Paul Manafort Remains a Bigger Scandal than Hunter Biden

I haven’t had the time to dig into Gary Shapley’s purported whistleblower claims about the case against Hunter Biden, which several US Attorneys have already disputed.

My read, thus far, matches Andrew Prokop’s: after IRS investigators tried to take steps during a pre-election prohibition period last year, someone in their vicinity leaked to Devlin Barrett, as right-wingers do every pre-election period. That led Delaware US Attorney David Weiss to (justifiably) remove the suspected leakers from the case. As other right wing officials have before, they then ran to Congress and belatedly claimed whistleblower status.

The purported whistleblowers claim that investigative steps — pertaining to allegations about conduct after Biden left the Obama White House — were slow-walked in 2020, during Bill Barr’s tenure as Attorney General. The most serious claim made by the purported whistleblowers is that US Attorneys appointed by Joe Biden refused to file charges against Hunter in the venues where they occurred — MDCA and DC. Merrick Garland, David Weiss, and Matthew Graves have all denied that.

But even if that allegation is true, even if Weiss continues to investigate and substantiates some foreign influence peddling (at this point, limited to 2017, a time when Biden was not in office), the allegations against Hunter Biden would still be far less scandalous than the Paul Manafort case. That’s true because the scale of Manafort’s tax crimes were far worse. That’s true because Manafort has confessed to his foreign influence crime. And that’s true because Trump pardoned Manafort after his former campaign manager lied to investigators about what he did with (since confirmed) Russian agent, Konstantin Kilimnik, during and after the 2016 campaign.

Here’s my understanding of the comparison. The claims against Hunter, in bold, reflect the two Informations docketed as part of the plea deal. All but the pardon TBDs in his case reflect allegations from the so-called whistleblowers that remain unresolved.

Note: I have not listed “lied to protect the president” for Hunter because, as far as I am aware, the President’s son has not made sworn statements to law enforcement — true or false — about matters affecting his father. Manafort did make false statements about matters implicating Trump during his breached cooperation with Robert Mueller’s prosecutors.

A whole pack of DC journalists have chased the IRS allegations, like six year olds do a soccer ball, but with perhaps less consideration of what they’re chasing. They’re doing that even as Trump’s pardons remain largely unreviewed since he announced his run. This manic response to contested IRS claims reflects a choice. Just not a justifiable journalistic one, given the contested allegations to date.

Paul Manafort sources

Millions in tax avoidance: On August 21, 2018, an EDVA jury convicted Manafort of filing false tax returns each year from 2010 to 2014. On September 14, 2018, Manafort pled guilty to tax crimes spanning from 2006 through 2015. Between 2010 and 2014, he failed to report over $15M in income on FBAR.

FARA component: On September 14, 2018, Manafort pled guilty to serving as an unregistered foreign agent from 2006 through 2015.

Money laundering: On September 14, 2018, Manafort pled guilty to laundering over $6.5M in payments, from 2006 through 2016, as part of his FARA scheme.

Bank fraud: In August 21, 2018, an EDVA jury convicted Manafort of two counts of bank fraud, totalling $4.4M. On September 14, 2018, Manafort admitted to over $25M more in bank fraud.

Conspiracy with foreign spy: On September 14, 2018, Manafort pled guilty to a conspiracy to witness tamper with Konstantin Kilimnik. In a 2021 sanctions filing, Treasury stated as fact that Kilimnik is a Russian Intelligence Services agent.

Joint Defense Agreement with President: Before Manafort pled guilty, Rudy Giuliani confirmed that Manafort was part of a Joint Defense Agreement with the President.

Lied to protect President: On February 13, 2019, Amy Berman Jackson ruled that Manafort had breached his plea agreement by — among other things — lying about what he did in an August 2, 2016 meeting with Konstantin Kilimnik at which he described how the campaign planned to win swing states.

Intervention from Attorney General: On May 13, 2020, Manafort was given COVID release to home confinement, even though his prison was at that point low risk and his case did not meet the criteria laid out by Bureau of Prisons. He served less than two years of an over seven year sentence in prison.

Pardoned: On December 23, 2020, Trump pardoned Manafort.

Hunter Biden sources

Hundreds of thousands in tax avoidance: In both 2017 and 2018, Hunter failed to pay full taxes on $1.5M in income ($3M total).

Gun possession: For 11 days in 2018, Hunter possessed a gun in violation of a prohibition on gun ownership by an addict.

Update: Just to give a sense of scale, in his Ways and Means interview, Whistleblower X tried to explain how big the scale of Hunter Biden’s graft was by noting that he and his associates, over five years, got $17.3M.

But Manafort was doing more than that himself.

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Susie Wiles Named in A(nother?) Trump-Related Indictment

ABC has identified two more people referred to in Trump’s Espionage Act indictment.

In addition to confirming earlier reports that Molly Michael is Trump Employee 2 — the person who, with Walt Nauta, helped Trump sort through boxes in advance of returning a subset of boxes in January 2022 — ABC describes that Trump Employee 1 is Hayley (née D’Antuono) Harrison.

Sources have also further identified some of the other figures mentioned by Smith’s team in the indictment. Hayley Harrison and Molly Michael are said to be “Trump Employee 1” and “Trump Employee 2,” respectively.

Michael, whose name was previously reported as an individual identified in the indictment, is Trump’s former executive assistant who no longer works for him, while Harrison is currently an aide to Trump’s wife, Melania Trump.

The role of Trump Employee 1 in the indictment is fairly minor: in a discussion with Michael she suggested moving other stuff to storage to make space in the gaudy bathroom for boxes of documents.

People often raise questions about whether she has familial ties with Steve D’Antuono, the former FBI Assistant Director who kept thwarting investigations into Trump; they share a last name but no known familial ties.

More interesting is the role of her spouse, Beau, whom she married last year. Both Beau and Hayley were employed by Trump’s PAC, and Beau was represented (as Cassidy Hutchinson had been) by Stephen Passantino. Beau made two appearances before the January 6 Committee, in the second of which his testimony evolved to match Tony Ornato’s testimony disclaiming Trump’s efforts to go to the Capitol on January 6. Harrison was interviewed in the January 6 investigation late last year.

The Harrisons are a couple in the thick of things.

ABC’s other identification is a much bigger deal — and Trump is making it one. According to ABC, Susie Wiles is the PAC Representative to whom Trump is described as showing a classified map in September 2021.

Susie Wiles, one of Trump’s most trusted advisers leading his second reelection effort, is the individual singled out in Smith’s indictment as the “PAC Representative” who Trump is alleged to have shown a classified map to in August or September of 2021, sources said.

Trump, in the indictment, is alleged to have shown the classified map of an unidentified country to Wiles while discussing a military operation that Trump said “was not going well,” while adding that he “should not be showing the map” to her and “not to get too close.”

[snip]

If the identification of Wiles by sources is accurate, it also raises the prospect that should Trump’s case go to trial prior to the 2024 election, one of the top figures leading his reelection bid could be called to testify as a key witness. Wiles, who previously helped lead Trump’s now-GOP primary opponent Ron DeSantis’s two campaigns for governor, is seen as one of Trump’s most trusted confidants.

She also led Trump’s campaign operations in Florida in 2016, and was later CEO of Trump’s Save America political action committee.

Note that Trump could not be surprised by Wiles’ inclusion in the indictment; the map-sharing incident was widely reported before the indictment.

Still, Wiles’ ID is important for several reasons. Even more than the prospect that Wiles might have to testify during the campaign, which ABC notes, consider how the primary release condition — that Trump not discuss the facts of the case with any witnesses — would affect this. Trump wants to turn being an accused felon into a key campaign plank. He’s running on being a victim. But the contact prohibition would make it more difficult for Trump and Wiles to discuss the best way to do that. And it would make any false claims the Trump campaign made about the prosecution legally problematic, because Wiles is a witness.

That would be true irrespective of Wiles’ role in running Save America PAC, which is the key subject of the fundraising prong of the investigation. But there’s a non-zero likelihood that Wiles’ conduct is being scrutinized for spending money raised for one purpose and spent on another. One way or another, Wiles was involved in a suspected Trump scheme to raise money based off a promise to spend it on election integrity, only to use the money for lawyers representing Trump in other matters.

More interesting still: this may not be Wiles’ first inclusion in a Trump-related indictment. At the very least, Wiles was the former 2016 campaign staffer who had to answer for the multiple contacts Yevgeniy Prigozhin’s trolls made with Trump’s Florida campaign as laid out in the Internet Research Agency indictment, and she may well have been one of the three campaign officials referred to in it.

74. On or about August 15, 2016, Defendants and their co-conspirators received an email at one of their false U.S. persona accounts from a real U.S. person, a Florida-based political activist identified as the “Chair for the Trump Campaign” in a particular Florida county. The activist identified two additional sites in Florida for possible rallies. Defendants and their co-conspirators subsequently used their false U.S. persona accounts to communicate with the activist about logistics and an additional rally in Florida.

75. On or about August 16, 2016, Defendants and their co-conspirators used a false U.S. persona Instagram account connected to the ORGANIZATION-created group “Tea Party News” to purchase advertisements for the “Florida Goes Trump” rally.

76. On or about August 18, 2016, the real “Florida for Trump” Facebook account responded to the false U.S. persona “Matt Skiber” account with instructions to contact a member of the Trump Campaign (“Campaign Official 1”) involved in the campaign’s Florida operations and provided Campaign Official 1’s email address at the campaign domain donaldtrump.com. 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.”

77. On or about August 18, 2016, Defendants and their co-conspirators sent money via interstate wire to another real U.S. person recruited by the ORGANIZATION, using one of their false U.S. personas, to build a cage large enough to hold an actress depicting Clinton in a prison uniform.

78. On or about August 19, 2016, a supporter of the Trump Campaign sent a message to the ORGANIZATION-controlled “March for Trump” Twitter account about a member of the Trump Campaign (“Campaign Official 2”) who was involved in the campaign’s Florida operations and provided Campaign Official 2’s email address at the domain donaldtrump.com. On or about the same day, 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.

79. On or about August 19, 2016, the real “Florida for Trump” Facebook account sent another message to the false U.S. persona “Matt Skiber” account to contact a member of the Trump Campaign (“Campaign Official 3”) involved in the campaign’s Florida operations. On or about August 20, 2016, Defendants and their co-conspirators used the “Matt Skiber” Facebook account to contact Campaign Official 3. [my emphasis]

In the wake of the indictment, Wiles insisted, convincingly, that no official staffer wittingly cooperated with the trolls.

Susie Wiles, who was co-chair of the Trump campaign in Florida in August 2016 and later became the campaign’s chief Florida staffer, said no campaign official was aware of the Russian effort.

“It’s not the way I do the business; it’s not the way the Trump campaign in Florida did business,” she said. “It is spooky. It is awful. It makes you look over your shoulder. It shouldn’t happen. I’m anxious for this to be uncovered so this never happens again.”

Indeed, ultimately, DOJ argued that Prigozhin’s trolls had made approximately 26 real US persons unwittingly serve as agents of Russia, who otherwise should have registered under FARA. Had the Concord Consulting case gone to trial, the interactions of those real people with Prigozhin’s trolls would have been introduced as evidence.

But the focus on Florida led to a real focus on the Wiles family’s real actions tied to Russia. Notably, just days after the June 9, 2016 meeting with Natalia Veselnitskaya and Rinat Akhmetshin, Susie’s spouse Lanny arranged for Veselnitskaya to get a prominent seat at a Magnitsky sanctions hearing.

In fact, her seat had been reserved for her by a Republican consultant with close ties to the Trump campaign.

Lanny Wiles, whose wife, Susie, was then chairing the Trump campaign in Florida, said in an interview that he came early to scout out the seat and was there at the request of Akhmetshin, with whom he was working as a consultant on the sanctions-related adoption issue.

Lanny and Susie Wiles both said she was unaware of his role in the lobbying effort. Lanny Wiles said he was unaware that the Russian lawyer whose seat he was saving had just days earlier met with Trump Jr.

“I wasn’t part of it,” Susie Wiles said.

First Politico, then BuzzFeed, reported that Lanny Wiles had some kind of financial role in Akhmetshin’s anti-Magnitsky lobbying. And the Wiles’ daughter, Caroline, had to be moved from a job in the White House to Treasury after she failed a background check.

That back story is what makes it more interesting that Trump was sharing a classified map with Wiles in 2021.

Update: CNN matches ABC’s identification of Wiles, and adds that Wiles has been interviewed several times.

The campaign adviser, Susie Wiles, has spoken to federal investigators numerous times as part of the special counsel’s Mar-a-Lago documents probe, multiple sources told CNN.

[snip]

During her interviews, sources say that prosecutors repeatedly asked Wiles about whether Trump showed her classified documents. They also inquired about a map and whether she had any knowledge regarding documents related to Joint Chiefs Chairman, Gen. Mark Milley, one source added.

[snip]

Wiles, one of Trump’s closest advisers, is effectively running his third bid for the presidency and has taken an active role in Trump’s legal strategy, including helping find lawyers and helping arrange payment to attorneys representing Trump associates being questioned in the multiple federal and state investigations into the former president.

Wiles is also a close associate of Chris Kise, who is on Trump’s legal team and appeared in court earlier this month when Trump was indicted.

Sources in Trump’s inner circle tell CNN they were blindsided by the news.

Wiles declined to comment to CNN.

Trump campaign spokesperson Steven Cheung told CNN that Wiles would not be taking a step back from the campaign.

“Jack Smith and the Special Counsel’s investigation is openly engaging in outright election interference and meddling by attacking one of the leaders of President Trump’s re-election campaign,” said Cheung.

Perhaps the most interesting detail in the CNN piece is that “sources in Trump’s inner circle” didn’t know this.

Update: A Trump rival (remember that Wiles used to work for DeSantis) finally finds something to attack Trump on — and in a Murdoch rag, no less: Wiles’ ties to China.

Susie Wiles works on Donald Trump’s 2024 campaign and is co-chair of Mercury Public Affairs, which has taken millions of dollars in recent years from Chinese companies such as Yealink, Hikvision and Alibaba.

[snip]

If confirmed, the episode is further complicated by both Wiles’ high standing in the Trump campaign and her firm’s lobbying for potential hostile entities — though a search of the Justice Department’s registry of foreign agents indicated Wiles had not worked directly for those clients.

“Susie could put Trump away for years in just one minute of testimony to Jack Smith,” a rival GOP operative told The Post. “She’s got Trump by the balls, which means she can name her price for her loyalty and Trump can’t say no.”

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In the End, the Leopards Who Launched the Durham Investigation Ate His Face

I’m visiting family, so my longer analysis of John Durham’s appearance before Congress will have to wait until the weekend. Here’s my live thread of the hearing.

The arc of the hearing should begin with Durham’s final answer (in response to an insane rant from Harriet Hageman, Liz Cheney’s replacement in Congress), in which Durham claimed that if people believed there is a two-tiered system of justice, the nation cannot stand.

Before he provided this answer, Adam Schiff, to whom many Democratic members deferred, had noted that in Durham’s comparison of Hillary’s treatment by the FBI with Trump’s in his report, Durham had completely ignored the way Jim Comey had tanked Hillary’s campaign, first in July and then again in October 2016. Durham had ignored, in his treatment, the most consequential events in the 2016 campaign, arguably the decisive set of events. (As I’ve noted, even CNN concluded that Durham’s actual evidence, as opposed to his conclusions, actually shows that even on other investigations, Hillary was treated worse than Trump.)

So Durham, after having been called out for ignoring the way the FBI may have decided the election against Hillary, nevertheless reiterated his false claim that he showed the FBI applying a two-tiered system of justice against Trump.

Then Durham said that if people believe his false claim, it will sink the nation. In his final answer, Durham effectively said that if people believe his false claim, it will sink democracy in the United States.

With that endpoint in mind, let’s review what happened leading up to it.

An important recurring theme from most Democrats is that Merrick Garland respected Durham’s independence. Democrats repeatedly got Durham to confirm that Garland had never interfered with Durham’s independence and even got him to endorse the independence of Special Counsels, generally. As I predicted, Durham’s testimony will undercut GOP efforts to interfere in Jack Smith’s ongoing investigations into Trump and some Republicans in Congress.

Democrats also repeatedly laid out how Durham had spent $6.5 million and found no new crime.

A really central moment came — in advance of a procedural vote to censure Schiff on the floor — where Schiff laid out that his prior claims about the Russian investigation all proved true. Both with Trump’s public call for Russia to find Hillary’s emails and Don Jr’s enthusiastic acceptance of an offer of dirt on Hillary, Trump invited Russia’s help. He got the help he asked for in the form of further hacking of Hillary. And Trump made use of it, by relying on the stolen emails over and over again.

At one point, Schiff said that if you don’t want to call Paul Manafort handing internal campaign information to a Russian spy “collusion,” then you could just call it Republicans cheating with the enemy.

In another exchange, Schiff laid out how George Papadopoulos’ prediction of help from Russia came true, in the form of the release of stolen emails via cut-outs. Durham (whose claim to be aware of Trump’s emails and public news coverage was selective throughout), claimed to have no awareness that the Russian operation released stolen emails via three different cut-outs — dcleaks, Guccifer 2.0, and WikiLeaks. He had no idea, about that, he claimed!

In short, the Durham hearing gave Schiff (and others, but especially Schiff) several opportunities to lay out just how damning the Mueller investigation results were, particularly as compared to Durham’s own flimsy outcome. Each time, Durham claimed ignorance of key details of the Mueller Report.

That said, Durham was under oath. Throughout the hearing, he stopped short of making claims that he had — while still a prosecutor with near-total immunity — made in his report. For example, Durham did not state, in the hearing, that Hillary had a plan to frame Donald Trump, as opposed to simply pointing out his very real Russian ties.  He even, in the hearing, acknowledged that Igor Danchenko did not hide his ties to Charles Dolan, when asked. MoJo is out claiming that Durham lied under oath, but the way Durham backed off key claims he made in his report is far more telling about his witting actions. The claims Durham did not repeat under oath are the ones deserving of further scrutiny.

Which brings us to the three MAGAt members of Congress who questioned Durham after a break for votes, too late for any Democrat to rebut Durham.

First, there was Hageman’s rant.

Then, Andy Biggs stated as fact that there were crimes Durham had not prosecuted, including immigration crimes by Igor Danchenko. Biggs also stated that, “the division in this country, I can trace back, it is the Steele dossier paid for by Hillary Clinton.” Of course, the Durham Report provided yet more evidence that the disinformation in the dossier came from Oleg Deripaska, so I guess Andy Biggs is congratulating Deripaska for the damage that he did to the country. And doubling down on that damage.

The most heated challenge to Durham, however, came from Matt Gaetz (again, after a half-hour break for votes; somehow Gaetz got two chances to question Durham). Gaetz demanded to know how Durham was unable to find Joseph Mifsud — the guy whose comments to Trump’s Coffee Boy started this whole investigation — for an interview, even after Durham patiently described that no US prosecutor can demand subpoena compliance for suspected Russian spies located overseas. Durham described that, as happened with former counterintelligence investigative subject Sergei Millian, Mifsud’s lawyer refused to disclose Mifsud’s location.

In response, Gaetz accused Durham of being part of a cover-up.

Durham was like the Washington Generals, Gaetz accused, paid to lose the game. Because Durham couldn’t find someone against whom the SSCI Report showed ties of Russian intelligence ties, Gaetz suggested that Durham had, from the start, planned to cover up a Deep State operation against Donald Trump.

This whole thing was an op. This wasn’t bumbling fumbling FBI that couldn’t get FISA straight. This was an op. It begs the question whether you were really trying to figure that out.

As he did in response to a parallel line of questioning from Cori Bush and even Jerry Nadler, Durham insisted on the good faith of his team. He talked about the four years he spent away from his family to conduct this investigation that made America less safe.

I don’t doubt he believes his team engaged in a good faith investigation. As he said, sometimes confirmation bias can undermine even good faith actions.

The Durham investigation was kicked off in 2018 when a bunch of Tea Partiers like Gaetz gave Papadopoulos an opportunity to float conspiracy theories in the Congressional record. That’s literally what sent Durham and Barr on a junket together to Italy, the failed attempt to find Joseph Mifsud that Gaetz presents as proof that Durham was just part of a Deep State plot.

Durham ended his investigation with the leopards who kicked it off eating his face.

I’m not happy that more of Durham’s lies weren’t exposed at today’s hearing. The hearing could have been far more effective, as an effort to get to the truth.

But I can think of no more fitting way to end Durham’s four year effort to chase the conspiracy theories of George Papadopoulos than to have Matt Gaetz accuse him of being part of a Deep State op.

Durham set off in 2019 to chase down the conspiracy theories of people with close ties to Matt Gaetz. And Durham ended it by having Gaetz accuse Durham of the same things of which Durham accused others.

The leopard always eats your face.

Update: Fixed which Washington team intentionally loses rather than does so as the result of the right wing owner’s ineptitude.

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Peter Strzok Claims He Spoke to John Durham about the Clinton Conspiracy Theory Document

In this post, I showed how John Durham fabricated a key aspect of his Clinton conspiracy theory — the claim that she planned to make false claims about Donald Trump. Durham invented the bit where Clinton had to make false claims about Trump. Made it up out of thin air.

Durham considered charging FBI agents because they didn’t respond to evidence that a Hillary advisor had been hacked by Russia as if it were proof of criminal intent by Hillary.

He did so in spite of the fact that he provided no proof that any of those FBI agents he considered charging had actually received the referral memo sharing that Russian intelligence.

In the section where Durham considers whether to charge some FBI agents for not doing more with the the Russian Hillary-and-Guccifer intelligence, he repeats his ploy of conflating the Hillary-and-Guccifer intelligence with the wider body of evidence to even deign to make a prosecutorial decision, though in this instance, he provides no reminder that the Hillary-and-Guccifer intelligence was just one of the things Brennan briefed to Obama, after five pages of other items.

The FBI thus failed to act on what should have been – when combined with other, incontrovertible facts – a clear warning sign that the FBI might then be the target of an effort to manipulate or influence the law enforcement process for political purposes during the 2016 presidential election. Indeed, CIA Director Brennan and other intelligence officials recognized the significance of the intelligence by expeditiously briefing it to the President, Vice President, the Director of National Intelligence, the Attorney General, the Director of the FBI, and other senior administration officials. 491

He lets the urgent import of an ongoing Russian hack to stand in for the import of this Hillary-and-Guccifer intelligence.

And that’s important, because Durham makes a prosecutorial decision about whether to charge FBI agents for how they responded to the intelligence that Russia claimed to have intercepted communications of Hillary personnel without proof that most of them ever read it.

As he describes, the top analytical people on the campaign learned of the claimed intercept of Hillary associates almost a month after CIA first obtained it.

On that date, an FBI cyber analyst (“Headquarters Analyst-2”) emailed a number of FBI employees, including Supervisory Intelligence Analyst Brian Auten and Section Chief Moffa, the most senior intelligence analysts on the Crossfire Hurricane team, to provide an update on Russian intelligence materials. 409 The email included a summary of the contents of the Clinton Plan intelligence. 410

There were in-person briefings for the top analytical people and the cyber people ten days later.

When interviewed by the Office, Auten recalled that on September 2, 2016 – approximately ten days after Headquarters Analyst-2’s email – the official responsible for overseeing the Fusion Cell briefed Auten, Moffa, and other FBI personnel at FBI Headquarters regarding the Clinton Plan intelligence. 411 Auten did not recall any FBI “operational” personnel (i.e., Crossfire Hurricane Agents) being present at the meeting. 412 The official verbally briefed the individuals regarding information that the CIA planned to send to the FBI in a written investigative referral, including the Clinton Plan intelligence information. 413

[snip]

Separate and apart from this meeting, FBI records reflect that by no later than that same date (September 2, 2016), then-FBI Assistant Director for Counterintelligence Bill Priestap was also aware of the specifics of the Clinton Plan intelligence as evidenced by his hand-written notes from an early morning meeting with Moffa, DAD Dina Corsi and Acting AD for Cyber Eric Sporre. 415

Durham describes the CIA writing a memo about what the fusion intelligence team had found — but he curiously never describes how or when it was sent.

Five days later, on September 7, 2016, the CIA completed its Referral Memo in response to an FBI request for relevant information reviewed by the Fusion Cell. 417

That’s important because Durham describes witness after witness describing that they had never seen it.

None of the FBI personnel who agreed to be interviewed could specifically recall receiving this Referral Memo.

[snip]

The Office showed portions of the Clinton Plan intelligence to a number of individuals who were actively involved in the Crossfire Hurricane investigation. Most advised they had never seen the intelligence before. For example, the original Supervisory Special Agent on the Crossfire Hurricane investigation, Supervisory Special Agent-1, reviewed the intelligence during one of his interviews with the Office. 428 After reading it, Supervisory Special Agent-I became visibly upset and emotional, left the interview room with his counsel, and subsequently returned to state emphatically that he had never been apprised of the Clinton Plan intelligence and had never seen the aforementioned Referral Memo. 42

[snip]

Former FBI General Counsel Baker also reviewed the Clinton Plan intelligence during one of his interviews with the Office. 431 Baker stated that he had neither seen nor heard of the Clinton Plan intelligence or the resulting Referral Memo prior to his interview with the Office.

In lieu of proof that it ever got sent, Durham reveals that Brian Auten might have hand-carried the memo to the team, but had no memory of doing so.

Auten stated that it was possible he hand-delivered this Referral Memo to the FBI, as he had done with numerous other referral memos,419 and noted that he typically shared referral memos with the rest of the Crossfire Hurricane investigative team, although he did not recall if he did so in this instance. 420

[snip]

[E]ven in spite of proof that Durham was coaching witnesses in these interviews, he still presented no affirmative evidence that the FBI investigators ever received the Fusion Cell memo. In the same way that all of Hillary’s people disclaimed any plan, the FBI investigators disclaimed having seen this memo.

To sum up: Durham considered charging FBI agents for not responding to evidence that Russians had hacked a Hillary advisor as if it was proof of Hillary’s devious attempt to frame Trump, even though he had no evidence those FBI agents ever saw that evidence.

In today’s hearing, Durham responded to a question from Jim Jordan about the memo — asking whether the memo was given to Jim Comey and Peter Strzok — by dodging on precisely that issue. Rather than saying, yes, Comey and Strzok got this referral, he said only that the memo had been addressed to Strzok.

Jordan: Was memo given to Comey and Strzok.
Durham: That’s who it was addressed to, yes.

That is, he affirmatively stopped short of claiming that Strzok received it.

That led to this exchange involving Strzok himself.

The significance of Strzok’s comment is twofold. First, he says he spoke to Durham about this topic.

I told Durham’s team I had no recollection of ever seeing the [referral]. Funny how he didn’t include that in his report.

That directly conflicts with a footnote in a section of Durham’s Report purporting to prove Peter Strzok’s political bias, in which Durham claimed that Strzok refused to talk about anything other than the Alfa Bank allegations.

139 Strzok was a Section Chief and later the Deputy Assistant Director in the FBI’s Counterintelligence Division. (For the positions held by those involved in the Crossfire Hurricane investigation, see the chart in the Redacted OIG Review at 81-82.) Strzok agreed to provide information to the Office concerning matters related to the FBI’s Alfa Bank investigation, but otherwise declined to be interviewed by the Office on matters related to his role in the Crossfire Hurricane investigation.

Durham has spent a good deal of time today making excuses for why he didn’t speak to Republicans’ biggest bogeymen, including Strzok. Yet it appears that Durham affirmatively misrepresented the extent to which Strzok spoke to him.

Then there’s the documentary detail Strzok raised: When he spoke to Durham, Durham didn’t have an FBI file copy of this memo. He was using a CIA or ODNI version of the document, not one from the FBI.

Either Durham didn’t look — or he never found — this file to be in FBI files.

Both Republicans and Democrats should be furious about this exchange — Republicans, because it suggests Durham is lying to them about whom he really did speak with, and Democrats, because it is yet more proof Durham invented a conspiracy theory out of a Russian intelligence report.

John Durham seems to be hiding the degree to which he left out interviews that debunked his own conspiracy theories. Including one with Peter Strzok.

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A Guide to the False Claims John Durham Will Tell Congress

I finally finished my last post on the Durham Report last week before heading off for a visit with family for a week. This post gathers them all together in one place.

John Durham’s investigation was a four year effort to flip the script: to make Hillary Clinton — the victim of a nation-state attack in 2016 — its villain.

Durham and his sponsor, Bill Barr, did so as part of a larger effort — one that also included Barr’s sabotage of both the release of the Mueller Report and the ongoing investigations into Trump’s people — to discredit the investigation started because Trump’s Coffee Boy bragged about learning of the Russian attack in advance, and he wasn’t the only one. The Rat-Fucker, too, got advance notice, the Rat-Fucker, too, bragged about Russia’s assistance to the campaign, though because the FBI didn’t investigate Guccifer 2.0 aggressively enough in real time, it took several years to unpack Roger Stone’s advance knowledge.

And so, in an attempt to negate the results of a very real and very productive investigation, Durham sought out targets via whom he could avenge that investigation into Trump. The investigation itself failed to Lock Her Up, to say nothing of jailing any of the men and women of “the Deep State” who believed that enthusiastic foreknowledge of a Russian attack on a presidential candidate was an important thing to investigate, right along with Emirati efforts to cultivate politicians of both parties, the improper handling of classified information, and suspected (but ultimately uncorroborated) corruption.

Durham tried, but failed, to criminalize efforts to keep the country safe from Russian influence operations. Likewise, he tried, but failed, to criminalize political speech, a political candidate’s effort to raise concerns about her opponent’s very real ties to the country that had targeted her. The two prosecutions Durham brought in an attempt to obtain evidence to support the conspiracy theory that animated his entire investigation — or, short of that, to lead the public to believe in his conspiracy theory, regardless of the evidence — ended in embarrassing acquittals, but not before devastating the livelihoods of his targets and others, many of whom had previously played valuable roles in keeping the US safe.

In a sane world, with a diligent press, that should have ended it. In a sane world, with a diligent press, this four year effort would be recognized as the weaponization of DOJ that Trump-whisperers imagine might only happen in the future, or that Republican supporters of fascism set up a committee to falsely claim happened, only to Republicans, in the past.

But that didn’t happen.

So here we are, six months after Durham’s second humiliating trial loss, that of Igor Danchenko, the one where Durham personally led the prosecution, and he finally released the required report on his investigation. By regulation the report is supposed to be just a record of his prosecutions and declinations. Rather than admit that there had been no there there to his conspiracy theory, Durham engaged in omissions and false claims to bolster his conspiracy theory.

Tomorrow, Republicans on the House Judiciary Committee will invite Durham to repeat his false claims.

Here’s a guide to some of the false claims he may make before Congress.

 

John Durham Lied about Who Told the False Stories

Eight Things Not Mentioned in the Durham Report

John Durham Committed the “Crime” of “Inferring” of Which He Accused Rodney Joffe

“Ridiculous:” Durham’s Failed Clinton Conspiracy Theory

John Durham Fabricated His Basis to Criminalize Oppo Research

John Durham’s Disinformation Problem

 

John Durham covered up what really happened with the Alfa Bank investigation

The Dishonest and Incompetent FBI Work John Durham Learned to Love

FBI Cyber Division’s Enduring Blue Pill Mystery

John Durham’s Blind Man’s Bluff on DNS Visibility

 

John Durham committed the prosecutorial errors he attacked when the FBI made them, but worse

Doo-Doo Process: John Durham Claims to Know Better than Anthony Trenga and Two Juries

John Durham, High Priest of the Cult of the Coffee Boy

 

The press hasn’t called out Durham even while they’ve identified his false claims

How Jonathan Swan Covered [Up] John Durham’s Corruption

How CNN Inculpated John Durham While Purportedly Exonerating Trump

Republicans Demanded Independence for John Durham and Got Robert Hur and Jack Smith in the Bargain

 

Bonus track!

Trophy Documents: The Entire Point Was to Make FBI Obedient

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John Durham’s Disinformation Problem

The only person about whose ties to Christopher Steele John Durham showed no curiosity was Oleg Deripaska.

The only person whose ties to the creator of the dossier that led the FBI to adopt false claims against Trump aides that Durham didn’t pursue was the guy, on whose behalf, Trump’s campaign regularly sent out internal polling data starting in May 2016, the guy, on whose behalf, Trump’s campaign manager briefed Russian agent Konstantin Kilimnik on the campaign’s plan to win swing states. The 2021 Treasury filing that stated, as fact, that Kilimnik is a, “known Russian Intelligence Services agent implementing influence operations on their behalf,” also stated, as fact, that in 2016, “Kilimnik provided the Russian Intelligence Services with sensitive information on polling and campaign strategy,” the very same polling data and campaign strategy he obtained from Trump’s campaign manager on Oleg Deripaska’s behalf. As I’ve laid out, John Durham never mentioned Kilimnik in his report, not once, to say nothing of how Kilimnik obtained internal polling data and a campaign strategy briefing and delivered it to Russian spies.

Everyone else who had the least little tie to Christopher Steele, Durham pursued relentlessly. He charged Igor Danchenko, even though the FBI used Danchenko to, “fish information from Mr. Steele about what Mr. Steele was up to,” as the former British spook pursued a second dossier against Trump in 2017. He charged Danchenko even though Danchenko neither wrote the dossier nor shared it (or even knew it was being shared) with the FBI. Durham not only charged Steele’s primary source, but he caused Danchenko to be burned as an FBI informant, even though Danchenko’s subsource network had reportedly proven incredibly valuable to the FBI. Durham even helped to ensure that the FBI would not pay a significant lump sum payment to Danchenko for his assistance after Republicans in Congress led to his exposure.

Durham’s report aired, at length, details of the earlier counterintelligence investigation into Danchenko; he didn’t include the reasons Danchenko’s handler found the allegations unreliable (indeed, an undated referral in his report suggests Durham retaliated against Danchenko’s handler Kevin Helson for providing those details at trial). Once again, Durham failed his own standards of including exculpatory information. Durham also falsely claimed that Danchenko never told the FBI that his source network knew of his tie to Steele. In reality, as I’ll return to below, in his first interview with the FBI, Dancehnko described that two of them did.

Durham also conducted the investigation into Charles Dolan he believed Robert Mueller’s team should have done in 2017. Durham obtained Dolan’s email, his work email, his phone records, and his Facebook records. Durham still found no proof that Dolan was the source for any of the Russia-related reports in the dossier. After not getting the answers he wanted in Dolan’s first interview, Durham made him a subject and had him review an email Dolan sent, passing on information he had read in public sources, with a report in the dossier, which Dolan conceded might have come from his email. But Dolan still testified that Danchenko never asked Dolan for information about Trump’s connection to Russia.

It wasn’t just Danchenko and Dolan, though. A key part of Durham’s conspiracy theory against Michael Sussmann depended on the fact that — shortly after Sussmann got the Alfa Bank anomaly independent of the Hillary campaign — Sussmann asked Steele about the bank during a meeting where Marc Elias asked Sussmann to help vet Steele. Durham tried to introduce Steele’s subsequent report on Alfa Bank based on that meeting, even though all the evidence shows that if the Brit did provide the report to the FBI, he did so on his own, and it’s not even clear that he himself did provide that particular report directly to his FBI handler.

Durham compelled Fusion’s tech expert Laura Seago to testify because a meeting and four emails she exchanged with Rodney Joffe were the one link between Joffe and the dossier. Seago testified that the Alfa Bank allegations were not a big part of the work she did on Trump-related issues.

Durham had Deborah Fine testify because, as one of the Hillary Campaign’s Deputy General Counsels, she was the only person associated with the campaign — aside from Marc Elias — who regularly met with Fusion GPS. Durham made her testify even though she knew nothing about research relating to Alfa Bank and didn’t remember any conversations about Trump and Russia. Instead, Fine testified, her interaction with Fusion pertained to lawsuits filed against Trump, his company, and his family that Fusion helped to research.

Durham used every method at his disposal — including getting Judge Christopher Cooper to override the Hillary campaign’s claim of privilege over some Fusion emails — to unpack any possible relationship that subjects of his investigation had with Christopher Steele.

Except Oleg Deripaska.

In fact, Durham did the opposite: he obscured the import of Deripaska’s ties to Steele.

In his report, Durham asserted, as fact, something that had only been implied before: Oleg Deripaska paid Steele in spring 2016 to collect information on Paul Manafort.

When interviewed by the FBI in September 2017, Steele stated that his initial entree into U.S. election-related material dealt with Paul Manafort’s connections to Russian and Ukrainian oligarchs. In particular, Steele told the FBI that Manafort owed significant money to these oligarchs and several other Russians. 890 At this time, Steele was working for a different client, Russian oligarch Oleg Deripaska, often referred to as “Putin’s Oligarch” in media reporting, on a separate litigation-related issue. 891

In the same way that Paul Singer initiated the open source research into Trump done by Fusion GPS before the Democrats took it over, Oleg Deripaska — the person on whose behalf Russian intelligence obtained inside dirt, via Konstantin Kilimnik, from Trump’s campaign — initiated the HUMINT collection on Trump’s team, lasting at least until April 18, 2016, even after the Russian attack on Hillary Clinton had already started.

Oleg Deripaska started the dossier project and only later did the Democrats pick it up, unwitting to the fact that it was started by a guy who was busy playing a key role in Russia’s influence operation targeting Hillary’s campaign.

It’s bad enough that Durham didn’t pursue the tie between the dossier and Russia’s later efforts to obtain inside dirt from Trump’s campaign.

But when he described the evidence that Russia likely learned of Steele’s work for the DNC by July 2016, before Steele did virtually all but one of the substantive reports on Trump, Durham did so in a section almost 100 pages earlier than his description of Deripaska’s ties to Steele, and by adopting the moniker the DOJ IG Report used for Deripaska, “Oligarch 1,” he hid that the source of that knowledge was Deripaska himself.

As the record now reflects, at the time of the opening of Crossfire Hurricane, the FBI did not possess any intelligence showing that anyone associated with the Trump campaign was in contact with Russian intelligence officers at any point during the campaign. 251 Moreover, the now more complete record of facts relevant to the opening of Crossfire Hurricane is illuminating. Indeed, at the time Crossfire Hurricane was opened, the FBI (albeit not the Crossfire Hurricane investigators) was in possession of some of the Steele Reports. However, even if the Crossfire Hurricane investigators were in possession of the Steele Reports earlier, they would not have been aware of the fact that the Russians were cognizant of Steele’s election-related reporting. The SSCI Russia Report notes that”[s]ensitive reporting from June 2017 indicated that a [person affiliated] to Russian Oligarch 1 was [possibly aware] of Steele’s election investigation as of early July 20 l 6.” 252 Indeed, “an early June 2017 USIC report indicated that two persons affiliated with [Russian Intelligence Services] were aware of Steele’s election investigation in early July 2016.”253 Put more pointedly, Russian intelligence knew of Steele’s election investigation for the Clinton campaign by no later than early July 2016. Thus, as discussed in Section IV.D. l .a.3, Steele’s sources may have been compromised by the Russians at a time prior to the creation of the Steele Reports and throughout the FBI’s Crossfire Hurricane investigation.

Steele’s source network may have been compromised before the project started, Durham charged. But Durham hid the evidence that if it was compromised, it was compromised by the guy on whose behalf Trump’s campaign manager shared campaign information with Russian intelligence.

In fact, the DOJ IG Report, finished in December 2019 and from which Durham adopted that moniker, Oligarch 1, strongly suggests that Deripaska himself and his “known Russian Intelligence Services agent implementing influence operations on their behalf” sidekick, Konstantin Kilimnik, were the source of any disinformation in the dossier.

Durham did not pursue that evidence, at all, in his report. As I said, he never once mentioned Kilimnik.

He ignored Deripaska’s likely role in disinformation in 2016, even though he focused repeatedly on disinformation in his report. He complained, for example, that the FBI didn’t unpack any potential disinformation in the dossier before using it in the Carter Page FISA applications.

The failure to identify the primary sub-source early in the investigation’s pursuit of FISA authority prevented the FBI from properly examining the possibility that some or much of the non-open source information contained in Steele’s reporting was Russian disinformation (that wittingly or unwittingly was passed along to Steele), or that the reporting was otherwise not credible.

He suggested Danchenko’s unresolved counterintelligence investigation — and not Oleg Deripaska — was the source of potential disinformation.

Our review found no indication that the Crossfire Hurricane investigators ever attempted to resolve the prior Danchenko espionage matter before opening him as a paid CHS. Moreover, our investigation found no indication that the Crossfire Hurricane investigators disclosed the existence of Danchenko’s unresolved counterintelligence investigation to the Department attorneys who were responsible for drafting the FISA renewal applications targeting Carter Page. As a result, the FISC was never advised of information that very well may have affected the FISC’s view of Steele’s primary sub-source’s (and Steele’s) reliability and trustworthiness. Equally important is the fact that in not resolving Danchenko’s status vis-a-vis the Russian intelligence services, it appears the FBI never gave appropriate consideration to the possibility that the intelligence Danchenko was providing to Steele -which, again, according to Danchenko himself, made up a significant majority of the information in the Steele Dossier reports – was, in whole or in part, Russian disinformation.

He falsely used one answer Danchenko gave in his first meeting with the FBI to suggest that might be a source of disinformation.

Danchenko’s uncharged false statements to the FBI reflecting the fact that he never informed friends, associates, and/or sources that he worked for Orbis or Steele and that “you [the FBI] are the first people he’s told.” In fact, the evidence revealed that Danchenko on multiple occasions communicated and emailed with, among others, Dolan regarding his work for Steele and Orbis, thus potentially opening the door to the receipt and dissemination of Russian disinformation;

The claim was grossly dishonest, because at the same meeting, Danchenko described that Olga Galkina knew he worked in business intelligence, and also revealed how he asked Orbis for help setting up another of his sources with language instruction in the UK. Danchenko told the FBI enough, from his first interview, that gave them reason to think his sources might know for whom he reported. But Durham accused Danchenko of lying about it anyway, because he needed to blame Danchenko, and not Deripaska, for any disinformation in the dossier.

Durham even complained that Peter Strzok had not considered whether the original Australian report about George Papadopoulos could be disinformation. Maybe it’s the Australians’ fault, Durham suggests, not Deripaska’s!

Durham looked for disinformation in every source but the one place where — even by early in his investigation — the FBI already suspected it, in the guy who kicked off the dossier project in 2016, before the Democrats even got to it.

Durham’s treatment of Deripaska’s suspected role in disinformation in 2016 is all the more astounding given how quickly Durham dismissed the possibility that the foundation of his own investigation was disinformation.

Durham built his entire project on a source that the intelligence community warned him might be a fabrication, the Russian intelligence report claiming that Hillary had a plan to hold Trump accountable for his ties to Russia. Durham dismissed that warning in two short paragraphs.

As was declassified and made public previously, the purported Clinton Plan intelligence was derived from insight that “U.S. intelligence agencies obtained into Russian intelligence analysis.” 394 Given the origins of the Clinton Plan intelligence as the product of a foreign adversary, the Office was cognizant of the statement that DNI Ratcliffe made to Senate Judiciary Chairman Lindsey Graham in a September 29, 2020 letter: “The [intelligence community] does not know the accuracy of this allegation or the extent to which the Russian intelligence analysis may reflect exaggeration or fabrication.” 395

Recognizing this uncertainty, the Office nevertheless endeavored to investigate the bases for, and credibility of, this intelligence in order to assess its accuracy and its potential implications for the broader matters within our purview.

Remember: Durham made this report the cornerstone of his investigation starting around February 2020, three months after the DOJ IG Report, in December 2019, publicly gave reason to believe that Deripaska had been feeding the dossier with disinformation starting at least by July 2016, the month of this purported Russian intelligence report. Durham made this report the cornerstone of his investigation in spite of his confirmation that Deripaska initiated the dossier project in March 2016 and continued it until weeks before the Democrats took it over.

And Durham made this report the cornerstone of his investigation by fabricating a claim that even the Russians didn’t make about Hillary: that she wanted to promote a false narrative about Trump, rather than demonstrate all the true and damning Russian ties Trump had that Fusion had already fed to Franklin Foer by early July 2016.

Hillary Clinton had no incentive to pay a lot of money for false information — and nor did anyone need to fabricate Trump’s ties to Russia. Paying for false information predictably could — and did, and hasn’t stopped doing in the interim seven years — backfire stupendously. Plus, as I have shown, paying for false information demonstrably led to complacency about the possibility that the material stolen in the earlier hack would be used later in the campaign.

Hillary Clinton had no incentive to pay for disinformation! And Durham utterly fabricated the claim that she did!

But Oleg Deripaska would have an incentive to pay for disinformation.

Not only did that false information in the dossier send the FBI looking at Carter Page as Paul Manafort’s liaison with Russia instead of Konstantin Kilimnik — who then waltzed into a cigar bar in New York to hear how Trump planned to win Pennsylvania. Not only did the false information in the dossier lead the FBI to spend valuable time vetting the dossier rather than pursuing the hundreds of real ties Trump had to Russia.

But the false information in the dossier — and the way that Trump, in the wake of a January 2017 Manafort meeting with another Deripaska associate, attacked the dossier as a way to discredit the larger Russian investigation —  undermined the investigation and ultimately did untold damage to the FBI.

The false information in the dossier has been one of the most singular sources of partisan antagonism in the United States ever since. It has ripped the country apart. One right wing influencer even blamed the dossier for the January 6 attack on the Capitol.

Hillary Clinton had no incentive to pay for that. But Oleg Deripaska did.

And rather than laying out Deripaska’s likely role in the disinformation in the dossier, the known disinformation behind claims about Trump, Durham simply invented a claim that after such time as Deripaska had kicked off the dossier project and the Democrats picked it up, after such time as Deripaska knew that Democrats were funding the dossier, Hillary decided to make up false claims about Trump.

Rather than honestly laying out the public evidence that Deripaska was playing a ruthless double game — using Steele to make Manafort legally and financially less secure while using Manafort’s insecurity to win his cooperation with the influence operation — Durham did the one thing that could continue the wild success of Deripaska’s disinformation project: Blame Hillary for the disinformation, rather than Deripaska himself.

I don’t know whether Durham wittingly decided he was going to play Oleg Deripaska’s flunkie from inside the federal government (to say nothing of Alfa Bank, with whose investigation Durham shared a script). But everything he did with his investigation, every misrepresentation he makes in his report, all the human carnage Durham has done since, simply continues the disinformation project Deripaska kicked off seven years ago.

And that’s why his singular lack of curiosity about Deripaska’s ties to Steele is so telling.

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How Jonathan Swan Covered [Up] John Durham’s Corruption

Something funny happened yesterday.

Full-time Trump-whisperer Maggie Haberman, Trump-whisperer Jonathan Swan, and DOJ reporter Charlie Savage wrote a story responding to Trump’s promise to appoint prosecutors to investigate Joe Biden and his family just like Biden’s own DOJ has done (which they note). They described that if Trump won a second term, he would “appoint an ally who would bring charges against his political enemies regardless of the facts,” then described how Jeffrey Clark and Russell Vought were already working on the plan.

Mr. Trump appeared to be promising his supporters that he would appoint an ally who would bring charges against his political enemies regardless of the facts.

[snip]

Mr. Clark and Mr. Vought are promoting a legal rationale that would fundamentally change the way presidents interact with the Justice Department. They argue that U.S. presidents should not keep federal law enforcement at arm’s length but instead should treat the Justice Department no differently than any other cabinet agency. They are condemning Mr. Biden and Democrats for what they claim is the politicization of the justice system, but at the same time pushing an intellectual framework that a future Republican president might use to justify directing individual law enforcement investigations.

They make no mention of the cases on which Bill Barr attempted to do just that — bring charges against Trump’s political enemies regardless of the facts: Greg Craig, Jim Comey, Andrew McCabe, John Kerry, among others (though Savage has covered them).

The only mention of Barr’s unprecedented past success at politicizing DOJ includes an important error.

Under Mr. Barr, the Justice Department overruled career prosecutors’ recommendations on the length of a sentence for Mr. Trump’s longest-serving political adviser, Roger J. Stone Jr., and shut down a case against Mr. Trump’s first national security adviser, Michael Flynn, who had already pleaded guilty. Both cases stemmed from the Russia investigation.

Barr’s DOJ did not succeed at shutting down Mike Flynn’s prosecution, in which a sentencing memo, approved by Barr’s DOJ, had already been submitted by the time Barr commenced his efforts. Emmet Sullivan was still deciding whether to grant DOJ’s request to throw out Flynn’s guilty plea when Trump pardoned Flynn; and when Sullivan finally did dismiss the case, he reaffirmed Flynn’s guilty verdict.

NYT’s silence about how Trump really overturned Flynn’s conviction, a pardon, carries over generally. These journalists join Kaitlin Collins in warning of future Trump corruption without bothering to catalog or hold Trump accountable for his past unprecedented corruption, the pardons he used to reward those who lied about what really happened with Russia in 2016. That’s the opposite of accountability journalism, warning of future corruption while remaining silent about the similar corruption that already happened.

But the weirdest thing, coming as it does from a team including both Swan and Savage, is that NYT made no mention of the Durham investigation, in which a Special Counsel appointed under Trump literally did, “bring charges against [Trump’s] political enemies regardless of the facts.”

The silence from Savage is unfortunate given that he has done such important work laying out how that’s what Durham did.

Swan’s silence is more inexcusable.

That’s because — as I documented in real time — Swan was absolutely central in disseminating Durham’s unsubstantiated insinuation that a “Clinton/Dem operative” (Durham’s claim itself relied on exaggeration) was behind the pee tape.

Swan’s judgement, a neutral journalist not just magnifying and repeating Devlin Barrett’s shitty reporting on the Igor Danchenko indictment (Barrett said charges, plural, were tied to Charles Dolan and falsely claimed that Durham had alleged Dolan was the source for the dossier, “rather than well-connected Russians”), but adding his judgment that it “doesn’t get much worse,” went viral, accepted as fact.

I pointed that out, with a hot link to his earlier Tweet.

Swan responded. He ignored the clear factual error about Flynn and the point about pardons, but he conceded that his Tweet “is inaccurate.”

So he deleted it, with only this Tweet recording that he did so and no apology to the two innocent men, Charles Dolan and Igor Danchenko, he falsely accused and — with his viral tweet and his considerable credibility as a journalist — led others to falsely accuse, having done so because of the deliberately misleading way Durham had presented his charges against Danchenko.

Most curiously, Swan explained that he, “never covered Durham.”

It’s absolutely true that he never laid out how Durham, a Special Counsel Trump demanded and got, brought “charges against his political enemies regardless of the facts,” as Savage has. Swan never even, as Barrett did, reported on an indictment and misleadingly claimed uncharged allegations in it were charged conduct. Swan wasn’t the experienced DOJ reporter who first fell for Durham’s affirmatively misleading charging document, Barrett was.

But as a journalist, Swan disseminated Durham’s unsubstantiated, uncharged claims, exacerbated by Barrett’s shitty reporting, and people took his report as true. Swan played a key role in leading the public to believe that a prosecutor who charged Danchenko for making a literally true statement to the FBI about his contact with Dolan had instead found something so bad that, “it doesn’t get much worse.”

Perhaps his role was unwitting. But Swan played a key role in helping Durham to make and lead the public to believe in false claims, “regardless of the facts,” precisely the topic that Swan and his colleagues suggest is just a prospective threat from Trump.

And much of the public still believes Durham’s false claims, in (small) part because of Swan’s own actions.

John Durham is going to go before Congress next week and be asked to explain and repeat demonstrably false claims — outright fabrications, in some cases — that he made in his report. Durham will likely renew his claims, made in his report, that Michael Sussmann and Igor Danchenko lied, even though two juries told him that he made those accusations, “regardless of the facts.”

And Swan, who generously describes that, “the pee tape rumors didn’t bear out,” rather than that a prosecutor made the claim “regardless of the facts,” Swan, who believes the topic of prosecutors who make false claims “regardless of the facts” is a topic worth reporting, thinks that deleting evidence of his own role in disseminating such false claims is sufficient, even as Durham continues to do Trump’s bidding of making false claims in real time.

John Durham is precisely the threat that Haberman and Swan and Savage warned about prospectively, but Swan, having played a role in leading the public to believe Durham’s false claims “regardless of the facts,” thinks that merely deleting the evidence that that’s what Durham has done is sufficient.

If the threat of prosecutors charging Trump’s enemies “regardless of the facts” is worth reporting, than Durham’s ongoing corruption must be covered, not covered up.

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Republicans Demanded Independence for John Durham and Got Robert Hur and Jack Smith in the Bargain

Even before Trump’s Espionage Act indictment was made public, Trump was attempting to politicize his stolen documents prosecution by demanding — via a Truth Social post— a meeting with Merrick Garland, who is not overseeing the case. Virtually every journalist fell for Trump’s bait, reporting the demand without noting that Jack Smith is the prosecutor overseeing the investigation into Trump, not Merrick Garland.

Garland rightly refused the meeting.

Since then, paid propagandists have been chanting out “Joe Biden Merrick Garland Joe Biden Merrick Garland” talking points like wind-up toys, because repetition is how you get low-information Trump supporters and members of Congress to believe false claims.

This strand of propaganda has worked. The other day, WSJ’s Sadie Gurman, after reviewing how assiduously Merrick Garland remained out of the process, stated as fact that this is a political prosecution.

When a grand jury returned the first-ever federal indictment of a former president last week, Attorney General Merrick Garland made a point of suggesting he was nowhere near the team handling the case.

He strolled into Justice Department headquarters in downtown Washington with his deputy late Thursday afternoon amid intense speculation about charges against Donald Trump and told a Wall Street Journal reporter he had been out getting a Covid vaccine.

[snip]

In keeping with that philosophy, Garland kept details of the indictment and its timing secret from Biden, who said Friday, “I have not spoken to him at all, and I am not going to speak with him.”

The attorney general also declined to meet with Trump’s lawyers, who requested a sit-down in the days leading up to the indictment, leaving the gathering instead to Smith and other Justice Department officials.

[snip]

Yet Garland now presides over what may be the highest-profile political prosecution ever, which is certain to be a prominent factor in the 2024 election. [my emphasis]

Gurman also suggested that Garland somehow engaged in politics by letting Jack Smith unseal the indictment that was sealed to protect security, not to let Trump sow violence in a vacuum.

But Garland didn’t object to prosecutors asking a court to unseal the indictment on Friday, well before Trump’s Tuesday arraignment when it would normally be made public, a person familiar with the matter said.

Finally, Gurman immediately — and, possibly, falsely — suggested that Garland “faces a call” on whether DOJ should charge Hunter Biden.

Adding to the political overtones, Garland also faces a call on whether the Justice Department should file charges against Biden’s son, Hunter, who is under investigation related to his taxes and whether he made a false statement in connection with a gun purchase. Hunter Biden has said he acted legally and appropriately.

Garland only faces a call if he has to approve an indictment. If David Weiss chooses not to prosecute, Garland is not going to override the Trump-appointed US Attorney who has been retained to make this decision himself.

Since yesterday’s arraignment, the false claim that Joe Biden and Merrick Garland have pursued the prosecution of Biden’s rival has gotten crazier still, especially on Murdoch properties other than the one where Gurman invented a political prosecution where there is none. As Trump wailed about his plight at his club yesterday, for example, Fox’s chyron accused Biden of being a “wannabe dictator” because a process entirely insulated from Biden resulted in Trump’s arrest. (Natasha Korecki posted this screen cap.)

There’s something especially noxious about the degree to which actual journalists like Gurman are parroting this line (Jamison Fraser notes a similar example in polling coverage).

Donald Trump is being treated no differently than Biden himself, to say nothing of the targets of John Durham’s abusive four year investigation.

Consider how absurd it is that Trump, lashing out, promised to appoint “a real special ‘prosecutor'” to go after Biden and “the entire Biden crime family.”

The Biden Administration already did that, Bucko!!! It currently has two Trump appointed prosecutors, David Weiss and Robert Hur, conducting investigations into Biden’s son and Biden himself. You’re so inadequate you can’t even out-prosecute Biden than Biden himself is already doing!

Yet, in response to this tweet, almost no journalists noted that Joe Biden’s Administration already did that — retain or appoint two separate Trump-appointed prosecutors to investigate Biden himself.

And that’s a hint of what is affirmatively missing from the coverage of real journalists like Gurman.

It’s that Republicans, and Trump himself, have demanded what they’ve gotten with Merrick Garland’s distance from Jack Smith’s prosecution. Republicans, and Trump himself, have repeatedly demanded that Garland stay out of Weiss’ investigation. They even wailed that Biden was being treated specially after the discovery of classified documents at the Penn Biden Center, until it became clear a preliminary Special Counsel had been appointed within days, in Biden’s case, not months.

Most importantly, none of these Republicans wailing about Garland’s distance from the Jack Smith investigations (wailing because it demonstrates their claims that this is a political prosecution to be obvious bullshit) complained at all after John Durham used the independence Garland afforded him to engage in one after another instance of shocking prosecutorial abuse.

Republicans, and Trump himself, did not complain that Durham investigated for four years even though no crime predicated his investigation (a far worse abuse than Durham’s complaint that Crossfire Hurricane was opened as a Full rather than Preliminary investigation).

Republicans, and Trump himself, did not complain that Durham threatened witnesses and lawyers (and lawyers complained to Merrick Garland in real time; they didn’t wait until a target letter went out to try to excuse their own counterproductive legal advice).

Republicans, and Trump himself, did not complain that in both trials, first his lead prosecutor and then Durham himself, were caught scripting improbable or affirmatively misleading testimony from witnesses.

Republicans, and Trump himself, did not complain that Durham charged Michael Sussmann for coordinating with Hillary’s top staffers months before interviewing any of those staffers and discovering it wasn’t true.

Republicans, and Trump himself, did not complain that Durham charged Igor Danchenko relying, in significant part, on the rants Sergei Millian made on his Twitter feed, only to discover, months later, that Millian was unwilling to repeat the same claims at trial under oath.

Republicans, and Trump himself, did not complain that Durham prosecuted a man for making a literally true statement to the FBI.

Republicans, and Trump himself, did not complain when John Durham accused Sussmann and Danchenko anew of lying to the FBI after two juries told him he couldn’t prove that claim.

Republicans, and Trump himself, did not complain that John Durham fabricated a claim that even the Russians didn’t make against Hillary and used it as his excuse to continue his investigation for three more years.

Republicans, and Trump himself, did not complain when John Durham affirmatively misrepresented the YotaPhone white paper; instead, Trump used Durham’s misrepresentation to justify making death threats against Michael Sussmann.

Republicans, and Trump himself, knew how much independence Merrick Garland was giving Jack Smith, because Durham told them that he committed all that abuse and yet Garland let him continue unimpeded.

Finally, we want to thank you and your Office for permitting our inquiry to proceed independently and without interference as you assured the members of the Senate Judiciary Committee would be the case during your confirmation hearings to become Attorney General of the United States.

And long after it was clear that Garland had given Durham precisely the independence that Republicans, and Trump himself, had demanded, Trump is the one who forced the appointment of a Special Counsel by announcing his run six months ahead of his competitors. Trump took steps that led to someone completely independent investigating his suspected crimes, not Joe Biden, not Merrick Garland. And now he’s trying to pretend that he himself didn’t ensure someone independent would investigate his suspected crimes.

Jack Smith has been living by the rules Republicans demanded, and got, for John Durham.

I don’t expect Trump to care that Jack Smith has been operating under the same rules of independence that Garland gave Durham. Trump needs to claim this is political, to provide his boosters — and probably his own fragile ego — some explanation for this indictment other than that a grand jury of South Floridians determined there was probable cause he committed an unprecedented crime that made this country less safe. I expect Mike Davis to continue reeling out his knowingly false claims, Joe Biden Merrick Garland Joe Biden Merrick Garland. It’s what he is paid to do.

But journalists like Sadie Gurman should know better. Journalists like Sadie Gurman, after presenting proof that Jack Smith is operating with the same independence that John Durham did, owe their readers a description of what it means that this investigation has operated with independence. Journalists like Sadie Gurman should not be drawn in by attempts to delegitimize a prosecution only because Trump belatedly wants to change the rules he himself demanded.

Update: I’ve updated my stolen documents investigation resource page, with key documents, a bit of a timeline, all our posts on the case, plus other useful links (including to dockets of other 18 USC 793 cases).

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Jack Smith Knows his Justice Robert Jackson

Justice Robert H. Jackson, lead US prosecutor at Nuremberg

Much is being made, rightly, of the current historical moment: a former US president has been indicted in federal court. Trump and his supporters are trying to position this investigation and indictment as political revenge. Sadly for them, Special Counsel Jack Smith appears to understand the best lessons to come out of the Nuremberg Trials of Nazi leadership after World War II.

The US legal delegation at Nuremberg was led by US Supreme Court Justice Robert Jackson. In his opening statement at the first trial, he acknowledged that the victors in the war were in charge of the trial.

Unfortunately, the nature of these crimes is such that both prosecution and judgment must be by victor nations over vanquished foes. The worldwide scope of the aggressions carried out by these men has left but few real neutrals. Either the victors must judge the vanquished or we must leave the defeated to judge themselves. After the first World War, we learned the futility of the latter course.

But how does a prosecution by the victors avoid being accused of running a kangaroo court? Again, from Justice Jackson:

We will not ask you to convict these men on the testimony of their foes. There is no count in the Indictment that cannot be proved by books and records. The Germans were always meticulous record keepers, and these defendants had their share of the Teutonic passion for thoroughness in putting things on paper. Nor were they without vanity. They arranged frequently to be photographed in action. We will show you their own films. You will see their own conduct and hear their own voices as these defendants re-enact for you, from the screen, some of the events in the course of the conspiracy.

[UPDATE: I just found video of Jackson’s opening remarks. The “Unfortunately . . .” quote above is at the 10:15 mark, and “We will not ask you . . .” quote is at 12:55.]

As I read the indictment in the matter of the United States v. Donald J. Trump, Jackson’s words kept echoing in my head.

Books and records . . .

Vanity and photographs . . .

“You will see their own conduct and hear their own voices . . .”

What Marcy labeled (properly!) as “Hillary’s Revenge” is a collection of Trump’s own words, and Trump can be seen and heard saying them in numerous video clips all over the internet. The same is true of “Brennan’s Revenge”.

It should be no surprise to anyone that the Trump indictment echoes Justice Robert Jackson at Nuremberg. Before he was named as the Special Counsel in this matter, Jack Smith had spent several years working at the International Criminal Court at the Hague. From his wiki:

From 2008 to 2010, Smith worked as Investigation Coordinator for the Office of the Prosecutor of the International Criminal Court in The Hague.[11][10] In that position, he oversaw cases against government officials and militia members accused of war crimes and genocide.[3][9] 

[snip]

On May 7, 2018, Smith was named to a four-year term as chief prosecutor for the Kosovo Specialist Chambers in The Hague, investigating war crimes committed in the Kosovo War,[8][9][13] including the case of Salih Mustafa.[16] He took up the post on September 11, 2018, and was appointed to a second term on May 8, 2022.[8]

You don’t hold positions like these without studying the Nuremberg Trials and learning their lessons.

In Jackson’s opening speech to the Nuremberg Tribunal, at the end of his introductory remarks and before he pivots into the specific discussion of the case at hand, he offered these words to the Tribunal:

The case as presented by the United States will be concerned with the brains and authority back of all the crimes. These defendants were men of a station and rank which does not soil its own hands with blood. They were men who knew how to use lesser folk as tools. We want to reach the planners and designers, the inciters and leaders without whose evil architecture the world would not have been for so long scourged with the violence and lawlessness, and wracked with the agonies and convulsions, of this terrible war.

“Men of station and rank . . .”

“men who knew how to use lesser folk as tools . . .”

“reach the planners and designers, inciters and leaders . . .”

Marcy called the Trump indictment a “tactical nuke” and she explored how it ramps up pressure on Walt Nauta to come clean. But more than that, I see it as Jack Smith channeling his inner Justice Jackson.

Yes, this is the DOJ of a political victor charging a political loser with serious crimes, but Smith learned from Jackson how that can be done with integrity. Yes, this is the first time a former US president has been charged with serious crimes, but Smith learned from Jackson that this must be done when circumstances warrant, or the nation and the world will pay a price for failing to seek justice.

Jack Smith knows his Justice Robert Jackson. Now he’s begun teaching Team Trump what’s he learned, and something tells me they aren’t going to like it at all.

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Hillary’s Revenge: Trump Promised Voters He Would Protect Classified Information

According to NBC news, Jack Smith prosecutor David Harbach, not Jay Bratt, was at the Miami courthouse on Thursday as a grand jury indicted the former President.

That was a surprise to me. While Harbach has post-DOJ ties to Jack Smith from the Hague, at DOJ, he was primarily a corruption prosecutor.

A seasoned trial lawyer, Harbach has tried more than 35 cases to verdict in federal and state courts. He has also conducted some of the nation’s highest profile public corruption trials, including cases against former U.S. Senator John Edwards and former Virginia Governor Robert F. McDonnell.

Harbach was an Assistant U.S. Attorney in the Southern District of New York from 2005 to 2010, and for four years beginning in 2015, Harbach was an Assistant U.S. Attorney in the Eastern District of Virginia. In 2016, he was appointed Managing Assistant U.S. Attorney and Criminal Supervisor of the Richmond Division office, overseeing 21 prosecutors.

From 2014 to 2015, Harbach served on detail as Special Counsel to FBI Director James Comey. Before his work with the FBI, Harbach served as a Trial Attorney in the DOJ Criminal Division’s Public Integrity Section, earning the Deputy Chief title after two years.

By all appearances, Smith had a corruption prosecutor present the Trump indictment to the jury, not DOJ’s head of counterintelligence Jay Bratt.

I didn’t even know Harbach was working this case! I thought he was working the January 6 case. I thought he was working on holding Trump accountable for defrauding a bunch of MAGA supporters, claiming they were paying for election integrity when instead it all went to paying staffers at his post-election office (including Walt Nauta).

Perhaps Bratt flew back to DC after attending the grand jury appearance for Taylor Budowich on Wednesday to deal with Stan Woodward’s accusations of ethical abuse. Perhaps Smith figured that, until that allegation is resolved, someone else should have their name on the official documents.

But Harbach’s apparent role in presenting the indictment is one of the things that made me look at two of my favorite passages differently. There’s this passage, which I call “Hillary’s Revenge.” It collects five of the instances in 2016 where Trump distinguished himself from Hillary Clinton by boasting of his purported concern for classified information.

22. As a candidate for President of the United States, TRUMP made the following public statements, among others, about classified information:

a. On August 18, 2016, TRUMP stated, “In my administration I’m going to enforce all laws concerning the protection of classified information. No one will be above the law.”

b. On September 6, 2016, TRUMP stated, “We also need to fight this battle by collecting intelligence and then protecting, protecting our classified secrets. . . . We can’t have someone in the Oval Office who doesn’t understand the meaning of the word confidential or classified.”

c. On September 7, 2016, TRUMP stated, “[O]ne of the first things we must do is to enforce all classification rules and to enforce all laws relating to the handling of classified information.”

d. On September 19, 2016, TRUMP stated, “We also need the best protection of classified information.”

e. On November 3, 2016, TRUMP stated, “Service members here in North Carolina have risked their lives to acquire classified intelligence to protect our country.”

Andrew Kaczynski put together all the instances of it.

In an Espionage Act indictment, this paragraph serves the function of demonstrating Trump’s awareness of the importance of classified information.

Then there’s this passage, which I call “Brennan’s Revenge.” It’s a statement that Trump issued to justify stripping John Brennan of his security clearance in 2018.

23. As President of the United States, on July 26, 2018, TRUMP issued the following statement about classified information:

As the head of the executive branch and Commander in Chief, I have a unique, Constitutional responsibility to protect the Nation’s classified information, including by controlling access to it. . . . More broadly, the issue of [a former executive branch official’s] security clearance raises larger questions about the practice of former officials maintaining access to our Nation’s most sensitive secrets long after their time in Government has ended. Such access is particularly inappropriate when former officials have transitioned into highly partisan positions and seek to use real or perceived access to sensitive information to validate their political attacks. Any access granted to our Nation’s secrets should be in furtherance of national, not personal, interests.

The circumstances around the statement are fascinating. Trump started publicly considering stripping security clearances after Rand Paul, fresh off a trip as a back channel to Putin, pitched it to Trump with two other unnamed people on July 23. Trump announced it on August 15, but then Brennan threatened to sue as obvious retaliation. The next year, NYT reported that Trump never did file the paperwork to strip the clearance.

Still, at least on first appearances, that background is not why this paragraph is in the indictment. Rather, it shows Trump’s awareness that you can’t take your privileged access to “our Nation’s secrets” with you after you leave.

But, presented by a public integrity prosecutor rather than a counterintelligence one, that last bit may prove to be the most important. Read that way, this paragraph is a declaration by the Commander in Chief that one cannot use classified information in furtherance of personal interests. That kind of declaration by the Commander in Chief has a certain kind of force.

And presented by a public integrity prosecutor rather than a counterintelligence one, the Hillary’s Revenge paragraph reads like someone engaged in fraud, getting elected on a promise he will use the office to protect classified information, only to use it, instead, to steal classified information.

Let me suggest the Mar-a-Lago indictment might actually be a public corruption indictment wrapped up inside an Espionage Act indictment.

To be sure: there’s little discussion in this indictment of why Trump stole these documents. Significantly, what is in there happened as uncharged conduct in Bedminster. There’s the meeting at which Trump used a stolen Iran document to badmouth Mark Milley.

34. Upon greeting the writer, publisher, and his two staff members, TRUMP stated, “Look what I found, this was [the Senior Military Official’s] plan of attack, read it and just show . . . it’s interesting.” Later in the interview, TRUMP engaged in the following exchange:

TRUMP: Well, with [the Senior Military Official]—uh, let me see that, I’ll show you an example. He said that I wanted to attack [Country A]. Isn’t it amazing? I have a big pile of papers, this thing just came up. Look. This was him. They presented me this—this is off the record, but—they presented me this. This was him. This was the Defense Department and him.

WRITER: Wow.

TRUMP: We looked at some. This was him. This wasn’t done by me, this was him. All sorts of stuff—pages long, look.

STAFFER: Mm.

TRUMP: Wait a minute, let’s see here.

STAFFER: [Laughter] Yeah.

TRUMP: I just found, isn’t that amazing? This totally wins my case, you know.

STAFFER: Mm-hm.

TRUMP: Except it is like, highly confidential.

STAFFER: Yeah. [Laughter]

TRUMP: Secret. This is secret information. Look, look at this. You attack, and—

Robert Costa had a really fascinating thread on the background to this, a description of an ongoing obsession with Milley.

This is precisely the kind of conduct of which Trump accused Brennan, the use of secrets he learned while he had access to secrets to suggest (falsely in this case) to have dirt on one of his political adversaries.

Then there’s the instance where Trump showed one of his PAC representatives a classified map and claimed that some ongoing conflict was not going very well, presumably to suggest that Joe Biden wasn’t doing as well as Trump had.

In August or September 2021, when he was no longer president, TRUMP met in his office at The Bedminster Club with a representative of his political action committee (the “PAC Representative”). During the meeting, TRUMP commented that an ongoing military operation in Country B was not going well. TRUMP showed the PAC Representative a classified map of Country B and told the PAC Representative that he should not be showing the map to the PAC Representative and to not get too close. The PAC Representative did not have a security clearance or any need-to-know classified information about the military operation.

Still, all the conduct describing Trump putting classified information to personal use happened in Bedminster, where two sets of classified documents went, never to be seen again.

Indeed, that’s one part of the existing indictment that surprised me: I had expected Smith would charge the document showing that Trump compiled one confidential and one secret document into a larger one including messages from a pollster, a faith leader, and a book author. The FBI found that document in a drawer in Trump’s desk at Mar-a-Lago.

I similarly expected Smith might charge the Presidential schedules that Chamberlain Harris loaded onto her laptop. Again, another instance of documents that were comparatively less sensitive, which Trump put to use for his PAC.

But maybe all this will show up in some other place. After all, one of the last things that Jay Bratt did before indicting was that Budowich interview, in which the head of Trump’s current PAC described the foreknowledge that he and others had early last year that Trump wasn’t turning over all the documents.

I proposed that this indictment might be understood as a public integrity indictment wrapped up inside an Espionage Act indictment.

But I don’t rule out we’ll see an Espionage Act indictment wrapped up inside a public integrity indictment.

Update: Over on Twitter, Yale HillBillionaire JD Vance points out why it is so important for a political candidate to be honest about whether they intend to uphold classification or intend to steal documents in bulk. I’m really grateful that Vance has laid out why Trump engaged in fraud here.

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