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EDNY Accuses Tom Barrack of “Harvesting Assets” by Crafting Policy to Help UAE in a Trump Presidency

DOJ has superseded Tom Barrack’s indictment. It did not charge any of his not-yet charged co-conspirators, though it added language pertaining to Paul Manafort’s role, making him US Person 1 and demoting Steve Bannon to US Person 2. Two new paragraphs about Manafort’s role describe him crafting Trump’s platform to take out a promise to release 28 pages of the 9/11 Report implicating the Saudis.

The big addition to the indictment, however, focuses on Barrack’s payoff: investment by UAE’s Sovereign Wealth Fund in Colony Capital (remember, Colony is paying for Barrack’s defense). In the two years after Barrack helped UAE craft Trump’s policies, Colony got commitments for $374 million in investments from the SWF.

According to records maintained by Company A, Company A raised no new capital from United Arab Emirates sovereign wealth funds between 2009 and 2016. However, in2017 and 2018, in part as a result of the efforts of the defendants THOMAS JOSEPH BARRACK and MATTHEW GRIMES and the assistance of the defendant RASHID SULTAN RASHID AL MALIK ALSHAHHI and United Arab Emirates officials, Company A raised approximately $374 million in capital commitments from United Arab Emirates sovereign wealth funds.

The superseding indictment describes how Colony set up a fund with the intent of “harvesting assets” that will benefit from a Trump presidency, garnering political credibility by contributing to Trump’s policies.

On or about December 13,2016, the defendant MATTHEW GRIMES emailed himself a document summarizing the structure of the proposed investment fund, which stated in relevant part that “[w]hile the primary purpose of the [investment fund] [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 [the President-Elect]. . . . We will do so by sourcing investing, financing, operationally improving, and harvesting assets in . . . those industries which will benefit most from a [President-Elect] Presidency.” [my emphasis]

There are no charges tied to “harvesting” the Trump policies that Barrack would push (though it makes the forfeiture allegations far meatier). It does, however, make it clear that’s what the Trump presidency was about: selling policy to rich autocrats around the world.

And particularly given the way Barrack ensured that Mohammed bin Salman would be treated as if he were already Crown Prince by the Trump administration, it makes Jared Kushner’s similar “harvesting” of Trump policies look all the more suspect.

DOJ Claims a Key Witness against Tom Barrack Was Being Paid $15,000 a Month as Part of His Defense Team

With the exception of the epic conflicts that Jan 6 lawyer John Pierce has accumulated by representing dozens of Jan 6 defendants, most of the conflicts that come up in prosecutions are waivable. Prosecutors ask the defendant to be alerted to the conflict to ensure it doesn’t provide a way for the defendant to blow up the case later. Or, in the case of John Durham, he uses claimed conflicts to float a bunch of conspiracy theories that elicit death threats.

But a conflict notice in Tom Barrack’s case is something else. EDNY explains, first of all, that Colony Capital is paying for Barrack’s defense as part of an employment agreement finalized in October. That part is another waivable conflict, not that surprising.

Where things get more interesting, EDNY reveals that Barrack’s former Executive Secretary, who played a key role in some of the charged conduct, and who provided materials to the government in the period leading up to the June 2019 interview where (EDNY alleges) Barrack lied to cover up his relationship with the Emirates, was on the payroll of his defense team until April 29. She was being paid $15,000 a month.

For example, the Witness played a role with Barrack in the planning and execution of the Presidential Inauguration of President Trump, including an event (the Chairman’s Global Dinner) that is specifically mentioned in the Indictment. The Witness also assisted Barrack in the preparation of materials submitted as part of his background investigation when Barrack was being considered for a potential appointment in the Trump Administration during the relevant time period. The government anticipates that these events and materials will be presented to the jury at trial.

Prior to the unsealing of the Indictment in this case, an attorney at Paul Hastings LLP (and one of Barrack’s attorneys at that time) (the “Paul Hastings Attorney”), advised the government that he also represented the Witness, and requested the opportunity to voluntarily provide certain requested materials to the government. On or about May 2, 2019, the Paul Hastings Attorney produced records to the government, and in a letter indicated that the Witness was his “client,” though in the same letter, he also indicated that he was “Counsel to Thomas J. Barrack, Jr.” It is the government’s understanding that the Paul Hastings Attorney’s representation of the Witness was paid for by Barrack.

On or about July 16, 2021, the Indictment in this matter was unsealed and Barrack was arrested. Several weeks later, in early August 2021, Barrack’s then-counsel, Paul Hastings LLP (who, as noted above, also represented the Witness in this investigation), hired the Witness as a litigation consultant. 3 Paul Hastings hired the Witness as a litigation consultant notwithstanding that the Witness has no legal education, is not a lawyer, and has never previously worked as a litigation consultant. When [O’Melveny & Myers] became the defendant’s counsel, OMM also hired the Witness as a litigation consultant. It is the government’s understanding that the Witness was paid approximately $15,000 a month for the Witness’ services and that the only matter the Witness was working on for OMM is the instant case. OMM has included the payments for the Witness in invoices submitted to Company A as legal costs. Company A raised concerns to OMM about whether the Witness’ costs were reasonable and appropriate under the terms of the Advanced Fees Agreement but ultimately, after speaking with OMM, agreed to pay the Witness’ costs. OMM first advised the government that it had retained the Witness as a litigation consultant on or about March 31, 2022, a few days prior to a scheduled interview of the Witness by the government.

2 A potential conflict already compounded by the fact that Company A is a current client of OMM.

3 The Witness was no longer working with Barrack or at his company by this time, and instead was working at an unrelated business venture.

Particularly given that Barrack’s lawyer involved this person in an effort to stave off indictment in 2019 that the government claims was an attempt to obstruct the investigation, I’m wonder what she was being paid $15,000 a month to not remember … and whether that will change now that Colony has stopped paying those bills?

Update:  Pronoun changed per John Paul Jones’ note of the footnote referring to the person as “her.”

The timing of this all suggests what kind of more valuable information this witness might have. EDNY says OMM first told them she was part of the defense team on March 31, days before EDNY was to interview her.

Ten days earlier, OMM had included this question in an agenda for a status hearing on March 22:

Defense counsel respectfully request that the Court inquire of the government whether it presently intends to present a superseding indictment to the grand jury before trial and if so, any information the government can provide as to the timing of the superseder.

The answer EDNY provided was yes, they reserve the right to supersede the indictment and it might happen in June. Then on April 5, EDNY responded to a bunch of Barrack’s complaints about discovery by suggesting that several of Barrack’s not-yet charged co-conspirators (Bannon is the most obvious) might still be charged.

Additionally, the investigation related to this case is ongoing (we note that one of the charged defendants is a fugitive and the indictment alleges conduct by several unindicted co-conspirators).

In other words, at around the time that EDNY would have been arranging an interview with the former Executive Secretary as part of an investigation into Barrack’s not-yet charged co-conspirators, OMM figured out that EDNY might supersede this indictment.

Which is probably one of the reasons they were paying her $15,000 a month to consult on this case: to find out whether EDNY was onto other, more damning Barrack actions. Money well spent!

Meanwhile, somewhere along the way, Colony Capitol — which is itself represented by OMM — balked at paying $15,000 for her costs, but kept paying anyway.

A month after informing EDNY that she worked for them, on April 29 (so about two weeks ago) OMM told EDNY that she no longer does.

Presumably, whatever “cooperation” she gave to EDNY in 2019 was a limited hangout, designed to protect more damaging information. That information is probably related to the substance of the crimes that EDNY was investigating when they tried to get her interview in March.

Hillary Clinton’s Devious Plot to Get Oleg Deripaska to Install Paul Manafort as Trump’s Campaign Manager

Out of curiosity and a good deal of masochism, I listened to the latest podcast of “The Corner,” the frothy right wingers who spend their time spinning conspiracy theories about the Durham investigation.

It was painful.

At every step, these men simply assert evidence must exist — like a Democratic order to bring dirt to the FBI — for which there’s no evidence. They ignore really basic facts, such as that Sussmann was necessarily working with the FBI because his client was being systematically hacked, and therefore it wasn’t just Christopher Steele who had ongoing ties to the Bureau. They make a huge deal about the fact that the US government’s Russian experts know each other, and that Christopher Steele persistently reported on topics — like Rosneft — that really were and are important to British and US national security and on which he had legitimate expertise.

They’re already starting to make excuses for Durham (such as that Durham chose not to obtain privileged emails the same way Mueller and SDNY did, without noting that Mueller had probable cause of a crime, which Durham admits he does not, much less that Mueller got them in a different way and a different time then they believe he did).

They keep making much of the coincidence of key dates in 2016 — “We continue to have a very, very tight timeline that that accelerates” — but never mention either the WikiLeaks dump of the DNC emails or Trump’s request that Russia hack Hillary some more, a request that was followed closely by a new wave of attacks. Those two events in July 2016 explain most of the actions Democrats took in that period, and these men don’t even exhibit awareness (or perhaps the belief?) that the events happened.

Worse still, they are ignorant of, or misrepresent, key details.

For example, all but Hans Mahncke assert that John Brennan must have been acting on some kind of corrupt intelligence in July 2016, rather than real intelligence collected from real Russian sources. They do so even though Billy Barr described in his book bitching at Trump after Trump complained that Durham found that, “the CIA stayed in its lane in the run-up to the [2016] election.”

Emblematic of the fraying relationship between the President and me was a sharp exchange at the end of the summer in the Oval Office. To give the President credit, he never asked about the substance of the investigation but just asked pointedly when there might be some sign of progress. On this occasion, we had met on something else, but at the end he complained that the investigation had been dragging on a long time. I explained that Durham did not get the Horowitz report until the end of 2019, and up till then had been look- ing at questions, like any possible CIA role, that had to be run down but did not pan out.

“What do you mean, they didn’t pan out?” the President snapped.

“As far as we can tell, the CIA stayed in its lane in the run-up to the election,” I said.

The President bristled. “You buy that bullshit, Bill?” he snarled. “Everyone knows Brennan was right in the middle of this.”

I lost it and answered in a sarcastic tone. “Well, if you know what happened, Mr. President, I am all ears. Maybe we are wasting time do- ing an investigation. Maybe all the armchair quarterbacks telling you they have all the evidence can come in and enlighten us.”

Durham looked for this evidence for years. It’s not there (and therefore the intelligence Brennan viewed is something other than the dossier or even the Russian intelligence product that the frothers also spin conspiracies on).

All but Fool Nelson misrepresent a July 26, 2016 email from Peter Fritsch to WSJ reporter Jay Solomon, which says, “call adam schiff, or difi for that matter. i bet they are concerned about what page was doing other than giving a speech over 3 days in moscow,” suggesting that that must be proof the top Democrats on the Intelligence Committees had the Steele dossier, rather than proof that it was a concern to see an advisor to a Presidential campaign traveling to Russian and saying the things Page was saying. (Jeff Carlson makes the same complaint about former Ambassador to Russia Michael McFaul’s observations about something that all experienced Russia watchers believed was alarming in real time.)

They get the evidence against Carter Page wrong, among other ways by misstating that all his time in Moscow had been accounted for and that the rumor he met with Igor Sechin was ever entirely debunked. “Of course it’s impossible. He was chaperoned. He had a hotel. He had a driver. Without people noticing.” For example, the son of the guy who brought Page to Russia, Yuval Weber, told the FBI that they weren’t with Page 100% of the time and there was a rumor that he had met with Sechin.

In July, when Page had traveled to give the commencement speech at NES, Weber recalled that it was rumored in Moscow that Page met with Igor Sechin. Weber said that Moscow is filled with gossip and people in Moscow were interested in Page being there. It was known that a campaign official was there.

Page may have briefly met with Arkady Dvorkovich at the commencement speech, considering Dvorkovich was on the board at NES. But Weber was not aware of any special meeting.

[redacted] was not with Page 100% of the time, he met him for dinner, attended the first public presentation, but missed the commencement speech. They had a few other interactions. Page was very busy on this trip.

This testimony was consistent with Mueller’s conclusion about Page’s trip: given boasts he made to the campaign, “Page’s activities in Russia — as described in his emails with the Campaign — were not fully explained.”

They badly misrepresent emails between a handful of journalists and Fusion GPS, spinning real skepticism exhibited by journalists as journalists somehow conspiring with Fusion. Indeed, they repeatedly point to an email from WaPo’s Tom Hamburger pushing back on the Sechin claim, “That Page met with Sechin or Ivanov. ‘Its bullshit. Impossible,’ said one of our Moscow sources.” They claim that Hamburger nevertheless reported the story after that. They’re probably thinking of this story, which reported Page’s 2014 pro-Sechin comments, not that he had met with the man in 2016.

After the Obama administration added Rosneft Chairman Igor Sechin to its sanctions list in 2014, limiting Sechin’s ability to travel to the United States or do business with U.S. firms, Page praised the former deputy prime minister, considered one of Putin’s closest allies over the past 25 years. “Sechin has done more to advance U.S.-Russian relations than any individual in or out of government from either side of the Atlantic over the past decade,” Page wrote.

In other words, they’re claiming journalists doing actual journalism and not reporting what Fusion fed them is somehow corrupt, when it is instead an example, among many, of failed attempts by Fusion to get journalists to run with their tips.

They complain that Fusion was pointing journalists to Felix Sater, in spite of the fact that Sater really was central to tying Trump Organization to Russian funding and really did pitch an impossibly lucrative real estate deal in the year before the campaign that involved secret communications with the Kremlin and sanctioned banks and a former GRU officer, a deal that Michael Cohen and Trump affirmatively lied to cover up for years.

They grossly misrepresent a long text to Peter Strzok reflecting someone else’s early inquiries on the DNS allegation to Cendyn, imagining (the redaction notwithstanding) that it reflects the FBI concluding already at that point that there was nothing to the DNS allegations and not that the FBI inquiry instead explains why Trump changed its own DNS records shortly thereafter (addressing one but not both of the questions raised by NYT reporting).

Obviously, none of them seem interested in the nearly-contemporaneous text from Strzok noting that “Russians back on DNC,” presumably reflecting knowledge of the serial Russian effort to steal Hillary’s analytics stored on an AWS server, a hack that — because it involved an AWS server, not a DNC-owned one — not only defies all the favorite right wing claims about what went into the Russian attribution, but also explains why Sussmann would be so concerned about seeming evidence of ongoing covert communication between Trump and a Russian bank. The Russians kept hacking, both in response to Trump’s request in July, and in the days before and after Sussmann met with James Baker in September.

Crazier still, none of these men seem to have any understanding of two details of the back-and-forth between Sussmann, the FBI, and NYT, one that is utterly central to the case against Sussmann. They conflate a request FBI made to NYT days after Sussmann’s meeting with the FBI to kill the story — one made with the assent of Sussmann and Rodney Joffe — with later follow-up reporting by the NYT reporting that the FBI had not substantiated the DNS allegation. Those were at least two separate calls! Durham had chased down none of them before he indicted Sussmann. It wasn’t until almost six months after charging Sussmann that Durham corroborated Sussmann’s HPSCI testimony that Sussmann and Joffe agreed to help kill the initial NYT story, which provides a lot of weight to Sussmann’s explanation for his meeting with James Baker, that he wanted to give the FBI an opportunity to investigate the allegation before the press reported on it. As a result, Mahncke states as fact that Sussmann’s September 18 text telling Baker, “I’m coming on my own – not on behalf of a client or company – want to help the Bureau,” (even ignoring the temporal problem it creates for Durham’s charge) proves Sussmann lied, when in fact, his and Joffe’s efforts to help the Bureau kill the story strongly supports Sussmann’s public story.

If you don’t know that Sussmann and Joffe helped the FBI to kill what would have been a damning story about Trump, you’re not assessing the actual evidence against Sussmann as opposed to Durham’s conspiracy theories.

All that said, laying out all the ways the supposed experts on the frothy right prove they’re unfamiliar with the most basic details about events in 2016 and since is not why I wrote this post.

I wrote this post because of the way Fool attempted to explain away the inconvenience of Paul Manafort to his narrative. Fool went on at length showing how (a possible Russian fabrication claiming) Hillary’s plan to focus on Trump’s ties to Russia must have predicated an investigation that started before that point. He ignored, entirely, that an FBI investigation had already been opened on Page by then (and all four frothers ignore that Fusion started focusing on Page when Paul Singer was footing the bill). But Fool does acknowledge that the money laundering investigation into Manafort had already been opened before Crossfire Hurricane started. He treats Manafort’s very real corrupt ties to Putin-backed oligarchs as a lucky break for what he imagines to be Hillary’s concocted claims, and not a fact that Trump ignored when he hired the man to work for him “for free.” “Luckily, I don’t know if this was a coincidence or not, Manafort joined the Trump campaign and that gave them a reason to look deeper.” In other words, Fool suggests Manafort’s hiring might be part of Hillary’s devious plot, and not the devious plot of Oleg Deripaska to get an entrée to Trump’s campaign or the devious alleged plot of Mohammed bin Zayed to direct Trump policy through Tom Barrack.

Because I expect the circumstances of Manafort’s hiring may become newsworthy again in the near future and because Deripaska was pushing an FBI investigation into Manafort before Hillary was, I wanted to correct this detail.

According to Gates, the effort to install Manafort as campaign manager started earlier than most people realize, in January 2016, not March.

In January 2016, Gates was working mostly on [redacted] film project. Gates was also doing some work on films with [redacted] looking for new DMP clients, and helping Manafort pull material together to pitch Donald Trump on becoming campaign manager. Roger Stone and Tom Barrack were acting as liaisons between Manafort and Trump in an effort to get Manafort hired by the campaign. Barrack had a good relationship with Ivanka Trump.

Tom Barrack described to Mueller how Manafort asked for his help getting hired on Trump’s campaign in that same month, January 2016.

But Manafort may have started on this plan even before January 2016. Sam Patten told SSCI Kilimnik knew of the plan in advance. Patten’s explanation of his involvement in the Mueller investigation describes Ukrainian Oligarch Serhiy Lyovochkin asking him about it in late 2015.

In late 2015, Lyovochkin asked me whether it was true that Trump was going to hire Manafort to run his campaign. Just as I told Pinchuk that Putin’s perception of America’s capabilities was ridiculous, I told Lyovochkin that was an absurd notion; that Trump would have to be nuts to do such a thing.

In any case, even before his hiring was public, on March 20, Manafort wrote his Ukrainian and Russian backers to let them know he had installed himself with the Trump campaign. He sent one of those letters to Oleg Deripaska, purportedly as a way to get the lawsuit Deripaska had filed against Manafort dropped.

Gates was shown an email between Gates and Kilimnik dated March 20, 2016 and four letters which were attached to this email. Gates stated he was the person who drafted the letters on Manafort’s behalf. Manafort reviewed and approved the letters.

Manafort wanted Gates to draft letters announcing he had joined the Trump Campaign. Manafort thought the letters would help DMP get paid by OB and possibly help confirm that Deripaska had dropped his lawsuit against Manafort. Manafort wanted Kilimnik to let Deripaska know he had been hired by Trump and he needed to make sure there were not lawsuits against him.

Gates was asked why Manafort could not have employed counsel to find out of the Deripaska lawsuit had been dropped. Gates stated Manafort wanted to send Deripaska a personal note and to get a direct answer from Deripaska. Gates also thought this letter was a bit of “bravado on Manafort’s part.”

Gates was asked if the purpose of the letter to Deripaska was to determine if the lawsuit had been dropped, why didn’t the letter mention the lawsuit. Gates stated that Manafort did not want to put anything about the lawsuit in writing.

This explanation, true or not (and it’s pretty clear the FBI didn’t believe it), is critical to the frothers because even before Christopher Steele started collecting information on Trump, he was collecting information on Manafort at the behest of Deripaska in conjunction with this lawsuit. And Steele was feeding DOJ tips about Deripaska’s lawsuit before he started feeding the FBI dirt paid for by Hillary’s campaign. The first meeting at which Steele shared dossier information with Bruce Ohr, for example, Steele also pushed the Deripaska lawsuit, and not for the first time.

Either the Deripaska lawsuit was a cover story Manafort used consistently for years (including through his “cooperation” with Mueller in 2018), or it was real. Whichever it was, it bespeaks some kind of involvement by Deripaska long before Hillary got involved. Viewed from that perspective, the dossier (and Deripaska’s presumed success at filling it with disinformation) was just part of a brutal double game that Deripaska was playing with Manafort, one that led Manafort to share campaign strategy and participate in carving up Ukraine, another event the frothers are trying to blame on the ever-devious Hillary. Whichever it is, the process by which a bunch of Putin allies in Ukraine knew Trump was going to hire Manafort before Trump did is a big part of the story.

But according to the frothers, Hillary Clinton is just that devious that she orchestrated all of this.

John Durham Continues to Hide How Michael Sussmann Helped Kill the NYT Story

The two sides in the Michael Sussmann case have submitted their responses to motions in limine.  They include:

I’m not going to do a detailed analysis of the merit of these arguments here. The filings make it clear that, unless Durham accidentally turns this into a trial about Donald Trump’s numerous back channels to Russia, the trial will focus on the meanings of “benefit” and “on behalf of.” The entire record makes it clear Sussmann understood he was representing Rodney Joffe but that he was not asking for any benefit for Joffe, and as such said he was not there on behalf of a client. Because Durham doesn’t believe that Russia was a real threat even to Donald Trump, he doesn’t believe that such a tip could benefit the country, and so sees such a tip exclusively as a political mission. As I’ll show, the YotaPhone allegation–which Durham has recently turned to as his smoking gun–in fact undermines Durham’s argument on that point (which is probably why Sussmann has no complaint about it coming in as evidence).

In general, I think Sussmann’s arguments are stronger, sometimes substantially so, but could see Judge Christopher Cooper ruling for Durham on some of them.

But I want to look at some of the new facts revealed by these filings.

Non-expert expert

As noted, Durham provided the kind of information in his response to Sussmann’s challenge to his expert that one normally provides with a first notice (here’s what Durham initially provided). Durham describes he’ll provide the basis to qualify Agent David Martin in a future disclosure (a tacit admission the resumé they had originally submitted was inadequate) which will explain,

[T]he Government intends to provide defense with a supplemental disclosure regarding his training and experience with DNS and TOR, including the following:

  • As part of his cyber threat investigations, Special Agent Martin regularly analyzes network traffic, which includes DNS data;
  • in furtherance of his investigations, Special Agent Martin reviews DNS data regularly, often on a daily and/or weekly basis ; and
  • as an FBI Unit Chief, Special Agent Martin supervises analysts and other agents work product, which includes technical review of DNS data analysis

Which is to say Martin uses DNS data but is not as expert as a number of the possible witnesses at trial he would be suggesting were part of some grand conspiracy (note, this summary is silent on his Tor expertise, which is both a more minor part of the evidence but will be a far more contentious one at trial).

The more remarkable claim that Durham says Martin will make in rebuttal if Sussmann affirms the authenticity of the data is that, because the data was necessarily a subset of all global DNS data, it’s like it was cherry-picked, even if it was not deliberately so.

That while he cannot determine with certainty whether the data at issue was cherry-picked, manipulated, spoofed or authentic, the data was necessarily incomplete because it was a subset of all global DNS data;

Given what I’ve learned about the data in question, this judgment seems both to misunderstand the collection process and may badly misstate what an expert should be able to say. Significantly, this suggests Martin will testify as an expert without trying to replicate the effort of the various strands of research that identified the data in the first place, which is the process an expert would need to do to comment on the authenticity of the data. Not attempting to do so would only make sense if the FBI had less visibility into DNS data than the researchers in question (or if they knew replicating it would replicate the results and kill their case).

Killed the story

Several more details in the filings reveal just how far over his skis Durham is in claiming that the Democrats were the real impetus to the story (rather than, for example, April Lorenzen). Sussmann’s indictment, remember, starts with the two Alfa Bank articles published on October 31, 2016 even while he admits that Franklin Foer sources his story to Tea Leaves.

That’s true even though the indictment provides just three ways in which Sussmann was involved in the story. First and very significantly, in response to Eric Lichtblau asking (in a question that reflects past discussions about the very real hacking Russia was doing), “I see Russians are hacking away. any big news?,” Sussmann met with Lichtblau, brought Marc Elias into the loop, who in turn brought Jake Sullivan in. He undoubtedly seeded the initial story. And per his own testimony he may have pitched it to Foer and Ellen Nakashima, though Durham provides no evidence of that (unless it involves follow-up after the first Foer story).

Then, Durham describes that on October 10 — at a time when “Phil” was sending a series of DMs to the NYT about the Alfa Bank allegations and when several NYT reporters were in contact with a number of other experts, at least one of whom has never been mentioned in any Durham filings — Sussmann gave Lichtblau a nudge, but a nudge that (at least as described) not only didn’t mention the Alfa Bank allegation, but didn’t even mention Russia. He did so by forwarding an opinion piece talking about how NYT wasn’t reporting as aggressively on Trump as other outlets.

Then after Franklin Foer’s story (sourced to Tea Leaves and Jean Camp though possibly involving Sussmann) came out, Sussmann’s billing records show, he responded to other reporters’ inquiries about the story.

I have no doubt Sussmann would have loved this story to break, but Durham provides no evidence that Sussmann was the big push behind it (and the public evidence shows Tea Leaves was).

Indeed, new details in Sussmann’s filing make it clear that Durham has, as I suspected, replicated some of the erroneous assumptions that Alfa Bank did to sustain his conspiracy theories. Sussmann summarizes the journalist-involved communications to which Sussmann was not a party that Durham wants to introduce at trial.

This table puts names to the narrative Durham tells in his filing. Importantly, it reveals that the reporter who — in addition to making it clear he had gotten to Fusion’s “experts via different channels,” raised questions about the source of the data (the same topic Durham’s expert doesn’t seem prepared to address) — is Mark Hosenball.

That’s important because, according to Fusion’s lawyer Joshua Levy, Hosenball sent Fusion the link to Tea Leaves’ data, not vice versa. It’s not clear whether this later email reflects Hosenball sending that link (plus there’s a discrepancy between what date Durham says these emails were exchanged and what date Sussmann does, October 16 and October 18 respectively), but if so, it would mean Hosenball was shopping data that had been available via other means, means that aren’t known to involve Sussmann or Fusion.

In other words, just a single one of these later emails that Durham is pointing to to support his claim that Democrats were pushing this story involves the Democrats taking the initiative, and it only involves Peter Fritsch forwarding this story and pushing Foer to hurry up on his own story (which he sourced to Tea Leaves and Camp) on the Alfa Bank anomaly.

That’s important because Durham completely leaves out of his narrative how Sussmann helped kill the initial NYT story, and now he says that helping the FBI kill a story on his client’s opponent just before an election would not be exculpatory.

As a reminder, Sussmann testified to HPSCI that the reason he shared the information with the FBI was to provide them the maximum flexibility to decide what to do with it.

I was sharing information, and I remember telling him at the outset that I was meeting with him specifically, because any information involving a political candidate, but particularly information of this sort involving potential relationship or activity with a foreign government was highly volatile and controversial. And I thought and I remember telling him that it would be a not-so-nice thing ~ I probably used a word more stronger than “not so nice” – to dump some information like this on a case agent and create some sort of a problem. And I was coming to him mostly because I wanted him to be able to decide whether or not to act or not to act, or to share or not to share, with information I was bringing him to insulate or protect the Bureau or — I don’t know. just thought he would know best what to do or not to do, including nothing at the time.

And if I could just go on, I know for my time as a prosecutor at the Department of Justice, there are guidelines about when you act on things and when close to an election you wait sort of until after the election. And I didn’t know what the appropriate thing was, but I didn’t want to put the Bureau or him in an uncomfortable situation by, as I said, going to a case agent or sort of dumping it in the wrong place. So I met with him briefly and

Q Did you meet — was it a personal meeting or a phone call?

A Personal meeting.

Q At the FBI?

A At the FBI. And if I could just continue to answer your question, and soI told him this information, but didn’t want any follow-up, didn’t ~ in other words, I wasn’t looking for the FBI to do anything. I had no ask. I had no requests. And I remember saying, I’m not you don’t need to follow up with me. I just feel like I have left this in the right hands, and he said, yes.

He described then how Baker called him back and asked him for the name of the journalist who was about to publish the story.

Q The conversations you had with the journalists, the ~

A Oh, excuse me. I did not recall a sort of minor conversation that I had with Mr. Baker, which I don’t think it was necessarily related to the question you ‘asked me, but I just wanted to tell you about a phone call that I had with him 2 days after I met with him, just because I had forgotten it When I met with him, I shared with him this information, and I told him that there was also a news organization that has or had the information. And he called me 2 days later on my mobile phone and asked me for the name of the journalist or publication, because the Bureau was going to ask the public — was going to ask the journalist or the publication to hold their story and not publish it, and said that like it was urgent and the request came from the top of the Bureau. So anyway, it was, you know, a 5-minute, if that, phone conversation just for that purpose.

While it’s quite clear that Sussmann seeded the NYT story before his meeting and the follow-up phone call with Baker (and also spoke, at some time or another, to Foer and Ellen Nakashima), Durham provides no evidence that Sussmann — and even Fusion! — were doing anything more after FBI intervened to kill the story than responding to inquiries, inquiries that were largely based off Tea Leaves’ efforts.

They may well have been. Durham is not presenting any evidence of it.

We know from discovery records that at the time that Durham indicted Sussmann, he had not yet bothered to chase this follow-up down. Altogether, there were 37 emails on top of the records of the face-to-face meeting where the FBI asked the NYT to hold the story.

On September 27, November 22, and November 30, 2021, the defense requested, in substance, “any and all documents including the FBI’s communications with The New York Times regarding any of [the Russian Bank-1] allegations in the fall of 2016.” In a subsequent January 10, 2022 letter, the defense also asked for information relating to a meeting attended by reporters from the New York Times, the then-FBI General Counsel, the then-FBI Assistant Director for Counterintelligence, and the then-FBI Assistant Director for Public Affairs. In response to these requests, the Special Counsel’s Office, among other things, (i) applied a series of search terms to its existing holdings and (ii) gathered all of the emails of the aforementioned Assistant Director for Public Affairs for a two-month time period, yielding a total of approximately 8,900 potentially responsive documents. The Special Team then reviewed each of those emails for relevant materials and produced approximately 37 potentially relevant results to the defense.

This was a significant effort to avoid a story about an ongoing investigation, one that helped FBI protect Trump.

And Sussmann believes — correctly — that the fact he helped the FBI kill a damaging story on Hillary’s opponent is exculpatory. Here’s what Sussmann says Joffe would say if he testified:

And the defense believes that, if called to testify, Mr. Joffe would offer critical exculpatory testimony, including that: (1) Mr. Sussmann and Mr. Joffe agreed that information should be conveyed to the FBI and to Agency-2 to help the government, not to benefit Mr. Joffe; (2) the information was conveyed to the FBI to provide a heads up that a major newspaper was about to publish a story about links between Alfa Bank and the Trump Organization; (3) in response to a later request from Mr. Baker, Mr. Sussmann conferred with Mr. Joffe about sharing the name of that newspaper before Mr. Sussmann told Mr. Baker that it was The New York Times; (4) the researchers and Mr. Joffe himself held a good faith belief in the analysis that was shared with the FBI, and Mr. Sussmann accordingly and reasonably believed the data and analysis were accurate; and (5) contrary to the Special Counsel’s entire theory, Mr. Joffe was neither retained by, nor did he receive direction from, the Clinton Campaign. [my emphasis]

To sustain his claim that there would be no benefit to the FBI in getting such a heads up and the opportunity — which they availed themselves of — to kill the story, Durham restates and seriously downplays the decision that both Joffe and Sussmann made to give the FBI the opportunity to kill the story.

The defendant’s further proffer that Tech Executive-1 would testify that (i) the defendant contacted Tech Executive-1 about sharing the name of a newspaper with the FBI General Counsel, (ii) Tech Executive-1 and his associates believed in good faith the Russian Bank-1 allegations, and (iii) Tech Executive-1 was not acting at the direction of the Clinton Campaign, are far from exculpatory. Indeed, even assuming that all of those things were true, the defendant still would have materially misled the FBI in stating that he was not acting on behalf of any client when, in fact, he was acting at Tech Executive-1’s direction and billing the Clinton Campaign. [my emphasis]

He makes no mention of the fact that FBI spent considerable effort — an effort made possible by Sussmann and Joffe — to protect the investigation and Trump. He doesn’t even admit that the reason why Sussmann asked Joffe about sharing Lichtblau’s name is so that the FBI could kill the story.

The YotaPhone that was not in Trump’s hands

Michael Sussmann could be putting up a far bigger stink that Durham wants to introduce Sussmann’s meeting with the CIA in February 9, 2017, especially the way that Durham keeps revealing inaccurate details about it. This is an event that happened five months after his alleged crime, one that (as Sussmann notes) could not be part of the same effort as Durham alleges the FBI meeting was about, because there no longer was a Hillary campaign.

He’s not. In fact, he says he has no problem with Durham introducing the February 9 meeting.

In any event, Mr. Sussmann does not object to the introduction of this discrete CIA statement pursuant to Rule 404(b).9 But Mr. Sussmann disagrees with the Special Counsel’s characterization and interpretation of that statement, and he reserves his right to introduce evidence rebutting the Special Counsel’s claims, including evidence that will demonstrate that Mr. Sussmann disclosed to CIA personnel that he had a client and that he had worked with political clients. See, e.g., Mem. of Conversation at SCO-3500U-010119-120 (Jan. 31, 2017) (“Sussman[n] said that he represents a CLIENT who does not want to be known. . . Sussman[n] would not provide the client’s identity and was not sure if the client would reveal himself . .”); id.at SCO3500U-010120 (“Sussman[n] is [] openly a Democrat and openly told [CIA personnel] that he does lots of work with DNC”).

The reason why Sussmann has no objection likely has to do with that January 31 document, which Durham posted to docket along with the memorialization of the February 9 meeting. Indeed, given the Bates stamp on the document — SCO-00081634 for the January 31 document as compared to SCO-074877 — Durham may have only obtained this document in response to Sussmann’s repeated requests for the complete list of the people he spoke with at the CIA.

In any case, both documents actually help Sussmann more than Durham. They show that even in the February 9 meeting, Sussmann was upfront about his ties to the Democrats and described the data source as private — the very same things Durham claims Sussmann was deliberately hiding from the FBI in September. In the January 31 meeting, he explicitly said he had a client and even conveyed that Joffe is a Republican.

Read together, these meeting records are consistent with Sussmann’s story: that he went to the government bringing data from someone — Joffe — who wanted it shared but was not otherwise asking Sussmann to intervene as a lawyer. On behalf of someone, but not making a formal request as a lawyer.

Very importantly, both meetings make it clear that the suspicion was not that Trump was using a YotaPhone, but that someone in his vicinity was. That’s because “there was once [sic] instance when Trumbo [sic] was not in Trump p Tower at but the phone was active on Trump tower WIFI network” and “the information provided would show instances when the Yota-phone and then candidate Trump were not believed to be collocated.” This is the description of someone suspected of infiltrating Trump’s campaign, not Trump secretly siding with Russia.

There are still problems with it: The claim that the phone moved to the White House with Trump is not possible because the phone moved in December 2016, when Obama was still occupying it (and to the extent that Trumpsters had moved to DC yet, Trump was working out of Trump Hotel). Given Durham’s claim that there was YotaPhone metadata at the White House going back to 2014, it’s unclear whether the phone at the White House in December 2016 could be the earlier phone or a Trump one.

For example, the more complete data that Tech Executive-1 and his associates gathered – but did not provide to Agency-2 – reflected that between approximately 2014 and 2017, there were a total of more than 3 million lookups of Russian Phone-Provider-1 IP addresses that originated with U.S.-based IP addresses. Fewer than 1,000 of these lookups originated with IP addresses affiliated with Trump Tower. In addition, the more complete data assembled by Tech Executive-1 and his associates reflected that DNS lookups involving the EOP and Russian Phone Provider-1 began at least as early 2014 (i.e., during the Obama administration and years before Trump took office) – another fact which the allegations omitted

But even Durham agrees there were YotaPhone look-ups from Trump’s vicinity, and while he doesn’t understand it, his own filing confirms that these phones are super rare. And given the description that the YotaPhone showed up in MI when Trump was interviewing a cabinet member (and given some things I’ve heard about this allegation), it does seem to tie the YotaPhone to Betsy DeVos.

John Durham has said the only reason you could write up details about DNS anomalies implicating Trump is malicious partisanship, and yet his filing does just that.

Still, the traffic might be most consistent with a Secret Service agent on Trump’s detail using a YotaPhone, something that — given the Secret Service’s never ending scandals — wouldn’t be the kind of thing you could rule out.

The story is consistent with Joffe and the researchers identifying — via DNS look-ups, not the servers at Trump Tower or the White House — that there was metadata reflecting something that could be a significant counterintelligence concern, one that had the intent of hurting Trump, not helping him. The frothers think it was a good thing that a spy on DiFi’s staff and another volunteering for an Eric Swalwell campaign were identified; but if it’s Trump, they want counterintelligence concerns to take a back seat.

And in retrospect, the possibility there was a Russian spy in Trump’s vicinity would be no big surprise, given his track record. His campaign manager admitted he had hidden his work for Ukrainian oligarchs and was hoping to exploit his ties to Trump to get paid by them and a Russian oligarch. His National Security Advisor admitted he had secretly been working for Turkey while getting classified briefings with the candidate. The guy who got him hired, who went on to run his Inaugural Committee, is accused of working for the Emirates when he did all that.

The only way that finding potential spies infiltrating Trump’s campaign would be an attack on his campaign is if he wanted those spies there.

Then again, that seems to be what Tom Barrack is going to use as his defense, so maybe that’s what is really driving this scandal.

Tom Barrack Appears to Claim Trump Knew Barrack Was Catering US Foreign Policy to the Emirates

In this post, I described the import of the false statement and obstruction charges against Tom Barrack. While Barrack may have been honest about his ties to the Emirates in a 2017 interview with Robert Mueller’s prosecutors, he is accused of lying about those ties in 2019, which — if DOJ has the goods on those later lies — will make it clear he was affirmatively hiding his role at that point.

[A]ssuming 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 as “boss.” 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.

[snip]

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.

The government made the same argument in a filing last month responding to Barrack’s motion to dismiss: If Barrack did not know his back channel with the Emirates was a problem, why did he (allegedly) lie about it?

Although not dispositive to Barrack’s vagueness challenge, if Barrack actually believed that he had done nothing wrong, it is unclear why he allegedly lied to FBI special agents during his voluntary June 20, 2019 interview as set forth in Counts Three through Seven of the Indictment.

It’s now clear that Barrack’s alleged false statements are even more important than that.

That’s because Barrack is now arguing that, because the Trump Administration approved of how Barrack was peddling US policy to the Emirates, Barrack could not have been a secret foreign agent under 18 USC 951.

That revelation has slowly become clear over the course of a dispute over discovery (motion, response, reply) pertaining to Barrack’s demand, among other things, for, “all communications between Mr. Barrack and the Trump Campaign and Administration regarding the Middle East.”

In the government’s response, they note that 18 USC 951 requires notice to the Attorney General, not to members of a private political campaign.

The defendants argue that evidence of Barrack’s disclosure of his UAE connections to members of the Trump Campaign are exculpatory. But Section 951 requires notice to the Attorney General, not to private citizens affiliated with the Trump Campaign. See 18 U.S.C. § 951(a). This makes sense, since the Attorney General is the official charged with enforcing the law and the senior official in charge of the FBI, the agency responsible for investigating and responding to unlawful foreign government activity inside the United States. By contrast, members of the Trump Campaign have no such responsibilities with respect to the internal national security of the United States and had no authority to sanction or bless the defendants’ illegal conduct. They are not government officials, and even if they were, they are not the Attorney General or a representative thereof.

According to the indictment, Paul Manafort not only knew that Barrack was working for the Emirates, but was cooperating with Barrack’s efforts.

In Barrack’s reply, after a heavily redacted passage, he complains about DOJ’s claim — made in the press conference announcing his arrest — that he had deceived Trump about what he was doing.

The government’s position is particularly astonishing in light of its public claim at the time of Mr. Barrack’s arrest that he had deceived Mr. Trump and the administration. Specifically, the then-Acting Assistant Attorney General for the National Security Division announced that the “conduct alleged in the indictment is nothing short of a betrayal of those officials in the United States, including the former President,” and that this indictment was needed to deter such “undisclosed foreign influence.” [citation removed] In that same press release, the Assistant Director in Charge of the FBI NY Field Office asserted that the indictment was about “secret attempts to influence our highest officials.” Id. When Mr. Barrack raised concerns with the government about these false statements in the press release, the government responded that these statements were a fair representation of the conduct alleged in the indictment. [citation removed] Thus, in one breath the government claims that Mr. Barrack deceived Mr. Trump and the administration and that such evidence is part of its case, but in the next breath contends that contrary evidence is neither relevant nor exculpatory and apparently withheld such discovery on that basis.

Barrack’s lawyers include the 2021 comments about whether Trump knew of all this as exhibits, but more recent correspondence about it remains sealed.

In other words, Barrack seems to be arguing, he didn’t betray Trump; Trump wanted him to cater American foreign policy to rich Gulf Arab nations.

Barrack spends four pages of his reply making the same kinds of complaints about the documentation of his 2019 FBI interview that Mike Flynn made in 2020, even complaining that the fact that the AUSAs prosecuting the case were in the room makes them conflicted on the case. It’s clear why he did so: because if Barrack did lie to an FBI run by Trump’s appointed FBI Director and ultimately overseen by Bill Barr in 2019, then he was continuing to hide his influence-peddling from the one person that mattered under the law, Bill Barr (though given what we know of Barr’s interference in Ukraine investigations, I would be unsurprised if Barr knew that Trump knew of Barrack’s ties to the Emirates, which would explain why he swapped out US Attorneys in EDNY at the time).

Remember: Barrack is alleged to have been pursuing policies pushed by Mohammed bin Zayed. But among the things he is accused of doing for the Emirates was to “force” the White House to elevate Saudi Crown Prince Mohammed bin Salman (then just the Deputy Crown Prince) during a visit to DC in March 2017. At the time the FBI interviewed Barrack in June 2019, Trump was under significant pressure for his possible complicity in the Jamal Khashoggi assassination.

And now — at a time when EDNY is talking about indicting Barrack’s not-yet indicted co-conspirators — we learn that MbS invested $2 billion dollars in Jared Kushner’s brand new firm even in spite of all the reasons not to.

Six months after leaving the White House, Jared Kushner secured a $2 billion investment from a fund led by the Saudi crown prince, a close ally during the Trump administration, despite objections from the fund’s advisers about the merits of the deal.

A panel that screens investments for the main Saudi sovereign wealth fund cited concerns about the proposed deal with Mr. Kushner’s newly formed private equity firm, Affinity Partners, previously undisclosed documents show.

Those objections included: “the inexperience of the Affinity Fund management”;the possibility that the kingdom would be responsible for “the bulk of the investment and risk”; due diligence on the fledgling firm’s operations that found them “unsatisfactory in all aspects”; a proposed asset management fee that “seems excessive”; and “public relations risks” from Mr. Kushner’s prior role as a senior adviser to his father-in-law, former President Donald J. Trump, according to minutes of the panel’s meeting last June 30.

But days later the full board of the $620 billion Public Investment Fund — led by Crown Prince Mohammed bin Salman, Saudi Arabia’s de facto ruler and a beneficiary of Mr. Kushner’s support when he worked as a White House adviser — overruled the panel.

Barrack’s apparent claim that Trump knew exactly what he was doing does nothing to change his legal posture before Trump became President, and DOJ indicted this before the statute of limitation expired on that conduct.

But the apparent claim that Trump knew about this — and the possibility that Barr did too, at least after the fact — would change the kind of crime that happened in 2017, after Trump became President. And, possibly, the culprit.

On EDNY’s Ongoing Investigation into Tom Barrack and His Not-Yet Indicted Co-Conspirators

In a status hearing on March 21, prosecutors in the Tom Barrack case responded to a question Barrack had posed the day earlier — whether they planned to supersede his indictment — by saying they reserve the right to do so and that it might happen in June.

In a response to Barrack’s claims of discovery hold-ups yesterday, they elaborated on an ongoing investigation into Barrack — and “several” people identified as co-conspirators in the indictment but not yet charged.

The government has made several requests for materials from other executive components of the federal government, and upon receipt of these materials, will promptly disclose any additional items that are discoverable. Additionally, the investigation related to this case is ongoing (we note that one of the charged defendants is a fugitive and the indictment alleges conduct by several unindicted co-conspirators).

There’s at least one person (probably three) whose prior interviews with the FBI are described, but whose names are redacted.

On October 26, 2021, it advised the defendants of statements made by [redacted] during prior interviews with FBI special agents. The government made similar disclosures about statements by [redacted]. These disclosures were made on December 22, 2021, January 14, 2022, January 27, 2022, March 9, 2022 and April 5, 2022.

Defense counsel further requested the underlying notes and FD-302 reports related to the interviews of [redacted] whose discoverable information was previously disclosed to the defense.

It describes that DOJ obtained a good deal of new evidence in the last three months.

By early January 2022, less than six months since indictment, the government substantially completed the disclosure of discoverable material that was currently in its possession. The government has turned over additional material since that time— approximately 80,000 more files—but, with the exception of fewer than 20 files, all of that material came into the government’s possession after January 3, 2022

It describes evidence that, Barrack is sure, would be at Department of Commerce, State, and the White House.

The defendants note that the government “initially took the position that it had no obligation to search for discoverable materials from [other] federal agencies.” See Mot. at 3, 21. The government took and continues to take such a position, because it is legally correct. The defendants argue that the government has a legal obligation to obtain and review materials from other agencies3 because “this is a national security case” and Barrack has had contact with a number of different parts of the federal government. But a case’s status as “a national security case” is not a basis under any existing precedent to impute a duty to obtain and disclose materials held by other agencies.

3 The defendant fails to specify which agencies the prosecution team purportedly has a duty to search, other than to identify “the White House, State Department, Commerce Department and federal intelligence agencies” as examples that a duty to search should be “included but not limited to.” See Mot. at 22.

Even though the government doesn’t think they have to provide everything from those agencies and the White House, they are getting Trump White House documents from the Archives.

Accordingly, the government has requested White House materials from the National Archives and Records Administration and has also requested materials from the U.S. Department of State, U.S. Department of Treasury, U.S. Department of Energy, and U.S. Department of Commerce.5

5 As previously discussed, the prosecution team recently received and produced to defense counsel the responsive documents obtained from the U.S. Department of Commerce.

It describes that just because others received similar requests from the Emirates during the Transition or their time in the Administration as Barrack did, it does not make him less guilty.

Similarly, the defendants request information showing that the taskings Barrack carried out for the UAE “are common requests and were made to other members of the transition or administration.” Id. at 9 ¶ 12. This too is an argument, not an actual discovery request, and an irrelevant argument at that. Whether or not other individuals agreed to act at the direction or control of the UAE, or also met with U.S. officials on behalf of the UAE, does not make Barrack more or less guilty in agreeing to act as an unlawful agent of a foreign government.

In other words, since indicting Barrack, DOJ has continued the investigation, including by using materials that have become available since Trump left the White House.

Most of the people described as co-conspirators are Emiratis that the government wouldn’t risk charging.

But Trump officials are named too. Some of the people described in the indictment — most notably Paul Manafort, who recently found himself unable to fly to Dubai because his passport had been revoked — did things on which a 5-year statute of limitations has expired (though there’s a Barrack-related action Manafort took in 2017 that is not yet time-barred).

But that’s not true of the actions of Steve Bannon described in the indictment. The indictment describes this meeting US Person 1 had with MbZ.

On or about September 13, 2017, the defendant MATTHEW GRIMES sent a text message to the defendant RASHID SULTAN RASHID AL MALIK ALSHAHHI stating, “Heads up, [Emirati Official 1]is meeting with [a former United States goverment official (“U.S. Person 1), an individual whose identity is known to the Grand Jury on Friday. Please keep super confidential.” GRIMES furtheradvised ALSHAHHI that the defendant THOMAS JOSEPH BARRACK and GRIMES “worked hard to show [U.S Person 1] how strong of allies we are. Very hard… [BARRACK] spent lots of time.” AL SHAHHI then confirmed with GRIMES that U.S. Person | “was briefed by [BARRACK] a lot on [Emirati Official 1]and his vision.” GRIMES added that BARRACK “worked hard to show our friendship and alliance,” and that BARRACK had met with U.S. Person I many times in the past several weeks [about this meeting” with Emirati Official 1, in which BARRACK was “[c]hampioning [the] UAE.”

Here’s a contemporaneous report of that meeting.

On Monday, Bannon is scheduled to speak at a day-long conference in Washington organized by the Hudson Institute, a conservative think tank and paid for by multiple donors, entitled “Countering Violent Extremism: Qatar, Iran, and the Muslim Brotherhood.” The speech follows Bannon’s September meeting in the UAE with its crown prince, Sheikh Mohammed bin Zayed al-Nahyan. The two weren’t strangers: Bannon, Trump’s son-in-law Jared Kushner and ousted National Security Adviser Michael Flynn met with the crown prince at Trump Tower during the presidential transition in December. That meeting triggered controversy, as the UAE hadn’t notified the outgoing Obama administration about the visit as is customary.

The report goes on to report on Bannon’s sustained media campaign — the kind of thing you see in Foreign Agent indictments — attacking Emirate rival, Qatar.

Bannon, who through a spokesman declined to comment for this story, has said little publicly about Qatar. But Breitbart News, the far-right website he ran before going into the White House and where he is now once again ensconced, published more than 80 Qatar-related headlines since the blockade began, most of which were critical of the nation.

“Jihad-Friendly Qatar May Have Inspired Former Gitmo Detainees to Return to Terror,” declared a June 15 headline.

Another, 10 days later, read “Report: Qatari Ruling Family Importing Hezbollah Fighters for Protection.”

Bannon has said he is planning to start a global conference series through Breitbart. “We are in advance discussions about having Breitbart sponsor a major security conference in sub-Saharan Africa, the Persian Gulf, central Europe, and East Asia, in early to mid-2018,” he told Bloomberg recently.

This kind of media campaign is the stuff that can get you charged as an undisclosed foreign agent.

Bannon’s not the only one referred to as a not-yet charged co-conspirator. But he is clearly one of them.

EDNY Notes that Tom Barrack Won’t Explain the Tactical Advantage of Waiting to Charge Him

I continue to follow Tom Barrack’s prosecution with interest, not least because it is the single example of a case that arose out of the Mueller investigation, was largely completed while Trump remained in office, yet was only charged after Merrick Garland took over.

As I noted last month, Barrack filed a motion to dismiss based, in significant part, on the two year delay between the time he interviewed with the FBI and when he was charged.

The government has submitted an omnibus response to Barrack’s filing as well as one from his alleged co-conspirator, Matthew Grimes (whose motion to dismiss focused more closely on the Foreign Agent statute under which they were charged).

The motion shoots down Barrack’s claims that the delays — and the treatment of his interview just like all other non-custodial FBI interviews — will make it harder for him to defend against the false statement charges, noting in part that he had a room full of lawyers with him making their own record of what he said.

Barrack claims that because of the purported delay, he is unable to obtain (1) “critical proof to establish what he was asked and how he answered” questions when he was interviewed in 2019; and (2) evidence of records from others of communications he may have had. Id. Neither has merit.

First, Barrack was represented by multiple attorneys who took notes during the 2019 interview, presumably with the intent of creating the “critical proof to establish what he was asked and how he answered” of which defendant claims he has been deprived. Barrack Mot. at 38. Barrack fails to articulate how these notes would have been more helpful to the defendant if the charges were brought earlier. And Barrack identifies no other proof that he could have gathered regarding his statements at his interview, had he been indicted earlier. As a result, Barrack not only fails to establish a substantial, actual, non-speculative prejudice, but fails to establish any prejudice at all. See Birney, 686 F.2d at 105-06.

More coyly, however, DOJ notes that Barrack has not tried to obtain any records from the Trump administration that might undermine the charges against him nor has he identified any witnesses who would have testified in his favor two years ago who cannot now.

Second, Barrack does not provide a single concrete example of attempts that he has made to obtain documents or offer examples about how these attempts have been thwarted by the passage of time. See Barrack Mot. at 38. He does not specify what documents he could have obtained, from whom he would have obtained them, or make any claims that this evidence would have been admissible. He merely speculates that the evidence could have helped his defense.

[snip]

Finally, Barrack makes a general claim about a loss of memories, without identifying a single witness who is now unavailable due to loss of memory. See Barrack Mot. at 39. “Faded memories or unavailable witnesses are inherent in any delay, even if justifiable.

[snip]

Even were Barrack to provide the names of witnesses with failing memories, this in and of itself would still be insufficient.

[snip]

He must also show that the witness would have testified, withstood cross-examination, and that the jury would have found the witness credible.” (citations omitted)); see also United States v. Valona, 834 F.2d 1334, 1339 (7th Cir. 1987) (noting that prejudice analysis must consider whether the missing witness “would have withstood cross-examination,” whether the jury would have found him a “credible witness,” and whether the testimony, when compared to other trial evidence “would affect the trial outcome” (internal quotation marks and citations omitted)).

Here, Barrack has not alleged that anyone would have been available to testify in the first instance, much less that he or she would have voluntarily agreed to testify at his trial in a way that would help, rather than hurt, Barrack.

There are, surely, witnesses who would have testified in favor of Barrack if they expected their own testimony would be immune from consequences or that they’d be receiving a pardon. Paul Manafort, for example, is a key witness to Barrack’s actions.

The government’s filing reveals more details about the circumstances of his interview in 2019 at which he allegedly lied. After he was alerted to the investigation, he asked for the interview and then — the government claims — he told a number of blatant lies about his own conduct.

After Barrack subsequently became aware that he was being investigated by the FBI for his actions at the behest of the UAE, Barrack, through counsel, contacted the government and affirmatively requested an interview. After the government consented to the request, the interview was scheduled for June 20, 2019, at the law firm offices of Barrack’s counsel in Washington, D.C. FBI special agents traveled from New York to Washington, D.C. to attend the interview. During the interview, Barrack was represented by multiple attorneys and was advised that the interview was entirely voluntary and that he was free to end the interview at any time. During the interview, an FBI special agent took detailed, contemporaneous notes, totaling more than 50 pages. Barrack’s counsel also took contemporaneous notes during the interview, but did not electronically record or transcribe the interview, nor did Barrack ever request that the interview be so recorded or transcribed, despite being the party that requested the interview and set its date, time, and location.

During the interview, Barrack repeatedly and materially lied about the events and activities that underlie Count One and Count Two of the Indictment, including, but not limited to, making misstatements about whether Al Malik proffered policies or requests to Barrack on behalf of the UAE, whether he was ever asked to download a messaging application or acquire a dedicated telephone to communicate with UAE officials, whether he facilitated communications between President-Elect Donald Trump and UAE officials after the 2016 Presidential Election, and whether he provided any guidance or input in arranging a former U.S. official’s meeting with a senior UAE official. Indictment ¶¶ 91-92, 98-107.

As I described, these alleged lies will make the core 18 USC 951 charges far more durable. Indeed, the government makes precisely that point: if Barrack was not intentionally hiding his ties to the Emirates, then why would he tell blatant lies about it?

Although not dispositive to Barrack’s vagueness challenge, if Barrack actually believed that he had done nothing wrong, it is unclear why he allegedly lied to FBI special agents during his voluntary June 20, 2019 interview as set forth in Counts Three through Seven of the Indictment.

But the circumstances of his charges raise questions about how he learned he was under investigation and whether he had any belief that if he lied to protect himself (and Trump) — as so many other Trump associates were prosecuted for doing — he could expect impunity.

The Five Versions of the Mueller Report

As preparation for wading into the argument about why DOJ hasn’t indicted Trump on the obstruction charges laid out in the Mueller Report, I wanted to post links to the four different versions of the Report and comment on what they might tell us of the fate of Mueller’s work under Billy Barr. The five versions (which are all available at this link) are:

March 22, 2019

This is the version of the report released in April 2019. It had four kinds of redactions:

  • Harm to Ongoing Matter (basically, on-going investigations)
  • Personal Privacy
  • Investigative Technique
  • Grand Jury

June 3, 2019

Almost immediately after the release, a bunch of outlets FOIAed the report, including Jason Leopold. This is the version released in response to those FOIAs.

Volume I

Volume II

The release is identical to the one released months earlier (in that no new information was unsealed). But it used FOIA exemptions to explain redactions instead of the four terms used on original release.

This is the description of those exemptions:

Because the release effectively created a category to deal with everything related to the Roger Stone trial (about which the Concord Trolls made a big stink), it provided a way to identify which of the referrals at the end pertained to Stone.

Referrals 4 and 14 both pertained to the Stone trial. Because the referrals are alphabetical, those referrals might pertain to Jerome Corsi (who obviously lied to Mueller) and Stone himself.

June 19, 2020

After the Stone trial, Leopold got another copy of the report with matters revealed during the Stone trial unsealed.

Volume I

Volume II

Appendices

While there was a bunch of newly unsealed stuff in the body of the report, the two Stone-related referrals remained redacted, albeit with one fewer exemption (b7B, a disclosure that might prevent someone from getting a fair trial, was gone).

September 18, 2020

While not a full new report, in September 2020, DOJ released a spreadsheet listing all the redactions. They ended up withdrawing the redactions for a number of things, especially pertaining to the troll farm prosecution. Among other things, the newly unsealed information revealed that what was described as an investigation into a “Foreign campaign contribution” (the Egyptian bank bribe to Trump) and investigations into Paul Manafort’s firms had both been closed. The release is useful because it seems to date the closure of those investigations to sometime between June and September of the election year.

November 2, 2020

Literally on the eve of the election, DOJ released eight new pages, as well as a full report incorporating those eight pages and the withdrawn exemptions described in September. The newly unsealed information addressed the charging decisions surrounding the hacking charges.

The single most important newly disclosed detail is a footnote that reveals the “factual uncertainties” around Stone’s knowledge that the GRU continued to hack Hillary when he purportedly coordinated the release of the Podesta emails had been referred to the DC US Attorney’s Office for further investigation. That is, the investigation into Stone’s potential coordination with Russia was not done at the time Mueller shut down the investigation, a disclosure that has yet to be reported by any major outlets.

The referrals section in the full report is somewhat mystifying. As noted, the Egyptian bribe investigation and the Paul Manafort referrals are unredacted, reflecting that those investigations had been closed. The unsealed information on the Manafort firms explains an earlier redaction convention; earlier, these entries lacked some of the exemptions all other referrals had. That’s probably for two reasons: first, those Manafort companies aren’t mentioned elsewhere in the report (and so didn’t have a b(7)(C)-4 exemption)) and were not biological persons (and so didn’t have the privacy exemption).

Here are the last two pages of the referrals for all four versions, side by side (the rest are at this link).

The two Stone-related entries, like all the other redacted ones, remained exempted for an ongoing investigation (b7(A)).

But what doesn’t appear in that list, even though you’d think (and I long thought) it would, is something describing the George Nader child exploitation and foreign influence peddling referrals, both of which had been revealed in 2019 and the former of which is undoubtedly a Mueller referral. The fact that DOJ was unsealing closed investigations but has not unsealed an entry for the Nader referral that undoubtedly was opened after a Mueller-related FBI Agent found the CSAM on Nader’s phone suggests that these referrals aren’t necessarily everything that arose out of the Mueller investigation.

The distinction may be explained by a footnote that got unsealed with the last release, explaining why Greg Craig was treated differently than Tony Podesta and Mercury, all foreign influence peddling investigations that arose out of the Manafort team. “Greg Craig and FTI Consulting were treated as outright referrals (and therefore listed in Part B, infra) because evidence about their conduct was uncovered in the course of our authorized investigations.”

There is, however, a single entry that could be a Tom Barrack referral, item 1, which is another investigation that arose out of the Mueller investigation, one that was charged once Barr got out of the way of it.

We might learn more the next time Leopold liberates an entirely new copy.

Let me be clear: I don’t think we’ll see much of these. The most recent release was 15 months ago, the statutes of limitation on any referrals will be tolling in the same time frame as obstruction charges would be. More recent 302 releases suggests there are few areas where investigation remains ongoing.

Given the way, though, that Trump’s first impeachment was largely a continuation of Paul Manafort’s Ukraine dalliances, that parts of January 6 are just a continuation of things (like Stone’s Stop the Steal and some of the people Mike Flynn worked with) that go back to 2016, and Trump’s tools of obstruction (most notably pardon dangles) remains the same, any current investigation may pull threads from past ones.

There’s a good deal more complexity remaining in the detritus of the Mueller investigation than people are allowing for.

February 11, 2022

Yesterday, DOJ released four pages showing the declination on misdemeanor CFAA charges for Don Jr, even though they could have proven it.

They also show that Mueller declined prosecution for JD Gordon for being an Agent of Russia.

Note: this post has been updated with the most recent release.

 

The Eight Trump Associates Whom DOJ Is Investigating

Exactly a month ago, I did a post noting that the TV lawyers claiming there was no proof that DOJ was investigating anyone close to Trump were either ignorant of or ignoring six Trump associates who were being investigated. I wanted to update that post with developments from the last month, because (in addition to the contempt prosecution for Steve Bannon), we’ve learned of investigations into at least two more Trump associates.

Note that four of these — Sidney Powell, Alex Jones, Roger Stone, and Mark Meadows — definitely relate to January 6 and a fifth — the investigation into Rudy Giuliani — is scoped such that that it might include January 6 without anyone knowing about it.

Tom Barrack

Last week, Trump’s top donor, Tom Barrack, filed a motion to dismiss his indictment for serving as an unregistered agent of the Emirates.

As he did in a prior status hearing, that motion complained that Billy Barr’s efforts to undermine this investigation failed.

[T]he government’s unjustified two-year delay in charging Mr. Barrack also warrants dismissal of the indictment. The government had all the evidence on which the indictment was based in 2019. The indictment pleads the conspiracy terminated in April 2018, and the alleged false statements occurred in June 2019. Why the government waited more than two years, and until after a change in administration, is a question only it can answer, but it should answer it especially given the paramount First Amendment interests at stake. Had the government brought this case when its investigation was complete in 2019, recollections regarding Mr. Barrack’s June 2019 interview would have been fresh and the harm from the government’s failure to make a contemporaneous record might have been mitigated. The lengthy delay has also prejudiced Mr. Barrack’s ability to identify, preserve, and secure documentary evidence and obtain evidence from witnesses whose memories have faded. The government has provided no explanation for its delay, and the specter that the government intentionally delayed bringing this case for political reasons or tactical advantage hangs heavily over this case. Because Mr. Barrack has been deprived of a fair opportunity to defend himself, the indictment should be dismissed. [my emphasis]

Barrack and DOJ are also fighting over whether Barrack can unseal discovery in an attempt to discredit this investigation.

Barrack filed the specified materials in connection with pretextual arguments in his motion to dismiss, and he all but acknowledges that he seeks their unsealing in a bid to improperly influence public opinion.

As noted before, according to reporting from 2019, this investigation was a Mueller referral, so it’s proof that Garland’s DOJ will pursue such referrals. According to CNN reporting, the indictment was all ready to go in July 2020, a year before it was actually charged. That provides a measure of how long it took an investigation that was deemed complete at a time when Barr seemingly prohibited filing it to be resuscitated under Garland: at least four months.

Barrack’s prosecution proves that DOJ can indict a top Trump associate without leaks in advance. But it will also be an early test about a Trumpster’s ability to discredit the notion that any of them can be held accountable.

Jury selection for Barrack’s trial is now scheduled to start on September 7.

Rudy Giuliani

Since my last post on this topic, Special Master Barbara Jones reported on the progress of the privilege review of 16 devices seized from Rudy Giuliani on April 28, 2021.

Here’s a summary of what that review and the earlier known seizures of Rudy’s communications in the Ukraine-related investigation into Rudy:

The known warrants for Rudy’s phones pertain to whether, in the lead-up to Trump’s impeachment for trying to coerce Ukraine’s assistance in the 2020 election, Rudy was acting as an unregistered agent of Ukraine.

There’s good reason to believe DOJ could show probable cause to access Rudy’s phones from April 2018 (before he formally became Trump’s lawyer), because during that period he was attempting to buy Michael Cohen’s silence with a pardon. There’s equally good reason to believe that act of obstruction is one of the referrals still redacted in the Mueller Report.

On or about April l 7, 20 l 8, Cohen began speaking with an attorney, Robert Costello, who had a close relationship with Rudolph Giuliani, one of the President’s personal lawyers. 1022 Costello told Cohen that he had a “back channel of communication” to Giuliani, and that Giuliani had said the “channel” was “crucial” and “must be maintained.” 1023 On April 20, 2018, the New York Times published an article about the President’s relationship with and treatment of Cohen. 1024 The President responded with a series of tweets predicting that Cohen would not ” flip” :

The New York Times and a third rate reporter . . . are going out of their way to destroy Michael Cohen and his relationship with me in the hope that he will ‘flip. ‘ They use nonexistent ‘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! 1025

In an email that day to Cohen, 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

Similarly, there’s good reason to believe DOJ could show probable cause to access Rudy’s phone for his involvement in Trump’s attempted coup, not least because Rudy himself tweeted out some texts he exchanged with a Proud Boy associate discussing specific insurrectionists in the aftermath of the attack.

We wouldn’t know if DOJ had obtained warrants for those separate periods, because those periods will be covered by Jones’ review one way or another.

But because of the temporal scope Judge Paul Oetken approved last year, Jones has completed a privilege review of all communications that date between January 1, 2018 through April 28, 2021 on 8 of the devices seized from Rudy (April 28 was the day the devices were seized). We can’t know what dates during which Rudy was using those 8 devices. It could well be that they were older phones with nothing recent.

But we know that of the communications on the phone with the most texts and chats — the phone designated 1B05 — the government received 99.8% of any communications dated between January 1, 2018 and April 28, 2021 and they received those communications no later than January 21.

Of particular note, Rudy at first tried to claim privilege over 56 items from phone 1B05. He thought better of those claims in 19 cases. And then, after Jones deemed 37 of them not to be privileged, he backed off that claim as well. During a period when Jones and Rudy’s team would have been discussing those 37 items, Judge Oetken issued a ruling saying that the basis for any privilege claims (but not the substance of the communications) would have to be public. After precisely the same kind of ruling in the Michael Cohen Special Master review, Trump backed off his claim of privilege for Cohen’s recording about the hush payments. That may be what persuaded Rudy to withdraw his claim of privilege over those materials here, as well.

And whether or not DOJ has already accessed the communications Rudy conducted during 2020 and 2021 on any of the 16 devices seized from him, we know all the phones Rudy was using in April 2021 are in DOJ’s possession and that Judge Oetken has already approved a privilege review to cover those communications.

In any case, the details of the Rudy investigation show, at a minimum, that Barr went to extraordinary lengths to attempt to kill this investigation (and may have even ordered that FBI not review the materials seized in 2019). It took mere weeks after Garland took over, however, for the investigation to take very aggressive steps.

It also shows that SDNY managed to renew this investigation without major leaks.

Robert Costello

Last Friday, Steve Bannon revealed that DOJ had seized the toll records of his lawyer, Robert Costello, the same guy that would be at the center of any predication for any investigation into Rudy’s attempts to obstruct the Mueller investigation. Some outlets are claiming that this was just part of the investigation into Bannon, but that cannot be right, for several reasons. First, DOJ didn’t ask for the most intrusive set of those records — email metadata from between March 5 and November 12, 2021 — until the day they indicted Bannon. The returns on those requests could not have been presented to the grand jury, because DOJ didn’t receive them until December 7. Plus, scope of that request not only dates back to before the September 23 subpoena that is the basis for the Bannon contempt prosecution, it dates back before the January 6 Committee that issued the subpoena in the first place. DOJ obtained those Internet toll records for a reason that extends beyond the subpoena fight; they cannot pertain (just) to the known prosecution of Bannon.

It may well be they relate to obstruction related to Rudy though. Here’s DOJ’s letter responding to Bannon’s complaints about this seizure, which given some confusion bears further discussion.

We write in response to your January 6, 2022, letter requesting information about internal deliberations and investigative steps relating to Mr. Costello and any other attorneys who have represented Mr. Bannon. As you are aware, and as we discussed in a phone call with Mr. Corcoran and Mr. Schoen on December 2, 2021, Mr. Costello represented Mr. Bannon before the January 6th Select Committee (“the Committee”) in relation to the subpoena it issued to Mr. Bannon and is, therefore, a witness to the conduct charged in the Indictment. We understand that attorney Adam Katz also represented Mr. Bannon with respect to the Committee and, therefore, also is a potential witness. We are not aware of any other attorneys who represented Mr. Bannon with respect to the Committee.

Aside from the information that Mr. Costello voluntarily disclosed on behalf of Mr. Bannon during the investigation of this matter, the Government has not taken any steps to obtain any attorney work product relating to any attorney’s representation of Mr. Bannon or to obtain any confidential communications between Mr. Bannon, Mr. Costello, and Mr. Katz, or between Mr. Bannon and any other attorneys.

We have provided all discoverable material in the prosecution team’s possession, custody, or control relating to Mr. Costello’s and Mr. Katz’s involvement in the conduct charged in the Indictment.

The first paragraph explains a warning DOJ gave when Costello first raised noticing an appearance in the contempt prosecution for Bannon (it’s likely Costello had been tipped off by his firm that DOJ had obtained his toll records by that point). DOJ makes clear that, by voluntarily sitting for two meetings at which FBI agents were present, Costello made himself a witness about the basis for which Bannon gave for blowing off the Committee subpoena. As I have noted, Costello gave materially inconsistent answers at that meeting, likely giving the FBI probable cause to investigate whether he had made false statements; the easiest and least intrusive way to test whether his claims were true was to test whether his claims about the existence and timing of communications with Trump’s lawyers were true or not — thus the toll record seizure.

The remaining two paragraphs disclaim any impact on Bannon. Call records are not work product and, while sensitive, are not treated as privileged (and in any case, date to a period in which Costello was not representing Bannon criminally). The interviews were work-product, claims about the advice Costello gave Bannon (including the email Costello described in which he told Bannon to be BEWARE because he was likely to be referred to DOJ for prosecution). But Costello shared that work-product voluntarily. DOJ has not otherwise obtained the work-product or confidential content of Costello pertaining to Bannon.

That paragraph says nothing about Costello’s representation of Rudy, though.

And the following paragraph makes it more likely this statement intentionally stops short of covering all of Costello’s work product. It limits the statement about materials in its possession to the prosecution team (excluding, for example, SDNY prosecution teams). It doesn’t address confidential communications between Rudy and Costello. And for good measure, it limits its statements to Costello’s involvement in the January 6 subpoena, not other matters.

Costello may not count as a Trump associate directly. But this is all about Trump’s extended effort to obstruct investigations into his conduct. And because of the way Costello has, on at least two occasions, been the weak link that pierced privilege covering such cover-ups, may be a key investigative target.

Sidney Powell

Sidney Powell may be another key lawyer who pierced privilege.

Several different outlets have reported that there is a grand jury investigation into Sidney Powell’s grifting off lies about election fraud.

Since my last post on investigations into Trump’s associates, Sidney Powell’s lawyer revealed she is “cooperating” in that investigation, though in contemplating “cooperation” with the January 6 committee, she is reserving privilege claims about “advice” to Donald Trump.

A lawyer for Sidney Powell, a well-known, Trump-connected attorney, acknowledged that her organization’s fundraising connected to the 2020 election is subject to an ongoing federal criminal investigation.

Powell’s lawyer, Howard Kleinhendler, told CNN that his client “is cooperating” with the investigation into her organization, Defending the Republic, by the US Attorney’s Office in the District of Columbia. That cooperation includes “rolling productions” of documents.

[snip]

Still, when the committee asks Powell about communications she had with Trump, that is “going to get a little hairy,” Kleinhendler told CNN.

He said Powell believes that the times Trump called her to ask for legal advice may be covered by attorney-client privilege — even if he never paid her to be his or his campaign’s lawyer. Powell never worked as a lawyer for the former President personally or for the Trump campaign, Kleinhendler said.

“We’ll have to deal with that, and we’ll have to try to discuss with the committee to see how” to handle privilege issues, Kleinhendler said.

But Powell can’t claim privilege for the bulk of the period during which she was helping Trump steal the election. After Trump claimed Powell represented him on November 15, 2020, Rudy stated as clearly as he can manage on November 22 that, “Sidney Powell is practicing law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity.”

With that statement, Rudy effectively waived privilege for any communications implicating both of them from that date forward, long in advance of a December 18 meeting at which Powell purportedly told him about all the communications she sent him in the interim.

Similarly, most of these events post-date the time, November 25, when Powell can credibly claim to be representing Mike Flynn in an effort to nullify the consequences of his lies and foreign agent work, because that’s when Trump pardoned Flynn. Certainly, Powell’s claim to be criminally representing Flynn ended no later than December 8, when Emmet Sullivan dismissed the case. So she may want to claim privilege, but well before the critical meeting between Rudy, Powell, Flynn, and Patrick Byrne on December 18, all visible basis for that claim was affirmatively gone, and for anything seized from her email provider, she’s likely not going to be involved in making that claim anyway.

Mark Meadows

In a number of posts, I have argued that DOJ would be better off treating the January 6 contempt referral as, instead, a referral into obstruction of justice for the way Mark Meadows withheld or deleted evidence pertaining to the coup attempt.

I can’t prove that has happened.

What is certain, however, is that Deputy Attorney General Lisa Monaco confirmed that DOJ is investigating the fake electors.

“We’ve received those referrals. Our prosecutors are looking at those and I can’t say anything more on ongoing investigations,” Monaco said in an exclusive interview.

And the January 6 contempt referral made clear that communications in Meadows possession show that he was at the center of that effort.

Mr. Meadows received text messages and emails regarding apparent efforts to encourage Republican legislators in certain States to send alternate slates of electors to Congress, a plan which one Member of Congress acknowledged was ‘‘highly controversial’’ and to which Mr. Meadows responded, ‘‘I love it.’’ Mr. Meadows responded to a similar message by saying ‘‘[w]e are’’ and another such message by saying ‘‘Yes. Have a team on it.’’34

34Documents on file with the Select Committee (Meadows production).

Meadows has been frantically trying to ensure whichever of these communications occurred on his personal accounts get shared with the Archives. Which means DOJ now knows they can learn details of the fake elector conspiracy by obtaining those records from the Archives.

Alex Jones

Over the last year, DOJ has collected a great deal of evidence that the Oath Keepers, the Proud Boys, and an alarming number of former Marines worked together to open a second breach on the Capitol via the East doors. Instrumental to the success of this breach were a large number of MAGA tourists who joined in the breach. DOJ has proof that at least some of them were there because Alex Jones had lured them there by lying about a second Trump speech on the East side of the building.

DOJ has already arrested two of Jones’ employees: videographer Sam Montoya in April and on-air personality Owen Shroyer in August.

In a November DOJ response in the Shroyer case, Alex Jones was referred to as Person One, as numerous others believed to be under active investigation have been described. That filing debunked the cover story that Shroyer and Jones have used to excuse their actions on January 6. Judge Tim Kelly, who is also presiding over the most important Proud Boys cases, is currently reviewing Shroyer’s First Amendment challenge to his arrest.

This strand of the investigation has likely necessarily lagged the exploitation of former Alex Jones’ employee Joe Biggs’ iCloud and phone, which were made available to Biggs’ co-travelers in August. This post has more on the developments in the Montoya and Shroyer cases, including that a different prosecutor recently took over Monotya’s case.

Roger Stone

Roger Stone, who has close ties to both the Oath Keepers and Proud Boys who coordinated the attack on the Capitol, has shown up repeatedly in the Oath Keeper conspiracy. In March, DOJ debunked Connie Meggs’ claim not to know her co-conspirators by including a picture of an event she did with Roger Stone and Graydon Young (this was close to the time that Connie’s husband Kelly organized an alliance between Florida militias).

In a May 25 FBI interview, Mike Simmons, the field commander for the Oath Keepers on January 6, appears to have been specifically asked why Simmons had so many conversations with Joshua James, who was providing security for Roger Stone at the Willard the morning of the insurrection. Simmons appears to have explained that James called him every time Stone moved.

In June, Graydon Young, the Floridian who attended that Stone event with Connie, entered a cooperation agreement. Also in June, Mark Grods, one of the Oath Keepers who had been at the Willard that morning, entered a cooperation agreement. In September, Jason Dolan, a former Marine from Florida who also interacted with Stone in advance of the insurrection and who was waiting there on January 6 as the other Oath Keepers, a number of Proud Boys (including former Alex Jones employee Joe Biggs) and Alex Jones himself all converged at the top of the East steps just as the doors were opened from inside, entered a cooperation agreement.

Erik Prince

In my last post, I described a grand jury investigation into a powerful Trump associate that had subpoenaed witnesses in the investigation in the second half of last year. NYT just disclosed that investigation, which is into Erik Prince.

Mr. Prince is separately under investigation by the Justice Department on unrelated matters, according to people familiar with the case. The scope of that investigation is unclear.

The investigation reflects a reopening of an investigation Billy Barr shut down in 2019-2020. What’s interesting about it is the scope seems somewhat different and the investigating District is different than the earlier investigation. That may suggest that, for investigations that Barr shut down, DOJ would need to have a new evidence to reopen it. But the existence of this investigation shows, again, that Garland’s DOJ will go after powerful Trump associates.

In any case, I keep laying all this out, and TV lawyers keep angrily insisting that this public evidence does not exist.

I can’t guarantee that any of these investigations will lead to charges (or, in the case of Bannon and Barrack, convictions). Investigations alone will not save democracy.

But there is abundant evidence that DOJ is not shying away from aggressively investigating the suspect criminal conduct of Trump flunkies.

Tom Barrack Suggests He Can’t Be Prosecuted Because It Didn’t Happen Early Enough To Be Obstructed

Tom Barrack has filed a previously scheduled motion to dismiss his prosecution.

It consists of challenges to the Foreign Agent — 18 USC 951 — charge against him that rely heavily on the Bijan Kian case, which is in a different circuit and very much in flux. Though as always disputes about this Foreign Agent application are of interest.

It includes a typical challenge based on FBI’s practice of writing up reports of interviews rather than recording them. This challenge might or might not include more valid complaints about the 302 than similar challenges that have failed in the past (we’ll find out at the end of February when the government files its response).

Moreover, the sole record the government chose to create are the handwritten notes of a single case agent that reflect little more than the agent’s subjective commingling of the questions and answers into shorthand assertions, wholly devoid of the actual questions asked and answers given.

[snip]

Similarly, Count 6 alleges that Mr. Barrack “falsely stated [that he) had no role in facilitating communications between the President-Elect and officials from the United Arab Emirates[.]” Indictment ,r 105. The indictment alleges that this statement was false because Mr. Barrack supposedly “arrang[ed) one or more telephone calls between the President-Elect and Emirati Official 1 and Emirati Official 2” and because he “provid[ ed) contact information” for Emirati officials to the President-Elect’s assistant. As with Count 4, however, the record does not reflect whether the ambiguous term “facilitating communications” was used by the government in its question or instead whether those were words used by Mr. Barrack in his response.

But the bulk of this motion to dismiss consists of an insinuation that this prosecution should have been successfully obstructed by Donald Trump.

Barrack doesn’t say that outright. Instead, he raises the fact that he was charged two years after his interview. He says that over and over. He even asks for discovery as to why it happened that way.

After that June 2019 interview, Mr. Barrack heard nothing more from the prosecutors. They did not contact him or his counsel to express any concerns about the information he provided or to discuss potential charges or a pre-indictment presentation. Meanwhile, Mr. Barrack continued working as Executive Chairman of his company and in that role made dozens of trips overseas, including to the Middle East. He also continued to act as an informal advisor to the Administration on foreign and economic policy with no indication by the government that he was supposedly an undisclosed foreign agent or national security threat.

On July 20, 2021, after two years of silence, more than a dozen armed FBI agents burst into a Los Angeles office where Mr. Barrack was attending a business meeting and took him into custody. He was incarcerated in a California general population prison for four days until he was released under extremely harsh and virtually unprecedented bail conditions.

Third, the government waited two years long after memories of the precise language used during the interview would have faded to charge Mr. Barrack with multiple felony counts premised on allegedly false statements

[snip]

The government appears to have taken few investigative steps following Mr. Barrack’s June 2019 interview, waiting for two years before bringing charges. This delay is even more inexplicable given that the government’s actions since Mr. Barrack’s interview do not reflect any apparent concern that he was a foreign agent or national security threat, even though he traveled overseas more than a dozen times and continued to have access to senior White House personnel and the President. The Due Process Clause protects defendants against such prejudicial, unjustified pre-indictment delay. See United States v. Lovasco, 431 U.S. 783, 789 (1977); United States v. Marion, 404 U.S. 307, 324 (1971); see also Fed. R. Crim. Proc. 48(b) (allowing dismissal of indictment for pre-indictment delay). To establish such a due process violation, a defendant must show both that he was prejudiced by the delay and that the government acted with an impermissible mens rea in delaying the indictment. Because both are present here, the indictment must be dismissed in full. Or, at the very least, the Court should allow discovery into the reasons for the government’s extended delay.

[snip]

Finally, the government’s unjustified two-year delay in charging Mr. Barrack also warrants dismissal of the indictment. The government had all the evidence on which the indictment was based in 2019. The indictment pleads the conspiracy terminated in April 2018, and the alleged false statements occurred in June 2019. Why the government waited more than two years, and until after a change in administration, is a question only it can answer, but it should answer it especially given the paramount First Amendment interests at stake. Had the government brought this case when its investigation was complete in 2019, recollections regarding Mr. Barrack’s June 2019 interview would have been fresh and the harm from the government’s failure to make a contemporaneous record might have been mitigated. The lengthy delay has also prejudiced Mr. Barrack’s ability to identify, preserve, and secure documentary evidence and obtain evidence from witnesses whose memories have faded. The government has provided no explanation for its delay, and the specter that the government intentionally delayed bringing this case for political reasons or tactical advantage hangs heavily over this case. Because Mr. Barrack has been deprived of a fair opportunity to defend himself, the indictment should be dismissed. [my emphasis]

Barrack’s suggestion — probably correct — that any charges under Donald Trump wouldn’t have survived Billy Barr’s meddling and Donald Trump’s pardons are all the more curious given his suggestion that the White House and intelligence agencies deleted records involving his actions.

To that point, the government has not produced, or perhaps not even searched for, internal memoranda or communications in government offices such as the White House or the intelligence agencies that were in the possession of key individuals in the campaign and Administration with whom Mr. Barrack was in communication about the matters alleged in the indictment. Moreover, it is doubtful that texts and emails once in the possession of such witnesses can now be reasonably obtained, especially with the change of administration.

While an intriguing insinuation, this seems to say more about the way that Jared Kushner and Trump were protected by this investigation than anything else; Barrack does not, here, make a claim that this should have been turned over in discovery. (I suspect the charges were scoped the way they were to implicate Trump and Kushner as little as possible, which I noted here.)

Unless the 302 problems are unique — and nothing here suggests they are — the way in which DOJ backstopped this with the false statements charges will make this indictment less susceptible to challenge on the face of the law.

But before it gets there, this challenge will be a test of DOJ’s ability to wait out an obstructionist President and Attorney General to prosecute an alleged criminal.