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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.

Rudy Giuliani Attacks Biden as SDNY Sifts Through His Comms for Ukraine Foreign Agent Investigation

Among the many Trump allies suggesting that the former President was better on Russian issues than the current, Rudy Giuliani attempted to attack President Joe Biden with a Tweet dripping with projection.

Just over four weeks ago, the Special Master Barbara Jones delivered the latest tranche of records seized from Giuliani’s phones to prosecutors in SDNY, the US Attorney’s Office that Rudy once led.

While the scope of the review exceeds the scope of the known warrants, those known warrants target Rudy’s role in getting Maria Yovanovich fired in 2019 as part of an effort to get campaign dirt on Joe Biden.

Indeed, for six of Rudy’s devices, the latest review focused on the period from December 1, 2018 through May 31, 2018, which would cover the following events.

Late 2018: Rudy Giuliani participates in a Skype call with the former top Ukrainian prosecutor, Viktor Shokin, who was ousted from office after multiple Western leaders, including former Vice President Joe Biden, pressed for his removal. Leaders complain Shokin was failing to tackle corruption. It’s around this time that Giuliani says he first learned of a possible Biden-Ukraine connection.

January 2019: Giuliani meets in New York with the top Ukrainian prosecutor at the time, Yuriy Lutsenko. This is when, Giuliani says, his investigation into the Bidens began.

A man named Lev Parnas has said he attended the meeting with Lutsenko and arranged the call with Shokin. Parnas told NPR he attended at least two meetings Giuliani had with Lutsenko. Parnas and an associate, who also worked with Giuliani, are later arrested and charged with violating campaign finance law in a separate matter.

March 31: The first round of presidential elections take place in Ukraine. Zelenskiy, a comedian who once played a president on television, comes out ahead of incumbent President Petro Poroshenko. The race goes to a runoff.

April 7: In an interview on Fox News, Giuliani, unprompted, brings up a Biden-Ukraine connection. He says that while investigating the origin of the Russia investigation, “some people” told him “the story about [gas company] Burisma and Biden’s son.” Giuliani suggests that as vice president, Biden pressed to remove Shokin because he was investigating Burisma, a Ukrainian gas company that had Biden’s son Hunter on its board for several years. There is no evidence to support this claim.

April 21: Zelenskiy is elected president of Ukraine and Trump calls to congratulate him. A White House readout of the call says Trump “expressed his commitment to work together with President-elect Zelenskyy and the Ukrainian people to implement reforms that strengthen democracy, increase prosperity, and root out corruption.”

April 25: Trump calls in to Sean Hannity’s TV show and says he has heard rumors about Ukrainian “collusion.” He tells the Fox News host he expects Attorney General Bill Barr to look into it. “I would imagine he would want to see this,” Trump says.

May 6: Marie Yovanovitch, the U.S. Ambassador to Ukraine and an Obama appointee, ends her assignment in Kyiv. According to the whistleblower complaint filed against Trump, she had been “suddenly recalled” to the U.S. by senior State Department officials a week earlier.

Giuliani later says in an interview that she was removed “because she was part of the efforts against the President.” Yovanovitch tells Congress that she learned from the deputy secretary of state “there had been a concerted campaign against me, and that the Department had been under pressure from the President to remove me since the Summer of 2018,” according to prepared remarks reported by multiple outlets.

May 9: Giuliani tells The New York Times he will travel to Ukraine “in the coming days” to push for investigations that could help Trump. Giuliani says he hopes to meet with President-elect Zelenskiy to push for inquiries into the origins of the Russia investigation and the Bidens’ involvement with Burisma.

“We’re not meddling in an election, we’re meddling in an investigation, which we have a right to do,” Giuliani tells the Times.

“There’s nothing illegal about it,” he says. “Somebody could say it’s improper. And this isn’t foreign policy — I’m asking them to do an investigation that they’re doing already and that other people are telling them to stop. And I’m going to give them reasons why they shouldn’t stop it because that information will be very, very helpful to my client and may turn out to be helpful to my government.”

Among the members of Congress criticizing Biden, Tulsi Gabbard voted present to impeach Trump on his related extortion attempt; virtually all Republicans voted not to impeach Trump, including Biden critics Paul Gosar and Scott Perry. Of Republican Senators, just Mitt Romney voted to convict the President.

Trump was not serious about Ukraine. He viewed it as nothing more than a political football. Almost his entire party backed him in that effort.

And his former attorney, wailing on Twitter about the ‘CLEAR AND PRESENT DANGER” posed by “mentally deteriorating [men], who [were] of limited intelligence even before [] dementia” remains under criminal investigation as an unregistered agent of Russian-backed Ukrainians for his role in politicizing Ukraine.

Ukraine Defends Democracy

I happened to wake up at 3AM my time just as Russia launched its invasion of Ukraine.

The last thread has gotten long and I’m mostly doom-scrolling like the rest of you, so I thought I’d put up some links.

As the invasion was rolling out, President Zelenskyy made a speech, partially in Russian, appealing to the Russian people to stop this attack.

I would like to address the citizens of Russia directly, not as president, but as a citizen of Ukraine, and I address the citizens of Russia as I would the citizens of Ukraine. We share a more than 2000 kilometer border. Your soldiers are stationed all along it, almost two hundred thousand soldiers, and thousands of military vehicles. Your leaders have chosen for them to take a step forward and into the territory of another country. And that single step could be the beginning of a great war on the European continent.

The whole world speaks of what could happen day to day. A cause for war could arise at any moment. Any provocation, any incident, could be the flare of a fire that burns everything.

You have been told that this flame will bring liberation to Ukraine’s people. But the Ukrainian people are free. They remember their own past and will build their own future. They build, they do not destroy, as they themselves have told you day after day on television. The Ukraine in your news and the Ukraine of real life are two entirely different places, and the difference is that the latter is real.

Zelenskyy then said the Ukrainian government would give weapons to anyone wanting to help defend the country.

As the invasion was just beginning, Ukraine’s Ambassador to the UN raised whether the Russian Federation was ever legally given USSR’s seat on the security council. Then he basically told Russia’s Ambassador to go to hell. “There is no purgatory for war criminals, they go straight to hell ambassador”

Thus far, Republican members of Congress have been far more critical of Putin’s invasion than Tucker and Trump. At least until his next golf outing, that includes key Trump ally Lindsey Graham.

Again, it’s possible that Putin’s invasion will lead to greater solidarity among Europe, NATO, and the US than the division he surely counted on. In fact, both Finland and Sweden will attend an emergency NATO summit tomorrow. Czech President, Miloš Zeman, until days ago viewed as unreasonably friendly to Putin, has called to isolate him.

Another key player will be Erdogan. Shortly before this invasion, Turkey and Ukraine signed a trade pact. Ukraine has asked Turkey to halt warships from transiting the Bosphorous.

Ireland, another neutral country, is backing EU sanctions, which is non-negligible given Russian business presence in Dublin.

China’s Foreign Minister Wang Yi has come out with a fairly supportive statement about Russia’s invasion. If Putin can’t keep China on board this invasion would become unsustainable, but thus far he has a green light.

Pakistan’s Prime Minister Imran Khan is in Moscow, meeting with Putin today. Putin appears to be trying to put together a BRICS type block against democracy (with Pakistan included).

Within Russia, some celebrities and journalists have already gone on record opposing the attack. Authorities are arresting those who dissent, including Marina Litvinovich after she called for protests.

Zelenskyy just tweeted that Russian occupying forces are trying to seize Chernobyl.

 

Putin’s Playmates Trump and Tucker Remind Trumpsters They’ve Been Trained to Love Putin

As I’ve been watching Putin expand his war in Ukraine, I’ve been thinking a lot about his timing. Why launch it now rather than two years ago, when Trump would have facilitated it, or another year from now, when Republicans are expected to control at least one house of Congress?

I suspect there are a lot of things that dictate the timing. Any invasion was going to come in winter. It’s easier for heavy tanks to move, but more importantly, winter temperatures make it easier to use gas prices to impose a cost on Europe.

I think it happened this year, under Biden’s first full winter rather than 2021 or even 2020 because, up until Biden’s inauguration, Putin’s investment in Trump might still have paid off by allowing Putin to achieve his objectives without launching a war. He almost did, in the insurrection, which was undoubtedly led by MAGAts but which included the participation of some key Russian projects (such as Patrick Byrne).

To be sure, there are European reasons, even beyond the gas squeeze. Boris Johnson is fighting to keep power. Angela Merkel’s retirement surely led Putin to hope that the EU would be left without a strong leader (or that he could more easily manipulate Emmanuel Macron, especially in an election year).

But I believe this invasion represents the culmination of a plan not just to reassert what he imagines is Russian greatness, but also to end US hegemony, which Putin has pursued for a decade.

Ukraine has been a part of that and starting in 2010, Paul Manafort was useful to giving his puppets the patina of legitimacy. After Viktor Yanukovych’s ouster, Ukraine was useful as a testing ground for various kinds of hybrid warfare, most spectacularly with the NotPetya attack in 2018.

Ukraine — the partnership of Konstantin Kilimnik and Oleg Deripaska, along with their leverage over Paul Manafort — was also whence Russian launched its 2016 attack (I need to find the reference, but they knew they could place Manafort as campaign manager before the end of 2015). As I have written (in a piece on my understanding of the role of using the Steele dossier as a vehicle for disinformation), Russia’s interference in 2016 is best understood as a win-win. If Hillary won, Roger Stone would have rolled out the same Stop the Steal plan that was used in 2020 back in 2016 to destabilize the US in 2017 rather than 2021, as happened.

Trump’s win was an unexpected bonus.

As part of the 2016 operation, Russia also did unprecedented damage to the NSA (through the Shadow Brokers operation) and the CIA (in the way that WikiLeaks rolled out the Vault 7 release).

The failure of Russia’s attempt to blame its 2016 interference on a false flag thwarted Russia’s best laid plans — which would have involved Kilimnik calling in the quid pro quo made with Manafort on August 2, 2016 and getting Trump to help carve up Ukraine in the same way Russia is currently doing with tanks.

Even still, the Russian investigation paid huge dividends and, given Putin’s long game, to date has surely been more than worth it. That’s because the FBI-led investigation into Trump’s cooperation with Russia, over time, came to train Republicans to trust Putin more than they trust Democrats.

Republicans genuinely believe, falsely, that the FBI deliberately attempted to take Trump out (entirely memory holing Jim Comey’s role in getting Trump elected, much less that the FBI Agents running informants on the Clinton Foundation during the election were explicitly anti-Hillary). The dossier disinformation project proved so wildly successful that most Republicans genuinely believe, falsely, that there wasn’t abundant proof of cooperation between Trump and Russia, including communications directly with the Kremlin during the election that Michael Cohen lied to hide. Republican members of Congress genuinely came to believe — because they had to! — that criticism of Trump’s refusal to spend the money in support of Ukraine they had appropriated was just another Democratic attack on Trump and not an attempt to save the integrity of American democracy. All this culminated in Stop the Steal 2.0, a literal attack on American democracy; Republican fealty to Trump forced them — more reluctantly at first and driven in large part by real terror — to defend an assault on Congress.

By February 13, 2021, the date the Senate voted to acquit Donald Trump of inciting an attack on Congress, Republicans had put loyalty to Donald Trump over defense of the country and the Capitol in which they worked.

Sure, Putin didn’t get Trump to carve up Ukraine as President. But he got so much more from Trump’s presidency.

Putin did get Trump to do real damage to NATO. He got Trump to largely abandon Syria. Trump made a humiliating deal with the Taliban that would result in the US withdrawing its military from Russia’s back door. After years of Russia having to work hard to highlight American hypocrisy on human rights, Trump did things like pardon war criminals, forever tainting America’s claim to be exceptional.

And through it all, Trump created his own authoritarian-supporting militias, heavily armed troops inspired by resentment who have the ability to make the United States ungovernable. Trumpist Republicans are making localized efforts to dismantle democracy. Trump’s Supreme Court nominees have abandoned legal precedent.

Which brings us to this moment.

I think Putin faced a moment of diminishing returns. Republicans are finally beginning to wake up from their Trump cult. If COVID subsides and the US economy takes off, Democrats might surprise at midterms. I wouldn’t be surprised, either, if Russia expected some details of what it has done over the last decade — involving Julian Assange, involving 2016 (with the prosecution of Vladislav Klyushin), possibly even involving Trump — to become public in the near future. And so Putin chose this moment to launch a war to try to solidify the efforts he has made over the last decade.

Thus far, however, things haven’t gone Putin’s way.

I believe that Putin thought he could demonstrate Five Eyes fragility by conducting war games off the Irish coast without inciting the nationalism of a bunch of Irish fisherman. I believe Putin expected the US and/or Europe would fail to fully incorporate Ukraine in its planning, thereby discrediting Volodymyr Zelenskyy. I believe that Putin expected he would be able to peel away France and Germany (after Olaf Scholz’s initial announcement that it is halting Nord Stream 2, there seems to be some hesitation). I believe Putin expected his false flags would work. I believe Putin believed he’d be able to blame someone else for this invasion. I agree with Dan Drezner, thus far Biden has done just about everything right.

I believe that Putin believed his invasion would split NATO, the EU, and the US. Thus far it has had the opposite effect.

Which brings us to the weird pivot that Trump and his top Fox associates: white nationalist Tucker Carlson, Chief of Staff Sean Hannity, and Laura Ingraham.

Yesterday, Trump hailed Putin’s actions as genius.

“I went in yesterday and there was a television screen, and I said, ‘This is genius.’ Putin declares a big portion of the Ukraine — of Ukraine — Putin declares it as independent. Oh, that’s wonderful,” Trump told conservative podcaster Buck Sexton.

I said, ‘How smart is that?’ And he’s gonna go in and be a peacekeeper. That’s strongest peace force… We could use that on our southern border. That’s the strongest peace force I’ve ever seen. There were more army tanks than I’ve ever seen. They’re gonna keep peace all right,” Trump continued. “Here’s a guy who’s very savvy… I know him very well. Very, very well.”

Last night, Tucker did a chilling monologue, suggesting that Americans have been trained to hate Vladimir Putin.

Tucker suggested that Putin’s invasion is just a border dispute. He’s suggesting that Biden is doing this to pay off imagined debts to Ukrainian Oligarchs. Tucker laid out Putin’s plan for costs to impose on Americans, in terms of energy costs. Tucker included every single false claim about Ukraine that Russia has been planting since 2016. Every single one.

This is the monologue you’d expect of a man who believes there are two years of records showing Russian and Hungarian sources trying to set up one meeting between him and Putin.

To win this war, Putin needs to achieve both goals at once: splitting the US so that he can take Ukraine. One goal serves the other.

And in days ahead, Putin undoubtedly plans to take great risks to impose some costs on European and American voters. In gas prices, sure, but probably also with some ambitious cyberattacks and efforts to support another insurrection. Those costs, I imagine Putin plans, will lead American and European voters to lose patience with support for Ukraine, to forget that this is about the ability to enjoy real democracy.

But to get away with that, Putin has to ensure that it won’t backfire by overcoming the polarization he has invested great effort to encourage in the last five years.

Via whatever means last night, Putin’s two biggest assets in the US (speaking in terms of advantages, not recruited assets, but I don’t rule it out) went out and reminded Trump supporters that they’ve been trained to like Putin more than they like their own country.

Update: Philip Bump notes that Republicans like Putin more than Biden.

The Paulie Plot in Ukraine

Last weekend, the UK formally released an intelligence assessment that part of Russia’s plans in Ukraine involve a plot to replace Volodymyr Zelenskyy with a pro-Kremlin functionary.

The NYT version of the story noted that the four people named in the alleged plot all have ties to Paul Manafort.

All four of the other Ukrainians named in the communiqué once held senior positions in the Ukrainian government and worked in proximity to Paul Manafort, former President Donald J. Trump’s campaign manager, when he worked as a political adviser to Ukraine’s former Russian-backed president, Viktor F. Yanukovych. After Mr. Yanukovych’s government fell in 2014, they fled to Russia.

It also claimed that, because of a division of labor within the Five Eyes, this intelligence came from the UK.

In Washington, officials said they believe the British intelligence is correct. Two officials said it had been collected by British intelligence services. Within the informal intelligence alliance known as “Five Eyes,” Britain has primary responsibility for intercepting Russian communications, which is why it played a major role in exposing Russian interference in the 2016 elections.

I noted that you might make such a claim if the collection point (reflected in the Manafort tie) were not a legal NSA target to the US.

Indeed, NBC’s Ken Dilanian explained (but did not include in his story) that this was US intelligence announced by the UK.

It would make sense that this kind of intelligence came from the US — though if it did, it might well come from the FBI, not NSA.

When Manafort traded campaign strategy to Russia for relief from his debt to Oleg Deripaska on August 2, 2016, his cooperation in a series of similar efforts to install a Russian functionary to head Ukraine was part of the deal. Citing numerous documents obtained from Manafort’s devices, Mueller made public Manafort’s participation in the effort through the time he went to jail in 2018.

We can be certain that FBI has continued its investigation of such issues. We can be sure of that because we know (in part from Treasury’s increasing focus on Kilimnik) that FBI has developed a better understanding of Konstantin Kilimnik’s role in both 2016 and his ongoing efforts to undermine US democracy in 2020. We know that because DOJ continues to protect large swaths of  Mueller’s files on Kilimnik’s other American partner, Sam Patten, which significantly focused on who was who in Ukraine and the various tools Russia used to manage the country via client politicians. The same is true of Rick Gates’ interviews. But we also know that, thanks in part to Trump’s continued ties to anti-democratic efforts in Ukraine, the FBI has continued to investigate what has been going on in Ukraine. Not only has EDNY conducted an investigation into Andrii Derkach, but Special Master Barbara Jones just handed over a bunch of Rudy Giuliani’s communications involving such issues to the FBI.

One thing we learned from all those investigations was that Paul Manafort was the guy Oleg Deripaska had employed, for years, to use the tools of modern campaigning, leavened by a great deal of corruption, to install puppet governments who would cater to Deripaska’s business interests. In 2016, Russia deployed Manafort to the United States to do the same thing in the US.

With the distance of almost six years, it may be safe to say that Russia succeeded in their 2016 attempt to interfere in the US election not so much from a failure of US intelligence collection in Russia (after all, the FBI warned the DNC it was being hacked in real time). It was — in addition to a misunderstanding of the WikiLeaks operation — a failure of US intelligence collection in Ukraine, whence the human side of the operation was significantly launched. The US has dedicated a good deal of energy to addressing that failure in recent years, though Russia continued to use Ukraine as a platform from which to undermine US democracy through the 2020 election.

Ukraine was then, as now, the test ground for Russia’s larger efforts to either subject “democracy” to the whims of kleptocracy or discredit democracy beyond the ability to govern. Among the things Russia tested on that ground was the 2017 NotPetya attack, which did devastating damage to a slew of companies who did nothing more than do business with Ukraine; I would be surprised if Putin hadn’t at least entertained similar efforts in the months ahead.

Before 2016, the US had the hubris to believe its own democracy was immune from such efforts (and that its tolerance for money laundering would not, in fact, foster kleptocracies on the other side of the world that could damage the US in turn).

Amid debates about how (or whether) the US should respond to Russia’s aggression, some have raised real questions whether, in the wake of January 6, the US has any place lecturing Ukraine about its democracy and whether the US wouldn’t be better, instead, putting its own house in order. It’s a fair question. But it misunderstands how 2016 led directly to January 6. It also misunderstands Russia’s project in Ukraine and beyond, which is of a piece with its earlier attack on  American democracy.

We may not have a NATO commitment to defend Ukraine from Russia’s assault (though we do have a NATO commitment to defend NATO allies that Russia has likewise threatened). But we’ve recently seen that attacks on Ukraine are just the prototype for larger attacks elsewhere.

Update: Both Jonathan Swan and Jonathan Weisman have pieces out today attempting to explain why Tucker Carlson and Marjorie Greene Taylor are rooting for Putin in his aggression against Ukraine that don’t mention that Putin helped get Trump elected.

The backstory: Two observable shifts have happened in the GOP electorate over the past 15 years. The first is a growing skepticism about foreign intervention in general — frustration and anger still fueled by the disastrous wars in Iraq and Afghanistan.

  • The second is a more recent warming towards Russia — initiated by the party’s most powerful figure, Donald Trump.
  • Trump’s rhetoric about Putin was a far cry from 2012 when the GOP presidential nominee Mitt Romney warned that Russia was America’s “number one geopolitical foe.” (Prominent Democrats mocked Romney at the time but in the age of Trump endorsed his view and apologized).

The Publisher of the Steele Dossier, Ben Smith, Reports that the Hunter Biden Laptop Was Just a Political Dirty Trick

The recent Igor Danchenko indictment and overly credulous reporting on it have created a big new push for former BuzzFeed editor Ben Smith to reflect on his role in the dissemination of the Steele dossier.

In a Sunday column on mis- and disinformation, however, he makes no mention of it.

Instead, his column questions the inclusion of the Hunter Biden laptop story in a media executive seminar on, “help[ing] newsroom leaders fight misinformation and media manipulation.” Smith claims that treatment of the laptop story is, in fact, proof that the term “media manipulation” means  “any attempt to shape news coverage by people whose politics you dislike.”

A couple of them, though, told me they were puzzled by the reading package for the first session.

It consisted of a Harvard case study, which a participant shared with me, examining the coverage of Hunter Biden’s lost laptop in the final days of the 2020 campaign. The story had been pushed by aides and allies of then-President Donald J. Trump who tried to persuade journalists that the hard drive’s contents would reveal the corruption of the father.

The news media’s handling of that narrative provides “an instructive case study on the power of social media and news organizations to mitigate media manipulation campaigns,” according to the Shorenstein Center summary.

The Hunter Biden laptop saga sure is instructive about something. As you may recall, panicked Trump allies frantically dumped its contents onto the internet and into reporters’ inboxes, a trove that apparently included embarrassing images and emails purportedly from the candidate’s son showing that he had tried to trade on the family name. The big social media platforms, primed for a repeat of the WikiLeaks 2016 election shenanigans, reacted forcefully: Twitter blocked links to a New York Post story that tied Joe Biden to the emails without strong evidence (though Twitter quickly reversed that decision) and Facebook limited the spread of the Post story under its own “misinformation” policy.

But as it now appears, the story about the laptop was an old-fashioned, politically motivated dirty tricks campaign, and describing it with the word “misinformation” doesn’t add much to our understanding of what happened. While some of the emails purportedly on the laptop have since been called genuine by at least one recipient, the younger Mr. Biden has said he doesn’t know if the laptop in question was his.

And the “media manipulation campaign” was a threadbare, 11th-hour effort to produce a late-campaign scandal, an attempt at an October Surprise that has been part of nearly every presidential campaign I’ve covered.

The Wall Street Journal, as I reported at the time, looked hard at the story. Unable to prove that Joe Biden had tried, as vice president, to change U.S. policy to enrich a family member, The Journal refused to tell it the way the Trump aides wanted, leaving that spin to the right-wing tabloids. What remained was a murky situation that is hard to call “misinformation,” even if some journalists and academics like the clarity of that label. The Journal’s role was, in fact, a pretty standard journalistic exercise, a blend of fact-finding and the sort of news judgment that has fallen a bit out of favor as journalists have found themselves chasing social media.

While some academics use the term carefully, “misinformation” in the case of the lost laptop was more or less synonymous with “material passed along by Trump aides.” And in that context, the phrase “media manipulation” refers to any attempt to shape news coverage by people whose politics you dislike.

Unless Smith considers the two details he cites — some researchers have confirmed that some of the emails are authentic, yet Hunter Biden doesn’t claim to know whether the laptop in question was his — to be proof one way or another that this was a “politically motivated dirty tricks campaign,” he cites no evidence for his conclusion.

Smith doesn’t mention any of the reasons why there was and remains good reason to suspect the laptop — the provenance of which even Glenn Greenwald once proclaimed to be “bizarre at best” — was more than that. From the time President Trump first started extorting an investigation into the Bidens from Ukraine through at least January 2020, Russia’s military intelligence agency, GRU was found hacking Burisma, the company with which Hunter had a sketchy consulting relationship that was the initial hook for the laptop stories. Rudy Giuliani not only played a central role in the brokering of the laptop story, but reportedly had been sitting on a copy of the files for some time. Rudy, of course, had played a key role in Trump’s attempt to extort news of a Biden investigation and even during the impeachment inquiry, in spite of warnings from the intelligence community, traveled to Ukraine to meet with Andrii Derkach, who was subsequently sanctioned as a Russian agent. According to Ben Smith’s employer, Derkach’s efforts to deal “misleading information” to Rudy as part of a 2020 election operation are under investigation by EDNY; a parallel investigation into Rudy for serving as an unregistered agent of Ukrainian interests in events that were part of the impeachment inquiry remains ongoing at SDNY. An intelligence report related to the second story hung on the laptop, regarding Hunter’s ties to China, was disclosed to have been attributed to an intelligence analyst whose identity was entirely fabricated, down to his artificially generated face. And the IC’s report on efforts to interfere in the 2020 election includes one conclusion that sounds suspiciously similar to the efforts that led to the laptop story.

A key element of Moscow’s strategy this election cycle was its use of people linked to Russian intelligence to launder influence narratives–including misleading or unsubstantiated allegations against President Biden–through US media organizations, US officials, and prominent US individuals, some of whom were close to former President Trump and his administration.

If the Hunter Biden laptop story was just a political dirty trick, then it was one that exactly paralleled well-substantiated efforts involving Russian intelligence agents.

We now know, thanks to the investigation into Project Veritas, that the “sister” media package right wing propaganda outlets were pitching, the dissemination of a diary from Hunter’s half-sister in the very same weeks leading up to the election, similarly features a sketchy origin story that — SDNY has shown probable cause to believe — actually serves to hide the theft of the underlying diary. While SDNY has not yet charged anyone much less proven the case, it claims that the story about how reporters came to obtain such a juicy campaign prop was, itself, misinformation hiding theft. That’s another detail that Smith doesn’t mention in his piece.

Even if the similarities between Smith’s “old-fashioned, politically motivated dirty tricks campaign” and the acknowledged interference attempt by Russian agents are mere coinkydink, it nevertheless is the case that the Hunter Biden laptop package was an attempt at media manipulation, part of the reason it was presented to the seminar.

That’s because — again, as even Glenn Greenwald acknowledged — the presumptively authentic emails offered as the dangle in the laptop package provided, “no proof that Biden followed through on any of Hunter’s promises to Burisma.” By offering “authentic” emails and derogatory pictures just before the election, right wing operatives attempted to make a story that had long been reported (and key parts of it debunked by experts testifying under oath as part of the first impeachment) go viral just before the election not by offering any proof of the key allegations, but by waving something “authentic” around that could substitute for real proof.

It briefly worked, too, as high profile journalists disseminated the most inflammatory details in the story — effectively delivering the announcement of a criminal investigation pertaining to Ukraine that Trump demanded from Volodymyr Zelenskyy — and only after that started identifying really problematic parts of the story.

This entire episode was an effort to disseminate something “authentic” that nevertheless lacked proof of the underlying allegations as a way to lead people to believe those allegations. Classic media manipulation, and it nearly succeeded.

And Ben Smith, the man who published a dossier full of unproven allegations that — Republicans in Congress now believe — injected Russian disinformation into what otherwise might have been just an “old-fashioned, politically motivated dirty tricks campaign,” a dossier that (like Hunter Biden’s laptop) long stood as the proxy understanding for a criminal investigation into dramatically different facts, dismisses the possibility that it was disinformation blithely, presenting no real evidence for or against.

It is undoubtedly the case that there remain real questions about the Hunter Biden laptop package, questions that may get renewed attention given the new focus on the Ashley Biden diary package. Maybe one day, Ben Smith will be able to state, as fact, that it was just an, “old-fashioned, politically motivated dirty tricks campaign;” or maybe EDNY will uncover the real provenance of those “authentic” files all packaged up and handed to a guy who made no secret of his willingness to accept and disseminate Russian disinformation.

But at a time when he is actively refusing to reflect on his own actions in disseminating an “old-fashioned, politically motivated dirty tricks campaign” that seems to have been exploited as an easy vehicle for hostile disinformation, Ben Smith might want to be a little more cautious about assuming those lines are so easy to distinguish.

Four Ways Billy Barr Obstructed the Investigation into Rudy Giuliani

Eventually, I want to do a post quantifying all the damage to national security Billy Barr did by thwarting an influence-peddling investigation into Rudy Giuliani in 2019. But first, I want to quantify four ways that Barr is known to have obstructed the investigation into Rudy, effectively stalling the investigation for over 500 days.

The effort is helped by Rudy lawyer Robert Costello’s public claim that DOJ obtained a search warrant on Rudy’s iCloud account sometime in late 2019. That indicates that the investigation into Rudy’s ties to Lev Parnas and Igor Fruman (whether Rudy was the primary target or their business, Fraud Guarantee) already showed probable cause that a crime had been committed before Barr took repeated steps to undermine the investigation.

Fail to recuse from an investigation implicating Barr personally

The MEMCON of Donald Trump’s call with Volodymyr Zelenskyy invoked Barr personally, twice, including in the very same response where the President said that Marie Yovanovich would “go through some things.”

Well, she’s going to go through some things. I will have Mr. Giuliani give you a call and I am also going to have.Attorney General Barr call and we will get to the bottom of it.

According to a September 2019 NYT article, National Security Division head John Demers (who remains at DOJ and who oversees the FARA unit that would have a role in this prosecution), Deputy Attorney General Jeffrey Rosen, and Brian Benczkowski learned about the concerns about the call, including that it named Barr, even before the formal whistleblower complaint came in. Barr learned about it via some unexplained means.

It’s not clear what happened in that first round of review, but ultimately prosecutors reviewed it once the formal whistleblower complaint was referred by Joseph Maguire later in August and “declined to open an investigation.”

Mr. Eisenberg and Ms. Elwood both spoke on Aug. 14 to John Demers, the head of the Justice Department’s national security division, according to three people familiar with the discussion. Ms. Elwood did not pass on the name of the C.I.A. officer, which she did not know because his concerns were submitted anonymously.

The next day, Mr. Demers went to the White House to read the transcript of the call and assess whether to alert other senior law enforcement officials. The deputy attorney general, Jeffrey A. Rosen, and Brian A. Benczkowski, the head of the department’s criminal division, were soon looped in, according to two administration officials.

Department officials began to discuss the accusations and whether and how to follow up, and Attorney General William P. Barr learned of the allegations around that time, according to a person familiar with the matter. Although Mr. Barr was briefed, he did not oversee the discussions about how to proceed, the person said.

[snip]

At the end of August, the office of the director of national intelligence referred the allegations to the Justice Department as a possible criminal matter. Law enforcement officials ultimately declined to open an investigation.

While it’s true that Barr outsourced some actions — such as determining what to do with the first report and the White House request that DOJ publicly exonerate him — there’s no indication Barr recused from the investigation and indeed he remained in the loop with the White House about it. His failure to recuse is particularly important because, as the table above notes, he got briefed on the investigation into Parnas and Fruman not long after he was confirmed in February 2019. For most of August and September 2019, Barr and Jeffrey Rosen would have been two of the only people at DOJ who would recognize the danger the whistleblower complaint posed to Rudy and, through him, to Trump himself.

Ensure Public Integrity reviews only the Trump transcript, not the entire whistleblower complaint

Mind you, Barr didn’t conduct the investigation of the whistleblower complaint. Public Integrity prosecutors in the Criminal Division did, overseen by Brian Benczkowski.

According to an October 2019 report, Benczkowski still did not know of the investigation into Parnas and Fruman when he took a meeting with Rudy in the fall to discuss a bribery case implicating the Venezuelan who was paying for some of the Ukraine dirt-digging.

Several weeks ago, Brian A. Benczkowski, the head of the Justice Department’s Criminal Division, and lawyers from the division’s Fraud Section met with Mr. Giuliani to discuss a bribery case in which he and other attorneys were representing the defendants.

That meeting took place before the United States attorney’s office in Manhattan publicly charged the two Giuliani associates, Lev Parnas and Igor Fruman, with breaking campaign finance laws and trying to unlawfully influence politicians, including former Representative Pete Sessions, Republican of Texas. Mr. Parnas and Mr. Fruman were part of Mr. Giuliani’s effort to push Ukraine for an inquiry into Democrats.

“When Mr. Benczkowski and fraud section lawyers met with Mr. Giuliani, they were not aware of any investigation of Mr. Giuliani’s associates in the Southern District of New York and would not have met with him had they known,” said Peter Carr, a department spokesman.

[snip]

Prosecutors in Manhattan informed Attorney General William P. Barr about the investigation of Mr. Parnas and Mr. Fruman soon after he was confirmed in February, according to a Justice Department official. They were required to do so under the department’s rule that requires prosecutors to notify the attorney general of any cases that could generate national news media or congressional attention.

When Mr. Giuliani and other lawyers requested the meeting with the Justice Department to discuss a foreign bribery case, Mr. Benczkowski and the lawyers in the Fraud Section had not been informed of the Manhattan case and agreed to meet.

That exonerates him for being stupid enough to take the meeting, but it reveals something about the review of the complaint: it could not have adhered to the most basic rules of “connect-the-dots” investigations put in place after 9/11 to protect national security.

That’s because the first thing you’re supposed to do when you get a tip that implicates national security is to search DOJ’s holdings to see if the tip connects with any known suspects or investigations. Had this tip been treated like DOJ had been drilling for almost 17 years by the time the tip was received, then investigators would have searched on the OCCRP profile of Parnas and Fruman cited repeatedly in the full complaint.

Had that happened, then the implications of it would have been clear, it would have been referred to SDNY, Benczkowski would have learned about it, and DOJ wouldn’t have been making public exonerations of Trump.

Get OLC to overclassify the Barr connection and delay informing Congress

One likely way DOJ managed to avoid connecting Trump’s quid pro quo with the existing investigation of Parnas and Fruman is by treating the call with Zelenskyy, falsely, as the entirety of the whistleblower complaint. There’s no reference to Parnas and Fruman in the call, and so searching on it would not ID the tie to the SDNY investigation.

That’s one of several things that Steve Engel’s OLC did to attempt to avoid — and succeed in delaying — informing Congress about the complaint.

Engel’s OLC memo (a reprise of the memo that Amy Berman Jackson ruled was just a PR stunt to justify lying to Congress) claimed that the whistleblower complaint pertained exclusively to the conduct of the President and as such did not pertain to the Intelligence Community and so didn’t need to be shared with Congress. The only way to reach this decision would be to ignore the parts of the whistleblower complaint that deal with abuse of classification and the withholding of funds.

The other thing OLC did was to — at first– treat mentions of Barr and Rudy, as well as Ukraine and Zelenskyy, as Top Secret, even though the White House had only deemed those references to be Secret.

This effort, both to avoid informing the Intelligence Committees and, once he did, to hide key details from them, ultimately failed. But it did delay the discovery of the call from August to September 2019.

Warn Rupert Murdoch

Bill Barr had a meeting at SDNY the day before Parnas and Fruman were arrested on October 9. He went from there to a meeting with Rupert Murdoch, at Murdoch’s home.

It’s unclear what happened at that meeting, but Sean Hannity didn’t get on his flight to Vienna to meet with Dmitro Firtash, thereby avoiding even closer legal involvement in yet another Trump scandal.

There’s no evidence I know of that Barr similarly warned Rudy — Rudy canceled his trip, too, but it probably only took the arrest of Parnas and Fruman to persuade him of the wisdom of doing that. So I don’t consider this an act of obstruction protecting Rudy — just an act of obstruction protecting Sean Hannity.

Parnas has alleged that he was only arrested as a way to keep him silent about all this. While there’s a lot of reason to believe that’s possible, I’m not aware of proof that it did. It is, notably, one thing he was dangling his cooperation on with SDNY before he got remarkably quiet as the investigation into Rudy kicked into active mode.

Attempt to replace Geoffrey Berman with a Barr flunky

As noted, if we can believe Costello, then at some point SDNY did manage to conduct a search on Rudy’s iCloud. One possibility is that DOJ justified a search on Rudy after learning that Parnas had deleted his own iCloud account.

We may get more details of how that occurred with the Special Master argument.

For a time, the impeachment investigation presumably stalled any investigation into Rudy.

But last summer, at a time between the time when Rudy would have been implicated in the President’s Ukraine-related impeachment but before the time Rudy was attempting to undermine the election in explicit service of the President, Barr fired Geoffrey Berman. As Berman described, Barr attempted to bypass succession rules to temporarily put his own flunky in charge of the office, much as he had put Timothy Shea in at DC USA to kill investigations into Roger Stone, Mike Flynn, and (probably) Erik Prince.

By refusing to go along with Barr’s false claims that he had quit, however, Berman succeeded in ensuring that Audry Strauss, his then-Deputy, would replace him, where she remains today.

In all of Berman’s communications about why he dug in, he emphasized that there were investigations he wanted to see to completion, presumably including but not limited to this Rudy investigation.

Again, this effort failed. But, given what happened in DC, it is almost certain that this was an attempt to protect Rudy (and Steve Bannon).

DOJ used the election to refuse to approve a warrant on Rudy. And (while I’m having difficulty finding it) they imposed a policy requiring higher approvals for obtaining warrants on attorney content.

Effectively, that provided a way to stall the search into Rudy until April 20, 2021, when Lisa Monaco was approved.

Bill Barr tried, repeatedly, to entirely kill the investigation into Rudy, like he killed prosecutions of Stone and Flynn. But ultimately, one after another DOJ professional thwarted his attempts, and his abundant efforts to protect Rudy only managed to delay the investigation from October 2019 to April 2021.

Update: William Ockham notes that the change in policy was imposed on December 30, 2020, after Barr had resigned and at a time when Acting Attorney General Jeffrey Rosen knew that Joe Biden would take over DOJ. The new policy required consultation with a designated attorney in Office of Deputy Attorney General.

Within OEO, the Policy and Statutory Enforcement Unit (PSEU) is the section that provides this consultation. See Office ofthe Deputy Attorney General Guidance on AttorneyClient Privilege andAttorney Work Product Filter Protocols/or Search Warrants (July 2020). In many cases – particularly those involving significant investigations and high-profile matters – proposed searches are separately reported in urgent reports to the Attorney General and the Deputy Attorney General. To ensure mo!”e uniform notification procedures going forward, PSEU should notify the Office of the Deputy Attorney General (ODAG) of proposed searches involving subject attorneys. ODAG will assign an attorney to handle this responsibility who has the requisite knowledge and experience to provide meaningful input to PSEU. That attorney will provide updates to the Deputy Attorney General as necessary. Absent exigent circumstances, the OEO/PSEU consultation in Section 9-13.420 shall not be concluded until after ODAG has been notified and provided with an opportunity to provide input.

While probably not the sole intent, this may be why the search on Rudy was not approved until Lisa Monaco was confirmed on April 20.

The Mistaken Presumptions of Virtually All Discussions of a Future Trump Prosecution

Jack Goldsmith has written a piece arguing against a Trump prosecution under the Biden Administration. He’s wrong on a key point that many other people engaging in this discussion also are. He’s wrong about what crime might be prosecuted and whose DOJ investigated it.

Before I get to that, though, I want to critique two smaller issues in his post.

First, he links to the DOJ IG investigation on Carter Page, apparently suggesting it supports a claim that that report found there were inappropriate parts of the investigation into Donald Trump.

The first in this line was the investigation of the 2016 Trump campaign and presidential transition by the FBI and the Obama Justice Department, which continued with the Mueller investigation. Some elements of this investigation were clearly legitimate and some, clearly not.

Except that’s not what that report shows (even ignoring the report’s own problems). It shows that FBI followed the rules on informants and even on including an investigative agent in Trump’s first security briefing (after which Flynn promptly moved to cover up his secret relationship with Turkey). It shows that there were problems with the Carter Page FISA application. But the single solitary thing in the report that would not survive a Franks review is Kevin Clinesmith’s alteration of an email. Every single other thing would meet the Good Faith standard used in Fourth Amendment review. And all that’s separate from the question of whether Carter Page was a legitimate target for investigation, which the bipartisan SSCI investigation has said he was.

I also disagree with Goldsmith’s concerns about the status of the Durham investigation going forward.

But though Durham started out as a credible figure, the review was damaged from the beginning due to Trump’s and Barr’s ceaseless public prejudging of the case (and, for some, Durham’s response to one of Horowitz’s reports). And all of that was before Barr expanded the investigation into a criminal one and then later appointed Durham as a special counsel to ensure that his criminal investigation could continue into the Biden administration. Once again, the nation is divided on the legitimacy of all of this.

The third challenge, exacerbating the first two, is that these investigations—the FBI investigation of the Trump campaign and transition, the Durham investigation, and the Hunter Biden investigation—extended (or will extend) into an administration of a different party. That means that what began as a cross-party investigation where the worry was bias against political opponents will transform, in the middle of the investigation, into an intraparty investigation, where the worry will shift to one party’s desire for self-protection.

I think the Durham investigation is misunderstood by all sides. Even according to Billy Barr, Durham has debunked some conspiracy theories Republicans have floated and he appears to have moved beyond the question of whether the CIA wrongly concluded that Putin wanted to elect Trump. That means if he were to write a report, it would substantially consist of telling the frothy right that their conspiracy theories were just that, and that George Papadopoulos really did entertain recruitment by at least one Russian agent.

That said, the Durham investigation has, unfortunately, been hopelessly biased by Billy Barr’s work in at least two ways. Durham apparently believes that the treatment of partisan bias at DOJ has been equally applied, which is demonstrably false (which also means he’s relying on witnesses who have themselves committed the sins he has used to predicate his own investigation, using FBI devices to speak for or against a political candidate). More troublingly, every single legal document his prosecutors have filed thus far have betrayed that they don’t understand the most basic things about the counterintelligence investigations they’re focusing on. But because of that ignorance, I’m fairly confident that if Durham tried to prosecute people for the theories that Bill Barr has been pushing while micromanaging this, Durham’s prosecutors would get their ass handed to them. Plus, even without Biden’s AG doing anything, I think there’s a possibility that Durham’s independence can be put to good use to investigate the crimes that Barr’s DOJ may have committed in pushing these theories. And there’s an easy way to solve the political nastiness of Barr’s special counsel appointment: by swapping Durham for Nora Dannehy. In short, freed from the micromanaging and mistaken beliefs of Bill Barr, Durham may evolve into a totally useful entity, one that will debunk a lot of the bullshit that the frothy right has been spewing for years.

In any case, the only reason it would be perceived as a cross-party investigation was the micromanagement of Barr. The FBI is not a member of either party, and if Durham finds real crimes — like that of Clinesmith — by all means he should prosecute. Once he is freed of Barr’s micromanagement, though, he may discover that he was given a very partial view of the evidence he was looking at.

Which brings me to Goldsmith’s treatment of whether or not Trump should be prosecuted. Before giving three reasons why one shouldn’t investigate Trump, he lays out what he sees as the potential crime this way:

Many people have argued that the Biden Justice Department should continue this pattern by examining the criminal acts Trump might have committed while in office—some arguing for a full-blown broad investigation, others (like my co-author, Bob Bauer, in “After Trump”) for a measured, narrowly tailored one. I don’t think this is a good idea. I doubt Trump has committed prosecutable crimes in office (I am confident that obstruction of justice prosecution would fail), I doubt he will ever go to jail if he did commit criminal acts in office (which would make the effort worse than useless), Trump will thrive off the attention of such an investigation, and the Biden administration will be damaged in pursuing other elements of its agenda (including restoration of the appearance of apolitical law enforcement). But the main reason I am skeptical is that such an investigation would, in the prevailing tit-for-tat culture, cement the inchoate norm of one administration as a matter of course criminally investigating the prior one—to the enormous detriment of the nation. (I do not believe that federal investigations for Trump’s pre-presidential actions raise the same risk.

There are two problems inherent with Goldsmith’s logic here, problems that virtually all the other people who engage in this debate also make.

First, he assumes that any prosecution of Trump would have to engage in further investigation. Here’s just one of several places where he makes that assumption clear.

The investigation by one administration of the predecessor president for acts committed in office would be a politically cataclysmic event.

Goldsmith doesn’t consider the possibility that such an investigation was begun under Mueller and continued under Bill Barr, waiting for such time as Trump can be charged under DOJ guidelines. It’s odd that he doesn’t consider that possibility, because Mueller laid that possibility out clearly in the report, describing leaving grand jury evidence banked for such time as Trump could be charged (indeed, it’s fairly clear a January 2019 Steve Bannon grand jury appearance included such evidence). If Bill Barr’s DOJ conducted an investigation that shows Trump committed a crime, it would break out of the tit-for-tat that Goldsmith complains about.

Goldsmith also appears to believe, even in spite of Trump’s transactionalism, that any crime Trump committed in office would have begun and ended during his term of office.

Part of these two errors appear to stem from another one. Goldsmith clearly believes the only crime for which Mueller investigated Trump is obstruction and he dismisses the possibility that an obstruction prosecution would stick. I’m agnostic about whether that view of obstruction is true or not. Even just reviewing how the Mueller Report treated the Roger Stone investigation, though, I’m certain there are places where the Mueller Report protected investigative equities. That may be true of the obstruction case as well. If so, then it would suggest the obstruction case might be far stronger than we know.

But it is false that Mueller only investigated Trump for obstruction. That’s because Trump may have entered into a conspiracy with his rat-fucker. In addition to investigating Roger Stone for covering up who his tie to Wikileaks was, Mueller also investigated Roger Stone for entering the CFAA conspiracy with Russia, a part of the investigation that recently declassified information as well as the warrants in the case make clear continued after the close of the Mueller investigation. Not only did Mueller ask Trump about his contacts with Stone on the specific issue for which the rat-fucker remained under investigation after Mueller closed up shop, but Mueller’s last warrants listed Stone’s written record of his communications with Trump during the campaign among the items to be seized in the search of Stone’s homes. If Stone entered into the CFAA conspiracy with Russia and those contacts show that Trump entered into an agreement with Stone on his part of the conspiracy, then Mueller was investigating Trump himself in the conspiracy. There is no way you target Stone’s records of communications with Trump unless Trump, too, was under investigation for joining that conspiracy.

I know I’m the only one saying this, but that’s in significant part because — as far as I know — I’m the single solitary journalist who has read these documents (plus, the unsealed language showing the investigation into Stone on the CFAA charges got buried in the election). But the record makes this quite clear: by investigating Roger Stone, Mueller also investigated Donald Trump for joining the CFAA conspiracy with Russia that helped him get elected. And because Mueller did not complete the investigation into Roger Stone before he closed up shop, he did not complete the investigation into Donald Trump.

And while I’m less certain, abundant evidence tells us what Stone and Trump’s role in the conspiracy may have been: to enter into a quid pro quo trading advance access to select John Podesta files (and, possibly, optimizing their release to cover up the DHS/ODNI Russian attribution statement) for a pardon for Julian Assange.

Stone did something in August 2016 to obtain advance copies of the Podesta files that the frothy right believed would be particularly beneficial in attacking Podesta and Hillary. Days before the Podesta file release in October 2016, Stone and Credico appear to have started talking about a pardon for Julian Assange. After the release of the Podesta files, Trump discussed reaching out to Assange with more people, including Mike Flynn. And no later than 7 days after the election — and given Credico’s refusal to give a straight answer about this, probably before — Stone set out on an extended effort to deliver on that pardon. And Trump took an overt act, as President, to try to deliver on that quid pro quo when he ordered Corey Lewandowski to tell Jeff Sessions to shut down any investigation into the hack-and-leak (which would have shut down the investigation into Assange’s role in it).

I have no idea whether DOJ obtained enough evidence to charge a former president in conspiring with a hostile foreign power to get elected. The investigation into Stone’s role in the conspiracy may have shut down when Barr’s intervention in Stone’s sentencing led all four prosecutors to drop from the case, so it’s possible that a Biden DOJ would need to resume that investigation (and finish it up before statutes of limitation tolled). Still, as of October 1, when DOJ withheld almost the entirety of two interviews with Margaret Kunstler to protect an ongoing investigation, that part of the investigation was ongoing. So if you want to consider the possible universe of Trump charges, this is the possibility you’d need to consider: that after Mueller shut down but before the end of Barr’s tenure, DOJ acquired enough evidence to prosecute Donald Trump once he becomes available to prosecute under DOJ rules.

I think there are other instances where Trump cheated to win in criminal fashion (even ignoring the hush payments for which he got named in Cohen’s charging documents). For example, Barr very obviously violated DOJ guidelines in his treatment of the whistleblower complaint about the Volodymyr Zelenskyy call, and with the evidence that OMB, State, and DOD withheld from the impeachment inquiry and witnesses subject to subpoena (indeed, at least some of whom will likely have no Fifth Amendment privileges after a pardon), the impeachment case is likely far stronger than Goldsmith imagines. Plus, there is an obvious tie to the SDNY investigation into Lev Parnas (where the whistleblower complaint would have been referred had Barr not violated DOJ guidelines). So on that case, it might be a question of Biden shutting down an ongoing investigation, not one of starting a new investigation.

Perhaps the most difficult and controversial decision for a Biden AG will be whether to reopen the investigation into the Egyptian payment Trump may have gotten in 2016 that kept his campaign afloat, one that SCOTUS reviewed (for the Mystery Appellant challenge) and sustained a subpoena for. Per CNN, DOJ doesn’t yet have enough to prosecute that, but that’s because DOJ chose not to subpoena Trump Organization for documents. And a Biden Administration could sanction the Egyptian bank to require it to cooperate in a way they refused to do under Mueller.

But those two instances can’t be shown via the public evidence. The overt act that Trump took in response to Roger Stone’s request — one Stone documented in a DM to Julian Assange — is public. Importantly, this would be a conspiracy that started before Trump got elected and extended into his presidency.

If you want to imagine whether Biden would prosecute Trump, you have to consider the possibility that he would prosecute Trump for crimes Bill Barr investigated.