Posts

The Six Trump Associates Whom DOJ Is Investigating

Because I keep having to lay out the proof that DOJ, in fact, has investigated close Trump associates of the sort that might lead to Trump himself, I wanted to make a list of those known investigations. Note that three of these — Sidney Powell, Alex Jones, and Roger Stone — definitely relate to January 6 and a fourth — the investigation into Rudy Giuliani — is scoped such that that it might include January 6 without anyone knowing about it.

Rudy Giuliani

As I said a month ago, the treatment of Rudy Giuliani’s phones single-handedly disproves claims that Merrick Garland’s DOJ wouldn’t investigate Trump’s people, because a month after he was confirmed and literally the same day that Deputy Attorney General Lisa Monaco was sworn in on April 21, DOJ obtained warrants targeting Rudy Giuliani.

The known warrants for Rudy’s phone 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.

But as this table shows, Judge Paul Oetken ordered Special Master Barbara Jones to conduct a privilege review for Rudy’s seized devices from January 1, 2018 through the date of seizure, April 28, 2021. That means anything on Rudy’s devices from the entire period when he was helping Trump obstruct Mueller’s investigation well past the time he played the central role on orchestrating a coup attempt would be available to DOJ if it could show probable cause to get it.

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.

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.

Tom Barrack

Just this Tuesday, in a Zoom hearing for Brooklyn’s Federal Court, lawyers for the guy who installed Paul Manafort as Trump’s campaign manager suggested that Merrick Garland had politicized DOJ because, after the investigation into Tom Barrack had apparently stalled in 2019, he was indicted as an unregistered agent of the Emirates in July 2021.

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.

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

Sidney Powell

Two different outlets have reported that there is a grand jury investigation into Sidney Powell’s grifting off lies about election fraud. WaPo’s story on the investigation describes that Molly Gaston is overseeing the investigation (she is also overseeing the Steve Bannon referral). As I noted, Gaston was pulled off three prosecutions for insurrectionists by last March.

Gaston originally pulled three January 6 cases in the investigation’s early days, those of Robert Packer, Robert Gieswein, and Derrick Evans, just the latter of which, involving a then-West Virginia state politician, had any possible public corruption component. But, at a time of immense staffing shortages at DC’s US Attorney’s Office, she dropped off those cases on February 18 (in the case of Packer) and March 29 (in the case of Gieswein and Evans). I’ve long wondered what, in the weeks after Merrick Garland came in, became a higher priority for the DC US Attorney’s leading public corruption prosecutor. We now know one thing she picked up in the interim was the prosecution of Michael Riley, the Capitol Police Officer who advised rioter Jacob Hiles to delete Facebook posts about his role in the riot. And by September, Gaston’s grand jury investigation into Sidney Powell’s grift had started taking overt steps like subpoenaing Powell’s nonprofit.

For at least the Michael Riley prosecution and the Steve Bannon prosecution, Gaston is using two of at least three grand juries that are also investigating insurrectionists. For at least those investigations, there is no separate grand jury for the public corruption side of the investigation and the assault on the Capitol. They are the same investigation.

The investigation into Powell will necessarily intersect in interesting ways with Trump’s pardon of Mike Flynn.

There have been a lot of complaints that DOJ is not following the money. Powell’s investigation is proof that DOJ is following the money.

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

There’s one more grand jury investigation into a powerful Trump associate that I know of via someone who was subpoenaed in the investigation in the second half of last year. 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.

Update, 2/8/22: NYT just named the sixth person under investigation: 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.

It baffles me why TV lawyers continue to claim there’s no evidence that Merrick Garland is investigating anyone close to Trump — aside from they’re looking for leaks rather than evidence being laid out in plain sight in court filings. One of the first things that Garland’s DOJ did was to take really aggressive action against the guy who led Trump’s efforts to launch a coup. Alex Jones and Roger Stone are clearly part of the investigation into how the breach of the East doors of the Capitol came together, and the two of them (Jones especially) tie directly back to Trump.

There are other reasons to believe that DOJ’s investigation includes Trump’s role in the assault on the Capitol, laid out in the statements of offense from insurrectionists who’ve pled guilty, ranging from trespassers to militia conspirators. But one doesn’t even have to read how meticulously DOJ is collecting evidence that dozens of people have admitted under oath that they participated in the attack on the Capitol because of what Trump had led them to believe on Twitter.

Because DOJ clearly has several other routes to get to Trump’s role via his close associates. I’m not promising they’ll get there. And this will take time (as I’ll show in a follow-up). But that’s different than claiming that this evidence doesn’t exist.

Update: I did a podcast where I explained how the misdemeanor arrests are necessary to moving up the chain.

Ten Things TV Lawyers Can Do Rather than Whinging about Merrick Garland

I continue to have little patience for the people–many of them paid to expound as lawyers on TV–who spend their time whinging that Merrick Garland is not moving quickly enough to hold Trump accountable rather than spending their time doing other more productive things to protect democracy.

I’m not aware that any of these people has tracked the January 6 investigation closely enough to name those one or two degrees away from the former President who have been charged or are clearly subjects of investigation. Similarly, I’ve seen none do reporting on the current status of Rudy Giuliani’s phones, which after a Special Master review will release a bunch of information to prosecutors to use under any warrant that DOJ might have. Indeed, many of the same people complain that Trump has not been accountable for his Ukraine extortion, without recognizing that any Ukraine charges for Trump would almost certainly have to go through that Rudy investigation. The approval for the search on Rudy’s phones may have been among the first decisions Lisa Monaco made as Deputy Attorney General.

It’s not so much that I’m certain DOJ would prosecute Trump for his serial attempts to overthrow democracy. There are tea leaves that DOJ could get there via a combination of working up from pawns who stormed the Capitol and down from rooks referred from the January 6 Commission. But I’m more exasperated with the claims that there were crimes wrapped with a bow (such as Trump’s extortion of Ukraine) that Garland’s DOJ could have charged on March 11, when he was sworn in. Even the Tom Barrack prosecution, a Mueller referral which reportedly was all set to indict in July 2020, took six months after Biden’s inauguration before it was indicted. The January 6 investigation started less than eleven months ago; eleven months into the Russian investigation, Coffee Boy George Papadopoulos had not yet been arrested and he was still months away from pleading guilty, on a simple false statements charge. We have no idea how much deliberate damage Billy Barr did to other ongoing investigations arising out of the Mueller investigation, but his public actions in the Mike Flynn, Roger Stone, and Paul Manafort cases suggests it is likely considerable. As for the January 6 investigation, as I’ve noted, it took nine months from the time FBI learned that a Capitol Police Officer had warned Jacob Hiles to delete his Facebook posts until the time DOJ indicted Michael Riley on two counts of obstruction. To imagine that DOJ would have already indicted Trump on anything he might be hypothetically under investigation at this point, particularly relating to January 6, is just denial about how long investigations take, even assuming the subject were not the former President with abundant access to free or RNC-provided legal representation.

It’s not that I don’t understand the gravity of the threat. I absolutely share the panic of those who believe that if something doesn’t happen by midterms, Republicans will take over the House and shut every last bit of accountability down. I agree the threat to democracy is grave.

But there is no rule that permits DOJ to skip investigative steps and due process simply because people have invested in DOJ as the last bulwark of democracy, or because the target is the greatest threat to democracy America has faced since the Civil War. DOJ investigations take time. And that is one reason why, if people are hoping some damning indictment will save our democracy, they’re investing their hopes in the wrong place, because an investigation into Trump simply will not be rolled out that quickly. Even if Trump were indicted by mid-terms, the Republicans have invested so much energy into delegitimizing rule of law it’s not clear it would sway Fox viewers or even independent voters.

I can’t tell you whether DOJ will indict Trump. I can tell you that if they do, it will not come in time to be the one thing that saves democracy.

And so, because I believe the panicked hand-wringing is about the least productive way to save democracy, I made a list. Here are ten way that TV lawyers could better spend their time than whinging that Merrick Garland hasn’t indicted Donald Trump yet:

  1. Counter the propaganda effort to treat the Jan 6 defendants as martyrs.
  2. Explain how brown and black defendants actually faced worse conditions in the DC jail — and have complained with no results for years.
  3. Explain how DOJ has lost cases against white terrorists (including on sedition charges) in the past.
  4. Describe what really goes into an indictment, what kind of evidence is required, how long it takes, and the approvals that are needed to help people understand what to really expect.
  5. Emphasize the prosecutions/charges/investigations that have or are occurring.
  6. Describe the damage done by Trump’s pardons.
  7. Describe the way that even loyal Trumpsters will be and have been harmed as he corrupts the rule of law.
  8. Focus on the efforts of Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson to undercut the investigation into Project Veritas’ suspected theft of Ashely Biden’s diary
  9. Explain how shoddy John Durham’s indictments are.
  10. Focus on the legal threats to democracy in the states.

Counter the propaganda effort to treat the Jan 6 defendants as martyrs

Whether or not Trump is ever charged with crimes related to January 6, the right wing noise machine has already kicked into gear trying to make it harder to prosecute other culprits for the January 6 riot. They’ve done so by falsely claiming:

  • The event was just a protest like the protests of Brett Kavanaugh’s confirmation, a claim DOJ already debunked, in part by showing that the Kavanaugh protestors who briefly halted his confirmation hearing had been legally admitted.
  • They’re being treated more harshly than those who used violence at BLM or Portland protests. DOJ has submitted multiple filings showing that such claims are based on cherry-picked data that ignore the state charges many of these defendants face, the better quality of evidence against Jan 6ers (in part because they bragged about their actions on social media), and the more heinous goal of the protest involved.
  • Large numbers of non-violent January 6 are being held in pretrial detention. In reality, the overwhelming majority of those detained were charged either in a militia conspiracy or for assaulting cops. The exceptions to this rule are generally people (like Brandon Fellows or Thomas Robertson) who violated pretrial release conditions. Additionally, a good number of those accused of assaulting cops have been released.
  • January 6 defendants are subjected to especially onerous treatment in jail. Many of the conditions they’re complaining about are COVID restrictions imposed on all detainees (though often more restrictive for those who, like a lot of January 6 defendants, choose not to get vaccinated). And in an inspection triggered by January 6 defendant Christopher Worrell’s complaints, the Marshals determined that the other part of the DC jail violated Federal standards, though the part in which the Jan 6ers are held did not.
  • January 6 defendants are just patriots trying to save the country. In reality, of course, these people were attempting to invalidate the legal votes of 81 million Americans.

Again, all these claims are easily shown to be false. But far too many people with a platform are allowing them to go unanswered, instead complaining that DOJ is not doing enough to defend the rule of law. This sustained effort to turn the Jan 6ers into martyrs will achieve real hold unless it is systematically countered.

Explain how brown and black defendants actually faced worse conditions in the DC jail — and have complained with no results for years

As noted above, after Proud Boy assault defendant Worrell complained about the treatment he received in DC jail, the Marshals conducted a snap inspection. They discovered that the older part of the DC jail, one housing other detainees but not Jan 6ers, did not meet Federal standards and have started transferring those detainees to a prison in Pennsylvania.

What has gotten far less attention is that problems with the DC jail have been known for decades. Even though the problems occasionally have gotten passing attention, in general it has been allowed to remain in the inadequate condition the Marshals purportedly discovered anew because a white person complained.

This is an example, then, when a white person has claimed himself to be the victim when, in fact, it’s yet another example of how brown and black people have less access to justice than similarly situated white people.

This development deserves focused attention, most of all because it is unjust. But such attention will flip the script that Jan 6ers are using in an attempt to get sympathy from those who don’t understand the truth.

Explain how DOJ has lost cases against white terrorists (including on sedition charges) in the past

There’s a lot of impatience that DOJ hasn’t simply charged January 6 defendants with sedition or insurrection.

Thus far, DOJ has chosen to use a less inflammatory and more flexible statute, obstruction, instead. Obstruction comes with enhancements — for threatening violence or especially obstructive behavior — that DOJ has used to tailor sentencing recommendations.

The wisdom of this approach will soon be tested, as several DC Judges weigh challenges to the application of the statute. If the application is overturned, it’s unclear whether DOJ will charge something else, like sedition, instead.

But DOJ probably chose their current approach for very good reason: because sedition is harder to prove than obstruction, and in the past, white terrorists have successfully beaten such charges. That’s true for a lot of reasons, partly because the absence of a material support statute makes association with a right wing terrorist group harder to prosecute.

A cable personality whom I have great respect for — NBC’s Barb McQuade — knows this as well as anyone, as she was US Attorney when a sedition conspiracy case against the Hutaree collapsed. In that case, DOJ had trouble proving that defendants wanted to overthrow the US government, the kind of evidentiary claim that DOJ will face in January 6 trials, even as currently charged.

There are real challenges to prosecuting white terrorism. Some education on this point would alleviate some of the impatience about the charging decisions DOJ has made.

Describe what really goes into an indictment, what kind of evidence is required, how long it takes, and the approvals that are needed to help people understand what to really expect

In the period between the time Steve Bannon was referred to DOJ for contempt and the time he was charged, a number of commentators used the delay to explain what it takes to get an indictment (against a high profile political figure) that stands a chance of work; one good example is this column by Joyce Vance.

There have been and are numerous examples of similar delays — the Tom Barrack indictment and the Rudy Giuliani Special Master review are two — that offer similar teaching opportunities about the process and protections involved in indicting someone.

Due process takes time. And yet in an era of instant gratification, few people understand why that’s the case. If we’re going to defend due process even while trying to defend our democracy, more education about what due process involves would temper some of the panic.

Emphasize the prosecutions/charges/investigations against Trump that have or are occurring

Given the din calling for prosecution of Donald Trump, you’d think none of his associates had been prosecuted. As Teri Kanefield noted the other day, it would be far better if, instead of saying Trump had suffered no consequences for his actions, there was some focus instead on where he had.

Trump’s business is currently under indictment with multiple investigations into it ongoing. His charity was shut down and fined for self-dealing. Trump’s Inauguration Committee will be civilly tried for paying above market rates to Trump Organization.

His Campaign Manager, his National Security Advisor, his Coffee Boy, his Rat-Fucker, and one of his personal lawyers were found guilty of lying to cover up what really happened with Russia in 2016. Several of these men (as well as a top RNC donor) also admitted they were secretly working for frenemy countries, including (in Mike Flynn’s case), while receiving classified briefings as Trump’s top national security aide. Trump’s biggest campaign donor, Tom Barrack, is being prosecuted for using the access he purchased to Trump to do the bidding of the Emirates. Another of Trump’s personal lawyers, Rudy Giuliani, is under investigation for the same crime, secretly working for another country while claiming to represent the interests of the President of the United States.

The sheer scale of this is especially breathtaking when you consider the projection the GOP has — successfully — focused on Hunter Biden for similar crimes. Even with years of effort and help from Russia, the GOP has not yet been able to prove that the President’s son’s influence peddling or potential tax accounting violated the law. Yet the GOP continues to focus on him relentlessly, even as the long list of Republicans who admit to the same crime continues to grow.

Trump has already proven to be the most corrupt president in some time, possibly ever. And instead of relentless messaging about that, Democrats are complaining about Merrick Garland.

Describe the damage done by Trump’s pardons

One reason why it’s hard to focus on all those criminal prosecutions is because Trump pardoned his way out of it. With the exception of Michael Cohen and Rick Gates, all the people who lied to cover up his Russian ties were pardoned, as was Steve Bannon and others who personally benefitted Trump.

Perhaps because these pardons happened in the wake of January 6, Trump avoided some of the shame he might otherwise have experienced for these pardons. But for several reasons, there should be renewed attention to them.

That’s true, for starters, because Trump’s pardons put the entire country at risk. By pardoning Eddie Gallagher for war crimes, for example, the US risks being treated as a human rights abuser by international bodies. The military faces additional disciplinary challenges. And those who cooperated against Gallagher effectively paid a real cost for cooperating against him only to see him escape consequences.

Paul Manafort’s pardon is another one that deserves renewed attention. That’s true not just because the pardon ended up halting the forfeiture that otherwise would have paid for the Mueller investigation, the cost of which right wingers claimed to care about. It’s true because Trump has basically dismissed the import of industrial scale tax cheating (even while right wingers insinuate that Hunter Biden might have made one error on his taxes). And finally, it’s true because Trump made an affirmative choice that a guy who facilitated Russia’s effort to undermine democracy in 2016, sharing information directly with someone deemed to be a Russian spy, should not be punished for his actions.

Finally, there should be renewed attention on what Trump got for his pardons. Did Steve Bannon and Mike Flynn pay central roles in January 6 in exchange for a pardon?

The US needs some means to prohibit such self-serving pardons like Trump pursued. But in the meantime, there needs to be some effort to shame Trump for relying on such bribes to stay out of prison himself.

Describe the way that even loyal Trumpsters will be and have been harmed as he corrupts the rule of law

Donald Trump pardoned Steve Bannon for defrauding a bunch of Trump loyalists. According to very recent reporting, Sidney Powell is under investigation (and being abandoned by her former allies) on suspicion she defrauded the thousands of Trump supporters who sent money to support her election conspiracy theories.

Meanwhile, the Republican Party continues to dump money into protecting Trump for his own crimes, even as Republicans lose races that could have benefitted from the money.

However, some RNC members and donors accused the party of running afoul of its own neutrality rules and misplacing its priorities. Some of these same officials who spoke to CNN also questioned why the party would foot the legal bills of a self-professed billionaire who was sitting on a $102 million war chest as recently as July and has previously used his various political committees to cover legal costs. According to FEC filings from August, the former President’s Make America Great Again committee has paid Jones Day more than $37,000 since the beginning of the year, while his Make America Great

Again super PAC has paid a combined $7.8 million to attorneys handling his lawsuits related to the 2020 election.

“This is not normal. Nothing about this is normal, especially since he’s not only a former President but a billionaire,” said a former top RNC official.

“What does any of this have to do with assisting Republicans in 2022 or preparing for the 2024 primary?” the official added.

Bill Palatucci, a national committeeman from New Jersey, said the fact that the RNC made the payments to Trump’s attorneys in October was particularly frustrating given his own plea to party officials that same month for additional resources as the New Jersey GOP sought to push Republican Jack Ciattarelli over the finish line in his challenge to incumbent Democratic Gov. Phil Murphy.

“We sure as heck could have used $121,000,” Palatucci told CNN.

Loyal Trumpsters are the victim of one after another grift, and that should be emphasized to make it clear who is really taking advantage of them.

And one after another former Trump loyalist get themselves in their own legal trouble. One of the messages Michael Cohen tried to share in his testimony before going to prison was that “if [other Republicans] follow blindly, like I have,” they will end up like he did, going to prison. Hundreds of January 6 defendants — some of whom imagined they, too, might benefit from Trump’s clemency (they still might, but they’ll have to wait) — are learning Cohen’s lesson the hard way.

Kleptocracy only benefits those at the top. And yet Trump’s supporters continue to aggressively pursue policies that will make the US more of a kleptocracy.

It’s fairly easy to demonstrate the damage degrading rule of law in exchange for a kleptocracy is. Except average people aren’t going to understand that unless high profile experts make that case.

Focus on the efforts of Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson to undercut the investigation into Project Veritas’ suspected theft of Ashely Biden’s diary

The Project Veritas scandal remains obscure and may never amount to charges against PV itself. Yet even as it has become clear that DOJ is investigating theft, key Republicans Chuck Grassley, Jim Jordan, James Comer, and Ron Johnson are trying to shut down the investigation into that theft. Chuck Grassley’s efforts to do so are particularly noxious given that a long-term staffer of his, Barbara Ledeen, is a sometime co-conspirator of Project Veritas.

Republicans have undermined legitimate investigations into Trump, over and over, with little pushback from the press. This is an example where it would seem especially easy to inflict a political cost (especially since Grassley is up for re-election next year).

It would be far more useful, in defending rule of law, to impose political costs on undermining the investigations that commentators are demanding from DOJ than it is to complain (incorrectly) that such investigations aren’t happening. Merrick Garland (however imperfect) is not the enemy of rule of law here, Jim Jordan is.

Explain how shoddy John Durham’s indictments are

One of the complaints that David Rothkopf made in the column that kicked off my latest bout of impatience with the hand-wringing about Garland complained that Garland “is letting” Durham charge those who raise concerns about Trump’s ties to Russia, even while (Rothkopf assumes) ignoring Trump’s own efforts to obstruct the investigation.

We have seen that Garland is letting the highly politicized investigation of special prosecutor John Durham into the conduct of the Trump-Russia investigation continue (by continuing its funding). We therefore have the real prospect that those who sought to look into the Trump-Russia ties that both Mueller and Congressional investigations have demonstrated were real, unprecedented and dangerous might be prosecuted while those who actively sought the help of a foreign enemy to win an election will not be.

As I have noted, both of Durham’s indictments have been shoddy work, hanging charges on Twitter rants and other hearsay evidence.

And while there was some worthwhile criticism of the Michael Sussmann indictment (perhaps because he’s well-connected in DC), Democrats seem to take Durham’s word that Igor Danchenko — and not Christopher Steele or Russian disinformation — is responsible for the flaws in the dossier. Perhaps as a result, the legal experts who could point out how ridiculous it is to rely on a Twitter feed for a key factual claim have remained silent.

With such silence, it is not (just) Garland who “is letting [Duram’s] highly politicized investigation” continue unchecked, but also the experts whose criticism could do something to rein him in.

If the investigation is politicized — and it is — then Durham is a far more appropriate target than Garland.

Focus on the legal threats to democracy in the states

There has, admittedly, been deserved focus on the ways Republicans are chipping away at democratic representation in the states.

But that is where the battle for democracy is being fought. And in most of the states where Trump attempted to undermine the 2020 election, there are follow-on legal issues, whether it’s the investigation into the suspected voting machine theft in Colorado (including into a former campaign manager for Lauren Boebert), a seemingly related investigation in Ohio, or the effort to criminalize efforts to ease voting by seniors during the pandemic in Wisconsin.

Republicans are trying to criminalize democracy. That makes it all the more important to ensure that the call for rule of law remains laser focused on the criminal efforts to cheat to win, if for no other reason than to shame those involved.

The threat to democracy is undoubtedly grave. Republicans are deploying their considerable propaganda effort into legitimizing that attack on democracy (even while suggesting Biden has committed the kind of graft that Trump engaged in non-stop, classic projection).

In the face of that unrelenting effort, expert commentators who support democracy have a choice: They can defend the rule of law and shame those who have denigrated it, or they can spend their time complaining about the guy trying, however imperfectly, to defend it himself. The latter will make Garland less able to do his job, the former will help him do whatever he is willing and able to do.

Update: Added “suspected” to the PV bullet.

Where to Look (or Not) for Signs of Life in Rule of Law

According to the court schedule for this week, January 6 defendants Stacie and John Getsinger will plead guilty on Thursday, no doubt to misdemeanor trespassing. On the surface, their guilty plea will likely resemble those of the dozens of other January 6 misdemeanor pleas that have gone before them, and that may be all it is.

But, along with a handful of others (Adam Johnson and Justin McAuliffe, who both pled guilty last week, are two other examples), these pleas may hint at what kind of larger underlying case DOJ is building. That’s because the Getsingers are witnesses to an important detail about the way January 6 worked: that Alex Jones, whom Trump had put in charge of leading mobs to the Capitol, likewise induced them to go to the top of the East steps of the Capitol with a lie, the false claim that Trump would be speaking there. That’s what led a couple like the Getsingers, who otherwise would never have entered the Capitol, to do so.

This comes even as InfoWars personality Owen Shroyer’s attempts to dodge his own legal accountability have brought more focus on Jones’ actions, described as Person One in DOJ’s opposition to Shroyer’s attempt to dismiss his indictment.

When the body-camera individual asked if he could get Person One there, the officer stated, “Through the hole that you guys breached right there” (emphasis added). When the body-camera individual responded that he didn’t breach anything, the officer retorted, “Well, the whole group that was with you guys.” The officer then pointed again away from the Capitol Building toward the northeast, telling them to leave through the same hole he had just said other rioters had breached. An officer surrounded by people illegally on the Capitol Grounds dismissively waving them away from the Capitol Building and toward another area hundreds of others had already illegally breached does not amount to “telling [the defendant] that … police officers could use his help.”

[snip]

[T]he defendant forced his way to the top of Capitol Building’s east steps with Person One and others and led hundreds of other rioters in multiple “USA!” and “1776!” chants with his megaphone. Harkening to the last time Americans overthrew their government in a revolution while standing on the Capitol steps where elected representatives are certifying a Presidential Election you disagree with does not qualify as deescalation.

[snip]

The video shows the defendant on an elevated platform leading chants with his megaphone on the Capitol Grounds before his first interaction with law enforcement officers; it shows the body-camera individual repeatedly (and unsuccessfully) try to get Person One on the Capitol steps; it shows evidence that the defendant reasonably should have known he was somewhere he was not supposed to be, including by stepping near moved barriers and downed signs; and it shows officers repeatedly refer to the defendant’s group as part of the problem and the “breaches” of various police lines. In fact, at the end of the video, the body-camera individual took matters into his own hands after facing multiple rejections for permission. He turned to the group and asked, “Just get him up there? … But we know we might catch a bang or two.” That is not evidence that the defendant received explicit or implicit permission to go onto the Capitol steps. That is evidence that the defendant is guilty of the crimes he is charged with.

Every single time that Merrick Garland has been asked about the scope of the January 6 investigation, he has said his DOJ will follow the evidence where it leads. These details are tidbits of the evidence in question, visible tidbits that would be largely meaningless unless you understood how the Oath Keepers, Joe Biggs, and his former employer all converged on those East doors just before they were opened from inside.

None of these details — and others like them, such as Johnson’s description of the crowd’s response to Rudy Giuliani and Mo Brooks’ calls for violence — guarantee that Rudy and Brooks will be held responsible.

At the rally, JOHNSON listened to several speeches, including by former President Trump, Rudy Giuliani, and an unknown older member of Congress–the latter of whom JOHNSON heard stating that it was time for action and violence. In response to these comments, JOHNSON saw members of the crowd nodding their heads in agreement.

But if you don’t know these details, you don’t know even what is publicly available about the investigation.

I respect David Rothkopf. I share his concerns about the threat Trump poses to US democracy and the limited time before Republicans likely take control of the House and shut down efforts to guard democracy in the US.

But unlike him I know that the place to learn about DOJ’s January 6 investigation is not by asking Harry Litman or Barb McQuade or AG Gill or Lawrence Tribe or even Dahlia Lithwick — all of whom I respect greatly — how they feel about the general direction of the investigation, but instead to look at the actual records or reading the reports of people actually covering hearings, such as this crucial Josh Gerstein story about how prosecutors responded when Judge Carl Nichols (the former Clarence Thomas clerk who happens to be presiding over Steve Bannon’s case) asked if someone who did what Trump did could be charged with the same obstruction charge DOJ is using with the more serious defendants.

At a hearing on Monday for defendant Garret Miller of Richardson, Texas, Nichols made the first move toward a Trump analogy by asking a prosecutor whether the obstruction statute could have been violated by someone who simply “called Vice President Pence to seek to have him adjudge the certification in a particular way.” The judge also asked the prosecutor to assume the person trying to persuade Pence had the “appropriate mens rea,” or guilty mind, to be responsible for a crime.

Nichols made no specific mention of Trump, who appointed him to the bench, but the then-president was publicly and privately pressuring Pence in the days before the fateful Jan. 6 tally to decline to certify Joe Biden’s victory. Trump also enlisted other allies, including attorney John Eastman, to lean on Pence.

An attorney with the Justice Department Criminal Division, James Pearce, initially seemed to dismiss the idea that merely lobbying Pence to refuse to recognize the electoral result would amount to the crime of obstructing or attempting to obstruct an official proceeding.

“I don’t see how that gets you that,” Pearce told the judge.

However, Pearce quickly added that it might well be a crime if the person reaching out to Pence knew the vice president had an obligation under the Constitution to recognize the result.

“If that person does that knowing it is not an available argument [and is] asking the vice president to do something the individual knows is wrongful … one of the definitions of ‘corruptly’ is trying to get someone to violate a legal duty,” Pearce said.

I can’t tell you whether DOJ will get much further up the chain of responsibility for January 6; part of that necessarily depends on DOJ’s success at obtaining cooperation, of which only that of Oath Keepers has DOJ thus far disclosed. I can’t tell you what DOJ is doing behind the scenes in what Garland describes as “following the money.”

But I can tell you that columns like Rothkopf’s, which complain that Garland’s DOJ is not doing enough to hold Trump accountable while ignoring cases like the Tom Barrack prosecution and the Rudy Giuliani investigation that provide concrete evidence about the kinds of investigative steps Garland’s DOJ has been willing to pursue (the Rudy raid was likely among Lisa Monaco’s first major decisions), likely don’t make it any more likely that Garland will be able to act against the masterminds of January 6 any sooner.

A far better use of Rothkopf’s time and space than bitching that Garland has authorized John Durham’s funding request, for example …

We have seen that Garland is letting the highly politicized investigation of special prosecutor John Durham into the conduct of the Trump-Russia investigation continue (by continuing its funding). We therefore have the real prospect that those who sought to look into the Trump-Russia ties that both Mueller and Congressional investigations have demonstrated were real, unprecedented and dangerous might be prosecuted while those who actively sought the help of a foreign enemy to win an election will not be.

… Would be to ask Harry Litman and Barb McQuade and AG Gill and Lawrence Tribe and Dahlia Lithwick about the specific things that Durham has done — like failing to cut-and-paste with fidelity, relying on a Twitter feed for a key factual assertion, and using materiality arguments to skirt DOJ’s prohibition on publicly commenting on uncharged conduct — that put his prosecutions in violation of DOJ guidelines. Such questions would be readily accessible to all by reading just two indictments (as compared to the full dockets of 675 charged January 6 defendants), it would draw on the considerable expertise of the prosecutors he cited, and it might do something concrete to give Garland the political support he would need to force Durham to hew to DOJ guidelines.

Importantly, it may not be possible for DOJ to move quickly enough against Trump without violating due process (just as one example, the Project Veritas investigation could lead to incredibly damaging revelations about political spying targeting the Biden family, but it’s not entirely clear DOJ respected First Amendment protections).

Which means those with a platform would be better off defending the rule of law — selling independents and moderate Republicans on the import of the January 6 investigation — than whining that it is not working quickly enough.

Update: In his piece, Rothkopf complains, as well, that the only visible investigation into the people around Trump is coming from the January 6 Commission, not DOJ.

More troubling to me though is that the only reason we are hearing of any case being brought against Bannon as a senior coup plotter (or upper middle management in any case) is because Congress is investigating the events of Jan. 6. We have not heard a peep out of the Department of Justice about prosecuting those responsible for inciting, planning or funding the effort to undo the lawful transfer of presidential power to the man the American people elected, Joe Biden.

This morning, Adam Schiff went on CNN. Dana Bash asked him about Judge Amit Mehta’s focus on Donald Trump’s role in the insurrection in a sentencing last week. In response, Schiff described that, “I am concerned that there does not appear to be an investigation, unless it’s being done very quietly” into Trump’s call to Brad Raffensperger to demand he come up with just enough votes for Trump to win the state. But Schiff noted that, “this is not January 6 related — specifically, at least, to the violence of that day.”

Then Bash asked whether Schiff was saying he wanted Biden’s DOJ to be more aggressive. Schiff did not answer “yes.” Instead, he responded to a question about DOJ by talking about the January 6 Commission’s role in holding people accountable.

We are now trying to expose the full facts of the former President’s misconduct, as well as those around him. It is certainly possible that what we reveal in our investigation will inform the Justice Department of other facts that they may not yet be aware of yet. And so we will pursue our role in this, which is to expose the malefactors, to bring about legislation as a result of our investigation, to protect the country. But we will count on the Justice Department to play its role.

That is, when Bash asked specifically if DOJ was being aggressive enough on January 6, Schiff implied that the January 6 Commission played a key role in their efforts.

This is something that has not gotten enough attention: Even if DOJ didn’t ask, the Jan 6 Commission would refer people for any crimes they discovered, as SSCI and HPSCI both referred people to Mueller for lying, lies that led to the prosecution and cooperation of (at least) Michael Cohen and Sam Patten. Schiff knows better than anyone that HPSCI’s investigation was critical to the prosecution of Roger Stone. I also suspect that Steve Bannon’s transcripts were important preparation for Bannon’s grand jury appearance in January 2019, because they laid out the script that the White House had given to him for his testimony. I further suspect that SSCI obtained — and then shared — testimony from certain witnesses that Mueller could not otherwise get.

Trump’s pseudo-cooperation with the Mueller investigation, waiving privilege for the investigation but not any prosecution, likely was one hinderance to holding him accountable. And on this investigation, DOJ would be even more constrained, because it could face Executive Privilege claims and definitely would face Speech and Debate protections.

There has been almost no discussion of how closely Bennie Thompson and Liz Cheney are working with DOJ to ensure that the Jan 6 Commission doesn’t impede DOJ’s Jan 6 investigation, but it must be happening.

Similarly, there has been no discussion of obvious witnesses that the Jan 6 Commission has not (yet) subpoenaed, such as Lin Wood or Rudy Giuliani, the latter of whom DOJ seized phones from in another investigation in April.

Finally, there has been little discussion of how DOJ moved to have Executive Privilege waived for Congress just as the Jan 6 Commission got up and running.

DOJ only released its new contact policy — under which the request for a privilege determination may have been passed — on July 21. I’m curious whether the request for a  waiver of executive privilege waiver came after that. Executive privilege considerations were a key limitation on the Mueller investigation overseen in its final days partly by Rosen himself.

At least as interesting, however, is that DOJ sent the letter just one day before DOJ submitted a court filing in the Eric Swalwell lawsuit — speaking of members of Congress but using more generalized language — arguing that no federal officials can campaign in their official capacity and further noting that attacking one’s employer is not within the scope of someone’s job description.

DOJ is using that same waived privilege for the documents responsive to the Jan 6 Commission requests at the National Archive.

That is, DOJ is supporting the efforts of a co-equal branch of government to obtain testimony and records that that co-equal branch of government has a broader claim to than DOJ itself.

And Schiff, who understands better than anyone how HPSCI and DOJ worked together on the Stone prosecution, described, after first answering a question that he distinguished from January 6, then addressing January 6 directly by saying that “our role in this[] is to expose the malefactors,” and “we will count on the Justice Department to play its role” if and when the Commission “inform[s] the Justice Department of other facts that they may not yet be aware of yet.”

Yes, the January 6 Commission has a very short window in which to work. Yes, Congress is taking steps that DOJ does not appear to be taking. But that doesn’t mean that DOJ is not obtaining that evidence.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Paul Manafort Shared the Trump Energy Speech with Tom Barrack

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

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

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

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

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

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

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

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

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

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

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

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

The “Big Boss” Directing Tom Barrack’s Actions

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

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

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

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

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

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

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

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

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

A Foreign Agent, not a lobbyist

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

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

A secret agent hiding the direct orders he was following

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

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

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

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

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

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

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

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

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

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

The key Trump world figures and the black box White House

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

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

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

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

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

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

Where this came from where it will go

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

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

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

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

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

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

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

[snip]

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

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

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

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

The Closed Mueller Investigations: Erik Prince Skates on the Seychelles

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

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

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

There are three search warrants withdrawn:

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

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

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

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

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

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

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

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

Reggie Walton Seems Interested Revealing Some of Mueller’s Referrals

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

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

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

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

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

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

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

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

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

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

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

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

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

SO ORDERED this 6th day of July, 2020.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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