Rudy Giuliani’s Support Role in the Mueller Report

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As I showed in the Rat-Fucker Rashomon series, it can be tremendously useful to compare how different inquiries into Russian interference in 2016 tell that story. That’s true not just of Roger Stone; it’s also true of Rudy Giuliani.

By the time SSCI finished its Russia Report, the shape of the 2020 Russian influence campaign was evident, and it shows up, in redacted form, in the final report. As part of that discussion, the SSCI Report deals with Rudy at least once in almost entirely redacted passages about the ongoing influence campaign involving Russian assets in Ukraine. That is, it clearly suggests the trajectory led to the influence campaigns that were still active in 2020.

Perhaps because SSCI had the advantage of seeing where Rudy would end up, it also included a few more details about Rudy from earlier on of interest. For example, before Paul Manafort discussed how to win Pennsylvania and how to carve up Ukraine on August 2, 2016, he met with Trump and Rudy Giuliani in Trump Tower.

Among the details SSCI shows of the Trump campaign exploiting documents leaked to WikiLeaks is a citation to an email, dated October 11, 2016, showing Rudy was in that loop.

When Rick Gates was asked what kind of contact Paul Manafort retained with Trump after he was ousted from the campaign, Gates revealed that Manafort told Gates that Rudy Giuliani was helping him place people in Administration positions.

And PsyGroup’s Joel Zamel claimed that Rudy introduced him to Jared Kushner some months after the inauguration; Kushner and Zamel had a meeting at the White House to discuss “human rights issues in the Middle East, Iran, and ‘counter-extremism’.”

Aside from the detail that Manafort was using Rudy as a side channel to influence the White House, those aren’t necessarily momentous details.

Still, those details show that Rudy was a participant in these events during 2016. And yet, Rudy doesn’t show up as such in discussions about 2016 in the Mueller Report. Rather, Rudy shows up exclusively as Trump’s lawyer, floating the pardons in an attempt to get witnesses to lie to cover up what really happened in 2016.

Rudy — who was not yet formally Trump’s personal counsel — and his current defense attorney, Robert Costello, didn’t succeed in getting Michael Cohen to shield Trump.

On or about April 17, 2018, Cohen began speaking with an attorney, Robert Costello, who had a close relationship with Rudolph Giuliani, one of the President’s personal lawyers. 1022 Costello told Cohen that he had a “back channel of communication” to Giuliani, and that Giuliani had said the “channel” was “crucial” and “must be maintained.” 1023 On April 20, 2018, the New York Times published an article about the President’s relationship with and treatment of Cohen. 1024 The President responded with a series of tweets predicting that Cohen would not ” flip” :

The New York Times and a third rate reporter . . . are going out of their way to destroy Michael Cohen and his relationship with me in the hope that he will ‘flip. ‘ They use nonexistent ‘sources’ and a drunk/drugged up loser who hates Michael, a fine person with a wonderful family. Michael is a businessman for his own account/lawyer who I have always liked & respected. Most people will flip if the Government lets them out of trouble, even if it means lying or making up stories. Sorry, I don’t see Michael doing that despite the horrible Witch Hunt and the dishonest media! 1025

In an email that day to Cohen, Costello wrote that he had spoken with Giuliani. 1026 Costello told Cohen the conversation was “Very Very Positive[.] You are ‘loved’ … they are in our corner … . Sleep well tonight[], you have friends in high places.”1027

But Rudy, acting as part of Joint Defense Agreement in the role of Trump’s personal counsel, did succeed in getting Paul Manafort to lie about what happened on August 2 and efforts to carve up Ukraine in the aftermath.

Immediately following the revocation of Manafort’s bail, the President’s personal lawyer, Rudolph Giuliani, gave a series of interviews in which he raised the possibility of a pardon for Manafort. Giuliani told the New York Daily News that “[w]hen the whole thing is over, things might get cleaned up with some presidential pardons.” 856 Giuliani also said in an interview that, although the President should not pardon anyone while the Special Counsel’s investigation was ongoing, “when the investigation is concluded, he’s kind of on his own, right?”857 In a CNN interview two days later, Giuliani said, ” I guess I should clarify this once and for all. . . . The president has issued no pardons in this investigation. The president is not going to issue pardons in this investigation …. When it’s over, hey, he’s the president of the United States. He retains his pardon power. Nobody is taking that away from him.”858 Giuliani rejected the suggestion that his and the President’s comments could signal to defendants that they should not cooperate in a criminal prosecution because a pardon might follow, saying the comments were “certainly not intended that way.”859 Giuliani said the comments only acknowledged that an individual involved in the investigation would not be “excluded from [ a pardon], if in fact the president and his advisors .. . come to the conclusion that you have been treated unfairly.”860 Giuliani observed that pardons were not unusual in political investigations but said, “That doesn’t mean they’re going to happen here. Doesn’t mean that anybody should rely on it. … Big signal is, nobody has been pardoned yet.” 561

[snip]

The President said that flipping was “not fair” and “almost ought to be outlawed.”880 ln response to a question about whether he was considering a pardon for Manafort, the President said, “T have great respect for what he’s done, in terms of what he’s gone through …. He worked for many, many people many, many years, and T would say what he did, some of the charges they threw against him, every consultant, every lobbyist in Washington probably does.”881 Giuliani told journalists that the President “really thinks Manafort has been horribly treated” and that he and the President had discussed the political fallout if the President pardoned Manafort.882 The next day, Giuliani told the Washington Post that the President had asked his lawyers for advice on the possibility of a pardon for Manafort and other aides, and had been counseled against considering a pardon until the investigation concluded.883

On September 14, 2018, Manafort pleaded guilty to charges in the District of Columbia and signed a plea agreement that required him to cooperate with investigators.884 Giuliani was reported to have publicly said that Manafort remained in a joint defense agreement with the President following Manafort’s guilty plea and agreement to cooperate, and that Manafort’s attorneys regularly briefed the President’s lawyers on the topics discussed and the information Manafort had provided in interviews with the Special Counsel’s Office.885 On November 26, 2018, the Special Counsel’s Office disclosed in a public court filing that Manafort had breached his plea agreement by lying about multiple subjects.886 The next day, Giuliani said that the President had been “upset for weeks” about what he considered to be “the un-American, horrible treatment of Manafort.”887

Also, for whatever reason — probably because he had word diarrhea — Rudy provided the best evidence that Trump knowingly lied on his written answers to Mueller when he claimed not to remember the Trump Tower Moscow dangles during the election.

Also in January 2019, Giuliani gave press interviews that appeared to confirm Cohen’s account that the Trump Organization pursued the Trump Tower Moscow project well past January 2016. Giuliani stated that ” it’s our understanding that [discussions about the Trump Moscow project] went on throughout 2016. Weren’t a lot of them, but there were conversations. Can’t be sure of the exact date. But the president can remember having conversations with him about it. The president also remembers-yeah, probably up-could be up to as far as October, November.” 1069

Rudy was treated so persistently as a lawyer in the Mueller Report, but not a participant, that he didn’t even make the Glossary of Referenced Persons.

That’s true even though Rudy did show up in interviews as a topic of interest.

For example, when Mike Flynn was asked on April 25, 2018, just days after Rudy officially became Trump’s defense attorney, who else besides he and Bannon were hunting for Hillary’s missing 33,000 emails, the former Director of Defense Intelligence named Rudy, because he was “a big cyber guy.”

When question[ed] who else might have information about on the email messages, FLYNN mentioned Rudy GIULIANI. GIULIANI was “a big cyber guy” who have a speech on the topic in Tel Aviv. GIULIANI had a ton of contacts and traveled quite a bit with TRUMP (FLYNN surmised approximately half of the time). GIULIANI had a certainty that the emails were out there and available. GIULIANI would have said this directly to TRUMP. The natural response from TRUMP was “why the hell could they not find them?”

After two more questions (about Barbara Ledeen’s efforts), Mueller’s team returned to Rudy. This time, former Director of Defense Intelligence explained that if Rudy said something, you could be sure it was factual.

GIULIANI had contacts at the FBI, though he was pretty “close hold” on who he spoke with there. If GIULIANI said something, you could take it to the bank as factual, FLYNN believed that GIULIANI acted in a manner which indicated had specific knowledge related to the emails. FLYNN reviewed GIULIANI’s speech for Tel Aviv, made some comments, and gave it back to GIULIANI. GIULIANI did not name drop. GIULIANI popped in throughout the campaign to help with certain events. FLYNN did not know if GIULIANI knew Russia hacked the DNC.

Two more questions later, in response to a question about whether Jeff Sessions attempted to find the emails, Flynn brought up Rudy again.

FLYNN was asked whether SESSIONS or CHRISTIE made any efforts to find an answer based on their law enforcement backgrounds. SESSIONS did not make any effort at all. GIULIANI had deeper discussion on the issue with the campaign. CHRISTIE was somewhere between the two in regards to effort. CHRISTIE always seemed to “puff” about what he could do. FLYNN observed that GIULIANI and CHRISTIE had extensive connections and contact in New York. They constantly brought information back to the campaign. They did not do a lot of name dropping but there was a certainty to their information. FLYNN did not remember either of them saying they had contact with WikiLeaks.

Several more questions later, Flynn raised Rudy again in a discussion of whether anyone reached out to other countries for the emails.

Flynn opined that if Russia had them, then China, Iran, and North Korea also had them. Those countries had the cyber capabilities to get them and CLINTON was the Secretary of State. FLYNN also thought hactivist groups operating in the [sic] Ukraine could have them. It was also likely Israel had them. FLYNN did not recall specific discussions on reaching out to these countries to find out what they had. GIULIANI could have reached out to Israel but FLYNN did not know.

In an interview six days later, Mueller’s team asked Flynn more about the role of the guy who had just become Trump’s defense attorney.

FLYNN did not recall Rudy GIULIANI saying specifically what he was doing to learn more about the missing email messages. GIULIANI seemed insightful to FLYNN on knowing when news would break. GIULIANI was working on cyber policy for TRUMP. FLYNN was not sure if GIULIANI got his information from the news or from actual contacts. FLYNN attended a couple of meetings at Trump Tower where GIULIANI was present. GIULIANIs conversations were always that Wikileaks would release the missing email messages, not Russia. FLYNN thought Russia would wait to see who won the election. If CLINTON won, Russia could then use them for leverage over her. Wikileaks claimed to have the desire to put information out in the public to damage CLINTON.

FLYNN did not participate in any conversations with GIULIANI that indicated GIULIANI “cast his net” with his contacts. GIULIANI was one of a number of people around TRUMP’s inner circle. GIULIANI agreed on who was behind the hack but was not really certain. GIULIANI was a close hold guy but might share what he was hearing. FLYNN recently saw a clip that during the campaign, GIULIANI said during an interview that there were more leaks to come. FLYNN recalled that was the kind of thing GIULIANI would say with certainty related to cyber. FLYNN listened to GIULIANI who came across as a judge and made remarks as though they were facts.

I have not done a systematic review of all this (and earlier releases are too redacted to be of much use on such issues). But it’s not just Flynn who had something interesting to say about Rudy. When discussing the Transition (and egregiously downplaying his own role in foreign policy), for example, Steve Bannon described the tension during the Transition because both Jeff Sessions and Rudy wanted to be Secretary of State. “Bannon thought Giuliani would have issues in his confirmation if he was nominated as Secretary of State, however, because of some of his companies and foreign contacts,” Bannon explained, acknowledging even then that Rudy was a foreign influence peddling risk.

Perhaps it’s because, when Rudy became Trump’s defense attorney, it made any inquiry into his role in 2016 awkward. But even though Rudy was a participant in all this, and even though Mike Flynn thought he might be the most likely person to “cast his net” for ways to pursue stolen emails, it’s not clear how aggressively the Mueller team considered what role Rudy had.

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The Manafort Unsealing and Konstantin Kilimnik

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Earlier this week, the court unsealed the filings in Paul Manafort’s case pertaining to his breach determination. I’ve put most of the filings below.

Much of what has been unsealed is not new. Because Manafort’s attorneys failed to actually redact their first response, the five topics about which the government claimed he lied were clear from early on, which made sussing out the rest possible. As one example, here’s a post from close to the end of the process that laid out a lot of what we knew and did not know.

That said, in part because of some big gaps in the Manafort docket, and in part because of the government’s increasing outspokenness about Konstantin Kilimnik, I want to lay out what has been released in significant fashion and what hasn’t.

When the WaPo first asked for this material, the government said no because of “ongoing investigations” and the privacy of uncharged people. When the parties came up with proposed redactions in July 2020, per a subsequently filed ABJ order, the redactions served to hide grand jury information and uncharged individuals; that is, the ongoing investigations were done. Then the WaPo pointed out several things that might be grand jury information, but should be released anyway, including people who have since been charged, including Greg Craig and Roger Stone by name, and grand jury information made public by Mueller.

Petitioner recognizes that grand jury proceedings are confidential under Rule 6(e) but asserts that “at least some” of the grand jury material in this matter should be unsealed because it has become public. Supp. Mem. at 12–13 (noting particularly the inadvertent disclosure of allegations that the defendant transferred presidential campaign polling data to Konstantin Kilimnik in the summer of 2016); see also Reply at 11 (noting certain information was made public in the March 2019 report of Special Counsel Robert Mueller). Petitioner also asserts that some of the individuals whose names and information were sealed in the court documents because they were not charged with any crimes had since been indicted. See Reply at 1 & n.2 (noting the indictments of Roger Stone and Gregory Craig).

Upon consideration of the parties’ arguments, the joint submission of the government and defendant Manafort, the applicable law, and the privacy interests of individuals who have not been charged, the Court finds that some of the information sought by petitioner may be unsealed but that some must remain sealed to protect grand jury materials and the identities or identifying information of uncharged individuals.

That’s what should be unsealed: people who have not been charged or stuff that’s not grand jury information.

As you can see below, virtually the only area where significantly new information was provided pertained to Manafort’s relationship with Kilimnik, starting with the August 2, 2016 meeting and extending for two years. That makes the delay in release (which admittedly could be COVID related) of particular interest: in that time, FBI released a wanted poster for Kilimnik with a $250,000 reward, and then Treasury stated as fact, just weeks before this release, that Kilimnik had, indeed, shared polling data and campaign strategy with Russian intelligence officers. In addition, as shown below, there are big unexplained gaps in the numbering of the docket, suggesting sealed filings (I had thought it related to the forfeiture, and it still might, but most of that was moved to a different docket).

FBI Agent Jeffrey Weiland’s declaration (here’s the original), laying out the five matters about which Manafort lied, is the best way to track what kinds of things have been unsealed or not. Here are the five topics about which Manafort lied, with a summary of what got newly unsealed in each:

Payment to Wilmer Hale: Manafort engaged in some kind of dodgy accounting to get money to pay his lawyers, who represented Manafort until August 2017. The investigation into this allegation was unsealed (along with other investigations that had been dropped) by September 2020. About the only thing that is newly released in all this is that Wilmer Hale was the firm in question, which would seem to be either an uncharged corporate entity or grand jury information that got publicly released.

Manafort’s efforts to protect Konstantin Kilimnik in the witness tampering conspiracy: In 2018, Kilimnik and Manafort were charged for conspiring to hide aspects of their Hapsburg project by trying to coach witnesses. The names of those former Hapsburg project associates, Alan Friedman and Eckart Sager, were redacted in the original and remain redacted.

Interactions with Kilimnik: In addition to trying to downplay Kilimnik’s role in the witness tampering conspiracy, Manafort was not forthcoming about the August 2, 2016 meeting with Kilimnik (though by the end of the breach agreement, Manafort had proven that prosecutors had misunderstood what happened with a printout of polling data that day), and he blatantly lied about their ongoing meetings about a Ukraine “peace” deal. This is where the most new material was released.

Some of this was already released in the Mueller Report. But there are passages that include information beyond the Mueller Report, both in Rick Gates filings (which also were released to BuzzFeed), or — for example — in this passage from a Manafort filing.

The OSC contends that Mr. Manafort lied about his meeting with Mr. Kilimnik and [redacted: probably Georgiy Oganov] January 2017. (Doc. 464 at 14-15, ¶33-35). In particular, the OSC alleges that in one interview Mr. Manafort stated [redacted] did not present a plan for peace at the meeting or ask Mr. Manafort for anything and, subsequently, Mr. Manafort said that he discussed a peace plan during the meeting. Contrary to the OSC’s allegations, these statements are not inconsistent. First, during the interview, Mr. Manafort noted that while [redacted] did not present a peace plan or ask for anything, they did discuss Ukraine, in general, and Eastern Ukraine and Crimea, in particular.

Kilimnik has been charged. But not — as far as is public — for this stuff.

Another DOJ investigation: Little new is unredacted in a passage that describes the investigation in another district that Manafort first told a damning story to, and then reneged on that story: but what is unredacted is actually key. First, a footnote that must modify the overview section links to Michael Cohen’s Criminal Information. Given the timing, the issue in question is probably the effort to buy off Karen McDougal. Another filing describes that the information implicated Senior Administration Officials, which would seem to rule out Don Jr or Cohen himself, so must implicate Trump himself and, likely, Kushner. (I’ll return to this, because other discussions of this implicate a Roger Stone email to Manafort.)

Manafort’s Contact with the Administration: This section also remains largely the same with one big exception: it describes that some lobbying he was helping people do targeted Department of Labor and pertained to ERISA. That contact has nothing to do with Igor Fruman (with whom Manafort does have ties) and Lev Parnas, who were beginning to sidle up to Trump in this period. ABJ ruled that the government hadn’t proven their case on this point, and the ERISA focus sure helps make that case.

Documents

Exhibit 1. Government’s Submission in Support of its Breach Determination: 461 (675)

Exhibit 2. Defendant Paul J. Manafort Jr.’s Response to the Special Counsel’s Submission in Support of its Breach Determination: 470 (676)

Exhibit 3. Weiland Declaration in Support of the Government’s Breach Determination and Sentencing: 477 (677)

Exhibit 4. Defendant Paul J. Manafort, Jr.’s Reply to the Special Counsel’s Declaration and Exhibits in Support of its Breach Determination: 481 (678)

Exhibit 5. Transcript of Sealed Hearing Hld before Judge Amy Berman Jackson on 2/4/2019

Exhibit 6. Defendant Paul J. Manafort, Jr.’s Post Hearing Memorandum: 502 (679)

Exhibit 7. Government’s Supplement to the Record in Response to Defendant Manafort’s Post Hearing Memorandum: 507 (680)

Exhibit 8. Transcript of Sealed Hearing Held Before Judge Amy Berman Jackson on 2/13/2019

Exhibit 9. Government’s Sentencing Memorandum: 528 (681)

Exhibit 10. Government’s Supplemental Memorandum with Respect to the Court’s February 13, 2019 Ruling: 533/537 (682)

Exhibit 11. Defendant Paul J. Manafort’s Reply and Motion to Reconsider Based on the Special Counsel’s Supplemental Memorandum With Respect to the Court’s February 13, 2019 Ruling: 538 (683)

Exhibit 12. Minute Order on March 1, 2019

The Manafort docket is here and the docket for the WaPo effort that liberated the files is here.

Timeline

March 7, 2019: WaPo moves to release the documents

March 13, 2019: Manafort sentencing

March 19, 2019: Michael Dreeben, still on the Mueller team, moves for a short extension until the release of the Mueller Report

March 25, 2019: Post-sentencing DC USAO replaces Mueller team with Deborah Curtis, Zia Faruqui, Jonathan Kravis

March 27, 2019: DC USAO, having inherited the case, moves for another short extension

April 15, 2019: Jonathan Kravis opposes an immediate unsealed, in part on account of “ongoing investigations,” and asks for an abeyance until October 15, 2019

December 6, 2020: ABJ orders Manafort and the government to see whether documents can be unsealed

January 5, 2020: Kravis asks for a 60-day deadline to review the documents

February 11, 2020: In response to Barr’s interference in Stone case, Kravis and all other Stone prosecutors quit

March 3, 2020: Molly Gaston takes over and submits a joint motion for a further 60 day delay

April 28, 2020: Citing COVID, parties submit joint motion for further 30 day delay

June 2, 202: Parties submit joint motion for further 30 day delay

June 23, 2020: FBI releases Wanted poster for Konstantin Kilimnik offering $250,000 for his arrest

July 20, 2020: Parties submit sealed redactions, asking to keep “information from grand jury proceedings protected by Federal Rule of Criminal Procedure 6(e) or [that is] is necessary to protect the privacy interests of certain individuals” sealed

August 19, 2020: FBI releases second package of Kilimnik wanted materials

October 13, 2020: DC USAO replaces Zia Faruqui after he becomes a magistrate judge, with Arvind Lal

April 15, 2021: Treasury states as fact that Kilimnik shared polling data and campaign strategy with Russian intelligence

May 21, 2021: ABJ orders release, protecting only grand jury information and identities that have not been charged

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Bill Barr Issued Prosecution Declinations for Three Crimes in Progress

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On March 24, 2019, by judging that there was not evidence in Volume II of the Mueller Report that Trump had obstructed justice, Billy Barr pre-authorized the obstruction of justice that would be completed with future pardons of Mike Flynn, Paul Manafort, and Roger Stone. He did so before the sentencing of Flynn and before even the trial of Stone.

This is why Amy Berman Jackson should not stay her decision to release the Barr Memo. It’s why the question before her goes well beyond the question of whether the Barr memo presents privileged advice. What Barr did on March 24, 2019 was pre-authorize the commission of crimes that ended up being committed. No Attorney General has the authority to do that.

As the partially unsealed memo makes clear, Steve Engel (who, even per DOJ’s own filing asking for a stay, was not permitted to make prosecutorial decisions) and Ed O’Callaghan (who under the OLC memo prohibiting the indictment of the President, could not make prosecutorial decisions about the President) advised Bill Barr that he should, “examine the Report to determine whether prosecution would be appropriate given the evidence recounted in the Special Counsel’s Report, the underlying law, and traditional principles of federal prosecution.”

In her now-unsealed memo ordering the government to release the memo, ABJ argues, “the analysis set forth in the memo was expressly understood to be entirely hypothetical.”

It was worse than that.

It was, necessarily, an instance of “Heads Trump wins, Tails rule of law loses.” As the memo itself notes, the entire exercise was designed to avoid, “the unfairness of levying an accusation against the President without bringing criminal charges.” It did not envision the possibility that their analysis would determine that Trump might have committed obstruction of justice. So predictably, the result of the analysis was that Trump didn’t commit a crime. “[W]ere there no constitutional barrier, we would recommend, under Principles of Federal Prosecution, that you decline to commence such a prosecution.”

The government is now appealing ABJ’s decision to release the memo to hide the logic of how Engel and O’Callaghan got to that decision. And it’s possible they want to hide their analysis simply because they believe that, liberated from the entire “Heads Trump wins, Tails rule of law loses” premise of the memo, it becomes true deliberative advice (never mind that both Engel and O’Callaghan were playing roles that OLC prohibits them to play).

But somehow, in eight pages of secret analysis, Engel and O’Callaghan decide — invoking the entire Special Counsel’s Report by reference — that there’s not evidence beyond a reasonable doubt that Trump obstructed justice.

We can assume what some of these eight pages say. In the newly unsealed parts, Engel and O’Callaghan opine, “that certain of the conduct examined by the Special Counsel could not, as a matter of law, support an obstruction charge under the circumstances.”

As Quinta Jurecic’s epic chart lays out, the potential instances of obstruction of justice before Engel and O’Callaghan included a number of things involving Presidential hiring and firing decisions — the stuff which the memo Bill Barr wrote as an audition for the job of Attorney General said could not be obstruction.

To address those instances of suspected obstruction, then, Engel and O’Callaghan might just say, “What you said, Boss, in the memo you used to audition to get this job.” That would be scandalous for a whole bunch of reasons — partly because Barr admitted he didn’t know anything about the investigation when he wrote the memo (even after the release of the report, Barr’s public statements made it clear he was grossly unfamiliar with the content of it) and partly because it would raise questions about whether by hiring Barr Trump obstructed justice.

But that’s not actually the most scandalous bit about what must lie behind the remaining redactions. As Jurecic’s chart notes, beyond the hiring and firing obstruction, the Mueller Report laid out several instances of possible pardon dangles: to Mike Flynn, to Paul Manafort, to Roger Stone, and to Michael Cohen. These are all actions that, in his confirmation hearing, Barr admitted might be crimes.

Leahy: Do you believe a president could lawfully issue a pardon in exchange for the recipient’s promise to not incriminate him?

Barr: No, that would be a crime.

Even Barr admits the question of pardon dangles requires specific analysis.

Klobuchar: You wrote on page one that a President persuading a person to commit perjury would be obstruction. Is that right?

Barr: [Pause] Yes. Any person who persuades another —

Klobuchar: Okay. You also said that a President or any person convincing a witness to change testimony would be obstruction. Is that right?

Barr: Yes.

Klobuchar: And on page two, you said that a President deliberately impairing the integrity or availability of evidence would be an obstruction. Is that correct?

Barr: Yes.

Klobuchar: OK. And so what if a President told a witness not to cooperate with an investigation or hinted at a pardon?

Barr: I’d have to now the specifics facts, I’d have to know the specific facts.

Yet somehow, in eight pages of analysis, Engel and O’Callaghan laid out “the specific facts” that undermined any case against Trump for those pardon dangles. I’d be surprised if they managed to do that convincingly in fewer than eight pages, particularly since they make clear that they simply assume you’ve read the Mueller Report (meaning, that analysis almost certainly doesn’t engage in the specific factual analysis that Bill Barr says you’d need to engage in).

The far, far more problematic aspect of this analysis, though, is that, of the four potential instances of pardon dangles included in the Mueller Report, three remained crimes-in-progress on March 24, 2019 when Barr issued a statement declining prosecution for them.

By then, Michael Cohen had already pled guilty and testified against Trump. But Paul Manafort had only just been sentenced after having reneged on a cooperation agreement by telling lies to hide what the government has now confirmed involved providing assistance (either knowing or unknowing) to the Russia election operation. Mike Flynn had not yet been sentenced — and in fact would go on to renege on his plea agreement and tell new lies about his conduct, including that when he testified to the FBI that he knew he discussed sanctions, he didn’t deliberately lie. And Roger Stone hadn’t even been tried yet when Barr said Stone’s lies to protect Trump weren’t a response to Trump’s pardon dangles. In fact, if you believe Roger Stone (and I don’t, in part because his dates don’t line up), after the date when Barr issued a declination statement covering Trump’s efforts to buy Stone’s silence, prosecutors told him,

that if I would really remember certain phone conversations I had with candidate trump, if I would come clean, if I would confess, that they might be willing to, you know, recommend leniency to the judge perhaps I wouldn’t even serve any jail time

If that’s remotely true, Barr’s decision to decline prosecution for the pardon dangles that led Stone to sustain an obviously false cover story through his trial itself contributed to the obstruction.

Barr’s decision to decline prosecution for obstruction crimes that were still in progress may explain his even more outrageous behavior after that. For each of these remaining crimes in progress, Barr took steps to make it less likely that Trump would issue a pardon. He used COVID as an excuse to spring Paul Manafort from prison to home confinement, even though there were no cases of COVID in Manafort’s prison at the time. He engaged in unprecedented interference in the sentencing process for Roger Stone, even going so far as claiming that threats of violence against (as it happens) Amy Berman Jackson were just a technicality not worthy of a sentencing enhancement. And Bill Barr’s DOJ literally altered documents in their effort to invent some reason to blow up the prosecution of Mike Flynn.

And Barr may have realized all this would be a problem.

On June 4, a status report explained that DOJ was in the process of releasing the initially heavily redacted version of this memo to CREW and expected that it would be able to do so by June 17, 2020, but that “unanticipated events outside of OIP’s control” might delay that.

However, OIP notes that processing of the referred record requires consultation with several offices within DOJ, and that unanticipated events outside of OIP’s control may occur in these offices that could delay OIP’s response. Accordingly, OIP respectfully submits that it cannot definitively guarantee that production will be completed by June 17, 2020. However, OIP will make its best efforts to provide CREW with a response regarding the referred record on or before June 17, 2020

This consultation would have occurred after Judge Emmet Sullivan balked at DOJ’s demand that he dismiss the Flynn prosecution, while the DC Circuit was reviewing the issue. And it occurred in the period when Stone was using increasingly explicit threats against Donald Trump to successfully win a commutation of his sentence from Trump (the commutation occurred weeks after DOJ gave CREW a version of the memo that hid the scheme Barr had engaged in). That is, DOJ was making decisions about this FOIA lawsuit even as Barr was taking more and more outrageous steps to try to minimize prison time — and therefore the likelihood of a Trump pardon — for these three. And Trump was completing the act of obstruction of justice that Barr long ago gave him immunity for by commuting Stone’s sentence.

Indeed, Trump would go on to complete the quid pro quo, a pardon in exchange for lies about Russia, for all three men. Trump would go on to commit a crime that Barr already declined prosecution for years earlier.

While Barr might believe that Trump’s pardon for Mike Flynn was righteous (even while it undermined any possibility of holding Flynn accountable for being a secret agent of Turkey), there is no rational argument you can make that Trump’s pardon of Manafort after he reneged on his plea deal and Trump’s pardon of Stone after explicit threats to cooperate with prosecutors weren’t obstruction of justice.

This may influence DOJ’s decision not to release this memo, and in ways that we can’t fathom. There are multiple possibilities. First, this may be an attempt to prevent DOJ’s Inspector General from seeing this memo. At least the Manafort prison assignment and the Stone prosecution were investigated and may still be under investigation by DOJ. If Michael Horowitz discovered that Barr took these actions after approving of a broad pre-declination for pardon-related obstruction, it could change the outcome of any ongoing investigation.

It may be an effort to stave off pressure to open a criminal investigation by DOJ into Barr’s own actions, a precedent no Attorney General wants to set.

Or, it may just be an effort to hide how many of DOJ’s own rules DOJ broke in this process.

But one thing is clear, and should be clearer to ABJ than it would be to any other judge: Bill Barr issued a prosecution declination for three crimes that were still in process. And that’s what DOJ is hiding.

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Amy Berman Jackson Accuses Bill Barr of a Preemptive Strike on the Mueller Report

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I was down so many rabbit holes today I forgot to link to Amy Berman Jackson’s unsealed opinion, which she released today (here’s the redacted version).

Much of what had previously been redacted pertained to the first section, which got released last night. Otherwise, there’s ABJ’s accusation that DOJ was hiding that Bill Barr launched a pre-emptive strike on the Mueller Report.

But given ABJ’s notice that she’s still considering whether to grant the government a stay, I think this footnote (the bold was formerly redacted) is of interest.

18 There is no need for the Court to determine what its ruling would have been had the agency candidly informed it that the purpose of the document was to provide legal analysis to help shape the assessment of the Special Counsel’s report that the Attorney General was planning to announce for the reasons set forth in Section I of the memorandum. It is the government’s burden to support its withholdings.

This is the question before her now, whether the advice in the redacted section is so tainted by its purpose that she’ll release the full memo.

My guess is she won’t — unless there’s something about the analysis itself, such as that it obviously replicates Barr’s opinion about the investigation that he used to get hired, or if it misrepresents the results of the investigation (remember, ABJ presided over Paul Manafort’s DC proceedings and Roger Stone’s trial, so she knows what Mueller found as well as anyone). And the pardons Trump has since offered the people whose lies he guaranteed by dangling those pardons may alter this calculus, particularly if the analysis contradicts Barr’s agreement, offered three times in his confirmation hearing, that dangling pardons for false testimony would be obstruction.

Until then, DOJ has already launched its appeal.

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Lev Parnas Wants in on the Rudy Giuliani Warrant Bonanza

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Lev Parnas just submitted a filing in his case — joined by the remaining defendants — asking for a discovery hearing where SDNY will tell them when they will get the evidence seized from Rudy Giuliani and Victoria Toensing that is helpful to their defense. It describes how, after inquiring how the searches on Rudy and Toensing affect them, on May 14, the government explained that Judge Paul Oetken has given the government multiple gags, covering the time through June 30, to delay disclosure.

And it sounds like the government seized material from more than just Rudy and Toensing. At least two sentences of this description of the searches likely doesn’t pertain to them.

Parnas explains that he expects those searches will include materials useful to his defense from:

  • Rudy
  • Toensing
  • “the former President”
  • Billy Barr
  • “high-level members of the Justice Department”
  • Jay Sekulow
  • Jane Raskin
  • Senator Lindsey Graham
  • Congressman Devin Nunes

He expects those materials will reveal “the timing of the arrest and indictment of the defendants as a means to prevent potential disclosures to Congress in the first impeachment inquiry of then-President” Trump. He says he’ll have exceptions to any “potentially applicable privilege.”

He also expects that there may be information that got deleted (the implication is, by him) about “how to address their prior relationships, and the unfolding investigation.”

Update: As a number of people have noted, that big redaction is one of the fake redactions that defense attorneys sometimes disclose sensitive information under. Copy and pasting shows that the following other people were also targeted.

In a chart, the Government identified that it had sought and seized a variety of undisclosed materials from multiple individuals, including: the iCloud and e-mail accounts of Rudolph Giuliani (11/04/19); the iCloud account of Victoria Toensing (11/04/19); an email account believed to belong to former Prosecutor General of Ukraine, Yuriy Lutsenko (11/6/19); an e-mail account believed to belong to the former head of the Ukrainian Fiscal Service, Roman Nasirov (12/10/19); the e-mail account of Victoria Toensing (12/13/19); the iPhone and iPad of pro-Trump Ukrainian businessman Alexander Levin (02/28/2020 and 3/02/2020); an iCloud account believed to belong to Roman Nasirov (03/03/2020); historical and prospective cell site information related to Rudolph Giuliani and Victoria Toensing (04/13/2021); electronic devices of Rudolph Giuliani and Giuliani Partners LLC (04/21/2021); and the iPhone of Victoria Toensing.

Several of these people were named in a July 2019 OCCRP story on Parnas and Fruman that the whistleblower included in his complaint against Trump. Which is to say, this is the investigation we would have gotten had DOJ not worked so hard to protect Rudy and, through him, Trump, back in 2019.

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Frankenstein’s OLC: DOJ Says DOJ Can’t Do What DOJ Did in the Barr Memo

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DOJ’s memo asking Amy Berman Jackson to stay her opinion releasing the OLC memo admits that DOJ is not permitted to do what DOJ did with the Barr memo it is trying to withhold from FOIA. And part of the memo itself, which DOJ unsealed last night, also shows DOJ is not permitted to do what DOJ did.

The memo itself admits, for example, that the OLC is not permitted to do what only other parts of DOJ — here, FBI — have the authority to do.

One relevant factor in determining whether a document is predecisional is whether the author possesses the legal authority to decide the matter at issue. See, e.g., Electronic Frontier Found. v. DOJ, 739 F.3d 1, 9 (D.C. Cir. 2014) (“OLC is not authorized to make decisions about the FBI’s investigative policy, so the OLC Opinion cannot be an authoritative statement of the agency’s policy.”).

That undoubtedly extends to prosecutorial decisions. And yet OLC did make a prosecutorial decision.

Rather, the declarations and briefs on the whole made clear that the decision in question was whether the facts articulated by Volume II of the Special Counsel’s Report were sufficient to establish that the President had committed obstruction of justice, i.e., whether the facts constituted prosecutable conduct under the Principles of Federal Prosecution.

DOJ found a way around that, of course, in Julie Straus Harris’ flourish: the inclusion of Ed O’Callaghan in the deliberation. Except that’s a problem, because every declaration in this litigation treats this as an OLC memo, not a prosecutorial memo.

Moreover, it means O’Callaghan made a decision he was not permitted to do by the OLC: make a decision about whether or not the President committed a crime.

In fact, the memo itself states that DOJ is limited in what it can do: either bring charges or not.

Although the Special Counsel has declined to reach a conclusion, we think that the Department should reach a judgement on this matter. Under traditional principles of prosecution, the Department either brings charges or it does not.

Except in this instance, Barr did something else (indeed, ABJ’s memo makes it clear that was the entire point): he announced a decision on prosecution that was more than a declination. He chose to make a decision that OLC says he can’t make.

OLC does not, as it would be required to, state that DOJ can make a prosecutorial decision that involves something other than bringing charges or not.

This is, ultimately, a Frankenstein monster, both a prosecutorial decision that, absent more analysis than appears here, OLC says neither O’Callaghan nor Barr were permitted to make, and an OLC memo engaged in a prosecutorial role that OLC says OLC can’t do. Effectively, then, this memo engages in activities that defies the claim that OLC guidance governs the entirety of the Executive Branch, including OLC.

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On the Barr Memo: Julie Straus Harris Says Julie Straus Harris’ Unexplained “Flourish” Wasn’t a Lie

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Yesterday, DOJ told Amy Berman Jackson that they will appeal her decision to release the entirety of a memo written to justify Billy Barr taking a “Heads Trump wins Tails democracy loses” approach to the decision on how to deal with the Mueller Report. There are several problems with their motion for a stay while they do that.

To understand the first problem, note the signature line of their motion for a stay.

It is signed by — among others — Julie Straus Harris.

That’s a problem, possibly even an ethical one, because in addition to problems with the declarations submitted by Vanessa Brinkmann and Paul Colburn, ABJ had a specific problem with a brief submitted by Straus Harris (and approved by Elizabeth Shapiro, her boss).

As ABJ noted in her opinion, Straus Harris added a “flourish” that was not supported by any of the underlying declarations.

And the in camera review of the document, which DOJ strongly resisted, see Def.’s Opp. to Pl.’s Cross Mot. [Dkt. # 19] (“Def.’s Opp.”) at 20–22 (“In Camera Review is Unwarranted and Unnecessary”), raises serious questions about how the Department of Justice could make this series of representations to a court in support of its 2020 motion for summary judgment:

[T]he March 2019 Memorandum (Document no. 15), which was released in part to Plaintiff is a pre-decisional, deliberative memorandum to the Attorney General from OLC AAG Engel and PADAG Edward O’Callaghan . . . . The document contains their candid analysis and advice provided to the Attorney General prior to his final decision on the issue addressed in the memorandum – whether the facts recited in Volume II of the Special Counsel’s Report would support initiating or declining the prosecution of the President . . . . It was provided to aid in the Attorney General’s decision-making processes as it relates to the findings of the Special Counsel’s investigation . . . . Moreover, because any determination as to whether the President committed an obstruction-of-justice offense was left to the purview of the Attorney General, the memorandum is clearly pre-decisional.

Def.’s Mem. in Supp. of Mot. [Dkt. # 15-2] (“Def.’s Mem.”) at 14–15 (internal quotations, brackets, and citations omitted).13

13 The flourish added in the government’s pleading that did not come from either declaration – “PADAG O’Callaghan had been directly involved in supervising the Special Counsel’s investigation and related prosecutorial decisions; as a result, in that capacity, his candid prosecutorial recommendations to the Attorney General were especially valuable.” Id. at 14 – seems especially unhelpful since there was no prosecutorial decision on the table.

In the motion for a stay, Julie Straus Harris says, sorry, “the briefs” — her briefs — “could have been clearer … but the government’s counsel” — meaning, Straus Harris — “did not intend to mislead the Court.”

On the merits, the Court’s decision was substantially premised on the view that the government’s briefs and declarations incorrectly described the nature of the decisional process in which the Attorney General was engaged. In retrospect, the government acknowledges that its briefs could have been clearer, and it deeply regrets the confusion that caused. But the government’s counsel and declarants did not intend to mislead the Court, and the government respectfully submits that imprecision in its characterization of the decisional process did not warrant the conclusion that Document no. 15 was unprotected by the deliberative process privilege.

The motion spends several pages explaining why the Brinkmann and Colburn declarations were not misleading. That section vaguely waves at “briefing” to address claimed inaccuracies in the briefs written by Straus Harris. The section mentions the offending brief once, but without even remotely addressing the brief itself.

The first Colborn Declaration likewise explained that Document no. 15 “was submitted to the Attorney General to assist him in determining whether the facts set forth in Volume II of Special Counsel Mueller’s report ‘would support initiating or declining the prosecution of the President for obstruction of justice under the Principles of Federal Prosecution.’” Colborn Decl. ¶ 17. That description quotes from the unredacted portion of the opening sentence of the memorandum and is accurate; it neither states nor necessarily implies that the authors were advising the Attorney General on whether the President should actually be prosecuted. See also Def.’s Mem. in Supp. of Mot. for Summ. J. (Def.’s Mem.) (ECF No. 15-2) 14 (quoting Colborn Decl.). [my emphasis]

But the section explaining that ABJ’s complaints, while understandable, are unfounded never addresses ABJ’s complaint about the Straus Harris “flourish,” which is a complaint of a different kind. Edward O’Callaghan is only mentioned as an author of this memo.

To be sure: Straus Harris didn’t simply invent O’Callaghan’s role or his import out of thin air. She’s not making stuff up. She’s right that her claim about O’Callaghan was not a lie, even if she never makes it explicitly. But in a legal and ethical sense, she made an assertion about which no one has asserted to the veracity or even explained. This memo assumes as given that OLC and a prosecutor’s supervisor can get together and write an OLC memo, something which was obviously problematic even before these memos started coming out. And that’s a problem because the reasons why DOJ didn’t want to explain O’Callaghan’s role in a declaration (indeed, could not) go to the core of the problems with the Barr Memo.

I’m sympathetic that Straus Harris got put on the front line to answer for Billy Barr’s wildly inappropriate efforts to give the President a clean bill of health. But she is now in a position where she’s submitting a brief about her own conduct, and that brief entirely ignores ABJ’s complaint about her conduct.

Had Paul Colburn included in his declarations an admission that DOJ had let O’Callaghan serve a hybrid role, ABJ wouldn’t have had the confusion that DOJ is now trying to explain away. But admitting that would have — and does — admit to far graver problems with the Barr Memo.

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Steve Bannon, Roger Stone, and the Ongoing Investigation into Cambridge Analytica

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Steve Bannon responded to what may have been Alexander Nix’s pitch to reach out to Julian Assange to help find Hillary Clinton’s missing emails in June 2016 by responding, “Love it.”

DOJ has hidden that email in a series of FOIA releases to BuzzFeed under a b7A redaction, claiming an ongoing investigation prevents its release.

DOJ also continues to hide Roger Stone’s possible involvement in all this.

We can unpack what that email means by piecing together the multiple releases of Steve Bannon’s interviews and backup material liberated by BuzzFeed, which I’ve laid out in this post.

Bannon was first asked about this email — which DOJ released with b7B redactions related to the pending Roger Stone trial — in his February 14, 2018 interview, at which Bannon made a lot of claims that violently conflict with the now public record. Bannon claimed not to remember the email and also claimed not to know whether the person who sent the email ever did reach out to this person. The redactions show that the person in question had a 3-character name, meaning Nix is almost certainly the person at Cambridge Analytica who sent it. And the date of the email, June 12, is the same day that Assange said he had Hillary’s emails, the Assange comments in response to which Nix has said he did reach out.

DOJ released another copy of the same email when it released more of the backup to Bannon’s interviews earlier this month. DOJ redacted the previously released passages under privacy exemptions, and redacted the previously unredacted date under an ongoing b7A exemption. So it’s useless to help determine the full content of the email.

But it makes it possible to connect the email to Bannon’s second explanation of it in his October 28, 2018 interview. Bannon’s attempts to claim that “Love it” means “I don’t love it” were no more convincing in his October 2018 interview than they were in his February 2018 interview. Though by the end of his answer, Bannon admitted that, as someone who ran a media company and not yet a campaign, “there wasn’t any reason why doing it would be wrong.”

In this second explanation of the email, Bannon makes it quite clear that this was part of his effort to find Hillary’s missing 33,000 emails — the same purpose which Alexander Nix has admitted his outreach to Assange served. It appears that this email is a different one than the one that has been reported in the past, where Nix told Rebekah Mercer and someone else who was not (as Bannon was not yet) on the campaign that he had reached out to Assange.

If that’s right, then it’s unclear why the Congressional committees didn’t get this email, or indeed, why SSCI had to rely on the Daily Beast report of the outreach that purportedly sourced to Congressional investigators.

In that second interview, Bannon also described the coverage in 2017, which again strongly suggests this is Nix reaching out to Assange.

But that may not be the most important part of this email.

The passages from Bannon’s February 2018 interview that got reprocessed after Stone’s trial show that the second question after the one about this June 12 email prompted Bannon to explain how he met Stone. There’s even a question about whether Bannon introduced someone — again, a three letter name — to Stone. Stone and this person didn’t have a relationship, Bannon said, but the person was “trying to get business from Stone.” Bannon said he may have introduced the two.

Then there are a series of questions about other emails, several of which were withheld, probably under b7A redactions. Those include:

Bannon’s explanation for the second May 4 email is that it relates to Stone’s May 7 email (described as “Document #17).

All this seems to suggest that, even before Nix reached out to Julian Assange, he or someone else at CA and Stone were in discussions about a very sizable data project.

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“Fool’s Gold:” The Polls Shared with Konstantin Kilimnik Integrated Tony Fabrizio’s Polling with Cambridge Analytica’s

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The parties are releasing less redacted versions of filings related to Paul Manafort’s breach determination. Virtually all reveal things I covered closely in real time.

One thing that’s new — and newsworthy — is a passage of Rick Gates’ February 7, 2018 proffer in which he describes how he came to integrate Tony Fabrizio’s polling with Cambridge Analytica and Data Trust.

This means that the polling data that would have been shared with Kilimnik involved a polling company that he was working with Sam Patten on, on top of the Fabrizio polling he had worked with for years with Paul Manafort.

As it happens I’m working on some other Cambridge Analytica issues that make this more interesting.

The same proffer also notes that the campaign decided to focus on Pennsylvania in mid-August (even though Manafort reportedly raised it with Kilimnik in their August 2, 2016 meeting), and that at that point, “Pennsylvania … was ‘fool’s gold’ and Trump was unlikely to win there.” Which would suggest that Kilimnik “knew” that the Trump campaign was going to win Pennsylvania before the campaign itself.

Update: I see I wrote this too quickly and need to clarify two things. First, when I say that Kilimnik “knew” the campaign was going to win Pennsylvania before the campaign itself, I’m referencing the report in the Mueller Report that at this August 2 briefing, Manafort included PA among the states that he believed the campaign would win. Per Gates’ explanation, that was at a time when the campaign believed they couldn’t win PA.

As for the CA claim, it is both contrary to a lot of claims made by other witnesses to Mueller, and probably early enough to present all sorts of legal problems for Trump.

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You Cannot Discuss Disinformation and the Steele Dossier without Discussing Oleg Deripaska

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The New York Times’ Barry Meier is the latest person to become part of the disinformation project associated with the Steele dossier, while claiming to critique it.

Before I explain why, let me lay out some very basic facts about the Steele dossier about which anyone deigning to comment on it at this point should be expected to exhibit basic awareness.

It is a fact that, starting in 2014 and continuing at least through at least February 2017, Christopher Steele used his relationship with DOJ’s Organized Crime expert, Bruce Ohr, to encourage ties between Oleg Deripaska and the US government. That included brokering a meeting between Ohr and Deripaska in 2015, and several communications in 2016 before Fusion GPS hired Christopher Steele to investigate Trump. It included Steele’s meeting with Ohr on July 30, 2016, at which Steele provided Ohr information on Russian doping, details from his reporting for the DNC, and news about Deripaska’s lawsuit against Paul Manafort. On December 7, 2016 — the day before Deripaska associate Konstantin Kilimnik would renew his pitch to Paul Manafort on a plan to carve up Ukraine — Ohr even suggested that Deripaska would be a useful source to reveal Manafort and Trump’s corruption. Just as Steele was working with the DNC via an attorney client, Steele was working with Deripaska via one or more attorney client. Like Manafort, Steele was under financial pressure in this period, and so was eager to keep Deripaska’s attorneys as a client. This post and this post provide a summary of their exchanges over that year.

It is a fact that Steele’s primary subsource, Igor Danchenko, described that in March 2016, Steele tasked Danchenko to find out what he could learn about Paul Manafort’s corruption and his ties to Ukraine (though Danchenko had little success). When asked about the client for this work, Danchenko, “had no inclinations as to why, or for whom, Steele was asking about Manafort.”

It is a fact that the DOJ Inspector General Report on Carter Page provided evidence to suggest an associate of Oleg Deripaska — and so we should assume Oleg Deripaska himself — learned of Steele’s dossier on Donald Trump by early July 2016, which would have been after just the first report had been completed.

Ohr told the OIG that, based on information that Steele told him about Russian Oligarch 1, such as when Russian Oligarch 1 would be visiting the United States or applying for a visa, and based on Steele at times seeming to be speaking on Russian Oligarch l’s behalf, Ohr said he had the impression that Russian Oligarch 1 was a client of Steele. 210 We asked Steele about whether he had a relationship with Russian Oligarch 1. Steele stated that he did not have a relationship and indicated that he had met Russian Oligarch 1 one time. He explained that he worked for Russian Oligarch l’s attorney on litigation matters that involved Russian Oligarch 1 but that he could not provide “specifics” about them for confidentiality reasons. Steele stated that Russian Oligarch 1 had no influence on the substance of his election reporting and no contact with any of his sources. He also stated that he was not aware of any information indicating that Russian Oligarch 1 knew of his investigation relating to the 2016 U.S. elections. 211

210 As we discuss in Chapter Six, members of the Crossfire Hurricane team were unaware of Steele’s connections to Russian Oligarch 1. [redacted]

211 Sensitive source 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 2016.

This means that Deripaska’s associate probably learned of the dossier project before Steele met with Ohr on July 30 to share — along with information on Russian doping — information about Deripaska’s lawsuit against Manafort and the first tidbits from Steele’s dossier reporting.

It is a fact that in the same month, early June 2017, that the Intelligence Community found evidence that an Oleg Deripaska associate had learned of the dossier project, the Intelligence Community found evidence that two people with ties to Russian intelligence learned of the dossier project.

According to the Supervisory Intel Analyst, the cause for the discrepancies between the election reporting and explanations later provided to the FBI by Steele’s Primary Sub-source and sub-sources about the reporting was difficult to discern and could be attributed to a number of factors. These included miscommunications between Steele and the Primary Sub-source, exaggerations or misrepresentations by Steele about the information he obtained, or misrepresentations by the Primary Sub-source and/or sub-sources when questioned by the FBI about the information they conveyed to Steele or the Primary Sub-source. 342

342 In late January 2017, a member of the Crossfire Hurricane team received information [redacted] that RIS [may have targeted Orbis; redacted] and research all publicly available information about it. [redacted] However, an early June 2017 USIC report indicated that two persons affiliated with RIS were aware of Steele’s election investigation in early [sic] 2016. The Supervisory Intel Analyst told us he was aware of these reports, but that he had no information as of June 2017 that Steele’s election reporting source network had been penetrated or compromised.

The Intelligence Community has identified two associates of Deripaska — Konstantin Kilimnik and Victor Boyarkin (through both of whom Manafort’s reports on the Trump campaign were funneled) — who have ties to Russian intelligence, so it’s possible that this early June 2017 intelligence is actually the same report, showing that a Manafort associate who had ties to Russian intelligence had learned of the dossier.

It is also a fact that Natalia Veselnitskaya, who because she was also a Fusion GPS client, was by far the most likely person to learn of a project conducted by Fusion GPS (possibly through Ed Baumgartner, who was working both the Fusion project with Veselnitskaya and the one with the DNC), also has ties to Russian intelligence.

It is a fact that when DOJ’s Inspector General entertained with the Crossfire Hurricane team the possibility that the Steele dossier had been injected with disinformation, DOJ IG envisioned Oleg Deripaska running that effort.

Priestap told us that the FBI “didn’t have any indication whatsoever” by May 2017 that the Russians were running a disinformation campaign through the Steele election reporting. Priestap explained, however, that if the Russians, in fact, were attempting to funnel disinformation through Steele to the FBI using Russian Oligarch 1, he did not understand the goal. Priestap told us that

what he has tried to explain to anybody who will listen is if that’s the theory [that Russian Oligarch 1 ran a disinformation campaign through [Steele] to the FBI], then I’m struggling with what the goal was. So, because, obviously, what [Steele] reported was not helpful, you could argue, to then [candidate] Trump. And if you guys recall, nobody thought then candidate Trump was going to win the election. Why the Russians, and [Russian Oligarch 1] is supposed to be close, very close to the Kremlin, why the Russians would try to denigrate an opponent that the intel community later said they were in favor of who didn’t really have a chance at winning, I’m struggling, with, when you know the Russians, and this I know from my Intelligence Community work: they favored Trump, they’re trying to denigrate Clinton, and they wanted to sow chaos. I don’t know why you’d run a disinformation campaign to denigrate Trump on the side. [brackets original]

I have laid out the evidence that Oleg Deripaska was playing both sides in 2016, taking steps to make Manafort more vulnerable legally and financially even as his deputy Kilimnik was using Manafort’s vulnerability to swap campaign information for a plan to carve up Ukraine and financial salvation. The same post shows how every single report in the dossier could serve key Russian purposes, both associated with the 2016 operation and more generally (though I’m not arguing the entire dossier was disinformation). If the dossier was disinformation, it would taint a great number of anti-Russian experts, from Steele to the FBI to others in the US government.

If you’re going to write about the Steele dossier at all in 2021, you should exhibit some familiarity with these facts. All the more so if you’re going to talk about whether it was disinformation.

But NYT’s Barry Meier doesn’t do that. Last week, Meier published an excerpt from his book on private intelligence services. The entire excerpt uses the Steele dossier as the exemplar of what can go wrong when private intelligence services sell information collection to clients and also share that information with journalists. I don’t disagree that the dossier was a shit-show, but then I’ve been warning about that for four years now.

As part of Meier’s proof of the shoddy product in the dossier, Meier astoundingly quotes Natalia Veselnitskaya, without clearly explaining that when he says Veselnitskaya “worked alongside” Glenn Simpson, he meant she thought highly enough of his services to employ him.

Over dinner in Moscow in 2019, Natalia Veselnitskaya, a Russian lawyer who met with Donald Trump Jr. at Trump Tower during the 2016 campaign, offered her take on the matter. Ms. Veselnitskaya had worked alongside Mr. Simpson when she represented a Russian-owned real estate firm called Prevezon Holdings and said she regarded him as a skilled investigator. As for Mr. Steele and the dossier, she had nothing but contempt.

“If you take this fake stuff for real, then you just have to be brave enough to believe, to completely dismiss all your special services, all your intelligence staff,” she said rapidly through an interpreter. She suggested how odd it was that all those people and agencies “were never able to find out what that talented person found out without ever leaving his room.”

Ms. Veselnitskaya was embroiled in her own legal drama. The Justice Department had indicted her in connection with her work for Prevezon, a charge she denied. Still, she raised an issue that reporters who embraced the dossier had blown past: How did Christopher Steele know more about Donald Trump and Russia than the C.I.A. or MI6?

One basic piece of evidence that the dossier had been compromised was that neither Simpson nor Steele ever figured out Veselnitskaya had floated a quid pro quo directly to Trump’s son — sanctions relief for dirt — with Manafort in attendance. But Meier apparently doesn’t think that Veselnitskaya was the proof that she said Steele missed. That is, he apparently doesn’t even understand — perhaps because he knows so little about what the Mueller investigation actually revealed? — that he’s being trolled by Veselnitskaya and that troll is offered up as proof that Christopher Steele is uniquely vulnerable to getting fooled by spooked up Russians.

That’s Meier’s one piece of primary evidence against the dossier. Otherwise, Meier explains, investigative journalists like himself rely on primary sources.

Investigative journalists normally rely on court records, corporate documents and other tangible pieces of evidence.

But he recites the kind of understanding of Igor Danchenko you’d get from reading right wing propaganda about him, rather than the Danchenko’s interview itself which showed ways that the DOJ IG Report did not faithfully report on the Danchenko interview (and indeed, had to make a significant correction), or, frankly, all the other problems with the DOJ IG Report.

Meier relies on a series that Erik Wemple did, for which he says, “most journalists [Wemple] contacted either defended their work or ignored his inquiries.” Meier doesn’t mention that not only did I not ignore Wemple, but I told him (twice, I think, both for an early inquiry about Chuck Ross’ reporting on the dossier and for his later series) that to the extent the dossier was disinformation, Ross and Wemple had become part of that effort. That is, Meier may not know, but Wemple himself is guilty of what Meier accuses others of, ignoring inconvenient details that undermine his narrative.

Craziest still, Meier relies on the claims of Matt Taibbi, who has harbored outright conspiracy theories about 2016, and whose own “reporting” on the Russian investigation consistently relies on, and usually misrepresents, secondary sources rather than the primary texts.

In an article for Rolling Stone, Matt Taibbi cast the media’s handling of the dossier as a replay of a press disaster: the reporting before the Persian Gulf war, which claimed that Saddam Hussein had weapons of mass destruction. “The W.M.D. affair showed what happened when we don’t require sources to show us evidence, when we let political actors use the press to ‘confirm’ their own assertions,” Mr. Taibbi wrote. “Are we never going to own up to this one?”

On its own, Meier’s piece is a performance of the problems he complains about: relying on unreliable sources and apparent ignorance of the public record.

But it gets crazier still once you consider the response Glenn Simpson and Peter Fritsch posted to Meier’s work. Along with pointing to some inaccuracies in Meier’s attacks on them and some disclosures Meier should have made, they reveal that Fusion GPS played a bit part in the August 2016 NYT story on Manafort that led to his ouster from the Trump campaign.

By the time of the Democratic National Convention in July, we had been researching Trump for some 10 months — work that began for Republicans and was later continued for Democrats. On July 25, 2016, we met on the sidelines of the convention in Philadelphia with two ofthe Times’ top editors, Dean Baquet and Matt Purdy, to share information about our Trump-Russia research.

Among the topics we discussed was Paul Manafort’s prior work for Ukrainians backed by Putin. The next day, at Purdy’s request, we sent the Times a pile of public record documents that supported a conclusion that Manafort was in a compromised position in relation to Moscow, including records that showed he owed millions of dollars to Deripaska.

Purdy connected us with two of his top reporters. Barry Meier was also assigned to the story. He was having a hard time locating the Virginia court records we’d mentioned to Purdy and Baquet and reached out to Simpson and a colleague for help.

Fusion helped Meier find the records, and they featured prominently in the Times story published two weeks later, proving a vital link connecting Manafort and Deripaska:

After that story, Meier even went back to Fusion for any information they had on Deripaska.

The most important takeaway from the dossier is the way it served as a tool in Oleg Deripaska’s two-sided game that turned Paul Manafort into an easy target. And it turns out that way back in 2016, Meier (and Fusion, in yet another undisclosed way) was part of this two-sided game.

Update: The partially sealed documents in Manafort’s docket are being released today. This Rick Gates 302 shows how closely the August 2 meeting tied Deripaska’s efforts to increase Manafort’s legal and financial woes — the lawsuit — with the delivery of detailed information about how to win the campaign.

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