While Republicans Continue to Claim Collusion Didn’t Happen, George Papadopoulos Labeled Roger Stone’s Actions as Treason

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As part of its claim that the FBI withheld exculpatory information in Carter Page’s FISA application, the DOJ IG Report described George Papadopoulos’ interactions with Stefan Halper in mid-September 2016. When Halper twice asked Papadopoulos, “whether help ‘from a third party like Wikileaks for example or some other third party like the Russians, could be incredibly helpful’ in securing a campaign victory,” Papadopoulos categorically denied the campaign would reach out to WikiLeaks.

Well as a campaign, of course, we don’t advocate for this type of activity because at the end of the day it’s, ah, illegal. First and foremost it compromises the US national security and third it sets a very bad precedence [sic] …. So the campaign does not advocate for this, does not support what is happening. The indirect consequences are out of our hands…. [F]or example, our campaign is not. .. engag[ing] or reaching out to wiki leaks or to the whoever it is to tell them please work with us, collaborate because we don’t, no one does that…. Unless there’s something going on that I don’t know which I don’t because I don’t think anybody would risk their, their life, ah, potentially going to prison over doing something like that. Um … because at the end of the day, you know, it’s an illegal, it’s an illegal activity. Espionage is, ah, treason. This is a form of treason …. I mean that’s why, you know, it became a very big issue when Mr. Trump said, “Russia if you’re listening …. ” Do you remember? … And you know we had to retract it because, of course, he didn’t mean for them to actively engage in espionage but the media then took and ran with it.

When asked a second time, Papadopoulos called that “collusion.”

No one’s looking to … obviously get into trouble like that and, you know, as far as I understand that’s, no one’s collaborating, there’s been no collusion and it’s going to remain that way. [my emphasis]

When Papadopoulos has described this previously, he claimed he also denied having anything to do with Russia. If he did, it would be a lie. The very dates he was in London meeting with Halper, Papadopoulos had intended to conduct a secret meeting with Russia, something he failed to fully explain to Mueller. Even two weeks later, Papadopoulos was sharing an anti-sanction column in the Russian site Interfax with Joseph Mifsud.

It’s unclear whether Papadopoulos really believed that the campaign was not and would not coordinate with WikiLeaks. The most likely person he would have told that Russia planned to drop emails on Hillary back in April 2016 would be Stephen Miller, whom he emailed the day after learning of the emails and said, “Have some interesting messages coming in from Moscow about a trip when the time is right.” According to Rick Gates’ testimony at Roger Stone’s trial, Miller was one of several people with whom he brainstormed months later on how to optimize the WikiLeaks releases.

Q. Without saying what they said, who was involved in those brainstorming sessions about what to do if information was leaked?

A. Sure. It was Mr. Manafort; myself; Mr. Jason Miller, who was our director of communications; and Mr. Stephen Miller, who was our director of policy at the time.

According to the DOJ IG Report, the investigation team believed Papadopoulos had rehearsed his answer to Halper (and indeed, the Mueller Report makes clear that in the wake of Trump’s “Russia, are you listening” comment, everyone but Manafort stopped pursuing previous plans to reach out to Russia).

Case Agent 1 told the OIG that Papadopoulos’s “response to the direct questions seemed weird” to the Crossfire Hurricane team because it “seemed rehearsed and almost rote.” Case Agent 1 added that at these points in the conversation, Papadopoulos “went from a free-flowing conversation with [Source 2] to almost a canned response. You could tell in the demeanor of how [Papadopoulos] changed his tone, and to [the Crossfire Hurricane team] it seemed almost rehearsed.”

Whether or not he lied about knowing about “collusion,” which he defined to include reaching out to WikiLeaks, Papadopoulos defined doing so as treason. He’s wrong, but that is, apparently, what he said.

And less than a month ago, the government laid out evidence that Roger Stone had attempted to reach out to WikiLeaks via cut-outs, including Jerome Corsi. At the trial, the government did not disclose how Corsi and Stone had learned of the John Podesta emails in advance, but Stone invented yet a new cover story for the trial to continue to deny that he had done so, this time that Corsi had been lying about obtaining such information, just like Credico.

Absent a pardon, Stone is headed to prison because he refused to reveal what really happened in July and August 2016.

And whatever it is that Stone is hiding, what’s clear is he definitely tried to reach out to WikiLeaks, something that Papadopoulos claimed to consider treason.

Stone did so with the enthusiastic encouragement of Donald Trump.

During the impeachment “debate,” Republicans on the House Judiciary Committee just repeated over and over that the Mueller Report showed no “collusion.” But the facts show that, at least according to Papadopoulos’ definition, it did.

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

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American Democracy Needs Better Reporters than Pete Williams

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Bill Barr made big news yesterday saying intemperate things in what has charitably been called an “interview” with NBC’s Pete Williams. Those comments have distracted from other details of the so-called interview, which deserve further attention for the way that Williams was utterly useless in guiding the interview towards any of the questions that needed to be answered. Given Barr’s assault on the rule of law, garbage interviews like this undermine the Constitution.

Williams helps Barr continue to cover up his role in the Ukraine investigation

First, consider the exchange that Williams and Barr have to exonerate the Attorney General in involvement in Rudy Giuliani’s Ukraine conspiracy.

Williams: Were you ever asked by the White House to talk to anybody in Ukraine about an investigation of Joe Biden? (18:40)

Barr: No.

Williams: Are you concerned that Ukraine has a missing server from the Hillary Clinton emails?

Barr [searching look]: Fortunately I haven’t gotten into the Ukraine thing. I don’t know. I’m not even sure about the nature of these allegations.

Williams: What about the allegation that it was the Ukrainians who meddled in the election, not the Russians. Are you satisfied that’s not the case?

Barr: I am confident the Russians attempted to interfere in the election. I don’t know about the Ukrainians. I haven’t even looked into it, frankly.

Williams: What was your involvement in the Department’s decision not to investigate the President’s phone call to Ukraine?

Barr: We put out a statement that explained the process, which was the Criminal Division made that decision and in the process consulted with the senior most career employees who are the experts on campaign finance laws and that process was supervised by the Deputy but I’m not going to go beyond what we’ve already said about that process.

Williams: Well, were you satisfied that everything that was done–

Barr: Absolutely.

I wouldn’t be surprised if Williams were using a script DOJ gave him, because Williams asks none of the questions that remain unanswered about DOJ’s role in the Ukraine investigation, such as why they didn’t do the bare minimum of connecting the dots implemented after 9/11, why the didn’t refer the complaint to the FEC, why they didn’t abide by the whistleblower protection act, why (on demand, apparently) they issued a statement exonerating the President, or who the three Ukrainians that DOJ admitted have been fed into John Durham’s investigation are.

Instead, Williams lets Barr ignore his question about his role in reviewing the whistleblower complaint and claim — as the person who knew of the Lev Parnas investigation that also knew of the whistleblower complaint — he has no role in the Ukraine thing. This exchange raises more questions about Barr’s involvement, but Williams instead allows him to claim a clean bill of health.

Williams allows Barr to pretend bypassing MLAT is normal

Perhaps the most alarming part of this so-called interview is how Williams let Barr claim that entirely bypassing the Mutual Legal Assistance Treaty (MLAT) process in requesting law enforcement assistance from other countries is normal.

[Why he went to three countries] The presentation of that in the media [laughs] has been silly. The person running the investigation is John Durham. But this is a very unusual circumstance where we are going to foreign governments where we are asking them to assist and cooperate including some of their sensitive materials and personnel. A US Attorney doesn’t show up on the doorstep of some of these countries like London and say, Hey, I want to talk to your intelligence people and so forth. All the regularities were followed. I went through the — my purpose was to introduce Durham to the appropriate people and set up a channel where he could work with these countries. At the request of these countries — I went through the Ambassadors of each country, and the governments wanted to initially talk to me to find out, what is this about, what are the ground rules, is this going to be a criminal case, are you going to do a public report. They wanted to understand the ground rules before I met with Durham and I met with them and I set up appropriate channels. This was perfectly appropriate. (14:37)

This issue goes to the core of the problem with Trump’s Ukraine conspiracy. Barr’s nervous answer suggests he knows bypassing normal process might implicate him in a criminal conspiracy.

And Williams, supposedly a DOJ beat journalist who should know better, just lets this bullshit answer sit there, unchallenged.

Williams allows Barr to lie about techniques used by the FBI

Barr’s attack on the FBI is based on a lie about how it operates. The FBI has what’s called the Domestic Investigations and Operations Guide. The entire point of it is to make sure paperwork is filed before any investigative steps are taken. Barr turns that on its head when he complains that the FBI opened an investigation before taking an investigative step.

They jump right into a full-scale investigation before they even went and talked to the foreign officials about exactly what was said the opened an investigation of the campaign

The DIOG lists what an agent can do at each of three levels of investigation — assessment, preliminary investigation, and full investigation. It permits the government to use Confidential Human Sources — the basis for most of Barr’s complaint about “spying” on the campaign — at the Assessment level (which is basically a tip).  Thus, in spite of what Barr says, the fact that FBI opened this as a full investigation (which DOJ IG found to be proper) had nothing to do with the FBI’s ability to use informants.

Suggests the investigation shouldn’t have been sustained once it got opened (0:20)

There has to be some basis before we use these very potent powers in our core First Amendment activity, and here, I thought this was very flimsy (2:18)

The Department as a rule of reason, … Is what you’re relying on sufficiently powerful to justify the techniques you’re using

What are the alternatives … When you step back and ask what was this all based on, it’s not sufficient (2:48)

they used very intrusive techniques they didn’t do what would normally be done under those circumstances, which is to go to the campaign and certainly there were people in the campaign who could be trusted including a member of the Senate Judiciary Committee and the governor of New Jersey (5:13)

Anyone covering DOJ has an obligation to point out that this is a lie, especially because Barr has never in his history leading the DOJ complained about such techniques being used with others, especially minorities, when exercising their First Amendment rights. Indeed, Barr’s DOJ currently investigates not only Muslims in mosques (which has been going on under both parties), but people protesting Trump’s immigration policies or legally representing immigrants. Barr’s DOJ used a wiretap in a garden variety leak investigation when it already knew the leaker this year. Williams has an obligation with calling Barr out for his very selective concern about the First Amendment.

But that’s not the only complaint about process. Barr keeps demanding not just that the FBI give Trump a defensive briefing (one of the subjects of the investigation, Mike Flynn, attended his first campaign briefing, and that was within days of the time Flynn inked his deal to become an undisclosed agent of Turkey), but that they just waltz to the campaign and start asking questions.

From day one they say they’re not going to talk to the campaign, they’re going to put people in there, wire them up, and have these conversations with people involved in the campaign because that way we’ll get the truth (8:44)

Barr would never let FBI approach any other investigation like this, starting by allowing the subject of the investigation to excuse their actions.

Note, one of the people Barr thought FBI should have asked — Jeff Sessions — ultimately came to be a subject of this investigation.

Barr takes this so far that he complains that John Brennan and Barack Obama tried to limit an ongoing Russian attack that was going on whether or not Trump’s flunkies were involved. 

What I find particularly inexplicable is that they talked to the Russians but not to the Presidential campaign. On August 4 Brennan braced the head of Russian intelligence, he calls the head of Russian intelligence, … they go and confront the Russians, who clear are the bad guys, and they won’t go and talk to the campaign and say what is this about (5:51)

He’s basically complaining, here, that Obama tried to keep the country safe from hostile interference in the election.

And Williams just sat there looking at his list of questions like a child.

Williams lets Barr minimize what happened in the Russian investigation

Predictably, Barr minimizes what the Russian investigation showed. He claims that what has subsequently been explained to be a suspected Russian asset with ties to both sides of the Russian operation, Joseph Mifsud, telling George Papadopoulos they were going to drop emails that later got dropped was not worthy of investigation.

In May 2016, a 28 year campaign volunteer says in a social setting … a suggestion of a suggestion that Russians had adverse information from Hillary that they might dump in the campaign (3:24)

Barr then claims there was no evidence of “collusion,” something Williams agrees with.

There never has been any evidence of collusion … completely baseless (2:57) [Well, it doesn’t turn out that way at the beginning, at the start ]

According to Mark Meadows’ definition of “collusion,” it was proven by the guilty verdict in the Roger Stone trial. Moreover, the Mueller Report makes it clear there was evidence not just of “collusion,” but also conspiracy, just not enough to charge. In this case, Williams affirmatively adds to the disinformation on this point.

Barr conflates the investigation into Carter Page and everyone else

Barr did something that the Republicans have been doing all day: conflating the investigation into Carter Page with the investigation into Trump’s other flunkies, in spite of the fact that the investigation of each individual was also individually predicated and that the investigation into Page was based off stuff going back years before he joined the Trump campaign and most of the investigative activities took place after he was fired from the campaign. In one comment, Barr literally conflates Carter Fucking Page with the President himself, and ignores that the President was only investigated after he tried to obstruct the investigation into Mike Flynn.

At that point [when FBI talked to Steele’s source], when their entire case collapsed, what did they do? They kept on investigating the President well into his administration. (10:26)

He repeats that claim a second time.

Their case collapsed after the election (13:57)

Barr not only does that, but ignores the incriminatory evidence against Page, so as to be able to claim that the investigation should never have started.

From the very first day of this investigation, which was July 31 … all the way to September 2017, there was not one bit of incriminatory evidence to come in, it was all exculpatory. The people they were taping denied any involvement with Russia, denied the very specific facts that the FBI was relying on, … the FBI ignores it, presses ahead, withholds that information from the court, withholds critical exculpatory information from the court  (9:07)

Barr made an interesting claim — that the sole reason the FBI got a FISA (including a physical search FISA, which allows them to obtain stored communications like email) was to access his comms from the campaign.

I think going through people’s emails, which they did as a result of the FISA warrant, they went through everything from Page’s life. … his emails go back. The main reason they were going for the FISA warrant initially was to go back historically and seize all his emails and texts … that’s exactly why they got the FISA (12:30)

That may be true (obviously, the FBI would have wanted to know why Page went to Moscow during the campaign), but DOJ imposed minimization procedures to limit dissemination of those materials.

The final PMPs restricted access to the information collected through FISA authority to the individuals assigned to the Crossfire Hurricane team and required the approval of a DAD or higher before any FISA-derived information could be disseminated outside the FBI. In normal circumstances, the FBI is given more latitude to disseminate FISA-derived information that appears to be foreign intelligence information or evidence of a crime. Evans told us that he believed these added restrictions were warranted here because of the possibility that the FISA collection would include sensitive political campaign related information.

Barr’s conflation of Page with the campaign as a whole and Trump himself was all a ploy, and a journalist could have noted the game Barr was playing in real time. Williams did not.

Williams lets additional Barr bullshit go unquestioned

In addition to those general problems, Barr made a number of other bullshit assertions. For example, Barr claimed the investigation into Trump was the first counterintelligence investigation into a candidate even though that’s what the Hillary email investigation was.

Greatest danger to our free system is that the incumbent use apparatus of state to spy and effect outcome, first time in history this has been done (1:14)

Later, Williams lets a renowned authoritarian to claim not just that he cares about civil liberties, but that his primary job is protecting them.

[In response to Williams’ suggestion that this authoritarian cares about civil liberties] I think our nation was turned on its head for three years based on a completely bogus narrative that was largely fanned and hyped by an irresponsible press … the Attorney General’s primary responsibility is to protect against the abuse of the law enforcement and intelligence apparatus and make sure it doesn’t play an improper role in our political life. That’s my responsibility. (18:06)

Barr poo poos the regularity of illegal foreign money coming into campaigns.

In most campaigns signs of illegal foreign money coming in (2:01)

Don’t assume campaign is acting in league with foreign powers, there has to be some basis (2:13)

This makes me, for the first time, concerned about how DOJ rolled out the Andy Khawaja indictment.

Finally, Williams asks, but doesn’t follow up on his question about whether it was appropriate for Durham to make a comment.

[After Williams mentions the grand jury] I think it was definitely appropriate because it was necessary to avoid public confusion. … Durham’s work was not being preempted, Durham was doing something different, (15:33)

Interestingly, Barr effectively confirmed Williams’ insinuation this was now a grand jury investigation, which would amount to sharing grand jury information.

I have been pointing out increasingly often that many members of the press seem uninterested in defending the parts of the Constitution that don’t directly affect press protections. The duty to uphold the rule of law is particularly important for DOJ reporters, who should know enough about how investigations work to identify when something is abnormal (as Barr’s direct involvement, generally, is, to say nothing of his international field trip).

Williams was not up to the task in this interview.

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Yevgeniy Prigozhin’s Trolls Recoil from Sunlight

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The other day, I noted that the government had turned the table on Concord Consulting, the Yevgeniy Prigozhin company that funded his troll operation, by asking for some pre-trial subpoenas. The reception of that motion by one of our new guests suggested that the trolls were not responding kindly to treatment to their own medicine.

Concord’s response did not disappoint.

The trollish Eric Dubelier complained that if he had to comply with this subpoena, he risks breaking Russian law.

Here, if the Court were to issue the government’s requested subpoena, Concord would be able to demonstrate that the request would cause Concord to violate Russian law on Russian soil— a result that is improper under controlling law. See In re Sealed Case, 825 F.2d at 498 (party challenging subpoena on basis that it would require the party to violate foreign law bears burden of making such a showing) (per curiam). Specifically, if Concord, individuals acting on its behalf, undersigned counsel, or its Russian counsel were to produce the information requested in the government’s proposed subpoena to the government pursuant only to a U.S. subpoena,2 they would likely be subject to legal jeopardy in Russia under criminal and other laws.

Treason, hacking, anti-sanction laws — Concord lists a parade of legal jeopardy with complying with this subpoena.

Dubelier even complains that complying with the parts of the subpoena asking for information on co-defendants charged with identity theft in the US might fall afoul of Russian privacy law.

The materials requested in items 6, 7, 8 and 9 also include documents that, if they exist, would constitute and/or contain personal data that, if Concord had such data, Concord would be generally forbidden by law from producing to the U.S. government or any third-party without each individual’s consent under Article 7 of Russian Federal Law 152-FZ, “On Personal Data,” paragraph 1 of Article 3 of which defines the term “personal data” broadly as “any information relating to an individual who is directly or indirectly identified or identifiable[.]”

I won’t take time to wade through his citations. Some (about the propriety of the subpoena, for example) are bullshit. Others pose interesting questions about the intersection of corporate persons and international law similar to others already raised by this prosecution.

But Concord’s response to some of its own medicine sure has produced an amusing response on the part of the trolls.

Update: Here’s the government’s reply, which lays out details of how it knows Concord has the subpoenaed materials. It also notes that Concord chose to mount a defense, and therefore should not now be able to hide behind its foreign status.

Additionally, Concord voluntarily chose to appear in this case. And, as the Court well knows, Concord has obtained substantial discovery and continues to seek additional information about how the United States detected its activities and detects and responds to related activities more generally. Foreign entities should not lightly be permitted to come to U.S. courts while shielding themselves from the same obligations that would apply to American defendants. Cf. In re Grand Jury Proceedings Bank of Nova Scotia, 740 F.2d 817, 828 (11th Cir. 1984) (explaining that where a bank “voluntarily elected” to do business abroad, it “accepted the incidental risk of occasional inconsistent governmental actions” and “cannot expect to avail itself of the benefits of doing business here without accepting the concomitant obligations”).

[snip]

Concord next contends (Doc. 273, at 13-16) that because it is a foreign corporation located abroad, it cannot be issued a subpoena to produce documents in connection with this case. In particular, Concord urges that its trial counsel “has no authority to accept” a trial subpoena (id. at 14) and that the Court, in any event, lacks personal jurisdiction over Concord and therefore cannot order it to produce records (id. at 14-16). Concord ignores the critical fact that it is properly a party in this case. The Court therefore can issue orders to Concord concerning this case. That includes a trial subpoena—an order to produce records that are relevant to and admissible in the case.

[snip]

In fact, after Concord initially disputed whether it had been properly served with a summons in this case, the Court confirmed that defense counsel was authorized “to enter a voluntary appearance in this matter and to subject [Concord] to the jurisdiction of this Court.” 5/9/18 Tr. 4-5. The Court clarified that Concord understood “that by doing so, it must also comply In fact, after Concord initially disputed whether it had been properly served with a summons in this case, the Court confirmed that defense counsel was authorized “to enter a voluntary appearance in this matter and to subject [Concord] to the jurisdiction of this Court.” 5/9/18 Tr. 4-5. The Court clarified that Concord understood “that by doing so, it must also comply with the Federal Rules of Criminal Procedure, the rules of this Court, and with the orders of this Court,” and defense counsel agreed. Id. at 5. A trial subpoena is an order of this Court issued in this case pursuant to the Federal Criminal Rules. Yet Concord (through that same counsel) now suggests that the Court has no authority to issue such an order to Concord. Indeed, this raises the question whether Concord believes that the Court has personal jurisdiction with respect to other orders issues in this case, such as the protective order governing the extensive discovery provided to the defense, or the Court’s scheduling order requiring Concord to provide the government with trial exhibits.

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Horowitz

With Release of DOJ IG FISA Report, Democrats Should Pause on Impeachment

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Democrats are going to roll out at least two articles of impeachment today.

But I think, in the wake of the release of the DOJ IG FISA Report, they should take a brief pause.

Don’t get me wrong. I think impeachment is necessary and urgent. I can see why Democrats might want to impeach even as Trump meets with Sergei Lavrov — particularly given Trump’s assault on Chris Wray for making some honest comments about the IG Report yesterday.

But I’ve gotten far enough into the IG Report to believe that it merits a pause for both sides to consider what it says. That’s because it basically says both parties were right. Democrats were right to think the investigation into Trump was fair and legitimately predicated. The Mueller Report has provided abundant evidence not only that Paul Manafort and Roger Stone (at a minimum) were willing to “collude” in the Russian hack-and-leak, but that they both took affirmative efforts to prevent Mueller from finding out whether they succeeded in doing so. Trump was a key player in that effort to obstruct the investigation. So the investigation was warranted, fairly predicated, and produced results that confirmed Trump’s people wanted to conspire with the Russian operation, whether or not they succeeded.

Republicans, however, were right that the Steele dossier was not adequately vetted by the FBI, and the FISA on Carter Page may not have been adequately substantiated (and the vetting on the follow-ups was even worse). That doesn’t mean Page shouldn’t have been investigated; he was already being investigated in April 2016, and things he did through December 2016 provided more cause for concern.

But neither of those things — the dossier’s shoddy vetting or the Page FISA — were key to the more substantive investigation into Trump. Indeed, Stone wasn’t even a subject in this early process; the first big investigative steps on him took place in August 2017, under Mueller.

I’ve got some quibbles with the report (mostly about how it treats exonerating information and Bruce Ohr and information sharing).

That said, the report should be an opportunity to step back and reflect on how the key issue — that Russia aggressively interfered in the US and a number of Americans embraced that effort — has gotten lost. That focus might make a few people, including Republicans who otherwise would not support impeachment but are appalled by the way Rudy has doubled down on his Ukrainian escapades, even meeting with KGB trained thugs, rethink the investigation into Trump.

Plus, the FISA Report provides one basis for bipartisan work in the near term.

Section 215 of the PATRIOT Act was due to get reauthorized on December 15. That got extended 3 months in the continuing resolution, but it will need reauthorized at that point. Meanwhile, over the past year, evidence that FBI misused FISA under both Jim Comey (with this IG Report) and Chris Wray (with the earlier report on problems with 702).

I’ve been arguing since at least February — and more aggressively since September, when I got the first concrete descriptions of how much this report would focus on process issues at FBI — that this IG Report would present an opportunity to call more substantive review of FISA. I got pushback among allies, because Carter Page is such an unsympathetic person to Democrats. But I think the report really demonstrates that, no matter how unsympathetic he is, no matter how warranted the investigation into him, the FISA process used against him was appalling.

So the surveillance community, which previously was able to unite Jim Jordan and the most Progressive Dems, really ought to take a step back and propose a three-part fix for FISA, one that could guide the further audit of FISA Michael Horowitz announced and one that might implement immediate legislative fixes to known FISA problems. At least beginning those conversation would provide some of the people yelling most loudly at each other a chance to talk about something they claim to agree on.

Let me be clear: I’m just arguing for a pause — maybe a week. Trump has violated every word of his oath of office and he threatens to undo our Constitution. But let’s take a few days and reflect on the way that the events of 2016 have sown division without getting us to do the things to prevent further Russian aggression. It won’t happen, but it’s what I think should happen.

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The Flynn Predication

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I’m really just starting a deep dive into the DOJ IG FISA Report. But as background for another post, I just want to look at the predication for the investigation into Mike Flynn.

The report describes how the entire investigation came after Australia passed on the tip regarding George Papadopoulos blabbing his mouth to Alexander Downer. As passed on, the tip did not provide details we’ve now come to grow familiar with. Not only was there no mention of Joseph Mifsud, but there was no indication at all where Papadopoulos learned this information.

The FBI opened Crossfire Hurricane in July 2016 following the receipt of ·certain information from a Friendly Foreign Government (FFG). According to the information provided by the FFG, in May 2016, a Trump campaign foreign policy advisor, George Papadopoulos, “suggested” to an FFG official that the Trump campaign had received “some kind of suggestion” from Russia that it could assist with the anonymous release of information that would be damaging to Hillary Clinton (Trump’s opponent in the presidential election) and President Barack Obama. At the time the FBI received the FFG information, the U.S. Intelligence Community (USIC), which includes the FBI, was aware of Russian efforts to interfere with the 2016 U.S. elections, including efforts to infiltrate servers and steal emails belongfng to the Democratic National Committee (DNC) and the Democratic Congressional Campaign Committee. The FFG shared this information with the State Department on July 26, 2016, after the internet site Wikileaks began releasing emails hacked from computers belonging to the DNC and Clinton’s campaign manager. The State Department advised the FBI of the information the next day.

FBI opened the investigation to find out whether anyone was wittingly or unwittingly part of the Russian election year operation (the unwitting part is important, because FBI did not assume at the time anyone was knowingly “colluding” with Russia.

Two of the subjects — Carter Page and Paul Manafort — were already under investigation. Papadopolous was a clear subject since he’s the one who blabbed his mouth.

Which means Mike Flynn is the only one who for whom the investigation happened because of his Russian ties and affiliation with the campaign, which is probably why his attorney is making batshit arguments about being trapped and demanding “Brady” information that has nothing to do with his case.

The report explains that Flynn was a subject because of his December 2015 trip to Russia and his “various ties to state-affiliated entities of Russia.”

The opening EC for the Flynn investigation stated that there was an articulable factual basis that Flynn “may wittingly or unwittingly be involved in activity on behalf of the Russian Federation which may constitute a federal crime or threat to the national security.” The EC cross-referenced the predication for Crossfire Hurricane and stated that Flynn was an advisor to the Trump campaign, had various ties to state-affiliated entities of Russia, and traveled to Russia in December 2015.

On top of some speeches to Russian companies, those ties would have involved a fairly warm relationship with the head of GRU (which had already been IDed as responsible for the hack-and-leak operation) and ongoing conversations with Sergei Kislyak.

But ultimately, Flynn became a subject because he might have been the source for Papadopoulos of advance notice of the hack-and-leak operation, and seemed to be the focus of a whole lot of Russian attention.

The early investigation would have shown that Flynn alerted DIA of those ties (though the government currently claims some of that reporting was actually inculpatory). Which is probably why the FBI didn’t think Flynn was a witting recruit of Russia.

But then, even as FBI was deciding he was not a witting recruit, FBI discovered his December conversations with Sergey Kislyak (that they didn’t focus on them in real time is a testament that they were not working very aggressively against Flynn). Flynn then got the entire Trump transition to lie about that call, something that Sally Yates has credibly explained would raise concerns that he might be vulnerable to further recruitment.

On January 24, 2017, Flynn not only lied to the FBI about his sanctions discussion with Kislyak, but lied about two other conversations with Kislyak (the first being the Israeli settlement conversation, another being at least one conversation during the campaign). At that point, the question was whether those were material lies designed to obstruct the investigation.

Still, on January 27, the FBI would have gotten an answer to the question that kicked off the entire investigation: how had Papadopoulos learned — in advance — that Russia planned to dump information harming Hillary? In his first interview with the FBI, Papadopoulos made it clear he had interacted closely with Mifsud, whom FBI already suspected was a Russian asset.

Having answered that question, the FBI then wrote up a memo that concluded Flynn was not a Russian agent — not a witting Russian recruit — on January 30. That didn’t answer the question about whether he was an unwitting recruit. Indeed, according to Robert Mueller, that question was still being pursued in May.

But from that point forward, Flynn (and Trump) did one after another thing — including Flynn’s attempts to avoid registering his Turkish lobbying — that merited ongoing investigation.

That’s probably not going to be enough to sustain Sidney Powell’s claims he was entrapped.

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

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The Special Envoy for Ukraine Was Working on Paul Manafort’s Defense

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In advance of this morning’s impeachment report, Just Security published Susan Simpson’s takedown of the GOP report on impeachment.

Simpson proves that the hold on aid was unprecedented in form and all the excuses for it bullshit. She shows that Kurt Volker and Gordon Sondland were lying about knowing that Burisma was code for Biden. And she lays out how a defense the GOP are making — that this is all about a legitimate interest in 2016 interference — is not what Trump is actually claiming — which is that Trump and Rudy Giuliani are both claiming that Ukraine, not Russia, did the 2016 attack. Here’s her summary of the last bit:

Although the minority report argues that it is “undisputed” that Ukrainians interfered in the 2016 election due to “senior Ukrainian officials ma[king] negative and critical comments about candidate Trump,” this talking point comes from House Republicans only, not from President Trump. (Minority at 78) Neither Giuliani nor President Trump have ever expressed an interest in an investigation into whether Ukraine “interfered” in the 2016 election because of what some Ukrainians officials wrote in op-eds or on social media. The idea that this is what Trump wanted to investigate is a fiction that House Republicans invented to give themselves something they were willing to defend. The only investigation into the 2016 election that President Trump has expressed interest in – both in interviews in Fox News, and in his July 25th call with Zelensky – is an investigation aimed at proving Ukraine was behind the DNC hack.

President Trump’s desire for an investigation that would exonerate Russia is undeniable – it’s right there in the transcript of that “perfect” July 25th call – and it’s also indefensible. And so the minority report makes no attempt to try; instead the report concocts an alternative account that does not match the record.

That detail is important given something Simpson includes to substantiate her argument. In part of her proof that the Ukrainians knew well what was going on, she cites an April 5th interview with Ruslan Bortnik. Bortnik claims that it was already obvious at that point that Volker was not doing what he was hired (for “free”) to do: make peace with Russia.

This includes articles such as an April 5th report of an interview with the Director of the Ukrainian Institute for Policy Analysis and Management, Ruslan Bortnik, on his perception of Ambassador Volker’s role in Ukraine:

“Volker today turned out to be an ambassador without a message, that is, a person who nominally retains the function of special envoy for Ukraine, but really cannot meet anyone and does not conduct any negotiations because of his inability to organize a productive dialogue with the Russian Federation. However, he continues to try to play some important role in Ukrainian affairs, especially with regard to the Manafort case, allegedly Ukrainian interference in the US elections, Burisma Holding and the ongoing election campaign in the USA.”

Significantly, by April, Bortnik knew that along with working on alleged Ukrainian interference in the US elections and framing Joe Biden (both things that Volker’s sworn testimony says he wasn’t asked to do until later), Volker was also working on Paul Manafort’s case.

That suggests the guy who was supposed to be making peace with Russia was instead trying to find a way to help the guy who obstructed Mueller’s investigation into whether that guy entered into a quid pro quo with Russia for election assistance dodge his legal exposure for that and helping pro-Russian leaders in Ukraine loot the country.

The most charitable possibility to explain this (and Volker’s subsequent lies) is that he viewed it to be necessary to make Russia’s tampering in 2016 disappear before Russia would negotiate peace in Ukraine. But there are a whole lot of more sordid possibilities.

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The WikiLeaks Conspiracy: The Government Prepares to Argue WikiLeaks Has Always Been an Organized Crime Syndicate

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Last June, I ran into some folks who remain very close to Julian Assange. One of them scheduled dinner with me solely to scold me for writing honestly about the things that WikiLeaks had done in the past three years rather than focusing exclusively on the EDVA Espionage indictment charging Assange for things he did almost a decade ago.

The person complained that my factual reporting on 2016 election and — especially — the Vault 7 leak (I think this was the offending post) would undercut whatever unanimity there was among journalists (unanimity that I joined) that the existing charges against Assange were a dangerous precedent for actual journalists. Reporting true details about shitty things Assange had done in recent years on my humble little blog, it was claimed, would dangerously and singlehandedly undercut Assange’s defense.

No, I did not much appreciate the irony of being criticized for accurate reporting by someone purportedly defending journalism.

But I also thought the concerted effort to suppress what Assange had done recently, while perhaps necessary to generate the statements of support from journalists that were forthcoming, was short-sighted, because it misrepresents what Assange is actually facing. The grand jury in EDVA remains (as far as we know) active. The government specifically said, in June, that it needed Chelsea Manning’s testimony for subjects or charges not yet charged and said such charges were not time barred (as would be true of any ongoing conspiracy).

As the government’s ex parte submissions reflect, Manning’s testimony remains relevant and essential to an ongoing investigation into charges or targets that are not included in the superseding indictment. See Gov’t’s Ex Parte Mem. (May 23, 2019). The offenses that remain under investigation are not time barred, see id., and the submission of the government’s extradition request in the Assange case does not preclude future charges based on those offenses, see Gov’t’s Supplement to Ex Parte Mem. (June 14, 2019).

Since then, Jeremy Hammond has joined Manning in believing he can wait out whatever EDVA has in store.

Most of all, Joshua Schulte’s prosecution for the Vault 7 leak — a leak almost no WikiLeaks supporters I know will offer an enthusiastic defense of — kept chugging along. In recent weeks, Schulte has submitted a number of questionable filings claiming the dog ate his homework so he can’t be prepared in time for his trial:

  • The attorney appointed after defense attorneys said they needed one more attorney to prep for trial in time said he couldn’t prep for trial in time, but can’t talk about why not until he’s done with a week-long vacation
  • The government’s (admittedly long) motion in limine repeating details the government disclosed several times before took the defense by surprise
  • The defense can’t make a constitutional challenge to CIPA generally until the judge rules on CIPA specifically (this is the one arguably reasonable request)
  • The defense had no idea the government wasn’t claiming Schulte downloaded a terabyte of data onto a thumb drive that can’t hold that terabyte even though the government told the defense that a year ago and then again in November

But as of now, Schulte’s trial is due to start on January 13, a month and a half before Assange’s first substantive extradition hearing starting on February 25.

And at that trial, the government is preparing to argue that Schulte intended to harm the United States when he leaked these files to WikiLeaks, a stronger level of mens rea than needed to prove guilt under the Espionage Act (normally the government aims to prove someone should have known it could cause harm, relying on their Non-Disclosure Agreements to establish that), and one the government has, in other places, described as the difference between being a leaker and a spy.

To make that argument, the government is preparing to situate Schulte’s leaks in the context of prior WikiLeaks releases, in a move that looks conspicuously like the kind of ongoing conspiracy indictment one might expect to come out of the WikiLeaks grand jury, one that builds off some aspects of the existing Assange indictment.

In a motion opposing Schulte’s effort to disqualify Paul Rosenzweig as an expert witness (see this post for background), the government lays out some of the things it plans to have Rosenzweig explain to the jury. Some of this is dangerous criminalization of security, most notably tying WikiLeaks’ endorsement of Tor and Tails to Schulte’s own use of it.

But some of it fleshes out the scope the government laid out when it first requested to call Rosenzweig.

The Government recognizes the need to avoid undue prejudice, and will therefore limit Mr. Rosenzweig’s testimony to prior WikiLeaks leaks that have a direct relationship with particular aspects of the conduct relevant to this case, for example by linking specific harms caused by WikiLeaks in the past to Schulte’s own statements of his intent to cause similar harms to the United States or conduct. Those leaks include (i) the 2010 disclosure of documents provided to WikiLeaks illegally by Chelsea Manning; (ii) the 2010 disclosure of U.S. diplomatic cables; (iii) the 2012 disclosure of files stolen from the intelligence firm Stratfor; and (iv) the 2016 disclosure of emails stolen from a server operated by the Democratic National Committee.

For example, it will tie WikiLeaks’ failure to redact the identities of US sources in Chelsea Manning’s leaks — something charged in counts 15 through 17 of Assange’s indictment — to Schulte’s behavior. It sounds like Rosenzweig will explain something I’ve alluded to: WikiLeaks apparently left the names of some of Schulte’s colleagues unredacted, which given WikiLeaks’ big show of redacting the files could only have been intentional and would have required coordination with Schulte to do.

Mr. Rosenzweig will testify that WikiLeaks does not typically redact the information that it publicly discloses (even when that information may reveal confidential sources). The Government will introduce evidence, however, that the Classified Information was purportedly redacted when posted online. Mr. Rosenzweig’s testimony will help the jury understand the significance of WikiLeaks’ unique claim to have redacted the Classified Information, including, for example, the period of delay between when Schulte disclosed the Classified Information to WikiLeaks (in or about the spring of 2016) and when WikiLeaks first announced that it would begin to disclose the Classified Information (in or about the spring of 2017). [my emphasis]

One reason Assange made a show of redacting the identities was because he was attempting to extort a pardon at the time, so he had to appear willing to negotiate with DOJ. But it seems likely Rosenzweig will explain that that was just a show and that even as WikiLeaks was making that show it was also ensuring that other CIA SysAdmins might be targeted by foreign governments.

Likewise, Rosenzweig will tie the embarrassment caused by Manning’s releases to Schulte’s own intent to cause damage with his self-described Information War against the US.

The Government intends to introduce evidence (including his statements) of Schulte’s knowledge of Manning’s leak and the need for the U.S. government to maintain secrecy over certain information. Furthermore, the Government also plans to introduce evidence of how Schulte, from the Metropolitan Correctional Center (the “MCC”), declared an “information war” against the United States, pursuant to which he intended to publicly disclose classified information and misinformation, including through WikiLeaks (such as the Fake FBI Document), for the purpose of destroying the United States’ “diplomatic relationships,” and encouraged other U.S. government employees to disclose confidential information to WikiLeaks. Mr. Rosenzweig will explain to the jury generally information other leakers have transmitted to WikiLeaks that the organization published and how foreign governments reacted negatively to WikiLeaks’ disclosure of that information—leading, for example, to the highly-publicized resignation of the U.S. Ambassador to Mexico.

Effectively, the government will argue that if you want to conduct an Information War on the US, you choose to leak to WikiLeaks and ensure it will be as damaging as possible. Whatever the circumstances of Manning’s leaks, this uses Schulte’s stated desire to damage the US to retroactively taint what WikiLeaks has claimed in the past was mere journalistic exposure of wrong-doing. That doesn’t necessarily change the First Amendment danger in charging Assange. But it surely attempts to undercut WikiLeaks’ brand as a journalistic entity.

Most interestingly, the government will point to a claim Schulte made to a journalist while writing from jail (one that is plausible given some of his past public postings, but if true, is an unfathomable indictment of CIA’s vetting process) that he once belonged to Anonymous. Rosenzweig will tie this to Anonymous’ decisions to leak the Stratfor cables to WikiLeaks in 2012.

As described in the Government Motions in Limine, in encrypted communications from one of the Contraband Cellphones, Schulte (posing as a third person) stated that he had previously been a member of Anonymous, a group of online hacker activists. Mr. Rosenzweig will testify about how, in 2012, Anonymous and WikiLeaks worked together to release information from a private U.S. intelligence firm.

Of course, Anonymous didn’t just leak the Stratfor cables to WikiLeaks. They also shared files stolen during the Arab Spring and the Syria files. The latter leak provides one of the earliest indicators where the process by which WikiLeaks obtained files may have involvement of Russia, because somehow a file that would have been very damning for Russia never got published. But both would make the story the US wants to tell more complex (though still potentially consistent).

In any case, the focus on Stratfor may explain why the government is holding Jeremy Hammond in contempt to try to get him to testify in the EDVA grand jury, particularly if the government has reason to believe that Schulte was part of that hack.

Finally, the government will use Rosenzweig to explain how, in the wake of the DNC leak and at a time he was in a huff at his CIA bosses again, Schulte did … something in August 2016.

The Government intends to introduce evidence that Schulte transmitted the Classified Information to WikiLeaks in the spring of 2016, that WikiLeaks did not begin to disclose the Classified Information until March 2017, that Schulte was angry with CIA management in August 2016 over a performance review he received, that Schulte’s protective order against Employee-1 was vacated in August 2016, and that, around that same time (i.e., in August 2016), Schulte began to conduct extensive research online about WikiLeaks. The Government intends to offer evidence relating to those searches, including the specific queries Schulte conducted. Schulte has argued in his writings that his August 2016 research was related to WikiLeaks’ August 2016 disclosure of information stolen from a Democratic National Committee server (the “DNC Leak”). Mr. Rosenzweig will testify about the DNC Leak, including the type of information that WikiLeaks actually disclosed in connection with that leak, which will demonstrate why Schulte’s WikiLeaksrelated searches include queries that had nothing to do with the DNC Leak

Side note: Part of the media blitz Assange did in the wake of the DNC leaks included a claim to Chuck Todd that if WikiLeaks ever received information from US intelligence, they would publish it.

Well, it’s a meta story. If you’re asking would we accept information from U.S. intelligence that we had verified to be completely accurate, and would we publish that, and would we protect our sources in U.S. intelligence, the answer is yes, of course we would.

No one else would have, but Schulte would presumably have recognized this as a nod to him, reassurance provided on heavily watched TV that WikiLeaks was progressing towards releasing the files Schulte had leaked. Which is why the likelihood that Schulte also stole a single file reflecting CIA collecting information on who might win the 2012 French presidential election, which WikiLeaks subsequently falsely portrayed as proof that CIA had infiltrated political parties in France rather than asked well-placed sources for readily available information, is of particular interest.

The government, however, is going to point to other Google searches by Schulte from August 2016 that lump Edward Snowden and Shadow Brokers in with WikiLeaks.

For example, in addition to searching for information about WikiLeaks and Julian Assange, its primary leader, Schulte also conducted searches using the search terms “narcissist snowden,” “wikileaks code,” “wikileaks 2017,” “shadow brokers,” and “shadow broker’s auction bitcoin.” “Snowden” was presumably a reference to Edward Snowden, the former NSA contractor who disclosed information about a purported NSA surveillance program, and “Shadow Brokers” was a reference to a group of hackers who disclosed online computer code that they purportedly obtained from the NSA, beginning in or about August 2016.

I have long wondered whether Vault 7 was not a free-standing leak but instead part of the Shadow Brokers operation.  This seems to suggest the government knows they are. If that’s right, it would suggest that in the period when the government was trying to figure out precisely what Russia had done in 2016, both the NSA and CIA’s ability to spy on Russia (and other countries) would have been been deliberately burnt to the ground. And if Schulte knowingly participated in that — in an effort to ensure that the US would struggle to even learn what Russia had done in 2016 — it would explain why they’re planning on arguing he is more of a spy than a leaker.

Which would, in turn, explain why they took the first steps towards arresting Assange as FBI started putting together the evidence needed to charge Schulte on these leaks in 2017.

Let me be clear: I’m not saying I’m sure they’ll fill all these details in a superseding Assange indictment (though the government said it could not provide Assange the underlying evidence even for the 2010 charges until around Christmas — at which point Schulte will have gone through the CIPA process of declassifying classified information for use in his defense, and they could add charges at least until the February 25 hearing). It may still be that the government won’t want to get into the level of classified detail they’d need to to flesh out that case, particularly if they can’t coerce Manning and Hammond to cooperate.

I’m also not making a normative judgment that this eliminates the very real problems with the way Assange is charged now. Without seeing the government’s case, it’s too soon to tell.

What I’m trying to do is lay out what the government seems to be preparing to argue about WikiLeaks in the Schulte case. No doubt this will get me invited for another stern scolding at dinner, but it’s time to stop pretending Assange is being prosecuted for the understanding of WikiLeaks that existed in 2010. By all means, people can and will still defend Assange for taking on an imperialist America. For much of the world (though presumably not among any Five Eyes governments, including Assange’s home country), that still makes him an important dissident taking on a superpower. There is some merit to that stance, but it also requires arguing that superpowers shouldn’t have democratic elections.

But the government is preparing to argue that, after helping Russia tamper in America’s election, WikiLeaks deliberately burned some of CIA’s collection abilities to the ground, making it harder for the US to figure out how Russia did so. The government is preparing to argue that such actions are consistent with what WikiLeaks has been up to since 2010.

I’ve been expecting we might see an indictment alleging WikiLeaks and its associates were and remain engaged in an ongoing conspiracy (a possibility that, if Manning and Hammond’s lawyers haven’t warned them about, they are being utterly negligent, because the government could well argue that obstructing this investigation by refusing to provide immunized testimony is an overt act furthering the conspiracy).

The citations the government has used to justify Rosenzweig’s testimony are heavily focused on terrorism and mob cases (United States v. Farhane and United States v. Mustafa, which are al Qaeda cases; United States v. El Gammal, which is an ISIL one, and United States v. Rahimi, the self-radicalized Chelsea bomber; United States v. Lombardozzi and United States v. Locascio which are Gambino cases, United States v. Amuso, a Lucchese case), including one RICO case. That’s undoubtedly why Schulte’s lawyers really want Rosenzweig’s testimony excluded, to avoid having WikiLeaks treated like an organized crime syndicate.

But if the government is preparing to claim that WikiLeaks worked with Schulte not only to obtain files it tried to use to extort a pardon but then released them in a way that would hurt America’s efforts to respond to Russia’s 2016 operation, that’s a pretty compelling analogy.

Update: After comments from Stefania Maurizi, I’ve rephrased how I described what happened with the Syria Files. I want to be clear the statement in the post was not based on what I’ve been told by reliable sources about the process by which those files got shared with WikiLeaks.

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

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Joshua Schulte: The Alleged Vault 7 and CIA Election Spying Leaker?

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I’m preparing a post showing that the government is preparing to lay out WikiLeaks as a decade-long ongoing conspiracy (whether or not they’re planning on charging anyone with that).

Before I do, I wanted to correct an error I’ve made throughout my coverage of accused Vault 7 source Joshua Schulte. That’s how I’ve always referred to him, as the guy who stole CIA’s hacking tools and leaked them all to WikiLeaks.

But that’s almost certainly not all the government believes he leaked.

Weeks before the actual Vault 7 leak, remember, WikiLeaks published a one-off file purporting to show CIA “espionage” on the 2012 French election. It purported to show that CIA had conducted both SIGINT and HUMINT on France’s political parties, with an emphasis on the left and the right.

All major French political parties were targeted for infiltration by the CIA’s human (“HUMINT”) and electronic (“SIGINT”) spies in the seven months leading up to France’s 2012 presidential election. The revelations are contained within three CIA tasking orders published today by WikiLeaks as context for its forth coming CIA Vault 7 series. Named specifically as targets are the French Socialist Party (PS), the National Front (FN) and Union for a Popular Movement (UMP) together with current President Francois Hollande, then President Nicolas Sarkozy, current round one presidential front runner Marine Le Pen, and former presidential candidates Martine Aubry and Dominique Strauss-Khan.

But what the document actually showed is analysis of what might happen in the upcoming election, with some questions to ask, but questions that could easily be answered by wandering around the campus of Science Po, and would likely not be answered by infiltrating a campaign.

Nevertheless, in the wake of the Russian hack of the US, critics of America who took note of this thoroughly uninteresting document might misrepresent it as proving that the US still does what Russia did, even to our close allies.

WikiLeaks, significantly, claimed that this document provided context for the upcoming Vault 7 drop, even though it did no such thing.

The document, which as I said, the government likely will argue also came from Schulte, is significant for two reasons.

According to several documents in his case, he stole the Vault 7 files in May 2016, in a fit of anger over not getting his way.

But then, in August 2016, he started searching on WikiLeaks.

Around this time, Schulte also began regularly to search for information about WikiLeaks. In the approximately six years leading to August 2016, Schulte had conducted one Google search for WikiLeaks. Beginning on or about August 4, 2016 (approximately three months after he stole the Classified Information), Schulte conducted numerous Google searches for WikiLeaks and related terms and visited hundreds of pages that appear to have resulted from those searches.

Also in August 2016, he researched how to use throwaway emails and how to use Tails again.

It seems likely the government believes — though may not have proof — that the French election file also came from Schulte, but that he stole it in August, after WikiLeaks had released the DNC emails. If so, it seems that this file was something Schulte stole to help WikiLeaks justify its DNC dump. Perhaps even, as some files charged in the Assange indictment, this was something WikiLeaks requested.

The government is going to show that Schulte was closely involved in the way WikiLeaks released the Vault 7 files. And WikiLeaks and Schulte continued to cooperate closely after that. But it also now seems clear they plan to argue that Schulte stole files precisely to make WikiLeaks’ 2016 cooperation with Russia look less damning.

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DOJ Flips the Lawfare on Its Head in Russian Troll Case

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In part because Judge Dabney Friedrich has only recently attempted to impose some control on the case, the prosecution against the Russian troll company Concord Management waddles slowly towards a scheduled trial date of April 6, 2020. As it has throughout this process, Concord continues to make trollish arguments to gum up the prosecution. Of particular note, it continues its efforts to use the prosecution to obtain as much information as it can, including information about intelligence the government has on Concord as well as on the victims.

Don’t get me wrong. That is their right, and one of the dangers of indicting corporate entities for this kind of crime.

But the government just gave Concord a bit of its own medicine. On Tuesday, it moved to obtain an early trial subpoena to serve on Concord. It seeks information on Concord’s communications with the Internet Research Agency, other shell companies, and a list of co-conspirators. Perhaps most concerning, for Concord’s sometime owner Yevgeniy Prigozhin, it asks for his calendar from January 2014 through February 2018, a calendar that — if it’s accurate — likely includes Vladimir Putin.

Calendar entries for Yevgeniy Prigozhin for the time period January 1, 2014 to February 1, 2018.

The motion uses precisely the legal fact that allowed Concord to respond to this indictment with no risk to any biological person against it, arguing that because it is a corporation it has no Fifth Amendment privilege.

Moreover, even though it is a defendant, Concord cannot avoid responding to a trial subpoena requesting the production of records under the Fifth Amendment because corporations have no privilege against self-incrimination. Braswell v. United States, 487 U.S. 99, 102 (1988).

Understand, the government almost certainly has versions of all the things it asks for on the list. But assuming Friedrich approves the subpoena, Concord will be required to submit its own version of these documents, which the government might be able to prove to be false (adding to Concord’s legal jeopardy and putting Concord’s American lawyers on the hook). It’s also likely the government is forcing Concord to do its own parallel construction.

It’s a subtle move, but one that may shift how this proceeds going forward.

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Speaker Pelosi Goes from Slow-Walking to Sprinting

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This morning, Nancy Pelosi announced she’s asking Jerry Nadler and Adam Schiff to draw up articles of impeachment against Donald Trump.

Both reports on scheduling from members of HJC and Congress generally as well as reporting from CNN suggest Pelosi intends a very quick schedule for this process: articles drawn up this weekend, a vote in HJC next week, then a full vote before Christmas.

This is a mistake, in my opinion. I think Pelosi should bump this schedule out to early February. I say this not out of any fondness for delay, but because several things will or are likely to happen in the interim that would make impeachment more thorough.

The first is a ruling on Don McGahn’s testimony. I think the case on impeaching Trump for obstructing the Mueller investigation should most importantly focus on his abuse of the pardon power, not least because preventing a Trump pardon may give Paul Manafort and Roger Stone reason to grow more chatty. But McGahn’s testimony, describing how Trump asked him to falsify a record to cover up the fact that the President asked him to get Mueller fired in summer 2017, would be important for other reasons. Jonathan Turley cited McGahn’s testimony, for example, as the clearest case in the Mueller Report supporting impeachment (though of course he claims it doesn’t reach the level of abuse that Turley claimed lying about a consensual blowjob did back when Clinton did it). It would also be powerful to have a key player in Republican politics — they guy helped Trump stack the courts — play a key role in his impeachment.

While there’s little hope the Democrats could force the testimony of the key witnesses in the Ukraine investigation (including McGahn’s one-time deputy, John Eisenberg) without long delay, they’re more likely to get a ruling requiring McGahn’s testimony.

Then there’s the high likelihood of a superseding indictment in the Lev Parnas case. At a hearing Monday, prosecutors made it clear they’re very likely to supersede the current indictment against Rudy Giuliani’s grifters, possibly including other targets of the probe.

Prosecutor Zolkind signaled that a grand jury would probably level more charges.

“We think a superseding indictment is likely, but no decision has been made, certainly,” Zolkind said.

Repeatedly emphasizing that the government’s investigation is ongoing, the prosecutor referred obliquely to possible other targets by explaining that redactions on search warrants do not relate to the charged case. Zolkind also explained that disclosing witness statements prematurely could risk compromising the probe.

While the judge in the case, Paul Oetken, signaled his willingness to share information from this probe with impeachment investigators, and Parnas and his lawyers indicated that they’d like to comply with HPSCI’s subpoena (probably in an attempt to leverage immunity), that may take some time, perhaps two months. But I think any evidence from this case will be stronger if it comes with a grand jury indictment alleging that more of the underlying activities in this grift were probably a crime.

The next hearing in this case is February 3. That’s why I think Pelosi should hold off on until February.

Those are just two of the reasons I think Pelosi should slow things down a bit — at least on the vote in the entire House — to allow other pieces to fall into place.

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