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Trump’s Pardon Jenga, Starting with the Julian Assange Building Block

I was going to wait to address Trump’s likely use of his power of clemency in the days ahead until it was clear he was going to leave without a fight and I will return to it once that’s clear. But there have already been a slew of pieces on the likely upcoming pardons:

None of them mentions Julian Assange (though Graff does consider the possibility of a Snowden pardon, which I consider related, not least for the terms on which Glenn Greenwald is pitching a package deal as a way for Trump to damage the Deep State).

I would argue that unless a piece considers an Assange pardon, it cannot capture the complexity facing Trump as he tries to negotiate a way to use pardons (and other clemency) to eliminate his legal exposure itself.

I’m not saying Trump’s decision on whether to give Assange a pardon is his hardest decision. But it may be one a few that could bring any hope of protecting himself falling down.

Trump has talked about pardons, generally, covering a number of crimes in which he himself (or a family member) is implicated:

  • Asking DHS officials to violate the law in order to build the wall
  • Working with the National Enquirer to capture and kill damaging stories during the 2016 election
  • Dodging impeachment
  • Steve Bannon’s Build the Wall grift (which likely implicates Jr)

There are others whom Trump would give a pardon because they’re loyal criminals, like Ryan Zinke or Commerce Officials and others who’ve lied in court. There are hybrid cases; in addition to Bannon, Erik Prince has legal exposure both for his own lies that protected Trump, but also for his efforts to sell mercenary services to hostile foreign governments. And Rudy Giuliani has committed his own crimes as well as possible crimes to protect the President. With the possible exception of Rudy (who still might claim attorney client privilege to refuse to testify about Trump), those pardons create challenges, but they’re highly likely (unless Trump made some pardons contingent on remaining in power).

Then there’s the Mueller Report. In 2019 testimony to HPSCI, Michael Cohen credibly described Jay Sekulow considering mass “pre-pardons” in the summer of 2017 in an attempt to make the Russian investigation go away. But the Mueller Report itself only obviously talks about five pardons:

  • An extensive discussion of the reasons why pardons for Mike Flynn, Paul Manafort, and Roger Stone would amount to obstruction (a sentiment with which Billy Barr once agreed)
  • A discussion of Robert Costello’s efforts to broker silence from Cohen in exchange for a pardon and almost certainly a still-redacted referral of Costello for the same; Costello is currently Rudy Giuliani’s attorney
  • A question about discussions of a Julian Assange pardon, even while the report did not mention or obscured the tie with underlying evidence proving such an effort occurred, possibly as a part of a quid pro quo to optimize the WikiLeaks releases

There are difficulties — albeit surmountable ones — for pardons of Flynn and Manafort, not least because Billy Barr has found other ways for Trump to keep them out of jail (so far), even while issuing a DOJ ruling that his prior pardon dangles are not obstruction. Costello is someone who has no privilege directly with Trump and so might implicate him personally in trading pardons for silence if Trump himself is not pardoned.

But Stone (and quite possibly Don Jr) is indelibly tied to an Assange pardon.

It’s possible something might make this easier between now and January 20. If British Judge Vanessa Baraister rules on January 4, 2021 in favor of Julian Assange’s Lauri Love gambit, arguing that American prisons are not humane for those on the autism spectrum, then there’s a decent chance he’ll beat extradition. If not, his chances are slim. And even if he beats extradition the UK could choose to prosecute him on Official Secrets Act charges tied to Vault 7.

That presents Trump limited choices. He could pardon just Stone (and Don Jr, who will undoubtedly get a broad pardon in any case). But then both could be coerced to testify against Assange under threat of contempt or perjury from a Biden DOJ.

He could pardon all three, including a broad pardon (including Vault 7) for Assange. But if he did that, it could complete the conspiracy, a quid pro quo tied to Russian interference in 2016. That would make a Pence pardon of Trump much more politically costly; it would likewise make a Trump self-pardon much more toxic for even a very partisan SCOTUS to rubber stamp.

But if he doesn’t pardon Assange, he risks pissing of those who helped him in 2016, with whatever repercussions that would have for Trump Organization funding going forward. To sum up:

  • Pardoning just Stone and Jr would expose them to coercion to testify against Assange and maybe others
  • Pardoning all three would make Trump’s own pardons much less defensible to those who would have to ensure he himself got immunity
  • Pardoning Assange at all would complete the conspiracy Mueller never charged
  • Not pardoning Assange might risk ire from Russia

I’m not saying he can’t find a way out of this dilemma. But it is one of the reasons why Trump’s pardon gambit is far more complex than others are accounting for.

Convergence: Mueller Obstruction, Ukrainian Favors, and DOJ’s Altered Documents

Amid uncorrected false claims about election results and tweets inciting violence in DC, Donald Trump tweeted this last night.

After respectable law firms withdrew in AZ and PA, Trump’s legal team is now down to Rudy, DiGenova and Toensing, Sidney Powell, and Jenna Ellis, along with “other wonderful lawyers” whom he did not name.

Finally, the grand convergence: Trump’s obstruction of the Mueller investigation into Trump’s “collusion” with Russia, his demand that Ukraine’s President Volodymyr Zelensky “do him a favor” by inventing an investigation of Joe Biden, and the Billy Barr-led effort to blow up Mike Flynn’s prosecution for covering up Trump’s efforts to undermine sanctions imposed for helping Trump to win. All one grand effort led by lawyers barely clinging to reality.

That’s not a unique observation. Many people are making it (along with laughing at the sorry state of affairs for Trump, a glee that may be premature).

But it’s worth focusing on the relationship between Jenna Ellis and Powell. As I have noted repeatedly, when Judge Emmet Sullivan asked Powell whether she had been in direct contact with Trump about Mike Flynn’s case, she not only confessed to that, but also admitted multiple contacts with Trump’s campaign lawyer, Ellis. That means Ellis is directly implicated in whatever effort there was to alter documents to launch a false attack on Joe Biden, one intimately tied to DOJ’s false excuses (that the investigation was primarily about the Logan Act) for wanting to blow up the Flynn prosecution.

That is, the effort to throw out the Mike Flynn prosecution (about which the lawyers have mostly gone silent, post-election) was all part of an effort to obtain power via illegitimate means. And still is.

The Last Time Billy Barr Ordered a Politicized Investigation, DOJ Altered Documents for Public Consumption

It is a fact that someone (or someones) who were part of the Jeffrey Jensen review of the Mike Flynn prosecution altered documents for public consumption. That is not speculation. It is not hyperbole. It is a fact, one that other outlets had better start replicating and enhancing if they want to prevent Barr’s green light on investigations into election irregularities, announced last night, from doing the same.

At a minimum, DOJ removed protective order footers from a set of documents shared with Sidney Powell on September 23, in advance of the first debate.

The altered January 5, 2017 Strzok notes, altered to suggest a January 5, 2017 meeting might have happened on January 4, 2017, without the footer:

The realtered January 5, 2017 Strzok notes, with the footer:

The second set of Strzok notes (originally altered to read March 28), without the footer:

The second set of Strzok notes, with the footer.

The altered McCabe notes, altered to include a date, with the footer redacted out:

The realtered McCabe notes, with the footer unredacted:

The two other documents released that day, a newly repackaged set of Page-Strzok texts (with newly released personal information that constitutes a new violation of the Privacy Act) that DOJ now claims not to have had a purpose to release and a set of FBI analyst texts the identities of which DOJ seems very concerned about hiding, also lacked protective order footnotes.

The three documents (above) subsequently released with the protective order replaced all had dates added to the initially altered document, a misleading date in at least the case of Peter Strzok’s January 5, 2017 notes and misleading redactions used to suggest something false about the date added to the McCabe notes. DOJ claims those added dates were inadvertent, but the fact they happened with documents that had otherwise been altered (and on a document, the Strzok January 5, 2017 notes, that had already been released once without the date) makes that claim highly unlikely. When prosecutor Jocelyn Ballantine submitted a filing admitting that the dates had been altered, she falsely claimed that Strzok and McCabe’s lawyers had confirmed nothing else was altered.

There are several other problems with the altered set of Andrew McCabe notes (including that notes about prep for the Global Threats Hearing got released with no declassification stamp), problems that merit more attention from experts.

But those aren’t the only pieces of evidence that the Jeffrey Jensen investigation evolved from inventing an excuse to blow up the Flynn prosecution into an opportunity to set up campaign attacks for the President. Pro-Trump FBI Agent Bill Barnett gave an interview that was materially inconsistent with his actions during the Flynn investigation (and that claimed to be unaware of key pieces of evidence against Flynn). When DOJ released it, they redacted it in such a way as to hide complimentary comments from Barnett about Brandon Van Grack that would have completely undermined DOJ’s claimed reasons to throw out Flynn’s prosecution.

There are more signs of irregularities with this “investigation.” But this list by itself proves that DOJ, in an investigation personally ordered up by Billy Barr, used the “investigation” to package up propaganda to help Donald Trump. The package even seems to have served to tee up an attack Trump made on Joe Biden in the first debate.

As noted, last night Barr authorized what had previously been forbidden for over forty years, DOJ’s conduct of investigations into claims of irregularities ginned up by the very same lawyers — Sidney Powell and Rudy Giuliani — who invented the complaints about the Flynn prosecution. One of Barr’s investigations has already altered official documents to sustain false claims. That means there’s reason to believe he would do it again, to serve the same cause. Indeed, Trump’s election loss gives Barr’s a greater incentive to repeat the process, to ensure he is not replaced by someone who would treat these alterations as a crime.

A Bill Barr politicized investigation altered documents to serve propaganda in the past. We should assume it will happen again.

Trump’s Enablers Are Mistaking an Insurgency for an Off-Ramp

Jake Tapper tweeted that Jared Kushner and Rudy (both of whom have criminal exposure that Trump’s loss might make imminent), along with Jason Miller, are entertaining Trump’s demand that they hold rallies delegitimizing the election results. David Bossie (whom Jared reportedly brought in to play the role of respected elder, like Jim Baker played in the 2000 recount, which by itself is hilarious) and Mark Meadows are pushing Trump to concede.

The AP reports that anonymous senior officials are telling themselves that helping Trump to delegitimize the results is really just a way to give the Narcissist-in-Chief an “off-ramp” to accept the loss that he can’t grasp.

But senior officials, campaign aides and allies told The Associated Press that overwhelming evidence of fraud isn’t really the point.

The strategy to wage a legal fight against the votes tallied for Biden in Pennsylvania and other places is more to provide Trump with an off-ramp for a loss he can’t quite grasp and less about changing the election’s outcome, the officials said. They spoke to AP on the condition of anonymity to discuss internal strategy.

Trump aides and allies also acknowledged privately the legal fights would — at best — forestall the inevitable, and some had deep reservations about the president’s attempts to undermine faith in the vote. But they said Trump and a core group of loyalists were aiming to keep his base of supporters on his side even in defeat.

Meanwhile, Vladimir Putin is one of the few world leaders who has not congratulated President-Elect Biden, because — his spox says — there are still ongoing legal challenges. Thus, it is official policy of Russia to follow the strategy that Russia and its assets had planned in the eventuality of a 2016 loss, to discredit the outcome.

I get that Trump’s closest advisors are calculating the best way for him to remain kingmaker. Ensuring that his frothers remain frothy even after Trump is exposed as a weak man that even Georgia rejected is a one way to do that.

But kidding themselves that this is about getting Trump to come to grips with his loss is a dangerous game. Whatever these rallies would do for Trump’s damaged ego, they will serve to create a potentially violent insurgency, members of which have already tried, on repeated occasion, to engage in political violence in Trump’s name.

No one should treat these excuses for discrediting a clearcut democratic result as serious. They’re just rationalizations to repackage anti-American actions as something else.

Docket Tea Leaves: Manafort, Bannon, and Flynn

I’d like to point to some curious docket doings in cases pertaining to Paul Manafort, Steve Bannon, and Mike Flynn

Manafort

First, two things pertaining to Paul Manafort, who is serving his prison sentence from home. In his book, Andrew Weissmann raises the “other investigation” in which Manafort, on the day he succeeded in getting a plea deal, implicated someone — almost certainly Jared Kushner — and wondered why the material still hadn’t been released.

Most notably, at one point we asked him about an email he’d received in August 2016 from Roger Stone. Manafort gave a long explanation, the gist of which was to implicate two senior Trump campaign officials; it was related to an investigation in New York. (As the precise material is still under seal I cannot discuss the details, although it is unclear to me what the continued basis is for keeping all this material under seal.) We were trying to assess his credibility, fixating on signs of dishonesty—any indication that Manafort was still angling for a pardon, or attempting to play us. Volunteering this information, which implicated senior officials, suggested he may have written that possibility off, even though we all had continuing doubts.

It’s a damn good question given that Manafort’s defense and prosecutors filed a sealed joint motion about what else could be unsealed from Manafort’s breach determination. At the time, the government was proposing to unseal at least some of the information — and had even given proposals to Manafort’s lawyers to unseal them.

On May 29, 2020, the government provided counsel for Mr. Manafort with the last of the government’s proposals for lesser-redacted materials. Counsel for Mr. Manafort is now considering the government’s proposals, and the parties respectfully request additional time for counsel for Mr. Manafort to do so, and for the parties to confer and prepare the joint report for the Court.

But Judge Amy Berman Jackson hasn’t ruled yet. She’s busy as hell, but some of this information would be fairly important for voters to consider before they vote.

Meanwhile, in Manafort’s case in chief, on Tuesday, one of the two DC AUSAs who were on the docket swapped out for a different one.

The United States of America, by and through its attorney, the Acting United States Attorney for the District of Columbia, and Assistant United States Attorney Arvind Lal, hereby informs the Court that he is entering his appearance in this matter on behalf of the United States. Assistant United States Attorney Zia M. Faruqui no longer represents the United States in this matter.

Manafort’s serving his prison sentence from home. And the AUSA on the unsealing docket, Molly Gaston, remains on this one (so it shouldn’t pertain to the unsealing debate). There doesn’t seem to be a need to add new AUSAs when all he’s going to do is continue to sit in his condo until Trump pardons him.

Bannon

Meanwhile, on Wednesday, a sealed document was placed in Steve Bannon’s docket.

This could be a lot of things, and Bannon has three co-defendants, so it’s not even clear that it pertains to him. But it’s the first sealed document (as a simple fraud case, this shouldn’t involve any classified evidence). And it was filed the same day as the Hunter Biden faux-scandal broke.

NBC reported that the FBI is investigating whether this faux-scandal has ties to foreign intelligence.

Federal investigators are examining whether emails allegedly describing activities by Joe Biden and his son Hunter and found on a laptop at a Delaware repair shop are linked to a foreign intelligence operation, two people familiar with the matter told NBC News.

The FBI seized the laptop and a hard drive through a grand jury subpoena. The subpoena was later published by the New York Post. The bureau has declined to comment.

Though there are other sketchy aspects to the story, such as the claim that the shop owner, having been subpoenaed for the laptop, also made a copy and gave it to Rudy’s lawyer, Robert Costello.

“Before turning over the gear, the shop owner says, he made a copy of the hard drive and later gave it to former Mayor Rudy Giuliani’s lawyer, Robert Costello,” the Post said. “Steve Bannon, former adviser to President Trump, told The Post about the existence of the hard drive in late September and Giuliani provided The Post with a copy of it on Sunday.”

Bannon’s Chinese benefactor, Guo Wengui, was hyping the dirt before it was released.

Weeks before the New York Post began publishing what it claimed were the contents of Hunter Biden’s hard drive, a Sept. 25 segment on a YouTube channel run by a Chinese dissident streamer, who is linked to billionaire and Steve Bannon-backer Guo Wengui, broadcast a bizarre conspiracy theory. According to the streamer, Chinese politburo officials had “sent three hard disks of evidence” to the Justice Department and House Speaker Nancy Pelosi containing damaging information about Joe Biden as well as the origins of the coronavirus in a bid to undermine the rule of Chinese President Xi Jinping.

Three days later, a Twitter account linked to Guo and Bannon’s Himalaya movement subsequently amplified an edited clip of the segment alongside the pledge of a “Bombshell… 3 hard disk drives of videos and dossiers of Hunter Biden’s connections with the Chinese Communist Party (CCP) have been sent to Nancy Pelosi and DOJ. Big money and sex scandal!”

And Bannon was boasting of having the laptop on September 28.

If the FBI was already investigating this — including why the shop owner was handing out copies of the purported laptop — then the FBI may have been aware of Bannon’s activities before Wednesday.

The point is, some of this — particularly if it delves into fraud — would be a bail violation. There’s a status conference on October 26, so it’s possible we’ll get hints then.

Ultimately, I think Bannon is virtually guaranteed to be pardoned, because he still hasn’t told the full truth about 2016. So even if he were jailed, it’d likely be for a matter of days until Trump got him out again.

Flynn

Finally, there’s Flynn’s case. The one unopposed amicus — filed by the NACDL — got docketed today. It’s a strong case — far stronger than a similar argument that Sidney Powell tried to make — that Flynn should not be held in contempt for the lies he has told in Judge Emmet Sullivan’s case. It’s an argument that Sullivan would, I imagine, normally find persuasive, and the fact that he has docketed it today makes me wonder if he’s relying on it in his order on Flynn’s case.

The only problem with the brief is it misunderstands the full scope of Flynn’s lies to the court. The brief assumes all his lies pertain to his guilty pleas, and argue that defendants can’t be held accountable for perjury on coerced guilty pleas.

But — as I’ve noted repeatedly — the sworn declaration Flynn submitted as part of his attempt to withdraw his guilty plea, which DOJ’s recent excuses for blowing up his prosecution increasingly rely on, also conflicts with what Flynn said to the grand jury as well as evidence submitted in this docket, which shows notes from Covington recording Flynn telling lies about his engagement with Turkey (see the bold for a conflicting statement).

  • June 26, 2018: Mike Flynn testified to an EDVA grand jury, among other things, that:
    • “From the beginning,” his 2016 consulting project “was always on behalf of elements within the Turkish government,”
    • He and Bijan Kian would “always talk about Gulen as sort of a sharp point” in relations between Turkey and the US as part of the project (though there was some discussion about business climate)
    • “For the most part” “all of that work product [was] about Gulen”
    • When asked if he knew of any work product that didn’t relate to Gulen, Flynn answered, “I don’t think there was anything that we had done that had anything to do with, you know, anything else like business climates or stuff like that”
    • He was not aware of “any work done on researching the state of the business climate in Turkey”
    • He was not aware of “any meetings held with U.S. businesses or business associations”
    • He was not aware of “any work done regarding business opportunities and investment in Turkey”
    • He and his partner “didn’t have any conversations about” a November 8, 2016 op-ed published under his name until “Bijan [] sent me a draft of it a couple of days prior, maybe about a week prior”
  • January 29, 2020: Mike Flynn submitted a sworn declaration. Among the assertions he made were:
    • “On December 1, 2017 (reiterated on December 18, 2018), I pled guilty to lying to agents of the FBI. I am innocent of this crime.”
    • “I gave [Covington] the information they requested and answered their questions truthfully.”
    • “I still don’t remember if I discussed sanctions on a phone call with Ambassador Kislyak nor do I remember if we discussed the details of a UN vote on Israel.”
    • “My relationship with Covington disintegrated soon thereafter.” [After second proffer session.]
    • “I did not believe I had lied in my White House interview with the FBI agents.”
    • “In the preceding months leading up to this moment [when he agreed to the plea deal], I had read articles and heard rumors that the agents did not believe that I had lied.”
    • “It was well after I pled guilty on December 1, 2017, that I heard or read that the agents had stated that they did not believe that I had lied during the January 24, 2017, White House interview.”
    • “I agreed to plead guilty that next day, December 1, 2017, because of the intense pressure from the Special Counsel’s Office, which included a threat to indict my son, Michael, and the lack of crucial information from my counsel.”
    • “My former lawyers from Covington also assured me on November 30, 2017, that if I accepted the plea, my son Michael would be left in peace.”
    • “Regretfully I followed my lawyers’ strong advice to confirm my plea even though it was all I could do to not cry out ‘no’ when this Court asked me if I was guilty.”
    • “In truth, I never lied.”

Not to mention, Flynn’s sworn declaration is internally inconsistent. [Update: a few more of the amicus briefs have been approved, including one from former prosecutors.]

It’s also worth noting that the Bill Barnett 302, which included about a page worth of paragraphs that were “pending unsealing by the court” that have yet to be unsealed. Some of those must pertain to things Flynn claimed in his declaration. (Flynn’s defense, but not Judge Sullivan, has an unredacted copy.)

Finally, yesterday, DOJ either posted or updated a job description that could be Brandon Van Grack’s job leading DOJ’s more focused FARA practice, which Van Grack got moved to after the Mueller investigation (though it could also be a more junior position reporting to Van Grack).

The attorney for this position will focus on administering and enforcing FARA, with at least 50% of the attorney’s time devoted to FARA matters. The attorney’s FARA responsibilities will include preparing for and leading civil litigation, managing criminal investigations, conducting inspections, and drafting advisory opinions.

When DOJ tried to blow up Flynn’s prosecution, Van Grack withdrew from the case but did not quit, though the frothy right claimed he had been ousted. Just in the last while, Bruce Ohr was finally ousted from the office for a trumped up complaint that he shared intelligence on Russian threats, as he had done for years. Van Grack hasn’t filed anything in PACER since DOJ moved to withdraw the prosecution. That said, DOJ has repeatedly said DOJ did not violate Brady.

I don’t really know what to make of all this. But I thought I’d note what I’m seeing in the bottom of my tea cup.

“That’s Rudy.” Trump Proves, Yet Again, That He Would Just Ignore a Defensive Briefing

For years, the frothy right has wailed that candidate Donald Trump should have been given a defensive briefing back in July 2016, rather than have the FBI open an investigation to figure out which member(s) of his campaign had gotten advance notice that the Russians were planning on dropping emails to help Trump win. Never mind that his top advisor in the briefing where that would have occurred was secretly working for the Turkish government at the time.

The complaint has always rung hollow given that, after President Obama warned Trump against hiring Mike Flynn (the aforementioned secret agent for Turkey), Trump went ahead and hired him anyway.

Today, however, we have further proof that Trump would have done nothing if he had gotten a defensive briefing rather than have the FBI investigate whether — as turned out to be true, in every single case — Flynn and Paul Manafort and George Papadopoulos and Carter Page were trying to cash in on their ties to Trump with foreign governments.

Yesterday, the WaPo reported that Trump’s national security advisor warned Trump that Russia was feeding Trump bullshit though Rudy.

U.S. intelligence agencies warned the White House last year that President Trump’s personal lawyer Rudolph W. Giuliani was the target of an influence operation by Russian intelligence, according to four former officials familiar with the matter.

The warnings were based on multiple sources, including intercepted communications, that showed Giuliani was interacting with people tied to Russian intelligence during a December 2019 trip to Ukraine, where he was gathering information that he thought would expose corrupt acts by former vice president Joe Biden and his son Hunter.

The intelligence raised concerns that Giuliani was being used to feed Russian misinformation to the president, the former officials said, speaking on the condition of anonymity to discuss sensitive information and conversations.

The warnings to the White House, which have not previously been reported, led national security adviser Robert O’Brien to caution Trump in a private conversation that any information Giuliani brought back from Ukraine should be considered contaminated by Russia, one of the former officials said.

The message was, “Do what you want to do, but your friend Rudy has been worked by Russian assets in Ukraine,” this person said. Officials wanted “to protect the president from coming out and saying something stupid,” particularly since he was facing impeachment over his own efforts to strong-arm Ukraine’s president into investigating the Bidens.

But O’Brien emerged from the meeting uncertain whether he had gotten through to the president. Trump had “shrugged his shoulders” at O’Brien’s warning, the former official said, and dismissed concern about his lawyer’s activities by saying, “That’s Rudy.”

The WaPo goes on to reveal that Bill Barr and Pat Cipollone — who helped Trump survive impeachment for asking for this help — along with Chris Wray all understood that Rudy was being targeted by Russia.

Several senior administration officials “all had a common understanding” that Giuliani was being targeted by the Russians, said the former official who recounted O’Brien’s intervention. That group included Attorney General William P. Barr, FBI Director Christopher A. Wray and White Counsel Pat Cipollone.

Today, the NYT matched the WaPo story, albeit with one of their fewer than WaPo’s sources pushing back somewhat.

The agencies imparted the warning months before disclosing publicly in August that Moscow was trying to interfere in the election by taking aim at Mr. Biden’s campaign, the officials said. Mr. Trump and Mr. Giuliani have promoted unsubstantiated claims about Mr. Biden that have aligned with Russian disinformation efforts, and Mr. Giuliani has met with a Ukrainian lawmaker whom American officials believe is a Russian agent.

Robert C. O’Brien, the national security adviser, presented the warning about Mr. Giuliani to Mr. Trump in December. Two former officials gave conflicting accounts about its nature. One said the report was presented to Mr. Trump as unverified and vague, but another said the intelligence agencies had developed solid and credible information that Mr. Giuliani was being “worked over” by Russian operatives.

Mr. Trump shrugged it off, officials said, but the first former official cautioned that his reaction could have been colored in part by other information given to him not long before that appeared to back some of Mr. Giuliani’s claims about Ukraine.

Both stories, however, agree that Trump blew off this warning.

So in 2016, the FBI investigated and Trump wailed and cried and said he wished he had gotten a defensive briefing.

Last December, he got a defensive briefing, and he just let his attorney continue to mainline him Russian disinformation.

And along the way, Billy Barr seems to have sidelined a tip (and possibly tried to squelch others) — in the form of the whistleblower complaint that launched impeachment — that might get Rudy investigated for serving as such a willing agent of Russian intelligence.

No Honor Among Troll Faces: The Latest Lawfare against Prigozhin’s Trolls

Yesterday, Treasury sanctioned four people for election interference. Rudy Giuliani associate Andreii Derkach has gotten most of the attention. But Treasury also sanctioned three people associated with Yevgeniy Prigozhin’s troll operation.

Today, Treasury also designated three IRA actors pursuant to E.O. 13694, as amended by E.O. 13757, and E.O. 13848 for having acted or purported to act for or on behalf of, directly or indirectly, the IRA, an entity designated pursuant to E.O. 13694, as amended, and E.O. 13848. Russian nationals Artem Lifshits, Anton Andreyev, and Darya Aslanova, as employees of the IRA, supported the IRA’s cryptocurrency accounts. The IRA uses cryptocurrency to fund activities in furtherance of their ongoing malign influence operations around the world.

The identifying information announcement provides not just passport and date of birth information (which is normal), but for two of the sanctioned individuals, it includes 17 and 6 crypto-currency addresses, respectively.

ANDREYEV, Anton Nikolaeyvich (Cyrillic: АНДРЕЕВ, Антон Николаевич), 9 3 Bloshevikov Prospect Apt 35, Saint Petersburg, Russia; DOB 03 Mar 1985; POB Saint Petersburg, Russia; nationality Russia; Email Address [email protected]; Gender Male;

Digital Currency Address – XBT 1Fz29BQp82pE3vXXcsZoMNQ3KSHfMzfMe3;

alt. Digital Currency Address – XBT 1AeSq93WDNdLoEJ92sex7T8xQZoYYm8BtS;

alt. Digital Currency Address – XBT 1AoxtfiBQ22DvbhqAN9Ctb8sULMRhrdwTr;

alt. Digital Currency Address – XBT 18Qj1THHuETfYhuRDZycXJbWwDMGw73Poa;

alt. Digital Currency Address – XBT 1MnbhWe5wr7Ut45ReyQsm96PwnM9jD7KaH;

alt. Digital Currency Address – XBT 1DYFJ6CuBvrxyoQSuBzVsNcetY9tvdsrag;

alt. Digital Currency Address – XBT 15Pt4NwZaUmMUwS2bQbyyncc7mzgWShtv8;

alt. Digital Currency Address – XBT 1PhqQpaGCrqSxQ6QDXcv14QCd1U98Zp34E;

alt. Digital Currency Address – XBT 13YBQr2Cp1YY3xqq2qngaPb7ca1o4ugeq6;

alt. Digital Currency Address – XBT 1KgudqxMfYaGzqAA7MS4DcsqejtMteqhix;

alt. Digital Currency Address – XBT 1FRyL9gmFGbzfYDAB4iY9836DJe3KSnjP9;

alt. Digital Currency Address – XBT 1DbShx4r8i2XesthoDBf5EkYWz5dsKEusV;

Digital Currency Address – ETH 0x8576acc5c05d6ce88f4e49bf65bdf0c62f91353c;

Phone Number 79315403678;

Digital Currency Address – LTC LWnbjLYUfqeokfbWM4FcU7uk2FP2DSxuWS;

alt. Digital Currency Address – LTC LaYUy1DGfVSuSF5KbPhbLrm8kRotqiwUJn;

Digital Currency Address – ZEC t1WSKwCDL1QYRRUrCCknEs5tDLhtGVYu9KM;

Digital Currency Address – BSV 12sjrrhoFEsedNRhtgwvvRqjFTh8fZTDX9; Passport 4005504207 (Russia) (individual) [CYBER2] [ELECTION-EO13848].

[snip]

LIFSHITS, Artem Mikhaylovich (Cyrillic: ЛИФШИЦ, Артем Михайлович), Primorsky Prospect 159, Saint Petersburg 197374, Russia; DOB 26 Dec 1992; nationality Russia; Email Address [email protected]; alt. Email Address [email protected]; Gender Male;

Digital Currency Address – XBT 12udabs2TkX7NXCSj6KpqXfakjE52ZPLhz;

alt. Digital Currency Address – XBT 1DT3tenf14cxz9WFNxmYrXFbB6TFiVWA9U;

Digital Currency Address – ETH 0x901bb9583b24d97e995513c6778dc6888ab6870e;

alt. Digital Currency Address – ETH 0xa7e5d5a720f06526557c513402f2e6b5fa20b00;

Phone Number 79110354982;

Digital Currency Address – LTC Leo3j36nn1JcsUQruytQhFUdCdCH5YHMR3;

Digital Currency Address – DASH Xs3vzQmNvAxRa3Xo8XzQqUb3BMgb9EogF4; Passport 719032284 (individual) [CYBER2] [ELECTION-EO13848].

Yesterday, EDVA also announced a single criminal charge of conspiracy to commit wire fraud against one of the sanctioned people, Artem Lifshits, who in 2017 was head of the “Translator Department [or Project],” which is what the troll project focusing on the US is called. As the excerpt above notes, Lifshits actually got fewer of his cryptocurrency accounts sanctioned than another of the targets, Anton Andreyev.

I’d like to look at how the criminal complaint complements the two other sets of charges against Prigozhin’s troll operation, the indictment against 13 of the actual trolls as well as some of the companies involved (here’s a very long post on that prosecution), and Prigozhin himself and a complaint against one of the accountants involved, Elena Alekseevna Khusyaynova (here’s my post on that). Along with renewing and fleshing out the case against Prigozhin, the complaint may be an effort to sow discord within Prigozhin’s operation, by alerting him that some of his employees may be helping themselves to company troll funds.

The affidavit by a Secret Service Agent supporting the complaint incorporates the other two legal actions and includes them as exhibits to this charge. It even includes a footnote explaining why DOJ dismissed the charges against Prigozhin’s shell companies.

On March 16, 2020, the United States dismissed Concord Management and Consulting LLC from the Indictment. Concord “availed itself of the Court’s jurisdiction to obtain discovery from the United States . . . while positioning itself to evade any real obligations or responsibility,” even refusing to produce a corporate representative despite “appearing” through counsel. Mot. to Dismiss Concord Defs., 2, 6, United States v. Internet Research Agency, et. al, 1:18-cr-32 (DLF) (D.D.C. Mar. 16, 2020). In light of the defendant’s conduct, the United States dismissed these parties from the Indictment, stating substantial federal interests were no longer served by continuing the proceedings against them. See id. at 9. The Indictment remains pending and active as to thirteen named individual defendants and the IRA.

After some introductory matter, the affidavit:

  • Describes the Lakhta disinformation project generally, including a brief overview of its attempts to sow discord between December 2016 through May 2018, incorporating some but not all of the examples from the Khusyaynova complaint, and adding a few new ones, including three paragraphs on use, starting in July 2019 of a cover company located in Accra, Ghana.
  • Describes how in October 2018 the Secret Service started investigating the role of cryptocurrency in the operation.
  • Explains that Lifshits served as head of the Translator Department.
  • Describes how Lifshits transferred money from a BTC account opened using the stolen identity of “T.W.” to his own personal account, the central allegation of wire fraud laid out in the indictment.

The basic proof accusing Lifshits of using T.B.’s stolen identity to open a Bitcoin account that he then used to transfer money into his own account relies on very basic metadata analysis obtained using legal process:

  • Evidence backing the selectors of Lifshits tie to his biological person and one of the cryptocurrency accounts he transferred money into (including two other Internet troll employees’ address book entries with his phone number, one of which referred to him as “Troll Face”).
  • Evidence showing Lifshits applying to Project Lakhta in July 2015 and appearing on rosters of Project Lakhta employees dated January 28, 2017 to October 26, 2017.
  • A description of finding order confirmations in the known IRA email, allforusa, from a criminal marketplace that sold fraudulent identities (this might be Richard Pinedo’s site).
  • Two paragraphs describing interviews with T.W. and another identity theft victim, T.B.,  in which they said he had never owned any cryptocurrency themselves and had not authorized anyone to do so on their behalf.
  • IP analysis showing Lifshits accessing cryptocurrency addresses (including his own) from an IRA IP address, as well as from a US-based account set up using a stolen identity but controlled by IRA.
  • IP address analysis showing him accessing the T.W. cryptocurrency account at the same time he accessed one of his own accounts, into which he transferred funds.
  • User Agent String analysis showing those accounts being accessed by the same browser.
  • IP analysis establishing venue in EDVA via some AWS servers.

In other words, the complaint, after invoking the two other legal actions against IRA and Prigozhin, finds one manager amid Prigozhin’s employees and shows some very basic metadata evidence — relying on neither intelligence nor some of the more sophisticated blockchain analysis the US government would like to hide — to accuse the manager, Lifshits, of wire fraud because of a financial transfer involving the stolen identity of an American.

There are two interesting aspects of the complaint, besides the way it slowly builds the case against Prigozhin via interlocking accusations.

First, a key passage of all this describes that Lifshits made this transfer “for personal gain.”

60. On or about December 29, 2017, LIFSHITS accessed and used the T.W. Exchange 1 Account to conduct an electronic transfer of funds from the T.W. Exchange 1 Account to his personal Exchange 3 account. This transaction is publicly viewable on the Bitcoin blockchain and USSS confirmed its existence through other investigative means.

61. On or about December 29, 2017, LIFSHITS used United States IP Address 1 at 15:35 UTC to access his Exchange 3 account. Then, three minutes later, he used the same IP address to access the T.W. Exchange 1 Account. This is on the same day that the T.W. Exchange 1 Account sent an electronic funds transfer to LIFSHITS’ Exchange 3 account.

62. With this transaction, LIFSHITS (1) intentionally and voluntarily devised or participated in a scheme to defraud — as evidenced by controlling and using a fraudulent cryptocurrency account, and (2) used interstate wire communications to further the fraud — as evidenced by the online cryptocurrency transactions.

It doesn’t say, one way or another, whether this was a sanctioned transfer of funds out of an IRA-controlled account or not. The government may have used this 34-page affidavit not only to flesh out the case against Prigozhin, but also to reveal that one of his employees is bilking him, effectively stealing trolling funds.

But the complaint also mentions a Co-Conspirator 1, who along with Lifshits bought identities using cryptocurrency.

Law enforcement obtained a search warrant for the contents of the email account [email protected], which as stated above is associated with a cryptocurrency account linked to both LIFSHITS and Co-Conspirator 1. During a review of the emails, law enforcement located “Order Confirmation” emails received from an online criminal marketplace that sells fraudulent passports and similar identification documents (the “Criminal Marketplace”). These emails corresponded to purchases of United States driver licenses that reflected the real names, addresses, and dates of birth of United States identity theft victims. This type of personally identifiable information is a “means of identification” as defined in Title 18, United States Code, Section 1028(d)(7).

It describes Co-Conspirator 1 as the sole other beneficiary of transfers out of a different IRA trolling account (though also suggests that one of the guys charged in the larger indictment might also be conducting such transfers as well).

The T.W. Exchange 1 Account reflected debits to several beneficiaries, including accounts registered to LIFSHITS and another known Project Lakhta member (“Co-Conspirator 1”). The IP activity associated with the T.W. Exchange 1 Account also matched the IP address activity of cryptocurrency accounts registered to LIFSHITS and Vladimir Venkov, who is charged in the USAO-DC Indictment.

It then introduces an account based off a different stolen identity, that of T.B., from which funds were transferred into an account controlled by the Co-Conspirator.

USSS identified a second account, which was hosted at another United States cryptocurrency exchange (“Exchange 2”). The Exchange 2 account was registered to a known Project Lakhta email account, [email protected] (hereinafter the “AllforUSA Exchange 2 Account”).7 Project Lakhta members opened the AllforUSA Exchange 2 Account using the identifiers of T.B. According to Exchange 2’s records, Project Lakhta members solely funded the AllforUSA Exchange 2 Account with an incoming credit from an account also in the name of T.B. at a United States-based financial institution. This credit was used exclusively to fund outgoing payments to a Blockchain wallet that USSS investigators determined was controlled by Co-Conspirator 1.

Now, it may be that the government only introduced Co-Conspirator 1 to establish venue in EDVA (which went through the T.B. account).

But it sure sounds like it is describing Co-Conspirator 1 as engaging in the same kind of transfers from IRA accounts into his own personal accounts that it describes Lifshits as doing.

Perhaps stealing from the troll till is considered part of their official compensation (elsewhere, the complaint cites the salary of Lifshits, so the US government may know the answer). Or perhaps these guys whose cryptocurrency addresses just got published in a US sanction announcement have been stealing from Prigozhin, in which case the US Treasury just provided Prigozhin a lot of hints about how to prove it.

Trump Told One Key Truth at His Convention

CNN had a funny story the other day. It described how five different RNC speakers — it focuses on Natalie Harp (who lied about receiving treatment under the Right to Try Act), Mark and Patricia McCloskey (who threatened protestors with their guns), Abby Johnson (whose story about abortion and spousal voting fell apart), and Mary Ann Mendoza (who got cut after spewing an anti-semitic conspiracy theory) — were so crazy, it suggests the Republicans didn’t vet their speakers.

The appearances of several speakers at this week’s Republican National Convention have been surrounded by controversy over social media comments and actions from their past, raising questions about whether and how the RNC vetted its speakers before they were placed on national television.

The story is funny, in part, because it left out the bigger name controversial speakers, like Rudy Giuliani, whose conspiracy theories are every bit as baseless as Mendoza’s, and who is reportedly under criminal investigation for the circumstances behind them) or Eric Trump, who is currently defying a New York State subpoena on the grounds that testifying truthfully about Trump Organization’s accounting irregularities would incriminate him. Which makes the premise even funnier: One controversial speaker is a vetting problem, seven (the number is actually much higher) is an intentional choice.

And yet the press has interpreted Trump’s failures to play by norms they believe remain in place as a goof, simply poor execution of a known formula.

A more alarming example comes in this NYT story. It sums up what it views as the themes the two parties are using, along the way repeating Trump’s claimed theme of “law-and-order” five times.

COVID vs. Law and Order

[snip]

the President is hammering a law-and-order message

[snip]

The moves come as the presidential campaign barrels into the critical last 10 weeks. They represent a bet by Mr. Biden that a focus on Covid-19 will prevail over Mr. Trump’s “law and order” emphasis and his attempt to portray Mr. Biden as a tool of the “radical left.”

[snip]

Aides to Mr. Trump said on Friday that their line of attack would not change. They plan to repeatedly highlight Mr. Trump’s familiar “law and order” message, and are blunt in their assessment that they will benefit politically from violence erupting at some protests.

[snip]

Mr. Trump’s aides said he enjoyed the frustration and anger he caused by holding a political event on the South Lawn of the White House, shattering conventional norms and raising questions about ethics law violations. He relished the fact that no one could do anything to stop him, said the aides, who spoke anonymously to discuss internal conversations.

Even assuming NYT describes these themes correctly (it doesn’t mention “competence,” for example), it totally misreads what happened at the Trump convention. It treats the RNC as a thematically organized event, rather than a raw display of power, power premised on dismantling any logic of themes.

While this extends to every logical claim Trump made at the RNC — from his claim that COVID is a thing of the past and his celebration of immigrants lured to participate in the RNC unwittingly — it was most visible in his claim to care in the least about law and order, the theme reporters claimed to be the central backbone of Trump’s campaign.

This is a man, after all, who has had two campaign managers and five other aides indicted or prosecuted, most in the service of protecting Trump. Two separate legal proceedings in New York State are pursuing financial crimes implicating Trump and his business (as noted, RNC speaker Eric Trump is currently defying subpoenas, claiming that his truthful testimony will implicate himself in crimes). And during his last campaign, Trump was implicated in two more crimes, the hush payments to his former sex partners and the misuse of his Foundation. There are active lawsuits from women credibly accusing Trump of sex crimes. It’s likely the only thing protecting Trump from prosecution for these crimes and obstruction of the Mueller probe is his success at winning another term. Meanwhile, the woman who shattered all prior norms about the Hatch Act, Kellyanne Conway, completed her service to Trump by admitting more violence would help Trump’s campaign.

And yet the NYT treats Trump’s “law and order” theme as a credible political claim.

The only mention from this purported news story that Trump’s convention was a televised crime spree of its own accord came in describing the glee with which Trump’s aides enjoyed watching Trump commit crimes, which the NYT instead describes as “raising questions about ethics law violations,” with impunity.

Mr. Trump’s aides said he enjoyed the frustration and anger he caused by holding a political event on the South Lawn of the White House, shattering conventional norms and raising questions about ethics law violations. He relished the fact that no one could do anything to stop him, said the aides, who spoke anonymously to discuss internal conversations.

This is not (as it would be in a minimally competent story) a fact check, a discussion of how absurd it was that the most criminally implicated President in history was instead running as the “law and order” candidate. It is, instead, an unexamined nugget of the key truth.

Trump’s aides are gleeful that his defiance of the law during a convention where he claimed to be the “law and order” candidate caused so much consternation. They relish the way he could commit crimes in broad daylight without anyone stopping him.

That is, the theme is not “law and order,” as NYT gullibly parroted. Trump’s campaign promise is the complete dismantlement of rule of law, where a candidate whose potential and confirmed crimes are too numerous to track could condemn the crimes and criminalized peaceful speech of his opponents, while failing to condemn murder committed by a supporter, all while claiming this selective enforcement amounted to “law and order.”

The point is not the theme. It’s partly that a small pack of NYT journalists might collectively repeat it as if it’s true, without instead describing the grave danger posed to democracy when a man who has systematically attacked rule of law rebrands that assault as law and order. Trump has successfully recruited those whose business is supposed to be truth-telling, and gotten them to instead reinforce his central lie, that his abuse of the law is something called “law and order.” And it is, more significantly, that while less negligent journalists were trying to push back on Trump’s deluge of lies, he was instead telling the key truth. Trump’s campaign message is not whatever theme some horse race journalists discern from ad buys. Rather, it is a promise — with his defiance of rule of law, his abdication of any platform save his own whims, his assault on the sanctity of the election, his incitement of violence — that in a second term Trump will forgo any past pretense he made to be engaged in democracy.

Trump’s convention was all designed to perform his utter contempt for democracy itself. And it succeeded, wildly, at telling that one key truth.

Reggie Walton Seems Interested Revealing Some of Mueller’s Referrals

I made at least one error in this post. I surmised, based on the exemptions DOJ had claimed in a reprocessed version of the Mueller Report released last month, that there might be ongoing investigations into Rudy Giuliani’s grifters reflected in it.

But the sentencing of George Nader a week later reminded me that it cannot be the case that DOJ did a full reprocessing of the Mueller Report. Warrants made it clear that Nader’s prosecution for child porn — which developed into a prosecution for sexually abusing a boy — was a referral from the Mueller team.

Yet the reprocessed Mueller Report continues to redact all the referrals in Appendix D not previously unsealed (that is, all but the Michael Cohen and Greg Craig ones), including one that must be the Nader prosecution, under b7A redactions signaling an ongoing investigation, quite possibly this one.

The Nader referral, because it was prosecuted, should not be redacted under any exemption. Well before this reprocessing, Nader’s prosecution was public (meaning the privacy exemptions are improper), and by the time of this reprocessing, his conviction had been entered, so was no longer ongoing.

The reprocessing did change two Stone-related referrals to the same privacy exemption used for most other referrals — b(6)/b(7)(C-4) instead of b(6)/b(7)(C-3). (These are the newly reprocessed redactions; compare with pages 240-241 of the initial FOIA release.)

The change from C-3 to C-4 signifies that the person involved was only mentioned in the report, but that category is unrelated to whether or not the person remains under a separate investigation. But all referrals still use the b7(A) exemption, even though we know at least one — that of George Nader — is no longer ongoing.

That’s a very complicated way of saying that we can be certain DOJ is claiming some of these referrals are ongoing investigations even though no investigation is ongoing, whether because — like Nader — the investigation has been completed, because the investigation was properly closed, or because Billy Barr intervened and improperly closed them (as might be the case for investigations known to be targeting Erik Prince and Jared Kushner).

And that’s why some filings this week in this lawsuit are so interesting.

A month ago, Judge Reggie Walton, after having reviewed an unredacted copy of the Mueller Report, canceled a public status conference and instead scheduled an ex parte hearing on July 20 at which DOJ would have to answer his questions about the redactions.

Knowing that it would have to answer Walton’s questions, yet claiming to respond to an earlier BuzzFeed/EPIC filing, DOJ offered up that it was preparing to reissue the report in light of the completion of the Roger Stone prosecution. It released that copy — the one that claims at least one investigation that has been completed is ongoing — on June 19.

Which brings us to this week. On Monday, Judge Walton ordered the government to answer questions he raised in an Excel spreadsheet addressing the redactions.

To accord the Department knowledge of the questions that the Court has regarding some of the redactions prior to the ex parte hearing, the Court has prepared an Excel spreadsheet that catalogues these questions, which is attached as Exhibit A to this Order. 1 To the extent that the Department is able to respond to the Court’s questions in writing, it is hereby

ORDERED that, on or before July 14, 2020, at 5:00 p.m., the Department shall file2 under seal its responses to the Court’s questions by completing Column G of Exhibit A. 3

SO ORDERED this 6th day of July, 2020.

1 Exhibit A will be issued under seal and will remain under seal unless otherwise ordered by this Court.

2 The Department shall coordinate with chambers regarding the delivery of a hard copy of its submission.

3 The Court will advise the Department as to whether the Department’s written explanations obviate the need for the ex parte hearing currently scheduled for July 20, 2020.

Judge Walton gave DOJ just over a week to answer the questions.

Yesterday, DOJ asked for more time. DOJ described that they needed to consult with other entities to respond to Walton’s questions, and explained that they had not yet gotten answers from some of the “entities” they needed to hear from.

The Department has been diligently working to comply with the Court’s Order. That work has involved consultations with numerous Department components, including the Office of Information Privacy, the National Security Division, the Federal Bureau of Investigation, and U.S. Attorney’s Offices. However, the Department requires one additional week—until 5:00 PM on July 21, 2020—to coordinate and provide responses to all of the Court’s questions. This additional time is necessary because the majority of Court’s inquiries concerning the redactions require the Department to consult with various entities with equities in the information at issue, both within and outside the Department. The Department has received information from some, but not all, of the entities. Once the Department has completed its consultation with these entities, the Department needs time to compile information received from those entities into a detailed response that addresses all of the Court’s questions. Those entities then need time to review the compiled draft responses before the responses are filed under seal with the Court.2 The Department’s goal with this process is to ensure fulsome responses to the Court’s questions that would obviate the need for a hearing. [my emphasis]

This paragraph is fairly dense, but two things are worth noting. First, after describing “Department components” it would need to consult, the filing then notes that the entities with which DOJ must consult aren’t all inside the Department. This reference may be innocent. After all, any investigations into Russians or other foreigners might implicate foreign intelligence agencies, and Treasury has an ongoing sanctions process working against Oleg Deripaska, another possible referral. So those non-departmental entities could be CIA, NSA, and Treasury, among others.

Or, those non-departmental entities could be the White House.

There has already been abundant evidence that DOJ is consulting with the White House on its response to the BuzzFeed/EPIC FOIA (or at least deferring to their goals), particularly with regards to the 302 releases. Perhaps they’re doing so in the guise of honoring executive privilege claims that Trump never claimed during the investigation. But particularly if this involves hiding details about the investigation into Don Jr and/or Jared, it would be particularly abusive here.

Meanwhile, the reference to US Attorney’s Offices, plural, strongly suggests that these questions get into b7(A) redactions, because the primary reason to need to ask US Attorney’s Offices about these redactions is if they’re investigating or prosecuting cases.

We know of Mueller referrals to, at least, DC, SDNY, and EDVA. The GRU indictment was sent back to WDPA, where it started. And there were reports that investigations into Jared, Tom Barrack, and Elliot Broidy were in EDNY (though it’s unclear which of those, if any, were referrals from Mueller).

That doesn’t necessarily mean these consultations are about unknown referrals. But a footnote to the DOJ filing strongly suggests they are.

2 Although “the question in FOIA cases is typically whether an agency improperly withheld documents at the time that it processed a FOIA request,” in the interest of saving resources and promoting efficiency, if the Department determines during its review that there no longer exists a basis for a redaction, the Department plans to indicate as such in its response to the Court’s questions, withdraw the redaction, and reprocess the Report with the redaction lifted at the appropriate time. ACLU v. Dep’t of Justice, 640 F. App’x 9, 13 (D.C. Cir. 2016) (unpublished); see also Bonner v. Dep’t of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991) (“To require an agency to adjust or modify its FOIA responses based on post-response occurrences could create an endless cycle of judicially mandated reprocessing.”). The Report was originally processed in spring 2019. A basis may no longer exist for a redaction if, for example, material was redacted concerning a prosecution that had been ongoing at the time of the redaction that has now been completed. See Citizens for Responsibility & Ethics in Wash. v. Dep’t of Justice, 746 F.3d 1082, 1097 (D.C. Cir. 2014) (stating that because a “proceeding must remain pending at the time of our decision,” an agency’s “reliance on Exemption 7(A) may become outdated when the proceeding at issue comes to a close”).[my emphasis]

DOJ directly addresses b7(A) redactions, claiming that if the investigation was ongoing when it originally did the FOIA review, it is not in violation of FOIA if it hasn’t since released the information (the filing is silent on the reprocessing done last month).

Mind you, DOJ will argue that all of these redactions are still proper under privacy protections. But on that point, DOJ (and Billy Barr personally) has outright lied publicly, claiming that these redactions only protect tangential third parties and not people like the President’s son or son-in-law.

Having looked at Walton’s questions, DOJ directly addressed redactions that originally protected ongoing investigations and contacted more than one US Attorney’s Office for consultations. That says he may consider ordering DOJ to release information about investigations that were started but did not end in prosecution.

Which makes the delay more interesting. It may be totally innocent, the slow pace of bureaucracy, particularly as offices still recover from COVID shut-downs. But one US Attorney’s Office of interest has undergone a sudden change of leadership between the time Judge Walton asked for this information and the time DOJ will respond. Last night, Billy Barr swapped EDNY US Attorney Richard Donoghue with PDAAG Seth DuCharme. While Barr has shown trust in both (he put Donoghue in charge of reviewing Ukraine related allegations), DuCharme has been one of the people who has orchestrated his efforts to undermine the Russian investigation. Whatever answers DOJ provides to Walton, then, will be answers that Barr’s newly appointed flunky will oversee. That’s by no means the most suspicious part of DuCharme’s appointment, but it is something DuCharme will review in his first week on the job.

DOJ may successfully argue that all of this should remain redacted for privacy reasons. And, with the possible exception of an Erik Prince referral, if they’re disclosed as closed investigations, it would not necessarily indicate whether they were closed through more Barr interference. But it certainly suggests Walton may be thinking that some of this should be public.

Rudy Giuliani’s Actions Remain Under Investigation

Update: This post explains why the premise of the post below is wrong. Because the George Nader referral was not revealed in the reprocessed report, we can be sure that DOJ is improperly claiming b7A redactions for investigations that have closed.

Last night, DOJ released a “reprocessed” Mueller Report in the BuzzFeed/CNN FOIA of it. (one, two, three)

I’m driving most of the day today, so probably won’t be able to comment on how little genuinely “new” it shows. But I stand by my prediction that the warrants in the Stone case are far more damning than anything released yesterday.

That said, given Billy Barr’s attempt to fire Geoff Berman as US Attorney for Southern District of New York, it’s worth noting the referrals portion of the report. That shows, among other things, that a referral from the Paul Manafort and Rick Gates influence-peddling — which could be Rudy’s grifters — is still redacted as an ongoing investigation.

In addition — as Katelyn Polantz noted on Twitter — the references to Rudy’s attempts to broker a pardon for Michael Cohen remain redacted.

SDNY is due to supersede the indictment for Rudy’s grifters, and we know from the Schulte case there is a working grand jury (albeit in White Plains, not Manhattan). So Rudy may well be in Berman’s crosshairs.