DOJ Treated Jerome Corsi as News Media but Not Roger Stone or Randy Credico (or Julian Assange)

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Yesterday, DOJ released both an updated list of times when its media guidelines came into play (here are the 2016, 2017, and 2018 reports), as well as a summary of DOJ’s attempts to get records related to CNN, NYT, and WaPo reporting.

The former has raised some questions about how Mueller’s investigation applied these rules (as a reminder, my interview with the FBI was not with Mueller, though based on a month-long approval process I know to have occurred, I believe there is an entry in the 2017 report that pertains to me).

They’re easier to understand if you work through the second one, for legal process in 2019, first.

In the prosecution of an individual charged with obstructing the investigation into Russian interference in the 2016 presidential election, a United States Attorney authorized the issuance of a subpoena to a member of the news media for testimony. The member of the news media expressly agreed to testify pursuant to the subpoena. Because the member of the news media expressly agreed to testify, Attorney General authorization was not required. See 28 C.F.R. § 50.10(c)(3)(i)(A). The prosecution team did not call the member of the news media at trial.

There was just one trial of anyone for obstructing the investigation into Russian interference in 2016. George Papadopoulos, Mike Flynn, Michael Cohen, and Richard Pinedo never went to trial (nor did Alex Van der Zwaan, though his obstruction covered earlier events). Paul Manafort did go to trial for his tax cheating, but not for interfering with the Russian investigation (his plea breach hearing, which did pertain to lies he told to cover up his role in the Russian interference, was not a trial).

That means this has to be a reference to Roger Stone’s trial.

Two witnesses are known to have been subpoenaed, but not called to testify: Andrew Miller and Jerome Corsi. Randy Credico, a radio personality, testified at great length, including about how he booked Julian Assange and Roger Stone to appear on his radio show.

That’s not enough to prove that the reference is to Corsi (in part because there could have been other witnesses who were subpoenaed but not called to testify that we don’t know about). But now consider the second reference to the Mueller investigation, for something that happened in 2018.

In connection with an investigation into an alleged conspiracy involving persons or entities associated with a foreign government hacking the computers of a United States political party’s central organization, the Deputy Attorney General, acting as Attorney General, authorized the issuance of a grand jury subpoena duces tecum for the production of toll records from a cellular service provider for a telephone used by a member of the news media suspected of participating the conspiracy, as well as an application for a search warrant to search the member of the news media’s internet cloud and email accounts. Following the initial authorization, the Deputy Attorney General, acting as Attorney General, later authorized a voluntary interview of, and the issuance of a testimonial grand jury subpoena to, the member of the news media. All of this information was necessary to further the investigation of whether the member of the news media was involved in the conspiracy to unlawfully obtain and utilize the information from the hacked political party or other victims.

This is a description of someone investigated as a suspect.

While Mueller reviewed whether Don Jr violated the CFAA for accessing a non-public website he got sent a password to, the investigation into whether someone was part of the hack-and-leak conspiracy focused on Roger Stone (and Julian Assange, who does not obviously show up anywhere in this report, even though Mueller obtained a warrant targeting him as well). Two people were known to have been investigated as fellow suspects of Stone: Corsi and Ted Malloch. Mueller’s team obtained warrants and subpoenas targeting both. In Malloch’s case, however, the government is only known to have obtained his phone and his Gmail.

In Corsi’s case, however, Mueller targeted his Apple accounts, as well as email accounts held at CSC Holdings, and Windstream.

Mueller is not, however, known to have obtained a warrant targeting Credico.

If the government treated Corsi as a member of the news media in 2018, when they obtained warrants targeting him as a suspected co-conspirator of Roger Stone, then they likely treated him as a member of the news media in 2019, when they subpoenaed him — but did not call him — as a witness in Stone’s trial. That is, the available evidence strongly suggests that Corsi is the person described in both Mueller entries.

Which, in turn, suggests that DOJ treated Corsi — but not Stone or Credico — as members of the news media.

For what it’s worth, I’m virtually certain that there’s still a Mueller entry missing, pertaining to a member of the news media who asked for a subpoena before he would share materials relating to his work. That person has never been publicly referenced in Mueller-related investigative materials since released, but I believe 302s from the investigation reflect FBI having obtained the materials they were asking for from that member of the news media. But that incident would have fit under 28 CFR 50.10(c)(3)(i)(A), when a member of the news media agrees to provide information so long as he gets a subpoena, which under the media guidelines does not require Attorney General approval.

Update: There’s an important point that has been forgotten by these debates but which is implied in Merrick Garland’s statements about the media policy. There are other means to obtain records on people playing a journalistic function: under FISA, by providing probable cause that they are an agent of a foreign power.

The End Of Roe v. Wade

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Is the title of this post alarmist? No, not really. That is effectively what the new Texas law has done, and has now been fulsomely endorsed by the Supreme Court, without even the courtesy of full briefing, oral argument and a merits decision. It was known this was coming when SCOTUS let this bunk take effect yesterday morning without action, it was just a question of what the backroom dynamics were in that regard. Now we know.

Here is the “decision”. As anti-climatic as it is, it is important. This is decision on a law, and the words count.

It is madness upon not just in Texas, but the entire country. These earth shattering decisions used to come only after full briefing and argument. No longer, now the shadow path is supreme.

Agree with Mark Joseph Stern in Slate when he says this:

At midnight on Wednesday, in an unsigned, 5–4 decision, the Supreme Court effectively overturned Roe v. Wade. The five most conservative Republican-appointed justices refused to block Texas’ abortion ban, which allows anyone to sue any individual who “aids or abets” an abortion after six weeks, when the vast majority occur. There is no exception for rape or incest. The decision renders almost all abortions in Texas illegal for the first time since 1973. Although the majority did not say these words exactly, the upshot of Wednesday’s decision is undeniable: The Supreme Court has abandoned the constitutional right to abortion. Roe is no longer good law.

Texas’ ban, known as SB 8, constitutes a uniquely insidious workaround to Roe. It outlaws abortion after six weeks, but does not call on state officials to enforce its restrictions.
Instead, as Justice Sonia Sotomayor wrote in dissent, the law “deputized the state’s citizens as bounty hunters, offering them cash prizes for civilly prosecuting their neighbors’ medical procedures.” Random strangers can sue any “abettor” to an abortion anywhere in Texas and collect a minimum of $10,000, plus attorneys’ fees. The act’s language is incredibly broad, encompassing any friend, family member, clergy member, or counselor who facilitates the abortion in any way. Every employee of an abortion clinic, from front-desk staff to doctors, is liable as well. And when an individual successfully sues an abortion provider, the court must permanently shut it down.

What other questions does this action, really inaction, by SCOTUS generate? A lot. Peterr asked this elsewhere:

Next up, perhaps, in the Texas legislature, now that SCOTUS has affirmed (5-4) their new approach to enforcement of state laws . . .

Texas declares that black and hispanic people shall not be allowed to vote, and delegates enforcement to any citizen, allowing them to sue for at least $10,000 if they can prove a black or hispanic person voted.

Texas declares that marriage is reserved to one man and one woman, and delegates enforcement to any citizen, allowing them to sue any same-sex couple who presents themselves in any form or fashion as “married” for at least $25,000 . . .

etc. etc. etc.

Again, not hyperbole. For now though, it is crystal clear that Roe is gone. There will be different laws in different states, at best. That is it.

What happens when states like Texas/their citizen plaintiffs start trying to enforce their craven law as to conduct occurring in other states? I don’t know, but that is the next horizon.

At any rate, this is going to be a problem for a very long time. If SCOTUS will do this though, given their clear previous precedent contrary to today’s order, means you can kiss voting rights cases goodbye.

It is a not so brave, nor honorable, new Supreme Court world.

John Durham Won’t Charge Any of Trump’s Favorite Villains

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On Friday, WSJ had an article that might have been titled, “John Durham won’t charge any of Donald Trump’s favorite villains.” It reported that Durham is still considering charges against people outside of government and “lower-level FBI employees.”

Mr. Durham has been examining potential criminal charges against several lower-level Federal Bureau of Investigation employees, and people who aren’t in government, according to people familiar with the matter.

But it doesn’t note that, even if Durham does charge those involved in the dossier, it will still mean that many of Trump’s claims about the Russian investigation were investigated for longer than Mueller took, only to fall short of the crimes Trump claimed had happened.

Jim Comey was the FBI Director, not a low-level employee. In spite of Durham’s effort to prove that Comey leaked details of Trump’s efforts to protect Mike Flynn to get a Special Counsel appointed, if Durham is contemplating charges only against “lower-level” FBI employees, he has not found proof that Comey broke the law.

Andrew McCabe was the FBI Deputy Director, not a low-level employee. In spite of Durham’s apparent effort to insinuate that McCabe micromanaged the Russian investigation, pushing investigative steps FBI Agents didn’t support, if Durham is contemplating charges only against “lower-level” FBI employees, he has not found proof that McCabe broke the law.

Bill Priestap was the Assistant Director for Counterintelligence, not a low-level employee. In spite of Durham’s effort to interpret Priestap’s notes as proof that the FBI set up Mike Flynn, if Durham is contemplating charges only against “lower-level” FBI employees, he has not found proof that Priestap broke the law.

Peter Strzok was the Deputy Assistant Director when he opened Crossfire Hurricane, not a low-level employee. In spite of Durham’s extended efforts to suggest that Strzok sustained an investigation into Donald Trump out of some kind of animus or perhaps compensation for his role in Hillary Clinton’s defeat, in spite of Durham’s seeming efforts to suggest that Strzok pushed others to obtain legal process he refused to approve earlier in the investigation, if Durham is contemplating charges only against “lower-level” FBI employees, he has not found proof that Strzok broke the law.

Lisa Page was the Counselor to the Deputy Director, not a low-level employee. In spite of Durham’s efforts to suggest Page had some role in the investigation that DOJ IG already said she didn’t, if Durham is contemplating charges only against “lower-level” FBI employees, he has not found proof that Lisa Page broke the law.

Durham has interviewed few if any of these senior people, who’ve been targeted for years. Without even hearing their side, apparently, Durham has decided they’re not the villains Trump made them out to be.

But Trump’s chief villains aren’t the only targets that — if this report is correct — will not be charged.

The WSJ notes that Durham won’t charge anyone for concluding that Russia not only wanted to defeat Hillary, but affirmatively wanted Trump in power.

Beyond the role of outside tipsters, Mr. Durham’s investigation examined how the FBI first came to open the investigation, as well as a separate 2017 U.S. intelligence report that concluded Moscow interfered in the presidential election in part to help then-candidate Trump.

Mr. Durham’s team isn’t expected to bring any criminal charges in connection with that intelligence assessment, some of the people said.

So John Brennan won’t be getting charged either, in spite of calls for that to happen.

Then there are all the other hoaxes Republicans invented: Durham will not charge anyone for spying on Trump before the opening of the investigation, because it didn’t happen. Durham will not charge the FBI or CIA for setting Joseph Mifsud up to entrap George Papadopoulos, because it didn’t happen.

In spite of the seeming confirmation that four years of insinuations about these people were wrong, the right wing has responded to the seeming news that Peter Strzok won’t be charged with delight.

High Gaslighter Catherine Herridge posted the same partially unsealed footnote (footnote 350 discussed in this post) twice as well as a passage about what the FBI had learned by September 2017, three months after the last FISA order targeting Carter Page.

Jonathan Turley (who ignores the WSJ description that any FBI targets are low-level) claims that Durham’s current focus could “implicate some of the most powerful figures in politics” in his final report, while getting a slew of details (about Bruce and Nellie Ohr, especially) wrong.

The report in The Wall Street Journal said Durham is presenting evidence against FBI agents and possibly others in the use of false information or tips at the start of the Russia investigation in 2016. Those “others” could include a virtual who’s who of Washington politics, and even if they are not indicted, Durham could implicate some of the most powerful figures in politics in his final report, expected in the coming months.

[snip]

This cross-pollination between the campaign and the Justice Department was evident in the strange role of Bruce Ohr, a senior Justice official who was later demoted for concealing his meetings with people pushing the Steele dossier; his wife, Nellie Ohr, worked for Fusion GPS as a researcher on Trump’s purported connections to Russia. Justice Department Inspector General Michael Horowitz subsequently found that Bruce Ohr acted improperly and committed “consequential errors in judgment.”

[snip]

Durham also is reportedly looking into information concerning Alfa Bank, a privately owned commercial bank in Russia. That information led to possible access to the Trump campaign server. The Alfa Bank controversy is likely to make a number of powerful people particularly uneasy. Clinton campaign-linked figures such as Fusion GPS co-founder Glenn Simpson allegedly pushed the debunked claim that the Trump campaign had a server linked directly to the bank, which in turn was linked to Vladimir Putin and his cronies. The Alfa Bank conspiracy reportedly was pitched to the Justice Department, including in contacts with Bruce Ohr.

Glenn Greenwald, after spending years mocking the prosecutions of Trump’s Campaign and Deputy Campaign Manager, his personal lawyer, his National Security Advisor, a foreign policy advisor, and his rat-fucker — four for covering up what happened in 2016 — and after pushing the Hunter Biden laptop allegedly funneled to a different Trump personal lawyer who is currently being investigated for influence peddling with Russian assets — speaks gleefully of “already one guilty plea: seems like more criminal charges are coming.”

The pseudonymous TechnoFog[gy] highlights the claims of a Russian, Olga Galkina, who — if the dossier was indeed filled with disinformation (and I believe it was) — was the source for much of it, while complaining, in the same breath as they magnify Galkina’s claims, that Igor Danchenko might not be aware that those like Galkina who fed him garbage were doing so for Russian intelligence.

More and more, Durham appears to be chasing what an elaborate lawfare effort from the Alfa Bank oligarchs are throwing out. The effort, like the dossier itself, is transparently problematic, particularly given that FBI debunked it early. The dossier had little to do with the investigation of anyone but Carter Page; the Alfa Bank allegations were entirely a distraction from the investigation. If Durham wants to stake his report on that, it has the potential of making it an easily discredited piece of Russian propaganda.

A focus on the disinformation in the dossier and the way that some ways the Alfa Bank claim was packaged up has a real potential to backfire for Durham, because it can only shine a light on how Russia obfuscated its efforts to get Trump elected in 2016 with disinformation about efforts to get Trump elected.

The Available Evidence Says Merrick Garland *Is* Prosecuting Controversial Cases from Trump Years

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I’m waiting for the arraignment hearing for the Chair of the former President’s Inauguration Committee, which I thought would be a good time to respond to this Jennifer Rubin column that starts by discussing whether DOJ will rule that Mo Brooks’ actions related to the insurrection are his job (and therefore DOJ must substitute themselves for Brooks as a defendant); as Michael Stern laid out, that question is actually a complex one legally.

But Rubin goes from there, a civil lawsuit, to conclude that that Merrick Garland is “determined to sweep” Trump’s misconduct around January 6 “under the rug.” She goes from there to conclude that Garland is “refusing prosecution of controversial cases from the Trump years.”

We are not talking only about Trump’s actions on Jan. 6 or about possible misconduct (e.g., obstruction of justice, misleading courts) in the Justice Department that Garland seems determined to sweep under the rug. Trump’s attempts to strong-arm Michigan and Georgia election officials after he lost the 2020 election were not only a violation of his oath but also may have violated state and federal law prohibiting election fraud and manipulation.

In the case of Georgia, we have Trump on tape telling the secretary of state to “find” enough votes for him to win. What stronger indication of a serious election crime could possibly exist? So far the Justice Department seems to have left any investigation to the Fulton County prosecutor, who unsurprisingly has more pressing priorities. There is no legitimate reason for the feds’ refusal to investigate and, if warranted, prosecute Trump for conduct that no other president in history ever contemplated. If any other American’s participation in this set of facts would prompt a serious federal investigation, Garland must not exempt the former president. That is the meaning of “no one is above the law.”

Garland may think he is attempting to avoid politics by refusing prosecution of controversial cases stemming from the Trump years. If so, he has it backward. If the current president wants to pardon individuals from the previous administration for political reasons, that is his prerogative — not Garland’s. Especially when it comes to any post-election conduct abetting sedition and attempting to corrupt the ballot tabulation, we need an attorney general to aggressively pursue facts and bring actions against Trump and his supporters where warranted. If not, Garland would have inadvertently affirmed Trump’s argument that he was above the law.

As noted above, I’m on hold awaiting the arraignment for Tom Barrack, believed to be worth around a billion dollars and someone whose business ties to Trump go back four decades, on charges that he served as an agent (not a lobbyist!) for the United Arab Emirates to change the policy of the United States to benefit that country.

Now’s a good time to respond to this column, I guess, and all the hundreds like it, not least because it’s insane to say that Garland is refusing controversial prosecutions when he is prosecuting this one (and investigating Rudy Giuliani, in spite of serving as the former President’s lawyer while he was President).

Not only is the fact that this case is being prosecuted evidence that Garland is not shying away from such prosecutions, but it tells us two more things about any hypothetical controversial prosecutions.

First, even for a prosecution that was largely set to go over a year ago, those cases might not be charged — for whatever reason — yet, 137 days into Garland’s tenure. (It’s worth noting that grand juries have been backed up on account of COVID.) So it’s too early to say whether Garland is refusing to prosecute other controversial cases, in addition to this one, because for any such prosecution that wasn’t all wrapped up in a bow over a year ago, it might still take some investigative work.

Additionally, this case didn’t leak!! Unlike Billy Barr’s hyper-politicized DOJ, we’re not getting leaks about what’s coming via Sidney Powell or other Fox News talking heads.

So even if there were ten more similarly controversial prosecutions coming down the pike, we might not know about them. Which is how it’s supposed to be.

Both item one — prosecutions take time — and item two — with the exception of Michael Sherwin’s public support for sedition charges, in response to which Garland referred him to OPR for investigation, Garland’s DOJ is not leaking like a sieve — presumably also apply to any investigations involving Trump and those close to him that didn’t take place 4 years ago.

What I do know is that Garland has repeatedly told prosecutors to go wherever the evidence leads on January 6. What I also know is that the complex militia conspiracy cases most likely to lead in that direction (as well as the one defendant who was discussed by the President’s lawyer) are making progress, in the Oath Keeper case, at a faster clip than many of the other prosecutions. What I also know is that complex conspiracy cases take time, more than seven months.

I get that people have gripes about the decisions Garland made about sustaining the Barr DOJ’s position on civil cases. But you simply cannot draw conclusions from that about whether Garland is opposing certain prosecutions. The only evidence we have so far — in cases taking aggressive actions against the former President’s lawyer and the former President’s long-time friend — is that Garland is happy to let prosecutors pursue cases for which they have evidence.

Update: I want to add one more point because people seem to believe that unless Garland appoints a Special Counsel, there’s no way DOJ is investigating the controversial cases. That misunderstands why Special Counsels get appointed: not because cases are important, but because DOJ or a particular prosecutor has a conflict that must be managed in some other way. There’s no known conflict for any potential Trump investigations, so we shouldn’t expect a Special Counsel.

Update: Thanks to those who pointed out I had made Rudy Trump’s client instead of his lawyer.

Update: Because a bunch of people on Twitter appear to continue to believe the false claim that Garland declined Wilbur Ross’ prosecution for lying to Congress, I’m going to link to this post noting that the declination happened under Billy Barr and also noting that DOJ IG likely had their own investigation into the allegations the outcome of which is not yet public.

The Significance of Tom Barrack’s Obstruction and False Statements Charges

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I want to expand on something I said in this post about Tom Barrack’s charges: the obstruction and false statements charges against Trump’s big fundraiser make this case much more solid than many in the press (usually the same people claiming it’s a FARA case) are suggesting.

 In a June 20, 2019 interview with the FBI, the indictment alleges that Barrack lied about whether:

  1. Al Malik asked Barrack to do things for UAE
  2. Barrack downloaded an encrypted app to use to communicate with MbZ and other Emirati officials
  3. Barrack set up a meeting between MbZ and Trump and, generally, whether he had a role in facilitating communications between them
  4. He had a role in prepping MbZ for a September 2017 meeting with Trump

Curiously, the detention memo mentions two more lies that aren’t included in the indictment:

(1) writing a draft of a speech to be delivered by the Candidate in May 2016; (2) reviewing a PowerPoint presentation to be delivered to senior UAE officials on how to increase the UAE’s influence in the United States with his assistance;

In any case, this structure makes it easy to hold Barrack accountable at least via his lies to the FBI, and that he allegedly lied is powerful evidence that the full scope of the relationship was meant to be secret.

The headline charges are the foreign agent and conspiracy charges. But in addition to those charges, Barrack is also charged with obstruction and false statements. Most likely, if he were found guilty only on those charges, he’d face less time than from the foreign agent charge, but he’d still face prison.

Here’s what we know of the timeline: According to the Rashid Al Malik complaint, he was interviewed by the FBI on April 5, 2018. If the Intercept’s report that Mueller’s team conducted this interview is correct, this is likely his almost entirely redacted 302 (for an investigation that was ongoing in September 2020). Three days earlier, someone represented (as Barrack was) by Steptoe and Johnson had a pre-grand jury interview led by Zainab Ahmad that Andrew Weissmann joined while in progress. On April 8, three days after his own interview, Al Malik left the country and has been gone ever since.

In early 2019, Mueller’s team started handing off referrals, which may be why, in February 2019, the FBI sent subpoenas to Colony Capital.

In or about February 2019, Federal Bureau of Investigation (“FBI”) special agents served federal grand jury subpoenas on several individuals employed by or associated with Company A, including individuals that reported directly to the defendant THOMAS JOSEPH BARACK, in connection with the criminal investigation of the activities of the defendants RASHID SULTAN AL MALIK ALSHAHHI, BARRACK, and MATTHEW GRIMES.

Following the service of these federal grand jury subpoenas, the defendant THOMAS JOSEPH BARRACK volunteered to speak with FBI special agents. On or about June 20, 2019, FBI special agents interviewed BARRACK, in the presence of counsel, regarding the activities of the defendant RASHID SULTAN AL MALIK ALSHAHHI, BARRACK, and the defendant MATTHEW GRIMES. At the outset of the interview, United States government officials advised BARRACK, and confirmed that he understood, that lying to federal agents is a federal crime. Thereafter, during the course of the interview, BARRACK knowingly made numerous materially false statements relating to the activities of ALSHAHHI, BARRACK, and GRIMES.

At the time, of course, Barrack’s close ally was still President and Bill Barr was newly installed at the helm of DOJ, working hard to cover up the true results of the Mueller investigation and even beginning to take steps to protect Rudy Giuliani from his own foreign agent charges. Why wouldn’t Barrack lie?

Interestingly, the obstruction charge against Barrack suggests others were part of this.

On or about June 20, 2019, within the Eastern District of New York and elsewhere, the defendant THOMAS JOSEPH BARRACK, together with others, did knowingly, intentionally and corruptly obstruct, influence and impede, and attempt to obstruction, influence and impede, an official proceeding, to wit: a Federal Grand Jury.

In any case, Barrack is well-resourced and he’ll no doubt offer some solid defenses here, possibly including that he had earlier told the truth about some of this stuff, and so, any inaccuracies in his 2019 interview weren’t material.

But assuming the FBI didn’t charge a billionaire with false statements without having him dead to rights on the charges, by June 2019, the FBI foreclosed several of the defenses that Barrack might offer going forward: that he was doing all this as a legal commercial transaction (which is exempt from the foreign agent charges) or that he wasn’t really working for UAE, he just thought the alliance really served US interests and indulged the Emiratis by referring to MbZ as “boss.” By denying very basic things that the FBI appears to have records for, then, Barrack made it a lot harder to argue — in 2021 — that’s there’s an innocent explanation for all this.

Five days after Barrack’s interview, the FBI obtained an arrest warrant for Al Malik, one that made Al Malik look like the bad guy here, taking advantage of poor Tom Barrack and poor Paulie Manafort.

But then DOJ kept investigating Barrack’s role in all this. According to CNN, before this time last year, EDNY prosecutors believed they had enough to add Barrack to the charges, but the appointed US Attorney “expressed misgivings.”

Federal prosecutors in Brooklyn investigating Tom Barrack, a prominent ally to former President Donald Trump, for allegedly violating foreign lobbying laws had enough evidence to bring charges last year, but held off doing so until the arrival of the new presidential administration, according to people briefed on the matter.

Prosecutors wanted to move forward on the case and believed they could obtain an indictment, one source familiar with the matter said. The source said the investigation was mostly done well before the time period when prosecutors are discouraged from advancing politically sensitive matters ahead of an election.

But two sources tell CNN the US attorney in Brooklyn at the time, Richard Donoghue, expressed misgivings about the case. It’s unclear if he delayed the case outright or if prosecutors chose not to move forward at the time knowing the US attorney would not support it.

Then-Attorney General William Barr was also known inside the department to have reservations, in general, about foreign lobbying cases, which the Justice Department has struggled to prosecute in the past.

A spokesman for the Brooklyn US attorney’s office declined to comment. [my emphasis]

This is a hugely important report, but it also lets the Barr DOJ off easy. That’s true, first of all, because this is not a foreign lobbying case (this is one of the many reasons I harp on the import of getting the charge right here). DOJ hasn’t struggled to prosecute 951 cases, though at the time prosecutors deferred these charges, Barr was busy letting Mike Flynn blow up the Bijan Kian case, which included both FARA and 951 in the conspiracy charge, along with 951 separately, but which charged only Ekim Alptekin with false statements. Had Mike Flynn held to the terms of his plea agreement, that case likely would have been a far easier guilty verdict.

What happened last year, though, is that after EDNY prosecutors had continued to investigate for a year after discovering that Barrack was in no way the innocent victim of accused foreign agent Rashid Al Malik and were prepared to try to hold Barrack, as well, accountable for a pretty dramatic undisclosed role in setting a pro-UAE foreign policy, Richard Donoghue, faced with evidence that one of Trump’s closest advisors wasn’t telling the truth about why he was doing the things he was doing (or even, that he was doing them), “had misgivings.”

Or maybe he had misgivings about how Trump and Barr would respond if he approved this.

In fact, all this must have happened more than a year ago, because on July 10, 2020, Barr announced he was swapping Donoghue for Seth DuCharme, his DOJ fixer. This CNN report doesn’t explain why this didn’t get charged under DuCharme, but maybe that’s the point.

So Donoghue — or maybe DuCharme — left all the repercussions to US foreign policy of Barrack’s undisclosed actions earlier in the Trump Administration remain in place.

Frankly, it’s not surprising that Donoghue and DuCharme — who were, at the time, also in charge of limiting any damage to Rudy for his undisclosed influence-peddling — didn’t approve this prosecution. That’s their job.

What may be the most interesting detail is that whereas Lisa Monaco approved the raid on Rudy on her first day in office, this prosecution has taken three more months to charge.

This case will sink or swim on the strength of the false statements charges, because if Barrack’s alleged lies in June 2019 were clearcut, when he presumably believed he would be protected by Barr and Trump, then it makes several likely defenses a lot harder to pull off now. It’s possible there’s some complicating factor (again, I think it possible that he told the truth about some of these questions when interviewed by Mueller in December 2017). But if not, then the alleged lies become the building blocks to proving the Foreign Agent charges.

In any case, the alleged false statements charges make the questions about why Barr’s DOJ thought it was okay to keep these secrets all the more important.

Paul Manafort Knew Tom Barrack Was Working with “Our Friends”

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As I noted yesterday, Tom Barrack’s (known — there may have been a second) Mueller interview revealed what his indictment didn’t say explicitly: Paul Manafort was working with Barrack on a Trump energy speech at issue in the indictment. That suggests that one thing Manafort did for one of the guys that got him hired (the other was Roger Stone) was to cater campaign policy to him.

The complaint originally charged against alleged Barrack co-conspirator Rashid Al Malik on June 25, 2019 (obtained just five days after the FBI interviewed Barrack on these issues, which — according to the new indictment — would have alerted them that Barrack was trying to hide this relationship) provides more detail on Manafort’s role in that energy speech and other events relating to Barrack’s ties to UAE.

Even before the energy speech, for example, on May 1, 2016 Barrack emailed Manafort from Abu Dhabi where he was meeting with Mohamed bin Zayed.

On or about May 1, 2016, [Barrack] emailed a senior member of the Campaign ([Manafort]): “I am in Abu Dhabi with [MbZ]. Call if u can.” Later that day, [Barrack] emailed [Manafort] with an upbeat assessment of the meeting and mentioned the possibility of a meeting in the United States between the UAE leaders and [Trump].

Once Trump wrapped up his primary win on May 4, Barrack wrote Al Malik and told him to tell MbZ to “Pack his bags,” presumably for a visit to the US to meet with Trump (which may suggest that on this matter, as with the Russian one, Trump’s handlers tried to delay controversial meetings until after he sealed the nomination). Al Malik said that MbZ would meet with the two of them the next month when — he incorrectly anticipated — MbZ would be in the US to meet with Trump. The day Al Malik made that prediction, Barrack, “met with several senior members of the Campaign that same day in New York City.” Given Barrack’s past and future relationship with Jared Kushner, his meetings with people beyond Manafort (if even he met with Manafort) are of interest.

In the complaint, the language on the draft speech is far more detailed than in the indictment, possibly even consistent with Barrack writing the entire first draft of the speech, then sharing it with “him” (the complaint isn’t sure whether that’s a reference to Trump or Manafort).

The next day, May 14, 2016, after Al Malik asked for a specific mention of MbZ in it, Barrack and Manafort discussed whether to keep specific mention of MbZ and a Saudi (probably Mohammed bin Salman) in the speech.

[Barrack] wrote to [Manafort]: “How did you like the energy paper[?] I thought I did a really good job. The only sensitive part is whether you want to name [the senior UAE and KSA government officials] by name. But I think it would be a good idea.” [Manafort] replied: “I left their names in the draft.” [italicized brackets original, the others mine]

Six days later, Manafort wrote back complaining that, “It has become a more political speech but there is reference to working with our allies regarding energy policy.” After reading the “America First” speech as written, Barrack described it as “novice and imbecilic,” then said, “[H]e better figure out a way to get one paragraph to balance foreign-policy concerns for energy dependent allies in the gulf.” Later that day, Manafort wrote Barrack, “Send me an insert that works for our friends. I will push to get it included.” Barrack did send language, to which Manafort responded, “I am working to have paragraph added.”

When Barrack sent Al Malik the speech without the specific mention of MbZ the next day and Al Malik complained that it had been pulled, Barrack explained, “Delicate time. [MbZ] should have come!”

On May 26, Manafort sent Barrack the speech calling it the likely final version, and assuring Barrack that, “It has the language you want.”

To be clear, Manafort has not been charged and there’s no reason to believe he will be. But it shows he both knew what Barrack was up to, and was happy to use his position to facilitate foreign influence peddling.

Paul Manafort Shared the Trump Energy Speech with Tom Barrack

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One of the earliest exchanges with the guy described as his handler, Rashid Al Malik, in the indictment against Tom Barrack involved his success at editing a Trump speech otherwise calling for energy independence to include a commitment to “work together with our supportive allies in the Gulf.” Karen DeYoung described the resulting effect as a “jarring” conflict with the rest of the speech.

When, as a candidate, Trump was preparing an early 2016 speech outlining his energy policy, Barrack allegedly prepared a draft for the campaign including a favorable mention of bin Zayed.

The proposal seemed jarring, since the speech was to outline Trump’s plans to build domestic energy production and end oil imports from countries such as the UAE and Saudi Arabia, both leading members of the Organization of the Petroleum Exporting Countries.

When he delivered the address, Trump confusingly followed a vow to “become, and stay, totally independent of any need to import energy from the OPEC cartel” with a promise to “work with our gulf allies to develop a positive energy relationship.”

The indictment doesn’t make clear which “senior member of the Campaign” Barrack worked with to include the language.

But Barrack’s December 12, 2017 interview with Mueller does. Close to the end of a long interview that focused closely on Barrack’s role in getting Manafort the job and his own role leading the Inauguration Committee (in which Barrack focused on his efforts to peddle influence with other countries besides UAE), Barrack described that he worked directly with Manafort on the speech (which makes sense, because he did not yet know Rick Gates).

BARRACK stated he contributed to portions of TRUMP’s energy policy. BARRACK’s idea was to create a broad energy policy. MANAFORT had sent BARRACK a draft of a speech TRUMP was to give on energy. BARRACK made notes on the speech and returned his comments to MANAFORT. BARRACK contended, however, his notes to the speech were ultimately thrown out. BARRACK added during this time the TRUMP campaign’s view on Muslims was challenging. Moreover, the campaign seemed to have a negative view toward Saudi Arabia and other Gulf countries. BARRACK suggested the campaign needed to divide radical Islam from modern Islam. Before providing comments on the draft energy speech back to MANAFORT, BARRACK shared the draft with [line redacted]. BARRACK asked each about the tone and technical aspects of the draft speech. [four lines redacted]

Barrack’s description that he moderated Trump’s anti-Muslim bias is consistent with actions described later in his indictment, including his effort to distinguish Saudi Arabia and UAE from the countries banned by Trump. Depending on what appears behind those redactions, this explanation for his role in the speech might explain an oddity about the indictment.

The discussion of the speech is included in the section titled, “The Defendants’ Actions in the United States as Agents of the United Arab Emirates,” effectively showing evidence to support the charge that Barrack worked as a Foreign Agent for UAE. But the communications surrounding the speech do not appear in the Overt Acts section describing the acts the defendants took as part of a conspiracy. And, as I noted yesterday, while DOJ included the speech in a list of lies Barrack allegedly told the FBI on June 20, 2019 in a detention memo (and vastly overstated the extent of Barrack’s described edits), those lies are not charged as false statements in the indictment.

(1) writing a draft of a speech to be delivered by the Candidate in May 2016; (2) reviewing a PowerPoint presentation to be delivered to senior UAE officials on how to increase the UAE’s influence in the United States with his assistance;

There may be good reason for this. It may well be that Barrack denied any role in editing Trump’s speech in 2019, after Al Malik had been interviewed by Mueller’s team and subsequently fled the country. He certainly downplayed his role in his own interview with Mueller’s team, which took place five months before Al Malik’s own interview. But he did acknowledge that he attempted to draft the speech.

That is, Barrack may have told the truth in December 2017, when the issue was Manafort’s foreign influence-peddling with Russia, but did not in June 2019, when the issue had become his own with UAE.

The “Big Boss” Directing Tom Barrack’s Actions

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There’s something almost entirely missing from the Tom Barrack indictment charging him with acting as an Emirate Agent. The money.

The indictment invokes forfeiture law, suggesting that someone profited from all of this or there’s some other loot the government wants to seize (but it lists none specifically; a memo requesting detention until a bail hearing requests that Barrack be made to identify all his financial assets to get bail).

But other than that, the sole mention of money describes that, on July 14, 2016 (months after this relationship started), Barrack pitched a “guidance board” that would tie UAE’s investments with strategic goals.

The presentation proposed the creation of a guidance board “through which all [UAE] investments are intertwined with the strategic vision of the country’s foreign and domestic policies as well as economic goals,” with the guidance board mandating “that all investments in operating companies use the resources at their disposal to influence [UAE’s interests] abroad … and partner with leading [UAE] friendly-influential figures to do so.” The presentation further proposed that the defendant THOMAS JOSEPH BARRACK work directly with Emirati Official 2 to execute the proposed strategy.

Then, months later on December 14, after Trump’s victory, this proposal assumed continued influence over Trump’s actions.

While the primary purpose of the platform [will be] to achieve outsized financial returns, it will also accomplish a secondary mandate to garner political credibility for its contributions to the policies of [Trump] … We will do so by sourcing investing, financing, operationally improving, and harvesting assets in those industries which will benefit most from a [Trump] Presidency.”

This suggests that Barrack and Colony Capital would be expected to direct UAE’s Sovereign Funds in such a way as to implement their policy goals. A 2018 NYT story described how Barrack’s investment firm raised $7 billion in the time after Trump got the nomination, almost a quarter of it from Saudi and Emirate sources — but none of that appears in the indictment.

Mr. Barrack’s company, known as Colony NorthStar since a merger last year, has raised more than $7 billion in investments since Mr. Trump won the nomination, and 24 percent of that money has come from the Persian Gulf — all from either the U.A.E. or Saudi Arabia, according to an executive familiar with the figures.

These financial relationships will face a great deal of scrutiny as this case goes forward because a Foreign Agent cannot be someone “engaged in a legal commercial transaction.” One defense Barrack might try to make is that this was all about obtaining customers for his investment fund. But if no money changed hands, Barrack might suggest he sincerely believed in the import of fostering better ties between the Emirates and the US.

A Foreign Agent, not a lobbyist

Contrary to what you might have read, this is not a FARA case, which is generally treated as a regulation covering certain kinds of lobbying for foreign (including non-governmental, like the political party Paul Manafort hid his work for) entities. Barrack was charged under 18 USC 951, which is about working for a foreign government directly. The statute is sometimes referred to as Espionage Lite, and in this case, the government might believe at least some of the people involved — perhaps Al Malik, who fled the country days after the FBI interviewed him in April 2018 — are spies. By charging 951, though, the government only has to show that the team was ultimately working on orders from government officials without registering, not that someone was secretly reporting to another country’s spying agencies.

And this is pretty clearly about a relationship directly with UAE. In addition to Barrack and his employee Matthew Grimes, the indictment describes a chain of command in which several senior Emirati officials convey requests through Rashid Sultan Rashid Al Malik Alshahhi (referred to as Alshahhi in the indictment and as Al Malik here and elsewhere) to Barrack. On the Emirati side, Emirati Official 1 (EO1), is described as someone who, “held a high-ranking position in its armed forces,” but who, given events described in the indictment, must be Abu Dhabi’s Crown Prince Mohamed bin Zayed. Emirati Official 2 (EO2) is described as a “high-ranking official with responsibilities related to national security,” but appears to be National Security Advisor Tahnoun Bin Zayed. Emirati Official 3 (EO3) is described as a member of UAE’s National Security Council. Their orders often get delivered to Al Malik through Emirati Official 4 (EO4), who is described as a government official who reports to EO 2 and EO3. There’s also a diplomat, Emirati Official 5, who asked Barrack to provide insight into the top national security appointments Trump was planning. Basically, this amounts to MbZ tasking EO4 to instruct Al Malik to provide instructions in turn to Barrack. This structure is important, because it demonstrates that Barrack was being directed directly by the UAE government and, starting in October 2016, directly by MbZ himself.

A secret agent hiding the direct orders he was following

Aside from this reporting structure, two things will help the government make the case that Barrack was working as an Agent of UAE. Officials from the Emirates explicitly said that they wanted to use Barrack to represent their policy interests in the US rather than relying on their ambassador. For example, EO2 explains why he prefers to work through Barrack than UAE’s ambassador because he, “knows ambassadors can’t do much and they are limited even if they’re active.” After Barrack started doing TV appearances where he pitched the UAE, Al Malik told him that EO1 had said, “you are the new trusted friend!” And after Grimes submitted a Barrack op-ed for advance review by Emirate officials, Al Malik responded that, “Big boss loved it.” Then after the op-ed came out (having had a reference to dictatorships that the Emiratis found objectionable removed), Barrack asked through Al Malik “how Boss liked the article?” The indictment further describes how, in December, the Emirates directed Barrack and Grimes to put together a set of plans — “100 days/6 months/year/4 years” — of what they wanted to accomplish along with the Saudis; on that plan Barrack, Al Malik affirmed in Arabic, would “be with the Arabs.” Then, when Al Malik wrote Grimes and suggested the US should list the Muslim Brotherhood as a Foreign Terrorist Organization, Grimes responded, “At your direction.” This is the language of clear direction, channeled right from the top of the UAE government.

And while not required (remember that Maria Butina didn’t really hide what she was up to or even her ties to Aleksander Torshin), the indictment describes several ways that those involved tried to keep this relationship secret. As Barrack shared a Trump speech in advance, he described that it was “Totally Confidential.” In September, just as Barrack would start dealing directly with MbZ and two days before he’d call out MbZ in a Bloomberg interview, the go-betweens instructed Barrack to download the encrypted messaging app that MbZ uses. Barrack seems to have gotten a text directly from MbZ on September 29. And then in October, Grimes arranged to get both Barrack and himself dedicated phones to use to communicate with MbZ and others via the encrypted app.

While not included in the indictment, the detention memo also describes that Barrack downplayed his ties with Al Malik in a filing to the State Department.

Indeed, in June 2017, the defendant completed and submitted paperwork to the U.S. Department of State in connection with his efforts to secure an official position in the Administration. In his submissions, the defendant materially misrepresented his connection to Al Malik, falsely claiming to have had only infrequent contact with Al Malik and further claiming that he did not know Al Malik’s citizenship or whether Al Malik was affiliated with a foreign government, despite describing Al Malik in private communications as the UAE’s “secret weapon.” Further, in his submissions to the U.S. Department of State, the defendant was required to report any occasions when he had been asked to provide advice, serve as a consultant, even informally, or otherwise work on behalf of a foreign government. The defendant failed to disclose his extensive activities on behalf of the UAE.

It’s partly all this secrecy that will help the government prove their case.

But the way the government uses additional charges to show that Barrack tried to hide all this will help. In addition to 951 and Conspiracy to violate 951 charges (the latter of which was likely included because it’s easier to prove and to provide defendants, particularly Grimes, with a charge that has less onerous penalties to plead to), the government charged Barrack with obstruction of justice and four counts of false statements for attempting to lie about this. In a June 20, 2019 interview with the FBI, the indictment alleges that Barrack lied about whether:

  1. Al Malik asked Barrack to do things for UAE
  2. Barrack downloaded an encrypted app to use to communicate with MbZ and other Emirati officials
  3. Barrack set up a meeting between MbZ and Trump and, generally, whether he had a role in facilitating communications between them
  4. He had a role in prepping MbZ for a September 2017 meeting with Trump

Curiously, the detention memo mentions two more lies that aren’t included in the indictment:

(1) writing a draft of a speech to be delivered by the Candidate in May 2016; (2) reviewing a PowerPoint presentation to be delivered to senior UAE officials on how to increase the UAE’s influence in the United States with his assistance;

In any case, this structure makes it easy to hold Barrack accountable at least via his lies to the FBI, and that he allegedly lied is powerful evidence that the full scope of the relationship was meant to be secret.

The key Trump world figures and the black box White House

Over coming days, we’ll learn who all the Trump officials named in the indictment are, but a key, unstated part of it all is Barrack’s success at placing Paul Manafort on Trump’s campaign. The indictment dates Barrack’s role as an “informal” advisor to Trump’s campaign to “approximately April 2016,” one month after Barrack had a key role in installing Manafort on Trump’s campaign.  It describes how Al Malik set up a meeting on April 24, in advance of which Barrack boasted that he had a 30-year relationship with Trump and had “staffed the Campaign.” After a meeting in the Emirates, EO 4 confirmed to Alshahhi that Barrack would be “the only channel” to Trump for UAE. Days later, Barrack sent Alshahhi a draft Trump energy speech and asked for feedback. Ultimately, Barrack succeeded in getting a promise to “work with our Gulf allies” into a May 26 Trump speech.

It’s not really clear with whom Barrack was working on the campaign. The indictment describes that “a senior member of the Campaign” emailed Barrack with a revision of the Energy speech, in response to which, Barrack instructed the “senior member” that they needed “one paragraph to balance foreign-policy concerns for energy dependent allies in the gulf.” ¶22 It’s likely that this is either Manafort himself (who had not yet fully pushed out Corey Lewandowski but was well on his way) or Rick Gates, the latter of whom played a similar role when Roger Stone wanted to script Trump’s foreign policy statements at that stage of the campaign.

Barrack’s role as Chair of Trump’s Inauguration Committee is minimal to the crimes in this indictment (meaning double jeopardy would not prevent him from being charged in that, too). But one paragraph does describe how Barrack agreed when Al Malik offered to “take care of ME side” of the the Inauguration. And the indictment describes that when Al Malik attended the Inauguration, he did so as Barrack’s personal guest.

Similarly, there’s no mention of December and January meetings involving Jared Kushner and others, even though the December 12, 2016 meeting happened right after Barrack was in UAE on December 2.

One thing the indictment may have tried to do is insulate the indictment from any Executive Privilege concerns. Its narrative stops at the White House door. The indictment describes Al Malik asking Grimes to get the Administration to list the Muslim Brotherhood as an FTO and describes a public report shortly thereafter describing that it was under consideration, but it doesn’t describe who or even whether Barrack talked to to make that happen. It describes that Al Malik asked Grimes to set up a phone call between MbZ and Trump, describes Grimes observing that it got set up “right after I spoke to [Barrack] about it,” and quotes Grimes saying, “We can take credit for phone call.” But the overt acts of the indictment don’t actually say whether they deserved credit, or whether someone else had picked up the influence racket. The government must know he did, because they charge him for lying about setting up this meeting but it, by itself, is not an overt act. The day after MbZ met with Trump, Barrack wrote Al Malik describing that he had “lots of info on [the White House] meeting!” without describing Barrack’s source for that information. In an exception that proves the rule, the indictment describes how, as part of an effort to kill plans for a meeting at Camp David to mediate tensions in the Gulf, Barrack left a message with Trump’s Executive Assistant saying he had “something very important to share [using an ellipsis rather than naming Trump or anyone else] about the Middle East,” followed by Al Malik, two days later, offering “very special thanks and appreciations from the big guy.”

In other words, even though two of the charged lies pertain to Barrack’s role in shaping US policy in events that directly involved Trump, and even though comments suggest Barrack successfully interceded, the White House is treated as a black box; no discussions within the White House or between Barrack and Trump appear in the indictment, but they are implied in many places.

Where this came from where it will go

This investigation started well before 2018, because that’s when Al Malik fled the country just days after an FBI interview. That means it could have been a referral from the Mueller investigation (though given that Barrack lives in Los Angeles, it’s not clear why Mueller would have referred it to EDNY rather than CDCA). DOJ conducted other investigations into UAE’s foreign influence peddling there (as well as some investigations into Jared), so it’s possible this arose out of those investigations.

One thing that’s curiously missing from this indictment, though (along with references to the December 2016 or January 2017 meetings) is any reference to George Nader, who also was operating on instructions direct from MbZ and who provided extensive grand jury testimony as part of that investigation. When Nader tried to obtain a copy of his grand jury transcript as part of his defense in other influence peddling crimes in November 2019, it was revealed there were still multiple ongoing investigations referenced in it. There’s good reason to believe that Nader was not entirely forthcoming with Mueller though, in which case DOJ may not want to invoke him at all.

It’s equally interesting where this might go, which is part of the reason I find the different treatment of Candidate Trump from President Trump in the indictment really notable. This is an investigation that Billy Barr didn’t kill and that survived any pardon attempt, which suggests that Barr and Trump didn’t entirely kill all investigations implicating Trump (though the Rudy Giuliani investigation already showed that). But there are a number of things — most notably, the Inauguration — that might be implicated here but really isn’t part of the indictment.

Merrick Garland’s DOJ is not shying away from crimes that directly implicate Donald Trump. But the way they treated the White House as a black box in this indictment suggests significant deference to things Trump did while President.

Update: This Intercept story from June 2019 strongly suggests that this Barrack investigation arose out of the Mueller investigation.

Al-Malik’s name later surfaced in connection with a federal probe into potential illegal donations to Trump’s inaugural fund and a pro-Trump Super PAC by Middle Eastern donors. Al-Malik was interviewed by members of special counsel Robert Mueller’s team and was “cooperating” with prosecutors, his lawyer told The Intercept last year. The New York Times recently reported that investigators are looking into “whether Mr. al-Malik was part of an illegal influence scheme,” although no details of that potential scheme have been made public.

In fact, the U.S. intelligence community has concluded that al-Malik served as a paid intelligence source for the UAE throughout 2017, The Intercept has learned.

[snip]

After he was interviewed as part of the Mueller investigation, al-Malik left Los Angeles, where he’d been based for several years, and went back to the UAE.

And the story describes Al Malik’s handler as the Director of UAE’s National Intelligence Service, Ali al-Shamsi.

Among the Emirati government officials overseeing al-Malik was Ali al-Shamsi, director of the Emirati National Intelligence Service, according to The Intercept’s sources. A source who knows al-Shamsi described him as “more than just a spy. He’s also a discreet messenger” for Mohammed bin Zayed, known as MBZ, and his brother Tahnoun bin Zayed, the UAE’s national security adviser.

This description is perfectly consistent with the description of EO 4 from the indictment.

Minority Report: Putin’s Programma Destabilizatsii Began Much Earlier

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[NB: Note the byline, thanks. / ~Rayne]

By now you should have read Marcy’s post, The Guardian “Scoop” Would Shift the Timeline and Bureaucracy of the Known 2016 Russian Operation which compares much of The Guardian’s article to known details leading up and into 2016 election.

The primary problem with the material journalists Harding, Borger and Sabbagh obtained is the new timeline it offers as well as its attempt to limit Russian interference in the election to a narrow window. In my opinion there are at least two more critical problem.

The reported description of Trump as “impulsive, mentally unstable and unbalanced individual who suffers from an inferiority complex” is problematic. This implies with treatment — like ADD medications and psychotherapy — Trump might be able overcome this challenge. But far too many professionals in psychology and psychiatry have already indicated Trump is a narcissist; this is not a treatable mental illness but a personality disorder. There’s limited treatment for this which may or may not work, including talk therapy. Such therapy poses an inherent national security risk.

Should Trump suffer from dementia worsening with age, his disorder will only worsen, his increasing boldness, meanness, and disinhibition making him even more unfit for any public office. He should never have access to the power of the executive office again.

But that’s one reason why the subtle disinformation has been planted. If Putin’s goal is to destabilize the U.S. and make it both ungovernable and unable to focus its collective will, encouraging the U.S.’s right-wing to reseat Trump under the misguided belief he will improve over time serves his purpose.

The second problem with The Guardian’s report and the underlying materials is that it treats the 2016 election interference to seat Trump as discrete, an end in itself, when the truth is that it was a single project inside a larger framework — a program of destabilization which predates Trump’s candidacy for presidency in 2015.

You’ll recall the case of three Russian spies arrested in January 2015, a date which in itself may not suggest there was a longer destabilization program, only spying. Even the role of former Trump campaign foreign policy adviser Carter Page in the three spies case is not a solid indicator of a longer program.

In the indictment of the spies, however, there was a bit of recorded conversation which has troubled me since I first read it, which I noted in early 2017 when revisiting the three spies case:

“And then Putin even tried to justify that they weren’t even tasked to work, they were sleeper cells in case of martial law,” Victor Podobnyy remarked in a conversation about the Illegals Program sleeper cells. What did he mean by, “in case of martial law”? Is this a continuing concern with regard to any remaining undetected sleeper cells?

Emphasis mine, and on the part which has haunted me.

Was the January 6 insurrection always part of the end goal along with the continuing obstruction by the now thoroughly compromised Republican Party? Was Trump supposed to have invoked the Insurrection Act and martial law with it as part of a longer destabilization program?

That same program, then, would have extended beyond 2015, before the FBI began surveillance of the three spies, before one of the three spies, Evgeny Buryakov, began work in New York City.

The program would have predated the expulsion of the identified Illegals Program sleeper cells in June 2010, if the intent was to use them during civil strife in the U.S. resulting in martial law.

The presence of some of the Illegals Program spies pre-dated Putin’s ascension to Russia’s presidency in December 1999 and his role as Director of the Federal Security Service from 1998-1999, but it’s not clear whether Putin co-opted the program to plan for destabilization, or if the program had always been intended for destabilization but thwarted in 2010.

What’s clear, though, is that the U.S. paid little heed to Putin’s preparedness for conditions in the U.S. leading to martial law, going back at least as far as 2010.

The Illegals Program revealed to the American public the presence of sleeper cells. The general public has assumed all sleeper cells were rolled up in 2010; the use of the program as fiction fodder in cable network series The Americans marginalizes sleeper cells as entertainment. There’s nowhere near the level of concern about white persons with Russian accents as there is about Asian Americans of any heritage, the latter becoming the subject of hate crimes while the presence of Russians and Russian Americans is treated as no big deal. How would Florida’s Sunny Isles municipality function without the presence of Russian and Russian Americans’ money, after all?

This is part of the same umbrella program of destabilization: Putin knows the U.S. has a deep schism which goes to its foundation and he’s placed pressure on it to force it to open more widely. We know this from the documented efforts of Russia’s Internet Research Agency in 2016. Racist Americans have been encouraged to focus on an “Other” with the help of Trump whose repeated remarks about the “China flu.” With this redirection of attention, it’s too easy for any other remaining or new sleeper cells to be created undetected.

Some of these cells may not need to be Russians any longer. They can be loosely organized anarchic groups which are united by their preference for white supremacy and theocratic government. They could include peripherally-connected but influential individuals like David Duke who moved to Russia and lived there for a handful of years, to return to the U.S. to foment more racist tension.

Duke moved to Moscow in 1999 — the same year Putin was FSB Director. Did Duke have an invitation?

Does Putin’s Programma destabilizatsii go back that far?

I won’t even go into the much larger possibility that the umbrella destabilization program was meant to end NATO — which may mean Brexit was not a proof-of-concept linked to the interference in the 2016 election by the use of Cambridge Analytica/SCL, but wholly meant to work hand-in-glove to sustain an attack on NATO.

If this is the case, of course Putin would want to wall off interference into the 2016 election as a discrete, isolated event. Why would NATO continue to tolerate multiple sustained attacks using hybrid warfare on its member nations jointly and separately and not invoke Article 5?

The Guardian “Scoop” Would Shift the Timeline and Bureaucracy of the Known 2016 Russian Operation

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Luke Harding has a story based on alleged Russian documents that show that Vladimir Putin personally approved of the 2016 Russian operation on January 22, 2016.

In advance of a known meeting — which Russia claimed at the time was convened to talk about Moldova — the Guardian claims Putin was presented with a plan on how an influence operation might work. Putin purportedly approved the operation at the publicly announced meeting. And then all three intelligence agencies implemented it.

The author appears to be Vladimir Symonenko, the senior official in charge of the Kremlin’s expert department – which provides Putin with analytical material and reports, some of them based on foreign intelligence.

The papers indicate that on 14 January 2016 Symonenko circulated a three-page executive summary of his team’s conclusions and recommendations.

In a signed order two days later, Putin instructed the then chief of his foreign policy directorate, Alexander Manzhosin, to convene a closed briefing of the national security council.

Its purpose was to further study the document, the order says. Manzhosin was given a deadline of five days to make arrangements.

What was said inside the second-floor Kremlin senate building room is unknown. But the president and his intelligence officials appear to have signed off on a multi-agency plan to interfere in US democracy, framed in terms of justified self-defence.

[snip]

After the meeting, according to a separate leaked document, Putin issued a decree setting up a new and secret interdepartmental commission. Its urgent task was to realise the goals set out in the “special part” of document No 32-04 \ vd.

Members of the new working body were stated to include Shoigu, Fradkov and Bortnikov. Shoigu was named commission chair. The decree – ukaz in Russian – said the group should take practical steps against the US as soon as possible. These were justified on national security grounds and in accordance with a 2010 federal law, 390-FZ, which allows the council to formulate state policy on security matters.

According to the document, each spy agency was given a role. The defence minister was instructed to coordinate the work of subdivisions and services. Shoigu was also responsible for collecting and systematising necessary information and for “preparing measures to act on the information environment of the object” – a command, it seems, to hack sensitive American cyber-targets identified by the SVR.

The SVR was told to gather additional information to support the commission’s activities. The FSB was assigned counter-intelligence. Putin approved the apparent document, dated 22 January 2016, which his chancellery stamped.

Because the analysis presented in this story says things that many people now believe — that Trump was unstable, that he harmed the US, that Russia’s operation sowed division in the US — it had been uncritically embraced by many.

But experts are raising some cautions. Thomas Rid raises cautions here (not all of which I agree with). Matt Tait raises more cautions here (not all of which I agree with). Craig Unger quotes more experts raising questions about the document.

What few are doing, however, is comparing the claims in the Guardian document to what we (think we) know about the 2016 operation, which not only is a good way to test their accuracy but also might answer the question Douglas London raised with Unger: “‘Coincidence and convenience are red flags in espionage,’ he told SpyTalk. ‘So why now?'”

If these documents are disinformation, they would change the known story in at least two ways. The resulting story would sustain a claim that both key events and key players in the 2016 Russian operation weren’t really part of that operation. That is, if this is disinformation, it likely was told to try to obscure who were the most important players in the 2016 operation and what events were part of it.

A January 22 approval would suggest presumed parts of the 2016 operation weren’t actually part of it

If the Russian operation weren’t approved until January 22, then events believed to be part of the operation that happened before that might be dissociated from it.

Perhaps the most important temporal conflict these documents would introduce would be the Trump Tower Moscow dangle. That effort — floated by Felix Sater and relying on a former GRU officer as a broker — started in fall 2015 and ratcheted up in December 2015. Importantly, a key call Michael Cohen had with Dmitri Peskov’s assistant took place before Putin allegedly approved the operation, on January 20.

On January 20, 2016, Cohen received an email from Elena Poliakova, Peskov’s personal assistant. Writing from her personal email account, Poliakova stated that she had been trying to reach Cohen and asked that he call her on the personal number that she provided.350 Shortly after receiving Poliakova’s email, Cohen called and spoke to her for 20 minutes.351 Cohen described to Poliakova his position at the Trump Organization and outlined the proposed Trump Moscow project, including information about the Russian counterparty with which the Trump Organization had partnered. Cohen requested assistance in moving the project forward, both in securing land to build the project and with financing. According to Cohen, Poliakova asked detailed questions and took notes, stating that she would need to follow up with others in Russia.352

The next day — so still one day before, according to the Guardian document, Putin approved the 2016 operation — Sater responded to Cohen claiming that Putin’s office had called.

However, the day after Cohen’s call with Poliakova, Sater texted Cohen, asking him to “[c]all me when you have a few minutes to chat .. . It’s about Putin they called today.”353 Sater then sent a draft invitation for Cohen to visit Moscow to discuss the Trump Moscow project, 354

If Putin didn’t approve the 2016 operation until January 22, Russia and Trump might claim, this effort wasn’t really an attempt to offer Trump financial salvation in exchange for policy considerations and other quid pro quo that became part of the operation, but instead was a viable (albeit ridiculously lucrative) real estate offer. Indeed, if Russia wanted to bail Trump out of the financial difficulties created by the prosecution of Trump Organization now, they might want to launder this earlier real estate dangle so as to dissociate it with any attempt to buy a president, or else any deals from this point forward might be deemed a continuation of an earlier conspiracy or even an effort to keep Trump afloat long enough to run again in 2024.

Similarly, also before the purported January 22 approval date, Deputy Prime Minister Sergei Prikhodko started a several month outreach to Trump, one that would be sustained through March.

Trump received and turned down an invitation to the St. Petersburg International Economic Forum. In late December 2015, Mira Duma-a contact oflvanka Trump’s from the fashion industry-first passed along invitations for Ivanka Trump and candidate Trump from Sergei Prikhodko, a Deputy Prime Minister of the Russian Federation.377 On January 14, 2016, Rhona Graff sent an email to Duma stating that Trump was “honored to be asked to participate in the highly prestigious” Forum event, but that he would “have to decline” the invitation given his “very grueling and full travel schedule” as a presidential candidate.378 Graff asked Duma whether she recommended that Graff “send a formal note to the Deputy Prime Minister” declining his invitation; Duma replied that a formal note would be “great.”379

It does not appear that Graff prepared that note immediately. According to written answers from President Trump,380 Graff received an email from Deputy Prime Minister Prikhodko on March 17, 2016, again inviting Trump to participate in the 2016 Forum in St. Petersburg.381 Two weeks later, on March 31, 2016, Graff prepared for Trump’s signature a two-paragraph letter declining the invitation.382 The letter stated that Trump’s “schedule has become extremely demanding” because of the presidential campaign, that he “already ha[ d] several commitments in the United States” for the time of the Forum, but that he otherwise “would have gladly given every consideration to attending such an important event.”383 Graff forwarded the letter to another executive assistant at the Trump Organization with instructions to print the document on letterhead for Trump to sign.384

We don’t know what this outreach might have entailed, but like the Trump Tower deal, Trump Organization appears to have withheld evidence about this outreach from one or another investigator, in this case any evidence that Trump declined Prikhodko’s invitation.

Finally there’s the weird way this fits Mike Flynn’s known timeline. To be clear, Flynn was not a full-time part of the Trump campaign when he and his son went to Moscow for the RT Gala in December 2015 and, before he went, he met with Sergei Kislyak in the US. While Flynn was sharing some advice with Trump (as well as some of the other Republican candidates), he would only join Trump’s campaign full time months later. But when Flynn visited Russia, he had prior ties with the GRU. He would later tell the FBI he believed then-GRU head Igor Sergun could work with the US. Days after Flynn’s visit, Sergun died unexpectedly in Syria, and Flynn called Kislyak on January 5 to offer his condolences, the first of Flynn’s 2016 calls with Kislyak picked up on FISA intercepts. Sergun’s death was only widely made public weeks later, after this purported meeting, and there were questions about the circumstances of the death. Those things are probably unrelated, but days after the head of GRU died seems curious timing to put GRU in charge of a risky operation.

The described organization shifts the existing understanding of the 2016 operation

The timing of this meeting, just days after the death of Sergun, is important to explain a claim made in it: that Sergei Shoigu was purportedly put in charge of the GRU part of the operation, its most important part. A January 22 meeting would take place before Sergun’s replacement, Igor Korobov, was appointed (and the suggestion of the story is that Shoigu remained in charge after the later appointment).

And under Shoigu, everything was all tidy and bureaucratic.

According to the document, each spy agency was given a role. The defence minister was instructed to coordinate the work of subdivisions and services. Shoigu was also responsible for collecting and systematising necessary information and for “preparing measures to act on the information environment of the object” – a command, it seems, to hack sensitive American cyber-targets identified by the SVR.

The SVR was told to gather additional information to support the commission’s activities. The FSB was assigned counter-intelligence.

For a lot of reasons I find the designation of FSB for counterintelligence weird, because that’s what they would always be doing and that effort would necessarily (and presumed aspects of which did) long precede any individual operation. Plus, by the end of the year, Putin had taken out two top FSB officers for treason, a prosecution that was later used to offer counter-narratives to the 2016 operation.

But it’s the rest of this narrative that would be intriguing, if true. It would seem to offer an explanation that has never publicly been answered by the US: what the relationship was between the DNC hack by the SVR that started in 2015 to the DNC hack by the GRU that started in 2016. That said, SVR is not known to have hacked several other targets of the 2016 operation: John Podesta individually, state election infrastructure, election vendors, and Hillary’s analytics hosted on an AWS server.

The narrative would be particularly interesting, if true, in the wake of the Solar Winds hack, because it might suggest there will be a GRU sabotage operation following on the entities targeted by SVR. Or maybe Russia wants the west to think that to be true.

That said, there’s a huge part of this neat bureaucratic description not mentioned: The central role of Oligarchs in the 2016 operation.

One might discount the need to include specific instructions for Yevgeniy Prigozhin, as his Internet Research Agency was already engaged in sowing division. But you’d think a description of the bureaucratic structure of the 2016 operation would at least note that a big part of the operation would be accomplished by a known private entity. Furthermore, there are redacted hints in public filings both that Prigozhin’s team interacted with GRU, and that he and Putin had specific conversations about the operation. None of that is accounted for (or arguably, even consistent with) this story.

And that’s the thing: if testimony that Alfa Bank’s Petr Aven gave to the Mueller team is accurate, his role in the 2016 operation got tasked both individually and more generally in quarterly Oligarch meetings with Putin, not through intelligence agencies.

Aven told the Office that he is one of approximately 50 wealthy Russian businessmen who regularly meet with Putin in the Kremlin; these 50 men are often referred to as “oligarchs.”977 Aven told the Office that he met on a quarterly basis with Putin, including in the fourth quarter (Q4) of 2016, shortly after the U.S. presidential election.978 Aven said that he took these meetings seriously and understood that any suggestions or critiques that Putin made during these meetings were implicit directives, and that there would be consequences for Aven if he did not follow through.979 As was typical, the 2016 Q4 meeting with Putin was preceded by a preparatory meeting with Putin’s chief of staff, Anton Vaino.980

According to Aven, at his Q4 2016 one-on-one meeting with Putin,98 1 Putin raised the prospect that the United States would impose additional sanctions on Russian interests, including sanctions against Aven and/or Alfa-Bank.982 Putin suggested that Aven needed to take steps to protect himself and Alfa-Bank.983 Aven also testified that Putin spoke of the difficulty faced by the Russian government in getting in touch with the incoming Trump Administration.984 According to Aven, Putin indicated that he did not know with whom formally to speak and generally did not know the people around the President-Elect.985

Aras Agalarov played a partly successful role in the 2016 operation (in fact, Rob Goldstone offered Trump help from Vkontakte before the January 22 meeting, on January 18). Oleg Deripaska played a wildly successful role (a role that included manipulating Harding’s known source, Christopher Steele). A credible story that their roles got tasked through intelligence agencies and not via meetings directly with Putin might insulate them from responsibility, particularly as the US focuses more explicitly on Konstantin Kilimnik’s role, and particularly for things like sanctions adjudications. But it’s far more credible that something similar to what happened with Aven happened, and happened before the January 22 meeting in question.

Russian kompromat on Trump was never going to be a pee tape

In addition to shifting the timing and presumed bureaucratic structure of the 2016 operation, this story seems to reinflate the expectation of a goddamned pee tape.

There is also apparent confirmation that the Kremlin possesses kompromat, or potentially compromising material, on the future president, collected – the document says – from Trump’s earlier “non-official visits to Russian Federation territory”.

The paper refers to “certain events” that happened during Trump’s trips to Moscow. Security council members are invited to find details in appendix five, at paragraph five, the document states. It is unclear what the appendix contains.

The SSCI Report laid out three different rumors about sexual kompromat, on top of the Steele dossier. But every time someone focuses on a goddamn pee tape, they ignore several details. First, Per his own testimony, Cohen learned of such alleged kompromat shortly after 2013. Even if it existed, it would have far less impact than the many other allegations of sexual abuse that actually did come out in 2016, or the allegations that Trump was cheating on Melania shortly after she gave birth with high profile sex workers. Plus, such stories would have been easily accessible for anyone who wanted to outbid Trump for them.

A pee tape was never going to be the most effective kompromat on Trump, no matter how much people still wish to see humiliating pictures of Trump with sex workers. Financial ties would be.

Importantly, given the way this story would shift the operative start date after much of the discussion about the Trump Tower, Trump hid the Trump Tower Moscow dangle the way he would a pee tape, lying both in real time and to Mueller about it. That is, Trump treated the Trump Tower Moscow dangle as kompromat, which likely was part of the point.

Sure, it’s possible that these documents that magically appear are authentic. It’s also possible that Russia has reasons they want to tell a new story about the timing and key players in the known 2016 operation. Why they would want to do that may be the most interesting aspect of this story.