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How to Read the Mueller Report

Politico has a piece describing how key players will read the Mueller report that starts by admitting the usual workaround — reading the index — won’t work.

The capital has already evolved one model for processing a big tell-all book: “the Washington read,” where you scan the index (assuming there is one) to find everything it says about you, your boss and your enemies and then fake like you’ve read the rest. But this time that won’t be enough. The goods might not come easily. They might be buried in an obscure subsection. And there’s way more at stake than in the typical gossipy memoir.

Further down, David Litt graciously included me on a list of legal and analytical voices he’ll turn to to help understand the report.

Former Obama White House speechwriter David Litt will have Twitter open while he’s making his way through the report, watching in particular for posts from several of the more prominent legal and analytical voices who have narrated the story’s plot twists as it evolved: Ken White (@popehat), Mimi Rocah (@Mimirocah1), Renato Mariotti (@Renato_Mariotti), Marcy Wheeler (@emptywheel), Neal Katyal (@neal_katyal) “for the definitive word on special-counsel regs” and Nate Silver and FiveThirtyEight “to think through the political implications.”

Since most of the methods described by Politico’s sources actually will be counterproductive for anything but rushing a self-serving message to the press, I thought I’d lay out some tips for how I’ll read it.

Understand what the report is and is not

Even before Barr releases the report, those planning on reading it would do well to reflect on what it is — and what it is not. It is, by regulation, a report on the prosecutions and declinations the Mueller team took during their tenure.

It is not supposed to be, contrary to many claims, a report on everything that Mueller discovered. Already there have been hints that it will not include the second half of Rod Rosenstein’s mandate to Mueller — to figure out the nature of links between Trump’s team and Russia. If that stuff is excluded, then it probably will get reported, secretly, to the Intelligence Committees and no further. That’s important because the stuff that would compromise Trump — but would not necessarily implicate him in a crime — may by definition not show up in this report (though the stuff specifically relating to Trump may show up in the obstruction case).

Finally, it’s unclear how much Mueller will include about referrals and ongoing investigations. I expect he’ll include descriptions of the things he and Rosenstein decided deserved further prosecutorial scrutiny but did not fit under the narrow rubric of whether Trump’s team coordinated or conspired with the Russian government on the hack-and-leak. But with the sole exception of three known referrals: the hush payments negotiated by Michael Cohen, the prosecution of Mike Flynn partner Bijan Kian, and the prosecution of Sam Patten, I expect any discussion of these matters to be redacted — appropriately so.

Map out what we already know about prosecutorial decisions

Since the report is by regulation supposed to describe the prosecutorial and declination decisions, we already know much of what will show up in the report, because Mueller has helpfully showed his prosecutorial decisions right here on his webpage. Here are some questions we should expect the report to answer (working from the bottom):

Papadopoulos

  • Why did Mueller consider George Papadopoulos’ lies to the FBI material to the investigation? [Note, Mueller has already answered this in Papadopoulos’ sentencing memo.]
  • Did Mueller find any evidence that Papadopoulos had passed on news that Russia was planning to dump emails pertaining to Hillary in an effort to help Trump? What did those people do with that information?
  • What did the investigation of Sergei Millian, who started pitching a Trump Tower deal and other seeming intelligence dangles to Papadopoulos in July 2016 reveal? [This is a subject that may either be redacted, referred, or treated as counterintelligence saved for the Intelligence Committees.]

Mike Flynn

  • Why were Flynn’s lies about assuring Sergey Kislyak that Trump would revisit sanctions deemed material to the investigation? [Note, Mueller has already answered this in Flynn’s sentencing memo, but it is significantly redacted]
  • Why did Mueller give Flynn such a sweet plea deal, as compared to his partner Bijan Kian, who was named a foreign agent? What information did he trade to get it? [Some of this is included in his sentencing memo — because he flipped early, it led others to correct their lies — but key parts of it remain redacted.]
  • What other Trump aides (like KT McFarland) lied about the same topics, and why were their attempts to clean that up before being charged deemed sufficient to avoid prosecution?

There’s likely a great deal pertaining to Flynn — likely including the third topic on which he cooperated — that will be deemed counterintelligence information that will be briefed to the Intelligence Committees.

Richard Pinedo

  • Why did Mueller prosecute Pinedo as part of his investigation?
  • How did Mueller determine that Pinedo had not wittingly worked with Yevgeniy Prigozhin’s trolls?

There’s likely some counterintelligence information about how the trolls duped Pinedo and how the US might shore up that vulnerability, but given the focus on the trolls, I expect FBI has already briefed that to the Intelligence Committees in substantial part.

The Internet Research Agency

  • Given that Russia’s activities weren’t under the original scope of Mueller’s investigation; why did the trolls get moved under him? [The answer may be because of the Trump people found to have interacted with the trolls.]
  • Why did Mueller consider prosecuting Concord Management worth the headache?
  • How much of the relationship between Yevgeniy Prigozhin and Putin impacted this prosecution?
  • What did the three Trump campaign officials in Florida described in the indictment do after being contacted by the trolls about events in August 2016? Did any other people in the campaign join in the efforts to coordinate with the trolls? Why weren’t they prosecuted? [Whether the names of these three people are unredacted will be one of the more interesting redaction questions.]
  • Why weren’t the Trump and other political activists prosecuted?

We already know the answer to why Americans (save Richard Pinedo) were not prosecuted in this indictment: because they did not realize they were coordinating with Russian-operated trolls, and because, unlike Pinedo, nothing about their activities was by itself illegal.

There’s likely to be a lot of counterintelligence information on this effort that has been shared with the Intelligence Committees in ongoing fashion.

Alex van der Zwaan

  • Why did Mueller prosecute van der Zwaan himself, rather than referring it (as he did with Greg Craig and the other Manafort-related corruption)? Did that have to do with van der Zwaan’s independent ties with either Konstantin Kilimnik or his father in law, German Khan?

Rick Gates and Paul Manafort

  • Why did Mueller keep both Gates and Manafort prosecutions (the tax fraud prosecuted in EDVA and the FARA and money laundering violations in DC) himself? Was this just an effort to flip both of them, or did it pertain to an effort to understand the nature of their relationship with Kilimnik and a bunch of Ukrainian and Russian oligarchs?
  • What continuity is there between the methods and relationships involved in Manafort’s work in Ukraine with that he did for Trump?
  • What did Mueller get out of the cooperation agreements with Gates? This will be extensive! But a lot of it may be redacted because it pertains to counterintelligence or ongoing investigations.
  • What did Mueller get out of the failed cooperation agreement with Manafort? Part of this, too, is counterintelligence, plus Manafort appears to have made it through one grand jury appearance on November 2 without lying. But that topic may be redacted as either as part of either counterintelligence or ongoing investigations.

Konstantin Kilimnik

Because he charged Kilimnik and Kilimnik was so central to so much of his investigation, Mueller could describe why the government believes Kilimnik has a tie with the GRU. He likely won’t.

GRU hack indictment

  • Russia’s activities weren’t under the original scope of Mueller’s investigation; why did the GRU hack get moved under him? [The answer may be because Roger Stone and Lee Stranahan and Trump — in his encouragement — were implicated.]
  • Why weren’t WikiLeaks and/or Assange charged in the indictment?
  • What was the nature of Stone’s ties to Guccifer 2.0?
  • Was there reason to believe Trump knew GRU would respond to his encouragement?
  • How did the GRU operation link up with the activities of other people suspected to have ties to GRU, like the broker on the Trump Tower deal, Kilimnik, and a Mike Flynn interlocutor?
  • How did Mueller assess whether and how Russia used the data stolen from the Democrats, especially the analytics data stolen in September?
  • Did the data Kilimnik received from Manafort and shared with others make its way into GRU’s hands?

Michael Cohen

  • Why were Cohen’s lies about the Trump Tower deal deemed material to the investigation? [Unlike with Flynn and Papadopoulos, Mueller didn’t really explain this in the sentencing memo.]
  • Why was Cohen charged with lying, but not those he conspired to lie with, including Jay Sekulow, Don Jr,  and the President?
  • What other details of Trump’s business dealings did Cohen share?

Roger Stone

  • Why were Roger Stone’s lies to Congress deemed material to the Mueller investigation?
  • From whom did Stone and Jerome Corsi learn what GRU and WikiLeaks were planning to release?
  • Did Stone succeed in holding the release of the Podesta emails to dampen the Access Hollywood video release, as Corsi alleges?
  • What was Stone trying to hide when he had Corsi write a cover story for him on August 30, 2016?
  • Why didn’t Stone’s coordination to optimize WikiLeaks’ releases amount to coordination with Russia?
  • Why weren’t Corsi and Randy Credico (the latter of whom Stone accuses of lying to the grand jury) charged?
  • Why wasn’t Assange charged in conjunction with Stone?

Stone is still awaiting trial and prosecutors have just told the press that Stone remains under active investigation. So I expect virtually all the Stone section to be redacted.

Map out the big questions about declinations

Mueller will also need to explain why he didn’t charge people he investigated closely. This is another section where the fight over redactions is likely to be really heated.

Trump on obstruction and conspiracy

  • Did Mueller consider Trump’s enthusiastic encouragement of Russia’s operation and his move to offer Russia sanctions relief from a prosecutorial standpoint (that is, a quid pro quo trading the Trump Tower deal and election assistance for sanctions relief)? If so, what were the considerations about potential criminality of it, including considerations of presidential power? If not, was any part of this referred?
  • What was the consideration on Trump and obstruction? Did Mueller intend to leave this decision to Congress? [The report will not answer the second question; if Mueller did intend to leave the decision to Congress, as his predecessors Leon Jaworski and Ken Starr did for good Constitutional reasons, he will not have said so in the report.]

Paul Manafort on quid pro quo

  • Was Mueller able to determine why Manafort shared polling data with Konstantin Kilimnik on August 2, 2016? Did he know it would be shared with Russians close to the election interference operation? Did he agree to a quid pro quo involving the Ukrainian peace deal as sanctions relief he pursued for another 20 months? Did Manafort’s lies prevent Mueller from answering these questions?
  • What was the nature of and what was ultimately done with that polling data?
  • Why didn’t Mueller charge this as conspiracy or coordination? Did it have to do with Manafort’s lies and Gates’ limited credibility?

The June 9 meeting and follow-up

  • What consideration did prosecutors give to charging this as an instance of conspiracy or coordination?
  • What consideration did prosecutors give to charging the public claims about this meeting as an instance of false statements?
  • Did Trump know about this meeting and if so did that change the calculus (because of presidential equities) on a quid pro quo?
  • Did Mueller decide Don Jr is simply too stupid to enter into a conspiracy?
  • Did Mueller consider (and is DOJ still pursuing) prosecutions of some of the members of the Russian side of this meeting? [Note that Barr did not clear all US persons of conspiracy on the hack-and-leak; Emin Agalarov canceled his concert tour this year because his lawyer said he’d be detained, SDNY’s indictment of Natalia Veselnitskaya treats her as a Russian agent, and Rinat Akhmetshin and Ike Kaveladze may both have exposure that the Trump flunkies would not.]

The Seychelles meeting and related graft

  • Did Mueller decide the graft he uncovered was not criminal, not prosecutable, or did he refer it?

Carter Page

I, frankly, am not that interested in why Mueller didn’t prosecute Carter Page, and this section might be redacted for his privacy. But I am interested in whether leaks played a part of it, or whether Russians used him as a decoy to distract from where the really interesting conversations were happening.

Understand referrals and ongoing investigations, to the extent they’re included

As noted above, Mueller may have included a description of the referrals he made and the ongoing investigations that reside with some of his prosecutors and/or the DC AUSAs brought in to pick up his work. This includes, at a minimum:

  • Inauguration graft
  • Potential Don Jr and Jared Kushner graft
  • Mystery Appellant
  • Ongoing Stone investigations
  • The Cohen hush payments
  • Bijan Kian’s prosecution
  • Sam Patten’s prosecution
  • Other Manafort graft, including potential coordination with states
  • Tom Barrack’s graft
  • Greg Craig, Tony Podesta, Vin Weber, Steve Calk
  • Konstantin Kilimnik (which is likely a counterintelligence investigation, not a criminal one)

One big question I have is whether any criminal conduct with Russia that doesn’t involve the election would be covered by this report, referred, or considered an ongoing investigation??

While we should expect details of the decision to refer the Cohen, Bijan Kian, and Sam Patten prosecutions, most of the rest of this would likely be redacted (including the Craig prosecution, since it only just got indicted).

Understand the structure of the report

Having prepped yourself for what to expect in the report (and what won’t be there, like the counterintelligence stuff), you can now start by reviewing the structure of the report. Bill Barr claims the report is split into two sections, the Russian interference and Mueller’s thinking on obstruction. That may or may not be true — it’s one thing to assess when first reviewing the report.

One particularly interesting question will be the extent to which Mueller included stuff that might otherwise be counterintelligence information — things Russia did that would compromise or embarrass Trump — in the obstruction section.

Another thing to do while understanding the structure of the report is to see where all the things that must be in there appear. This will be particularly helpful, for example, in figuring out where what is sure to be a lot of redacted content on Roger Stone appears.

Do a first read of the report, paying particular attention to the footnotes

I find it really useful to share screen caps of what I’m finding in a first read, either on Twitter (for crowd sourcing) or in a working thread. The press flacks will do the work of finding the key takeaways and running to the cable news about them. Better to spend the time finding the details that add nuance to claimed takeaways, if only because adding nuance to claimed takeaways quickly helps avoid an erroneous conventional wisdom from forming.

Develop theories for redacted content

You’re not going to be able to prove what lies behind a redaction unless Mueller and DOJ commit redaction fail (they’re not Paul Manafort trying to signal to co-conspirators, so that won’t happen) or unless they accidentally leave one reference out. But based on the grammar of sentences and the structure of the report and — hopefully — Barr’s promised color coding of redactions, you should be able to develop theories about what generally is behind a redaction.

Identify big redacted sections

There may be sections that are both entirely redacted about which no clues as to the content exist. At the very least, identify these, and at least note where, structurally, they appear, as that may help to explain what big questions about the Mueller report are outstanding.

Read it again

I know most editors in DC won’t pay for this, which is why reporting on documents is often less rigorous than journalism involving talking to people. But for documents like this, you really need to read iteratively, in part because you won’t fully understand what you’re looking at until reading the whole thing a first time. So after you read it the first time, read it again.

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. 

The Many Sided Stone: The Investigation Is Not Over

While we have been talking about how good and done Robert Meuller’s investigation is, a slew of filings and other reports relating to Roger Stone in the last few days remind us that the fruits of his investigation are definitely not done.

Roger Stone’s cry for help

As background, consider this cry for help, in a local, as opposed to the kind of national media outlets that had recently hung on Roger’s every word. In it, he describes the burden of spending all his money on defense attorneys.

“The worst part of this is being broke,” he said on the SiriusXM program that airs weekdays on the Faction Talk channel 103.

“I’ve lost my home, my insurance, what little savings I had, my ability to make a living because people pay me to write and talk, and of course the things they want me to write and talk about are the very things I’m not allowed to talk and write about. In the blink of an eye you can lose everything.

“I have to pay everything I have to lawyers. And I could no longer pay the rent in the property that I was in. I moved from a nine-bedroom house to a one-bedroom apartment. Had to do the move myself with my wife renting a truck. On the last day of the move in kind of a freak accident the truck slips out of gear and rolls over my wife’s ankle, breaking it.”

More interestingly, Stone claims he hasn’t spoken with Donald Trump for almost two years (he doesn’t say whether his attorneys have spoken to Trump’s attorneys).

“I’ve known him for 40 years. We’re very good friends. I don’t agree with everything he does, I agree with a lot of what he does,” Stone said. Stone said Trump was at his wedding, and he at two of Trump’s weddings; he was at the funerals for Trump’s parents, and is friendly with his sister. “I do miss him.”

He also complains that Alex Jones is not selling T-shirts for him.

“I am grateful for Alex Jones for giving me a platform. He is a friend of mine. I like the guy, I like hanging out with him. I do not agree with everything he says, I agree with some of the things he says. He probably doesn’t agree with everything I say. But you know, the check would be nice.”

While I’m sure Stone exaggerates his financial straits, I’m also sure they’re considerable. These two specific calls for help, though (especially in the wake of allegations that InfoWars may have been providing hush money to Jerome Corsi), are especially interesting.

Stone’s throw of the dice

Meanwhile, the lawyers that are bankrupting Stone have been busy, filing six challenges to his indictment last night, several of them meritorious, the others not. The motions include:

  1. A bid to throw out the prosecution on several grounds designed to appeal to William Barr’s prejudices
  2. A demand for the full Mueller report based on some specious (appeals to Bill Barr) and some justified bases (prosecutorial decisions on Jerome Corsi and Randy Credico)
  3. A motion to enjoin his prosecution based on a claim that Congress hadn’t funded this Special Counsel investigation
  4. A motion to dismiss based on the claim that Mueller violated separation of powers by charging him for lying to HPSCI without a formal referral
  5. A request for discovery to support a selective prosecution claimed designed, in large part, to accuse Randy Credico of lying to the grand jury
  6. A renewed objection to having his case judged by Amy Berman Jackson along with the GRU hackers

He seems to be pursuing several strategies (beyond just throwing a bunch of spaghetti against the wall).

Embarrass Credico

The first is to use the motions process to discredit the witnesses against him. That’s most true of a passage of his selective prosecution motion that accuses Credico of lying to the grand jury.

Another witness, Randy Credico lied about speaking to Assange and Assange’s lawyer to federal agents. It is curious that the Special Counsel found one aspect of Credico’s interactions with Stone so compelling that it made its way into Stone’s Indictment. In Paragraph 14(e) of the Indictment, the Special Counsel quotes the conversation between Stone and Credico from Credico’s radio show of August 23, 2016. Stone and Credico have a discussion regarding communications with the “head of Organization 1.” Yet, astonishingly, in Credico’s testimony to the Grand Jury (DOJ-3500-RC-000111) Transcript Page 44, Lines 7-22, Credico tells the Grand Jury that on the very show they quote, Stone and Credico never discussed the head of Organization 1. For unknown reasons and the precise reason why discovery is mandated in these situations, the Special Counsel elected not to charge Credico with lying to the Grand Jury, something expressly within their regulatory authority.

Later in his testimony, Credico says that prior to his interview with presidential candidate Gary Johnson on September 10, 2016, that he had never spoken to Stone about WikiLeaks or Assange.3 This is a demonstrated lie as according to the text messages between Stone and Credico that Stone voluntarily released, and the Special Counsel possessed. As early as August 19, 2016, Credico was bragging to Stone that he had a connection to Assange and that it was through Margaret Kunstler, Esq., an attorney represented to be on Julian Assange’s legal team. There is no indication based on the initial review of discovery provided by the government that the Grand Jury was ever informed of Credico’s lies regarding the August 23d radio interview.

It’s unclear whether Stone’s representation of Credico’s grand jury testimony is fair. But if it is, the selective prosecution claim provides a way to discredit Credico.

Appeal to Barr and Trump

Then there’s a series of arguments that appear to be an attempt to appeal to Bill Barr’s prejudices, and through him, Trump. There’s the separation of powers argument about the lack of a criminal referral that suggests — incorrectly — that Mueller would have needed to rely on Adam Schiff’s testimony to assess whether and how Stone lied in his testimony (as a matter of courtesy, HPSCI shared informal copies of the transcripts with the IC) and claims — probably ridiculously — that an equivalent example of Barr’s contention that the president can’t be guilty of obstruction without committing the underlying crime is also true for the President’s rat-fucker. Stone repeats this argument in his demand for the full Mueller report, claiming that it will show there was no “collusion,” which therefore means he couldn’t obstruct anything.

The most novel of these arguments, however, is that the President — and his campaign from before he was elected!! — can’t be investigated under the Take Care Clause. This is mostly bullshit, a dime store version of Bill Barr’s own opininion excusing many kinds of obstruction for the President. Trump will like it best where Stone argued that investigating all links with Russia inhibited Trump’s ability to conduct foreign policy.

The Mueller Appointment grants the Special Counsel the authority to investigate “any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump.” Accordingly, every action taken by President Trump since he formed his campaign with regard to the United States’ relationship with Russia has been second guessed as evidence of “collusion,” or a conspiracy between Trump and Putin.20 Many have asserted that Putin has some form of control over Trump.21 The Special Counsel investigation has stimulated this second guessing, significantly undermining the President’s ability to conduct foreign policy with regard to Russia. The Special Counsel investigation hog-ties the President in the execution of his foreign policy.

The Mueller Appointment not only hobbles the President’s ability to conduct a rational foreign policy with regard to Russia, it undermines his ability to deal with every world leader. No President can deal effectively with the heads of other nations when he is the subject of a Department of Justice investigation that is prominently being portrayed in the press as imminently removing him from office. Counterparts will be inhibited in reliance on a President who may not serve out his term

This is bait for the frothy right. More importantly, it treats Roger Stone as the President for investigative purposes when according to both him and the President he wasn’t even formally part of the campaign for the key periods under investigation.

This is mostly spaghetti throwing for the frothy right, but there’s no telling what will happen if some of the nuttier GOP judges latch on to one of these strands of spaghetti.

Engage in graymail

Stone repeats his demand for the full Mueller report in several ways — first in a bid for the report itself, then as the “prologue” to a bunch of mostly spurious attacks on Mueller’s authority (some of which have already been rejected in the larger Mueller investigation). This is graymail. Of course Stone is not going to get the full report, which includes grand jury material unrelated to his prosecution and descriptions of ongoing investigations likewise unrelated to his prosecution. But he probably does have a good case to claim that he should get the parts that will be redacted for us that pertain to him.

Misstate Barr’s citation of Mueller’s findings

I’m perhaps most interested in the way Stone engages in Russian hack trutherism. For example, his first justification for needing the full Mueller report — even before he claims to need to know why Credico and Corsi weren’t charged — is to understand Mueller’s “assumption” that Russia hacked the Democrats (something that Stone himself admitted until August 2016, when it became inconvenient).

His lawyers must be allowed to review the Report in its entirety because it contains the government’s evidence and conclusions on matters essential to Stone’s defense. Starting with the base assumptions by the Special Counsel that Russians hacked the Democratic National Committee, Democratic Congressional Campaign Committee, and Clinton Campaign email databases (see Indictment, ¶¶ 1-3, 7, 18, 20, 39);

And in Stone’s bid to get his case reassigned, he makes several misrepresentations of the public record. For example, he claims Barr’s representation of Mueller’s finding said there was no evidence of “collusion” between Trump’s associates and Russia.

The Office of the Special Counsel has since concluded its investigation and has found that there is no evidence of collusion between Russia and those associated with the presidential campaign of Donald J. Trump.

Barr addressed only conspiracy and coordination, and all the language is consistent with Mueller not finding enough evidence to charge it, while finding some evidence.

Stone also claims that prosecutors have claimed that his case is associated with the GRU indictment only because communications between Stone and Guccifer 2.0 were obtained with the GRU warrants.

Previously, however, opposing counsel designated this case as related to that of United States of America v. Netyksho, et al. (1:18-cr-00215-ABJ), because the government claimed that communications between Guccifer 2.0 and Stone were obtained from the Netyksho search warrant.

If they said specifically that, then it was in private. In public, the government said this:

The defendant’s false statements did not arise in a vacuum: they were made in the course of an investigation into possible links between Russian individuals (including the Netyksho defendants), individuals associated with the dumping of materials (including Organization 1), and U.S. persons (including the defendant).

[snip]

In the course of investigating that activity, the government obtained and executed dozens of search warrants on various accounts used to facilitate the transfer of stolen documents for release, as well as to discuss the timing and promotion of their release. Several of those search warrants were executed on accounts that contained Stone’s communications with Guccifer 2.0 and with Organization 1.

Even ignoring that Stone seems to cede that at least one of the number of warrants referred to in that filing included his communications with Guccifer 2.0, it’s even more amusing that Stone ignores WikiLeaks — I wonder if they took it out after Julian Assange got arrested?

Stone then misstates another thing Barr said, claiming he claimed no American citizens conspired with “Russian agents.”

[T]he Department of Justice has concluded that there was no conspiracy between Russian agents and any American citizen, including Roger Stone, this “connection” is unsubstantiated.

What the Barr memo actually says about the hack-and-leak operation is,

Special Counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in these efforts, despite multiple offers from Russian-affiliated individuals to assist the Trump campaign.

Barr’s statement only refers to the Russian government, not possible Russian cut-outs like WikiLeaks, and only discusses Americans with ties to Trump.

Stone then claims that the GRU indictment claims no American was part of the conspiracy.

Additionally, the only document filed in Netyksho, the Indictment, states no American was part of the conspiracy charged. There is nothing left to “connect” Roger Stone to.

It doesn’t name any Americans, but also doesn’t say no Americans were part of the conspiracy. Here’s what it says about the conspirators.

[The defendants] were GRU officers who knowingly and intentionally conspired with each other, and with persons known and unknown to the Grand Jury (collectively the “Conspirators”),

Stone’s effort to get a new judge is not going to work in any case. Which leads me to wonder why he repeatedly misstates the public record.

In any case, assuming normal judicial review, Stone’s request for more of the Mueller report might have promise and he could get some thoughtful briefing on a few of the other claims. But most of this is wall-splat for specific audiences: Trump, Barr, and the frothy right.

Andrew Miller claims he has been mooted

Meanwhile, as expected, Stone associate Andrew Miller just requested an en banc review of the DC Circuit ruling that he needs to testify against Stone. Along with the arguments he already lost on, he is now asking the court to find out whether the government really still needs his testimony, arguing (in part) that Mueller’s authority has expired.

Since the subpoena issued to Mr. Miller was for the purpose of obtaining evidence related to Mr. Stone’s connection with WikiLeaks, Julian Assange, and Guccifer 2.0, it would appear that the Special Counsel would no longer need Mr. Miller’s testimony regarding that subject matter. Nevertheless, the next business day, Monday, January 28, 2019, undersigned counsel was advised by the Special Counsel’s office that it believed the case to be a live controversy since the grand jury was still active, though it was not apparent whether the grand jury or its foreperson was consulted as to any continued interest in hearing Mr. Miller’s testimony. 3

On March 22, 2019, Special Counsel submitted his final report to Attorney General Barr pursuant to the Special Counsel regulations, 28 C.F.R. 600.8(c), concluding his investigation, explaining his prosecutions and declinations, and finding that no conspiracy or coordination took place between the Trump campaign or any aides associated with the campaign and Russia regarding interference with the 2016 campaign or hacking the emails of Hillary Clinton or the DNC. 4 No further indictments are expected. According to Justice Department spokesperson Kerri Kupec, “The investigation is complete.”5 Thus, like Cinderella’s carriage that turned into a pumpkin at midnight, Special Counsel Mueller’s authority expired. Accordingly, the intervening events described above that have occurred since the issuance of the subpoena in question over nine months ago, strongly, if not definitively, demonstrate Mr. Miller’s testimony regarding Mr. Stone is no longer required nor can be legally obtained. Thus, this Court should invite the government’s views to verify whether this case continues to be a live controversy or is moot to assure itself that it continues to possess judicial power to adjudicate the instant petition for rehearing and suggestion for rehearing en banc and any subsequent action in this appeal

3 Notably, while the mandate was stayed as is the usual practice until 7 days after the time for the filing a petition for rehearing had expired or after disposition of any timely filed petition (45 days from the decision, or April 12), the Special Counsel had the right to ask the Court to issue the mandate ever since February 26 if Mr. Miller’s testimony was needed. The Special Counsel declined to do so. [my emphasis]

This is really just decoration on an en banc review that will be denied, but along the way he’s fishing for information about where else prosecutors (including the DC AUSAs who’ve been involved since Stone’s indictment, at least) are headed.

Mueller may be done but prosecutors are not

Which brings us, finally, to this response from prosecutors (signed by two DC AUSAs, Jonathan Kravis and Michael Marando, from the Stone team and Aaron Zelinsky from the Mueller team) in response to what is fairly characterized as a media request for all outstanding warrant materials in the Mueller investigation, with a focus on Stone. After getting two extensions, one because the attorneys involved in it were involved in a press of other work, one to transition to the DC AUSAs who’d take over because Mueller was done, the government today issued a narrowly targeted (to Stone) response.

After introducing the scope of the investigation as it proceeded from Comey’s March 20, 2017 scope to Mueller’s May 17, 2017 scope to his March 22, 2019 closure, the government response then stated the media request in remarkably narrow terms, focused just on Stone.

The movants seek to unseal search warrant materials related to the Stone prosecution. Specifically, the movants seek unsealing of “warrants, applications, supporting affidavits, and returns relating to all search or seizure warrants relevant to the prosecution of Roger J. Stone, Jr.” Doc. 4, at 2 (Order) (quoting Media Coalition Mem. 1). 2 It is unclear whether the movant’s request is limited to warrants issued pursuant to Rule 41 or also includes warrants under the SCA. In an abundance of caution, the government is treating the request as covering both categories. It is similarly unclear whether the reference to “warrants relevant to the Prosecution of Roger J. Stone, Jr.” means only warrants to search Stone’s property and facilities or includes other warrants that were executed as part of the same line of investigation. Again, in an abundance of caution, the government is treating the request as covering both categories.3

2 In places, the movant more broadly references warrant materials pertaining to “the Russia investigation” (Mot. 1, 4; Mem. 4) and once references “Manafort records” (Mot. 3). Consistent with this Court’s March 1, 2019 order (Doc. 4, at 2), and the movants’ detailed description of the records sought, see Mem. 4-5, the government understands those references as context for this specific request to unseal records related to the prosecution of Stone. See Mot. 1, 3, 4; Mem. 1, 4, 5.

Yes, it makes a big show of interpreting the media request broadly to interpret the request as both a request for Rule 41 and Stored Communication Act warrants and both Stone’s property and others (though again, they remarkably blow off all requests for anyone but Stone). But then they get to footnote 3, which reveals that there were warrants targeting entirely different people that ended up “merely happen[ing] to yield evidence that concerns Stone.”

3 The government does not understand the request to include warrants that were not related to Stone or that line of investigation but that merely happened to yield evidence that concerns Stone and is being provided to him in discovery.

This is a fairly remarkable disclosure, that the government obtained warrants thinking they were getting one thing that “merely happened to yield evidence that concerns Stone.” Particularly when you consider the earlier discussion of the “multiple lines” of Mueller’s investigation, some of which have been spun off.

The Special Counsel’s investigation has involved multiple lines of inquiry. Many have been handled in the Special Counsel’s Office. But the Special Counsel has also referred a number of matters to other offices in the government for investigation.

[snip]

On March 22, 2019, the Special Counsel notified the Attorney General that he had completed his investigation into Russian interference in the 2016 presidential election. The Special Counsel, however, referred a number of matters to other offices in the Department of Justice. Those matters remain ongoing.

The filing claims, again, that this is an ongoing investigation, with stuff still being handled by “other offices and entities,” plural,

As explained, although the Special Counsel has concluded his work, the Special Counsel referred a number of matters that are ongoing and are being handled by other offices and entities. Disclosure of the warrant materials threatens the harms that courts have catalogued in holding that the First Amendment provides no right of access to search warrant materials in ongoing investigations.

Nor would it make sense to recognize a right of access automatically once any indictment has been returned. In complex investigations, such as this one, where a single warrant may have relevance to interconnected lines of investigation, that test would fail to take into account tangible investigative harms from disclosure. An indictment does not end an overall investigation, for example, when a defendant is potentially involved in activities with other subjects or targets, and the warrant in question seeks evidence bearing on that joint activity, but the defendant has been charged only with a subset of his conduct under investigation. The probability of a continuing investigation post-indictment grows when the search targets are linked to other persons of interest by ties to a single organization, common associates, or coordinated activities. Disclosure of warrant materials could reveal sources, methods, factual and legal theories, and lines of investigation extending beyond the charged conduct.

It suggests a “single warrant may have relevance to interconnected lines of investigation” (I assume those targeting Rick Gates are one example), then specifically says an indictment, like that targeting Stone, “does not end an overall investigation” perhaps because the “defendant has been charged only with a subset of his conduct under investigation” and he “is potentially involved in activities with other subjects or targets … linked to other persons of interest by ties to a single organization, common associates, or coordinated activities.”

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. 

The Logistics of the Julian Assange Indictment

The extradition request and indictment have been pending while Vault 7 and Roger Stone have percolated

According to a BuzzFeed report from yesterday’s bail hearing in London, Julian Assange’s extradition warrant was dated December 22, 2017.

That means the extradition request came amid an effort by Ecuador to grant him diplomatic status after which he might be exfiltrated to Ecuador or Russia; the extradition request came the day after the UK denied him diplomatic status.

Ecuador last Dec. 19 approved a “special designation in favor of Mr. Julian Assange so that he can carry out functions at the Ecuadorean Embassy in Russia,” according to the letter written to opposition legislator Paola Vintimilla.

“Special designation” refers to the Ecuadorean president’s right to name political allies to a fixed number of diplomatic posts even if they are not career diplomats.

But Britain’s Foreign Office in a Dec. 21 note said it did not accept Assange as a diplomat and that it did not “consider that Mr. Assange enjoys any type of privileges and immunities under the Vienna Convention,” reads the letter, citing a British diplomatic note.

Both events came in the wake of the revocation of Joshua Schulte’s bail after he got caught using Tor, in violation of his bail conditions. And the events came days before Donald Trump’s longtime political advisor Roger Stone told Randy Credico he was about to orchestrate a blanket pardon for Assange.

In early January, Roger Stone, the longtime Republican operative and adviser to Donald Trump, sent a text message to an associate stating that he was actively seeking a presidential pardon for WikiLeaks founder Julian Assange—and felt optimistic about his chances. “I am working with others to get JA a blanket pardon,” Stone wrote, in a January 6 exchange of text messages obtained by Mother Jones. “It’s very real and very possible. Don’t fuck it up.” Thirty-five minutes later, Stone added, “Something very big about to go down.”

The indictment used to submit an extradition request yesterday was approved by an EDVA grand jury on March 6, 2018, 13 months ago and just a few months after the extradition request.

That means the indictment has been sitting there at EDVA since a few days before Mueller obtained warrants to obtain the contents of five AT&T cell phones, one of which I suspect belongs to Roger Stone (see this post for a timeline of the investigation into Stone). The indictment has been sitting there since a few weeks before Ecuador first limited visitors for Julian Assange last March. It has been sitting there for three months before the government finally indicted Joshua Schulte, in June 2018, for the leak of Vault 7 files they had been pursuing for over a year (see this post for a timeline of the investigation into Schulte). It was sitting there when, in July, Mueller rolled out an indictment referring to WikiLeaks as an unindicted co-conspirator with GRU on the 2016 election hacks, without charging the organization. It was also sitting there last July when David House testified about publicizing Chelsea Manning’s case to the grand jury under a grant of immunity. It was sitting there when Schulte got videotaped attempting to leak classified information from jail, making any prosecution far easier from a classified information standpoint; that happened right around the time Ecuador ratcheted up the restrictions on Assange. It had been sitting there for 10 months by the time Mueller indicted Roger Stone for lying about optimizing the WikiLeaks release of documents stolen by Russia, again while naming but not charging WikiLeaks. It had been sitting there for 11 months when Chelsea Manning first got a subpoena to testify before an EDVA grand jury, and a full year before she went public with her subpoena. It had been sitting there for over a year when Mueller announced he was finishing on March 22; likewise it has been sitting there ever since Bill Barr announced Trump’s team hadn’t coordinated with the Russian government but remained silent about coordination with WikiLeaks.

In short, the indictment has been sitting there for quite some time and the extradition warrant even longer, even as several different more recent investigations appear to be relentlessly moving closer to WikiLeaks. It has been sealed, assuming it’s the same as the complaint the existence of which was accidentally revealed late last year because, “due to the sophistication of the defendant and the publicity surrounding the case, no other procedure is likely to keep confidential the fact that Assange has been charged.”

There’s a somewhat obvious reason why it got indicted when it did. As WaPo and others have pointed out, the eight year statute of limitations on the CFAA charges in the indictment would have run last year on March 7, 2018.

But that doesn’t explain why DOJ decided to charge Assange in this case, when Assange’s actions with Vault 7 appear far more egregious, or why the indictment is just being unsealed now. And it doesn’t explain why it got released — without any superseding allegations — now, even while WaPo and CNN report more charges against Assange are coming.

Here’s what I suspect DOJ is trying to do with this indictment.

The discussion of cracking the password takes place as Manning runs out of files to share

First, consider these details about the indictment. As I noted earlier, the overt act it charges as a conspiracy is an agreement to crack a password.

On or about March 8, 2010, Assange agreed to assist Manning in cracking a password stored on United States Department of Defense computers connected to the Secret Internet Protocol Network, a United States government network used for classified documents and communications, as designated according to Executive Order No. 13526 or its predecessor orders.

[snip]

The portion of the password Manning gave to Assange to crack was stored as a “hash value” in a computer file that was accessible only by users with administrative-level privileges. Manning did not have administrative-level privileges, and used special software, namely a Linux operating system, to access the computer file and obtain the portion of the password provided to Assange.

Cracking the password would have allowed Manning to log onto the computers under a username that did not belong to her. Such a measure would have made it more difficult for investigators to identify Manning as the source of disclosures of classified information.

More specifically, the overt act relates to some exchanges revealed in chat logs that have long been public, dating to March 2010 (see this post for a timeline of some related activities from this period, but not this chat; this post describes a chronology of Manning’s alleged leaks). This is a period when Manning had already leaked things to WikiLeaks, including the Collateral Murder video they’re in the process of editing during the conversation and the Iraq and Afghan war logs that were apparently a focus of the David House grand jury testimony.

In the logs, Manning asks whether WikiLeaks wants Gitmo detainee files (a file that, in my opinion, was one of the most valuable leaked by Manning). Assange isn’t actually all that excited because “gitmo is mostly over,” but suggests the files may be useful to defense attorneys (they were! to some of the same defense attorneys defending Assange now!) or if Afghanistan heats up.

Manning says she’s loading one more archive of interesting stuff.

This appears to be the Gitmo files.

Manning explicitly says that’s all she’s got, and then talks about taking some years off to let heat die down, even while gushing about the current rate of change.

Some hours later, amid a discussion about the status of the upload of the Gitmo files that are supposed to be the last file she’s got, Manning then asks Assange if he’s any good at cracking passwords.

He says he has, “passed it onto our lm guy.”

Two days later Assange asks for more information on the hash, stating (as the indictment notes) that he’s had no luck cracking it so far. Then there’s a six day break in the chat logs, at least as presented.

The next day Assange floats getting Manning a crypto phone but then thinks better of it.

These chat logs end the next day, March 18, 2010. As the indictment notes, however, it’s not until ten days later, on March 28, 2010, that Manning starts downloading the State cable files.

Following this, between March 28, 2010, and April 9, 2010, Manning used a United States Department of Defense computer to download the U.S. Department of State cables that WikiLeaks later released publicly.

It’s unclear whether Assange ever cracked the password — but the chat log suggests he involved another person in the conspiracy

Most people have assumed, given what the indictment lays out, that Assange never succeeded in cracking the password. I have no idea whether he did or not, but I’m seeing people base that conclusion on several faulty assumptions. (Update: HackerFantastic notes that Assange couldn’t have broken this password, but goes on to describe how using other code it might be possible; that’s interesting because Manning was alleged to have added additional software onto the network after the initial Linux device, on May 4, 2010.)

First, some people assume that if Assange had succeeded in cracking the password, the indictment would say so. I’m not so sure. The indictment only needs to allege that Assange and Manning entered into a conspiracy — which the indictment deems a password cracking conspiracy — and took an overt act, whether or not the conspiracy itself was successful. The government suggests that Assange’s comment that he’s had “no luck so far” shows that he has taken an overt act, trying to crack it. Nothing else is required for the purposes of the indictment.

Further, several things about the chat log, as received, suggests there may be more going on in the background. There’s the six day gap after that conversation. There’s the contemplation of getting Manning a crypto phone. And then the chat logs as the government has chosen to release them end, though as the government notes, ten days after they end, Manning starts downloading the State cables.

But the record at least suggests that this conspiracy involves at least one more person, the “lm guy.” Maybe Assange was just falsely claiming to have a guy who focused on cracking certain kinds of hashes. Or maybe the government knows who he is.

The reference to him, however, suggests that there’s at least one more person in this conspiracy. The indictment notes there are “other co-conspirators known and unknown to the Grand Jury,” which is the norm for conspiracy indictments. But there are no other details of who else might be included.

Yes, this particular conspiracy is incredibly narrowly conceived, focused on just that password decryption. But there’s also the “Manner and Means of the Conspiracy” language that has (rightly) alarmed journalists so much, describing the goal of acquiring and sharing classified information that WikiLeaks could disseminate, and describing the operational security (Jabber and deleted chat logs) and inducement to accomplish that goal.

In other words, this indictment seems to be both an incredibly narrow charge, focused on a few Jabber conversations between Assange and Manning, and a much larger conspiracy in which Assange and other unnamed co-conspirators help her acquire and transmit classified documents about the US.

The logistics of the conspiracy prosecution(s)

Which brings me back to how this indictment might fit in amidst several larger, parallel efforts to prosecute WikiLeaks in the last 16 months.

This indictment may be the formalization of a complaint used as the basis for what seems to be a hastily drawn extradition request in December 2017, at a time when Ecuador and Russia were attempting to spring Assange, possibly in the wake of the government’s move to detain Schulte.

The indictment does not allege the full Cablegate conspiracy. David House testified months ago. And the government currently has Manning in jail in an attempt to coerce her to cooperate. That coercive force, by the way, may be the point of referencing the Espionage Act in the indictment: to add teeth to the renewed legal jeopardy that Manning might face if she doesn’t cooperate.

But what the indictment does — and did do, yesterday — is serve as the basis to get Assange booted from the embassy and moved into British custody, kicking off formal extradition proceedings.

As a number of outlets have suggested, any extradition process may take a while. Although two things could dramatically abbreviate it. First, Sweden could file its own extradition on the single remaining rape charge against Assange, which might get priority over the US request. Ironically, that might be Assange’s best bet to stay out of US custody for the longest possible time. Alternately, Assange could simply not contest extradition to the US, which would leave him charged in this bare bones indictment that even Orin Kerr suggests is a fairly aggressive charging of CFAA.

Barring either of those things happening, however, the US government now has one suspect in any conspiracy it wants to charge in the custody of a friendly country. It has accomplished that with entirely unclassified allegations, which means any other suspects won’t know anything more than they knew on Wednesday. Anything else it wants to charge — or any other moving parts it needs to pursue — it can now do without worrying too much that Assange will be put in the “boot” of a Russian diplomatic vehicle to be exfiltrated to Russia.

It has between now and at least May 2 — when Assange has his next hearing — to add any additional charges against Assange, while still having them charged under the Rule of Specialty before any possible extradition. It has maybe a month left on the Mueller grand jury.

Meanwhile, several things have happened recently.

First, in recent weeks two things have happened in the Schulte case. His lawyers made yet another bid to get the warrants that justified the initial searches excluded from the protective order. Schulte and his lawyers have been complaining about these warrants from the start, and Schulte’s public comments or leaks about them are part of what got him charged with violating his protective order. From description, it sounds like FBI was parallel constructing other information tying him to the Vault 7 leaks, and fucked up royally in doing so, introducing errors in the process (though the Hal Martin case makes me wonder whether the errors aren’t still more egregious). The government objected to this request, arguing that the warrants would disclose how the CIA stored its hacking documents and asserting that the investigation is definitely ongoing.

The Search Warrant Materials discuss, among other things, the way that the U.S. Intelligence Agency maintained a classified computer system that was integral to the Agency’s intelligence-gathering mission. Broadly disseminating that information would permit a host of potentially hostile actors to glean valuable intelligence about the way the U.S. Intelligence Agency maintained its computer systems or its security protocols, which would harm national security.

[snip]

The defendant’s abbreviated argument for de-designating the Search Warrant Materials is speculative, conclusory, and misguided. First, the defendant claims that the “time for investigation is long gone.” (Def. Let. at 1). The defendant is neither in a position to judge nor the arbiter of when it is appropriate for the Government to end its investigation into one of the largest-ever illegal disclosures of classified information. Simply put, while details are not appropriate for discussion in a public letter, the Government confirms that its investigation is not done and can supply the Court with additional information on an ex parte basis if the Court wishes.

Meanwhile, the government suggested severing the most recent charges — in which it has video surveillance showing Schulte leaking classified or protected information — from the underlying child porn and Vault 7 leaks.

As the Court is aware, trial in this matter is currently set for April 8, 2019. (See Minute Entry for August 8, 2018 Conference). To afford the parties sufficient time to prepare the necessary pretrial motions, including suppression motions and motions pursuant to the Classified Information Procedures Act (“CIPA”), the parties respectfully request that the Court adjourn the trial until November 4, 2019. The parties are also discussing a potential agreement concerning severance, as well as the order of the potentially severed trials. The parties will update the Court on severance and a pretrial motion schedule at or before the conference scheduled for April 10, 2019.

The defense didn’t weigh in on this plan, which (it would seem) would go a long way to eliminating the government’s parallel construction problem. They were supposed to talk about the severance issue in a hearing Monday, but it sounds like the only thing that got discussed was CIA’s refusal to comply with discovery. My guess is that Schulte will try to get those initial warrants and any fruit of them thrown out, and if that doesn’t work then maybe plead down to prevent a life sentence.

Meanwhile, Ecuador has taken steps to roll up people it claims have ties to Assange.

Tuesday, it fired a staffer in the embassy who had been extremely close to Assange (which may be how he learned about the plans to arrest him last week). Then, yesterday, Ecuador detained Swedish coder Ola Bini, alleging he was involved in some of the hacking they’ve accused Assange of. They also claim to know of two Russian hackers involved.

I have no idea if these developments are just Ecuador trying to cover-up corruption or real ties to WikiLeaks or perhaps something in between. There are no trustworthy actors here.

But — as William Arkin also notes — there’s an effort to test whether WikiLeaks has been at the front end of many of these leaks. Aside from WikiLeaks’ reported source for its Saudi Leaks files from Russia, Arkin focuses less on the reasons there are real questions about WikiLeaks’ relationship with Russia. I think we honestly won’t know which of the untrustworthy sides is being more trustworthy until we see the evidence.

Whichever it is, it seems that DOJ is poised to start building out whatever it can on at least one conspiracy indictment against WikiLeaks. The indictment and its implementation yesterday seems primarily to have served as a way to lock down one part — the most volatile one — of the equation. What comes next may assuage concerns about the thinness of this indictment or it may reveal something far more systematic.

In the meantime, Assange is represented by some great lawyers, both in the UK and here. Which at least increases the chances any larger claims DOJ plans to roll out will be tested aggressively.

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. 

The Parallel Tracks of Disclosure on Why Manafort Shared Campaign Polling Data with His Russian Co-Conspirator

No one knows what the first half of this sentence says:

[redacted] the investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.

But it almost certainly includes language acknowledging evidence that might support (but ultimately was not enough to indict on) a conspiracy charge.

I have twice before demonstrated that the Barr Memo — and so this full sentence — is nowhere near as conclusive with respect to exonerating Trump as a number of people have claimed (and Trump’s equivocations about releasing the report). This post showed how little Barr’s Memo actually incorporates from the Mueller Report. And this post shows that the memo ignores Stone’s coordination with WikiLeaks, presumably because he didn’t coordinate directly with the Russian government.

But (as I’ve said elsewhere), the public record on Paul Manafort’s conduct also makes it clear that the Mueller Report includes inconclusive information on whether the Trump campaign conspired with Russians. This came up extensively, in the discussion of Manafort’s sharing of polling data at his August 2, 2016 meeting with Konstantin Kilimnik, at the February 4 breach hearing.

At the beginning of that discussion, ABJ asked whether Manafort had lied to the grand jury about his motives for sharing polling data. [Throughout this, I’m bolding the redactions but including the content where it’s obvious.]

JUDGE AMY BERMAN JACKSON: I think we can go on to the question of the [redacted; sharing of polling data]. And I don’t have that many questions, mainly because I think it’s pretty straightforward what you’re saying.

So, I would want to ask you whether it’s part of your contention that he lied about the reason [redacted; he shared the data]. I know initially he didn’t even agree that that [redacted; he had shared private polling data], and he didn’t even really agree in the grand jury. He said it just was public information. But, I think there’s some suggestion, at least in the 302, as to what the point was of [redacted].

And so, I’m asking you whether that’s part of this, if he was lying about that?

Because Mueller’s team only needed ABJ to rule that Manafort lied, Andrew Weissmann explained they didn’t need her to reach the issue of motive. But they did discuss motive. Weissmann describes that it wasn’t just for whatever benefit sharing the polling data might provide the campaign, but it would also help Manafort line up his next gig and (probably) get out of debt to Deripaska.

MR. WEISSMANN: So, I don’t think the Court needs to reach that issue, and I don’t know that we’ve presented evidence on the — that issue.

THE COURT: You didn’t. So you just don’t want me to think about it, that’s okay.

MR. WEISSMANN: No. No. No. I’m going to answer your question.

THE COURT: All right.

MR. [WEISSMANN]: I’m just trying to, first, deal with what’s in the record. And I think that in the grand jury, Mr. Manafort said that from his perspective, [redacted], which he admitted at that point was with — he understood that it was going to be given by [redacted] to the [redacted; Ukrainian Oligarchs] and to Mr. [redacted; possibly Deripaska], both. That from his perspective, it was — there was no downside — I’m paraphrasing — it was sort of a win-win. That there was nothing — there was no negatives.

And I think the Government agrees with that, that that was — and, again, you’re just asking for our — if we are theorizing, based on what we presented to you, that we agree that that was a correct assessment.

But, again, for purposes of what’s before you on this issue, what his ultimate motive was on what he thought was going to be [redacted] I don’t think is before you as one of the lies that we’re saying that he told.

It’s more that what he specifically said was, he denied that he had told Mr. Gates [redacted; to bring the polling data to the meeting]. That he would not, in fact, have [redacted] and that he left it to [redacted].

Weissmann then goes on to allege that Manafort lied about sharing this polling data because if he didn’t, it would ruin his chance of getting a pardon.

And our view is, that is a lie. That that is really under — he knew what the Gates 302s were. It’s obviously an extremely sensitive issue. And the motive, I think, is plain from the [redacted], is we can see — we actually have — we can see what it is that he would be worried about, which is that the reaction to the idea that [long redaction] would have, I think, negative consequences in terms of the other motive that Mr. Manafort could have, which is to at least augment his chances for a pardon.

And the proof with respect to that is not just Mr. Gates. So that I will say there’s no contrary evidence to Mr. Gates, but you don’t have just Mr. Gates’s information. You have a series of emails where we know that Mr. Kilimnik, in fact, is reporting [redacted]

And probably the best piece of evidence is you have Mr. Manafort asking Mr. Gates to [redacted; print out polling data]. So, it’s — there’s — from three weeks ago, saying: [redacted].

In an effort to understand why this lie was important, ABJ returns to Manafort’s motive again, which leads Weissmann to point out that the question of why Manafort shared the polling data goes to the core of their inquiry.

THE COURT: I understand why it’s false. And I’m not sure I understand what you said at the beginning, that you — and I understand why you’ve posited that he might not want to be open about this, given the public scrutiny that foreign contacts were under at the time. But, I’m not sure I understand what you’re saying where you say you agree with him when he said it had no downside.

So, this is an important falsehood because it was false? Or is there some larger reason why this is important?

MR. WEISSMANN: So — so, first, in terms of the what it is that the special counsel is tasked with doing, as the Court knows from having that case litigated before you, is that there are different aspects to what we have to look at, and one is Russian efforts to interfere with the election, and the other is contacts, witting or unwitting, by Americans with Russia, and then whether there was — those contacts were more intentional or not. And for us, the issue of [redacted] is in the core of what it is that the special counsel is supposed to be investigating.

My answer, with respect to the Court’s question about what it is — what the defendant’s intent was in terms of what he thought [redacted] I was just trying to answer that question, even though that’s not one of the bases for saying there was a lie here. And so I was just trying to answer that question.

And what I meant by his statement that there’s no downside, is that can you imagine multiple reasons for redacted; sharing polling data]. And I think the only downside —

Weissmann ultimately explains that there was no downside to Manafort to sharing the polling data during the campaign, but there was a downside (angering Trump and therefore losing any hope of a pardon) to the information coming out now.

THE COURT: You meant no downside to him?

MR. WEISSMANN: Yes.

THE COURT: You weren’t suggesting that there was nothing — there’s no scenario under which this could be a bad thing?

MR. WEISSMANN: Oh, sorry. Yes. I meant there was no downside — Mr. Manafort had said there was no downside to Mr. Manafort doing it.

THE COURT: That was where I got confused.

MR. WEISSMANN: Sorry.

THE COURT: All right.

MR. WEISSMANN: And meaning all of this is a benefit. The negative, as I said, was it coming out that he did this.

In her breach ruling, ABJ agreed that Manafort’s sharing of polling data was a key question in Mueller’s inquiry, as it was an intentional link to Russia. She establishes this by noting that Manafort knew the polling data would be shared with someone in Russia (probably Deripaska; though note, this is where ABJ gets the nationality of the two Ukranian oligarchs wrong, which Mueller subsequently corrected her on).

Also, the evidence indicates that it was understood that [redacted] would be [redacted] from Kilimnik [redacted] including [redacted], and [redacted]. Whether Kilimnik is tied to Russian intelligence or he’s not, I think the specific representation by the Office of Special Counsel was that he had been, quote, assessed by the FBI, quote, to have a relationship with Russian intelligence, close quote. Whether that’s true, I have not been provided with the evidence that I would need to decide, nor do I have to decide because it’s outside the scope of this hearing. And whether it’s true or not, one cannot quibble about the materiality of this meeting.

In other words, I disagree with the defendant’s statement in docket 503, filed in connection with the dispute over the redactions, that, quote, the Office of Special Counsel’s explanation as to why Mr. Manafort’s alleged false statements are important and material turns on the claim that he is understood by the FBI to have a relationship with Russian intelligence.

I don’t think that’s a fair characterization of what was said. The intelligence reference was just one factor in a series of factors the prosecutor listed. And the language of the appointment order, “any links,” is sufficiently broad to get over the relatively low hurdle of materiality in this instance, and to make the [redacted] Kilimnik and [redacted] material to the FBI’s inquiry, no matter what his particular relationship was on that date.

Elsewhere, in discussing Manafort’s efforts to downplay Kilimnik’s role in his own witness tampering, ABJ refers to Kilimnik as Manafort’s “Russian conspirator.”

Earlier in the hearing ABJ notes that Manafort’s excuse for why he forgot details of the August 2 meeting only reinforce the likelihood that he shared the polling data to benefit the campaign.

You can’t say you didn’t remember that because your focus at the time was on the campaign. That relates to the campaign. And he wasn’t too busy to arrange and attend the meeting and to send Gates [redacted] that very day. It’s problematic no matter how you look at it.

If he was, as he told me, so single-mindedly focused on the campaign, then the meeting he took time to attend and had [redacted] had a purpose [redacted; to benefit the campaign]. Or, if it was just part of his effort to [redacted; line up the next job], well, in that case he’s not being straight with me about how single-minded he was. It’s not good either way.

She further notes that Manafort took this meeting with his Russian partner in Ukrainian influence peddling even though he was already under press scrutiny for those Ukrainian ties.

[T]he participants made it a point of leaving separate because of the media attention focused at that very time on Manafort’ relationships with Ukraine.

Her ruling also explains at length why sharing polling data would be useful to Kilimnik, citing from Rick Gates’ 302s at length.

In other words, these two filings — to say nothing of the backup provided in the January 15 submission, which includes all but one of Gates’ 302s describing the sharing of the polling data — lay out in some detail the evidence that Manafort clandestinely met with Konstantin Kilimnik on August 2, 2016, in part to share polling data he knew would be passed on to at least one other Russian, probably Deripaska.

And here’s why that’s interesting.

Back in early March, the WaPo moved to liberate all the documents about Manafort’s breach determination. On March 19, Mueller attorneys Adam Jed and Michael Dreeben asked for an extension to April 1, citing the “press of other work.”

The government respectfully requests an extension of time—through and including April 1, 2019—to respond to the motion. The counsel responsible for preparing the response face the press of other work and require additional time to consult within the government.

Three days later, Mueller announced he was done, and submitted his report to Barr. Then, on March 25, all of Mueller’s attorneys withdrew from Manafort’s case, which they haven’t done in other cases (the main pending cases are Mike Flynn, Concord Management, and Roger Stone). Then, on March 27, Mueller and Jonathan Kravis, the AUSA taking over a bunch of Mueller’s cases, asked for another extension, specifically citing the hand-off to Kravis and two others in the DC US Attorney’s Office.

The government respectfully requests a further two-week extension of time—to and including April 15, 2019—to respond to the motion. The Special Counsel’s Office has been primarily handling this matter. On March 22, the Special Counsel announced the end of his investigation and submitted a report to the Attorney General. This matter is being fully transitioned to the U.S. Attorney’s Office. Because of this transition, additional time will be required to prepare a response.

On March 29, Barr wrote the Judiciary Leadership and told them he’d release his redacted version of the Mueller report — which he’ll be redacting with the Mueller’s team — by mid-April, so around April 15.

So there are currently two parallel efforts considering whether to liberate the details of Manafort’s sharing of polling data with Kilimnik and through him Russia:

  • The Barr-led effort to declassify a report that Mueller says does not exonerate Trump for obstruction, including the floating of a pardon to Manafort that (in Weissmann’s opinion) led Manafort to lie that and why he shared Trump campaign polling data to be passed on to Russians, which will be done around April 15
  • The DC USAO-led effort to unseal the materials on Manafort’s lies, for which there is a status report due on April 15

Kevin Downing — the Manafort lawyer whose primary focus has been on preserving Manafort’s bid for a pardon — already expressed some concern about how the breach documents would be unsealed, to which ABJ sort of punted (while suggesting that she’d entertain precise the press request now before her.

MR. DOWNING: Your Honor, just one other general question: How are we going to handle the process of unredacted down the road? I mean, there’s been a lot of redactions in this case, and the law enforcement basis for it or ongoing grand jury investigations. What is going to be the process to — is the Office of Special Counsel going to notify the Court that the reason stated for a particular redaction no longer exists, or still survives? Is it going to be some sort of process that we can put in place?

THE COURT: Well, in one case, I know with all the search warrants, it was an evolving process. There were things that were withheld from you and then you got them but they were still withheld from the press and then the press got them. But usually things have to be triggered by a motion or request by someone. There may be reasons related to the defense for everything to stay the way it is.

I, right now, without knowing with any particularity what it is that you’re concerned about, or if — and not having the press having filed anything today, asking for anything, I don’t know how to answer that question. But I think that is something that comes up in many cases, cases that were sealed get unsealed later. And if there’s something that you think should be a part of the public record that was sealed and there’s no longer any utility for it, obviously you could first find out if it’s a joint motion and, if not, then you file a motion.

But for now, the prosecutors in DC will be in charge of deciding how much of the information — information that Barr might be trying to suppress, not least because it’s the clearest known evidence how a floated pardon prevented Mueller from fully discovering whether Trump’s campaign conspired with Russia — will come out in more detail via other means.

Update: And now, over a month after Mueller’s correction, three weeks after sentencing, and a week after the entire Mueller team moved on, Manafort submitted his motion for reconsideration from Marc. They’re still fighting about redactions.

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. 

The Roger Stone Indictment Proves Barr’s Memo Understates Trump Flunkies’ Complicity

I’ve made this point implicitly a few times, but it bears making explicitly. We have proof that Bill Barr’s memo spins the known contents of the Mueller Report to minimize the complicity of Trump’s flunkies. That’s because we can compare what we know about Roger Stone’s efforts to optimize the release of the emails Russia stole with the language used in the memo.

As alleged in sworn statements and his indictment, Stone’s actions include at least the following:

  • Around July 19, 2016: Fresh off dining with some Brexiteers, Stone calls Trump and tells him, “within a couple of days, there would be a massive dump of emails that would damage Hillary Clinton’s campaign,” to which Trump responds, “wouldn’t that be great.”
  • After July 22: A senior Trump campaign official “was directed” (the indictment doesn’t say by whom) to figure out from Stone what else would be coming
  • July 25: Stone emails Jerome Corsi and asks him to “get the pending WikiLeaks emails”
  • August 2: Corsi writes back and reflects knowledge that the emails would include Podesta ones and there would be two email drops, one shortly after he returned and one in October
  • October 4: After Assange has a press conference but doesn’t release any emails, Steve Bannon emails Stone and asks what happened, and Stone replies that WikiLeaks will release “a load every week going forward”
  • October 7: As the Podesta emails start to come out right after the Access Hollywood video — timing that Jerome Corsi has claimed Stone helped ensure — a Bannon associate texts Stone and says, “well done”

Now, none of that was itself charged as a crime. Stone was not charged with conspiring with WikiLeaks. But then, short of making an argument that WikiLeaks is a known agent of Russia — which the US government has never done — optimizing the WikiLeaks release is not a crime. But assuming that Corsi is correct that Stone got WikiLeaks to hold the Podesta release to dampen the impact of the Access Hollywood video, it is absolutely coordination. And even according to Stone — who believed Trump needed to avoid alienating women to win — dampening the release of the video influenced the election.

Now consider how this behavior falls into Barr’s supposed exoneration of Trump campaign involvement in the hack-and-leak.

First, there’s Barr’s truncated citation of a Mueller Report sentence. [my emphasis throughout]

As the report states: “[T]he investigation did not establish that members of the Trump Campaign conspired or coordinated with the Russian government in its election interference activities.”

Then a footnote defining what the word “coordinated” means in that sentence.

In assessing potential conspiracy charges, the Special Counsel also considered whether members of the Trump campaign “coordinated” with Russian election interference activities. The Special Counsel defined “coordinated” as an “agreement–tacit or express–between the Trump Campaign and the Russian government on election interference.”

Finally, there’s Barr’s own version.

The second element involved the Russian government’s efforts to conduct computer hacking operations designed to gather and disseminate information to influence the election. The Special Counsel found that Russian government actors successfully hacked into computers and obtained emails from persons affiliated with the Clinton campaign and Democratic Party organizations, and publicly disseminated those materials through various intermediaries, including WikiLeaks. Based on these activities, the Special Counsel brought criminal charges against a number of Russian military officers for conspiring to hack into computers in the United States for purposes of influencing the election. But as noted above, the Special Counsel did not find that the Trump campaign, or anyone associated with it, conspired or coordinated with the Russian government in these efforts, despite multiple offers from Russian-affiliated individuals to assist the Trump campaign.

The exoneration for coordination in Mueller’s language, at least, extends only to the Trump campaign, not to rat-fuckers working on the side (one of the things Mueller reportedly asked a lot of witnesses was precisely when and why Stone left the campaign). And at least according to this language, Mueller’s assessment of coordination extended only to coordination with the Russian government. So even if Mueller and the US government are getting close to labeling WikiLeaks a Russian entity, it still wouldn’t count for this assessment. Unsurprisingly, Barr relies on that language to give the Trump campaign a clean bill of health on the hack-and-leak side.

Most cynically, though, even after Barr acknowledges that the Russians used WikiLeaks to disseminate the stolen emails, the very next sentence doesn’t mention the charges Mueller brought against Stone for hiding his own (and through him, the campaign’s, including Donald Trump’s) coordination of the releases “for purposes of influencing the election.”

But we know Stone’s indictment has to be in the report. That’s because the report, by regulation, must list all Mueller’s prosecutorial decisions. So not only would Mueller describe that he indicted Stone, but he probably also explains why he didn’t include a conspiracy charge in Stone’s indictment (which probably relates primarily to First Amendment concerns, and not any illusions about WikiLeaks’ willing service for Russia on this operation). So it must be in the report. But Barr doesn’t mention that, indeed, the Trump campaign, through their associated rat-fucker, did actually coordinate on the hack-and-leak and did actually influence the election by doing so, they just didn’t coordinate directly with the Russian government.

On this matter, it’s crystal clear that Barr cynically limited his discussion of the report to obscure that Mueller had, indeed, found that the campaign “coordinated” on the hack-and-leak for purposes of influencing the election.

Barr has already demonstrated bad faith in his representation of Mueller’s findings. Which is why it is so alarming that — according to an uncharacteristically alarmed Peter Baker — DOJ plans to write a summary of Mueller’s report for Congress, not send over a redacted version of it.

Mueller’s full report has yet to be released, and it remained unclear if it ever would be. House Democrats have demanded that it be sent to them by next Tuesday, but the Justice Department outlined a longer schedule, saying that it will have its own summary ready to send to lawmakers within weeks, though not months.

Barr has already failed the test of whether he can summarize Mueller’s results in good faith.

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. 

After Mueller: An Off-Ramp on Russia for the Venal Fucks

We don’t know what the Mueller report says, though given William Barr’s promise to brief the Judiciary Committee leaders this weekend and follow it with a public summary, it’s not likely to be that damning to Trump. But I can think of five mutually non-exclusive possibilities for the report:

  • Mueller ultimately found there was little fire behind the considerable amounts of smoke generated by Trump’s paranoia
  • The report will be very damning — showing a great deal of corruption — which nevertheless doesn’t amount to criminal behavior
  • Evidence that Manafort and Stone conspired with Russia to affect the election, but Mueller decided not to prosecute conspiracy itself because they’re both on the hook for the same prison sentence a conspiracy would net anyway, with far less evidentiary exposure
  • There’s evidence that others entered into a conspiracy with Russia to affect the election, but that couldn’t be charged because of evidentiary reasons that include classification concerns and presidential prerogatives over foreign policy, pardons, and firing employees
  • Mueller found strong evidence of a conspiracy with Russia, but Corsi, Manafort, and Stone’s lies (and Trump’s limited cooperation) prevented charging it

As many people have pointed out, this doesn’t mean Trump and his kin are out of jeopardy. This NYT piece summarizes a breathtaking number of known investigations, spanning at least four US Attorneys offices plus New York state, but I believe even it is not comprehensive.

All that said, we can anticipate a great deal of what the Mueller report will say by unpacking the lies Trump’s aides told to hide various ties to Russia: The report will show:

  • Trump pursued a ridiculously lucrative $300 million real estate deal even though the deal would use sanctioned banks, involve a former GRU officer as a broker, and require Putin’s personal involvement at least through July 2016.
  • The Russians chose to alert the campaign that they planned to dump Hillary emails, again packaging it with the promise of a meeting with Putin.
  • After the Russians had offered those emails and at a time when the family was pursuing that $300 million real estate deal, Don Jr took a meeting offering dirt on Hillary Clinton as “part of Russia and its government’s support for Mr. Trump.” At the end (per the sworn testimony of four people at the meeting) he said his father would revisit Magnitsky sanctions relief if he won. Contrary to the claim made in a statement authored by Trump, there was some effort to follow up on Jr’s assurances after the election.
  • The campaign asked rat-fucker Roger Stone to optimize the WikiLeaks releases and according to Jerome Corsi he had some success doing so.
  • In what Andrew Weissmann called a win-win (presumably meaning it could help Trump’s campaign or lead to a future business gig for him), Manafort provided Konstantin Kilimnik with polling data that got shared with Ukrainian and Russian oligarchs. At the same meeting, he discussed a “peace” plan for Ukraine that would amount to sanctions relief.
  • Trump undercut Obama’s response to the Russian hacks in December 2016, in part because he believed retaliation for the hacks devalued his victory. Either for that reason, to pay off Russia, and/or to pursue his preferred policy, Trump tried to mitigate any sanctions, an attempt that has (with the notable exception of those targeting Oleg Deripaska) been thwarted by Congress.

We know all of these things — save the Stone optimization detail, which will be litigated at trial unless Trump pardons him first — to be true, either because Trump’s aides and others have already sworn they are true, and/or because we’ve seen documentary evidence proving it.

That’s a great deal of evidence of a quid pro quo — of Trump trading campaign assistance for sanctions relief. All the reasons above may explain why Mueller didn’t charge it, with the added important detail that Trump has long been a fan of Putin. Trump ran openly on sanctions relief and Presidents get broad authority to set their own foreign policy, and that may be why all this coziness didn’t amount to criminal behavior: because a majority of the electoral college voted (with Russia’s involvement) to support those policies.

Whatever reason this didn’t get charged as a crime (it may well have been for several involved, including Trump), several things are clear.

First, consider all this from the perspective of Russia: over and over, they exploited Trump’s epic narcissism and venality. Particularly with regards to the Trump Tower deal, they did so in a way that would be especially damaging, particularly given that even while a former GRU officer was brokering the deal, the GRU was hacking Trump’s opponent. They often did so in ways that would be readily discovered, once the FBI decided to check Kilimnik’s Gmail account. Russia did this in ways that would make it especially difficult for Trump to come clean about it, even if he were an upstanding honest person.

Partly as a result, partly because he’s a narcissist who wanted to deny that he had illicit help to win, and partly because he’s a compulsive liar, Trump and his aides all lied about what they’ve now sworn to be true. Over and over again.

And that raised the stakes of the Russian investigation, which in turn further polarized the country.

As I noted here, that only added to the value of Russia’s intervention. Not only did Trump’s defensiveness make him prefer what Putin told him to what American Russian experts and his intelligence community would tell him, but he set about destroying the FBI in an effort to deny the facts that his aides ultimately swore were true. Sure, Russia hasn’t gotten its sanctions relief, yet. But it has gotten the President himself to attack the American justice system, something Putin loves to do.

We don’t know what the Mueller report will say about Trump’s role in all this, and how that will affect the rest of his presidency. We do know he remains under investigation for his cheating (as an unindicted co-conspirator in the ongoing hush money investigation) and his venality (in the inauguration investigation, at a minimum).

We do know, however, that whatever is in that report is what Mueller wants in it; none of the (Acting) Attorneys General supervising him thwarted his work, though Trump’s refusal to be interviewed may have.

But we also know that Russia succeeded wildly with its attack in 2016 and since.

Democrats and Republicans are going to continue being at each other’s throats over Trump’s policies and judges. Trump will continue to be a venal narcissist who obstructs legitimate oversight into his mismanagement of government.

Both sides, however, would do well to take this report — whatever it says — as the final word on this part of the Russian attack in 2016, and set about protecting the country from the next attack it will launch.

An unbelievable swath of this country — including the denialists who say all those things that Trump’s own aides swore to doesn’t amount to evidence of wrongdoing — have chosen for tribal reasons (and sometimes venal ones) to side with kleptocratic Russians over the protection of America. Now that the report is done, it’s time to focus on protecting the United States again.

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. 

“I Can’t Be Seen Taking Credit for HIS Victory:” The Purpose of Roger Stone’s Paperback

Towards the end of the day on January 14, amid a three day stint writing the 3,000 word introduction that would justify reissuing his 2016 book, Making of the President, Roger Stone rejected the title suggested by his publisher, Skyhorse Publishing, “The Myth of Collusion; The Inside Story of How I REALLY Helped Trump Win.” He suggests instead, “The Myth of Collusion; The Inside Story of How Donald Trump really won,” noting, “I really can’t be seen taking credit for HIS victory.”

That’s the title the book now bears.

That exchange — and a number of other ones revealed in the correspondence Stone’s lawyers submitted in an attempt to persuade Judge Amy Berman Jackson they weren’t just trying to get publicity for the book when asking for a “clarification” regarding the book on March 1 — raises interesting questions about why he reissued the book how and when he did.

On one level, the explanation is easy: his publishers expected the original book, Making of the President, would be a big seller. They made 100,000 copies when it first came out in January 2017. The book flopped.

So in November 2018, Stone’s rising notoriety — and more importantly, the increased polarization surrounding the Mueller probe — provided an opportunity to recoup some of the losses on the hardcover. At that level, the reissue needs no explanation other than the obvious formula publishers use to make money: Exacerbate and profit off of controversy.

But that doesn’t explain why the project started on November 15, 2018 rather than any time in the year and a half earlier, when Skyhorse would have all those same goals. Nor does it explain how Stone went from expressing no interest in the project to rushing it through quickly in mid-December.

Given the timeline of events and a few stray comments in the correspondence (as I laid out here, Stone has probably withheld at least eight exchanges with his publisher from the court submission, after letting the publisher review what correspondence was there), I think he’s got several other purposes.

As noted below, Skyhorse first approached Stone on November 15, in the wake of the Democrats winning the House in midterm elections. On January 14, Skyhorse president Tony Lyons suggests that “We can send copies [of the book] to all U.S. Senators.” Those two details suggest that Skyhorse intended the book, on top of the obvious financial incentives, to capitalize on the general right wing campaign to discredit the Mueller investigation in an effort to stave off impeachment.

The delay between the time — on November 15 — when Skyhorse first pitched the reissue and the time — mid-December — when Stone and his lawyer, Grant Smith, start engaging in earnest suggests two other factors may be in play.

First, while Stone had been saying that Mueller would indict him for months, the aftermath of the Corsi “cooperation” starting on November 26 made Stone’s jeopardy more immediate. Yes, Corsi’s attempt to make his own cooperation useless may have delayed Stone’s indictment, but the details Corsi described to be in his own forthcoming Mueller-smearing book made it clear the Special Counsel believed Stone had successfully affected the timing of the release of the John Podesta emails on October 7, 2016, in a successful attempt to dampen some of the impact of the Access Hollywood video.

That’s why the specific content of the new introduction Stone finished on January 13, 2019, which he notes is more substantive than Skyhorse initially planned, is of interest. In the introduction, Stone:

  • Describes learning he was under investigation on January 20, 2017
  • Discounts his May 2016 interactions with “Henry Greenberg” — a Russian offering dirt on Hillary Clinton — by claiming Greenberg was acting as an FBI informant
  • Attributes any foreknowledge of WikiLeaks’ release to Randy Credico and not Jerome Corsi or their yet unidentified far more damning source while disclaiming any real foreknowledge
  • Gives Manafort pollster, Tony Fabrizio, credit for the decision to focus on Michigan, Wisconsin, and Pennsylvania in the last days of the election
  • Mentions Alex Jones’ foreboding mood on election night
  • Accuses Trump of selling out to mainstream party interests, choosing Reince Preebus over Steve Bannon
  • Blames Jeff Sessions for recusing from the Russian investigation
  • Harps on the Steele dossier
  • Dubiously claims that in January 2017, he didn’t know how central Mueller’s focus would be on him
  • Suggests any charges would be illegitimate
  • Complains about his financial plight
  • Falsely claims the many stories about his associates’ testimony comes from Mueller and not he himself
  • Repeats his Randy Credico cover story and discounts his lies to HPSCI by claiming his lawyers only found his texts to Credico after the fact
  • Suggests Hillary had ties to Russia
  • Notes that Trump became a subject of the investigation after he fired Jim Comey

Some of this is fairly breathtaking, given that Corsi’s theatrics had long ago proven Stone’s Credico cover story to be false. But of course, by the time Stone wrote this, he knew that he was at risk at a minimum for false statements charges, so he was stuck repeating the long-discredited HPSCI cover story. Which may be why his attorney, Grant Smith, provided some edits of the introduction on January 15 (something Smith should have but did not disclose in the filing to Amy Berman Jackson). Stone will now be stuck with this cover story, just as Corsi is stuck with the equally implausible cover story in his book.

But to some degree, that’s clearly one purpose this introduction serves: to “retake the narrative” (as Skyhorse’s editor Mike Campbell described it when pitching Stone on the project) and try to sell at least frothy right wingers on his cover story.

Another is to make money. Stone’s first response — over three weeks after Skyhorse first floated the paperback project — was to complain that because the publisher printed way too many copies of the hard cover, which was done as part of a joint venture, he made no money off the deal (a claim that Skyhorse corrects, slightly, in the follow-up). That’s why Skyhorse ended the joint venture: to mitigate the risk to Stone and by doing so to convince him to participate in the project.

More interesting — given the January stories suggesting that Jerome Corsi may have gotten a six month severance deal as part of a bid to have him sustain Stone’s cover story — is that Stone seemingly reversed his opinion about doing the project between December 9, when he said he was uninterested, and Monday, December 17, when Smith said they were ready to move forward, because Stone urgently needed money by the next day to pay off his collaborators in the book project.

From the public record, I’m actually fairly confused about who these collaborators are. A number of them would be the witnesses interviewed by Mueller’s grand jury.

But the book itself — because it retains the Acknowledgements section from the original — thanks Corsi third, after only Richard Nixon and Juanita Broaddrick, and lauds what Stone calls Corsi’s “investigative report[ing].”

Remember: A key product of that “investigative reporting” was the report Stone asked Corsi to write on August 30, 2016, to invent a cover for why he was discussing John Podesta and Joule Holdings in mid-August 2016. Things had already gone to hell by the time this book was released in e-book form on February 18 and they (appear to) have continued to disintegrate since then.

But I am very interested in who Stone paid off with that urgently wired payment in December. And because it happened before Stone was raided on January 25, Mueller likely knows the answer, if he didn’t already.

Which brings me to the last likely purpose of this paperback, one that goes to the core of whether Stone was trying to publicize its release with his little stunt about “clarifying” whether or not it would violate his gag.

Stone’s decision to do this paperback came not long after Stone repeated a formula other Trump associates bidding for a pardon have engaged in: promise publicly you won’t testify against Trump, then deny you’re asking for a pardon.

[T]here’s no circumstance under which I would testify against the president because I’d have to bear false witness against him. I’d have to make things up and I’m not going to do that. I’ve had no discussion regarding a pardon.

The next day, Trump let Stone and all the world know he had gotten the message.

Every person who is bidding for a Trump pardon is doing whatever they can — from reinforcing the conspiracy theories about the genesis of the investigation, to declaring ABJ found “no collusion” minutes after she warned lawyers not to make such claims, to sustaining embarrassingly thin cover stories explaining away evidence of a conspiracy — to hew to Trump’s strategy for beating this rap. Indeed, the Michael Cohen lawsuit claiming Trump stopped paying promised legal fees as soon as Cohen decided to cooperate with prosecutors suggests Trump’s co-conspirators may be doing this not just in hopes of a pardon, but also to get their legal fees reimbursed.

Which brings me back to Stone’s concern that the title, “The Myth of Collusion; The Inside Story of How I REALLY Helped Trump Win” would suggest he was taking credit for Trump’s win.

There are two reasons why such an appearance might undermine Stone’s goals for the book.

Stone has loudly claimed credit for his role in Trump’s victory, particularly as compared Steve Bannon. And evidence that will come out in his eventual trial will show him claiming credit, specifically, for successfully working with WikiLeaks.

Of course, Trump is a narcissist. And the surest way to piss him off — and in doing so, ruin any chance for a pardon — is to do anything to suggest he doesn’t get full credit for all the success he has in life.

But there may, in fact, be another reason Stone was quick to object to getting credit for all the things he did to get Trump elected.

At least according to Jerome Corsi, Stone, on indirect orders from Trump, took the lead in trying to learn about and with that knowledge, optimize the release of the materials Russia stole from Hillary’s campaign. If non-public details about what Stone did — or even the public claim that Stone managed the timing of the Podesta email release — had a bigger impact on the election outcome than we currently know, then Stone would have all the more reason to want to downplay his contribution.

That is, if Stone’s efforts to maximize the value of Russia’s active measures campaign really were key, then the last thing he’d want to do is release a paperback crowing about that.

Of course, because of the boneheaded efforts of his lawyers, his concerns about doing so are now public.

Update: I’ve corrected my characterization of Skyhorse. They’re not ideological. But they do feed off of controversy.


October 30, 2018: ABC reports that Stone hired Bruce Rogow in September, a First Amendment specialist who has done extensive work with Trump Organization.

October 31, 2018: Date Corsi stops making any pretense of cooperating with Mueller inquiry.

November 6, 2018: Democrats win the House in mid-term elections.

November 7, 2018: Trump fires Jeff Sessions, appoints Big Dick Toilet Salesman Matt Whitaker Acting Attorney General.

November 8, 2018: Prosecutors first tell Manafort they’ll find he breached plea deal.

November 12, 2018: Date Corsi starts blowing up his “cooperation” publicly.

November 14, 2018: Date of plea deal offered by Mueller to Corsi.

November 15, 2018: Mike Campbell pitches Stone on a paperback — in part to ‘retake the narrative — including a draft of the new introduction.

November 18, 2018: Jerome Corsi writes up his cover story for how he figured out John Podesta’s emails would be released.

November 20, 2018: After much equivocation, Trump finally turns in his written responses to Mueller.

November 21, 2018: Dean Notte reaches out to Grant Smith suggesting a resolution to all the back and forth on their joint venture, settling the past relationship in conjunction with a new paperback.

November 22, 2018: Corsi writes up collapse of his claim to cooperate.

November 23, 2018: Date Mueller offers Corsi a plea deal.

November 26, 2018: Jerome Corsi publicly rejects plea deal from Mueller and leaks the draft statement of offense providing new details on his communications with Stone.

November 26, 2019: Mueller deems Paul Manafort to be in breach of his plea agreement because he lied to the FBI and prosecutors while ostensibly cooperating.

November 27, 2018: Initial reports on contents of Jerome Corsi’s book, including allegations that Stone delayed release of John Podesta emails to blunt the impact of the Access Hollywood video.

November 29, 2018: Michael Cohen pleads guilty in Mueller related cooperation deal.

December 2, 2018: Roger Stone claims in ABC appearance he’d never testify against Trump and that he has not asked for a pardon.

December 3, 2018: Trump hails Stone’s promise not to cooperate against him.

December 9, 2018: Stone replies to Campbell saying that because he never made money on Making of the President, he has no interest.

December 13, 2018: Tony Lyons and Grant Smith negotiate a deal under which Sky Horse would buy Stone out of his hardcover deal with short turnaround, then expect to finalize a paperbook by mid January. This is how Stone gets removed from the joint venture — in an effort to minimize his risk.

December 14, 2018: Mueller formally requests Roger Stone’s transcript from House Intelligence Committee.

December 17, 2018: Smith, saying he and Stone have discussed the deal at length, sends back a proposal for how it could work. This is where he asks for payment the next day, to pay someone off for work on the original book.

For some reason, in the ensuing back-and-forth, Smith presses to delay decision on the title until January.

December 19, 2018: It takes two days to get an agreement signed and Stone’s payment wired.

December 20, 2018: HPSCI votes to release Stone’s transcript to Mueller.

January 8, 2019: Paul Manafort’s redaction fail alerts co-conspirators that Mueller knows he shared polling data with Konstantin Kilimnik.

January 13, 2019: Stone drafts new introduction, which he notes is “substantially longer and better than the draft sent to me by your folks.” He asks about the title again.

January 14, 2019: Stone sends the draft to Smith and Lyons. It is 3386 words long. Lyons responds, suggesting as title, “The Myth of Collusion; The Inside Story of How I REALLY Helped Trump Win.” Lyons also notes Stone can share the book with Senators.

Stone responds suggesting that he could live with, “The Myth of Collusion; The Inside Story of How Donald Trump really won,” noting, “I really can’t be seen taking credit for HIS victory.”

By end of day, Skyhorse’s Mike Campbell responds with his edits.

January 15, 2019: The next morning, Smith responds with his edits, reminding that Stone has to give final approval. Stone does so before lunch. Skyhorse moves to working on the cover. Late that day Campbell sends book jacket copy emphasizing Mueller’s “witch hunt.”

January 15, 2019: Mueller filing makes clear that not all Manafort’s interviews and grand jury appearances involve him lying.

January 16, 2019: Tony Lyons starts planning for the promotional tour, asking Stone whether he can be in NYC for a March 5 release. They email back and forth about which cover to use.

January 18, 2019: By end of day Friday, Skyhorse is wiring Stone payment for the new introduction.

January 24, 2019: Mike Campbell tells Stone the paperback “is printing soon,” and asks what address he should send Stone’s copies to. WaPo reports that Mueller is investigating whether Jerome Corsi’s “severance payments” from InfoWars were an effort to have him sustain Stone’s story. It also reports that Corsi’s stepson, Andrew Stettner, appeared before the grand jury. That same day, the grand jury indicts Stone, but not Corsi.

January 25, 2019, 6:00 AM: Arrest of Roger Stone.

January 25, 2019, 2:10 PM: Starting the afternoon after Stone got arrested, Tony Lyons starts working with Smith on some limited post-arrest publicity. He says Hannity is interested in having Stone Monday, January 28 “Will he do it?” Smith replies hours later on the same day his client was arrested warning, “I need to talk to them before.”

January 26, 2019: Lyons asks Smith if Stone is willing to do a CNN appearance Monday morning, teasing, “I guess he could put them on the spot about how they really go to this house with the FBI.”

January 27, 2019: Smith responds to the CNN invitation, “Roger is fully booked.” When Lyons asks for a list of those “fully booked” bookings, Smith only refers to the Hannity appearance on the 28th, and notes that Kristin Davis is handling the schedule. Davis notes he’s also doing Laura Ingraham.

January 28, 2019: The plans for Hannity continue on Monday, with Smith again asking for the Hannity folks to speak to him “to confirm the details.” In that thread, Davis and Lyons talk about how amazing it would be to support “another New York Times Bestseller” for Stone.

February 15, 2019: After two weeks — during which Stone was indicted, made several appearances before judges, and had his attorneys submit their first argument against a gag — Stone responded to Campbell’s January 24 email providing his address, and then asking “what is the plan for launch?” (a topic which had already been broached with Lyons on January 16). Campbell describes the 300-400 media outlets who got a review copy, then describes the 8 journalists who expressed an interest in it. Stone warns Campbell, “recognize that the judge may issue a gag order any day now” and admits “I also have to be wary of media outlets I want to interview me but don’t really want to talk about the book.”

February 18, 2019: Release of ebook version of Stone’s reissued book.

February 21, 2019: After Stone released an Instagram post implicitly threatening her, Amy Berman Jackson imposes a gag on Stone based on public safety considerations.

March 1, 2019: Ostensible official release date of paperback of Stone’s book. Stone submits “clarification” claiming that the book publication does not violate the gag.

March 12, 2019: Official release date of Corsi hard cover, which Mueller may need for indictment.

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. 

Mueller Is Close to Done, But the Andrew Weissmann Departure Is Overblown

As my docket tracker of the Mueller and related investigations shows, around August 1, 2018, after finalizing the GRU indictment, Ryan Dickey returned to his duties elsewhere at DOJ.

Around October 1, 2018, after submitting a filing saying Mike Flynn was ready to be sentenced, Brandon Van Grack moved back to his duties elsewhere at DOJ (though he continues to be named in documents in the case, as he was Tuesday). He is now starting a prosecutorial focus on FARA.

Around October 15, 2018, Kyle Freeny, who had worked the money laundering angle on the GRU and Manafort cases, moved back to her duties elsewhere at DOJ.

Around December 31, 2018, after successfully defending the Mystery Appellant challenge in the DC Circuit, Scott Meisler moved back to his duties elsewhere at DOJ.

Today, after getting Paul Manafort sentenced to 7.5 years in prison, imposing a $24 million restitution payment, and an $11 million forfeiture (including of Manafort’s Trump Tower condo), multiple outlets are reporting that the guy in charge of prosecuting Manafort’s corruption, Andrew Weissmann, is moving to a job at NYU.

After each prosecutor has finished their work on the Mueller team, he or she has moved on. Weissmann’s departure is more final, since he’s leaving DOJ. But his departure continues a pattern that was set last summer. Finish your work, and move on.

Nevertheless, his departure is being taken as a surefire sign the Mueller investigation is closing up.

Let me be clear: I do agree Mueller is just about done with the investigation. He’s waiting on Mystery Appellant, possibly on Andrew Miller’s testimony; he may have been waiting on formal publication of Jerome Corsi’s book yesterday. Multiple other details suggest that Mueller expects to be able to share things in a month that he’s unable to share today.

None of that tells us what will happen in the next few weeks. There is abundant evidence that Trump entered into a quid pro quo conspiracy with Russia, trading dirt and dollars for sanctions relief and other policy considerations. But it’s unclear whether Mueller has certainty that he’d have an 85% chance of winning convictions, which is around what he’d need to convince DOJ to charge it. There is also abundant evidence that Trump and others obstructed the investigation, but charging Trump in that presents constitutional questions.

If Mueller does charge either of those things, I’d still expect him to resign and either retire or move back to WilmerHale and let other prosecutors prosecute it. That’s what Leon Jaworski did in Watergate.

The far more interesting detail from Carrie Johnson’s Weissmann report is that just some of Mueller’s team are returning to WilmerHale.

WilmerHale, the law firm that Mueller and several other prosecutors left to help create the special counsel team, is preparing for the return of some of its onetime law partners, three lawyers have told NPR in recent weeks.

I’m far more interested in the plans of James Quarles (who has been liaising with the White House and so presumably has a key part of the obstruction investigation) or Jeannie Rhee (who seems to have been overseeing the conspiracy investigation) than Mueller or his Chief of Staff, Aaron Zebley. Their plans might tell us more about what to expect in the next month (though Rhee appeared in Roger Stone’s status hearing today, and may be sticking around for his prosecution, which just got scheduled for November 5).

In any case, though, we don’t have long to wait, so it’s not clear that misreading the departure of Weissmann — which is better understood as part of the normal pattern of Mueller’s prosecutors leaving when they’re done — tells us anything useful.

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. 

Roger Stone’s Seemingly Credible Excuse Starts Falling Apart Well before Bruce Rogow Asks for a Note from His Doctor

On February 21, Roger Stone and his attorneys walked into Amy Berman Jackson’s court room with the swagger of apparent certainty they were going to convince her not to impose a gag on the rat-fucker. As I’ve laid out, that swagger was misplaced. ABJ got both Stone and his lead attorney, Bruce Rogow, to lay out the case for a gag themselves, on public safety grounds.

On the way back to Florida after that hearing, the swaggering rat-fucker and his lawyers now claim, Roger Stone reminded his lawyer, Grant Smith (who had negotiated his book contracts, edited the new introduction [see page 49], and even arranged some of the right wing media publicity for it, post-indictment), that he had a second edition of a book coming out — for which he had just received his advance copies three days earlier — that might violate the expanded gag she had just imposed. Stone then forwarded the email attaching the new introduction to Smith [update: or maybe not–see below], who forwarded it on to Bruce Rogow, who reacted with alarm. Once Stone told his lawyers, they scrambled to respond, they claim. Ultimately they “clarified” that the book was coming out to ABJ on March 1, a week later.

That’s the story that Stone’s lawyers told in a response to an angry order about all this from ABJ, which they submitted last night. It seems credible, if you don’t look too closely at the details or the arrogant close.

There was/is no intention to hide anything. The new introduction, post February 21, 2019, presented a question we tried, obviously clumsily, to address. Having been scolded, we seek only to defend Mr. Stone and move ahead without further ado.1

1 Bruce Rogow may not be able to attend the March 14, 2019 status conference because he is under a physician’s care for a temporary disorder impeding his ability to travel.

There are, however, a few problems with the story.

Multiple claims they make in their new filing are doubtful, some rely on legal gimmicks, and at least some are outright false. I’ll deal with them one by one, ending with the first claim (about publicity) last.

Roger Stone and Grant Smith had no confusion that his book was being released on March 1

Stone claims when he first submitted his “clarification” on March 1, there was confusion about when the book would be published.

That the New Introduction “had been sent to a publisher in January and was scheduled for release in February” (Order, p. 3, n. 2), is now certain. See Composite Exhibit B. There was confusion. We apologize for the confusing representation about publication.

This refers to a discrepancy about what Stone variously claimed with regards to the release date of his book. In his lawyers’ initial “motion to clarify,” which remains under seal, they appear to have referred to its “imminent general release.” Stone’s March 4 motion states,

The book, with the [new introduction], was published by the Publisher on February 19, 2019. Copies were distributed by the Publisher to hundreds of retailers nationwide in late January 2019.

[snip]

the imminent general relase [sic] of the book’s contents, including the [new introduction], Defendant respectfully requests that the publication of this book (together with the ) should not be viewed as contravening the Court’s prohibitions because these prohibitions were not extant and could not have been known prior to February 21, 2019.

The government pointed out on March 4 that the book was available as an ebook, but was silent about any existing paperback edition.

So Stone claims the paperwork he submitted proved that the book was scheduled for release in February. In fact, they appear to be conflating the online and hard copy release.

In fact, Stone’s publisher Tony Lyons told him in January the release date was March 5 (PDF 65).

And while an editor told Stone that the paperbacks were being printed “soon” on January 24 (remarkably, the very day he was indicted, though he should not have known about the sealed indictment at that point), Stone didn’t actually tell him where to send his own review copies until February 15, after his attorneys had already submitted the first filing regarding a gag. (PDF 84)

In his response that same day (PDF 96), Mike Campbell talked about forthcoming plans for media appearances relating to the book. In response, Stone specifically mentioned that ABJ might gag him “any day now” (she issued the first gag sometime that day, just days before Stone threatened her).

According to the Instagram posts submitted with the filing, as recently as February 18 — notably, the day Stone now claims the book was “published” — Stone understood the books would be “In stores March 1!” (PDF 111)

And on February 21, immediately after Stone got gagged, Grant Smith (who negotiated the deal, edited the new material, and helped with publicity) reflected the understanding that the book would come out on March 1. (PDF 9)

At least one of Stone’s lawyers did not believe publicity would wane

Stone’s lawyers claim they believed  — and still believe — what they submitted to ABJ on February 8, that publicity in the case would wane after his initial arrest on January 25.

But, the February 8 representation that “‘[t]hat first wave of publicity surrounding the indictment . . . will subside. To be sure, the interest in this case will continue, but nothing compels the conclusion that the Court’s present expressed confidence in seeking an unbiased jury will, in months hence, be compromised by the press or Mr. Stone as we move forward.’” (Order at 3, n. 2, quoting February 8 submission), is still true. The Court views the New Introduction as “entirely  inconsistent with the assurances,” but those “assurances” were not made in an effort to conceal anything. They reflected a belief in both waning publicity and the ability of the Court to seat a jury. That opinion still holds.

But in an email chain from January 28 setting up a publicity appearance for the book on Hannity, Smith received an email from Kristin Davis stating she was “looking forward to making another New York Times Bestseller.” (PDF 100)

Authors selling NYT times bestsellers spend a lot of time on publicity. And Smith was part of an effort to garner whatever publicity for this book they could get.

The entirety of Paragraph 3 seems only to relate to Bruce Rogow

Then, there’s this paragraph, which serves to deny they’re trying to pull a fast one over on ABJ (I’ve numbered the sentences and bolded the apparent subject of each sentence to make the following discussion more clear):

[1] That the lawyers who submitted the Notice of Apology, and who condemned the posting which prompted it, “did not seek an exception for a recently revised introduction to a book that was in the hands of retailers as he spoke” (Opinion at 3-4) is true. [2] But any suggestion that not doing so was intended to mislead, is not true. [3] Even if it had crossed counsel’s mind to raise the new introduction (and it did not), it seems a bit awkward to have sought to introduce the New Introduction at that very moment during argument. [4] As the 6:33 p.m. February 21, 2019 email exchange reflects, reading for the first time the New Introduction, while waiting for a plane back to Fort Lauderdale, brought the issue home and led to the Motion to Clarify.

Read quickly, you might assume the paragraph has just one subject: “the lawyers,” plural, meaning Stone’s entire legal team.

Not so.

First, note that just two of his attorneys signed the Notice of Apology referenced in sentence 1: Peter Farkas (through whom all the rest have their pro hac vice in DC), and Bruce Rogow (that’s true of the February 8 gag filing as well).

That’s important, because (as noted) Smith was not only involved in every step of this publication process, but helped Stone set up publicity for the book after he had been indicted. I’m guessing that he doesn’t feel any regret about Stone’s incitement.

Sentence 2 of paragraph 3 has no human subject — it refers to the action the counsels in the previous sentence took, or not (in this case, not disclosing the publication of Stone’s book).

The next human subject, in sentence 3, “counsel,” is referred to in the singular, perhaps speaking exclusively for the single lawyer who spoke on Stone’s behalf at the gag hearing, Rogow.

Sentence 4 may appear to use a gerund as its subject (as the second sentence does), reading for the first time. But in fact, that gerund actually modifies the unstated subject. That subject, too, is singular, given that the email referenced is not Smith’s (which was sent at 5:58PM), but Rogow’s (sent at 6:33PM).

The claims made in this paragraph may apply only to Rogow, and they definitely do not apply to Smith, about whom all the claims would probably be false, and the claim he had only read the new introduction for the first time on February 21 (which, again, he edited on January 15) would absolutely be false.

Stone may not have turned over all relevant communication

Stone’s lawyer’s claim that all records regarding publication date appear in Exhibit B.

Perhaps they do. But that exhibit shows Stone forwarding emails he believed to be relevant to Smith. All the ones he sent on March 7 and 8 are numbered, like the first of those emails. (PDF 19)

Only, assuming Stone numbered consecutively, around 8 of the emails he seems to have found relevant are missing: 3, 5, 6, 7, 9, 12, 15, and 16.

Stone sent some more on March 11 that weren’t numbered, so it’s unclear if there were still more emails that didn’t make this exhibit.

Stone’s lawyers are obfuscating about online availability

Stone claims that his publisher answered definitively.

DEFENDANT MUST INFORM THE COURT OF THE EXACT DATE THE BOOK WAS FIRST MADE AVAILABLE FOR PURCHASE ONLINE, AND THE INTRODUCTION WAS MADE AVAILABLE FOR VIEWING, AT AMAZON.COM AND GOOGLE BOOKS OR ANY OTHER ONLINE VENDOR.

Response:

As provided by the Publisher, the exact date the book was first made available for purchase online, and the Introduction was made available for viewing to Amazon.com and Google books or any other online vendor was on January 18, 2019. They could choose to make them publicly available any time after they received them.

Both times the publisher answers the question, however, the answer is not that clear. The first time Tony Lyons answers the question (knowing he has to answer correctly to keep Stone out of jail), he says “both” were live before the gag order, which could refer to both e-book versions, Amazon and Google, or both kinds of availability.

Lyons answers the question again the next day, again using an unspecified February 19 in spite of being asked two questions.

As proof that Tara Campion did not take this date to refer to hard copies, she asked him a follow-up the next day.

Stone professes to have no idea what he posted in his own Instagram

In spite of all the details I’ve posted above showing that Stone believed, as late as February 18, that the book would be in stores on March 1, he now claims to know none of that.

DEFENDANT MUST INFORM THE COURT WHETHER AND WHEN HE BECAME AWARE OF: THE FACT THAT THE NEW EDITION OF THE BOOK HAD BEEN PRINTED BY THE PUBLISHER; THE FACT THAT COPIES OF THE BOOK HAD BEEN SHIPPED FROM THE PRINTER; THE FACT THAT COPIES WERE AVAILABLE AT BOOKSTORES; THE FACT THAT RETAIL BOOKSTORES WERE SELLING THE BOOK; AND THE FACT THAT THE BOOK WAS AVAILABLE FOR PURCHASE OR VIEWING ONLINE.

Response:

1) Mr. Stone became aware of the fact that the New Edition of the book had been printed in early February, exact date unknown, when an acquaintance of Mr. Stone reached out to him to say he had purchased and had in-hand a copy of the book.

2) Mr. Stone knew books had been shipped from the printer as late as February 18, when Mr. Stone received two boxes of approximately 30 books each at his home delivered to him by the publisher which he began giving to friends and family. See also, Composite Exhibit B.

3) Mr. Stone does not have any recollection of when he specifically knew they were available at bookstores.

4) Mr. Stone does not have any recollection of when he specifically knew they were being sold at retail bookstores.

5) Mr. Stone does not recall when he learned that the book was available for purchase or viewing online.

Stone claims he made no public statement about the book even though he booked a Hannity appearance to talk about it

Stone says he don’t remember pitching the book, ever.

To the best of Mr. Stone’s knowledge or records, he made no public statements regarding the publication of the book from January 15th to the present.

As noted above, Roger Stone booked an appearance on Hannity on January 28 specifically to pitch the book (and Smith appears to have spoken to folks there about it).

On top of messaging Trump (he said on the show he would not testify against Trump), the Hannity appearance was about adding to the media blitz and attacking Mueller.

Grant Smith, who edited the introduction, needed no reminder it existed

Stone’s filing claims he needed to “remind” counsel of the existence of the new introduction that violated the gag.

Immediately following the February 21 hearing, Mr. Stone reminded counsel about the existence of the New Introduction which covered topics now subject to restriction and that it could be construed as being written after the date for the February 21 Order because the various platform and location releases were not immediately known to him, although he had knowledge they had been printed and that there had been at least one commercial sale. Mr. Stone instructed Mr. Smith to send the new introduction to the others on his team for review.

As I keep noting, on January 15, Smith shared his own edits with the publisher — and Stone approved both the ones the publisher made and those Smith made (meaning he knows Smith did make edits).

Update: On Twitter, Reed Morris convinced me what happened is even worse than this. Smith, of course, didn’t need Stone to forward him this copy of the new introduction because he already had a copy. He was on the distribution list when it was originally sent!

Stone was included in direct communications with the publishers between February 21 and March 1, and continued to contact them directly after that

Stone’s lawyers claim he did not have “direct communications” with his publisher between the imposition of the gag and the first “clarification” to ABJ.

Mr. Stone did not have any direct communications with the publisher or any retailer between February 21 and March 1, all communications were indirect through counsel. To be completely transparent, Mr. Stone has authorized counsel to provide these communications to the Court.

Only here he was, being included in the conversations with the publishers on February 26. (PDF 121)

And while Stone’s lawyers don’t make any representations on this topic, it’s clear that Stone continued to be in direct contact with the publishers after that. Indeed, it appears the two-step process of forwarding relevant emails to Smith actually amounted to first sending them to Mike Campbell at the publisher, evidence to which got left in on this email and at least one other one. (PDF 96)

This is true, in spite of his lawyers’ claims that the publisher was keeping proprietary information from him.

As is reflected in this email exchange, Mr. Stone no longer had a “joint venture” with the publisher and the publisher viewed the information Mr. Stone was requesting to be proprietary as Mr. Stone neither participated in setting the schedule or any printing or distribution decisions.

For some reason, Stone’s lawyers don’t want to talk about Bruce Rogow’s communications with the publisher

Stone’s lawyers end this filing with claims about how serious they were because they took a week to present misleading data to ABJ.

On the morning of February 22, Mr. Smith sent an email to the publisher requesting, in light of the Court’s Order, a detailed explanation of where the books stood in the release/publishing process.

On February 26th, in preparation for the March 1 filing by Defendant, Mr. Smith requested additional information from the publisher to be able to accurately represent the status of the book to the Court. As is reflected in this email exchange, Mr. Stone no longer had a “jointventure” with the publisher and the publisher viewed the information Mr. Stone was requesting to be proprietary as Mr. Stone neither participated in setting the schedule or any printing or distribution decisions. The publisher ultimately provided the information requested in preparation for the Defendant’s filing.

The Defendant also asks the Court to take notice of the immediacy with which this was addressed by Mr. Stone and that the serious tone in the emails reflects the seriousness with which Mr. Stone took the Court’s February 21 order.

Curiously, they only mention the first two email threads, involving Grant Smith. After having gotten answers, sort of, to the questions they were seeking, Smith then emailed Tony Lyons and said that Lyon had to speak to Rogow immediately. He cc’s Tara Campion, another lawyer in Rogow’s office. (PDF 127)

Lyons says he’s too busy to talk but can respond to emailed questions (they’ve been emailing questions for 5 days at this point). Campion gets the same answers Smith already got, equally ambiguous about the hard copy print date as the earlier round. She asks Lyons when the books were sent out and he says, “I’ll put a call in to our sales director but usually 2-3 weeks before pub date.”

Remember: Everyone believed the “pub date” was March 1, which would put distribution of the books around February 18, which is when Stone himself received his copies.

When Campion follows up again about whether he has spoken with the sales director, he doesn’t say he has! but claims that he now knows they were sent in late January. (PDF 125)

Once again, on January 24, Michael Campbell told Stone the books were “printing soon.” He did not give Campbell the address to receive the books until February 15, in a conversation specifically referencing the expected gag order. And while Campbell’s response reflects review copies having been sent out by February 15, that’s different than actual retail copies. (PDF 96-97 shows this, which happens to be one of the ones Stone definitely shared directly with the publisher.)

Which means this exchange — which happened after Smith told Lyons he needed to speak to Rogow — probably is bullshit, but it provided dates that weren’t utterly damning for ABJ.

The thing is, they’re probably not true, and ABJ may well delve into all this on Thursday.

Stone claims this isn’t a publicity stunt

In a follow-up, I hope to look at why these people decided Stone had to update his book, which was a flop the first time he published it.

The March 1, 2019 Motion to Clarify (Dkt. # 51) was not “intended to serve as a means to generate additional publicity for the book.” Order of March 5, 2019 (Dkt. # 56), p. 2 n. 1. It was intended to address the fact that the “new” introduction was, after the February 21, 2019 hearing, recognized to be a potential problem. See Exhibit A, email exchange of February 21, 2019 at 6:33 p.m. We regret that the Court drew a contrary impression.

As noted above, the reference to the 6:33 email refers to what Rogow — who was rightly alarmed by Stone’s attacks on Mueller in the new introduction — believed.

It says nothing about what Grant Smith, who orchestrated this entire deal, believes.

Which is why I find it so interesting that Rogow plans to have a note from his doctor excusing him from attendance.

There was/is no intention to hide anything. The new introduction, post February 21, 2019, presented a question we tried, obviously clumsily, to address. Having been scolded, we seek only to defend Mr. Stone and move ahead without further ado.1

1 Bruce Rogow may not be able to attend the March 14, 2019 status conference because he is under a physician’s care for a temporary disorder impeding his ability to travel.

I have no idea whether this will result in Stone being jailed. As I noted, at first glance it looks pretty convincing Once you look closer, it’s pretty clear the lawyers — Grant Smith in particular — sign onto claims that cannot be true. And that’s before you look at the 8 emails Stone thought were relevant but don’t appear in this filing, some of which the FBI probably seized along with everything else on January 25.

No wonder Rogow doesn’t want to be the one on the stand on Thursday.

Update: Corrected incorrect claim that Tara Campion was not admitted in this case.

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. 

Dear Editors: Stop Trying to Predict the Mueller Report

Darren Samuelsohn, who gets credit for one of the most important courthouse scoops of the Mueller investigation — the challenge of a Mueller subpoena by a foreign-owned corporation — wrote a piece laying out, “The week that could reveal Mueller’s end-game.” It relies heavily on analysis from Matt Miller, who was among those people saying not just that Mueller was substantially done three weeks ago (apparently true) but that he would issue his report (didn’t happen as predicted). He also quotes Ty Cobb promising Mueller will finish by mid-March, which is something like 16 months after he first predicted the end date.

Yet Samuelsohn’s piece doesn’t mention his own Mystery Appellant scoop, which is currently scheduled for discussion on SCOTUS’ March 22 conference (and would take some time to coerce compliance after that), at all. This appears to be a case where a foreign owned corporation is shielding the potentially criminal behavior of an American citizen by claiming only the President can coerce it to comply, the kind of appellate question that might rival the one decided in US v. Nixon. Solicitor General Noel Francisco’s role in the defense of the subpoena seems to indicate the high stakes of this challenge. Yet even Samuelsohn seems ready to believe that the resolution of this challenge won’t hold up the end game of the Mueller investigation.

Samulesohn also doesn’t mention Andrew Miller’s challenge to a Mueller subpoena. He lost his challenge in the DC Circuit on February 26, but depending on whether this challenge is treated as a criminal or civil one, he still has time to ask for an en banc reconsideration. In the wake of Roger Stone’s indictment, Mueller’s team told Miller’s lawyer they still need his client’s testimony, apparently for other charges. Admittedly, that could just involve a superseding indictment for Stone down the road — which might explain why Mueller was looking for 8 months before trial — but it’s a loose end that won’t be tied anytime soon (unless Miller quietly complied without anyone noticing).

Even among the details that Samuelsohn lays out (status reports in Flynn and Gates, a gag review and status hearing in Stone’s case, and sentencing for Manafort), he misses a really intriguing one. In the wake of Mueller’s clarification regarding the circumstances behind the printing of polling data on August 2, 2016 and which oligarchs that got that data are Russian (a clarification that made it clear they reinterviewed Rick Gates just a month ago), Manafort submitted a sealed motion (docket 538) for Amy Berman Jackson to reconsider her breach determination.

In a minute order filed last Monday, she approved the filing of that motion under seal, but ordered Manafort’s lawyers and Mueller’s to get together to agree on a set of redactions to release that motion. While there have been several sealed motions submitted since then, we don’t yet have that motion for reconsideration.

Manafort’s lawyers have been working hard to publicly reveal details — spun using any of a variety of changing cover stories — about that August 2 meeting since last summer. They’ve already lost a bid to unseal more details of this dispute from one of the past hearings, and they may have lost a dispute here (or it may something that will be aired in Wednesday’s sentencing hearing).

It’s interesting not just that Manafort’s lawyers, in their relentless bid to perform as the guy holding the pardon pen most wants them to perform, are still trying to explain away why Trump’s campaign manager provided data to be shared with Russia at the same meeting he discussed what amounts to relief from the Ukraine related sanctions. But even as Kevin Downing tries yet again to offer a cover story, Mueller appears to be successfully hiding the full details of this incident.

If they’re done, there’s no reason to hide these details, yet ABJ seems to agree they do have reason to hide them.

It is at once possible — likely even! — that the bulk of the investigative work is done (allowing Mueller’s lead Agent to be put in charge of the Richmond FBI Office), but that there are remaining threads that Mueller needs for his final “report.” It’s even possible that everyone misunderstands what form that final report will take.

But thus far no editor has produced a story that adequately describes the signs of a nearing end that adequately accounts for the number of known loose ends that will take some weeks to be tied.

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.