Posts

On the Apparent Complexities of Charging Roger Stone

As I disclosed last month, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

Last night, Sam Nunberg reportedly told Ari Melber he thought Roger Stone would be indicted on “broad charges of conspiring against America … backed up by some financial charges.” That has led to some Tweet lawyering suggesting that such ConFraudUS charges would arise naturally from Stone’s known interactions with WikiLeaks and Guccifer 2.0.

I’m certain things are not as simple as that. If they were, Mueller would not have spent much of the last five months focusing on testimony relating to Stone, including (this list doesn’t include at least one other person whose Stone-related testimony is not public):

  • February 22: Sam Nunberg questioned by Mueller’s team
  • March 9: Mueller obtains a warrant for 5 AT&T phones (and probably a similar number of Verizon ones)
  • March 9: Sam Nunberg appears before grand jury
  • March 27: Ted Malloch stopped at Logan airport, questioned about Stone and Wikileaks, devices seized, subpoenaed to appear before grand jury on April 13 (the grand jury appearance was rescheduled or canceled)
  • May 2: Michael Caputo interviewed by Mueller team; among the topics discussed was outreach by “Henry Greenberg” to deal dirt on Hillary Clinton to Stone
  • May 10: Mueller subpoenas Andrew Miller for documents and testimony, Miller agrees to meet voluntarily with Mueller’s team
  • May 11: Alicia Dearn contacts Mueller and says Miller is no longer willing to appear
  • May 14: Mueller’s team contacts Dearn to inquire about her representation of Miller; she does not return the call
  • May 18: John Kakanis reportedly subpoenaed after having been interviewed by Mueller’s team
  • May 18: Miller blows off a May 18 appearance before the grand jury; Dearn’s employee says Dearn will contact Mueller’s team on May 21
  • May 21: Dearn blows off promised call to Mueller’s team
  • May 23: Mueller’s team emails Dearn a second set of subpoenas, to appear on June 1
  • May 25: Stone says 8 associates have been asked for testimony
  • May 25: Mueller’s team follows up on subpoenas; Dearn asks for more time to comply “given the volume of responsive documents;” Mueller agrees to adjourn document production to June 5 and appearance to Jun 8
  • May 31: Mueller contacts Dearn to confirm appearance; Dearn complains about “patently irrelevant” responsive materials; Mueller agrees to exclude those materials
  • June 1: Jason Sullivan appears before grand jury
  • June 5: Mueller emails new subpoenas reflecting the June 5 production date and June 8 appearance
  • June 6: Mueller emails Dearn to confirm appearance and arrange for travel
  • June 8: Miller blows off grand jury appearance
  • June 11, 8:50AM and 2:15PM: Mueller emails Dearn and asks for immediate contact, warning that Special Counsel would move towards contempt
  • June 12, 9:07AM and 2:15PM: Dearn twice says she’ll provide correspondence within an hour but does not
  • June 13: Mueller moves to compel
  • June 14: Miller filed opposition purporting to be a motion to quash
  • June 18: At hearing on motion to quash, court orders Miller to appear on June 28
  • June 28: Miller retains Paul Kamenar, paid by the National Legal and Policy Center, who challenges subpoenas as challenge to Appointments Clause, borrowing argument from Concord Management motion
  • June 29: At status hearing in Miller challenge, Kamenar adds another challenge, that Mueller was appointed by “Head of Department”
  • July 18: Hearing on Miller challenge, attended by 5 Mueller lawyers, with follow-up briefing
  • July 31: Chief Judge Beryl Howell rules that Miller must testify ASAP
  • August 1: Kristin Davis interviewed by Mueller team; investigators express an interest in having her appear before grand jury
  • August 3: Dabney Friedrich entertains ignoring DC Circuit and SCOTUS precedent to rule for Concord Management’s challenge of Mueller’s authority, with Kamenar watching; Concord lawyer Eric Dubelier suggests conspiracy in the timing of Howell’s ruling
  • August 10: Kristin Davis appearance before grand jury

While some of these witnesses were clearly asked about Wikileaks, others were reportedly asked about meetings involving Rick Gates, Stone’s finances, and even whether he fathered Davis’ two year old child. And while Stone’s buddies claim Mueller is generally investigating his finances, Mueller’s focus seems to be on the recipients of expenditures from Stone’s SuperPAC.

Clearly, whatever question Mueller is investigating (and whatever potential crimes he showed probable cause of, if he indeed seized the contents of Stone’s phone back in March) is more complex than just chatting up Assange or Guccifer 2.0. Indeed, even the discussions we know of show Stone involved in — or at least entertaining — more than that. That said, Mueller will need to prove that whatever Stone did involved the understanding that he was accepting things of value (or even, soliciting the active help) from foreigners or other illegal actions.

That’s one reason why the circumstances of Stone’s flip-flop in early August 2016, in which Stone went from admitting that the DNC hack was done by Russia to claiming it was not seemly in one day in which he was in Southern California is so important: because he established a contemporaneous claim he has relied on to excuse any coordination with Guccifer 2.0 and WikiLeaks. Given the import of Stone’s flip-flop, I find it interesting that so much of the funding for his SuperPAC came from Southern California, especially from John Powers Middleton. Did he meet with his donors when he orchestrated the flip-flop that makes it harder to argue his discussions and foreknowledge of Guccifer 2.0 and WikiLeaks events count as entering into a conspiracy to break one or several laws?

Whatever the circumstances of that flip-flop, from that point forward, Stone pushed several lines — notably the Seth Rich conspiracy — that would be key to Russian disinformation. A big chunk of his SuperPAC funds also spent on “Stop the Steal,” which may also tie to Russian disinformation to discredit the election.

One of the complexities Mueller may have spent months digging through may be whether and how to hold Stone accountable for willfully participation in disinformation supporting Russia’s larger efforts to swing the election to Donald Trump.

In March, when this focused pursuit started, Mueller wanted to know what the President knew about communication between Stone, his associates, Julian Assange, and Wikileaks. Since then, it appears the question has gotten more complex.

And along the way, a key Roger Stone aide has managed to stall three months on providing testimony.

Update: Fixed spelling of Miller’s attorney’s last name to Dearn.

And/Or: An Ominous Sign for WikiLeaks in the Joshua Schulte Indictment

There’s been a lot of attention paid to the language in the GRU indictment from Friday showing WikiLeaks asking to receive stolen Hillary emails in time to cause maximal outrage among Bernie supporters.

On or about June 22, 2016, Organization I sent a private message to Guccifer 2.0 to “[s]end any new material [stolen from the DNC] here for us to review and it will have a much higher impact than what you are doing.” On or about July 6, 2016, Organization 1 added, “if you have anything hillary related we want it in the next tweo [sic] days prefable [sic] because the DNC [DemocraticNationalConvention] is approaching and she Will solidify bernie supporters behind her after.” The Conspirators responded,“0k . . . i see.” Organization I explained,“we think trump has only a 25% chance of winning against hillary . . . so conflict between bernie and hillary is interesting.”

But I want to look at a minor–but potentially significant–detail in the Joshua Schulte indictment describing how he provided CIA’s hacking tools to WikiLeaks. The description of Count Two, Illegal Transmission of Lawfully Possessed National Defense Information, reads like this:

In or about 2016, in the Eastern District of Virginia and elsewhere, JOSHUA ADAM SCHULTE, the defendant, lawfully having possession of, access to, control over, and being entrusted with information relating to the national defense, to wit, certain portions of the Classified Information, which information the defendant had reason to believe could be used to the injury of the United States and to the advantage of a foreign nation, did knowingly and willfully communicate, deliver and transmit, and cause to be communicated, delivered, and transmitted, that aforesaid information to a person not entitled to receive it, to wit, Schulte caused the Classified information to be transmitted to Organization-1.

(Title 18, United States Code, Sections 793(d) and 2.)

The “and” there was pointed out to me by GDingers on Twitter.

As GDingers noted, the suggestion that Schulte knew a foreign nation (unnamed, but surely Russia if DOJ had any specific one, backed by evidence, in mind) would benefit, along with the US being damaged, is a fairly strong statement, one implicating WikiLeaks as well.

Moreover, that language didn’t have to be in the indictment. Here’s what the statutory language looks like:

Whoever, lawfully having possession of, access to, control over, or being entrusted with any document, writing, code book, signal book, sketch, photograph, photographic negative, blueprint, plan, map, model, instrument, appliance, or note relating to the national defense, or information relating to the national defense which information the possessor has reason to believe could be used to the injury of the United States or to the advantage of any foreign nation, willfully communicates, delivers, transmits or causes to be communicated, delivered, or transmitted or attempts to communicate, deliver, transmit or cause to be communicated, delivered or transmitted the same to any person not entitled to receive it, or willfully retains the same and fails to deliver it on demand to the officer or employee of the United States entitled to receive it; [my emphasis]

The statutory language uses “or.” DOJ chose, in this indictment, to use “and.” As Secrecy News’ Steven Aftergood suggested via email, asserting both in the indictment sets a higher mens rea bar for proving Schulte’s guilt. DOJ didn’t have to do so, but they did.

So along with exposing Schulte to 130 years of potential prison time — a life sentence even accounting for how it will work in sentencing — DOJ wants to prove that Schulte leaked CIA’s hacking tools not just to hurt the United States but to help another nation, possibly Russia by name.

That bodes poorly for Schulte. But it also suggests a different kind of role for WikiLeaks than prior discussions have made out.

Update: Nerdyatty suggested that this is a DOJ practice. Except that Count One, charging a different part of 18 USC 793, maintains the “or” of the statute:

… with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation … [my emphasis]

Which tracks this language from the statute:

Whoever, for the purpose of obtaining information respecting the national defense with intent or reason to believe that the information is to be used to the injury of the United States, or to the advantage of any foreign nation,

[snip]

Whoever, for the purpose aforesaid, and with like intent or reason to believe, [my emphasis]

How to Charge Americans in Conspiracies with Russian Spies?

As I laid out a few weeks ago, I provided information to the FBI on issues related to the Mueller investigation, so I’m going to include disclosure statements on Mueller investigation posts from here on out. I will include the disclosure whether or not the stuff I shared with the FBI pertains to the subject of the post. 

In general, Jack Goldsmith and I have long agreed about the problems with charging nation-state spies in the United States. So I read with great interest his post laying out “Uncomfortable Questions in the Wake of Russia Indictment 2.0 and Trump’s Press Conference With Putin.” Among other larger normative points, Goldsmith asks two questions. First, does indicting 12 GRU officers in the US expose our own nation-state hackers to be criminally prosecuted in other countries?

This is not a claim about the relative moral merits of the two countries’ cyber intrusions; it is simply a claim that each side unequivocally breaks the laws of the other in its cyber-espionage activities.

How will the United States respond when Russia and China and Iran start naming and indicting U.S. officials?  Maybe the United States thinks its concealment techniques are so good that the type of detailed attribution it made against the Russians is infeasible.  (The Shadow Brokers revealed the identities of specific NSA operators, so even if the National Security Agency is great at concealment as a matter of tradecraft that is no protection against an insider threat.)  Maybe Russia and China and Iran won’t bother indicting U.S. officials unless and until the indictments actually materialize into a trial, which they likely never will.  But what is the answer in principle?  And what is the U.S. policy (if any) that is being communicated to military and civilian operators who face this threat?  What is the U.S. government response to former NSA official Jake Williams, who worked in Tailored Access Operations and who presumably spoke for many others at NSA when he said that “charging military/gov hackers is dumb and WILL eventually hurt the US”?

And, how would any focus on WikiLeaks expose journalists in the United States to risks of prosecution themselves.

There is a lot of anger against WikiLeaks and a lot of support for indicting Julian Assange and others related to WikiLeaks for their part in publishing the information stolen by the Russians.  If Mueller goes in this direction, he will need to be very careful not to indict Assange for something U.S. journalists do every day.  U.S. newspapers publish information stolen via digital means all the time.  They also openly solicit such information through SecureDrop portals.  Some will say that Assange and others at WikiLeaks can be prosecuted without threatening “real journalists” by charging a conspiracy to steal and share stolen information. I am not at all sure such an indictment wouldn’t apply to many American journalists who actively aid leakers of classified information.

I hope to come back to the second point. As a journalist who had a working relationship with someone she came to believe had a role in the attack, I have thought about and discussed the topic with most, if not all, the lawyers I consulted on my way to sitting down with the FBI.

For the moment, though, I want to focus on Goldsmith’s first point, one I’ve made in the past repeatedly. If we start indicting uniformed military intelligence officers — or even contractors, like the trolls at Internet Research Agency might be deemed — do we put the freedom of movement of people like Jake Williams at risk? Normally, I’d absolutely agree with Goldsmith and Williams.

But as someone who has already written extensively about the ConFraudUs backbone that Robert Mueller has built into his cases, I want to argue this is an exception.

As I’ve noted previously, while Rod Rosenstein emphasized that the Internet Research Agency indictment included no allegations that Americans knowingly conspired with Russians, it nevertheless did describe three Americans whose activities in response to being contacted by Russian trolls remain inconclusive.

Rod Rosenstein was quite clear: “There is no allegation in the indictment that any American was a knowing participant in the alleged unlawful activity.” That said, there are three (presumed) Americans who, both the indictment and subsequent reporting make clear, are treated differently in the indictment than all the other Americans cited as innocent people duped by Russians: Campaign Official 1, Campaign Official 2, and Campaign Official 3. We know, from CNN’s coverage of Harry Miller’s role in building a cage to be used in a fake “jailed Hillary” stunt, that at least some other people described in the indictment were interviewed — in his case, for six hours! — by the FBI. But no one else is named using the convention to indicate those not indicted but perhaps more involved in the operation. Furthermore, the indictment doesn’t actually describe what action (if any) these three Trump campaign officials took after being contacted by trolls emailing under false names.

On approximately the same day, Defendants and their co-conspirators used the email address of a false U.S. persona, [email protected], to send an email to Campaign Official 1 at that donaldtrump.com email account, which read in part:

Hello [Campaign Official 1], [w]e are organizing a state-wide event in Florida on August, 20 to support Mr. Trump. Let us introduce ourselves first. “Being Patriotic” is a grassroots conservative online movement trying to unite people offline. . . . [W]e gained a huge lot of followers and decided to somehow help Mr. Trump get elected. You know, simple yelling on the Internet is not enough. There should be real action. We organized rallies in New York before. Now we’re focusing on purple states such as Florida.

The email also identified thirteen “confirmed locations” in Florida for the rallies and requested the campaign provide “assistance in each location.”

[snip]

Defendants and their co-conspirators used the false U.S. persona [email protected] account to send an email to Campaign Official 2 at that donaldtrump.com email account.

[snip]

On or about August 20, 2016, Defendants and their co-conspirators used the “Matt Skiber” Facebook account to contact Campaign Official 3.

Again, the DOJ convention of naming makes it clear these people have not been charged with anything. But we know from other Mueller indictments that those specifically named (which include the slew of Trump campaign officials named in the George Papadopoulos plea, KT McFarland and Jared Kushner in the Flynn plea, Kilimnik in the Van der Zwaan plea, and the various companies and foreign leaders that did Manafort’s bidding, including the Podesta Group and Mercury Public Affairs in his indictment) may be the next step in the investigation.

In the GRU indictment, non US person WikiLeaks is given the equivalent treatment.

On or about June 22, 2016, Organization I sent a private message to Guccifer 2.0 to “[s]end any new material [stolen from the DNC] here for us to review and it will have a much higher impact than what you are doing.” On or about July 6, 2016, Organization 1 added, “if you have anything hillary related we want it in the next tweo [sic] days prefable [sic] because the DNC [DemocraticNationalConvention] is approaching and she Will solidify bernie supporters behind her after.” The Conspirators responded,“0k . . . i see.” Organization I explained,“we think trump has only a 25% chance of winning against hillary . . . so conflict between bernie and hillary is interesting.”

But the activities of other American citizens — most notably Roger Stone and Donald Trump — are discussed obliquely, even if they’re not referred to using the standard of someone still under investigation. Here’s the Roger Stone passage.

On or aboutAugust 15,2016, the Conspirators,posing as Guccifer 2.0,wrote to a person who was in regular contact with senior members of the presidential campaign of Donald J. Trump, “thank u for writing back. . . do u find anyt[h]ing interesting in the docs i posted?” On or about August 17, 2016, the Conspirators added, “please tell me if i can help u anyhow . . . it would be a great pleasureto me.” On or about September 9, 2016,the Conspirators, again posing as Guccifer 2.0, referred to a stolen DCCC document posted online and asked the person, “what do u think of the info on the turnout model for the democrats entire presidential campaign.” The person responded,“[p]retty standard.”

The Trump one, of course, pertains to the response GRU hackers appear to have made when he asked for Russia to find Hillary’s emails on July 27.

For example, on or about July 27, 2016, the Conspirators attempted after hours to spearphish for the first time email accounts at a domain hosted by a third‑party provider and used by Clinton’s personal office. At or around the same time, they also targeted seventy‐six email addresses at the domain for the Clinton Campaign.

Finally, there is yesterday’s Mariia Butina complaint, which charges her as an unregistered Russian spy and describes Aleksandr Torshin as her boss, but which also describes the extensive and seemingly willful cooperation with Paul Erickson and another American, as well as with the RNC and NRA. Here’s one of the Americans, for example, telling Butina that her Russian bosses should take the advice he had given her about which Americans she needed to meet.

If you were to sit down with your special friends and make a list of ALL the most important contacts you could find in America for a time when the political situation between the U.S. and Russia will change, you could NOT do better than the list that I just emailed you. NO one — certainly not the “official” Russian Federation public relations representative in New York — could build a better list.

[snip]

All that you friends need to know is that meetings with the names on MY list would not be possible without the unknown names in your “business card” notebook. Keep them focused on who you are NOW able to meet, NOT the people you have ALREADY met.

Particularly as someone whose communications (including, but not limited to, that text) stand a decent chance of being quoted in an indictment in the foreseeable future, let me be very clear: none of these people have been accused of any wrong-doing.

But they do suggest a universe of people who have attracted investigative scrutiny, both by Mueller and by NSD, as willing co-conspirators with Russian spies.

Granted, there are three different kinds of Russian spies included in these three documents:

  • Uniformed military intelligence officers working from Moscow
  • Civilian employees who might be considered intelligence contractors working from St. Petersburg (though with three reconnaissance trips to the US included)
  • Butina and Torshin, both of whom probably committed visa fraud to engage as unregistered spies in the US

We have a specific crime for the latter (and, probably, the reconnaissance trips to the US by IRA employees), and if any of the US persons and entities in Butina’s indictment are deemed to have willingly joined her conspiracy, they might easily be charged as well. Eventually, I’m certain, Mueller will move to start naming Americans (besides Paul Manafort and Rick Gates) in conspiracy indictments, including ones involving Russian spies operating from Russia (like Konstantin Kilimnik). It seems necessary to include the Russians in some charging documents, because otherwise you’ll never be able to lay out the willful participation of everyone, Russian and American, in the charging documents naming the Americans.

So while I generally agree with Goldsmith and Williams, this case, where we’re clearly discussing a conspiracy between Russian spies — operating both from the US and from Russia (and other countries), wearing uniforms and civilian clothing –and Americans, it seems important to include them in charging documents somewhere.

Roger Stone and ConFraudUs

CNN’s David Gelles has an instructive tweet this morning showing how the rate at which Trump tweets about the Mueller “witch hunt” is accelerating.

Assuming this includes this morning’s two “witch hunt” tweets, Trump is on pace to use the phrase 28 times by the end of the month, though I bet he’ll continue to accelerate the use of it in the week remaining in the month.

The Mueller investigation is, I suspect, coming to a head.

I don’t claim I know how it will turn out. The president has an enormous amount of power and his flunkies in Congress promise they’re about to end Rod Rosenstein’s bend-don’t-break defense by impeaching him (though Rosenstein and Chris Wray have just thrown more documents out to slow the Republicans). It’s certainly possible that Trump will make a last ditch effort to undercut the Mueller investigation and that effort will be competently executed and none of the secondary fall-back defenses Mueller has put into place will work. For now, though, the Trump team seems intent on a delay and discredit strategy, which won’t stave off any imminent steps.

So we shall see whether Trump succeeds in undercutting the investigation. I keep thinking, “that’s why they play the game,” but this is no game.

There are a number of reasons I think Mueller’s investigation is coming to a head. But consider one detail. I’ve long explained that Mueller seems to be building a series of Conspiracy to Defraud the United States indictments that will ultimately incorporate the entire Russian operation (and may integrate the Trumpsters’ international self-dealing as well). As Mueller’s team has itself pointed out, for heavily regulated areas like elections, ConFraudUs indictments don’t need to prove intent for the underlying crimes. They just need to prove,

(1) two or more persons formed an agreement to defraud the United States;

(2) [each] defendant knowingly participated in the conspiracy with the intent to defraud the United States; and

(3) at least one overt act was committed in furtherance of the common scheme.

Let’s see how evidence Mueller has recently shown might apply in the case of Roger Stone, Trump’s lifelong political advisor. We already knew that Stone had communications that he did not immediately disclose with Guccifer 2.0 and Wikileaks. With both, Stone has contributed to and reinforced claims the entities were not Russian operations, though his conversion about the source of the Hillary emails was pretty sudden and curiously timed.

Now we know that in May, Stone had lunch with someone calling himself Henry Greenberg offering dirt on Hillary. His explanation — based only on the texts that Michael Caputo was asked about in a Mueller interview — is not that he didn’t entertain the offer, but that he didn’t take Greenberg up on the offer as made in late May because Greenberg was asking for big money.

Both clearly recognized Greenberg as a Russian, therefore a foreigner offering something of value during an election.

Bizarrely, in trying to rebut the import of this exchange publicly, Caputo and Stone are doing nothing more than working the public refs, claiming to assume this was an FBI sting. Mueller knows whether it was an FBI sting, and there’s virtually no way he’d be asking questions about it if it were (particularly if Stone really didn’t take the bait). In short, Stone has no justification for this he’s willing to offer publicly; instead, he’s just adopting the SpyGate narrative in an attempt to discredit the investigation. And that’s assuming there were no follow-ups or other damning texts that didn’t involve someone willing to leak them to the press.

And all that happened before Peter Smith came on the scene, someone who, unlike Donald Trump, was willing to spend money for such things, an operation Stone is suspected of being involved in but which he studiously avoids mentioning when trying to explain himself. Smith did obtain emails from people Matt Tait advised him might be part of a Russian operation, and when he couldn’t validate them, sent them on to Wikileaks.

Which is to say Stone repeatedly entertained offers from foreigners illegally offering dirt that would benefit the Trump campaign — Greenberg, Guccifer 2.0, possibly Peter Smith’s Dark Web hackers. He may even have exhibited a belief that Australian Julian Assange had and could release the latter dirt, possibly with the knowledge they came from Russians.

So we’ve got Stone meeting with other people, repeatedly agreeing to bypass US election law to obtain a benefit for Trump, evidence (notwithstanding Stone’s post-hoc attempts to deny a Russian connection with Guccifer 2.0 and Wikileaks) that Stone had the intent of obtaining that benefit, and tons of overt acts committed in furtherance of the scheme.

And all that’s without leaning on the the other stuff Mueller found on Stone’s phone, which Stone is also trying to explain away by public conspiracies (in this case that the phone content was obtained with a FISA order rather than with a probable cause warrant obtained on March 9).

This is just one of the people Mueller has publicly focused on in recent days. We could lay out similar arguments for Michael Cohen, Paul Manafort, and Brad Parscale, at a minimum. Mueller had — and acted on — probable cause warrants covering five AT&T phones in March, all of which probably had close ties to Rick Gates. Assuming those targets are distributed proportionately with the US population, he’s likely to have obtained warrants for as many as 15 phones just in that go-around.

So if Roger Stone is any indication, the Mueller investigation may soon be moving into a new phase.

On Credico and Stone and Hillary’s Purported Libya Email

WSJ has an underreported story revealing that Roger Stone emailed Randy Credico seeking specific emails from Wikileaks in September 2016.

Former Trump campaign adviser Roger Stone privately sought information he considered damaging to Hillary Clinton from WikiLeaks founder Julian Assange during the 2016 presidential campaign, according to emails reviewed by The Wall Street Journal.

The emails could raise new questions about Mr. Stone’s testimony before the House Intelligence Committee in September, in which he said he “merely wanted confirmation” from an acquaintance that Mr. Assange had information about Mrs. Clinton, according to a portion of the transcript that was made public.

In a Sept. 18, 2016, message, Mr. Stone urged an acquaintance who knew Mr. Assange to ask the WikiLeaks founder for emails related to Mrs. Clinton’s alleged role in disrupting a purported Libyan peace deal in 2011 when she was secretary of state, referring to her by her initials.

“Please ask Assange for any State or HRC e-mail from August 10 to August 30–particularly on August 20, 2011,” Mr. Stone wrote to Randy Credico, a New York radio personality who had interviewed Mr. Assange several weeks earlier. Mr. Stone, a longtime confidant of Donald Trump, had no formal role in his campaign at the time.

I say it’s underreported for two reasons: as presented, WSJ doesn’t really explain why this is news. It doesn’t show that the emails were responsive to HPSCI’s request, a point made by Stone’s attorney in the story and not refuted by Adam Schiff. Furthermore, Credico claims he never really asked Julian Assange for any emails (which may be one of the reasons Stone’s lawyer deems the exchange unresponsive). Schiff claims that this exchange suggests Stone was misleading at best in his testimony.

Adam Schiff (D., Calif.), the ranking member of the House Intelligence Committee, said the emails hadn’t been provided to congressional investigators. “If there is such a document, then it would mean that his testimony was either deliberately incomplete or deliberately false,” said Mr. Schiff, who has continued to request documents and conduct interviews with witnesses despite the committee’s probe concluding earlier this year said.

But for reasons I’ll explain, I think Stone may have been technically correct in his statement.

Another way the story is underreported is because WSJ doesn’t explain — or even consider — what emails Stone might be talking about, a silence that has led sloppy readers to assume these are a reference to known hacked emails.

The email may be a reference to emails believed by some to be hacked!

But absent any explanation what the emails are, they should be assumed to be the emails released by State in response to Jason Leopold and others, which Wikileaks only curated. There are several that might fit Stone’s criteria, including some of the ones based on intelligence from Sid Blumenthal that drove the nutters crazy.

That said, the withheld emails may be newsworthy for reasons WSJ doesn’t lay out.

First, consider the fact that as part of Don Jr’s SJC interview, he was asked about people who may have been involved in the Peter Smith effort to find Hillary’s deleted emails, from Russian hackers if need be. The last person included was Stone.

Q. Did you or anyone else make any effort to obtain Hillary Clinton’s e-mails?

A. No.

Q. Did you or anyone else ever receive Hillary Clinton’s e-mails other than something that might have been publicly published ?

A. No.

Q. Do you know who Peter Smith is?

A. No .

Q. Were you aware of Mr. Smith’ s efforts to obtain Hillary Clinton’s  e-mails?

A. I don’t recall knowing Peter Smith. So I’m not aware of his efforts. Who was he?

Q. There’s been public reporting on him. So it’s in the press.

A. Okay. I haven’t seen it.

Q. Do you know if any of the following people made any efforts to obtain Secretary Clinton’s e-mails. Michael Flynn?

A. I don’t know.

Q. Steve Bannon?

A. I don ‘t know.

Q. Kellyanne Conway?

A. I don’t know.

Q. Sam Clovis?

A. I don ‘t know.

Q. Carter Page?

A. I don’t know.

Q. Roger Stone ?

A. No idea.

We shouldn’t necessarily make that much of the fact that Stone appears on this list, both because no one on it has been confirmed to have been involved in Smith’s efforts, and because he’d be the most likely person to be involved in any case. Nor do I make too much out of the fact that Don Jr answered differently on Stone — “no idea” — than the “I don’t know” he offered for everyone else.

That said, this does seem to confirm Stone is among the people alleged to be involved in the effort.

The Peter Smith operation is something Stone assiduously avoided addressing in his statement to Congress.

Now consider that on August 10, 2016, Stone tweeted, “Assange, you see has all the @HillaryClinton e-mails @HumaAbedin thought she and @CherylMills erased #busted.” (Thanks to Susan Simpson for noting that Stone’s deleted account can be found and searched on the Trump Twitter Archive site.) That tweet would have fallen right between the time Stone told Sam Nunberg he had been speaking with Assange on August 5 and the time he started chatting via DM with Guccifer 2.0 on August 14. That’s also the timeframe Matt Tait said Smith reached out having already received emails from someone on the Dark Web. 

A few weeks later, right around the time the DNC emails were dumped by Wikileaks—and curiously, around the same time Trump called for the Russians to get Hillary Clinton’s missing emails—I was contacted out the blue by a man named Peter Smith, who had seen my work going through these emails. Smith implied that he was a well-connected Republican political operative.

[snip]

Smith had not contacted me about the DNC hack, but rather about his conviction that Clinton’s private email server had been hacked—in his view almost certainly both by the Russian government and likely by multiple other hackers too—and his desire to ensure that the fruits of those hacks were exposed prior to the election. Over the course of a long phone call, he mentioned that he had been contacted by someone on the “Dark Web” who claimed to have a copy of emails from Secretary Clinton’s private server, and this was why he had contacted me; he wanted me to help validate whether or not the emails were genuine.

When Smith couldn’t validate the emails he had received, he had the hackers themselves forward them to WikiLeaks.

Mr. Smith said after vetting batches of emails offered to him by hacker groups last fall, he couldn’t be sure enough of their authenticity to leak them himself. “We told all the groups to give them to WikiLeaks,” he said. WikiLeaks has never published those emails or claimed to have them.

All of which is to say that, if Stone was involved in this effort, he may have known emails pertaining to Libya (perhaps forgeries written to fit into the known, officially released ones) had gotten forwarded to WikiLeaks as early as August. In which case his nudge to Credico the next month may have been an effort to flush out the emails he believed to be in WikiLeaks’ possession.

Which would mean his response to Congress — that Stone was just looking for confirmation WikiLeaks had materials he thought they did — would be technically accurate.

There’s one other detail of interest in the WSJ story. Credico, like Stone, has not been interviewed by Mueller’s team. And like Stone, absent a direct interview, Credico appears to be trying to make his case in the public sphere.

Messrs. Stone and Credico said they haven’t been contacted by Mr. Mueller’s office, which declined to comment.

[snip]

After earlier asserting his Fifth Amendment right against self-incrimination in the House probe, Mr. Credico now says he is willing to talk with investigators. He said he met on Wednesday with the committee’s Democratic staff members for what he called a limited conversation about WikiLeaks, the 2016 campaign and Mr. Stone.

As Mr. Credico has become more vocal about what he says are discrepancies in Mr. Stone’s account, Mr. Stone has responded with a series of threats, according to emails and text messages reviewed by the Journal.

In early April, in one of those emails, Mr. Stone accused Mr. Credico of serving as an informant.

“Everyone says u are wearing a wire for Mueller,” the April 7 email said. Two days later, Mr. Stone wrote: “Run your mouth = get sued.” Mr. Credico denies being an informant.

It’s possible that Stone was using Credico as a go-between to try to confirm what he already knew, to pressure WikiLeaks to release documents he and his rat-fucking associates had planted there.

Which might make the withheld emails far more newsworthy.

Update: Because there was some confusion, I’ve added more of the Don Jr transcript to make the context clear.

The Access Hollywood Search Doesn’t Mean Trump Coordinated with Assange

As I noted, yesterday several outlets reported that among the things included in the FBI warrant for Michael Cohen’s premises was communications between Trump, Cohen, and others (whom I suspect to include Steve Bannon and Marc Kasowitz) “regarding the infamous ‘Access Hollywood'” video.

FBI agents who raided the home, office and hotel of Donald Trump’s personal lawyer sought communications that Trump had with attorney Michael Cohen and others regarding the infamous “Access Hollywood” tape that captured Trump making lewd remarks about women a month before the election, according to sources familiar with the matter.

[snip]

The search warrant also sought communications between then-candidate Trump and his associates regarding efforts to prevent disclosure of the tape, according to one of the sources. In addition, investigators wanted records and communications concerning other potential negative information about the candidate that the campaign would have wanted to contain ahead of the election. The source said the warrant was not specific about what this additional information would be.

From that, people on both the right and the left have assumed, without presenting hard evidence, that this means there must be a tie to Russia. Most often, people assume this must mean Trump somehow managed the events of October 7, when the Intelligence Committee report blaming Russia for the DNC hack, the Access Hollywood video, and the first Podesta emails all came out in quick succession.

That’s certainly possible, but thus far there’s no reason to believe that’s the case.

Mueller and Rosenstein referred this

That’s true, first of all, because after consulting with Rod Rosenstein, Robert Mueller referred this to the Southern District of New York for execution and prosecution, rather than dealing with it himself. He did that surely knowing what a sieve for leaks SDNY is, and therefore knowing that doing so would undercut his remarkably silent teamwork thus far.

In spite of a lot of reporting on this raid this week, we don’t yet have a clear understanding of why the two chose to refer it (or, tangentially, why interim SDNY US Attorney Geoffrey Berman recused himself from this matter).

There are two options. The first is that Rosenstein believed hush payments and taxi medallion money laundering sufficiently attenuated to the Russian investigation that it should properly be referred. In which case, the fact that it was referred is itself reason to believe that Mueller — even while he had abundant evidence supporting the search warrant — has no reason to believe those releases were orchestrated with Wikileaks, and therefore have no direct interest to his investigation (though they may cough up one to three witnesses who will be more willing to cooperate when faced with their own fraud indictments). In which case, the Access Hollywood video would be just another example, like the Stormy Daniels and the Karen McDougal payoffs, of Trump’s efforts to bury embarrassing news, using whatever means necessary.

The other option is that Mueller does have evidence that Trump in some way managed the October 7 events, which would be one of the most inflammatory pieces of evidence we would have heard of so far, but that there was some other reason to refer the matter.

Michael Cohen wasn’t serving as an attorney for much of the reported documents

The really good reason to refer the warrant would be so that SDNY would serve as a natural clean team, sorting through seized items for privileged communications, only to hand them back to Mueller’s team in DC once they’ve sorted through them. It’s an idea Preet Bharara and Matt Miller, among others, have floated.

Before we conclude that SDNY is only serving as a clean team for Mueller’s team here, consider that coverage has vastly overstated the degree to which the items being searched will fall under attorney-client privilege.

The search also sought information on Cohen’s taxi medallions, a business in which he has had really corrupt partners, some Russian, with their own legal problems, and one that has reportedly left Cohen with some debt problems that make his purported personal payment to Stormy Daniels all the more sketchy.

In addition, as soon as Trump claimed to know nothing of the hush payment to Daniels last Friday, the government could credibly claim that either Cohen was not representing Trump when paying off Daniels, or involved in fraud.

The NYT has reported that the raid also sought all communications between Cohen and National Enquirer’s top brass, communications that would in no way be privileged.

Even the reported communications about the Access Hollywood video may not be privileged. If they involved four people, then the only way they’d be covered by privilege is if they counted as campaign emails and Marc Kasowitz, not Cohen, was the attorney providing privileged advice in question. In that case, Cohen would have been playing the press contact role he often did during the campaign.

Still, just because Cohen was not playing the role of an attorney during most of the activities the FBI is interested in doesn’t mean the FBI won’t be really careful to make sure they don’t violate privilege, and I’m sure they’ll still use a taint team.

Mueller has already dealt with (at least) two sensitive attorney-client relationships in his investigation

Even on top of the eight members of the White House Counsel’s office who have spoken with the Special Counsel, Mueller’s team has dealt with (at least) two other sensitive attorney-client relationships.

The first was Melissa Laurenza, a lawyer for Paul Manafort whom he had write false declarations for FARA registry. Judge Amy Berman Jackson permitted Mueller’s team to ask her seven of eight proposed question after proving Manafort had used her services to engage in fraud.

More recently, we’ve gotten hints — but only hints — of what must be extensive cooperation from Skadden Arps and its partner Greg Craig, describing how Manafort and Gates laundered money to pay the firm loads of money to write a report they hoped would exonerate Ukraine’s persecution of Yulia Tymoshenko. While the cooperation of Skadden itself was probably effusive in its voluntary nature (the firm seems determined to avoid the taint that Tony Podesta’s firm has acquired in this process), Mueller did subpoena Alex Van der Zwaan and it’s unclear what methods the FBI used to obtain some of the materials he tried to hide from prosecutors.

Neither of those exchanges involves a search warrant. But they do show that Mueller is willing to take on the tricky issue of attorney testimony first-hand. Using SDNY as a clean team still may be the easiest option in the Cohen case, but Mueller clearly isn’t shying away from managing all such issues in-house in other cases.

The other possible explanations for the Access Hollywood search and the October 7 timing

Which brings us finally to the other possibilities behind the Access Hollywood search.

It’s certainly possible that the coincidental release of all these things was coordination, entirely orchestrated by the Trump campaign. But there are a number of reasons — on top of the fact that Mueller isn’t keeping this search far tighter under his own control — I think that’s not the most likely explanation.

Consider this story, arguing that the real story of Access Hollywood isn’t that it leaked on October 7 — the piece notes that David Farenthold had only received it that day — but that it didn’t leak earlier in the process, when it might have led Trump to lose the primary.

t is just impossible to believe that the tape not coming out at the start of Trump’s campaign, when logic dictates that it would have blown Trump instantly out of the water (before he was in a position where Republicans had no choice other than to keep backing him against the evil Hillary Clinton), was anything but a highly unethical political decision by someone at NBC. The fact that no one has ever even gotten an answer from NBC about how this could have happened is equally unfathomable and yet, given the news media’s overall incompetence, kind of expected.

[snip]

It has always struck me as EXTREMELY odd that it was the Washington Post, not NBC, who first released the tape on Friday Oct. 7, 2016, barely beating NBC which, it should be noted, was clearly ready to go with it immediately after the Post did. I presumed that perhaps NBC wanted this to be the case because it might take some of the focus off why they had not released it during the primaries (and thus chose not to prematurely kill off the media’s Golden Goose which was Trump’s ratings-friendly campaign).

However, there is another aspect of the Post being the outlet which got the big scoop that has always struck me as potentially very significant. The Post’s reporter, David Fahrenthold, has said that he was only made aware of the tape, via an unnamed source, THAT day — which is a clear indication that whomever was trying to get the Post to release it had decided to do so in tremendous haste. After all, if the source had planned it sooner they would have made contact with Fahrenthold well before then because he might have been out of pocket that day.

[snip]

For instance, what if it was actually someone from the TRUMP team who leaked the tape. At first glance, this seems ludicrous because no one thought that Trump would be anything but greatly harmed by the tape (though he clearly was not). But what if someone in Trump World got wind that the tape was about to be released and decided that stepping all over the Russia news (which would normally have dominated the narrative for the remainder of the campaign) would at least create the least bad outcome for them?

I don’t agree that the release was released when it was to distract from the Russia announcement that day. As I’ve long noted, in reality, the Access Hollywood distracted from the Podesta emails, effectively burying the most damning release in the bunch, the excerpts of Hillary’s speeches that even Democrats had been demanding she release since the primary. And while the Trump team might claim they didn’t control the release of the Podesta emails directly — and Roger Stone’s predictions that Wikileaks would release Clinton Foundation rather than Podesta emails were dead wrong — the Trump team at least knew something was coming (indeed, Wikileaks had made that clear themselves). So there’s little reason they would stomp on what they had long welcomed with the Access Hollywood tape. As this post alludes, I also think the Trump team and Russians or Wikileaks may have been squabbling over whether Wikileaks would release possibly faked Clinton Foundation emails that week, only to scramble when Wikileaks refused to release whatever the Peter Smith effort had gotten dealt to them.

Like the Mediate piece, I’m interested in the way that Steve Bannon had Clinton accusers all lined up to go that weekend (indeed, I noted how quickly Stone moved to that after having raised expectations for a Clinton Foundation release). But I also think there are some reasons to believe that attack was in the works for other reasons (though I agree it might reflect advance knowledge that the video might come out, or even that Stormy Daniels might come forward).  Finally, I don’t think the release came from Trump because of all the reports of Republicans trying to convince Trump to step down (though it’s possible the GOP dropped the video in one last bid to get him to do so).

One alternative narrative, then, is that the real story about the Access Hollywood suppression goes back months or years earlier, as one of the things Trump managed to suppress throughout the campaign, but something happened internally to breach that agreement. And, separately, that either Assange by himself, with Russian help, or with Trump assistance, timed the Podesta emails to come out as the Russian attribution was coming out. That is, it could be that the real story remains that whoever orchestrated the Wikileaks release did so in an attempt to bury the Russian attribution, but that the coincidental release of the Access Hollywood video in turn buried the Podesta emails.

Finally, it’s possible that Democrats got ahold of the Access Hollywood video and they released it to (successfully) drown out the Podesta emails, which they (and the intelligence community) also would have known were coming, but by doing so, they also drowned out the all-important Russian attribution in the process.

The point is, we don’t know. And nothing we know thus far about the process leading to this warrant or about the suppression and release of either the video or the women’s stories suggest it all took place that week of October. Trump’s usual m.o. is about suppression, not timing.

That said, I’m curious if this raid will reveal details about one other item Trump probably tried to suppress: the nude Melania photos that NYPost released on July 31, 2016, just as campaign season got going in earnest.

How the DNC Hack Skeptics’ Dominant Theory Sinks Stone

I’ve been thinking about something since I wrote this piece on Roger Stone’s Swiss cheese denials of conspiring with Guccifer 2.0 or Wikileaks on the hack-and-leak. As I laid out, Stone’s denial consists of two tactics: he admits he spoke with Guccifer 2.0 at a time he believed him to have done the hack but notes that that happened after (he claims six weeks, but it was really three) the documents already started coming out. And he denies knowing anything in advance about Wikileaks, which wouldn’t be a problem anyway, he says, because there’s no evidence Wikileaks is a Russian asset.

Effectively, that puts Stone’s involvement after the undeniably criminal act — the hack of the DNC and puts the rest into simple general foreknowledge of Wikileaks’ plan.

As I noted in my first post on Stone’s non-denials, that doesn’t address the possibility he was involved in the Peter Smith led rat-fuck negotiations with Russian hackers to find Hillary’s deleted emails.

But there’s one other problem with it.

According to the public record, Guccifer 2.0 first spoke with Stone on August 12 (though in his statement to Congress, he fudged that date interestingly and claimed the first contact — perhaps meaning DM — was August 14). While that post-dates all known hacking, it pre-dates at least one and possibly several key dates on the leak part of the operation. As Raffi Khatchadourian lays out, Wikileaks may have obtained the John Podesta emails around this time.

A pattern that was set in June appeared to recur: just before DCLeaks became active with election publications, WikiLeaks began to prepare another tranche of e-mails, this time culled from John Podesta’s Gmail account. “We are working around the clock,” Assange told Fox News in late August. “We have received quite a lot of material.” It is unclear how long Assange had been in possession of the e-mails, but a staffer assigned to the project suggested that he had received them in the late summer: “As soon as we got them, we started working on them, and then we started publishing them. From when we received them to when we published them, it was a real crunch. My only wish is that we had the equivalent from the Republicans.”

All of the raw e-mail files that WikiLeaks published from Podesta’s account are dated September 19th, which appears to indicate the day that they were copied or modified for some purpose.

Indeed, Stone’s “Podesta time in the barrel” comment, which Chuck Todd noted addressed Tony but not John Podesta, may even have preceded Wikileaks’ receipt of the emails.

But Stone’s discussions with Guccifer 2.0 undeniably precede an event that, at least according to the skeptics’ theory, necessarily precedes the publication of Podesta’s emails. That’s Craig Murray obtaining … something from someone while he was in the US for the Sam Adams Award on September 25. He has said he didn’t obtain the documents, but it might be a key or something.

That still doesn’t, by itself, make Stone’s conduct criminal. But it does mean his timeline is not exonerating.

Roger Stone’s Rat-Eating Swiss Cheese Denials

Back when Roger Stone leaked his September testimony to HPSCI, I noted that it misrepresented the key allegations against him, meaning he never denied the important parts.

I’m even more interested in how he depicts what he claims are the three allegations made against him.

Members of this Committee have made three basic assertions against me which bust be rebutted her today. The charge that I knew in advance about, and predicted, the hacking of the Clinton campaign chairman John Podesta’s email, that I had advanced knowledge of the source or actual content of the WikiLeaks disclosures regarding Hillary Clinton or that, my now public exchange with a persona that our intelligence agencies claim, but cannot prove, is a Russian asset, is anything but innocuous and are entirely false.

In point of fact, this tripartite accusation is actually a misstatement of the allegations against him (though in his rebuttal of them, he is helped immensely by the sloppiness of public statements made by Democrats, especially those on the panel, which I’ve criticized myself). Generally, the accusation is more direct: that in conversing with both Julian Assange (though a cut-out) and Guccifer 2.0, Stone was facilitating or in some way helping the Trump campaign maximally exploit the Russian releases that were coming.

The same is true of his interview with Chuck Todd yesterday.

I’m most interested in the way Stone addresses his direct exchange with Guccifer 2.0, then restricts the rest of his denials to Wikileaks. When Todd asks Stone why he reached out to both Guccifer and Wikileaks, Stone focuses his attention on the former.

Todd: Why did you reach out to Guccifer? Why did you reach out to Wikileaks?

Stone: First of all, my direct messages with Guccifer 2.0, if that’s who it really is, come six weeks, almost six weeks after the DNC emails had been published by Wikileaks. So in order to collude in their hacking, which I had nothing whatsoever to do with, one would have needed a time machine. Secondarily, I wrote a very long piece, you can find it still at the Stone Cold Truth. I doubt that Guccifer is, indeed, a Russian operative. I also once believed that he had hacked the DNC. I don’t believe that anymore either. I believe it was an inside job and the preponderance of evidence points to a load to a thumb drive or some other portable device and the device is coming out the back door. But, Chuck, ten days ago, the Washington Post that based on the Democratic minority that the Russians had sent documents to me for review. I never received any documents from the Russians or anybody representing them. I never had any contact with any

Todd: Did you receive any documents and you didn’t know it was a Russian?

Stone: I never received any documents from anyone purporting to be a Russian or otherwise, and I never saw the Wikileaks documents in advance.

In his response he does the following:

  • Raises doubts that he was actually talking to Guccifer 2.0 (even though Guccifer 2.0’s only identity was virtual, so Stone’s online interactions with any entity running the Guccifer Twitter account would by definition be communication with Guccifer 2.0)
  • Repeats his earlier doubts that Guccifer 2.0 is a Russian operative
  • Emphasizes that he couldn’t have couldn’t have been involved in any hack of the DNC Guccifer 2.0 had done because he first spoke to him six weeks after the email release (in reality, he was speaking to him three weeks after the Wikileaks release)
  • Admits he once believed Guccifer 2.0 did the hack but (pointing to the Bill Binney analysis, and giving it a slightly different focus than he had in September) claims he no longer believes that
  • Invents something about a WaPo report that’s not true, thereby shifting the focus to receiving documents (as opposed to, say, information)
  • Denies he received documents from anyone but not that he saw documents (other than the Wikileaks ones) before they were released

This denial stops well short of explaining why he reached out to Guccifer. And it does nothing to change the record — one backed by his own writing — that Stone reached out because he believed Guccifer, whoever he might be, had hacked the DNC.

At the time Stone reached out to Guccifer (as I pointed out, he misrepresented the timing of this somewhat in his testimony), he believed Guccifer had violated the law by hacking the DNC.

He never does explain to Todd why he did reach out.

Guccifer 2.0 never comes back in the remainder of the interview. The first time Todd asks Stone if there had been “collusion” with the Russians, Stone answers it generally, insisting Trump needed no help to beat Hillary.

Todd: You have made the case here that there was no collusion here that you’re aware of. Would it have been wrong to collude with a foreign adversary to undermine Hillary Clinton’s campaign?

Stone: Well, there’s no evidence that this happened, you’re asking me to answer a hypothetical question. It seems to me that Mr. Steele was colluding with the Russians.

Todd: Let me ask you this. Do you think it’s fair game to get incriminating evidence from a foreign government about your political opponent?

Stone: But that didn’t happen, Chuck, so I’m not going to answer a hypothetical question. It was unnecessary. The idea that Donald Trump needed help from the Russians to beat Hillary Clinton it’s an excuse, a canard, a fairy tale. I don’t believe it ever happened.

The next time — when Stone first labels then backs way the fuck off labeling conspiring with the Russians as treason — Stone then focuses on how such conspiring would only be treason if you believed that Assange was a Russian agent.

Stone: Chuck I’ve been accused of being a dirty trickster. There’s one trick that’s not in my bag. That’s treason. I have no knowledge or involvement with Russians–

Todd: And you believe

Stone: And I have no knowledge of anybody else who does.

Todd: Let me establish something. You believe, if unbeknownst to you, there is somebody on the Trump campaign who worked with the Russians on these email releases, that’s a treasonous act?

Stone: No, actually, I don’t think so because for it to be a treasonous act, Assange would have to be provably a Russian asset, and Wikileaks would have to be a Russian front and I do not believe that’s the case.

Todd: Let me back you up there. You think it’s possible Wikileaks and the Trump campaign coordinated the release?

Stone: I didn’t say that at all. I have no knowledge of that and I make no such claim.

Todd: No, I understand that. You just issued that hypothetical. So what you’re saying is had that occurred you don’t believe that’s, you don’t believe, you don’t believe that that’s against the law?

Stone: This is all based on a premise that Wikileaks is a Russian front and Assange is a Russian agent. As I said I reject that. On the other hand I have no knowledge that that happened. It’s certainly did not happen in my case. That isn’t something I was involved in.

When asked whether it would be illegal to work with Wikileaks (Stone’s contacts with Guccifer at a time he believed Guccifer to have hacked the DNC go unmentioned) Stone again focuses on whether Wikileaks was Russian, not on the conspiracy to hack and leak documents.

This focus on Wikileaks instead of Guccifer 2.0 carries over to the statement Stone issued to ABC:

I never received anything whatsoever from WikiLeaks regarding the source, content or timing of their disclosures regarding Hillary Clinton, the DNC or Podesta. I never received any material from them at all. I never received any material from any source that constituted the material ultimately published by WikiLeaks. I never discussed the WikiLeaks disclosures regarding Hillary Clinton or the DNC with candidate or President Donald Trump before during or after the election. I don’t know what Donald Trump knew about the WikiLeaks disclosures regarding Hillary or the DNC if anything and who he learned it from if anyone.

No one, including Sam Nunberg is in possession If any evidence to the contrary because such evidence does not exist … This will be an impossible case to bring because the allegation that I knew about the WikiLeaks disclosures beyond what Assange himself had said in interviews and tweets or that I had and shared this material with anyone in the Trump campaign or anyone else is categorically false. Assange himself has said and written that I never predicted anything that he had not already stated in public.

There’s very good reason Stone would want to focus on Wikileaks rather than Guccifer.

Even by his own dodgy explanation, at the time he reached out to Guccifer, he believed that Guccifer had hacked the DNC. While it’s true that the public record shows Stone stopping short of accepting documents from Guccifer (all this ignores Stone’s reported involvement in a Guccifer-suggested Peter Smith effort to obtain Hillary’s Clinton Foundation emails), Stone’s interest in coordinating with the hack-and-leak is clear.

And it seems Sam Nunberg may fear that his past testimony and communications with Stone would document that interest. If he knows Stone did have non-public communications with Guccifer, but didn’t believe Guccifer to be Russian, it would also explain why Nunberg said he thought Putin was too smart to collude with Trump, but that his testimony might hurt Stone.

Adding one more point to this: early in the interview, Stone goes to some lengths to say that he proved he had actually separated from the Trump campaign by contemporaneously showing two reporters his resignation letter. This is akin to something Carter Page did in his HPSCI testimony. But given how many of those conspiring with Russia on the Trump campaign (Carter Page — especially after his departure, George Papadopoulos, and Paul Manafort) didn’t have formal roles, it’s not clear that letter would be definitive. Indeed, it might be the opposite, one of a group of people who arranged plausible deniability by getting or staying off the campaign payroll.

Update: Fixed my misrepresentation of Stone’s claim about the six week delay, and fact-checked it to note it was only three weeks.

The Simpson Transcript: The Dossier as Predicate

I’m working towards a big post (or a series of small ones) on the Glenn Simpson transcript. I address some of my impressions in this Real News Network video with Aaron Maté from the other day.

Before I do that larger post, however, I want to address something Maté asked me about: whether the Simpson transcript — in which he says that Christopher Steele learned from the FBI about (what independent reporting confirms) the Papadopoulos tip from the Australians — supports or refutes the sharply contested arguments about whether the Steele dossier started the counterintelligence investigation or served as a key source for a FISA warrant against either Carter Page or Paul Manafort. Skeptics of the report that the investigation actually arose from the George Papadopoulos tip have argued that the latest PR effort around the dossier is an attempt to paper over the dossier as the true source of either the investigation or the FISA orders.

As I noted on RNN, the dossier doesn’t actually help the anti-Trump narrative as much as people have made out. Simpson testified that Steele decided to reach out to the FBI towards the end of June or beginning of July (after only the first dossier report had been done), and the conversation actually happened the first week of July (a questioner later refers to it as occurring July 5).

Q. And do you recall when you — when you and Mr. Steele decided kind of that he could or should take this to the FBI, approximately the time frame of that?

A. I believe it was sometime around the turn of the month. It would have been in late June or at latest early July. That’s my recollection.

[snip]

Q. Do you have any knowledge of when that first conversation actually then took place?

A. Over the last several months that this has become a public controversy I’ve learned the general date and I believe it was if first week of July, but I don’t believe he told me — if he told me the time, I don’t remember when he told me.

Simpson later admits his certainty about these dates comes from Fusion’s response to speculation and other reporting.

Q. And that information about that time, that first week of July, where does that come from?

A. It comes from news accounts of these events and conversations between Chris and I and some of my — presumably my business partners too. Generally speaking, we have, as you know, not been eager to discuss any of this in public and there’s been a lot of speculation and guessing and stories, many of which are wrong. So when an incorrect story comes out we would, you know, talk about it. So, you know, in the course of those kinds of things I generally obtained a sense of when things occurred that I might otherwise not be able to provide you.

Regardless of how accurate or not this report, it means that Steele spoke with the FBI weeks before the Australian tip is supposed to have come in, which was after Wikileaks started dumping the emails on July 22 (though as I noted with Maté, there are aspects of that story that are sketchy as well). The reference to Steele learning about what he now believes was the Papadopoulos tip reflects feedback from mid to late September, when the FBI told him his story had been corroborated by a human source, not from that first FBI meeting.

Essentially what he told me was they had other intelligence about this matter from an internal Trump campaign source and that — that they — my understanding was that they believed Chris at this point — that they believed Chris’s information might be credible because they had other intelligence that indicated the same thing and one of those pieces of intelligence was a human source from inside the Trump organization.

Later in the transcript Simpson responds in a way that suggests Steele was reading the FBI response rather than learning actual details of the tip; certainly he might have been able to corroborate it back in London.

Q. And did Mr. Steele tell you that the FBI had relayed this information to him?

A. He didn’t specifically say that.

Q. I’m going to have you take a look at one of the filings —

MR. FOSTER: I thought you said earlier that he did say the FBI told him.

MR. SIMPSON: I think I was saying we did not have the detailed conversations where he would debrief me on his discussions with the FBI. He would say very generic things like I saw them, they asked me a lot of questions, sounds like they have another source or they have another source. He wouldn’t put words in their mouth.

In other words, the record shows that (unless the public story about the Australian tip is really inaccurate) the pee tape report came in first, and then the Oz tip did.

That said, both of these tips came in before late July, which is when Jim Comey testified the CI investigation started.

Which is where this predicate debate has always gone wrong. It imagines that the FBI opened an investigation into one and only one thing. In addition to those two things, there were the actual hack and the Guccifer 2.0 persona — already perceived to be a Russian operation before the first Steele report came in — along with clear indications Wikileaks was involved with it. There was Carter Page’s publicly reported trip and speech in Russia, and the beginnings of the reawakening Paul Manafort scandal. And there were the concerns raised about the change in the GOP platform (though I think that got more press than the evidence justified).

So there were a whole bunch of things leading up to the opening of the investigation. And there’s no reason to believe just one predicated the investigation.

Similarly, the case on the FISA orders is mixed (though this is an area, in particular, where the FBI would have an incentive to release partial stories). One of the first reports on Carter Page’s FISA order dates it to late summer, when the Trump campaign was distancing itself from him. But later reporting said he had been tapped even before he joined the campaign, in conjunction with his earlier recruitment by Russian spies.

Manafort, too, was reportedly targeted under FISA because of his earlier dalliances with Russia. In his case, the wiretap had lapsed, but was restarted after new details of his corruption forced him off the campaign in August.

As I’ll write in my larger post on the Simpson transcript, I don’t think all this means the tie between the dossier and the FBI investigation is above reproach. But it does seem clear that, even if the dossier is one thing that justified the investigation, it was neither the earliest thing nor the only thing.

Cambridge Analytica and the Hillary Emails

Update: I made an error in this post: WSJ has made it clear the emails in question were the DNC emails, not the Hillary ones. I’ve deleted the parts that are inaccurate accordingly.

For some time, I have been interested in the many pieces of evidence that, partly as a result of late GOP ratfucker Peter Smith’s efforts, Julian Assange ended up with something approximating Hillary Clinton’s deleted emails. We know Smith alleged Mike Flynn was involved in the effort. Weev and Chuck Johnson were involved. There are reasons to believe Roger Stone was involved in the effort. And there are reasons to believe Guccifer 2.0 was involved in the effort.

Plus, everyone from Stone to Attorney General Sessions (who “did not recall” whether he had spoken to Russians about email in his SJC testimony) seems to be ignoring that part of the scandal in their denials of colluding with Russians.

And now, Cambridge Analytica — the data firm paid for by far right wing oligarch Bob Mercer that played a big role in getting Trump elected — is involved in it.

The DailyBeast reports that Congressional investigators have found an email from CA head Alexander Nix to some unnamed person (Trump’s digital director Brad Parscale was interviewed by HPSCI yesterday) saying he offered to help Assange with the project.

Nix, who heads Cambridge Analytica, told a third party that he reached out to Assange about his firm somehow helping the WikiLeaks editor release Clinton’s missing emails, according to two sources familiar with a congressional investigation into interactions between Trump associates and the Kremlin. Those sources also relayed that, according to Nix’s email, Assange told the Cambridge Analytica CEO that he didn’t want his help, and preferred to do the work on his own.

Assange, who insists he never says anything to compromise sources, released his own statement saying he rejected the help.

After publication, Assange provided this statement to The Daily Beast: ”We can confirm an approach by Cambridge Analytica and can confirm that it was rejected by WikiLeaks.”

Remember, Stone told the Russian hackers he was soliciting that, allegedly because he couldn’t verify the authenticity of any emails obtained from hackers, they should turn them over to Assange. And both the Nix email and the Assange denial seem to admit that WikiLeaks did, indeed, receive at least one set of those emails. Which would explain why Roger Stone was so certain WikiLeaks was going to drop Clinton Foundation emails — not the Podesta ones that Stone showed no interest in — in October of last year. And it would seem to explain why Guccifer 2.0 had the same belief.

That is, there are a whole bunch of dots suggesting WikiLeaks got something approximating Clinton’s emails, and either because they couldn’t be verified, or because his source was too obviously Russian, or some other unknown reason, he decided not to publish.

If that’s right, all these non-denial denials about the operation seem to point to a confluence of interest around this effort that touched pretty much everyone. And involved Russians, their agents, and GOP ratfuckers willfully working together.

Update: The Trump campaign just did some amazing bus under-throwing of CA. Compare that to this November 10 piece attributing their win to CA.