: Victim 7 DNC email victimized

May 13, 2016: Conspirators delete logs from DNC computer

May 25 through June 1, 2016: Conspirators hack DNC Microsoft Exchange Server; Yermakov researches PowerShell commands related to accessing it

May 30, 2016: Malyshev upgrades the AMS (AZ) server, which receives updates from 13 DCCC and DNC computers

May 31, 2016: Yermakov researches Crowdstrike and X-Agent and X-Tunnel malware

June 2016: Conspirators staged and released tens of thousands of stolen emails and documents

June 1, 2016: Conspirators attempt to delete presence on DCCC using CCleaner

June 2, 2016: Victim 2 personal victimized

June 8, 2016: Conspirators launch dcleaks.com, dcleaks Facebook account using Alive Donovan, Jason Scott, and Richard Gingrey IDs, and @dcleaks_ Twitter account, using same computer used for other

June 9, 2016: Don Jr, Paul Manafort, Jared Kushner have meeting expecting dirt from Russians, including Aras Agalarov employee Ike Kaveladze

June 10, 2016: Ike Kaveladze has calls with Russia and NY while still in NYC

June 14, 2016: Conspirators register actblues and redirect DCCC website to actblues

June 14, 2016: WaPo (before noon ET) and Crowdstrike announces DNC hack

June 15, 2016, between 4:19PM and 4:56 PM Moscow Standard Time (9:19 and 9:56 AM ET): Conspirators log into Moscow-based sever and search for words that would end up in first Guccifer 2.0 post, including “some hundred sheets,” “illuminati,” “think twice about company’s competence,” “worldwide known”

June 15, 2016, 7:02PM MST (12:02PM ET): Guccifer 2.0 posts first post

June 15 adn 16, 2016: Ike Kaveladze places roaming calls from Russia, the only ones he places during the extended trip

June 20, 2016: Conspirators delete logs from AMS panel, including login history, attempt to reaccess DCCC using stolen credentials

June 22, 2016: Wikileaks sends a private message to Guccifer 2.0 to “send any new material here for us to review and it will have a much higher impact than what you are doing.”

June 27, 2016: Conspirators contact US reporter, send report password to access nonpublic portion of dcleaks

Late June, 2016: Failed attempts to transfer data to Wikileaks

July, 2016: Kovalev hacks into IL State Board of Elections and steals information on 500,000 voters

July 6, 2016: Conspirators use VPN to log into Guccifer 2.0 account

July 6, 2016: Wikileaks writes Guccifer 2.0 adding, “if you have anything hillary related we want it in the next tweo [sic] days prefabl [sic] because the DNC [Democratic National Convention] is approaching and she will solidify bernie supporters behind her after”

July 6, 2016: Victim 8 personal email victimized

July 14, 2016: Conspirators send WikiLeaks an email with attachment titled wk dnc link1.txt.gpg providing instructions on how to access online archive of stolen DNC documents

July 18, 2016: WikiLeaks confirms it has “the 1Gb or so archive” and would make a release of stolen documents “this week”

July 22, 2016: WikiLeaks releases first dump of 20,000 emails

July 27, 2016: Trump asks Russia for Hillary emails

July 27, 2016: After hours, conspirators attempt to spearphish email accounts at a domain hosted by third party provider and used by Hillary’s personal office, as well as 76 email addresses at Clinton Campaign

August 2016: Kovalev hacks into VR systems

August 15, 2016: Conspirators receive request for stolen documents from candidate for US congress

August 15, 2016: First Guccifer 2.0 exchange with Roger Stone noted

August 22, 2016: Conspirators transfer 2.5 GB of stolen DCCC data to registered FL state lobbyist Aaron Nevins

August 22, 2016: Conspirators send Lee Stranahan Black Lives Matter document

September 2016: Conspirators access DNC computers hosted on cloud service, creating backups of analytics applications

October 2016: Linux version of X-Agent remains on DNC network

October 7, 2016: WikiLeaks releases first set of Podesta emails

October 28, 2016: Kovalev visits counties in GA, IA, and FL to identify vulnerabilities

November 2016: Kovalev uses VR Systems email address to phish FL officials

January 12, 2017: Conspirators falsely claim the intrusions and release of stolen documents have “totally no relation to the Russian government”

Peter Strzok’s Out of Scope Polygraph

I watch shit-show hearings so you don’t need to.

And yesterday’s HJC hearing with Rod Rosenstein and Chris Wray was one of the shitshowiest I’ve sat through. I hope to do a post mapping out the cynical theater the Republicans put on yesterday, and how they succeeded in manipulating the press. But first, I want to point to the one really good point Doug Collins sort of made at the hearing.

In January 2016, Peter Strzok had an out of scope polygraph. And yet, by all appearances, he remained working on a sensitive leak investigation, then moved onto an investigation into one of the most damaging spying operations targeting the United States since the Cold War.

Let’s go back to something I asked, you and I had a conversation about a few months ago. Mr. Strzok’s issue I asked at the time did he have a security clearance. You said you would check. Now it appears that security clearance has been revoked. The concern I have again is again, process, inside the Department of Justice on what happens when you have someone of his caliber, counterintelligence level, this is not a new recruit, this is somebody who’s been around has had sensitive information. And on January 13, 2016, an individual from FBI’s Washington Field Office emailed Mr. Strzok and other employees that their polygraphs were, I think it was, “out of scope.” I asked you about that. And asked you if he had been polygraphed. You didn’t know at the time. It said the polygraph raised flags. Now, my question about this would be you didn’t know about the polygraph at the time. We just assume now that it’s out there, you do. Would the topic of extramarital affair have come up in that polygraph or possibility of extramarital affair come up to to put it out of scope?

[snip]

Do you think it’s interesting you would continue to have someone in an investigation of such magnitude and sensitivity who basically had a failed polygraph or an out of scope polygraph test in which they had to then go back and re-answer or complete sensitive [sic] compartmentalized information request on this. Would they stay in that investigation? And if so were they treated differently because of his position or who he was?

[snip]

Does it not strike you as strange, Mr. Wray, and I was not going here but now you’ve led me here. Does it not strike you as strange  that someone who has had an issue with a polygraph, during the investigation in which you have, in which sensitive information were coming about, in which we’ve now seen the text and other things, what would be–could they just flunk a polygraph and you just keep them on, if they could flunk questions, you keep them on sensitive information simply because that — not speaking of Mr. Strzok here, I’m talking overall policy. Is your policy just to keep people around that lie?

I get that polygraphs come close to junk science and don’t measure what they claim to measure. I get that Collins is just trying to discredit the Mueller investigation.

But if you’re going to require that cleared employees — throughout the federal government — take and pass polygraphs, shouldn’t you act when someone has an adverse polygraph? Especially if you’re the FBI, the agency that investigates everyone else’s clearance?

It turns out, FBI already knows it had a problem on this front. In March of this year, DOJ’s Inspector General completed an investigation into how the FBI responded to adverse polygraphs. Based on a review of what happened with problematic polygraph results from 2014 to 2016 — so covering the period in which Strzok’s took place — DOJ IG found that the FBI was not following protocols. Two of its findings pertain directly to what appears to have happened with Strzok. First, the FBI wasn’t always pulling people off SCI information after someone had failed a poly.

Second, we found that the FBI did not always comply with its own policy governing employee access to Sensitive Compartmented Information, classified national intelligence information concerning or derived from sensitive intelligence sources, methods, or analytical processes, which is to be handled exclusively within formal access control systems established by the Director of National Intelligence. The FBI’s policy generally prohibits access to Sensitive Compartmented Information for FBI employees who have not passed a polygraph examination within a specified period. We identified instances in which employees unable to pass multiple polygraph examinations were allowed to retain access to sensitive information, systems, and spaces for extended periods of time without required risk assessments — potentially posing a security risk to the FBI.

While it appears Strzok had just one problematic polygraph, not multiple ones, this appears to be what Collins is talking about: someone not being pulled off sensitive cases when a polygraph triggers a warning, presumably because the FBI considered them too valuable to deal with according to protocol.

In addition, when the FBI investigated failed polygraph, the IG found, the FBI’s investigators weren’t always accessing all materials available to them.

Third, we found that investigations of unresolved polygraph results did not always draw on all sources of FBI information. We identified communication issues between the FBI’s Analysis and Investigations Unit (AIU), which investigates and makes adjudicative recommendations on employee polygraph results, and other FBI personnel security stakeholders. We also had concerns about the AIU’s thoroughness in leveraging all relevant FBI information during its investigations. These issues prevent the AIU from consistently producing thorough and efficient investigations.

I’m not sure whether this would include reviewing an employee’s FBI communications or not, but it might (and probably should). If FBI had reviewed Strzok’s FBI texts in January 2016, they would have discovered he was conducting an undisclosed extramarital affair, the probable explanation of any finding of deception on his polygraph. They’d also have discovered that Strzok agreed with most of the country about what a buffoon Donald Trump was — which in his case would be problematic given that he was carrying out an investigation into Hillary Clinton.

In September, Michael Horowitz informed Christopher Wray of the problem, as he had immediately informed Wray of Strzok’s problematic texts.

Now, that Strzok had a bad polygraph may create problems for any affidavits that Strzok was an affiant for. If he was specifically asked about extramarital affairs in his interview, and lied about it, that lie will be used to challenge any investigative steps that he swore to. While Strzok’s not known to have been the affiant for key steps (such as the Paul Manafort warrants or the Carter Page FISA order), this could create problems for Mueller elsewhere (a point that Wray and Rosenstein admitted elsewhere).

But there’s the counterpart of this. Pulling Strzok off the Hillary investigation in January 2016 would have identified the source of his apparent deception, and led to minor disciplinary action, after which he would have been back on the beat hunting out foreign spies. Instead, his involvement in these two cases has unnecessarily discredited both of them, even though his investigative actions appear to have been defensible in both cases.

In Trumpian Fashion, Paul Manafort Wins by Losing on Challenge to Mueller

Remember how Republicans were gleeful over the ass-kicking T.S. Ellis gave Mueller’s team arguing over the scope of the Special Counsel’s authority back in May? As predicted by close EDVA watchers, Ellis ruled yesterday against Paul Manafort, finding that the tax fraud investigation into Manafort was a logical part of understanding whether Trump’s campaign colluded with Russia to win the election.

The opinion is actually a political shitshow, though, which guarantees both a Manafort appeal (if he continues his valiant effort to win a future Trump pardon using stall tactics, anyway) and Congressional gamesmanship using it.

Ultimately, Ellis rules (as Amy Berman Jackson already had) that Mueller was authorized to investigate Manafort, in this case for tax fraud, based on his primary authority to investigate the ties between Trump’s campaign and Russia. Ellis makes the case that this investigation falls under Mueller’s primary grant perhaps even more plainly than ABJ did.

Given that the Special Counsel was authorized to investigate and to prosecute this matter pursuant to ¶ (b)(i) of the May 17 Appointment Order and the August 2 Scope Memorandum, that conclusion is dispositive and defendant’s arguments with respect to ¶ (b)(ii) of the May 17 Appointment Order need not be addressed.

[snip]

To begin with, defendant concedes that ¶ (b)(i) is a valid grant of jurisdiction. Specifically, defendant acknowledges that the Acting Attorney General acted consistently with the Special Counsel regulations when the Acting Attorney General authorized the Special Counsel to investigate the matters included in ¶ (b)(i) of the May 17 Appointment Order, namely “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” May 17 Appointment Order ¶ (b)(i). Thus, the only issue is whether the Special Counsel’s investigation and prosecution of the matters contained in the Superseding Indictment falls within the valid grant of jurisdiction contained in ¶ b(i) of the May 17 Appointment Order.

It does; the Special Counsel’s investigation of defendant falls squarely within the jurisdiction outlined in ¶ b(i) of the May 17 Appointment Order, and because ¶ b(i) was an appropriate grant of authority, there is no basis for dismissal of the Superseding Indictment on this ground. Specifically, in the May 17 Appointment Order, the Acting Attorney General authorized the Special Counsel to investigate, among other things, “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump … .” May 17 Appointment Order ¶ (b)(i). It is undisputed that defendant is an “individual[] associated with the campaign of President Donald Trump[;]” indeed, defendant served as the chairman of President Donald Trump’s campaign from March 2016 until August 2016. Moreover, the Special Counsel’s investigation focused on potential links between defendant and the Russian government. In particular, the Special Counsel investigated defendant’s political consulting work on behalf of, and receipt of substantial payments from, then-President Victor Yanukovych of the Ukraine and the Party of Regions, Yanukovych’s proRussian political party in the Ukraine. See Superseding Indictment ¶¶ 10-11. To be sure, history is replete with evidence of the existing and longstanding antagonism between the Ukraine and Russia. Indeed, armed conflict in the eastern Ukraine is still underway.19 Nonetheless, the fact that the Yanukovych was a strongly pro-Russian President warranted the investigation here. The fact that the Russian government did not make payments to defendant directly is not determinative because the text of the May 17 Appointment Order authorizes investigation of “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.”

This language is all Ellis needed to rule against Manafort’s challenge. His discussion of the alternate issues is welcome, but superfluous.

But along the way, Ellis engages in a bunch of often inaccurate blather which serves mostly to foment the kind of politicization he claims to despise.

About the only neutral thing he does in his long discussion of special counsels is to give Steven Calabresi the ass-kicking he deserved for an op-ed that Kellyanne Conway’s spouse George condemned for its “lack of rigor.”

Yet, even the current Special Counsel regulations are not entirely free from constitutional attack. Indeed, Professor Steven Calabresi has argued that the appointment of the Special Counsel may run afoul of the Appointments Clause of the Constitution because the Special Counsel is a principal, not an inferior officer, and therefore must be appointed by the President with the advice and consent of the Senate. See Steven G. Calabresi, Mueller’s Investigation Crosses the Legal Line, Wall Street J. (May 13, 2018) https://www.wsj.com/articles/muellersinvestigation-crosses-the-legal-line-1526233750; see also Steven G. Calabresi, Opinion on the Constitutionality of Robert Mueller’s Appointment (May 22, 2018) https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3183324. Defendant does not argue that the appointment of the Special Counsel violates the Appointments Clause of the Constitution, so that particular objection need not be addressed in detail here, but it is worth noting that such an objection would likely fail. The Special Counsel appears quite plainly to be an inferior officer. He is required to report to and is directed by the Deputy Attorney General.

But the rest of his long history of special counsels plays to the partisan assault on prosecutorial independence led by Republicans. For example, Ellis gets key distinctions about the current Special Counsel from past ones wrong, and even argues that this one, which meets bi-weekly with top DOJ officials and has provided a shit-ton of documents to Congress to review, is “in some ways less accountable than the independent counsel of the past,” in part because it gave annual progress reports to Congress.

He suggests that a Special Counsel’s hiring choices might inject bias into the investigation, echoing Trump’s inaccurate 13 Angry Democrats line.

The Special Counsel must also hire others to assist in the investigative process, and those applying to join the investigation may have their own biases and incentives to prosecute the target of the investigation, or their self-selection into the investigation may create an appearance of bias. See Akhil Amar, On Impeaching Presidents, 28 Hofstra L. Rev. 291, 296 (1999) (“An ad hoc independent counsel must build an organization from scratch, and those who volunteer may have an ax to grind, since the target is known in advance.”). In this case, many of the individuals working for the Special Counsel have donated to or worked for Democrats in the past, creating a public appearance of possible bias. See Alex Hosenball et al., Meet special counsel Robert Mueller’s prosecution team, ABC News (Mar. 17, 2018) https://abcnews.go.com/Politics/meet-special-counsel-robert-muellers-prosecutionteam/story?id=55219043. Similar accusations of bias were made against Kenneth Starr during the Whitewater investigation, with a number of Democrats criticizing the appointment of Kenneth Starr because of his connections to the Republican Party. See David Johnston, Appointment in Whitewater Turns into a Partisan Battle, N.Y. Times (Aug. 13, 1994) https://www.nytimes.com/1994/08/13/us/appointment-in-whitewater-turns-into-a-partisan-battle. html. Both cases highlight the fact that even the selection of the Special Counsel and his or her subordinates can provide grist for the media mill, heightening partisan tension and increasing the likelihood that substantial portions of the public will perceive work of the Special Counsel as partisan warfare.

He argues that it would be better to investigate election interference with a bipartisan commission than a Department of Justice made up of experienced professionals bound by certain guidelines and precedents, something that would look a lot like the Intelligence Committee reviews which exhibit varying degrees of dysfunction.

The Constitution’s system of checks and balances, reflected to some extent in the regulations at issue, are designed to ensure that no single individual or branch of government has plenary or absolute power. The appointment of special prosecutors has the potential to disrupt these checks and balances, and to inject a level of toxic partisanship into investigation of matters of public importance.27

27 A better mechanism for addressing concerns about election interference would be the creation of a bipartisan commission with subpoena power and the authority to investigate all issues related to alleged interference in the 2016 Presidential election. If crimes were uncovered during the course of the commission’s investigation, those crimes could be referred to appropriate existing authorities within the DOJ.

All that’s ridiculous enough. But perhaps the most alarming thing Ellis does is use the ex parte review he did of an unredacted copy of Rod Rosenstein’s August 2, 2017 memo to telegraphically confirm that Trump is named as a subject of investigation. He does that, I argue, by putting footnotes 14 and 15 right next to each other.

With respect to the defendant, the August 2 Scope Memorandum identified several allegations, including allegations that the defendant:

[c]ommitted a crime or crimes by colluding with Russian government officials with respect to the Russian government’s efforts to interfere with the 2016 election for President of the United States, in violation of United States law;

[c]ommitted a crime or crimes arising out of payments he received from the Ukrainian government before and during the tenure of President Viktor Yanukovych[.] Id. at 2.

The August 2 Scope Memorandum noted that these allegations against the defendant “were within the scope of [the Special Counsel’s] investigation at the time of [his] appointment and are within the scope of the [Appointment] Order.” Id. at 1. Several months later, on February 22, 2018, the Special Counsel charged defendant15 with, and a grand jury indicted defendant on (i) five counts of subscribing to false income tax returns, in violation of 26 U.S.C. § 7206(1) (Counts 1-5); (ii) four counts of failing to file reports of foreign bank accounts, in violation of 31 U.S.C. §§ 5314, 5322(a) (Counts 11-14); and (iii) nine counts bank fraud and conspiracy to commit bank fraud, in violation of 18 U.S.C. §§ 1344, 1349 (Counts 24-32).

14 Prior to the hearing, the Special Counsel submitted the August 2 Scope Memorandum in this record, albeit with significant redactions. In the course of the hearing on defendant’s motion to dismiss the Superseding Indictment, the Special Counsel was ordered to produce an un-redacted copy of the August 2 Scope Memorandum. The Special Counsel complied with this directive, and a review of the un-redacted memorandum confirms that the only portions pertinent to the issues in this case are those already available in this public record and excerpted above.

15 Given the investigation’s focus on President Trump’s campaign, even a blind person can see that the true target of the Special Counsel’s investigation is President Trump, not defendant, and that defendant’s prosecution is part of that larger plan. Specifically, the charges against defendant are intended to induce defendant to cooperate with the Special Counsel by providing evidence against the President or other members of the campaign. Although these kinds of high-pressure prosecutorial tactics are neither uncommon nor illegal, they are distasteful.

This passage states that everything pertinent to “the issues in this case” are public, which actually falls short of stating that none of the rest of them pertain to Manafort. Then, visually, the next line after describing the memo, Ellis states that “even a blind person can see that the true target of the Special Counsel’s investigation is President Trump.”

We are all blind to what’s behind those redactions, he is not, but even we can see, Ellis suggests, that Trump is the target. From that Ellis goes on to suggest that pressuring someone to flip is “distasteful,” which I hope gets quoted back at him liberally by people are are not the President’s former campaign manager.

I mean, it is true that we all knew that Trump’s obstruction was, by August 2, 2017, part of the investigation (and that since then his “collusion” has likely been added to Rosenstein’s memos). It is by no means a given that proof of “collusion” will go beyond the people, including Manafort, who may have orchestrated it. But Ellis puts the suggestion, visually at least, into the record for those of us who otherwise can’t see it, that “collusion” itself is about Trump.

All of which makes this legal opinion more about further embroiling political strife Ellis claims to dislike than about the law.

Roger Stone and ConFraudUs

CNN’s David Gelles has an instructive tweet this morning showing how the rate at which Trump tweets about the Mueller “witch hunt” is accelerating.

Assuming this includes this morning’s two “witch hunt” tweets, Trump is on pace to use the phrase 28 times by the end of the month, though I bet he’ll continue to accelerate the use of it in the week remaining in the month.

The Mueller investigation is, I suspect, coming to a head.

I don’t claim I know how it will turn out. The president has an enormous amount of power and his flunkies in Congress promise they’re about to end Rod Rosenstein’s bend-don’t-break defense by impeaching him (though Rosenstein and Chris Wray have just thrown more documents out to slow the Republicans). It’s certainly possible that Trump will make a last ditch effort to undercut the Mueller investigation and that effort will be competently executed and none of the secondary fall-back defenses Mueller has put into place will work. For now, though, the Trump team seems intent on a delay and discredit strategy, which won’t stave off any imminent steps.

So we shall see whether Trump succeeds in undercutting the investigation. I keep thinking, “that’s why they play the game,” but this is no game.

There are a number of reasons I think Mueller’s investigation is coming to a head. But consider one detail. I’ve long explained that Mueller seems to be building a series of Conspiracy to Defraud the United States indictments that will ultimately incorporate the entire Russian operation (and may integrate the Trumpsters’ international self-dealing as well). As Mueller’s team has itself pointed out, for heavily regulated areas like elections, ConFraudUs indictments don’t need to prove intent for the underlying crimes. They just need to prove,

(1) two or more persons formed an agreement to defraud the United States;

(2) [each] defendant knowingly participated in the conspiracy with the intent to defraud the United States; and

(3) at least one overt act was committed in furtherance of the common scheme.

Let’s see how evidence Mueller has recently shown might apply in the case of Roger Stone, Trump’s lifelong political advisor. We already knew that Stone had communications that he did not immediately disclose with Guccifer 2.0 and Wikileaks. With both, Stone has contributed to and reinforced claims the entities were not Russian operations, though his conversion about the source of the Hillary emails was pretty sudden and curiously timed.

Now we know that in May, Stone had lunch with someone calling himself Henry Greenberg offering dirt on Hillary. His explanation — based only on the texts that Michael Caputo was asked about in a Mueller interview — is not that he didn’t entertain the offer, but that he didn’t take Greenberg up on the offer as made in late May because Greenberg was asking for big money.

Both clearly recognized Greenberg as a Russian, therefore a foreigner offering something of value during an election.

Bizarrely, in trying to rebut the import of this exchange publicly, Caputo and Stone are doing nothing more than working the public refs, claiming to assume this was an FBI sting. Mueller knows whether it was an FBI sting, and there’s virtually no way he’d be asking questions about it if it were (particularly if Stone really didn’t take the bait). In short, Stone has no justification for this he’s willing to offer publicly; instead, he’s just adopting the SpyGate narrative in an attempt to discredit the investigation. And that’s assuming there were no follow-ups or other damning texts that didn’t involve someone willing to leak them to the press.

And all that happened before Peter Smith came on the scene, someone who, unlike Donald Trump, was willing to spend money for such things, an operation Stone is suspected of being involved in but which he studiously avoids mentioning when trying to explain himself. Smith did obtain emails from people Matt Tait advised him might be part of a Russian operation, and when he couldn’t validate them, sent them on to Wikileaks.

Which is to say Stone repeatedly entertained offers from foreigners illegally offering dirt that would benefit the Trump campaign — Greenberg, Guccifer 2.0, possibly Peter Smith’s Dark Web hackers. He may even have exhibited a belief that Australian Julian Assange had and could release the latter dirt, possibly with the knowledge they came from Russians.

So we’ve got Stone meeting with other people, repeatedly agreeing to bypass US election law to obtain a benefit for Trump, evidence (notwithstanding Stone’s post-hoc attempts to deny a Russian connection with Guccifer 2.0 and Wikileaks) that Stone had the intent of obtaining that benefit, and tons of overt acts committed in furtherance of the scheme.

And all that’s without leaning on the the other stuff Mueller found on Stone’s phone, which Stone is also trying to explain away by public conspiracies (in this case that the phone content was obtained with a FISA order rather than with a probable cause warrant obtained on March 9).

This is just one of the people Mueller has publicly focused on in recent days. We could lay out similar arguments for Michael Cohen, Paul Manafort, and Brad Parscale, at a minimum. Mueller had — and acted on — probable cause warrants covering five AT&T phones in March, all of which probably had close ties to Rick Gates. Assuming those targets are distributed proportionately with the US population, he’s likely to have obtained warrants for as many as 15 phones just in that go-around.

So if Roger Stone is any indication, the Mueller investigation may soon be moving into a new phase.

In Attempt to Learn How Much Mueller Knows about Roger Stone’s “Collusion,” Devin Nunes Blames FBI for Stone and Michael Caputo’s Perjury to HPSCI

On Thursday, in the wake of the release of the DOJ IG Report showing that Jim Comey hurt Hillary Clinton with his intervention after the end of the email server investigation, the Gang of Eight met with Rod Rosenstein and Christopher Wray to discuss the House Intelligence Committee demand for documents allegedly investigating FISA abuse.

On Thursday night, Rudy Giuliani (whose receipt of leaks from the NY FBI field office received no attention in the IG Report) appeared on Sean Hannity and argued that the Mueller investigation (which removed Strzok once his inappropriate texts were revealed) should be suspended immediately and instead investigated by those very same NY FBI agents.

Every FBI agent should demand that that man be fired and tomorrow Mueller should suspend his investigation and he should go see Rod Rosenstein who created him and the Deputy Attorney General and Attorney General Sessions who should now step up big time to save his Department should suspend that investigation.  Throw out all the people is that have been involved in the phony Trump investigation and bring in honest FBI agents from the New York office who I can trust implicitly and they should turn their attention to Comey, Strzok, Page.

[snip]

Who are we providing them to? People who have already concluded to frame Donald Trump, agents who started a phony Russia investigation. That’s the whole core of this. That’s why the investigation should be suspended. And I am talking for myself now, not the president. But I believe he would agree with this. A very serious investigation has to be done of the FBI agents at the very top by FBI agents who are honest in order to prosecute them…

Rosenstein and Jeff Sessions have a chance to redeem themselves and that chance comes about tomorrow. It doesn’t go beyond tomorrow. Tomorrow, Mueller should be suspended and honest people should be brought in, impartial people to investigate these people like Peter Strzok. Strzok should be in jail by the end of next week.

On Friday, in the wake of the Thursday Gang of Eight meeting, Paul Ryan, Devin Nunes, Trey Gowdy, and Bob Goodlatte had a meeting with Wray and Rosenstein to demand documents on their investigation into alleged FISA abuse.

Also on Friday, Roger Stone appeared on Laura Ingraham’s show to comment on the IG Report. He made no comment about the story he was seeding with the WaPo, spinning that the Russian he reached out to learn about dirt on Hillary Clinton, whom he didn’t mention when the House Intelligence Committee asked him about contacts with Russians, was actually an FBI spy. In its story this morning, the WaPo didn’t point out all the reasons why it’s almost certain that “Henry Greenberg” was not operating under the control of the FBI; as a result, the WaPo gave the informant story credibility it shouldn’t have.

Today, Devin Nunes went on Fox to report on the Friday meeting. In three segments (one, two, three), Maria Bartiromo treated the Friday meeting as breaking news. Nunes said that their subpoenas “will be complied with” or the House would take other measures. When Bartiromo asked Nunes specifically what he was looking for, he didn’t respond. Instead, he posed the quest this way.

How did you use our nation’s counterintelligence capabilities. These are capabilities used to track terrorists and other bad guys around the globe. How did you weaponize that against a political campaign, against the Trump campaign, where ultimately it ended up in Carter Page having a FISA warrant put against him which allowed the government to go in and grab all of his emails and phone calls. So that’s primarily what we’ve been investigating for many many months. I will tell you that Chairman Gowdy was very very clear with the Department of Justice and FBI and said that if there was any vectoring of any informants or spies or whatever you want to call them into the Trump campaign before the investigation began, we better know about it by Sunday, meaning today. He was very very clear about that. And as you probably know there’s breaking news this morning that now you have a couple Trump campaign people who are saying that they were, that they’ve amended their testimony before the House Intelligence Committee, they sent in both Friday night and this morning, amendments to their testimony saying that in fact they feel like somebody, they’re not claiming that it was the FBI, but someone ran informants or spies into them to try to get information and offer up Russian dirt to the Trump campaign. Now this would have been in May of 2016. Which is obviously months before this counterintelligence investigation was opened by the FBI into the Trump campaign.

[snip]

If I were them I would pick up the phone and let us know what this is about, this story that broke in the Washington Post, this morning, just hours ago. They probably ought to tell us whether or not they were involved in that or else they have a major major problem on their hands.

[snip]

We should have been told about this about eight months ago. In compliance with the subpoena that we issued last August.But for sure a couple months ago, when we began to ask, we asked questions about, we had a subpoena, and we wanted to figure out what they were doing before and af, right before and right after the opening of the counterintelligence investigation. So we asked for specific information and documents. As you know, that’s what we’ve been fighting over for the last couple months now. And on Friday night it culminated with us telling them because they have swore up and down that they have given us everything that’s pertinent to our investigation after the investigation was open. And they have claimed that there is nothing else that exists before that date. Now, this Washington Post story, I don’t know that they’re claiming for sure that this was an FBI spy or informant, you know, I have no idea whether it is or not, but it has all the makings of the looks of some type of spy or informant. And that would be a major problem because that is not something that has ever been brought to us, and it would be totally out of bounds.

In an appearance providing extensive details about past classified requests and meetings with DOJ (including the one on Friday), Nunes also accuses Rosenstein of leaking by telling the press that Nunes hasn’t read the documents they’ve been demanding but which DOJ has already turned over.

At midnight, just a week ago, the Department of Justice put out something on Republicans saying that we had not read documents that the Department of Justice had provided for us to read. Now, that is a major leak, of a classified meeting, that also happens to be false because they knew that we ran out of time and didn’t have time to actually read these documents, but they did that to embarrass the Speaker of the House and myself and Chairman Gowdy who were given access to those documents but not given time to read those documents. That came from the top of the Department of Justice. Why are those people still working at the Department of Justice. They are leaking.

[snip]

Here’s the bottom line. Mr. Rosenstein, the Deputy Attorney General, and Director Wray have to decide whether or not they want to be part of the cleanup crew or they want to be part of the cover-up crew.

Then Nunes ends by saying he will move towards impeaching Rosenstein and Wray this week, based off a claim that the FBI is withholding details about that contact with “Greenberg,” the one both Stone and Caputo lied to his own committee to cover up.

Nunes: There”s going to be hell to pay by Wednesday morning.

[snip]

This is going to go from myself and just a few committee chairmen to all the members of the House of Representatives who are going to begin to take action against the Department of Justice and FBI.

Bartiromo: Taking action meaning contempt of Congress?

Nunes: Well that’s just one of the options. That’s just one of many options. But I can tell you that it’s not gonna be pretty.

Bartiromo: Are you going to force the resignation of Rod Rosenstein?

Nunes: We can’t force the resignation, but we can hold in contempt, we can pass sense of Congress resolutions, we can impeach, and look, I think we’re getting close to there.

So let’s unpack what’s going on here, aside from a really well orchestrated campaign that has been in the works since January.

First, note how Nunes twists the meaning of counterintelligence here? When discussing why the FBI obtained a FISA order on Carter Page, whom FBI suspected was a willing Russian asset going back to 2013 and whom FBI had questioned the same month Trump added him to the campaign, as part of those ongoing concerns, Nunes suggests FISA orders are only used on terrorists and international bad guys, not people who’ve been suspected of being Russian assets for years. But later in the appearance, he treats the formal start of the counterintelligence investigation into Russians infiltrating Trump’s campaign — the counterintelligence investigation (he is now using counterintelligence in its traditional sense) — as if any investigation of Page or Manafort on their own right before that would be corrupt.

Then Nunes moves to suggest that a Russian contact that Mueller may have only discovered after he obtained a warrant for Stone’s phone on March 9 — a contact that both Caputo and Stone lied to the committee about — is something the FBI has been hiding, not Caputo and Stone.

In an appearance providing a slew of non-public information about a long series of contacts, Nunes accuses Rosenstein for once doing the same thing, with the important difference that Rosenstein was correcting the false claims that Nunes was presenting to the press.

And out of all that — out of Nunes’ willingness to blame the FBI for Stone and Caputo’s lies to his own committee — Nunes is going to bring an impeachment case against Rosenstein and Wray.

Obviously, there’s an easy way for Rosenstein and Wray to defuse this, in more of the bend don’t break approach they’ve been using with these extortionists. They could explain what I have surmised: that the materials about the contact with “Greenberg” that Stone and Caputo lied to him about actually came pursuant to a grand jury search warrant based on information Rick Gates provided in February and March. This is probably a grand jury search warrant (or one similar) that Paul Manafort already tried to, but failed, to get unsealed. As far as we know, Rosenstein and Wray haven’t provided any grand jury material to HPSCI.

Of course, providing the background to this question would require providing more details about what Mueller does and doesn’t know about Roger Stone’s efforts to conspire with Russians during the election.

That’s the hostage situation that Nunes is creating here: Impeachment or details about what Mueller knows of Roger Stone’s conspiracy with Russians to obtain dirt on Hillary Clinton.

Revisiting Trump’s Joint Defense Agreement

Betsy Woodruff has a story reminding us that Trump has a joint defense agreement with some of the other people caught up in Mueller’s probe.

The president’s personal lawyers have teamed up with attorneys for other individuals embroiled in special counsel Bob Mueller’s probe, multiple sources tell The Daily Beast. For a while, the president’s lawyers even had regular conference calls with other attorneys to discuss the Mueller investigation, according to one source familiar with the calls.

The arrangement is known as a joint defense agreement, and it allows the lawyers to share information—without violating attorney-client privilege. It’s a common strategy when multiple defendants are dealing with the same prosecutor on the same matter.

I say “reminding us,” because this is not news. When Mike Flynn flipped, the first notice came when he alerted this very same joint defense agreement he could no longer share information (as the story itself notes).

The story doesn’t even describe, generally, who is included in it, which might help observers understand the dynamics we’re watching. The closest hint of that is the observation that Paul Manafort might be going to jail on Friday.

This week is poised to be less-than-harmonious for at least one person in Mueller’s sights: Paul Manafort, who will appear in court on Friday for a hearing where a judge will decide whether or not to revoke his bail.

The article doesn’t even confirm that Manafort is part of the defense agreement. But Trump was bragging, back in January, that he had “decided that a key witness in the Russia probe, Paul Manafort, isn’t going to ‘flip’ and sell him out, friends and aides say.” That’s the kind of thing Trump might have assurance about if Manafort were part of a joint defense agreement, particularly if — as has subsequently been reported — John Dowd offered Manafort a pardon (through one of his lawyers, in the kind of discussion lawyers might assume were shielded by a joint defense agreement) last year.

The pardon discussion with Mr. Manafort’s attorney, Reginald J. Brown, came before his client was indicted in October on charges of money laundering and other financial crimes. Mr. Manafort, the former chairman of Mr. Trump’s presidential campaign, has pleaded not guilty and has told others he is not interested in a pardon because he believes he has done nothing wrong and the government overstepped its authority. Mr. Brown is no longer his lawyer.

Mind you, now we know that Mueller knows about such offers (because it’s one of the questions they posed to Trump in March). That makes Trump’s legal impunity for offering such pardons at least slightly more sketchy, particularly if he’s pardoning someone so obviously corrupt as Paul Manafort. Add in the fact that Jared Kushner sold out Flynn last fall (which is reportedly what led him to flip), and Manafort may be less certain about Trump’s reliability, even in spite of Trump’s Tweets suggesting FBI should have prevented him from hiring someone they were investigating back in 2016, posted — with remarkable prescience! — on the eve of the latest setback in Manafort’s case.

Still, the reminder that Trump and a number of subjects of this investigation have been comparing notes explains a lot we’ve seen since. It explains, for example, why Manafort has made such a diligent effort to get the court to disclose information to him– such as the substance of warrant affidavits to seize up to four other people’s AT&T phone information, or the other bullet points in Rod Rosenstein’s August 2, 2017 memo laying out the scope (at that point) of the investigation — that affects others likely covered by the defense agreement. It explains one advantage to Manafort of insisting on being charged in two jurisdictions: because it gives him two bites at an attempt to challenge Mueller’s jurisdiction.

The joint defense agreement also explains several other things we’ve seen, such as the coordinated messaging — particularly the planted narrative about Spygate — best explained by the coordination of Victoria Toensing armed with information only legally available to Trump.

Finally, it explains the delay in any charges related to the conspiracy between Trump and the Russians: once Mueller charges those issues, he will have to provide discovery about what he knows, which will then get shared back with others involved in the conspiracy. It appears he’s primarily sharing that information (aside from in the form of questions to witnesses who appear before the grand jury) with those who’ve flipped. Even the questions he has posed to Trump are probably sharply limited to hide the main thrust of the conspiracy investigation.

That’s why the stakes for Friday are so high (and the timing of this reminder that there’s a joint defense agreement). Mueller still won’t need to provide Manafort the evidence he has about his role in the conspiracy, though the indictment of Kilimnik gets far closer to that. But it raises the cost on Manafort for sustaining a joint defense, minimizes his value to the others, all while the crimes charged could still be refiled in a VA state court.

Concord Consulting Aims to Make Russian Bots Legal

Remember when they used to say, “they hate us for our freedoms” in the wake of 9/11? The company of Putin’s buddy Yevgeniy Prigozhin is doing the opposite — having a field day with the due process rights his company, Concord Consulting, gets under US law after being charged in the Internet Research Agency indictment.

As I noted, Concord unexpectedly decided to contest its indictment for using Prigozhin’s troll factory to interfere in the 2016 election. Last week it pled not guilty.

In that post, I suggested that the risk posed by the Concord not guilty plea could be deferred, for now, by arguing over a protection order and ensuring that sensitive data be shared under CIA.

[N]either will happen immediately — Mueller’s team will push for a protection order and CIPA process before turning over the requested discovery and defendants almost never get a Bill of Particulars — effectively, Concord signaled its intention to impose real costs on the US government’s use of our criminal justice system to embarrass Russia. They made it clear that one of Putin’s closes allies will be demanding the intelligence behind an indictment naming him and two of his companies. Which is going to pose real discomfort for Mueller’s team (which might explain a bit of their delay here).

Let me clear: Concord is entirely within its right to begin demanding such evidence. That’s the risk of using our criminal justice system, affording due process, in charging a Russian corporate person who can challenge any charges without risking their freedom. I imagine Mueller’s team didn’t sufficiently account for this possibility when charging it this way. And if there are any other known Russian corporations involved in this operation (or fronts, such as the one Joseph Mifsud worked behind), I would imagine Mueller’s team is rethinking their approach to including those fronts. This could be problematic to the extent that proving any “collusion” between Trump’s people and Russians would most easily be demonstrated via conspiracy charges involving Russian entities.

If and when Mueller dismisses the indictment against Concord (but not its 13 paid trolls), it would be an embarrassing PR moment. But the contest thus far only posed a legal risk to any further indictments that relied on corporate entities, which the rest of the Internet Research Agency one does not.

Concord’s latest challenge may pose a greater threat. It requests the judge in the case (which here would be Magistrate Michael Harvey, though Trump appointee Dabney Friedrich is the District judge on the case) to review the grand jury instructions to make sure the prosecutors explained the mens rea required behind the conspiracy to defraud the US charge in the case. It is, as the motion argues, a fairly modest request (the government will argue, rightly, that it asks for grand jury information it is not entitled to, but Concord is asking just for the judge to review it). It’s basically asking the judge to make sure prosecutors explained to the grand jury that they had to find that IRA knew that it was violating US law.

As I noted here, ConFraudUs provides Mueller’s team with a way to argue the abuse of weak parts in our electoral system violates the law, and charging a conspiracy sets up a way to drop in American defendants at a later date. And, as Lawfare laid out in this good legal review of ConFraudUs, ConFraudUs has been used in the electoral context in the past.

Notably for present purposes, §371 has been deployed in the context of election law specifically. The Justice Department’s manual on federal prosecution of election offenses explicitly contemplates bringing charges of conspiracy to defraud based on campaign finance offenses. It explains the theory as follows:

To perform [its] duties, the FEC must receive accurate information from the candidates and political committees that are required to file reports under the Act. A scheme to infuse patently illegal funds into a federal campaign, such as by using conduits or other means calculated to conceal the illegal source of the contribution, thus disrupts and impedes the FEC in the performance of its statutory duties.

Several federal circuit courts have heard cases brought under §371 based on this theory and have not found fault with its application to behavior that may also violate the Federal Election Campaign Act (FECA).

But Concord is arguing the use of ConFraudUs in this case departs from the approach DOJ has previously used to keep foreign influence out of elections (citing cases of Chinese influence peddling under Clinton).

The Court is well aware that heretofore investigations of alleged improper foreign involvement in American elections have been handled by the United States Department of Justice (“DOJ”); specifically the Campaign Finance Task Force created by former Attorney General Reno in 1997, and where the Court worked as a prosecutor from September 1997 to August 1998. Former Attorney General Reno refused to bow to massive political pressure to appoint a special counsel, and instead the Task Force methodically investigated and prosecuted cases through 2000.1 Throughout all of that activity, the DOJ never brought any case like the instant Indictment, that is, an alleged conspiracy by a foreign corporation to “interfere” in a Presidential election by allegedly funding free speech. The obvious reason for this is that no such crime exists in the federal criminal code.

It doesn’t actually prove that use of ConFraudUs in this case would be improper (indeed, after complaining that Janet Reno didn’t appoint a special counsel to investigate funding of Clinton, the motion spends a page complaining about a special counsel in this case). Rather, it argues that the indictment couldn’t charge ConFraudUs because none of the Russians involved knew they had to register with the government before engaging in online trolling (they note they’re going to make similar challenges with respect to other charges in the future).

But violations of the relevant federal campaign laws and foreign agent registration requirements administered by the DOJ and the FEC require the defendant to have acted “willfully,” a word that does not appear anywhere in Count One of the Indictment. See 52 U.S.C. § 30109(d) and 22 U.S.C. § 618(a).

[snip]

Count One of the Indictment appears to be facially invalid because it fails to charge an essential element of the offense of conspiracy to defraud the United States by impairing, obstructing and defeating the functions of the FEC and the DOJ, that is, that the Defendant acted willfully, in this case meaning that Defendant was aware of the FEC and FARA requirements, agreed to violate those requirements, and ultimately acted with intent to violate those requirements.

There’s a two-fold risk here, if Concord is successful (and they could be).

First, there’s a risk that such a ruling would in effect provide foreign corporations more ability to engage in improper election speech than domestic ones. Particularly as social media companies move to require more transparency in online advertising, a foreign company could continue to violate those requirements simply by pleading dumb. Certainly Congress could mandate some kind of transparency on foreign companies and with that require private companies to administer such things. but it wouldn’t be a quick fix.

There’s a more immediate risk, however. The filing claims that this indictment is, “a case that has absolutely nothing to do with any links or coordination between any candidate and the Russian Government.” While it is true that Rod Rosenstein emphasized there was no allegation in the current indictment that any American knowingly conspired with these Russians, there are actually three Trump campaign staffers described in a way in the indictment that may reflect they’re still under investigation. And in its last filing, Concord demanded the communications behind one event — an American holding a sign in front of the White House — that leads me to believe Concord knows that the involvement of this US person is more complex than alleged in the indictment.

With respect to ¶ 12b, identify the “real U.S. person,” identify the specific Defendant or conspirator who communicated with the “real U.S. person,” provide the dates and times of any such communications, identify the Defendant or conspirator who stated “is a leader here and our boss . . . our funder,” and clarify whether it is alleged that any such communications were made on behalf of Defendant Concord.

That is, while Rosenstein said that thus far there are no Americans in this indictment, that doesn’t mean Mueller didn’t have plans to add some at a later date.

But if Concord can get this conspiracy charge thrown out before then, it’s going to undercut any effort to claim the conspiracy that will be critical to substantiating the collusion charge even if Mueller presents clear evidence of an agreement to carry out this trolling.

That doesn’t mean he won’t be able to prove a conspiracy involving a more obvious agreement — such as the Agalarovs offering dirt in exchange for sanction relief (though that would invoke the bribery rules that SCOTUS has significantly reined in).

But for now, the IRA indictment is a test case in a legal theory that will make it fairly easy to show that Republicans engaged in a conspiracy to tamper with the election. Because Mueller named a corporate person, he provided a way for the Russians to otherwise undercut a theory that seems central to the effort to hold Trump and the Russians accountable.

Again, Mueller can likely prove ConFraudUs with other players in the larger conspiracy. But this filing poses an immediate threat of undermining the logic of such an approach before he can charge it.

The Sekulow Questions, Part Six: Trump Exacerbates His Woes

In this series, it feels like time is marked by big Russian meetings and key firings.

I’m talking, of course, about my efforts to use the Mueller questions as imagined by Jay Sekulow to map out what the structure of the investigation (at least as it pertains to Trump personally) might be. Thus far, I’ve shown:

  • Russians, led by the Aras Agalarov and his son, cultivated Trump for years by dangling two things: real estate deals and close ties with Vladimir Putin.
  • During the election, the Russians and Trump appear to have danced towards a quid pro quo agreement, with the Russians offering dirt on Hillary Clinton in exchange for a commitment to sanctions relief, with some policy considerations thrown in.
  • During the transition period, Trump’s team took a series of actions that moved towards consummating the deal they had made with Russia, both in terms of policy concessions, particularly sanctions relief, and funding from Russian sources that could only be tapped if sanctions were lifted. The Trump team took measures to keep those actions secret.
  • Starting in January 2017, Trump came to learn that FBI was investigating Mike Flynn. His real reasons for firing Flynn remain unreported, but it appears he had some concerns that the investigation into Flynn would expose him personally to investigation.
  • After a failed attempt to quash the investigation into his Administration by firing Flynn, Trump grew increasingly angry that Jim Comey wouldn’t provide a quick exoneration without conducting an investigation first, leading to his firing.

May 10, 2017: What did you mean when you told Russian diplomats on May 10, 2017, that firing Mr. Comey had taken the pressure off?

Trump fired Comey just in time to report to Russian Ambassador Sergey Kislyak and Foreign Minister Sergey Lavrov in a meeting the next day that doing took the pressure off he felt because of Russia.

“I just fired the head of the F.B.I. He was crazy, a real nut job. I faced great pressure because of Russia. That’s taken off.” Remarkably, he also felt the need to reassure the Russians that, “I’m not under investigation.”

The reports that Trump’s lawyers need to have clearance because of the inclusion of this meeting in the list of questions suggests Mueller wants to learn more about the meeting beyond the public reports. That may include Trump’s sharing of classified information provided by the Israelis.

May 11, 2017: What did you mean in your interview with Lester Holt about Mr. Comey and Russia?

The day after meeting with the Russians, he told Lester Holt he was going to fire Comey regardless of what Rod Rosenstein recommended. [These are excerpts and a little rough; here’s a partial transcript that leaves out a lot of the Russian comments]

He’s a showboat, he’s a grand-stander, the FBI has been in turmoil, you know that. I know that. Everybody knows that. You take a look at the FBI a year ago, it was in virtual turmoil. Less than a year ago. It hasn’t recovered from that.

[in response to a question about Rosenstein’s recommendation] What I did was I was going to fire Comey. My decision. I was going to fire Comey. There’s no good time to do it, by the way. I was going to fire regardless of recommendation. [Rosenstein] made a recommendation, he’s highly respected. Very good guy, very smart guy. The Democrats like him. The Republicans like him. But regardless of recommendation I was going to fire Comey. Knowing there was no good time to do it.

And in fact when I decided to just do it, I said to myself, I said you know, this Russia thing with Trump and Russia is a made-up story, it’s an excuse by the Democrats for having lost an election that they should have won. And the reason they should have won it is the electoral college is almost impossible for a Republican to win. Very hard. Because you start off at such a disadvantage. So everybody was thinking, they should have won the election. This was an excuse for having lost an election.

I just want somebody that’s competent. I’m a big fan of the FBI. I love the people of the FBI.

As far as I’m concerned, I want that [investigation] to be absolutely done properly. When I did this now, I said I’ll probably, maybe confuse that. Maybe I’ll expand that, you know, lengthen the time because it should be over with, in my opinion, should have been over with a long time ago. ‘Cause all it is, is an excuse but I said to myself, I might even lengthen out the investigation, but I have to do the right thing for the American people.

[in response to question about why he put he was not under investigation in his termination letter] Because he told me that, I mean he told me that. I’ve heard that from others. I had a dinner him, he wanted to have dinner because he wanted to stay on, we had a very nice dinner at the White House very early on. [He asked to have dinner?] A dinner was arranged. I think he asked for the dinner. And he wanted to stay on as the FBI head. And I said, I’ll consider, we’ll see what happens. We had a very nice dinner. And at that time he told me you’re not under investigation. I knew anyway. First of all, when you’re under investigation, you’re giving all sorts of documents and everything. I knew I wasn’t under — and I heard it was stated at the committee, at some committee level, number one. Then during the phone call he said it, then during another phone call he said it. He said it at dinner, and then he said it twice during phone calls.

In one case I called him, in one case he called me.

I actually asked him, yes. I said, if it’s possible, would you let me know, am I under investigation? He said you are not under investigation. All I can tell you is that I know that I’m not under investigation. Personally. I’m not talking about campaigns, I’m not talking about anything else. I’m not under investigation.

[did you ask him to drop the investigation] No. Never. I want the investigation speeded up. Why would we do that? Iw ant to find out if there was a problem with an election having to do with Russia, or anyone else, any other country, I want it to be so strong and so good.

I want somebody that’s going to do a great job.

I think that looking into me and the campaign, I have nothing to do, his was set up by the Democrats. There’s no collusion between me and my campaign and the Russians. The other things is the Russians did not affect the vote.

If Russia hacked, If Russia had to anything to do with our election, I want to know about it. If Russia or anybody elseis trying to interfere with our elections I want to make sure that will never ever happen

[wiretapping] I was surprised [Comey said no spying] but I wasn’t angry. There’s a big thing going on right now, spying, to me that’s the big story.

I want a great FBI Director. I expect that [they will continue investigation].

[Flynn’s access to secrets] My White House Counsel it did not sound like an emergency. She didn’t make it sound that way either in the hearings the other day. It didn’t sound like it had to be done immediately. This man has served for many years. He’s a general. In my opinion a very good person. It would be very unfair to hear from someone we don’t even know to immediately run out and fire a general. We ultimately fired, but we fired for a different reason. Everything plays into it. We fired him because he said something to the Vice President that wasn’t true. He had clearance from the Obama Administration. I think it’s a very unfair thing that the media doesn’t talk about that.

I just sent a letter from one of the most prestigious law firms in the country that I have nothing to do with Russia, I have no investments in Russia, I don’t have property in Russia. I’m in total compliance in every way.

I had the Miss Universe Pageant in Moscow a long time ago. I have a certified letter. I’m not just saying that. I assume he’s gonna give the letter out. No loans, no nothing.

I never thought about it [optics of Lavrov meeting]. What difference does it make.

When I spoke with Putin he asked me whether I’d see Lavrov. I think we had a great discussion having to do with Syria, having to do with the Ukraine. Maybe that discussion will lead to peace.

Ultimately, Trump said several things here (aside from putting into the public record the meetings with Comey, though he got details that can almost certainly be proved wrong wrong). He differentiated between an investigation into himself personally and others, denied asking to halt the investigation into Flynn, provided his bogus self-exoneration claim of not having business ties with Russians. He also reiterated the claim he had been spied on.

May 12, 2017: What was the purpose of your May 12, 2017, tweet?

By this point, Trump and Comey were in a war of credibility. And Trump suggested that he might have tapes of his meetings with Comey.

The White House answers about whether there were tapes have dodged some, so it’s possible.

May 17, 2017: What did you think and what did you do in reaction to the news of the appointment of the special counsel?

In the wake of reporting that Comey had documented a request from Trump to halt the investigation into Flynn, on May 17, Rod Rosenstein appointed Robert Mueller to investigate any links between the Russian government and individuals associated with Trump’s campaign and “any matters that arose or may arise directly from the investigation.” The latter phrase made it clear that by firing Comey, Trump had put himself under investigation for obstructing the investigation in chief.

In the middle of a meeting with Sessions, Don McGahn, Mike Pence, and several others on replacing Comey, Rosenstein called McGahn and told him he had appointed Mueller. Trump took it out on Sessions, calling him an idiot and telling him he should resign. Sessions left and sent a resignation letter, but Pence, Steve Bannon, and Reince Priebus convinced him to hold off on accepting it. This piece describes Priebus’ side of that story.

May 31, 2017: Why did you hold Mr. Sessions’s resignation until May 31, 2017, and with whom did you discuss it?

Mueller has received testimony from most of the people who counseled Trump not to fire Sessions, including McGahn, Bannon, and Priebus (but not Pence). He has also gotten Sessions’ testimony on this point.

I’m particularly interested in whether Trump consulted with people not listed in the NYT story on this, such as Jared Kushner and Stephen Miller (who had counseled him to fire Comey in the first place). I also suspect that Trump had already reached out Flynn by this point to talk pardons.

June 8, 2017: What did you think about Mr. Comey’s June 8, 2017, testimony regarding Mr. Flynn, and what did you do about it?

On June 8, Comey testified to SSCI. The night before, he released a statement that reviewed much of what appeared in his memos. The hearing consisted of senators from each party trying to spin Comey’s report of being asked to drop the Flynn investigation, with little news  — though Comey did make clear the investigation covered false statements.

BLUNT: On the Flynn issue specifically, I believe you said earlier that you believe the president was suggesting you drop any investigation of Flynn’s account of his conversation with the Russian ambassador. Which was essentially misleading the vice president and others?

COMEY: Correct. I’m not going to go into the details but whether there were false statements made to government investigators, as well.

Comey refuted Trump’s claim that he didn’t ask him to stop the investigation into Flynn.

KING: In his press conference May 18th, the president responded, quote, no, no, when asked about asking you to stop the investigation into general Flynn. Is that a true statement?

COMEY: I don’t believe it is.

Comey said he viewed the Flynn investigation and the Russian one as touching, but separate, though raised the possibility of flipping Flynn.

KING: Back to Mr. Flynn. Would the — would closing out the Flynn investigation have impeded the overall Russian investigation?

COMEY: No. Well, unlikely, except to the extent — there is always a possibility if you have a criminal case against someone and squeeze them, flip them and they give you information about something else. But I saw the two as touching each other but separate.

Comey also revealed that he had shared memos memorializing his conversations with Trump with a friend.

BLUNT: You said something earlier and I don’t want to fail to follow up on, you said after dismissed, you gave information to a friend so that friend could get that information into the public media.

COMEY: Correct.

BLUNT: What kind of information was that? What kind of information did you give to a friend?

COMEY: That the — the Flynn conversation. The president had asked me to let the Flynn — forgetting my exact own words. But the conversation in the Oval Office.

Much of the hearing covered Sessions’ non-involvement. Comey deferred a number of questions to the closed session.

Trump used the Comey hearing — and his confirmation that at the time he left the president wasn’t under investigation — to have Marc Kasowitz make a statement claiming Trump never impeded the investigation and never demanded loyalty.

I am Marc Kasowitz, Predisent Trump’s personal lawyer.

Contrary to numerous false press accounts leading up to today’s hearing, Mr. Comey has now finally confirmed publicly what he repeatedly told the President privately: The President was not under investigation as part of any probe into Russian interference. He also admitted that there is no evidence that a single vote changed as a result of any Russian interference.

Mr Comey’s testimony also makes clear that the President never sought to impede the investigation into attempted Russian interference in the 2016 election, and in fact, according to Mr. Comey, the President told Mr. Comey “it would be good to find out” in that investigation if there were “some ‘satellite’ associates of his who did something wrong.” And he did not exclude anyone from that statement. Consistent with that statement, the President never, in form or substance, directed or suggested that Mr. Comey stop investigating anyone, including suggesting that that Mr. Comey“let Flynn go.” As he publicly stated the next day, he did say to Mr. Comey, “General Flynn is a good guy, he has been through a lot” and also “asked how is General Flynn is doing.”

Admiral Rogers testified that the President never “directed [him] to do anything . . . illegal, immoral, unethical or inappropriate” and never “pressured [him] to do so.” Director Coates said the same thing. The President likewise never pressured Mr. Comey. .

The President also never told Mr. Comey, “I need loyalty, I expect loyalty” in form or substance. Of course, the Office of the President is entitled to expect loyalty from those who are serving in an administration, and, from before this President took office to this day, it is overwhelmingly clear that there have been and continue to be those in government who are actively attempting to undermine this administration with selective and illegal leaks of classified information and privileged communications.

Kasowitz also accused Comey of leaking in order to lead to a special counsel investigation.

Mr. Comey has now admitted that he is one of these leakers. Today, Mr. Comey admitted that he unilaterally and surreptitiously made unauthorized disclosures to the press of privileged communications with the President. The leaks of this privileged information began no later than March 2017 when friends of Mr. Comey have stated he disclosed to them the conversations he had with the President during their January 27, 2017 dinner and February 14, 2017 White House meeting. Today, Mr. Comey admitted that he leaked to friends his purported memos of these privileged conversations, one of which he testified was classified. He also testified that immediately after he was terminated he authorized his friends to leak the contents of these memos to the press in order to “prompt the appointment of a special counsel.” Although Mr. Comey testified he only leaked the memos in response to a tweet, the public record reveals that the New York Times was quoting from these memos the day before the referenced tweet, which belies Mr. Comey’s excuse for this unauthorized disclosure of privileged information and appears to entirely retaliatory. We will leave it the appropriate authorities to determine whether this leaks should be investigated along with all those others being investigated. .

In sum, it is now established that there the President was not being investigated for colluding with the or attempting to obstruct that investigation. As the Committee pointed out today, these important facts for the country to know are virtually the only facts that have not leaked during the long course of these events.

This sort of kicked off the official campaign to discredit Comey and those who would back his story.

June 12, 2017: What did you think and do in reaction to the news that the special counsel was speaking to Mr. Rogers, Mr. Pompeo and Mr. Coats?

Public reports date Rogers and Coats’ interviews with Mueller to the week of June 12, 2017, so Pompeo’s must have been around that same time. Rogers and Coats, at least, testified that Trump tried to get them to state publicly that there was no collusion. They said the interaction was odd and uncomfortable, but that he did not order them to interfere.

Clearly, Trump responded to public reports of their being called as witnesses, though we don’t know what the response was. It’s possible that’s when Trump threatened to fire Mueller, only to back off when Don McGahn threatened to quit.

July 7, 2017: What involvement did you have in the communication strategy, including the release of Donald Trump Jr.’s emails?

I’ve laid out that I believe the evolving June 9 story is a limited hangout orchestrated by Agalarov lawyer Scott Balber. The strategy would have begun when Jared Kushner wrestled with the need to disclose the meeting, both in response to congressional investigations and for his clearance. Manafort, too, turned over emails backing the event about a month before the story came out publicly. This post talks about the response the weekend of the G-20 in Hamburg, including Ivanka sitting in on a meeting so Trump could strategize, and Hope Hicks suggesting the emails would never come out.

As a reminder, on the same day Trump had a second hour long meeting with Putin, he dictated Putin’s propaganda line that the meeting pertained to adoptions. Importantly, he hid what I’ve suggested was the quo in the quid pro quo, sanctions relief. Mueller undoubtedly would like to know if Putin helped him come up with that message, which would be really damning.

Mueller also wants to know about the decision to leak Don Jr’s emails. Bannon suspects that a Jared aide leaked the emails (his then lawyer Jamie Gorelick would cut back her work with him shortly thereafter). But remember: in a DM, Assange proposed that he give Wikileaks the email.

There’s clearly far more back story to the leaked email we don’t know yet.

If Trump’s involvement here involves coordination with Russians (like the Agalrovs, to say nothing of Putin) or Assange, it would provide damning evidence not of obstruction, but of collusion, an effort to coordinate a story about a key meeting. Trump’s lawyers have always suggested questions about Trump’s role in this statement are improper, which is itself a telling indicator that they don’t understand (or want to spin) the risk of the original June 9 meeting.

July 20, 2017: After the resignations, what efforts were made to reach out to Mr. Flynn about seeking immunity or possible pardon?

Mike Flynn tried to get Congressional immunity in March 2017, with Trump’s backing the effort in a tweet.

Mueller’s question seems to suggest even at that earlier period, someone from Trump’s camp reached out and discussed immunity with Flynn. Shortly before April 25, Trump also sent Flynn a message to “stay strong.” (h/t TC)

On July 20, the WaPo reported that Trump’s team was researching pardons. The NYT report first revealing that Trump offered pardons to Mike Flynn (and Manafort, who is curiously not mentioned in this question) describes it happening after John Dowd took over, in the wake of the revelation of the June 9 meeting and the Kasowitz firing. Dowd denied any such thing was happening on July 21, which is probably a good sign such discussions were taking place.

July 25, 2017: What was the purpose of your July 2017 criticism of Mr. Sessions? What discussions did you have with Reince Priebus in July 2017 about obtaining the Sessions resignation? With whom did you discuss it?

In late July, 2017, Trump accused Sessions of several sins: failing to crack down on leaks, failing to prosecute Hillary, and failing to fire Andrew McCabe. That must be the same time when Trump ordered Priebus to get Sessions’ resignation, which he dodged by stalling, which probably answers the “what was the purpose” question: to lay predicate to fire Sessions.

I’m particularly interested in the question about who Trump discussed this with, particularly given the provocative timing — the days before George Papadopoulos’s July 26 arrest and Paul Manafort’s July 27 condo search (using a warrant that, unlike a warrant from a May 27 storage unit search, invoked the June 9 meeting). It’s possible Trump had advance knowledge of this stuff (which would be alarming), but likely it’s a coincidence.

In any case, Mueller clearly has reason to believe Trump learned something about the investigation and discussed it with people that led him to try, again, to stop it by firing someone.

What was the purpose of the September and October 2017 statements, including tweets, regarding an investigation of Mr. Comey?

On September 1, Trump responded to reports that because Comey had a declination written before interviewing Hillary, he rigged the outcome of the investigation. In mid-October, in the wake of the Manafort indictment and George Papadopoulos plea, Trump returned to this attack. Rudy Giuliani has renewed this attack in recent days, which is presumably an attempt to undercut Comey’s credibility.

What discussions did you have regarding terminating the special counsel, and what did you do when that consideration was reported in January 2018?

The NYT report that Trump tried to fire Mueller in June 2017 made it clear that Mueller had received testimony about it (presumably from McGahn and others). Clearly, Mueller has reason to know that Trump did something else in response. Note that this report came out in the wake of the Michael Wolff book, which would give Mueller an excuse to call several of the relevant witnesses (such as Mark Corallo and Steve Bannon) as witnesses. This time period also closely follows the increasingly aggressive response in Congress.

What is the reason for your continued criticism of Mr. Comey and his former deputy, Andrew G. McCabe?

The assumption is that Trump continues to attack Comey and McCabe because doing so might harm their credibility with regards to an obstruction investigation, and that’s surely true (made all the worse by McCabe’s firing and his criminal referral).

But I increasingly believe (particularly given that the other contemporaneous witnesses to Comey’s concerns, like James Baker, are not named) that’s not the only reason Trump is doing this. My guess is it’s an attempt to undermine their decision to investigate Flynn. We now know, for example, that McCabe set up the interview with Flynn on Comey’s direction. So in addition to discrediting key witnesses against him, it seems possible that Trump is also trying to discredit the decision, at a time when  FBI was about to close a counterintelligence investigation into Flynn, to instead interview him, leading to the exposure of Trump’s efforts to undermine US policy during the transition period.

RESOURCES

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

Mueller questions as imagined by Jay Sekulow

CNN’s timeline of investigative events

Majority HPSCI Report

Minority HPSCI Report

Trump Twitter Archive

Jim Comey March 20, 2017 HPSCI testimony

Comey May 3, 2017 SJC testimony

Jim Comey June 8, 2017 SSCI testimony

Jim Comey written statement, June 8, 2017

Jim Comey memos

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

NPR Timeline on Trump’s ties to Aras Agalarov

George Papadopoulos complaint

George Papadopoulos statement of the offense

Mike Flynn statement of the offense

Internet Research Agency indictment

Text of the Don Jr Trump Tower Meeting emails

Jared Kushner’s statement to Congress

Erik Prince HPSCI transcript

THE SERIES

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

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

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

Part Four: The Quest: Trump Learns of the Investigation

Part Five: Attempting a Cover-Up by Firing Comey

With the Upcoming Concord Consulting Not Guilty Plea, Russians Continue to Win the Lawfare Hockey Title

Last year, I observed how effective the mostly-Russian (with some assistance from Republicans) lawfare surrounding the Steele dossier had been. Between the Webzilla and Alfa Bank suits against Steele dossier actors (the latter advised by top Republican lawyers at Kirkland & Ellis), they forced out information that would embarrass Democrats and assist Republican efforts to undermine the Russian investigation. Further, the many suits were far more costly than the initial oppo research had been.

As a number of outlets have observed, one of the firms named in the Internet Research Agency indictment, Concord Management and Consulting, is waging similar lawfare in response to that indictment.

Concord is the firm of Yevgeniy Prigozhin, often called Putin’s chef because he’s gotten rich of catering contracts. The indictment claims Concord provided the bulk of the funding for the IRA. It further alleges Concord funds disinformation campaigns not just targeting America, but targeting other countries and domestic Russian audiences.

Beginning as early as 2014, Defendant ORGANIZATION began operations to interfere with the U.S. political system, including the 2016 U.S. presidential election. Defendant ORGANIZATION received funding for its operations from Defendant YEVGENIY VIKTOROVICH PRIGOZHIN and companies he controlled, including Defendants CONCORD MANAGEMENT AND CONSULTING LLC and CONCORD CATERING (collectively “CONCORD”). Defendants CONCORD and PRIGOZHIN spent significant funds to further the ORGANIZATION’s operations and to pay the remaining Defendants, along with other uncharged ORGANIZATION employees, salaries and bonuses for their work at the ORGANIZATION.

[snip]

Defendants CONCORD MANAGEMENT AND CONSULTING LLC (Конкорд Менеджмент и Консалтинг) and CONCORD CATERING are related Russian entities with various Russian government contracts. CONCORD was the ORGANIZATION’s primary source of funding for its interference operations. CONCORD controlled funding, recommended personnel, and oversaw ORGANIZATION activities through reporting and interaction with ORGANIZATION management.

CONCORD funded the ORGANIZATION as part of a larger CONCORD-funded interference operation that it referred to as “Project Lakhta.” Project Lakhta had multiple components, some involving domestic audiences within the Russian Federation and others targeting foreign audiences in various countries, including the United States.

Among the details in the indictment that would require the most SIGINT (as distinct from cooperation from Facebook and domestic forensics analysis) is a paragraph describing the funding behind the operation.

To conceal its involvement, CONCORD labeled the monies paid to the ORGANIZATION for Project Lakhta as payments related to software support and development. To further conceal the source of funds, CONCORD distributed monies to the ORGANIZATION through approximately fourteen bank accounts held in the names of CONCORD affiliates, including Glavnaya Liniya LLC, Merkuriy LLC, Obshchepit LLC, Potentsial LLC, RSP LLC, ASP LLC, MTTs LLC, Kompleksservis LLC, SPb Kulinariya LLC, Almira LLC, Pishchevik LLC, Galant LLC, Rayteks LLC, and Standart LLC.

Presumably, the Mueller team named Concord and Prigozhin because doing so would support sanctions against him and his companies (indeed, Prigozhin was added to sanctions back in March). But it was also a way to put the operation within the immediate vicinity of Putin and tie it to the patronage that he uses to stay in power.

But then the corporate person of Concord Consulting unexpectedly started to contest the charges. On April 11, two lawyers from Reed Smith filed an attorney appearance for the firm. That same day, the lawyers sent Mueller’s team two letters, one asking for a Bill of Particulars and the other an expansive discovery request. Mueller’s team (having previously tried to serve Concord via the Russian government) then sent a letter to the lawyers, asking for confirmation they can receive summons for their client, which the lawyers returned it 10 days later, saying it violated Federal Rules of Criminal Procedure. The government, based on the returned summons, asked for a continuance to make sure that summons had been accepted.

Acceptance of service is ordinarily an indispensable precondition providing assurance that a defendant will submit to the jurisdiction of the court, obey its orders, and comply with any judgment. Here, proper service is disputed. It would not be an efficient use of resources to conduct proceedings against Concord clouded by the question whether Concord has been properly served. And as mentioned above, that is particularly true given the sensitive intelligence gathering, national security, and foreign affairs issues presented by defense counsel’s initial requests.

Concord’s lawyers responded by arguing the Special Counsel was ignoring local rules requiring two weeks advance notice to make a scheduling change, and further noting the government had not cited any case law supporting the argument that there might be uncertainty about whether Concord had been served.

The Special Counsel is not entitled to special rules, and is required like the Attorney General to follow the rules of the Court. See United States v. Libby, 498 F.Supp.2d 1, 10-11 (D.C.C. 2007).

The Special Counsel’s motion, filed late on a Friday afternoon, essentially seeks to usurp the scheduling authority of the Court by requesting a continuance of a proceeding scheduled in five days knowing that Defendant is ordinarily entitled to fourteen days to respond.

The Special Counsel’s motion is in violation of Local Criminal Rule 47(b) in that its contains no citation to points of law and authority and instead proclaims without citation to any authority that “A criminal case against an organizational defendant ordinarily requires that the defendant has been properly served with a summons in order for the court to be assured that the defendant has submitted to the jurisdiction of this court and has obligated itself to proceed in accordance with the Federal Rules of Criminal Procedure and other applicable laws that govern this criminal proceeding,”

Judge Dabney Friedrich denied the government motion, meaning there’ll be an initial appearance Wednesday.

Before looking at what Concord is trying to do with its discovery request, let’s take a step back.

The US has been charging Russian hackers and other criminals (like Viktor Bout) for years. Russia hates it. Even ignoring the number of Russian criminals we’ve imprisoned for long sentences, in cases where we don’t nab defendants while on vacation, the indictments still provide the US a forum to expose Russian intelligence activities with little cost to the US.

Charging a corporate person — one close to Putin — for a crime (information operations) that the US also engages in, the government provided Putin and his ally Prigozhin with an opening to either inflict some damage or force the government to withdraw the indictment (and think twice before indicting any other Russian corporations in other Russian investigation indictments).

Here’s some of what Concord is asking for:

Unnamed co-conspirators. When Rod Rosenstein announced this indictment, he emphasized that no Americans were named as co-conspirators in the indictment. That’s different than saying no Americans did conspire (indeed, I’ve noted that three Trump Campaign Officials described in the indictment may be under ongoing investigation). The motion for a Bill of Particulars asks for the identities of those three Trump Campaign Officials, as well as the identities of at least ten other Americans described specifically, and 100 recruited by IRA (described in ¶81). It also asks for the name of co-conspirators for an act, ¶7 of the indictment, who were required to register even though no co-conspirators are alleged to have to do so. Intriguingly, it asks not just for the identity of the real US person who held a sign in front of the White House (¶12b), but also all details surrounding the communications behind that appearance.

Related crimes the government will introduce at trial. The discovery request makes a very normal Rule 404(b) request for any “other crimes, wrongs, or acts” the government might introduce at trial. If Mueller’s team believes anyone in this indictment was involved in other parts of the operation, they might have to disclose that.

SIGINT. The request for a Bill of Particulars asks the government to identify all VPNs, PayPal accounts, Twitter accounts, and web-based emails used in the operation. It asks for the IDs of the people behind the operation and a definition of what significant funds means which would convey how much money Mueller has tracked. It asks for the specific bank accounts the indictment alleges Concord used to launder its money. It asks for specific evidence showing Prigozhin’s knowledge of the operation. It asks for all the communications behind the named events in the indictment. Showing this would provide Concord, and so Prigozhin, and so Putin, a very detailed picture of how much intelligence the US collected to draw up this indictment, which would also hint a lot about how we got it.

Details they will use to show US double standards. This includes a request for all the times since 1945 an agent of the US “engaged in operations to interfere with elections and political processes in any foreign country,” which is probably a reference to this study that shows CIA has done it more than Russia, along with a parallel request about any times Americans have been charged under the same crime, 18 USC 371, charged in the indictment. It also asks for a definition of a bunch of terms — such as “improper foreign influence,” “computer infrastructure,” “collecting intelligence,” and “began to monitor” that Russia will then use to point out where US spooks do the same. The request asks for a list of all criminal statutes that prohibit interference operations, the specific statutes behind the FECA, FARA, and visa violations alleged, as well as statutes that prohibit “impairing, obstructing and defeating the lawful governmental functions of the US … [by] interfer[ing] with US political and electoral processes. Together, those requests are designed to show that much of this stuff is either legal or spying.

The names of informants. Concord asks for this both as a general Brady request and asks for the specific name of the uncharged co-conspirator who traveled to Atlanta in 2014 in the request for a Bill of Particulars. While Prigozhin probably knows which Russians cooperated, Russia will nevertheless love to use that to punish whoever did.

While neither will happen immediately — Mueller’s team will push for a protection order and CIPA process before turning over the requested discovery and defendants almost never get a Bill of Particulars — effectively, Concord signaled its intention to impose real costs on the US government’s use of our criminal justice system to embarrass Russia. They made it clear that one of Putin’s closes allies will be demanding the intelligence behind an indictment naming him and two of his companies. Which is going to pose real discomfort for Mueller’s team (which might explain a bit of their delay here).

Let me clear: Concord is entirely within its right to begin demanding such evidence. That’s the risk of using our criminal justice system, affording due process, in charging a Russian corporate person who can challenge any charges without risking their freedom. I imagine Mueller’s team didn’t sufficiently account for this possibility when charging it this way. And if there are any other known Russian corporations involved in this operation (or fronts, such as the one Joseph Mifsud worked behind), I would imagine Mueller’s team is rethinking their approach to including those fronts. This could be problematic to the extent that proving any “collusion” between Trump’s people and Russians would most easily be demonstrated via conspiracy charges involving Russian entities.

As I said, for years, it has pissed off Russia generally and Putin in particular that the US used its criminal justice system to embarrass Russia, particularly for actions (like nation-state spying or information warfare like that alleged in this indictment) that we also engage in, including against Russia. It seems clear Putin and his buddy Prigozhin are using the incidence of the latter having had his company be named in this indictment as an opportunity to retaliate and make DOJ think twice as it continues to expand such efforts in the future.

And to a large degree, it’s quite likely to work.