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Lev Parnas’ Gamble: The Three Nested Investigations

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As I noted the other day, Lev Parnas has inserted himself, along with his co-defendants, in the middle of the presumed Special Master review of Rudy Giuliani and Victoria Toensing’s seized devices. He’s doing so as part of a strategy he has pursued since shortly after he was arrested to either make his prosecution unsustainable for Donald Trump (that strategy has presumably failed) or to bring a whole lot of powerful people — possibly up to and including Trump — down with him. The Special Master review will be critical to this strategy, because it will determine whether material that might otherwise be deemed privileged can be reviewed by the Southern District of New York as evidence of a cover-up of crimes that Donald Trump committed.

In this post, I will lay out how there are two — and if Lev is successful, three — sets of crimes in question, each leading to the next.

1a, Conspiracy to donate money: 18 USC 371, 52 USC 30122, 18 USC 1001, 18 USC 1519 and 2, and 18 USC 371, 52 USC 30121.

The first set of crimes pertain to efforts by Parnas, Igor Fruman, and two co-defendants, to gain access to the Republican Party with donations prohibited by campaign finance law. They were first charged — as Parnas and Fruman were about to fly to Vienna to meet with Victor Shokin — on October 9, 2019. The charges relate to allegations that they used their company, Global Energy Partners, to launder money, including money provided by a foreigner, to donate to Trump-associated and other Republican candidates.

These charges almost certainly arose out of a complaint and then a follow-up by Campaign Legal Center.

The overall motive of these crimes, as described, was basically grift: to improve their connections to facilitate a fairly dodgy business proposition. One prong of the business, explicitly funded by a Russian businessman, involved funding recreational marijuana efforts.

But along the way, one of their alleged acts was to give Pete Sessions $20,000 in a way that associated that donation with an effort to get rid of Marie Yovanovitch, possibly on behalf of Yuri Lutsenko.

[T]hese contributions were made for the purpose of gaining influence with politicians so as to advance their own personal financial interests and the political interests of Ukrainian government officials, including at least one Ukranian government official with whom they were working. For example, in or about May and June 2018, PARNAS and FRUMAN committed to raise $20,000 or more for a then-sitting U.S. Congressman [Sessions],

[snip]

At and around the same time PARNAS and FREEMAN committed to raising those funds for [Sessions], PARNAS met with [Sessions] and sought [his] assistance in causing the U.S. Government to remove or recall the then-U.S. Ambassador to Ukraine.

1b, Conspiracy to donate money: 18 USC 371, 52 USC 30122, 18 USC 1001, 18 USC 1519 and 2, and 18 USC 371, 52 USC 30121, 18 USC 1349.

The campaign finance indictment was superseded on September 17, 2020 to add a fraud charge associated with Parnas and David Correia’s Fraud Guarantee, which literally was a fraud claiming to insure people against losses from fraud. They got a bunch of investors to invest in the business based on false representations, which Parnas (and to a lesser degree, David Correia) allegedly spent on his personal expenses. The superseding indictment took out the charge related to Yovanovitch.

Shortly after this superseding indictment, Correia flipped, entering into a plea agreement.

2, Foreign influence peddling: 22 USC §§612 and 618, 18 USC §951, 18 USC §2, and 18 USC §371

As you can see already, the first indictment against Parnas and Fruman pertained to an effort — to get Yovanovitch fired — that they were undertaking with Rudy Giuliani. And the superseding indictment adds fraud associated with the Fraud Guarantee they used Rudy’s name to help sell. So Rudy was bound to get dragged into this.

According to a letter submitted by Rudy Giuliani’s lawyer, he is being investigated for a bunch of influence-peddling crimes: FARA, acting as an unregistered Foreign Agent, abetting, and conspiracy.

This investigation may have come out of the way that the whistleblower complaint that launched Trump’s first impeachment magnified an OCCRP profile of Parnas and Fruman’s influence-peddling (which incorporated the profile), and the way that impeachment magnified the influence-peddling that Rudy and the grifters were involved with. The letter that failed to redact the targets of the warrants associated with Rudy listed two of the key players in the OCCRP profile, Yuri Lutsenko and Alexander Levin (Roman Nasirov is the one other person, in addition to Rudy and Victoria Toensing, who was targeted).

Indeed, even as impeachment was rolling out, during the period where Parnas was discussing cooperating with SDNY, he was refusing to admit that some foreigner — likely Lutsenko — was behind all this.

And it seems pretty clear that Parnas and Fruman are subjects of this investigation, too. The government’s response to Parnas’ request for discovery describes that he was notified of search warrants targeting him in January of this year (shortly after Joe Biden’s inauguration).

3. Parnas’ hoped for obstruction investigation

From the start, Parnas has been alleging — credibly — that at least the timing of his arrest was an effort to protect the President and maybe even to shut him up. From early on, he used impeachment as a way to share materials obtained in discovery showing Rudy’s central role in it all. In January 2020, Parnas filed a letter he sent to Billy Barr requesting his recusal, based in part off a claim that DOJ delayed production of discovery past the time he could share it with the impeachment inquiry (in reality, the delay was partly due to the time it took to crack the password to Parnas’ phone). In December, Parnas filed a motion to dismiss his indictment, alleging selective prosecution. He focused closely on the events leading up to impeachment (and falsely suggested these events started in 2019, not 2018). Amid a list of all the times Barr corruptly intervened to protect the President, Parnas described how, just as HPSCI was asking for his testimony, he and Fruman were arrested.

Later that day, Dowd wrote to HPSCI, 6 as he had indicated he would in his e-mail: Kindly refer to my letter of October 3, 2019. This is an update. We continue to meet with Mr. Parnas and Mr. Fruman to gather the facts and documents related to the many subjects and persons detailed in your September 30 letter and to evaluate all of that information in light of the privileges we raised in our last letter. This effort will take some additional time. Accordingly, Messrs. Parnas and Fruman will not be available for depositions scheduled for October 10, 2019. The following day, October 9, 2019, Mr. Parnas met with Mr. Giuliani at the BLT Steakhouse in the Trump Hotel, Washington DC. Mr. Parnas was scheduled to travel later that evening to Frankfurt, Germany, and then on to Vienna, Austria, to meet with the former Prosecutor General of Ukraine, Victor Shokin, to prepare him for an appearance on FOX News’ Shawn Hannity Show to discuss Joe Biden. Although Mr. Giuliani, along with Victoria Toensing and Joseph DiGenova, had originally been scheduled to travel to Vienna with Parnas, Toensing and DiGenova had cancelled several days earlier, and Mr. Giuliani cancelled that day.

After finishing meeting with Mr. Giuliani, Mr. Parnas and Mr. Fruman took a car to Dulles International Airport, where they waited in the Lufthansa lounge for approximately two hours before beginning to board their flight. Unbeknownst to Messrs. Parnas and Fruman, they had been indicted in the SDNY earlier that day.

Parnas also described others involved in his illegal campaign finance activities who were not indicted, including America First Action PAC and Kevin McCarthy.

Among the things Parnas asked for was evidence that was already being collected in the second, influence-peddling investigation.

All internal documents, including memoranda, notes, e-mails, and text messages that, in any way, reference the reasons why individuals and entities including but not limited to, America First Super PAC, [redacted], Rudy Giuliani, President Donald J. Trump, Victoria Toensing, Joseph DiGenova, and John Solomon, were not arrested or charged with Mssrs. Parnas and Igor Fruman;

The government dismissed Parnas’ claim as lacking evidence but also said that some of the materials he was asking for would be covered by various privileges.

Because Parnas’s claim is meritless, the Court need not consider the contours of his discovery request (Parnas Mot. 32-33), but multiple of his requests seek materials that, if they exist, appear to be attorney work product, covered by the deliberative process privilege, and/or are outside of the scope of what would be reasonably necessary to try to advance his asserted claims rather than to gain a strategic advantage at trial.

Judge Oetken has not yet ruled on Parnas’ selective prosecution claim (or a bunch of other pre-trial motions from all defendants).

But as I noted, just the other day, Gordon Sondland provided more evidence of a corrupt cover-up pertaining to impeachment.

In his redaction fail letter, Parnas addressed very specific things he believed to exist to show a cover-up just before the influence peddling warrants got sent out, including emails he deleted.

The seized evidence will also likely contain a number and variety of communications between Giuliani and Toensing and Parnas that are directly discoverable under Fed. R. Crim. P. 16, evidence of any conversations between Giuliani, Toensing, and others, including Parnas, that may have been deleted, communications between Giuliani, Toensing and others about the defendants and how to address their prior relationships, the arrests, and the unfolding investigation, communications between Giuliani and Toensing and others with potential Government witnesses, including communications about the defendants, the offenses charged, and the witnesses’ potential disclosures and characterizations of alleged fraud-loss computations.

If Rudy and Toensing didn’t delete these materials, then they are now in US government custody. And Parnas is doing all he can to make sure the government looks at them.

“Purge:” Gordon Sondland Probably Just Won Himself Another Subpoena

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Since we’re talking about people avenging themselves for being targeted by Trump’s corruption, I wanted to look the lawsuit Gordon Sondland filed the other day against the State Department and/or Mike Pompeo in his private capacity. Sondland says that Pompeo promised to reimburse what has amounted to $1.8 million in legal fees for testifying in Trump’s first impeachment, but that Pompeo reneged on that promise. So the suit is explicitly about getting reimbursed.

Maybe the lawsuit will work, as he ostensibly intends, or maybe the government will declare immunity.

But there are several details of his suit that will — and probably were designed (especially in the wake of the news that Rudy Giuliani had his devices seized) to win Sondland an invitation to testify in SDNY, which may have the effect of expanding their existing investigation into Rudy into the cover-up.

First, Sondland says that Pompeo promised to reimburse his legal fees twice. And while Sondland describes others besides Pompeo at State who knew about it, the promise itself was made orally.

On October 16, 2019, Pompeo again reaffirmed that the Indemnity Undertaking was made with his knowledge and approval. Ambassador Sondland spoke with Pompeo via conference call from the Washington, D.C. office of his Private Counsel, who were also in attendance and listening on speakerphone. Pompeo promised without any qualification that the State Department would reimburse Ambassador Sondland the fees and costs of Private Counsel in full. Ambassador Sondland and his Private Counsel understood Pompeo to be stating that he had the authority to bind the Government to such an agreement. Ambassador Sondland relied on Pompeo’s promise and reasonably believed that he had the authority to bind the Government to such an agreement. The Under Secretary for Management and the Counselor to the Secretary of State also confirmed that Ambassador Sondland would be reimbursed in full.

I find it remarkable Pompeo would commit State without putting something in writing, and find it just as remarkable that a successful businessman like Sondland wouldn’t insist on having it in writing. Unless there was an understanding they would not put it in writing.

Sondland describes being “purged” after he testified truthfully, something that will help him make the case the decision not to reimburse him was political retaliation.

During the meeting with the Counselor to the Department of State, Ambassador Sondland stated that he had no intention of leaving his position in the near future. Instead, Ambassador Sondland mentioned that he might consider stepping down in the summer of 2020 to return to lead his businesses, and he wanted to give his colleagues notice to permit a proper transition. In response, he was advised that while the Administration appreciated his testimony, the Administration wanted to purge everyone remotely connected to the Impeachment trial. Accordingly, the Counselor to the Department of State asked for Ambassador Sondland’s resignation. In response, Ambassador Sondland said he would consider that proposal, but asked about his attorneys’ fees. The Counselor to the Department of State told Ambassador Sondland to speak with the Under Secretary for Management, who would take care of his attorneys’ fees. Later that day, Ambassador Sondland confirmed he would not resign because he did not do anything improper. After that, everything changed. Ambassador Sondland did not receive his attorneys’ fees, notwithstanding the promises from the State Department that the attorneys’ fees would be paid.

Sondland describes that he didn’t have access to any of the underlying materials to help prepare, which will at the very least help him explain his first, less-truthful testimony.

As Ambassador Sondland prepared for a second round of testimony, the Department of State continued to restrict Ambassador Sondland’s access to materials essential to his preparation

But it will also support a inference that he was asked to participate in a cover-up of what really happened.

Then there are details that Sondland didn’t necessarily need to include, such as when and how he learned about the whistleblower complaint and how he met with Kurt Volker and Pompeo to discuss the complaint.

22. On September 25, 2019, Ambassador Sondland and Pompeo attended the eighteenth annual Transatlantic Dinner. Ambassador Sondland was the only U.S. ambassador in attendance, which hosted the NATO Secretary General, the EU High Representative for Foreign and Security Policy, and foreign ministers from Europe and Canada. During the dinner, Ambassador Sondland received an urgent phone call from The White House alerting him that his name appeared in a whistleblower complaint received by the Office of the White House Counsel.

23. The following day, September 26, 2019, Ambassador Sondland and Pompeo met to discuss the whistleblower complaint with Ambassador Kurt Volker, United States Special Representative for Ukraine.

When Rudy complained about having his phone seized, he said that he was just cooperating in State Department investigations. Now, a former State Department participant has let it be known that State really didn’t want the full story of what happened to come out.

I’d say SDNY will find it hard to pass up that testimony.

Lev Parnas Wants in on the Rudy Giuliani Warrant Bonanza

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Lev Parnas just submitted a filing in his case — joined by the remaining defendants — asking for a discovery hearing where SDNY will tell them when they will get the evidence seized from Rudy Giuliani and Victoria Toensing that is helpful to their defense. It describes how, after inquiring how the searches on Rudy and Toensing affect them, on May 14, the government explained that Judge Paul Oetken has given the government multiple gags, covering the time through June 30, to delay disclosure.

And it sounds like the government seized material from more than just Rudy and Toensing. At least two sentences of this description of the searches likely doesn’t pertain to them.

Parnas explains that he expects those searches will include materials useful to his defense from:

  • Rudy
  • Toensing
  • “the former President”
  • Billy Barr
  • “high-level members of the Justice Department”
  • Jay Sekulow
  • Jane Raskin
  • Senator Lindsey Graham
  • Congressman Devin Nunes

He expects those materials will reveal “the timing of the arrest and indictment of the defendants as a means to prevent potential disclosures to Congress in the first impeachment inquiry of then-President” Trump. He says he’ll have exceptions to any “potentially applicable privilege.”

He also expects that there may be information that got deleted (the implication is, by him) about “how to address their prior relationships, and the unfolding investigation.”

Update: As a number of people have noted, that big redaction is one of the fake redactions that defense attorneys sometimes disclose sensitive information under. Copy and pasting shows that the following other people were also targeted.

In a chart, the Government identified that it had sought and seized a variety of undisclosed materials from multiple individuals, including: the iCloud and e-mail accounts of Rudolph Giuliani (11/04/19); the iCloud account of Victoria Toensing (11/04/19); an email account believed to belong to former Prosecutor General of Ukraine, Yuriy Lutsenko (11/6/19); an e-mail account believed to belong to the former head of the Ukrainian Fiscal Service, Roman Nasirov (12/10/19); the e-mail account of Victoria Toensing (12/13/19); the iPhone and iPad of pro-Trump Ukrainian businessman Alexander Levin (02/28/2020 and 3/02/2020); an iCloud account believed to belong to Roman Nasirov (03/03/2020); historical and prospective cell site information related to Rudolph Giuliani and Victoria Toensing (04/13/2021); electronic devices of Rudolph Giuliani and Giuliani Partners LLC (04/21/2021); and the iPhone of Victoria Toensing.

Several of these people were named in a July 2019 OCCRP story on Parnas and Fruman that the whistleblower included in his complaint against Trump. Which is to say, this is the investigation we would have gotten had DOJ not worked so hard to protect Rudy and, through him, Trump, back in 2019.

Vicky and Rudy: The Subjects of Delay

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When I asked around last year what the net effect of Billy Barr and Jeffrey Rosen’s efforts to protect Rudy Giuliani would be, I learned that the net effect of refusing to approve searches on Rudy would only delay, but it would not change the outcome of, the investigation into the President’s lawyer.

That’s worth keeping in mind as you read SDNY’s response to Victoria Toensing and Rudy’s demand that they get to treat both the April warrants against them, as well as the 2019 warrants, like subpoenas. Effectively, SDNY seems to be saying, “let’s just get to the indictment and discovery phase, and then you can start challenging these searches.”

The filing several times speaks of charges hypothetically.

If Giuliani is charged with a crime, he will, like any other criminal defendant, be entitled to production of the search warrant affidavits in discovery, at which time he will be free to litigate any motions related to the warrants as governed by Federal Rule of Criminal Procedure 12. Conversely, if the Government’s grand jury investigation concludes without criminal charges, then the sealing calculus may be different, and Giuliani may renew his motion.

[snip]

If there is a criminal proceeding, the Government will produce the affidavits, warrants, and materials seized pursuant to those warrants, and at that time, the warrants’ legality can be litigated.

[snip]

Finally, Toensing will have both a forum and an opportunity to litigate any privilege issues if there is a criminal proceeding. As the Second Circuit has noted, in affirming the denial of a return-of-property motion, “If [the grand jury’s] inquiry results in indictment, the lawfulness of the seizure will be fully considered upon a motion to suppress, and any ruling adverse to the defendant will be reviewable upon appeal from a final judgment; if the grand jury declines to indict the movant, or adjourns without indicting it, its property will most likely be returned, and if not, it can initiate an independent proceeding for its return.” [my emphasis]

But the filing repeatedly makes clear that not just Rudy, but also Toensing (whose lawyer made much of being informed that Toensing was not a target of the investigation), are subjects of this investigation.

But the Government specifically chose not to proceed by subpoena in this case, for good reason, and there is no precedent for permitting the subjects of an investigation to override the Government’s choice in this regard.

None of the cases cited by Giuliani or Toensing supports their proposed approach. Toensing principally relies on United States v. Stewart, No. 02 Cr. 395 (JGK), 2002 WL 1300059, at *4-8 (S.D.N.Y. June 11, 2002), 4 but that case is readily distinguishable because it involved the seizure of documents from several criminal defense attorneys who were not subjects of the Government’s investigation and had many cases before the same prosecuting office

[snip]

Such concerns merely serve to highlight the many countervailing problems with Giuliani and Toensing’s proposal: under their approach, the subjects of a criminal investigation would have the authority to make unilateral determinations not only of what is privileged, but also of what is responsive to a warrant.

[snip]

Nevertheless, Giuliani argues that, quite unlike other subjects of criminal investigations, he is entitled to review the affidavits supporting the warrants, which would effectively give him the extraordinary benefit of knowing the Government’s evidence before even being charged with a crime.

[snip]

Her request is contrary to law and would effectively deprive the Government of its right to evidence in the midst of a grand jury investigation so that she, the subject of that investigation, may decide what is privileged and what is responsive in those materials.

[snip]

In other words, accepting Giuliani and Toensing’s argument about the impropriety of using a filter team to review covert search warrant returns would entitle subjects of a criminal investigation to notice of that investigation any time a warrant were executed that related to them, no matter if the investigation were otherwise covert and no matter if the approving Court had signed a non-disclosure order consistent with the law. [my emphasis]

SDNY correctly treats Rudy and Toensing’s demands to review this material before SDNY can obtain it as a delay tactic.

Giuliani and Toensing’s proposal to allow their own counsel to conduct the initial review of materials seized pursuant to lawfully executed search warrants, including making determinations of what materials are responsive to the warrants, on their own timeline is without any precedent or legal basis. The Government is aware of no precedent for such a practice, which has the effect of converting judicially authorized search warrants into subpoenas.

Indeed, their discussion of the Lynn Stewart precedent emphasizes their goal of obtaining this material expeditiously.

None of the cases cited by Giuliani or Toensing supports their proposed approach. Toensing principally relies on United States v. Stewart, No. 02 Cr. 395 (JGK), 2002 WL 1300059, at *4-8 (S.D.N.Y. June 11, 2002), 4 but that case is readily distinguishable because it involved the seizure of documents from several criminal defense attorneys who were not subjects of the Government’s investigation and had many cases before the same prosecuting office. (See infra at pp. 33-34). In any event, the Court appointed a special master in Stewart, as the Government seeks here. And the procedures adopted in Stewart illustrate why the Government’s proposed approach is preferable. In Stewart, the presiding judge initially believed that the special master’s review could be conducted expeditiously because the defendant’s counsel could quickly produce a privilege log (as Toensing seeks to do here). Id. at *8. But 15 months later, the judge lamented that the special master still had not produced a report on the seized materials. United States v. Sattar, No. 02 Cr. 395 (JGK), 2003 WL 22137012, at *22 (S.D.N.Y. Sept. 15, 2003), aff’d sub nom. United States v. Stewart, 590 F.3d 93 (2d Cir. 2009). That cumbersome process stands in stark contrast to that adopted by Judge Wood in Cohen, wherein the special master completed her review on an expedited basis in parallel to Cohen’s counsel, and set deadlines for Cohen’s counsel to object to any of her designations. (Cohen, Dkt. 39 at 1-2). In Cohen, the special master was appointed in April 2018, and her review was complete by August 2018. The Cohen search involved approximately the same number of electronic devices seized here, but also included significant quantities of hard copy documents, which are not at issue here. In sum, the Court should follow the model set forth in Cohen, which resulted in an efficient and effective privilege review. [my emphasis]

Likewise, the government also offered to pay the costs of the Special Master, so long as the Special Master follows the expeditious procedure conducted with Michael Cohen’s content.

This Court should not permit Giuliani and Toensing to stall the investigation of their conduct in this manner, particularly where the Government’s proposal will allow them to conduct the same review in parallel with a special master. The Government’s proposal to appoint a special master to review the seized materials is the only proposal that is fair to all parties, respects the unique privilege issues that the 2021 Warrants may implicate, and will ensure that Government’s investigation proceeds without undue delay.6

6 In the Cohen matter before Judge Wood, the Government and Cohen split the costs associated with the special master’s privilege review. Here, because the Government made the initial request of the Court and considers the appointment of a special master appropriate in this matter, the Government is willing to bear the costs of the review insofar as the special master follows the procedures adopted by Judge Wood in the Cohen matter, namely to review the seized materials for potential privilege in parallel with counsel for Giuliani and Toensing. To the extent the Court adopts the proposals advanced by Giuliani and Toensing, including that the special master also conduct a responsiveness review of those same materials—which the Government strongly opposes for the reasons set forth above—Giuliani and Toensing should solely bear any costs associated with a responsiveness review, any review beyond the initial privilege review, or any cost-enhancing measures traceable to Giuliani and Toensing. [my emphasis]

I’m mindful, as I review the schedule laid out above, that Cohen was charged almost immediately after the Special Master review was completed, in August 2018. In addressing the partial overlap between the 2019 searches and the April ones, the government notes that, “the Government expects that some, but not all, of the materials present on the electronic devices seized pursuant to the Warrants could be duplicative of the materials seized and reviewed pursuant to the prior warrants.”

The government already knows what they’re getting with these warrants (and if they don’t get it, they’re likely to be able to charge obstruction because it has been deleted). They’re calling for a Special Master not because it provides any more fairness than their prior filter review (indeed, they speak repeatedly of the “perception of fairness”), especially since investigators are about to obtain the materials from the 2019 search, but because it ensures they can get this material in timely fashion, especially since, as it stands now, they’re going to have to crack the passwords on seven of the devices seized from Rudy.

The remaining seven devices belonging to Giuliani and his business cannot be fully accessed without a passcode, and as such the Government has advised Giuliani’s counsel that the devices can be returned expeditiously if Giuliani were to provide the passcode; otherwise, the Government does not have a timeline for when those devices may be returned because the FBI will be attempting to access those devices without a passcode, which may take time.

Yes, Rudy and Toensing are trying to get an advance look at how bad the case against them is. But they’re also hoping to delay, possibly long enough to allow a Republican to take over again and pardon away their criminal exposure.

Which suggests that all the hypotheticals about Rudy and Toensing being able to challenge these searches if they are indicted are not all that hypothetical. SDNY is just trying to get to the place where they can indict.

Victoria Toensing’s Singular Multiple Devices

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The government has docketed a less redacted version of the letter it originally posted asking for a Special Master to troll through Rudy Giuliani and Victoria Toensing’s devices to separate out the privileged material. As I predicted, the redacted parts of the letter describe the filter team search conducted on the material seized in November and December 2019.

That makes the argument this argument all the more cynical.

[T]he overt and public nature of these warrants necessitates, as Judge Wood observed, the appointment of a special master for the “perception of fairness, not fairness itself.”

Particularly given the admission that the government already obtained, “certain emails and text messages,” that they expect to find on the seized devices.

Which makes the other details more interesting. The FBI obtained 18 devices from Rudy in their search (though remember that thumb drives may count as a device for the purposes of a search).

But with Toensing, the government showed up with a warrant, “to search premises belonging to Victoria Toensing and seize certain electronic devices” — devices, plural. But the FBI came back with just one device.

So why did the government think they’d come back with multiple devices and where did those devices go?

Four Ways Billy Barr Obstructed the Investigation into Rudy Giuliani

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Eventually, I want to do a post quantifying all the damage to national security Billy Barr did by thwarting an influence-peddling investigation into Rudy Giuliani in 2019. But first, I want to quantify four ways that Barr is known to have obstructed the investigation into Rudy, effectively stalling the investigation for over 500 days.

The effort is helped by Rudy lawyer Robert Costello’s public claim that DOJ obtained a search warrant on Rudy’s iCloud account sometime in late 2019. That indicates that the investigation into Rudy’s ties to Lev Parnas and Igor Fruman (whether Rudy was the primary target or their business, Fraud Guarantee) already showed probable cause that a crime had been committed before Barr took repeated steps to undermine the investigation.

Fail to recuse from an investigation implicating Barr personally

The MEMCON of Donald Trump’s call with Volodymyr Zelenskyy invoked Barr personally, twice, including in the very same response where the President said that Marie Yovanovich would “go through some things.”

Well, she’s going to go through some things. I will have Mr. Giuliani give you a call and I am also going to have.Attorney General Barr call and we will get to the bottom of it.

According to a September 2019 NYT article, National Security Division head John Demers (who remains at DOJ and who oversees the FARA unit that would have a role in this prosecution), Deputy Attorney General Jeffrey Rosen, and Brian Benczkowski learned about the concerns about the call, including that it named Barr, even before the formal whistleblower complaint came in. Barr learned about it via some unexplained means.

It’s not clear what happened in that first round of review, but ultimately prosecutors reviewed it once the formal whistleblower complaint was referred by Joseph Maguire later in August and “declined to open an investigation.”

Mr. Eisenberg and Ms. Elwood both spoke on Aug. 14 to John Demers, the head of the Justice Department’s national security division, according to three people familiar with the discussion. Ms. Elwood did not pass on the name of the C.I.A. officer, which she did not know because his concerns were submitted anonymously.

The next day, Mr. Demers went to the White House to read the transcript of the call and assess whether to alert other senior law enforcement officials. The deputy attorney general, Jeffrey A. Rosen, and Brian A. Benczkowski, the head of the department’s criminal division, were soon looped in, according to two administration officials.

Department officials began to discuss the accusations and whether and how to follow up, and Attorney General William P. Barr learned of the allegations around that time, according to a person familiar with the matter. Although Mr. Barr was briefed, he did not oversee the discussions about how to proceed, the person said.

[snip]

At the end of August, the office of the director of national intelligence referred the allegations to the Justice Department as a possible criminal matter. Law enforcement officials ultimately declined to open an investigation.

While it’s true that Barr outsourced some actions — such as determining what to do with the first report and the White House request that DOJ publicly exonerate him — there’s no indication Barr recused from the investigation and indeed he remained in the loop with the White House about it. His failure to recuse is particularly important because, as the table above notes, he got briefed on the investigation into Parnas and Fruman not long after he was confirmed in February 2019. For most of August and September 2019, Barr and Jeffrey Rosen would have been two of the only people at DOJ who would recognize the danger the whistleblower complaint posed to Rudy and, through him, to Trump himself.

Ensure Public Integrity reviews only the Trump transcript, not the entire whistleblower complaint

Mind you, Barr didn’t conduct the investigation of the whistleblower complaint. Public Integrity prosecutors in the Criminal Division did, overseen by Brian Benczkowski.

According to an October 2019 report, Benczkowski still did not know of the investigation into Parnas and Fruman when he took a meeting with Rudy in the fall to discuss a bribery case implicating the Venezuelan who was paying for some of the Ukraine dirt-digging.

Several weeks ago, Brian A. Benczkowski, the head of the Justice Department’s Criminal Division, and lawyers from the division’s Fraud Section met with Mr. Giuliani to discuss a bribery case in which he and other attorneys were representing the defendants.

That meeting took place before the United States attorney’s office in Manhattan publicly charged the two Giuliani associates, Lev Parnas and Igor Fruman, with breaking campaign finance laws and trying to unlawfully influence politicians, including former Representative Pete Sessions, Republican of Texas. Mr. Parnas and Mr. Fruman were part of Mr. Giuliani’s effort to push Ukraine for an inquiry into Democrats.

“When Mr. Benczkowski and fraud section lawyers met with Mr. Giuliani, they were not aware of any investigation of Mr. Giuliani’s associates in the Southern District of New York and would not have met with him had they known,” said Peter Carr, a department spokesman.

[snip]

Prosecutors in Manhattan informed Attorney General William P. Barr about the investigation of Mr. Parnas and Mr. Fruman soon after he was confirmed in February, according to a Justice Department official. They were required to do so under the department’s rule that requires prosecutors to notify the attorney general of any cases that could generate national news media or congressional attention.

When Mr. Giuliani and other lawyers requested the meeting with the Justice Department to discuss a foreign bribery case, Mr. Benczkowski and the lawyers in the Fraud Section had not been informed of the Manhattan case and agreed to meet.

That exonerates him for being stupid enough to take the meeting, but it reveals something about the review of the complaint: it could not have adhered to the most basic rules of “connect-the-dots” investigations put in place after 9/11 to protect national security.

That’s because the first thing you’re supposed to do when you get a tip that implicates national security is to search DOJ’s holdings to see if the tip connects with any known suspects or investigations. Had this tip been treated like DOJ had been drilling for almost 17 years by the time the tip was received, then investigators would have searched on the OCCRP profile of Parnas and Fruman cited repeatedly in the full complaint.

Had that happened, then the implications of it would have been clear, it would have been referred to SDNY, Benczkowski would have learned about it, and DOJ wouldn’t have been making public exonerations of Trump.

Get OLC to overclassify the Barr connection and delay informing Congress

One likely way DOJ managed to avoid connecting Trump’s quid pro quo with the existing investigation of Parnas and Fruman is by treating the call with Zelenskyy, falsely, as the entirety of the whistleblower complaint. There’s no reference to Parnas and Fruman in the call, and so searching on it would not ID the tie to the SDNY investigation.

That’s one of several things that Steve Engel’s OLC did to attempt to avoid — and succeed in delaying — informing Congress about the complaint.

Engel’s OLC memo (a reprise of the memo that Amy Berman Jackson ruled was just a PR stunt to justify lying to Congress) claimed that the whistleblower complaint pertained exclusively to the conduct of the President and as such did not pertain to the Intelligence Community and so didn’t need to be shared with Congress. The only way to reach this decision would be to ignore the parts of the whistleblower complaint that deal with abuse of classification and the withholding of funds.

The other thing OLC did was to — at first– treat mentions of Barr and Rudy, as well as Ukraine and Zelenskyy, as Top Secret, even though the White House had only deemed those references to be Secret.

This effort, both to avoid informing the Intelligence Committees and, once he did, to hide key details from them, ultimately failed. But it did delay the discovery of the call from August to September 2019.

Warn Rupert Murdoch

Bill Barr had a meeting at SDNY the day before Parnas and Fruman were arrested on October 9. He went from there to a meeting with Rupert Murdoch, at Murdoch’s home.

It’s unclear what happened at that meeting, but Sean Hannity didn’t get on his flight to Vienna to meet with Dmitro Firtash, thereby avoiding even closer legal involvement in yet another Trump scandal.

There’s no evidence I know of that Barr similarly warned Rudy — Rudy canceled his trip, too, but it probably only took the arrest of Parnas and Fruman to persuade him of the wisdom of doing that. So I don’t consider this an act of obstruction protecting Rudy — just an act of obstruction protecting Sean Hannity.

Parnas has alleged that he was only arrested as a way to keep him silent about all this. While there’s a lot of reason to believe that’s possible, I’m not aware of proof that it did. It is, notably, one thing he was dangling his cooperation on with SDNY before he got remarkably quiet as the investigation into Rudy kicked into active mode.

Attempt to replace Geoffrey Berman with a Barr flunky

As noted, if we can believe Costello, then at some point SDNY did manage to conduct a search on Rudy’s iCloud. One possibility is that DOJ justified a search on Rudy after learning that Parnas had deleted his own iCloud account.

We may get more details of how that occurred with the Special Master argument.

For a time, the impeachment investigation presumably stalled any investigation into Rudy.

But last summer, at a time between the time when Rudy would have been implicated in the President’s Ukraine-related impeachment but before the time Rudy was attempting to undermine the election in explicit service of the President, Barr fired Geoffrey Berman. As Berman described, Barr attempted to bypass succession rules to temporarily put his own flunky in charge of the office, much as he had put Timothy Shea in at DC USA to kill investigations into Roger Stone, Mike Flynn, and (probably) Erik Prince.

By refusing to go along with Barr’s false claims that he had quit, however, Berman succeeded in ensuring that Audry Strauss, his then-Deputy, would replace him, where she remains today.

In all of Berman’s communications about why he dug in, he emphasized that there were investigations he wanted to see to completion, presumably including but not limited to this Rudy investigation.

Again, this effort failed. But, given what happened in DC, it is almost certain that this was an attempt to protect Rudy (and Steve Bannon).

DOJ used the election to refuse to approve a warrant on Rudy. And (while I’m having difficulty finding it) they imposed a policy requiring higher approvals for obtaining warrants on attorney content.

Effectively, that provided a way to stall the search into Rudy until April 20, 2021, when Lisa Monaco was approved.

Bill Barr tried, repeatedly, to entirely kill the investigation into Rudy, like he killed prosecutions of Stone and Flynn. But ultimately, one after another DOJ professional thwarted his attempts, and his abundant efforts to protect Rudy only managed to delay the investigation from October 2019 to April 2021.

Update: William Ockham notes that the change in policy was imposed on December 30, 2020, after Barr had resigned and at a time when Acting Attorney General Jeffrey Rosen knew that Joe Biden would take over DOJ. The new policy required consultation with a designated attorney in Office of Deputy Attorney General.

Within OEO, the Policy and Statutory Enforcement Unit (PSEU) is the section that provides this consultation. See Office ofthe Deputy Attorney General Guidance on AttorneyClient Privilege andAttorney Work Product Filter Protocols/or Search Warrants (July 2020). In many cases – particularly those involving significant investigations and high-profile matters – proposed searches are separately reported in urgent reports to the Attorney General and the Deputy Attorney General. To ensure mo!”e uniform notification procedures going forward, PSEU should notify the Office of the Deputy Attorney General (ODAG) of proposed searches involving subject attorneys. ODAG will assign an attorney to handle this responsibility who has the requisite knowledge and experience to provide meaningful input to PSEU. That attorney will provide updates to the Deputy Attorney General as necessary. Absent exigent circumstances, the OEO/PSEU consultation in Section 9-13.420 shall not be concluded until after ODAG has been notified and provided with an opportunity to provide input.

While probably not the sole intent, this may be why the search on Rudy was not approved until Lisa Monaco was confirmed on April 20.

In Request for Special Master, the Lev Parnas Prosecutors Hint at Prior Filter Team Searches on Rudy

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The day after the search on Rudy Giuliani and a single Victoria Toensing phone, the prosecutors on the Lev Parnas case wrote a letter to the judge in that case, Paul Oetken, asking that he appoint a Special Master to review the content of their phones before turning that content over to prosecutors. It was unsealed yesterday after Rudy and Toensing’s lawyers got to review the redactions and add any they wanted. Oetken has ordered a briefing schedule about how this should proceed, which will extend through May 17.

The letter suggests certain things:

  • The participation of Oetken and the Parnas prosecution team (Rebekah Donalski, Nicolas Roos, and Aline Flodr) is consistent with this investigation arising out of the Parnas investigation, as has been reported.
  • These searches were approved on April 21, which was the day after Lisa Monaco was confirmed on April 20. That suggests she approved of this search. It’s normal for the Deputy Attorney General to sign off on controversial searches like this, and this suggests they waited to have the confirmed DAG sign off rather than have John Carlin, who had been acting DAG until Monaco was confirmed.
  • A court in Maryland signed off on the seizure of Toensing’s phone before SDNY signed off on the search of it.
  • The letter cites two exceptional circumstances when it might be appropriate to appoint a Special Master: when the attorney-client privilege would involve the President, and so implicate executive privilege, and when the attorney is involved in matters “adverse to the United States Attorney Office.” It’s not clear if prosecutors have something specific in mind with the latter reference, but it’s certainly possible that this concerns matters that one or the other lawyer has clients who are before SDNY.
  • Seemingly to explain why Rudy and Toensing aren’t making this request, the letter notes that defendants normally do but, in this case, “there is no pending criminal case against the subjects of the search.” Make of that what you will.
  • The government is basically asking for the same initial rules to be applied as were applied in the Michael Cohen case. They don’t, however, ask that any legal discussions be submitted to the public docket, which is something that happened in Cohen’s case that seemed to dissuade Trump from making frivolous claims of attorney-client privilege.

The most interesting bit of the letter, however, comes after a redacted passage with two redacted footnotes.

That introduces the following discussion:

The Government believes that its use of a filter team to conduct a review pursuant to established protocols is sufficient to protect applicable privileges and that [one line redacted] given that the searches [redacted] were done in an overt manner. [half line redacted] as well as the unusually sensitive privilege issues that the Warrants may implicate, the Government considers it appropriate for the Court to appoint a special master to make the privilege determinations as to materials seized pursuant to the Warrants. In particular, the overt and public nature of these warrants necessitates, as Judge Wood observed, the appointment of a special master under the “perception of fairness, not fairness itself.”

That is,  the government is explaining — in a letter that preempts any demand from Rudy and Toensing — that they don’t really need to do it this way, but partly because this search was public, it justifies doing so here.

But remember that the search of these devices is not the only one alleged. Rudy and his lawyer, Robert Costello, claim that SDNY also got a “covert” warrant for Rudy’s iCloud account sometime in late 2019.

A lawyer for former New York City mayor and Donald Trump attorney Rudy Giuliani said the Justice Department revealed on a Thursday conference call that the feds had penetrated Giuliani’s iCloud long before Wednesday’s search warrants were executed.

“I was told about it today in a conference call with the [U.S.] Attorney’s office,” attorney Robert Costello, a longtime friend of Giuliani’s, told The Daily Beast on Thursday night. “They told me they obtained a ‘covert warrant’ for Giuliani’s iCloud account in ‘late 2019.’ They have reviewed this information for a year and a half without telling us or [fellow Trump-aligned attorney] Victoria Toensing.”

During an appearance on Tucker Carlson’s Fox News show on Thursday night, Giuliani himself briefly referenced the warrant to search his iCloud account. “In the middle of the impeachment defense, they invaded, without telling me, my iCloud,” the Trump confidant said. “They took documents that are privileged. And then they unilaterally decided what they could read and not read. So the prosecutors at the Justice Department spied on me.”

A year and a half would put the search in October 2019, quite possibly before impeachment had formally started, and around the time when Lev Parnas and Igor Fruman were first charged. It likely put it at a time when Trump had no overt defense needs, and so no acknowledged privilege here (unless you count John Dowd’s October 3 letter to Congress that effectively put Trump in a joint defense agreement with Parnas and Fruman and alleged Russian mobster Dmitro Firtash).

I had thought this earlier reference might have been to a preservation order served to Apple, but the redacted passages are consistent with there having been a real search, one for which SDNY used only a taint team to weed out what was genuinely privileged. And there was clearly probable cause: Rudy was the business partner of two people charged for their business doings.

According to the terms of this letter, in the case of a covert search like the one Rudy claims occurred, there would be less cause for a Special Master.

Which is to say this letter may be more about the searches that have already occurred rather than the forthcoming exploitation that will be done with the oversight of a Special Master.

Will the GOP Demand Ron Johnson Be Stripped of Committee Assignments for Ignoring a Defensive Briefing?

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There’s been a lot of attention on this WaPo story, which had to retract a report that Rudy Giuliani had gotten a defensive briefing long after the time he helped get Marie Yovanovich fired (which is reportedly what he is being investigated for), but well before he continued to peddle Russian disinformation even after Treasury sanctions would have made it legally problematic to do so (indeed–that may be the implication of this NBC story on the decision not to give him a briefing). I mean, Rudy’s right to be pissed that WaPo claimed that he had a specific warning on top of the zillion other warnings that were in plain sight, but it’s not clear it helps him legally in the least.

There’s been less consideration of the implications of Ron Johnson’s admission that he did get a defensive briefing, but he blew it off.

The FBI last summer also gave what is known as a defensive briefing to Sen. Ron Johnson (R-Wis.), who ahead of the election used his perch as chairman of the Senate Homeland Security and Governmental Affairs Committee to investigate Biden’s dealings with Ukraine while he was vice president and his son Hunter Biden held a lucrative seat on the board of a Ukrainian energy company.

Johnson, a staunch Trump ally, recalled receiving a vague warning from FBI briefers in August, but he said Thursday that there was no substance to their cautionary message and that he did not view the meeting as a “defensive briefing” on his oversight of the Biden family’s foreign business ventures.

“Regarding reports that I received an FBI briefing warning me that I was a target of Russian disinformation, I can confirm I received such a briefing in August of 2020,” Johnson said in a statement to The Washington Post. “I asked the briefers what specific evidence they had regarding this warning, and they could not provide me anything other than the generalized warning. Without specific information, I felt the briefing was completely useless and unnecessary (since I was fully aware of the dangers of Russian disinformation).

“Because there was no substance to the briefing, and because it followed the production and leaking of a false intelligence product by Democrat leaders, I suspected that the briefing was being given to be used at some future date for the purpose that it is now being used: to offer the biased media an opportunity to falsely accuse me of being a tool of Russia despite warnings.”

Remember that for months, Republicans have been attacking Eric Swalwell because, before he was on the House Intelligence Committee, he got a defensive briefing about a woman who, the FBI informed him, was recruiting for China. He stopped talking to the woman and cooperated with the FBI, doing precisely what you’re supposed to do after getting a defensive briefing.

Nevertheless, the GOP has repeatedly used the story to call for Swalwell to be removed from HPSCI. Kevin McCarthy, after a briefing on the matter, narrowly danced with leaking information while judging that Swalwell should not be on HPSCI. Devin Nunes (whose ties to Rudy’s legal woes may soon get rather interesting) suggested Swalwell’s focus on Russia was done at the behest of China. The two staged a vote to throw him off HPSCI that failed.

And even Ron Johnson got in the act, claiming (though the timeline makes no sense) that the Chinese got Swalwell appointed to HPSCI and claiming that China was grooming Swalwell.

Johnson launched that attack in December 2020, months after he had been warned that Russia was grooming him the same way.

Only, unlike Swalwell, Johnson blew off that warning.

According to the GOP standard, shouldn’t Johnson be stripped of his Committee positions, particularly Homeland Security and Foreign Relations?

Rudy Giuliani’s Going To Go Through Some Things

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The NYT is breaking the news that Rudy Giuliani’s home was searched this morning and his devices seized.

Federal investigators in Manhattan executed a search warrant on Wednesday at the Upper East Side apartment of Rudolph W. Giuliani, the former New York City mayor who became President Donald J. Trump’s personal lawyer, stepping up a criminal investigation into Mr. Giuliani’s dealings in Ukraine, three people with knowledge of the matter said.

One of the people said the investigators had seized Mr. Giuliani’s electronic devices.

The story explains that this arises out of the investigation into Rudy’s foreign influence peddling with Ukraine.

The federal authorities have been largely focused on whether Mr. Giuliani illegally lobbied the Trump administration in 2019 on behalf of Ukrainian officials and oligarchs, who at the same time were helping Mr. Giuliani search for dirt on Mr. Trump’s political rivals, including President Biden, who was then a leading candidate for the Democratic presidential nomination.

The NYT doesn’t mention that several of these Ukrainians have since been sanctioned by Treasury as Russian agents.

But once they get Rudy’s phones, there’s the possibility they’ll find evidence of all Rudy’s other crimes. For example, in January, Rudy was in contact with James Sullivan, who is the brother of accused January 6 insurrectionist John Sullivan and who himself has ties to the Proud Boys.

This is a lot of information exchange (and a good degree of familiarity) with someone so closely tied to an attack on the Capitol.

So who knows? It might all coalesce: Rudy’s work for Russian Agents in Ukraine to undermine democracy, paving the way for a violent attack on the Capitol.

Update: They searched Victoria Toensing’s home too.

F.B.I. agents on Wednesday morning also executed a search warrant at the Washington-area home of Victoria Toensing, a lawyer close to Mr. Giuliani who had dealings with several Ukrainians involved in the effort to find damaging information about the Bidens, according to people with knowledge of that search. Ms. Toensing has represented Dmitry Firtash, a Ukrainian oligarch under indictment in the United States whose help Mr. Giuliani sought.

Update: Fixed the timing of the search. h/t JM.

Anatomy of a Potential January 6 Cooperation Agreement

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I’ve written in passing about Jon Ryan Schaffer, the front man for the heavy metal band Iced Earth who was arrested for involvement with spraying bear spray during the January 6 insurrection, several times. In this post I noted that there must be something more to his case because Schaffer had been sitting, uncharged, in jail for months.

Jon Ryan Schaffer: The front man for the heavy metal band Iced Earth and an Oath Keeper lifetime member, Schaffer was arrested for spraying some police with bear spray. But two months after his arrest and detention, he has not been (publicly) indicted and only arrived in DC on March 17. The government has not publicly responded to his motion to dismiss his case on Speedy Trial grounds. All of which suggests there’s something more there that we can’t see.

Yesterday I included Schaffer among those likely to get cooperation agreements (rather than straight guilty pleas), then updated the post with yet another data point suggesting I was correct.

[A]t least some of the expected pleas may be cooperation agreements. For example, Ryan Samsel — who breached the west side of the Capitol in coordination with Proud Boys Dominic Pezzola and William Pepe, knocking out a cop along the way — asked for a continuance to discuss a plea. One of the main Oath Keeper prosecutors, Ahmed Baset, asked for a continuance before indicting Oath Keeper associate Jon Schaffer, who was among the worst treated defendants and who agreed to the continuance in spite of remaining in pre-trial detention. Kash Kelly, currently charged with trespassing but also someone raised in discussions between Proud Boys affiliate James Sullivan and Rudy Giuliani, got a continuance to discuss a plea. Bryan Betancur, a Proud Boy who got jailed for a probation violation after he lied to his probation officer to attend the event, also got a continuance to discuss a plea to resolve his trespassing charges. The aforementioned Riley Williams, who was charged with obstructing the vote count and stealing a laptop from Nancy Pelosi, was filmed directing movement inside the Capitol, and has ties with Nick Fuentes, also got a continuance to discuss pleading before indictment. All five of these people likely have information that would be of use to prosecutors. All could limit their prison time (which would likely be significant for Samsel, who is accused of assault, played a key role in the insurrection, and has a criminal record) by cooperating with prosecutors. If any of these people sign plea deals — especially Samsel — it will likely provide new insight into how the conspiracy worked. Even with a plea deal, Samsel may still face a stiff sentence.

[snip]

Update: Meanwhile, Jon Schaffer just agreed to two more weeks in jail.

So the signs suggesting the government was pursuing a cooperation agreement in this case have been pretty clear.

But yesterday, DOJ made that even more clear by posting a filing to PACER — which was supposed to be sealed — making such negotiations explicit.

As stated in the Consent Motion to Continue, the government and counsel for the defendant have conferred and are continuing to communicate about this matter. This has entailed a series of debrief interviews with the defendant that began on March 2, 2021. Based on these debrief interviews, the parties are currently engaged in good-faith plea negotiations, including discussions about the possibility of entering into a cooperation plea agreement aimed at resolving the matter short of indictment. Among the contemplated plea terms upon acceptance of a plea are the defendant’s release pending sentencing.

[snip]

[T]he parties request that this filing be docketed under seal. Such an order is appropriate because the filing relates to sensitive information about the defendant’s cooperation with the government and ongoing plea negotiations that are not public. Accordingly, disclosure may reveal the existence, scope, and direction of the ongoing and confidential investigation. If alerted to this information, investigation targets against whom the defendant may be providing information about could be immediately prompted to flee from prosecution, destroy or conceal incriminating evidence, alter their operational tactics to avoid future detection, attempt to influence or intimidate potential witnesses, and otherwise take steps to undermine the investigation and avoid future prosecution. Accordingly, these facts present an extraordinary situation and a compelling governmental interest which justify sealing of this filing pertaining to this investigation that is being submitted at this time. [my emphasis]

You’ll recall that PACER was one of the targets of the Solar Winds hack, which raised concerns that sensitive documents detailing things like cooperation agreements and investigative targets might have been compromised. The Courts’ efforts to respond have bolloxed up PACER ever since, which has contributed to an unacceptable delay in postings of non-sensitive documents as the flood of January 6 filings hit.

One of the few things that DOJ has managed to post in timely fashion is this filing, which was supposed to be sealed.

This disclosure may make it harder to negotiate a cooperation agreement (or who knows? it might make it easier!). Certainly, it may present security concerns for Schaffer when he is released, whether or not he cops a plea, because he would get such a plea deal in exchange for testimony against a highly skilled armed militia, and they’ll assume he got a deal if he is released pre-trial.

Aside from the very real concerns about how this might affect the investigation into the Oath Keepers, however, the release of the filing is useful for the details it provides.

First, this cooperation deal, if it happens, will be the first of all 350+ defendants.

The government’s ongoing plea negotiations with this defendant are the first and most advanced plea negotiations involving any of the over 300 Capitol Riot defendants.

That would mean that others — like the cooperating witness with damning information on Dominic Pezzola and the un-indicted co-conspirator in the Proud Boys conspiracy — have not been charged at all (as descriptions of them in filings imply). It also suggests that for all the reporting about imminent deals, the cooperation agreements, at least, are two weeks or more away. Every other potential cooperation deal I named in this post follows the same pattern of filings that Schaffer’s does, but they have later deadlines for their continuance, though Ryan Samsel is the only other one who is in custody for January 6 (as opposed to other things), which adds urgency to any plea deal:

  • Bryan Betancur (in MD state custody): April 27
  • Ryan Samsel (in federal custody): May 7 (after being extended from April 1, moving to swap his attorney, then unmoving to do so, though currently he is represented by both)
  • Christopher Kelly (not in custody): May 10
  • Riley June Williams (not in custody): May 28
  • Kash Kelly (in Federal prison for gang-related drug crimes which he also cooperated on): indefinite

It looks like Samsel might have been the first plea deal, but an aborted swap of lawyers suggests he may have gotten cold feet. (Recall that Rick Gates did something similar before he flipped in the Mueller investigation; because of his criminal record, Samsel faces a stiffer prison sentence than Schaffer regardless of what happens).

Schaffer’s filing explains why cooperation agreements will be weeks away, too: First, plea deals are being reviewed “at various levels of government.”

Plea terms have thus required extensive review and approval at various levels of government necessitating more time than usual to approve and negotiate.

Given that Biden doesn’t have a confirmed US Attorney in DC, this likely means that at least Acting Deputy Attorney General and former National Security Division head under Obama John Carlin is reviewing these deals, if not Merrick Garland himself. Lisa Monaco should be confirmed as Deputy Attorney General imminently, and she’s likely to be interested in all this, too. That is, the level of review this filing suggests this plea deal is getting also hints at the (unsurprisingly) high level involvement in the investigation as a whole.

Perhaps one of the most damaging disclosures by the release of this document is that Schaffer’s attorneys have admitted, non-publicly, things they’ve argued against publicly. In a filing asking for pre-trial release, Schaffer’s lawyers argued that merely possessing bear spray did not make Schaffer enough of a threat to require pre-trial detention.

The Government sought “detention based on [Mr. Schaffer] carrying a dangerous weapon inside a restricted ground.” Reporter’s Transcript of Detention Hearing, p. 7: 8- 10.2 Magistrate Judge Faruqui detained Mr. Schaffer “Upon the Motion of the Government attorney pursuant to 18 U.S.C. § 3142(f)(1).” (Doc. 12, p. 1)

Mr. Schaffer cannot be detained pursuant to 18 U.S.C. § 3142 (f)(1)(E) because the Government’s allegation Mr. Schaffer simply possessed bear spray does not support a finding his case involved a dangerous weapon. The Government cannot establish a can of bear spray is dangerous weapon when it is simply possessed.

Schaffer’s arrest warrant affidavit described him to be “among” a group of “rioters who sprayed” USCP with bear spray, but didn’t say he personally had used the bear spray to assault the cops, nor did it charge him with doing so.

SCHAFFER was among the rioters who sprayed United States Capitol Police officers with “bear spray,” a form of capsaicin pepper spray sold by many outdoors retailers, as part of their efforts to push the officers back inside the Capitol and breach the Capitol Building themselves.

According to this filing, however, Schaffer’s lawyers conceded during a closed session that he could be charged, presumably including assault for spraying the bear spray, right away.

The parties agree that maintaining the current detention posture, as well as the government forestalling return of a grand jury indictment against the defendant1 , are necessary at this stage to facilitate good-faith plea negotiations.

1 As acknowledged by the defense during the sealed portion of the April 2, 2021 status hearing, the government is in a position to rapidly obtain an indictment against the defendant should plea negotiations fail.

But the filing also suggests that the grand jury may be posing another bottleneck to this process.

Additional time may also be necessary in the event plea conditions require completion of certain requirements before entering into a formal agreement before the court, such as the defendant testifying before the grand jury.

That is, if and when a plea deal is agreed, they still may require Schaffer to provide any testimony to the grand jury before they finalize the plea and release him.

As noted, the unintentional release of this filing may undermine that process from the start. But it least it provides some clarity on how this process is working for Schaffer and others.

Update: Baked Alaska (real name Anthime Gionet) is another person in whose case the government got a consent motion to delay further proceedings. I’m less confident this would involve a cooperation agreement — it may be a way to forestall questions about whether he is media.