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Trump Claimed To Be Angry Flynn Didn’t Make Good on Putin’s January 21 Requested Phone Call

As I noted, newly unsealed parts of Mike Flynn’s January 24, 2017 302 make it clear that he explained away his calls with Sergey Kislyak on December 29, 2016, in part, by claiming that Kislyak asked Flynn to set up a videoconference between Trump and Putin on January 21, 2017, the day after Trump would be inaugurated.

During the call, KISLYAK asked FLYNN to set-up a VTC between President-elect TRUMP and Russian President PUTIN on January 21st.

[snip]

The interviewing agents asked FLYNN if he recalled any []ation with KISLYAK surrounding the expulsion of Russian diplomats or closing of Russian properties in response to Russian hacking activities surrounding the election. FLYNN stated that he did not. FLYNN reiterated his conversation was about the PUTIN/TRUMP VTC…

That’s damning enough: Putin wanted to capitalize on his investment right away.

But it’s still more damning given a detail from the Comey memos. During the January 27, 2017 dinner that Trump invited Comey to that same day to demand loyalty, Trump suggested he believed Flynn was unreliable. The basis for that unreliability is that Flynn didn’t tell Trump that Putin — and not Theresa May — was the first foreign leader to give him a congratulatory call after the inauguration.

He then went on to explain that he has serious reservations about Mike Flynn’s judgement and illustrated with a story from that day in which the President apparently discovered during his toast to Teresa May that [Putin] had called four days ago. Apparently, as the President was toasting PM May, he was explaining that she had been the first to call him after his inauguration and Flynn interrupted to say that [Putin] had called (first, apparently). It was then that the President learned of [Putin’s call] and he confronted Flynn about it (not clear whether that was in the moment or after the lunch with PM May). Flynn said the return call was scheduled for Saturday, which prompted a heated reply from the President that six days was not an appropriate period of time to return a call from the [President] of a country like [Russia]. This isn’t [redacted] we are talking about.”) He said that if he called [redacted] and didn’t get a return call for six days he would be very upset. In telling the story, the President pointed his fingers at his head and said “the guy has serious judgment issues.”

This was, remember, the day that Don McGahn and Sally Yates had their second conversation about the FBI investigation into Flynn for lying about his December 29, 2016 conversation with Kislyak. I’ve had mixed opinions about this passage, originally thinking it was an attempt to distance himself from Flynn, but later noting that it fit the (largely chronologically undated) observations by Trump aides that Trump really was fed up by Flynn by the time he was forced to resign.

Here’s the thing, though. At least according to the White House record of Trump’s toast to May, the claim is a lie. That’s because Trump never claimed that May was the first to call Trump after his inauguration. Rather, he applauded her because she was the first to visit Trump after inauguration.

Thank you very much. I am honored to have Prime Minister Theresa May here for our first official visit from a foreign leader. This is our first visit, so — great honor.

It is true that May called Trump sometime on January 21.

It’s also true that in the first question after their comments on January 27, Trump was asked about the phone call with Putin the following day (and he feigned uncertainty whether it would happen).

STEVE HOLLAND, REUTERS: Thank you. You’re going to be speaking tomorrow with the Russian president. What message would you like to convey to him? How close are you to lifting some of the sanctions imposed on Russia over its Ukraine incursion? What would you expect in return?

And Prime Minister May, do you foresee any changes in British attitudes towards sanctions on Russia?

TRUMP: Well, I hear a call was set up, Steve, and we’ll see what happens. As far as the sanctions, very early to be talking about that. But we look to have a great relationship with all countries, ideally. That won’t necessarily happen, unfortunately probably won’t happen with many countries.

But if we can have, as we do with Prime Minister May and the relationship that we’ve all developed and even in the short relationship that we just developed just by being with each other and have lunch and — we’ve really had some very interesting talks and very productive talks. But if we can have a great relationship with Russia and with China and with all countries, I’m all for that. That would be a tremendous asset.

If nothing else, it means Trump knew of the call before lunch, which was scheduled after the press conference, so could not have been surprised to learn of call timing by then.

But now consider the comment after considering that Trump had at least one conversation with Don McGahn about the substance of Flynn’s lies before this meeting, and — given McGahn’s request to have the underlying materials — may have asked to know specifically what Flynn said.

On January 26, 2017, Acting Attorney General Sally Yates contacted White House Counsel Donald McGahn and informed him that she needed to discuss a sensitive matter with him in person. 142 Later that day, Yates and Mary McCord, a senior national security official at the Department of Justice, met at the White House with McGahn and White House Counsel’s Office attorney James Burnham. 143 Yates said that the public statements made by the Vice President denying that Flynn and Kislyak discussed sanctions were not true and put Flynn in a potentially compromised position because the Russians would know he had lied. 144 Yates disclosed that Flynn had been interviewed by the FBI. 145 She declined to answer a specific question about how Flynn had performed during that interview, 146 but she indicated that Flynn’s statements to the FBI were similar to the statements he had made to Pence and Spicer denying that he had discussed sanctions.147 McGahn came away from the meeting with the impression that the FBI had not pinned Flynn down in lies, 148 but he asked John Eisenberg, who served as legal advisor to the National Security Council, to examine potential legal issues raised by Flynn’s FBI interview and his contacts with Kislyak. 149

That afternoon, McGahn notified the President that Yates had come to the White House to discuss concerns about Flynn.150 McGahn described what Yates had told him, and the President asked him to repeat it, so he did. 151 McGahn recalled that when he described the FBI interview of Flynn, he said that Flynn did not disclose having discussed sanctions with Kislyak, but that there may not have been a clear violation of 18 U.S.C. § 1001. 152 The President asked about Section 1001, and McGahn explained the law to him, and also explained the Logan Act. 153 The President instructed McGahn to work with Priebus and Bannon to look into the matter further and directed that they not discuss it with any other officials. 154 Priebus recalled that the President was angry with Flynn in light of what Yates had told the White House and said, “not again, this guy, this stuff.” I 55

[snip]

The next day, January 27, 2017, McGahn and Eisenberg discussed the results of Eisenberg’s initial legal research into Flynn’s conduct, and specifically whether Flynn may have violated the Espionage Act, the Logan Act, or 18 U.S.C. § 1001. 160 Based on his preliminary research, Eisenberg informed McGahn that there was a possibility that Flynn had violated 18 U.S.C. § 1001 and the Logan Act. 16 1 Eisenberg noted that the United States had never successfully prosecuted an individual under the Logan Act and that Flynn could have possible defenses, and told McGahn that he believed it was unlikely that a prosecutor would pursue a Logan Act charge under the circumstances. 162

That same morning, McGahn asked Yates to return to the White House to discuss Flynn again. I63 In that second meeting, McGahn expressed doubts that the Department of Justice would bring a Logan Act prosecution against Flynn, but stated that the White House did not want to take action that would interfere with an ongoing FBI investigation of Flynn. 164 Yates responded that Department ofJustice had notified the White House so that it could take action in response to the infonnation provided.165 McGahn ended the meeting by asking Yates for access to the underlying information the Department of Justice possessed pertaining to Flynn’s discussions with Kislyak. 166

In other words, by the time Trump claimed to the FBI Director that he didn’t know Putin called him on January 21, he already knew that the FBI had interviewed Flynn about a conversation where (he claimed) Kislyak had asked to set up a call on January 21, and he may have had more specificity about whether or not the request for a January 21 call came up.

We can’t tell, given the kind of liars we’re dealing with, what is true. These are some of the possibilities:

  • Kislyak never asked for a January 21 meeting but Flynn used the actual call on January 21 as an excuse
  • In response to Kislyak’s request, Flynn did set up the meeting, but Trump was trying to claim he didn’t listen in that day
  • Kislyak asked for a January 21 meeting and Putin did call, but Flynn somehow intercepted the call and kept it a secret from the President

Whichever it is, the centrality of setting up a January 21 call with Putin — as opposed to the January 28 call we already knew about — really raises the import of Trump’s claimed reason to be pissed at Flynn in a meeting where he was already thinking about how to end an investigation into his ties with Russia.

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. 

Mike Flynn Believed the US Could Work with GRU’s Director

The government has released an almost totally unredacted version of Mike Flynn’s January 24, 2017 302.

There are two newly unsealed details that hint at what might have been. First, Flynn told the FBI he believed the US could work with his former counterpart at GRU, Igor Sergun.

FLYNN described SERGUN as someone the  U.S. could work with.

Sergun died in mysterious circumstances in Lebanon in early 2016, so that warm relationship with the former head of DIA and GRU didn’t come to pass. Sergun died just months before his agency would start stealing emails from Hillary Clinton and the Democrats to help Trump get elected.

The newly unsealed bits also reveal a claim that Sergey Kislyak asked Flynn to set up a videoconference with Trump for January 21, which would have been the first full day of Trump’s Administration.

I guess Putin didn’t want to wait to capitalize on his investment in tampering in the election.

Two other newly unsealed bits are of interest. Flynn did admit he met with Sergey Kislyak at his residence before going to his Moscow RT Trip. But he said it was just “a courtesy call.” That’s somewhat inconsistent with what the HPSCI Report described.

The meeting was later described by General Flynn’s son in an email to the Russian embassy as “very productive.” The email indicates that the meeting was arranged at the request of General Flynn or his son.

Flynn also claimed not to know who paid for the trip, which is pretty remarkable, not least because he would have had to disclose it.

In addition, Flynn explained away the meeting he attended with Jared Kushner and Kislyak by saying it was “relatively sensitive” because “many countries did not want the then-current administration to know about them.” Flynn, who was in the Obama Administration for six years, complained that, “There were no personal relationships between the leaders of many countries and the prior administration.”

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. 

On the Fizzle and Boom in Friday’s Mike Flynn Friday Night News Dump

Some events set in motion by a request WaPo made in April to unseal the sentencing files of Mike Flynn that have resulted in some fizzle, some pop, and a lot of premature speculation.

In their response to the request, the government said that the release of the Mueller Report meant they could release three of the four documents WaPo initially asked for in less redacted form: Flynn’s cooperation addendum (parts of which were and are still sealed to protect ongoing investigations), an Andrew McCabe memo on his interview, and a Peter Strzok 302 (both of which had personal privacy and deliberative privilege redactions). The government moved to unseal them. In approving that unsealing, Judge Emmet Sullivan picked up on the reference to the Flynn transcript and issued an order to the government to unseal both that transcript, any sealed parts of the Mueller Report that “relate to Flynn,” and transcripts of all recordings involving Flynn, “including, but not limited to, audio recordings of Mr. Flynn’s conversations with Russian officials.”

Meanwhile, WaPo expanded their request to include Flynn’s original 302. Unlike the other documents they had earlier requested, his 302 quoted from the transcripts of his conversations with Kislyak. Surprisingly, Sullivan did not respond (I had wondered whether he might order the government to release it along with the other items). The government said it will review what can be released in that, as they had with other filings, though Flynn objects to this release. And WaPo responded in their original request, reaffirming their interest in Sullivan being involved.

Last night, the government filed the transcript of the call from John Dowd to Flynn’s lawyer Rob Kelner, as well as a filing blowing off at least one, and probably two, of Sullivan’s requests. The one that has gotten all the attention is that the government blew off Sullivan’s order to include all transcripts of audio recordings of Flynn’s conversations with Russian officials by claiming no other records are part of the guilt and sentencing record.

The government further represents that it is not relying on any other recordings, of any person, for purposes of establishing the defendant’s guilt or determining his sentence, nor are there any other recordings that are part of the sentencing record.

I also believe the government is being rather cute with this explanation about the Mueller Report.

With respect to the Report, the government represents that all of the information in the Report that the defendant provided to the Special Counsel’s Office has been unredacted, as has all of the information in the Report that others provided about the defendant. In those sections where the defendant’s conduct is discussed, limited remaining redactions pertain to the sourcing of information, such as references to grand jury subpoenas. See, e.g., Report, Volume I, pp. 169- 72.

Sullivan ordered the government to turn over all portions of the Report that relate to Flynn, not just those that describe information he provided to Special Counsel or that others provided about him. Plus, the government should have warned Sullivan they were going to withhold references to grand jury materials (their representation that these were just references stating that the call records the government used to clarify whom Flynn spoke to before and after his calls to Kislyak is pretty clearly correct), rather than just informing him of that in this filing.

But I also don’t understand how it is possible that this footnote does not relate to Flynn.

The Mueller Report admits elsewhere that Flynn was under counterintelligence investigation for his ties to Russia, on top of the investigation into his sleazy influence peddling for Turkey. It should be explained in this section, but is not — unless it is in this redacted footnote.

Of course, that’s precisely the kind of thing Sullivan would probably like to have made public, given his opinion that Flynn “arguably … sold [his] country out.” Which may be why the government excused not turning it over with the same indirect explanation — that even if this footnote “relates” to Flynn (and so would fall into his order) it isn’t pertinent for sentencing. The same indirect excuse they offered for withholding what are surely FISA transcripts.

All that said, I’m not sure the government’s intransigence is as big a deal as people are making out, nor am I convinced this is Bill Barr’s doing, to protect Trump.

To be sure, I think if the government were forced to turn over all transcripts where Flynn got recorded — even if it were just with Russian officials, and not anyone else a National Security Advisor designee would speak to — it would be fairly damning, and not just because the three Kislyak calls are really damning. There are more Kislyak-Flynn calls than the government wants to talk about right now: at a minimum, the calls surrounding a meeting Flynn and his spawn had in advance his RT-paid trip to Moscow in December 2015, as well as a call in early 2016. But there are likely even more from during the campaign period, calls that discuss policy issues that would be unseemly for a candidate to be discussing with the adversary who also happens to be trying to help Flynn’s boss get elected.

But even given Sullivan’s tendency to respond especially poorly to government defiance, I’m not sure this is going to escalate (in part, because it hasn’t yet). Had Sullivan really wanted to push this issue, he would have already ordered Flynn’s 302 be released, and he hasn’t. Plus, I think WaPo’s supplemental request for Flynn’s 302 will shift this debate to a more appropriate area of discussion.

Having been told by the government they would discretionarily release these files, the WaPo reply reiterated their original argument about First Amendment right of access to court filings. And Flynn’s original 302 is — because Sullivan ordered it to be, in response to a cute ploy by Flynn — a document already posted to the docket. So the WaPo’s argument that the full 302 should be disclosed should be fairly persuasive for Sullivan.

But the 302 also quotes directly from at least Flynn’s December 29, 2016 call with Kislyak,  because the FBI Agents decided (as recorded in the McCabe memo) that they would quote directly from the transcript if Flynn pretended not to remember this. For example, the FBI Agents tried to remind Flynn he had used the term “tit-for-tat” that he also used with KT McFarland’s assistant earlier in the day; they appear to quote the phrase, “don’t do something” to him twice.

Sullivan already has scheduled a hearing to discuss all this, on June 24. So between the supplemental WaPo request and that hearing, there’s plenty of opportunity to litigate all this without Sullivan blowing up.

In spite of a lot of suspicions, I suspect the non-responsive response came from DOJ’s National Security Division, not from Bill Barr. That’s true, in part, because DOJ as an institution is less patient with Sullivan’s quirky demands than they should be. That’s also true because there are almost certainly three levels of intercepts that might be responsive to Sullivan’s request that, at each level, would raise more and more heartburn for NSD, first for things they’d disclose about Flynn (and Trump), and then generally for the precedent it would set generally.

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. 

Why Didn’t Mueller Hold Counterintelligence Suspect Mike Flynn Responsible for Sanctions Call?

There’s a problem with the way the Mueller Report describes events pertaining to Mike Flynn.

It describes how someone under active counterintelligence investigation for his ties to Russia and already on thin ice with the President-Elect got on the phone and, through the Russian Ambassador, persuaded Vladimir Putin to hold off on retaliating for US sanctions. It describes how Flynn avoided leaving a paper trail of that call. Ultimately, the report remains inconclusive about whether Flynn made that call on his own initiative — which would seem to bolster the case he had suspect loyalties with the Russians — or at the direction of the President — in which case his actions would be appropriate from a constitutional standpoint (because this is the kind of thing the President can choose to do), but not a legal one (because he was purposely hiding it from the Obama Administration). One or the other would seem to be a necessary conclusion, but the Mueller Report reaches neither one.

In part, that’s because both Flynn and KT McFarland seem to have protected President Trump’s plausible deniability even after both got caught lying about these events. But it also appears that Mueller is more certain about the answer than he lets on in the public report.

This is the subject that, in my post noting that the Mueller Report has huge gaps precisely where the most acute counterintelligence concerns about Trump’s relationship with Putin are, I suggested created a logical problem for the report as a whole.

If it is the case that Flynn did what he did on Trump’s orders — which seems the only possible conclusion given Mueller’s favorable treatment of Flynn — then it changes the meaning of all of Trump’s actions with regard to the Russian investigation, but also suggests that that conclusion remains a counterintelligence one, not a criminal one.

Mike Flynn was under active counterintelligence investigation but he’s not an Agent of Russia

According to the Mueller Report, the first Rosenstein memo laying out the detailed scope of the investigation, dated August 2, 2017, included “four sets of allegations involving Michael Flynn, the former National Security Advisor to President Trump.” Two of those four must be his unregistered sleazy influence peddling for Turkey (which he got to plead off of as part of his plea agreement) and the Peter Smith operation to obtain Hillary’s deleted emails (about which his testimony is reflected in the Mueller Report).

Then there’s the counterintelligence investigation into Flynn. We’ve known that the FBI had a counterintelligence investigation into Flynn since before HPSCI released its Russian Report, and a later release of that report described that the investigation was still active when the FBI interviewed Flynn on January 24, 2017.

A key focus of that investigation —  one reflected in Flynn’s January 24, 2017 302 — was his paid attendance at a December 10, 2015 RT event in Moscow in December 2015, where he sat with Putin. The Mueller Report makes just one reference to that event, and only as a way of describing the public reporting on Trump flunkies’ ties to Russia during the campaign.

Beginning in February 2016 and continuing through the summer, the media reported that several Trump campaign advisors appeared to have ties to Russia. For example, the press reported that campaign advisor Michael Flynn was seated next to Vladimir Putin at an RT gala in Moscow in December 2015 and that Flynn had appeared regularly on RT as an analyst.15

15 See, e.g., Mark Hosenball & Steve Holland, Trump being advised by ex-US. Lieutenant General who favors closer Russia ties, Reuters (Feb. 26, 2016); Tom Hamburger et al., Inside Trump’s financial ties to Russia and his unusual flattery of Vladimir Putin, Washington Post (June 17, 2016). Certain matters pertaining to Flynn are described in Volume I, Section TV.B.7, supra.

However, in addition to that trip, the FBI must have been scrutinizing earlier Kislyak contacts that don’t show up in the Report at all:

  • A meeting on December 2, 2015 (described in the HPSCI report) that Kislyak that Flynn and his failson attended in advance of the RT trip at the Russian Embassy
  • A call to Kislyak sometime after GRU head Igor Sergun’s death in Lebanon on January 6, 2016; in his interview with the FBI; Flynn said he called to offer condolences, though he used that excuse for other calls that involved substantive policy discussions; he also claimed, not entirely credibly, not to be associated with the Trump campaign yet
  • Other conversations during the campaign that Flynn revealed to friends that otherwise don’t show up in public documents

In one of the only (unredacted) references to the counterintelligence investigation into Flynn, the Mueller Report describes that Flynn’s contacts with Kislyak became a key focus of that investigation.

Previously, the FBI had opened an investigation of Flynn based on his relationship with the Russian government.105 Flynn’s contacts with Kislyak became a key component of that investigation.10

But that passage doesn’t reveal the scope of those contacts and, in spite of detailed analysis of other people’s contacts with Kislyak (including an invite to JD Gordan to his residence that appears similar to the December 2015 one Kislyak extended to Flynn and his son), the Report doesn’t mention those earlier contacts.

Perhaps far more interesting, in the report’s analysis of whether any Trump aide was an agent of Russia, it does not include Flynn in the paragraph explaining why Paul Manafort, George Papadopoulos, and Carter Page were not charged as such. Instead, his foreign influence peddling is treated in a separate paragraph discussing just Turkey.

In addition, the investigation produced evidence of FARA violations involving Michael Flynn. Those potential violations, however, concerned a country other than Russia (i.e., Turkey) and were resolved when Flynn admitted to the underlying facts in the Statement of Offense that accompanied his guilty plea to a false-statements charge. Statement of Offense, United States v. Michael T Flynn, No. l:17-cr-232 (D.D.C. Dec. 1, 2017), Doc. 4 (“Flynn Statement of Offense”). 1281

The footnote to that paragraph, which given the admission elsewhere that a separate counterintelligence investigation into Flynn focused on Russia, likely deals with Russia, is entirely redacted for Harm to Ongoing Matters reasons.

While we can’t be sure (hell, we can’t even be totally sure this does relate to Russia!), this seems to suggest that the investigation into Russian efforts to cultivate Flynn is ongoing, but he has been absolved of any responsibility for — as an intelligence officer with 30 years of counterintelligence training — nevertheless falling prey to such efforts.

All of which is to say that, along with the descriptions of Trump’s most alarming interactions with Russians including Vladimir Putin, many of Flynn’s contacts with Kislyak and other Russians (including not just Putin but the guy who headed GRU until just before the election hacking started in earnest in January 2016) appear to be treated as counterintelligence information not suitable for public sharing.

The Mueller Report deliberately obscures key details of the timeline on the sanctions call

That’s important to note, because the counterintelligence conclusion on Flynn has to be utterly central to the analysis of Trump’s attempt to obstruct the investigation into Flynn.

The two discussions in the Mueller Report (Volume I pages 168 to 173 and Volume II pages 24 to 48) of Flynn’s December 2016 conversations with Sergey Kislyak are totally unsatisfying, probably in part because two key witnesses (Flynn and KT McFarland, and possibly others including Steve Bannon) lied when the FBI first interviewed them about the calls; they had also created a deliberately misleading paper trail for the events.

In both places, the Report provides times for some events on December 29, but obscures the most critical part of the timeline. I’ve put the Volume I language at the end of this post. It provides the following timeline for December 29, 2016:

1:53PM: McFarland and other Transition Team members and advisors (including Flynn, via email) discuss sanctions.

2:07PM: [Transition Team Member] Flaherty, an aide to McFarland, texts Flynn a link to a NYT article about the sanctions.

2:29PM: McFarland calls Flynn, but they don’t talk.

Shortly after 2:29PM: McFarland and Bannon discuss sanctions; according to McFarland’s clean-up interview, she may have told Bannon that Flynn would speak to Kislyak that night.

3:14PM: Flynn texts Flaherty and asks “time for a call??,” meaning McFarland. Flaherty responds that McFarland was on the phone with Tom Bossert. Flynn informs Flaherty in writing that he had a call with Kislyak coming up, using the language, “tit for tat,” that McFarland used on emails with others and that Flynn himself would use with Kislyak later that day.

Tit for tat w Russia not good. Russian AMBO reaching out to me today.

Sometime in here but the Report doesn’t tell us precisely when: Flynn talks to Michael Ledeen, KT McFarland, and then Kislyak. [my emphasis]

4:43PM: McFarland emails other transition team members saying that,  “Gen [F]lynn is talking to russian ambassador this evening.”

Before 5:45PM: McFarland briefed President-Elect Trump, Steve Bannon, Reince Priebus, Sean Spicer, and others on the sanctions. McFarland remembers that someone at the briefing may have mentioned the upcoming Kislyak call.

After the briefing: McFarland and Flynn speak by phone. Flynn tells McFarland, “that the Russian response to the sanctions was not going to be escalatory because they wanted a good relationship with the incoming Administration,” and McFarland tells Flynn about the briefing with Trump.

The next day, December 30, 2016 — after Putin announced they would not retaliate to Obama’s sanctions — Flynn sent a text message to McFarland that very deliberately did not reflect the true content of his communication with Kislyak, reportedly because he wanted to hide that from the Obama Administration (the Trump team had falsely told Obama they would not fuck with their existing policy initiatives).

Shortly thereafter, Flynn sent a text message to McFarland summarizing his call with Kislyak from the day before, which she emailed to Kushner, Bannon, Priebus, and other Transition Team members. 1265 The text message and email did not include sanctions as one of the topics discussed with Kislyak. 1266 Flynn told the Office that he did not document his discussion of sanctions because it could be perceived as getting in the way of the Obama Administration’s foreign policy.126

On December 31, after Kislyak called again to tell Flynn that Putin had decided not to retaliate because of the Trump Administration request not to, he and McFarland communicated again about their attempts to convince Russia not to respond to sanctions. Flynn spoke with others that day but “does not recall” whether they discussed the sanctions, though he remembers (but Bannon does not) that Bannon seemed to know about Flynn’s conversation with Kislyak.

The narrative for the same events in the obstruction section has less detail, but infuriatingly, similarly manages to leave out all the details (in bold above) about when Flynn spoke to McFarland and when he called Kisylak.

The thing is, Mueller knows precisely when those Flynn calls happened. The Volume I version of events make it clear they have the call records of Flynn, Michael Ledeen, and McFarland that would provide a precise timeline.

They just refuse to provide those times and the times of key emails, which would add to the clarity about whether Trump learned of Flynn’s plans before he contacted Kislyak.

In the “Intent” discussion regarding obstruction, however, the report suggests that the Trump briefing, where sanctions did come up, preceded the first Flynn call to Kislyak (even though the timeline here suggests it did not).

In advance of Flynn’s initial call with Kislyak, the President attended a meeting where the sanctions were discussed and an advisor may have mentioned that Flynn was scheduled to talk to Kislyak.

That’s particularly interesting given that the Volume II discussion of events describes how, after Trump fired Flynn, he also fired KT McFarland but offered her a position as Ambassador to Singapore. There’s very little discussion of the explanation for her firing, but they do describe how Trump tried to make McFarland write a memo — very similar to the false one he tried to make Don McGahn write denying that Trump had ordered him to have Rod Rosenstein removed — denying that he had any role in Flynn’s discussion with Kislyak about sanctions. McFarland did not write the memo, as she explained in a Memo for the Record, because she did not know whether Trump had spoken with Flynn or with Russia directly.

The next day, the President asked Priebus to have McFarland draft an internal email that would confirm that the President did not direct Flynn to call the Russian Ambassador about sanctions.253 Priebus said he told the President he would only direct McFarland to write such a letter if she were comfortable with it.254 Priebus called McFarland into his office to convey the President’s request that she memorialize in writing that the President did not direct Flynn to talk to Kislyak.255 McFarland told Priebus she did not know whether the President had directed Flynn to talk to Kislyak about sanctions, and she declined to say yes or no to the request.256

256 KTMF _00000047 (McFarland 2/26/ 17 Memorandum_ for the Record) (“I said I did not know whether he did or didn’t, but was in Maralago the week between Christmas and New Year’s (while Flynn was on vacation in Carribean) and I was not aware of any Flynn-Trump, or Trump-Russian phone calls”); McFarland 12/22/ 17 302, at 17.

Again, at a minimum, Mueller knows if Trump called Flynn, and may know if Trump called Kislyak or — more likely — Putin. But he’s not telling.

Trump was already pissy with Flynn, so why didn’t he blame him for the sanctions calls?

There’s one more contradictory detail about Trump’s behavior in this narrative.

According to enough witnesses to make it a reliable claim, Trump had already soured on Flynn in December 2016, before all this blew up (but not before Obama warned Trump and Elijah Cummings warned Mike Pence about Flynn’s suspect loyalties).

Several witnesses said that the President was unhappy with Flynn for other reasons at this time. Bannon said that Flynn’s standing with the President was not good by December 2016. Bannon 2/12/18 302, at 12. The President-Elect had concerns because President Obama had warned him about Flynn shortly after the election. Bannon 2/12/18 302, at 4-5; Hicks 12/8/17 302, at 7 (President Obama’s comment sat with President-Elect Trump more than Hicks expected). Priebus said that the President had become unhappy with Flynn even before the story of his calls with Kislyak broke and had become so upset with Flynn that he would not look at him during intelligence briefings. Priebus 1/18/18 302, at 8. Hicks said that the President thought Flynn had bad judgment and was angered by tweets sent by Flynn and his son, and she described Flynn as “being on thin ice” by early February 2017. Hicks 12/8/17 302, at 7, 10

As I’ve noted before, Trump made the same complaint to Jim Comey in their “loyalty demand” dinner on January 27, 2017 — but he did so in the context of Flynn not informing him that Vladimir Putin had beaten Theresa May to congratulating him about his inauguration.

All these details — including that Flynn publicly informed Trump of Putin’s call — should make Flynn a bigger counterintelligence concern, not one that could be dismissed more easily than Page and Manafort and Papadopoulos.

Unless Mueller had more certainty that Trump was in the loop of these sanctions discussions — either through Flynn or directly with Putin — than he lets on in the public report.

Mike Flynn’s Interviews with Prosecutors

To sum up, Mueller knows that someone already under investigation for his suspect calls to Russia and Sergey Kislyak got on the phone with Kislyak and undercut the Obama Administration’s attempt to punish Russia for its election interference. Flynn deliberately created a false record of that call, then lied about it when it became public the following month, and continued to lie about it when the FBI asked him about it.Trump allegedly got pissy that Flynn’s counterintelligence exposure had already been raised by Obama, but also got pissy that Flynn wasn’t being obsequious enough to Putin. But, when this all began to blow up in the press, rather than firing Flynn right away for being a counterintelligence problem — the outcome Sally Yates clearly expected would be the no-brainer result — Trump instead repeatedly tried to protect Flynn.

Which is why the likelihood that a key part of Flynn’s cooperation, that relating to the counterintelligence side of the equation, is so interesting.

As I noted when the addendum showing Flynn’s cooperation came out, it likely broke into the Turkish influence peddling [A], two (or maybe three?) topics relating to Trump [B], as well as more classified part of the investigation conducted under Mueller [C].

A Criminal Investigation:

11+ line paragraph

6.5 line paragraph

2 line paragraph

B Mueller investigation:

Introductory paragraph (9 lines)

i) Interactions between Transition Team and Russia (12 lines, just one or two sentences redacted)

ii) Topic two

10 line paragraph

9 line paragraph

C Entirely redacted investigation:

4.5 line paragraph

The footnotes from the Mueller Report describing what Flynn told prosecutors when seems to reinforce this.

  1. November 16, 2017: Trump appoint Flynn as NSA, first call with Putin, Israel vote, communications with Kislyak, December Kislyak call
  2. November 17, 2017: Israel vote, December Kislyak call, especially comms with Mar a Lago, re Ignatius Flynn said he had not talked sanctions, Mar a Lago with Trump, Flynn’s last meeting with Trump, “we’ll take care of you”
  3. November 19, 2017: Why sanctions, whether he told others at MAL, comms on 12/29, re Ignatius Flynn said he had not talked sanctions, Mar a Lago with Trump
  4. November 20, 2017: Whether he told others at MAL, response to Ignatius
  5. November 21, 2017: Whether he told others at MAL, response to Ignatius, meeting with Trump
  6. November 29, 2017: Peter Smith
  7. January 11, 2018: November 30 meeting with Kislyak
  8. January 19, 2018: Flynn did not have specific recollection about telling POTUS on January 3, 2017
  9. April 25, 2018: Peter Smith
  10. May 1, 2018: Peter Smith
  11. September 26, 2018: Proffer response on meetings with Foresman

We know from court filings that Flynn had 19 interviews with prosecutors, of which four pertain to his sleazy influence peddling with Turkey. Here’s what that seems to suggest about his interviews (assuming, probably incorrectly, that they didn’t cover multiple topics at once):

  • Turkish influence peddling: 4 interviews, unknown dates
  • Transition events, 7 interviews: 11/16/17, 11/17/17, 11/19/17, 11/20/17, 11/21/17, 1/11/18, 1/19/18
  • Peter Smith, 3 interviews: 11/29/17, 4/25/18, 5/1/18
  • Counterintelligence: Remaining 5 interviews???, unknown dates

It’s possible, however, there’s a third “links” topic pertaining to Transition era graft, which for scope reasons would not appear in the Mueller Report.

The possibility that Flynn may have had five interviews dedicated to a counterintelligence investigation that implicated Trump would make this Brian Ross story far more interesting. As the Report lays out, when hints that Flynn flipped first came out on November 22, 2017, one of Trump’s lawyers (probably John Dowd) left a voice mail message (!!!) with one of Flynn’s lawyers (probably Rob Kelner). He specifically wanted a heads up about anything that “implicates the President” which would create a “national security issue.”

I understand your situation, but let me see if I can’t state it in starker terms. . . . [I]t wouldn’t surprise me if you’ve gone on to make a deal with … the government. … [I]f . .. there’s information that implicates the President, then we’ve got a national security issue, . . . so, you know, . . . we need some kind of heads up. Um, just for the sake of protecting all our interests ifwe can …. [R]emember what we’ve always said about the ‘ President and his feelings toward Flynn and, that still remains ….

The following day, Trump’s lawyer told Flynn’s that cooperating would reflect hostility to the President.

A week later, once the plea was official on December 1, Flynn had the following leaked to ABC.

During the campaign, Trump asked Flynn to be one of a small group of close advisors charged with improving relations in Russia and other hot spots. The source said Trump phoned Flynn shortly after the election to explicitly ask him to “serve as point person on Russia,” and to reach out personally to Russian officials to develop strategies to jointly combat ISIS.

[snip]

“Flynn is very angry,” the confidant told ABC News Friday. “He will cooperate truthfully on any question they ask him.” [my emphasis]

Only, originally, the story read that Trump asked Flynn to reach out to Russia before the election. The story is often cited as one of the big gaffes of the Russian investigation, but Mother Jones has since corroborated the pre-election timeline with two Flynn associates.

For some reason, Mueller did not hold Mike Flynn responsible for — at a time when he was under active counterintelligence investigation for his ties to Russia — undercutting the official policy of the US on punishing Russia for its election year attack. I wonder whether the content of up to five counterintelligence interviews with Flynn may explain why.

As they are elsewhere, the Washington Post is trying to liberate the filings about Flynn’s cooperation that would explain all this. On Thursday, Emmet Sullivan — the same judge who, after seeing all the sealed filings in Flynn’s case, used some really inflammatory language about Flynn’s loyalty — set a briefing schedule for that effort. Then, acting on his own on Friday, Sullivan scheduled a hearing for June 24 (after the next status report in Flynn’s case but before he would be sentenced) to discuss liberating those filings.

So maybe we’ll find out from the WaPo’s efforts to liberate those documents.

Timeline of known Flynn investigation

November 10, 2016: Obama warns Trump that Mike Flynn’s name kept surfacing in concerns about Russia.

November 18, 2016: Trump names Flynn National Security Adviser.

November 18, 2016: Elijah Cummings warns Mike Pence of Flynn’s Turkish lobbying.

Shortly after inauguration: On “first” call with Kislyak, Flynn responds to Ambassador’s invitation to Russian Embassy that, “You keep telling me that,” alerting others to previous contacts between them.

January 24, 2017: In interview with FBI, Flynn lies about his contacts with Sergey Kislyak.

January 26 and 27, 2017: Sally Yates warns the White House about Flynn’s lies.

February 2, 2017: WHCO lawyer John Eisenberg reviews materials on Flynn’s interview.

February 13, 2017: Flynn fired.

July 19, 2017: Peter Strzok interviewed, in part, about Flynn interview, presumably as part of obstruction investigation.

November 16, 2017: Interview covers: Trump appoint Flynn as NSA, first call with Putin, Israel vote, communications with Kislyak, December Kislyak call.

November 17, 2017: Interview covers: Israel vote, December Kislyak call, especially comms with Mar a Lago, re Ignatius Flynn said he had not talked sanctions, Mar a Lago with Trump, Flynn’s last meeting with Trump, “we’ll take care of you.”

November 19, 2017: Interview covers: Why sanctions, whether he told others at MAL, comms on 12/29, re Ignatius Flynn said he had not talked sanctions, Mar a Lago with Trump.

November 20, 2017: Interview covers: Whether he told others at MAL, response to Ignatius.

November 21, 2017: Interview covers: Whether he told others at MAL, response to Ignatius, meeting with Trump.

November 22, 2017: Flynn withdraws from Joint Defense Agreement; Trump’s lawyer leaves a message for Flynn’s lawyer stating, in part, “if… there’s information that implicates the President, then we’ve got a national security
issue,…so, you know,…we need some kind of heads up.”

November 23, 2017: Flynn’s attorney returns Trump’s attorney’s call, the latter says cooperation would reflect hostility to the President.

November 29, 2017: Interview covers Peter Smith.

December 1, 2017: Flynn pleads guilty, has story leaked to Brian Ross that his cooperation covers Trump’s orders that he take “serve as point person on Russia,” originally stating that the order preceded the election; the story is corrected to say the order comes ” shortly after the election.” Two Flynn associates subsequently told Mother Jones the contacts did start before the election.

January 11, 2018: Interview covers November 30 meeting with Kislyak.

January 19, 2018: Interview covers Flynn did not have specific recollection about telling POTUS on January 3, 2017.

April 25, 2018: Interview covers Peter Smith.

May 1, 2018: Interview covers Peter Smith.

September 17, 2018: Status report asking for sentencing.

September 26, 2018: Flynn’s attorney offers proffer response on meetings with Bob Foresman.

December 18, 2018: After Judge Emmet Sullivan invokes treason and selling out his country, Flynn delays sentencing.


The Volume I Narrative about December 29, 2016

Shortly thereafter, Flynn sent a text message to McFarland summarizing his call with Kislyak from the day before, which she emailed to Kushner, Bannon, Priebus, and other Transition Team members. 1265 The text message and email did not include sanctions as one of the topics discussed with Kislyak. 1266 Flynn told the Office that he did not document his discussion of sanctions because it could be perceived as getting in the way of the Obama Administration’s foreign policy.126

The sanctions were announced publicly on December 29, 2016. 1231 At 1 :53 p.m. that day, McFarland began exchanging emails with multiple Transition Team members and advisors about the impact the sanctions would have on the incoming Administration. 1232 At 2:07 p.m., a Transition Team member texted Flynn a link to a New York Times article about the sanctions. 1233 At 2:29 p.m., McFarland called Flynn, but they did not talk. 1234 Shortly thereafter, McFarland and Bannon discussed the sanctions. 1235 According to McFarland, Bannon remarked that the sanctions would hurt their ability to have good relations with Russia, and that Russian escalation would make things more difficult. 1236 McFarland believed she told Bannon that Flynn was scheduled to talk to Kislyak later that night. 1237 McFarland also believed she may have discussed the sanctions with Priebus, and likewise told him that Flynn was scheduled to talk to Kislyak that night. 1238 At 3: 14 p.m., Flynn texted a Transition Team member who was assisting McFarland, “Time for a call???”1239 The Transition Team member responded that McFarland was on the phone with Tom Bossert, a Transition Team senior official, to which Flynn responded, “Tit for tat w Russia not good. Russian AMBO reaching out to me today.” 1240

Flynn recalled that he chose not to communicate with Kislyak about the sanctions until he had heard from the team at Mar-a-Lago.1241 He first spoke with Michael Ledeen, 1242 a Transition Team member who advised on foreign policy and national security matters, for 20 minutes. 1243 Flynn then spoke with McFarland for almost 20 minutes to discuss what, if anything, to communicate to Kislyak about the sanctions. 1244 On that call, McFarland and Flynn discussed the sanctions, including their potential impact on the incoming Trump Administration’s foreign policy goals. 1245 McFarland and Flynn also discussed that Transition Team members in Mar-a-Lago did not want Russia to escalate the situation. 1246 They both understood that Flynn would relay a message to Kislyak in hopes of making sure the situation would not get out of hand.1247

Immediately after speaking with McFarland, Flynn called and spoke with Kislyak. 1248 Flynn discussed multiple topics with Kislyak, including the sanctions, scheduling a video teleconference between President-Elect Trump and Putin, an upcoming terrorism conference, and Russia’s views about the Middle East. 1249 With respect to the sanctions, Flynn requested that Russia not escalate the situation, not get into a “tit for tat,” and only respond to the sanctions in a reciprocal manner.1250

Multiple Transition Team members were aware that Flynn was speaking with Kislyak that day. In addition to her conversations with Bannon and Reince Priebus, at 4:43 p.m., McFarland sent an email to Transition Team members about the sanctions, informing the group that “Gen [F]lynn is talking to russian ambassador this evening.” 1251 Less than an hour later, McFarland briefed President-Elect Trump. Bannon, Priebus, Sean Spicer, and other Transition Team members were present. 1252 During the briefing, President-Elect Trump asked McFarland if the Russians did “it,” meaning the intrusions intended to influence the presidential election. 1253 McFarland said yes, and President-Elect Trump expressed doubt that it was the Russians.1254 McFarland also discussed potential Russian responses to the sanctions, and said Russia’s response would be an indicator of what the Russians wanted going forward. 1255 President-Elect Trump opined that the sanctions provided him with leverage to use with the Russians. 1256 McFarland recalled that at the end of the meeting, someone may have mentioned to President-Elect Trump that Flynn was speaking to the Russian ambassador that evening. 1257

After the briefing, Flynn and McFarland spoke over the phone. 1258 Flynn reported on the substance of his call with Kislyak, including their discussion of the sanctions. 1259 According to McFarland, Flynn mentioned that the Russian response to the sanctions was not going to be escalatory because they wanted a good relationship with the incoming Administration.1260 McFarland also gave Flynn a summary of her recent briefing with President-Elect Trump. 1261

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. 

One Man’s Declination Decision Is Another Man’s Criminal Suspect Failson

One thing Robert Mueller’s March 27 letter to Attorney General William Barr reveals — in addition to the fact that Mueller is as pissed as he has ever been in his career — is that the two men think very differently about the redactions in the now released report. DOJ has always said it redacted information for four reasons:

  • Grand jury material
  • Ongoing investigations
  • Investigative techniques (sources and methods)
  • Peripheral privacy

It was always clear the last category was — as described — abusively applied. That’s because a number of knowable PP details involve people who are not peripheral at all. For example, I suggested that the redacted description of someone who committed perjury on page 194 might be Carter Page (one other possibility, given the discrepancies between George Papadopoulos and Sam Clovis’ testimony, is the latter figure). One of the people whose lies are detailed on page 199 must be KT McFarland, who managed to correct the lies she told when first interviewed by the FBI in the wake of Mike Flynn’s plea deal.

But the most obvious example of this comes in the scope paragraph on page 12:

While the first redaction is uncertain, the second redaction of the expanded scope — which came after the investigation started focusing on the June 9 meeting — has to be Don Jr given the spacing on the second line, which can only be a suffix.

KT McFarland is not a peripheral figure by any shade. But the President’s son is the definition of a central player. And yet Bill Barr would have you believe that redaction is some coffee boy hired on a whim.

And the thing is, these redactions are hiding not just innocent bystanders. Don Jr is someone whom Mueller believed broke the law — at least on campaign finance and maybe on CFAA when he accessed a non-public site using a password obtained from WikiLeaks (I had thought the redaction on page 179 was of some script kiddies investigated in Philadelphia, but now that I realize these PP redactions are not of peripheral people at all, I’m reconsidering) — but who couldn’t or shouldn’t be charged.

Compare his treatment with that of Jeff Sessions’ forgetfulness about meeting with Sergey Kislyak, which the report presents as a complete exoneration. The discussion of that exoneration is unredacted in both the investigative scope on page 12 and declinations section (197-198).

Mueller in his letter makes it clear he doesn’t consider that PP category peripheral people. Rather, he treats it as a declination decision.

I previously sent you a letter dated March 25, 2019, that enclosed the introduction and executive summary for each volume of the Special Counsel’s report marked with redactions to remove any information that potentially could be protected by Federal Rule of Criminal Procedure 6(e); that concerned declination decisions; or that related to a charged case. [my emphasis]

The appropriateness of the redaction may be the same in both cases: clearly Mueller believes those not charged, even if it was a close call, should not be identified (with the notable exception of Jeff Sessions).

But Mueller is not pretending these are peripheral figures. The Attorney General is hiding the seriousness of potential criminal acts by at least five Trump flunkies — including Trump’s failson — by pretending these people are peripheral figures rather than central figures that, for whatever reason, the Special Counsel decided not to charge.

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 Violated Campaign Policy in Risking a Meeting with Konstantin Kilimnik on August 2, 2016

When Don Jr testified before the Senate Judiciary Committee, he defended accepting a meeting from a bunch of Russians offering dirt, in part, by noting that he took the meeting before there was such a focus on “Russian activities.”

Nonetheless, at the time I thought I should listen to what Rob and his colleagues had to say. To the extent that they had information concerning the fitness, character, or qualifications of any presidential candidate, I believed that I should at least hear them out. Depending on what, if any, information that they had, I could then consult with counsel to make an informed decision as to whether to give it any further consideration. I also note at this time  there was no focus on Russian activities that there is today.

The guy who Mueller decided was too stupid to be charged with a campaign finance violation basically explained away doing so (as he has elsewhere): that because the public wasn’t yet aware of the efforts Russia was making to get his dad elected — and the suspicious ties between key campaign figures and Russians — it was reasonable for him to take dirt from Russians.

And the Mueller Report actually does show that the campaign passed up offers from Russians they otherwise seemed to find attractive later in the summer, after the release of the DNC emails made Russia’s intentions clear.

For example, after Sergei Millian reached out to George Papadopoulos promising to help him reach leaders of the Russian-American community, the “Coffee Boy” was instructed to decline the offer because too many stories were accurately telling voters how pro-Russian both the campaign and — especially — Paul Manafort was.

On July 31, 2016, following his first in-person meeting with Millian, Papadopoulos emailed Trump Campaign official Bo Denysyk to say that he had been contacted “by some leaders of Russian-American voters here in the US about their interest in voting for Mr. Trump,” and to ask whether he should “put you in touch with their group (US-Russia chamber of commerce).”507 Denysyk thanked Papadopoulos “for taking the initiative,” but asked him to “hold off with outreach to Russian-Americans” because “too many articles” had already portrayed the Campaign, then-campaign chairman Paul Manafort, and candidate Trump as “being pro-Russian.”508

Similarly when, after JD Gordon twice emphasized with Sergei Kislyak at the Convention that he had meant what he said in his speech — that the US should have better relations with Russia (see pages 123-4) — Kislyak invited Gordon to breakfast at his residence. Gordon would have been happy to take the invite, according to an email he sent in response to the invitation. But he said he’d take a raincheck for when “things quiet down a bit.”

On August 3, 2016, an official from the Embassy of the Russian Federation in the United States wrote to Gordon ” [o]n behalf of’ Ambassador Kislyak inviting Gordon “to have breakfast/tea with the Ambassador at his residence” in Washington, D.C. the following week.818 Gordon responded five days later to decline the invitation. He wrote, “[t]hese days are not optimal for us, as we are busily knocking down a constant stream of false media stories while also preparing for the first debate with HRC. Hope to take a raincheck for another time when things quiet down a bit. Please pass along my regards to the Ambassador.” 819

While Gordon doesn’t say the “false media stories” were explicitly about Russia, that is where the focus was at the time (indeed, the defeat of the Ukraine amendment in the platform that Gordon himself had carried out was one focus of that media attention). Update: In the obstruction section, the report confirms this was about Russia:

For example, in August 2016, foreign policy advisor J.D. Gordon declined an invitation to Russian Ambassador Sergey Kislyak’s residence because the timing was “not optimal” in view of media reports about Russian interference.46

46 DJTFP00004953 (8/8/16 Email, Gordon to Pchelyakov) (stating that “[t]hese days are not optimal for us, as we are busily knocking down a stream of false media stories”).

So it seems clear that in the wake of the DNC dump and revelations about the platform, Carter Page, and Manafort, the campaign did make a conscious effort to “take a raincheck” on any more approaches from Russia.

It’s against that background that the August 2 meeting between Manafort, Rick Gates, and someone Gates believed was a Russian spy, Konstantin Kilimnik, is all the more remarkable.

As the report describes, at the same time other campaign staffers were being told to turn down approaches from Russia, the campaign manager set up a late night meeting with the same Russian employee who was involved in so much of the scandal (and to whom he had been sending internal polling data since the spring). At the meeting, the campaign manager discussed at least three things: how Trump planned to win the three states that would ultimately make the difference in the election — Pennsylvania, Wisconsin, and Michigan (along with Minnesota, which also was unexpectedly close), a plan that required Manafort and Trump’s buy-off to give Russia part of Ukraine, and a way for Manafort (who was working for Trump for “free”) to get paid by Ukrainian oligarchs and to get Oleg Deripaska to forgive a huge debt.

The events leading to the meeting are as follows. On July 28, 2016, Kilimnik flew from Kiev to Moscow.912 The next day, Kilimnik wrote to Manafort requesting that they meet, using coded language about a conversation he had that day.913 In an email with a subject line “Black Caviar,” Kilimnik wrote:

I met today with the guy who gave you your biggest black caviar jar several years ago. We spent about 5 hours talking about his story, and I have several important messages from him to you. He asked me to go and brief you on our conversation. I said I have to run it by you first, but in principle I am prepared to do it. … It has to do about the future of his country, and is quite interesting.914

Manafort identified “the guy who gave you your biggest black caviar jar” as Yanukovych. He explained that, in 2010, he and Y anukovych had lunch to celebrate the recent presidential election. Yanukovych gave Manafort a large jar of black caviar that was worth approximately $30,000 to $40,000.915 Manafort’s identification of Yanukovych as “the guy who gave you your biggest black caviar jar” is consistent with Kilimnik being in Moscow-where Yanukovych resided-when Kilimnik wrote “I met today with~ a December 2016 email in which Kilimnik referred to Yanukovych as “BG,”-916 Manafort replied to Kilimnik’s July 29 email, “Tuesday [August 2] is best . .. Tues or weds in NYC.”917

Three days later, on July 31, 2016, Kilimnik flew back to Kiev from Moscow, and on that same day, wrote to Manafort that he needed “about 2 hours” for their meeting “because it is a long caviar story to tell.”918 Kilimnik wrote that he would arrive at JFK on August 2 at 7:30 p.m., and he and Manafort agreed to a late dinner that night.919 Documentary evidence- including flight, phone, and hotel records, and the timing of text messages exchanged920-confirms the dinner took place as planned on August 2.921

As to the contents of the meeting itself, the accounts of Manafort and Gates — who arrived late to the dinner — differ in certain respects. But their versions of events, when assessed alongside available documentary evidence and what Kilimnik told business associate Sam Patten, indicate that at least three principal topics were discussed.

First, Manafort and Kilimnik discussed a plan to resolve the ongoing political problems in Ukraine by creating an autonomous republic in its more industrialized eastern region of Donbas,922 and having Yanukovych, the Ukrainian President ousted in 2014, elected to head that republic.923 That plan, Manafort later acknowledged, constituted a “backdoor” means for Russia to control eastern Ukraine.924 Manafort initially said that, if he had not cut off the discussion, Kilimnik would have asked Manafort in the August 2 meeting to convince Trump to come out in favor of the peace plan, and Yanukovych would have expected Manafort to use his connections in Europe and Ukraine to support the plan.925 Manafort also initially told the Office that he had said to Kilimnik that the plan was crazy, that the discussion ended, and that he did not recall Kilimnik asking Manafort to reconsider the plan after their August 2 meeting.926 Manafort said [redacted] that he reacted negatively to Yanukovych sending — years later — an “urgent” request when Yanukovych needed him.927 When confronted with an email written by Kilimnik on or about December 8, 2016, however, Manafort acknowledged Kilimnik raised the peace plan again in that email.928 Manafort ultimately acknowled ed Kilimnik also raised the eace Ian in ~ary 2017 meetings with Manafort [grand jury redaction] 929

Second, Manafort briefed Kilimnik on the state of the Trump Campaign and Manafort’s plan to win the election.930 That briefing encompassed the Campaign’s messaging and its internal polling data. According to Gates, it also included discussion of “battleground” states, which Manafort identified as Michigan, Wisconsin, Pennsylvania, and Minnesota.931 Manafort did not refer explicitly to “battleground” states in his telling of the August 2 discussion, [grand jury redaction]

Third, according to Gates and what Kilimnik told Patten, Manafort and Kilimnik discussed two sets of financial disputes related to Manafort’s previous work in the region. Those consisted of the unresolved Deripaska lawsuit and the funds that the Opposition Bloc owed to Manafort for his political consulting work and how Manafort might be able to obtain payment.933

Eight days after that meeting at which Manafort described how they might win Rust Belt swing states, where Kilimnik pitched a plan to break up Ukraine, and where Kilimnik also explained what Manafort would have to do to get paid by his Ukrainian paymasters, Manafort told his accountant to book that Ukrainian money, which he said would be paid in November.

Here’s the thing about this meeting, which Trump’s campaign manager and his deputy attended even while the campaign was telling other associates to “take a rain check” on outreach from Russia. They, too, recognized the problem of being caught accepting such outreach. They just tried to avoid getting caught.

After the meeting, Gates and Manafort both. stated that they left separately from Kilimnik because they knew the media was tracking Manafort and wanted to avoid media reporting on his connections to Kilimnik.934

This is a point Amy Berman Jackson made when she ruled that Manafort had lied about this meeting (and the sharing of polling data).

If he was, as he told me, so single-mindedly focused on the campaign, then the meeting he took time to attend and had [redacted] had a purpose [redacted]. Or, if it was just part of his effort to [redacted], well, in that case he’s not being straight with me about how single-minded he was. It’s not good either way.

Plus, his asserted inability to remember rings hollow when the event we are discussing involving [redacted] not only [redacted] but he’s [redacted] with a specific understanding and intent that [redacted] at a meeting in which the participants made it a point of leaving separate because of the media attention focused at that very time on Manafort’ relationships with Ukraine.

Manafort had claimed he was so busy trying to win a campaign that he forgot the meeting at which he discussed carving up Ukraine in the same two hour discussion where he talked about the import of Pennsylvania, Michigan, and Wisconsin in winning that campaign. And to attend the meeting, he risked public scrutiny on precisely the Russian ties that every other member of the campaign was being told to discourage.

Update: This Amy Berman Jackson order reveals a little more about how Rick Gates’ updated testimony changes the story. It sounds like when Gates heard that prosecutors used Manafort’s order to Gates to print out polling data on August 2 to prove that he had shared it with Kilimnik, he contacted prosecutors and told them that they had, in fact, used it at the staff meeting that morning, which is the explanation Manafort gave for the order. He says he arrived late so doesn’t know if Manafort shared that particular polling data with Kilimnik.

But ABJ refused Manafort’s request for reconsideration of her judgment that he lied about that for several reasons:

  • He still lied about sharing polling data to be passed on to Ukrainian and Russian oligarchs
  • He still lied about the Ukraine “peace” deals
  • She still gave him credit for his plea

Given those details, the Manafort bid for reconsideration must just be an attempt to discredit what is one of the most damning details in the Mueller Report.

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. 

Two Exceptions to Trump’s “Do Not Recall” Responses: A Limited Answer on an Assange Pardon and a Non-Answer on Sanctions Relief

With few exceptions, the questions Mueller posed to Trump were questions I expected: his awareness of the June 9 meeting,  the Russian hacking and Stone’s attempts to optimize the release of stolen emails, the Trump Tower Moscow deal,  Manafort’s sharing of polling data and the platform on sanctions relief, and Trump’s role in Flynn’s calls with Sergey Kislyak.

One question I did not expect was about whether Trump attended the World Chess Championship on November 10, 2016; the report makes it clear there were allegations that Kirill Dmitriev made a last minute decision to attend it to meet with Trump, though Trump denies he attended. Notably, by answering, Trump reflected a willingness to answer a question about the transition period.

One question I did not expect, however, pertained to a pardon for Julian Assange.

Did you have any discussions prior to January 20, 2017, regarding a potential pardon or other action to benefit Julian Assange? If yes, describe who you had the discussion(s) with, when, and the content of the discussion(s).

As with most of the questions, Trump answered with a “do not recall” answer.

I do not recall having had any discussion during the campaign regarding a pardon or action to benefit Julian Assange.

Except that (as he did on some other questions that largely pertained solely to election period activities), he specifically limited his answer to the campaign period. He basically refused to answer regarding any discussion of a pardon during the transition. That’s particularly interesting for two reasons.

In the report’s discussion of Don Jr’s DMs with WikiLeaks, they don’t mention the one where Assange suggests his father should get him named Ambassador to the US.

Hi Don. Hope you’re doing well! In relation to Mr. Assange: Obama/Clinton placed pressure on Sweden, UK and Australia (his home country) to illicitly go after Mr. Assange. It would be real easy and helpful for your dad to suggest that Australia appoint Assange ambassador to DC “That’s a really smart tough guy and the most famous australian you have! ” or something similar. They won’t do it, but it will send the right signals to Australia, UK + Sweden to start following the law and stop bending it to ingratiate themselves with the Clintons. 12/16/16 12:38PM

And, we know that after inauguration and into 2018, a series of Trump flunkies kept trying to broker a pardon for Assange.

Now, as reported, Trump refused to answer questions about about the transition (except for that chess championship one). So that may be his explanation for limiting his answer. But the effect seems to suggest he did discuss pardoning Assange.

His refusal to answer questions about the transition also explains why he didn’t answer a slew of other questions, generally about Flynn’s communications with Kislyak and Kushner and Steve Bannon’s attempts to establish a back channel with Russia.

Particularly given Bannon and Erik Prince’s deleted texts and the inclusion of the follow-up in the January 28 conference call with Putin, it’s pretty clear Trump knew about it (and so probably also knew about Flynn’s activities).

But there is one question about sanctions relief that Trump didn’t answer, offering no excuse. It appears as a sub-question to one about the Trump’s promise — at the same press conference he asked and Russia to further hacking Hillary — to lift sanctions on Russia.

g. On July 27, 2016, in response to a question about whether you would recognize Crimea as Russian territory and lift sanctions on Russia, you said: “We’ ll be looking at that. Yeah, we’ll be looking.” Did you intend to communicate by that statement or at any other time during the campaign a willingness to lift sanctions and/or recognize Russia’s annexation of Crimea if you were elected?

i. What consideration did you give to lifting sanctions and/or recognizing Russia’s annexation of Crimea if you were elected? Describe who you spoke with about this topic, when, the substance of the discussion(s).

Trump responded to the Crimea question — by claiming his statement did not communicate any position.

But Trump did not answer the sub-question, whether he considered lifting sanctions and whom he spoke with about that. That question was in no way limited to the transition, and therefore should have been answered.

And it’s not like Trump simply missed the question: His lawyers replicated it in their own answers. And they read Mueller’s questions closely enough to add a “sic” where Mueller had included a double “about.”

Were you asked to attend the World Chess Championship gala on November 10, 2016? If yes, who asked you to attend, when were you asked, and what were you told about about why your presence was requested?

[snip]

Were you asked to attend the World Chess Championship gala on November 10, 2016? If yes, who asked you to attend, when were you asked, and what were you told about about [sic] why your presence was requested?

So they presumably saw the question, a question that on its face pertained to the election as well as the transition.

They just didn’t answer it.

So the two things that even given Trump’s contemptuous response to responding to basic answers about the Russian investigation he refused to answer pertain to a Julian Assange pardon (for the transition period) and sanctions relief.

EMPTYWHEEL’S MUELLER REPORT COVERAGE

Two Exceptions to Trump’s “Do Not Recall” Responses: A Limited Answer on an Assange Pardon and a Non-Answer on Sanctions Relief

The Significance of Trump’s Obstruction of Investigation of His Family’s Campaign Finance Crimes, Plural

How “Collusion” Appears in the Mueller Report

Putin’s Ghost: The Counterintelligence Calculus Not Included in the Obstruction Analysis

Working Twitter Threads on the Mueller Report

The Trump Men and the Grand Jury Redactions

Mueller’s Language about “Collusion,” Coordination, and Conspiracy

The Many Lies and Prevarications of Bill Barr

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. 

Putin’s Ghost: The Counterintelligence Calculus Not Included in the Obstruction Analysis

The Mueller Report does not include the investigation’s counterintelligence analysis. It says that explicitly here (see also this Ben Wittes report, though I think he gets a few things wrong).

From its inception, the Office recognized that its investigation could identify foreign intelligence and counterintelligence information relevant to the FBI’s broader national security mission. FBI personnel who assisted the Office established procedures to identify and convey such information to the FBI. The FBI’s Counterintelligence Division met with the Office regularly for that purpose for most of the Office’s tenure. For more than the past year, the FBI also embedded personnel at the Office who did not work on the Special Counsel’s investigation, but whose purpose was to review the results of the investigation and to send-in writing-summaries of foreign intelligence and counterintelligence information to FBIHQ and FBI Field Offices. Those communications and other correspondence between the Office and the FBI contain information derived from the investigation, not all of which is contained in this Volume. This Volume is a summary. It contains, in the Office’s judgment, that information necessary to account for the Special Counsel’s prosecution and declination decisions and to describe the investigation’s main factual results. [my emphasis]

These FBI Agents were only co-located for part of Mueller’s tenure, perhaps around the same time as the IRA indictment? And this description does not include the three NSD prosecutors described as detailees, Heather Alpino, Ryan Dickey, and Jessica Romero, as distinct from prosecutors originally assigned to Mueller.

Plus, we know there was always a counterintelligence focus to this investigation; all the initial subjects of it (Manafort, Page, Papadopoulos, and Flynn) were counterintelligence concerns. Other Trump associates got added in October 2017, but even there, the investigation into Michael Cohen started as a FARA investigation and Gates and probably others were brought in along with Manafort’s counterintelligence concerns. Then there’s Trump (who must have been brought in for obstruction, but I don’t think the report says how).

But the most significant thing that doesn’t show up in this report is whether Trump was undercutting the investigation as a favor to Russia, reportedly one of the concerns Rod Rosenstein had when he first hired Mueller. This report does not explicitly treat that concern, at all (to significant detriment to one area of its analysis, as I’ll show in a follow-up post).

That’s most evident in the way the report deals with Vladimir Putin in the post-inauguration period. The report itself invokes Putin at least 163 times, often describing the many different efforts to set up a meeting between Putin and Trump. But when Trump actually started meeting with top Russian officials — and Putin specifically — the report gets quiet.

We finally get a read-out of the January 28 phone call

Start with the phone call between Trump and Putin on January 28, 2017. The report describes that setting up this call was among the things Mike Flynn spoke to Sergey Kislyak about.

Flynn discussed multiple topics with Kislyak, including the sanctions, scheduling a video teleconference between President-Elect Trump and Putin, an upcoming terrorism conference, and Russia’s views about the Middle East.

That Kislyak asked him to set up the call was actually something Flynn told the FBI the truth about in his interview with the FBI. More importantly, the report reveals several details that previous reporting about the George Nader channel did not: first, the role of Jared Kushner’s hedge fund buddy Rick Gerson in that back channel with Kirill Dmitriev, and the role that a “reconciliation plan” that Dmitriev got to Kushner via Gerson played in that January 28 meeting.

On January 16, 2017, Dmitriev consolidated the ideas for U.S.-Russia reconciliation that he and Gerson had been discussing into a two-page document that listed five main points: (1) jointly fighting terrorism; (2) jointly engaging in anti-weapons of mass destruction efforts; (3) developing “win-win” economic and investment initiatives; (4) maintaining an honest, open, and continual dialogue regarding issues of disagreement; and (5) ensuring proper communication and trust by “key people” from each country. 1111 On January 18, 2017, Gerson gave a copy of the document to Kushner. 1112 Kushner had not heard of Dmitriev at that time. 1113 Gerson explained that Dmitriev was the head of RDIF, and Gerson may have alluded to Dmitriev’s being well connected. 1114 Kushner placed the document in a file and said he would get it to the right people. 1115 Kushner ultimately gave one copy of the document to Bannon and another to Rex Tillerson; according to Kushner, neither of them followed up with Kushner about it. 1116 On January 19, 2017, Dmitriev sent Nader a copy of the two-page document, telling him that this was “a view from our side that I discussed in my meeting on the islands and with you and with our friends. Please share with them – we believe this is a good foundation to start from.” 1117

Gerson informed Dmitriev that he had given the document to Kushner soon after delivering it. 1118 On January 26, 2017, Dmitriev wrote to Gerson that his “boss”-an apparent reference to Putin-was asking if there had been any feedback on the proposal. 1119 Dmitriev said, ” [w]e do not want to rush things and move at a comfortable speed. At the same time, my boss asked me to try to have the key US meetings in the next two weeks if possible.”1120 He informed Gerson that Putin and President Trump would speak by phone that Saturday, and noted that that information was “very confidential.”1121

The same day, Dmitriev wrote to Nader that he had seen his “boss” again yesterday who had “emphasized that this is a great priority for us and that we need to build this communication channel to avoid bureaucracy.” 1122 On January 28, 2017, Dmitriev texted Nader that he wanted “to see if I can confirm to my boss that your friends may use some of the ideas from the 2 pager I sent you in the telephone call that will happen at 12 EST,”1123 an apparent reference to the call scheduled between President Trump and Putin. Nader replied, “Definitely paper was so submitted to Team by Rick and me. They took it seriously!”1124 After the call between President Trump and Putin occurred, Dmitriev wrote to Nader that “the call went very well. My boss wants me to continue making some public statements that us [sic] Russia cooperation is good and important.” 1125 Gerson also wrote to Dmitriev to say that the call had gone well, and Dmitriev replied that the document they had drafted together “played an important role.” 1126 [my emphasis]

This was a meeting that the US side provided just a terse readout of (and, if I remember correctly, only after Russia released its readout). 27 months later, we’re learning that Dmitriev (whose bank was of questionable status because of sanctions) and convicted pedophile Nader were prepping the meeting less than an hour before it began (the report cites text messages between them from 11:05 and 11:11 AM the morning of the 12PM meeting, as well as texts involving Gerson). Between them, the two of them plus Gerson (none of whom had clearance) had a better sense of how the meeting went than the American public. Among the things they learned — but we did not — was that part of the reconciliation plan included “win-win” economic and investment initiatives pitched by the head of RDIF.

The lead-up to this meeting is the subject about which Steve Bannon and Erik Prince mysteriously lost the encrypted texts they exchanged discussing it.

While the report does describe this meeting in its assessment of links between Russians and Trump associates, it doesn’t focus on how it lines up with questions about firing Mike Flynn.

The correlation of Trump’s decision to fire Comey and his conversation with Putin

The report gets still more coy when it describes the role of a meeting with Sergey Lavrov and Sergey Kislyak the day after Trump fired Jim Comey. One of the most pregnant footnotes in the report (h/t Laura Rozen) notes that the May 10, 2017 meeting was planned in a call between Putin and Trump and confirmed the day Trump first dictated the Comey termination at Bedminster Golf Course.

468 SCR08_000353 (5/9/17 White House Document, “Working Visit with Foreign Minister Sergey Lavrov of Russia”); SCR08_001274 (5/10/17 Email, Ciaramella to Kelly et al.). The meeting had been planned on May 2, 2017, during a telephone call between the President and Russian President Vladimir Putin, and the meeting date was confirmed on May 5, 2017, the same day the President dictated ideas for the Comey termination letter to Stephen Miller. SCR08_001274 (5/10/17 Email, Ciaramella to Kelly et al.).

According to Don McGahn, in the leadup to Comey’s May 3 testimony to Congress, Trump told him that if Comey did not confirm that Trump was not under investigation it would “be the last straw” because it was “hurting his ability to … deal with foreign leaders.”

McGahn recalled that in the week leading up to the hearing, the President said that it would be the last straw if Comey did not take the opportunity to set the record straight by publicly announcing that the President was not under investigation.384 The President had previously told McGahn that the perception that the President was under investigation was hurting his ability to carry out his presidential duties and deal with foreign leaders.385

Trump brought up Comey at least 8 times with Bannon in the following two days, and Bannon warned Trump not to fire Comey.

Bannon recalled that the President brought Comey up with him at least eight times on May 3 and May 4, 2017 .399 According to Bannon, the President said the same thing each time: “He told me three times I’m not under investigation. He’s a showboater. He’s a grandstander. I don’t know any Russians. There was no collusion.”400 Bannon told the President that he could not fire Comey because “that ship had sailed.”401 Bannon also told the President that firing Comey was not going to stop the investigation, cautioning him that he could fire the FBI director but could not fire the FBI.402

On the 5th — the day (the report helpfully notes) the Russian meeting was confirmed — Trump dictated to Stephen Miller to start Comey’s termination letter by stating that the Trump-Russia story was fabricated.

[T]he President told Miller that the letter should start, “While I greatly appreciate you informing me that I am not under investigation concerning what I have often stated is a fabricated story on a Trump-Russia relationship – pertaining to the 2016 presidential election, please be informed that I, and I believe the American public – including Ds and Rs – have lost faith in you as Director of the FBI.”

Trump prohibited Miller from telling anyone at the White House about his plan to fire Comey.

All that would lead you to believe the report might make further note about this correlation, about the appearance (which had already been suggested, but the report makes far more clear) that Trump took action in advance of that meeting.

It doesn’t really. The description of the meeting does make clear that, in the wake of Trump’s comments to Lavrov boasting about firing Comey, the White House released a statement that incorporated and expanded on the language about Comey’s grandstanding from finalized Miller letter drafted at Bedminster.

In the morning on May 10, 2017, President Trump met with Russian Foreign Minister Sergey Lavrov and Russian Ambassador Sergey Kislyak in the Oval Office.468 The media subsequently reported that during the May 10 meeting the President brought up his decision the prior day to terminate Comey, telling Lavrov and Kislyak: “T just fired the head of the F.B.I. He was crazy, a real nut job. I faced great pressure because of Russia. That’s taken off. … I’m not under investigation.”469 The President never denied making those statements, and the White House did not dispute the account, instead issuing a statement that said: “By grandstanding and politicizing the investigation into Russia’s actions, James Comey created unnecessary pressure on our ability to engage and negotiate with Russia. The investigation would have always continued, and obviously, the termination of Comey would not have ended it. Once again, the real story is that our national security has been undermined by the leaking of private and highly classified information.”470 Hicks said that when she told the President about the reports on his meeting with Lavrov, he did not look concerned and said of Comey, “he is crazy.”471 When McGahn asked the President about his comments to Lavrov, the President said it was good that Comey was fired because that took the pressure off by making it clear that he was not under investigation so he could get more work done.472 [my emphasis]

What the report doesn’t mention, at all, is that Trump shared sensitive Israeli intelligence with the Russians at this meeting, an obvious counterintelligence concern.

Trump’s secret co-author on the June 9 meeting statement

An even more remarkable silence in the report pertains to the conversation Trump had with Putin at the G20 while his team was working on drafting the statement about the June 9 meeting.

The description of Trump’s actions on this matter are fairly superlative, with Hope Hicks describing Trump in what is best described as denial, refusing to be included in conversations about it, yet strongly suggesting that it was Trump making the comment — suggesting they could withhold the damning emails — that Mark Corallo later attributed to her. Hicks even describes Trump as committing what he considered the ultimate sin, not commenting on a story.

On July 7, 2017, while the President was overseas, Hicks and Raffel learned that the New York Times was working on a story about the June 9 meeting.695 The next day, Hicks told the President about the story and he directed her not to comment.696 Hicks thought the President’s reaction was odd because he usually considered not responding to the press to be the ultimate sin.697

The report then describes how (in what would have been in the wake of Trump’s first face-to-face meeting with Putin) Trump instructed her to claim the meeting was just about adoptions. It then describes Trump dictating a statement, watering down the offer of dirt to just adoptions, something that not even Don Jr was willing to put out.

Later that day, Hicks and the President again spoke about the story.698 Hicks recalled that the President asked her what the meeting had been about, and she said that she had been told the meeting was about Russian adoption.699 The President responded, “then just say that.”700

On the flight home from the G20 on July 8, 2017, Hicks obtained a draft statement about the meeting to be released by Trump Jr. and brought it to the President.701 The draft statement began with a reference to the information that was offered by the Russians in setting up the meeting: “I was asked to have a meeting by an acquaintance I knew from the 2013 Miss Universe pageant with an individual who I was told might have information helpful to the campaign.”702 Hicks again wanted to disclose the entire story, but the President directed that the statement not be issued because it said too much.703 The President told Hicks to say only that Trump Jr. took a brief meeting and it was about Russian adoption.704 After speaking with the President, Hicks texted Trump Jr. a revised statement on the June 9 meeting that read:

It was a short meeting. I asked Jared and Paul to stop by. We discussed a program about the adoption of Russian children that was active and popular with American families years ago and was since ended by the Russian government, but it was not a campaign issue at that time and there was no follow up. 705

Hicks’s text concluded, “Are you ok with this? Attributed to you.”706 Trump Jr. responded by text message that he wanted to add the word “primarily” before “discussed” so that the statement would read, “We primarily discussed a program about the adoption of Russian children.”707 Trump Jr. texted that he wanted the change because “[t]hey started with some Hillary thing which was bs and some other nonsense which we shot down fast. “708 Hicks texted back, “I think that’s right too but boss man worried it invites a lot of questions[.) [U]ltimately [d]efer to you and [your attorney] on that word Be I know it’s important and I think the mention of a campaign issue adds something to it in case we have to go further.” 709 Trump Jr. responded, “lfl don’t have it in there it appears as though I’m lying later when they inevitably leak something.” 710

The passage mentions nothing about Trump’s meeting, with no American aides, with Putin at the G20 dinner in between the first discussion of a statement about adoptions and the one Trump drafted personally.

Nor does the report, in repeated discussions of Trump’s unplanned interview with the NYT at which he admitted discussing adoptions with Putin that night, mention that admission.

Within hours of the President’s meeting with Lewandowski on July 19, 2017, the President gave an unplanned interview to the New York Times in which he criticized Sessions’s decision to recuse from the Russia investigation.630 The President said that “Sessions should have never recused himself, and if he was going to recuse himself, he should have told me before he took the job, and I would have picked somebody else.”631 Sessions’s recusal, the President said, was “very unfair to the president. How do you take a job and then recuse yourself? If he would have recused himself before the job, I would have said, ‘Thanks, Jeff, but I can’t, you know, I’m not going to take you.’ It’s extremely unfair, and that’s a mild word, to the president.”632 Hicks, who was present for the interview, recalled trying to “throw [herself] between the reporters and [the President]” to stop parts of the interview, but the President “loved the interview.”633

[snip]

On July 19, 2017, the President had his follow-up meeting with Lewandowski and then met with reporters for the New York Times. In addition to criticizing Sessions in his Times interview, the President addressed the June 9, 2016 meeting and said he “didn’t know anything about the meeting” at the time.734 The President added, “As I’ve said-most other people, you know, when they call up and say, ‘By the way, we have information on your opponent,’ I think most politicians – I was just with a lot of people, they said … , ‘Who wouldn’t have taken a meeting like that?”‘735

Trump’s admission that he spoke to Putin about adoptions in the same interview where he prepared the ground to fire Sessions and insisted that everyone would take a meeting with foreigners offering dirt on your opponent would seem important to the discussion of whether in attempting to fire Sessions, Trump was obstructing not a criminal investigation into his own conduct, but a counterintelligence investigation into his own ties with Putin.

But the report not only doesn’t consider it, the report doesn’t mention it.

Nor does the report discuss some of the other bizarre Trump interactions with Putin, most of all the Helsinki meeting that took place in the wake of the release of the GRU indictment, leading Trump to yet again very publicly deny Russia’s role in the attack, that time in the presence of Putin himself.

Now, there may be very good constitutional reasons why the analysis of Trump’s weird relationship with Putin as President is not part of this report. The President is empowered with fairly unlimited authority to conduct foreign policy and to declassify information, which would cover these instances.

Plus, if Mueller conducted this analysis, you wouldn’t want to share that publicly so the Russians could read it.

But it must be noted that the report doesn’t answer what a lot of people think it does: whether Trump has been compromised by Russia, leading him to pursue policies damaging to US interests. Let me very clear: I don’t think Trump is a puppet being managed by Vladimir Putin. But contrary to a great number of claims that this report puts those concerns to rest, the report does the opposite. With the limited exception of the suggestion of a tie between firing Comey and the meeting with Lavrov, the report doesn’t even mention the key incidents that would be the subject of such analysis.

If anything, new details released in this report provide even further reason to think Trump obstructed the Russian investigation to halt the counterintelligence analysis of his ties with Russia. But the report itself doesn’t ever explicitly consider whether that’s why Trump obstructed this investigation.

Update: As TC noted, one thing the report does include is the detail that during a period he was trying to fire Sessions, Trump wanted him to limit Mueller’s mandate to future elections, which would have the effect of limiting the investigation into Russia’s crime as well as any potential exposure of his own.

During the June 19 meeting, Lewandowski recalled that, after some small talk, the President brought up Sessions and criticized his recusal from the Russia investigation.605

The President told Lewandowski that Sessions was weak and that if the President had known about the likelihood of recusal in advance, he would not have appointed Sessions.606 The President then asked Lewandowski to deliver a message to Sessions and said “write this down.” 607 This was the first time the President had asked Lewandowski to take dictation, and Lewandowski wrote as fast as possible to make sure he captured the content correctly.608 The President directed that Sessions should give a speech publicly announcing: I know that I recused myself from certain things having to do with specific areas. But our POTUS . .. is being treated very unfairly. He shouldn’t have a Special Prosecutor/Counsel b/c he hasn’t done anything wrong. I was on the campaign w/ him for nine months, there were no Russians involved with him. I know it for a fact b/c I was there. He didn’t do anything wrong except he ran the greatest campaign in American history.609

The dictated message went on to state that Sessions would meet with the Special Counsel to limit his jurisdiction to future election interference:

Now a group of people want to subvert the Constitution of the United States. T am going to meet with the Special Prosecutor to explain this is very unfair and let the Special Prosecutor move forward with investigating election meddling for future elections so that nothing can happen in future elections.610

emptywheel’s Mueller Report coverage

The Significance of Trump’s Obstruction of Investigation of His Family’s Campaign Finance Crimes, Plural

How “Collusion” Appears in the Mueller Report

Putin’s Ghost: The Counterintelligence Calculus Not Included in the Obstruction Analysis

Working Twitter Threads on the Mueller Report

The Trump Men and the Grand Jury Redactions

Mueller’s Language about “Collusion,” Coordination, and Conspiracy

The Many Lies and Prevarications of Bill Barr

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. 

Rod Rosenstein’s Unfortunate Vocabulary: Defining a Criminal Investigation by “Links” and “Collusion”

Rod Rosenstein is the very unlikely hero of the Mueller investigation. “Rod is a survivor,” Jim Comey said after getting fired. “And you don’t get to survive that long across administrations without making compromises.”

Yet here we are, 22 months after he appointed Robert Mueller to investigate an investigation Trump tried to kill by firing Comey, awaiting the results of that investigation.

At times, I think Rosenstein didn’t imagine (and doesn’t now acknowledge) the damage his bend-don’t-break has done along the way. While based off the very sound precedent that existed until Comey’s declination speech about Hillary, it seems ridiculous for him to claim that the full results of the Mueller investigation can’t be shared with Congress, as he’s now claiming, given how he has provided unprecedented disclosure to Congress about the investigation already, including the first ever unsealed probable cause FISA application.

It will take some years to measure whether Rosenstein chose the best or perhaps only the least worst approach to the last several years.

But there’s one thing he did that really makes me uncomfortable, today, as we all await the results of the Mueller report: his mandate to Mueller.

As has been noted countless times in the last 22 months, Rosenstein asked Mueller to investigate:

    • any links and/or coordination between the Russian government and individuals associated with the campaign of President Donald Trump; and
    • any matters that arose or may arise directly from the investigation;
    • any other matters with the scope of 28 C.F.R. § 600.4(a).
  • if the Special Counsel believes it is necessary and appropriate, the Special Counsel is authorized to prosecute federal crimes arising from the investigation of these matters.

We actually know the answer to the first bullet, in part: As I laid out here, during five key interactions pertaining to the question of a possible conspiracy between Trump’s associates and Russia, there was direct contact between someone the government has deemed an agent of Russia and the Trump campaign:

  1. January 20, 2016, when Michael Cohen told Dmitry Peskov’s personal assistant that Trump would be willing to work with a GRU-tied broker and (soft and hard) sanctioned banks in pursuit of a $300 million Trump Tower deal in Russia.
  2. June 9, 2016, when Don Jr, knowing that currying favor with Russia could mean $300 million to the family, took a meeting offering dirt on Hillary Clinton as “part of  Russia and its government’s support for Mr. Trump.” At the end of the meeting, per the testimony of at least four attendees, Don Jr said they’d revisit Magnitsky sanctions if his dad won.
  3. August 2, 2016, when Paul Manafort and Rick Gates had a clandestine meeting with Konstantin Kilimnik at which Trump’s campaign manager walked Kilimnik through highly detailed poll data and the two discussed a “peace” plan for Ukraine understood to amount to sanctions relief.
  4. December 29, 2016, when (working on instructions relayed by KT McFarland, who was at Mar-a-Lago with Trump) Mike Flynn said something to Sergey Kislyak that led Putin not to respond to Obama’s election-related sanctions.
  5. January 11, 2017, when Erik Prince, acting as a back channel for Trump, met with sanctioned sovereign wealth fund Russian Direct Investment Fund CEO Kirill Dmitriev.

That Peskov’s assistant (and whatever representative from Putin’s office that called Felix Sater the next day), Sergey Kislyak, and Kirill Dmitriev are agents of Russia is clear. With the indictment of Natalia Veselnitskaya in December, the government deemed her to be working as an agent of Russia during the same time period she pitched sanctions relief to Trump’s campaign. And while the government hasn’t proven it beyond quoting Rick Gates acknowledging he knew of Konstantin Kilimnik’s past with the GRU and FBI’s belief that he continues to have ties, the government certainly maintains that Kilimnik does have ties to Russian intelligence.

Those are links. It’d be useful to have an official report on them. But since Mueller hasn’t charged them as a conspiracy, we may only learn what we’ve seen in plea agreements or official testimony to Congress.

Likewise Rosenstein’s invocation of “collusion” in the unredacted parts of his memo describing the scope of the investigation as it existed in August 2017 (it expanded and contracted after that point, so there are like different memos).

Allegations that Paul Manafort:

  • committed a crime or crimes by colluding with Russian government officials with respect to the Russian government’s efforts to interfere with the 2016 election for President of the United States, in violation of United States law;

Here, unlike in the initial mandate, Rosenstein at least noted that Mueller was assessing whether crimes were committed in using that squishy language. But he used the word “collusion,” which started to be politicized by March 2017, when Comey tried to correct it once and for all.

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election, and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.

[snip]

Collusion is not a legal term. It is not one I have used today. I said we are investigating to see if there is any coordination between people associated with the campaign– [my emphasis]

Sure, “collusion” might be understood to incorporate a bunch of possible crimes, and so appropriately didn’t limit Mueller to one specific crime as he investigated Manafort (but then, so did the term, “coordination”). But I nevertheless think that using the word has confused the issue of what Rosenstein intended Mueller to be able to reveal, which would instead be conspiracy and a bunch of other crimes covering up evidence of coordination that Mueller has found necessary and appropriate to charge, and not whether there was “collusion.”

All the while, people on both sides of this debate have taken “collusion” to mean whatever minimalist or maximalist interpretation of wrong-doing that best serves their side.

There are two things at issue: whether Trump and his aides coordinated in a way that is criminal, which would be a conspiracy, and whether Trump has coordinated with Russia in a way that would be an abuse of power and/or puts the nation at risk.

Both are legitimate questions. And while Rosenstein says only crimes that are indicted are appropriate to reveal (and he may well be right about that, as a principle), he did ask Mueller to conduct an investigation of that other stuff, and Congress has deferred to Mueller even while that other stuff is squarely within their mandate.

Ideally, this weeks focus on Mueller’s discoveries would be on what the actual evidence showed, which we know to include, at a minimum, the following:

  • Trump pursued a ridiculously lucrative $300 million real estate deal even though the deal would use sanctioned banks, involve a former GRU officer as a broker, and require Putin’s personal involvement at least through July 2016.
  • The Russians chose to alert the campaign that they planned to dump Hillary emails, again packaging it with the promise of a meeting with Putin.
  • After the Russians had offered those emails and at a time when the family was pursuing that $300 million real estate deal, Don Jr took a meeting offering dirt on Hillary Clinton as “part of Russia and its government’s support for Mr. Trump.” At the end (per the sworn testimony of four people at the meeting) he said his father would revisit Magnitsky sanctions relief if he won. Contrary to the claim made in a statement authored by Trump, there was some effort to follow up on Jr’s assurances after the election.
  • The campaign asked rat-fucker Roger Stone to optimize the WikiLeaks releases and according to Jerome Corsi he had some success doing so.
  • In what Andrew Weissmann called a win-win (presumably meaning it could help Trump’s campaign or lead to a future business gig for him), Manafort provided Konstantin Kilimnik with polling data that got shared with Ukrainian and Russian oligarchs. At the same meeting, he discussed a “peace” plan for Ukraine that would amount to sanctions relief.
  • Trump undercut Obama’s response to the Russian hacks in December 2016, in part because he believed retaliation for the hacks devalued his victory. Either for that reason, to pay off Russia, and/or to pursue his preferred policy, Trump tried to mitigate any sanctions, an attempt that has (with the notable exception of those targeting Oleg Deripaska) been thwarted by Congress.

Instead, however, we’re still arguing about a word — collusion — that was stripped of all meaning years ago, with the result that Mueller’s presumably very measured assessment of what happened cannot serve as the arbiter of truth we need.

Rosenstein may well be the unlikely hero of preserving some semblance of rule of law in this country. But along the way, his choice of language has unfortunately twice fostered the confusion about where the line between crime and misconduct is.

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 “at Least One Other District” Mike Flynn’s Cooperation Live In

The other day, I described the graymail that former Mike Flynn sleazy influence peddling partner, Bijan Kian, was engaged in. In an effort to identify all the lies Flynn told to discredit him on the stand, his defense team was asking for all his 302s (FBI interview reports). Yesterday, the judge gave Kian a partial victory, ordering him to come up with a specific list of things they still want.

The response is still graymail — they want documents that will embarrass Trump and disclose some of the most sensitive parts of Mueller’s investigation — but not as excessive as it could have been. Among the things they’re asking for are:

  • Details of whether he told DIA about a 2015 meeting with Sergey Kislyak and payments from RT, Kaspersky, and Volga-Dnepr Airlines.
  • A description of the reasons Flynn got fired from DIA in 2014.
  • Details of Flynn’s contact with Kirill Dmitriev and other Russian officials following the election, and whether those were reported to DIA.

Now, this graymail attempt seems to be more focused on revealing that Flynn is nowhere near as honorable as the title he’d use at trial, General, would otherwise indicate. There’s a reason Turkey picked Flynn to run their anti-Gulen campaign, and it’s that he’s willing to trade his values to make a buck, and these documents will help demonstrate that. The government may still want to delay handing these documents over.

That said, details disclosed in the hearing (CNN, Politico, CNS) suggest there may be parts of Flynn’s cooperation beyond those embarrassing details relating to the Mueller probe, parts that wouldn’t be included in Kian’s discovery request.

First, the government revealed that there are 19 Flynn 302s, of which 15 are from Mueller’s office.

In all, the Virginia prosecutors say they have 19 memos from Flynn’s cooperation –15 from the special counsel’s office and four from the Turkish lobbying investigation in Virginia.

“We do not want those 302s leaving the office” of the Virginia US attorney inside the courthouse, Gillis said

More interestingly, AUSA James Gillis at first said those other 302s pertain to investigations in more than one other US Attorney district, only to correct himself and say they pertained to at least one other district.

The prosecutor in court Friday stopped himself after he acknowledged other US attorneys may be looking at what Flynn shared with the special counsel.

“At least one other district,” he said, correcting himself after first saying “districts,” before asking to withdraw his statement in court representing the number of ongoing investigations.

Some thoughts on what this new information might mean.

The government is pretty sensitive about the 302s pertaining even to this case, asking that Kian’s attorneys review them at the EDVA US Attorney’s office, not share them with other counsel, not copy them, and not quote from those not identified as Jencks material at trial without permission.

This may, in part, be an effort to keep the documents out of the hands of Ekim Alptekin, the other defendant charged with Kian, who is back in Turkey.

As of Thursday, Kian’s team had seen just “several” and therefore not all four of the Flynn 302s pertaining to this investigation.

To be perfectly clear, the government has already permitted the defense to review a number of 302s, including several 302s of General Flynn. We have offered upon reasonable conditions to give the defense an opportunity to review all of the General’s 302s that were generated during its investigation of the crimes charged in the indictment,1 as well as the 302s for all but one2 of the other witnesses interviewed in connection with the present charges.

1. The conditions the government requested are listed in the attachment. We offered to negotiate these terms, but we have not heard from the defense. It is interesting, therefore, that the defense has filed this motion for all of General Flynn’s unrelated 302s when that have not even taken the opportunity to review those actually relevant to this prosecution.

2 This individual’s identity is being protected for the time being to prevent any reprisals or tampering involving the witness.

In addition, some of the 302s deemed to belong to the Mueller investigation mentioning Kian or Alptekin or other entities involved in the conspiracy.

Under similar conditions, we have invited the defense to review redacted versions of General Flynn’s 302s that contain any mention the defendants or any reference to the other individuals or entities involved in the charged conspiracy – regardless of whether they relate to this prosecution or to other investigations by the Special Counsel’s Office.

This suggests there’s more of a Turkish part of the Mueller investigation than previously reported.

Remember that in Flynn’s initial FBI 302 (which must be additional to the 19 capturing interviews while he was cooperating), he explained away his December 29, 2016 conversation with Sergey Kislyak to the FBI by claiming they were talking about a Syrian peace conference in Astana, Kazakhstan.

The redactions in Flynn’s 302 included two passages on Flynn’s December 29, 2016 phone calls with Ambassador Kislyak. In the first, Flynn offered up that he and Kislyak had discussed two things: a phone call with Vladimir Putin that would take place on January 28, and whether the US would send an observer to Syrian peace talks Turkey and Russia were holding in Kazakhstan the next month.

[snip]

The claim that those Kislyak phone calls discussed a later call with Putin and the Astana conference is the same one the Transition would offer to the WaPo the day after David Ignatius made clear that the FBI had recordings of the call. Mueller’s reply to Flynn’s sentencing memo describes that Flynn asked a subordinate to feed this information to the WaPo.

[snip]

Flynn’s lies to cover the discussion about sanctions and expulsions were not entirely invented; he’s a better liar than that. The Transition really was struggling over its decision of whether to join in a Syrian peace plan that would follow Russia (and Turkey’s lead) rather than the path the Obama Administration had pursued in the previous year. As he noted to the FBI, the Trump Administration had only decided not to send a senior delegation to Astana earlier that week. It was announced on January 21.

[snip]

But by staking his lies on the Astana conference — and the Trump Administration’s willingness to join a Syrian effort that deviated from existing US policy — Flynn also raised the stakes of his past paid relationship with Turkey. It became far more damaging that Flynn had still been on the Turkish government payroll through the early transition, when Trump directed him to conduct early outreach on Syria. So even while DOJ was repeatedly telling Flynn he had to come clean on his Turkish lobbying ties, he lied about that, thereby hiding that the early days of Trump Administration outreach had been conducted by a guy still working for Turkey.

Under similar conditions, we have invited the defense to review redacted versions of General Flynn’s 302s that contain any mention the defendants or any reference to the other individuals or entities involved in the charged conspiracy – regardless of whether they relate to this prosecution or to other investigations by the Special Counsel’s Office.

In other words, there appear to be parts of the Mueller investigation pertaining to Turkey outside of Flynn’s sleazy influence peddling with Kian. Some of those may have been spun off (like so much else) to other districts (perhaps SDNY, where Reza Zarrab flipped).

Now consider the addendum to Flynn’s sentencing memo describing his cooperation (of which there was an ex parte version withheld even from Flynn). I’ve suggested the description of his cooperation (which covers the same 19 302s at issue in yesterday’s hearing, so there has been no new cooperation since December) is structured like this.

Between the three investigations, Flynn sat for 19 interviews with prosecutors.

Here’s the structure of how the body of the cooperation section describes the three investigations:

A Criminal Investigation:

11+ line paragraph

6.5 line paragraph

2 line paragraph

B Mueller investigation:

Introductory paragraph (9 lines)

i) Interactions between Transition Team and Russia (12 lines, just one or two sentences redacted)

ii) Topic two

10 line paragraph

9 line paragraph

C Entirely redacted investigation:

4.5 line paragraph

The description of the first and third investigations are both almost entirely redacted.

The description of his cooperation with the Mueller investigation is split into two topics — i) interactions between the transition team and Russians, plus another ii) redacted section.

Category A is almost certainly the Kian prosecution, which consists of 4 302s.

Category B, Mueller’s investigation, breaks down into what we know (transition related activities) and something else. Parts of that something else (which likely has to do with the Trump team’s serial efforts to monetize the presidency) may well have gotten spun off.

Then there’s Category c, which given what was said yesterday, seems to relate to Mueller but is of a different sort of information — I’ve suggested it may pertain to a general counterintelligence investigation into Russia, one that might live at DOJ’s National Security Division rather than a US Attorney’s office.

That still doesn’t tell us all that much — except that Flynn hasn’t cooperated further since December and the 3-part cooperation described in his cooperation memo may involved some complexity reflecting Turkish issues that were part  of the Mueller investigation as well as other topics (graft?) that could have been spun off.

Mueller may be close to done, but his investigation seems to have spin-offs that we haven’t even begun to hear of yet.

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.