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Trump’s People Have Attempted to Cover Up That He Cheated to Cover Up Cheating in 2016 at Least Six Times

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Among the things Trump said in his tweet yesterday complaining that he had been “indicated” is that his criminal prosecution was “a continuing attack on our once free and fair elections.”

Thanks to the former President for reminding us what the charges against him, in part, are about: That he cheated to win.

Whether it would have made a difference or not, Donald Trump believed it sufficiently important to lie to American voters about fucking two women– both Karen McDougal and Stormy Daniels — that both were paid in the last months of his 2016 campaign to prevent voters from finding out.

Paying his former sex partners to hide from voters that he cheated on Melania is not, itself, illegal.

Having corporations pay sex workers for the purpose of benefitting a political campaign is. The company that owned the National Enquirer paid for the first payment, to McDougal; Trump Organization, by reimbursing the payment that Michael Cohen made, eventually paid for the second payment, to Daniels.

The charges brought against Trump in NY reportedly relate, at least in part, to the second payment — to the treatment of the reimbursement to Cohen as a legal retainer rather than a reimbursement for a political donation. That is, the cheapskate billionaire, who could have legally paid off the women himself, allegedly covered up his cover-up.

Trump’s eponymous corporate persons have already been found guilty of serving as personal slush funds. In 2019, he admitted the Trump Foundation had engaged in self-dealing. And last year, a jury convicted Trump Organization of compensating employees via untaxed benefits rather than salary.

The new charges against Trump aren’t so much unprecedented, as they simply charge Trump’s biological person with the same crimes for which his corporate persons have already been convicted.

But there’s more history here, too. On multiple occasions, agents of Donald Trump reportedly engaged in further attempts to cover-up this cover-up.

Trump Organization withheld multiple documents from investigators. Most known documents that were withheld — such as the email showing Cohen had a substantive conversation with a Dmitri Peskov aide during the election — pertain to Russia, but it’s certainly possible they withheld others.

In 2018, in the days after SDNY seized phones that included recordings of conversations about the hush payments, Trump is suspected of floating a pardon to Cohen to keep him quiet, about this and about the impossibly lucrative Trump Tower deal both had lied to hide from voters in 2016.

In an email that day to Cohen, [Robert] Costello wrote that he had spoken with Giuliani.1026 Costello told Cohen the conversation was “Very Very Positive[.] You are ‘loved’. . . they are in our corner. . . . Sleep well tonight[], you have friends in high places.”1027

Cohen said that following these messages he believed he had the support of the White House if he continued to toe the party line, and he determined to stay on message and be part of the team.1028 At the time, Cohen’s understood that his legal fees were still being paid by the Trump Organization, which he said was important to him.1029 Cohen believed he needed the power of the President to take care of him, so he needed to defend the President and stay on message.1030

Cohen also recalled speaking with the President’s personal counsel about pardons after the searches of his home and office had occurred, at a time when the media had reported that pardon discussions were occurring at the White House.1031 Cohen told the President’s personal counsel he had been a loyal lawyer and servant, and he said that after the searches he was in an uncomfortable position and wanted to know what was in it for him.1032 According to Cohen, the President’s personal counsel responded that Cohen should stay on message, that the investigation was a witch hunt, and that everything would be fine.1033

Note that the payments for Cohen’s legal fees — which stopped after he pled guilty — are another expense that Trump Organization may not have accounted for properly.

Later in 2018, during the period where he was feigning cooperation with Mueller’s prosecutors but really just stalling past the midterm elections, Paul Manafort attempted to lie about some aspect of a different investigation

Manafort gave different versions of events surrounding an incident in the summer 2016 that was potentially relevant to the investigation: one version that was more incriminating was given prior to signing the plea agreement (on September 13, 2018), and another that was more benign was made after on October 5, 2018, after his plea. When confronted with the inconsistency by the government and his own counsel, Manafort largely retracted the second version.

A footnote in that discussion cites the Cohen plea, suggesting the 2016 conversations that Manafort lied to prosecutors in an attempt to spin pertained to these hush payments.

83 See United States v. Cohen, 18-cr-602 (S.D.N.Y. 2018); Information, United States v. Cohen, 18-cr602 (S.D.N.Y Aug. 21, 2018) (Doc. 2).

Unlike Cohen, of course, Manafort did get a pardon.

In the months after Cohen’s plea, Main DOJ attempted to interfere in the Cohen investigation repeatedly, as laid out in Geoffrey Berman’s book. They did so first on Rod Rosenstein’s orders, by demanding the SDNY rewrite Cohen’s statement of offense to hide the degree to which Trump ordered the hush payments (Rosenstein’s deputy, Ed O’Callaghan tried to eliminate all reference to Individual-1).

We then sent a copy to Rod Rosenstein, informing him that a plea was imminent. The next day, Khuzami, who was overseeing the case, received a call from O’Callaghan, Rosenstein’s principal deputy.

O’Callaghan was aggressive.

Why the length, he wanted to know. He argued that now that Cohen is pleading guilty we don’t need all this description.

[Robert] Khuzami responded, What exactly are you concerned about? O’Callaghan proceeded to identify specific allegations that he wanted removed, almost all referencing Individual-1.

It quickly became apparent to Khuzami that, contrary to what O’Callaghan professed, it wasn’t the overall length or detail of the document that concerned him; it was any mention of Individual-1.

[snip]

The team was tasked with the rewrite and stayed up most of the night. The revised information, now twenty-one pages, kept all of the charges but removed certain allegations, including allegations that Individual-1 acted “in concert with” and “coordinated with” Cohen on the illegal campaign contributions. The information now alleged that Cohen acted in concert and coordinated with “one or more members of the campaign.” But in the end, everything that truly needed to be in the information was still there.

Then, after Bill Barr came in, he amazingly tried to order SDNY to dismiss the charges against Cohen entirely, the functional equivalent of what he tried with Mike Flynn, undoing a successful criminal prosecution after the fact.

When Barr took over in February 2019, he not only tried to kill the ongoing investigations but—incredibly—suggested that Cohen’s conviction on campaign finance charges be reversed.

Barr summoned Rob Khuzami in late February to challenge the basis of Cohen’s plea as well as the reasoning behind pursuing similar campaign finance charges against other individuals. Khuzami was told to cease all investigative work on the campaign finance allegations until the Office of Legal Counsel, an important part of Main Justice, determined there was a legal basis for the campaign finance charges to which Cohen pleaded guilty—and until Barr determined there was a sufficient federal interest in pursuing charges against others.

Barr had Steven Engel write up an OLC opinion about the charges (which is likely one of the reasons SDNY didn’t charge Trump).

About six weeks later, Khuzami returned to DC for another meeting about Cohen. He was accompanied by Audrey Strauss, Russ Capone, and Edward “Ted” Diskant, Capone’s co-chief. Barr was in the room, along with Steven Engel, the head of the Office of Legal Counsel, and others from Main Justice. A fifteen-page memo, drafted by Engel’s office, had been provided to our team the day before, which they were still analyzing. I learned later that it was an intense meeting.

When SDNY refused to dismiss the case against Cohen, Barr tried to transfer the case to EDNY, under Richard Donoghue, so he could kill it.

 About a week after our office tussled with Barr and Engel, Barr attempted to do just that. Word was passed to me from one of Barr’s deputies that he wanted Richard Donoghue, the US Attorney for the Eastern District of New York (who would later transfer to Main Justice to work under Barr), to take over supervision of anything I was recused from.

At the same time that Barr was trying to cover up that Trump cheated to win in 2016, Republicans on the FEC were joining in the cover-up. After FEC’s General Counsel recommended acting on several complaints about the payments, Republican Commissioners Sean Cooksey and Trey Trainor refused to do so because, they said, Michael Cohen had already been prosecuted for it and, thanks to Trump’s own actions, there was a backlog of other complaints.

Before the Commission could consider the Office of General Counsel’s (“OGC”) recommendations in these matters, Mr. Cohen pleaded guilty to an eight-count criminal information,2 and in connection thereto admitted, among other things, to making an excessive contribution in violation of the Act by making the Clifford payment from his personal funds. 3 The plea hearing transcript includes a step by step review of how U.S. District Judge William Pauley verified the plea, confirming that a federal judge was sufficiently satisfied with the circumstances surrounding the plea deal and the responses given by Cohen at the hearing, including the explanations given by Cohen, count by count, during his allocution.4 Ultimately Mr. Cohen was sentenced to three years in prison and ordered to pay $1.39 million in restitution, $500,000 in forfeiture, and $100,000 in fines for two campaign finance violations (including the payment at issue in these matters) and other charges. In sum, the public record is complete with respect to the conduct at issue in these complaints, and Mr. Cohen has been punished by the government of the United States for the conduct at issue in these matters.

Thus, we concluded that pursuing these matters further was not the best use of agency resources.5 The Commission regularly dismisses matters where other government agencies have already adequately enforced and vindicated the Commission’s interests.6 Furthermore, by the time OGC’s recommendations came before us, the Commission was facing an extensive enforcement docket backlog resulting from a prolonged lack of a quorum, 7 and these matters were already statute-of-limitations imperiled.

This was one of 22 credible campaign finance allegations against Trump that Republicans refused to consider, nothing less than a partisan effort to make the leader of their party immune from all campaign finance rules.

There’s a lot of shite being written about how the indictment of a former President — for actions that stem from cheating to win — will test democracy.

But Trump’s serial cover-ups of his own actions in this and other matters already threaten democracy.

Trump is right: This is about free and fair elections. This is, like most of his allegedly criminal behavior, about his refusal to contest elections fairly. It’s about his corruption of the entire Republican Party, from top to bottom. And it’s about one of at least six times that Trump and his agents have tried to cover up that he cheated to win in 2016.

Pavlov’s Press Corps: Trump Once Again Got Journalists to Willingly Serve as His Incitement Mules

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When we left the mainstream Trump press corps on Friday afternoon, they were all focused on the decision by Beryl Howell to rule that some of Evan Corcoran’s testimony in the stolen document case was crime-fraud excepted. Sure, there were journalists using wildly exaggerated descriptions for the uniqueness or surprise of the development. But, on Friday, reporters covering Trump’s legal woes were providing factual descriptions of actual newsworthy developments.

At the time, there was a general awareness that an indictment from Alvin Bragg may come next week, but the focus was the stolen documents investigation, in part because some journalists appear to believe that the crime-fraud ruling was some new sign that Jack Smith believed a crime had been committed.

Then, on Saturday morning, on his failing social media platform, the former President tweeted out incitement that included the following, in all caps:

  • An unsubstantiated claim about illegal leaks probably based on Fox News reporting about efforts to prepare for potential violence as a response to a Trump indictment next week
  • An attack on Alvin Bragg’s record on crime
  • A claim Bragg is funded by George Soros, the kind of coded antisemitism Trump is including in virtually all his communications these days
  • An assertion that he would be charged on something that “numerous other prosecutors!” had debunked as a fairy tale
  • An overstatement of the degree to which he is leading in polls and an admission that he is the “former” President
  • A day, Tuesday, when he would be “arrested”
  • A call to “protest,” invoking one of the same cries used to incite a coup attempt on January 6, “take our country back”

The response was almost instantaneous, with one after another journalist screen-capping the tweet in its entirety, some like Kyle Cheney adding no other commentary other than, “🚨 Trumps says he expects to be arrested Tuesday,” with the siren adding to its inflammatory nature. Jonathan Lemire repeated select newsworthy bits — while still including the full screen cap — without mentioning the coded slur on Soros or labeling the entire tweet as obvious incitement; Lemire parroted Trump’s all caps for the purported timing and quoted the incendiary line also associated with January 6.

NEW: Trump is suggesting that he will be ARRESTED ON TUESDAY due to Manhattan DA probe

This is historic: he would be the first former president to be indicted

He urges his supporters to “Protest, take our nation back!”

The absolutely most hysterical tweet magnifying Trump’s words unfiltered came from Jared Holt, a supposed expert on radicalization online, who introduced Trump’s full tweet onto Twitter (where Trump has not tweeted under his own ID since being permitted back on) with the following:

It will be hard to think of a bigger tech moderation failure than if Trump uses the platforms he’s been allowed back onto (FB, YouTube, Twitter) to incite protests again.

As of this morning, Holt’s tweet, along with the screen cap of Trump’s tweet unfiltered, had garnered 230,000 views on Twitter, over 300 RTs and almost 1,700 likes. Lemire’s had garnered 300 quote tweets, almost 600 RTs, over 2,000 likes, and 1.3M views. Cheney’s had garnered 770 quote tweets, 1,200 RTs, 7,400 likes, and 2.6M views.

By publishing such an inflammatory tweet on Truth Social, Trump was rightly calculating that even people like Holt would help to make his unfiltered words go viral on Twitter, as Trump has consistently done during the period when he still remained banned on Twitter.

It’s like Pavlov’s dogs, pure reflexive behavior at this point: The more incendiary Trump’s tweets, the more quickly journalists rush to disseminate them unfiltered on Twitter.

Remarkably, neither Lemire nor Cheney noted the import of the fact that a habitual liar like Trump was only claiming that he expected to be arrested Tuesday, not that he knew he would be.

In its report on the tweet, NYT noted, even in the subhead, that the timing was unclear, but given that at least one more witness is expected to testify on Monday, a Tuesday arrest is unlikely. It further described that Trump’s team was already in discussions about how to minimize the kind of showy arrest Trump was promising on Truth Social. NYT went on to report how Trump’s team simply guessed the date of his arrest.

His indictment by a Manhattan grand jury is expected, but its timing is unclear.

[snip]

Two hours later, a spokesman issued a statement saying that Mr. Trump had not written his post with direct knowledge of the timing of any arrest,

[snip]

Prosecutors working for Mr. Bragg have signaled that an indictment of Mr. Trump could be imminent. But they have not told Mr. Trump’s lawyers when the charges — expected to stem from a 2016 hush money payment to a porn star — would be sought or an arrest made, people with knowledge of the matter said. At least one more witness is expected to testify in front of the grand jury, which could delay an indictment, the people said.

One of the people said that even if the grand jury were to vote to indict the former president on Monday, a Tuesday surrender was unlikely, given the need to arrange timing, travel and other logistics.

The statement from Mr. Trump’s spokesman did not explain how he had landed on Tuesday as an arrest date. One person with knowledge of the matter said that Mr. Trump’s advisers had guessed that it could happen around then, and that someone might have relayed that to the former president.

A lawyer for Mr. Trump, Susan R. Necheles, said that his post had been based on news reports,

CNN, including Kaitlan Collins, who was among the first to help disseminate this incendiary tweet, later reported on the legal discussions going on inside Trump’s camp.

Trump’s defense team is expected to be notified following any possible indictment and then they would engage in negotiations for surrender and an initial appearance.

Another witness is expected to testify Monday before the grand jury investigating the hush money payments, according to a source familiar with the investigation. It is not clear whether this would be the final witness before it votes on a possible indictment.

Trump’s team has said repeatedly that he will not accept an invitation to testify before the grand jury. But multiple sources familiar with his legal team’s thinking says that if there is an indictment, he would negotiate an agreed upon surrender date with the district attorney’s office.

Trump’s team has been huddled all week planning for various scenarios, including Trump traveling to New York as well as having a remote hearing where he stays at Mar-a-Lago, according to sources familiar with the meetings.

Some members of his legal team are advising Trump to ask for a remote appearance for security reasons should an indictment occur but it is unclear if he would agree to that as he has also discussed with his team wanting to give a statement at the courthouse, sources said.

But before it got to those details, CNN described that the tweet was just a political ploy based off a guess about timing.

The former president has been agitating for his team to get his base riled up and believes that an indictment would help him politically, multiple people briefed on the matter told CNN.

[snip]

Joe Tacopina, an attorney for Trump, later said the former president had based his claims on press reports.

“No one tells us anything which is very frustrating. President Trump is basing his response on press reports,” Tacopina said in a statement to CNN.

In other words, the most newsworthy detail in Trump’s tweet (beyond the incitement) — the day he would be charged — was just made up, a guess based off the same information all the rest of us have. It was nevertheless treated as newsworthy by a slew of journalists needing an excuse to disseminate unfiltered incendiary speech on Twitter. And no one has since gone back to amend their original tweets to note that Trump’s claims to know the date of his arrest were a lie.

Trump’s team simply guessed what day he’ll be charged so as to make a call to fight newsworthy enough for kneejerk journalists to help it go viral for him.

It worked.

It works every single fucking time Trump does this.

Every. Single. Time.

And it’s not just the fact that a bunch of journalists served as willing data mules for Trump’s incendiary tweet, bringing it onto Twitter for him and helping it to go viral in unfiltered form.

It’s the other effect the tweet had on reporting about Trump.

First, everyone completely dropped the significant development in a case that even a number of diehard Republicans think has real gravity, Trump’s refusal to return all the classified documents he stole. That story — a burning story late into Friday — utterly disappeared by Saturday morning. Trump is so good at playing the media that he can effectively just dictate what even CNN and MSNBC will cover. And his tweet managed to make that more damaging investigation — an investigation led by a white man rather than a Black one, and so harder to use to mobilize Trump’s most racist followers — completely disappear from coverage. Journalists who had broken key details about the crime-fraud ruling Friday were instead asked to cover Trump’s tweet on the cable shows on Saturday.

And it wasn’t just cable coverage that Trump’s incendiary tweet managed to dictate. One after another politician — Kevin McCarthy, Mike Pence, Elise Stefanik (who released then deleted multiple drafts before hers was sufficiently dripping in obsequious propaganda) — was forced to comment on the made up news that Trump has a date when he’ll be indicted. Even poor Asa Hutchinson, who was trying hard to launch a Presidential run that didn’t define itself entirely in terms of Trump, was forced to answer multiple questions about Trump’s tweet.

In other words, by releasing the tweet, Trump not only made it the sole focus of cable programming, but made it the leading political question of the day. He made the presidential race about him again, exclusively about him. And in the case of McCarthy and Stefanik — both of whom cling to power by ceaselessly performing their obeisance to Trump — made it a matter of loyalty, a political litmus test that Trump supporters and opponents alike would be required to publicly adhere to.

Finally, all this was done without any mention of the actual facts of the case. All this was done in a way guaranteed to short-circuit rational thought — that’s the point.

To be clear, I don’t know all that many people who are sure this is going to be a substantive indictment, and there are real questions about how it is not time-barred. Perhaps Bragg will surprise us, but even many lefties are skeptical about the legal soundness and wisdom of this indictment.

But the substance of it stems from Trump fucking a sex worker.

He fucked a sex worker then paid her to cover it up. And then, in his efforts to cover that up, Trump engaged in some dodgy corporate accounting. There may be other exacerbating factors, like witness intimidation. But this is about trying to cover up the fact that he fucked a sex worker so it wouldn’t harm his chances of becoming President.

This case involves a crime for which, under Jeff Sessions, SDNY prosecuted Trump’s personal lawyer, Michael Cohen. One reason Trump wasn’t prosecuted as a result is that Bill Barr interfered; Barr even tried to force SDNY to reverse Cohen’s prosecution. And when Cohen went to jail because he refused to cover up Trump’s efforts to cover up fucking a sex worker, Trump cut him off, making him a pariah. Trump’s tweet falsely claimed that multiple prosecutors had deemed this case bullshit when instead he means his own Attorney General engaged in breathtaking corruption to protect him from it.

We don’t know what the indictment includes. But we know it involves fucking a sex worker. And all the journalists repeating Kevin McCarthy’s bullshit comments about investigating this investigation, or Mike Pence’s comments about how measly an indictment this would be, are not making them go on the record about whether they think voters should know if someone is spending significant money — several times what most Trump supporters make in a year — to cover up that they fucked a sex worker. Does Mike Pence, that god-fearing Christian, think a man who paid six figures then engaged in financial fraud to cover up that he fucked a sex worker should be President? Let’s ask him.

That’s not happening, in significant part because Trump has gotten journalists to shed all rationality when reporting on this story. The point is to make this about emotion, not facts, and journalists’ immediate instincts accommodated that.

Because Trump went on offensive, the substance of the indictment — however flimsy or not — has been largely absent from any reporting on the case.

Trump has these journalists trained to act reactively, without taking the time first to figure out whether he was again making shit up (as he was in this tweet). He has these journalists trained to mindlessly help him disseminate antisemitic incitement on platforms he’s not a part of, usually without commentary identifying that’s what he’s doing. Trump is so good at exploiting journalists who know better that he has made them participants in his incitement.

And it could well get people killed.

Updated: Added the circulation numbers for the three tweets disseminating Trump’s incitement.

Rudy’s Phones Defy Guarantees We’d Know of an Investigation into Trump

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I’m certain, when people assert that if DOJ were investigating Donald Trump, there would be some visible sign, they’re wrong.

I say that because I’m among the people who have followed the proceedings surrounding the Special Master review of Rudy Giuliani’s phones most closely. And I can’t even tell you what the status of that review is, much less whether DOJ obtained warrants for phone-based content for investigations beyond the foreign influence-peddling investigation for which the phones were first seized.

I’m not saying that has happened. I’m saying that if it had happened, none of us would know.

We know Rudy was Trump’s key facilitator in several other crimes Trump committed besides the foreign influence peddling described on the warrants: both obstruction of the Mueller investigation and Trump’s attempt to overthrow the election. There is already public evidence that Rudy would be a subject in any investigation into both those crimes. After all, he (and his current lawyer) dangled a pardon in an attempt to buy Michael Cohen’s silence in April 2018, and in the days after the insurrection, Rudy appears to have been in contact, using his phone, with a Proud Boy associate, James Sullivan, who coordinated with some of the perpetrators.

If Rudy were a subject in these investigations, prosecutors could obtain the content of his phones with no public notice. The people keeping that secret would be the same people who kept the warrants targeting his cloud accounts in 2019 secret for 18 months, and the same people who kept warrants targeting Cohen secret for three months, including one of the very same prosecutors, Nicolas Roos.

Before I explain what we know about Rudy’s phones, let me explain what we learned from Michael Cohen’s investigation, Rudy’s predecessor as Trump’s fixer whose phones got seized by SDNY (Cohen’s criminal docket is here and the Special Master docket is here).

The very first warrant targeting Michael Cohen — a warrant for his Google email that Mueller’s team obtained on July 18, 2017 — described how he set up Essential Consultants not for real estate purposes, as he had claimed to his bank, but instead to pay off Stormy Daniels. But the campaign finance crime that Cohen eventually pled guilty to was not among the crimes listed on that original warrant. Instead, the warrant focused on his lies to his bank, which would be included in his eventual charges, and foreign agent charges, which were not. It wasn’t until April 7, 2018 that the hush payment was included in a warrant for the campaign finance crime to which Cohen eventually pled guilty. Importantly, that warrant, obtained by SDNY, asked to access content obtained with most (but not all) of the warrants targeting Cohen up to that date (the exception was a warrant for Cohen’s Trump Organization email). Those warrants included:

What that April 7 warrant asked to do, then, was to access three devices on which Cohen’s previously-seized content was stored, but to do so in search of evidence of  campaign finance crimes not covered by the earlier warrants. (SDNY had expanded the crimes included on the warrants once already in February 2018.) It was only two days later, when SDNY executed searches on Cohen’s residences and phones, that anyone would discover that the government had shown probable cause to obtain warrants targeting Trump’s personal lawyer for crimes including conspiracy, lying to a bank, and campaign finance violations. It was over a year later before the foreign agent warrant searches were publicly disclosed.

This process offers several lessons for this discussion about Rudy’s phones and therefore for discussions about whether DOJ is investigating Trump. First, the government can — and did in the case of two of Donald Trump’s personal lawyers — obtain probable cause warrants without news of the warrants leaking. It’s only when the government conducts an overt search that an investigation would become public. In the interim, and even after the overt search, the government can simply conduct a filter team review of the seized material and store it at FBI. If prosecutors find probable cause to access the already collected content for different crimes, they can do that. They just need to get another warrant. In Michael Cohen’s case, they did that twice.

These three posts — one, two, three — explain how what we’ve learned of the searches on Rudy thus far; this is the docket for the Special Master review of Rudy’s phones).

They show that the government is currently in possession of the contents of Rudy’s email and his iCloud account from roughly May 1, 2018 (three months before the August 1, 2018 start date of the warrants targeting his phone) through November 4, 2019. The FBI did a filter team review of this content that was almost completed in April when they seized Rudy’s phones. So not only has FBI been reviewing that content for evidence of illegal foreign influence peddling with Ukraine since April, if SDNY or some other unit of DOJ could show probable cause that those emails or that iCloud content probably included evidence of other crimes, they could have obtained and executed a search warrant for that, too. We wouldn’t know if they had.

That information would slightly post-date the period in April 2018 when Rudy Giuliani’s (and Steve Bannon’s) own current lawyer, Robert Costello, was writing Michael Cohen implying that Trump would pardon him to buy his silence; because those conversations were with a then-third party, Costello,  and preceded the time Rudy was formally representing Trump, they likely would not have been filtered. The discussions that Rudy Giuliani had with Paul Manafort’s attorney in fall 2018 that led Manafort to renege on his cooperation agreement would be covered in that time period, though probably would have been filtered as privileged. Discussions Rudy had with Manafort about Ukraine when he was in prison likely would not be privileged.

If Lev Parnas’ redaction fail is to be believed (and thus far his claims have been utterly consistent with what prosecutors and Judge Paul Oetken have said), on April 13, 2021, DOJ also obtained historic and prospective cell site data for Rudy, as well as Victoria Toensing. While this was probably done to pinpoint the location of the phones targeted in the overt search conducted on April 28, in Rudy’s case that cell site data might have useful information about where Rudy was during or in the aftermath of the January 6 attack. (This is likely to be a fairly circumscribed time period tied to specific events shown in the still-sealed affidavit, but when Mueller obtained historic cell location data on Roger Stone in 2018, it covered a five month period.) This warrant, covering whatever period, would also provide information about with whom Rudy was in contact, though the government would have had some of that without even requiring a warrant.

It’s Rudy’s phones where things begin to get interesting. The FBI seized 16 devices from Rudy. Once he got to review the material extracted from his phones, Rudy claimed that the content dates back to 1995, though the government relayed that Special Master Barbara Jones reported that the bulk of the data dates to 2010 and later. Both Rudy and Toensing pointed to the vast scope of initial data obtained and asked Jones to limit her review to the materials dated within the scope of the warrant, which for Rudy is August 1, 2018 through December 31, 2019. The government responded that this would put Jones in the role of conducting not a privilege review, but also a responsiveness review, something which is a clear government role.

The Letters conflate the scope of the Special Master’s review for privileged material with the scope of the Government’s eventual review for material responsive to the Warrants. The Letters present extensive argument concerning only the latter, yet seek relief concerning the former. That is, the Letters contend that the Government’s search for responsive materials must conform to certain limits, then leap from that conclusion to request limits on the Special Master’s initial screening for privileged items. (See Giuliani Let. 4-24 (arguing Government can review only materials dated August 1, 2018 to December 31, 2019); id. at 1, 25 (requesting order that Special Master review only materials from the same period)). The Letters thus ask the Special Master to conduct a responsiveness review: To identify and withhold from Government investigators documents that are in no way privileged, based on a determination that they fall outside the scope of the Warrants. Neither the Warrants, nor this Court’s order appointing the Special Master, contemplate that an arm of the Court, rather than Government investigators, would conduct such a review. (See, e.g., Dkt. 25 (order appointing Special Master)). The Letters’ attempt to limit the materials to which investigators will have access thus appears to be an attempt to relitigate Giuliani’s and Toensing’s meritless efforts to limit the search contemplated by the Warrants ex ante, which this Court already rejected. (See Dkt. 20 at 3-6 (Court rejecting motions for pre-charge (indeed, pre-search) suppression and return of property)).

The government noted that under the terms of the (known) warrants, they are entitled to anything created, accessed, or deleted in that time frame (the government knows from the Parnas investigation that he deleted information from his iCloud in 2019 and Parnas predicted that Rudy and Toensing did as well). And so the government generously offered to have Special Master Jones limit her privilege review to files created on or after January 1, 2018, arguing that such a limitation is akin to the initial scoping that FBI would do.

SDNY further argued that there is no basis, at this time, to delete any of the older material, because the government might later discover that the material is actually responsive to the investigation.

This Court should not, however, grant the Letters’ requests to destroy or return any data at this time. The Court has already rejected motions for exactly that relief. (See Dkt. 20 at 3-6). Moreover, the Government is entitled to retain a complete copy of the seized data, so that it can authenticate any portion of the data ultimately offered in evidence. See Ganias, 824 F.3d at 215. Data that clearly predates January 1, 2018 should thus simply be put aside, and not reviewed by the Special Master or the Government. It may be that the Government’s eventual review of the materials post-dating January 1, 2018 reveals reason to believe that some of the segregated material is in fact responsive. If that is so, then the Government would have reason to search it—just as an FBI agent might return to that 2013 filing cabinet if his search of other files revealed that documents in the searched office were often filed under the wrong dates. At that point, the Government could then request the privilege review which it is now willing to forego for efficiency’s sake.

Without asking for this explicitly, DOJ’s argument had the effect of asking that Jones conduct a privilege review of content that includes the foreign influence peddling for which SDNY showed probable cause occurred between August 1, 2018 and December 31, 2019, but also content that would cover the entirety of the time that Rudy Giuliani was helping Trump obstruct the Mueller investigation and the entirety of the time that Rudy played the leading role in helping Trump attempt to overthrow an election.

As I have shown, the government sought (and is paying for) a Special Master review in this case because they have reason to believe, presumably based on their earlier search and the investigation into Parnas, there are crime fraud-excepted communications in this content. This very same Special Master, Barbara Jones, provided SDNY with a way to access to Michael Cohen’s communications discussing a campaign finance crime with Trump, and SDNY seems to believe they will obtain communications of Rudy discussing crimes with Trump, as well.

Let me interject and note that Judge Paul Oetken knew of the earlier search on Rudy’s cloud content — indeed, he authorized the gag keeping it secret. And in the 18 months between that search and the time Rudy got notice of it, Oetken likewise issued orders that helped the government cordon off parts of the investigation, such as the initial foreign influence peddling charge against Parnas and Igor Fruman tied to their efforts to fire Marie Yovanovitch, until such time as SDNY was able to access the information in question. That is, Oetken has been persuaded to allow SDNY to protect their investigation into Rudy, even during a period when Billy Barr was actively trying to thwart it, and part of that involved keeping warrants secret not just from the public, but from Rudy, as well.

If SDNY or some other component of DOJ obtained additional warrants for this same content, Oetken would undoubtedly know of it and probably would have had to approve it.

Whether or not there are other warrants and whether or not Oetken knows of them, though, he ruled to give the government access to the content that spans Rudy’s involvement in Trump’s obstruction, his own foreign influence peddling, as well as Rudy’s lead role in attempting to overthrow the election. In mid-September, Oetken ordered Jones to limit her review to materials post-dating January 1, 2018, which is tantamount to ordering her to include in her review everything covering all the potential Trump-related exposure that might be under investigation. And he explicitly denied, for a second time, Rudy and Toensing’s request to delete or return everything else.

That means that at the end of Special Master Jones’ review, the government will have all the unprivileged or crime fraud-excepted contents from Rudy’s 16 devices covering the period when he helped Trump obstruct justice, when he solicited campaign help from foreigners, and when he attempted to overthrow the election (as well as any pardon-related discussions from the post-election period). That doesn’t mean they’ve gotten warrants targeting that content. We would not know whether they had, one way or another. But the content would be available, having already undergone a privilege review, if they did get those warrants.

What we do know is this: Of 2,226 items found on seven of Rudy’s 16 seized devices reviewed by Jones thus far, he claimed privilege over just three items. But even with respect to his privilege claim over those three items, Jones has reserved judgment, meaning she may doubt his claim they can be withheld (perhaps because they are crime fraud-excepted).

The Government has provided Seized Materials from 16 electronic devices seized from Mr. Giuliani. On September 28, 2021, I directed that Mr. Giuliani complete his review of the data contained on seven of these devices by October 6, 2021, which was later extended to October 12, 2021. These seven devices contain 2,226 items in total dated on or after January 1, 2018. Mr. Giuliani designated 3 items as privileged, and I am reserving decision on those 3 items. The remaining 2,223 items have been released to the Government.

Additional documents for review have been assigned to counsel for Mr. Giuliani, with the next set of designations due to me on November 5, 2021.

So as of a month ago, the government had started getting materials — covering the period from January 1, 2018 through April 21, 2021 — from Rudy’s phones.

Jones and her staff were able to conduct privilege review on that content over two weeks time, and they were supposed to have had a second tranche of materials to review a month ago, meaning they likely have reviewed an even larger quantity of material since.

But that’s it! That’s all we know. Jones has reported less frequently than she did during her Cohen review, though assuming she will issue monthly reports now that she is reviewing in earnest, one should be due shortly.

We don’t know how much of the content on Rudy’s phones is evidence of a crime and how much is evidence of drunken blathering to reporters. We don’t know if any entity of DOJ has obtained warrants for those other Trump crimes in which Rudy was centrally involved. We don’t know why Jones has reserved judgement on the few privilege claims that Rudy has made thus far, six months into a Special Master review.

We know just two things. First, if there is evidence of crimes on Rudy’s 16 devices, DOJ will have a way of getting to it. And we would not have anyway of knowing that they had.

Update: In related news, a pre-taped interview I did for NPR was on Weekend Edition this morning.

The Curious Treatment of Michael Cohen’s Trump Organization Email

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As close readers know, I’ve been fascinated by DOJ’s treatment of Michael Cohen’s Trump Organization email for some time. That’s true for several reasons.

First, one of the earliest warrants targeting Cohen revealed that Microsoft hosts (or hosted) Trump Organization emails. When the FBI first started putting together an investigation into Cohen for suspicious activity surrounding his Essential Consulting bank account, they first sent preservation orders to Microsoft, then obtained his emails directly from the tech company. Effectively, Cohen (and any other Trump Organization employees the FBI targeted after that, probably including Don Jr) got stung by a practice Microsoft had long been complaining about, that when the government came to it, rather than to Microsoft’s enterprise customers (like universities and businesses), Microsoft could not provide those customers notice, which might provide them an opportunity to challenge an order or protect privileged material.

That’s particularly interesting given the indications that the Trump Organization, which decided what documents to turn over to Congress in response to a subpoena served on Cohen, did not turn over emails that would have proven as false story that Cohen told about his interactions regarding the Trump Tower Moscow story.

Q Now, in your February 28th interview before this committee you mentioned that Alan Futerfas and Alan Garten, the two lawyers who were tied to The Trump Organization, were responsible for the document production that you produced to the committee in response to this committee’s May of 2017 subpoena. ls that accurate?

A That’s accurate.

[snip]

Q Do you have any information about why The Trump Organization would have withheld from this committee production of the January 141h, 2016, email from you to Peskov’s office?

A I do not.

Q Same question as to the January 16th, 2016, email from you to Peskov’s office regarding Sergei lvanov?

A I also do not.

Q Same question with regards to the January 20th,2016, email from Elena Poliyakova (ph)?

A I do not

THE CHAIRMAN: Mr. Cohen, what Mr. Mitchell is asking about is you’ve testified that the members of the joint defense agreement were aware that the written testimony that you were going to give to this committee was false. Documents that would have contradicted that timeline, namely, the three that Mr. Mitchell just referenced, were not produced to this committee. ls there any insight you can shed as to who might have been involved in withholding documentary evidence that would have contradicted your written false testimony?

MR. COHEN: Again, it would be other members of the joint defense team, but specifically at The Trump Organization level.

Cohen told HPSCI that he was reminded of these emails when Mueller showed them to him. In other words, Mueller obtained them, but (if HPSCI is correct on this point) Congress did not, even though the emails were solidly within the scope of a subpoena served on Cohen. That Mueller obtained the emails from Microsoft is one likely explanation for how he got them but HPSCI did not (though he had also subpoenaed Trump Organization in March 2018 before Cohen started cooperating in September of that year and a year before Cohen’s third appearance before HPSCI).

That’s why I’m interested in this footnote in the warrant to search Cohen’s properties in April 2018.

According to an article in the Washington Post, which quoted emails sent from Cohen’s email account hosted by the Trump Organization, on October 17, 2016, Davidson emailed Cohen and threatened to cancel the aforementioned “settlement agreement” by the end of the day if Cohen did not complete the transaction.29 According to the article, Davidson sent Cohen a second email later in the day that stated in part, “Please be advised that my client deems her settlement agreement canceled and void.”

29 Due to the partially covert nature of the investigation to this date, the USAO has not requested documents from the Trump Organization or Davidson, and thus does not possess the email referenced in this article.

There’s no reason to believe the “USAO” (meaning SDNY’s US Attorney’s office) had the email. But the government — Mueller’s team — probably did, from the search warrant served on Microsoft on August 1, 2017. But the public record doesn’t show that Mueller handed it over to SDNY when they handed off the bank investigations February 2018, or even after that time.

On February 28, 2018, SDNY obtained a warrant for the Gmail and 1&1 content Mueller had obtained in 2017 and handed over to SDNY on a USB drive to SDNY on February 8, 2018. But — in spite of the fact that the original Mueller Gmail warrant and the Trump Org warrant discussed (¶¶13-19) Cohen’s payment to Stormy Daniels — the February 28 warrant covered just Cohen’s financial fraud. It wasn’t until April 7, 2018 that SDNY obtained a warrant to search the Gmail content, the 1&1 content, and the iCloud content (which Mueller provided them on March 7, 2018) in the campaign finance investigation.

But as the footnote noted, they never obtained a warrant to search the Trump Org emails, even though that content was presumably also in Mueller’s possession.

There may be a very logical explanation for why they didn’t: on October 27, 2017, DOJ agreed to limit its use of secrecy orders. It’s quite possible that the government believed any new warrant for content originally provided by Microsoft would have to adhere to the new policy, even if it had been obtained before the new policy went into effect (we see similar policy granularity in SDNY’s need to get a warrant for Google content held overseas, whereas Mueller — who operated in a different Circuit without that precedent — did not have to submit a separate warrant).

That said, given the discussions of why things got referred when they did (and the different treatment of Cohen’s non-Russian crime from Manafort and Flynn’s non-Russian crimes), I am rather interested that SDNY treated Trump Org emails differently than Mueller did (and, perhaps, that Mueller submitted a warrant to Trump Org for content he already had).

As I said, the most likely explanation is that the change in DOJ policy led to a change in treatment of Trump Org’s Microsoft hosted email, meaning SDNY could not ask for the emails even from Microsoft without alerting Trump to the investigation. But it’s possible that the differential treatment arises from greater deference provided to Trump related content as investigations into him proceeded.

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

Stormy, Pee Tapes, and Pussy-Grabbing: The Three Explanations for the Cohen-Hicks-Trump Call on October 8, 2016

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The warrant to search Michael Cohen’s property released yesterday revealed what the FBI Agent who wrote the affidavit supporting the application believed was a conference call between Michael Cohen, Donald Trump, and Hope Hicks on October 8, 2016.

On October 8, 2016, at approximately 7:20 p.m., Cohen received a call from Hicks. Sixteen seconds into the call, Trump joined the call, and the call continued for over four minutes. 27 Based on the toll records that the USAO has obtained to date, I believe that this was the first call Cohen had received or made to Hicks in at least multiple weeks, and that Cohen and Trump spoke about once a month prior to this date — specifically, prior to this call on October 8, 2016, Cohen and Trump had spoken once in May, once in June, once in July, zero times in August, and twice in September.

27 I believe that Trump joined the call between Cohen and Hicks based on my review of toll records. Specifically, I know that a call was initiated between Cohen’s telephone number and Trump’s telephone number at the same time the records indicate that Cohen was talking to Hicks. After the Cohen-Trump call was initiated, it lasted the same period of time as the Cohen-Hicks call. Additionally, the toll records indicate a “-1” and then Trump’s telephone number, which, based on my training and experience, means that the call was either transferred to Trump, or that Trump was added to the call as a conference or three-way call participant. In addition, based on my conversations with an FBI agent who has interviewed Hicks, I have learned that Hicks stated, in substance, that to the best of her recollection, she did not learn about the allegations made by Clifford until early November 2016. Hicks was not specifically asked about this three-way call.

The agent’s description (which was based entirely off toll records and assumed every call pertained to this scandal and not the many other scandals Trump’s campaign was juggling at the time) has led many to question Hicks’ testimony to HJC, including (in a letter to her lawyer) from Jerry Nadler. Her lawyer Robert Trout (who should be taking a victory lap from his likely imminent win in the Bijan Kian trial) says she stands by the her testimony, in which said that that call involved rumors that TMZ had found the pee tape.

Q Okay. When did you first become aware of the “Access Hollywood” tape?

A About an hour before it was made public.

Q And what was your reaction to it?

A Honestly, my reaction was, it was a Friday afternoon, and I was hoping to get home to see my family for the first time in a few months, and that wasn’t happening.

Q Did you have any other reactions?

A Look, I obviously knew that it was going to be a challenge from a communications standpoint.

Q Did you discuss it with Mr. Trump?

A I did, yes.

Q Tell me about those discussions, please. A I made him aware of the email I received from The Washington Post which described the tape. And I don’t know if the initial email did this, but certainly one of the subsequent emails and exchange provided a transcript of the tape. So, described those different components to Mr. Trump and tried to evaluate the situation.

Q And how did he react to that?

A You know, he wanted to be certain, before we engaged, that it was legitimate. And I think we all felt it was important that we request to see the actual tape or listen to the audio before responding.

Q Was he upset?

A Yes. I think everybody was in, like, a little bit of shock.

Q And did he ask you how — did he seek your advice on how to respond?

A Yes. There were quite a few of us, so it was very much a group discussion, given that this unfolded at a debate-prep session. Q And do you remember who else you discussed the tape with?

A Who else was present there?

Q Yeah, at that time. A Sure. Reince Priebus, Chris Christie, Jeff Sessions, Stephen Miller, Jason Miller, Steve Bannon, David Bossie, Kellyanne Conway. Later, Jared Kushner. I think that’s it.

Q Do you recall reaching out to Michael Cohen about the tape?

A My recollection of reaching out to Michael took place the following day. And it wasn’t about the tape; it was about — this is going to get confusing, but the day after the tape, there were rumors going around — I’m not sure exactly where — I heard it from our campaign spokesperson, Katrina Pierson, who was sort of like a — she had a lot of contacts, grassroots. And she had called to tell me that — or maybe sent me a message about rumors of a tape involving Mr. Trump in Moscow with, you know — can I say this?

[Discussion off the record.]

Ms. Hicks. — with Russian hookers, participating in some lewd activities. And so, obviously, I didn’t — I felt this was exactly how it had been described to me, which was a rumor. Nonetheless, I wanted to make sure that I stayed on top of it before it developed any further, to try to contain it from spiraling out of control. And the person that made me aware of the rumor said that TMZ might be the person that has access to this tape. I knew Michael Cohen had a good relationship with Harvey Levin, who works at TMZ. So I reached out to Michael to ask if he had heard of anything like this; if Harvey contacted him, if he could be in touch with me.

But that testimony is not entirely consistent with something in the Mueller Report, which suggested (based off FBI interviews with both Cohen and Giorgi Rtskhiladze) that the one time Trump would have heard about a pee tape was later in October, after Cohen and Rtskhiladze discussed the tapes via text.

Comey 1/7/17 Memorandum, at 1-2; Comey I 1/15/17 302, at 3. Comey’s briefing included the Steele reporting’s unverified allegation that the Russians had compromising tapes of the President involving conduct when he was a private citizen during a 2013 trip to Moscow for the Miss Universe Pageant. During the 2016 presidential campaign, a similar claim may have reached candidate Trump. On October 30, 20 I 6, Michael Cohen received a text from Russian businessman Giorgi Rtskhiladze that said, “Stopped flow of tapes from Russia but not sure if there’s anything else. Just so you know …. ” 10/30/16 Text Message, Rtskhiladze to Cohen. Rtskhiladze said “tapes” referred to compromising tapes of Trump rumored to be held by persons associated with the Russian real estate conglomerate Crocus Group, which had helped host the 2013 Miss Universe Pageant in Russia. Rtskhiladze 4/4/18 302, at 12. Cohen said he spoke to Trump about the issue after receiving the texts from Rtskhiladze. Cohen 9/12/18 302, at 13. Rtskhiladze said he was told the tapes were fake, but he did not communicate that to Cohen. Rtskhiladze 5/10/18 302, at 7.

It’s certainly possible that this late October exchange was the fruit of earlier concerns about the pee tape, and that as part of chasing down the TMZ rumor, Cohen would have asked Rtskhiladze to help. But you’d think Mueller would have said that, especially if he knew that Trump had been on a call where it was all discussed.

Cohen offered a slightly different story, claiming that the call was about responding to the Access Hollywood video. But his answer to Eleanor Norton in which he raised the call moves directly onto the hush payments, as if they’re connected.

Ms. NORTON. Mr. Cohen, at the center of the reasons you are going to prison is convictions for campaign finance violations, and they center around some salacious revelations. The Washington Post reported or aired an Access Hollywood video. It set a record for the number of people who watched, crashed the newspaper’s server. But this happened in early October on the cusp of the election. What was Mr. Trump’s reaction to the video becoming public at that time and was he concerned about the impact of that video on the election?

Mr. COHEN. The answer is yes. As I stated before, I was in London at the time visiting my daughter, who is studying there for a Washington semester abroad, and I received a phone call during the dinner from Hope Hicks stating that she had just spoken to Mr. Trump and we need you to start making phone calls to the various different news outlets that you have relationships with, and we need to spin this. What we want to do is just to claim that this was men locker room talk.

Ms. NORTON. Was the concern about the election in particular?

Mr. COHEN. The answer is yes. Then, couple that with Karen McDougal, which then came out around the same time. And then on top of that the Stormy Daniels matter.

Ms. NORTON. Yeah, and these things happened in the month before the election and almost one after the other. The Stormy Daniels revelation where prosecutors and officials—the prosecutors learned of that—of that matter and prosecutors stated that the officials at the magazine contacted you about the story. And the magazine, of course, is the National Enquirer. Is that correct, that they did come to you?

Mr. COHEN. Yes, ma’am.

Ms. NORTON. Were you concerned about this news story becoming public right after the Access Hollywood study in terms of impact on the election?

Mr. COHEN. I was concerned about it, but more importantly, Mr. Trump was concerned about it.

Ms. NORTON. That was my next question. What was the President’s concern about these matters becoming public in October as we were about to go into an election?

Mr. COHEN. I don’t think anybody would dispute this belief that after the wildfire that encompassed the Billy Bush tape, that a second followup to it would have been pleasant. And he was concerned with the effect that it had had on the campaign, on how women were seeing him, and ultimately whether or not he would have a shot in the general election.

Frankly, it may well be that everyone is mixing up the many sex-related scandals Trump was fighting in October 2016. Or it may be that Hicks, Cohen, and Trump responded to the Access Hollywood video by deciding that they had to try to chase down all of the potential sex scandals — the long-simmering pee tape allegations, the several hush payment demands, among others — and preemptively quash them. That would be consistent with Steve Bannon’s claim that Marc Kasowitz was chasing down hundreds of scandals. If such a discussion took place (which might explain why all three would get on the phone together), then Hicks might otherwise have forgotten knowing about the hush payments earlier, or she locked in testimony denying that knowledge in December 2017 when she testified, and continues to tell a partial truth to avoid further legal jeopardy.

I mean, maybe Hicks is outright lying to protect earlier lies she told in 2017, before the whole hush payment story broke wide open. But it is certainly possible that if you work for Donald Trump all the sex scandals merge into one, either in fact, or in years old memories.

Update: Because people are asking, this is something that Mueller could have chased down. Hicks’ testimony was December 7, 2017 and March 13, 2018; as noted above, Rtskhiladze testified on April 4 and May 10, 2018. The interviews in which Cohen is believed to have told the truth all took place on September 12, 2018 or later. But since this was referred out (for reasons that are unclear, since it was part of the Mueller investigation for 7 months), he may not have had jurisdiction anymore. But SDNY certainly may have chased it down.

Giorgi Rtslchiladze’s Honor Has Been Sullied because He Can’t Decide Whether He Knows the Tapes He Suppressed Exist or Not

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The image for this post is associated with this post.

Giorgi Rtslchiladze believes his honor has been sullied by Robert Mueller.

Rtslchiladze is a naturalized American businessman from Georgia who shows up several times in the Mueller Report.

First, the section that describes Michael Cohen’s attempts to negotiate a Trump Tower deal explains that Cohen pitched Rtslchiladze on a Trump Tower deal in fall 2015, before deciding to pursue the Sater deal instead.

Also during the fall of 2015, Cohen communicated about the Trump Moscow proposal with Giorgi Rtslchiladze, a business executive who previously had been involved in a development deal with the Trump Organization in Batumi, Georgia.313 Cohen stated that he spoke to Rtskhiladze in part because Rtskhiladze had pursued business ventures in Moscow, including a licensing deal with the Agalarov-owned Crocus Group.314 On September 22, 2015, Cohen forwarded a preliminary design study for the Trump Moscow project to Rtskhiladze, adding “I look forward to your reply about this spectacular project in Moscow.” Rtskhiladze forwarded Cohen’s email to an associate and wrote, “first we could organize the meeting in New York at the highest level of the Russian Government and Mr. Trump this project would definitely receive the worldwide attention.”315 On September 24, 2015, Rtskhiladze sent Cohen an attachment that he described as a proposed “[l]etter to the Mayor of Moscow from Trump org,” explaining that “[w]e need to send this letter to the Mayor of Moscow (second guy in Russia) he is aware of the potential project and will pledge his support.”316 In a second email to Cohen sent the same day, Rtslchiladze provided a translation of the letter, which described the Trump Moscow project as a “symbol of stronger economic, business and cultural relationships between New York and Moscow and therefore United States and the Russian Federation.”317 On September 27, 2015, Rtslchiladze sent another email to Cohen, proposing that the Trump Organization partner on the Trump Moscow project with “Global Development Group LLC,” which he described as being controlled by Michail Posikhin, a Russian architect, and Simon Nizharadze.318 Cohen told the Office that he ultimately declined the proposal and instead continued to work with I.C. Expert, the company represented by Felix Sater.319

313 Rtskhiladze was a U.S.-based executive of the Georgian company Silk Road Group. In approximately 2011, Silk Road Group and the Trump Organization entered into a licensing agreement to build a Trump-branded property in Batumi, Georgia. Rtskhiladze was also involved in discussions for a Trum -branded ro’ect in Astana, Kazakhstan. The Office twice interviewed Rtskhiladze, [redacted]

The details on this second Trump Tower deal show that at some of the initiative for an election season Trump Tower deal came from Trump, not the Russians. This Rtskhiladze deal is noteworthy because he pursued (note the word) deals in the past with the Crocus Group — the Agalarov company — and because Mueller at least suggests he doesn’t entirely buy Rtslchiladze’s representation of the ownership of Global Development Group. Note that Rtskhiladze himself promised Cohen he had ties to the Mayor of Moscow.

An interview with Rtskhiladze is also footnoted in a discussion of Trump Organization’s decision to close out certain business deals in the wake of the election.

After the election, the Trump Organization sought to formally close out certain deals in advance of the inauguration.945

945 Cohen 9/18/18 302, at 1-2; see also Rtskhiladze 4/4/18 302, at 8-9.

The report doesn’t explain why Trump Org would have any open business deals with Rtskhiladze in November 2016.

Note that Silk Road Group is funded by Kazakh bank BTA group, payments to Michael Cohen from which were one of the reasons Mueller investigated him in the first place (and which has sued Felix Sater for attempting to launder funds through a Trump Tower deal).

It’s the second mention of Rtskhiladze that has sullied his name, according to reports and a letter his attorney sent Bill Barr asking for a retraction (Rtskhiladze’s attorney, A. Scott Bolden, works for the same firm, ReedSmith, that is engaging in a trollish defense of Concord Management; the letter he released to the press is actually a revised version of one he sent the day before).

As part of an explanation of why Jim Comey briefed Trump on the Steele dossier on January 6, 2017, a footnote explains that Rtskhiladze texted Cohen about compromising tapes in October 2016.

112 Comey 1/7/17 Memorandum, at 1-2; Comey 11/15/17 302, at 3. Comey’s briefing included the Steele reporting’s unverified allegation that the Russians had compromising tapes of the President involving conduct when he was a private citizen during a 2013 trip to Moscow for the Miss Universe Pageant. During the 2016 presidential campaign, a similar claim may have reached candidate Trump. On October 30, 20 I 6, Michael Cohen received a text from Russian businessman Giorgi Rtskhiladze that said, “Stopped flow of tapes from Russia but not sure if there’s anything else. Just so you know …. ” 10/30/16 Text Message, Rtskhiladze to Cohen. Rtskhiladze said “tapes” referred to compromising tapes of Trump rumored to be held by persons associated with the Russian real estate conglomerate Crocus Group, which had helped host the 2013 Miss Universe Pageant in Russia. Rtskhiladze 4/4/18 302, at 12. Cohen said he spoke to Trump about the issue after receiving the texts from Rtskhiladze. Cohen 9/ 12/ 18 302, at 13. Rtskhiladze said he was told the tapes were fake, but he did not communicate that to Cohen. Rtskhiladze 5/10/18 302, at 7.

As I read it, the entire point of including this reference is not to substantiate the existence of a pee tape. Rather, it’s to explain why Trump may have believed in the existence of one. It actually provides one explanation that makes Trump’s response to Comey’s briefing (as reflected in Comey’s own notes on it) less incriminating, not least his oblique reference to the Stormy Daniels and Susan McDougal allegations.

After all, the communications between Rtskhiladze and Cohen on October 30, 2016 would have happened just days after Cohen paid off Stormy Daniels on October 27. It would be unsurprising if Cohen discussed both with Trump at the same time.

Rtskhiladze is  complaining about a number of things. Some of them are fair complaints about how his communications with Cohen were portrayed in the footnote.

  • Referring to Rtskhiladze as a “Russian” businessman, his lawyer claims, it “implies he participated in a conspiracy to collude or interfere with the 2016 U.S. presidential elections.”
  • Quoting from the texts in isolation, “the isolated texts are suggestive of nefarious undertakings and, as such, defame Mr. Rtskhiladze’s character. Viewing the texts in their entirety against the backdrop of Mssrs. Cohen and Rtskhiladze’s cordial relationship places them in their proper context.”
  • Quoting the “‘Stopping the flow’ gives the impression that you are referencing the alleged salacious content of the alleged acts viewed on the tapes. To the contrary, this was a colloquialism by Mr. Rtskhiladze indicating that there was nothing to the rumors of the tapes, and that he did not believe there were any tapes, nor had he seen what was on the tapes, even if they existed.”
  • Misquoting the text without the word “some” — making the correct quote “stopped flow of some tapes from Russia.” Bolden claims, illogically, that the word some “is crucial as it establishes the fact that Mr. Rtskhiladze had no knowledge of the tapes’ content.”

That last bullet point, of course, makes zero sense. From there, the letter gets even more self-contradictory. Bolden first claims,

The texts that were excised from the Mueller Report clearly indicate that Mr. Rtskhiladze does not have direct knowledge of what was said at the party in Moscow, which he did not attend. Mr. Rtskhiladze also does not know and cannot identify who allegedly made the statements about the tapes. Furthermore, Mr. Rtskhiladze has never seen the tapes and cannot opine on whether they exist. [my emphasis]

Just a few paragraphs after claiming that Rtskhiladze does not know whether the tapes he assured Cohen he had suppressed existed or not, his attorney then claims that he knew the tapes did not exist.

The suggestion that Mr. Rtskhiladze tried to curry favor with Mr. Cohen, the Trump Organization and possibly President Trump himself by allegedly texting that he had “stopped the flow of tapes from Russia” — knowing all the while that the tapes did not exist — is an outrageous and sensation distortion of the communications between Mssrs. Cohen and Rtskhiladze.

Footnote 112 of the Mueller Report would  have the world believe that Mr. Rtskhiladze is at best a caricature of an idle gossip or, worse, an opportunist with deep ties to the Russian business community2 and privy to untoward conduct by President Trump that Mr. Rtskhiladze and others intended to use to embarrass then Candidate Trump, derail his campaign and/or manipulate him after assuming the elected office. There is not a scintilla of evidence to support these inferences and to suggest otherwise is defamatory. [my emphasis]

Footnote 2 in this passage references the other discussions of Rtskhiladze in the report, which show him telling Cohen he had ties to (among others) the Mayor of Moscow; Rtskhiladze doesn’t contest that he has the ties laid out on those sections.

I mean, Bolden is right: these texts do suggest that Rtskhiladze is either a gossip or, more likely, trying to capitalize on information he claimed to not only know about, but be able to affect.

But he’s not actually offering a less damning explanation for them.

What he has done, however, is to call far more attention to them, all in a way that purports to assail Mueller’s credibility, but instead raises even more questions about the relationship between him and Cohen.

Finally, Bolden issues a non-denial denial of having ties with Crocus.

In a similar vein, Mr. Rtskhiladze has not had contact or dealings with the Crocus Group in 14 years, although he considers Crocus a reputable and successful business group. It is inaccurately stated that Mr. Rtskhiladze had a licensing deal with the Crocus Group.

As I noted above, the report doesn’t claim that Rtskhiladze had a licensing deal, it said he was pursuing one. And there’s nothing about this non-denial denial that might suggest Rtskhiladze heard a rumor that — say — fellow Georgian-American Ike Kaveladze was bragging about some compromising tapes, and he made an effort to chase it down.

So one other possible purpose of Bolden’s efforts to impugn Mueller’s integrity all while bringing more publicity to the incident that he claims makes his client look bad is to try to diminish any ill-will the Agalarovs feel towards Rtskhiladze.

Ultimately, though, Rtskhiladze’s lawyer is making thoroughly contradictory claims about this incident rather than offering a less damning explanation of it.

Update: I engaged with the spokesperson for Rtskhiladze, and specifically mentioned the inconsistency between his claim that he didn’t know if the video existed and that he affirmatively did not know. She said that was a typo, and promised to write the most up-to-date statement, but did not send anything.

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

 

Which Came First: The Indemnity Fail or Cohen’s Cooperation Curiosity?

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Michael Cohen is suing Trump Organization for refusing to fulfill an indemnity agreement they had. By itself, the suit offers the promise that these shitholes will rip each other apart in court. Discovery could be awesome, especially since the suit names Eric and Don Jr.

It also may lead other members of the Joint Defense Agreement to question how long Trump will remain loyal to them.

But I’m acutely interested in the timeline the lawsuit draws out for what it says about Trump’s efforts to cover-up his own criminal actions, laid out below. The italicized entries are ones I’ve added to Cohen’s own timeline — many of those dates come from this post on the timeline of the Special Master review of materials seized in the raid of Cohen’s home. The underlined ones are ones in Cohen’s complaint that I’ve editorialized on, to note where someone is known to have told a lie that coordinated with Cohen’s own lies.

As you can see, Trump’s spawn were happy to pay Cohen’s legal bills so long as he continued to tell the agreed upon lies.

But that changed when he got raided in April 2018. As I’ve noted, even though Cohen and Trump succeeded in getting a Special Master appointed to review all the discovery, that appointment didn’t succeed in withholding any of the most damning materials. But the Special Master process did give Trump an opportunity to review what Cohen had — including to identify what he had tape recordings of.

This probably led them to two conclusions. First, because Cohen had taped incriminating conversations (to ensure he’d get paid, Cohen explained in his OGR testimony), he had exposed Trump where he otherwise wouldn’t have been exposed. But because he hadn’t taped the most damning conversations — those implicating the Trump Tower Moscow deal and other Russia-related issues — they could fuck him over with relative impunity.

And that’s about when Trump stopped paying for Cohen’s silence. Notably, Cohen’s filing states that “On June 2018, Mr. Cohen began telling friends and family that he was willing to cooperate with the Special Counsel,” as if there once was a date there. He doesn’t give us that date.

But we can see from the timeline that it happened at a key point in the Special Master review, which is the same time Trump stopped paying for Cohen’s silence.

Two things are unclear to me.

First, as the title suggests, which came first, Cohen’s willingness to cooperate, or Trump’s newfound unwillingness to pay. My bet is it’s the latter, and my bet is it was a response to what they were seeing in the Special Master review. That is, once they decided that Cohen couldn’t hurt them, they cut him free, to sink on his own.

I’m also curious about why Cohen included Papadopoulos, Manafort, Gates, Page, Sessions, and Flynn in his timeline. He is not known to have testimony relating to any of these people — except, perhaps, Manafort. And they weren’t the only ones in Trump’s JDA (Gates has said he was never in the JDA) to have testified in this period (for example, KT McFarland had her first interview).

But it suggests Cohen may have more on the JDA he’s hanging over the others. Which may get litigated in this suit.

Timeline

August 2016: Karen McDougal catch and kill.

October 2016: Stormy Daniels hush payment.

January 13, 2017: SSCI opens Russian investigation.

January 25, 2017: HPSCI opens investigation.

January and February 2017: Cohen seeks reimbursement for hush payment to Daniels.

March 2017: Cohen named RNC Deputy Chair.

May 17, 2017: Mueller appointed.

~May 18, 2017: Cohen meets with Trump and Jay Sekulow, implicitly agree to tell a cover story.

End of May 2017: Cohen lawyers up with McDermott Will & Emery.

May 31, 2017: HPSCI subpoenas Cohen.

July 2017: Trump Organization enters into indemnity agreement in context of joint defense agreement.

August 28, 2017, Cohen sends letter making false statements to HPSCI and SSCI.

September 7, 2017: Don Jr testifies before SJC, repeating Cohen’s false statement on Trump Tower Moscow.

September 19, 2017: Cohen lies to SSCI about Trump Tower Moscow.

September 26, 2017: Roger Stone lies to HPSCI about relaying information about WikiLeaks to campaign, including Trump.

October 5, 2017: George Papadopoulos pleads guilty to making false statements to FBI agents relating to contacts he had with agents of the Russian government while working for the Trump Campaign.

October 25, 2017: Cohen testifies to SSCI, lying about Trump Tower Moscow.

October 25, 2017: First payment, in sum of $137,460, to McDermott.

October 30, 2017: Paul Manafort and Rick Gates indicted by a federal grand jury, including conspiracy against
the United States

November 2, 2017: Carter Page testifies before HPSCI.

November 14, 2017: AG Jeff Sessions testifies before HJC.

December 1, 2017: Mike Flynn pled guilty to lying to the FBI about conversations he had with the Russian ambassador.

December 6, 2017: Don Jr testified before the HPSCI, sustaining Cohen’s lies about Trump Tower Moscow.

December 2017: Don Jr and Eric Trump confirm they will continue to pay Cohen’s attorneys’ fees and expenses.

March 6, 2018: Daniels files a lawsuit against Trump and Cohen in CA seeking to invalidate NDA.

March 26, 2018: Daniels amends lawsuit to allege that Cohen defamed Daniels through public statements he made in or around February 2018.

~March 20, 2018: McDougal files a lawsuit against AMI seeking to invalidate the NDA.

April 5, 2018: Trump says, of payment to Daniels, “You’ll have to ask Michael Cohen. Michael is my attorney. You’ll have to ask Michael.”

April 9, 2018: Cohen raided.

April 9, 2018: Trump states, “So, I just heard that they[, the FBI,] broke into the office of one of my personal attorneys, a good man, and it’s a disgraceful situation. It’s a total witch hunt. I’ve been saying it for a long time. . . . It’s an attack on our country in a true sense. It’s an attack on what we all stand for.”

April 13, 2018: Challenge to seized materials, leading to appointment of Special Master.

April 21, 2018: Rudy Giuliani associate Robert Costello emails Cohen and tells him he “can sleep well tonight” because he “has friends in high places” to reassure Cohen that the President was not made him. Emails also say,

I just spoke to Rudy Giuliani and told him I was on your team. He asked me to tell you that he knows how tough this is on you and your family and he will make (sure) to tell the President. He said thank you for opening this back channel of communication and asked me to keep in touch.

There was never a doubt and they are in our corner, Rudy said this communication channel must be maintained. He called it crucial and noted how reassured they were that they had someone like me whom Rudy has known for so many years in this role

April 21, 2018: Trump tweets, “The New York Times and a third rate reporter named Maggie Haberman, known as a Crooked H flunkie who I don’t speak to and have nothing to do with, are going out of their way to destroy Michael Cohen and his relationship with me in the hope that he will ‘flip.’ They use . . . non-existent ‘sources’ and a drunk/drugged up loser who hates Michael, a fine person with a wonderful family. Michael is a businessman for his own account/lawyer who I have always liked & respected. Most people will flip if the Government lets them out of trouble, even if . . . it means lying or making up stories. Sorry, I don’t see Michael doing that despite the horrible Witch Hunt and the dishonest media!”

April 26, 2018: On Fox & Friends Trump states that Mr. Cohen is a “good person” and “great guy” who handled “a percentage of my overall legal work. . . . He represents me – like with this crazy Stormy Daniels deal he represented me. And, you know, from what I see he did absolutely nothing wrong. . . . I hope he’s in great shape.”

April 27, 2018: Kimba Wood appoints Barbara Jones as Special Master. 

Through May 2018: Trump Organization continues to pay Cohen’s legal fees, totaling $1.7 million.

May 6, 2018: George Stephanopoulos asks Rudy Giuliani, “Are you concerned at all that Michael Cohen’s going to cooperate with prosecutors?” Mr. Giuliani responds, “No. I expect that he is going to cooperate with them. I don’t think they’ll be happy with it because he doesn’t have any incriminating evidence about the president or himself. The man is an honest, honorable lawyer.”

June 4, 2018: Jones issues first report (covering a number of Cohen’s recordings), disagreeing with three claims of privilege. 

June 6, 2018: Trump lawyer Joanna Herndon requests that any challenge to Special Master decision be sealed. 

June 7, 2018: SDNY demands that any legal discussions of challenges be public. 

June 8, 2018: Judge Wood agrees with SDNY, leading Trump to withdraw certain privilege claims. 

June XX 2018: Cohen begins telling friends and family that he was willing to cooperate with the Special Counsel and federal prosecutors in connection with the SDNY Investigation.

June 2018: Trump Organization ceases to pay McDermott’s invoices, without notice or justification.

June 13, 2018: Daniels files a new lawsuit in CA against former attorney, Keith Davidson, and Cohen, alleging that they “colluded” and “acted in concert” to “manipulate” Daniels and benefit Trump.

June 14, 2018: NYAG subpoenas Cohen in Charitable Foundation suit.

June 15, 2018; Trump says, “I haven’t spoken to Michael in a long time. . . . [H]e’s not my lawyer anymore.”

June 22, 2018: Judge Wood finds that Cohen didn’t do much privileged lawyering.

July 2, 2018: Jones begins releasing files to SDNY.

July 2, 2018: Cohen tells Stephanopoulos, “To be crystal clear, my wife, my daughter and my son, and this country have my first loyalty … I will not be a punching bag as part of anyone’s defense strategy. I am not a villain of this story, and I will not allow others to try to depict me that way.”

July 23, 2018: Cohen withdraws privilege claims from 12 recordings. 

July 26, 2018: On CNN Rudy claims of Cohen, “He has lied all his life” and that he is a “pathological liar.”

August 7, 2018: Cohen begins meeting with Mueller. At his first proffer, he lies.

August 21, 2018: Cohen pleads guilty in SDNY.

September 12, 2018: First truthful Cohen proffer with Mueller.

November 29, 2018: Cohen pleads guilty with Mueller.

December 12, 2018: Cohen sentenced.

December 16, 2018: Trump tweets, “Remember, Michael Cohen only became a ‘Rat’ after the FBI did something which was absolutely unthinkable & unheard of until the Witch Hunt was illegally started. They BROKE INTO AN ATTORNEY’S OFFICE!”

January 25, 2019: Cohen asks for reimbursement for $1.9 million in legal fees and $1.9 in restitution.

Update, March 14: Included Robert Costello email.

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

Someone Has Already Been Charged for Most of the Actions the Steele Dossier Attributes to Michael Cohen

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Because of a McClatchy story claiming two new details corroborating a Steele dossier claim that Michael Cohen had a meeting with people serving the interests of Putin’s Administration, people have gotten themselves into a tizzy again about what a smoking gun it would be if the allegations in the Steele dossier were proven true.

It’s an utterly bizarre tizzy, both because the allegations in the Steele dossier not only don’t match some more damning allegations Cohen has already pled guilty to, but because Mueller has already charged other people for some of the allegations about Cohen made in the dossier. In other words, the McClatchy story has people excited about the wrong allegations, rather than focusing on the damning things Cohen (and others) have already been charged with.

Indeed, most functional allegations made in the Steele dossier have already been publicly explained in either court filings or sworn testimony. That doesn’t rule out that Cohen had a role in some of them, however. Indeed, one detail from Cohen’s SDNY plea — that among the things Trump Organization reimbursed Cohen for in January 2017 was a $50,000 payment to a tech services company — actually could confirm a detail made in the dossier. But generally, Mueller and other entities have already explained away many of the allegations made against Cohen in the dossier.

I’ve put the substantive claims the Steele dossier made about Cohen below. I’ll take each and show public reporting that explains who did something attributed to Cohen in the dossier.

Cohen met with Russian Presidential Administration Legal Department officials

The central allegation involving Cohen is that he met with people from Putin’s Presidential Administration’s legal department or, in a later version, someone acting on their behalf.

By the time that allegedly happened in August or maybe September, however, Cohen had already established a paper trail with someone more central than some anonymous lawyers. Cohen’s Mueller plea describes Cohen receiving an email on January 20, 2016 from Dmitry Peskov’s personal assistant and shortly thereafter calling her. Somehow Mueller knows that the assistant “asked detailed questions and took notes.” The day after Cohen spoke with the personal assistant, someone from Putin’s office called Felix Sater.

Given that Cohen made reservations to travel to St. Petersburg (for a possible meeting directly with Putin) on June 9, then canceled those reservations on June 14 (after Russia’s role in the DNC hack was made public), those communications about a Trump Tower deal surely tie to the hack-and-leak operation.

It’s certainly possible that, later in the summer (or in the fall, during Cohen’s known trips to London), Cohen would attempt to reschedule that meeting, though the purpose was originally and probably would remain more central to a quid pro quo trading a Trump Tower and election assistance for sanctions relief and policy considerations. But having already exchanged easily collectable communications directly with Peskov’s office (whom the dossier calls “the main protagonist” in the operation), it’s not clear how helpful using Rossotrudnichestvo would be to hide the Trump role. Furthermore, there are other known cut-outs for related matters, including Steele dossier source Sergei Millian and the Agalrovs.

Cohen aimed to contain the Paul Manafort scandal

The three Cohen reports in October all claim that Cohen got involved to tamp down scandals connecting Trump to Russia. That’s not, at all, far-fetched. After all, Cohen was Trump’s fixer and he told a bunch of lies to Congress in an effort to hide Trump’s Moscow Project.

That said, a filing explaining why Mueller might have to mention the Trump campaign in Manafort’s aborted DC trial and a filing in Alex Van der Zwaan’s prosecution show that Manafort and Rick Gates themselves — with the direct involvement of Oleg Deripaska associate Konstantin Kilimnik — worked to contain this scandal.

As Mueller laid out in numerous ways, the Manafort-Gates-Kilimnik team went on a crime spree in the fall trying to cover up their past activities with Russian-backed oligarchs.

Indeed, that a claim that Cohen managed this pushback (and its timing) appeared in the dossier is particularly tantalizing for two reasons. First, one of the things Manafort reportedly lied about after agreeing to cooperate with Mueller pertained a boat trip he took with Tom Barrack; Mueller seems to know that Kilimnik joined the two men. If that happened, then it would show that someone did indeed hold a meeting in August to contain the damage of Manafort’s burgeoning scandals, but that meeting would have been between a key Trump funder, Manafort himself, and someone suspected of ongoing ties with GRU, the agency that conducted the DNC hack.

More intriguing still, as I noted above, Kilimnik was Manafort’s go-between with Oleg Deripaska. That’s interesting because in 2016, Christopher Steele was attempting to convince DOJ’s Bruce Ohr that Deripaska could be a useful source on Russian organized crime. If Steele thought Deripaska would be a useful source for DOJ, he may well have been relying on Deripaska himself. If so, the report that Cohen (who in fact did have communications with Peskov!) was containing the damage of Manafort’s ties to Russian oligarchs might be an attempt to distract from the way that a Russian oligarch was actually working through his handler, Kilimnik, to minimize that damage himself.

Cohen aimed to contain the Carter Page scandal

It likewise seems unlikely that Cohen was the one to try to contain the Carter Page scandal. While he shouldn’t be relied on for anything, several claims in Page’s testimony to HPSCI provide an alternate explanation about who was containing the scandal tied to him.

Page denied ever speaking to Cohen.

But he did describe Keith Kellogg discussing the allegations with him. And he did describe Steve Bannon, both by himself and with the assistance of Trump’s election lawfirm, Jones Day, trying to minimize the Page scandal.

That’s consistent with a number of on-the-record claims from the campaign in the days following Page’s resignation in September. Which is to say, minimizing the Page scandal fell to the campaign itself.

The people who carried out the information operation had been paid by Russia and Trump

The three initial reports on Cohen came, in suspiciously quick succession, in October, after the number of reporters briefed on the Steele dossier started to expand.

The one other report implicating Cohen was the December 13 report, based on intelligence Steele claimed he obtained for “free.”

The report is most notable for the legal battle it caused. The allegations most clearly resemble what Adrian Chen had identified and attributed to the Internet Research Agency year earlier and there had been extensive reporting on it all through the campaign. But instead of blaming Internet Research Agency, the report blames all that on Webzilla. And Webzilla’s owner, Aleksei Gubarev was sufficiently comfortable facing the prospect of discovery to sue BuzzFeed right away (though he lost his lawsuit a few weeks back).

There’s another reference in the report to a long debunked claim made by the Russians — that a Romanian hacker was involved, presumably an allusion to Guccifer 2.0’s half-hearted claim to be Romanian.

Still, much of that last report instead presented the most inflammatory claim in the entire dossier: that Trump’s campaign had helped pay for the information operation targeting Hillary.

On its face, that claim makes zero sense. The scenario as a whole assumes that the hack was done by independent hackers coerced to work for the FSB — perhaps people like Yevgeniy Nikulin, who had already been arrested in Prague by this point. As far as Mueller has shown publicly, however, the information operation was instead done by two entities: Russians in the employ of Putin crony Yevgeniy Prigozhin’s Internet Research Agency and officers in the employ of Russia’s military intelligence agency, GRU. In indictments of both conspirators, Mueller provided details about how the money was handled.

So we’ve already got explanations for how the information operation was funded: by Prigozhin and the Russian state, using a range of money laundering techniques to hide Russia’s role. We even have evidence that — contrary to the claim about information warriors’ loyalty to Sergei Ivanov — Prighozhin’s employees even sucked up to him in one of their dry runs getting Americans to perform IRL actions.

Cohen arranged deniable cash payments to hackers working in Europe against the Clinton campaign

As noted, the December report involving Cohen made the most incendiary claim of all: that the Trump organization planned to pay for some of the hackers that targeted Hillary.

In spite of the fact that Mueller has already explained how the two main groups of participants in the information operation got funded, this allegation gets more interesting given details laid out in Cohen’s SDNY plea. Several of his SDNY crimes, after all, involving making deniable payments, in that case to Stormy Daniels and Karen McDougal.

That shows Cohen’s modus operandi for paying off Trump’s illicit debts. Mind you, it shows that he didn’t use cash. He laundered the funds using more sophisticated money laundering. But it does show that Cohen was the guy who did that kind of thing.

Which makes this detail included — but not explained — in the same plea document intriguing.

Cohen paid some tech company $50,000 in connection with the campaign.

That’s not a whole lot of money, in any case. And if it went to pay off part of the information operation, it would have to have involved some part of the operation not yet publicly identified. Even the one known instance of Trump supporters reaching out to hackers in Europe — Peter Smith’s reported consultation of Weev — is known to have been paid for by other means (in that case, Smith’s own fundraising).

Still, it’s certainly possible that that $50,000 went to some still unidentified entity that played a role in the information operation that, for some reason, didn’t get paid for by Putin’s cronies or the Russian state.

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

18 October

Speaking separately to the same compatriot in mid-October 2016, a Kremlin insider with direct access to the leadership confirmed that a key role in the secret TRUMP campaign/Kremlin was being played by the Republican candidates personal lawyer Michael COHEN. [redacted line]

19 October

1. Speaking in confidence to a longstanding compatriot friend in mid-October 2016, a Kremlin insider highlighted the importance of Republican presidential candidate Donald TRUMP’s lawyer, Michael COHEN, in the ongoing secret liaison relationship between the New York tycoon’s campaign and the Russian leadership. COHEN’s role had grown following the departure of Paul MANNAFORT as campaign manager in August 2016. Prior to that MANNAFORT had led for the TRUMP side.

2. According to the Kremlin insider, COHEN now was heavily engaged in a cover up and damage limitation operation in the attempt to prevent the full details of relationship with Russia being exposed. In pursuit of this aim, COHEN had met secretly with several Russian Presidential Administration (PA) Legal Department officials in an EU country in August 2016. The immediate issues had been to contain further scandals involving MANNAFORT’s commercial and political role in Russia/Ukraine and to limit the damage arising from exposure of former TRUMP foreign policy advisor, Carter PAGE’s secret meetings with Russian leadership figures in Moscow the previous month. The overall objective had been to “to sweep it all under the carpet and make sure no connections could be fully established or proven”

3. Things had become even “hotter” since August on the TRUMP-Russia track. According to the Kremlin insider, this had meant that direct contact between the TRUMP team and Russia had been farmed out by the Kremlin to trusted agents of influence working in pro-government policy institutes like that of Law and Comparative Jurisprudence. COHEN however continued to lead for the TRUMP team.

[snip]

The Kremlin insider was unsure of the identities of the PA officials with whom COHEN met secretly in August, or the exact date/s and locations of the meeting/s. There were significant internal security barriers being erected in the PA as the TRUMP issue became more controversial and damaging. However s/he continued to try to obtain these.

20 October

1. Speaking to a compatriot and friend on 19 October 2016, a Kremlin insider provided further details of reported clandestine meeting/s between Republican presidential candidate, Donald lawyer Michael COHEN and Kremlin representatives in August 2016. Although the communication between them had to be cryptic for security reasons, the Kremlin insider clearly indicated to his/her friend that the reported contact/s took place in Prague, Czech Republic.

2. Continuing on this theme, the Kremlin insider highlighted the importance of the Russian parastatal organisation, Rossotrudnichestvo, in this contact between TRUMP campaign representative/3 and Kremlin officials. Rossotrudnichestvo was being used as cover for this relationship and its office in Prague may well have been used to host the COHEN Russian Presidential Administration (PA) meeting/s. It was considered a “plausibly deniable” vehicle for this, whilst remaining entirely under Kremlin control.

3. The Kremlin insider went on to identify leading pro-PUTIN Duma figure, Konstantin KOSACHEV (Head of the Foreign Relations Committee) as an important figure in the TRUMP campaign-Kremlin liaison operation. KOSACHEV, also “plausibly deniable” being part of the Russian legislature rather than executive, had facilitated the contact in Prague and by implication, may have attended the meeting/s with COHEN there in August.

Company Comment

We reported previously, in our Company Intelligence Report 2016/135 of 19 October 2016 from the same source, that COHEN met officials from the PA Legal Department clandestinely in an EU country in August 2016. This was in order to clean up the mess left behind by western media revelations of TRUMP ex-campaign manager corrupt relationship with the former pro-Russian YANUKOVYCH regime in Ukraine and TRUMP foreign policy advisor, Carter secret meetings in Moscow with senior regime figures in July 2016. According to the Kremlin advisor, these meeting/s were originally scheduled for COHEN in Moscow but shifted to what was considered an operationally “soft” EU country when it was judged too compromising for him to travel to the Russian capital.

13 December

1. We reported previously (2016/135 and /136) on secret meeting/s held in Prague, Czech Republic in August 2016 between then Republican presidential candidate Donald TRUMP’s representative, Michael COHEN and his interlocutors from the Kremlin working under cover of Russian ‘NGO’ Rossotrudnichestvo.

2. [two lines redacted] provided further details of these meeting/s and associated anti- CLINTON/Democratic Party operations. COHEN had been accompanied to Prague by 3 colleagues and the timing of the visit was either in the last week of August or the first week of September. One of their main Russian interlocutors was Oleg SOLODUKHIN operating under Rossotrudnichestvo cover. According to [redacted] the agenda comprised questions on how deniable cash payments were to be made to hackers who had worked in Europe under Kremlin direction against the CLINTON campaign and various contingencies for covering up these operations and Moscow’s secret liaison with the TRUMP team more generally.

3. [redacted] reported that over the period March-September 2016 a company called XBT/Webzilla and its affiliates had been using botnets and porn traffic to transmit viruses, plant bugs, steal data and conduct “altering operations” against the Democratic Party leadership. Entities linked to one Aleksei GUBAROV were involved and he and another hacking expert, both recruited under duress by the FSB, Seva KAPSUGOVICH, were significant players in this operation. In Prague, COHEN agreed contingency plans for various scenarios to protect the Operation, but in particular what was to be done in the event that Hillary CLINTON won the presidency. It was important in this event that all cash payments owed were made quickly and discreetly and that cyber and other operators were stood down/able to go effectively to ground to cover their traces. (We reported earlier that the involvement of political operatives Paul MANAFORT and Carter PAGE in the secret TRUMP-Kremlin liaison had been exposed in the media in the run-up to Prague and that damage limitation of these also was discussed by COHEN with the Kremlin representatives).

In terms of practical measures to be taken, it was agreed by the two sides in Prague to stand down various “Romanian hackers” (presumably based in their homeland or neighboring eastern Europe) and that other operatives should head for a bolt-hole in Plovdiv, Bulgaria where they should “lay low”. On payments, IVANOV’s associate said that the operatives involved had been paid by both TRUMP’s team and the Kremlin, though their orders and ultimately loyalty lay with IVANOV, as Head of the PA and thus ultimately responsible for the operation, and his designator successor/s after he was dismissed by president PUTIN in connection with the anti-CLINTON operation in mid August.

It’s Not the Campaign Finance Violation or the Simple Private Transaction, It’s the Conspiracy to Commit Fraud

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Andrew McCarthy has finally come around to the criminal behavior of the President, though he has found it in Trump’s hush payments rather than his conspiring with Russians. But, in typical fashion, McCarthy stops short of the hard-charging prosecutor he once was, and suggests Trump may have a way out of his crime because campaign finance law favors the candidate.

This is not to suggest that the president is without cards to play. Campaign finance violations have a high proof threshold for intent. President Trump could argue that because there was no spending limit on his contributions, he did not think about the campaign-finance implications, much less willfully violate them.

There is, furthermore, a significant legal question about whether the hush-money payments here qualify as “in-kind” campaign contributions.

McCarthy does this even while rightly emphasizing the language in Michael Cohen’s SDNY sentencing memo that focuses on transparency.

First, Cohen’s commission of two campaign finance crimes on the eve of the 2016 election for President of the United States struck a blow to one of the core goals of the federal campaign finance laws: transparency. While many Americans who desired a particular outcome to the election knocked on doors, toiled at phone banks, or found any number of other legal ways to make their voices heard, Cohen sought to influence the election from the shadows. He did so by orchestrating secret and illegal payments to silence two women who otherwise would have made public their alleged extramarital affairs with Individual-1. In the process, Cohen deceived the voting public by hiding alleged facts that he believed would have had a substantial effect on the election.

It is this type of harm that Congress sought to prevent when it imposed limits on individual contributions to candidates. To promote transparency and prevent wealthy individuals like Cohen from circumventing these limits, Congress prohibited individuals from making expenditures on behalf of and coordinated with candidates. Cohen clouded a process that Congress has painstakingly sought to keep transparent.

This language very clearly signals that SDNY believes those involved in this crime thwarted the transparency requirements imposed by campaign finance law. It’s not just the payment itself, it’s the fraud conducted on regulatory bodies designed to ensure transparency. And, equally clearly, SDNY lays out that Cohen did not act on his own.

So even while McCarthy notes that Trump was named personally, he deemphasizes how many players worked together to coordinate these hush payments: In addition to Trump, Cohen’s hush payment lawyer Keith Davidson, the National Enquirer, its Chairman David Pecker, its Editor Dylan Howard on the Karen McDougal payment:

With respect to both payments, Cohen acted with the intent to influence the 2016 presidential election. Cohen coordinated his actions with one or more members of the campaign, including through meetings and phone calls, about the fact, nature, and timing of the payments. (PSR ¶ 51). In particular, and as Cohen himself has now admitted, with respect to both payments, he acted in coordination with and at the direction of Individual-1. (PSR ¶¶ 41, 45)

And then Davidson, Howard, and Trump Organization, with the involvement of several of its executives (probably including one of Trump’s spawn) on the Stormy Daniels payment.

Executives of the Company agreed to reimburse Cohen by adding $130,000 and $50,000, “grossing up” that amount to $360,000 for tax purposes, and adding a $60,000 bonus, such that Cohen would be paid $420,000 in total. Executives of the Company decided to pay the $420,000 in monthly installments of $35,000 over the course of a year. (PSR ¶¶ 52-53). At the instruction of an executive for the Company, Cohen sent monthly invoices to the Company for these $35,000 payments, falsely indicating that the invoices were being sent pursuant to a “retainer agreement.” The Company then falsely accounted for these payments as “legal expenses.”

Importantly, the sentencing memo focuses on the “sophisticated means” that Cohen used — the shell companies and the structured repayments — pointing to fraud, not just campaign finance violations.

The “sophisticated means” enhancement is addressed to Cohen’s use of complex means to carry out and disguise his crimes. For example, Cohen created shell companies for his commission of the campaign finance crimes, including one shell entity (Resolution Consultants) for use in the transaction with Woman-1 and another shell entity (Essential Consultants) for use in the transaction with Woman-2. (PSR ¶¶ 43, 47.) Cohen also agreed to structure the reimbursement for his payment to Woman-2 in monthly installments, and to disguise those payments by creating fake invoices that referenced a non-existent “retainer.” (PSR ¶ 54.)

While it is true that Cohen pled guilty to campaign finance violations, that’s not what SDNY lays out in this memo. Rather, they lay out conspiracy to defraud the United States, which carries a five year prison sentence, on top of any campaign finance or money laundering prosecution to carry out that fraud. That’s the same charge that Trump appointee Dabney Friedrich just upheld for the Russian trolls that helped Trump win, the same charge that Rick Gates and Paul Manafort have pled guilty to, the same ConFraudUS that Mueller has built all his interlocking indictments around. And there, it’s not so much the intent or success of the attempt to thwart campaign finance oversight that matters, it’s the conspiracy to do it and the secrecy and sophisticated means by which you do it.

So Trump may want to claim this is a “simple private transaction,” just like all the other hush payments he has orchestrated with his buddy Pecker over the years.

But when you carry out such “simple private transactions” in the context of an election then it becomes conspiracy to commit fraud.

And to reiterate: it’s not just Trump himself that can be charged with ConFraudUS for this, it’s also The Company and whichever spawn served as The Executive seeking to hide the payback for Cohen’s hush payments.

Heck. Even the NYT is beginning to figure this out.

What it means is that both Trump (after he’s no longer President) and his company (as soon as SDNY gets around to charging it and its executives) are on the hook for cheating to get elected.

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

The Benefits and Pitfalls of Having Former FEC Commissioner Don McGahn as Your Campaign Lawyer

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Of all the posts I’ve written about Roger Stone, I’m only aware of two that he responded to directly. One was this post from September 5, laying out how stupid Stone was for using Jerome Corsi’s August 31 report as a cover story for his August 21 “time in the barrel” tweet. We now know that the very next day, Jerome Corsi would tell material lies to Mueller’s team in an attempt to sustain a cover story that started with that August 31 report. Indeed, we also know that 16 days after I wrote that post, Corsi would testify to the grand jury that the August 31 report was written entirely to offer cover for that August 21 tweet (and, I suspect, Stone’s August 15 one).

Perhaps before this is over I’ll get the opportunity to play poker with Roger Stone.

The other post Stone reacted against — and he reacted even more aggressively — was this post focusing on Don McGahn’s history of helping Trump’s people get out of campaign finance pickles.

To be fair to rat-fucker Roger, the post actually laid out how Don McGahn has been covering for Trump’s campaign finance problems for seven years, not just Roger’s.

Of significant import, that history started in the follow-up to events from 2011, when Trump’s then-fixer, a guy named Michael Cohen, set up a presidential exploratory committee using Trump Organization funds. Democrats on the FEC believed that violated campaign finance law, but a guy named Don McGahn weighed in to say that FEC couldn’t use public reporting to assess complaints.

During McGahn’s FEC tenure, one of those he helped save from enforcement action was Trump himself. In 2011, when the future president-elect was engaged in a high-profile process of considering whether to enter the 2012 race for the Republican presidential nomination, Trump was formally accused in an FEC complaint of violating agency regulations. The case was dismissed on a deadlocked vote of the FEC commissioners.

A four-page complaint filed by Shawn Thompson of Tampa, Fla., accused Trump of illegally funneling corporate money from his Trump Organization into an organization called ShouldTrumpRun.com. McGahn and fellow FEC Republicans Caroline Hunter and Matthew Petersen voted to block FEC staff recommendations that Trump be investigated in the matter—designated Matter Under Review (MUR) 6462.

Ultimately, Trump opted not to run for president in 2012. Nonetheless, FEC staff attorneys concluded his activities before that decision may have violated campaign finance rules regarding money raised to “test the waters” for a candidacy. A staff report from the FEC Office of General Counsel, based largely on news articles and other documents about Trump’s flirtation with running for president—including Trump’s own quoted statements— recommended that the commissioners authorize a full FEC investigation backed by subpoena power.

FEC Democrats voted to pursue the recommended probe, but the votes of McGahn and the other FEC Republicans precluded the required four-vote majority needed for the commission to act.

McGahn and Hunter issued a “ statement of reasons” explaining their votes in the Trump matter in 2013. The 11-page statement blasted FEC staff attorneys in the Office of General Counsel for reviewing volumes of published information regarding Trump’s potential 2012 candidacy in order to determine whether to recommend that the FEC commissioners vote to authorize a full investigation. McGahn and Hunter argued that the FEC counsel’s office was prohibited from examining information other than what was contained in the formal complaint submitted in the case.

The Office of General Counsel shouldn’t be allowed to pursue an “unwritten, standardless process whereby OGC can review whatever articles and other documents not contained in the complaint that they wish, and send whatever they wish to the respondent for comment,” the Republican commissioners wrote.

In the context of rat-fucking Roger, in 2016, McGahn succeeded in getting a bunch of Democrats’ lawsuits against Stone’s voter suppression efforts in swing states thrown out.

But the history these sleazeballs all share is relevant for a reason explicitly raised in the SDNY Cohen filing last night. In the middle of the most shrill passage in the entire shrill filing (one that also uses language that might be more appropriate in — and is likely to eventually show up in — a ConFraudUs charge), SDNY notes that Cohen can’t play dumb about campaign finance law because of his 2011 run-in with the law.

Cohen’s commission of two campaign finance crimes on the eve of the 2016 election for President of the United States struck a blow to one of the core goals of the federal campaign finance laws: transparency. While many Americans who desired a particular outcome to the election knocked on doors, toiled at phone banks, or found any number of other legal ways to make their voices heard, Cohen sought to influence the election from the shadows. He did so by orchestrating secret and illegal payments to silence two women who otherwise would have made public their alleged extramarital affairs with Individual-1. In the process, Cohen deceived the voting public by hiding alleged facts that he believed would have had a substantial effect on the election.

It is this type of harm that Congress sought to prevent when it imposed limits on individual contributions to candidates. To promote transparency and prevent wealthy individuals like Cohen from circumventing these limits, Congress prohibited individuals from making expenditures on behalf of and coordinated with candidates. Cohen clouded a process that Congress has painstakingly sought to keep transparent. The sentence imposed should reflect the seriousness of Cohen’s brazen violations of the election laws and attempt to counter the public cynicism that may arise when individuals like Cohen act as if the political process belongs to the rich and powerful.

Cohen’s submission suggests that this was but a brief error in judgment. Not so. Cohen knew exactly where the line was, and he chose deliberately and repeatedly to cross it. Indeed, he was a licensed attorney with significant political experience and a history of campaign donations, and who was well-aware of the election laws. 11 In fact, Cohen publicly and privately took credit for Individual-1’s political success, claiming – in a conversation that he secretly recorded – that he “started the whole thing . . . started the whole campaign” in 2012 when Individual-1 expressed an interest in running for President. Moreover, not only was Cohen well aware of what he was doing, but he used sophisticated tactics to conceal his misconduct.

11 Cohen was previously the subject of an FEC complaint for making unlawful contributions to Donald Trump’s nascent campaign for the 2012 presidency. The complaint was dismissed for jurisdictional reasons, but it certainly put Cohen on notice of the applicable campaign finance regulations. See In the Matter of Donald J. Trump, Michael Cohen, et al., MUR 6462 (Sept. 18, 2013). [my emphasis]

To the extent that Cohen and his sole client, Individual-1, committed campaign finance crimes in 2016 — especially the corporate funding of campaign activities — they can’t claim to be ignorant, because they only narrowly avoided proceedings on precisely this point in 2013.

That’s all the more true given that that very same FEC commissioner was their campaign lawyer.

Now, any discussion about Cohen’s knowledge of campaign finance law in this instance is one thing if you’re talking whether SDNY will charge Trump and his company with conspiracy to violate campaign finance laws because Cohen bought off several women. But then there’s the matter of SuperPACs that illegally coordinated with Trump Org, and other dark money groups — including Stone’s — that coordinated with the campaign. Given that the donation Manafort lied about to Mueller is reportedly from Tom Barrack’s SuperPAC (along with his lies about whether he and Barrack met with Konstantin Kilimnik right after he got fired), that may be a campaign finance problem as well. Kilimnik partner Sam Patten has already pled guilty for using a straw donor to hide the foreign oligarchs ponying up to attend Trump’s inauguration, so that’s a second campaign finance guilty plea from people close to Trump and his aides, in addition to Cohen’s.

And all that’s before you get to the big one, Russia’s direct assistance to the campaign as part of a quid pro quo, and the stakes of whether any of the players can be said to know campaign finance law go up.

In short, Trump’s campaign was a serial campaign finance disaster in 2016, even in spite of having former FEC commissioner Don McGahn at their legal helm. And even if they weren’t running these legal questions by McGahn, Individual-1 and his fixer, at least, were also (as the government has already now alleged) “on notice of the applicable campaign finance regulations.”

Remember: After meeting with prosecutors for 20 hours late last year, McGahn had something around another 10 quality hours with Mueller’s prosecutors. The assumption has always been that those interviews were exclusively about the cover-up (though this May AP story on Tom Barrack’s own questioning describes that, “Investigators have for months been inquiring about the Trump campaign’s finances and compliance with federal election law,” and it doesn’t even include a single one of the crimes laid out here).

But it’s highly likely McGahn has given significant testimony about the (campaign finance) crime.

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