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The Available Evidence Says Merrick Garland *Is* Prosecuting Controversial Cases from Trump Years

I’m waiting for the arraignment hearing for the Chair of the former President’s Inauguration Committee, which I thought would be a good time to respond to this Jennifer Rubin column that starts by discussing whether DOJ will rule that Mo Brooks’ actions related to the insurrection are his job (and therefore DOJ must substitute themselves for Brooks as a defendant); as Michael Stern laid out, that question is actually a complex one legally.

But Rubin goes from there, a civil lawsuit, to conclude that that Merrick Garland is “determined to sweep” Trump’s misconduct around January 6 “under the rug.” She goes from there to conclude that Garland is “refusing prosecution of controversial cases from the Trump years.”

We are not talking only about Trump’s actions on Jan. 6 or about possible misconduct (e.g., obstruction of justice, misleading courts) in the Justice Department that Garland seems determined to sweep under the rug. Trump’s attempts to strong-arm Michigan and Georgia election officials after he lost the 2020 election were not only a violation of his oath but also may have violated state and federal law prohibiting election fraud and manipulation.

In the case of Georgia, we have Trump on tape telling the secretary of state to “find” enough votes for him to win. What stronger indication of a serious election crime could possibly exist? So far the Justice Department seems to have left any investigation to the Fulton County prosecutor, who unsurprisingly has more pressing priorities. There is no legitimate reason for the feds’ refusal to investigate and, if warranted, prosecute Trump for conduct that no other president in history ever contemplated. If any other American’s participation in this set of facts would prompt a serious federal investigation, Garland must not exempt the former president. That is the meaning of “no one is above the law.”

Garland may think he is attempting to avoid politics by refusing prosecution of controversial cases stemming from the Trump years. If so, he has it backward. If the current president wants to pardon individuals from the previous administration for political reasons, that is his prerogative — not Garland’s. Especially when it comes to any post-election conduct abetting sedition and attempting to corrupt the ballot tabulation, we need an attorney general to aggressively pursue facts and bring actions against Trump and his supporters where warranted. If not, Garland would have inadvertently affirmed Trump’s argument that he was above the law.

As noted above, I’m on hold awaiting the arraignment for Tom Barrack, believed to be worth around a billion dollars and someone whose business ties to Trump go back four decades, on charges that he served as an agent (not a lobbyist!) for the United Arab Emirates to change the policy of the United States to benefit that country.

Now’s a good time to respond to this column, I guess, and all the hundreds like it, not least because it’s insane to say that Garland is refusing controversial prosecutions when he is prosecuting this one (and investigating Rudy Giuliani, in spite of serving as the former President’s lawyer while he was President).

Not only is the fact that this case is being prosecuted evidence that Garland is not shying away from such prosecutions, but it tells us two more things about any hypothetical controversial prosecutions.

First, even for a prosecution that was largely set to go over a year ago, those cases might not be charged — for whatever reason — yet, 137 days into Garland’s tenure. (It’s worth noting that grand juries have been backed up on account of COVID.) So it’s too early to say whether Garland is refusing to prosecute other controversial cases, in addition to this one, because for any such prosecution that wasn’t all wrapped up in a bow over a year ago, it might still take some investigative work.

Additionally, this case didn’t leak!! Unlike Billy Barr’s hyper-politicized DOJ, we’re not getting leaks about what’s coming via Sidney Powell or other Fox News talking heads.

So even if there were ten more similarly controversial prosecutions coming down the pike, we might not know about them. Which is how it’s supposed to be.

Both item one — prosecutions take time — and item two — with the exception of Michael Sherwin’s public support for sedition charges, in response to which Garland referred him to OPR for investigation, Garland’s DOJ is not leaking like a sieve — presumably also apply to any investigations involving Trump and those close to him that didn’t take place 4 years ago.

What I do know is that Garland has repeatedly told prosecutors to go wherever the evidence leads on January 6. What I also know is that the complex militia conspiracy cases most likely to lead in that direction (as well as the one defendant who was discussed by the President’s lawyer) are making progress, in the Oath Keeper case, at a faster clip than many of the other prosecutions. What I also know is that complex conspiracy cases take time, more than seven months.

I get that people have gripes about the decisions Garland made about sustaining the Barr DOJ’s position on civil cases. But you simply cannot draw conclusions from that about whether Garland is opposing certain prosecutions. The only evidence we have so far — in cases taking aggressive actions against the former President’s lawyer and the former President’s long-time friend — is that Garland is happy to let prosecutors pursue cases for which they have evidence.

Update: I want to add one more point because people seem to believe that unless Garland appoints a Special Counsel, there’s no way DOJ is investigating the controversial cases. That misunderstands why Special Counsels get appointed: not because cases are important, but because DOJ or a particular prosecutor has a conflict that must be managed in some other way. There’s no known conflict for any potential Trump investigations, so we shouldn’t expect a Special Counsel.

Update: Thanks to those who pointed out I had made Rudy Trump’s client instead of his lawyer.

Update: Because a bunch of people on Twitter appear to continue to believe the false claim that Garland declined Wilbur Ross’ prosecution for lying to Congress, I’m going to link to this post noting that the declination happened under Billy Barr and also noting that DOJ IG likely had their own investigation into the allegations the outcome of which is not yet public.

The Significance of Tom Barrack’s Obstruction and False Statements Charges

I want to expand on something I said in this post about Tom Barrack’s charges: the obstruction and false statements charges against Trump’s big fundraiser make this case much more solid than many in the press (usually the same people claiming it’s a FARA case) are suggesting.

 In a June 20, 2019 interview with the FBI, the indictment alleges that Barrack lied about whether:

  1. Al Malik asked Barrack to do things for UAE
  2. Barrack downloaded an encrypted app to use to communicate with MbZ and other Emirati officials
  3. Barrack set up a meeting between MbZ and Trump and, generally, whether he had a role in facilitating communications between them
  4. He had a role in prepping MbZ for a September 2017 meeting with Trump

Curiously, the detention memo mentions two more lies that aren’t included in the indictment:

(1) writing a draft of a speech to be delivered by the Candidate in May 2016; (2) reviewing a PowerPoint presentation to be delivered to senior UAE officials on how to increase the UAE’s influence in the United States with his assistance;

In any case, this structure makes it easy to hold Barrack accountable at least via his lies to the FBI, and that he allegedly lied is powerful evidence that the full scope of the relationship was meant to be secret.

The headline charges are the foreign agent and conspiracy charges. But in addition to those charges, Barrack is also charged with obstruction and false statements. Most likely, if he were found guilty only on those charges, he’d face less time than from the foreign agent charge, but he’d still face prison.

Here’s what we know of the timeline: According to the Rashid Al Malik complaint, he was interviewed by the FBI on April 5, 2018. If the Intercept’s report that Mueller’s team conducted this interview is correct, this is likely his almost entirely redacted 302 (for an investigation that was ongoing in September 2020). Three days earlier, someone represented (as Barrack was) by Steptoe and Johnson had a pre-grand jury interview led by Zainab Ahmad that Andrew Weissmann joined while in progress. On April 8, three days after his own interview, Al Malik left the country and has been gone ever since.

In early 2019, Mueller’s team started handing off referrals, which may be why, in February 2019, the FBI sent subpoenas to Colony Capital.

In or about February 2019, Federal Bureau of Investigation (“FBI”) special agents served federal grand jury subpoenas on several individuals employed by or associated with Company A, including individuals that reported directly to the defendant THOMAS JOSEPH BARACK, in connection with the criminal investigation of the activities of the defendants RASHID SULTAN AL MALIK ALSHAHHI, BARRACK, and MATTHEW GRIMES.

Following the service of these federal grand jury subpoenas, the defendant THOMAS JOSEPH BARRACK volunteered to speak with FBI special agents. On or about June 20, 2019, FBI special agents interviewed BARRACK, in the presence of counsel, regarding the activities of the defendant RASHID SULTAN AL MALIK ALSHAHHI, BARRACK, and the defendant MATTHEW GRIMES. At the outset of the interview, United States government officials advised BARRACK, and confirmed that he understood, that lying to federal agents is a federal crime. Thereafter, during the course of the interview, BARRACK knowingly made numerous materially false statements relating to the activities of ALSHAHHI, BARRACK, and GRIMES.

At the time, of course, Barrack’s close ally was still President and Bill Barr was newly installed at the helm of DOJ, working hard to cover up the true results of the Mueller investigation and even beginning to take steps to protect Rudy Giuliani from his own foreign agent charges. Why wouldn’t Barrack lie?

Interestingly, the obstruction charge against Barrack suggests others were part of this.

On or about June 20, 2019, within the Eastern District of New York and elsewhere, the defendant THOMAS JOSEPH BARRACK, together with others, did knowingly, intentionally and corruptly obstruct, influence and impede, and attempt to obstruction, influence and impede, an official proceeding, to wit: a Federal Grand Jury.

In any case, Barrack is well-resourced and he’ll no doubt offer some solid defenses here, possibly including that he had earlier told the truth about some of this stuff, and so, any inaccuracies in his 2019 interview weren’t material.

But assuming the FBI didn’t charge a billionaire with false statements without having him dead to rights on the charges, by June 2019, the FBI foreclosed several of the defenses that Barrack might offer going forward: that he was doing all this as a legal commercial transaction (which is exempt from the foreign agent charges) or that he wasn’t really working for UAE, he just thought the alliance really served US interests and indulged the Emiratis by referring to MbZ asboss.” By denying very basic things that the FBI appears to have records for, then, Barrack made it a lot harder to argue — in 2021 — that’s there’s an innocent explanation for all this.

Five days after Barrack’s interview, the FBI obtained an arrest warrant for Al Malik, one that made Al Malik look like the bad guy here, taking advantage of poor Tom Barrack and poor Paulie Manafort.

But then DOJ kept investigating Barrack’s role in all this. According to CNN, before this time last year, EDNY prosecutors believed they had enough to add Barrack to the charges, but the appointed US Attorney “expressed misgivings.”

Federal prosecutors in Brooklyn investigating Tom Barrack, a prominent ally to former President Donald Trump, for allegedly violating foreign lobbying laws had enough evidence to bring charges last year, but held off doing so until the arrival of the new presidential administration, according to people briefed on the matter.

Prosecutors wanted to move forward on the case and believed they could obtain an indictment, one source familiar with the matter said. The source said the investigation was mostly done well before the time period when prosecutors are discouraged from advancing politically sensitive matters ahead of an election.

But two sources tell CNN the US attorney in Brooklyn at the time, Richard Donoghue, expressed misgivings about the case. It’s unclear if he delayed the case outright or if prosecutors chose not to move forward at the time knowing the US attorney would not support it.

Then-Attorney General William Barr was also known inside the department to have reservations, in general, about foreign lobbying cases, which the Justice Department has struggled to prosecute in the past.

A spokesman for the Brooklyn US attorney’s office declined to comment. [my emphasis]

This is a hugely important report, but it also lets the Barr DOJ off easy. That’s true, first of all, because this is not a foreign lobbying case (this is one of the many reasons I harp on the import of getting the charge right here). DOJ hasn’t struggled to prosecute 951 cases, though at the time prosecutors deferred these charges, Barr was busy letting Mike Flynn blow up the Bijan Kian case, which included both FARA and 951 in the conspiracy charge, along with 951 separately, but which charged only Ekim Alptekin with false statements. Had Mike Flynn held to the terms of his plea agreement, that case likely would have been a far easier guilty verdict.

What happened last year, though, is that after EDNY prosecutors had continued to investigate for a year after discovering that Barrack was in no way the innocent victim of accused foreign agent Rashid Al Malik and were prepared to try to hold Barrack, as well, accountable for a pretty dramatic undisclosed role in setting a pro-UAE foreign policy, Richard Donoghue, faced with evidence that one of Trump’s closest advisors wasn’t telling the truth about why he was doing the things he was doing (or even, that he was doing them), “had misgivings.”

Or maybe he had misgivings about how Trump and Barr would respond if he approved this.

In fact, all this must have happened more than a year ago, because on July 10, 2020, Barr announced he was swapping Donoghue for Seth DuCharme, his DOJ fixer. This CNN report doesn’t explain why this didn’t get charged under DuCharme, but maybe that’s the point.

So Donoghue — or maybe DuCharme — left all the repercussions to US foreign policy of Barrack’s undisclosed actions earlier in the Trump Administration remain in place.

Frankly, it’s not surprising that Donoghue and DuCharme — who were, at the time, also in charge of limiting any damage to Rudy for his undisclosed influence-peddling — didn’t approve this prosecution. That’s their job.

What may be the most interesting detail is that whereas Lisa Monaco approved the raid on Rudy on her first day in office, this prosecution has taken three more months to charge.

This case will sink or swim on the strength of the false statements charges, because if Barrack’s alleged lies in June 2019 were clearcut, when he presumably believed he would be protected by Barr and Trump, then it makes several likely defenses a lot harder to pull off now. It’s possible there’s some complicating factor (again, I think it possible that he told the truth about some of these questions when interviewed by Mueller in December 2017). But if not, then the alleged lies become the building blocks to proving the Foreign Agent charges.

In any case, the alleged false statements charges make the questions about why Barr’s DOJ thought it was okay to keep these secrets all the more important.

Paul Manafort Knew Tom Barrack Was Working with “Our Friends”

As I noted yesterday, Tom Barrack’s (known — there may have been a second) Mueller interview revealed what his indictment didn’t say explicitly: Paul Manafort was working with Barrack on a Trump energy speech at issue in the indictment. That suggests that one thing Manafort did for one of the guys that got him hired (the other was Roger Stone) was to cater campaign policy to him.

The complaint originally charged against alleged Barrack co-conspirator Rashid Al Malik on June 25, 2019 (obtained just five days after the FBI interviewed Barrack on these issues, which — according to the new indictment — would have alerted them that Barrack was trying to hide this relationship) provides more detail on Manafort’s role in that energy speech and other events relating to Barrack’s ties to UAE.

Even before the energy speech, for example, on May 1, 2016 Barrack emailed Manafort from Abu Dhabi where he was meeting with Mohamed bin Zayed.

On or about May 1, 2016, [Barrack] emailed a senior member of the Campaign ([Manafort]): “I am in Abu Dhabi with [MbZ]. Call if u can.” Later that day, [Barrack] emailed [Manafort] with an upbeat assessment of the meeting and mentioned the possibility of a meeting in the United States between the UAE leaders and [Trump].

Once Trump wrapped up his primary win on May 4, Barrack wrote Al Malik and told him to tell MbZ to “Pack his bags,” presumably for a visit to the US to meet with Trump (which may suggest that on this matter, as with the Russian one, Trump’s handlers tried to delay controversial meetings until after he sealed the nomination). Al Malik said that MbZ would meet with the two of them the next month when — he incorrectly anticipated — MbZ would be in the US to meet with Trump. The day Al Malik made that prediction, Barrack, “met with several senior members of the Campaign that same day in New York City.” Given Barrack’s past and future relationship with Jared Kushner, his meetings with people beyond Manafort (if even he met with Manafort) are of interest.

In the complaint, the language on the draft speech is far more detailed than in the indictment, possibly even consistent with Barrack writing the entire first draft of the speech, then sharing it with “him” (the complaint isn’t sure whether that’s a reference to Trump or Manafort).

The next day, May 14, 2016, after Al Malik asked for a specific mention of MbZ in it, Barrack and Manafort discussed whether to keep specific mention of MbZ and a Saudi (probably Mohammed bin Salman) in the speech.

[Barrack] wrote to [Manafort]: “How did you like the energy paper[?] I thought I did a really good job. The only sensitive part is whether you want to name [the senior UAE and KSA government officials] by name. But I think it would be a good idea.” [Manafort] replied: “I left their names in the draft.” [italicized brackets original, the others mine]

Six days later, Manafort wrote back complaining that, “It has become a more political speech but there is reference to working with our allies regarding energy policy.” After reading the “America First” speech as written, Barrack described it as “novice and imbecilic,” then said, “[H]e better figure out a way to get one paragraph to balance foreign-policy concerns for energy dependent allies in the gulf.” Later that day, Manafort wrote Barrack, “Send me an insert that works for our friends. I will push to get it included.” Barrack did send language, to which Manafort responded, “I am working to have paragraph added.”

When Barrack sent Al Malik the speech without the specific mention of MbZ the next day and Al Malik complained that it had been pulled, Barrack explained, “Delicate time. [MbZ] should have come!”

On May 26, Manafort sent Barrack the speech calling it the likely final version, and assuring Barrack that, “It has the language you want.”

To be clear, Manafort has not been charged and there’s no reason to believe he will be. But it shows he both knew what Barrack was up to, and was happy to use his position to facilitate foreign influence peddling.

Paul Manafort Shared the Trump Energy Speech with Tom Barrack

One of the earliest exchanges with the guy described as his handler, Rashid Al Malik, in the indictment against Tom Barrack involved his success at editing a Trump speech otherwise calling for energy independence to include a commitment to “work together with our supportive allies in the Gulf.” Karen DeYoung described the resulting effect as a “jarring” conflict with the rest of the speech.

When, as a candidate, Trump was preparing an early 2016 speech outlining his energy policy, Barrack allegedly prepared a draft for the campaign including a favorable mention of bin Zayed.

The proposal seemed jarring, since the speech was to outline Trump’s plans to build domestic energy production and end oil imports from countries such as the UAE and Saudi Arabia, both leading members of the Organization of the Petroleum Exporting Countries.

When he delivered the address, Trump confusingly followed a vow to “become, and stay, totally independent of any need to import energy from the OPEC cartel” with a promise to “work with our gulf allies to develop a positive energy relationship.”

The indictment doesn’t make clear which “senior member of the Campaign” Barrack worked with to include the language.

But Barrack’s December 12, 2017 interview with Mueller does. Close to the end of a long interview that focused closely on Barrack’s role in getting Manafort the job and his own role leading the Inauguration Committee (in which Barrack focused on his efforts to peddle influence with other countries besides UAE), Barrack described that he worked directly with Manafort on the speech (which makes sense, because he did not yet know Rick Gates).

BARRACK stated he contributed to portions of TRUMP’s energy policy. BARRACK’s idea was to create a broad energy policy. MANAFORT had sent BARRACK a draft of a speech TRUMP was to give on energy. BARRACK made notes on the speech and returned his comments to MANAFORT. BARRACK contended, however, his notes to the speech were ultimately thrown out. BARRACK added during this time the TRUMP campaign’s view on Muslims was challenging. Moreover, the campaign seemed to have a negative view toward Saudi Arabia and other Gulf countries. BARRACK suggested the campaign needed to divide radical Islam from modern Islam. Before providing comments on the draft energy speech back to MANAFORT, BARRACK shared the draft with [line redacted]. BARRACK asked each about the tone and technical aspects of the draft speech. [four lines redacted]

Barrack’s description that he moderated Trump’s anti-Muslim bias is consistent with actions described later in his indictment, including his effort to distinguish Saudi Arabia and UAE from the countries banned by Trump. Depending on what appears behind those redactions, this explanation for his role in the speech might explain an oddity about the indictment.

The discussion of the speech is included in the section titled, “The Defendants’ Actions in the United States as Agents of the United Arab Emirates,” effectively showing evidence to support the charge that Barrack worked as a Foreign Agent for UAE. But the communications surrounding the speech do not appear in the Overt Acts section describing the acts the defendants took as part of a conspiracy. And, as I noted yesterday, while DOJ included the speech in a list of lies Barrack allegedly told the FBI on June 20, 2019 in a detention memo (and vastly overstated the extent of Barrack’s described edits), those lies are not charged as false statements in the indictment.

(1) writing a draft of a speech to be delivered by the Candidate in May 2016; (2) reviewing a PowerPoint presentation to be delivered to senior UAE officials on how to increase the UAE’s influence in the United States with his assistance;

There may be good reason for this. It may well be that Barrack denied any role in editing Trump’s speech in 2019, after Al Malik had been interviewed by Mueller’s team and subsequently fled the country. He certainly downplayed his role in his own interview with Mueller’s team, which took place five months before Al Malik’s own interview. But he did acknowledge that he attempted to draft the speech.

That is, Barrack may have told the truth in December 2017, when the issue was Manafort’s foreign influence-peddling with Russia, but did not in June 2019, when the issue had become his own with UAE.

The “Big Boss” Directing Tom Barrack’s Actions

There’s something almost entirely missing from the Tom Barrack indictment charging him with acting as an Emirate Agent. The money.

The indictment invokes forfeiture law, suggesting that someone profited from all of this or there’s some other loot the government wants to seize (but it lists none specifically; a memo requesting detention until a bail hearing requests that Barrack be made to identify all his financial assets to get bail).

But other than that, the sole mention of money describes that, on July 14, 2016 (months after this relationship started), Barrack pitched a “guidance board” that would tie UAE’s investments with strategic goals.

The presentation proposed the creation of a guidance board “through which all [UAE] investments are intertwined with the strategic vision of the country’s foreign and domestic policies as well as economic goals,” with the guidance board mandating “that all investments in operating companies use the resources at their disposal to influence [UAE’s interests] abroad … and partner with leading [UAE] friendly-influential figures to do so.” The presentation further proposed that the defendant THOMAS JOSEPH BARRACK work directly with Emirati Official 2 to execute the proposed strategy.

Then, months later on December 14, after Trump’s victory, this proposal assumed continued influence over Trump’s actions.

While the primary purpose of the platform [will be] to achieve outsized financial returns, it will also accomplish a secondary mandate to garner political credibility for its contributions to the policies of [Trump] … We will do so by sourcing investing, financing, operationally improving, and harvesting assets in those industries which will benefit most from a [Trump] Presidency.”

This suggests that Barrack and Colony Capital would be expected to direct UAE’s Sovereign Funds in such a way as to implement their policy goals. A 2018 NYT story described how Barrack’s investment firm raised $7 billion in the time after Trump got the nomination, almost a quarter of it from Saudi and Emirate sources — but none of that appears in the indictment.

Mr. Barrack’s company, known as Colony NorthStar since a merger last year, has raised more than $7 billion in investments since Mr. Trump won the nomination, and 24 percent of that money has come from the Persian Gulf — all from either the U.A.E. or Saudi Arabia, according to an executive familiar with the figures.

These financial relationships will face a great deal of scrutiny as this case goes forward because a Foreign Agent cannot be someone “engaged in a legal commercial transaction.” One defense Barrack might try to make is that this was all about obtaining customers for his investment fund. But if no money changed hands, Barrack might suggest he sincerely believed in the import of fostering better ties between the Emirates and the US.

A Foreign Agent, not a lobbyist

Contrary to what you might have read, this is not a FARA case, which is generally treated as a regulation covering certain kinds of lobbying for foreign (including non-governmental, like the political party Paul Manafort hid his work for) entities. Barrack was charged under 18 USC 951, which is about working for a foreign government directly. The statute is sometimes referred to as Espionage Lite, and in this case, the government might believe at least some of the people involved — perhaps Al Malik, who fled the country days after the FBI interviewed him in April 2018 — are spies. By charging 951, though, the government only has to show that the team was ultimately working on orders from government officials without registering, not that someone was secretly reporting to another country’s spying agencies.

And this is pretty clearly about a relationship directly with UAE. In addition to Barrack and his employee Matthew Grimes, the indictment describes a chain of command in which several senior Emirati officials convey requests through Rashid Sultan Rashid Al Malik Alshahhi (referred to as Alshahhi in the indictment and as Al Malik here and elsewhere) to Barrack. On the Emirati side, Emirati Official 1 (EO1), is described as someone who, “held a high-ranking position in its armed forces,” but who, given events described in the indictment, must be Abu Dhabi’s Crown Prince Mohamed bin Zayed. Emirati Official 2 (EO2) is described as a “high-ranking official with responsibilities related to national security,” but appears to be National Security Advisor Tahnoun Bin Zayed. Emirati Official 3 (EO3) is described as a member of UAE’s National Security Council. Their orders often get delivered to Al Malik through Emirati Official 4 (EO4), who is described as a government official who reports to EO 2 and EO3. There’s also a diplomat, Emirati Official 5, who asked Barrack to provide insight into the top national security appointments Trump was planning. Basically, this amounts to MbZ tasking EO4 to instruct Al Malik to provide instructions in turn to Barrack. This structure is important, because it demonstrates that Barrack was being directed directly by the UAE government and, starting in October 2016, directly by MbZ himself.

A secret agent hiding the direct orders he was following

Aside from this reporting structure, two things will help the government make the case that Barrack was working as an Agent of UAE. Officials from the Emirates explicitly said that they wanted to use Barrack to represent their policy interests in the US rather than relying on their ambassador. For example, EO2 explains why he prefers to work through Barrack than UAE’s ambassador because he, “knows ambassadors can’t do much and they are limited even if they’re active.” After Barrack started doing TV appearances where he pitched the UAE, Al Malik told him that EO1 had said, “you are the new trusted friend!” And after Grimes submitted a Barrack op-ed for advance review by Emirate officials, Al Malik responded that, “Big boss loved it.” Then after the op-ed came out (having had a reference to dictatorships that the Emiratis found objectionable removed), Barrack asked through Al Malik “how Boss liked the article?” The indictment further describes how, in December, the Emirates directed Barrack and Grimes to put together a set of plans — “100 days/6 months/year/4 years” — of what they wanted to accomplish along with the Saudis; on that plan Barrack, Al Malik affirmed in Arabic, would “be with the Arabs.” Then, when Al Malik wrote Grimes and suggested the US should list the Muslim Brotherhood as a Foreign Terrorist Organization, Grimes responded, “At your direction.” This is the language of clear direction, channeled right from the top of the UAE government.

And while not required (remember that Maria Butina didn’t really hide what she was up to or even her ties to Aleksander Torshin), the indictment describes several ways that those involved tried to keep this relationship secret. As Barrack shared a Trump speech in advance, he described that it was “Totally Confidential.” In September, just as Barrack would start dealing directly with MbZ and two days before he’d call out MbZ in a Bloomberg interview, the go-betweens instructed Barrack to download the encrypted messaging app that MbZ uses. Barrack seems to have gotten a text directly from MbZ on September 29. And then in October, Grimes arranged to get both Barrack and himself dedicated phones to use to communicate with MbZ and others via the encrypted app.

While not included in the indictment, the detention memo also describes that Barrack downplayed his ties with Al Malik in a filing to the State Department.

Indeed, in June 2017, the defendant completed and submitted paperwork to the U.S. Department of State in connection with his efforts to secure an official position in the Administration. In his submissions, the defendant materially misrepresented his connection to Al Malik, falsely claiming to have had only infrequent contact with Al Malik and further claiming that he did not know Al Malik’s citizenship or whether Al Malik was affiliated with a foreign government, despite describing Al Malik in private communications as the UAE’s “secret weapon.” Further, in his submissions to the U.S. Department of State, the defendant was required to report any occasions when he had been asked to provide advice, serve as a consultant, even informally, or otherwise work on behalf of a foreign government. The defendant failed to disclose his extensive activities on behalf of the UAE.

It’s partly all this secrecy that will help the government prove their case.

But the way the government uses additional charges to show that Barrack tried to hide all this will help. In addition to 951 and Conspiracy to violate 951 charges (the latter of which was likely included because it’s easier to prove and to provide defendants, particularly Grimes, with a charge that has less onerous penalties to plead to), the government charged Barrack with obstruction of justice and four counts of false statements for attempting to lie about this. In a June 20, 2019 interview with the FBI, the indictment alleges that Barrack lied about whether:

  1. Al Malik asked Barrack to do things for UAE
  2. Barrack downloaded an encrypted app to use to communicate with MbZ and other Emirati officials
  3. Barrack set up a meeting between MbZ and Trump and, generally, whether he had a role in facilitating communications between them
  4. He had a role in prepping MbZ for a September 2017 meeting with Trump

Curiously, the detention memo mentions two more lies that aren’t included in the indictment:

(1) writing a draft of a speech to be delivered by the Candidate in May 2016; (2) reviewing a PowerPoint presentation to be delivered to senior UAE officials on how to increase the UAE’s influence in the United States with his assistance;

In any case, this structure makes it easy to hold Barrack accountable at least via his lies to the FBI, and that he allegedly lied is powerful evidence that the full scope of the relationship was meant to be secret.

The key Trump world figures and the black box White House

Over coming days, we’ll learn who all the Trump officials named in the indictment are, but a key, unstated part of it all is Barrack’s success at placing Paul Manafort on Trump’s campaign. The indictment dates Barrack’s role as an “informal” advisor to Trump’s campaign to “approximately April 2016,” one month after Barrack had a key role in installing Manafort on Trump’s campaign.  It describes how Al Malik set up a meeting on April 24, in advance of which Barrack boasted that he had a 30-year relationship with Trump and had “staffed the Campaign.” After a meeting in the Emirates, EO 4 confirmed to Alshahhi that Barrack would be “the only channel” to Trump for UAE. Days later, Barrack sent Alshahhi a draft Trump energy speech and asked for feedback. Ultimately, Barrack succeeded in getting a promise to “work with our Gulf allies” into a May 26 Trump speech.

It’s not really clear with whom Barrack was working on the campaign. The indictment describes that “a senior member of the Campaign” emailed Barrack with a revision of the Energy speech, in response to which, Barrack instructed the “senior member” that they needed “one paragraph to balance foreign-policy concerns for energy dependent allies in the gulf.” ¶22 It’s likely that this is either Manafort himself (who had not yet fully pushed out Corey Lewandowski but was well on his way) or Rick Gates, the latter of whom played a similar role when Roger Stone wanted to script Trump’s foreign policy statements at that stage of the campaign.

Barrack’s role as Chair of Trump’s Inauguration Committee is minimal to the crimes in this indictment (meaning double jeopardy would not prevent him from being charged in that, too). But one paragraph does describe how Barrack agreed when Al Malik offered to “take care of ME side” of the the Inauguration. And the indictment describes that when Al Malik attended the Inauguration, he did so as Barrack’s personal guest.

Similarly, there’s no mention of December and January meetings involving Jared Kushner and others, even though the December 12, 2016 meeting happened right after Barrack was in UAE on December 2.

One thing the indictment may have tried to do is insulate the indictment from any Executive Privilege concerns. Its narrative stops at the White House door. The indictment describes Al Malik asking Grimes to get the Administration to list the Muslim Brotherhood as an FTO and describes a public report shortly thereafter describing that it was under consideration, but it doesn’t describe who or even whether Barrack talked to to make that happen. It describes that Al Malik asked Grimes to set up a phone call between MbZ and Trump, describes Grimes observing that it got set up “right after I spoke to [Barrack] about it,” and quotes Grimes saying, “We can take credit for phone call.” But the overt acts of the indictment don’t actually say whether they deserved credit, or whether someone else had picked up the influence racket. The government must know he did, because they charge him for lying about setting up this meeting but it, by itself, is not an overt act. The day after MbZ met with Trump, Barrack wrote Al Malik describing that he had “lots of info on [the White House] meeting!” without describing Barrack’s source for that information. In an exception that proves the rule, the indictment describes how, as part of an effort to kill plans for a meeting at Camp David to mediate tensions in the Gulf, Barrack left a message with Trump’s Executive Assistant saying he had “something very important to share [using an ellipsis rather than naming Trump or anyone else] about the Middle East,” followed by Al Malik, two days later, offering “very special thanks and appreciations from the big guy.”

In other words, even though two of the charged lies pertain to Barrack’s role in shaping US policy in events that directly involved Trump, and even though comments suggest Barrack successfully interceded, the White House is treated as a black box; no discussions within the White House or between Barrack and Trump appear in the indictment, but they are implied in many places.

Where this came from where it will go

This investigation started well before 2018, because that’s when Al Malik fled the country just days after an FBI interview. That means it could have been a referral from the Mueller investigation (though given that Barrack lives in Los Angeles, it’s not clear why Mueller would have referred it to EDNY rather than CDCA). DOJ conducted other investigations into UAE’s foreign influence peddling there (as well as some investigations into Jared), so it’s possible this arose out of those investigations.

One thing that’s curiously missing from this indictment, though (along with references to the December 2016 or January 2017 meetings) is any reference to George Nader, who also was operating on instructions direct from MbZ and who provided extensive grand jury testimony as part of that investigation. When Nader tried to obtain a copy of his grand jury transcript as part of his defense in other influence peddling crimes in November 2019, it was revealed there were still multiple ongoing investigations referenced in it. There’s good reason to believe that Nader was not entirely forthcoming with Mueller though, in which case DOJ may not want to invoke him at all.

It’s equally interesting where this might go, which is part of the reason I find the different treatment of Candidate Trump from President Trump in the indictment really notable. This is an investigation that Billy Barr didn’t kill and that survived any pardon attempt, which suggests that Barr and Trump didn’t entirely kill all investigations implicating Trump (though the Rudy Giuliani investigation already showed that). But there are a number of things — most notably, the Inauguration — that might be implicated here but really isn’t part of the indictment.

Merrick Garland’s DOJ is not shying away from crimes that directly implicate Donald Trump. But the way they treated the White House as a black box in this indictment suggests significant deference to things Trump did while President.

Update: This Intercept story from June 2019 strongly suggests that this Barrack investigation arose out of the Mueller investigation.

Al-Malik’s name later surfaced in connection with a federal probe into potential illegal donations to Trump’s inaugural fund and a pro-Trump Super PAC by Middle Eastern donors. Al-Malik was interviewed by members of special counsel Robert Mueller’s team and was “cooperating” with prosecutors, his lawyer told The Intercept last year. The New York Times recently reported that investigators are looking into “whether Mr. al-Malik was part of an illegal influence scheme,” although no details of that potential scheme have been made public.

In fact, the U.S. intelligence community has concluded that al-Malik served as a paid intelligence source for the UAE throughout 2017, The Intercept has learned.

[snip]

After he was interviewed as part of the Mueller investigation, al-Malik left Los Angeles, where he’d been based for several years, and went back to the UAE.

And the story describes Al Malik’s handler as the Director of UAE’s National Intelligence Service, Ali al-Shamsi.

Among the Emirati government officials overseeing al-Malik was Ali al-Shamsi, director of the Emirati National Intelligence Service, according to The Intercept’s sources. A source who knows al-Shamsi described him as “more than just a spy. He’s also a discreet messenger” for Mohammed bin Zayed, known as MBZ, and his brother Tahnoun bin Zayed, the UAE’s national security adviser.

This description is perfectly consistent with the description of EO 4 from the indictment.

The Closed Mueller Investigations: Erik Prince Skates on the Seychelles

Fresh off an ex parte hearing, DOJ released a spreadsheet of original Mueller redactions they’re now willing to withdraw (on top of the ones they withdrew after the Roger Stone trial).

There’s a bunch of Internet Research Agency redactions the government has withdrawn I won’t lay out.

More interesting are the select few the government withdrew pertaining to Trump flunkies.

There are three search warrants withdrawn:

  • A warrant for Rob Goldstone’s Facebook account (see footnote 298)
  • A warrant for George Papadopoulos’ Linked In account (see footnote 458)
  • A warrant for Erik Prince’s location data (see footnote 1047)

The only surprising disclosure is the last one. This suggests that any investigation into Prince’s lies about the Seychelles is good and dead.

Then there are the redactions of ongoing and referred investigations DOJ no longer considers secret. Those include:

  • The investigation of Podesta Group, Mercury/Clark & Weinstock, which SDNY closed
  • The references to FTI Consulting in the Greg Craig entry on D-4
  • An investigation into foreign campaign contributions, item 11 on ongoing investigations, which would have been closed by the DC US Attorney, and probably was the Mystery Appellant case.
  • A reference to Left Hand Ventures:
    • Left Hand Enterprises – During the course of the investigation, the Special Counsel’s Office uncovered evidence of potential wire fraud and FECA violations pertaining to Trump Campaign vendor Left Hand Enterprises That evidence was referred to the Public Integrity Section within DOJ’s Criminal Division and the FBI’s Washington Field Office
  • A reference to Rebuilding America Now:
    • Rebuilding America Now – During the course of the investigation, the Special Counsel’s Office uncovered evidence of potential FECA violations and potential kickback schemes pertaining to the Rebuilding America Now PAC That evidence was referred to the Public Integrity Section within DOJ’s Criminal Division and the FBI’s Washington Field Office

Both of the last two involve suspect Paul Manafort graft, including the kickback system by which he was suspected of getting paid.

This seems to suggest the investigation into some of Paul Manafort’s epic graft is also dead.

That means the bulk of the redacted ongoing investigations remain ongoing (or otherwise sensitive — and they could be counterintelligence investigations). They include around 10 referrals — including anything pertaining to Roger Stone (including Jerome Corsi) and the presumed George Nader child porn referral already prosecuted.

Update: Corrected an error to note the closure of item 11, the suspected bribe involving the Mystery Appellant. h/t d

Reggie Walton Seems Interested Revealing Some of Mueller’s Referrals

I made at least one error in this post. I surmised, based on the exemptions DOJ had claimed in a reprocessed version of the Mueller Report released last month, that there might be ongoing investigations into Rudy Giuliani’s grifters reflected in it.

But the sentencing of George Nader a week later reminded me that it cannot be the case that DOJ did a full reprocessing of the Mueller Report. Warrants made it clear that Nader’s prosecution for child porn — which developed into a prosecution for sexually abusing a boy — was a referral from the Mueller team.

Yet the reprocessed Mueller Report continues to redact all the referrals in Appendix D not previously unsealed (that is, all but the Michael Cohen and Greg Craig ones), including one that must be the Nader prosecution, under b7A redactions signaling an ongoing investigation, quite possibly this one.

The Nader referral, because it was prosecuted, should not be redacted under any exemption. Well before this reprocessing, Nader’s prosecution was public (meaning the privacy exemptions are improper), and by the time of this reprocessing, his conviction had been entered, so was no longer ongoing.

The reprocessing did change two Stone-related referrals to the same privacy exemption used for most other referrals — b(6)/b(7)(C-4) instead of b(6)/b(7)(C-3). (These are the newly reprocessed redactions; compare with pages 240-241 of the initial FOIA release.)

The change from C-3 to C-4 signifies that the person involved was only mentioned in the report, but that category is unrelated to whether or not the person remains under a separate investigation. But all referrals still use the b7(A) exemption, even though we know at least one — that of George Nader — is no longer ongoing.

That’s a very complicated way of saying that we can be certain DOJ is claiming some of these referrals are ongoing investigations even though no investigation is ongoing, whether because — like Nader — the investigation has been completed, because the investigation was properly closed, or because Billy Barr intervened and improperly closed them (as might be the case for investigations known to be targeting Erik Prince and Jared Kushner).

And that’s why some filings this week in this lawsuit are so interesting.

A month ago, Judge Reggie Walton, after having reviewed an unredacted copy of the Mueller Report, canceled a public status conference and instead scheduled an ex parte hearing on July 20 at which DOJ would have to answer his questions about the redactions.

Knowing that it would have to answer Walton’s questions, yet claiming to respond to an earlier BuzzFeed/EPIC filing, DOJ offered up that it was preparing to reissue the report in light of the completion of the Roger Stone prosecution. It released that copy — the one that claims at least one investigation that has been completed is ongoing — on June 19.

Which brings us to this week. On Monday, Judge Walton ordered the government to answer questions he raised in an Excel spreadsheet addressing the redactions.

To accord the Department knowledge of the questions that the Court has regarding some of the redactions prior to the ex parte hearing, the Court has prepared an Excel spreadsheet that catalogues these questions, which is attached as Exhibit A to this Order. 1 To the extent that the Department is able to respond to the Court’s questions in writing, it is hereby

ORDERED that, on or before July 14, 2020, at 5:00 p.m., the Department shall file2 under seal its responses to the Court’s questions by completing Column G of Exhibit A. 3

SO ORDERED this 6th day of July, 2020.

1 Exhibit A will be issued under seal and will remain under seal unless otherwise ordered by this Court.

2 The Department shall coordinate with chambers regarding the delivery of a hard copy of its submission.

3 The Court will advise the Department as to whether the Department’s written explanations obviate the need for the ex parte hearing currently scheduled for July 20, 2020.

Judge Walton gave DOJ just over a week to answer the questions.

Yesterday, DOJ asked for more time. DOJ described that they needed to consult with other entities to respond to Walton’s questions, and explained that they had not yet gotten answers from some of the “entities” they needed to hear from.

The Department has been diligently working to comply with the Court’s Order. That work has involved consultations with numerous Department components, including the Office of Information Privacy, the National Security Division, the Federal Bureau of Investigation, and U.S. Attorney’s Offices. However, the Department requires one additional week—until 5:00 PM on July 21, 2020—to coordinate and provide responses to all of the Court’s questions. This additional time is necessary because the majority of Court’s inquiries concerning the redactions require the Department to consult with various entities with equities in the information at issue, both within and outside the Department. The Department has received information from some, but not all, of the entities. Once the Department has completed its consultation with these entities, the Department needs time to compile information received from those entities into a detailed response that addresses all of the Court’s questions. Those entities then need time to review the compiled draft responses before the responses are filed under seal with the Court.2 The Department’s goal with this process is to ensure fulsome responses to the Court’s questions that would obviate the need for a hearing. [my emphasis]

This paragraph is fairly dense, but two things are worth noting. First, after describing “Department components” it would need to consult, the filing then notes that the entities with which DOJ must consult aren’t all inside the Department. This reference may be innocent. After all, any investigations into Russians or other foreigners might implicate foreign intelligence agencies, and Treasury has an ongoing sanctions process working against Oleg Deripaska, another possible referral. So those non-departmental entities could be CIA, NSA, and Treasury, among others.

Or, those non-departmental entities could be the White House.

There has already been abundant evidence that DOJ is consulting with the White House on its response to the BuzzFeed/EPIC FOIA (or at least deferring to their goals), particularly with regards to the 302 releases. Perhaps they’re doing so in the guise of honoring executive privilege claims that Trump never claimed during the investigation. But particularly if this involves hiding details about the investigation into Don Jr and/or Jared, it would be particularly abusive here.

Meanwhile, the reference to US Attorney’s Offices, plural, strongly suggests that these questions get into b7(A) redactions, because the primary reason to need to ask US Attorney’s Offices about these redactions is if they’re investigating or prosecuting cases.

We know of Mueller referrals to, at least, DC, SDNY, and EDVA. The GRU indictment was sent back to WDPA, where it started. And there were reports that investigations into Jared, Tom Barrack, and Elliot Broidy were in EDNY (though it’s unclear which of those, if any, were referrals from Mueller).

That doesn’t necessarily mean these consultations are about unknown referrals. But a footnote to the DOJ filing strongly suggests they are.

2 Although “the question in FOIA cases is typically whether an agency improperly withheld documents at the time that it processed a FOIA request,” in the interest of saving resources and promoting efficiency, if the Department determines during its review that there no longer exists a basis for a redaction, the Department plans to indicate as such in its response to the Court’s questions, withdraw the redaction, and reprocess the Report with the redaction lifted at the appropriate time. ACLU v. Dep’t of Justice, 640 F. App’x 9, 13 (D.C. Cir. 2016) (unpublished); see also Bonner v. Dep’t of State, 928 F.2d 1148, 1152 (D.C. Cir. 1991) (“To require an agency to adjust or modify its FOIA responses based on post-response occurrences could create an endless cycle of judicially mandated reprocessing.”). The Report was originally processed in spring 2019. A basis may no longer exist for a redaction if, for example, material was redacted concerning a prosecution that had been ongoing at the time of the redaction that has now been completed. See Citizens for Responsibility & Ethics in Wash. v. Dep’t of Justice, 746 F.3d 1082, 1097 (D.C. Cir. 2014) (stating that because a “proceeding must remain pending at the time of our decision,” an agency’s “reliance on Exemption 7(A) may become outdated when the proceeding at issue comes to a close”).[my emphasis]

DOJ directly addresses b7(A) redactions, claiming that if the investigation was ongoing when it originally did the FOIA review, it is not in violation of FOIA if it hasn’t since released the information (the filing is silent on the reprocessing done last month).

Mind you, DOJ will argue that all of these redactions are still proper under privacy protections. But on that point, DOJ (and Billy Barr personally) has outright lied publicly, claiming that these redactions only protect tangential third parties and not people like the President’s son or son-in-law.

Having looked at Walton’s questions, DOJ directly addressed redactions that originally protected ongoing investigations and contacted more than one US Attorney’s Office for consultations. That says he may consider ordering DOJ to release information about investigations that were started but did not end in prosecution.

Which makes the delay more interesting. It may be totally innocent, the slow pace of bureaucracy, particularly as offices still recover from COVID shut-downs. But one US Attorney’s Office of interest has undergone a sudden change of leadership between the time Judge Walton asked for this information and the time DOJ will respond. Last night, Billy Barr swapped EDNY US Attorney Richard Donoghue with PDAAG Seth DuCharme. While Barr has shown trust in both (he put Donoghue in charge of reviewing Ukraine related allegations), DuCharme has been one of the people who has orchestrated his efforts to undermine the Russian investigation. Whatever answers DOJ provides to Walton, then, will be answers that Barr’s newly appointed flunky will oversee. That’s by no means the most suspicious part of DuCharme’s appointment, but it is something DuCharme will review in his first week on the job.

DOJ may successfully argue that all of this should remain redacted for privacy reasons. And, with the possible exception of an Erik Prince referral, if they’re disclosed as closed investigations, it would not necessarily indicate whether they were closed through more Barr interference. But it certainly suggests Walton may be thinking that some of this should be public.

Manafort’s Efforts to Insinuate Himself into Trump’s Campaign Earlier Than Previously Known

The Mueller Report describes Trump’s decision to hire Paul Manafort this way.

Manafort served on the Trump Campaign from late March to August 19, 2016. On March 29, 2016, the Campaign announced that Manafort would serve as the Campaign’s “Convention Manager.”871 On May 19, 2016, Manafort was promoted to campaign chairman and chief strategist, and Gates, who had been assisting Manafort on the Campaign, was appointed deputy campaign chairman.872 Thomas Barrack and Roger Stone both recommended Manafort to candidate Trump.873

In early 2016, at Manafort’s request, Barrack suggested to Trump that Manafort join the Campaign to manage the Republican Convention.874 Stone had worked with Manafort from approximately 1980 until the mid-1990s through various consulting and lobbying firms. Manafort met Trump in 1982 when Trump hired the Black, Manafort, Stone and Kelly lobbying firm.875 Over the years, Manafort saw Trump at political and social events in New York City and at Stone’s wedding, and Trump requested VIP status at the 1988 and 1996 Republican conventions worked by Manafort.876

According to Gates, in March 2016, Manafort traveled to Trump’s Mar-a-Lago estate in Florida to meet with Trump. Trump hired him at that time.877 Manafort agreed to work on the Campaign without pay. Manafort had no meaningful income at this point in time, but resuscitating his domestic political campaign career could be financially beneficial in the future. Gates reported that Manafort intended, if Trump won the Presidency, to remain outside the Administration and monetize his relationship with the Administration. 878

Gates’ description for some of this (two of the cited Gates 302s and all of the Manafort ones have not been released yet) is fairly anodyne:

Thomas Barrack and Roger Stone acted as liaisons between Manafort and the Trump Campaign prior to Manafort’s hiring. Trump had just lost the primary in Wisconsin and then won the primary in Louisiana, but the delegates refused to support him. Trump did not understand the mechanics of delegates and the way the system worked. Barrack and Stone had been lobbying for Trump to hire Manafort for some time and it wasn’t until after the Wisconsin and Louisiana primaries that Trump agreed. Barrack was the person who set up Manafort’s first meeting with Trump, Hicks and Lewandowski in Mar a Lago.

The bolded footnotes in the Mueller passage above derive, at least in part, from Tom Barrack’s 302, which was released yesterday.

That 302 describes the background in more interesting fashion:

In January 2016, knowing of BARRACK’s close association with then U.S. Presidential candidate TRUMP, MANAFORT asked BARRACK to intervene on his behalf to become the convention manager for the TRUMP Presidential Campaign. BARRACK initially thought this was MANAFORT being MANAFORT. In other words, BARRACK described MANAFORT as an opportunist. MANAFORT was a good political strategist and had good ideas. But MANAFORT’s relationship with [redacted] would make it difficult for BARRACK to intervene on his behalf. BARRACK stated MANAFORT’s biggest impediment to joining the campaign was [redacted] who BARRACK described as someone with brilliance and bizarreness all wrapped up into one. Nonetheless, BARRACK met MANAFORT for coffee in Los Angeles, California to discuss the concept. MANAFORT told him TRUMP needed help and MANAFORT was the person who could help TRUMP. At this coffee meeting, MANAFORT also asked BARRACK whether he could do him a favor and give [redacted] a job interview with BARRACK’s company.

BARRACK eventually approached TRUMP with the idea of MANAFORT helping the Presidential campaign but TRUMP dismissed the idea because of MANAFORT’s connection to [redacted]

MANAFORT followed up their coffee meeting with a briefing paper about why the Republican Convention and its delegates were so important to the TRUMP campaign. In February or the beginning of March 2016, BARRACK again approached TRUMP about MANAFORT’s involvement with the Convention, which TRUMP eventually agreed. MANAFORT stated he did not need to be paid by the campaign for his work on the convention, which TRUMP liked because he was paying for the campaign out of his own pocket.

[snip]

BARRACK stated the TRUMP campaign did not conduct any due diligence into MANAFORT’s background before bringing him on to be the Convention Manager. BARRACK described the campaign at the time as amateur, which is why bringing on an experienced political professional like MANAFORT was important. BARRACK also stated STONE, who had a continuing and intermittent relationship with TRUMP, weight in on supporting MANAFORT as the Convention Manager.

Those redactions in bold appear to be 5-characters long, so could well be Stone. The convention in 302s is to introduce someone’s full name then include it in parentheses, but Stone would have been introduced pages earlier when Barrack described meeting Manafort’s business partners from when Stone was a named partner. As noted, Stone shows up a paragraph later in the 302 in the same kind of context.

Whoever it is, the exemptions in that paragraph include b7A, ongoing investigation.

Whoever the redacted name, that Manafort was affirmatively asking for the Convention Manager job as soon as January is of particular interest. That’s when DOJ opened the money laundering investigation into Manafort, after all. That was after the time when Felix Sater was pitching the Trump Tower deal.

And significantly, it raised the stakes on Trump’s failure to manage his delegates before Manafort came in, something that Manafort buddy Roger Stone was closely involved with in his initial Stop the Steal effort. It also makes Manafort’s second offer — to work for free — appear even more desperate (though he was financially desperate at the time).

Update: Added the follow-on language referencing Stone.

“Project Rasputin:” The Michael Caputo Interview

Yesterday, the government released another tranche of 302s in response to the BuzzFeed/CNN FOIA. There are actually a slew of interesting interviews.

One of those is Michael Caputo’s. Remember, in addition to having a background in and ongoing ties with Russia (which may have unfairly led to more scrutiny of him than others in the early days of the congressional investigations), he’s very close to Roger Stone. Shortly after Stone was indicted, the government put together a sealed list of witnesses with whom Stone could not have contact, and Caputo learned he was on it. After Stone’s guilty verdict, Caputo wrote Judge Amy Berman Jackson to request that she lift the gag so they could spend time over Christmas together.

Mr. Stone and I have been close friends since 1986. We work together, we dine together, our families share holidays together. I still do not fully understand why this order was entered — I was never a witness in his case and I had never testified before the grand jury — but I respected your order. Even as I attended his recent trial, we did not communicate. Mr. Stone has been especially obedient in this matter and I do not wish to disrupt his commitment to staying within the letter and spirit of your order.

But it’s Christmas, Judge, and our family wants to spend time with his. I also want his wife and children to know they can count on us to assist them through this difficult time, and that we’ll always be there to help them. I want them to know this now.

ABJ never responded to Caputo, and given that yesterday she invited prosecutors to complain about Stone’s violations of her gag in the weekend after his guilty verdict, I suspect she’s less convinced than Caputo is that Stone abided by her gag order.

MINUTE ORDER as to ROGER J. STONE, JR. The parties are directed to include in their sentencing memoranda any arguments they wish to make concerning the defendant’s compliance with the Court’s media communications orders 36 149 and conditions of release as modified on February 21, 2019 and July 16, 2019, including, in particular, his compliance during the trial, and on or about November 13-15, 2019. SO ORDERED.

Caputo’s interview is all the more interesting given that he gave among the most detailed descriptions of his testimony of any witness the day he testified back in 2018.

Caputo described that the Mueller investigators knew more about the Trump campaign than anyone who ever worked there.

After being interviewed by special counsel investigators on Wednesday, former aide to Donald Trump’s presidential campaign Michael Caputo told CNN that Robert Mueller’s team is “focused on Russia collusion.”

“It’s clear they are still really focused on Russia collusion,” Caputo said, adding, “They know more about the Trump campaign than anyone who ever worked there.”

[snip]

“The Senate and the House are net fishing,” Caputo said. “The special counsel is spearfishing. They know what they are aiming at and are deadly accurate.”

In other words, hours after Caputo finished testifying, he went to CNN to alert everyone, including (presumably) Stone that Mueller knew of things they were otherwise not telling.

The 302 describes that Caputo started the interview by noting that he had prepared a binder of notes and documents for the Senate Intelligence Committee interview he had the day before. Particularly given Caputo’s response after his testimony, that’s significant because multiple SSCI witnesses put together carefully massaged stories to tell less damning stories. Caputo obviously missed some things.

From the 302, it appears Caputo was asked (of Mueller’s prosecutors, just Aaron Zelinsky attended this interview) a general question from the start: what his official and unofficial role in the 2016 election was. He was hired by longtime Roger Stone friend Paul Manafort.

After Donald J. Trump (Trump) won the primary, Caputo was invited to join the Trump Campaign by Paul Manafort. A meeting was held at Trump Tower on 04/25/2016 to discuss the opportunity. After the meeting, Caputo served as a senior advisor to the Trump Campaign in charge of communications for the candidate in New York until his resignation on 06/20/2016.

Note that Manafort was not yet campaign manager when Caputo was hired, and his Convention Manager job at the time had little to do with the daily talking points that it sounds like Caputo spent his time doing. So his hiring is fairly curious. There are other 302s where references to what is probably Caputo — and his June resignation — are redacted.

After Caputo resigned, he worked for Tom Barrack, fundraising. It’s clear he emphasized he only raised money from American donors. Barrack’s 302 was also released yesterday; we know the government still has questions about whether that American donor claim is true.

Relatively early on, there is a 5-paragraph redacted discussion preceded by Caputo’s comment that,

Regarding the pursuit of Hillary Clinton’s missing 33,000 emails, Caputo thought it implausible to think that wasn’t happening.

The passage ends with Caputo saying he wasn’t involved in such activities and denying that he heard any discussion of WikiLeaks or Julian Assange.

Caputo said there was no coordination on his part on those types of activities. Additionally, Caputo did not recall hacking and/or Assange being a topic of conversation at the 2016 Republican National Convention. Caputo initially said Stone never mentioned WikiLeaks or Julian Assange, however, Caputo later modified this statement as documented below.

That was his second denial that he had made about WikiLeaks thus far into his interview. That comment is followed by four redacted paragraphs. There’s also a later 12-paragraph section that is entirely redacted, which immediately precedes questions about DC Leaks. Both those of those passages, plus the 5-paragraph redaction noted above, are redacted under B6, B7C, and B7A exemptions. The first two exemptions are for privacy, and are very common. But the B7A exemption reflects an ongoing investigation. This formula is particularly interesting given that up until now, everything Stone related has been redacted under B7ABC exemptions tied to ABJ’s gag.

In other words, just days before Stone and prosecutors will submit their sentencing memoranda, DOJ is still redacting things relating to Stone because of an ongoing investigation.

The balance of the 302 discusses Sergei Millian and Caputo’s ties to Russia and includes a redacted list of the people he told he had an interview with Mueller (also protected under b7A).

Finally, the interview includes Caputo’s explanation for the Henry Greenberg story, which WaPo first reported this way, based in part on Stone’s version of events

One day in late May 2016, Roger Stone — the political dark sorcerer and longtime confidant of Donald Trump — slipped into his Jaguar and headed out to meet a man with a “Make America Great Again” hat and a viscous Russian accent.

The man, who called himself Henry Greenberg, offered damaging information about Hillary Clinton, Trump’s presumptive Democratic opponent in the upcoming presidential election, according to Stone, who spoke about the previously unreported incident in interviews with The Washington Post. Greenberg, who did not reveal the information he claimed to possess, wanted Trump to pay $2 million for the political dirt, Stone said.

“You don’t understand Donald Trump,” Stone recalled saying before rejecting the offer at a restaurant in the Russian-expat magnet of Sunny Isles, Fla. “He doesn’t pay for anything.”

Later, Stone got a text message from Michael Caputo, a Trump campaign communications official who’d arranged the meeting after Greenberg had approached Caputo’s Russian-immigrant business partner.

“How crazy is the Russian?” Caputo wrote, according to a text message reviewed by The Post. Noting that Greenberg wanted “big” money, Stone replied, “waste of time.”

Two years later, the brief sit-down in Florida has resurfaced as part of special counsel Robert S. Mueller III’s sprawling investigation of Russian interference in the 2016 presidential campaign, according to Caputo. Caputo said he was asked about the meeting by prosecutors during a sometimes-heated questioning session last month.

Stone and Caputo, who did not previously disclose the meeting to congressional investigators, now say they believe they were the targets of a setup by U.S. law enforcement officials hostile to Trump.

As noted, the story deserves particular attention given that both Stone and Caputo failed to disclose this to the Intelligence Committees (though both sent revisions admitting to it after Caputo’s testimony, which distinguishes it from Stone’s lies about having a back channel to WikiLeaks).

When Zelinsky originally asked Caputo, generally, about any “connection to Russians and/or Russian nationals during the campaign” — the same question that had been asked by the Intelligence Committees — he claimed “this event occurred after his involvement with the campaign,” the same kind of story that George Papadopoulos told to separate a possible Russian dangle, temporally, from involvement in the campaign. But then he admitted it happened in May, before he resigned.

It’s clear Caputo offered a bunch of stories for why he believed this guy was Russian, which seems like an effort to minimize what he had learned before the event:

  • He assumed he was a Russian US citizen of Russian descent (meaning, not an immigrant)
  • He had an accent
  • His close friend [redacted] had made this assertion

Caputo revealed that he met Greenberg again on January 5, 2017 at a cancer research fundraiser he ran and claims Greenberg told him at that time he was a US citizen.

Caputo also dodged when asked why he referred this information to Stone.

Caputo didn’t recall why he sent Greenberg to Stone, but thought it was probably because [redacted] and was involved in opposition research for years. Caputo typically didn’t like relaying this type of opposition research material, and was not likely to give it to anyone at Trump Tower.

In other words, after unsuccessfully attempting to distance the event from the campaign temporally, he tried to do so ethically, suggesting he would never share this with the actual campaign, just with his rat-fucker buddy.

Perhaps the most interesting line in his description of Henry Greenberg, however, distinguished that Russian tie he tried to hide from something called “Project Rasputin.”

“Project Rasputin” was mutually exclusive from anything having to do with Greenberg.

That reference to a heretofore unidentified project immediately precedes yet another paragraph redacted because of an ongoing investigation. And there’s one more ongoing investigation paragraph before that passage ends with Caputo’s explanation about how Stone might be easily duped by Russians.

Caputo advised he lived in Russia for approximately seven years, thereby having more experience with Russian than Stone.

Michael Caputo doesn’t understand why ABJ still won’t let him talk to Stone. The redactions in his 302 appear to provide some hint.

The Timing of the Inauguration Subpoena

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

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

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

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

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

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

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

[snip]

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

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

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

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

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

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

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