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“Fool’s Gold:” The Polls Shared with Konstantin Kilimnik Integrated Tony Fabrizio’s Polling with Cambridge Analytica’s

The parties are releasing less redacted versions of filings related to Paul Manafort’s breach determination. Virtually all reveal things I covered closely in real time.

One thing that’s new — and newsworthy — is a passage of Rick Gates’ February 7, 2018 proffer in which he describes how he came to integrate Tony Fabrizio’s polling with Cambridge Analytica and Data Trust.

This means that the polling data that would have been shared with Kilimnik involved a polling company that he was working with Sam Patten on, on top of the Fabrizio polling he had worked with for years with Paul Manafort.

As it happens I’m working on some other Cambridge Analytica issues that make this more interesting.

The same proffer also notes that the campaign decided to focus on Pennsylvania in mid-August (even though Manafort reportedly raised it with Kilimnik in their August 2, 2016 meeting), and that at that point, “Pennsylvania … was ‘fool’s gold’ and Trump was unlikely to win there.” Which would suggest that Kilimnik “knew” that the Trump campaign was going to win Pennsylvania before the campaign itself.

Update: I see I wrote this too quickly and need to clarify two things. First, when I say that Kilimnik “knew” the campaign was going to win Pennsylvania before the campaign itself, I’m referencing the report in the Mueller Report that at this August 2 briefing, Manafort included PA among the states that he believed the campaign would win. Per Gates’ explanation, that was at a time when the campaign believed they couldn’t win PA.

As for the CA claim, it is both contrary to a lot of claims made by other witnesses to Mueller, and probably early enough to present all sorts of legal problems for Trump.

675 Days In, the Durham Investigation Has Lasted Longer than the Mueller Investigation

Today marks the 675th day of the Durham investigation into the origins and conduct of the investigation that became the Mueller investigation. That means Durham’s investigation has lasted one day longer than the entire Mueller investigation, which Republicans complained lasted far too long.

The single solitary prosecution Durham has obtained in that span of time in which Mueller prosecuted George Papadopoulos, Mike Flynn, Paul Manafort, Rick Gates, Richard Pinedo, Alex Van der Zwan, Michael Cohen (for his lies about Trump’s Trump Tower Moscow deal) was the guilty plea of Kevin Clinesmith, based on conduct discovered by DOJ Inspector General Michael Horowitz.

In addition to those prosecutions, Mueller referred further Cohen charges to SDNY, Sam Patten for prosecution to DC, and Bijan Kian for prosecution in EDVA. Mueller charged Roger Stone and handed that prosecution off to DC. He further charged Konstantin Kilimnik, 12 IRA trolls, Yevgeniy Prigozhin, and 12 GRU officers. He referred Paul Manafort’s influence peddling partners, Republican and Democratic alike, for further investigation, leading to the failed prosecution of Greg Craig. Mueller referred 12 other matters — most still sealed — for further investigation, along with the Egyptian bribery investigation originally started in DC.

Meanwhile, Durham has never released a public budget, though by regulation he had to submit a budget request to DOJ in December.

Say what you will about Mueller’s investigation. But it was an investigation that showed real results. Durham, meanwhile, has been churning over the work that DOJ IG already did for as long as Mueller’s entire investigation.

20 Months: A Comparison of the Mueller and Durham Investigations

Because Jonathan Turley and John Cornyn are being stupid on the Internet, I did a Twitter thread comparing the relative output of the Mueller and Durham investigations in their first 18 months. Actually, Durham has been investigating the Russian investigation for 20 months already.

So I did a comparison of the Mueller and Durham investigations over their first 20 months. Here’s what that comparison looks like.

So, in 20 months, Durham went on a boondoggle trip to Italy with Bill Barr to chase conspiracy theories, charged one person, and had his top investigator quit due to political pressure.

In the Mueller investigation’s first 20 months, his prosecutors had charged 33 people and 3 corporations (just Roger Stone was charged after that) and, with Manafort’s forfeiture, paid for much of their investigation.

Update: I’ve corrected the Manafort forfeiture claim. While I haven’t checked precisely how much the US Treasury pocketed by selling Manafort’s properties, I think the declining value of Trump Tower condos means that Manafort’s forfeiture didn’t quite pay for the entire investigation. I’ve also corrected in which month Manafort was found guilty in EDVA.

Update: In response to the Durham appointment, American Oversight reposted the travel records from the Italy boondoggle, which was actually in September, not October (Barr also made a trip to Italy in August 2019 for the same stated purpose, so I wonder if there were two boondoggles). I’ve corrected the timeline accordingly.

The Slow Firing of Robert Mueller[‘s Replacement]

On December 5, I suggested that Speaker Pelosi delay the full House vote on impeachment until early February. I intimated there were public reasons — the possibility of a ruling on the Don McGahn subpoena and superseding charges for Lev Parnas — I thought so and private ones. One of the ones I did not share was the Stone sentencing, which at that point was scheduled for February 6. Had Pelosi listened to me (!!!) and had events proceeded as scheduled, Stone would have been sentenced before the final vote on Trump’s impeachment.

But things didn’t work out that way. Not only didn’t Pelosi heed my suggestion (unsurprisingly), but two things happened in the interim.

First, Stone invented a bullshit reason for delay on December 19, the day after the full House voted on impeachment. The prosecutors who all resigned from the case yesterday objected to the delay, to no avail, which is how sentencing got scheduled for February 20 rather than the day after the Senate voted to acquit.

Then, on January 6, Trump nominated Jessie Liu, then the US Attorney for DC, to be Undersecretary for Terrorism and Financial Crimes, basically the person who oversees the process of tracking criminal flows of finance. She won’t get that position — her nomination was pulled yesterday in advance of a Thursday confirmation hearing. But her nomination gave Barr the excuse to install a trusted aide, Timothy Shea, at US Attorney for DC last Thursday, the day after the impeachment vote and in advance of the now-delayed Stone sentencing.

Liu, who is very conservative and a true Trump supporter, had been nominated for a more obvious promotion before. On March 5, Trump nominated her to be Associate Attorney General, the number 3 ranking person at DOJ. But then she pulled her nomination on March 28 because Senators objected to her views on choice.

But let’s go back, to late August 2018. Michael Cohen and Sam Patten had just pled guilty, and Cohen was trying to find a way to sort of cooperate. Rudy Giuliani was talking about how Robert Mueller would need to shut down his investigation starting on September 1, because of the election. I wrote a post noting that, while Randy Credico’s imminent grand jury appearance suggested Mueller might be close to finishing an indictment of Stone, they still had to wait for Andrew Miller’s testimony.

Even as a I wrote it, Jay Sekulow was reaching out to Jerome Corsi to include him in the Joint Defense Agreement.

During the entire election season, both Paul Manafort and Jerome Corsi were stalling, lying to prosecutors while reporting back to Trump what they were doing.

Then, the day after the election, Trump fired Jeff Sessions and installed Matt Whitaker. Whitaker, not Rosenstein, became the nominal supervisor of the Mueller investigation. Not long after, both Manafort and Corsi made their game clear. They hadn’t been cooperating, they had been stalling to get past the time when Trump could start the process of ending the Mueller investigation.

But Whitaker only reactively kept Mueller in check. After Michael Cohen’s December sentencing made it clear that Trump was an unindicted co-conspirator in a plot to cheat to win, Whitaker started policing any statement that implicated Trump. By the time Roger Stone was indicted on January 24, 2019 — after Trump’s plan to replace Whitaker with the expert in cover ups, Bill Barr — Mueller no longer noted when Trump was personally involved, as he was in Stone’s efforts to optimize the WikiLeaks releases.

But then, when Barr came in, everything started to shut down. Mueller moved ongoing prosecutions to other offices, largely to DC, under Jessie Liu’s supervision. As Barr came to understand where the investigation might head, he tried to promote Liu out of that position, only to have GOP ideology prevent it.

Barr successfully dampened the impeach of the Mueller Report, pretending that it didn’t provide clear basis for impeaching the President. It was immediately clear, when he did that, that Barr was spinning the Stone charges to minimize the damage on Trump. But Barr did not remove Mueller right away, and the Special Counsel remained up until literally the moment when he secured Andrew Miller’s testimony on May 29.

The next day, I noted the import of raising the stakes for Trump on any Roger Stone pardon, because Stone implicated him personally. That was more important, I argued, than impeaching Trump for past actions to try to fire Mueller, which Democrats were focused on with their attempt to obtain Don McGahn’s testimony.

Still, those ongoing investigations continued under Jessie Liu, and Stone inched along towards trial, even as Trump leveraged taxpayer dollars to try to establish an excuse to pardon Manafort (and, possibly, to pay off the debts Manafort incurred during the 2016 election). As Stone’s trial laid out evidence that the President was personally involved in optimizing the release of emails Russia had stolen from Trump’s opponent, attention was instead focused on impeachment, his more recent effort to cheat.

In Stone’s trial, he invented a new lie: both Randy Credico and Jerome Corsi had falsely led him to believe they had a tie to WikiLeaks. That didn’t help Stone avoid conviction: Stone was found guilty on all counts. But it gave Stone yet another cover story to avoid revealing what his ties to WikiLeaks actually were and what he did — probably with Trump’s assent — to get it. For some reason, prosecutors decided not to reveal what they were otherwise prepared to: what Stone had really done.

Immediately after his conviction, Stone spent the weekend lobbying for a pardon. His wife appeared on Tucker Carlson’s show and someone got inside White House gates to make the case.

But, as impeachment proceeded, nothing happened, as the Probation Office started collecting information to argue that Stone should go to prison for a long while. The day Democrats finished their case against Donald Trump, though, Bill Barr made his move, replacing Liu before she was confirmed, removing a very conservative Senate confirmed US Attorney to install his flunkie, Timothy Shea. But even that wasn’t enough. Prosecutors successfully convinced Shea that they should stick to the probation office guidelines recommending a stiff sentence. When Timothy Shea didn’t do what Barr expected him to, Barr intervened and very publicly ordered up the cover up he had promised.

Effectively, Bill Barr is micro-managing the DC US Attorney’s office now, overseeing the sentencing of the man who could explain just how involved Trump was in the effort to maximize the advantage Trump got from Russia’s interference in 2016, as well as all the other prosecutions that we don’t know about.

Trump has, finally, succeeded in firing the person who oversaw the investigations into his role in the Russian operation in 2016. Just as Stone was about to have reason to explain what that role was.

Timeline

August 21, 2018: Michael Cohen pleads guilty

August 31, 2018: Sam Patten pleads guilty

September 5, 2018: Jay Sekulow reaches out to Corsi lawyer to enter into Joint Defense Agreement

September 6, 2018: In first Mueller interview, Corsi lies

September 17, 2018: In second interview, Corsi invents story about how he learned of Podesta emails

September 21, 2018: In third interview, Corsi confesses to establishing a cover story about Podesta’s emails with Roger Stone starting on August 30, 2016; NYT publishes irresponsible story that almost leads to Rod Rosenstein’s firing

October 25, 2018: Rick Gates interviewed about the campaign knowledge of Podesta emails

October 26, 2018: Steve Bannon admits he spoke with Stone about WikiLeaks

October 31, 2018: Prosecutors probably show Corsi evidence proving he lied about source of knowledge on Podesta emails

November 1 and 2, 2018: Corsi continues to spew bullshit in interviews

November 6, 2018: Election day

November 7, 2018: Jeff Sessions is fired; Matt Whitaker named Acting Attorney General

November 9, 2018: Corsi appears before grand jury but gives a false story about how he learned of Podesta emails; Mueller threatens to charge him with perjury

November 15, 2018: Trump tweets bullshit about Corsi’s testimony being coerced

November 23, 2018: Corsi tells the world he is in plea negotiations

November 26, 2018: Corsi rejects plea

December 7, 2018: Trump nominates Bill Barr Attorney General

January 18, 2019: Steve Bannon testifies to the grand jury (and for the first time enters into a proffer)

January 24, 2019: Roger Stone indicted for covering up what really happened with WikiLeaks

February 14, 2019: Bill Barr confirmed as Attorney General

March 5, 2019: Jessie Liu nominated to AAG; Bill Barr briefed on Mueller investigation

March 22, 2019: Mueller announces the end of his investigation

March 24, 2019: Bill Barr releases totally misleading version of Mueller results, downplaying Stone role

March 28, 2019: Liu pulls her nomination from AAG

April 19, 2019: Mueller Report released with Stone details redacted

May 29, 2019: As Mueller gives final press conference, Andrew Miller testifies before grand jury

November 12, 2019: Prosecutors apparently change Stone trial strategy, withhold details of Stone’s actual back channel

November 15, 2019: Roger Stone convicted on all counts

January 6, 2020: Jessie Liu nominated to Treasury

January 16, 2020: Probation Office issues Presentence Report calling for 7-9 years

January 30, 2020: Bill Barr replaces Liu with Timothy Barr, effective February 3; DOJ submits objection to Presentence Report

February 3, 2020: Timothy Shea becomes acting US Attorney

February 5, 2020 : Senate votes to acquit Trump

February 6, 2020: Initial sentencing date for Roger Stone

February 10, 2020: Stone sentencing memoranda submitted

February 11, 2020: DOJ overrules DC on Stone sentencing memorandum, all four prosecutors resign from case

February 20, 2020: Current sentencing date for Roger Stone

Eleven Days after Releasing Their Report, DOJ IG Clarified What Crimes FBI Investigated

The DOJ IG’s office has made two sets of corrections to their Report on Carter Page, the first on December 11 (two days after its release) and a second on December 20 (eleven days after its release). Three of those corrections fix overstatements of their case against the FBI (but which don’t catch all their overstatements and errors in making that case). One correction explains that more information has been declassified (without explaining an inconsistent approach to Sergei Millian as compared with other people named in the Mueller Report). And one correction — one of the changes made Friday — fixes a legal reference.

Here’s that correction:

On page 57, we added the specific provision of the United States Code where the Foreign Agents Registration Act (FARA) is codified, and revised a footnote in order to reference prior OIG work examining the Department’s enforcement and administration of FARA.

The correction changed this passage

Crossfire Hurricane was opened by [FBI’s Cyber and Counterintelligence Division] and was assigned a case number used by the FBI for possible violations of the Foreign Agents Registration Act (FARA), Title 18 U.S.C. § 951, which makes it a crime to act as an agent of a foreign government without making periodic public disclosures of the relationship. 170

170 The FARA statute defines an “agent of a foreign government” as an individual who agrees to operate in the United States subject to the direction or control of a foreign government or official. 18 U.S.C. § 951(d).

To read like this:

Crossfire Hurricane was opened by CD and was assigned a case number used by the FBI for possible violations of the Foreign Agents Registration Act (FARA), 22 U.S.C. § 611, et seq., and 18 U.S.C. § 951 (Agents of Foreign Governments). 170

170 We have previously found differing understandings between FBI agents and federal prosecutors and NSD officials about the intent of FARA as well as what constitutes a “FARA case.” See DOJ OIG, Audit of the National Security Division~ Enforcement and Administration of the Foreign Agents Registration Act, Audit Division 16-24 (September 2016), https://oig.justice.gov/reports/2016/al624.pdf (accessed December 19, 2019)

The error appears harmless on its face, just a minor citation error that conflated FARA with 951 in the original report. But both in this instantiation and in the IG Report as a whole, the error may totally undermine its analysis and, indeed, the analytical framework of this entire IG investigation. That’s because if the people conducting this analysis did not understand the difference between the two statutes — and the error goes well beyond the citation enhancement described in the correction, because it exhibits utter lack of knowledge that there are two foreign agent statutes — then the Report’s analysis on the First Amendment may be problematic (and almost certainly is with respect to Page).

As I’ve written at length and as the cited IG Report from 2016 explains, the boundary between 22 USC 611 (FARA) and 18 USC 951 (Foreign Agent), both laws about what makes someone a “foreign agent,” remains ambiguous. Maria Butina, Anna Chapman, and the Russians who tried to recruit Carter Page were prosecuted under 18 USC 951 (though often that gets charged as a conspiracy because proving it requires less classified evidence), Paul Manafort, Rick Gates, and Sam Patten pled guilty to FARA violations. Mike Flynn’s former partner, Bijan Kian, was charged with conspiring to file a false FARA filing and acting as a Foreign Agent, invoking both statutes in one conspiracy charge; partly because of the way he was charged and partly because Flynn reneged on his statements regarding their activities, Judge Anthony Trenga acquitted him after he was found guilty, which may suggest the boundary between the two will present legal difficulties for prosecuting such cases.

18 USC 951 is sometimes called “espionage light,” though that phrase ignores that DOJ will often charge a known foreign spy under 951 — like the SVR (foreign intelligence) agents who tried to recruit Page — because proving it requires far less classified information. It requires the person be working on behalf of a foreign government, not just a foreign principal, and can but does not necessarily include information collection. FARA, however, only requires a person to be working on behalf of a foreign principal (which might be a political party or a company), and generally pertains to political influence peddling (it includes political activities, lobbying, and PR in its definitions, along with some financial stuff). 18 USC 951 will more often be clandestine, though as Butina’s case shows, it does not have to be, whereas FARA may cover activities that are overt if the person engaging in them does not register properly. A recent Lawfare post describes how DOJ’s superseding indictment of the Internet Research Agency relies on an interesting and potentially troubling new application of FARA.

In Mueller’s description of how the two laws might be applied criminally, he suggests 951 does not require willfulness, but a criminal violation of FARA would.

The Office next assessed the potential liability of Campaign-affiliated individuals under federal statutes regulating actions on behalf of, or work done for, a foreign government.

a. Governing Law

Under 18 U.S.C. § 951, it is generally illegal to act in the United States as an agent of a foreign government without providing notice to the Attorney General. Although the defendant must act on behalf of a foreign government (as opposed to other kinds of foreign entities), the acts need not involve espionage; rather, acts of any type suffice for liability. See United States v. Duran, 596 F.3d 1283, 1293-94 (11th Cir. 2010); United States v. Latchin, 554 F.3d 709, 715 (7th Cir. 2009); United States v. Dumeisi, 424 F.3d 566, 581 (7th Cir. 2005). An “agent of a foreign government” is an ” individual” who “agrees to operate” in the United States “subject to the direction or control of a foreign government or official.” 18 U.S.C. § 951 ( d).

The crime defined by Section 951 is complete upon knowingly acting in the United States as an unregistered foreign-government agent. 18 U.S.C. § 95l(a). The statute does not require willfulness, and knowledge of the notification requirement is not an element of the offense. United States v. Campa, 529 F.3d 980, 998-99 (11th Cir. 2008); Duran, 596 F.3d at 1291-94; Dumeisi, 424 F.3d at 581.

The Foreign Agents Registration Act (FARA) generally makes it illegal to act as an agent of a foreign principal by engaging in certain (largely political) activities in the United States without registering with the Attorney General. 22 U.S.C. §§ 611-621. The triggering agency relationship must be with a foreign principal or “a person any of whose activities are directly or indirectly supervised, directed, controlled, financed, or subsidized in whole or in major part by a foreign principal.” 22 U.S.C. § 61 l(c)(l). That includes a foreign government or political party and various foreign individuals and entities. 22 U.S.C. § 611(6). A covered relationship exists if a person “acts as an agent, representative, employee, or servant” or “in any other capacity at the order, request, or under the [foreign principal’s] direction or control.” 22 U.S.C. § 61 l(c)(l). It is sufficient if the person “agrees, consents, assumes or purports to act as, or who is or holds himself out to be, whether or not pursuant to contractual relationship, an agent of a foreign principal.” 22 U.S.C. § 61 l(c)(2).

The triggering activity is that the agent “directly or through any other person” in the United States (1) engages in “political activities for or in the interests of [the] foreign principal,” which includes attempts to influence federal officials or the public; (2) acts as “public relations counsel, publicity agent, information-service employee or political consultant for or in the interests of such foreign principal”; (3) ” solicits, collects, disburses, or dispenses contributions, loans, money, or other things of value for or in the interest of such foreign principal”; or ( 4) “represents the interests of such foreign principal” before any federal agency or official. 22 U .S.C. § 611 ( c )(1 ).

It is a crime to engage in a “[w]illful violation of any provision of the Act or any regulation thereunder.” 22 U.S.C. § 618(a)(l). It is also a crime willfully to make false statements or omissions of material facts in FARA registration statements or supplements. 22 U.S.C. § 618(a)(2). Most violations have a maximum penalty of five years of imprisonment and a $10,000 fine. 22 U.S.C. § 618. [my emphasis]

So back to the DOJ IG Report. As the revised footnote notes, at least until 2016, the FBI used the same case number for FARA and 951 cases. That probably makes sense from an investigative standpoint, as it’s often not clear whether someone is working for a foreign company or whether that company is a cut-out hiding a foreign government paymaster (as the government alleged in Flynn’s case). But it makes tracking how these cases get investigated more difficult, and obscures those cases where there’s a clear 951 predicate from the start.

The original text of this passage of the IG Report suggests that at least the person who wrote it — and possibly the entire DOJ IG team investigating this case — were not aware of what I’ve just laid out, that there’s significant overlap between 951 and FARA, but that clear 951 cases and clear FARA cases will both use this case designation. That’s important because one of these statutes involves politics (and so presents serious First Amendment considerations), whereas the other one does not have to (and did not, in Carter Page’s case).

It’s unclear whether this error was repeated in several other places in the Report. The passage describing how the individualized investigations were opened says these were all FARA cases:

After conducting preliminary open source and FBI database inquiries, intelligence analysts on the Crossfire Hurricane team identified three individuals–Carter Page, Paul Manafort, and Michael Flynn–associated with the Trump campaign with either ties to Russia or a history of travel to Russia. On August 10, 2016, the team opened separate counterintelligence FARA cases on Carter Page, Manafort, and Papadopoulos, under code names assigned by the FBI. On August 16, 2016, a counterintelligence FARA case was opened on Flynn under a code name assigned by the FBI. The opening ECs for all four investigations were drafted by either of the two Special Agents assigned to serve as the Case Agents for the investigation (Case Agent 1 or Case Agent 2) and were approved by Strzok, as required by the DIOG.

But if the person writing this did not know that a “foreign agent” case might be FARA, 951, or both, then it would mean this passage may misstate what the investigations were.

And the analysis over whether the investigation was appropriately predicated uses just FARA.

The FBI’s opening EC referenced the Foreign Agents Registration Act (FARA) and stated, “[b]ased on the information provided by [the FBI Legal Attache], this investigation is being opened to determine whether individual(s) associated with the Trump campaign are witting of and/or coordinating activities with the Government of Russia.”

In other words, it seems that this entire report is based on the assumption that the FBI was conducting an investigation into whether these four men were engaged in influence peddling that should have been registered and not also considering whether they were acting as clandestine agents for Russia.

That certainly appears to be the case for some of these men. For example, the first known warrant investigating Paul Manafort — which was focused on his Ukrainian work — listed only FARA, not 951. The derogatory language on George Papadopoulos speaks in terms of explicit, shameless influence peddling (which I’ll review in a follow-up post).

That said, the predication of the Flynn investigation would have included his past ties to the GRU, the agency that had hacked the DNC, and non-political relationships with Russian companies RT, Kaspersky, and Volga-Dnepr Airlines. He notified the Defense Intelligence Agency of all those things, though the government claims some of his briefings on this stuff includes inculpatory information. And he excused his payments from other Russian sources because his speakers bureau, and not Russia itself, made the payments, which might be considered a cut-out.

When Mueller got around to describing his prosecutorial decisions about these four men, he described both statutes (and explained that the office found that Manafort and Gates had violated FARA with Ukraine, Flynn had violated what it calls FARA with Turkey but elsewhere they’ve said included 951, and there was evidence Papadopoulos was an Agent of Israel under either 951 or FARA but not sufficient to charge.

Finally, the Office investigated whether one of the above campaign advisors-George Papadopoulos-acted as an agent of, or at the direction and control of, the government of Israel. While the investigation revealed significant ties between Papadopoulos and Israel (and search warrants were obtained in part on that basis), the Office ultimately determined that the evidence was not sufficient to obtain and sustain a conviction under FARA or Section 951

So it’s unclear whether the investigations into Papadopoulos, Flynn, and Manafort really were just FARA cases when they began, or were 951.

But the language Mueller used to describe his declination for Page (which includes a redacted sentence about his activities) makes it sound like his FISA applications alleged him to be — as would have to be the case for a FISA order — an Agent of Russia, implicating 951.

On four occasions, the Foreign Intelligence Surveillance Court (FISC) issued warrants based on a finding of probable cause to believe that Page was an agent of a foreign power. 50 U.S.C. §§ 1801 (b ), 1805(a)(2)(A). The FISC’s probable-cause finding was based on a different (and lower) standard than the one governing the Office’s decision whether to bring charges against Page, which is whether admissible evidence would likely be sufficient to prove beyond a reasonable doubt that Page acted as an agent of the Russian Federation during the period at issue. Cf United States v. Cardoza, 713 F.3d 656, 660 (D.C. Cir. 2013) ( explaining that probable cause requires only “a fair probability,” and not “certainty, or proof beyond a reasonable doubt, or proof by a preponderance of the evidence”).

Indeed, the IG Report provides abundant reason to believe this is the case. That’s because the FBI Field Office opened an investigation into Page in April 2016 based on a March 2016 interview pertaining exclusively to what are called “continued contacts” with SVR intelligence officers who tried to recruit him starting at least in 2009, interactions that they had been tracking for seven years.

An FBI counterintelligence agent in NYFO (NYFO CI Agent) with extensive experience in Russian matters told the OIG that Carter Page had been on NYFO’s radar since 2009, when he had contact with a known Russian intelligence officer (Intelligence Officer 1). According to the EC documenting NYFO’s June 2009 interview with Page, Page told NYFO agents that he knew and kept in regular contact with Intelligence Officer 1 and provided him with a copy of a non-public annual report from an American company. The EC stated that Page “immediately advised [the agents] that due to his work and overseas experiences, he has been questioned by and provides information to representatives of [another U.S. government agency] on an ongoing basis.” The EC also noted that agents did not ask Page any questions about his dealings with the other U.S. government agency during the interviews. 180

NYFO CI agents believed that Carter Page was “passed” from Intelligence Officer 1 to a successor Russian intelligence officer (Intelligence Officer 2) in 2013 and that Page would continue to be introduced to other Russian intelligence officers in the future. 181 In June 2013, NYFO CI agents interviewed Carter Page about these contacts. Page acknowledged meeting Intelligence Officer 2 following an introduction earlier in 2013. When agents intimated to Carter Page during the interview that Intelligence Officer 2 may be a Russian intelligence officer, specifically, an “SVR” officer, Page told them he believed in “openness” and because he did not have access to classified information, his acquaintance with Intelligence Officer 2 was a “positive” for him. In August 2013, NYFO CI agents again interviewed Page regarding his contacts with Intelligence Officer 2. Page acknowledged meeting with Intelligence Officer 2 since his June 2013 FBI interview.

In January 2015, three Russian intelligence officers, including Intelligence Officer 2, were charged in a sealed complaint, and subsequently indicted, in the Southern District of New York (SDNY) for conspiring to act in the United States as unregistered agents of the Russian Federation. 182 The indictment referenced Intelligence Officer 2’s attempts to recruit “Male-1” as an asset for gathering intelligence on behalf of Russia.

On March 2, 2016, the NYFO CI Agent and SDNY Assistant United States Attorneys interviewed Carter Page in preparation for the trial of one of the indicted Russian intelligence officers. During the interview, Page stated that he knew he was the person referred to as Male-1 in the indictment and further said that he had identified himself as Male-1 to a Russian Minister and various Russian officials at a United Nations event in “the spirit of openness.” The NYFO CI Agent told us she returned to her office after the interview and discussed with her supervisor opening a counterintelligence case on Page based on his statement to Russian officials that he believed he was Male-1 in the indictment and his continued contact with Russian intelligence officers.

The FBI’s NYFO CI squad supervisor (NYFO CI Supervisor) told us she believed she should have opened a counterintelligence case on Carter Page prior to March 2, 2016 based on his continued contacts with Russian intelligence officers; however, she said the squad was preparing for a big trial, and they did not focus on Page until he was interviewed again on March 2. She told us that after the March 2 interview, she called CD’s Counterespionage Section at FBI Headquarters to determine whether Page had any security clearances and to ask for guidance as to what type of investigation to open on Page. 183 On April 1, 2016, the NYFO CI Supervisor received an email from the Counterespionage Section advising her to open a [~9-character redaction] investigation on Page. The NYFO CI Supervisor said that [3 lines redacted] In addition, according to FBI records, the relevant CD section at FBI Headquarters, in consultation with OGC, determined at that time that the Page investigation opened by NYFO was not a SIM, but also noted, “should his status change, the appropriate case modification would be made.” The NYFO CI Supervisor told us that based on what was documented in the file and what was known at that time, the NYFO Carter Page investigation was not a SIM.

Although Carter Page was announced as a foreign policy advisor for the Trump campaign prior to NYFO receiving this guidance from FBI Headquarters, the NYFO CI Supervisor and CI Agent both told the OIG that this announcement did not influence their decision to open a case on Page and that their concerns about Page, particularly his disclosure to the Russians about his role in the indictment, predated the announcement. However, the NYFO CI Supervisor said that the announcement required noting his new position in the case file should his new position require he obtain a security clearance.

On April 6, 2016, NYFO opened a counterintelligence [8-9 character redaction] investigation on Carter Page under a code name the FBI assigned to him (NYFO investigation) based on his contacts with Russian intelligence officers and his statement to Russian officials that he was “Male-1” in the SONY indictment.

181 CI agents refer to this as “slot succession,” whereby a departing intelligence officer “passes” his or her contacts to an incoming intelligence officer.

182 Intelligence Officer 3 pied guilty in March 2016. The remaining two indicted Russian intelligence officers were no longer in the United States.

183 CI agents in NYFO told us that the databases containing security clearance information were located at FBI Headquarters. When a subject possesses a security clearance, the FBI opens an espionage investigation; if the subject does not possess a security clearance, the FBI typically opens a counterintelligence investigation. [my emphasis]

I’ve discussed Page’s designation as a “contact approval” until 2013 by CIA here, though to reiterate, his last contact with the CIA was in 2011, and while they knew about his contacts with Alexander Bulatov, a Russian intelligence officer working under cover as a consular official in NY, they apparently did not know or ask him about his contacts with Victor Podobnyy. This previous relationship with the CIA absolutely should have been disclosed, but does not cover activity in 2015, when he would have discussed his inclusion in the Podobnyy/Evgeny Buryakov indictment with a person described as a Russian minister.

The NYFO believed they should have opened an investigation into Page even before the interview, on March 2, 2016, when he admitted telling Russians he was Male-1 in the indictment and (per the Mueller Report), said he “didn’t do anything,” perhaps disavowing any help to the FBI investigation. The IG Report notes that Page provided Intelligence Officer 1 (who must be Bulatov) a copy of a non-public annual report from an American company.” The Podobnyy indictment notes that Page provided Podobnyy — someone he knew to be a foreign intelligence officer — documents about the energy business. The NYFO CI Agent’s description of Page’s, “continued contact with Russian intelligence officers” seems to suggest the person described as a Russian Minister is known or believed to be an intelligence officer (otherwise she would not have described this as ongoing contact).

Notably, NYFO’s focus was not on whether Page was engaged in political activities, whether he was a Sensitive Investigative Matter (SIM) or not. Indeed, at the time they opened the investigation in April 2016, they didn’t know he had a tie to the Trump campaign.

Rather, their focus was on whether Page, whose deployments in the Navy included at least one intelligence operation, had a security clearance, because that dictated whether the investigation into him would be an Espionage one or a Counterintelligence one. The actual type of investigation remains redacted (the word cannot be either “counterintelligence,” because of length, or “espionage” because the article preceding it forecloses the word starting with a vowel), but it is described as a counterintelligence investigation. Given the nature of the non-public information Page shared, that redacted word may pertain to economic information, perhaps to either 18 USC 1831 or 1832. Even going forward, NYFO was primarily interested in whether he would obtain a clearance that would increase the risk that the information he was happily sharing with known Russian intelligence officers would damage the US.

The counterintelligence case into Page was opened — and the FISA order targeting him was significantly predicated on — his voluntary sharing of non-public economic information with known Russian intelligence officers over a period of years. That’s almost certainly not a FARA investigation because at that point NYFO had no knowledge that Page was even engaging in politics.

And that’s important because of the IG Report’s analysis of whether and how obtaining a FISA order on Page implicated his First Amendment activities.

In its analysis of how FISA treats First Amendment activities, the Report includes the following discussion, once again citing FARA, relying on House and Senate reports on the original passage of FISA.

FISA provides that a U.S. person may not be found to be a foreign power or an agent of a foreign power solely upon the basis of activities protected by the First Amendment. 129 Congress added this language to reinforce that lawful political activities may not serve as the only basis for a probable cause finding, recognizing that “there may often be a narrow line between covert action and lawful activities undertaken by Americans in the exercise of the [F]irst [A]mendment rights,” particularly between legitimate political activity and “other clandestine intelligence activities. “130 The Report by SSCI accompanying the passage of FISA states that there must be “willful” deception about the origin or intent of political activity to support a finding that it constitutes “other clandestine intelligence activities”:

If…foreign intelligence services hide behind the cover of some person or organization in order to influence American political events and deceive Americans into believing that the opinions or influence are of domestic origin and initiative and such deception is willfully maintained in violation of the Foreign Agents Registration Act, then electronic surveillance might be justified under [“other clandestine intelligence activities”] if all the other criteria of [FISA] were met. 131

129 See 50 U.S.C. §§ 1805(a)(2)(A), 1824(a)(2)(A).

130 H. Rep. 95-1283 at 41, 79-80; FISA guidance at 7-8; see also Rosen, 447 F. Supp. 2d at 547-48 (probable cause finding may be based partly on First Amendment protected activity).

131 See S. Rep. 95-701 at 24-25. The Foreign Agents Registration Act, 22 U.S.C. § 611 et seq., is a disclosure statute that requires persons acting as agents of foreign principals such as a foreign government or foreign political party in a political or quasi-political capacity to make periodic public disclosure of their relationship with the foreign principal, as well as activities, receipts and disbursements in support of those activities.

The first citation to the House report says only that an American must be working with an intelligence service and must involve a violation of Federal criminal law, which may include registration statutes. The second citation says only that political activities should never be the sole basis of a finding of probable cause that a US person was an agent of a foreign power. Neither would apply to Carter Page, since the evidence against him also included sharing non-public information that had nothing to do with politics, and he shared that information with known intelligence officers.

The citation to the Senate report is a miscitation. The quoted language appears on page 29. The cited passage spanning pages 24 and 25, however, emphasizes that someone can only be targeted for activities that involve First Amendment activities if they involve an intelligence agency.

It is the intent of this requirement that even if there is some substantial contact between domestic groups or individual citizens and a foreign power, as defined in this bill, no electronic surveillance wider this subparagraph may be authorized unless the American is acting under the direction of an intelligence service of a foreign power.

With Page, the FBI had his admitted and sustained willingness to share non-public information with known intelligence officers, the Steele allegations suggesting he might be involved in a conspiracy tied to the hack and leak of Hillary’s emails, and his stated plans to set up a think tank that would serve as the kind of cover organization that would hide Russia’s role in pushing Page’s pro-Russian views.

The question of whether Page met probable cause for being a foreign agent doesn’t, in my mind, pivot on any analysis of First Amendment activities, because he had a clear, knowing tie with Russian intelligence officers with whom he was sharing non-public information. The question pivots on whether he could be said to doing so clandestinely, since he happily admitted the fact, if asked, to both the CIA and FBI. Both the Steele allegations (until such point, after his first application, that they had been significantly undermined) and Page’s enthusiasm to set up a Russian-funded think tank probably get beyond that bar.

And remember, for better and worse, this is probable cause, not proof beyond a reasonable doubt.

The DOJ IG Report analysis all seems premised on assessing FARA violations, not violations of 18 USC 951. That may be the appropriate lens through which to assess the actions of Papadopoulos, Flynn, and Manafort.

But the evidence presented in the report seems to suggest that’s a mistaken lens through which to assess the FISA application targeting Carter Page, the only Trump flunky who was so targeted. And given the evidence that at least some of the people who wrote the report did not understand how the two statutes overlap when they conducted the analysis, it raises real questions about whether all that analysis rests on mistaken understandings of the law.

Update: I’ve corrected the introduction of this to note that DOJ or FBI declassifies information, not DOJ IG.

OTHER POSTS ON THE DOJ IG REPORT

Overview and ancillary posts

DOJ IG Report on Carter Page and Related Issues: Mega Summary Post

The DOJ IG Report on Carter Page: Policy Considerations

Timeline of Key Events in DOJ IG Carter Page Report

Crossfire Hurricane Glossary (by bmaz)

Facts appearing in the Carter Page FISA applications

Nunes Memo v Schiff Memo: Neither Were Entirely Right

Rosemary Collyer Responds to the DOJ IG Report in Fairly Blasé Fashion

Report shortcomings

The Inspector General Report on Carter Page Fails to Meet the Standard It Applies to the FBI

“Fact Witness:” How Rod Rosenstein Got DOJ IG To Land a Plane on Bruce Ohr

Eleven Days after Releasing Their Report, DOJ IG Clarified What Crimes FBI Investigated

Factual revelations in the report

Deza: Oleg Deripaska’s Double Game

The Damning Revelations about George Papadopoulos in a DOJ IG Report Claiming Exculpatory Evidence

A Biased FBI Agent Was Running an Informant on an Oppo-Research Predicated Investigation–into Hillary–in 2016

The Carter Page IG Report Debunks a Key [Impeachment-Related] Conspiracy about Paul Manafort

The Flynn Predication

Sam Clovis Responded to a Question about Russia Interfering in the Election by Raising Voter ID

Two Trajectories: Sleazy Influence Peddler Paul Manafort and Foreign Agent Prosecutor Brandon Van Grack

Like many, while I expected TS Ellis to give Paul Manafort a light sentence, I’m shocked by just how light it was.

Ellis gave Manafort 47 months of prison time for crimes that the sentencing guidelines say should start at a 19 year sentence. Even if Amy Berman Jackson gives Manafort the stiffest sentence she can give him — 10 years — and makes it consecutive, he’ll still be facing less than the what sentencing guidelines recommend. Ellis even declined to fine Manafort beyond the $24 million he’ll have to pay in restitution (Zoe Tillman lays out the money issues here).

There are a number of reasons to be outraged by this.

Ellis explicitly suggested that Manafort’s crimes were less serious than similar organized crime that people of color would commit. In the wake of this sentence, any number of people (especially defense attorneys) have pointed to non-violent criminals facing more prison time than Manafort. That said, I agree with those who suggest we should aim to bring those other sentences down in line with what the civilized world imposes, and not instead bump white collar criminals up to the barbaric levels that come out of the drug war.

Ellis gave this sentence even though Manafort expressed no remorse. Ellis commented that “I was surprised that I did not hear you express regret for engaging in wrongful conduct. In other words, you didn’t say, ‘I really, really regret not doing what the law requires,'” but nevertheless sentenced him as if he had.

Perhaps most infuriating were the backflips Ellis did to spin Paul Manafort as a good man. He emphasized that Manafort was “not before the court for any allegation that he or anybody at his direction colluded with the Russian government to influence the 2016 presidential election,” which is true; but Ellis received the breach determination materials showing that at a time when Manafort was purportedly cooperating, he instead lied about sharing polling data with a suspected Russian asset while discussing a Ukrainian peace deal that he knew amounted to sanctions relief, a quid pro quo. Because those materials go to the issue of whether Manafort took responsibility and was a risk for recidivism, they were fair game for consideration, but Ellis didn’t consider them.

Indeed, because of time served, Ellis effectively sentenced Manafort to an equivalent sentence that Michael Cohen faces having committed an order of magnitude less financial fraud, pled guilty, and provided limited cooperation to the government. Effectively, then, Ellis has sanctioned Manafort’s successful effort to avoid cooperating in the case in chief, on how he and Trump conspired with Russia to exploit our democratic process.

Instead of referring to the materials on Manafort’s refusal to cooperate, Ellis instead just regurgitated defense materials and claimed that aside from stealing millions of dollars from taxpayers and whatever else went on before Amy Berman Jackson, Manafort had “lived an otherwise blameless life.”

And that’s where I step away from a generalized discussion of the barbaric nature of our criminal justice system to look specifically at the barbaric nature of what Paul Manafort has done with his life. I feel much the way Franklin Foer does.

In an otherwise blameless life, Paul Manafort lobbied on behalf of the tobacco industry and wangled millions in tax breaks for corporations.

In an otherwise blameless life, he helped Philippine President Ferdinand Marcos bolster his image in Washington after he assassinated his primary political opponent.

In an otherwise blameless life, he worked to keep arms flowing to the Angolan generalissimo Jonas Savimbi, a monstrous leader bankrolled by the apartheid government in South Africa. While Manafort helped portray his client as an anti-communist “freedom fighter,” Savimbi’s army planted millions of land mines in peasant fields, resulting in 15,000 amputees.

[snip]

In an otherwise blameless life, he spent a decade as the chief political adviser to a clique of former gangsters in Ukraine. This clique hoped to capture control of the state so that it could enrich itself with government contracts and privatization agreements. This was a group closely allied with the Kremlin, and Manafort masterminded its rise to power—thereby enabling Ukraine’s slide into Vladimir Putin’s orbit.

[snip]

In an otherwise blameless life, he produced a public-relations campaign to convince Washington that Ukrainian President Viktor Yanukovych was acting within his democratic rights and duties when he imprisoned his most compelling rival for power.

In an otherwise blameless life, he stood mute as Yanukovych’s police killed 130 protesters in the Maidan.

Paul Manafort invented the profession of sleazy influence peddler. His own daughter once acknowledged, “Don’t fool yourself. That money we have is blood money.” And our democracy, as well as more corrupt regimes around the globe where Manafort was happy to work, are much less just because of Manafort’s life’s work.

Which is why I take more solace in something that happened the night before Manafort’s sentencing: A CNN report that DOJ has put Brandon Van Grack — a prosecutor who, under Mueller, prosecuted Mike Flynn and his sleazy influence peddler business partners — in charge of a renewed effort to crack down on unregistered sleazy influence peddlers.

The initiative at the Justice Department to pursue violations of the Foreign Agents Registration Act, which requires that an entity representing a foreign political party or government file public reports detailing the relationship, will be overseen by Brandon Van Grack, who left Mueller’s team in recent months to rejoin the national security division.

Van Grack’s appointment to the newly created position and the Justice Department’s interest in expanding its pursuit of foreign influence cases stemmed largely from the impact of Russian operations on the 2016 presidential election, John Demers, the head of the national security division, said Wednesday at a conference on white-collar crime.

With Van Grack’s new role, the Justice Department will shift “from treating FARA as an administrative obligation and regulatory obligation to one that is increasingly an enforcement priority,” Demers said.

He also pointed to the impact of a recent settlement with one of the country’s highest-profile law firms — Skadden, Arps, Slate, Meagher & Flom LLP — on the department’s decision to escalate its enforcement in that area.

[snip]

Demers added that the Justice Department is considering seeking congressional authorization for administrative subpoena power to enforce the Foreign Agents Registration Act, which it currently lacks.

“That’s something that we’re taking a hard look at,” he said. Referencing Skadden, he added: “Do I think the firm would have behaved differently if they had received a subpoena versus they had just received a letter? Yes.”

This marks a decision to treat FARA violations — sleazy influence peddling that hides the ultimate foreign customer — as a real risk to our country. As I have laid out in my comparison of Manafort’s “otherwise blameless life” and Maria Butina’s efforts to infiltrate right wing politics, a venal insider with an already rich political network will be far more effective (and insidious) than even a beautiful woman backed by a mobbed up foreign government official and abetted by her own washed out Republican insider.

I don’t know what Mueller is doing with all the evidence of a conspiracy that he continues to protect. I don’t know that he’ll be able to deliver a prosecutorial conclusion that will deliver justice for the sleazy things that Trump did to win the election. Prosecuting very powerful people is very difficult, and we shouldn’t forget that.

But one other point of this entire investigative process was to learn lessons, to make it harder for hostile outsiders to hijack our democratic process going forward.

In letting Manafort off with a metaphorical wrist-slap, TS Ellis did nothing to deter others who, like Manafort, will sell out our country for an ostrich skin jacket. Even ABJ will face some difficult challenges in DC when she tries to sentence FARA crimes (particularly those of Sam Patten, who cooperated) without precedents to do so.

But the way to build those precedents — the way to establish a record that causes a Skadden Arps or a Rob Kelner to treat FARA registration as the official declaration to the government that it is — is to pursue more of these cases, against sleazy influence peddlers working for all foreign entities, not just the ones we despise.

So Manafort may get off easy for helping Russia interfere in our election in a bid to line up his next gig white-washing brutal oligarchs.

But along the way, our justice system may be adapting to the certainty that he did not live an otherwise blameless life

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Paul Manafort Sold Out Donald Trump — and His Anonymous Leakers Are Lying about It Publicly

Back when Paul Manafort’s lawyers redaction fail first revealed that Manafort lied about sharing polling data with Konstantin Kilimnik, someone made the following claim to the NYT:

Both Mr. Manafort and Rick Gates, the deputy campaign manager, transferred the data to Mr. Kilimnik in the spring of 2016 as Mr. Trump clinched the Republican presidential nomination, according to a person knowledgeable about the situation. Most of the data was public, but some of it was developed by a private polling firm working for the campaign, according to the person.

Given what appears in the breach hearing transcript, that appears to be a totally blatant lie. And Manafort’s lawyers appear to have made similar cynical lies in that hearing to deny what Manafort had actually done.

For reference, here are the other filings on Manafort’s breach:

The data was incredibly detailed

The discussion of the polling data starts on page 82. Judge Amy Berman Jackson starts by noting that Manafort tried to deny the data had been shared and claimed at one point that it was just public data.

He said it just was public information.

Later in the hearing, when Manafort’s lawyers suggest that this was mostly public data — part of the claim that someone leaked to the NYT — ABJ asked then why the pollster (this is probably a reference to Tony Fabrizio, whom Mueller met with in the weeks before Rick Gates flipped and after Gates first revealed that they had shared the data) was making so much money.

In response, Richard Westling, from the same defense team working so hard to claim this was public data, then wildly shifted, arguing that the data was so detailed it would be meaningless to someone like him. In response, ABJ notes that that’s what makes the sharing of it so important.

But, as Weissmann lays out, not only had Kilimnik worked for Manafort (and therefore with this pollster, Fabrizio) for many years — so would know how to read the data — Manafort walked him through the data at the August 2 meeting.

Later in this exchange, ABJ has an ex parte discussion with the prosecutors, to see if something she’s been made aware of can be shared with Manafort’s lawyers. Remember: she is also presiding over Sam Patten’s case. Patten worked with both Gates and Manafort, and was working with Kilimnik in this period. He not only might be able to corroborate the data-sharing story, but he would be able to help Kilimnik use it, even if the years of working with Manafort hadn’t already prepared Kilimnik to do so himself. When Patten submitted a status report on December 31, it was filed under seal; his next status report is due on Monday.

The data was shared with multiple people, which Manafort considered a win-win

Andrew Weissmann lays out that Manafort ultimately admitted that the data would be shared both with a named individual and with some other entity. And he describes Manafort considering the sharing of that data to be a win-win, perhaps suggesting that it might help Donald Trump, but even if it didn’t, it would get him work in Ukraine and Russia down the road.

Weissmann returns to that — sharing this data, for Manafort, was a win-win, unless the fact that he shared the data subsequently became public.

Mr. Manafort had said there was no downside to Mr. Manafort doing it.

[snip]

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

Of course, now it’s public and Manafort is willing to lie himself into further prison time to try to downplay that he shared detailed polling data with someone the FBI maintains has ties to the same Russian agency that hacked the DNC right in the middle of the campaign.

Update: JL notes that neither of the two Ukrainian oligarchs identified by NYT’s leakers, Lyovochkin and Akhmetov, fit the 9-character redaction after “Mr.” in the last screen cap. But “Deripaska” does. And we know this meeting was specifically focused on Kilimnik reporting back to Deripaska. In addition, Deripaska’s plane was in NY just after the meeting.

Manafort and Gates shared the data on August 2, not in the spring

At least according to ABJ’s understanding, Gates and Manafort shared the data not in the spring (as claimed to the NYT) but at the August 2, 2016 meeting at the Havana Club, to which — discussion elsewhere made clear — the two men came and left separately, emphasizing the clandestine nature of this hand-off.

ABJ’s understanding is backed by several Gates’ 302s, which must also correlate with emails that, per ABJ, corroborate Gates’ account.

Even before ABJ made that point, Westling appears to suggest that what Gates shared with Kilimnik was the most recent data.

One other reason this is important — but which didn’t get mentioned in this hearing: Manafort shared incredibly detailed polling information with someone who has ties to GRU a month before GRU went back to hack Hillary’s analytics. So they had very detailed data from both sides.

Kevin Downing twice attempts to render a jury verdict against Gates

Manafort’s team, generally, tries to claim that the sharing of polling data is just a matter of Gates’ word against Manafort’s, in spite of there being emails involving Manafort himself on sharing the data (and, apparently, emails showing whom Kilimnik shared them with).

But when ABJ notes that the poll data hand-off happened at the August 2 Havana Club meeting, in a fit of desperation, Kevin Downing claims that this all depended on Gates’ testimony and ABJ shouldn’t take anything he said as true because the jury found he totally lacked credibility. ABJ warns him twice not to go there.

MR. DOWNING: Your Honor, one other point. I know this Court hasn’t had the opportunity to review the testimony, probably, of Mr. Gates from Eastern District of Virginia, but he was found so incredible by the jury that a juror said to the press that they completely disregarded his entire testimony. So to the extent that this Court would cite Mr. Gates as any evidence, I think a review of the findings of the jurors in EDVA should be undertaken because if he is not corroborated —

THE COURT: Don’t. Don’t.

MR. DOWNING: Your Honor, it’s a fact.

THE COURT: I’m not going to base anything on what one juror said to the press.

In spite of having been warned once, Downing again returns to what the juror in EDVA said later in the hearing.

MR. DOWNING: And I will admit, on my end I won’t take it as a failure on my part because I did not think this Court wouldn’t take into consideration the fact how he was found to have no credibility at all by the jury over there.

THE COURT: You cannot keep saying that.

MR. DOWNING: I can keep saying it, Your Honor, because it’s true

THE COURT: First of all, you’re asking me to make a determination about what 12 jurors concluded because of what one juror was quoted in the paper as saying, which right now I don’t even have in front of me. But I believe she said we decided to vote on whether or not we could find him beyond a reasonable doubt, putting his testimony aside, which is different than saying we agreed, as 12 people, that nothing he said was true.

MR. DOWNING: That’s — that’s —

THE COURT: That’s totally different.

MR. DOWNING: I disagree with you. But I could go and get the press account of that.

THE COURT: I don’t know. I don’t have the press account. The press account is not evidence.

Downing floats bringing ABJ the press account himself, but then suggests he could provide the transcript. ABJ even offers to call Gates before her to testify.

Over lunch, ABJ goes on her own to find that press account. And, as she explains immediately after lunch, she doesn’t agree with Downing’s reading of it. Indeed, she calls it hyperbolic.

I went back and read the article that I believe I read at the time and, indeed, there was a juror who spoke publicly. She spoke publicly because she said she wanted the public to know that while she wanted Mr. Manafort to be not guilty, the evidence was overwhelming.

She indicated that the only reason he was not convicted on all counts was because of a lone holdout in the jury. She did not attribute that to Mr. Gates’s credibility. And reportedly, she did say, as I thought I recalled, some of us had a problem accepting his testimony because he took the plea. So we agreed to throw out his testimony and look at the paperwork. And then she added, I think he would have done anything to preserve himself, that’s just obvious in the fact that he flipped on Manafort.

So, I don’t believe — there’s certainly not anything in this record for these proceedings, or the public record, for that matter, that supports your argument that I should consider the fact that the jury unanimously concluded he was a liar, as was reported in the press by a juror, and threw out his testimony. I don’t believe that that is what the newspaper articles reported. Not that I would have relied on the newspaper article or what happened in the Eastern District of Virginia anyway, but I believe your argument was a little hyperbolic.

Manafort’s lawyers knew about this allegation because they tried to air it during the EDVA trial

In addition to trying to claim that this matter just pits Gates against Manafort, Manafort’s lawyers try to claim that Gates only made the claim about sharing polling data last fall, late in the process of his cooperation, meaning that they didn’t have an opportunity to prep their client on it.

I may be wrong about this, but we have a note — a September 27th, 2018 interview which we did not see until this submission was made, where Mr. Gates makes that statement.

Mr. Weissmann has suggested we had all of Mr. Gates’s 302s where he said this previously. I don’t think he said it before that interview. And so as far as we know, that’s new testimony from Mr. Gates compared to what he said in prior proffer sessions, where I think he said something more like it was more what was publicly available.

Weissmann corrects that by noting that at a proffer on January 30, 2018, Gates laid all that out.

Mr. Weissmann, with respect to the specific argument that they just made that this was a new twist by Mr. Gates, only in the 302 that they most recently received, do you have anything you want to add to that, respond to that?

MR. WEISSMANN: Yes, I do. So, I would direct the Court’s attention to Exhibit 236, which is a 302 with respect to Mr. Gates, and the date of that is January 30th, 2018.

He later notes the two 302s from early in Gates’ cooperation where that came up (it was actually January 31, not January 30).

In any case, after first raising Gates’ proffer from January mentioning Manafort sharing this polling data, Weissmann notes that Kevin Downing called attention to this during the EDVA trial.

Back in September, I suggested that Greg Andres’ success at getting this sidebar sealed probably had something to do with Manafort’s willingness to take a fairly shitty plea deal. It was a big fucking deal at the time. And the notion that Kevin Downing — who tried to get the information in the public record at the trial — is now claiming he didn’t know about it is simply contemptuous.

Manafort lied about sharing data with a Russian asset in hopes of getting a pardon

And this is where what appears to be at least the second reference in the hearing to Manafort’s hopes of getting a pardon appears (by context, this is almost certainly Weissmann, though the transcript labels it as Westling).

Manafort knows well what he did in August 2016. But he — and his lawyers, and whoever lied anonymously to the NYT — continue to lie about it in hopes that, by refusing to confirm that he conspired with Russia to get Trump elected, Trump will pay him off with a pardon.

The truth appears to be that Manafort walked Konstantin Kilimnik through recent, highly detailed polling data at a clandestine meeting in NYC on August 2, 2016, in part because even if it didn’t help Trump, it might help his own fortunes down the way. And he’s willing to bet that lying about that fact is his best chance for a pardon.

Update, from the comments: Eureka notes that the same night Manafort shared campaign data, probably with Oleg Deripaska, Stone defended him, insisting he was doing “everything humanly possible to help” Trump.

Aug 2, 2016 09:59:24 PM The idea that @PaulManafort is not doing everything humanly possible to help @realDonaldTrump win is patently false [Twitter for iPhone]

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

The Timing of the Inauguration Subpoena

By last May, it was clear that part of Mueller’s investigation covered how Russians laundered money to Trump and his associates via his inauguration fund. It turns out that Sam Patten started talking to prosecutors about his own laundering of Ukrainian money into the inauguration that month. And during Paul Manafort’s trial last summer, Rick Gates had to admit to stealing money from Trump’s inauguration fund. Around that time, I started predicting that Mueller would spin off such “garden variety” corruption to other parts of DOJ.

Meanwhile, the press’ efforts to liberate Michael Cohen’s April 9 search warrant affidavits failed because so many other people were named in it.

Among the things seized in that raid was a recording from Cohen to Stephanie Winston Wolkoff, who handled some of the money that disappeared from Trump’s inauguration.

In April raids of Mr. Cohen’s home, office and hotel room, Federal Bureau of Investigation agents obtained a recorded conversation between Mr. Cohen and Stephanie Winston Wolkoff, a former adviser to Melania Trump who worked on the inaugural events. In the recording, Ms. Wolkoff expressed concern about how the inaugural committee was spending money, according to a person familiar with the Cohen investigation.

The Wall Street Journal couldn’t determine when the conversation between Mr. Cohen and Ms. Wolkoff took place, or why it was recorded. The recording is now in the hands of federal prosecutors in Manhattan, a person familiar with the matter said.

And yet it was just in recent days that SDNY has subpoenaed the inauguration committee for the materials that will reveal all the other ways that Trump profited off his inauguration.

The subpoena broadly asks for all documents related to the committee’s donors and vendors, including documents related to the Federal Election Commission filings in which the committee disclosed its donations. It also seeks records related to any “benefits” such as tickets, photo opportunities or receptions that donors received in exchange for their contributions.

[snip]

Among the subpoena’s requests is one for documents regarding any donations to the committee “made by or on behalf of foreign nationals, including but not limited to any communications regarding or relating to the possibility of donations by foreign nationals.”

The subpoena also asks for documents related to “donations or payments made by donors directly to contractors and/or vendors” used by the committee, including any communications related to the possibility of such donations being “made or directed to contractors or vendors.”

The subpoena seeks information relating to a bunch of conspiracy-related crimes — parallel to the crimes Mueller looked at in the Russian investigation, but including other countries.

It discloses that prosecutors are investigating a litany of potential crimes: conspiracy against the US, false statements, mail fraud, wire fraud, money laundering, inaugural committee disclosure violations, and violations of laws prohibiting contributions by foreign nations and contributions in the name of another person, also known as straw donors.

This investigation may explain why SDNY alum Guy Petrillo dropped Michael Cohen in recent weeks: since Cohen refused to cooperate with SDNY on what would have been this investigation, he’s likely to face further criminal exposure for his efforts to get rich off the big party.

My guess is that SDNY is only now getting around to digging into what is surely a vast swamp of corruption because Mueller asked them to wait until his inauguration related equities were done. Which may be consistent with reports that his investigation is coming to a head, perhaps pending just the Mystery Appellant, Andrew Miller, and William Barr’s confirmation. Which may mean that after the results in Mueller’s Russian investigation soften Trump up, this investigation will just be ripening, possibly even at a time where Trump can be indicted.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Paul Manafort’s Ongoing Conspiracy with Suspected Russian Agent Konstantin Kilimnik

Update: The NYT had it correct the first time. They got — badly — played.

Because the NYT corrected an error (noting that Paul Manafort instructed Konstantin Kilimnik to pass on Trump polling data to pro-Russian Ukrainian oligarchs Serhiy Lyovochkin and Rinat Akhmetov, not Russian oligarch Oleg Deripaska), the usual suspects are claiming that the really damning disclosures revealed by Paul Manafort’s filing of the other day don’t yet prove Trump’s campaign manager conspired with Russia.

Manafort already pled guilty to conspiring with Russian Konstantin Kilimnik

I saw claims as recently as the other day that no Trump associate has been charged or pled guilty to conspiring with a Russian. That’s false.

As part of his plea agreement in September, Manafort pled guilty to conspiring with Kilimnik, a Russian citizen, to witness tamper.  Admittedly, this particular conspiracy took place in 2018, not 2016, and it served not to tamper with the 2016 election, but to hide the ways in which Manafort kept secret that he was an agent of Ukraine spending millions to influence US policy. But, as Mueller has described it, Manafort committed a series of crimes designed to hide his ongoing ties to Russian-backed Ukrainian oligarchs after being fired from the Trump campaign in significant part to sustain lies he and Rick Gates told while still working for Donald Trump.

In other words, one purpose of his conspiracy with Kilimnik was to hide the fact that Trump’s campaign manager — who, in spite of being broke, worked for “free” throughout the campaign — had been a paid agent of Ukraine.

The Russian Manafort conspired with, Konstantin Kilimnik is suspected of ties to the same agency that hacked the DNC

Past Mueller filings have made it clear that Kilimnik is suspected to have ties to a Russian intelligence agency. The FBI thinks so.

Federal Bureau of Investigation Special Agents assisting the Special Counsel’s Office assess that [Kilimnik] has ties to a Russian intelligence service and had such ties in 2016

And Rick Gates knew of those ties.

During his first interview with the Special Counsel’s Office, [Alex] van der Zwaan admitted that he knew of that connection, stating that Gates told him [Kilimnik] was a former Russian Intelligence Officer with the GRU.

The GRU, of course, is the Russian intelligence agency that hacked the Democrats in 2016. So Manafort has pled to conspiring not just with any Russian, but a Russian believed to have ties with the agency that hacked the DNC.

Akhmetov was named — in the same interview as Deripaska — in the affidavit for a 2017 probable cause search warrant targeting Manafort

Akhmetov, one of the oligarchs with whom NYT’s correction say Manafort did share data, was described in the probable cause warrant the FBI used to raid Manafort’s condo in July 2017. Indeed, Manafort described working for both Akhmetov and Deripaska in the same period he was supporting Viktor Yanukoych.

This suggests it’s difficult to separate Manafort’s historical criminal behavior involving Akhmetov from that involving Deripaska. And Kilimnik was involved in both.

Akhmetov and Lyovochkin were paying Manafort while he was working for Trump for “free”

As part of Manafort’s spox’s “clarifications” about the disclosures made clear in the redacted filing, he admitted that a $2.4 million payment Manafort anticipated — in an August 2016 email to his accountant — that he would receive in November was from Akhmetov and Lyovochkin. While that payment is understood to be debts owed for past work, his decision to share campaign data with the oligarchs seems to have been tied to ensuring he did get that payment.

If that’s right, it suggests that that $2.4 million payment, at a time when Manafort was broke but nevertheless working for “free,” had some tie to his work on the campaign.

Lyovochkin made an illegal donation to Donald Trump’s inauguration fund

Another Kilimnik business partner, Sam Patten, pled guilty (in part) to laundering a $50,000 donation to Trump’s inauguration fund for tickets to his inauguration.

To circumvent the foreign donation restriction, PATTEN, with the knowledge of Foreigner A, solicited a United States citizen to act as a “straw” purchaser so that he could conceal from the [Presidential Inauguration Committee] that the tickets for the inauguration were being paid for from a foreign source. The straw purchaser paid $50,000 for four inauguration tickets. The straw purchaser paid that sum one day after receiving from [Begemot Ventures] a check signed by PATTEN in the sum of $50,000. In turn, [Lyovochkin] had paid [Begemot] for the tickets though a Cypriot account. [Kilimnik and Lyovochkin] another Ukrainian, and PATTEN were allocated the four inauguration tickets. Thereafter, PATTEN attended a PIC event in Washington, D.C. with [Lyovochkin].

Thus, in addition to paying Trump’s campaign manager during the campaign, Lyovochkin made an illegal donation to Trump’s inauguration (and remember, there are outstanding questions about where all the inauguration funds went).

Manafort discussed Ukraine every time he spoke with Kilimnik during the campaign; those discussions included a Russian-friendly “peace plan”

Among the other lies Manafort told when he was supposed to be cooperating with Mueller pertained to his repeated conversations with Kilimnik. And while Manafort tried to minimize the persistence with which they discussed such things, suggesting he may have discussed a Ukraine peace plan more than once.

After being shown documents, Mr. Manafort “conceded” that he discussed or may have discussed a Ukraine peace plan with Mr. Kilimnik on more than one occasion

But Mueller maintains they have detailed descriptions showing the peace plan came up “at each” meeting they had, which suggests it was a key part of why the Russians and Ukrainians in touch with Manafort through Kilimnik were in touch with him.

And, again, both these lies and Manafort’s lies in 2018 and Manafort’s lies in 2016 and 2017 were all intended to hide these ongoing relationships, in significant part to hide Trump’s campaign ties to all of this.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Robert Mueller Finally Found a Way to Get Paul Manafort to Keep a Secret

Update: Or not. Manafort’s lawyers did submit a filing, with all their redactions easily reversed, showing that Manafort lied about his cooperation with his Russian handler Konstantin Kilimnik. I’ll do another post on that filing.

On one of the last days of last year, Rudy Giuliani repeated a refrain he made in August, dick-wagging Mueller to “put up or shut up” and release the report that Rudy has spun fables about. That taunt happened ten days after the House Intelligence Committee voted to release Roger Stone’s testimony transcript to Mueller. It happened eight days before Paul Manafort failed to submit a filing (at least in unsealed form) explaining whether it contests the government’s claims that he lied while purportedly cooperating with the Special Counsel. In between, Sam Patten submitted a status report in his own cooperation agreement — cooperation that would surely have covered some of the same questions about his Russian partner Konstantin Kilimnik that Manafort lied about — under seal.

I raise all these together because — while it’s a safe bet that something happened at some point with Manafort that remains under seal — any explanation about what that might be may have as much to do with Mueller’s request for Stone’s transcripts as it does Manafort’s own actions. After all, Adam Schiff has already committed to releasing all the HPSCI transcripts to Mueller; it’ll be only a matter of days until he constitutes the committee and has the new Democratic majority on it vote that through. So something has to explain why Mueller couldn’t wait — why Mueller needed Stone’s transcript on December 20 and not January 10.

Back when he was pretending to cooperate, Manafort did get questions about his lifelong buddy Roger Stone. Mueller put Manafort before the grand jury twice after that, possibly locking in the lies he had told. Notably, however, lies about Stone were not among those Mueller publicly aired (in heavily redacted form) last month. For that matter, neither were any responses Manafort made about Trump’s foreknowledge of the June 9 meeting, which we also know came up between Manafort and Mueller.

If I’m right that this is all connected, that still leaves several possibilities. Perhaps Mueller — as Andrew Weissmann suggested they might — charged Manafort for these additional lies or perhaps charged him in the conspiracy-in-chief, finally. Perhaps Manafort made yet another deal with prosecutors, proffering answers to the questions about Stone and Trump they really need him to answer for them, in an attempt to limit his own punishment for that conspiracy in chief.

Whatever it is, it has produced unusual silence from Manafort’s camp.

Whatever it is, we may find out in the next month. Sam Patten’s status report was extended for just one month. Perhaps we’re waiting on SCOTUS’ response to the Mystery Appellant’s plea. Perhaps we’re waiting on the DC Circuit’s response to Andrew Miller’s challenge.

Until then … silence.

As I disclosed last July, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post.