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Revisiting Trump’s Joint Defense Agreement

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Betsy Woodruff has a story reminding us that Trump has a joint defense agreement with some of the other people caught up in Mueller’s probe.

The president’s personal lawyers have teamed up with attorneys for other individuals embroiled in special counsel Bob Mueller’s probe, multiple sources tell The Daily Beast. For a while, the president’s lawyers even had regular conference calls with other attorneys to discuss the Mueller investigation, according to one source familiar with the calls.

The arrangement is known as a joint defense agreement, and it allows the lawyers to share information—without violating attorney-client privilege. It’s a common strategy when multiple defendants are dealing with the same prosecutor on the same matter.

I say “reminding us,” because this is not news. When Mike Flynn flipped, the first notice came when he alerted this very same joint defense agreement he could no longer share information (as the story itself notes).

The story doesn’t even describe, generally, who is included in it, which might help observers understand the dynamics we’re watching. The closest hint of that is the observation that Paul Manafort might be going to jail on Friday.

This week is poised to be less-than-harmonious for at least one person in Mueller’s sights: Paul Manafort, who will appear in court on Friday for a hearing where a judge will decide whether or not to revoke his bail.

The article doesn’t even confirm that Manafort is part of the defense agreement. But Trump was bragging, back in January, that he had “decided that a key witness in the Russia probe, Paul Manafort, isn’t going to ‘flip’ and sell him out, friends and aides say.” That’s the kind of thing Trump might have assurance about if Manafort were part of a joint defense agreement, particularly if — as has subsequently been reported — John Dowd offered Manafort a pardon (through one of his lawyers, in the kind of discussion lawyers might assume were shielded by a joint defense agreement) last year.

The pardon discussion with Mr. Manafort’s attorney, Reginald J. Brown, came before his client was indicted in October on charges of money laundering and other financial crimes. Mr. Manafort, the former chairman of Mr. Trump’s presidential campaign, has pleaded not guilty and has told others he is not interested in a pardon because he believes he has done nothing wrong and the government overstepped its authority. Mr. Brown is no longer his lawyer.

Mind you, now we know that Mueller knows about such offers (because it’s one of the questions they posed to Trump in March). That makes Trump’s legal impunity for offering such pardons at least slightly more sketchy, particularly if he’s pardoning someone so obviously corrupt as Paul Manafort. Add in the fact that Jared Kushner sold out Flynn last fall (which is reportedly what led him to flip), and Manafort may be less certain about Trump’s reliability, even in spite of Trump’s Tweets suggesting FBI should have prevented him from hiring someone they were investigating back in 2016, posted — with remarkable prescience! — on the eve of the latest setback in Manafort’s case.

Still, the reminder that Trump and a number of subjects of this investigation have been comparing notes explains a lot we’ve seen since. It explains, for example, why Manafort has made such a diligent effort to get the court to disclose information to him– such as the substance of warrant affidavits to seize up to four other people’s AT&T phone information, or the other bullet points in Rod Rosenstein’s August 2, 2017 memo laying out the scope (at that point) of the investigation — that affects others likely covered by the defense agreement. It explains one advantage to Manafort of insisting on being charged in two jurisdictions: because it gives him two bites at an attempt to challenge Mueller’s jurisdiction.

The joint defense agreement also explains several other things we’ve seen, such as the coordinated messaging — particularly the planted narrative about Spygate — best explained by the coordination of Victoria Toensing armed with information only legally available to Trump.

Finally, it explains the delay in any charges related to the conspiracy between Trump and the Russians: once Mueller charges those issues, he will have to provide discovery about what he knows, which will then get shared back with others involved in the conspiracy. It appears he’s primarily sharing that information (aside from in the form of questions to witnesses who appear before the grand jury) with those who’ve flipped. Even the questions he has posed to Trump are probably sharply limited to hide the main thrust of the conspiracy investigation.

That’s why the stakes for Friday are so high (and the timing of this reminder that there’s a joint defense agreement). Mueller still won’t need to provide Manafort the evidence he has about his role in the conspiracy, though the indictment of Kilimnik gets far closer to that. But it raises the cost on Manafort for sustaining a joint defense, minimizes his value to the others, all while the crimes charged could still be refiled in a VA state court.

A Thinking Person’s Guide to the Stefan Halper Conspiracy Theory

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For some time, I’ve been agnostic about whether Chuck Ross’ series on Stefan Halper derived from his own discussions with George Papadopoulos, Carter Page, and Sam Clovis, or whether he relied on leaks from HPSCI.

Today, he gave one of the leading comments he often does, about Paul Ryan’s claimed concern about “FISA abuse.” (Ryan, remember, pushed through 702 reauthorization this year without reforming a single one of the abuses laid out in this report, but apparently Chuck’s gonna play along with the notion that Ryan gives a shit about FISA.)

That mirrors Ross’ own logically nonsensical focus on the dossier as a source for the Carter Page FISA order in conjunction with Halper. Which, especially since other journalists are making it clear the Halper focus is coming from Hill Republicans, suggests Ross was getting leaks from Republicans.

That’s even more true of this interview with Sam Clovis. In it, Clovis makes it very clear the meeting did not stick out in his memory.

It was an academic meeting. It was not anything other than him talking about the research that he had done on China.

[snip]

No indication or inclination that this was anything other than just wanting to offer up his help to the campaign if I needed it.

After describing how he hadn’t opened up attachments Halper sent later in the month, he said, “that is how little this registered with me.”

And yet, somehow, by March, someone had told Ross about this meeting.

Halper also requested and attended a one-on-one meeting with another senior campaign official, TheDCNF learned. That meeting was held a day or two before Halper reached out to Papadopoulos. Halper offered to help the campaign but did not bring up Papadopoulos, even though he would reach out to the campaign aide a day or two later.

Clovis seems to derive his memory of the meeting, in significant part, from the documentation he does (four emails setting the meeting up) and doesn’t (any notes) have about it.

There’s a record of the exchange of emails that we had, four emails to set the appointment.

[snip]

I had my notebook. Always take notes and always keep track of what’s going on. And there wasn’t anything — I didn’t have any notes on the meeting cause there must not have been anything substantive that took place.

That suggests someone knew to go back to look for communications involving Halper. Now, if HPSCI requested all the comms campaign aides had with investigative target Carter Page, then Clovis would have turned over these emails (which mentioned Page but probably discussed China, not Russia), and HPSCI staffers could have found the tie. If HPSCI only asked for Russia-related comms involving Page, then someone got Toensing or Clovis to search for Halper emails themselves.

Clovis explains that he’s bothered, now, about the meeting because he thinks he was used as an excuse to reach out to George Papadopoulos.

He had met with Carter Page. He had used that to get the bona fides to get an appointment with me.

[snip]

Then I think he used my meeting as bona fides to get a meeting with George Papadopoulos.

Remember, one of the inane complaints in the Nunes memo is that the Carter Page FISA application mentioned Papadopoulos.

The Schiff memo explains that Papadopoulos got mentioned because, after Alexander Downer told the FBI that Papadopoulos had told him the Russians were going to release Hillary emails to help Trump, they opened a counterintelligence investigation into the Trump campaign.

In other words, the frothy right likely believes, like Clovis, that Halper was networking as a way to get to Papadopoulos, and that in some way ties to the FISA application against Page.

And he may well have done so! As TPM clarifies some confusion created by WaPo, both Page, Clovis, and Clovis lawyer Victoria Toensing agree that Halper mentioned Page when he reached out to Clovis.

Clovis’ lawyer, Victoria Toensing, previously said, according to the Washington Post that the informant had not mentioned his other Trump contacts when reaching out to Clovis. Clovis said he wasn’t sure “where she got that information,”since she had access to the emails setting up the September 2016 meeting.

Toensing, in an phone interview Tuesday with TPM, backed up Clovis’ account. She told TPM that the informant had said in an email to Clovis that Page had recommended that they meet. She also claimed that the informant had told Page when they met at the conference that he was a big fan of Clovis’. Page confirmed Toensing’s account in an email to TPM.

Halper met with Clovis on September 1 and then reached out to Papadopoulos the next day.

Though note: Page says Halper raised Clovis at the July conference where they met, a meeting that occurred before dossier reports started getting back to FBI (particularly to the people investigating the hack-and-leak) and before the Papadopoulos report. That either suggests the FBI already had concerns about Clovis by then, or Halper was more generally networking with Page along with checking out someone who had been a live counterintelligence concern in his own right since March and for years beforehand.

Here’s where things start to go off the rails for this whole conspiracy theory, though. Clovis (who, remember, testified to Mueller’s team in the days before Papadopoulos’ cooperation agreement was unsealed, and who therefore may have his own false statements to worry about) believes that the FBI had no business trying to ask Papadopoulos about his April knowledge of Russians dealing Clinton emails in a way that would not arouse Papadopoulos’ suspicion.

What unsettled me … is what he tried to do with George Papadopoulos and that was to establish an audit trail from the campaign or somebody associated with the campaign back to those Clinton emails, whether or not they existed we don’t know.

Clovis believes, as does the entire frothy right, that the FBI had no reason to check out leads from someone who predicted the Russians would leak dirt from Hillary to help Trump a month before it became publicly known.

What were they investigating? To be investigating, there has to be some indication of a crime. And there does not appear to have been any indication for a crime. And by the way the Fourth Amendment protects you in your place and your person from investigation without a clear indication of what, uh, probable cause.

Somehow, Clovis conveniently forgets that stealing emails is a crime. And the FBI had been investigating that crime since June 2016, a month before learning that Papadopoulos might have known about the stolen emails before the FBI itself did.

In other words, at the core of this entire conspiracy theory (on top of pretending that Carter Page wasn’t already a counterintelligence concern in March, as all the designated GOP stenographers do) is the GOP fantasy that the FBI had no business trying to chase down why Papadopoulos knew of the theft before the DNC itself did.

And they’re making an enormous case out of the fact that FBI used Halper — a lifelong Republican to whom Papadopoulos could and did lie to without legal jeopardy — to interview someone Clovis claims was “ancillary” to the campaign at the time.

It’s also clear to me that they misread George’s relationship with the campaign entirely, so, because he was not, he was ancillary at best at that point.

So that appears to be where this is heading: an attempt to criminalize a Republican networking with a goal of learning whether George Papadopoulos, and through him, Sam Clovis and the rest of the campaign, committed what Papadopoulos himself has said (though this is legally incorrect) might amount to treason.

Ultimately, it comes down to this: the GOP doesn’t think Russian theft of Democratic emails was a crime and therefore doesn’t think FBI had reason to investigate Papadopoulos’ apparent foreknowledge of that crime.

The Libby Pardon: Trump’s Object Lesson in Presidential Firewalls

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There are two reports out tonight:

  • Rod Rosenstein will be fired in an attempt to quash any further investigation of Trump’s crimes.
  • Scooter Libby will be pardoned in an obvious attempt to present an object lesson in presidential firewalls.

This post will be an initial attempt to explain the Libby pardon.

Side note: For those who claim Richard Armitage outed Plame, let’s just agree that you have no familiarity with the actual record and leave it there for now. Trust me on this: Bush and Cheney were very concerned that the written record showed Cheney ordering Libby to out Plame (whom, some evidence not introduced at trial suggests, he knew was covert). We can fight about that later, but I’ve got a library of records on this and you don’t. 

First: Libby has already had his right to vote and his bar license restored. This pardon is purely symbolic. I’m sure Libby’s happy to have it, but the audience here is Paul Manafort, Michael Cohen, and a slew of other people who can incriminate Trump.

This appears to be a stunt inspired by Joe DiGenova and Victoria Toensing (whom I’ll call DiG & T henceforth), who are great table pounders but not great lawyers. Also, remember that VT is representing Mark Corallo, Erik Prince, and Sam Clovis, all in some legal jeopardy, so this ploy may help them too.

Libby was Bush’s firewall because he was ordered–by either PapaDick Cheney and/or Bush–to out Valerie Plame as an object lesson to CIA people pushing back on their shitty Iraq case. By refusing to flip, he prevented Patrick Fitzgerald from determining whether Bush had really ordered that outing or whether Cheney and Libby freelanced on it.

Libby risked prison, but didn’t flip on Cheney or Bush. He avoided prison time with a commutation, not a pardon. While PapaDick pushed hard for pardon, it didn’t happen, in large part because Bush had far better lawyers than Trump has.

Here’s some of the differences between Libby and Trump’s many firewalls:

  1. Manafort, Kushner, and Cohen are exposed to state charges, in addition to federal (even ignoring how the Russian mob may treat them).
  2. Libby was the bottleneck witness. You needed him to move further, or you got nowhere. Not so with Trump, because so many people know what a crook he is.
  3. Bush commuted but did not pardon Libby, then refused, against PapaDick’s plaints, because (smarter lawyer) his lawyer counseled that’d be obstruction [update, or counseled that Libby could still incriminate Bush]. Trump can’t fully pardon his firewall, for the same reason: bc these witnesses will lose Fifth Amendment privileges against self-incrimination (which, as it happens, Cohen is invoking as we speak in a civil suit, which also can’t be dismissed by pardon).
  4. Di Genova and Toensing (who are not good lawyers but pound tables well) haven’t figured out that this won’t be a one-off: This won’t be one (Manafort) or two (Cohen) people Trump has to pardon. And THEY DON’T KNOW the full scope of who Trump would have to pardon here. There are too many moving parts to pull this off.
  5. And finally, because Trump is in a race. As I noted before, Mueller has already signaled he will label dangling pardons — as Trump has already done — as obstruction of justice. That presents far more risk for Trump, even assuming Mike Pence wants to go do the route of half-term infamy that Gerald Ford did by pardoning his boss.

All that’s before the fact that the crimes that Trump and his are facing are far, far uglier even than deliberately exposing the identity of a CIA officer to warn others off of exposing your war lies.

Maybe this will work? But I doubt it. There are just too many moving parts. And there is too little understanding among Trump’s closest advisors what they’re really facing.

So, congratulations to Scooter Libby at being a free man again. Condolences to Rod Rosenstein at being a free man again, if the firing does happen as predicted tomorrow.

But this is just a gambit, and there’s no reason to believe it will work.

Feinstein’s Homework Assignments

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While Devin Nunes has been getting all the headlines for trying to muck up the Mueller investigation, Chuck Grassley and Dianne Feinstein are increasingly at odds, as well. First there was the Grassley-Lindsey Graham bogus referral of Christopher Steele (I say it’s bogus not because I doubt his sworn statements have been inconsistent — they have been — but because FBI doesn’t need a referral for statements made to FBI itself). Then Feinstein released, and then apologized for, releasing the Glenn Simpson transcript. Grassley used that to invent the story that Jared Kushner was spooked and so wouldn’t sit for an interview with the Senate Judiciary Committee (we know that’s bullshit because Kushner released his own statement before giving it to the Senate Intelligence Committee, which “spooked” Richard Burr). Still, in response to a Sheldon Whitehouse and Richard Blumenthal request that Don Jr’s transcript be shared with FBI (because he likely lied in it), Grassley suggested he’d release the transcripts of all the interviews pertaining to the June 9 meeting.

So now both are continuing to collect evidence on their own, at least in part to generate headlines rather than investigative leads. But the most recent requests, both sent out yesterday, provide some insight into what they believe might have happened and what they know (or still don’t know).

In this post, I’ll look at whom Feinstein is requesting information from. In a follow-up I’ll comment on Grassley’s latest request.

Who Feinstein wants to talk to and who represents them

Some of Feinstein’s requests are immediately understandable, including the following people (thoughout this post, I’ve noted the lawyer’s name if the letter was sent to one):

As for the others, the explanation for why the Committee is seeking information explains any connection understood to the investigation. Most of this is open source information to footnoted reporting (click through to see those sources). Where that’s not the case, I’ve bolded it, as that presumably reflects still classified information the Committee received.

Michael Caputo (Dennis Vacco):

You joined the presidential campaign of Donald Trump as a communications advisor upon the recommendation of Paul Manafort, and it has been reported you have close ties to campaign advisor Roger Stone. It also has been reported that you have deep ties to Russia, including having worked for the Kremlin and Russian energy conglomerate Gazprom.

Paul Erickson (sent to him directly):

In May 2016, you were involved in efforts to broker a meeting between Alexander Torshin — someone you described as “President Putin’s emissary” — and top officials for the Trump campaign. In your communications with the Trump campaign about this meeting, you said that you had been “cultivating a back-channel to President Putin’s Kremlin” and that the “Kremlin believes htat the only possibility of a true reset in this relationship would be with a new Republican White House.”

Robert Foresman (sent to him directly):

As a long-time investment banker in Russia, you have developed relationships with senior Kremlin officials and have expressed your passion for private diplomacy to help foster improved U.S.-Russia relations. The Committee has reason to believe you sought to engage the Trump campaign in discussions concerning outreach from senior Kremlin officials.

Rhona Graff (Alan Futerfas, who is also representing Don Jr):

As a senior vice president in the Trump Organization and longtime assistant to Donald Trump, you are likely familiar with the President’s communications and schedule, particularly during the 2016 presidential campaign. For example, Roger Stone and Paul Manafort, [sic] have said they contact you to get access to President Trump. And when Rob Goldstone emailed Donald Trump Jr. about setting up the June 9, 2016 meeting between the Trump campaign and a Russian lawyer, he noted, “I can also send this info to your father via Rhona, but it is ultra sensitive so wanted to send to you first.”

Philip Griffin (sent directly to his email):

You have been a longstanding associate of former Trump campaign manager Paul Manafort and served, reportedly at his request, as an advisor to the Trump campaign during the Republican National Convention in Cleveland in July 2016.

[snip]

You have been a longtime of [sic] associate of Manafort, and you hired Konstantin Kiliminik [sic] to work with you and Manafort in Ukraine. In 2014, you were named in a lawsuit filed by Russian oligarch Oleg Deripaska as a “ley” partner, along with Manafort, Gates, and Kilimnik, in an investment fund that Deripaska contends stole nearly $19 million from him. In 2016, while Manafort was serving as the Trump campaign manager, Kilimnik reportedly emailed Manafort about reporting on Manafort’s role in the campaign with Deripaska, which Manafort suggested might be used to “get whole.”

David Keene (sent directly to him):

In spring 2016, Russian banker Alexander Torshin and Russian national Maria Butina were reportedly involved in efforts to arrange a meeting between Mr. Torshin and then-candidate Donald Trump or his campaign. Mr. Torshin is a “senior Russian official who claimed to be acting at the behest of President Vladimir V. Putin of Russia.” Ms. Butina is the founder of the Russian group known as the Right to Bear Arms and has described herself as a “representative of the Russian Federation” and a “connection between Team Trump and Russia.” You reportedly were introduced to Mr. Torshin in 2011, and were invited by Mr. Torshin and Ms. Butina to speak at the 2013 annual meeting in Moscow for the Right to Bear Arms. Ms. Butina was your guest at the NRA’s 2014 annual meeting, and you traveled along with Trump campaign surrogate Sheriff David Clarke to Moscow in December 2015 for another meeting with Ms. Butina’s organization.

Joseph Keith Kellogg, Jr. (sent directly to him):

As a member of the Trump campaign’s foreign policy team, you worked alongside George Papadopoulos and Carter Page, both of whom had multiple contacts with Russian officials (or their surrogates) that they reported back to the campaign. You also worked on the Trump transition team before joining the National Security Council and served as Chief of Staff under Lt. General Michael Flynn until his removal.

[snip]

You served as Chief of Staff on the National Security Council during the period when General Flynn lied to administration officials about his Russian contacts. It has been reported that, once the White House learned of those lies from Acting Attorney General Sally Yates, you started participating in the President’s daily security briefings, and — once General Flynn was removed — you served as the President’s interim national security advisor.

John Mashburn (sent to him at the White House):

As the Trump campaign policy director, you worked alongside members of the foreign policy team who had multiple contacts with Russian officials (or their surrogates). For example, Rick Dearborn, another senior policy aide, who reportedly shared a May 2016 request from Alexander Torshin, a senior Russian official with close ties to Vladimir Putin, to meet then-candidate Trump or other top campaign officials at the National Rifle Association’s 2016 annual convention. It also has been reported that JD Gordon informed you about pro-Russian changes to the Republican party platform that were championed by the Trump campaign. You role as senior advisor on the transition team, and now White House Deputy Cabinet Secretary, also has given you a firsthand look at other significant events affecting the Trump administration, including the removals of National Security Advisor Michael Flynn and FBI Director James Comey.

Frank Mermoud (sent via email directly to him):

You served as an advisor to the Trump campaign during the Republican National Convention in Cleveland in July 2016, running the program for ambassadors and foreign delegations — a post that you reportedly held at the recommendation of former Trump campaign manager Paul Manafort. Because of your role at the convention, longstanding relationship with Mr. Manafort, and deep business ties to Ukraine,

Amanda Miller (Alan Futerfas, who also represents Don Jr):

As a vice president for marketing at the Trump Organization, you are likely intimately familiar with President Donald Trump and the inner workings of the Trump Organization. For example, you have made public statements on behalf of the Trump Organization regarding the Trump Organization’s efforts to build a Trump Tower in Moscow. In addition, the Committee has reason to believe that you may have information on other Trump business ties to Russia.

Feinstein wants to know who lied to David Ignatius

In general, the items requested are not the surprising. I am, however, interested that Kellogg, Miller, and Spicer were asked about,

All communications concerning the story written by David Ignatius that appeared in the Washington Post on January 12, 2017, titled, “Why did Obama dawdle on Russia’s hacking?“

Note, before the story, the transition team did not comment, but after it revealed that Flynn had phoned Sergei Kislyak several times on December 29, two aides called Ignatius and told what we now know are lies.

The Trump transition team did not respond Thursday night to a request for comment. But two team members called with information Friday morning. A first Trump official confirmed that Flynn had spoken with Kislyak by phone, but said the calls were before sanctions were announced and didn’t cover that topic. This official later added that Flynn’s initial call was to express condolences to Kislyak after the terrorist killing of the Russian ambassador to Ankara Dec. 19, and that Flynn made a second call Dec. 28 to express condolences for the shoot-down of a Russian plane carrying a choir to Syria. In that second call, Flynn also discussed plans for a Trump-Putin conversation sometime after the inauguration. In addition, a second Trump official said the Dec. 28 call included an invitation from Kislyak for a Trump administration official to visit Kazakhstan for a conference in late January.

Burck’s clients get different treatment

Also as I noted above, Feinstein staff treated the letter to the two William Burck clients differently. Bannon’s was sent to him, but care of Burck.

But McGahn’s was addressed to Burck.

Unless I missed it, McGahn’s is the only letter treated this way. Which is one reason I suspect the blizzard of stories about what a hero McGahn was in June after he had done clearly obstructive things in May and earlier may have more to do with McGahn’s legal jeopardy than Trump’s.

Update: This Politico piece (h/t PINC) says that McGahn hired Burck last May, right after he had done some really stupid things with respect to the Jim Comey firing.

McGahn came calling in May amid the fallout from Trump’s decision to fire Comey from his post as FBI director — an explosive move that prompted Mueller’s appointment.

JD Gordon Says Any Investigators He’s Been Speaking with, He’s Been Honest

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In response to Monday’s server hiccups and in anticipation that Mueller is nowhere near done, we expanded our server capacity overnight. If you think you’ll rely on emptywheel reporting on the Mueller probe, please consider a donation to support the site. 

On Monday, I noted that the George Papadopoulos plea deal presented a big problem for Jeff Sessions, as Papadopoulos’ description of a March 31, 2016 meeting made it clear Sessions did know of people reaching out to Russia, contrary to what he has repeatedly stated in sworn testimony. As others caught up to that reporting, and as the Senators that Sessions lied to started pressuring him to fix his past stories, Sessions’ surrogates started pushing back.

At first, that came in the form of anonymous claims that Sessions shot down the idea of setting up a meeting with the Russians. As the week progressed (and as I bitched on Twitter that there was no reason to give anonymity to people who were trying to clear up Sessions’ perjury for him), Trump campaign advisor JD Gordon started going on the record saying the very same things that had previously been said anonymously — sometimes in unmarked updates of the very same articles.

“He went into the pitch right away,” said J. D. Gordon, a campaign adviser who attended the meeting. “He said he had a friend in London, the Russian ambassador, who could help set up a meeting with Putin.”

Mr. Trump listened with interest. Mr. Sessions vehemently opposed the idea, Mr. Gordon recalled. “And he said that no one should talk about it,” because Mr. Sessions thought it was a bad idea that he did not want associated with the campaign, he said.

For the purposes of the Russian inquiry, Gordon is the guy who changed the plank of the Republican platform to be less aggressive towards Russia (one part of the scandal that — as I have written — I think Democrats have overblown).

But longterm readers of this blog may remember that JD Gordon is the guy who, as a press officer covering Gitmo, trumped up a sexual harassment claim against Carol Rosenberg out of her tendency to swear, at him. At one point, Gordon claimed that, “I’ve been abused worse than the detainees have been abused;” at another he accused Rosenberg of “use of profanity that would make even Helen Thomas blush.”

In other words, Gordon has a history of ginning up false claims to try to shut down reporting.

Given Gordon’s rush to explain away the implications of the Papadopoulos plea, I’d like to focus closely on what Sky News bills as an Exclusive interview (for some reason placed with an overseas Murdoch outlet rather than one which might attract more attention here in the states) with Gordon explaining the meeting.

In addition to making the now-familiar claim that Sessions (Gordon’s boss on the campaign) shot down Papadopoulos’ offer to broker a meeting with Putin, Gordon makes a number of other remarkable claims. First, he suggests that, rather than severing any relationship with Papadopoulos (presumably because they were so opposed to the idea of chumming up to Russia), the Trump presidential campaign instead decided to appease a 30-year old nobody so he didn’t embarrass the campaign.

Mr Gordon described Mr Papadopoulos as a “peripheral figure” but someone who “they wanted to appease and not upset, at the same time as reining him in so that he doesn’t embarrass the campaign.”

The only reason you’d have to keep Papadopoulos around and appeased is if he had information that could compromise the campaign. You know, the kind of information he spent 2 months secretly sharing with the FBI?

Gordon then claimed that the reported continued conversations between Papadopoulos and campaign officials about meetings with Russia amounted to Papadopoulos going behind his and Sessions’ backs.

Mr Gordon said he was in a paid role and more senior to Mr Papadopoulos, but claims the 30-year-old advisor went behind his back.

He told Sky News: “I was very surprised that we’re still hearing about it today, because I had no idea that George was going around me, and going around Senator Sessions – his actual chain of command – to pitch this idea to others on the campaign who maybe weren’t there that day, or maybe weren’t paying attention to others.”

Gordon knows nothing and neither does Sessions, I guess.

Gordon then claims that he can’t say about Trump what the stories in which an anonymous source who has said all the same things Gordon has on the record in this interview because he has a Non-Disclosure Agreement.

Mr Gordon said he could not discuss what Mr Trump said when the Russian meeting was raised because of a non-disclosure agreement, but added that the President certainly did not say “yes” to the idea.

Next, Gordon claims to have no idea why Papadopoulos would lie about setting up a meeting because that, in and of itself, wouldn’t have been illegal.

“Which is why it’s such a mystery why George Papadopoulos… would lie to the FBI about his meetings with Russians when they weren’t illegal.

“Maybe a bit shady, but they weren’t illegal.”

Curiously, Gordon doesn’t mention that Papadopoulos’ interlocutors have all the markings of Russian handlers. Nor does he mention that Papadopoulos also lied to hide whether and what he told the campaign about the “dirt” that had been floated, in the form of thousands of Hillary emails. Based on this remarkably incomplete representation of the substance of Papadopoulos’ plea, Gordon insists that allegations Trump cozied up to Russians for help getting elected in exchange for the softening of policies against Russia are a great big hoax.

Mr Gordon described the notion of the Trump campaign colluding with Russia in the 2016 US election as “the biggest hoax in history”.

He said: “There is a lot of smoke and mirrors. The smoke you see is people lighting Trump associates on fire, trying to make a story.”

He blames Hope Hicks, who will soon but has not yet testified to the grand jury, for making the campaign’s discussions with “lots” of Russians look nefarious.

He alleged that Mr Trump’s former press secretary and now White House head of communications, Hope Hicks, had made the situation worse by making unequivocal statements suggesting the campaign had not spoken to Russians when they had.

He claimed the campaign spoke to lots of Russians “but there was nothing nefarious.”

In other words, the guy who claimed a woman who swears sexually harassed him in an effort to shut down a super reporter tells a partial story in an attempt to claim there’s no there there, and blames another woman in the process. Fuck. The same guy claims these meetings and conversations were set up behind his back but admits he knows there were lots of them.

Here’s the part I find most interesting about Gordon’s remarkable interview, though. He dodges when asked whether he has testified or cooperated or what, though makes it clear he has been speaking with investigators.

When asked about whether he was co-operating with the FBI or special counsel Robert Mueller, he said: “I can just say that any investigators that I’ve been speaking with, clearly I’ve been truthful… there’s nothing to hide.

As I noted on Monday — in observing Victoria Toensing’s failed efforts to make Sam Clovis’ testimony to the grand jury look innocuous in advance of his now withdrawn confirmation for a USDA position — and described further to On the Media this week, from this point forward, we should expect those who have been interviewed by the FBI or grand jury to use the press to telegraph what they’ve said, so others can coordinate that story (though usually they do so through hack lawyers like Toensing, not directly). It’s a legal way to compare notes.

I’ve also noted that, at least as of October 18, Jeff Sessions was dodging bizarrely about whether he had been formally asked for an interview. Mind you, that was over two weeks ago, so who knows what has transpired since?

Ah well, if Sessions hasn’t testified yet, he now knows what Gordon told the authorities.

Because I do take Gordon’s comments to be confirmation that he has spoken with the authorities.

Which is interesting given this detail from the affidavit the FBI wrote a month ago explaining why they wanted to seal any notice of Papadopoulos’ plea deal.

The investigation is ongoing and includes pursuing leads from information provided by and related to the defendant regarding communications he had, inter alia, with certain other individuals associated with the campaign. The government will very shortly seek, among other investigative steps, to interview certain individuals who may have knowledge of contacts between Russian nationals (or Russia-connected foreign nationals) and the campaign, including the contacts between the defendant and foreign nationals set forth in the Statement of Offense incorporated into the defendants plea agreement.

If it wasn’t already obvious from the Sam Clovis grand jury timing, the Special Counsel hid the plea from those who might have their own stories to tell about “contacts between Russian nationals (or Russia-connected foreign nationals) and the campaign,” which Gordon admits (while pretending such efforts happened behind his and Sessions’ backs) were numerous, because they planned to “very shortly seek” to lock in those claimed stories.

And those who, like Clovis, appear to have told stories that deviated from the one Papadopoulous told may now be in the same kind of legal pickle that Papadopoulos found himself on July 27, when confronted with evidence that he had lied.

The question is whether JD Gordon is finding himself in the same kind of pickle based on post-Papadopoulos testimony that Clovis appears to be, or whether he just wants Jeff Sessions to know what story he told.

What Does the White House Know about Sam Clovis that Chuck Grassley Claims Not To?

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In response to Monday’s server hiccups and in anticipation that Mueller is nowhere near done, we expanded our server capacity overnight. If you think you’ll rely on emptywheel reporting on the Mueller probe, please consider a donation to support the site. 

The other day I noted that Victoria Toensing’s press comments about her client, Sam Clovis’, appearance before the Mueller grand jury suggested there were discrepancies between his testimony and what George Papadopoulos has been telling the FBI for the last three months.

Nevertheless, after the disclosure that Clovis was the supervisor who told Papadopoulos to pursue a meeting with Russia as late as August 2016, Chuck Grassley still backed his fellow Iowan to serve as US Department of Agriculture’s Undersecretary for Research, Education and Economics. Grassley (who on Monday hid in flags to avoid questions about the Manafort indictment) told Iowa journalists that he had seen the context of the emails and he believed they showed no evidence that Clovis encouraged Papadopoulos to meet with Russian officials.

[I]n a conference call with Iowa reporters Wednesday, Grassley said he has reviewed emails provided by the Trump campaign that include a fuller account of Clovis’ interactions with Papadopoulos. According to those 80-some emails, Grassley said, Clovis does not appear to encourage any travel to meet with Russian officials.

“There’s an entirely different context than what was reported about Clovis and his relationship to this George P.,” Grassley told reporters.

The emails he reviewed cannot be released publicly, Grassley said, although some of them have been referenced in published newspaper accounts and are referred to in the court document from the Papadopoulos case.

When asked if he believes Clovis could face legal consequences over his role in the campaign, Grassley answered that it was “too early for me to say that.”

“But,” he went on, “reading these emails … that’s not an issue.”

Clovis has been scheduled to testify before Senate Agriculture Committee on Nov. 9 as part of his nomination as USDA undersecretary. That could be pushed back, Grassley said on Wednesday. In any case, Grassley said he will introduce Clovis when he comes before the committee.

Mind you, Grassley would have good reason to want an Iowan in a top USDA position, and might even relish the thought of having a non-scientist in charge of science there. So he may be biased.

In any case, the White House may now have a different understanding of matters.  CNN reports today that the White House may pull Clovis’ nomination entirely.

A White House source said the nomination of Sam Clovis is in danger and could be pulled soon. A source familiar with the White House’s thinking added that Clovis may have to withdraw, but it is not clear how that will happen, whether he will voluntarily pull out or be forced to do so.

[snip]
A Republican official close to Clovis said he remained loyal to Trump, adding that Clovis would almost certainly not fight the White House in backing away from his USDA nomination if asked.

“There’s no way he would fight this or cause trouble for the White House,” a Republican official and longtime associate of Clovis said.

Meanwhile, Clovis’ lawyer Toensing has gotten a whole lot less chatty about her client’s plight.

The White House did not comment Wednesday night, and messages to Clovis’ attorney were not returned.

Admittedly, it may be that the White House simply wants to avoid having to release the 80-some emails Grassley alluded to publicly, as Democrats would surely push to happen. Or it may be that there are details about Clovis’ actions — such as his description of cozying up to Russia as a key priority of the campaign — that the White House wants to avoid any questions about. Or, it may be that the White House simply doesn’t want to give Democrats any chances to focus attention on the substance of Papadopoulos’ plea.

Whatever it is, though, it does seem that Clovis’ immediate future seems to be less bright than Iowan Chuck Grassley claims it is.

Update: The AP reports that Clovis has withdrawn from consideration.

Victoria Toensing’s Story about Sam Clovis’ Grand Jury Appearance

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Sam Clovis is the person in the George Papadopoulos plea who told Papadopoulos, just as Paul Manafort’s pro-Russian Ukrainian corruption was becoming a scandal, “‘I would encourage you’ and another foreign policy advisor to ‘make the trip[] [to Russia], if it is feasible.'”

Victoria Toensing is a right wing nutjob lawyer whose chief skill is lying to the press to spin partisan scandals.

Clovis has decided that Toensing can best represent him in the Russia investigation, which means in the wake of yesterday’s surprise plea deal announcement, a person with “first-hand” knowledge of Clovis’ actions decided to tell his side of the story to NBC. Significantly, securing Clovis’ testimony is one of the last things Mueller did before springing the Manafort indictment and unsealing Papadopoulos’ plea, meaning that’s one of the things he was building up towards.

Sam Clovis, the former top Trump campaign official who supervised a man now cooperating with the FBI’s Russia investigation, was questioned last week by Special Counsel Robert Mueller’s team and testified before the investigating grand jury, a person with first-hand knowledge of the matter told NBC News.

Before I go further, let me note that there are few people who can claim first-hand knowledge of “the matter:” the grand jury, which thus far hasn’t leaked, Mueller’s team, which has shown a remarkable ability to keep secrets, or Clovis or Toensing.

Which is to say this story is likely Toensing and Toensing.

Much later in the article, a person with the same kind of knowledge also confirmed Clovis’ very helpful SSCI testimony.

Clovis was also interviewed recently by the Senate Intelligence Committee, according to a source with direct knowledge.

Thus far Clovis looks very cooperative, huh, per this person who knows what he has been doing?

Having placed Clovis at the grand jury last week, Toensing says she won’t comment on the one thing she can’t directly comment on — what went on there.

His lawyer, Victoria Toensing, would neither confirm nor deny his interactions with the Mueller team.

“I’m not going to get into that,” she said in an interview.

But Toensing does confirm that Clovis is the guy who supported Papadopoulos’ trip to Russia, which she would only know from having prepped his testimony or learned what he was asked in the grand jury.

Toensing confirmed that Clovis was the campaign supervisor in the emails.

She then presents what must be the story he told to explain why emails show him endorsing a trip to Russia even as it became clear why that was a bad idea.

In a statement, Toensing’s office said Clovis set up a “national security advisory committee” in the Trump campaign that included Papadopoulos, “who attended one meeting and was never otherwise approached by the campaign for consultation.”

[snip]

In the statement, Toensing said the Trump campaign had a strict rule prohibiting travel abroad on behalf of the campaign, and but that Clovis would have had no authority to stop Papadopoulos from traveling in his personal capacity.

To be fair, this story doesn’t directly conflict with Papadopoulos’ (though Toensing’s earlier story, that as a midwestern “gentleman,” Clovis would have been unable to tell Papadopoulos no, does conflict — this is probably an attempt, perhaps post-consultation with her client, to clean that up).

But it does adopt a line that permits the possibility Papadopolous did (make plans to) travel to Russia, but that it was all freelancing (remarkably like Carter Page’s trip to Russia was).

That is, this is the story (or close to it) that Clovis told the grand jury last week, before he learned that Papadopoulos had beat him to the punch and told a different (but still not fully public) story.

Now, I’m guessing that all the other people named in the Papadopoulos plea have also already had whatever shot they’ll get to tell the truth to the grand jury, but in case they haven’t, they can now coordinate with what Clovis said, which is surely part of the point.

But I’d also suggest that Mueller would be sure to get the testimony of everyone who might try to lie before he unsealed the Papadopoulos plea, so they have to start considering fixing their testimony.

Update: Apparently the White House is rethinking the wisdom of subjecting Clovis to a confirmation hearing next week.

Arpaio And Thomas: The Most Unethical Sheriff And Prosecutor In America Conspire To Abuse Power And Obstruct Justice

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In addition to some of the finest weather and most spectacular natural beauty in the US, Arizona is also home to two of the biggest and most virulent self serving political hacks imaginable, Sheriff Joe Arpaio and Maricopa County Attorney Andrew Thomas. For years, there has been an escalating turf war between the Siamese twins of local law enforcement oppression, Arpaio and Thomas on the one hand, and the Maricopa County Board of Supervisors and the Maricopa County judiciary, who keep trying to reign in the out of control officers, on the other hand.

Last week, Arpaio and Thomas upped the ante in the war by filing a civil racketeering suit in Federal court. From The Arizona Republic:

Alleging widespread conspiracy, Maricopa County Attorney Andrew Thomas and Sheriff Joe Arpaio filed a civil suit in U.S. District Court on Tuesday against county administrators, elected officials, judges and attorneys. Those defendants, they say, are violating federal racketeering laws by hindering criminal investigations and depriving their offices of resources.

County officials dismissed the claim as frivolous, saying Arpaio and Thomas have routinely lost on similar claims in state and local courts.

In the lawsuit, Thomas and Arpaio name all five members of the Board of Supervisors along with County Manager David Smith, Deputy County Manager Sandi Wilson, four Maricopa County Superior Court judges, director of the county’s civil-litigation division, two attorneys and a law firm.
…
The suit, in essence, reiterates all of Thomas’ battles with the courts and county since 2006, including accusations of conspiracy by Judges Barbara Mundell, Anna Baca, Donahoe and Fields, claiming that the dispute began with the court’s opposition to Thomas’ immigration policies. It revisits the questions Thomas raised about the new $341 million court tower. Donahoe removed Thomas’ office from that investigation, and the Arizona Court of Appeals upheld Donahoe’s decision. Coincidentally, on Tuesday, the Arizona Supreme Court refused to reconsider that case. (emphasis added)

The last part in bold is key. Thomas and Arpaio have waged war against Maricopa County, the courts, elected officials and anybody else that dares to question or restrain their use and abuse of power. The issue here is a local concern, under purely Arizona state law, on which Thomas and Arpaio have resoundingly lost at every level of Arizona court, all the way to the Supreme Court of Arizona. With disdain and contempt for any court disagreeing with them, which is pretty much every court that reviews their conduct, they have now tried to counter the rule of law by tying the entire Maricopa County government in knots through spurious and unethical application to the Federal court.

The Judge Donahoe referred to in the Arizona Republic quote above is Maricopa County Superior Court Presiding Criminal Judge Gary Donahoe. Arpaio and Thomas have a special vendetta against Judge Donahoe and, today, doubled down on their crusade by criminally charging Judge Donahoe with bribery, hindering prosecution and obstruction based, amazingly, primarily on the same complaints and facts that the entire spectrum of trial and appellate courts in Arizona have previously rejected. From a late breaking story today by The Arizona Republic: Read more →

A Dick Cheney Torture Trifecta!

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First we have Judy "re-connected at the roots" Miller claiming Nancy Pelosi’s in trouble because Dick Cheney tortured.

Then we got Stephen "Hagiographer" Hayes, claiming Nancy Pelosi’s in trouble because Dick Cheney tortured.

And now we’ve got Victoria Toensing, claiming we shouldn’t prosecute John Yoo and Jay Bybee because they told Dick Cheney he could torture. This article is notably bad, even for Toensing. She invokes her Reagan-era legal experience as her basis of authority–but ignores the Reagan-era case which declared waterboarding to be torture.

In the mid-1980s, when I supervised the legality of apprehending terrorists to stand trial, I relied on a decades-old Supreme Court standard:

She claims the lawyers (she conveniently mentions just Yoo and Bybee, for obvious reasons) only had to determine whether waterboarding constitued a specific intent to torture, and not whether it shocked the conscience.

Our capture and treatment could not "shock the conscience" of the court. The OLC lawyers, however, were not asked what treatment was legal to preserve a prosecution. They were asked what treatment was legal for a detainee who they were told had knowledge of future attacks on Americans.

The 1994 law was passed pursuant to an international treaty, the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment. The law’s definition of torture is circular. Torture under that law means "severe physical or mental pain or suffering," which in turn means "prolonged mental harm," which must be caused by one of four prohibited acts. The only relevant one to the CIA inquiry was threatening or inflicting "severe physical pain or suffering." What is "prolonged mental suffering"? The term appears nowhere else in the U.S. Code.

Congress required, in order for there to be a violation of the law, that an interrogator specifically intend that the detainee suffer prolonged physical or mental suffering as a result of the prohibited conduct. Just knowing a person could be injured from the interrogation method is not a violation under Supreme Court rulings interpreting "specific intent" in other criminal statutes.

Bradbury, of course, spent a good part of his May 30, 2005 memo addressing the "shock the consicence" standard, because the program had been deemed illegal by the CIA’s own IG under that standard.

Read more →

NOW Can We Dismiss the Notion that Toensing Is Independent?

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Toensing

As TPM has reported (and a number of you have emailed) Scooter Libby’s press flack, Barbara Comstock, is running for office. Honestly, given the Democratic tilt of Virginia of late, I had been inclined to keep just half an eye on Comstock. After all, so long as she looks likely to lose, why give her any attention?

But news like this makes me rethink that. After all, what better way to undercut Comstock’s network of purportedly independent resources than to establish that they were on the host committee for Comstock’s earliest fund-raisers?

A who’s who of conservative women showed up at the home of Mildred Webber to register their support. Among them: the Ashcroft Group’s Juleanna Glover, National Review’s Kate O’Bierne and former Homeland Security official Fran Townsend.

Also on the host committee: Victoria Toensing, Jeri Thompson, Cathy Gillespie, Maria Cino and Kellyanne Conway.

Now, I know that there has been no doubt since the Clinton wars that Toensing is a Republican hack. But Toensing was able to attempt jury nullification with articles like this during the Libby trial, all under the claim that she was an independent entity.

And here we come to "find out" she’s one of Comstock’s closest buddies.