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The Guy Who Defended Roger Stone’s Campaign Finance Shenanigans Did Not Testify to the Grand Jury

In response to an order from DC Chief Judge Beryl Howell, the government has revealed the two witnesses of interest to Congress who did not testify to the grand jury. The first, Don Jr, should not surprise anyone who has been following closely, as that was clear as soon as the Mueller Report came out.

The other–Don McGahn–is far more interesting, especially since he was interviewed on five different occasions: November 30, December 12, December 14, 2017; March 8, 2018; and February 28, 2019.

Most likely, the reason has to do with privilege, as McGahn’s testimony, more than almost anyone else’s, implicated privilege (in part because many witnesses’ testimony cut off at the transition). McGahn ended up testifying far more than Trump knew, and it’s possible he did that by avoiding a subpoena, but had he been subpoenaed, it would provide the White House opportunity to object.

Elizabeth De la Vega said on Twitter it likely had to do with how valuable McGahn was in his five interviews. By not making him testify to the grand jury, she argued, you avoid creating a transcript that might undermine his credibility in the future. That’s certainly consistent with the Mueller Report statement finding McGahn to be “a credible witness with no motive to lie or exaggerate given the position he held in the White House.” But that reference is footnoted to say, “When this Office first interviewed McGahn about this topic, he was reluctant to share detailed information about what had occurred and only did so after continued questioning.” Plus, while McGahn testified more than any other witness not under a cooperation agreement, Steve Bannon and Hope Hicks testified a bunch of times, too (four and three times respectively), but were almost certainly put before the grand jury.

But there is a different, far more intriguing possibility.

First, remember that Roger Stone was investigated for more than lying to Congress (indeed, just the last four warrants against him, all dating to this year, mentioned just false statements and obstruction). Which crimes got named in which warrants is not entirely clear (this government filing and this Amy Berman Jackson opinion seem to conflict somewhat). Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(2)(C), was named in all Stone’s warrants before this year. But at least by August 3, 2018, the warrants against Stone listed a slew of other crimes:

  • 18 U.S.C. § 3 (accessory after the fact)
  • 18 U.S.C. § 4 (misprision of a felony)
  • 18 U.S.C. § 371 (conspiracy)
  • 18 U.S.C. §§ 1505 and 1512 (obstruction of justice)
  • 18 U.S.C. § 1513 (witness tampering)
  • 18 U.S.C. § 1343 (wire fraud)
  • 18 U.S.C. § 1349 (attempt and conspiracy to commit wire fraud)
  • 52 U.S.C. § 30121 (foreign contribution ban)

For whatever reason, the government seems to have decided not to charge CFAA (if, indeed, Stone was the actual target of that investigation). They may have given up trying to charge him for encouraging or acting as an accessory after the fact.

The Mueller Report explains — albeit in mostly redacted form — what happened with the 52 U.S.C. § 30121 investigation. First Amendment and valuation concerns about a prosecution led Mueller not to charge it, even though he clearly seemed to think the stolen emails amounted to an illegal foreign campaign donation.

But that leaves wire fraud and conspiracy to commit wire fraud. During the month of August 2018, DOJ obtained at least 8 warrants relating to Stone including wire fraud. Beryl Howell — who in her order requiring the government unseal McGahn’s name, expressed puzzlement about why Don McGahn didn’t testify before the grand jury — approved at least five of those warrants. Rudolph Contreras approved one and James Boasberg approved two. So apparently, very late in the Stone investigation, three different judges thought there was probable cause Stone and others engaged in wire fraud (or tried to!).

And it’s not just those judges. Roger Stone’s aide, Andrew Miller, was happy to testify about WikiLeaks and Guccifer 2.0. But at least when his subpoena first became public, he wanted immunity to testify about the campaign finance stuff he had done for Stone.

Miller had asked for “some grant of immunity” regarding financial transactions involving political action committees for which he assisted Stone, according to Alicia Dearn, an attorney for Miller.

On that issue, Miller “would be asserting” his Fifth Amendment right to refuse to answer questions, Dearn said.

I’d like to consider the possibility that McGahn, Donald Trump’s campaign finance lawyer before he became White House counsel, was happy to testify about Trump’s attempt to obstruct justice, but less happy to testify about campaign finance issues.

Mind you, McGahn is not one of the personal injury lawyer types that Stone runs his campaign finance shenanigans with. Whatever else he is, McGahn is a professional, albeit an incredibly aggressive one.

That said, there are reasons it’s possible McGahn limited what he was willing to testify about with regards to work with Stone.

At Roger Stone’s trial the government plans (and has gotten permission) to introduce evidence that Stone lied about one additional thing in his HPSCI testimony, one that wasn’t charged but that like one of the charged lies, involves hiding that Stone kept the campaign in the loop on something.

At the pretrial conference held on September 25, 2019, the Court deferred ruling on that portion of the Government’s Notice of Intention to Introduce Rule 404(b) evidence [Dkt. # 140] that sought the introduction of evidence related to another alleged false statement to the HPSCI, which, like the statement charged in Count Six, relates to the defendant’s communications with the Trump campaign. After further review of the arguments made by the parties and the relevant authorities, and considering both the fact that the defendant has stated publicly that his alleged false statements were merely accidental, and that he is charged not only with making individual false statements, but also with corruptly endeavoring to obstruct the proceedings in general, the evidence will be admitted, with an appropriate limiting instruction. See Lavelle v. United States, 751 F.2d 1266, 1276 (D.C. Cir. 1985), citing United States v. DeLoach, 654 F.2d 763 (D.C. Cir. 1980) (given the defendant’s claim that she was simply confused and did not intend to deceive Congress, evidence of false testimony in other instances was relevant to her intent and passed the threshold under Rule 404(b)). The Court further finds that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

A September hearing about this topic made clear that it pertains to what Stone’s PACs were doing.

Assistant U.S. Attorney Michael J. Marando argued that Stone falsely denied communicating with Trump’s campaign about his political-action-committee-related activities, and that the lie revealed his calculated plan to cover up his ties to the campaign and obstruct the committee’s work.

It sounds like Stone cleared up this testimony (Stone sent two letters to HPSCI in 2018, and one of those would have come after Steve Bannon testified about emails that included a Stone demand that Rebekah Mercer provide him funding), which may be why he didn’t get charged on that front.

As I’ve suggested, if Stone was actively trying to deny that the work of his PACs had any interaction with the Trump campaign, it might explain why he threatened to sue me when I laid out how McGahn’s continued work for Trump related to Stone’s voter suppression efforts in 2016.

And remember: when Stone aide Andrew Miller did finally testify — after agreeing to at virtually the moment Mueller announced he was closing up shop — he did so before a new grand jury, after Beryl Howell agreed with prosecutors that they were in search of evidence for charges beyond what Stone had already been indicted on or against different defendants.

McGahn’s campaign finance work for Stone and Trump is one of the things he’d have no Executive Privilege claims to protect (though barring a showing of crime-fraud exception, he would have attorney-client privilege), since it all happened before inauguration.

Again, there are lot of more obvious explanations for why he didn’t testify before the grand jury. But we know that Mueller investigated these campaign finance issues, and we know McGahn was right in the thick of them.

Hassanshahi Bids to Undermine the DEA Dragnet … and All Dragnets

Often forgotten in the new reporting on the DEA dragnet is the story of Shantia Hassanshahi, the Iranian-American accused of sanctions violations who was first IDed using the DEA dragnet. That’s a shame, because his case may present real problems not just for the allegedly defunct DEA dragnet, but for the theory behind dragnets generally.

As I laid out in December, as Hassanshahi tried to understand the provenance of his arrest, the story the Homeland Security affiant gave about the database(s) he used to discover Hassanshahi’s ties to Iran in the case changed materially, so Hassanshahi challenged the use of the database and everything derivative of it. The government, which had not yet explained what the database was, asked Judge Rudolph Contreras to assume the database was not constitutional, but to upheld its use and the derivative evidence anyway, which he did. At the same time, however, Contreras required the government to submit an explanation of what the database was, which was subsequently unsealed in January.

Not surprisingly, Hassanshahi challenged the use of a DEA database to find him for a crime completely unrelated to drug trafficking, first at a hearing on January 29. In response to an order from Contreras, the government submitted a filing arguing that Hassanshahi lacks standing to challenge the use of the DEA dragnet against him.

To the extent that defendant seeks to argue that the administrative subpoenas to telephone providers violated the statutory requirements of Section 876(a), he clearly lacks standing to do so. See, e.g., United States v. Miller, 425 U.S. 435, 444 (1976) (“this case is governed by the general rule that the issuance of a subpoena to a third party to obtain the records of that party does not violate the rights of a defendant”); Moffett, 84 F.3d at 1293-94 (defendant could not challenge a Section 876(a) subpoena to third party on the grounds that it exceeded the DEA’s statutory authority).

This is the argument the government currently uses to deny defendants notice on Section 215 use.

The government further argued that precedent permits it to use information acquired for other investigations.

DEA acquired information through use of its own investigatory techniques and for its own narcotics-related law enforcement purposes. DEA shared with HSI a small piece of this information to assist HSI in pursuing a non-narcotics law enforcement investigation. In doing so, DEA acted consistently with the longstanding legal rule that “[e]vidence legally obtained by one police agency may be made available to other such agencies without a warrant, even for a use different from that for which it was originally taken.” Jabara v. Webster, 691 F.2d 272, 277 (6th Cir. 1982) (quotation marks omitted); accord United States v. Joseph, 829 F.2d 724, 727 (9th Cir. 1987).

Applying an analogous principle, the D.C. Circuit has held that querying an existing government database does not constitute a separate Fourth Amendment search: “As the Supreme Court has held, the process of matching one piece of personal information against government records does not implicate the Fourth Amendment.” Johnson v. Quander, 440 F.3d 489, 498 (D.C. Cir. 2006) (citing Arizona v. Hicks, 480 U.S. 321 (1987)). The D.C. Circuit observed that a contrary rule would impose “staggering” consequences, placing “an intolerable burden” on law enforcement if each query of a government database “were subject to Fourth Amendment challenges.” Id. at 499.

This is a version of the argument the government has used to be able to do back door searches of Section 702 data.

It also argued there was no suppression remedy included in 21 USC 876, again a parallel argument it has made in likely Section 215 cases.

Finally, it also argued, in passing, that its parallel construction was permissible because, “While it would not be improper for a law enforcement agency to take steps to protect the confidentiality of a law enforcement sensitive investigative technique, this case raises no such issue.” No parallel construction happened, it claims, in spite of changing stories in the DHS affidavit.

Yesterday, Hassanshahi responded. (h/t SC) In it, his attorneys distinguished the use of the DEA dragnet for purposes not permitted by the law — a systematic violation of the law, they argue — from the use of properly collected data in other investigations.

Title 21 USC § 876 allows the government to serve an administrative subpoena in connection with a purely drug enforcement investigation. Government has systematically violated this statute for over a decade by using the subpoena process to secretly gather a database of telephony information on all Americans, and then utilizing the database (while disguising its source) in all manner of investigations in all fields not related to drugs at all.

[snip]

This was not a one-time or negligent statutory violation that happened to uncover evidence of another crime, or even the sharing of information legitimately gathered for one purpose with another agency. Cf. Johnson v. Quander, 440 F.3d 489 (D.C.Cir. 2006) (government may use DNA profiles gathered pursuant to and in conformance with statute for other investigations). By its very nature, the gathering of telephony information was repeated and systematic, as was the making available of the database to all government agencies, and all aspects of the scheme (from gathering to dissemination outside drug investigations) violated the statute.

But more importantly, Hassanshahi pointed to the government’s request — from before they were ordered to ‘fess up about this dragnet — that the Judge assume this dragnet was unconstitutional, to argue the government has already ceded the question of standing.

Defendant herein submits that a systematic statutory violation, or a program whose purpose is to violate the statute continuously over decades, presents a case of first impression not governed by Sanchez-Llamas or other government cases.

But the Court need not reach the novel issue because in the instant case, the government already conceded that use of the database was a constitutional violation of Mr. Hassanshahi’s rights. Indeed the Court asked this Court to assume the constitutional violation. Mem. Dec. p. 9. Where there is a statutory violation plus an individual constitutional violation, the evidence shall be suppressed even under government’s cited cases.

[snip]

Government now argues Mr. Hassanshahi “lacks standing” to contest the statutory violation. Again, government forgets it previously conceded that use of the database was unconstitutional, meaning unconstitutional as to defendant (otherwise the concession was meaningless and afforded no grounds to withhold information). Mr. Hassanshahi obviously has standing to assert a conceded constitutional violation.  [emphasis original]

In short, Hassanshahi is making a challenge to the logic behind this and a number of other dragnets, or demanding the judge suppress the evidence against him (which would almost certainly result in dismissal of the case).

We’ll see how Contraras responds to all this, but given that he has let it get this far, he may be sympathetic to this argument.

In which case, things would get fun pretty quickly. Because you’d have a defendant with standing arguing not just that the use of the DEA dragnet for non-DEA uses was unconstitutional, but also that all the arguments that underly the use of the phone dragnet and back door searches were unconstitutional. And he’d be doing so in the one circuit with a precedent on mosaic collection that could quickly get implicated here. This case, far more than even the ACLU lawsuit against the Section 215 database (but especially the Smith and Klayman challenges), and even than Basaaly Moalin’s challenge to the use of the 215 dragnet against him, would present real problems for the claims to dragnet legally.

In other words, if this challenge were to go anywhere, it would present big problems not only for other uses of the DEA dragnet, but also, possibly, for the NSA dragnets.

Mind you, there is no chance in hell the government would let it get that far. They’d settle with Hassanshahi long before they permitted that to happen in a bid to find a way to bury this DEA dragnet once and for all and retain their related arguments for use with the NSA dragnets and related collection.

But we might get the dragnetters sweat just a bit.

The Government’s Unexplained Iran Dragnet

Just the other day, I observed that the government likely has a problem with the authorities it has used to police its sanction regime against Iran. First, the government appears to have had a counterproliferation certification under Protect America Act that may have had legal issues; with FISA Amendments Act, Congress authorized such a certification as foreign intelligence. Then, at some point over the course of the phone dragnet, FISC approved the use of the dragnet with Iran under an alleged terrorism purpose. But the primary claimed Iranian terrorism in this country was propagated by DEA; clearly the NSA was using the dragnet for an inherently counterproliferation purpose.

A judge in DC just ruled for the government in a case against an Iranian American, Shantia Hassanshahi, that implicates many of these problems, and broader problems with the dragnet, though he did so by largely sidestepping the underlying issue.

Basically, the case that Hassanshahi violated sanctions stems from the following evidentiary steps:

  1. An unsolicited tip from an (apparently) paid informant
  2. A query request submitted to some unnamed database on a suspect number, which returned a single call with a number associated with Hassanshahi
  3. Based on that and 1 other call to Iran, the government stopped Hassanshahi as he returned from a trip to Iran and seized his devices in CA
  4. A forensic search of his laptop resulted in incriminating documents showing the sale of non-military energy-related goods to Iran

Hassanshahi argued that the query of the database — which he argued was either the phone dragnet database or something nearly identical and therefore just as unconstitutional — was illegal, citing Richard Leon’s Larry Klayman ruling. And he argued that everything else not only followed as fruit of the poison tree from there, but that the device search violated the 9th Circuit’s precedent requiring probable cause to conduct a forensic border search (his devices were seized in CA, not in DC). Judge Rudolph Contreras rejected Hassanshahi’s bid to have the evidence suppressed by dodging the question of the legality of the database query, treating it as unconstitutional (I think this overstates what the government was saying here).

In response, the Government sidesteps Hassanshahi’s argument by taking the position that although the NSA telephony database was not used, the Court nevertheless should assume arguendo that the law enforcement database HSI did use was unconstitutional. See Gov’t’s  Mem. Opp’n Mot. Suppress 12. Consistent with this position, the Government refuses to provide details about its law enforcement database on the basis that such information is irrelevant once the Court accepts the facial illegality of the database. See id. at 11-12. Regrettably, the Court therefore starts its analysis from the posture that HSI’s initial search of the mysterious law enforcement database, which uncovered one call between Sheikhi’s business telephone number and the 818 number linked to Hassanshahi, was unconstitutional

But based on the time that elapsed between the query he treated as unconstitutional and the border search, and based on Hassanshahi’s voluntary arrival in LAX (where a 9th Circuit ruling would require reasonable suspicion) and some really crazy details even the government didn’t argue that strongly constituted reasonable suspicion, he ruled the forensic search in LA legal.

This is where things get bizarre. Having already ruled that this was not flagrant enough to make the subsequent search improper, Contreras then throws up his hands, notes that if the government did use the NSA phone dragnet  (which is supposed to be limited to counterterrorism purposes and therefore should be inapplicable in this case) or if the dragnet it used doesn’t have the controls that the NSA dragnet does it might be a problem, he says he will require the government to submit an ex parte filing explaining the database.

But, at the same time, the Court does not know with certainty whether the HSI database actually involves the same public interests, characteristics, and limitations as the NSA program such that both databases should be regarded similarly under the Fourth Amendment. In particular, the NSA program was specifically limited to being used for counterterrorism purposes, see Klayman, 957 F. Supp. 2d at 15-16, and it remains unclear if the database that HSI searched imposed a similar counterterrorism requirement. If the HSI database did have such a limitation, that might suggest some level of flagrancy by HSI because it was clear that neither Sheikhi nor Hassanshahi was involved in terrorism activities. With so many caveats, the Government’s litigation posture leaves the Court in a difficult, and frustrating, situation. Yet, even assuming that the HSI database was misused to develop the lead into Hassanshahi, HSI’s conduct appears no more flagrant than law enforcement conduct in other “unlawful lead” cases,which still held that the attenuation exception applied nonetheless.6

66 The Government’s silence regarding the nature of the law enforcement database has made the Court’s analysis more complex than it should be. Although the Court still concludes that the attenuation exception applies in large part based on the “unlawful lead” line of cases, the Court will order that the Government provide the Court with an ex parte declaration summarizing the contours of the mysterious law enforcement database used by HSI, including any limitations on how and when the database may be used.

Of course he only requires this after ruling that the evidence can come in!

Now, I can think of four possibilities to explain the search:

  • The government searched the dragnet under its “Iranian” allowance (which only Josh Gerstein and I have ever reported), exposing what I noted above — that they’re using a CT tool for a fundamentally CP function
  • The government searched Hemisphere
  • The government searched SPMCA, the authority permitting it to contact-chain on US person data collected under EO 12333 or it originally searched on the Section 215 phone dragnet then re-ran the search under EO 12333 so it could share the link
  • There’s yet another dragnet

Something’s definitely fishy about the government’s claims, because the Homeland Security investigator in the case, Joshua Akronowitz changed his story twice in meaningful ways.

For example, the affidavit the government used to justify his arrest said he personally searched “HSI accessible law enforcement databases.” Read more