The Guy Who Defended Roger Stone’s Campaign Finance Shenanigans Did Not Testify to the Grand Jury

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In response to an order from DC Chief Judge Beryl Howell, the government has revealed the two witnesses of interest to Congress who did not testify to the grand jury. The first, Don Jr, should not surprise anyone who has been following closely, as that was clear as soon as the Mueller Report came out.

The other–Don McGahn–is far more interesting, especially since he was interviewed on five different occasions: November 30, December 12, December 14, 2017; March 8, 2018; and February 28, 2019.

Most likely, the reason has to do with privilege, as McGahn’s testimony, more than almost anyone else’s, implicated privilege (in part because many witnesses’ testimony cut off at the transition). McGahn ended up testifying far more than Trump knew, and it’s possible he did that by avoiding a subpoena, but had he been subpoenaed, it would provide the White House opportunity to object.

Elizabeth De la Vega said on Twitter it likely had to do with how valuable McGahn was in his five interviews. By not making him testify to the grand jury, she argued, you avoid creating a transcript that might undermine his credibility in the future. That’s certainly consistent with the Mueller Report statement finding McGahn to be “a credible witness with no motive to lie or exaggerate given the position he held in the White House.” But that reference is footnoted to say, “When this Office first interviewed McGahn about this topic, he was reluctant to share detailed information about what had occurred and only did so after continued questioning.” Plus, while McGahn testified more than any other witness not under a cooperation agreement, Steve Bannon and Hope Hicks testified a bunch of times, too (four and three times respectively), but were almost certainly put before the grand jury.

But there is a different, far more intriguing possibility.

First, remember that Roger Stone was investigated for more than lying to Congress (indeed, just the last four warrants against him, all dating to this year, mentioned just false statements and obstruction). Which crimes got named in which warrants is not entirely clear (this government filing and this Amy Berman Jackson opinion seem to conflict somewhat). Computer Fraud and Abuse Act, 18 U.S.C. § 1030(a)(2)(C), was named in all Stone’s warrants before this year. But at least by August 3, 2018, the warrants against Stone listed a slew of other crimes:

  • 18 U.S.C. § 3 (accessory after the fact)
  • 18 U.S.C. § 4 (misprision of a felony)
  • 18 U.S.C. § 371 (conspiracy)
  • 18 U.S.C. §§ 1505 and 1512 (obstruction of justice)
  • 18 U.S.C. § 1513 (witness tampering)
  • 18 U.S.C. § 1343 (wire fraud)
  • 18 U.S.C. § 1349 (attempt and conspiracy to commit wire fraud)
  • 52 U.S.C. § 30121 (foreign contribution ban)

For whatever reason, the government seems to have decided not to charge CFAA (if, indeed, Stone was the actual target of that investigation). They may have given up trying to charge him for encouraging or acting as an accessory after the fact.

The Mueller Report explains — albeit in mostly redacted form — what happened with the 52 U.S.C. § 30121 investigation. First Amendment and valuation concerns about a prosecution led Mueller not to charge it, even though he clearly seemed to think the stolen emails amounted to an illegal foreign campaign donation.

But that leaves wire fraud and conspiracy to commit wire fraud. During the month of August 2018, DOJ obtained at least 8 warrants relating to Stone including wire fraud. Beryl Howell — who in her order requiring the government unseal McGahn’s name, expressed puzzlement about why Don McGahn didn’t testify before the grand jury — approved at least five of those warrants. Rudolph Contreras approved one and James Boasberg approved two. So apparently, very late in the Stone investigation, three different judges thought there was probable cause Stone and others engaged in wire fraud (or tried to!).

And it’s not just those judges. Roger Stone’s aide, Andrew Miller, was happy to testify about WikiLeaks and Guccifer 2.0. But at least when his subpoena first became public, he wanted immunity to testify about the campaign finance stuff he had done for Stone.

Miller had asked for “some grant of immunity” regarding financial transactions involving political action committees for which he assisted Stone, according to Alicia Dearn, an attorney for Miller.

On that issue, Miller “would be asserting” his Fifth Amendment right to refuse to answer questions, Dearn said.

I’d like to consider the possibility that McGahn, Donald Trump’s campaign finance lawyer before he became White House counsel, was happy to testify about Trump’s attempt to obstruct justice, but less happy to testify about campaign finance issues.

Mind you, McGahn is not one of the personal injury lawyer types that Stone runs his campaign finance shenanigans with. Whatever else he is, McGahn is a professional, albeit an incredibly aggressive one.

That said, there are reasons it’s possible McGahn limited what he was willing to testify about with regards to work with Stone.

At Roger Stone’s trial the government plans (and has gotten permission) to introduce evidence that Stone lied about one additional thing in his HPSCI testimony, one that wasn’t charged but that like one of the charged lies, involves hiding that Stone kept the campaign in the loop on something.

At the pretrial conference held on September 25, 2019, the Court deferred ruling on that portion of the Government’s Notice of Intention to Introduce Rule 404(b) evidence [Dkt. # 140] that sought the introduction of evidence related to another alleged false statement to the HPSCI, which, like the statement charged in Count Six, relates to the defendant’s communications with the Trump campaign. After further review of the arguments made by the parties and the relevant authorities, and considering both the fact that the defendant has stated publicly that his alleged false statements were merely accidental, and that he is charged not only with making individual false statements, but also with corruptly endeavoring to obstruct the proceedings in general, the evidence will be admitted, with an appropriate limiting instruction. See Lavelle v. United States, 751 F.2d 1266, 1276 (D.C. Cir. 1985), citing United States v. DeLoach, 654 F.2d 763 (D.C. Cir. 1980) (given the defendant’s claim that she was simply confused and did not intend to deceive Congress, evidence of false testimony in other instances was relevant to her intent and passed the threshold under Rule 404(b)). The Court further finds that the probative value of the evidence is not substantially outweighed by the danger of unfair prejudice.

A September hearing about this topic made clear that it pertains to what Stone’s PACs were doing.

Assistant U.S. Attorney Michael J. Marando argued that Stone falsely denied communicating with Trump’s campaign about his political-action-committee-related activities, and that the lie revealed his calculated plan to cover up his ties to the campaign and obstruct the committee’s work.

It sounds like Stone cleared up this testimony (Stone sent two letters to HPSCI in 2018, and one of those would have come after Steve Bannon testified about emails that included a Stone demand that Rebekah Mercer provide him funding), which may be why he didn’t get charged on that front.

As I’ve suggested, if Stone was actively trying to deny that the work of his PACs had any interaction with the Trump campaign, it might explain why he threatened to sue me when I laid out how McGahn’s continued work for Trump related to Stone’s voter suppression efforts in 2016.

And remember: when Stone aide Andrew Miller did finally testify — after agreeing to at virtually the moment Mueller announced he was closing up shop — he did so before a new grand jury, after Beryl Howell agreed with prosecutors that they were in search of evidence for charges beyond what Stone had already been indicted on or against different defendants.

McGahn’s campaign finance work for Stone and Trump is one of the things he’d have no Executive Privilege claims to protect (though barring a showing of crime-fraud exception, he would have attorney-client privilege), since it all happened before inauguration.

Again, there are lot of more obvious explanations for why he didn’t testify before the grand jury. But we know that Mueller investigated these campaign finance issues, and we know McGahn was right in the thick of them.

BREAKING! George Papadopoulos Says FBI Should Have Surveilled Him MORE Than They Did

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As I noted, on Tuesday, Mike Flynn’s Fox News lawyer demanded that Mike Flynn receive the contents of two phones reportedly used by Joseph Mifusd — one dating to May 2011 and another dating to December 2014 — so she can contest the guilty plea Flynn entered into regarding conversations and letters written in 2017 that did not involve Mifsud.

Now George Papadopoulos is getting into the act, complaining that “Comey or Mueller” never went to obtain these phones from Italy.

It’s a remarkable complaint, coming as it does from Papadopoulos. After bitching for over a year that the FBI surveilled him too much (all the while repeating hoaxes and ignoring the record that shows the opposite), notably that he was picked up in what were probably conversations with targeted Israelis, Papadopoulos is effectively arguing that the FBI didn’t surveil him enough.

That’s all the more remarkable given that the government is on the record stating that one reason they couldn’t do with Mifsud what they did with other foreigners who entered the US during the Russian investigation — seize their phones — is because Papadopoulos lied to the FBI.

The defendant’s lies to the FBI in January 2017 impeded the FBI’s investigation into Russian interference in the 2016 presidential election. Most immediately, those statements substantially hindered investigators’ ability to effectively question the Professor when the FBI located him in Washington, D.C. approximately two weeks after the defendant’s January 27, 2017 interview. The defendant’s lies undermined investigators’ ability to challenge the Professor or potentially detain or arrest him while he was still in the United States. The government understands that the Professor left the United States on February 11, 2017 and he has not returned to the United States since then.

Indeed, had the FBI been able to seize Mifsud’s phones while he was in the US during a period he was in contact with Papadopoulos, they would have a better chance of obtaining the phones Mifsud actually used to communicate with Papadopoulos, which it’s not at all clear are either of these dated phones. But because Papadopoulos lied, he prevented them from establishing the probable cause that would have permitted them to get the phones.

There’s one more curious aspect of Papadopoulos’ complaint.

Another of the details the government revealed to substantiate that Papadopoulos did not cooperate in the investigation is that he hid the existence of the phone he actually used to communicate with Mifsud through three proffer sessions, on August 10, August 11, and September 19, 2017 before finally revealing it on September 20.

The defendant also did not notify the government about a cellular phone he used in London during the course of the campaign – that had on it substantial communications between the defendant and the Professor – until his fourth and final proffer session. This cell phone was not among the devices seized at the airport because it was already in the defendant’s family home in Chicago.

The detail that Papadopoulos withheld the phone he actually used with Mifsud suggests he really didn’t want the true nature of his communications with Mifsud to be revealed. It may also suggest that FBI had, by September 2017, done enough surveillance of Mifsud to know what was on whatever phones he had actually been using with Papadopoulos.

And Conspiracy George has not — as far as I’m aware — talked about the metadata showing Mifsud’s ties with someone who appeared to be at the nexus of the two Russian operations, metadata that the FBI considered an ongoing investigation in April, when the Mueller Report was redacted.

That is, there’s a decent chance the FBI obtained anything interesting from 2016 from these phones via other means, means that also remain protected.

Whatever the reason for Papadopoulos’ change in heart, I do hope he’ll inform Bill Barr that, on reconsideration, he actually thinks the FBI didn’t surveil him enough in 2017, so Barr can stop his global wild goose chase and return to DC and start doing the work of an Attorney General.

Will Fox News Ask Its Commentators to Disclose Their Mobbed Up Clients?

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Yesterday, I asked Fox Media Critic Howard Kurtz if he could dedicate a show to why Fox News commentators Joe DiGenova (who recently took to the air to accuse Democrats of “regicide”) and Victoria Toensing don’t disclose their representation of Dmitry Fitash, whom Rudy Giuliani has publicly asserted has close ties to mobster Semion Mogilevich. It would also be nice if they disclosed that in recent months they were being paid by corrupt Ukrainian oligarch Firtash $250,000 a month to to complain that Hunter Biden was paid $50,000 a month by a different corrupt Ukrainian oligarch.

To be sure, I’m not arguing that there’s a problem with DiGenova and Toensing representing a mobbed up oligarch. Everyone deserves good legal representation and if Firtash wants to spend his money paying for disinformation rather than sound legal advice, that’s his choice.

Mind you, Fox News might feel differently. After all, the network aggressively backed a smear campaign during the Obama Administration to tar any DOJ appointee who had ever represented a terrorism defendant. Among the Fox personalities who, in 2010, believed that lawyers’ past representation of certain kinds of defendants suggested a current ideological affinity for the underlying crime were:

According to Sean Hannity’s logic — “logic” I’m not adopting — DiGenova and Toensing’s representation of a guy with ties to organized crime suggests they, themselves, must support organized crime (and bribery, which is the charge Firtash is trying to beat in the US).

Still, particularly given this precedent, so long as Fox News pretends to be a news organization, it would seem advisable for the network to require DiGenova and Toensing to disclose their ties to someone that the President’s own personal lawyer says has ties to the mob.

Update: Laura Rozen notes that Chris Wallace was among the first to report that Di Genova and Toensing were part of Rudy’s plot.

FOX News has learned the president’s private attorney, Rudy Giuliani, was not acting alone in trying to get dirt from Ukrainian officials on 2020 rival Joe Biden. Two high-profile Washington lawyers, Joe diGenova, who’s been a fierce critic of the Democratic investigation, and his wife Victoria Toensing, were working with Giuliani to get oppo research on Biden.

According to a top U.S. official, all three were working off the books apart from the administration. The only person in government who knows what they were doing is President Trump.

Mick Mulvaney Confesses OMB and DOD Are Withholding Evidence of a Crime from Congress

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Amid the tsunami of alarming news Mick Mulvaney made at today’s press conference (Trump is holding the G-7 at Doral next year, he likely will invite Putin, Trump did engage in a quid pro quo with Volodymyr Zelensky on his July 25 call), one of the more important admissions got missed.

Mick Mulvaney admitted that the White House would have been breaking the law by withholding Ukrainian security funds because it did not have a “really really good reason not to do it.”

By the way, there was a report that we were worried that the money, that if we didn’t pay out the money it would be illegal. It would be unlawful. That is one of those things that has a little shred of truth in it, that makes it look a lot worse than it really is. We were concerned about — over at OMB, about an impoundment. And I know I’ve just put half you folks to bed, but there’s a, the Budget Control Act, Impound — the Budget Control Impoundment Act of 1974 says that if Congress appropriates money you have to spend it. At least, that’s how it’s interpreted by some folks. And we knew that that money either had to go out the door by the end of September, or we had to have a really really good reason not to do it. And that was the legality of the issue.

He’s referring, presumably, to a WSJ report that OMB — the agency Mulvaney is still officially in charge of — put a political appointee in charge of withholding duly appropriated security funds for Ukraine so that President Trump could extort concessions from Ukraine.

The White House gave a politically appointed official the authority to keep aid to Ukraine on hold after career budget staff members questioned the legality of delaying the funds, according to people familiar with the matter, a shift that House Democrats are probing in their impeachment inquiry.

President Trump’s order to freeze nearly $400 million in aid to Ukraine in mid-July is at the center of House Democratic efforts to investigate allegations that Mr. Trump used U.S. foreign policy powers to benefit himself politically.

[snip]

The president has the authority to delay the release of money in certain instances, according to the Congressional Research Service, a nonpartisan research agency, including if there has been an unexpected change in circumstances for the program. But without being provided explanation or justification about why the administration was delaying the aid, some career officials at the Office of Management and Budget became worried they didn’t have the legal authority to hold up the funds, according to the people familiar.

While career civil servants put an initial hold on the aid, Michael Duffey, associate director of national security programs in OMB, was given the authority for continuing to keep the aid on hold after the career staff began raising their concerns to political officials at OMB, according to the people familiar with the matter. Mr. Duffey also began overseeing the process for approving and releasing funds, called apportionment, for other foreign aid and defense accounts, according to a public document indicating the change.

As noted by Mulvaney today, a law passed in the wake of Richard Nixon playing games with appropriations requires that if you withhold duly appropriated funds, you explain to Congress why you’re doing so, a decision that Congress then gets to veto simply by refusing to approve of the decision. The law makes it clear that the President can’t simply ignore the will of Congress on appropriations.

And yet, that’s what Trump did for the entirety of the summer.

Worse, in his press conference today, Mulvaney admitted that Trump didn’t have a “really really good reason not to” release the funds. Rather, he had a really bad reason: he was trying to extort a quid pro quo.

And that’s why the decision — reported in ho hum fashion on Tuesday as if it were just another case of the Administration refusing Congressional subpoenas — that OMB and DOD would not respond to subpoenas is actually really important.

The subpoena to those agencies lays out some of the evidence that Trump withheld the funds after DOD cleared them. Then it lays out the evidence that Trump was defying bipartisan Congressional will in doing so.

As you are aware, the Impoundment Control Act of 1974 authorizes the President to withhold the obligation of funds only “(1) to provide for contingencies; (2) to achieve savings made possible by or through changes in requirements or greater efficiency of operations; or (3) as specifically provided by law.” The President is required to submit a special message to Congress with information about the proposed deferral of funds.

On August 30, 2019, Chairman Adam Smith and Ranking Member Mac Thornberry of the House Committee on Armed Services wrote a letter to Mr. Mulvaney requesting information why military assistance to Ukraine was being withheld and when it would be released. They wrote: “This funding is critical to the accomplishment of U.S. national security objectives in Europe.”

On September 3, 2019, a bipartisan group of Senators–including Rob Portman, Jeanne Shaheen, Dick Durbin, Richard Blumenthal, and Ron Johnson–wore a letter requesting that OMB release the military assistance to Ukraine that the Trump Administration was withholding:

The funds designated for the Ukraine Security Assistance Initiative are vital to the viability of the Ukrainian military. It has helped Ukraine develop the independent military capabilities and skills necessary to fend off the Kremlin’s continued onslaughts within its territory. In fact, Ukraine continues to fight daily on its eastern border against Russia-backed separatists in the provinces of Donetsk and Luhansk, and over 10,000 Ukrainian soldiers and civilians have lost their lives in this war. U.S.-funded security assistance has already helped turn the tide in this conflict, and it is necessary to ensure the protection of the sovereign territory of this young country, going forward.

On September 5, 2019, Chairman Eliot L. Engel and Ranking Member Michael McCaul of the House Committee on Foreign Affairs wrote a letter to OMB urging the Trump Administration to lift its hold on security funds to support Ukraine, writing: “These funds, which were appropriated by Congress as Foreign Military Financing and as part of the Ukraine Security Assistance Initiative and signed into law by the President, are essential to advancing U.S. national security interests.”

On September 9, 2019, the Committees on Intelligence, Foreign Affairs, and Oversight wrote to the White House requesting documents related to “the actual or potential suspension of security assistance to Ukraine.” The White House never responded to this request. However, two days later, on September 11, 2019, the White House released its hold on the military assistance to Ukraine.

On September 24, 2019, Senate Majority Leader Mitch McConnell stated that, although he was “very actively involved in advocating the aid,” he “was not given an explanation” about why it was being withheld, even though he talked to the Secretary of Defense and the Secretary of State. He stated: “I have no idea what precipitated the delay.”

The enclosed subpoena demands documents that are necessary for the Committees to examine the sequences of these events and the reasons behind the White House’s decision to withhold critical military assistance to Ukraine that was appropriated by Congress to counter Russian aggression.

That’s the subpoena that Mulvaney’s agency and DOD (the latter, after initially saying it would cooperate) are defying. It’s a subpoena that goes to the zenith of Congress’ authority, whether it is issued within or outside of an impeachment inquiry. But within an impeachment inquiry, it illustrates that on one issue of fact at the core of the investigation, there is bipartisan agreement that the White House was in the wrong.

And today, Mulvaney admitted that the White House did not have a very very good reason to withhold those funds, even while confirming that Trump was withholding the funds, in part, to extort a quid pro quo.

Even if the White House had a very very good reason, the law obliges the White House to explain to Congress why it blew off Congress’ power of the purse. The White House didn’t do it in real time — not even to Mitch McConnell. And the White House is refusing to do it now.

Update: Jack Goldsmith did a review of this issue in Lawfare today, but before the Mulvaney comments.

Update: Lisa Murkowski complained about this issue to Tim Mak today.

Gordon Sondland’s Statement Protects, Does Not Break with, Trump

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Gordon Sondland is behind closed doors right now, trying to talk his way out of implication in crimes (he is represented, it should be noted, by the same lawyer who helped Karl Rove talk his way out of crimes in Valerie Plame’s outing, Robert Luskin).

But if Congressional staffers are doing their job, he’s going to have a hard job to spin what he did as anything but criminal. That’s true, in part, because his statement is full of obvious contradictions and evasions. But contrary to what many in the press (fed in advance with deceptive claims about his testimony) have claimed, the statement does not break with Trump, it protects him.

Who’s the boss?

Sondland’s first inconsistency pertains to one of the most important issues: why he was in charge of Ukrainian policy when Ukraine isn’t even in the EU. His general explanation for it is bullshit — and also should raise questions about what he has been doing in Georgia, Venezuela, and Iran. He studiously avoids explaining who ordered him to focus on Ukraine (as other testimony has made clear, the answer is because Trump ordered him to).

From my very first days as Ambassador, Ukraine has been a part of my broader work pursuing U.S. national interests. Ukraine’s political and economic development are critical to the long-lasting stability of Europe. Moreover, the conflict in Eastern Ukraine and Crimea, which began nearly five years ago, continues as one of the most significant security crises for Europe and the United States. As the U.S. Ambassador to the EU, I have always viewed my Ukraine work as central to advancing U.S.-EU foreign policy. Indeed, for decades, under both Republican and Democrat Administrations, the United States has viewed Ukraine with strategic importance, in part to counter Russian aggression in Europe and to support Ukraine energy independence. My involvement in issues concerning Ukraine, while a small part of my overall portfolio, was nevertheless central to my ambassadorial responsibilities. In this sense, Ukraine is similar to other non-EU countries, such as Venezuela, Iran, and Georgia, with respect to which my Mission and I coordinate closely with our EU partners to promote policies that reflect our common values and interests. I always endeavoured [sic] to keep my State Department and National Security Council colleagues informed of my actions and to seek their input.

But the logistics of it are more interesting, particularly as it pertains to coordinating with Rudy Giuliani.

At times (at both the very beginning, after his description of the July 10 meeting, and again to explain away the July 10 meeting), he emphasizes that Mike Pompeo has approved of all this.

I understand that all my actions involving Ukraine had the blessing of Secretary Pompeo as my work was consistent with long-standing U.S. foreign policy objectives. Indeed, very recently, Secretary Pompeo sent me a congratulatory note that I was doing great work, and he encouraged me to keep banging away.

[snip]

We had regular communications with the NSC about Ukraine, both before and after the July meeting; and neither Ambassador Bolton, Dr. Hill, nor anyone else on the NSC staff ever expressed any concerns to me about our efforts, any complaints about coordination between State and the NSC, or, most importantly, any concerns that we were acting improperly.

Furthermore, my boss Secretary Pompeo was very supportive of our Ukraine strategy.

[snip]

While I have not seen Dr. Hill’s testimony, I am surprised and disappointed by the media reports of her critical comments. To put it clearly: Neither she nor Ambassador Bolton shared any critical comments with me, even after our July 10, 2019 White House meeting. And so, I have to view her testimony — if the media reports are accurate — as the product of hindsight and in the context of the widely known tensions between the NSC, on the one hand, and the State Department, on the other hand, which had ultimate responsibility for executing U.S. policy overseas. Again, I took my direction from Secretary Pompeo and have had his consistent support in dealing with our nation’s most sensitive secrets to this very day.

Again, the public record makes it clear he was put in this role by Trump, not Pompeo. And while I’m sure Pompeo knew of what he was doing (his suggestion that Pompeo was “supportive of it” seems most clearly on point), he was reporting directly, via a third channel of authority, directly to Trump.

That said, his suggestion that Pompeo — a former CIA Director but now in charge of diplomacy, which is not supposed to be the realm of utmost secrecy — trusts him “with our nation’s most sensitive secrets,” suggests there’s something else going on here, something about which he’s reassuring Pompeo he’ll remain silent.

The claim that he took his direction from Pompeo, bolded above, is contradicted on the matter of Rudy Giuliani’s involvement.  His description of why Rudy was involved varies slightly over time. Initially, he says he coordinated with Rudy because the Three Amigos, collectively, decided they had to involve Rudy to achieve other diplomatic objectives.

Secretary Perry, Ambassador Volker, and I were disappointed by our May 23, 2019 White House debriefing. We strongly believed that a call and White House meeting between Presidents Trump and Zelensky was important and that these should be scheduled promptly and without any pre-conditions. We were also disappointed by the President’s direction that we involve Mr. Giuliani. Our view was that the men and women of the State Department, not the President’s personal lawyer, should take responsibility for all aspects of U.S. foreign policy towards Ukraine. However, based on the President’s direction, we were faced with a choice: We could abandon the goal of a White House meeting for President Zelensky, which we all believed was crucial to strengthening U.S.-Ukrainian ties and furthering long-held U.S. foreign policy goals in the region; or we could do as President Trump directed and talk to Mr. Giuliani to address the President’s concerns.

We chose the latter path, which seemed to all of us – Secretary Perry, Ambassador Volker, and myself – to be the better alternative.

Later, he claims that “his understanding” is that Trump ordered Rudy’s involvement, as if he didn’t get that order directly.

Mr. Giuliani does not work for me or my Mission and I do not know what official or unofficial role, if any, he has with the State Department. To my knowledge, he is one of the President’s personal lawyers. However, my understanding was that the President directed Mr. Giuliani’s participation, that Mr. Giuliani was expressing the concerns of the President, and that Mr. Giuliani had already spoken with Secretary Perry and Ambassador Volker.

Still later, he strengthens that, suggesting he was “taking direction from the President” directly.

As I stated earlier, I understood from President Trump, at the May 23, 2019 White House debriefing, that he wanted the Inaugural Delegation to talk with Mr. Giuliani concerning our efforts to arrange a White House meeting for President Zelensky. Taking direction from the President, as I must, I spoke with Mr. Giuliani for that limited purpose.

If he was taking orders from Trump on involving Rudy (which is almost certainly the case), then the claims of Pompeo’s role are just cover.

Sondland is obfuscating on both these issues: why the EU Ambassador was put in charge of Ukraine policy, and why Rudy was allowed to dictate Ukraine policy. While the press thinks Sondland has taken a big break from Trump, he has not on the key issue: that Sondland was taking orders from Trump and doing precisely what the President ordered him to.

The royal we

There are really telling passages in this statement where Sondland slips into the first person plural. Generally, he does so when describing something that he, Rick Perry, and Kurt Volker jointly believe. As noted, he does so is to explain why he and Rick Perry and Kurt Volker coordinated with Rudy.

It was apparent to all of us that the key to changing the President’s mind on Ukraine was Mr. Giuliani. It is my understanding that Energy Secretary Perry and Special Envoy Volker took the lead on reaching out to Mr. Giuliani, as the President had directed.

Indeed, Secretary Perry, Ambassador Volker, and I were disappointed by our May 23, 2019 White House debriefing. We strongly believed that a call and White House meeting between Presidents Trump and Zelensky was important and that these should be scheduled promptly and without any pre-conditions. We were also disappointed by the President’s direction that we involve Mr. Giuliani. Our view was that the men and women of the State Department, not the President’s personal lawyer, should take responsibility for all aspects of U.S. foreign policy towards Ukraine. However, based on the President’s direction, we were faced with a choice: We could abandon the goal of a White House meeting for President Zelensky, which we all believed was crucial to strengthening U.S.-Ukrainian ties and furthering long-held U.S. foreign policy goals in the region; or we could do as President Trump directed and talk to Mr. Giuliani to address the President’s concerns.

We chose the latter path, which seemed to all of us – Secretary Perry, Ambassador Volker, and myself – to be the better alternative.

Another place he does so is to explain why the Three Amigos moved forward on scheduling the July 25 call when John Bolton and Fiona Hill were opposed (he’s utterly silent about the second half of his July 10 meeting with the Ukrainians).

We three favored promptly scheduling a call and meeting between Presidents Trump and Zelensky; the NSC did not.

He also uses it to describe his meeting with Zelensky on July 26, after Zelensky had delivered on the quid pro quo, where he set up the White House meeting.

During this July 26, 2019 meeting in Kiev, we were able to promote further engagement, including discussions about a future Zelensky visit to the White House.

This is Gordon Sondland’s testimony, remember, not the Three Amigos’ testimony. But in these key passages, he claims — without explaining how he can do so — to speak for all three. He doesn’t explain if they had conversations (or WhatsApp threads) agreeing on all these issues, he just suggests he can speak for all three.

And his denials that he shared this statement with State or White House would not extend to these other people he invokes as “we.”

Perhaps a more interesting invocation of the third person plural comes where he claims that Bill Taylor, along with him and Volker, had no concerns about the push to get to Ukraine to publicly commit to an investigation that would deliver part of a quid pro quo.

First, I knew that a public embrace of anti-corruption reforms by Ukraine was one of the pre-conditions for securing a White House meeting with President Zelensky. My view was, and has always been, that such Western reforms are consistent with U.S. support for rule of law in Ukraine going back decades, under both Republican and Democrat administrations. Nothing about that request raised any red flags for me, Ambassador Volker, or Ambassador Taylor.

Taylor is still with State, so if Sondland is being honest when he says he hasn’t shared his statement, then Taylor has not bought off on this claim. I look forward to seeing whether he backs it when he testifies.

[Update, 11/20: I now believe that some of this use of royal “we” is meant to invoke Trump but not necessarily the other Amigos.]

Schrodinger’s quid pro quo

The press has been most excited about the fact that Sondland claims Trump may have had a quid pro quo, but he was ignorant of it.

But in fact, Sondland does not deny a quid pro quo. In fact, his carefully written statement admitting he knew the quid pro quo involved Burisma (which he claims he had no idea meant Biden) admits that the 2016 ask was part of it.

Mr. Giuliani emphasized that the President wanted a public statement from President Zelensky committing Ukraine to look into anticorruption issues. Mr. Giuliani specifically mentioned the 2016 election (including the DNC server) and Burisma as two anticorruption investigatory topics of importance for the President.

And his denials about knowing that the quid pro quo involved the 2020 elections are laughable. His first such denial claims he only learned later about the specific nature of (part of) Rudy’s quid pro quo, but he doesn’t describe when he learned of it, either there or later.

I did not understand, until much later, that Mr. Giuliani’s agenda might have also included an effort to prompt the Ukrainians to investigate Vice President Biden or his son or to involve Ukrainians, directly or indirectly, in the President’s 2020 reelection campaign.

Later, he denies recalling having any conversations about these aspects of the quid pro quo with 1) Rudy, 2) State, and 3) any “White House official” (does that description include the President?).

Third, given many inaccurate press reports, let me be clear about the following: I do not recall that Mr. Giuliani discussed Former Vice President Biden or his son Hunter Biden with me. Like many of you, I read the transcript of the Trump-Zelensky call for the first time when it was released publicly by the White House on September 25, 2019.

[snip]

Again, I recall no discussions with any State Department or White House official about Former Vice President Biden or his son, nor do I recall taking part in any effort to encourage an investigation into the Bidens.

But he doesn’t deny talking about the nature of the quid pro quo with Volker (who’s not technically a State Department employee), Rick Perry (ditto), or the Ukrainian officials that Fiona Hill saw him discussing Burisma with on July 10.

When he denies Trump’s extortion of Ukraine, he denies only that the quid pro quo involved the 2020 election (and not Naftogaz considerations or claims about what happened in 2016 or, perhaps even more tellingly, Russian help in 2020).

Sixth, to the best of my recollection, I do not recall any discussions with the White House on withholding U.S. security assistance from Ukraine in return for assistance with the President’s 2020 re-election campaign.

In denying Bill Taylor’s concern about a quid pro quo, he dismisses it as a concern about the appearance of a quid pro quo, rather than the actuality of one.

On September 9, 2019, Acting Charge de Affairs/Ambassador William Taylor raised concerns about the possibility that Ukrainians could perceive a linkage between U.S. security assistance and the President’s 2020 reelection campaign.

Taking the issue seriously, and given the many versions of speculation that had been circulating about the security aid, I called President Trump directly. I asked the President: “What do you want from Ukraine?” The President responded, “Nothing. There is no quid pro quo.” The President repeated: “no quid pro quo” multiple times. This was a very short call. And I recall the President was in a bad mood.

Sondland here credits Trump’s statements, as if any Trump statement ever had any veracity, as true, even though they came at a time when the White House already knew about the whistleblower complaint, which makes what would already be unreliable outright laughable, if indeed Trump actually said that at all.

But the bigger point is this: Sondland doesn’t deny a quid pro quo. Just that he knew it was the quid pro quo that the House is currently most closely focused on early on in the process.

Gaps in the timeline

Given the way he is protecting Trump in all this, there are notable key gaps in his timeline.

Sondland doesn’t answer two obvious questions: why the Ambassador to the EU was part of the delegation to Volodymyr Zelensky’s inauguration, and why the inauguration delegation flew back to DC, almost immediately, to brief the President on it.

On May 20, 2019, given the significance of this election, I attended the inauguration of President Zelensky as part of the U.S. delegation led by U.S. Energy Secretary Rick Perry, along with Senator Ron Johnson, Special Envoy Volker, and Alex Vindman from the NSC. During this visit, we developed positive views of the new Ukraine President and his desire to promote a stronger relationship between Kiev and Washington, to make reforms necessary to attract Western economic investment, and to address Ukraine’s well-known and longstanding corruption issues.

On May 23, 2019, three days after the Zelensky inauguration, we in the U.S. delegation debriefed President Trump and key aides at the White House. We emphasized the strategic importance of Ukraine and the strengthening relationship with President Zelensky, a reformer who received a strong mandate from the Ukrainian people to fight corruption and pursue greater economic prosperity. We asked the White House to arrange a working phone call from President Trump and a working Oval Office visit. However, President Trump was skeptical that Ukraine was serious about reforms and anti-corruption, and he directed those of us present at the meeting to talk to Mr. Giuliani, his personal attorney, about his concerns.

One reason those players would have flown to DC to debrief Trump is because of the scheme to take over Naftogaz led by Perry, something Sondland doesn’t mention at all.

He also plays games with his antecedent in trying to claim that a June 4 meeting involving Zelensky, Rick Perry, and Ulrich Brechbuhl (where they discussed natural gas, among other things) had been long planned.

Following my return to Brussels and continuing my focus on stronger U.S.-EU ties, my Mission hosted a U.S. Independence Day event on June 4, 2019. Despite press reports, this event was planned months in advance and involved approximately 700 guests from government, the diplomatic corps, the media, business, and civil society. The night featured remarks by the Ambassador and High Representative of the European Union for Foreign Affairs. Following the main event, we hosted a smaller, separate dinner for about 30 people. President Zelensky and several other leaders of EU and non-EU member states attended the dinner, along with Secretary Perry, U.S. State Department Counselor Ulrich Brechbuhl on behalf of Secretary Pompeo, and numerous other key U.S. and EU officials. Though planned long in advance with the focus on improving transatlantic relations, we also viewed this event as an opportunity to present President Zelensky to various EU and U.S. officials and to build upon the enhanced government ties.

He uses “this event” to refer both to the larger 700 person event and the smaller 30 person meeting, effectively making a claim — that the larger event had been long-planned — that he tries to apply to the smaller one. He also is curiously silent about Jared Kushner’s involvement.

In addition to being silent about the second part of his July 10 meeting — the part that got John Bolton worried about what drug deals he was doing — Sondland is also silent about his pre-call briefing to Trump on July 25, after Bolton’s prep.

I was not on that July 25, 2019 call and I did not see a transcript of that call until September 25, 2019, when the White House publicly released it. None of the brief and general call summaries I received contained any mention of Burisma or former Vice President Biden, nor even suggested that President Trump had made any kind of request of President Zelensky.

And his denials about the post-call summaries mentioning Burisma or Biden do not amount to a denial that his prep did. Nor does that denial address his July 26 conversation with Trump (which he addresses in a different section), which he describes as nonsubstantive without addressing whether Trump mentioned the quid pro quo.

I do recall a brief discussion with President Trump before my visit to Kiev. That call was very short, nonsubstantive, and did not encompass any of the substance of the July 25, 2019 White House call with President Zelensky.

In other words, even where denies talking about the quid pro quo, the denials don’t amount to denials in the most important conversations.

Sondland’s silence about WhatsApp

Finally, Sondland is playing games regarding what communications he has had. With the exception of his July 26 and September 9 calls, doesn’t describe what direct communications with Trump he has had.

Just as key, he is mostly silent about his conduct of diplomacy on WhatsApp, precisely the crime (doing official business on private accounts) Trump accused Hillary of to get elected (though his lawyers wrote a letter claiming that they’re helpless in the face of State’s refusal to share his comms). That’s all the more telling given the structure of Sondland’s denials of extensive comms with Rudy. His statement deals with three different kind of comms. He focuses on in-person meetings and phone calls.

To the best of my recollection, I met Mr. Giuliani in person only once at a reception when I briefly shook his hand in 2016. This was before I became Ambassador to the EU. In contrast, during my time as Ambassador, I do not recall having ever met with Mr. Giuliani in person, and I only spoke with him a few times.

[snip]

My best recollection is that I spoke with Mr. Giuliani for the first time in early August 2019, after the congratulatory phone call from President Trump on July 25, 2019 and after the bilateral meeting with President Zelensky on July 26, 2019 in Kiev. My recollection is that Mr. Giuliani and I actually spoke no more than two or three times by phone, for about a few minutes each time.

[snip]

As I stated earlier, I understood from President Trump, at the May 23, 2019 White House debriefing, that he wanted the Inaugural Delegation to talk with Mr. Giuliani concerning our efforts to arrange a White House meeting for President Zelensky. Taking direction from the President, as I must, I spoke with Mr. Giuliani for that limited purpose. In these short conversations, Mr. Giuliani emphasized that the President wanted a public statement from President Zelensky committing Ukraine to look into anticorruption issues.

[snip]

Ten weeks after the President on May 23, 2019 directed the Inaugural Delegation to talk with Mr. Giuliani, I had my first phone conversation with him in early August 2019. I listened to Mr. Giuliani’s concerns

But he acknowledges that Volker introduced him to Rudy “electronically.”

Ambassador Volker introduced me to Mr. Giuliani electronically.

Nowhere in his statement does he explain what form of electronic communication this introduction took place over, and nowhere does he deny having WhatsApp (or any other kind of texting) communications with Rudy.

That’s all the more curious given that he claims — ridiculously — that his statements to Bill Taylor to avoid talking about a quid pro quo on WhatsApp were not an attempt to avoid leaving a record.

Fifth, certain media outlets have misinterpreted my text messages where I say “stop texting” or “call me.” Any implication that I was trying to avoid making a record of our conversation is completely false. In my view, diplomacy is best handled through back-and-forth conversation. The complexity of international relations cannot be adequately expressed in cryptic text messages. I simply prefer to talk rather than to text. I do this all the time with family, friends, and former business associates. That is how I most effectively get things done. My text message comments were an invitation to talk more, not to conceal the substance of our communications.

Immediately after saying those WhatsApp texts no not really record the truth, he points to some emails that, he says, show that he truthfully did not want a quid pro quo.

I recall that, in late July 2019, Ambassadors Volker and Taylor and I exchanged emails in which we all agreed that President Zelensky should have no involvement in 2020 U.S. Presidential election politics.

Remember: State is withholding all of Sondland’s electronic comms from the impeachment inquiry (even assuming he turned them all over to State). So his games with phone calls and texts should be assumed to be just that, claims made from the temporary security of believing the comms to check his claims will never be turned over.

Which is to say that Sondland says quite a bit in this statement. But the most important things are his silences.

Update: On November 5, Sondland unforgot some stuff laid out in Bill Taylor and Tim Morrison’s testimony. But many of the holes laid out above remain.

The Frothy Right Gets More Excited about an Eight Year Old Phone than Contemporaneous Metadata

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As is her wont, Mike Flynn lawyer Sidney Powell engaged in another little bit of theater yesterday.

She demanded that prosecutors turn over two BlackBerry phones, reportedly used by Joseph Mifsud, that “has only recently come into [the government’s] possession,” (which presumably means the Attorney General fed her these details after he returned from Italy). Powell demanded the phones as Brady evidence, even though she didn’t make any effort to claim the phones had anything to do with the crimes her client pled guilty to, crimes he committed in 2017.

Rather, she claims these phones show something that went down in 2014, presumably relating to his termination from DIA.

This information is material, exculpatory, and relevant to the defense of Mr. Flynn, and specifically to the “OCONUS LURES” and agents that western intelligence tasked against him likely as early as 2014 to arrange—unbeknownst to him—“connections” with certain Russians that they would then use against him in their false claims.

She helpfully provides the SIM and IMEI data for the phones, which would enable skilled InfoSec experts with a tolerance for working in gray areas of the law to pull up any metadata still available.

But she also describes that these phones are a 9900 Bold — a phone that dates to May 2011 — and a Classic SQC100-1 that dates to December 2014. In other words, these are old phones, ancient in terms of modern smart phones. They date to before the only known alleged interaction between Mifsud and Flynn, at the RT dinner where he got paid to sit with Vladimir Putin. And while it’s possible they have comms involving George Papadopoulos, it is virtually certain they have nothing pertaining to the lies Mike Flynn told in 2017.

Which means it is virtually certain they contain no Brady evidence pertaining to this case.

But the filing worked as, I’m sure, she (and the Attorney General?) planned, to work the conspiracist right into a frenzy based on a claim that has no basis in the law.

In addition to being insufficiently curious about Mifsud’s presence at that RT gala, the frothy right still have never shown any awareness of this passage, which shows that Mifsud was in touch with someone who seems to have had ties to both the IRA part of the 2016 Russian operation and the GRU side.

Even if Mifsud has had ties to Western intelligence in 2011, it doesn’t say anything about whether he had closer ties to Russia in 2016, when it matters (even for the Papadopoulos story, much less the Flynn one). That’s what spies do. They recruit people with access to people they want information about.

In short, Sidney Powell and Bill Barr have gotten the frothy right more worked up about an 8 year old phone than they have ever been about metadata contemporaneous to Russia’s efforts to sway the 2016 elections.

Update: A pro-conspiracy Italian asserts that these are Mifsud’s British phones, not his Italian ones, which would show his network in Italy. Of course, neither are his Russian ones, if he has separate phone for each country he frequents, and those would be the ones of interest, allegedly, to Powell.

The Significance of Fiona Hill’s Testimony: “Whatever Drug Deal Sondland and Mulvaney Are Cooking Up”

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A number of people on Twitter have asked me to elaborate on some comments I’ve made about the significance of Fiona Hill’s testimony before the Ukraine impeachment team yesterday.

It’s unclear whether she shared details of her testimony or whether most of the reporting comes from Jamie Raskin (who notably got the import of the State IG’s urgent briefing utterly wrong). But NYT has thus far offered the key description (citing at least two other people beyond Raskin).

Force Bolton to shit or get off the pot

First, the NYT describes Hill citing the abrasive John Bolton saying two fairly stunning things which were bound to make headlines. First, she described Bolton saying Rudy was a “hand grenade” who would blow everyone up (a quote Rudy has already responded to).

Mr. Bolton expressed grave concerns to Ms. Hill about the campaign being run by Mr. Giuliani. “Giuliani’s a hand grenade who’s going to blow everybody up,” Ms. Hill quoted Mr. Bolton as saying during an earlier conversation.

Then, after a July 10 meeting where it became clear Trump was withholding security assistance for campaign propaganda, according to reports of Hill’s testimony, Bolton asked her to tell Deputy White House Counsel John Eisenberg that he was not part of “whatever drug deal” Trump’s flunkies were pursuing.

“I am not part of whatever drug deal Sondland and Mulvaney are cooking up,” Mr. Bolton, a Yale-trained lawyer, told Ms. Hill to tell White House lawyers, according to two people at the deposition.

It was clear even before the July 25 call that kicked off this whole scandal that Bolton was on the outs. Tellingly, Bolton was specifically excluded from the call.

But since then, Bolton has (like James Mattis) been talking about writing a book, telling his story for history, rather than for the present and the sake of the Constitution.

By including these two quotes in her testimony, Hill not only ensured that Bolton will be the target of Trump’s ire (after all, Hill didn’t say these things, Bolton reportedly did). But it will force Bolton to either deny them (if he’s certain Hill didn’t take contemporaneous notes), or take a stand against activities he clearly recognized were wrong.

And if Bolton testifies in the impeachment inquiry about his concerns, it will represent someone about whom there can be no doubts as to Republican partisan loyalty. If Hill’s inclusion of Bolton’s comments leads Trump’s former National Security Advisor to provide damning testimony to the impeachment inquiry, it will change both the profile of the inquiry and the possible response attacks.

Force Sondland to rewrite his ever-evolving testimony

Hill’s testimony about that July 10 meeting also provided damning testimony about Gordon Sondland, who is scheduled to testify on Thursday.

One of the most dramatic moments she described came in the July 10 meeting in Mr. Bolton’s office that included Mr. Sondland; Kurt D. Volker, then the special envoy for Ukraine; Rick Perry, the energy secretary; and two Ukrainian officials.

The purpose of the meeting was to talk about technical assistance to Ukraine’s national security council. The Ukrainians were eager to set up a meeting between Mr. Trump and Mr. Zelensky, who was elected on a promise to clean up corruption and resolve the country’s five-year war with Russian-armed separatists.

Mr. Bolton was trying to not commit to a meeting, according to Ms. Hill’s testimony. Mr. Sondland got agitated, Ms. Hill testified, and let out that there was an agreement with Mr. Mulvaney that there would be a meeting if Ukraine opened up the investigations the White House was seeking.

Mr. Bolton immediately ended the meeting abruptly. As the group moved toward the door, Mr. Sondland said he wanted them to come down to the ward room next to the White House mess to discuss next steps. Mr. Bolton pulled Ms. Hill aside to instruct her to go to the ward room and report to him what they talked about.

When she got downstairs, Mr. Sondland was talking with the Ukrainians and specifically mentioned Burisma, the Ukrainian energy firm that had Hunter Biden, the former vice president’s son, on its board.

Sondland has already test driven two drafts of his intended testimony, much as Michael Cohen did two years ago before he gave false testimony to Congress. Even the most recent of those drafts appears to be rendered inoperative by Hill’s testimony.

I’m sure Adam Schiff would have preferred that Sondland not get another chance to craft his testimony (and I suspect Sondland’s lawyer is trying to convince him that the possibility of being named Secretary of State is not worth perjuring himself for, which is why he’s probably not yet planning on invoking the Fifth).

But thus far, Sondland doesn’t seem to have discovered a story that he can tell that coheres with the other known testimony.

Hill ties Sondland’s actions to Trump

Hill also provided testimony — testimony we know that is backed by other witnesses — that Sondland was playing the role he was playing because the President wanted him to be.

At one point, she confronted Mr. Sondland, who had inserted himself into dealings with Ukraine even though it was not part of his official portfolio, according to the people informed about Ms. Hill’s testimony.

He told her that he was in charge of Ukraine, a moment she compared to Secretary of State Alexander M. Haig Jr.’s declaration that he was in charge after the Ronald Reagan assassination attempt, according to those who heard the testimony.

According to whom, she asked.

The president, he answered.

This will tie Trump directly to this scheme and make Sondland’s later denials about whether he knew Trump to be lying about a quid pro quo even more obviously false than they already are. This is not Rudy freelancing, or State ordering him to, but Trump ordering everyone to.

Hill implicates John Eisenberg

I noted the central role of John Eisenberg in attempts to cover this quid pro quo up weeks ago (and noted that he succeeded in preventing any record of an early quid pro quo from being being made).

Eisenberg is the guy who decided to put the transcript of the July 25 call on the Top Secret server. Eisenberg had a role in framing the crimes, as described to DOJ, such that they could shunt them to Public Integrity and dismiss them, rather than open up another Special Counsel investigation into the President’s extortion.

But Hill’s testimony makes it clear Eisenberg was told of what Bolton analogized to crimes well before the call.

Ms. Hill went back upstairs and reported the encounter to Mr. Bolton, who promptly instructed her to report the issue to John A. Eisenberg, a deputy White House counsel and the chief legal adviser for the National Security Council, along with his line about the drug deal, which he meant metaphorically.

Mr. Eisenberg told Ms. Hill he would report it up his chain of command, which would typically mean Pat Cipollone, the White House counsel.

Eisenberg (whose FBI 302 from the last Trump criminal investigation DOJ is trying to withhold) would have been on the hook anyway for a clear attempt to cover up Trump’s crime. But the revelation that he had advance warning that a crime was in process — and apparently did nothing to prevent it — changes his exposure significantly.

It was the OMB Director, misappropriating funds, in the National Security Advisor’s office

Finally, Hill puts Mick Mulvaney at the scene of the crime.

As I’ve said before, one part of this scandal that has gotten far too little attention is that, to extort Ukraine, Trump withheld funds appropriated by Congress, funds about which there was bipartisan agreement.

Last week, CNN and WSJ reported that to do this, OMB changed the way the funds were distributed, putting a political flunkie in charge, also a detail that has gotten far too little attention.

Not only does that raise the Constitutional stakes of the Executive’s refusal to spend the funds Congress had duly appropriated, but it shows consciousness of guilt.

And per Hill’s testimony Mick Mulvaney, serving in the dual role of OMB chief and Chief of Staff, knew that those funds were being withheld for a quid pro quo or (as John Bolton described it) a drug deal.

Senate Republicans might not ever convict Trump for demanding foreign countries invent propaganda on his political allies. They might feel differently once it becomes clear that the crime involves refusing to do what Congress, with its power of the purse, told him to, without even telling Congress he was doing so (or why). They may not care about Trump pressing for any political advantage for their party, but they may care about Trump neutering their most important authority.

The Criminal Investigation into Paul Manafort Was (and May Still be) Ongoing–and Likely Pertains to Trump’s Ukraine Extortion

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Robert Mueller was never able to determine whether Paul Manafort entered into a quid pro quo on August 2, 2016, trading — either on his own or with the approval of Trump — promises to help carve up Ukraine to Russia’s liking in exchange for help winning the election.

Mueller never made that determination, in part, because Manafort lied during the period he was purportedly cooperating with the investigation.

Here’s what Mueller did determine was reliable:

First, Manafort and Kilimnik discussed a plan to resolve the ongoing political problems in Ukraine by creating an autonomous republic in its more industrialized eastern region of Donbas,922 and having Yanukovych, the Ukrainian President ousted in 2014, elected to head that republic.923 That plan, Manafort later acknowledged, constituted a “backdoor” means for Russia to control eastern Ukraine.924 Manafort initially said that, if he had not cut off the discussion, Kilimnik would have asked Manafort in the August 2 meeting to convince Trump to come out in favor of the peace plan, and Yanukovych would have expected Manafort to use his connections in Europe and Ukraine to support the plan.925 Manafort also initially told the Office that he had said to Kilimnik that the plan was crazy, that the discussion ended, and that he did not recall Kilimnik asking Manafort to reconsider the plan after their August 2 meeting.926 Manafort said [redacted] that he reacted negatively to Yanukovych sending-years later-an “urgent” request when Yanukovych needed him.927 When confronted with an email written by Kilimnik on or about December 8, 2016, however, Manafort acknowledged Kilimnik raised the peace plan again in that email.928 Manafort ultimately acknowledged Kilimnik also raised the peace plan in January 2017 meetings with Manafort [redacted — pertains to him admitting continuation of the plan into 2018] 929

Second, Manafort briefed Kilimnik on the state of the Trump Campaign and Manafort’s plan to win the election.930 That briefing encompassed the Campaign’s messaging and its internal polling data. According to Gates, it also included discussion of “battleground” states, which Manafort identified as Michigan, Wisconsin, Pennsylvania, and Minnesota.931 Manafort did not refer explicitly to “battleground” states in his telling of the August 2 discussion, [redacted]

Third, according to Gates and what Kilimnik told Patten, Manafort and Kilimnik discussed two sets of financial disputes related to Mana fort’s previous work in the region. Those consisted of the unresolved Deripaska lawsuit and the funds that the Opposition Bloc owed to Manafort for his political consulting work and how Manafort might be able to obtain payment.933

922 The Luhansk and Donetsk People’s Republics, which are located in the Donbas region of Ukraine, declared themselves independent in response to the popular unrest in 2014 that removed President Yanukovych from power. Pro-Russian Ukrainian militia forces, with backing from the Russian military, have occupied the region since 2014. Under the Yanukovych-backed plan, Russia would assist in withdrawing the military, and Donbas would become an autonomous region within Ukraine with its own

Although Mueller included this significant summary of the issue in his Report (and a description of how Rick Gates kept sending polling data to Konstantin Kilimnik, to be shared with Ukrainian oligarchs and Oleg Deripaska’s GRU-linked aide, Viktor Boyarkin), the government nevertheless refused to release the details regarding this dispute that were laid out in court filings and exhibits regarding his breach of his plea deal when WaPo tried to liberate them starting in March. The government explained that, “a number of matters [related to his lies that were referred] to other offices in the Department of Justice … remain ongoing,” and asked for any further matters in WaPo’s challenge be deferred until six months later, which happens to be Tuesday. Judge Amy Berman Jackson never ruled differently, so that’s where things have stood, at least on the public docket, since April, shortly after the Mueller Report was released.

That’s interesting because the government accused Manafort of lying about five different topics. Some are definitely related to each other, and some (as well as his underlying guilty verdicts) are also definitely related to recent events relating to Ukraine and Russia. Which is why it’s worth looking back to learn what Manafort worked hardest to obscure in September and October 2018. Doing so suggests that Trump’s Ukraine call — including the demand for election help and Volodymyr Zelensky implementation of the Steinmeier Formula since — may simply be one step in paying off his campaign debts from 2016. As such, Rudy Giuliani’s involvement with Lev Parnas and Igor Fruman may just be the continuation of what Manafort was pursuing — also being paid by a cut-out system — even after he got sent to jail.

In this post, I’ll look specifically at how the lies Manafort told do and may relate to current events. In a follow-up, I hope to show how the issues for which he was prosecuted also relate to current events, well beyond Trump’s efforts to undermine Manafort’s prosecution to make a pardon easier. Taken together, such analysis will show that the Ukraine scandal is completely inseparable from the Russia one.

Manafort told five lies

Altogether, the government tried to hold Manafort accountable for five lies. Those were:

  1. How he got paid using a kick-back system involving a SuperPAC, Rebuilding America Now, which (on top of violating prohibitions on coordination with the campaign) may have accepted funds from foreigners. Mueller’s team never seemed to figure out how that scheme worked, in part because Manafort never settled on an explanation for the kickbacks. ABJ ruled that Manafort lied about this.
  2. Whether he tried to dissociate Konstantin Kilimnik from his own witness tampering to hide the true role of the Hapsburg Group, some former European leaders Manafort used to lobby for Viktor Yanukovych’s party. Effectively, the government accused Manafort of trying to suggest that Kilimnik wasn’t willfully part of what he was doing during a period that spanned from February (when the actual witness tampering happened) through April 2018 (when Manafort tried to tamper again). ABJ agreed in principle that Manafort had lied about this, but ruled the government did not present a preponderance of the evidence, so didn’t count this against him in sentencing.
  3. Whether he lied to adapt his story to a more exonerating one being told by a Trump flunkie — it’s not clear who — involved in doing something — it’s not clear what — to save Trump’s campaign in the last days during which Manafort managed the campaign. ABJ agreed he had.
  4. What the fuck he was doing on August 2, 2016, and (though this is always unstated) whether his lies to hide repeated discussions to support a Ukrainian “peace” plan between then and April 2018 were an attempt to hide an effort to pay off a quid pro quo tied to assistance winning the election.
  5. Whether Manafort spoke to the Administration after inauguration, either directly or indirectly. ABJ ruled that the government had not provided evidence that Manafort lied about his ongoing communications with the Administration.

Of these lies, the lies about another investigation (lie 3 above) seem to be unrelated to the rest. That’s because they involved, well before the Mueller investigation finished, another part of DOJ, and so almost certainly have nothing to do with Russia or Ukraine. Unsurprisingly, the Trump campaign may have been willing to cheat multiple ways to win the 2016 electionm.

The kickback system (lie 1 above) may or many not relate to the Russian and Ukraine questions. Mueller was never able to sort it out, so it’s not clear what to make of it. For my purposes, however, it’s relevant that Manafort’s claims of working for “free” may turn out to be false. Instead, Paul Manafort — who pled guilty a year ago to laundering money and refusing to register to hide how his influence campaigns in the US were being paid for by Ukrainian oligarchs — may have been paid to run Trump’s campaign by foreigners laundering those payments via various means. That’s significant because, last week, DOJ accused Lev Parnas and Igor Fruman of laundering money (from sources Russian, Ukrainian, and unknown) through various front companies, including one called Global Energy Production apparently created for the function, to engage in influence campaigns relating to Ukraine, effectively the same kind of scheme that Manafort engaged in for years. Particularly given that Rudy claims to be both working for and employing Lev Parnas and Igor Fruman, it raises questions about whether his claims to be working for “free” are also bogus, just a lie to hide how the cut through works.

Kilimnik and Manafort’s efforts to push a Ukraine “peace” plan overlap with their witness tampering

Lies 2 and 4 are obviously related, because Konstantin Kilimnik — as Manafort’s tie to several Ukrainian oligarchs and Oleg Deripaska — is at the center of both of them. Manafort’s efforts to deny that Kiliminik was his co-conspirator may have been motivated by nothing more than a need to permit Kevin Downing to claim, falsely, that Manafort’s guilty plea affirmed no “collusion” between the President’s campaign manager and any Russians had occurred. Not only did ABJ affirmatively state that, whatever Kilimnik’s ties to GRU, his role did amount to a link to Russia.

So Manafort was both trying to lie that he had pled guilty to entering a conspiracy with a Russian suspected of ties to GRU, but he was lying to hide precisely what the nature of any conspiracy that may have tied assistance with the 2016 election to help implementing a Ukraine “peace” plan favored by Russia and Russian-aligned Ukrainian oligarchs.

Still, even within that context, there are details of the two Kilimnik lies that deserve more attention. Consider how the timeline of the two sets of lies intersect in 2018, months after Manafort was first charged, in the weeks and months after Trump had reportedly told allies that he was sure he would survive the Mueller investigation because Manafort would not flip on him.

In the weeks after that claim was published, from February 5 through 10, 2018, Manafort was still trying to deliver on his “New initiative for Peace” (PDF 82).

Later in February, after Mueller unveiled Rick Gates’ cooperation and made it clear he was pursuing another of the vehicles Manafort used to hide his influence operations, the Hapsburg Group, he and Kilimnik reached out to key players in that influence operation (who, unbeknownst to Manafort, had already been cooperating for some time) in an attempt to get them to lie about the influence operation. Those contacts, over Telegram and WhatsApp, took place between February 24 and 28.

But knowing that another part of his past influence operation was under scrutiny still didn’t dissuade Manafort from pursuing that “peace” plan Kilimnik first pitched him on August 2, 2016, amid a discussion of how to get Trump elected. On March 9, he was sending some unnamed person related documents from Kilimnik. (PDF 92ff) The breach hearing and other documents make it clear this was an effort to test the viability of a Ukrainian candidate, including his willingness to implement the “peace” plan.

He was doing it again on March 26. (PDF 97)

Manafort would try to dissociate this polling from the people who were really implementing, including, apparently, trying to pretend that Kilimnik didn’t know about it.

Then — included in the contacts that (the government says) were part of Manafort’s conspiracy to obstruct with Kilimnik, though it’s not clear how — there were more contacts with the Hapsburg Group flacks on April 4.

In fact, Manafort’s efforts to pursue this “peace” plan continued even further, with him hoping that some unnamed person would find documents valuable on May 4. (PDF 95)

There’s a lot more sealed evidence about how relentlessly Manafort pursued a Ukrainian “peace” plan between August 2, 2016 and at least the time he was jailed for bail violations in June 2018 (though remember, the government alleges he continued to communicate in incriminating ways even from jail, via laptops carried by his attorneys). Altogether, there are 38 exhibits documenting Manafort’s false denials of his actions on that front. Because the government says it has (or had) an ongoing investigation into such matters, we don’t get to see what the exhibits are. But Manafort’s lawyer, Kevin Downing (who filled in at Parnas and Fruman’s bail hearing the other day) has seen them. And Downing, reportedly, was sharing details of Manafort’s cooperation with other lawyers in Manafort’s Joint Defense Agreement with the President, including Rudy Giuliani.

Trump “hired” his “free” defense attorney Rudy Giuliani on April 19, 2018, after current Parnas and Fruman attorney John Dowd quit. And once Manafort could no longer pursue  his Ukraine “peace” plan, Rudy got involved in efforts to press for certain concessions in Ukraine.

Manafort’s attempts to communicate with the Administration (excepting via counsel)

Finally, there’s the last alleged lie, the one ABJ said prosecutors did not prove.

It’s not really clear what prosecutors believed Manafort was communicating about, beyond hires (like Steve Calk) in the Administration, because the topic of interest (which in some redactions appears to be too short to refer to Ukraine or Russia) is redacted in the documents released. They only submitted six exhibits to substantiate their claim. But the two unredacted exhibits presented in support of their case are notable.

UPDATE, 5/26/21: The further unsealing of these documents have revealed that they pertain to lobbying Department of Labor about ERISA, and so are probably totally unrelated.

On May 15, Manafort drew up a document that (the government’s declaration makes clear) included a section titled “Targets,” along with notes indicating Manafort would reach out to people about those targets. (PDF 152)

It might be a coincidence, but Manafort draws up this document right at the beginning of Parnas and Fruman’s efforts to donate big money to key Republicans through their shell company.

And on May 25, someone asked Manafort via WhatsApp whether it was cool to invoke his name if he or she met with Trump the following week, one-on-one. (PDF 156)

In the breach hearing, ABJ summarizes this:

You say that what he said was false because he did in fact agree to have messages sent to the administration on his behalf. And you point to evidence in which he offered to have other people contact the [redacted] on behalf of Mr. [redacted], for example, or to press buttons. But that outreach appears to have been two people outside the administration who themselves would have contacts within. There is some evidence that Mr. Gates said that Mr. Manafort said he still had connections, and that another individual asked Mr. Manafort if he, that individual, could tell [redacted (the President)] he was still close to Manafort.

And you have his involvement in lobbing with respect to [redacted], and Exhibit 404 is this memo summarizing the group’s plan that say, somewhat ambiguously, [redacted] will find out if [redacted] did her bit and get her to call [redacted] And it’s not even crystal clear that he was supposed do that by calling her.

In explaining the lie, Greg Andres makes it clear that Manafort was also representing in March that he had the ability to send messages to someone (probably Trump) in the Administration.

Significantly, Manafort lawyer Richard Westling dismisses that anyone would value Manafort’s advice or support at a time when he was already under indictment.

he was already under indictment at this point and, you know, the idea that he was going to pass a message and it would have some value, frankly, no offense to Mr. Manafort, but I can’t see that.

It’s notable that Downing did not make that claim because — as recent reports make clear — Rudy continued to consult Manafort on these Ukraine issues even after he went to prison, through Downing.

Especially since, in all its representations about these ongoing communications, the government makes clear,

for the purposes of proving the falsity of Manafort’s assertions in this section, the government is not relying on communications that may have taken place, with Manafort’s consent, through his legal counsel. We previously so advised the defense.

It’s clear the government knew Manafort continued to communicate with Trump via Downing and Rudy; they just weren’t going to reveal that they had pierced privilege or what they had learned.

The Ukrainian grifters timeline

Now consider how the timelines of Manafort’s relentless pursuit of a “peace” deal, his witness tampering with Kilimnik, and his efforts to communicate with Trump overlap with the known timeline of the Ukrainian grifters (I’ll continue to update this). It suggests that Parnas and Fruman kicked in their influence operations just as Manafort’s legal problems made him unable to do so.

February 5-10, 2018: Manafort working on “a new Peace initiative”

February 19, 2018: Manafort email pertaining to “peace” plan

February 21, 2018: Manfort emails document pertaining to “peace” plan to undisclosed recipients

February 23, 2018: Mueller reveals Rick Gates’ plea deal

February 24-28, 2018: Kilimnik and Manafort attempt to script testimony of Hapsburg Group flacks

March 2, 2018: Pentagon issues final approval to send Javelin missiles to Ukraine

March 3, 2018: Fruman participates in high donor meeting at Mar-a-Lago

March 9, 2018: Manafort working on polling regarding Ukraine “peace” plan for potential client

March 26, 2018: Manafort working on Ukraine “peace” plan

April 4, 2018: Kilimnik again attempts to witness tamper with Hapsburg Group flacks

Early April, 2018: Reported halt to Ukraine’s cooperation with Mueller

April 11, 2018: Parnas and Fruman form Global Energy Producers

April 19, 2018: Trump “hires” “free” defense attorney Rudy Giuliani

April 29, 2018: Someone first solicits help creating a website for GEP

May 2, 2018: NYT reports that Ukraine has stopped cooperating with Mueller probe

May 4, 2018: Manafort sends unnamed person information on Ukraine plan

May 8, 2018: Parnas and Fruman meet with Trump and seven other people “about preparations for victory in the midterm elections;” Fruman raises “America’s support for Israel and Ukraine,” topics about which “Trump … was absolutely positive”

May 15, 2018: Real estate lawyer Russell Jacobs deposits $1.26 million pass through funds into Aaron Investments LLC

May 15, 2018: Manafort document lists “Targets” and reflects commitment on his part to reach out about them.

May 17, 2018: Parnas LLC Aaron Investments donates $325,000 to Trump PAC, America First Action in the name of GEP

May 21, 2018: Parnas has breakfast with Don Jr and Tommy Hicks Jr, head of America First

May 24, 2018: Someone again solicits help creating a website for GEP

June 8, 2018: Manafort charged with witness tampering; prosecutors move to revoke bail

June 21, 2018: GEP donates $50K to Ron DeSantis

September 14, 2018: Manafort enters into what would be a failed plea agreement, admitting he laundered money and influence on behalf of Ukrainian oligarchs, but entering into a five week process of learning what prosecutors know

Mid-to-late 2018: Rudy referred to Parnas and Fruman for work with “Fraud Guarantee”

Around November 2018: Rudy starts working for Parnas and Fruman

Late 2018: While Parnas and Rudy were eating together, “someone” approached Rudy and gave him information about Ukraine

January 8, 2019: Manafort lawyer’s redaction fail reveals that Manafort was asked about the Ukraine “peace” plan and that Manafort was lying about whether it got raised while working on the campaign and also that he was being asked about ongoing contacts with the Administration

Background

I have laid out the structure of Manafort’s lies in these posts:

The primary sources for them are these documents:

The President’s Joint Defense Agreement with the Russian Mob

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If we survive Trump and there are still things called museums around that display artifacts that present things called facts about historic events, I suspect John Dowd’s October 3 letter to the House Intelligence Committee will be displayed there, in all its Comic Sans glory.

In it, Dowd memorializes a conversation he had with HPSCI Investigation Counsel Nicholas Mitchell on September 30, before he was officially the lawyer for Lev Parnas and Igor Fruman, now placed in writing because he had since officially become their lawyer. He describes that there is no way he and his clients can comply with an October 7 document request and even if he could — this is the key part — much of it would be covered by some kind of privilege.

Be advised  that Messrs. Parnas and Fruman assisted Mr. Giuliani in connection with his representation of President Trump. Mr. Parnas and Mr. Fruman have also been represented by Mr. Giuliani in connection with their personal and business affairs. They also assisted Joseph DiGenova and Victoria Toensing in their law practice. Thus, certain information you seek in your September 30, 2019, letter is protected by the attorney-client, attorney work product and other privileges.

Once that letter was sent, under penalty of prosecution for false statements to Congress, it became fact: Parnas and Fruman do work for Rudy Giuliani in the service of the President of the United States covered by privilege, Rudy does work for them covered by privilege, and they also do work for Joseph Di Genova and Victoria Toensing about this matter that is covered by privilege.

Dowd might be forgiven if he immediately adopted the strategy that worked so well in guiding Trump through the Mueller investigation: just engage in a 37-person conspiracy to obstruct justice and name it a Joint Defense Agreement. Indeed, there are even similarities with current events. Then, John Dowd, Jay Sekulow, and Rudy Giuliani offered things of value to the others in the JDA — pardons — in exchange for their silence or even lies. Conspicuously, Toensing represented two people that — the Mueller Report seems to suggest — weren’t entirely candid in their testimony, Erik Prince (who managed to lose texts that explained why he was taking back channel meetings with Russians) and Sam Clovis (who sustained his lack of memory of being told that Russians were offering emails long enough for George Papadopoulos to change his mind on that front). Papadopoulos even managed to call Marc Kasowitz, when he still represented the President, to ask if he also wanted to represent a coffee boy with an inclination to lie to the FBI. The strategy all built to its successful crescendo when, instead of cooperating with prosecutors as he signed up to do, Paul Manafort instead figured out what they did and didn’t know, lied to keep them confused, and reported it all back through his own attorney, Kevin Downing, and Rudy to the President.

It was never really clear who was paying the lawyers (aside from the RNC paying Hope Hicks’ lawyers and some other key staffers). And as details of Manafort’s lies came out, it became clear there was some kind of kick-back system to keep the lawyers paid.

Still, Mueller never tied Manafort’s trading of campaign strategy for considerations on Ukraine and payment by Ukrainian and Russian oligarchs to the President. And so it may have seemed sensible for Dowd, in a bit of a pinch, to adopt the same strategy, with Rudy representing everyone, Dowd representing the Ukrainian grifters, and Kevin Downing even filling in in a pinch.

It all might have worked, too, if Parnas and Fruman hadn’t gotten arrested before they managed to flee the country, headed for what seems to have been a planned meeting a day later with their sometime attorney Rudy Giuliani in Vienna, just one day after a lunch meeting with him at Trump Hotel across the street from the Department of Justice that was busy inking an indictment against the Ukrainians even as they paid money to Trump Organization for their meal.

I mean, it still could work. Trump is still the President and DOJ, at least, will give some consideration to the attorney-client claims, so long as Rudy and Trump can maintain the illusion that Rudy is and was really doing legal work for the President.

But something that Dowd may not have considered, before he sent a letter to Congress laying out an incestuous nest of ethical atrocities, is that by the time he sent the letter, DiGenova and Toensing were on the record as representing Dmitry Firtash, a Ukrainian oligarch who was named in some of the early search warrants targeting Paul Manafort. And in March, Rudy Giuliani went on the record to explain that Firtash was, “one of the close associates of [Semion] Mogilevich, who is the head of Russian organized crime, who is Putin’s best friend.” Yesterday, Reuters closed the circle, making it clear that Parnas and Fruman work for Firtash, the former as a translator for DiGenova and Toensing’s representation of Firtash.

Firtash, by the way, is in Vienna, where Parnas and Fruman attempted to flee and where the President’s lawyer was planning to meet them a day later.

Thus, when Dowd wrote Congress, explaining that Rudy worked for both Trump and the Ukrainian grifters, and the Ukrainian grifters worked for DiGenova and Toensing, he was asserting that the President is a participant in an ethical thicket of legal representation with a mob-linked Ukrainian oligarch fighting extradition (for bribery) to the United States. And all of that, Dowd helpfully made clear, related to this Ukraine scandal (otherwise he could not have invoked privilege for it).

In other words, the President’s former lawyer asserted to Congress that the President and his current lawyer are in some kind of JDA from hell with the Russian mob, almost certainly along with the President’s former campaign manager, who apparently gets consulted (via Kevin Downing) on these matters in prison.

If that weren’t all overwhelming enough, there’s one more twist.

The reason Rudy was emphasizing the mob ties of his current partner in crime lawyering, Dmitry Firtash, back in March is because the President’s former former lawyer, Michael Cohen, shared a lawyer at the time with Firtash, Lanny Davis. Davis, the Democratic version of Paul Manafort, is every bit as sleazy as him (which should have been a huge red flag when Davis was parading Cohen around as a big hero). Curiously, at a time when Davis was also representing Firtash and Cohen was furiously trying to come up with some incriminating evidence he could tell prosecutors that might keep him out of jail, Cohen apparently didn’t mention Ukraine at all. Now, the lawyer that Cohen used to but no longer shares with Firtash claims he has some insight onto these Ukrainian dealings. That’s likely just a desperate effort to stay relevant. But who knows?

Until then, John Dowd’s desperate attempt to make this scandal go away the same way he made the Russia scandal go away (if you pretend they’re not actually all the same scandal and thus even the past JDA strategy may end up failing) at the same time involved admitting, in a letter to Congress, that his former client and his then current not-yet-but-soon-to-be-indicted clients are in a Joint Defense Agreement with the Russian mob.

Don’t take my word for it. Take John Dowd’s legal representation to Congress.

The Problem with Letting the Client-in-Chief Rewrite Impeachment Strategy Mid-Week

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Daily Beast confirms something I asserted in this post. Trump wrote the intemperate letter that White House Counsel Pat Cipollone signed his name to (with help from Rudy Giuliani, before Rudy started looking down the gun of indictment for conspiracy).

It was crafted, in large part, by President Donald Trump himself.

According to two people familiar with the process, White House Counsel Pat Cipollone had multiple meetings with President Trump in the days leading up to the issuance of the letter. During those meetings with Cipollone, the president would get especially animated when names such as Rep. Adam Schiff (D-CA), chair of the House Intelligence Committee leading the probe into the whistleblower complaint, came up. The sources said that Trump enthusiastically suggested adding various jabs at Democratic lawmakers and would request that their “unfair” treatment of him be incorporated into the letter.

The result was what Bob Bauer, who served as President Obama’s White House counsel, called a “remarkable” and “extraordinarily political document.”

Trump had also privately consulted on the letter with Rudy Giuliani, his notably pugnacious personal lawyer who is at the center of the Ukraine and Biden-related scandal engulfing the administration. Trump talked to Giuliani about how he and the White House should proceed in fighting back and challenging the legitimacy of the impeachment probe, one of the sources noted.

The problem with this (well, one problem) is precisely the one I noted in my post.

The tell — for those teams of well-compensated journalists treating this as a factual document — might have been the addressees. While the letter got sent to Adam Schiff, Eliot Engel, and Elijah Cummings, it did not get sent to Jerry Nadler, who has been pursuing an impeachment inquiry of sorts since the Mueller Report came out. The White House knows Nadler is also part of the impeachment inquiry, because even as the White House was finalizing the letter, Trump’s DOJ was in DC Chief Judge Beryl Howell’s courtroom fighting a House Judiciary request for materials for the impeachment inquiry.

While Trump had Cipollone address the letter to all the Democratic Chairs he was furious at, at that moment, he did not address it to Jerry Nadler, who also has been pursuing impeachment. There’s perhaps good reason why Cipollone didn’t send it to Nadler: because none of the claims made about the Adam Schiff-led Ukraine-related impeachment inquiry are true of the Nadler-led Russia and other corruption led impeachment inquiry, which has tried accommodation, has allowed lawyers to cite White House equities in interviews, and included public hearings.

Indeed, even as Trump was writing this letter and making Cipollone sign it, Trump’s DOJ was arguing an entirely different strategy before DC’s Chief Judge Beryl Howell, effectively arguing that because Nadler was being so accommodating, DOJ could not be forced to turn over grand jury testimony.

The result is a rather significant whiplash to DOJ’s legal strategy with HJC. On Tuesday, in an apparent effort to convince Judge Howell that DOJ was not obstructing HJC’s requests for FBI 302s, which don’t have the protections of the grand jury, they (apparently for the first time) suggested that HJC was going to get most of the 302s they were asking for, including the 302s for two of the guys defending against turning them over, DAAG James Burnham and AAG Jody Hunt, both of whose names are on these filings.

The Department currently anticipates making the remaining FBI-302’s available under the agreed upon terms as processing is completed, so long as they do not adversely impact ongoing investigations and cases and subject to redaction and potential withholding in order to protect Executive Branch confidentiality interests. These include, in alphabetical order (1) Stephen Bannon; (2) Dana Boente; (3) James Burnham; (4) James Comey; (5) Annie Donaldson; (6) John Eisenberg; (7) Michael Flynn; (8) Rick Gates; (9) Hope Hicks; (10) Jody Hunt; (11) Andrew McCabe; (12) Don McGahn; (13) Reince Priebus; (14) James Rybicki; (15) Jeff Sessions. In addition, the Committee requested the FBI-302 for the counsel to Michael Flynn, which also has not yet been processed.

Last night, however, they submitted filings that suggested that because Congress is pursuing impeachment their prior offer for accommodation may no longer be valid.

Finally, as explained in the Department’s filing of October 8, 2019, and its September 13, 2019 response to the Committee’s Application, in early June, the Department agreed to provide to the Committee access to certain FBI-302s in order to accommodate its oversight responsibilities following the Committee’s issuance of a subpoena in April and subsequent letter in May. As further noted in paragraph two of the Department’s Tuesday filing, that agreement includes confidentiality provisions that significantly limit the use and dissemination of information that the Committee accesses. The Department has consistently viewed this agreement as part of the accommodation process in connection with the Committee’s oversight activities. As the Court is aware, subsequent to the filing of this application regarding Rule 6(e) materials, the Speaker of the House stated publicly that, in her view, the House of Representatives has now commenced an impeachment inquiry (in addition to its regular oversight responsibilities). To the extent the Committee now believes future productions in this process are part of that impeachment inquiry, that implicates very different issues for the Executive Branch as a whole–as set forth by the White House in its letter of Tuesday, October 8, 2019, to the Speaker and Chairmen of three committees. The Department and the Committee have not yet discussed whether they may need to amend the current agreement to ensure appropriate handing by the Committee in order for the accommodation process to continue as anticipated. The Department will work diligently with the Committee to resolve this issue and to continue a productive accommodation process.

Effectively, on Tuesday morning DOJ argued that HJC was wrong, their request was not part of an impeachment inquiry, in part because it was so accommodating, so it couldn’t have any grand jury material. Two days later, however, DOJ is saying the very same cooperative process has become an impeachment inquiry that — in spite of Jerry Nadler being excluded from the recipients of Cipollone’s letter — DOJ now considers an impeachment inquiry, and so DOJ won’t comply because other parts of Congress are playing hardball.

Heads I win and you can’t have grand jury materials, tails you lose and you can’t have grand jury materials, is effectively the argument here.

That, and (as noted) DOJ is now claiming that US v Nixon is not binding precedent.

This is what happens when you let the Client-in-Chief do all the lawyering.