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A Likely Looming Battle in the Stolen Document Case: Classified White House Counsel Documents

In this post, I argued that DOJ hopes to use a motion to stay Judge Aileen Cannon’s injunction against using materials seized from Donald Trump in any criminal investigation tactically — basically, to highlight she’s just stalling the investigation.

But I want to flag something that I think will be contentious going forward: Classified documents involving White House Counsel.

In its description of why all classified documents should be exempted from Judge Cannon’s injunction, DOJ noted that classified records cannot belong to Trump, and so he has no basis to make a Rule 41(g) motion. But their explanation of why such records would be excluded from any attorney-client privilege determination is more telling. It only extends to Trump’s personal lawyers.

But that rationale is categorically inapplicable to the classified records at issue in this motion, which are easily identifiable by their markings, are already segregated from the other seized records, and do not include personal records or potentially privileged communications with his personal attorneys.

[snip]

The classification markings establish on the face of the documents that they are government records, not Plaintiff’s personal records. The government’s review of those records does not raise any plausible attorney-client privilege claims because such classified records do not contain communications between Plaintiff and his private attorneys. [my emphasis]

DOJ is right that any classified documents obviously belong to the government.

But Trump’s lawyers don’t even want to cede that point. They refused the motion for a stay with respect to classified documents (which is not surprising, because in the hearing Jim Trusty said they could just make copies of all the classified records).

Counsel for the United States has conferred with counsel for Plaintiff, and Plaintiff opposes the government’s motion.

But there are known government documents in which the White House Counsel were involved that are likely among the ones Trump would most like to withhold: starting with discussions about materials (including a mention of Burisma) excised by the White House Counsel’s office from the transcript of the call between Trump and Volodymyr Zelenskyy.

The particular language used here — specifying that attorney-client privilege only extends to stuff involving Trump’s “personal” or “private” attorneys — suggests there are materials at issue involving Trump’s non-private attorneys, which could be DOJ but is most likely the White House Counsel.

As I have noted, there are three known classified documents that were put in the potentially privileged bucket, at least at the start.

There’s one document marked Confidential and another marked Secret seized from drawer(s) in Trump’s office.

And there’s a Top Secret document stashed along with clippings dating back to 1995 in box 29.

Plus, the packet involving clemency for Roger Stone — while it was not treated as potentially privileged — does include information marked as Secret.

If that involved communications with DOJ or the White House Counsel, I could see Trump trying to claw it back as well.

DOJ says that none of these involve Trump’s personal lawyers. But they’re not ruling out that they involve lawyers you and I paid for, the White House Counsel. And those documents are among the ones I can imagine Trump might care the most about.

One Big Potentially Pending Question: What Happens to Trump’s Impeachment 1.0 Papers?

There’s a comment in DOJ’s response to Judge Aileen Cannon’s order to file an update by tomorrow that caught my attention. DOJ suggests there may be no dispute about whether the stuff it has been pursuing a review of is really privileged.

Although the government will provide the Court more detail in its forthcoming supplemental filing, the government notes that, before the Court issued its Preliminary Order, and in accordance with the judicially authorized search warrant’s provisions, the Privilege Review Team (as described in paragraphs 81-84 of the search warrant affidavit) identified a limited set of materials that potentially contain attorney-client privileged information, completed its review of those materials, and is in the process of following the procedures set forth in paragraph 84 of the search warrant affidavit to address potential privilege disputes, if any.

As I laid out here (and as virtually all journalists are still getting wrong), DOJ used a privilege team for the search on August 8. At least according to Fox News, all the potentially privileged material was inventoried on what I call the SSA receipt (because it was signed by the Supervisory Special Agent, rather than the Special Agent).

I surmised and DOJ has now confirmed that DOJ has been “in the process of following the procedures set forth in paragraph 84 of the search warrant affidavit to address potential privilege disputes, if any.” That means DOJ is using one of these methods:

84. If the Privilege Review Team determines that documents are potentially attorney-client privileged or merit further consideration in that regard, a Privilege Review Team attorney may do any of the following: (a) apply ex parte to the court for a determination whether or not the documents contain attorney-client privileged material; (b) defer seeking court intervention and continue to keep the documents inaccessible to law-enforcement personnel assigned to the investigation; or (c) disclose the documents to the potential privilege holder, request the privilege holder to state whether the potential privilege holder asserts attorney-client privilege as to any documents, including requesting a particularized privilege log, and seek a ruling from the court regarding any attorney-client privilege claims as to which the Privilege Review Team and the privilege-holder cannot reach agreement.

Option c is effectively to invite Trump to provide feedback on the privilege issues, an option that Evan Corcoran has told us DOJ specifically rejected  back on august 11.

Option b is to simply not access the materials; since FBI seized it, it’s likely they saw something on August 8 that made them want to access the materials.

So we can be fairly sure that DOJ is pursuing Option a to get this material, an ex parte review by a judge — the implication is Bruce Reinhart, but it’s possible they’ve involved someone who’s more senior, such as DC Chief Judge Beryl Howell (who is presiding over the grand jury conducting this investigation) or SDFL Chief Judge Cecilia Altonaga — to see whether it is attorney-client privileged.

I want to talk about three categories of documents that might appear to be covered by attorney-client privilege that a judge might otherwise decide are not. DOJ’s suggestion that there may not be a dispute reminds me of how, during the privilege review of Michael Cohen’s phones in 2018, as soon as Judge Kimba Woods ruled that any fight over privilege would have to be public, Trump slithered away and stopped fighting to keep the recordings about hush payments that Cohen kept on his phone away from prosecutors.

In other words, particularly since DOJ completely bypassed any involvement from Trump, I suspect DOJ believes that the materials currently under ex parte review by Reinhart or some other judge may be crime-fraud excepted.

Consider the kinds of materials that, under the warrant, could be seized:

  • Any Presidential or government record created during Trump’s term, which would include most if not all of the subcategory of documents bearing classification marks
  • Documents stored along with (that is, perhaps in the same storage closet) documents bearing classification marks
  • Evidence of the knowing alteration, destruction, or concealment of government and/or Presidential records — basically, of obstruction

If it remains true that all documents with potentially privileged materials are on the SSA receipt, it is likely that there were a chunk of documents — labeled just “documents” seized from his office (where the privilege team did all the initial search) — as well as five boxes that by description were stored with documents bearing classified markings, probably found in the storage room and handed off to the filter team for some reason.

The most obvious set of materials that would appear privileged but might be deemed by a judge to be crime-fraud excepted would pertain to obstruction: Materials that post-date Trump’s Presidency involving lawyers (either the former White House counsels who attempted to get him to return the documents) or his current attorneys, especially including the effort to refuse NARA and DOJ’s requests and/or to provide bullshit information in response to one or more subpoenas. That’s what those documents seized from Trump’s office might consist of.

Another category of documents might include materials involving non-governmental lawyers — Rudy Giuliani or John Eastman are likely possibilities — that appeared on official government records. These materials might pertain to January 6. Particularly given that SCOTUS approved the waived privilege claims over Trump’s governmental files, those seem like an easy decision.

A third category of information pertains to advice White House counsel lawyers gave Trump while still in office outside the context of a legal proceeding (different from the advice the same former White House counsels gave during the extended fight with NARA) that he wants to keep from DOJ. The Bill Clinton precedent would say that NARA at least gets this information, and if there is a legal basis for the FBI to obtain it (such as that it includes classified information, as the White House counsel response to the Zelenskyy-Trump call would be), then it would seem FBI would be able to obtain it. Given Trump’s bid to claim Executive Privilege over certain information, I wouldn’t be surprised if this were a heated issue.

The one set of documents that I think does raise real concerns, though, is Trump’s defense during Impeachment 1.0. At least three members of the White House Counsel staff were part of Trump’s defense team: Pat Cipollone, Patrick Philbin, and Michael Purpua. Taxpayers paid their salaries during the period when they were defending Trump, and so under the Clinton precedent, any files involving them would seem to be government documents covered by the Presidential Records Act. But Trump also had some talking heads — like Alan Dershowitz and Pam Bondi — and one of the real private attorneys who represented him in the Russian investigation, Jane Raskin. Trump’s communications with the later two groups should be privileged.

I’ve asked experts on Richard Nixon and Bill Clinton what happened with their impeachment records. Best as I can tell, many of those records are in the Archives. But I’m still not sure how the special case of Trump’s impeachment defense would be treated.

Update: Removed Eric Herschmann from the list of WH Counsels who represented Trump in impeachment. He was still in private practice then.

Trump’s Timid (Non-Legal) Complaints about Attorney-Client Privilege

Yesterday, I observed that the FBI gave the former President two different receipts for the search on his golf resort.

There’s the one consisting of five boxes and a separate category, “Documents,” not associated with any boxes, signed by the Supervisory Special Agent. There are no classified documents described. I’ll refer to that as the SSA Receipt in this post.

Then there’s the one that consists of 27 items, mostly boxes, many with sub-items, which are often descriptions of the kinds of classified documents contained in the box or the leather case they were seized in. It was signed by a Special Agent. I’ll refer to that as the CLASS Receipt in this post.

I suggested that one explanation for providing Trump two separate receipts might be if the SSA receipt covered evidence showing Trump violated 18 USC 1519, destruction, alteration, or falsification of records in Federal investigations, and the CLASS receipt covered evidence showing Trump violated 18 USC 793, retaining national defense information under the Espionage Act. I argued the two receipts would cover evidence responsive to crimes that might be charged in different venues, DC for the obstruction charge and SDFL for the Espionage charge.

The third statute on Trump’s warrant, 18 USC 2071, removal of official records would cover everything covered by the Presidential Records Act and would generally backstop everything seized under the other two statutes. It covers both. Consider it an umbrella charge.

Today Trump, in the form of a post on Truth Social and related stories shared to Trump-friendly media, has confirmed I’m right that there’s significance to the two separate receipts.

Trump-friendly outlets have explained that “the former president’s team was informed” that the materials seized via what I’ve called the SSA receipt “contain information covered by attorney-client privilege” but that DOJ “opposed Trump lawyers’ request for the appointment of an independent, special master to review the records.”

The FBI seized boxes containing records covered by attorney-client privilege and potentially executive privilege during its raid of former President Trump’s Mar-a-Lago home, sources familiar with the investigation told Fox News, adding that the Justice Department opposed Trump lawyers’ request for the appointment of an independent, special master to review the records.

Sources familiar with the investigation told Fox News Saturday that the former president’s team was informed that boxes labeled A-14, A-26, A-43, A-13, A-33, and a set of documents—all seen on the final page of the FBI’s property receipt —contained information covered by attorney-client privilege.

[snip]

Sources told Fox News that some records could be covered by executive privilege, which gives the president of the United States and other officials within the executive branch the authority to withhold certain sensitive forms of advice and consultation between the president and senior advisers.

I believe there must be some truth to this because if Trump were making completely unsubstantiated claims, he would have made it more generally, claiming that all the boxes must include attorney-client privileged material. Furthermore, Trump’s claims to have watched the search via CCTV notwithstanding, it is highly unlikely Trump has CCTV coverage of his own office, bedroom, and a random storage closet such that he would know what’s in box A-14 (and so on the SSA receipt) versus what’s in box A-15 (which was on the CLASS receipt). Someone who knows the outcome of the search told Trump that one set, but not the other, has materials that are attorney-client privileged. That has to come from the government.

That doesn’t mean my larger hypothesis — that one receipt covered violations of the Espionage Act and the other covered obstruction — has been vindicated. On the contrary, DOJ may simply have chosen to put all records that include an attorney-client claim on a separate receipt so that, if Trump obtains a competent lawyer and demands the Special Master review he’s making a half-hearted request for now, DOJ can move forward with all the other evidence without a 9-month delay like the Special Master review of Rudy Giuliani’s phones necessitated. It would be a clever way of dealing with a very sensitive legal issue.

But I don’t think it’s as simple as that either. Bizarrely, Trump knows something about those boxes such that he’s trying to claim Executive Privilege, in addition to attorney-client privilege.

It’s a nonsense claim, legally. Probably every single box seized last Monday has materials covered by Executive Privilege in them, because every single box would include communications directly with Trump. But there is absolutely no basis for any EP claim for a single thing seized from Mar-a-Lago because the Presidential Records Act underlying the seizure is designed, specifically and especially, to make sure all the EP materials are preserved for history. It’s one of the reasons his refusal to turn over the materials that the Archives were asking for specifically is so insanely stupid, because it gave FBI no choice but to come seize this stuff. Trump’s not making an EP claim to try to delay DOJ’s access to the 27 items, which are mostly boxes, on the CLASS receipt. So he must have learned something about the materials itemized in the SSA receipt to which, in a frantic and transparently silly effort, he’s trying to delay DOJ’s access.

Trump’s announcement that the material on the SSA receipt seems to rule out another possible explanation for the SSA receipt I had been pondering, that it covered the materials that were particularly sensitive from a national security perspective, such as the information on nuclear weapons.

And it doesn’t rule out my hypothesis that that material was seized in the obstruction investigation. Indeed, in two ways, it might corroborate my hypothesis.

There are two theories of the 1519 charge. One, which NYU’s Ryan Goodman is championing, suspects it is about the investigation into Mar-a-Lago, criminalizing the effort in June to withhold materials. If that were the significance of the 1519 charge, separating out the communications between lawyers and NARA and DOJ might make sense, since those would be communications into this investigation. That said, there’d be no basis for an EP claim for any of that, since it all post-dated Trump’s ouster. And as soon as DOJ confirmed that some classified material had been knowingly withheld in June when his lawyers told DOJ that it was all turned over, there’d be a crime-fraud exception for those materials.

My theory of the 1519 charge — that it arose out of NARA’s discovery that Trump had attempted to destroy materials subpoenaed in past and present investigations — would similarly be likely to have attorney-client privileged documents. Take a few examples:

  • One thing Trump is likely to have withheld is the Perfect Transcript between him and Volodymyr Zelenskyy, which is something Congress was entitled to get during impeachment. That transcript was hidden from Congress by White House lawyer John Eisenberg, among other lawyers, thereby according the transcript a weak privilege claim, but one easily overcome by the obstructive nature of the choice to withhold it.
  • Another set of things we know were withheld from several investigations were documents showing sustained communications with Russia that should have been turned over by the Trump Organization. The most provable of those were the communications between Michael Cohen and Dmitri Peskov’s office in January 2016 (Mueller got his own copy via Microsoft). There’s probably correspondence regarding an invite Russian Deputy Prime Minister Sergei Prikhodko extended to Trump to attend Putin’s St. Petersburg Economic Forum in June 2016. The Trump Organization did not produce to SSCI the copy of Paul Manafort’s Securing the Victory email he sent to Rhona Graff. The subpoena response on all these issues was handled by Trump’s corporate lawyers, Alan Futerfas and Alan Garten, and so would be privileged — but also crime-fraud excepted — evidence that Trump obstructed various Russian investigations.
  • While one draft of Trump’s termination letter to Jim Comey was ultimately turned over to Mueller (after reports that the only extant copy was one preserved by DOJ lawyers), the Mueller Report narrative surrounding it makes it clear that Trump and Stephen Miller worked over several drafts before the one shared with others. Those earlier drafts were likely not turned over, in part because White House Counsel lawyers advised Trump that these drafts should “[n]ot [see the] light of day.” Again, that’s legal advice, but also proof of documents that were illegally withheld from the Mueller investigation.
  • I don’t want to even imagine what advice from Rudy Giuliani that Trump has withheld from various investigations, particularly pertaining to January 6. Most of that would be (shitty) legal advice. If it was also withheld from proper investigations, though, it’d also be proof of obstruction under 18 USC 1519.

In other words, aside from the documents Trump tried to rip up or eat or flush, many of Trump’s known violations of 18 USC 1519 would involve lawyers directly. Virtually every investigation into Trump was stymied by improper decisions by lawyers. And those withheld documents would once have been privileged, but they’d also be solid proof of obstruction.

And if Trump had reason to believe that DOJ, after predicating an investigation on all the evidence Trump had tried to rip up or eat or flush evidence, had sought and seized all the attorney-client protected materials that had insulated Trump from consequences for his past actions, it might explain one of the biggest puzzles from the last week. For some reason, Trump has worked far harder to obscure that this obstruction investigation exists than that he’s under investigation for a crime with the word “Espionage” in the title. For some reason, Trump is more afraid of the obstruction investigation than the Espionage Act investigation.

One possible explanation for that is that he fears the other secrets he’s been keeping more than proof that he stole a bunch of otherwise innocuous Top Secret documents.

Perhaps the most interesting thing about this latest complaint — first voiced on the 7th day after the search — is it shows that DOJ is in contact with someone presenting themself as Trump’s lawyer.

That’s not surprising. DOJ informed Trump of the search. Even for a simple criminal case into attempting to steal the election (assuming Trump could find someone who would confess to be his lawyer), DOJ would want to have discussions about how to proceed.

In this case, however, the crimes under investigation include, at a minimum, violations of the Espionage Act. DOJ always tries to find a way to resolve those from the get-go, because prosecutions about stolen classified information are always damaging to the equities you’re trying to protect. That’s all the more true in the unprecedented case where the suspect is the former President. At a minimum, DOJ likely has or will float Trump the offer of an offramp like an 18 USC 2701 guilty plea if he cooperates to tell the government about the whereabouts of all the classified documents he stole.

And if what Trump is trying to hide in the obstruction investigation is even more damning, as his behavior suggests it might be, DOJ might actually have enough leverage to make Donny to consider such an offer.

Still, the legal quiet has been making me nervous. I have been waiting all week for a docket to spring up with a Trump motion for a Temporary Restraining Order stalling any access to these files.

For comparison, the docket on a similar challenge from Michael Cohen in 2018 was created just 4 days after the search of his residences, and the discussions about the search began that same day.

On the same day as the seizures (April 9, 2018), the undersigned counsel requested in writing that the U.S. Attorney’s Office for the SDNY return all of the seized property and allow Mr. Cohen and his attorneys the opportunity to screen the materials for privilege, produce any relevant, non-privileged documents to the government, and provide a log of any documents withheld on privilege grounds. Id., ¶ 32, Ex. A. On Wednesday, April 11, 2018, the government responded by letter, rejecting defense counsel’s proposal and informing defense counsel that the government would begin to review the materials at noon on Friday, April 13, 2018. Id. ¶ 33, Ex. B. Accordingly, Mr. Cohen hereby moves for immediate injunctive and equitable relief seeking the opportunity to have his counsel review the seized documents in the first instance, before any review by any law enforcement personnel, for privilege and responsiveness, and, if the Court believes it necessary, for the appointment of a Special Master to supervise that review process.

Trump moved to intervene that same day, April 13, just four days after the seizures.

In the case of the search on Rudy’s phones, SDNY itself asked for a Special Master the next day (though Trump never intervened).

There have to be similar discussions going on now. There just have to be. Trump’s paucity of lawyers — and the conflict posed by the possibility that Evan Corcoran, his most competent current defense attorney, may be conflicted out by dint of having signed an affirmation that Trump turned over all his classified documents in June — cannot explain a full week delay.

But thus far, in spite of every media outlet and their mother filing motions to unseal the search affidavit itself, no one has started pushing to unseal an inevitable fight over access to the seized material. (Again, by comparison, the NYT filed to intervene the day the Cohen warrant docket was made public.)

So for whatever reasons, a full week has elapsed since a lawful search executed on the golf resort of the former President and the first we’re learning about legal discussions — aside from NYT’s revelation that Trump made a veiled threat against Merrick Garland on Thursday — is Trump’s complaint covering just the documents that don’t seem to implicate the Espionage Act.

Something has caused that discussion to remain sealed. And that, by itself, is remarkable.

Update: As klynn reminds in comments, another document that the Trump White House altered was the MemCon of the meeting between Trump and Sergey Lavrov in which he gave the Russians highly sensitive intelligence. I laid out what we know of that alteration, the fall-out, and Mueller’s investigation into it here. If my theory about the SSA receipt is right, that any remaining unaltered record of the meeting found at MAL would be on the SSA receipt. Except the alterations, in this case, are not yet known to involve an attorney, so would not be attorney-client privileged.

emptywheel Trump Espionage coverage

Trump’s Timid (Non-Legal) Complaints about Attorney-Client Privilege

18 USC 793e in the Time of Shadow Brokers and Donald Trump

[from Rayne] Other Possible Classified Materials in Trump’s Safe

Trump’s Stolen Documents

John Solomon and Kash Patel May Be Implicated in the FBI’s Trump-Related Espionage Act Investigation

[from Peterr] Merrick Garland Preaches to an Overseas Audience

Three Ways Merrick Garland and DOJ Spoke of Trump as if He Might Be Indicted

The Legal and Political Significance of Nuclear Document[s] Trump Is Suspected to Have Stolen

Merrick Garland Calls Trump’s Bluff

Trump Keeps Using the Word “Cooperate.” I Do Not Think That Word Means What Trump Wants the Press To Think It Means

[from Rayne] Expected Response is Expected: Trump and Right-Wing DARVO

DOJ’s June Mar-a-Lago Trip Helps Prove 18 USC 793e

The Likely Content of a Trump Search Affidavit

All Republican Gang of Eight Members Condone Large-Scale Theft of Classified Information, Press Yawns

Some Likely Exacerbating Factors that Would Contribute to a Trump Search

FBI Executes a Search Warrant at 1100 S Ocean Blvd, Palm Beach, FL 33480

The Likely Content of a Trump Search Affidavit

Even Trump supporters are beginning to call on him to release the warrant used to search Mar-a-Lago Monday. In spite of serving as a source for multiple outlets yesterday, the lawyer who received the warrant, Christina Bobb, has refused to turn it over.

She’s probably refusing for several reasons. First, it’s likely that 18 USC 793 is among the suspected crimes cited on the warrant. If Trump admitted he’s under investigation for part of the Espionage Act, his supporters might be less likely to prepare for civil war, as they currently are doing. Plus, given the inconsistent numbers of boxes seized in Bobb-sourced stories (the WSJ reported at least 10 boxes were seized, Politico and WaPo reported that 12 were), it suggests the search warrant return is far more detailed than just listing boxes of stolen documents, but instead lists individual documents.

If the return looked something like, [and to be clear, this is strictly hypothetical, and my “yaddayadda” is a fake compartment name] …

  1. Single existing copy of transcript of phone call between President Donald Trump and Ukrainian President Volodymyr Zelenskyy, July 25, 2019, TS/SCI/SAR-YADDAYADDA/NF
  2. Single existing copy of hand-written notes of meeting between President Donald Trump and Russian President Vladimir Putin, July 16, 2018, TS/SCI/SAR-YADDAYADDA/NF
  3. Transcript of NSA intercept of Saudi intelligence official in advance of Turkey operation involving Jamal Khashoggi, September 29, 2018, TS/SCI/SAR-YADDAYADDA/NF
  4. NSA targeting list for Russia, dated January 15, 2021, TS/SCI/SAR-YADDAYADDA/NF (see this post)

…Then the gravity of Trump’s crime would become immediately apparent.

Plus, Bobb didn’t receive the most interesting part of it, the affidavit the FBI used to obtain the search warrant.

So I wanted to write up what an affidavit would likely include, based on the public understanding of the investigation.

For comparison, here are the warrants for Reality Winner and Josh Schulte, both of which were also, at least in part, warrants for a 793 investigation. Here are warrants to search Roger Stone and Oath Keeper Jeremy Brown’s houses, both Federal searches in Florida related to investigations conducted in DC (the search of Brown’s house even found allegedly classified documents, albeit only at the Secret level). Here’s the warrant Robert Mueller’s team used to get Michael Cohen’s Trump Organization emails from Microsoft.

Cover Page

The cover page would include the address to be searched, 1100 S. Ocean Blvd, Palm Beach, FL. It would name the magistrate docket for the warrant, 9:22-mj-08332, references to Attachment A describing the premises to be searched, and Attachment B, the description of things to search for, as well as the Affidavit.

It would have checkboxes checked, listing that the search was for evidence of a crime and to retrieve contraband.

It would list the crimes under investigation — according to public reports, probably 40 USC 2201-2209, 18 USC 2071, and 18 USC 793.

It would be dated and signed by Magistrate Judge Bruce Reinhart.

Attachment A

Attachment A would include a description of Mar-a-Lago, probably with a nifty picture of the garish resort, possibly also pictures of the basement storage area that investigators saw in their June visit. It would likely mention Trump’s hotel safe in the bridal suite.

Attachment B

Attachment B would authorize seizure of all documents relating to violations of the statutes in question, so probably 40 USC 2201 and 18 USC 793, with bullet points stemming from what is covered under the PRA and what is covered — defense information — under the Espionage Act.

No computer files were described to have been seized, so it would consistent entirely of paper seizures.

Affidavit

This would include:

  • Several paragraphs describing the affiant’s background and training
  • An assertion that the affiant believed there was probable cause for the subject offenses
  • The statutory language, basically a cut-and-paste describing the elements of the offense
  • Language about classification, including the various levels of classification
  • Language about Presidential Records
  • Language about 32 CFR sections 2001 and 2003, which cover the storage of classified information

Then there’d be a probable cause section that would include:

  • A description of who is under investigation (whether it’s just Trump, or whether his staffers are as well)
  • A reference to the Archive’s February 2022 request that DOJ investigate Trump’s document theft
  • Background on the year-long effort leading up to the Archives’ request to get Trump to return stolen documents, including the specific records the Archives identified that Trump had withheld (CNN has a timeline here)
  • Other evidence of Trump’s refusal to abide by Presidential Records Act
  • Other evidence of Trump’s failures to protect classified information (particularly if FBI knows of any instances from after he left the presidency)
  • The outcome of the investigation into Mike Ellis’ efforts to retain highly sensitive NSA documents at the White House as staffers were packing boxes
  • The Archives’ three statements on the effort to obtain the documents
  • A description of what aides told the FBI in interviews about the stolen documents in April and May
  • Testimony about efforts to keep uncleared staffers from accessing boxes that included classified information
  • A description of the May subpoena to the Archives for the classified documents stolen
  • A summary of the classified documents found in the 15 boxes turned over last year, possibly with examples of the most sensitive documents
  • Some explanation of why DOJ believes that these documents weren’t actually declassified by Trump before he stole them
  • A description of the June 3 meeting at Mar-a-Lago, which show three really key parts of the probable cause:
    • Acknowledgement from Trump lawyers that he remained in possession of stolen documents
    • A description of things the lawyers said that proved Trump was treating these as classified documents
    • A description of the storage location in the basement, including why it did not meet the standards for storage of classified documents
    • Possibly a description of documents seen on that visit that would qualify as potentially classified Presidential Records
  • A description of the letter asking Trump to better secure the documents
  • A description of the subpoena for surveillance footage from Mar-a-Lago, including anything suspicious on it
  • A list of known Presidential Records that had not yet been shared with the Archives

The affidavit would explain why the items being searched for are necessary to investigate the crime, which would explain:

  • FBI needed to obtain the documents to see if they were Presidential Records not otherwise shared with the Archives
  • FBI needed to obtain the documents to see if they were defense information
  • DOJ needed to secure the documents because they are all the property of the Archives

Finally, the affidavit would include a conclusion stating that all this amounts to probable cause that Trump was in possession of documents that were covered by the PRA, some subset of which were believed to be classified.

Some Likely Exacerbating Factors that Would Contribute to a Trump Search

From the start of the reporting on Trump’s theft of classified documents, commentators have suggested that Trump was only under investigation for violations of the Presidential Records Act or 18 USC 2071.

Reports that in June, one of the four people who met with Trump’s lawyers on this issue was Jay Bratt, head of Counterintelligence & Export Control Section at DOJ, which investigates Espionage, makes it highly unlikely that those are the only things under investigation.

In early June, a handful of investigators made a rare visit to the property seeking more information about potentially classified material from Trump’s time in the White House that had been taken to Florida. The four investigators, including Jay Bratt, the chief of the counterintelligence and export control section at the Justice Department, sat down with two of Trump’s attorneys, Bobb and Evan Corcoran, according to a source present for the meeting.

At the beginning of the meeting, Trump stopped by and greeted the investigators near a dining room. After he left, without answering any questions, the investigators asked the attorneys if they could see where Trump was storing the documents. The attorneys took the investigators to the basement room where the boxes of materials were being stored, and the investigators looked around the room before eventually leaving, according to the source.

Even 18 USC 1924, which prohibits unlawfully taking classified information, would involve complications if the person who stole the materials were the former President. Admittedly, the fact that DOJ had an in-person meeting with Trump before conducting a search might mitigate those complications; Trump may be refusing to return documents rather than just not turning them over.

Still, it’s possible — likely even — that there are exacerbating factors that led DOJ to search Mar-a-Lago rather than just (as they did with Peter Navarro) suing to get the documents back.

Remember, this process started when the Archives came looking for things they knew must exist. Since then, they’ve had cause to look for known or expected Trump records in (at least) the January 6 investigation, the Tom Barrack prosecution, and the Peter Strzok lawsuit. The investigation into Rudy Giuliani’s influence peddling is another that might obviously lead to a search of Trump’s presidential records, not least because the Archives would know to look for things pertaining to Trump’s impeachments.

With that as background, Trump would be apt to take classified documents pertaining to the following topics:

  • The transcript of the “perfect phone call” with Volodymyr Zelenskyy and other documents pertaining to his first impeachment
  • Notes on his meetings with other foreign leaders, especially Vladimir Putin and Saudi royals, including Trump’s July 16, 2018 meeting with Putin in Helsinki
  • Information surrounding the Jamal Khashoggi execution (and other materials that make Jared Kushner’s current ties to Mohammed bin Salman suspect)
  • Policy discussions surrounding Qatar, which tie to other influence peddling investigations (for which Barrack asked specifically)
  • Intelligence reports on Russian influence operations
  • Details pertaining to security efforts in the lead-up to and during January 6
  • Intelligence reports adjacent to Trump’s false claims of election fraud (for example, pertaining to Venezuelan spying)
  • Highly sensitive NSA documents pertaining to a specific foreign country that Mike Ellis was trying to hoard as boxes were being packed in January 2021

For many if not most of these documents, if Trump were refusing to turn them over, it might amount to obstruction of known investigations or prosecutions — Barrack’s, Rudy’s, or Trump’s own, among others. Thus, refusing to turn them over, by itself, might constitute an additional crime, particularly if the stolen documents were particularly damning.

One more point about timing: An early CNN report on these stolen documents describes that a Deputy White House Counsel who had represented Trump in his first impeachment was liaising with the Archives on this point.

Longtime Archives lawyer Gary Stern first reached out to a person from the White House counsel’s office who had been designated as the President Records Act point of contact about the record-keeping issue, hoping to locate the missing items and initiate their swift transfer back to NARA, said multiple sources familiar with the matter. The person had served as one of Trump’s impeachment defense attorneys months earlier and, as deputy counsel, was among the White House officials typically involved in ensuring records were properly preserved during the transfer of power and Trump’s departure from office.

By description, this is likely either John Eisenberg (who hid the full transcript of the perfect phone call but who was not obviously involved in Trump’s first impeachment defense) or Pat Philbin (who was the titular Deputy White House Counsel and was overtly involved in that defense). If it’s the latter, then Philbin recently got a DOJ subpoena, albeit reportedly in conjunction with January 6. If so, DOJ might have recent testimony about documents that Trump was knowingly withholding from the Archives.

It Is Not News that Bill Barr Lied to Protect Kleptocracy

Let’s talk about what Bill Barr did in his second tenure as Attorney General.

Even before Jeff Sessions was fired, Barr decided — based on the false claims he saw on Fox News — that the allegations against Donald Trump were bullshit. He wrote up a memo suggesting that it was okay for the President to fire the FBI director to cover up his own crimes. And based on that audition, he was nominated and confirmed as Attorney General.

When the investigation into the aftermath of that firing shut down weeks after he was confirmed, Barr lied to downplay the degree to which the President had enthusiastically welcomed the help of a hostile country to get elected. Among the things his lies did was to hide that the investigation into whether Roger Stone conspired with Russia — with Trump’s full knowledge — remained ongoing, a detail that remains unreported everywhere but here. Barr also issued a prosecution declination for crimes still in progress, Trump’s ultimately successful effort to buy the silence of witnesses against him with pardons.

Barr poured whiskey to celebrate his old friend Robert Mueller’s frailty before Congress.

Then Barr turned to protecting Trump, Rudy Giuliani, and Sean Hannity when a whistleblower objected that Trump was extorting Volodymyr Zelenskyy for help on his reelection campaign. He did so in a number of ways, including interfering in legally mandated congressional and election oversight. He also stripped the whistleblower complaint to ensure that investigative steps put into place to protect national security in the wake of 9/11 wouldn’t tie Trump’s extortion attempt to an ongoing investigation into Ukrainian efforts to exploit Rudy Giuliani’s corruption to protect (Russian-backed) Ukrainian corruption. Barr’s efforts to hide the national security impact of Russian-backed Ukrainian efforts to corrupt American democracy gave Republicans cover — cover that every single Republican save Justin Amash and Mitt Romey availed themselves of — to leave Trump in place even after he put his own personal welfare above national security.

Then Barr turned to undoing the work of the Russian investigation. After Judge Emmet Sullivan ruled that the case against Mike Flynn was sound and Michael Horowitz concluded that the Russian investigation was not a partisan witch hunt, Barr assigned multiple investigators — John Durham and Jeffrey Jensen — to create a new set of facts claiming it was. He intervened to minimize the punishment against Stone, in the process claiming that threats against a witness and a judge — involving the same militias that would go on to lead an attack on the Capitol on January 6 — were mere technicalities. In his attempt to shield Stone from punishment, Barr ensured that the then-ongoing investigation into Stone’s suspected conspiracy with Russia would go nowhere. Barr’s efforts to attack Emmet Sullivan for refusing to rubber stamp Barr’s corruption resulted in a death threat against the judge. Barr’s effort to invent excuses to dismiss the prosecution against Flynn included altering documents and permitting an FBI agent who had sent pro-Trump texts on his FBI device to make claims in an interview that conflicted with the agent’s own past actions.

Barr used COVID as an excuse to let Paul Manafort serve his sentence in his Alexandria condo until such time as Trump pardoned his former campaign manager for lying about the help from Russia he used to get elected.

Barr took several measures to protect Rudy Giuliani from any consequences for his repeated efforts to get help for Donald Trump from Russian-backed Ukrainians, including outright Agents like Andrii Derkach. He ensured that the existing SDNY investigation into Rudy could not incorporate Rudy’s later efforts to solicit Russian-backed Ukrainian help. He attempted to fire Geoffrey Berman. He set up a parallel process so that DOJ could review the fruits of Rudy’s influence peddling for potential use against Trump’s campaign opponent.

This is just a partial list of the false claims that Bill Barr mobilized as Attorney General to ensure that the United States remained saddled with a President who repeatedly welcomed — at times extorted — Russian-backed help to remain as President.

It is not news that Bill Barr corrupted DOJ and lied to protect kleptocracy — in its American form of Donald Trump, but also, by association, in Putin’s efforts to exploit American venality to corrupt democracy.

Nevertheless, multiple outlets have decided that now — during Russia’s unprovoked attack on Ukraine — is a good time to invite Bill Barr onto TV or radio to tell further lies to spin his own role in protecting kleptocracy, Russian and American. They appear to think they’re clever enough to catch a shameless liar in a lie — or perhaps believe the news value of having Barr explain that he’d prefer a competent fascist to Trump but if Trump is all he gets, he prefers that to actual democracy.

You cannot win an interview with Bill Barr. Gaslighters like Barr are too skilled at exploiting our attention economy. The mere act of inviting him on accords a man who did grave damage to the Department of Justice and the Constitution in service of kleptocracy as a respectable member of society. Even assuming you’re prepared enough to challenge his lies (thus far none of the journalists who interviewed Barr has been), he’ll claim your truth, the truth, is just partisanship designed to smear those who believe kleptocracy is moral. More likely, you’ll end up like Savanah Guthrie did, letting Barr claim, unchallenged, that the allegation that Russia conducted a concerted effort to compromise Trump is a lie.

Before Russia invaded a peaceful country, it attempted to achieve the same ends by cultivating Trump, by trading him electoral advantage for Ukrainian sovereignty. Bill Barr was a central part in letting that effort continue unchecked until January 20, 2021.

If you invite him on to do anything other than apologize to Ukraine and the United States, you are part of the problem.

Three Things: Part 1 — Cognitive Dissonance and Ukraine

[NB: check the byline as usual, thanks./~Rayne]

I was stitching together three somewhat disparate bits into a narrative only to realize the post was huge and unwieldy. I’ve broken it out into three parts under the Three Things theme. The other two should be done soon.

~ ~ ~

Though NATO and the EU have become more resolved and responsive since active military action began, there’s been anger and frustration expressed about the lack of immediate aid by allies of Ukraine in response to Russia’s invasion.

We have to admit that cognitive dissonance played a role in the lag.

Cognitive dissonance may have been to blame for the low key response to Russia’s previous incursions against Georgia, Crimea, and the quasi-coup of Belarus with Alexander Lukashenko’s sketchy presidential election, as well as the 2014 occupation of Donetsk and Luhansk areas in eastern Ukraine.

For a number of reasons depending on the individuals’ and nation-states’ situations, EU and NATO were uncomfortable confronting the possibility Putin was engaging in colonial expansion.

It didn’t sink into our collective consciousness over more than a decade what Putin was doing with his steady acquisition of control over areas formerly part of the USSR.

Did it take our impeaching a US president because he attempted to extort performance from Ukraine in exchange for military aid? No — that still wasn’t enough for many to see what’s been in front of them for years.

We’re steadily awakening to the challenge Putin has posed but denial clings to us, our eyes resist opening.

It shouldn’t have taken Ukraine’s president Zelenskyy making an impassioned speech to break the torpor, reminding the EU and thereby its NATO members that Ukraine was defending democratic values on Europe’s eastern flank, and that his plea might be the last time they saw him alive.

The implication was not only that Putin wants Zelenskyy dead, but there could be far worse ahead without immediate assistance from the EU neighborhood.

~ ~ ~

Let me share a translation of a tweet thread by Anna Colin Lebedev, lecturer at University of Paris-Nanterre, a specialist in post-Soviet societies. She shared these remarks on February 24 when the invasion began, in which she addresses the drag of cognitive dissonance. (Forgive the wonky formatting, it is as it was entered in Twitter.)

I see on this day at the start of the war that many of us cling to familiar categories. Reassuring, but misleading. We need to shift our interpretive schemas, because the situation requires it. A few quick remarks. 1/11

1. “Putin is crazy.”
Maybe, but it doesn’t matter, because above all we need to understand the internal rationality of his action. We need to understand the extent of his project, to see his salient points (Ukraine, and beyond, the United States, the West) 2/11

We need to realize that the ambition of the project is global, beyond Ukraine.

2. “Isn’t he okay?…”
What the massive attack on Ukraine teaches us is that the most radical scenario, the most improbable, the one we refuse to see… 3/11

… is the one that is likely to be implemented.
Our political cultures have an aversion to radicalism. We don’t believe the worst is possible. On another continent, perhaps, but not here.
Russia still won’t attack US? 4/11

The current Russian power does not reason in terms of costs and benefits. He reasons in terms of a major mission. Even an ultimate mission. Mission requires sacrifice. Even a self-sacrifice. Attacking a NATO country would be suicidal for Putin? 5/11

Let’s not rule it out though. The suicide mission is part of the mental universe of this former KGB officer. Once again: so far, our most doomsday scenarios have come true. 6/11

3. “Attachment to Ukraine”; “Soviet nostalgia”; “willingness to rebuild the USSR”
Warning: smoke screens. Political science teaches us that by using history, we speak above all about the present. To say “Putin wants to rebuild the USSR” is to be reassured. 7/11

Why? Because we imply: “Once the USSR is rebuilt, it will stop. We will be quiet behind our iron curtain. He wants Ukraine? calm.”
You have to listen to Putin. It’s pretty self-explanatory. 8/11

In his speeches he talks about Ukraine, yes. But he talks a lot, a lot, a lot about us. The West. United States. And the European Union, this little subservient to the USA, this little one that doesn’t count and which is a NATO base. The USA is the main adversary. 9/11

But we are the target.
You’re going to say to me: “wait, he’s still not okay?…”
I refer you to point 2.
It is not catastrophic today to consider the worst. It’s realistic. And I say it all the better because I was one of those who temporized. 10/11

There’s a scary little taste of “don’t look up” in the interviews I was able to do today. That explains this thread.
I will return to my job and continue to do what I have done until now: explain, detail, show other angles. 11/11, end

The bit about “don’t look up” will be familiar to those of us who watched the Netflix movie, “Don’t Look Up,” in which experts try to warn the public of an extinction level event but multiple layers of opportunistic predatory delay and denialist disbelief thwart a rational response to save humanity.

One might think this a little throwaway line, “a scary little taste of ‘don’t look up’,” but it should give us pause if Lebedev’s repeated attempts fail to get through to us the ruthlessness of Putin’s decision-making. What are the risks posed by lingering delay, denial, and disbelief?

In short, we should expect Putin to remain singularly focused on his mission.

We should be equally focused on stopping him, and look the up at the bigger picture.

Americans should also snap the fuck out of their somnolent navel gazing and confront Colin Lebedev’s question, “Russia still won’t attack US?”

The truth is that Russia already has attacked the U.S. as well as NATO, repeatedly.

The truth is that we’re still wallowing in cognitive dissonance, unable and/or unwilling to accept what has been limned before us:

2009 — Russian cyberattack on Kyrgyzstan in an attempt to force the country to evict an American military base;

2009-2010 — a program of spies embedded in our population in the event of societal breakdown, which we’ve blown off and normalized as premium cable TV series content, The Americans and “red sparrow” Anna Chapman; Russian hackers attacked Twitter and Facebook in Georgia to celebrate the anniversary of Russia’s annexation of Georgian territory;

2011-2012 — Funding of Russian-sympathetic GOP candidates and electeds by laundered cash donations throught the National Rifle Association, with assistance by Russians Aleksandr Torshin and “red sparrow” Maria Butina.

2012-2015 — Evgeny Buryakov and two other Russian spies gathered intelligence which included information on U.S. sanctions and alternative energy.

2014 — Russian hackers attacked the State Department and White House as well as NATO.

2015 — Russian hackers attacked the Defense Department.

2016 — Russian hackers attacked the Democratic National Committee as part of a program of active measures to subvert the presidential election in favor of Donald Trump. Active measures also included divisive tactics on social media at least as early as 2014 intended to increase societal friction based on race and gender.

There are are far more efforts to harass, attack, and manipulate the US and NATO not listed here, including the entirety of Donald Trump’s term in office, and the Brexit referendum resulting in the steady destruction of the UK’s economy along with a breach in EU nations.

Other persons and events which don’t appear to have a direct role but likely fit in some way, like the presence of Leonard Teyf and his wife in North Carolina, should be included in the list, along with the hacking of the RNC’s email which has never been fully accounted for.

In these efforts there’s a pattern here of increasing intensity, scale, and severity.

If Putin managed to ensure his useful idiot occupied the White House for four years, he surely feels more is within his capability. We would be absolutely blind and foolish to ignore the likelihood Putin will attempt far more against the US, NATO, and other democratic allies.

~ ~ ~

Since I began writing this post, Politico published an interview with former Trump administration Senior Director for Europe and Russia of the National Security Council Fiona Hill. It’s a must-read piece. An expert on Putin, her perspective mirrors Colin Lebedev:

Reynolds: The more we talk, the more we’re using World War II analogies. There are people who are saying we’re on the brink of a World War III.

Hill: We’re already in it. We have been for some time. We keep thinking of World War I, World War II as these huge great big set pieces, but World War II was a consequence of World War I. And we had an interwar period between them. And in a way, we had that again after the Cold War. Many of the things that we’re talking about here have their roots in the carving up of the Austro-Hungarian Empire and the Russian Empire at the end of World War I. At the end of World War II, we had another reconfiguration and some of the issues that we have been dealing with recently go back to that immediate post-war period. We’ve had war in Syria, which is in part the consequence of the collapse of the Ottoman Empire, same with Iraq and Kuwait.

All of the conflicts that we’re seeing have roots in those earlier conflicts. We are already in a hot war over Ukraine, which started in 2014. People shouldn’t delude themselves into thinking that we’re just on the brink of something. We’ve been well and truly in it for quite a long period of time.

We have been sleep walking for too long, and now innocents are paying for it with life and limb, facing the monster who blew up apartment buildings killing hundreds of his own countrymen to ensure he was elected to office, who has used both radioactive material and nerve agent to poison foes.

It’s beyond time to wake up.

Questions for Bill Barr about His Cover-Ups Pertaining to Ukraine and Russia, Starting with: Who Withdrew the Red Notice for Yevgeniy Prigozhin?

Billy Barr’s effort to launder his reputation with a book tour has started, kicked off with a supine WSJ review that includes just one “some said” clause treating as debatable the provably false claims he made in his book about intervening to eliminate all consequences for Trump’s top associates for lying to cover up their interactions with Russia during the 2016 election.

During much of Mr. Barr’s time in the Trump administration, some said he protected the president at the expense of the Justice Department’s independence, especially over his handling of special counsel Robert Mueller’s investigation of Russian interference in the 2016 election.

Mr. Barr issued his own summary of Mr. Mueller’s investigative report depicting the results in a way that Mr. Mueller and others described as misleading or overly favorable to Mr. Trump. He also worked in the ensuing months to undermine some of the prosecutions spawned by the Mueller investigation. An example was his decision to drop the criminal case against Michael Flynn, Mr. Trump’s former national security adviser.

Mr. Barr has said that he intervened to correct what he saw as overreach by the prosecutors and flaws in the department’s approach to those cases, a stance he maintains in his book.

Barr’s book tour happens at the same time, the Times reports, as 400 Wagner mercenaries sent by Putin to Kyiv are trying to hunt down the elected President of Ukraine.

More than 400 Russian mercenaries are operating in Kyiv with orders from the Kremlin to assassinate President Zelensky and his government and prepare the ground for Moscow to take control, The Times has learnt.

The Wagner Group, a private militia run by one of President Putin’s closest allies and operating as an arm-length branch of the state, flew in mercenaries from Africa five weeks ago on a mission to decapitate Zelensky’s government in return for a handsome financial bonus.

Information about their mission reached the Ukrainian government on Saturday morning and hours later Kyiv declared a 36-hour “hard” curfew to sweep the city for Russian saboteurs, warning civilians that they would be seen as Kremlin agents and risked being “liquidated” if they stepped outside.

This makes me wonder whether Viktor Medvedchuk — the guy Putin would like to install as a puppet — had help escaping from house arrest.

People’s deputy from the Opposition Platform – Pri Life party, Putin’s godfather Viktor Medvedchuk, escaped from arrest.

Source : information from the ZN.UA edition , obtained from the Office of the Prosecutor General, Advisor to the Minister of Internal Affairs Anton Gerashchenko

Details : According to sources, on February 26, the Prosecutor General’s Office instructed the National Police to check the presence of Medvedchuk at the address where he is under house arrest.

The National Police fulfilled the order: Medvedchuk was not at the scene.

The coincidence of Putin’s invasion with Barr’s attempt to launder his reputation led me to put together a partial list of questions Barr should be asked (hopefully by Lester Holt) as he attempts to pretend he didn’t pervert justice — in part — to protect Trump from his attempt to extort Ukraine. For example:

  • Why didn’t Barr recuse himself from the review of the whistleblower complaint against Trump given that Trump told Zelenskyy Barr would contact him during the Perfect Phone Call? (This post provides more details of how Barr’s DOJ mishandled that referral.)
  • Why did Barr only refer the transcript of the call, and not the entire whistleblower complaint, the latter of which would have led Public Integrity to see the tie between Trump’s call and Rudy’s successful effort to get Maria Yovanovich fired (for which Rudy remains under active investigation)?
  • Why did OLC, first, write a memo refusing to share the whistleblower complaint and, once they did, overclassify passages of the call to hide Barr’s own role?
  • Why did Barr personally warn Rupert Murdoch before Sean Hannity got on a plane to fly to Vienna as part of Rudy’s grift?
  • Why did Barr try to fire Geoffrey Berman at a time it was investigating Rudy Giuliani’s role in all this?
  • Why did Barr ask one of his most politicized US Attorneys, Scott Brady, to serve as an intake point for Russian disinformation from Andrii Derkach?
  • Why did Barr separate the investigation into Derkach from the one in which Rudy, who met with Derkach after he had been IDed as a Russian agent, was already under investigation?

Had Barr not intervened in all these ways, the US would have been better able to protect its own democracy from Trump (and Giuliani’s) attempt to corrupt Ukraine’s democracy. Instead, Ukraine is schooling America about what it takes to defend democracy.

But given the assassins hunting down Zelenskyy even as Barr attempts to launder his reputation, there’s perhaps a more urgent question. Why did Bill Barr’s DOJ let the Red Notice for Yevgeniy Prigozhin’s arrest drop in September 2020?

In March 2020, DOJ dismissed the case against two of Prigozhin’s companies that had interfered in the 2016 election, but not Prigozhin himself. As I wrote, the decision was not as suspect as some of Barr’s other interventions in Mueller prosecutions (though it happened at the same time). Because Prigozhin’s corporate persons, but not his biological person, showed up to contest the charges, the Prigozhin defense became substantially an effort to learn FBI’s sources and methods. A Dabney Friedrich decision on the protective order exacerbated that, and another required DOJ to start naming US persons affected. Dropping the case against two corporate persons was not, itself, suspect. DOJ did not drop the case against Prigozhin or his trolls.

Even though the charges against the biological person Prigozhin had not been dropped, in September 2020, Interpol removed Prigozhin from the list of those who could be arrested, citing the dismissal against his corporate persons. This allowed Prigozhin to make several trips to jurisdictions, including Germany, from which he could have been extradited.

It’s certainly possible Billy Barr had no role in this decision and that DOJ tried to point out that, in fact, the charges against Prigozhin remained (and still remain). But given that he gave a screed that seemed to attack the prosecution as a whole at the time, perhaps DOJ affirmatively let Prigozhin slide.

But as his book tour takes place against the backdrop of assassins hunting for Zelenskyy, it seems like a good time to ask him if he did intervene to let the owner of Putin’s paid killers travel free from any risk of direct legal consequences for his intervention in America’s own democracy.

Three Things: The C C D of Russia’s Invasion of Ukraine

[NB: check the byline as usual, thanks./~Rayne]

This is an opinion piece, no reporting, simply some thoughts which Russia’s invasion of Ukraine have spawned.

It also offers fresh thread space since comments are getting deep below some of the previous threads.

~ 3 ~

Colonialism is alive although not necessarily well, as Russia’s invasion of Ukraine demonstrates.

When persons of color talk about decolonialism it’s frequently in the context of anti-racism — making a concerted effort to unwind domination and occupation of people, place, and culture which have been suppressed and oppressed by white supremacy and white nationalism.

It’s the reawakening of culture and consciousness like indigenous language and thinking in those places where they have lived and where their people first arose.

Because racism is so often tightly wound with colonialism, it’s easy for white people to believe this is unrelated to them, or worse, reject it as “woke-ism.”

The invasion of Ukraine reminds white people colonialism is ongoing and very much affects people who look like them. It underpins the tensions between Britain, Ireland, Northern Ireland, Scotland, and Wales. It’s part of the conflict between People’s Republic of China and Xinjiang Province, Taiwan, and Hong Kong where different minority ethnic groups have long existed apart from the Han majority in China. It’s at the heart of Israel’s domination and apartheid of Palestine; it still affects entire continents including Africa and South America.

After dizzying waves of political and cultural slicing and dicing across several millennia, Ukraine had its own identity as a sovereign state beginning in the mid-1700s but for a handful of years when it was resorbed into the Russian empire. When the USSR collapsed in 1991, Ukraine emerged again as an autonomous sovereign state. It has since then struggled against various forms of incursion by Russia to maintain its sovereignty while working to establish its autonomous cultural identity (ex. Kyiv not Kiev).

In 2013 Ukraine chose to align itself more fully with Europe, exercising its collective human right of self-determination — a rejection of colonization by any other nation-state. Unfortunately its pro-Russian president obstructed this choice setting off the Euromaidan protests and the Maidan revolution, which in turn may have led to Russia’s incursion and occupation of eastern Ukraine’s Donetsk and Luhansk regions.

What we are watching now is the continued effort by Russia’s Putin to destroy Ukraine’s sovereignty and restore its previous identity as a subset of Russia — a colonial force seeking to re-colonize a former colony. It is more than re-colonization, though; it’s an expressed intent to erase people on an individual and national level. A pogrom.

It wouldn’t hurt to pay more attention to how people of color view Russia’s colonialist efforts for this reason. You might try following Terrell Jermaine Starr (https://twitter.com/terrelljstarr) who is currently reporting from Ukraine and Kimberly St. Julian-Varnon (https://twitter.com/ksvarnon) who has been studying Ukraine.

It’s equally important to reexamine unconscious colonial bias while our heads have been opened to decolonization. Like the words used to explain the Russian invasion compared to other ongoing colonization.


As if the US hadn’t installed a colonial occupation in Iraq during the Bush administration. As if Iraq wasn’t already a civilized nation before the US invasion in 2003. As if Afghanistan hasn’t been occupied by Russia and then the US in our lifetime.

~ 2 ~

Consent is a core component of democracy, autonomy, and sovereignty.

Watch who across the right-wing in the US supports Putin’s invasion. If you look through the lens of respect for affirmative consent, it’s no surprise at all which right-wing extremists support Putin.

They don’t support consent by anyone who isn’t part of their immediate in-group, either.

Which persons reject the autonomy and agency of women and LGBTQ+ people over their own bodies?

Which persons reject the sovereignty of indigenous peoples’ lands, or the true history of colonized and occupied people?

Which persons reject the civil rights of non-whites and others marginalized, including the voting rights of non-whites who elected Joe Biden as president?

The same people who also support Putin’s invasion have no qualms about rejecting the human rights of Ukrainians. They generally have a problem with democracy here or elsewhere, which relies on the consent of the people.

~ 1 ~

DARVO isn’t merely a behavior exhibited by abusive individuals but colonialists and fascists. Stripped to its barest form it’s victim blaming: they made me do it, they were asking for it, so on, while denying responsibility for the abuse.

If you’re familiar with abusive relationships particularly with narcissists, you recognize the behavior. We saw it throughout Trump’s campaign and administration.

A framework developed by psychologist Jennifer Freyd, DARVO means “deny, attack, and reverse victim and offender,” a defensive mechanism used by abusive persons when confronted with their actions.

We saw this with Trump when he accused his rape victim E. Jean Carroll directly and through spokespersons of lying about the attack and attempting to profit off her lawsuit against Trump for defamation, making himself out to be a victim of an opportunist instead of a serial sexual abuser.

Trump scaled up DARVO frequently; one particular attack used repeatedly has been the claim he’s been spied on by Democrats and the previous Obama administration. We all know know that these claims were outright fallacious, while intended to redirect attention from spying done for his benefit like the hacking of the DNC servers in 2016, and yet more redirection from whatever he was doing with classified and top secret material during and after his administration.

Nearly all the GOP and its white evangelical base have employed DARVO by claiming victimhood though it exists in a majority white country with a majority white government established to protect white supremacy and nationalism with preference for Christian fundamentalism.

At scale when aimed at a population, DARVO is a confluence of different propaganda techniques melding the Big Lie and tu quoque fallacy using virtue words and smears to gaslight the population into believing the perpetrator over anyone trying to hold them to account.

This is what Putin has done and is doing with Ukraine; he’s an abusive leader claiming a false victimhood to defend his attack on a sovereign neighbor.

From The Hindu:

Unfazed by tough Western sanctions, President Vladimir Putin said on February 24 that he decided to launch a “special military operation” aimed at the “demilitarisation and denazification” of Ukraine and also bring to justice those who committed numerous crimes against peaceful people, including Russian nationals.

“People’s republics of Donbass approached Russia with a request for help. In connection therewith, I made the decision to hold a special military operation,” Mr. Putin said in a special television address.

He said the goal of the military operation is to “protect the people that are subjected to abuse, genocide from the Kiev regime for eight years, and to this end we will seek to demilitarise and denazify Ukraine and put to justice those that committed numerous bloody crimes against peaceful people, including Russian nationals”. Justice and truth are on Russia’s side, Mr. Putin was quoted as saying by state-run TASS news agency.

We can imagine what Russian state media has been reporting about Ukraine based on this tissue of lies used to create a casus belli.

Julia Ioffe explains what Putin has done but ultimately it’s propaganda.


If anyone was to ask Putin if he is using manufactured excuses for war, he’d deny it.

He’d claim the Ukrainian government is at fault and has started this war.

He’d reverse the victim again as he has already, claiming Russians and Ukraine’s Russian nationals.

He’d claim these false victims have been damaged by Ukraine’s current government.

Deny, attack, reverse victim and offender.

It’s not the first time Putin’s done this and gotten away with it. He may have done this about the 1999 Russian apartment bombings in order to boost his political profile and get himself elected; reporting on this may have been the reason behind Alexander Litvinenko‘s assassination.

What more self-victimization can we expect from Putin as Russia’s invasion of Ukraine continues?

~ 0 ~

No matter how long this invasion lasts, no matter the costs wreaked by either side, no matter the amount of ginned-up rationalizations for the violence unleashed on Ukraine, Putin has already lost to this man.


I hope he lives to see the last Russian invader leave his country.

How Not to Lose a World War between Authoritarianism and Democracy, Two

My last thread on how not to lose a World War between authoritarianism and democracy got really long and I’m overdue for an update. Same rules, new developments.

Volodymyr Zelenskyy has provided masterful leadership since Russia invaded. This morning, Ukraine let it be known that when the US offered him safe passage out of the country, he responded, “I need ammunition, I don’t need a ride.”

Not only will this bolster Ukrainians fighting for their country, but it will make it clear that Zelenskyy is not a mere pawn of the US.

1. DON’T LET IT BECOME A WORLD WAR BETWEEN AUTHORITARIANISM VERSUS DEMOCRACY

Last night, a joint US-Albanian motion to condemn Russia’s invasion failed in the UN Security Council with a Russian veto. Russia holds the presidency right now, so Ukraine’s ambassador and others criticized Russia’s involvement in presiding over the vote.

Importantly, however, China abstained. While China is still protected Russia in its invasion, the abstention vote suggests Russia hasn’t been able to persuade China that it had created enough legitimacy for its invasion.

Ukraine’s ambassador suggested that one day the Russian people might be liberated too.

2. RETAIN THE TOOLS OF HEGEMONIC POWER

Over the course of the last day, Europe led the US in imposing sanctions in Putin and Sergei Lavrov personally.

Most major oligarchs still escape sanctions (in part because they’ve obtained residency in Western countries). But minutes ago, Roman Abramovich announced he’s stepping back from management of Chelsea football.

3. DON’T ANTAGONIZE YOUR ALLIES

Over the course of the day, the last remaining hold outs on limiting Russia’s access to SWIFT have come on board. So in a few days, Russia will be further removed from the world economy.

Symbolically, Germany just announced they’re sending arms to Ukraine, regarding the invasion of Ukraine as a threat to the post-war order.

“The Russian invasion of Ukraine marks a turning point,” German Chancellor Olaf Scholz said in a statement. “It threatens our entire post-war order. In this situation, it is our duty to do our utmost to support Ukraine in defending itself against Vladimir Putin’s invading army. Germany stands closely by Ukraine’s side.”

Update: Ursula von der Leyen has just made the SWIFT removal official.

First, we commit to ensuring that a certain number of Russian banks are removed from SWIFT. It will stop them from operating worldwide and effectively block Russian exports and imports.

Also, the EU has collectively closed their airspace to Russian planes.

4. KEEP THE PUBLIC HAPPY

Largely thanks to Volodymyr Zelenskyy’s leadership and courage, the support of western public around the world have joined in supporting Ukraine.

5. INCREASE PUTIN’S VOLATILITY

The biggest developments in the last day, however, come in increased volatility for Russia. Prominent Russians continue to condemn the war. Russia has had nowhere near the success in Ukraine they expected and the delay has given time for a resistance to form. European nations have committed to send more weapons to Ukraine. Ukraine just rolled out a website where Russian mothers can check to see if their sons have been killed or captured in Ukraine.

In addition to protests in Russia and all over the world, a particularly big protest in Georgia must seriously concern Putin. Kazakhstan also reportedly refused to send troops to Ukraine.

Russia has been really ratcheting up the propaganda and censoring both formal media outlets and social media, in an attempt to prevent Russians from learning how things are really going in Ukraine. But Ukraine has had some successes in hacking through these media defenses.