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The Mike Flynn Interviews, with Backup

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A few weeks ago, the government turned over the backup to some Mueller interviews, including a number of Flynn interviews, at least one Steve Bannon interview, and a Corey Lewandowski one.

I’ve long been tracking the public Mike Flynn interview records (one, two, three). This post is an update incorporating, best as I could, the backup materials along with the interview reports. One primary Mueller interview may remain outstanding, along with his EDVA interviews regarding secretly being an Agent of Turkey.

Generally, the headings consist of one of three things:

  • My summary of what got included in the Mueller Report (which is helpful to see what is new to this declassification)
  • “Missing” and/or EDVA, which is a reflection of what Bijan Kian’s lawyers claimed they had gotten by June 2019
  • New, with a description of the content

The backup fleshes out what Flynn was questioned about, and what remains sensitive. The government has released maybe half of the emails and pictures that Flynn was questioned about in interviews, based on the references to such things in the interviews themselves. In general, if BuzzFeed got the backup material, the link I’ve added should link directly to that item.

But key kinds of materials were withheld. For example, the following were withheld:

  • Communications surrounding a 2016 Egyptian meeting (which Mueller suspected may have involved a bribe)
  • A Kushner Blueprint for Russia sent to Flynn on January 1, 2017
  • To the extent Flynn was shown it in interviews, the David Ignatius story reporting the Kislyak calls; that was generally withheld both for classification but also ongoing investigation (reflecting John Durham’s leak investigation into it)
  • A January 5, 2017 email referencing the Logan Act
  • An email about the Steele dossier
  • A July 24, 2016 email involving Flynn making it clear he recognized Russia had hacked the DNC; Flynn would equivocate on the subject in the weeks after that

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

Mueller attendees: James Quarles, Aaron Zebley, Brandon Van Grack, Zainab Ahmad

Entered: January 5, 2018

Nine months after Mike Flynn got fired, ostensibly for lying to the Vice President, Mueller’s team invited him for a mulligan on his January 24, 2017 interview in which he lied several times to the FBI. In advance discussions about that interview, Brandon Van Grack alerted Flynn’s lawyers that there were likely things Mueller’s team knew that Flynn’s did not.

There is information that you or your client might not be aware of. From where we’re sitting, there might still be value in sitting down with your client. We have a good sense of what Flynn knows and what Flynn doesn’t know.

As one indication of how badly Flynn had misled his attorneys, Rob Kelner expressed surprise that Flynn might be exposed for false statements from his interview at the White House.

Frankly, we are surprised by that. That is not consistent with what we have learned from press reports and other sources.

Zainab Ahmad warned,

You don’t know everything he knows.

This first interview, then, might be considered a test, whether Flynn was willing to tell the truth about his actions and those of Trump’s associates. He failed.

The interview front-loaded general information (how he came to work for Trump, though even there, later interviews would offer slightly different details as to timing), and questions about topics that Flynn was a tangential participant in — the DNC emails, the June 9 meeting, meetings with Egypt and Mueller’s suspicion that Trump got $10 million from them, ties with Qatar, Manafort’s role in the platform change, Brad Parscale’s operation, an the hush hush meeting with the UAE.

Only after asking questions about all that did Mueller’s team ask Flynn the same questions the FBI had asked him nine months earlier. He answered the questions the same way. He lied to hide the specific requests of Russia on Egypt’s UN proposal and he lied about whether he had discussed sanctions with Sergey Kislyak and discussed them with the Transition team at Mar-a-Lago with Trump.

Topics:

  • How he came to work for Trump
  • The $10 million campaign contribution (Mueller suspected it to be sourced from Egypt)
  • Hillary’s emails (Flynn lied and claimed he had never looked for them)
  • The DNC emails (Flynn lied about discussions about the topic)
  • No knowledge about June 9 meeting
  • The meeting with Abdel Fattah el-Sisi (and those suspected of brokering it); Flynn later admitted he met with Egyptians on more than one occasion
  • A reference to Qatar
  • Flynn’s views about Manafort, including the platform change
  • Flynn’s views on Russia
  • Flynn’s review of Parscale’s operations
  • Early congratulation calls, including Egypt, a botched one to Taiwan, and the first call with Putin
  • The meeting with Kislyak (Flynn claimed a back channel did not come up)
  • The call with Sergey Kislyak on 12/6/16, which he always insisted he didn’t remember, and a follow-up on December 7
  • The UAE meeting in NY
  • The UN vote (Flynn repeated his lies from earlier that year, twice)
  • The sanctions discussion (Flynn repeated his lies from earlier that year)

Backup

  • 9/15/16 email to Bannon regarding Egypt (A)
  • 12/7/16 email RE: Russian Ambassador Sergey Kislyak (regarding deferring all conversations until after inauguration) (B and C)
  • 3/27/2017 NYT article describing Kushner meeting (D)
  • 12/12/16 meeting keep UAE meeting to small circle (E)
  • Another email on Egypt

That night, Flynn’s lawyers told him he had botched the interview.

That same evening, after concluding the first proffer, we returned to the Covington offices where my attorneys told me that the first day’s proffer did not go well and then proceeded to walk me through a litany of conceivable charges I was facing and told me that I was looking at the possibility of “fifteen years in prison.”

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”

Mueller attendees: James Quarles, Aaron Zebley, Brandon Van Grack, Zainab Ahmad (Zebley and Quarles in and out)

Entered: 1/5/18

According to Flynn, overnight his attorneys coached him on language to

“get through” the next day’s proffer and satisfy the special counsel.

Flynn shaded the truth in his November 17 interview — about the Trump Transitions contacts with their predecessors, about his discussions about sanctions with KT McFarland and Steve Bannon, about why he left no written record of having discussed sanctions. Still, it was a better interview, and after being confronted with just a selection of the communications that had recorded these communications in real time, his story edged closer to the truth, even while denying things (such as the explicit nod to their calls from Kislyak) that were in FISA transcripts. Among the things Flynn admitted that day was that he “knew he got involved in U.S. policy when he called KISLYAK.”

In addition, Flynn provided Mueller’s team what must have been important insight. He said that when he resigned, “TRUMP was tired and visibly shaken or upset.” But then when Sean Spicer explained his resignation, “It bugged FLYNN that SPICER said he (FLYNN) had been untruthful.” Flynn’s sense of betrayal would, at times, be powerful motivation for his cooperation with Mueller, until it wasn’t anymore.

Topics:

  • Calls with Kislyak, including January 12 one, (several iterations); Flynn lies abt Bossert speaking with Monaco, claims not to remember specifics of discussion with McFarland, makes excuses for not including sanctions in email, then backtracked somewhat, makes excuse for not telling Trump, claims he didn’t discuss it with Bannon
  • Flynn’s lies to others, including knights of the round table
  • His first FBI interview (several iterations)
  • Covington asks who he spoke with after the call, includes people (like Ted Gistaro) whom he didn’t tell
  • His resignation

Backup

  • 12/29/16 Text messages to Sara Flaherty (possible some withheld on b3) (A)
  • Some exhibit (possibly call records) eliciting a discussion about whether he and Michael Ledeen spoke about sanctions (B)
  • 12/30/16 email from McFarland relaying the talking points (C)
  • D [possibly comms from after he spoke with Kislyak]
  • 12/31/16 Keith Kellogg email (E)
  • Probably Ignatius article

Ongoing: Individual words redacted to hide an investigation into Ignatius’ source

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

Mueller attendees: James Quarles, Aaron Zebley, Brandon Van Grack, Zainab Ahmad

Entered : 1/5/18

On November 20, Flynn inched still closer to the truth about what happened during the Transition period. He clarified a key detail about the $10 million infusion of cash that, Mueller suspected, had come from Egypt. Flynn described how Trump blamed him for not informing Trump that Vladimir Putin had been the first to call Trump after inauguration — something Trump had told Jim Comey.

And after being shown texts of the communications he had with Mar-a-Lago surrounding his calls with Sergey Kislyak, he effectively admitted that he had coordinated with Mar-a-Lago. There were still gaps. He had no explanation for why there was a meeting between him, KT McFarland, and Trump at 5PM, which would have been shortly after his call with Kislyak. Flynn inched closer to admitting that he and McFarland had agreed to leave mention of sanctions out of his text summarizing the call. And he admitted that he may have spoken about the sanctions discussion in some meetings with Steve Bannon at the latter’s townhome after the calls.

Once Flynn’s admissions about his own actions got closer to the truth, Mueller’s team asked him questions about Jared Kushner’s actions, especially a secret meeting with Mohammed bin Zayed in mid-December 2016.

Topics:

  • The Infusion of cash (correcting earlier explanation)
  • Theresa May arrival (included in Comey’s notes)
  • Calls with Kislyak (including texts with Flaherty)
  • Texts excluding sanction discussion
  • Meeting with Trump at 5PM on 12/29
  • Meeting with Bannon
  • Kushner’s blueprint for Russia
  • McFarland January 5, 2017 email
  • January 6, 2017 ICA briefing
  • Dossier
  • Cohen’s Ukraine plan
  • Someone who also believed CIA was bloated (and discussed UAE and Libya)
  • Seychelles meeting
  • Egypt package

Backup

Classified: Rex Tillerson? Some details about early January

Ongoing: Two b7A paragraphs in follow-up to Egypt package

4. November 21, 2017: Whether he told others at MAL, response to Ignatius, meeting with Trump [Missing]

Mueller attendees: James Quarles, Aaron Zebley, Brandon Van Grack, Zainab Ahmad; Mueller, briefly; Zebley left

Entered: 1/5/18

Having given Mueller’s team a passable explanation for his own actions, they focused the last interview on fine tuning that — particularly his admission to discussing the sanctions with Bannon — while getting him to talk about all the times he had been thrown under the bus by those who were in the know on the sanctions discussion, Bannon and McFarland.

Mueller’s team also got him to go over Kushner’s involvement in foreign policy, the relationship with Egypt, and the UAE meeting.

Topics:

  • Logan Act
  • Bannon’s townhouse (Bannon already knew content of conversation)
  • Knights of the round table meeting, Bannon and McFarland silent
  • Another instance of being thrown under the bus
  • Kushner on Mexico
  • Egypt
  • Rick Gerson and Tony Blair, the UAE meeting (April 2017 Flynn contact with Gerson)

Backup [large b4 redactions likely hiding a bunch]

  • Email on el-Sisi meeting
  • 9/16/16 email between Ivanka and Phares
  • Photo of Rick Gerson
  • Kushner email on keeping meeting small

Large b4 redactions (trade secrets), addressing two topics, which leads into Kushner on foreign policy.

5. November 29, 2017: Peter Smith [Missing]

Mueller attendees: Brandon Van Grack, Zainab Ahmad

Entered: 1/5/18

The November 29, 2017 meeting, when the two sides were already discussing a plea deal, seems to be focused on answering questions that Mueller’s team didn’t know the answers to, unlike the prior proffers. This covered some of Flynn’s other legal exposure (such as his non-disclosure of foreign travel on his clearance form and his financial disclosure), just bits about his ties with Turkish officials, WikiLeaks and the Peter Smith attempt to find Hillary’s email, as well as other election year digital activities.

The interview ended with a discussion about language in a draft statement of offense admitting that Flynn had initially not told the government that he and Steve Bannon discussed sanctions. That language was cut from the final statement of offense, but it provides important background to interviews with others, including McFarland and Bannon.

Topics:

  • Op-ed on Libya relying on WikiLeaks docs
  • Discussions about WikiLeaks having Hillary’s emails, no direct contact
  • WikiLeaks following Flynn starting in October or November 2016, DMs him on 12/5/16
  • An NSC hire
  • Flynn notes on index cards
  • Meeting with Turkish officials, including sitting with Foreign Minister at Trump International Hotel in January
  • More Turkish
  • Svetlana Lokhova, including congratulations sent after election
  • Jobs after DIA
  • Meetings Flynn set up
  • Foreign travel not included in SF-86, financial disclosure
  • Peter Smith (original contact cyber business), probably downplaying extent of their contacts
  • Rick Gates during transition
  • Putin congratulatory phone call (possibly different details than original version), asked about a “signal”
  • Rick Gerson notes on 12/14/16
  • WikiStrat
  • PsyGroup
  • Donbass
  • Meeting with Susan Rice
  • Strong dollar
  • Bannon townhouse language in statement of offense

Backup

  • 10/6/16 Curtis Ellis email, possibly relating to an op-ed on Libya, using classified information that had shown up on WikiLeaks
  • Possible b7A
  • Possible SF-86 and financial disclosure form
  • 12/4/16 notebook entries re Rick Gerson meeting
  • Possible media report that Trump asked him about strong dollar

b7E redactions

Ongoing: Four b7A redactions in discussion of what he did after he left DIA.

6. January 11, 2018: November 30 meeting with Kislyak [Missing]

Mueller attendees: Brandon Van Grack, James Quarles

Entered: 2/22/18

Starts with admonishment.

In Flynn’s first interview after pleading guilty, Mueller’s team asked him more generic details — about how he used his classified phone, whether he used encrypted apps, whether he knew about the Seychelles meeting. It’s not clear he told truth about those questions or not, but he did provide other useful information, such as how often Erik Prince was at Transition headquarters.

Topics:

  • Classified emails
  • Flynn claims he only used classified phone with Susan Rice
  • Encrypted apps (he preferred Signal), especially whether Bannon and Kushner used them
  • Kislyak meeting, starting w/12/1/16 (obtained his bio), still claimed no back channel, did not recall sanctions discussion
  • UN calls (including Nikki Haley’s, Bannon’s involvement)
  • Rebuff of Manafort’s 1/15/17 email (Manafort at National Prayer Breakfast)
  • UAE meeting
  • Another discussion of fire-the-CIA guy (could be Prince)
  • Prince at Trump Tower on daily basis, no knowledge of Seychelles
  • Kevin Harrington: Russia trying to usurp US role
  • Gitmo transfer
  • Parscale meeting in September 2016
  • Whom he has heard from post-plea

Backup:

Ongoing: Two b7A paragraphs between discussion of Manafort and Egyptian.

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

Mueller attendees: Brandon Van Grack, James Quarles, Andrew Goldstein

Entered: 6/21/18 [note: several other 302s have an entry date of 5/21, so this may be a typo]

In Flynn’s January 19, 2018 interview, he protected the President. He said, over and over, that he had no idea if he had spoken directly with Trump about sanctions, or even what he had said to KT McFarland. The Mueller team did not prompt him with information that might have been useful to force him to admit that he had told Trump.

Flynn did, however, admit that Trump had a better understanding of the timeline of Flynn’s calls with Kislyak than Flynn did, including a probable reference to Trump’s involvement in the December 22 call about Egypt.

This 302 was not finalized until June 21, a testament to how important Flynn’s claim not to remember discussing this with Trump was to Mueller’s case.

Topics:

  • Contacts with Mar-a-Lago, claims he assumed McFarland talked to Priebus and Bannon
  • Meeting with Bannon on 1/1/17
  • Whether it came up on 1/3/17
  • Ignatius, now says he’s worried he broke the law
  • His interview (with b5 that may have covered discussion within WH afterwards)
  • Trump corrects his date
  • Whether Trump specified calls with Daily Caller
  • Correcting Nikki Haley on Crimea

Backup:

  • Possibly Ignatius article

8. January 24, 2018: [New] Questions about George Nader and Erik Prince

Mueller attendees: Brandon Van Grack, Zainab Ahmad

Entered: 2/22/18

This interview took place in the wake of the George Nader detention at the airport, and reflects the first review of Nader’s phone. Prince was also a focus.

Topics:

  • Whether he recognized Nader
  • How Flynn arrived to the MbZ meeting and what was discussed
  • Whether Russia was discussed
  • Flynn’s meeting with Rick Gerson in December (which Tony Blair attended)
  • Erik Prince’s plans to outsource the IC and whether he was getting $$ from UAE
  • Prince’s presence in Trump Tower after the election
  • Extended b7A discussion

Backup:

9. April 25, 2018: Peter Smith

Mueller attendees: Brandon Van Grack, Zainab Ahmad, Andrew Weissmann, Aaron Zelinsky

Entered: 5/21/18

On April 25, 2018, after most Trump associates had had their first interviews and the Mueller team had begun to unravel Roger Stone’s role, Flynn had his first interview discussing those issues. It appears he shaded the truth, disclaiming to have been certain that Russia had hacked the DNC and disclaiming awareness of all the discussions in the campaign about WikiLeaks.

Nevertheless, Flynn likely said things at this interview that betrayed knowledge of far more, even if he didn’t understand that.

Topics:

  • How he got involved in the campaign, including discussions of Russia and Sam Clovis’ role in it, dates involvement from 2/22/16; officially joined June 2016
  • RT trip
  • Regular contact with retired military officer, including email 6/29/16
  • DNC hack, Flynn claims he was uncertain abt attribution [break to walk Flynn through specific dates], Ledeen on missing emails, no memory of Stone, contact with FBI
  • Debate prep included “leverage” discussions about Assange, Flynn did not know under indictment (??)

Backup:

10. May 1, 2018: Peter Smith

Mueller attendees: Brandon Van Grack, Aaron Zelinsky

Entered: 5/21/18

In this interview, Stone prosecutor Aaron Zelinsky tried to pinpoint Flynn’s vague memories from August 2016, specifically regarding his first flight with the campaign on August 3, 2016, in the middle of a period when Stone was in close contact with the campaign about WikiLeaks. In this interview, Flynn admitted that he had much higher certainty that Russia had done the hack than he had said weeks earlier.

Mueller’s team also asked him what amount to counterintelligence questions and started to figure out who in the FBI was undermining their case in Flynn’s name.

The meeting ended with a question about who used his IC badge to enter a classified facility on April 3, 2017.

Topics:

  • First trip on plane was 8/3/16, to Jacksonville, Flynn’s own assessment would be high likelihood Russia did the hack
  • Russian born investment capitalist talked about Clinton’s emails a lot
  • WikiLeaks reaches out to Flynn on 6/22/16 via publisher (recurring)
  • Flynn email 7/24/16 about attribution showing certainty–he walked back his certainty by August 3
  • Series of emails with someone military who moved to DIA, around first meeting with Manafort on 6/23/16
  • Question abt bots and social media
  • Email 11/2/16 may have clicked on the link
  • Trump’s 7/27/16 comment, specifically asked if Stone put it in his head
  • Contact in USDI
  • Retired general
  • 6/29/16 email from someone he was respectful of
  • Email 9/10/16 about speaking to Russia on Syria, someone pro-Russian
  • Dmitri Simes
  • Email sent to someone he met in August 2015 on 8/20/16
  • Contacts in FBI
  • Digital response team v. Parscales
  • Email 10/9/16 with link to Podesta
  • Extended discussion of Erik Prince, including transition
  • DIA visit on 4/3/17 (discussion about his IC badge)

Backup

Ongoing: Two b7A paragraphs abt discreet subject/person between discussion about WikiLeaks and about Prince.

11. May 4, 2018: [New: Manafort, Ledeen, and badging]

Mueller attendees: Brandon Van Grack, Aaron Zelinsky

Entered: 5/21/18

The next meeting started with the unexplained use of his badge (Flynn claimed he still hadn’t found it). It hit on his efforts to find Hillary’s emails with Barbara Ledeen, their search for the emails on servers in Ukraine, and a long call Flynn had with Manafort in June, when the WikiLeaks effort first began.

Topics:

  • Use of his badge 4/3/17
  • Barbara Ledeen, including password protected email on 10/29/16
  • Servers in Ukraine
  • Micro-targeting
  • Hour-long call with Manafort on 6/23/16; first met Manafort on 6/30/16
  • The dossier and ICA briefing
  • Transition meeting, some Captain sharing information, and KT McFarland

Backup:

12. May 17, 2018: [New: Ledeen’s tampering]

Mueller attendees: Brandon Van Grack, Zainab Ahmad

Entered: 6/1/18

Most of this meeting focused on ways that Flynn’s people were undermining the investigation, with a focus on Barbara Ledeen and Sara Carter (who published several false stories about the investigation). It also returned to the issue of what secure communications he used.

Topics:

  • Ledeen’s probes of the investigation
  • Sarah Carter’s propaganda (starting with possible immunity on 3/30/16)
  • Discussions about the investigation
  • Secure communications

Backup:

13. May 23, 2018:

Mueller attendees: Brandon Van Grack, Zainab Ahmad

Entered: 5/29/18

While this meeting returned focus to two key prongs of the Middle Eastern part of this investigation, UAE and Qatar, it also probed more about Flynn’s current job and the FBI agents tracking his case.

Topics:

  • Qatar
  • 12/12/16 Trump Tower meeting, possibly with QIA
  • His then-current consulting gig
  • FBI agents, including retired, who are tracking his case

Backup

  • Picture from QIA meeting

b3: An entire discussion covered by b3

14. June 13, 2018: [EDVA, Missing]

15. June 14, 2018: [EDVA, Missing]

16. June 25, 2018: [EDVA, Missing]

17. July 26, 2018, [EDVA, Missing, possibly two 302s]

18. September 17, 2018: [New: someone else’s tampering, probably Derek Harvey]

Mueller attendees: Brandon Van Grack, Zainab Ahmad

Entered: 9/28/18

The entirety of this, Flynn’s last meeting with the Mueller team, seems to focus on the role of Derek Harvey, whom Flynn hired into the NSC, and who played a key role in helping Devin Nunes undermine the entire investigation.

Topics:

  • Relationship with someone on HPSCI, probably Derek Harvey

September 26, 2018: Proffer response on meetings with Foresman

January 28, 2019: [EDVA Missing]

February 28, 2019: EDVA

April 5, 2019: [EDVA Missing]

June 6, 2019: EDVA — Flynn blows up his plea deal

Government Refuses to Let Steve Bannon Sneak Away from His Federal Fraud Indictment

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On February 11, Steve Bannon’s pardon was lodged in his federal docket with no explanation, entered with a date of January 19. As compared to the Mike Flynn pardon, there was no DOJ request to dismiss the prosecution nor an indication that Bannon had accepted it.

Apparently, on February 18, Bannon’s lawyer wrote Judge Analisa Torres an email requesting that she dismiss the indictment against Bannon. In response, yesterday the government submitted a letter agreeing that Bannon can be terminated from the docket and have his bond returned, but opposing that the indictment be dismissed.

As prosecutors explain, a pardon is only meant to forgive punishment, it is not intended to forget the crime. And if the court dismissed the indictment, prosecutors point out, it would have consequences beyond the pardon.

The fact that Bannon was pardoned does not extinguish the fact that a grand jury found probable cause to believe that he committed the offenses set forth in the Indictment, nor does it undercut the evidence of his involvement therein which the Government expects to elicit as part of its presentation at trial. Were the Court to dismiss the Indictment against Bannon, it could have a broader effect than the pardon itself, among other things potentially relieving Bannon of certain consequences not covered by the pardon.

[snip]

Accordingly, because Bannon does not set forth any legal authority for the proposition that a court should dismiss an indictment following a pardon, and the only stated basis for his request is to “clarify” his status, the Court should deny the request.

The government also demands that Bannon file the letter in the docket.

Finally, the Court should direct Bannon to publicly file his February 18th letter on the docket. Bannon’s counsel submitted the letter to the Court by email—and therefore effectively under seal—because, in his view, “Bannon should no longer be a defendant in the case.” However, until the defendant is administratively terminated, he remains a named defendant and more important, Bannon’s status in the case is not a basis to make his submission under seal.

The government submitted the filing on the same day that CNN reported an accelerating state investigation into Bannon for the same crimes.

The Manhattan district attorney’s office has subpoenaed financial records related to Steve Bannon’s crowd-funding border-wall effort, signaling that its criminal investigation into former President Donald Trump’s chief strategist is advancing, according to people familiar with the matter.

Prosecutors sent the subpoenas after Trump pardoned Bannon in late January for federal conspiracy crimes tied to the southern border-wall project, making Bannon among the Trump world figures — including the former president — subjects of criminal investigations by Manhattan district attorney Cyrus Vance.

The grand jury subpoenas were sent to Wells Fargo, one of the financial institutions that handled some of the accounts used in the fundraising effort, and to GoFundMe, the crowdfunding platform where Bannon’s project, “We Build the Wall,” once operated, the people said.

The state grand jury investigation revives the possibility that Bannon, the conservative and outspoken political strategist, could face state criminal charges after shedding the federal case last month.

In addition to the criminal investigation, the New Jersey attorney general’s office has launched a civil inquiry into We Build the Wall. In September, the New Jersey Division of Consumer Affairs subpoenaed We Build the Wall for documents seeking a wide range of records, according to court filings.

This all suggests that Bannon may be in a far worse place for having obtained a Trump pardon.

In mentioning its intent to elicit testimony of Bannon’s actions in the letter, the government seems to be alluding to the fact that Bannon is a named co-conspirator. They will want (and need) to introduce his actions and statements as a co-conspirator into evidence to convict the others. Thus, it is important for prosecutors that he remain a named — albeit pardoned — co-conspirator in the Federal crimes.

Forcing Bannon’s attorney to submit the letter in the docket itself will effectively force him to officially accept the pardon, which prosecutors will then argue is admission of guilt, making the co-conspirator evidence from him even more valuable by association.

The public filing may also be necessary before Cy Vance can request the grand jury materials from Judge Torres, as referenced in the CNN piece.

And, of course, rather than facing a sentence at some Club Fed prison, Bannon might now be facing a crappier New York State prison like Rikers.

All that’s before any other federal charges facing Bannon related for foreign influence peddling.

It was never going to be easy for Bannon to pull off a Trump pardon. Thus far, his attorney Robert Costello may be making things worse.

Productive Ways to Hold Trump Accountable

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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

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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

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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?

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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

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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

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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

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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

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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.