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DOJ Suddenly Decides It Can Share the McCabe, Comey 302s with Congress

After DOJ asserted to DC Chief Judge Beryl Howell that US v. Nixon would be decided differently today, the judge instructed the parties fighting over whether DOJ will share the grand jury materials from the Mueller investigation with Congress to get busy. She set of bunch of short deadlines to determine the validity of DOJ’s claims to secrecy. As part of that, she had DOJ explain which FBI 302s (interview reports) it had shared of those the House Judiciary Committee requested, then had HJC fact check that list.

According to HJC, DOJ’s declaration alerted them, for the first time, that some of the redactions in 302s were made to protect “Executive Branch confidentiality,” a claim they’ll move to challenge.

Although DOJ discussed the bases for redaction in its Supplemental Submission and at the October 8, 2019 hearing, see DOJ Supp. Sub. ¶ 4; Hr’g Tr. 48-49 (Oct. 8, 2019), none of the bases for redactions are listed or otherwise indicated on the FBI-302 reports reviewed by the Committee. Instead, portions of the FBI-302 reports are simply blacked out without any explanation. During the Committee’s on-site reviews of the FBI-302 reports and in calls between Committee and DOJ officials, the Committee has repeatedly requested that DOJ specifically identify the complete set of bases for its redactions. The Committee still has not received this information as to any of the FBI-302 reports it has reviewed. While the Committee is generally aware that there were redactions for personally identifiable information, until the discussion during yesterday’s hearing and in DOJ’s Supplemental Submission, the Committee was unaware, for example, that the bases for redactions included either “Executive Branch confidentiality interests,” DOJ Supp. Sub. ¶ 4, or “presidential communications,” Hr’g Tr. 48:19- 20 (Oct. 8, 2019).

The more interesting revelation from the exchange, however, pertains to whether or not DOJ was going to supply all 302s, and which ones they might suppress. As DOJ explains, it has given HJC 302s for 17  of the 33 people they asked for (though the Rob Porter and Uttam Dhillon 302s were mostly redacted):

The Committee requested FBI-302s for 33 individuals. To date the Department has provided access to the FBI-302s of 17 of those individuals, several of whom had multiple interviews. Those individuals are (in alphabetical order): (1) Chris Christie, (2) Michael Cohen (six separate FBI-302s); (3) Rick Dearborn; (4) Uttam Dhillon; (5) John Kelly; (6) Jared Kushner; (7) Cory Lewandowski; (8) Paul Manafort (seven separate FBI-302s); (9) Mary McCord; (10) K.T. McFarland (five separate FBI-302s); (11) Stephen Miller; (12) Rob Porter (two separate FBI-302s); (13) Rod Rosenstein; (14) Christopher Ruddy; (15) Sarah Sanders; (16) Sean Spicer; (17) Sally Yates.

But it has thus far withheld 302s from a group of others.

The Department currently anticipates making the remaining FBI-302’s available under the agreed upon terms as processing is completed, so long as they do not adversely impact ongoing investigations and cases and subject to redaction and potential withholding in order to protect Executive Branch confidentiality interests. These include, in alphabetical order (1) Stephen Bannon; (2) Dana Boente; (3) James Burnham; (4) James Comey; (5) Annie Donaldson; (6) John Eisenberg; (7) Michael Flynn; (8) Rick Gates; (9) Hope Hicks; (10) Jody Hunt; (11) Andrew McCabe; (12) Don McGahn; (13) Reince Priebus; (14) James Rybicki; (15) Jeff Sessions. In addition, the Committee requested the FBI-302 for the counsel to Michael Flynn, which also has not yet been processed.

It’s an interesting list to withhold.

Hicks, of course, was privy to a great deal (including Trump’s effort to lie about the June 9 meeting), and her testimony about certain communications during the campaign was actually fairly revealing.

At least two of these may be withheld for the pendency of the Roger Stone trial; both Steve Bannon and Rick Gates will be witnesses, and Mike Flynn’s discussions of WikiLeaks may come up as well.

These 302s (and Dhillon’s heavily redacted one) cover virtually all of the White House’s side of discussions not to fire Mike Flynn right away after discovering he lied about his call with Sergey Kislyak: James Burnham, John Eisenberg, Don McGahn, and Reince Priebus, and of course Flynn himself, were all key players in that. Of course, Eisenberg (who’s the lawyer who decided to hide the records on Trump’s call to Volodymyr Zelensky) was involved in other acts that might indicate obstruction, including advising KT McFarland not to create a false record about what Flynn said. And McGahn was involved in much else (and might even have been asked about Stone’s campaign finance issues, which McGahn represented him on, and the awareness of the Trump campaign about will be an issue at Stone’s trial). But I find it acutely interesting that DOJ is withholding a bunch of records that will make it clear how damning Trump’s reluctance to fire Flynn was, even as Flynn attempts a propaganda driven effort to give Trump an excuse to pardon him.

Then there are the 302s pertaining to the recusal of Jeff Sessions and firing of Jim Comey (and immediate pressure on Andrew McCabe). Those include Comey himself, McCabe, Rybicki, Hunt, Sessions, and Dana Boente. The fact that DOJ has been withholding these (and it’s suggestion that there are ongoing investigations) is really sketchy: it suggests that DOJ may have been withholding really damning 302s from Congress so it can decide whether to indict McCabe and — presumably — wait for DOJ IG to finish its investigation of the FISA orders some of these men approved. In other words, DOJ has been releasing one after another damning claim against Comey and McCabe, but withholding evidence about why they might be targeted.

It’s also noteworthy that Boente and McGahn’s memory regarding an effort McGahn made to shut down the Russian investigation is one of the greatest conflicts of testimony in the entire Mueller Report.

The 302s DOJ has been withholding also happens to include 302s of current DOJ officials. Boente is the FBI General Counsel. More alarmingly, Jody Hunt runs the Civil Division and Burnham is his Deputy. These are the men directing the DOJ effort to make breathtaking claims about impeachment, and they’re hiding their own actions in the investigation about which Congress is considering impeachment.

But, having been asked by Howell what the state of affairs is, DOJ has now decided that they’re going to turn over 302s they previously had suggested they might withhold. HJC expressed some surprise about the sudden change of plans.

With respect to the outstanding FBI-302 reports, the Committee was surprised but encouraged by DOJ’s statement in its supplemental filing that it “currently anticipates making the remaining FBI-302s available.” DOJ Supp. Sub. ¶ 5. The Committee had previously understood from its recent communications with DOJ that DOJ’s production was nearing completion and that there were only a limited number of remaining documents that DOJ would disclose.

It will be interesting if and when HJC obtains these records to see how DOJ tried to protect itself.

Update: I’m reminded of two things. First, as I copied out this URL, I recalled that Turkey, along with Russia, would have known that he lied about his calls with Sergey Kislyak.

Also, in the government’s most recently filing in the Mike Flynn case, they revealed that he had not been in possession of the interview reports from between the time he was initially interviewed and the time he pled guilty.

Based on filings and assertions made by the defendant’s new counsel, the government anticipates that the defendant’s cooperation and candor with the government will be contested issues for the Court to consider at sentencing. Accordingly, the government will provide the defendant with the reports of his post-January 24, 2017 interviews. The government notes that the defendant had counsel present at all such interviews.

This suggests that the government was withholding reports that would make it clear that Flynn continued to lie, even after he lawyered up.

Is Bill Barr Already Feeding Sidney Powell So-Called Evidence Trump Coerces?

The WaPo confirms what was becoming obvious: The Attorney General of the United States is spending his days flying around the world collecting claims that Trump has coerced from foreign governments. It reports that Barr has already had conversations similar to those Trump seeded with Ukraine with the UK, Italy, and Australia.

Barr has already made overtures to British intelligence officials, and last week the attorney general traveled to Italy, where he and Durham met senior Italian government officials and Barr asked the Italians to assist Durham, according to one person familiar with the matter, who spoke on the condition of anonymity to discuss a sensitive issue. It was not Barr’s first trip to Italy to meet intelligence officials, the person said. The Trump administration has made similar requests of Australia, said people who discussed the interactions on the condition of anonymity because they involve an ongoing investigation and sensitive talks between governments.

In a recent phone call, Trump urged Australian Prime Minister Scott Morrison to provide assistance to the ongoing Justice Department inquiry, the people said. Trump made the request at Barr’s urging, they said.

I raise all this because of something Sidney Powell said on September 10. At the status hearing for her client, Mike Flynn, she said that they had a letter from the British Embassy that “undoes the whole Steele dossier debacle.”

It was an interesting claim for several reasons. Most notably, the only references to Powell’s client in the Steele dossier simply repeat public claims about Flynn’s paid trip to an RT gala in 2015. That is, it’s totally irrelevant to the question of Flynn’s guilt on the charges he pled to or even the counterintelligence investigation into her client. Even if DOJ had such a record, it’d not be discoverable under Brady.

But Powell seemed to be saying she had the letter.

That raises the possibility that Bill Barr is not — as he claims — collecting “evidence” for a John Durham investigation into the start of the Russian investigation, but is instead (or also) collecting evidence he can share with those prosecuted by Mueller to help them undermine their guilty pleas and or convictions (which would raise interesting questions about Roger Stone’s focus on Crowdstrike, given that’s included in Trump’s list of propaganda he wants to extort from foreign countries).

Mind you, Powell could be lying or unclear about this document–she has been caught in both multiple times so far before Emmet Sullivan. But this claim — which was surprising to me at the time — raises real questions about whether Barr is using coerced evidence to undermine his own DOJ.

Update: I think I have the timing of this letter wrong. I think it was sent under Obama, not recently. 

The Definition of “Collusion” as Impeachment Proceeds: the Risk Trump Poses to All Americans

It’s a testament to how crazy things have been this week that this memo — Andrew McCabe’s memorialization of opening the investigation into Donald Trump on May 16, 2017 — only got covered by obsequious propagandists on the frothy right. Judicial Watch liberated it via FOIA and actually had to focus on something else — Rod Rosenstein’s offer to wear a wire — to drive interest.

I suspect that’s because the memo paints McCabe’s own actions in favorable light (and Rosenstein in a damning light, both as regards his own integrity and his purported loyalty to Trump). Consider this paragraph:

I began by telling [Rosenstein] that today I approved the opening of an investigation of President Donald Trump. I explained that the purpose of the investigation was to investigate allegations of possible collusion between the president and the Russian Government, possible obstruction of justice related to the firing of FBI Director James Comey, and possible conspiracy to obstruct justice. The DAG questioned what I meant by collusion and I explained that I was referring to the investigation of any potential links between the Trump campaign and the Russian government. I explained that the counterintelligence investigations of this sort were meant to uncover any [sic] the existence of any threat to national security as well as whether or not criminal conduct had occurred. Regarding the obstruction issues, I made clear that our predication was based not only on the president’s comments last week to reporter Lester Holt (that he connected the firing of the director to the FBI’s Russia investigation), but also on the several concerning comments the president made to Director Comey over the last few months. These comments included the President’s requests for assurances of loyalty, statements about the Russia investigation and the investigation of General Michael Flynn. I also informed the DAG that Director Comey preserved his recollection of these interactions in a series of contemporaneously drafted memos. Finally, I informed the DAG that as a result of his role in the matter, I thought he would be a witness in the case. [my emphasis]

The substance of this paragraph has been told before, albeit by certain NYT reporters who have consistently misunderstood the substance of Trump’s ties to Russia. Those tellings have always left out that McCabe also predicated a conspiracy to obstruct justice investigation (meaning, among other things, that Rosenstein himself was on the line for his actions to create an excuse for firing Comey). The emphasis, here, is also not focused exclusively on Mike Flynn but on the Russian investigation generally; as I’ve been meaning to show, Trump faced at least as much direct exposure given the investigation into Roger Stone, and his actions after he learned Stone was a target in March 2017 reflect that more than commonly understood.

By far, the most important detail in this paragraph, however, is McCabe’s definition of “collusion,” as he explained it the day before Rosenstein appointed Robert Mueller to investigate what he would later call collusion. Collusion, for McCabe, is just “potential links between the Trump campaign and the Russian government,” not necessarily any criminal ties. McCabe made this statement at a time when FBI knew about neither the June 9 meeting to get dirt on Hillary Clinton nor Trump’s sustained effort to pursue an improbably lucrative Trump Tower deal, to say nothing of the fact that Trump’s campaign manager was sharing campaign strategy while discussing how to carve up Ukraine to Russia’s liking. That is, according to the definition McCabe used, the investigation did find “collusion.” Period, end of sentence.

Importantly, the first thing McCabe raised when discussing such — at that point hypothetical — links was national security, not criminal campaign finance or bribery exposure. That is, McCabe opened the “collusion” investigation to find out whether Trump’s — at that point hypothetical — links to the Russian government were making the US less secure. The answer to that question was not included in the Mueller Report; indeed, the most glaring evidence that those links did make the US less secure were very pointedly not included in the report.

This is an important lesson as the Ukraine investigation — which cannot and should not be separated from the Russian investigation — proceeds, one that has thus far been deemphasized again. Trump’s continued efforts to pursue policies — foreign and domestic — that personally benefit him don’t just amount to breathtaking corruption. They provide foreign countries more and more leverage to use against Trump to limit his policy options. Every time Trump does something scandalous with a foreign leader — and he does it all … the … time — it means those foreign leaders can hold that over Trump going forward and in so doing, limit his negotiating position. So not only do Americans lose out on having a President who makes decisions based on how they benefit the country rather than himself personally, but they also get a far weaker President in the bargain, someone who — if he ever decided to prioritize American interests over his own — would have already traded away his bargaining chips to do so.

Through his actions thus far as President, Trump has guaranteed he cannot pursue policies that would benefit average Americans, and he has done so not just with Russia and Ukraine, and not just because of his executive incompetence.

There is an impact that Trump’s “collusion” and corruption have on everyday Americans, whether they wear pussy hats or MAGA caps, an impact that Democrats have permitted Republicans to obscure. Trump’s actions effectively rob Americans of the powerful executive on foreign policy issues that our Constitution very imperfectly sought to ensure, without stripping the weakened Trump of the tools he can wield to punish those who call him on his weakness.

Because he always self-deals, Trump has made himself an intolerably weak President, one who makes the US less secure at every step. Republicans defending him need to be held accountable for weakening the US.

What we know of Bill Barr’s treatment of the ICIG referral on the Ukrainian whistleblower suggests he only reviewed it, cursorily, for criminal campaign finance violations — possibly not even the obvious presidential bribery prohibited explicitly by our Constitution it exhibits. Bill Barr did not, with the Russian investigation and has not with the Ukrainian referral, consider how by protecting Trump’s actions, he robs every American of what the Constitution guarantees: a President, not a man shopping for revenge and phallic symbols in foreign capitals. That’s why Barr had to totally distort the conclusions of the Mueller report on collusion: to hide what it is really about and to hide how enabling such activity by Trump hurts Americans.

Yet from the start, from the moment when McCabe opened an investigation into Trump, that’s what it was supposed to be about.

The Implications of Russia’s Identification of FBI’s Assets

Yahoo has a piece describing a series of compromises Russia inflicted on FBI — and, to a lesser degree, CIA — communications systems in the lead-up to the 2016 operation.

American officials discovered that the Russians had dramatically improved their ability to decrypt certain types of secure communications and had successfully tracked devices used by elite FBI surveillance teams. Officials also feared that the Russians may have devised other ways to monitor U.S. intelligence communications, including hacking into computers not connected to the internet.

Among the secondary damages, it appears, were some of the FBI’s assets.

Spooked by the discovery that its surveillance teams’ communications had been compromised, the FBI worried that some of its assets had been blown, said two former senior intelligence officials. The bureau consequently cut off contact with some of its Russian sources, according to one of those officials.

At the time of the compromise, some of the FBI’s other Russian assets stopped cooperating with their American handlers. “There were a couple instances where a recruited person had said, ‘I can’t meet you anymore,’” said a former senior intelligence official. In a damage assessment conducted around 2012, U.S. intelligence officials concluded the events may have been linked.

Even assuming this is the only time in recent years Russia compromised the FBI’s assets, that raises interesting possibilities given the prominence of once and former FBI assets among those who reached out to Trump flunkies during the 2016 operation. Henry Oknyansky, who first dangled damning information on Hillary to Roger Stone in May 2016, claimed on multiple occasions to be a former FBI asset. While he claimed ongoing communications with the FBI in 2013, the last time he got public benefit parole entry to the US was in 2012. Then there’s Felix Sater, an even more celebrated FBI informant. It’s not entirely clear how long he continued to work for the FBI, but his 5K1.1 letter was submitted in 2009 and the first efforts to unseal his docket date to 2012.

At the very least, former assets would know how FBI communicated, to expose or protect the Trump flunkies accordingly. But once and former assets might also still enjoy a kind of whitelist where they might otherwise be surveilled. And while the Trump flunkies have not done this with Sater (although Judicial Watch just filed a lawsuit for this), when Stone had to admit to his contact with Oknyansky, he immediately claimed it was an FBI sting and not a genuine dangle.

Donald Trump Was “Colluding” with Roger Stone on Four Different Direct Lines

The parties in the Roger Stone trial just released some pre-trial documents that include a stipulation for a bunch of emails and phone numbers that will be discussed at trial. (I’m not linking them because they’re not redacted.)

The big surprise — though I guess we should have expected this — is that Erik Prince is on there, which means he’s probably the Trump supporter eagerly awaiting the drop of John Podesta’s emails.

On or about October 3, 2016, STONE wrote to a supporter involved with the Trump Campaign, “Spoke to my friend in London last night. The payload is still coming.”

[snip]

Later that day, on or about October 4, 2016, the supporter involved with the Trump Campaign asked STONE via text message if he had “hear[d] anymore from London.” STONE replied, “Yes – want to talk on a secure line – got Whatsapp?” STONE subsequently told the supporter that more material would be released and that it would be damaging to the Clinton Campaign

But far more damning is that there are four Donald Trump phone numbers there, as well as numbers for his two assistants and his bodyguard, Keith Schiller.

Trump told Robert Mueller, under oath, that he didn’t remember being in the loop on Roger Stone’s efforts, clear lies.

Response to Question II, Part (e)

I was in Trump Tower in New York City on October 7, 2016.

I have no recollection of being told that WikiLeaks possessed or might possess emails related to John Podesta before the release of Mr. Podesta’s emails was reported by the media. Likewise, I have no recollection of being told that Roger Stone, anyone acting as an intermediary for Roger Stone, or anyone associated with my campaign had communicated with WikiLeaks on October 7, 2016.

Response to Question II, Part (f)

I do not recall being told during the campaign that Roger Stone or anyone associated with my campaign had discussions with any of the entities named in the question regarding the content or timing of release of hacked emails.

Response to Question ll, Part (g)

I spoke by telephone with Roger Stone from time to time during the campaign. I have no recollection of the specifics of any conversations I had with Mr. Stone between June 1.2016 and November 8, 2016. I do not recall discussing WikiLeaks with him, nor do I recall being aware of Mr. Stone having discussed WikiLeaks with individuals associated with my campaign, although I was aware that WikiLeaks was the subject of media reporting and campaign-related discussion at the time.

Now we know that Trump spoke to Stone a lot. So much so it’s going to make clear all these claims are lies.

In the George Papadopoulos’ testimony to Congress, Mark Meadows defined “collusion” to mean “benefitting from Hillary Clinton emails.”

Mr. Papadopoulos. And after he was throwing these allegations at me, I —

Mr. Meadows. And by allegations, allegations that the Trump campaign was benefiting from Hillary Clinton emails?

Mr. Papadopoulos. Something along those lines, sir. And I think I pushed back and I told him, I don’t know what the hell you’re talking about. What you’re talking about is something along the lines of treason. I’m not involved. I don’t know anyone in the campaign who’s involved. And, you know, I really have nothing to do with Russia. That’s — something along those lines is how I think I responded to this person.

Mr. Meadows. So essentially at this point, he was suggesting that there was collusion and you pushed back very firmly is what it sounds like.

It turns out Donald Trump was “colluding” with Roger Stone on four different direct lines!

Remember Roger the Rat-Fucker?

I’d like to point to three data points on Roger Stone, who is scheduled to go on trial on November 5, 364 days before the 2020 Presidential election.

Andrew Miller will testify against his former boss

First, Natasha Bertrand reported yesterday that Andrew Miller — the Roger Stone aide who fought a grand jury subpoena for a year — has been called as a government witness in Stone’s trial.

Andrew Miller, a longtime aide to Stone, received a subpoena in early August to appear as a government witness, said Miller’s lawyer, Paul Kamenar. Kamenar said he was “puzzled” as to why prosecutors wanted Miller as a government witness — he said earlier this year that he did not think Miller would be called — but confirmed that Miller plans to comply.

The result is that one of Stone’s closest aides will be testifying about him at his trial in November for lying to Congress about his dealings with WikiLeaks during the 2016 election. He has pleaded not guilty.

Miller worked with Stone for over a decade, managing his schedule and travel. Miller accompanied Stone to the Republican National Convention in 2016, meaning he might have insight into Stone’s activity around this time.

It’s clear that Miller’s lawyer doesn’t understand how his client’s testimony helps the government’s case. But it’s worth considering that we still don’t know how Roger Stone was learning of WikiLeaks’ plans. WikiLeaks claims they never spoke to him directly until later in the process, and Jerome Corsi does not appear to learn anything until weeks later (and I don’t rule out Corsi learning some of it from Stone, not vice-versa).

But, at least according to Michael Cohen’s testimony (which he suspects was corroborated by other sources), Stone called Donald Trump on either July 18 or 19 and told the candidate that WikiLeaks was about to drop a massive dump of emails that would damage Hillary’s campaign.

As I earlier stated, Mr. Trump knew from Roger Stone in advance about the WikiLeaks drop of emails. In July 2016, days before the Democratic Convention, I was in Mr. Trump’s office when his secretary announced that Roger Stone was on the phone. Mr. Trump put Mr. Stone on the speaker phone. Mr. Stone told Mr. Trump that he had just gotten off the phone with Julian Assange, and that Mr. Assange told Mr. Stone that within a couple of days, there would be a massive dump of emails that would damage Hillary Clinton’s campaign.

Mr. Trump responded by stating to the effect, Wouldn’t that be great.

[snip]

Ms. WASSERMAN SCHULTZ. Roger Stone says he never spoke with Mr. Trump about WikiLeaks. How can we corroborate what you are saying?

Mr. COHEN. I don’t know, but I suspect that the special counsel’s office and other government agencies have the information that you are seeking.

[snip]

Mr. COHEN. Yes. I’m sorry. I thought you were talking about a different set of documents that got dumped. So I was in Mr. Trump’s office. It was either July 18th or 19th. And, yes, he went ahead. I don’t know if the 35,000—or 30,000 emails was what he was referring to, but he certainly had knowledge.

Stone would have been calling from the RNC. It’s likely he learned about the emails not from Assange (he was just fluffing his value on that point), but someone whom he met with at the RNC — there has long been speculation this was Nigel Farage. Andrew Miller would be able to corroborate precisely who Stone was meeting before he called the candidate and gave him foreknowledge of the dump.

How Stone learned about WikiLeaks’ plans may be 404(b) information

Mind you, when and from whom Stone learned of WikiLeaks’ plans isn’t necessary to prove that he knowingly lied to the House Intelligence Committee in 2017.

But I suspect Miller’s subpoena comes after some sealed discussions in his case that started in June. On June 26, Judge Amy Berman Jackson permitted the government to file a 404(b) notice under seal as sealed docket item #139.

The Court grants the government’s motion to file under seal but notes it may revisit the need for the seal after it has reviewed the materials more closely. The Clerk of Court is directed to file under seal [139-1] Government’s Notice of Intention to Introduce Evidence Under Federal Rule of Evidence 404(b).

Then, on July 9, ABJ permitted Stone to file the response, as sealed docket item #143 (with two exhibits) under seal.

The Court grants defendant’s motion to file under seal but notes it may revisit the need for the seal after it has reviewed the materials more closely. The Clerk of Court is directed to file under seal [143-1] Defendant’s Response to Government’s Notice of Intention to Introduce Evidence Under Federal Rule of Evidence 404(b), [143-2] Exhibit A to the response, and [143-3] Exhibit B to the response.

On July 26, ABJ permitted the government to file, as sealed docket item #152 (with two exhibits) under seal as part of the motion in limine process deciding what will and will not be admitted.

The Clerk of Court is directed to file under seal [152-2] the Government’s Motion in Limine to Admit Two Newspaper Articles as Part of the Government’s Rule 404(b) Evidence, [152-3] Exhibit A, and [152-4] Exhibit B. Signed by Judge Amy Berman Jackson on 7/26/19.

There’s no sign of an order on 404(b) material (though there are other unexplained sealed docket items). But the fact that the government moved to pre-clear some newspaper articles as evidence under 404(b) may suggest ABJ has ruled.

Rule 404(b) governs whether or not you can introduce evidence that addresses character, other crimes, or other acts, beyond the scope of the indictment.

(2) Permitted Uses; Notice in a Criminal Case. This evidence may be admissible for another purpose, such as proving motive, opportunity, intent, preparation, plan, knowledge, identity, absence of mistake, or lack of accident. On request by a defendant in a criminal case, the prosecutor must:

(A) provide reasonable notice of the general nature of any such evidence that the prosecutor intends to offer at trial; and

(B) do so before trial — or during trial if the court, for good cause, excuses lack of pretrial notice.

It is often done to explain a defendant’s purported motive (as it was with Craig). So the government is seeking to provide other evidence of Stone’s rat-fuckery that is not, however, central to the charges against him, lying to Congress.

Which raises the question of what this 404(b) material might be and why it was submitted under seal. On the question of a seal, for comparison sake, the government sealed neither their request to submit evidence on Ukrainian procurement in Paul Manafort’s (aborted) trial under ABJ nor their request to submit evidence that Greg Craig was trying to curry favor with Manafort by hiring his daughter in the former White House’s (unsuccessful) prosecution under ABJ. Those weren’t hugely damning, sure, though the Craig detail was political damaging. Though this is obviously something more sensitive, either because the government still treats it as sensitive or because it would impair Stone’s ability to get a fair trial.

Details about how Stone learned of WikiLeaks’ plans would qualify as the former, and that’s something that Miller’s testimony is likely directly relevant to.

Details of how Stone kept candidate Trump informed of his plans at every step would qualify as the latter (and that’s a detail that is not spelled out in the indictment, even though it should have been).

Both would explain his motive to lie — whatever source he’s been hiding inside a nesting Matryoshka doll of lies constructed with Jerome Corsi, and the degree to which Donald Trump was pushing his rat-fucker to optimize the release of emails stolen by Russian military intelligence to help Trump get elected.

Aside from the detail that Miller’s accounting of Stone’s schedule at the RNC might explain who the source is, the rest of this is all speculative: these are possible answers, but just guesses.

Roger Stone’s birthday party for his freedom

Which brings us to the fundraising birthday card Stone sent out on August 27.

Sent by email and bitching about press coverage, especially the dig against CNN for covering his arrest live, the fundraiser risks falling afoul of ABJ’s gag again.

Nevertheless, Stone risks sanctions for violating the gag to remind his readers, one of whom — President Trump — he names twice, that his trial is quickly approaching. He reminds his readers of the cost he has already paid for not pleading guilty. He reassures his readers, including the named one, that he will not “testify falsely about anyone or anything,”

It’s unclear whether this is a demand for a pre-trial pardon (which would save Trump the embarrassment of the trial), or whether it’s an attempt to call Trump’s attention to his plight. But it’s little different from the messaging back and forth on pardons that Mueller laid out in his report.

Certainly Stone has seen something that makes him want to remind Trump of his oncoming trial.

 

Roger Stone Once Again Limits His Denials

In addition to the government showing that Roger Stone is a disorganized crime figure the other day, Roger Stone submitted a curious filing of his own, in yet another apparent attempt to feed denialist propaganda.

A week earlier, the government made a detailed argument that Stone, in his sustained bid to make his trial an attempt to challenge the government evidence that Russia hacked the DNC, misunderstood what the case was about. All that matters, the government argues, is whether Stone’s lies materially affected the House Intelligence investigation into the Russian tampering.

Stone’s false statements also had a natural tendency to (and in fact did) affect HPSCI’s investigative steps, priorities, and direction—regardless of Russia’s 2016 activities. See United States v. Safavian, 649 F.3d 688, 691-92 (D.C. Cir. 2011) (statements material if they “were capable of influencing the course of the FBI’s investigation”). For example, HPSCI did not subpoena the written communications that Stone claimed not to exist, and HPSCI did not investigate the other intermediary (Person 1) when Stone claimed that Person 2 was his sole intermediary. Moreover, Organization 1’s activities and coordination with Stone were relevant to evaluating the Intelligence Community’s work, to assessing any risks that Organization 1 may pose, and to considering any future actions that should be taken to deter coordination with state and non-state actors seeking to influence American elections. None of these understandings of materiality depends in any way on whether Russia in fact participated in the hacks or transmitted the hacked materials to Organization 1, and therefore Stone’s evidence on that subject is not relevant to the materiality inquiry.4

As part of that discussion, in a footnote, they engage in some counterfactuals to show how, even if some alternative scenarios, including the main one suggested by Stone, were true, his lies would still be material.

4 Even under Stone’s crabbed view of materiality and HPSCI’s investigation, Stone’s statements were still material, regardless of Russia’s exact role. Stone now primarily focuses only on evidence about whether Russia transferred the stolen files. But even if Organization 1 received the files elsewhere, it does not follow that Organization 1 has no connection to Russia’s election interference. For example, Organization 1 could theoretically have received the files from someone who received them from Russia; Russia could theoretically have coordinated its other election interference activities with Organization 1’s posting of stolen documents even if Russia was not Organization 1’s source; and individuals associated with the Trump Campaign could theoretically have played a role coordinating the two. Under any view, Stone’s communications with and about Organization 1 were material, regardless of Russia’s exact role.

As you read this “theoretical” scenario, remember that the campaign considered reaching out to WikiLeaks after the John Podesta files got released. And Roger Stone was — at least in 2018 — among those Trump flunkies who were trying to get Julian Assange a pardon.

The government presents this as theoretical, but it demonstrates, correctly, that WikiLeaks’ role in the operation matters whether or not the person who dealt them one or another set of files was a Russian intelligence officer.

Stone spends much of his response claiming (nonsensically) that because the government wants to introduce a Julian Assange video to establish dates for the public record surrounding certain details (in that case, when it was publicly knowable that WikiLeaks would release more files), it makes the issue of how Russia got the files to WikiLeaks central. In the hands of better lawyers — or at least, lawyers who weren’t playing for a pardon — this argument might have merit. In Stone’s case it doesn’t, in part because he failed to describe what evidence he wanted to introduce, and in part because he doesn’t understand what files Bill Binney, one of his intended witnesses, is talking about (they’re not the John Podesta emails, and so are irrelevant to Stone’s lies).

The government objects to Roger Stone presenting two witnesses who will testify, and demonstrate, that WikiLeaks did not receive the relevant DNC and DCCC data from the Russian state. That evidence will establish that the relevant data was “leaked” to WikiLeaks, not transferred to WikiLeaks by the Russian State. The government claims such evidence will be irrelevant, unfairly prejudicial, and cause delay and would turn the subject matter into a “mini-trial.” The government states: “If a person chooses to make false statements to the government, he or she takes the risk that the false statement is material.” (Motion at 14). But, the government takes the same risk: that the alleged false statements might be deemed immaterial by the jury. 1

Stone should be permitted to present evidence that his answers did not materially affect the congressional investigation because the Indictment makes clear that the investigation was of a “Russian state hack.”

But along the way, Stone includes his own footnote where he (perhaps in an effort to present a quote that denialists like Aaron Maté can quote without context, as Maté has done repeatedly as the useful idiot of both Stone and Concord Management) misrepresents the government’s theoretical as instead genuine curiosity.

1 The government wonders if the Russian state hacked and stole the relevant data and then someone else coordinated the delivery of the data to WikiLeaks. See Dkt. #172 n. 4. The government, nor the Mueller report proved or disproved this scenario. But if WikiLeaks did not receive the data from the Russian state then Stone’s communications with WikiLeaks were immaterial.

Stone is absolutely right that the government doesn’t prove or disprove this scenario. The Mueller Report notes explicitly that,

The Office cannot rule out that stolen documents were transferred to WikiLeaks through intermediaries who visited during the summer of 2016. For example, public reporting identified Andrew Müller-Maguhn as a WikiLeaks associate who may have assisted with the transfer of these stolen documents to WikiLeaks.

The prosecutors in his case aren’t tasked with answering that question. Indeed, if pressed, they could argue that Stone’s lies might well have served to hide firsthand knowledge of how the Podesta emails did get to WikiLeaks, which would make them even more material.

From a legal standpoint, Stone’s argument is unlikely to work, even if it were argued with more legal rigor.

What I’m interested in, however, is how Stone homes in on just one part of the scenario, the hand-off of files to WikiLeaks. The government actually laid out three parts to its theoretical: WikiLeaks got the files stolen by Russia from a cut-out, but also coordinated with Russia on “other election interference activities,” and individuals associated with the Trump campaign played a role coordinating the handoff of the files and WikiLeaks’ other coordination with Russia.

  • Organization 1 could theoretically have received the files from someone who received them from Russia;
  • Russia could theoretically have coordinated its other election interference activities with Organization 1’s posting of stolen documents even if Russia was not Organization 1’s source;
  • Individuals associated with the Trump Campaign could theoretically have played a role coordinating the two.

It’s a series of tantalizing hypotheticals! And while the first two (the second of which is pretty oblique) could independently be true, the last one implies the two would not be independent, but that, instead, someone “associated” with the Trump campaign coordinated the first two steps.

But of course, the government presents all this as a theoretical possibility, not (as Stone falsely claims) as a question they’re seeking, here, to answer.

Stone, however, only deals with the first part of that scenario: “the Russian state hacked and stole the relevant data and then someone else coordinated the delivery of the data to WikiLeaks.” He doesn’t address the possibility that WikiLeaks had some other kind of role. And he definitely doesn’t address the possibility that someone “associated” with the Trump campaign had a role in coordinating the two. In a gesture towards addressing a government hypothetical (in part) that some individual associated with the Trump campaign might have coordinated other election year activities, Stone suggests that the only way the communications of a Trump associate with WikiLeaks would be material would be if the communications involved actual transfer of emails.

This is something Stone has long been doing — making narrowly tailored denials that don’t address some tantalizing possibilities: in this case, that Stone had a role arranging something else with WikiLeaks.

And all the while, Stone drops a suggestion that overstates the uncertainty of what the government knows.

The Government Accuses Roger Stone of Being a Disorganized Figure Who Committed a Crime

The government and Roger Stone are arguing over whether prosecutors can show the Frank Pentangeli clip from the Godfather II at his trial. Last month, the government argued they need to show the clip to explain the context of Stone’s orders to Randy Credico to ““Start practicing your Pantagele.”

The clip of Pentangeli’s testimony is directly relevant to the charge of witness tampering in this case (count 7). To prove that charge, the government must prove that Stone corruptly persuaded or attempted to corruptly persuade a witness (Person 2), intended to interfere in that witness’s testimony, and did so with a current or future proceeding in mind. See 18 U.S.C. § 1512(b)(1); United States v. Edlind, 887 F.3d 166, 172-174 (4th Cir. 2018). Several of the allegedly criminal acts at issue involve Stone’s referencing Pentangeli and Pentangeli’s testimony before Congress. To understand Stone’s messages to Person 2—including what Stone was asking Person 2 to do—it is necessary to understand those references. Taken in context, Stone’s references to Pentangeli and to specific lines spoken by Pentangeli are unmistakable. This clip is highly probative of the meaning of Stone’s communications to Person 2.

[snip]

Watching the movie clip and seeing the context in which Pentangeli delivers the lines that Stone quotes to Person 2 makes clear that Stone’s messages were not mere references to Person 2’s abilities as an impressionist, but rather were a suggestion that Person 2 testify falsely to Congress. The clip is an important piece of evidence on this critical, disputed issue.

In response, in one of their most seriously argued filings, Stone’s team argued the clip would unduly link Stone with the mafia (though they got the role Stone would play in the analogy wrong).

Any reference to “The Godfather” (regardless of which one) brings up a clear and unalienable connection to the Italian-American Mafia. Any attempts to compare the conduct of Stone to that of an alleged mafia member, testifying that he murdered on the orders of ‘the Godfather’ will instantly create a connection in the minds of the jurors that Stone is somehow similar to a murderous mafioso.

[snip]

Stone objects because unlike the other movies and interviews cited by the government, the Godfather trilogy is iconic and its themes and implications are known by most people who are potential jurors. A clip of the movie triggers the implication of the entire series – cold, calculated, violence and crime.3 Once a Mafia connection is made the damage will be done.

In a footnote, Stone’s lawyers suggest that the government didn’t include a transcript because it would alert Judge Amy Berman Jackson to how damning the clip would be. They claim to include a transcript as an exhibit.

The government either assumes the Court is necessarily familiar with the movie clip from the Godfather II, or recognizes that if it were to see it the nature of its improper character evidence and unfairly prejudicial clip would be apparent. The transcript of the scene is presented as Exhibit – 1, the movie clip itself is presented here (click here).

Today, the government responded, in part, by suggesting that showing the clip would not be unfairly prejudicial, it would just fully explain the crime Stone allegedly committed.

As the D.C. Circuit has observed, Rule 403 does not apply to “powerful, or even ‘prejudicial’ evidence” but instead “focuses on the ‘danger of unfair prejudice.’” United States v. Gartmon, 146 F.3d 1015, 1021 (D.C. Cir. 1998) (Court’s emphasis). This means “an undue tendency to suggest decision on an improper basis, commonly, though not necessarily, an emotional one.” Old Chief v. United States, 519 U.S. 172, 192 (1997). While the scene from The Godfather Part II may be dramatic in some sense, Stone chose to reference it, and Rule 403 “does not provide a shield for defendants . . . permitting only the crimes of Caspar Milquetoasts to be described fully to a jury.”

In a footnote, however, they note that the transcript Stone included inaccurately described both the words and actions from the movie.

Stone’s response attached a purported transcript of the clip at issue. See Doc. 171, Ex. 1. This transcript is inaccurate in several respects, including the words transcribed and actions described. The government respectfully suggests that the Court review the film clip itself, and the government can make a copy available for the Court’s review upon request.

In point of fact, they didn’t make the transcription errors themselves; they just used an an early draft of the screenplay they found online. (h/t AL) The miscitation is ironic, though, in part because Stone appears to be prepping a challenge to the accuracy of the transcript of his interview with HPSCI, and also because it’s clear from Stone’s references to the scene in communications to Credico that he knows the scene better than whoever lazily just copied this from the web.

Ultimately, though, it shows that even in Stone’s most aggressively argued motion, his defense is still (as it has been repeatedly) totally disorganized and sloppy.

He might have done better arguing he has nothing in common with The Godfather because he’s a disorganized crime figure.

(h/t WB for the pun.)

The Transcript the Frothy Right Claims Exculpates George Papadopoulos Instead Probably Inculpates Him

Last Monday, Republican huckster lawyer Joe Di Genova promised — among other things — that the documents the frothy right has been promising will blow up the Russian investigation would be released Wednesday — that is, a week ago. The frothy right — which for some unfathomable reason is following sworn liar and all around dope George Papadpoulos like sheep — believes that a transcript of the interactions between him and Stefan Halper somehow includes evidence that undercuts the case that there was probable cause that Carter Page was an agent of a foreign power.

An exchange from Sunday, however, confirms that the transcript in question shows that Papadopoulos was actively lying in September 2016 about his ties to Russia. In an exchange with Papadopoulos, Maria Bartiromo confirmed that the transcript in question is the one on which the former Trump flunkie told Stefan Halper that working with Russia to optimize the release of emails stolen from Hillary would be treason.

Bartiromo said that she had spoken with Papadopoulos on Saturday night, during which he told her that the recorded conversation in question involves him and FBI informant Stefan Halper in September 2016. Papadopoulos allegedly pushed back against Halper’s suggestion that he or the Trump campaign would have wanted Russia to release the Democratic National Committee emails it hacked in 2016.

[snip]

Bartiromo then said that “George Papadopoulos told me last night” that the transcript Gowdy was referring to is from a conversation Papadopoulos had with Halper in London at the Sofitel Hotel in London where she recounted that, according to Papadopoulos, Halper questioned Papadopoulos, saying, “Russia has all of these e-mails of Hillary Clinton and you know, and when they get out that would be really good for you, right? That would be really good for you and the Trump campaign, if all those e-mails got out, right?”

But Bartiromo says Papadopoulos responded to Halper by saying “that’s crazy,” “that would be treason,” “people get hanged for stuff,” and “I would never do something like that.”

That means it’s the same transcript that Mark Meadows — questioning Papadopoulos about what he learned not from his lawyers (who said there was no misconduct with Papadopoulos) but from the John Solomon echo chamber — asks about here.

Mr. Meadows. You say a transcript exists. A transcript exists of that conversation?

Mr. Papadopoulos. That’s I guess what John Solomon reported a couple days ago.

Mr. Meadows. So are you aware of a transcript existing? I mean —

Mr. Papadopoulos. I wasn’t aware of a transcript existing personally.

Mr. Meadows. So you have no personal knowledge of it?

Mr. Papadopoulos. I had no personal knowledge, no.

Mr. Meadows. But you think that he could have been recording you is what you’re suggesting?

Mr. Papadopoulos. Yes.

Mr. Meadows. All right. Go ahead.

Mr. Papadopoulos. And after he was throwing these allegations at me, I —

Mr. Meadows. And by allegations, allegations that the Trump campaign was benefiting from Hillary Clinton emails?

Mr. Papadopoulos. Something along those lines, sir. And I think I pushed back and I told him, I don’t know what the hell you’re talking about. What you’re talking about is something along the lines of treason. I’m not involved. I don’t know anyone in the campaign who’s involved. And, you know, I really have nothing to do with Russia. That’s — something along those lines is how I think I responded to this person.

By Papadopoulos’ own memory, he said three things in a mid-September meeting with Stefan Halper:

  1. He didn’t know anything about the Trump campaign benefitting from Hillary Clinton emails
  2. He believed if he did know about such a thing, it would amount to treason
  3. “I really have nothing to do with Russia”

Papadopoulos pled guilty, under oath, with the advice of counsel who knew the contents of this interview, that in fact he did know about the Trump campaign benefitting from Hillary Clinton emails, because he had been told about it in April 2016. So that’s one lie that this supposed exculpatory transcript records him telling.

I’m more interested in the second lie: that he “really has nothing to do with Russia.”

He made that statement sometime around September 16, 2016, in London. A month earlier, Papadopoulos had very different plans for a mid-September trip to London. He planned a meeting in London with the “Office of Putin,” that would hide any formal tie with the campaign.

The frothy right makes much of the fact that that meeting, as far as we know, did not take place. Though there is a written record of Sam Clovis — who probably was not entirely forthcoming in a grand jury appearance — encouraging Papadopoulos and Walid Phares to pursue such a meeting if feasible. More importantly, a year later, at a time when he was purportedly cooperating, Papadopoulos refused to cooperate in transcribing these notes, meaning he was still covering up the details about the fact that as late as mid-August the Trump campaign had plans to have a secret meeting at precisely the same time and in the same place that this Halper transcript was recorded.

Papadopoulos declined to assist in deciphering his notes, telling investigators that he could not read his own handwriting from the journal. Papadopoulos 9/19/17 302, at 21. The notes, however, appear to read as listed in the column to the left of the image above.

Worse still, Papadopoulos continued to show great enthusiasm for Russia even after the meeting where he claimed he “really has nothing to do with Russia.” He proudly alerted Joseph Mifsud of his September 30 column attacking sanctions against Russia.

On or about October 1, 2016, PAPADOPOULOS sent Mifsud a private Facebook message with a link to an article from Interfax.com, a Russian news website. This evidence contradicts PAPADOPOULOS’s statement to the Agents when interviewed on or about January 27, 2017, that he had not been “messaging” with [Mifsud] during the campaign while “with Trump.”

This column led the Trump campaign to sever ties with Papadopoulos.

Papadopoulos was dismissed from the Trump Campaign in early October 2016, after an interview he gave to the Russian news agency Inter/ax generated adverse publicity.492

492 George Papadopoulos: Sanctions Have Done Little More Than to Turn Russia Towards China, Interfax (Sept. 30, 2016).

And in spite of claiming he had “nothing to do with Russia” sometime in mid-September, immediately after the election Papadopoulos pursued deals with Russia, via Sergei Millian.

On November 9, 2016, shortly after the election, Papadopoulos arranged to meet Millian in Chicago to discuss business opportunities, including potential work with Russian “billionaires who are not under sanctions.”511 The meeting took place on November 14, 2016, at the Trump Hotel and Tower in Chicago.512 According to Papadopoulos, the two men discussed partnering on business deals, but Papadopoulos perceived that Millian’s attitude toward him changed when Papadopoulos stated that he was only pursuing private-sector opportunities and was not interested in a job in the Administration.5 13 The two remained in contact, however, and had extended online discussions about possible business opportunities in Russia. 514 The two also arranged to meet at a Washington, D.C. bar when both attended Trump’s inauguration in late January 2017.515

In short, the transcript (if it reflects Papadopoulos claiming he had nothing to do with Russia) is not exculpatory. On the contrary, it’s proof that Papadopoulos lied about at least two of three things Halper grilled him about.

The frothy right doesn’t seem to care that this transcript proves Papadopoulos lied, even before he knew he was under legal scrutiny for ties to Russia he continued to pursue even after being questioned about them.

The frothy right is using it differently. Trey Gowdy claims the transcript proves that the FBI was questioning “Trump campaign officials” (Papadopoulos was never paid by the campaign and would be “fired” two weeks later for his open enthusiasm for sanctions relief) about the campaign.

Gowdy told Bartiromo that this transcript “certainly has the potential to be” a game changer and said that he was “lost” and “clueless” as to why it hadn’t been made public yet, stating that he didn’t think it contained any information that would have an impact on relationships with our allies.

Gowdy further said that the transcripts would show “what questions [the FBI] coached the informants or the cooperating witnesses to ask of the Trump campaign officials” and implied that the questions would show that the FBI had been targeting the Trump campaign rather than simply attempting to combat Russian election interference.

Gowdy claimed that if the transcripts showed that the FBI was “veering over into the campaign or your [the FBI’s] questions are not solely about Russia, then you [the FBI] have been misleading us for two years.”

Here’s how that belief looked when Mark Meadows first mainstreamed it last fall.

Mr. Meadows. So essentially at this point, he was suggesting that there was collusion and you pushed back very firmly is what it sounds like.

Mr. Papadopoulos. That’s what I remember, yes.

Mr. Meadows. Okay. And then what did he do from there?

Mr. Papadopoulos. And then I remember he was — he was quite disappointed. I think he was expecting something else. There was a —

Mr. Meadows. So he thought you would confirm that you were actually benefiting from Hillary Clinton’s email dump?

Mr. Papadopoulos. Perhaps that’s why he was disappointed in what I had to tell him, which was the truth.

Mr. Meadows. So you have no knowledge — you’ve already testified that you have no personal interaction, but you have no knowledge of anybody on the campaign that was working with the Russians in any capacity to get these emails and use them to the advantage. Is that correct?

Mr. Papadopoulos. That’s absolutely correct.

Mark Meadows is pretty dumb. But this line of questioning is pretty shrewd (and may show some awareness of details that were not, at this point, public). His purportedly slam dunk question, proving misconduct, is whether Papadopoulos — who has, at times, been referred to as a “coffee boy” and was not a paid member of the campaign — had personal interaction or “knowledge of anybody on the campaign [] working with the Russians in any capacity to get these emails and use them to the advantage.”

Papadopoulos claimed he did not have that knowledge.

But we know that by the time this meeting with Halper happened, Donald Trump had ordered his top campaign aides to get Roger Stone to reach out to WikiLeaks to “get these emails and use them to the advantage.” Not Russia directly, not anybody still with the campaign, but the campaign did in fact try to “get these emails and use them to the advantage,” which is how Mark Meadows defines “collusion.” In short, this slam dunk exchange defines “collusion” to be precisely what Trump asked his aides to ask his rat-fucker to accomplish.

The Mike Flynn cooperation addendum makes it clear that, “only a select few people were privy” to the discussions about optimizing the WikiLeaks releases. The candidate’s campaign manager was privy to those discussions. The deputy campaign manager was privy to those discussions. The candidate’s top national security advisor was privy to them. The candidate’s rat-fucker was entrusted with those efforts. The candidate himself pushed this effort and got communication back about it.

But the coffee boy was not privy to those discussions.

Finally, let’s turn to the really bizarre part of what is supposed to be a smoking gun.

Trey Gowdy claims to believe that a transcript showing that Papadopoulos was lying to hide his ongoing ties with Russia in September 2016 — the contents of which Papadopoulos’ lawyers appear to have known about, which did not persuade them any misconduct had occurred with their client — should have been disclosed to the FISA Court for an application targeting Carter Page.

Gowdy also claimed that the potentially exonerating info was misleadingly concealed from the Foreign Intelligence Surveillance Court by the FBI, and that this is not the only mysterious transcript yet to be released.

Now, I could be wrong about this. After all, Trey Gowdy is one of the few people who has reviewed the unredacted Page warrant, though in the past has said there was clearly enough evidence to justify the warrant, something the Mueller Report substantiates (in part by making clear that Page told the FBI he’d happily provide non-public information to known Russian spies). But it appears that Papadopoulos appears in Page’s FISA application because events he swore under oath happened suggest that Russia was trying to reach out to the Trump campaign (for which there is abundant evidence), in part by offering energy deals (which is one thing Papadopoulos was still chasing even after November 2016), and there was reason to believe both Papadopoulos and Page had gotten advanced notice of the July 22 DNC email drop.

  • FBI targeted Page because they believed Russia was recruiting him as part of their effort to influence the outcome of the election (4)
  • Trump named both Page and Papadopoulos as advisors in March 2016 (6)
  • What the FBI knew so far of Papadopoulos’ activities [and other things] led the FBI to believe that Russia was not just trying to influence the outcome, but trying to coordinate with Trump’s campaign as well (9)
  • Russia has recruited Page in the past (12-14)
  • [Redacted section that probably explains that Page had told the FBI that he thought providing information to people he knew were Russian intelligence officers was beneficial for both countries and, after he showed up in the Buryakov complaint, he told Russia he had not cooperated with the FBI] (14-15)
  • In addition to allegedly meeting with Sechin and discussing eliminating sanctions, he met with someone assumed to be Igor Nikolayevich Divyekin, also “raised a dossier of ‘kompromat’ that the Kremlin had” on Clinton and the possibility of it being released to Trump’s campaign (18)
  • After those July meetings, Trump appeared to change his platform and publicly announced he might recognize Crimea (21)
  • Once these details became public, the Trump campaign not only denied Page had any ongoing connection to the campaign, but denied he ever had, which was false (24)

Some of those allegations about Page — specifically about whether he was alerted to kompromat harming Hillary when he was in Moscow in July 2016 — may not be true (though Mueller concluded that it remained unresolved). But they were true about Papadopoulos.

Establishing proof that Papadopoulos was lying to people about his ties to Russia in the weeks before his role was included in a FISA application doesn’t really make his inclusion exculpatory. On the contrary, it makes it more justifiable.

The frothy right is so spun up by con man George Papadopoulos that they have run to the TV cameras and claimed that a transcript that shows Papadopoulos was lying to hide his ongoing efforts to establish ties with Russia was in some way exculpatory. I mean, sure, Bill Barr might believe this tale. But no one else should.

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

What I Would Do with the Mueller Report If I Were Reggie Walton

According to Politico, a hearing in the EPIC/BuzzFeed effort to liberate the Mueller Report went unexpectedly well today. It seems that Bill Barr’s propaganda effort to spin the results of the Mueller Report got Walton’s hackles up, leading him to believe that Barr’s effort covered up the degree to which Trump “colluded” with Russia.

Walton said he had “some concerns” about trying to reconcile public statements Trump and Attorney General William Barr have made about the report with the content of the report itself.

The judge pointed to Trump’s claims that Mueller found “no collusion” between his campaign and Russia and the president’s insistence that he had been exonerated from a possible obstruction of justice charge. These comments, Walton said, appeared bolstered by Barr’s description of Mueller’s findings during a DOJ news conference — before the public and media could read the document for themselves.

“It’d seem to be inconsistent with what the report itself said,” Walton said. The judge also cited a letter Mueller’s office sent to Barr questioning the attorney general’s decision to release a four-page summary of the investigation’s conclusions that “did not fully capture the context, nature and substance” of the report.

Separately on Monday, Walton raised questions about a DOJ submission defending the agency’s decision to black out large portions of the Mueller report.

“I also worked for the department,” Walton said. “Sometimes the body does what the head wants.”

I thought I’d lay out what I would do if I were Judge Walton. I’d make different decisions if I were a judge, but having covered some of his biggest confrontations with an expansive Executive, I’m pretending I can imagine how he’d think.

I’m doing this not because I think he’ll follow my guidance, but to establish what I think might be reasonable things to imagine he’ll review for unsealing.

Unseal the discussions of how Donald Trump père and fils avoided testifying to the grand jury

As I have noted, there are two passages apiece that describe how Donald Trump Sr and Donald Trump Jr avoided testifying to the grand jury. While they might discuss the grand jury’s interest in subpoenaing the men, and while they might (both!) say that the men would invoke the Fifth if forced to show up and invoke it, those passages likely don’t describe that the men did so.

Particularly given Jr’s willingness to testify to Congressional committees that likely don’t have all the documents from Trump Organization that Mueller had, those passages should be unsealed unless they involve real grand jury decisions.

Unseal the names of Trump flunkies against whom investigations were opened in October 2017

The most obviously dishonest thing Bill Barr did in releasing the Mueller Report is claim that those against whom prosecutions were declined were peripheral people. At least one person (and up to three people) in this passage is not: Don Jr. Walton should unseal these names, especially given that Barr lied about how peripheral, at least, the President’s son is.

Review the longer descriptions of those who lied but weren’t charged

There are up to three people that Mueller appears to have considered for perjury charges (page 194 and two people on page 199) and at least one more whom he considered charging for false statements. Some of the discussion of the people in the former category include non grand jury material as well.

If I were Walton, I’d review this entire section and (treating Roger Stone separately) would unseal at least the names of the senior Trump officials not charged (one is KT McFarland). Given the treatment of Jeff Sessions — whose prosecution declination was not sealed — DOJ has already treated people inconsistently in this section.

Review the declinations starting on page 176, page 179, and page 188 for possible unsealing

There are three declinations that are candidates for unsealing. The most important — which describes the office’s consideration of charging WikiLeaks’ releases of stolen emails as an illegal campaign donation — is the last one. It raises real campaign finance questions and would feed right into impeachment.

The charging decision on page 179 may explain why Don Jr wasn’t charged for sharing a link to a non-public site releasing stolen emails (but it could also pertain to someone no one knows who tried to hack Guccifer 2.0). If it’s the former, if I were Walton, I might consider unsealing that.

The most interesting charging decision, starting on page 176, may explain why WikiLeaks wasn’t charged, why Stone wasn’t or why others were not. If it’s WikiLeaks, it’s the kind of decision already made public in the recent SDNY decision and could be released. In any case, that’s a redaction that likely would be worth Walton’s judicial consideration.

Order that Roger Stone sections be unsealed if there’s a substantive change in his gag order

A huge chunk of the remaining redactions pertain to Roger Stone or his trial. They also are among the most damning to Trump, as they implicate him personally in trying to make the most of Russia’s effort to help him. I, as Marcy Wheeler, would love to see them, today.

But Reggie Walton, who presumably eats lunch with Amy Berman Jackson in the DC District Judges cafeteria, will also recognize the difficulties she faces in seating a jury for the trial of the President’s rat-fucker in November. So unless something changes to the status quo — in which ABJ has imposed a strict gag on Stone — then I suspect he’ll cede to her judgment.

And, frankly, anyone who’d like to see Stone face some kind of repercussions for his rat-fuckery should also support him getting a fair trial, meaning they should support the continued sealing.

That doesn’t stop Walton from ordering that if something changes — if Stone wins an appeal he announced today to get his gag overturned, if Trump pardons Stone, or if Stone pleads — then the sections will automatically become unsealed. One of the biggest ways Trump can avoid all repercussion for his efforts to optimize the release of stolen information is to have Stone avoid trial (either by pleading or being pardoned) but preventing a reconsideration of redactions done to protect his right to a fair trial.

Leave national security sections sealed because I’m Reggie Walton

I and many others would love to see more of the IRA and GRU sections (though there’s a gag in the IRA case now too), especially those sections about how GRU passed on materials to WikiLeaks.

But I’m not Reggie Walton. While he’s very happy to take on an expansive Executive, he generally shows significant deference for claims of national security. Thus, I expect he’ll likely leave this stuff sealed.

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