Posts

Productive Ways to Hold Trump Accountable

On Friday, Jonathan Rauch published a god-awful argument for pardoning Trump. Today, Quinta Jurecic published a much better argument that a Truth Commission would be the ideal way to hold Trump accountable, but because that probably won’t work, we need to pursue other alternatives, including prosecution.

I’ve already laid out one reason why I think we need to prosecute Trump for his role in the insurrection: because if we don’t, it’ll hamper the ability to hold dangerous people accountable. Another reason is that so many defendants are excusing their actions because the then-President ordered them to storm the Capitol (indeed, that’s one reason, according to a new WaPo report, why DOJ might not charge some of the insurrectionists), the government must make it clear that order was illegal.

Still, I think there are solutions to the problem that both Rauch and Jurecic want to resolve: how to find accountability without derailing President Biden’s Administration.

Jurecic acknowledges that Republican resistance to accountability measures will exacerbate current political divisions.

[A] post-Trump investigation pursued along partisan lines could be doomed from the start. This is the irony: The exact conditions that led to and sustained the Trump era—white grievance, a polluted media ecosystem, and political polarization—are the same conditions that will likely prevent a truth commission from succeeding.

[snip]

In the short run, any of these measures could risk making the country’s social and political divisions worse.

Rauch argues that prosecutions will derail the Biden Administration.

If we want Biden’s presidency to succeed, accountability to be restored and democracy to be strengthened, then a pardon would likely do more good than harm.

Consider, first, Biden’s presidency.

Biden has made clear in every way he can that he does not want or intend to be President Not Trump. He has his own agenda and has been impressively disciplined about not being defined by opposition to Trump. He knows Trump will try to monopolize the news and public discourse for the next four years, and he needs Trump instead to lose the oxygen of constant public attention.

Legal proceedings against Trump, or even the shadow of legal proceedings, would only keep Trump in the headlines.

Rauch also argues (fancifully, for precisely the reasons Jurecic gives that a Truth Commission would be undermined by polarization) that a non-criminal counterintelligence investigation will succeed in a way criminal investigations won’t.

It is important, then, that Trump’s presidency be subjected to a full-scale, post hoc counterintelligence scrub. There should be a public element, modeled on the 9/11 commission, and also a nonpublic, classified element. Both elements could be complicated and hindered by the criminal investigation of Trump. The criminal and counterterrorism investigations would need to be continually deconflicted; Congress would be asked to back away from inquiries and witnesses that step on prosecutors’ toes; Trump himself could plead the Fifth Amendment—an avenue not open to him were he to accept a pardon.

Ignoring for the moment the necessity of including Trump in an investigation into January 6, I agree that, to the extent possible, there needs to be some kind of accounting of what happened during the Trump Administration without turning it into partisan warfare.

Here are some ways to contribute to doing that.

Drain the swamp

Investigations into Trump for things that either are already (Russia or Ukraine) or can be (the election) turned into a tribal issue will absolutely exacerbate political division.

But there are some topics where former Trump supporters can quickly be shown how he hurt them.

For example, an inquiry into Trump’s trade war, especially into the harm done to farmers, will provide a way to show that Trump really devastated a lot of the rural voters who, for tribal reasons, nevertheless support him.

Or Trump’s grifting. In the wake of the Steve Bannon pardon, a number of Trump supporters were furious that Bannon was pardoned for cheating them, even while rioters or other more favored pardon candidates were not. Bannon’s not the only Trump grifter whose corruption demonstrably hurt Trump voters. There’s Brad Parscale’s grifting. There’s Jared Kushner’s favoritism in COVID contracting, which made the country less safe. There’s PPP abuse by big corporations at the expense of small businesses. None of this has to be explicitly about Trump; it can instead be an effort to crack down on corruption generally which by its very nature will affect Trump’s flunkies.

Have Trump dead-enders approve charges

With the exception of some egregious US Attorneys, Biden has asked the remaining US Attorneys to stay on for the moment. That defers any political blowback in the case of John Durham (who in addition to being CT US Attorney is also investigating the Russian investigation) and David Weiss (who is investigating Hunter Biden).

But it also allows people who are nominally Trump appointees to preside over at least the charging of existing investigations targeting Trump or his flunkies. The one place this is known to be true is in Southern District of New York (where Rudy is being investigated). It might be true in DC US Attorney’s office (though Billy Barr shut a lot of investigations, including into Roger Stone and Erik Prince, down). There’s Texas, where Ken Paxton is under investigation.There were hints of investigations into Jared in Eastern District of New York and, possibly, New Jersey.

If Trump US Attorneys aren’t replaced before they charge Trump or his allies, then the act of prosecution will be one approved by a Trump appointee.

Give Republicans what they think they want

Because they’re gullible, Republicans believe that the record of the Russian investigation shows corruption. What is in fact the case is that a cherry-picked and selectively-redacted set of records from the Russian investigation can be gaslit to claim corruption.

But since they’ve been clambering for Trump to declassify it all (even while both John Ratcliffe and Andrew McCabe have suggested that might not show what Republicans expect), it gives Biden’s Administration a way to declassify more. For example, there’s at least one Flynn-Kislyak transcript (from December 22, 2016) that Trump’s Administration chose not to release, one with closer Trump involvement then the others. There are materials on Alex Jones’ interactions with Guccifer 2.0. There are Peter Strzok notes showing him exhibiting no ill-will to Mike Flynn. There are records regarding Paul Manafort’s interactions with Konstantin Kilimnik on April 2016. That’s just the tip of an iceberg of very damning Russian-related records that Trump chose not to release, but which GOP demands for more can be used to justify.

Fully empower Inspectors General

One particularly absurd part of Rauch’s piece is his claim that we know all of Trump’s criminal exposure.

If he committed crimes that we don’t already know about, they are probably not of a new kind or magnitude.

As for what we do know about, it seems clear that he committed criminal obstruction of justice, for example by ordering his White House counsel to falsify federal records. But his obstruction was a process crime, already aired, of limited concern to the public and hard to get a conviction on as a stand-alone charge. There might be more to the Ukraine scandal than we know, but that matter, too, has been aired extensively, may not have been a legal violation and was appropriately (if disappointingly) handled by impeachment. Trump might have committed some form of sedition when he summoned his supporters to the streets to overturn the election, but he would have a colorable First Amendment defense, and sedition is a complicated and controversial charge that would open a legal can of worms. The real problem with Trump is not that we do not know his misdeeds but that we know so much about them, and yet he remained in office for a full term.

One piece of evidence Rauch is mistaken is his certainty that Trump’s only exposure in the Russian investigation is regarding obstruction, when (just as one example) there’s an ongoing investigation into an Assange pardon that appears to be closer to a quid pro quo; or the closed investigation into a potential bribe from Egypt. Democrats were denied a slew of documents pertaining to the Ukraine scandal, especially from the State Department. Democrats were similarly denied records on Trump’s abuse of clearance and non-official records.

One way to deal with the outstanding questions from the Trump Administration is simply to fully staff and empower the Inspectors General who have been undermined for four years. If, for example, State’s IG were to refer charges against Mike Pompeo or DOD’s IG were to refer charges pertaining to Kash Patel’s tenure, it wouldn’t be Democrats targeting them for investigation, it would be independent Inspectors General.

DOJ must be a key part of this. DOJ’s IG has already said it is investigating BJ Pak’s forced resignation. Democrats should insist this is expanded to review all of Barr’s politicized firings of US Attorneys.

As part of an effort to make sure Inspectors General do the work they should have done in real time, Biden should support the end of the OPR/IG split in DOJ, which means that the decisions of lawyers at DOJ (including those pertaining to the Ukraine scandal) are only reviewed by inspectors directly reporting to the Attorney General.

Respect FOIA

Joe Biden might not want to focus on Trump. But the press will continue to do so.

And if Biden orders agencies to treat FOIA like it is supposed to be treated, rather than forcing the press to sue if they want anything particularly interest, the press will do a lot of the accountability that courts otherwise might (and might provide reason for prosecutions). The press already has FOIAs in that have been undermined by improper exemption claims. For example, Jason Leopold has an existing FOIA into Bill Barr’s interference into the Roger Stone and Mike Flynn prosecutions. American Oversight has a FOIA into why Paul Manafort was sprung from jail when more vulnerable prisoners were not. FOIA into Trump’s separation policies have been key at reuniting families.

If such FOIAs obtained more visibility than they currently do, it would provide the visibility into some of the issues that people would love criminal investigations into.

One of the biggest scandals of the Trump Administration is how he undermined normal institutions of good governance, especially Inspectors General. If those institutions are restored and empowered, it will likely do a surprising amount of the accountability work that is so badly needed.

Bannon Turned Out to Be the Irreplaceable One

All outlets are reporting that after equivocating all day and all week, Trump has decided to pardon Steve Bannon (along with Eliot Broidy and Paul Erickson). Here’s the WaPo version:

President Trump has pardoned Stephen K. Bannon, the firebrand architect of his 2016 campaign who was charged last year with defrauding donors to a private fundraising effort for construction of a wall on the U.S.-Mexico border, according to a senior White House official involved in the process.

Trump approved Bannon’s pardon late Tuesday, after days of frantic deliberations. Some aides said as recently as Monday night that the move appeared unlikely. Trump vacillated throughout the day Tuesday, and even after he said he was going to sign off on the pardon, it remained unclear for some time that he would actually do so, the official said, speaking on the condition of anonymity to discuss internal conversations.

WaPo correctly notes, it won’t be clear what this really means until we see how broadly it is written. The White House language seems to suggest it covers just the already charged crimes for fraud, though.

Stephen K. Bannon – President Trump granted a full pardon to Stephen Bannon. Prosecutors pursued Mr. Bannon with charges related to fraud stemming from his involvement in a political project. Mr. Bannon has been an important leader in the conservative movement and is known for his political acumen.

If it just excuses his fraud charges in SDNY, it’ll end that federal prosecution, leave him open for state prosecution on the same crimes plus civil suits, and/or make him the star witness against his co-defendants.

If it is broader, it will cover some of Bannon’s activities leading up to the insurrection, something that is likely to make a Trump conviction in the Senate more likely (as the Bannon pardon may all by itself).

One way or another, it probably doesn’t end Bannon’s legal woes (there’s also an investigation into his foreign influence peddling). Plus, there’s still the matter of his grand jury testimony in the Mueller investigation, just some of which was unsealed for the Roger Stone trial.

But Bannon, alone among Trump’s closest associates, got a pardon after the coup attempt made such pardons more risky.

Which makes the reasons for the pardon all the more interesting.

Update: There’s been some chatter that Trump might issue his spawn or himself “pocket pardons,” which I think was irresponsible speculation. There’s no way a Trump pardon that is not formally lodged with DOJ by noon will be deemed valid.

That said, the means by which he pardoned Bannon (and others) would allow room for Trump to have pardoned Bannon for more than the existing fraud charges against him. While some of the pardons Trump signed last night enumerated the crimes, Bannon and Broidy were pardoned

It’s possible that DOJ “enumerated” other crimes for Bannon which would then be covered under this language.

I doubt it though — and in any case, everything will be lodged in the next day or so, presumably in time to be included in impeachment considerations in the Senate.

The Three Types (Thus Far) of Trump Mueller Pardons

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

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

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

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

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

Alex Van der Zwaan and George Papadopoulos:

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

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

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

Roger Stone and Paul Manafort:

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

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

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

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

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

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

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

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

Mike Flynn:

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

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

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

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

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

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

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

How Do You Solve a Problem Like Steve Bannon?

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

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

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

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

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

Another of those liars could be Paul Manafort.

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

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

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

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

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

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

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

The old gang’s back together.

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

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

Tom Bossert Gives Trump the Advice Trump Refused Four Years Ago

Almost exactly four years ago, at a time when (seemingly unbeknownst to Trump’s incoming Homeland Security advisor Tom Bossert) Mike Flynn and his Deputy KT McFarland were secretly making asks of the Russian government, top Transition team officials discussed what to do about sanctions Obama imposed, in part, to punish Russia for interfering in the just finished election.

As part of that discussion, Bossert asked his predecessor Lisa Monaco how the Russians were responding to sanctions. At 4:01 PM on December 29, he reported back to Flynn, McFarland, Steve Bannon (at Bannon’s personal email), Keith Kellogg, and Reince Priebus:

[Monaco] confirms the Russiand [sic] have already responded with strong threats, promising to retaliate. [She] characterized the Russian response as bellicose. My thoughts, sans the Russia angle, on which I defer to Mike and KT: [redacted] : Cyber attacks by forcing [sic] governments or anyone else are unacceptable and must be taken seriously. The alleged Russian hack of US entities involved in the US political process is a problem. Of course we must separate their attempts to influence our election from the rash conclusion that they succeeded in altering the views of any American voter. We must be wary of escalatory retaliation to follow.

Immediately after receiving this call, Flynn called McFarland using the phone in his Dominican Republic hotel room. They spoke for 11 minutes.

Approximately eight minutes after Flynn and McFarland hung up, at 4:20, Flynn called Sergey Kislyak from that same hotel room phone to a phone at the Russian Embassy wiretapped by the FBI. The person who transcribed the intercept observed that it sounded like Flynn might be using his speaker phone.

On the call, Flynn raised the sanctions. He asked the Russian Ambassador not to box the Trump Administration in and further asked not to escalate things to avoid getting into a tit-for-tat.

Approximately 12 minutes after the end of Flynn’s call with Kislyak, KT McFarland responded to Bossert’s email, claiming Flynn would call Kislyak later than evening, yet quoting the phrases “tit-for-tat” and “box” Trump in directly from the call Flynn had just made to the Ambassador — the one the transcriber believed may have been made on a speaker phone.

On Dec. 29, a transition adviser to Mr. Trump, K. T. McFarland, wrote in an email to a colleague that sanctions announced hours before by the Obama administration in retaliation for Russian election meddling were aimed at discrediting Mr. Trump’s victory. The sanctions could also make it much harder for Mr. Trump to ease tensions with Russia, “which has just thrown the U.S.A. election to him,” she wrote in the emails obtained by The Times.

[snip]

Mr. Obama, she wrote, was trying to “box Trump in diplomatically with Russia,” which could limit his options with other countries, including Iran and Syria. “Russia is key that unlocks door,” she wrote.

She also wrote that the sanctions over Russian election meddling were intended to “lure Trump in trap of saying something” in defense of Russia, and were aimed at “discrediting Trump’s victory by saying it was due to Russian interference.”

“If there is a tit-for-tat escalation Trump will have difficulty improving relations with Russia, which has just thrown U.S.A. election to him,” she wrote.

Either because Trump’s incoming Homeland Security advisor was, like Bannon, also conducting this discussion on his personal email (Kislyak would make a comment that may reflect knowledge of the email exchange in his next call with Flynn) or because he somehow had access to his Transition email later, Tom Bossert was able to share this very damning exchange with investigators before they obtained the counterparties to it using a warrant.

Between the time of the Kislyak call and the time when Bossert shared those emails with investigators, he would be involved in the alteration of the MemCon recording Trump’s first face-to-face meeting with Russia, in which Trump said he didn’t much care that Russia had interfered in the election.

Tom Bossert has seen firsthand, more than once, how Trump has refused to hold Russia accountable.

Which is very interesting background to this NYT op-ed Bossert wrote, trying to convince his former boss to put the national interest ahead of his own temper tantrum and respond with leadership and cooperation to the SolarWinds hack.

After describing what a dangerous time a Presidential transition is for such a compromise, Bossert lays out the significance of the SolarWinds hack, explaining that the US government has no idea which of its networks Russia has control over.

The magnitude of this ongoing attack is hard to overstate.

The Russians have had access to a considerable number of important and sensitive networks for six to nine months. The Russian S.V.R. will surely have used its access to further exploit and gain administrative control over the networks it considered priority targets. For those targets, the hackers will have long ago moved past their entry point, covered their tracks and gained what experts call “persistent access,” meaning the ability to infiltrate and control networks in a way that is hard to detect or remove.

While the Russians did not have the time to gain complete control over every network they hacked, they most certainly did gain it over hundreds of them. It will take years to know for certain which networks the Russians control and which ones they just occupy.

He then explains that with that access, the Russians could alter data (at Treasury, among other places) or impersonate people, potentially using official credentials to sow disinformation.

The actual and perceived control of so many important networks could easily be used to undermine public and consumer trust in data, written communications and services. In the networks that the Russians control, they have the power to destroy or alter data, and impersonate legitimate people. Domestic and geopolitical tensions could escalate quite easily if they use their access for malign influence and misinformation — both hallmarks of Russian behavior.

Bossert provides some steps the government must take to respond — including replacing entire networks — and then turns to advising his old boss. He starts with soft-pedaling, the way one has to when advising a President who is a narcissist, suggesting that Trump’s threats to veto an NDAA that broad majorities of both parties support because he’s mad at Twitter are instead a partisan dispute.

The National Defense Authorization Act, which each year provides the Defense Department and other agencies the authority to perform its work, is caught up in partisan wrangling. Among other important provisions, the act would authorize the Department of Homeland Security to perform network hunting in federal networks. If it wasn’t already, it is now a must-sign piece of legislation, and it will not be the last congressional action needed before this is resolved.

Then Bossert gets more direct: Trump has to rebuke the Russians in a way he refused to in December 2016 and refused to do again in May 2017 and refused again in July 2018 in Helsinki (though Bossert had been fired before Helsinki).

While all indicators point to the Russian government, the United States, and ideally its allies, must publicly and formally attribute responsibility for these hacks. If it is Russia, President Trump must make it clear to Vladimir Putin that these actions are unacceptable. The U.S. military and intelligence community must be placed on increased alert; all elements of national power must be placed on the table. [my emphasis]

Bossert then gets close to, without actually, describing how Trump could be blamed for this if he doesn’t punish Russia.

President Trump is on the verge of leaving behind a federal government, and perhaps a large number of major industries, compromised by the Russian government. He must use whatever leverage he can muster to protect the United States and severely punish the Russians.

And, finally, the guy who got sent out to report back on President Obama four years ago to prepare Flynn for a call that Bossert probably had no way of knowing would undermine sanctions designed to punish Russia for the last attack, tells his former boss, who from start to finish has refused to cooperate with Democrats, that he has to cooperate now.

At this moment, the two teams must find a way to cooperate.

President Trump must get past his grievances about the election and govern for the remainder of his term. This moment requires unity, purpose and discipline. An intrusion so brazen and of this size and scope cannot be tolerated by any sovereign nation.

We are sick, distracted, and now under cyberattack. Leadership is essential.

Tom Bossert is trying to convince his former boss to serve the good of the country when Bossert never managed to do that when he actually was Trump’s direct advisor.

He would do better to threaten to make it clear the degree to which Trump has been “colluding” with Russia all along.

Update: Relatedly, Trump’s White House tried to gag IC leaders from reporting on how bad this is to Congress.

Rubio’s counterpart on the committee, Vice Chair Mark Warner (D-Va.), said the government is “still assessing the extent of the penetration,” but lamented that “the current president of the United States has not said a word about this.”

Despite the series of briefings, there are signs that the White House was trying to muzzle top officials seeking to fill in lawmakers on what they know.

During a National Security Council meeting on Tuesday night, national security leaders were instructed not to reach out to Capitol Hill for briefings on the massive hack without explicit approval from the White House or ODNI, according to people familiar with the episode.

Organized Crime

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

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

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

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

Organized crime.

The Forgotten Coffee Boy Errands

Among the things Steve Bannon has lied about most assiduously was the role George Papadopoulos played in setting up a fall 2016 meeting with Abdel Fattah el-Sisi. The first time he was asked about the Egypt meeting in a February 2018 interview with Mueller, he gave Jared Kushner credit. Later in the same interview, Bannon claimed he,

would generally blow off Papadopoulos and thought to himself “I don’t need this guy.” Flynn would be on the hook for the meetings Papadopoulos was suggesting, and Bannon didn’t need Papadopoulos.

Bannon transitioned immediately from that claim to disavowing advance knowledge of the emails Russia had.

Papadopoulos never told Bannon about the Russians having dirt on Clinton, and Bannon never heard Papadopoulos tell anyone in the campaign, such as Sam Clovis, that the Russians had dirt on Clinton.

Of course, by the time Bannon joined the campaign proper, he was already talking to Roger Stone about Russia dealing emails.

In an interview with SSCI, Bannon told even more ridiculous lies about Papadopoulos’ role in the el-Sisi meeting. When asked about a sustained thread between him and the Coffee Boy around the meeting, Bannon claimed he had accidentally emailed Papadopoulos about the meeting when he intended to email someone else.

Between September 16, 2016, and September 18, 2016, Papadopoulos and Bannon exchanged dozens.of messages relating to a potential engagement between President El~Sisi of Egypt and Trump, ultimately confirming a dinner meeting at 9:00 p.m. on Monday, September, 19, 2016. During this email exchange, Bannon asked Papadopoulos to email a briefing in advance of the meeting with President El-Sisi, which Papadopoulos sent noting that “while in Athens over dinner with Greek defense minister last May, he personally introduced me to the Egyptian defense minister and the rest became monthly consultations with the Egyptians in DC.” There are an additional two email messages related to this conversation that were redacted when produced to the Committee. Bannon told the Committee that he mistook Papadopoulos for a separate Campaign staffer and never meant to engage with Papadopoulos on this issue. Bannon Tr., pp. 95-98.

At the time then, Papadopoulos told Bannon that his ties with Egypt started back in May, when he was in Greece the same day as Putin and when he bragged to Greece’s Foreign Minister that the Russians had Hillary’s emails.

These same ties were key to the role that Papadopoulos played during the Transition, when he was hoping Flynn would hire him for a key NSC job on energy (hopes for that job is the excuse he later used for lying to the FBI). He had at least two more substantive discussions with Bannon in this period, one on and following December 9, and another on and following January 4.

Papadopoulos, however, was about to travel to Greece, and was keeping senior members of the Trump Transition Team apprised of his engagements. On December 9, 2016, Papadopoulos passed on a purported request from the Prime Minister of Greece to meet with President-Elect Trump in early January 2017 to Bannon.3415 In an email the following day, December 10, 2016, Papadopoulos further stated that he “[s]poke with the Greek defense minister.3416 They want to sign a government to government agreement with the USA for all rights to all energy fields offshore. Strategic foothold in the Mediterranean and Balkans.”3417 Bannon replied to the note, adding Michael Flynn and Kathleen Troia (K.T.) McFarland to the communication, both of who were-senior national security officials on the Transition Team.3418 Papadopoulos then wrote to the group on December 10, 2016, that the Greek defense minister had “earmarked the island of [K]arpathos for a potential listening post and air base for the US” and further stated “A base on [K]arpathos is key to controlling sea lines of communication in the Aegean/plan b should Incirlik once again become unusable.”3419 The following day, December 11, 2016, Papadopoulos wrote to Flynn’s Transition Team email address, passing along the phone number for Kammenos, the Greek Defense Minister, noting that the “[l]ine is not secure, however. He can pass along a secure number when you both find the time to discuss.”3420

Papadopoulos again reached out to Bannon on January 4, 2017, relaying a request from the Greek Foreign Minister for a phone call with Trump. 3421 Bannon responded, adding Flynn, which Papadopoulos used to also request a meeting with the Egyptian ambassador .. 3422

3415 (U) Email, Papadopoulos to Bannon, December 9, 2016 (B&P GP F:ile 2018 000609).

3416 (U) According to Greek press reporting, Papadopoulos and Kammenos had lunch in Piraeus on Saturday, December 10, 2016, where Papadopoulos described himself as a “representative of Trump.” Kourdistoportocali.com, “World Exclusive: George Papadopoulos. and Panos Kammenos in ‘Dourabei, ‘” December 10, 2016.

3417 (U) Email, Papadopoulos to Bannon, December 10; 2016 (B&P GP File 2018 000609).

3418 (U) Email, Bannon to Papadopoulos, Flynn, McFarland, December 10, 2016 (B&P GP File 2018 000609).

3419 (U) Email, Papadopoulos to Flynn, Bannon, McFarland, and Kellogg, December 10, 2016 (B&P GP File 2018 000610).

3420 (U) Email, Papadopoulos to Flynn, December 11, 2016 (B&P GP File 2018 000610).

3421 (U) Email, Papadopoulos to Bannon, January 4, 2017 (B&P GP File 2018 000635).

3422 (U) Email, Bannon to Papadopoulos and Flynn, January 4, 2017 (B&P GP File 2018 000635); Email, Papadopoulos to Flynn and Bannon, January 6, 2017 (B&P GP File 2018 000635). [my emphasis]

The latter one, in which Papadopoulos wrote Bannon about Greece and Bannon then looped in Flynn, in response to which Papadopoulos also passed on a request from Egypt’s Ambassador, appears to be the email mentioned in an October 2016 warrant application targeting Mike Flynn.

Emails obtained pursuant to a judicially-authorized search warrant show that one or about January 6, 2017, a member of the Trump campaign team on foreign policy issues e-mailed [Flynn] and advised that a foreign government official had been asking to meet with FLYNN. Later that day, FLYNN responded to the Trump campaign member: “We’ll reach out and try to meet this coming week.” FLYNN’s response was also sent to [KT McFarland] and [Flynn’s scheduler Daniel Gelbinovich].

When Papadopoulos testified about this to the House, he left out the Egyptian part of things.

A So I never spoke about Russia at all with Michael Flynn, K.T. McFarland during the transition. It was about an energy project that the Greek Government wanted to discuss with the incoming administration, and that’s why I was put in touch — that’s my understanding of why I was put in touch with Michael Flynn during the transition over email to discuss this deal that, I guess, the Greek Government wanted to discuss with the higher-ups in the incoming administration about, I don’t know, giving U.S. companies rights to their energy reserves, something along those lines.

[snip]

Q Okay. So you never had a conversation or were aware of conversations with Michael Flynn relating to Saudi Arabia?

A To my recollection, the only interactions I had with Michael Flynn were regarding this Greek energy deal, and I think that’s documented in emails.

Even when asked specifically about who else he spoke with in the Transition, Papadopoulos left Egypt off, then claimed not to remember whether he had any meetings with Egyptian officials.

Q Okay. So you never had a conversation or were aware of conversations with Michael Flynn relating to Saudi Arabia?

A To my recollection, the only interactions I had with Michael Flynn were regarding this Greek energy deal, and I think that’s documented in emails.

[snip]

Q Any meetings with Egyptian officials?

A During the transition? I can’t remember, but it’s possible, because I had a very close network with them. But I can’t remember about Egypt in particular.

Given that an Egyptian bank may have given Trump a big infusion of cash after the first meeting, I can understand why everyone would be so forgetful about this meeting.

But given the likelihood all these people will lose their Fifth Amendment privilege after they get pardoned in the next few weeks, perhaps they can be asked to refresh their memory about why the Egypt operation was so closely tied to the Russian one.

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

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

Instead, Bannon hired Robert Costello.

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

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

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

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

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

A Mike Pence Pardon of Trump for Flynn’s Pardon Would Obstruct the Mueller Investigation

Because of the way the Mike Flynn pardon is written (who wrote it, given that Bill Barr has said this kind of pardon would be a crime, remains a very interesting question), it makes it clear its goal is to make all consequences for Flynn associated with the Mueller investigation to just go away. Poof! It purports to pardon Flynn for any fact known to Mueller’s investigation and anything associated with Judge Emmet Sullivan’s docket.

Not only does the pardon raise vagueness problems (and attempts to pardon future crimes), but it makes it crystal clear that it is an attempt to invalidate the entire Mueller investigation.

That makes it all the more clear it is an attempt to obstruct that investigation and all subsidiary investigations that arose from it. It is an attempt to use Presidential power to ensure that no special counsel can investigate the President and have criminal charges associated with it stick. Joe Biden’s DOJ could easily incorporate this pardon into the obstruction charge that Mueller prepared, with the benefit of yet another new act that Barr did not consider in his (legally suspect) declination for Trump.

That means that if Mike Pence were to pardon Trump for actions that included this pardon, he would then be obstructing the Mueller and associated investigation. Trump’s legal jeopardy would become Pence’s. Mike Pence, who got through the entire Mueller investigation without any personal exposure, would finally be left holding the bag for at least a subset of the crimes identified by it and committed to cover it up.

Which is why I’m interested in the focus of this Carol Lee piece on Flynn. While it relies on interviews with 20 people involved, it doesn’t even cover the full scope of the public documents relating to Flynn’s actions, and in substantial part simply narrativizes what’s in the Mueller Report. Of particular note, it doesn’t mention the evidence that certain members of the Transition were fully briefed on Flynn’s actions, while others (like Pence, but also Tom Bossert) were not. It doesn’t mention how the White House scripted Steve Bannon to claim sanctions weren’t discussed at Mar-a-Lago. It doesn’t mention that Flynn told Russia Trump knew of his calls and that Flynn made the first one while with Trump.

Where it breaks new ground is its focus on Pence. Pence is mentioned 47 times, including a quote from someone describing his reaction to discovering he had been lied to. The most important new ground pertains to how Trump tried to make Pence responsible for firing Flynn, and how Pence deferred the decision to Trump.

One of the president’s top aides thought Trump was trying to shift the burden of deciding whether to fire Flynn onto Pence when he said: “Mike, he disappointed you. He let you down.” Flynn had apologized privately to Pence who wasn’t happy with him. Still, Pence told Trump he’d support whatever decision he made.

The purported reason for firing Flynn was that he lied to Pence (the real reason is that Trump was hoping to stave off any investigation into himself).

And yet, even in a story that focuses closely on Pence (and describes him smoldering while reading the Flynn transcripts), it claims that Pence played no part in this story (while stopping short of stating that he or his Chief of Staff Nick Ayers and his aide Marc Lotter, the latter two of whom are named, had no part in it).

Vice President Mike Pence has so far been silent about the pardon.

[snip]

The White House and Pence’s office had no comment.

[snip]

Trump never said publicly or privately that Flynn had lied to him. Just to Pence, and, in a tweet in December 2017, the FBI.

Here’s the thing. Not only would pardoning Trump for this pardon for the first time give Pence criminal exposure in the Mueller and subsequent investigations. But because Pence was left out of the loop of what was really going on with Russia during the Transition and afterwards — the back channels, the efforts to undermine sanctions, yet more back channels — he would have no idea what he was serving to cover up by pardoning Trump.

I find Pence’s silence in this very noisy NBC piece to be quite intriguing.

How Ric Grenell and Sidney Powell Have Made It Easier to Prosecute Donald Trump for Conspiring with Russia

In a Mike Flynn sentencing memo submitted in January delayed twice to secure all necessary approvals, Bill Barr’s DOJ asserted that Flynn’s lies were material because they hid, in part, who directed that he call up the Russian Ambassador and undermine sanctions.

It was material to the FBI’s counterintelligence investigation to know the full extent of the defendant’s communications with the Russian Ambassador, and why he lied to the FBI about those communications.

[snip]

The defendant’s false statements to the FBI were significant. When it interviewed the defendant, the FBI did not know the totality of what had occurred between the defendant and the Russians. Any effort to undermine the recently imposed sanctions, which were enacted to punish the Russian government for interfering in the 2016 election, could have been evidence of links or coordination between the Trump Campaign and Russia. Accordingly, determining the extent of the defendant’s actions, why the defendant took such actions, and at whose direction he took those actions, were critical to the FBI’s counterintelligence investigation.

That makes sense. After all, Don Jr took a meeting in June with envoys for Aras Agalarov and — at a meeting offering dirt on Hillary Clinton — said his father would reconsider Magnitsky sanctions after the election. Both after that meeting and on October 7 — two of three days that stolen emails were released — Aras Agalarov provided elaborate gifts to Trump, the latter one personally couriered from Russia by Ike Kaveladze. When Agalarov didn’t succeed in revisiting his conversations about sanctions directly after the election, Jared Kushner sought out a back channel. Flynn’s conversations with Sergey Kislyak arose directly out of the meeting at which Kushner made that request, and Kushner ordered Flynn to pursue the discussions with Kislyak. Flynn, Kushner, and KT McFarland made efforts to keep those conversations secret, even from other members of the Administration. At the same time, Flynn and McFarland were explicitly talking about sending secret messages between Putin and Trump.

So it would make sense that Flynn’s effort to undermine sanctions might be proof that Trump had entered into a quid pro quo back in June, rewarding Russia’s help for getting elected with sanctions relief.

But the Mueller Report did not find adequate proof that Trump directed this effort to charge it.

Some evidence suggests that the President knew about the existence and content of Flynn’s calls when they occurred, but the evidence is inconclusive and could not be relied upon to establish the President’s knowledge.

[snip]

Our investigation accordingly did not produce evidence that established that the President knew about Flynn’s discussions of sanctions before the Department of Justice notified the White House of those discussions in late January 2017.

The Report relies on some, but not the most damning, of the exchanges back and forth between Flynn, McFarland and others released in an affidavit targeting them in 2017, as well as Flynn and McFarland’s testimony.

Since that time, several other pieces of evidence have become available — thanks to the interventions of former Acting Director of National Intelligence Ric Grenell and Flynn (and recently fired Trump) attorney Sidney Powell, among others — that might tip the balance on this evidentiary question.

Bill Barnett’s interview report claims he pursued a desired outcome in the interviews of Flynn and KT McFarland

One of those things is the testimony of Bill Barnett, one of the key FBI agents who investigated Flynn. Barnett was interviewed by Jeffrey Jensen in the review of Flynn’s prosecution that Sidney Powell demanded in June 2019 and Bill Barr gave Powell in January 2020, just after DOJ filed a sentencing memo calling for prison time.

Barnett’s testimony is, by itself, remarkable for all the ways it materially conflicts with the actions he took in the case. Effectively, he claims to have treated the investigation as a criminal investigation when documents he drafted clearly treat it as a counterintelligence investigation (thereby undermining all the claims that this was just about the Logan Act).

Barnett also claims that, after expressing disinterest in conducting this investigation four different times but ultimately relenting only so he could serve as a counter-weight to other investigators on the team, he single-handedly prevented the Mueller team from concluding that KT McFarland was lying when she told a story about coordinating with Mar-A-Lago that exactly paralleled the lies that Flynn originally told.

Barnett describes that he was the only one who believed that KT McFarland was telling the truth when she said that she did not remember Trump directing Flynn’s efforts to undermine sanctions. Significantly, he describes this question as — in Mueller’s view — “key to everything.”

Many at the SCO had the opinion that MCFARLAND had knowledge TRUMP was directing [sanction discussions] between FLYNN and the Russian Ambassador. When MCFARLAND did not provide the information sought, it was assumed she was lying. When BARNETT suggested it was very possible MCFARLAND was providing truthful information, one of the SCO attorneys participating in the interview said BARNETT was the only person who believed MCFARLAND was not holding back the information about TRUMP’s knowledge of [the sanction discussions]. MUELLER described MCFARLAND as the “key to everything” because MCFARLAND was the link between TRUMP, who was at Mar-a-Lago with MCFARLAND, and FLYNN, who was in the Dominican Republic on vacation, when [the calls] were made.

Again, it is stunning that Barnett was permitted to give this answer without being asked about the call records, which showed Flynn lied about consulting with Mar-a-Lago, to say nothing about the way that McFarland’s forgetfulness matched Flynn’s and then her unforgetting similarly matched Flynn’s. It’s not a credible answer, but Jeffrey Jensen doesn’t need credible answers.

Then, having made it clear that he believed that Mueller treated McFarland as the “key to everything,” BARNETT described how he single-handedly managed to prevent the entire team from concluding that Trump was in the loop.

BARNETT was told at one point he was being taken off the MCFARLAND proffer interview because SCO attorneys thought would be easier for MCFARLAND to talk without BARNETT there, due to her attitude toward BARNETT during past interviews.

McFarland has complained publicly about being caught in a perjury trap by the FBI agents who first interviewed her (and the 302s show a continuity among the FBI agents), so Fox viewers have actually seen evidence that McFarland had a gripe with Barnett.

BARNETT insisted he be on the interview. When BARNETT was told he would not be allowed on the interview, BARNETT suggested he might take the matter to the Inspectors General or to “11.” BARNETT believed some at SCO were trying to get MCFARLAND to change her story to fit the TRUMP collusion [sic] theory. [Probably Van Grack] later contacted BARNETT and said BARNETT would be part of the MCFARLAND interview.

During the proffer interview with MCFARLAND, the “obstruction team” was leading the interview. BARNETT described the “obstruction team’s” questions as general. They did not ask follow-up or clarifying questions. BARNETT was perplexed by their lack of asking follow-up questions. BARNETT began asking MCFARLAND follow-up questions and direct questions. BARNETT was trying to “cut to the chase” and obtain the facts. BARNETT asked questions such as “Do you know that as a fact or are you speculating?” and “Did you pass information from TRUMP to FLYNN?” Andrew Goldstein (GOLDSTEIN), a SCO Attorney, called “time-out” and cautioned BARNETT by saying, “If you keep asking these questions, we will be here all day.”

It’s unclear whether Barnett’s depiction is correct or not. The 302 of that interview is heavily redacted, but doesn’t show a “time out” in it. What matters for the purposes of this post is that Barnett is claiming he singlehandedly prevented McFarland from implicating the President.

You would never get this kind of admission from an FBI Agent, that he single-handedly undermined the questioning of a witness to get an outcome he believed in, all the while undermining his previously untainted credibility. But Sidney Powell’s demands led to DOJ producing it, nevertheless.

And that’s before any further scrutiny of Barnett’s role and the material inconsistencies here. Such scrutiny might come from the Strzok and Page lawsuits, which would have reason to use his pro-Trump tweets as proof that they were selectively disciplined for expressing political views on FBI-issued devices. Or, particularly given his efforts to blame investigative decisions on Andrew McCabe in ways that conflict with the public record, the McCabe lawsuit might have cause to inquire whether he was the agent who sourced a false story that Sara Carter published, alleging that McCabe said, “First we fuck Flynn, then we fuck Trump,” which ended up leading to the investigation into McCabe itself and ultimately to his firing. Or, DOJ IG might have cause to investigate the Jensen investigation itself, given how it submitted altered documents packaged up for publication, and the circumstances of the Barnett interview in particular, given how DOJ withheld material information from Judge Emmet Sullivan by redacting references to Brandon Van Grack in the interview report.

Interviewing Barnett in such an obviously biased way provides an easy hook for more scrutiny.

For the first time in history we can compare NSLs to warrants obtained

Then there’s another unprecedented thing that Powell’s demands produced: A report of (some of) the NSL’s that DOJ used against Flynn in early 2017. In an effort — almost certainly deliberately misleading — to suggest that McCabe and Strzok inappropriately got NSLs targeting Flynn in 2017 that they chose not to get in 2016 (there’s reason to believe they did get NSLs, only financial rather than communication ones), the government summarized what NSLs FBI obtained in February and March 2017. Those were:

One NSL, authorized on February 2, 2017, sought subscriber and toll billing records for a telephone number associated with Michael T. Flynn for the period from July 1, 2015 to the present.

A second and third NSL, authorized on February 7, 2017, sought “electronic transactional records” for an email address associated with Michael T. Flynn for the period from July 15, 2015 to the present and subscriber information for a telephone number associated with Michael T. Flynn for the period from August 1, 2016 to the present.”

A fourth, fifth, and sixth NSL, all authorized on February 23, 2017, sought toll records for three telephone numbers, for the period of January 1, 2016 to the present, and an email address, for the period of inception to the present, all associated with Michael T. Flynn.

A seventh NSL, issued on March 7, 2017, sought subscriber and transactional information for a telephone number associated with Michael T. Flynn from December 21, 2016, to January 15, 2017.

The government has only recently permitted NSL recipients to inform targets, but just targets, and only after a significant delay. Here, however, you have the government listing out the seven different communication records publicly, in a case where there was already a pending request and precedent to release the warrant applications publicly.

That not only allows us (again, for the first time I know of) to see how the FBI launders information learned in an NSL for use in a potential criminal prosecution, but it also tells us something about the communications devices the government had reason to find relevant when it did obtain warrants.

Warrant applications for Flynn’s iPhone 6 and a computer (first filed on July 7, 2017, then refiled on July 27, 2017) rely on toll records obtained in June 2017 and “other materials in the government’s possession” (which surely include those NSLs) to determine that Flynn had used the same phone from March 2015 until at least June 8, 2017. That said, Flynn changed the number three times, including after he learned he was under criminal investigation in January 2017. After Flynn refused to turn the phone over in response to a subpoena, the government obtained a warrant that would have permitted it to search Covington & Burling, where Flynn was storing it, if they didn’t otherwise produce the phone.

The warrant application and a parallel one targeting Flynn’s son* were focused on FIG, but written in a way such that any communications with foreign officials like Kislyak would still be responsive, and could be used in a False Statements or Foreign Agent prosecution.

By the time of the July 27 warrant that presumably successfully obtained Flynn’s phone, the government already had his Flynn Intelligence Group emails (there are two EDVA warrants that have not yet been unsealed, and some of those emails were turned over pursuant to a subpoena).

Also by that time, the government had confirmed that Flynn’s FIG email was provided by Google. This was the period prior to the time when DOJ agreed to let enterprise clients know when warrants were served on their facilities, meaning the government could have independently obtained FIG emails from Google, as they obtained Michael Cohen’s Trump Org emails from Microsoft in the same period.

On August 25, 2017 — the same day that Mueller asked GSA to turn over related devices and email accounts — Mueller obtained a warrant for Mike Flynn, KT McFarland, and Flynn assistant Daniel Gelbinovich’s devices and emails. GSA had provided Flynn one email account, three phones, and three computers, which would be consistent with devices hardened to three levels of classification — unclassified, Secret, and Top Secret (Flynn had renewed his clearance earlier in 2016). The government had already used a d-order to obtain the header information for the email accounts and obtained toll records by undisclosed means (of which there would be several possible, but the NSLs would have provided that information as well). In addition to sender and recipient information, the header information would have shown what IP any emails were sent from, using what devices (this would have built on information obtained via NSL), which can help to identify the location of someone. The August 25 affidavit referenced FIG emails obtained via subpoena to demonstrate that the Russians contacted Flynn at his Transition account (as well as via Gelbinovich and, apparently, Flynn’s son); though because the Russian side of the conversation would have already been targeted under FISA, the FBI also would have had their side of the communication, which the Russians surely knew.

Then on September 27, 2017, Mueller obtained a warrant targeting the email accounts and devices of Keith Kellogg, McFarland assistant Sarah Flaherty, Sean Spicer, Reince Priebus, and Jared Kushner. These two posts show how damning the content relayed in this warrant is. For the purposes of this post, however, the affidavit is useful because it identifies whether the emails Flynn and McFarland were using to communicate with the others were Transition accounts or not. While it appears Kellogg always used his Transition account, Flaherty, Spicer, and Priebus occasionally did, most of the rest did not, except in cases where they were writing cover emails. But her emails! (Numerous communications from Tom Bossert are included in this batch, as well, but that must come from an interview and subpoena he complied with.)

In addition, the affidavit explains that regarding the sanctions coordination, McFarland was consistently calling Flynn on his personal cell phone (the implication may be that earlier calls were on one of his GSA devices). He was responding to her and calling Kislyak from the hotel phone where he was staying in the Dominican Republic (the latter calls and their content, the FBI would know from FISA intercepts). The December 31 follow-up from Kislyak was placed to Flynn’s personal cell.  The affidavit does not, however, describe which phones Flynn used for other calls.

There are many details about these records that are interesting. Among the most interesting, however, is that the FBI would have known before they obtained the first warrants on Flynn’s devices and emails that almost none of the key calls with Russia, nor even the key calls coordinating the Russian sanctions call with McFarland and others, involved Flynn’s GSA devices. Additionally, there appear to be extra phones, not identified by the known warrants. These might be the possible targets of the NSLs:

One NSL, authorized on February 2, 2017, sought subscriber and toll billing records for a telephone number associated with Michael T. Flynn for the period from July 1, 2015 to the present. [Flynn personal phone]

A second and third NSL, authorized on February 7, 2017, sought “electronic transactional records” for an email address associated with Michael T. Flynn for the period from July 15, 2015 to the present and subscriber information for a telephone number associated with Michael T. Flynn for the period from August 1, 2016 to the present.” [Flynn Intelligence Group email and another phone (possibly his son’s?)]

A fourth, fifth, and sixth NSL, all authorized on February 23, 2017, sought toll records for three telephone numbers, for the period of January 1, 2016 to the present, and an email address, for the period of inception to the present, all associated with Michael T. Flynn. [GSA accounts]

A seventh NSL, issued on March 7, 2017, sought subscriber and transactional information for a telephone number associated with Michael T. Flynn from December 21, 2016, to January 15, 2017. [unidentified account]

At a minimum, the NSL report suggests that even though none of the calls identified in the warrants were to Flynn’s presumably more secure phones (indeed, only Spicer appears to have had a second phone at that point, probably in part because, of the others, only Kellogg and Flaherty had clearance), the government chose to obtain those phones as well. The government knew, when it obtained the August 2017 warrant, that there was something interesting on those second and third GSA lines Flynn was using.

If it weren’t for Sidney Powell’s attempts to frame Andy McCabe, these details would be totally classified. But because she demanded the “review,” it shows that there are parallel phone communications via which Flynn could have kept Trump in the loop on his calls to Russia (remember, translators believed the key December 29 one, which Flynn made from his hotel phone, sounded like he was using a speaker phone).

Ric Grenell releases really damning transcripts but withholds the potentially most damning one

Finally, in yet another unprecedented release, while he was Acting Director of National Intelligence, Twitter troll Ric Grenell prepared the release of the actual transcripts of the calls between Flynn and Kislyak, purportedly to show there was nothing untoward about the calls. (Current DNI John Ratcliffe approved the actual release as one of his first acts on the job.)

Even by itself, the transcripts were far more damning than the gaslighters suggested. Of particular note, on the December 31 call that Kislyak placed to tell Flynn that Putin had held off on retaliating because of his request, Flynn told the Russian Ambassador that Trump was aware of one thing — a proposed Syrian “peace” conference — that Kislyak had raised just two days before.

FLYNN: and, you know, we are not going to agree on everything, you know that, but, but I think that we have a lot of things in common. A lot. And we have to figure out how, how to achieve those things, you know and, and be smart about it and, uh, uh, keep the temperature down globally, as well as not just, you know, here, here in the United States and also over in, in Russia.

KISLYAK: yeah.

FLYNN: But globally l want to keep the temperature down and we can do this ifwe are smart about it.

KISLYAK: You’re absolutely right.

FLYNN: I haven’t gotten, I haven’t gotten a, uh, confirmation on the, on the, uh, secure VTC yet, but the, but the boss is aware and so please convey that. [my emphasis]

This evidence would have been inadmissible without Grenell’s intervention. There would have literally no way in hell Mueller would have been permitted to rely on it, a raw transcript of a FISA intercept targeting a foreign power. With it, however, you have Flynn saying in real time that Trump was aware of these conversations with Russia, well before they were made public. That’s precisely what Mueller concluded they couldn’t prove.

The transcripts make evidence obtained using criminal process still more damning, too.

For example, the transcripts and the affidavits make it clear that Flynn, McFarland, and the Russians were explicitly messaging back and forth. First Flynn explicitly told Kislyak that if Russia did not escalate in response to Obama’s sanctions, “we,” which would have to include Trump, would recognize that as a message.

Flynn: And please make sure that its uh — the idea is, be — if you, if you have to do something, do something on a reciprocal basis, meaning you know, on a sort of even basis. Then that, then that is a good message and we’ll understand that message. And, and then, we know that we’re not going to escalate this thing, where we, where because if we put out — if we send out 30 guys and you send out 60, you know, or you shut down every Embassy, I mean we have to get this to a — let’s, let’s keep this at a level that us is, even-keeled, okay? Is even-keeled. And then what we can do is, when we come in, we can then have a better conversation about where, where we’re gonna go, uh, regarding uh, regarding our relationship. [my emphasis]

When Putin announced he would not retaliate, KT McFarland sent two emails explicitly labeling the move as a signal.

My take is Russians are taking the most restrained retaliation possible — it’s his Signal to trump that he wants to improve relations once obama leaves. Although [Obama] didn’t mean to he has given [Trump] new leverage over Putin.

[snip]

Putin response to NOT match obama tit for tat are signals they want a new relationship starting jan 20. They are sending us a signal.

But then Trump thanked Putin for the move, suggesting he was in on the signaling.

After he did so, McFarland sent Flynn, Kellogg, Flaherty, Priebus, Kushner, and Bannon — the latter of whom almost never used their official accounts but did here — and laid out a cover story, describing Flynn’s call without mentioning that he had raised sanctions. She offered,

a summary of FLYNN’s conversation the day before with the Russian “AMBO,” which I believe to be shorthand for “Ambassador.” McFarland appears to recite a summary of information she received from FLYNN in this email; she provides a summary of FLYNN’s conversation with the Russian Ambassador, but does not indicate that they discussed the sanctions imposed against Russia that had been announced earlier that day.

Flynn would admit to Mueller’s team that he, and therefore McFarland, who knew the truth, deliberately hid his discussions of sanctions with Kislyak.

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.1267

But the Russians — who may have monitored some of the traffic that went on between these unsecure personal accounts — made damn well sure that the US intelligence community had a record that all this signaling was intentional. Kislyak called Flynn on his unsecure personal cell phone and told him he had a message, too. The message was that Flynn’s request was the reason Putin had not acted. The message was also that Russia recognized (or claimed to, to play to the Americans’ paranoia) to be pitted against the same hostile entities together.

Kislyak: Uh, you know I have a small message to pass to you from Moscow and uh, probably you have heard about the decision taken by Moscow about action and counter-action.

Flynn: yeah, yeah well I appreciate it, you know, on our phone call the other day, you know, I, I, appreciate the steps that uh your president has taken. I think that it was wise.

Kislyak: I, I just wanted to tell you that our conversation was also taken into account in Moscow and…

Flynn: Good

Kislyak: Your proposal that we need to act with cold heads, uh, is exactly what is uh, invested in the decision.

Flynn: Good

Kislyak: And I just wanted to tell you that we found that these actions have targeted not only against Russia, but also against the president elect.

Flynn: yeah, yeah

Kislyak: and and with all our rights to responds we have decided not to act now because, its because people are dissatisfied with the lost of elections and, and its very deplorable. So, so I just wanted to let you know that our conversation was taken with weight.

This messaging all ended up with Russia and the incoming President aligned on the same side, against the US government.

Still, that’s not direct proof that Trump was involved in real time (though I suspect the government obtained that from its NSLs).

But that may be why Mueller charged Flynn’s lies about the UN vote. In that case (in part because McFarland wasn’t hiding her actions as much), it’s clear that Jared Kushner ordered the effort (and the Americans initiated the calls).

According to records obtained during the course of the investigation, at approximately 8:46 a.m. on December 22, 2016, FLYNN had a four-minute conversation with Jared Kushner. After that conversation concluded, at approximately 8:53 a.m., FLYNN called the Russian Ambassador to the U.S. FLYNN then called a representative of the Egyptian government and had a four-minute conversation with him. At approximately 8:59 a.m., FLYNN had a three-minute conversation with the Russian Ambassador. Over the next few hours, FLYNN had several additional phone calls with the representative of the Egyptian government.

When the Trump crowd succeeded in delaying a vote, McFarland made it clear that Flynn was at Mar-a-Lago working directly with Trump on this effort.

At approximately 8:26 p.m. on December 22, 2016, K.T. McFarland emailed FLYNN and Sarah Flaherty and stated that FLYNN had “worked it all day with trump from mara lago.”

And in spite of the fact that he himself initiated the effort, Kushner sought to release a public cover story, to hide that he and his father-in-law initiated the effort.

Kushner replied all to that email [including Spicer, Bannon, Priebus, Kellogg, McFarland, Kushner, and one other person whose name is redacted] and wrote: “Can we make it clear that Al Sisi reached out to DJT so it doesn’t look like we reached out to intercede? This happens to be the true fact pattern and better for this to be out there.”

This was a lie — a lie designed to cover up that he and Trump and Flynn had worked with Egypt (which had allegedly bribed Trump to get him through the election) and Russia (which had conducted an elaborate operation to help him) to thwart the vote and with it the official US policy not to protect Israel’s illegal settlements.

As it turns out, the transcript from Flynn’s call to Russia that day isn’t among those Grenell released because they were so helpful to Trump. Even the one-line summary of the call, released for all other substantive calls, remains redacted.

But there, too, Kislyak may have been performing for the FBI intercepts he knew would catch these calls.

First, on the December 23 call — the one after the call for which the transcript hasn’t been released — Kislyak assures Flynn that whatever happened on it was considered by Putin.

Kislyak: Uh, I just wanted as a follow up to share with you several points. One, that, uh, your previous, uh, uh, telephone call, I reported to Moscow and it was considered at the highest level in Russia.

Then on the December 29 call, when Flynn asks Kislyak that Russia not box in the new Administration, Kislyak says that message has already been conveyed.

FLYNN: do not, do not uh, allow this administration to box us in, right now, okay? Um —

KISLYAK: We have conveyed it.

That request wasn’t in the December 23 call, so it must have been in one of the communications that preceded it, possibly even the face-to-face with Kushner in Trump Tower.

In his December 22 call — the one the content of which Grenell hid — Flynn made an ask of Russia, an ask that went beyond a vote at the UN. That was a call made from Mar-a-Lago, possibly even made with Trump on the call. That was a call that McFarland bragged Trump was involved with personally.

The Mueller Report, relying on evidence that would be admissible in court, said it was unclear how involved Trump was in any of this. But thanks to Ric Grenell, we now have solid evidence he was personally involved, if not on the phone for the call.

And even Bill Barr’s DOJ says that kind of personal involvement from Trump might amount to the kind of coordination that Bill Barr claimed didn’t exist.

When Mueller closed up shop, his team decided that they couldn’t make this case in court. Now, thanks to Sidney Powell and Ric Grenell, the Biden Administration may have a much easier time making that case.


*We know this warrant targeted Michael G. Flynn because it was sent to Barry Coburn, who represented the failson, because the warrant always refers to Flynn père as Michael T. Flynn (as an affidavit referencing both would necessitate), and the target of the third warrant tried to invoke the Fifth Amendment for questions about Flynn Sr.