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The Three Types (Thus Far) of Trump Mueller Pardons

To date, Trump has pardoned five people who were prosecuted by Mueller. I’m seeing a good deal of misunderstanding about what those pardons mean for any legal proceedings going forward, so I’d like to address some of that.

First, a lot of people say that accepting a pardon is tantamount to accepting guilt, under Burdick v.United States. It’s not. It’s narrower, though importantly goes to questions about whether a witness who has been pardoned has to testify or not. It also says that someone who has been pardoned must inform the court of the fact for it to be valid in any legal proceeding before the court.

That said, claims that Trump flunkies who’ve been pardoned have to testify are also too broad. If the people have any remaining legal exposure (as I’ll explain, Roger Stone and Paul Manafort do), they can still invoke the Fifth. That’s also true if they have state exposure for something like fraud or tax evasion. But in cases where the pardoned crime is only federal, such as Papadopoulos’ lies, it would be easy for prosecutors to immunize him in case he invoked his Fifth Amendment privileges, effectively forcing him to testify on penalty of contempt.

Thus far, Trump has issued three kinds of pardons for people prosecuted by Mueller:

  • Pardons for people with no further known (Mueller) legal exposure
  • Pardons for people with potentially grave further legal exposure
  • Fruit of the poison tree pardon for anything Mueller touched

Alex Van der Zwaan and George Papadopoulos:

Both Van Der Zwaan and Papadopoulos were pardoned for the single False Statements charge against them. Neither is known to have committed another crime. In Papadopoulos’ case, however, things could get dicey on several points. Trump forgave his $9,500 fine, which was the amount Papadopoulos accepted from suspected Israeli spooks. If he asks for that back that may raise questions about his exposure on FARA grounds. In addition, Papadopoulos has already testified before Congress that he called Marc Kasowitz after he was first interviewed by the FBI. If there were a larger prosecution about Trump’s obstruction, he might have been able to plead the Fifth for making that call — except he has already testified to it.

Papadopoulos withheld documents from Congress. With a DOJ that can enforce subpoenas, he might be asked to share those documents, which may require him to testify contrary to his 2018 OGR/HJC testimony.

If DOJ decided to reopen the investigation into a suspected Egyptian bribe to Trump because serving a subpoena on Trump Organization would now be less controversial than it was last summer, then Papadopoulos might be a key witness in that investigation, though since that’s unrelated to his charged false statements, he could still invoke the Fifth if questioned about it.

Roger Stone and Paul Manafort:

Like Van der Zwaan and Papadopoulos, Stone and Manafort were just pardoned for the crimes that they were found or pled guilty to, the money laundering, tax evasion, and FARA crimes in Manafort’s case, and the cover-up crimes in Stone’s case. For both, however, that’s not the full extent of what they were investigated or might be witnesses for.

Before I get there, let me note that multiple sources are claiming that, because Trump included Manafort’s criminal forfeiture in the language of his pardon, he’ll get his ill-gotten gains back. I’m not an expert on this, but I do know that Manafort also civilly forfeited these goods in his plea agreement.

So to attempt to reverse this forfeiture, Manafort would have to spend a great deal of money litigating it, and it’s not at all clear it’d work.

Manafort was also referred for suspected FECA violations involving two PACs that, prosecutors suspected, he got paid through via a kickback system. These cases must be closed, because they were unsealed in the Mueller Report back in September. But Manafort may face more scrutiny on them if DOJ investigates Trump’s other corrupt PACs.

Unless he, too, is pardoned, Konstantin Kilimnik remains under investigation. That’s an area where things might get more interesting for Manafort, because during the period when he was purportedly cooperating, he lied about the fact that he had conspired with Kilimnik. In any case, until the Kilimnik and Oleg Deripaska investigations are closed, Manafort has some exposure.

Things are more complicated still for Stone. There were at least two investigations into Stone — probably on conspiracy and foreign agent crimes — still active in April. If the redactions if Mueller 302s are any indication, Barr shut parts of that investigation down since, which will be of interest on its own right (Congress learned of these ongoing investigations when they got unsealed portions of the Mueller Report that have only recently been made public, and I know there is some interest in learning what those investigations were or are, and that was true even before any discussions about Trump’s abuse of pardons).

In any case, the investigation into a pardon for Julian Assange was active at least as recently as October. Stone has already called on Trump to pardon Assange since his own pardon, potentially a new overt act in a conspiracy. And Trump might well pardon Assange; even pardoning him for the crimes currently charged would be a new overt act in that conspiracy, which would implicate Stone. So even if Barr shut that investigation down, there is already reason to reopen it.

So while Barr may have tried to clean up the remaining criminal exposure against Stone, it’s not clear he could succeed at doing so, much less without creating problems for others going forward.

Mike Flynn:

As I have written, Mike Flynn’s pardon was constructed in a way that attempted to eliminate all criminal exposure that might arise from anything associated with the Mueller investigation for him. In addition to pardoning Flynn for the false statements charge he pled guilty to, it pardons him for lying about being an Agent of Turkey, for being an Agent of Turkey, and for lying to Judge Sullivan.

But it also attempts to pardon Flynn for any crime that might arise out of facts known to Mueller. While, generally, I think the pardon power is very broad, this effectively tried to pardon Flynn for an investigation, not for crimes. Plus, the broadness of the pardon may backfire, insofar as it would strip Flynn of the ability to plead the Fifth more broadly. Even just a retrial of Bijan Kian (unless Trump pardons him and Mike Jr) might force Flynn to commit new crimes, because both telling the truth and lying about his secret relationship with Turkey would be a new crime.

Given his seditious behavior, Flynn might have entirely new criminal exposure by the time Joe Biden is sworn in any case. But the attempt to be expansive with Flynn’s pardon might backfire for him.

Of the five Mueller criminals pardoned so far, only Van der Zwaan is clearly free of danger going forward.

And these five don’t even cover some of the most complex pardon recipients. Any Assange pardon may be the most obviously illegal for Trump (save a self-pardon), because it would involve a quid pro quo entered before he was elected. With Steve Bannon, Trump will need to pardon for another crime, fraud associated with Build the Wall, but if it covers Mueller, it may make it easier for Bannon to repeat what truths he already told to the grand jury. With Rudy Giuliani, Trump will need to pardon for unidentified crimes currently under investigation, but also Rudy’s efforts to broker pardons, which may make the pardon itself more dicey. With Trump’s children (including Jared Kushner), I assume he’ll offer a Nixon type pardon for all crimes committed before the day of pardon. But there may be ways to make them admit to these crimes.

Billy Barr is the best cover-up artist in the history of DOJ. But Trump is attempting to pardon himself out of a dicier situation than Poppy Bush was in Iran-Contra. Plus, even assuming Mueller’s team left everything available for Barr’s discovery, Barr may be hamstrung by the fact that he doesn’t believe in most of the crimes Trump committed, something that could become especially problematic as the full extent of Trump’s dalliance with Russia becomes known going forward. Barr didn’t support some of these pardons, like a hypothetical Assange one. And now, in his absence, Trump has grown increasingly paranoid about Pat Cipollone, who will have to shepherd the rest.

The pardon power is awesome and fairly unlimited. But it’s not yet clear the Mueller pardons will do what Trump hopes they will. With virtually all of them, there are loose strings that, if they get pulled, may undo the immunity Trump has tried to offer.

How Do You Solve a Problem Like Steve Bannon?

Axios reported that PardonPalooza would accelerate yesterday. But it didn’t happen. Not yet, at least.

I wonder if that’s because Trump got new visibility on his own lingering jeopardy from the Mueller investigation.

There’s a section of the Mueller Report that got declassified in the last batch which may explain why Jerome Corsi wasn’t charged. In advance of three people whose prosecution was declined — which definitely includes KT McFarland, along with two others (Erik Prince or Sam Clovis may be one, George Nader may be the other) — the report explains,

We also considered three other individuals interviews–redacted–but do not address them here because they are involved in aspects of ongoing investigations or active prosecutions to which their statements to this office may be relevant.

Corsi obviously lied to Mueller, but his lies served, in part, to support the head fake the Mueller Report used to address how Roger Stone optimized the Podesta files.

Another of those liars could be Paul Manafort.

But the third may be Steve Bannon, who told a rolling series of lies that over time approached the truth, at least about some issues. Bannon even tried to lie again to back off his grand jury testimony in advance of the Roger Stone trial.

Bannon would be interesting for several reasons. Bannon knew about Stone’s interactions with “WikiLeaks” even before he formally joined the campaign. Bannon was a key player in setting up the fall 2016 meeting with Egypt, which preceded what the government thinks could have been a foreign bribe that kept the campaign afloat (indeed, one thing Bannon seems to have always lied about was his work with George Papadopoulos on that).

But most of all, Bannon was the fourth witness — with the others being Mike Flynn, KT McFarland, and Jared Kushner — to Trump’s interactions with Russia during the Transition four years ago. He was, with Jared, the person who most consistently used his personal email to conduct discussions of back channels with Russia (though all four took measures to keep their actions hidden from the Obama Administration and other Transition team members).

And Bannon was, for testimony before HPSCI the transcript of which got shared with Mueller’s team shortly before they closed up shop, scripted to deny any discussion of sanctions (among other things). You could get a clear understanding of what the White House was trying to deny by the wording of the questions.

Mueller’s team would have had this script in time for Bannon’s grand jury appearance in January 2019. We know one thing that Bannon was asked about, and begrudgingly told the truth about, pertained to the campaign’s enthusiasm about WikiLeaks (something about which he had lied in the past and tried to again). But we don’t know what else he got asked; Stone’s prosecutors got just the part pertaining to the Stone prosecution unsealed.

At the time of his grand jury testimony and until quite recently, Bannon was represented by Bill Burck. At least with Don McGahn, whom Burck also represented, Burck did not share details of his testimony with Trump’s lawyers. We know that because Trump was blind-sided when he learned about the extent of McGahn’s testimony. If that’s true of Bannon as well, then it would mean that grand jury appearance has been a blind spot for Trump and his lawyers.

Until now. After Bannon threatened Chris Wray and Anthony Fauci with execution, Burck fired Bannon as a client. Bannon recently hired Robert Costello to represent him in his Build the Wall fraud case. On top of being the guy who brokered a pardon to Michael Cohen in an attempt to silence him, Costello’s also Rudy’s personal lawyer. So Costello now has privilege with both Bannon and Rudy, and Rudy has privilege (by dint of being Trump’s defense attorney) with Trump.

The old gang’s back together.

Thing is, if Bannon told the truth about sanctions in that grand jury appearance, it’ll make it a lot easier to unwind a bunch of expected pardons, because Bannon’s testimony could be used to push Flynn, McFarland, Jared, and Trump himself to tell the truth about what they tried with Russia four years ago, exposing each to a fresh perjury charge they would no longer be pardoned for. Even if Biden’s Attorney General was disinterested in that, I expect there to be more transparency about these issues going forward.

That makes Bannon one of the most interesting, if not the most interesting, pardon candidates, because he knows where all the bodies are buried, but he also told the truth, once.

Organized Crime

Know what you call a crowd that requires 25 pardons to cover their illegal activities of the last 5 years?

As it happens, Trump is mulling the pardons at a juncture when loyalty appears his principal concern, complaining repeatedly over the past weeks that Republicans are deserting him when he needed them to help overturn the election results.

He has largely frozen out those advisers and associates who do not seem on the same page. One person who used to speak to Trump regularly, but who delicately encouraged him to soften his post-election stance, no longer has his calls returned and hasn’t heard from Trump in weeks.

In all, the President is considering pardons for more than two dozen people in his orbit whom he believes were targeted — or could be targeted in the future — for political ends. That’s in addition to hundreds of requests from others who have approached the White House directly, and tens of thousands more whose petitions are pending at the Justice Department.

Organized crime.

A Modest Proposal: Include Lindsey Graham’s Threats against Brad Raffensperger in any Special Counsel Mandate

Lindsey Graham has endorsed the idea of appointing a Special Counsel to investigate Hunter Biden.

Graham on a special counsel for Hunter Biden: I think it’s a good idea..if you believe a special counsel was needed to look at the Trump world regarding Russia. How can you say there’s no need for special counsel regarding Hunter Biden?”

Apparently, the Chair of the Senate Judiciary Committee doesn’t see the difference between appointing a Special Counsel after the President has fired the FBI Director to stop an investigation into himself and a Special Counsel to investigate the President-Elect’s son two years into an investigation that has (thus far) found nothing. Graham doesn’t even seem to realize that various parts of the Trump DOJ have investigated — at a minimum — Trump’s son-in-law (as part of a referral from the Mueller investigation, though the topic is unknown), Trump’s personal lawyer, and any number of his corrupt former campaign managers, without needing a Special Counsel to protect the independence of the investigation, not even after the confirmed interference by the Attorney General.

The call for a Special Counsel to continue an investigation that has already lasted two years (that is, longer than the entire Mueller investigation and twice as long as it took to indict Manafort on 44 counts of tax evasion, bank fraud, money laundering, and unregistered influence-peddling) without finding anything comes along with President Trump’s call for another Special Counsel investigating purported voter fraud.

As I said in my post noting that John Durham has unaltered originals of documents that — under Billy Barr’s micromanagement — got altered and submitted to a judge, followed by a lie to the same judge, one way to deal with the Durham Special Counsel designation is to have him investigate crimes that Barr’s associates may have committed in their efforts to undermine the Russian investigation. John Durham will control the day-to-day conduct of this investigation, but he doesn’t — cannot legally, under current precedent — control the scope.

Something similar could be done with both of the Special Counsel investigations Trump wants to push. Rudy Giuliani will no doubt be pardoned in the next 35 days. And the next day, Rudy will wake up and continue pursuing the same disinformation, largely about Hunter Biden, from Russian-tied mobbed up oligarchs. So Sally Yates or Doug Jones or whoever Biden makes Attorney General can very easily ask a Special Counsel to include Rudy’s potential crimes among those the Special Counsel investigates. The Special Counsel doesn’t even have a reporting mechanism to complain about scope (which John Durham might have used when Barr was flying him around the world chasing George Papadopoulos’ conspiracy theories). If the Special Counsel complained about the scope, she could quit and be replaced by someone Biden’s AG believed appropriate. If the Special Counsel leaked anything, Biden’s AG would have the Comey precedent to justify firing the Special Counsel.

So, too, could a Special Counsel appointed by Trump to investigate voting irregularities be scoped to investigate the more credible allegations of crimes committed during the election, most notably threats and other coercive means used against those (including Republicans) trying to conduct free and fair elections. Among others whose conduct could be investigated are government employees who also served as counsel on Trump-backed lawsuits challenging the election. A Special Counsel investigating allegations of crime during the election could review fraudulent claims alleging fraud in sworn declarations submitted in these frivolous lawsuits; such an investigation could consider whether there was an organized effort to collect such perjurious statements, and if so, who funded it all. Such a Special Counsel could investigate whether then-President Trump’s multiple calls haranguing GOP officials constituted a threat or some kind of bribe. A Special Counsel could and should review the range of violent threats against participants on both sides of the election.

Among the most alarming potential crimes alleged during the post-election period, as it happens, involves Lindsey Graham himself. He called up Georgia’s Republican Secretary of State, Brad Raffensperger, and — while witnesses were listening — pushed Raffensperger to disqualify legal votes.

Georgia Secretary of State Brad Raffensperger said Monday that he has come under increasing pressure in recent days from fellow Republicans, including Sen. Lindsey O. Graham (S.C.), who he said questioned the validity of legally cast absentee ballots, in an effort to reverse President Trump’s narrow loss in the state.

[snip]

In the interview, Raffensperger also said he spoke on Friday to Graham, the chairman of the Senate Judiciary Committee, who has echoed Trump’s unfounded claims about voting irregularities.

In their conversation, Graham questioned Raffensperger about the state’s signature-matching law and whether political bias could have prompted poll workers to accept ballots with nonmatching signatures, according to Raffensperger. Graham also asked whether Raffensperger had the power to toss all mail ballots in counties found to have higher rates of nonmatching signatures, Raffensperger said.

Raffensperger said he was stunned that Graham appeared to suggest that he find a way to toss legally cast ballots. Absent court intervention, Raffensperger doesn’t have the power to do what Graham suggested because counties administer elections in Georgia.

“It sure looked like he was wanting to go down that road,” Raffensperger said.

It’s unclear whether Lindsey’s actions constitute a crime or not. But that’s why it would be a reasonable thing for a Special Counsel, one not directly controlled by Biden’s AG, to review: to ensure it receives a fair review without political influence.

Lindsey Graham seems to believe that Trump’s calls for Special Counsels are merited.

Very well then.

Steve Bannon Hires a Pardon Broker (and Rudy Giuliani Lawyer) to Replace His Competent Lawyer

Steve Bannon just filed notice of what lawyer will defend him in his SDNY prosecution for defrauding Trump chumps. He had been represented by the very competent Bill Burck. But after Bannon started making death threats against Anthony Fauci and Christopher Wray, Burck dropped him.

Instead, Bannon hired Robert Costello.

TO THE CLERK OF COURT AND ALL PARTIES OF RECORD: PLEASE TAKE NOTICE that Robert J. Costello of Davidoff Hutcher & Citron, LLP, with offices located at 605 Third Avenue, New York, New York 10158, hereby appears on behalf of Defendant Stephen Bannon.

Costello represents Rudy Giuliani in his many sordid influence peddling investigations.

He’s also the guy who tried to buy Michael Cohen’s silence with a pardon, an investigation that fairly obviously got referred under Mueller. I guess that makes it clear what Bannon’s defense strategy will be.

The problem is, SDNY is now on notice (if they weren’t already by Trump’s promises that “Bannon will be okay”). So they can simply share their case file with New York State, where fraud is also a crime.

I may be missing something but I don’t think Trump’s evil genius is on his A game.

Kraken Clemency: Did Trump Issue the Flynn Pardon Wednesday To Avoid Potential Conflict with Sidney Powell’s Batshittery??

I have to admit: given the certainty that Trump was going to pardon Mike Flynn eventually, I’m really grateful he did it on Wednesday, because it allowed for a truly epic headline, “Trump Pardons an Undisclosed Agent of Turkey Along with a Thanksgiving Bird.”

But I’m really mystified by the timing of it.

After all, there was still an outside chance that Judge Emmet Sullivan would agree to DOJ’s motion to dismiss, which would have eliminated Flynn’s guilty verdict more convincingly than this pardon. And, given that the pardon seems to exist only in Tweet form as of right now, Sullivan could still file his ruling, knowing that he’d be getting notice of a pardon sometime next week. Alternately, the early pardon could give Sullivan the opportunity to craft his other decisions, such as regarding Flynn’s motion to withdraw his plea, in ways that might have legal repercussions for Flynn and his son. So it seems risky to pardon Flynn before Sullivan rules.

I can think of several possible reasons for the timing. But the most intriguing is a tie between Sidney Powell’s efforts to sustain Trump’s most baseless conspiracy theories without any potential conflict for Flynn.

The upcoming Sullivan decision

Depending on how Trump words the pardon, the timing of this might still be an effort to pre-empt Sullivan’s decision. If Trump were to describe the pardon as all crimes Flynn committed from July 2016 to the present (meaning Wednesday), and if courts accepted that unspecific language, then it would cover not just Flynn’s lies to the FBI, but also his efforts to hide that he was an Agent of Turkey and his sworn materially conflicting statements before Judges Rudolph Contreras and Sullivan as well as the grand jury.

Or to put it another way, this may be an effort to write an even more abusive pardon in a way that few will notice.

Though I’ll notice.

The upcoming BuzzFeed FOIA release

On Tuesday, BuzzFeed will get another big drop of FBI 302s from the Mueller investigation. According to FOIA terrorist Jason Leopold, DOJ has not told them whether the drop will include the Flynn 302s, but does claim this will be the last release (which would seem to suggest it has to include the Flynn 302s).

Almost year ago, the government provided Flynn with his 302s, which make up 761 pages. They subsequently said that his cooperation with Mueller was not substantial and raised questions about his candor even after his initial interview. That’s consistent with Flynn’s own description of the early proffers, given that his Covington lawyers tried to get him back on track to cooperate after the first one.

Releasing the warrants in Flynn’s case was damning enough (though as a result of the timing, almost no one has scrutinized them closely). But these 302s may prove still more damning (not least because they should provide additional details of a meeting where Trump discussed reaching out to WikiLeaks after the Podesta emails dropped). They also may show that Flynn continued to lie to protect the President even while he was pretending to cooperate.

So Trump may have been tipped that if he wanted to limit the outrage over this pardon, he should get it done before the 302s come out on Tuesday, if indeed they will come out.

The conflict between Sidney Powell TV election lawyer and Sidney Powell TV defense attorney

Finally, I wonder whether some smart lawyer grew concerned that Sidney Powell was claiming to represent the President even while she was representing someone asking for a pardon.

On November 15, Trump explicitly named Powell as part of his team. On November 20, Powell appeared at Rudy the Dripper’s press conference. On November 22, Rudy and Jenna Ellis made a show of cutting ties with her.

Sidney Powell is practice law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity.

According to Maggie Haberman, either he didn’t like her appearance and/or advisors convinced Trump to separate himself from her nutjobbery. Three days later, November 25, Trump pardoned Powell’s client. The next day, after days of promising to Bring the Kraken, Powell finally started releasing her epically batshit suits. Trump has promoted them.

Indeed, it even appears some Administration lawyers are still associated with Powell’s efforts.

I’m not sure I understand whether there would be a conflict between Powell representing Trump (for free, inevitably, as all lawyers do), making desperate efforts to overturn the election at the same time she was trying to ensure her client did no prison time. If that’s a conflict, it may still exist anyway given Powell’s admission to Judge Sullivan that she had repeatedly discussed Flynn with Trump’s campaign lawyer, Jenna Ellis. The fact that DOJ packaged up altered documents to support a Trump attack on Biden may make those ties more important anyway (or lead to more details about them becoming public).

But if Powell’s involvement made Pat Cipollone and/or Bill Barr — who presumably share the challenging task of helping Trump write pardons that don’t backfire — squeamish, it might explain the timing.

When Secret Servers Bump Up against Prosecutorial Independence and Following the Evidence

CNN has a story reporting that President-Elect Biden will be granted access to the secret server where Trump has stashed the transcripts of his sensitive discussions with world leaders. It frames the story around the question of whether or not Biden will release those records, reporting that he probably will respect their sensitivity.

A person close to the Biden transition team told CNN that no decisions have been made about how these sensitive materials will be handled when the President-elect takes office on January 20, and that it’s likely they will maintain the Trump administration’s close hold on such information, at least at first, until they are settled in and Jake Sullivan, Biden’s pick for national security adviser, can assess their information security needs.

A senior US official said that the Biden team will be given access to a secret server containing sensitive information related to President Donald Trump’s more controversial conversations with foreign leaders on a need-to-know basis and the Trump administration is prepared to share any information that they deem to be relevant to their future decision-making process.

The story seems to be sourced to one Biden transition official, serving as a source for what the Biden administration will do, and a Trump official, serving as a source for how Trump White House will deal with this information during the Transition. In context, describing what to do about known conversations that got buried on Trump’s secret server, this comment is from the latter.

There are fast moving issues where policies or military technologies have changed in the four years since Biden’s political team left government, in particular, in relation to China and Turkey, something the current US official said will be a priority in discussions with the Biden landing teams.

The official said that basic details pertaining to Trump’s conversations with foreign leaders like Russian President Vladimir Putin and Saudi Arabia’s Crown Prince Mohammed Bin Salman, will only be shared if they are relevant to a pending policy or national security matter.

“There’s a lot to cover,” the senior US official said. “We are going to share anything that’s relevant for them to come to grips with reality when the keys are theirs. If there was something like that that’s actually of note… things on the covert side, for example, we will highlight them very quickly.”

That is, Biden will get news of Trump’s current plans involving Turkey and China, but will not get the details of what Trump promised away to Putin or whether he shared information on Jamal Khashoggi with MbS.

This particular frame comes from the sources, and while useful to know, doesn’t answer the question for the Biden administration. After all, Biden has answered questions about whether he would prosecute Trump or those close to him appropriately, by saying he plans to pick a good Attorney General and stay the fuck out of DOJ investigations. That means he might face difficult questions about what to do with these transcripts if a Congressional committee (they’ve already demanded the Putin transcripts) or prosecutors asked for known and/or relevant transcripts.

Just as an example, when the whistleblower revealed that President Trump had extorted the President of Ukraine to provide him election help, any normally functioning DOJ would have immediately identified the related case involving Rudy Giuliani’s associates Igor Fruman and Lev Parnas. That would have given SDNY jurisdiction over the fate of Trump’s extortionist call.

As of now, though, the Fruman and Parnas case remains ongoing (it will present one of the more difficult pardon decisions for Trump), and SDNY got David Correia to plead just before the election, while obscuring whether he will cooperate with prosecutors. If the case is not in some way entirely killed, then Trump’s call transcript, along with a lot of other evidence from the White House would become material to that prosecution. If Biden truly were taking a hands-off approach to prosecutions of Trump, he would not make the decision of whether to turn over this transcript (other stuff would not be covered by privilege and presumably would be handed over, including from State).

These will be the truly difficult decisions, not whether Biden gets notice now or in three months of what promises Trump made to Putin.

Rudy the Dripper: The Vicious Cycle of Dead-Ender Propagandists Feeding Bullshit to Tribalist Republicans

Not long after the former US Attorney of the Southern District of New York headlined a press conference where he and other lawyers presented insane conspiracy theories to claim that Donald Trump had been robbed of his victory, CNN reported that the FBI continues to investigate Rudy Giuliani for his ties to Russian Agents.

Complicating matters is that Giuliani’s post-election swirl of activity comes as federal investigators renewed their investigative interest into his work that is already the subject of a New York-based investigation.

In recent weeks, FBI agents in New York contacted witnesses and asked new questions about Giuliani’s efforts in Ukraine and possible connections to Russian intelligence, according to a person briefed on the matter. The FBI investigators, who have spoken to at least one witness previously months ago, came back to ask new questions recently about possible origins of emails and documents related to Hunter Biden that appear similar to those that the New York Post reported that Giuliani and others helped provide. CNN has previously reported that the ongoing probe is examining whether Giuliani is wittingly or unwittingly part of a Russian influence operation, according to people briefed on the matter.

But questions about that probe have been out of the spotlight as Giuliani stepped into focus as the campaign’s chief post-election lawyer. One source close to the Trump campaign countered that Giuliani is an overzealous defender of the president.

Meanwhile, the same propagandists who’ve helped Trump survive in recent years — on the left and the right — are claiming that because Democrats and others backed the investigation of Russian efforts to get Trump elected in 2016 (an investigation that attempted to understand why Trump fired Jim Comey, the person most Democrats chiefly blame for Hillary’s loss), it is precedent for Trump’s efforts to disclaim Joe Biden’s resounding win.

This exemplifies the vicious cycle we’ve been on since since August 2016, when Donald Trump authorized his rat-fucker to take desperate measures to find bullshit stories to tell to try to win an election.

After WikiLeaks released the first set of files Russia had stolen as part of its plot to help Trump get elected in July 2016 and someone — it’s not clear who — released damning information about Paul Manafort’s corrupt ties with Russian-backed Ukrainian oligarchs, Donald Trump doubled down. Rat-fucker Roger Stone, desperate to save Trump’s campaign and maybe even the job of his lifetime buddy, made a Faustian bargain for advance access to fairly innocuous John Podesta emails that Stone believed would provide the smoking gun for a conspiracy his allies had been chasing since March. The Faustian deal, by itself, exposed Stone as a co-conspirator in a hack-and-leak operation led by a hostile foreign agency. But the deal also brought ongoing exposure: at least as soon as he was elected, Trump’s rat-fucker (and maybe his eldest son!) started pursuing an effort to pay off Julian Assange with a pardon or some other way out of the Ecuadorian Embassy, thereby implicating Trump in a quid pro quo. After Trump assumed the Presidency, his own exposure through Stone gave him reason to want to shut down the investigation, even the investigation into the hack-and-leak itself. As a result, from very early in his presidency, Trump had obstructed justice to hide the quid pro quo and conspiracy his rat-fucker (and possibly he and his son) had joined to help him get there.

Meanwhile, early on in the investigation, acting on advice that Paul Manafort gave after returning from a meeting with one of Oleg Deripaska’s key deputies, the Republicans defended their President by attacking the credibility of the Steele dossier — one that Deripaska himself likely ensured was filled with disinformation — as a stand-in for the larger investigation itself. Deripaska even has apparent sway at one of the outlets that most relentlessly pursued that synecdoche, the dossier as the Russian investigation. Former hawks on Russia, like Trey Gowdy, were lured into fiercely defending Trump even in the face of overwhelming proof of his compromise by the able gate-keeping of Kash Patel and the discovery of how the use of informants can implicate members of your own tribe, as it did with Carter Page. By the time Billy Barr deceived the nation with his roll-out of a very damning Mueller Report, almost every single Republican member of Congress was susceptible to ignoring damning evidence that their President treated both the pursuit of the presidency and his office as a means for self-benefit, no matter what that did to US interests.

Key to the process of co-opting virtually all Republican members of Congress was the process of villainizing the people who had tried to keep the country safe from Russian compromise, starting with Peter Strzok but also including Andy McCabe. That process easily exploited the same apparatus of Congress’ “oversight” powers — and the same susceptibility to heated rants over logic — that had been used to turn a tragic incident in Libya into a multi-year investigation of Hillary Clinton. Also key to that process were certain propagandists on Fox News, including three of the lawyers that stood with Rudy yesterday: DiGenova and Toensing and Sidney Powell.

The day after Mueller closed up shop, those same propagandists joined with Rudy to pursue a revenge plot for the investigation — they started pursuing a way to frame Joe Biden in anticipation of the 2020 election. Most Democrats didn’t believe that Hillary lost because of Russia, but Trump and his conspiratorially-minded advisors believed they did. And so Rudy, relying on advice Manafort offered from prison, used the same networks of influence to try to frame Biden in a Ukrainian plot that, at the same time, might provide an alternative explanation for the Russian crimes Trump was personally implicated in.

Once again, Trump got personally involved, extorting the Ukrainian president over a series of months, “I’d like you to do us a favor, though.”

There’s no doubt that Trump’s abuse of Congress’ power of the purse in an effort to extort a campaign benefit from a foreign country merited impeachment. There’s also no doubt that it served to heighten the tribalism — and ranting illogic — of Republican members of Congress.

Things snowballed further.

That tribalism, by itself, might have gotten Trump re-elected. But it wasn’t enough for Trump. Instead, the President prepared an attack on the integrity of the vote by dissuading his own supporters from using mail-in ballots, setting up the Equal Protection hoaxes that Rudy has pushed in recent days. Georgia Secretary of State Brad Raffensperger claims that, by itself, the effort to discredit mail-in voting cost Trump the state of Georgia. But partisan attacks are what got Trump where he is, and partisan attacks are what he knows.

Trump also doubled down on what had gotten him elected in 2016: overblown attacks sourced to stolen emails, Hunter Biden’s laptop, in this case rolled out by one guy at legal risk for his ties to Fraud Guarantee, and another under indictment for exploiting the tribalism of Trump’s supporters to commit fraud. According to CNN, the FBI believes these emails may have been packaged up by the Russian agents that have been buying access through Rudy and DiGenova and Toensing.

Trump’s DOJ, working with Sidney Powell, even tried to invent an attack on Joe Biden by altering exhibits in a court proceeding. In that case, the overblown attack was sourced to real notes, albeit notes that actual law enforcement officials had packaged in such a way as to tell a false story. Yet again, however, this was a false story that scapegoated those who’ve protected the interests of the country — adding Joe Biden to the targets along with McCabe and Strzok — to try to cover-up unbelievably damning evidence about Trump’s coziness with Russia. The effort to deny that Mike Flynn was secretly working for Turkey while claiming to work for Trump and to deny that Mike Flynn repeatedly called up the country that had just attacked us to try to obtain further benefits turned into an attack on those who tried to keep the country safe from sell-outs like Mike Flynn.

It’s a false story. But Republicans in Congress believe it with all their being. And so it has succeeded in convincing those Republicans they need to redouble their efforts to defend Trump.

So, yesterday, Rudy and the other propagandists gave a press conference that was, for the first time, broadly labeled as a coup attempt and roundly mocked, even by otherwise true believers. Trump, Rudy, Republicans, they’re all victims of an international plot launched by George Soros, Cuba, China, Venezuela, according to Rudy and the lawyers who spun the last several conspiracy theories on Fox News.

And this propaganda, an attempt to set aside the clear will of the voters, derives its strength not from any basis in fact. Rather, it derives its power from the fact that Republicans have gotten so tribally defensive of Trump, they will set aside the clear good of the country to back him.

Donald Trump, if he leaves office, may face legal consequences for what he did in 2016 to get elected. If Trump leaves office, Rudy may face consequences for the things he has done since to keep Trump in office.

To save themselves, they’re pursuing the same strategy they’ve pursued since 2016: telling bullshit stories by waving documents around and lying about what they say, relying on tribalism and raw power rather than reason to persuade their fellow Republicans. It just so happens that several of these stories got told with the help of Russian foreign agents (though some got told with the help of a corrupted law enforcement). It just so happens that Trump and Rudy (and Stone’s) willingness to rely on Russian help to tell these stories has greatly exacerbated their legal risk, and therefore made the spewing of bullshit stories more urgent.

But the Russian role mostly serves to magnify the desperation of this gambit.

Mostly, this is about weaponizing the tribalism of the Republican party that puts party loyalty over loyalty to the country or Constitution. And while there have been a few defectors from this dangerous tribalism in recent days, for the most part, Republicans in Congress don’t care that Trump is exploiting them like this or even — in some cases — don’t understand that this is all a shoddy set of lies.

Rudy’s Coup

ABC, which was the first outlet to report on a split within the Trump camp over strategy going forward, called it a coup (meaning, within the campaign).

As President Donald Trump’s legal efforts challenging the election results continue to hit dead ends, his campaign and legal teams have descended into chaos behind the scenes as many brace for the end of the post-election fight, multiple sources tell ABC News.

Since launching a long-shot effort to overturn the election results through baseless claims of voter fraud, President Trump has suffered a dizzying barrage of court losses and setbacks around the country, leading him late last week to install Rudy Giuliani, his personal lawyer, to lead the legal efforts going forward.

But Giuliani’s ascent has led to an explosion of infighting and disillusionment among the president’s longstanding legal team and top campaign officials, resulting in dueling factions emerging from inside the president’s dwindling campaign, multiple sources tell ABC News.

Over the weekend, Giuliani and his own team of lawyers, which also includes Trump campaign legal adviser Jenna Ellis, attempted what was described to ABC News as an internal campaign “coup”— an attempt to wrestle power away from the current longstanding Trump campaign leadership by claiming the president had given them full control moving forward, multiple sources said.

Giuliani’s team has taken over office space in the Trump campaign’s Arlington, Virginia, headquarters and Ellis, who White House aides have previously expressed concern about, began telling Trump campaign staffers they now report to her.

[snip]

Advisers fear that Giuliani and Ellis’ heightened influence over Trump will continue to result in the president giving in to his worst impulses, sources said.

In one story alluding to Rudy’s take-over of the legal fight, the WaPo reports that Boris Epshteyn is involved, along with the DiGenova and Toensing and Sidney Powell dead-enders from the Russian investigation and impeachment fights. (According to the SSCI Report, Epshteyn pitched Trump on a third Trump Tower Moscow deal during the election.)

Referring to the withdrawal of former Trump attorneys in Pennsylvania, an official said, “Rudy wants to make arguments in court that other lawyers are not willing to make. It’s not that they weren’t willing to represent us. When they intersect with Rudy’s world, they don’t want to make those arguments that Rudy wants to make.”

Two campaign officials said Trump campaign manager Bill Stepien, attorney Justin Clark and others were barely involved anymore in the legal fight, with it all being “Rudy all the time,” in the words of one.

“Rudy is calling the shots, and we are following,” one senior Republican involved in the campaign said. “I wouldn’t have organized it this way, but that’s the way the president wants it.”

One Republican lawyer close to the campaign said they too quickly jumped to accusations without proof of fraud and instead should have asked for examinations in states to glean evidence first.

This Republican said the campaign also should have engaged higher-power lawyers earlier on, instead of hiring “TV show lawyers.”

“The lawyers on the outside, none of them are supportive of the Rudy strategy,” this person said. “Rudy is not advancing the cause of the law.”

Giuliani is seeking to orchestrate a large news conference at the RNC headquarters on Capitol Hill for later this week, but Republican National Committee Chair Ronna McDaniel is unlikely to attend, officials said. He is working with Boris Epshteyn, who in between stints as a campaign aide worked as a Sinclair TV commentator and appeared with him in court on Tuesday.

Robert Costa has noted that Rudy doesn’t actually think he’ll win any of these. He claims to want to force this decision to the House.

The ploy is probably even better understood as disinformation affecting all sides. Actual lawyers know that Rudy can’t legally win. They dismiss his apparently futile efforts as a bid to get rich and not a serious effort to undermine a democratic election. Telling that story allows them to play along — it’s just crazy Rudy leading crazy Donald astray, not any serious attempt to end American democracy. Their inaction facilitates Rudy’s efforts.

All the while, Trump’s supporters grow more and more certain that Trump is being denied his rightful victory by cheating, effectively convincing them that Trump isn’t the one who is trying to cheat, but rather Biden is. At the very least, that will ensure that Republicans in Congress will have no leeway to work with the Biden Administration. Given past events, it’s likely it will lead to violence.

So long as Rudy claims to be pursuing something, anything, it’ll delay the peaceful transfer of power and allow Trump to take steps — installing loyalists at DOD, firing the guy in charge of protecting the Georgia run-off, possibly even firing the FBI Director — that will make any further efforts at consolidating power still easier. Republicans, thus far, have played along (though they may be balking at Acting Secretary Christopher Miller’s plan to drawn down troops in Afghanistan and Iraq). Republicans are okay harming the country to ensure that Biden is weaker when he does finally start the transition.

And if Trump somehow manages to hold on to power, the Republicans will happily blame the coup on Trump, even while benefitting from the roll-back of democracy.

That leaves all options for something more aggressive on the table.

By all reports, Rudy Giuliani looked like a crazy old man arguing a facetious case in Williamsport, PA. He doesn’t care though. He’s got criminal exposure for all the sleazy influence peddling with mobbed up Ukrainians to fight off, and keeping Trump in power is the easiest way to do that. Rudy Giuliani has nothing to lose.

“Looking Forward” Will Be Harder for President Biden than It Was for President Obama

NBC has a story that has caused a bit of panic, reporting that “Biden hopes to avoid divisive Trump investigations, preferring unity.”

The panic is overblown, given that the main point of the story is that Biden is hoping that DOJ will resume a more independent stance than that taken, especially, by Billy Barr.

Biden wants his Justice Department to function independently from the White House, aides said, and Biden isn’t going to tell federal law enforcement officials whom or what to investigate or not to investigate.

“His overarching view is that we need to move the country forward,” an adviser said. “But the most important thing on this is that he will not interfere with his Justice Department and not politicize his Justice Department.”

If there were to be investigations of Trump, everyone should want them to be completely insulated from the White House.

The story raises two more specific types of investigations which are both likely moot.

They said he has specifically told advisers that he is wary of federal tax investigations of Trump or of challenging any orders Trump may issue granting immunity to members of his staff before he leaves office. One adviser said Biden has made it clear that he “just wants to move on.”

Another Biden adviser said, “He’s going to be more oriented toward fixing the problems and moving forward than prosecuting them.”

New York state already has a tax investigation into Trump, so a federal one would be duplicative. And the pardon power is absolute; there’s little likelihood DOJ could investigate the pardons that Trump grants, because doing so would be constitutionally suspect.

All that said, attempting to move forward may not be as easy for President Biden as it was for President Obama.

That’s because there are a number of investigations that implicate Trump that are either pending (as of right now, but I don’t rule out Trump trying to kill them in the interim) or were shut down corruptly, to say nothing of the obstruction charges Mueller effectively recommended (which aforementioned pardons would renew, even in spite of DOJ’s declination prior to pardons). At a minimum, those include:

  • The Build the Wall fraud case against Steve Bannon and others that might, eventually, implicate the failson or his close buddies
  • The Igor Fruman and Lev Parnas graft which clearly implicates Rudy Giuliani and by all rights should always have included Trump’s extortion of Volodymyr Zelensky; given the timing of David Correia’s plea, it’s likely there will be grand jury testimony from him banked
  • Other foreign agent charges against Rudy
  • The investigation into Erik Prince for selling his private mercenary services to China
  • False statements charges against Ryan Zinke that Jeffrey Rosen attempted to kill
  • Various campaign finance and grift charges implicating Roger Stone, Paul Manafort, and Brad Parscale, to say nothing of the hush payments involving Trump personally
  • Possible hack-and-leak charges against Roger Stone from 2016, as well as the related pardon quid pro quo for Julian Assange implicating Trump himself
  • The possible aftermath of Judge Sullivan’s decisions in the Mike Flynn case, which could include perjury referrals or an invitation for DOJ to prosecute Flynn on the foreign agent charges he pled out of

All of these investigations still do or were known to exist, and if they no longer exist when Biden’s Attorney General arrives at DOJ, it will be because of improper interference from Barr.

The last of these might get particularly awkward given that multiple people at Billy Barr’s DOJ, possibly in conjunction with Sidney Powell and Trump campaign lawyer Jenna Ellis, altered documents to concoct a smear targeting Joe Biden in a false claim that he invented a rationale to investigate Flynn for undermining sanctions on Russia. You cannot have an independent DOJ if the people who weaponized it in such a way go unpunished. Except investigating such actions would immediately devolve into a partisan fight, particularly if Republicans retain control of the Senate. (This particular issue will most easily be addressed, and I suspect already is being addressed, via a DOJ IG investigation.)

Still, in the other cases, DOJ may need to decide what to do with investigations improperly closed by Barr, or what to do with investigations where just some of the defendants (such as Fruman and Bannon) get pardons.

And all this will undoubtedly play against the background of the confirmation battle for whomever Biden nominates. I would be shocked if Mitch McConnell (especially if he remains Majority Leader) didn’t demand certain promises before an Attorney General nominee got approved.

So none of this will be easy.

A far more interesting question will pertain to what President Biden does about the ICC investigation into US war crimes in Afghanistan, crimes that occurred during both the Bush and Obama Administrations. Mike Pompeo launched an indefensible assault against the ICC in an attempt to block this investigation, sanctioning ICC officials leading the investigation. Biden’s Secretary of State will have to decide whether to reverse those sanctions, effectively making a decision about whether to look forward to ignore crimes committed (in part) under Barack Obama.