Sergey Kislyak, Guccifer 2.0, and Maria Butina Walk into an Election Precinct

The Senate Intelligence Committee released a highly redacted version of their election security report. Much of it focuses on coded descriptions cataloging what happened in different states and what has happened as some states try to prepare better for that kind of election interference in the future; this discussion will be far more useful once reporters have carried out the fairly trivial work of identifying which states are referred to in the discussions.

That discussion also reflects a great deal of underlying tension not at all reflected in some of the early stories on the report. State officials bitched, justifiably, at coverage that doesn’t distinguish between scans and hacks, which fosters the panic that Russia probably hoped to create.

Many state election officials emphasized their concern that press coverage of, and increased attention to, election security could create the very impression the Russians were seeking to foster, namely undermining voters’ confidence in election integrity. Several insisted that whenever any official speaks publicly on this issue, they should state clearly the difference between a “scan” and a “hack,” and a few even went as far as to suggest that U.S. officials stop talking about the issue altogether. One state official said, “Wc need to walk a fine line between being forthcoming to the public and protecting voter confidence.

But Ron Wyden raised concerns that all these state level assessments rely on the states’ own data collection, meaning reports that no vote tallies were changed are probably not as reliable as people claim.

DHS’s prepared testimony at that hearing included the statement that it is “likely that cyber manipulation of U.S. election systems intended to change the outcome of a national election would be detected.” The language of this assessment raises questions, however, about DHS’s ability to identify cyber manipulation that could have affected a very close national election, particularly given DHS’s acknowledgment of the “possibility that individual or isolated cyber intrusions into U.S. election infrastructure could go undetected, especially at local levels.”‘^ Moreover, DHS has acknowledged that its assessment with regard to the detection of outcome-changing cyber manipulation did not apply to state-wide or local elections.

(U) Assessments about manipulations of voter registration databases are equally hampered by the absence of data. As the Committee acknowledges, it “has limited information on the extent to which state and local election authorities carried out forensic evaluation of registration databases.”

That is, we don’t actually know what happened in 2016, because so few states were collecting that data, and it remains true that few states are auditing their elections.

Perhaps one of the most interesting details about 2016, however, involves the Russian government’s efforts to get permission to act as election observers, something that shows up two times in the report. It appears that Russia went first to State, and then to localities.

The Russian Embassy placed a formal request to observe the elections with the Department of State, but also reached outside diplomatic channels in an attempt to secure permission directly from state and local election officials. ” 37 In objecting to these tactics, then-Assistant Secretary of State for European and Eurasian Affairs Victoria Nuland reminded the Russian Ambassador that Russia had refused invitations to participate in the official OSCE mission that was to observe the U.S. elections.38

There’s another, heavily redacted discussion of this later in the report, but that unredacted discussion does say that Russia was seeking access to voting sites in September, and that no one ever figured out what Russia planned to do.

Department of State were aware that Russia was attempting to send election observers to polling places in 2016. The true intention of these efforts is unknown.

[snip]

The Russian Embassy placed a formal request lo observe the elections with the Department of State, but also reached outside diplomatic channels in an attempt to secure permission directly from state and local election officials.”‘ For example, in September 2016, the State 5 Secretary of State denied a request by the Russian Consul General to allow a Russian government official inside a polling station on Election Day to study the U.S. election process, according to State 5 officials.

But the footnotes make it clear that Ambassador Sergey Kislyak was bitching about the response all the way up to November 7.

That section immediately precedes a partly redacted discussion of a possible Russian effort to sow misinformation about voter fraud.

What the report does not say, in unredacted form, is how Kislyak’s formal efforts overlap with two other Russian efforts. First, there’s the discussion Maria Butina and Aleksandr Torshin had about whether she should serve as an election observer.

Following this October 5, 2016 Twitter conversation, BUTINA and [Aleksandr Torshin] discussed whether BUTINA should volunteer to serve as a U.S. election observer from Russia and agreed that the risk was too high. [Torshin] expressed the opinion that the “risk of provocation is too high and the ‘media hype’ which comes after it,” and BUTINA agreed by responding, “Only incognito! Right now everything has to be quiet and careful.”

Then there’s Guccifer 2.0’s announcement, at a time when Kislyak was bitching that Russia had been denied access to election sites, that he was going to serve as a (nonsensical) FEC election observer, watching the vulnerabilities in

SSCI doesn’t go there, but at a minimum, Guccifer 2.0’s disinformation paralleled an overt effort by the Russian state, one that Butina considered, but decided against, joining.

Of course, as I’ve noted before, it wasn’t just Russian entities volunteering to act as election observers so as to sow chaos. Where Russia threatened to do so, Roger Stone succeeded.

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

The Republicans Complaining about Mueller’s Non-Exoneration of Trump Don’t Care that He Exonerated Jeff Sessions

One of the new attacks Republicans launched on the Mueller Report yesterday is that Mueller explicitly did not exonerate Trump, complaining that prosecutorial discretion doesn’t include the power to exonerate. Here’s how John Ratcliffe put it yesterday.

The special counsel’s job — nowhere does it say that you were to conclusively determine Donald Trump’s innocence, or that the special counsel report should determine whether or not to exonerate him. It not in any of the documents. It’s not in your appointment order. It’s not in the special counsel regulations. It’s not in the OLC opinions. It’s not in the Justice Manual. And it’s not in the Principles of Federal Prosecution.

Nowhere do those words appear together because, respectfully — respectfully, Director, it was not the special counsel’s job to conclusively determine Donald Trump’s innocence or to exonerate him. Because the bedrock principle of our justice system is a presumption of innocence. It exists for everyone. Everyone is entitled to it, including sitting presidents. And because there is a presumption of innocence, prosecutors never, ever need to conclusively determine it.

Except that Ratcliffe and other Republicans didn’t complain and aren’t complaining about the point in his report, as released, where he did exonerate someone, with Bill Barr’s approval: Jeff Sessions.

As set forth in Volume I, Section IV.A.6, supra, the investigation established that, while a U.S. Senator and a Trump Campaign advisor, former Attorney General Jeff Sessions interacted with Russian Ambassador Kislyak during the week of the Republican National Convention in July 2016 and again at a meeting in Sessions’ s Senate office in September 2016. The investigation also established that Sessions and Kislyak both attended a reception held before candidate Trump’s foreign policy speech at the Mayflower Hotel in Washington, D.C., in April 2016, and that it is possible that they met briefly at that reception.

The Office considered whether, in light of these interactions, Sessions committed perjury before, or made false statements to, Congress in connection with his confirmation as Attorney General. In January 2017 testimony during his confirmation hearing, Sessions stated in response to a question about Trump Campaign communications with the Russian government that he had “been called a surrogate at a time or two in that campaign and I didn’t have – did not have communications with the Russians.” In written responses submitted on January 17, 2017, Sessions answered “[n]o” to a question asking whether he had “been in contact with anyone connected to any part of the Russian government about the 2016 election, either before or after election day.” And, in a March 2017 supplement to his testimony, Sessions identified two of the campaign-period contacts with Ambassador Kislyak noted above, which had been reported in the media following the January 2017 confirmation hearing. Sessions stated in the supplemental response that he did “not recall any discussions with the Russian Ambassador, or any other representatives of the Russian government, regarding the political campaign on these occasions or any other occasion.”

Although the investigation established that Sessions interacted with Kislyak on the occasions described above and that Kislyak mentioned the presidential campaign on at least one occasion, the evidence is not sufficient to prove that Sessions gave knowingly false answers to Russia-related questions in light of the wording and context of those questions. With respect to Sessions’s statements that he did “not recall any discussions with the Russian Ambassador . .. regarding the political campaign” and he had not been in contact with any Russian official “about the 2016 election,” the evidence concerning the nature of Sessions’s interactions with Kislyak makes it plausible that Sessions did not recall discussing the campaign with Kislyak at the time of his statements. Similarly, while Sessions stated in his January 2017 oral testimony that he “did not have communications with Russians,” he did so in response to a question that had linked such not have communications with Russians,” he did so in response to a question that had linked such communications to an alleged “continuing exchange of information” between the Trump Campaign and Russian government intermediaries. Sessions later explained to the Senate and to the Office that he understood the question as narrowly calling for disclosure of interactions with Russians that involved the exchange of campaign information, as distinguished from more routine contacts with Russian nationals. Given the context in which the question was asked, that understanding is plausible.

Accordingly, the Office concluded that the evidence was insufficient to prove that Sessions was willfully untruthful in his answers and thus insufficient to obtain or sustain a conviction for perjury or false statements. Consistent with the Principles of Federal Prosecution, the Office therefore determined not to pursue charges against Sessions and informed his counsel of that decision in March 2018.

In fact, Mueller must have provided similar explanations in at least four more instances, where he explained why other Trump people didn’t get charged, most often for lying.

But all of those other discussions were redacted under a personal privacy exemption (or, in the FOIA version, a b(5), b(6)/b(7)(C) exemption). Presumably, those other instances were less clearcut, or perhaps they simply weren’t someone as senior as Sessions. But redactions consistently applied would have redacted this passage too, denying Sessions (who would be running for his old Senate seat this year if Trump weren’t still angry that Sessions didn’t act more like Bill Barr while serving as Attorney General) of the public explanation why he wasn’t charged.

Nothing Mueller said yesterday indicated he had any complaints about the redactions in the report (though he was more willing to talk about why Trump Sr. didn’t testify — the discussion of which is partly redacted in the report — than Don Jr, which is redacted under the same grand jury justification).

But in the case of Jeff Sessions, the redaction process was not treated in the way applied with everyone else, especially including mentions of Don Jr. And Republican silence about that inconsistency suggests they don’t really have a principled stance about public decisions of exoneration.

Failing to Damage Mueller, GOP Now Claiming Mueller Not Sufficiently Vigorous to Oversee Trump Investigation

Robert Mueller just finished the first of two hearings today.

At times he appeared like those of us who have covered him for years expected, feisty and sharp. Between his responses to Jerry Nadler and Ted Lieu, he made it clear he would have indicted if not for the OLC opinion prohibiting the indictment of a sitting president, even while he refused to say the word impeachment. He repeatedly said that a failure to succeed at obstructing justice is still a crime. He stated that the decision not to reach a prosecutorial decision arose because this investigation is unlike any other, in that Trump couldn’t be prosecuted. He stated that Trump could be charged after he left office.

He defended the integrity of his team and the fairness of his report. He backed his March 27 letter that complained about Attorney General Bill Barr’s misrepresentation of the report.

In short, Mueller made it clear that he believes Trump obstructed justice and Bill Barr lied to obscure that fact.

But at times, he seemed lost. He forgot that Ronald Reagan appointed him US Attorney, often searched to see who was asking questions, and forgot key details. It didn’t help, either, that he refused to read from the report (though that was a pre-arranged refusal to create soundbites at the behest of Democrats).

Having not damaged Mueller, then, the Republicans are already out suggesting that the Robert Mueller that appeared out of it today could not have been fully in charge of the investigation into Donald Trump.

Mueller’s performance raised questions that reached far beyond one appearance before one committee. It called into doubt the degree to which Mueller was in charge of the entire special counsel investigation.

“You wonder how much of this was affecting the investigation,” one Republican member of the House said as he watched Mueller’s testimony. “It sheds a lot of light on what happened the last two years. He wasn’t in charge.”

If Mueller was not fully in charge, that would direct attention to the staff he assembled for the investigation — staff that President Trump has often derided as “17 angry Democrats.” Some of Mueller’s aides were Democratic donors, and a key aide, Andrew Weissmann, famously attended Hillary Clinton’s 2016 election night event that was planned as a victory party. It seems likely that Republicans will direct new attention to them in light of Mueller’s appearance.

Except that representation misstates something that was litigated, all the way to the Supreme Court, in this case. Robert Mueller wasn’t in charge of this investigation. His supervisor — whether it be Rod Rosenstein, Matt Big Dick Toilet Salesman Whitaker, or Bill Barr — was ultimately in charge of the investigation.

And if it is true that Robert Mueller wasn’t all there when he was leading this investigation, it was up to his supervisor to do something about it.

Indeed, if you look at some of the big questions about Mueller’s prosecutorial decisions — most notably, not to demand an interview with the President, but also the decision to stop the investigation before even getting the Andrew Miller testimony or Mystery Appellant evidence  — you might wonder whether someone feistier would have fought for that testimony.

Republicans are, minutes after the conclusion of that hearing, complaining that Robert Mueller wasn’t forceful enough in his testimony. If that’s the question they want to raise, then they should also worry about whether Bill Barr, especially, manipulated Mueller.

Robert Mueller Asked To Be Instructed To Hew To the Report

Since DOJ’s letter to Robert Mueller got released last night, many on the left have fumed that this is part of a nefarious effort by Bill Barr to silence Mueller.

And while I don’t doubt that Barr will do anything he can to limit the damage of Mueller’s testimony to his client, Donald Trump (indeed, there were reports that he met with HJC Ranking Member Doug Collins yesterday), this letter was orchestrated by Mueller, not Barr.

As the letter notes, Mueller wrote to DOJ on July 10. By that point, it was already crystal clear what kind of guidance DOJ would offer if asked. So he had to have known he’d get the letter he did. And yet he asked for instructions, when nothing obligated him to do so.

Moreover, this letter was released by his spox, not by DOJ. Effectively, then, this is Mueller setting — re-setting, repeating what he said in his press conference on May 29 — expectations. That doesn’t mean people can’t ask Mueller questions beyond his report (I would argue that matters about the release of the report are not covered in DOJ’s letter). But he now has the ability to blame DOJ for not answering.

That said, it’s likely that this actually limits GOP plans for the hearing more than Democrats. That’s true, in part, because Democrats have already been planning really milquetoast questions, assuming that having Mueller read directly from his report will be sufficient to generate new outrage over Trump’s actions. But it’s also true because most of the things Republicans want to emphasize — the role of Peter Strzok and Lisa Page, the Steele dossier, the FBI’s use of informants, Carter Page’s FISA application — are mostly outside the scope of the report. About half the questions Chuck Ross suggested, for example, would be outside the scope of the report (while I situated my questions more closely in existing public documents, probably half of mine would be deemed to go beyond the report as well).

If the Republicans want to talk about the Steele dossier, Mueller will guide them to either Jim Comey’s briefing about the dossier on January 6, 2017, or the pee tape — the only allegation in the dossier that made the unredacted parts of the report. And if Republicans choose that option, it’ll mean Mueller will explain over and over that Trump’s fixer, Michael Cohen, was taking steps to chase down the pee tape well before the dossier was made public. (Hope Hicks was also trying to chase down the pee tape, but that didn’t make the report.) It’s not going to help Trump’s case to show that his campaign took the pee tape seriously, along with all the other sex scandals that threatened to erupt right before the election in 2016.

Likewise, if Republicans want to talk about “FISA abuse,” the former FBI Director will either direct them to the three places in the report where Trump included Jeff Sessions’ inaction on FISA among the reasons he wanted to fire him to thwart the investigation, or (more likely) he’ll point to the standard to obtain a FISA warrant.

On four occasions, the Foreign Intelligence Surveillance Court (FISC) issued warrants based on a finding of probable cause to believe that Page was an agent of a foreign power. 50 U.S.C. §§ 1801 (b ), 1805(a)(2)(A). The FISC’s probable-cause finding was based on a different (and lower) standard than the one governing the Office’s decision whether to bring charges against Page, which is whether admissible evidence would likely be sufficient to prove beyond a reasonable doubt that Page acted as an agent of the Russian Federation during the period at issue. Cf United States v. Cardoza, 713 F.3d 656, 660 (D.C. Cir. 2013) ( explaining that probable cause requires only “a fair probability,” and not “certainty, or proof beyond a reasonable doubt, or proof by a preponderance of the evidence”).

And he can then point to all the details in the report, such as Page’s willingness to share non-public information with known Russian intelligence officers, and his claims that he represented the interests of Donald Trump in December 2016, including on negotiating a Ukraine deal.

I’m not happy that Mueller is walking into this hearing setting expectations as low as he can. Though I was sympathetic to his offer to testify in closed session, as I’m fairly certain Congress would get more useful answers with less conspiracy theorizing.

But it’s worth noting that these instructions will serve as a tool to shut down Republican grandstanding even more than it will shut down Democrats.

Congress Already Has Evidence Trump Lied Under Oath to Robert Mueller

I laid out what follows in this post, but given that the NYT’s weak questions for Robert Mueller exhibit ignorance on this point, I’m going to make this more explicit.

In a useless question designed to get Mueller to characterize Trump’s answers to the Special Counsel’s questions, the NYT asked whether the responses were “candid.”

In general, virtually all of Trump’s answers not only lacked candor, they were downright obnoxious. But on the topic of the Trump Tower Moscow project, Trump’s answers are not just insolent, they are lies.

One paragraph of his answers about it — submitted after Michael Cohen started cooperating but before Cohen’s plea deal regarding his lies to Congress — reads, [I’ve numbered the claims as reference points for the discussion that follows.]

I had [1] few conversations with Mr. Cohen on this subject. As I recall, they were brief, and [5] they were not memorable. I was not enthused about the proposal, and [2] I do not recall any discussion of travel to Russia in connection with it. I do not remember discussing it with anyone else at the Trump Organization, although it is possible. I do not recall being aware at the time of any communications between Mr. Cohen or Felix Sater and [3] any Russian government official regarding the Letter of Intent. In the course of preparing to respond to your questions, I have become aware that [4] Mr. Cohen sent an email regarding the Letter of Intent to “Mr. Peskov” at a general, public email account, which should show there was no meaningful relationship with people in power in Russia. I understand those documents already have been provided to you.

In that answer, Trump replicates three claims that match Michael Cohen’s statement to Congress but that Cohen swore under oath were lies in his plea agreement:

  1. The Moscow Project ended in January 2016 and was not discussed extensively with others in the Company. … To the best of my knowledge , [Individual l] was never in contact with anyone about this proposal other than me on three occasions.
  2. COHEN never agreed to travel to Russia in connection with the Moscow Project and “never considered” asking Individual 1 to travel for the project.
  3. COHEN did not recall any Russian government response or contact about the Moscow Project.

Cohen’s statement claimed he discussed this just three times with Trump; Trump claimed he only had a “few” such conversations rather than the ten Cohen would later admit to. Cohen’s statement claimed no one ever discussed traveling to Russia; Trump claimed not to recall any discussion of travel to Russia, even though he told Cohen to consult with Corey Lewandowski about when he could take such a trip. Cohen’s statement disclaimed any Russian government response to the Letter of Intent; Trump claimed the only contact with the Russian government was an unanswered letter to Peskov’s public line, rather than the email response from Elena Poliakova that led to a 20 minute conversation that Cohen described to Trump immediately after it finished.

In all three of those statements, then, Trump hewed to the false statement Jay Sekulow helped Cohen write.

That said, Trump made assertions about those three topics in such a way as to claim he didn’t remember the things Cohen remembered in his proffer sessions with Mueller. So as far as those answers go, Trump is covered legally, even if it is more clear these are lies than some of his other non-responsive answers.

Not so Trump’s claim that Cohen’s only contact with Dmitry Peskov was via “a general, public email account” [marked 4, above]. Mueller obtained the January 20, 2016 email response from Peskov’s assistant, Elena Poliakova, asking Cohen to call her. By itself, that email is proof there was a response from the Russian government (though not an obvious one; she wrote it from her personal email account).

Per Cohen’s congressional testimony, the email formed part of the Mueller interviews with Cohen.

O Do you have a copy of this January 20th, 2016, email from Elena Poliyakova (ph)?

A I do not.

Q When was the last time you saw a copy of this email?

A Again, at one of the hearings that I attended.

Q With the special counsel’s office?

A I believe so, yes.

This email is one of the reasons I’m so interested in the fact that Mueller obtained Cohen’s Trump Organization emails from Microsoft, and only subpoenaed Trump Organization the following year for such things: because Mueller obtained this email, Congress (apparently) did not receive it in response to a subpoena, and Trump’s lawyers continued to deny the existence of it in November 2018. That suggests Trump’s lawyers continued to hide the existence of this email, even in preparing the President’s lawyers to write answers to Mueller’s questions.

(Note: given Don Jr’s reluctance to testify to Mueller but his willingness to testify to Congress, it’s possible there are damning emails involving him obtained from Microsoft that Trump Organization withheld from Congress, as well.)

Still, thus far, Trump could blame his faulty memory and his lawyers for the inaccuracies of his sworn answers to Mueller.

Not so after his public statements in the wake of Cohen’s plea, as Mueller laid out in his report, pointing to the same paragraph I’ve analyzed above.

On November 20, 2018, the President submitted written responses that did not answer those questions about Trump Tower Moscow directly and did not provide any information about the timing of the candidate’s discussions with Cohen about the project or whether he participated in any discussions about the project being abandoned or no longer pursued. 1049 Instead, the President’s answers stated in relevant part:

I had few conversations with Mr. Cohen on this subject. As I recall; they were brief, and they were not memorable. I was not enthused about the proposal, and I do not recall any discussion of travel to Russia in connection with it. I do not remember discussing it with anyone else at the Trump Organization, although it is possible. I do not recall being aware at the time of any communications between Mr. Cohen and Felix Sater and any Russian government official regarding the Letter of Intent. 1050

On November 29, 2018, Cohen pleaded guilty to making false statements to Congress based on his statements about the Trump Tower Moscow project. 1051 In a plea agreement with this Office, Cohen agreed to “provide truthful information regarding any and all matters as to which this Office deems relevant.”1052 Later on November 29, after Cohen’s guilty plea had become public, the President spoke to reporters about the Trump Tower Moscow project, saying:

I decided not to do the project. . . . I decided ultimately not to do it. There would have been nothing wrong if I did do it. If I did do it, there would have been nothing wrong. That was my business …. It was an option that I decided not to do …. I decided not to do it. The primary reason . . . I was focused on running for President. . . . I was running my business while I was campaigning. There was a good chance that I wouldn’t have won, in which case I would’ve gone back into the business. And why should I lose lots of opportunities? 1053 [my empahsis]

[snip]

In light of the President’s public statements following Cohen’s guilty plea that he “decided not to do the project,” this Office again sought information from the President about whether he participated in any discussions about the project being abandoned or no longer pursued, including when he “decided not to do the project,” who he spoke to about that decision, and what motivated the decision. 1057 The Office also again asked for the timing of the President’s discussions with Cohen about Trump Tower Moscow and asked him to specify “what period of the campaign” he was involved in discussions concerning the project. 1058 In response, the President’s personal counsel declined to provide additional information from the President and stated that “the President has fully answered the questions at issue.” 1059

1053 President Trump Departure Remarks, C-SPAN (Nov. 29, 2018). In contrast to the President’s remarks following Cohen’s guilty plea, Cohen’s August 28, 2017 statement to Congress stated that Cohen, not the President, “decided to abandon the proposal” in late January 2016; that Cohen “did not ask or brief Mr. Trump … before I made the decision to terminate further work on the proposal”; and that the decision · to abandon the proposal was “unrelated” to the Campaign. P-SCO-000009477 (Statement of Michael D. Cohen, Esq. (Aug. 28, 2017)).

1057 1/23/19 Letter, Special Counsel’s Office to President’s Personal Counsel.

1058 1/23/ 19 Letter, Special Counsel’s Office to President’s Personal Counsel.

1059 2/6/ l 9 Letter, President’s Personal Counsel to Special Counsel’s Office.

As Mueller pointed out in footnote 1053, Trump’s comments to the press conflict in significant ways with Cohen’s statement to Congress, in that they show the project continued past January and that the decision to end it related to the campaign.

Unstated here — but almost certainly the reason why Mueller went back to Trump after these comments (and Rudy Giuliani’s comments admitting the deal continued all the way to the election) — is that by stating that “I decided” even while justifying continuing to pursue the deal during the campaign because, “why should I lose lots of opportunities,” Trump is admitting that he recalls the discussions about the deal and was enthusiastic about it [marked with 5 above].

Trump’s sworn answer to Mueller is that these conversations were not memorable and he was not enthused about the project. But even after submitting those sworn statements, Trump went on TV and described remembering precisely what happened and decribed the deal as an opportunity he didn’t want to lose.

Effectively, those statements amounted to Trump going on TV and admitting he lied under oath to Mueller.

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

Updated Questions for Robert Mueller

As I pointed out in this post, lots of commentators mistakenly believe Robert Mueller will never provide damning answers to strictly factual questions. In 2007, he answered a Sheila Jackson Lee question about the most incendiary issue of the day — Stellar Wind — in a way that shows the Attorney General had lied under oath. Yet most proposed questions for Mueller’s testimony on Wednesday seem to assume he won’t similarly answer appropriately framed questions now, and are for the most part milquetoast or horserace issues.

Here are my (updated since I first posted them in June) questions for Mueller. Some are formulated to get him to answer questions about scope or results he otherwise might not (note that there’s a gag now in both the IRA and Roger Stone cases, which will sharply curtail what he can say about those cases). Some are process questions that would help the public understand what Mueller did and did not do. A few are about potential legislation that might arise out of this investigation.

  1. Can you describe how you chose which “links between the Russian government and individuals associated with the campaign of President Donald Trump” to focus your investigation on?
  2. The warrants released in Michael Cohen’s case and other public materials show that your grand jury conducted investigations of people before Rod Rosenstein formally expanded the scope to include them in October 2017. Can you explain the relationship between investigative steps and the Rosenstein scope memos?
  3. Lisa Page has explained that in its initial phase, the investigation into Trump’s aides was separate from the larger investigation(s) into Russian interference. But ultimately, your office indicted Russians in both the trolling and the hack-and-leak conspiracies. How and when did those parts of DOJ’s investigation get integrated under SCO?
  4. An FD-302 memorializing a July 19, 2017 interview with Peter Strzok was released as part of Mike Flynn’s sentencing. Can you describe what the purpose of this interview was? How did the disclosure of Strzok’s texts with Lisa Page affect the recording (or perceived credibility) of this interview? Strzok was interviewed before that disclosure, but the 302 was not finalized until he had been removed from your team. Did his removal cause any delay in finalizing this 302?
  5. At the beginning of the investigation, your team investigated the criminal conduct of subjects unrelated to ties with Russia (for example, Paul Manafort’s ties with Ukraine, Mike Flynn’s ties to Turkey, Michael Cohen’s false statements to banks). Did the approach of the investigation change later in the process — in 2018 — to refer such issues to other offices (for example, the Cohen financial crimes)? If the approach changed, did your team or Rod Rosenstein drive this change?
  6. Prosecutors pursuing documents from an unnamed foreign owned company described that the investigation started at the DC US Attorney’s Office, was integrated into your investigation, and continued after your investigation concluded. Is this foreign owned company owned by a country other than Russia?
  7. Did your integration of other prosecutors (generally from DC USAO) into your prosecution teams stem from a resourcing issue or a desire to ensure continuity? What was the role of the three prosecutors who were just detailees to your team?
  8. Your report describes how FBI personnel shared foreign intelligence and counterintelligence information with the rest of FBI. For more than a year, FBI agents were embedded with your team for this purpose. Were these agents focused just on Russian activities, or did their focus include the actions of other countries and Americans? If their focus included Americans, did it include Trump associates? Did it include Trump himself?
  9. Can you describe the relationship between your GRU indictment and the WDPA one focused on the WADA hacks, and the relationship between your IRA indictment and the complaint against a Yevgeniy Prigozhin employee in EDVA? Can you describe the relationship between the Maria Butina prosecution and your investigation?
  10. Do you regret charging Concord Management in the IRA indictment? Do you have any insight on how indictments against Russian and other state targets should best be used?
  11. Particularly given difficulties in the Bijan Kian case, do you believe the laws on 18 USC 951 unregistered foreign agents and FARA need to be changed to provide the government with tools to protect the country from influence operations?
  12. In discussions of Paul Manafort’s plea deal that took place as part of his breach hearing, Andrew Weissmann revealed that prosecutors didn’t vet his testimony as they would other cooperators. What led to this lack of vetting? Did the timing of the election and the potential impact of Manafort’s DC trial might have play into the decision?
  13. What communication did you receive from whom in response to the BuzzFeed story on Trump’s role in Michael Cohen’s false testimony? How big an impact did that communication have on the decision to issue a correction?
  14. Did Matt Whitaker prevent you from describing Donald Trump specifically in Roger Stone’s indictment? Did you receive any feedback — from Whitaker or anyone else — for including a description of Trump in the Michael Cohen plea?
  15. Did Whitaker, Bill Barr, or Rosenstein weigh in on whether Trump should or could be subpoenaed? If so what did they say? Did any of the three impose time constraints that would have prevented you from subpoenaing the President?
  16. Multiple public reports describe Trump allies (possibly including Mike Flynn or his son) expressing certainty that Barr would shut down your investigation once he was confirmed. Did this happen? Can you describe what happened at the March 5, 2019 meeting where Barr was first briefed? Was that meeting really the first time you informed Rosenstein you would not make a determination on obstruction?
  17. You “ended” your investigation on March 22, at a time when at least two subpoena fights (Andrew Miller and a foreign owned corporation) were ongoing. You finally resigned just minutes before Andrew Miller agreed to cooperate on May 29. Were these subpoenas for information critical to your investigation?
  18. If Don Jr told you he would invoke the Fifth if subpoenaed by the grand jury, would that fact be protected by grand jury secrecy? Are you aware of evidence you received involving the President’s son that would lead him to be less willing to testify to your prosecutors than to congressional committees? Can congressional committees obtain that information?
  19. How many witnesses invoked their Fifth Amendment rights that your office deemed “were not … appropriate candidates for grants of immunity”?
  20. Your report describes five witnesses who testified under proffer agreements: Felix Sater, George Nader, Steve Bannon, Erik Prince, and Jerome Corsi. Aside from the Nader child pornography referred to EDVA by your office, would other US Attorneys offices be able to independently pursue criminal conduct covered by these proffers?
  21. Emin Agalarov canceled a concert tour to avoid subpoena in your investigation. Can you explain efforts to obtain testimony from this key player in the June 9 meeting? What other people did you try to obtain testimony from regarding the June 9 meeting?
  22. Did your investigation consider policy actions taken while Trump was President, such as Trump’s efforts to overturn Russian sanctions or his half-hearted efforts to comply with Congressional mandates to impose new ones?
  23. Can you describe how you treated actions authorized by Article II authority — such as the conduct of foreign policy, including sanctions, and the awarding of pardons — in your considerations of any criminal actions by the President?
  24. The President did not answer any questions about sanctions, even the one regarding discussions during the period of the election. Do you have unanswered questions about the role of sanctions relief and the Russian interference effort?
  25. Your report doesn’t include several of the most alarming interactions between Trump and Russia. It mentions how he told Sergey Lavrov and Sergey Kislyak he had fired Comey because of the Russian investigation, but did not mention that he shared classified Israeli intelligence at the meeting. Your report doesn’t mention the conversations Trump had with Vladimir Putin at the G-20 in Hamburg, including one pertaining to “adoptions,” while he was working on the June 9 meeting. The report doesn’t mention the Helsinki meeting. Did your investigation consider these interactions with Russia? If not, are you aware of another part of the government that did scrutinize these events?
  26. Why did you include Trump’s efforts to mislead the public about the June 9 meeting when it didn’t fit your team’s own terms for obstructive acts?
  27. You generally do not name the Trump lawyers who had discussions, including about pardons, with subjects of the investigation. How many different lawyers are described in your report to have had such discussions?
  28. In your report you say your office “limited its pursuit” of witnesses including attorneys “in light of internal Department of Justice policies,” citing the Justice manual. How many potential witnesses did your office not interview because of DOJ guidelines on interviewing attorneys?
  29. You asked — but the President provided only a partial answer — whether he had considered issuing a pardon for Julian Assange prior to the inauguration. Did you investigate the public efforts — including by Roger Stone — to pardon Assange during Trump’s Administration?
  30. The cooperation addendum in Mike Flynn’s case reveals that he participated in discussions about reaching out to WikiLeaks in the wake of the October 7 Podesta releases. But that does not appear in the unredacted parts of your report. Is the entire scope of the campaign’s interactions with WikiLeaks covered in the Roger Stone indictment?
  31. Hope Hicks has claimed to be unaware of a strategy to coordinate the WikiLeaks releases, yet even the unredacted parts of the report make it clear there was a concerted effort to optimize the releases. Is this a difference in vocabulary? Does it reflect unreliability on the part of Hicks’ testimony? Or did discussions of WikiLeaks remain partially segregated from the communications staff of the campaign?
  32. Without naming any of the people involved, how many witnesses confirmed knowing of conversations between Roger Stone and Donald Trump about WikiLeaks’ upcoming releases?
  33. Did Julian Assange ask for immunity to cooperate with your investigation, as he did with congressional inquiries?
  34. In your report you say your office “limited its pursuit” of witnesses who might claim to be media “in light of internal Department of Justice policies,” citing the Justice manual. How many potential witnesses did your office not interview because of DOJ guidelines on media? Was Julian Assange among them?
  35. The President’s answers regarding the Trump Tower Moscow match the false story for which Michael Cohen pled guilty, meaning the President, in his sworn answers, provided responses you have determined was a false story. After Cohen pled guilty, the President and his lawyer made public claims that are wholly inconsistent with his sworn written answer to you. You offered him an opportunity to clean up his sworn answer, but he did not. Do you consider the President’s current answer on this topic to be a lie?
  36. Did Trump Organization provide all the emails pertaining to the Trump Tower Moscow deal before you subpoenaed the organization in early 2018? Did they provide those emails in response to that subpoena?
  37. In his answers to your questions, President Trump claimed that you received “an email from a Sergei Prikhodko, who identified himself as Deputy Prime Minister of the Russian Federation … inviting me to participate in the St. Petersburg International Economic Forum.” But the footnotes to your discussion of that exchange describe no email. Did your team receive any email? Does the public record — showing that Trump never signed the declination letter to that investigation — show that Trump did not decline that invitation?
  38. The Attorney General has excused the President’s actions taken to thwart the investigation because, “as the Special Counsel’s report acknowledges, there is substantial evidence to show that the President was frustrated and angered by a sincere belief that the investigation was undermining his presidency.” What events did your investigation show the President was frustrated or angry about? Was the President frustrated or angry that Mike Flynn’s conversations with Sergey Kislyak had been discovered as part of an effort to understand Russia’s actions? According to your investigation, what were the President’s feelings towards Flynn at the time? Was the President frustrated or angry that, after consulting with ethics professionals,  Jeff Sessions recused from the investigation? Was the President frustrated or angry that Jim Comey would not provide details of the ongoing investigation into his aides, which would be prohibited by Department of Justice guidelines? Was the President frustrated or angry that the investigation into Russian interference showed that Russia actively sought to help him get elected?
  39. Organizationally your team separated the efforts to obstruct the investigation of Mike Flynn, Michael Cohen, Paul Manafort and others (which appears in Volume I) from the obstruction of the investigation of the President (which appears in Volume II). Why?
  40. In his aborted sentencing hearing, Brandon Van Grack told Judge Sullivan that Mike Flynn could have been charged as an Agent of a Foreign Power under 18 USC 951. More recently, prosecutors in Bijan Kian’s case have treated him as part of a conspiracy to violate that statute. Why did you give Mike Flynn such a lenient plea deal?

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

The Curious Treatment of Michael Cohen’s Trump Organization Email

As close readers know, I’ve been fascinated by DOJ’s treatment of Michael Cohen’s Trump Organization email for some time. That’s true for several reasons.

First, one of the earliest warrants targeting Cohen revealed that Microsoft hosts (or hosted) Trump Organization emails. When the FBI first started putting together an investigation into Cohen for suspicious activity surrounding his Essential Consulting bank account, they first sent preservation orders to Microsoft, then obtained his emails directly from the tech company. Effectively, Cohen (and any other Trump Organization employees the FBI targeted after that, probably including Don Jr) got stung by a practice Microsoft had long been complaining about, that when the government came to it, rather than to Microsoft’s enterprise customers (like universities and businesses), Microsoft could not provide those customers notice, which might provide them an opportunity to challenge an order or protect privileged material.

That’s particularly interesting given the indications that the Trump Organization, which decided what documents to turn over to Congress in response to a subpoena served on Cohen, did not turn over emails that would have proven as false story that Cohen told about his interactions regarding the Trump Tower Moscow story.

Q Now, in your February 28th interview before this committee you mentioned that Alan Futerfas and Alan Garten, the two lawyers who were tied to The Trump Organization, were responsible for the document production that you produced to the committee in response to this committee’s May of 2017 subpoena. ls that accurate?

A That’s accurate.

[snip]

Q Do you have any information about why The Trump Organization would have withheld from this committee production of the January 141h, 2016, email from you to Peskov’s office?

A I do not.

Q Same question as to the January 16th, 2016, email from you to Peskov’s office regarding Sergei lvanov?

A I also do not.

Q Same question with regards to the January 20th,2016, email from Elena Poliyakova (ph)?

A I do not

THE CHAIRMAN: Mr. Cohen, what Mr. Mitchell is asking about is you’ve testified that the members of the joint defense agreement were aware that the written testimony that you were going to give to this committee was false. Documents that would have contradicted that timeline, namely, the three that Mr. Mitchell just referenced, were not produced to this committee. ls there any insight you can shed as to who might have been involved in withholding documentary evidence that would have contradicted your written false testimony?

MR. COHEN: Again, it would be other members of the joint defense team, but specifically at The Trump Organization level.

Cohen told HPSCI that he was reminded of these emails when Mueller showed them to him. In other words, Mueller obtained them, but (if HPSCI is correct on this point) Congress did not, even though the emails were solidly within the scope of a subpoena served on Cohen. That Mueller obtained the emails from Microsoft is one likely explanation for how he got them but HPSCI did not (though he had also subpoenaed Trump Organization in March 2018 before Cohen started cooperating in September of that year and a year before Cohen’s third appearance before HPSCI).

That’s why I’m interested in this footnote in the warrant to search Cohen’s properties in April 2018.

According to an article in the Washington Post, which quoted emails sent from Cohen’s email account hosted by the Trump Organization, on October 17, 2016, Davidson emailed Cohen and threatened to cancel the aforementioned “settlement agreement” by the end of the day if Cohen did not complete the transaction.29 According to the article, Davidson sent Cohen a second email later in the day that stated in part, “Please be advised that my client deems her settlement agreement canceled and void.”

29 Due to the partially covert nature of the investigation to this date, the USAO has not requested documents from the Trump Organization or Davidson, and thus does not possess the email referenced in this article.

There’s no reason to believe the “USAO” (meaning SDNY’s US Attorney’s office) had the email. But the government — Mueller’s team — probably did, from the search warrant served on Microsoft on August 1, 2017. But the public record doesn’t show that Mueller handed it over to SDNY when they handed off the bank investigations February 2018, or even after that time.

On February 28, 2018, SDNY obtained a warrant for the Gmail and 1&1 content Mueller had obtained in 2017 and handed over to SDNY on a USB drive to SDNY on February 8, 2018. But — in spite of the fact that the original Mueller Gmail warrant and the Trump Org warrant discussed (¶¶13-19) Cohen’s payment to Stormy Daniels — the February 28 warrant covered just Cohen’s financial fraud. It wasn’t until April 7, 2018 that SDNY obtained a warrant to search the Gmail content, the 1&1 content, and the iCloud content (which Mueller provided them on March 7, 2018) in the campaign finance investigation.

But as the footnote noted, they never obtained a warrant to search the Trump Org emails, even though that content was presumably also in Mueller’s possession.

There may be a very logical explanation for why they didn’t: on October 27, 2017, DOJ agreed to limit its use of secrecy orders. It’s quite possible that the government believed any new warrant for content originally provided by Microsoft would have to adhere to the new policy, even if it had been obtained before the new policy went into effect (we see similar policy granularity in SDNY’s need to get a warrant for Google content held overseas, whereas Mueller — who operated in a different Circuit without that precedent — did not have to submit a separate warrant).

That said, given the discussions of why things got referred when they did (and the different treatment of Cohen’s non-Russian crime from Manafort and Flynn’s non-Russian crimes), I am rather interested that SDNY treated Trump Org emails differently than Mueller did (and, perhaps, that Mueller submitted a warrant to Trump Org for content he already had).

As I said, the most likely explanation is that the change in DOJ policy led to a change in treatment of Trump Org’s Microsoft hosted email, meaning SDNY could not ask for the emails even from Microsoft without alerting Trump to the investigation. But it’s possible that the differential treatment arises from greater deference provided to Trump related content as investigations into him proceeded.

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

Stormy, Pee Tapes, and Pussy-Grabbing: The Three Explanations for the Cohen-Hicks-Trump Call on October 8, 2016

The warrant to search Michael Cohen’s property released yesterday revealed what the FBI Agent who wrote the affidavit supporting the application believed was a conference call between Michael Cohen, Donald Trump, and Hope Hicks on October 8, 2016.

On October 8, 2016, at approximately 7:20 p.m., Cohen received a call from Hicks. Sixteen seconds into the call, Trump joined the call, and the call continued for over four minutes. 27 Based on the toll records that the USAO has obtained to date, I believe that this was the first call Cohen had received or made to Hicks in at least multiple weeks, and that Cohen and Trump spoke about once a month prior to this date — specifically, prior to this call on October 8, 2016, Cohen and Trump had spoken once in May, once in June, once in July, zero times in August, and twice in September.

27 I believe that Trump joined the call between Cohen and Hicks based on my review of toll records. Specifically, I know that a call was initiated between Cohen’s telephone number and Trump’s telephone number at the same time the records indicate that Cohen was talking to Hicks. After the Cohen-Trump call was initiated, it lasted the same period of time as the Cohen-Hicks call. Additionally, the toll records indicate a “-1” and then Trump’s telephone number, which, based on my training and experience, means that the call was either transferred to Trump, or that Trump was added to the call as a conference or three-way call participant. In addition, based on my conversations with an FBI agent who has interviewed Hicks, I have learned that Hicks stated, in substance, that to the best of her recollection, she did not learn about the allegations made by Clifford until early November 2016. Hicks was not specifically asked about this three-way call.

The agent’s description (which was based entirely off toll records and assumed every call pertained to this scandal and not the many other scandals Trump’s campaign was juggling at the time) has led many to question Hicks’ testimony to HJC, including (in a letter to her lawyer) from Jerry Nadler. Her lawyer Robert Trout (who should be taking a victory lap from his likely imminent win in the Bijan Kian trial) says she stands by the her testimony, in which said that that call involved rumors that TMZ had found the pee tape.

Q Okay. When did you first become aware of the “Access Hollywood” tape?

A About an hour before it was made public.

Q And what was your reaction to it?

A Honestly, my reaction was, it was a Friday afternoon, and I was hoping to get home to see my family for the first time in a few months, and that wasn’t happening.

Q Did you have any other reactions?

A Look, I obviously knew that it was going to be a challenge from a communications standpoint.

Q Did you discuss it with Mr. Trump?

A I did, yes.

Q Tell me about those discussions, please. A I made him aware of the email I received from The Washington Post which described the tape. And I don’t know if the initial email did this, but certainly one of the subsequent emails and exchange provided a transcript of the tape. So, described those different components to Mr. Trump and tried to evaluate the situation.

Q And how did he react to that?

A You know, he wanted to be certain, before we engaged, that it was legitimate. And I think we all felt it was important that we request to see the actual tape or listen to the audio before responding.

Q Was he upset?

A Yes. I think everybody was in, like, a little bit of shock.

Q And did he ask you how — did he seek your advice on how to respond?

A Yes. There were quite a few of us, so it was very much a group discussion, given that this unfolded at a debate-prep session. Q And do you remember who else you discussed the tape with?

A Who else was present there?

Q Yeah, at that time. A Sure. Reince Priebus, Chris Christie, Jeff Sessions, Stephen Miller, Jason Miller, Steve Bannon, David Bossie, Kellyanne Conway. Later, Jared Kushner. I think that’s it.

Q Do you recall reaching out to Michael Cohen about the tape?

A My recollection of reaching out to Michael took place the following day. And it wasn’t about the tape; it was about — this is going to get confusing, but the day after the tape, there were rumors going around — I’m not sure exactly where — I heard it from our campaign spokesperson, Katrina Pierson, who was sort of like a — she had a lot of contacts, grassroots. And she had called to tell me that — or maybe sent me a message about rumors of a tape involving Mr. Trump in Moscow with, you know — can I say this?

[Discussion off the record.]

Ms. Hicks. — with Russian hookers, participating in some lewd activities. And so, obviously, I didn’t — I felt this was exactly how it had been described to me, which was a rumor. Nonetheless, I wanted to make sure that I stayed on top of it before it developed any further, to try to contain it from spiraling out of control. And the person that made me aware of the rumor said that TMZ might be the person that has access to this tape. I knew Michael Cohen had a good relationship with Harvey Levin, who works at TMZ. So I reached out to Michael to ask if he had heard of anything like this; if Harvey contacted him, if he could be in touch with me.

But that testimony is not entirely consistent with something in the Mueller Report, which suggested (based off FBI interviews with both Cohen and Giorgi Rtskhiladze) that the one time Trump would have heard about a pee tape was later in October, after Cohen and Rtskhiladze discussed the tapes via text.

Comey 1/7/17 Memorandum, at 1-2; Comey I 1/15/17 302, at 3. Comey’s briefing included the Steele reporting’s unverified allegation that the Russians had compromising tapes of the President involving conduct when he was a private citizen during a 2013 trip to Moscow for the Miss Universe Pageant. During the 2016 presidential campaign, a similar claim may have reached candidate Trump. On October 30, 20 I 6, Michael Cohen received a text from Russian businessman Giorgi Rtskhiladze that said, “Stopped flow of tapes from Russia but not sure if there’s anything else. Just so you know …. ” 10/30/16 Text Message, Rtskhiladze to Cohen. Rtskhiladze said “tapes” referred to compromising tapes of Trump rumored to be held by persons associated with the Russian real estate conglomerate Crocus Group, which had helped host the 2013 Miss Universe Pageant in Russia. Rtskhiladze 4/4/18 302, at 12. Cohen said he spoke to Trump about the issue after receiving the texts from Rtskhiladze. Cohen 9/12/18 302, at 13. Rtskhiladze said he was told the tapes were fake, but he did not communicate that to Cohen. Rtskhiladze 5/10/18 302, at 7.

It’s certainly possible that this late October exchange was the fruit of earlier concerns about the pee tape, and that as part of chasing down the TMZ rumor, Cohen would have asked Rtskhiladze to help. But you’d think Mueller would have said that, especially if he knew that Trump had been on a call where it was all discussed.

Cohen offered a slightly different story, claiming that the call was about responding to the Access Hollywood video. But his answer to Eleanor Norton in which he raised the call moves directly onto the hush payments, as if they’re connected.

Ms. NORTON. Mr. Cohen, at the center of the reasons you are going to prison is convictions for campaign finance violations, and they center around some salacious revelations. The Washington Post reported or aired an Access Hollywood video. It set a record for the number of people who watched, crashed the newspaper’s server. But this happened in early October on the cusp of the election. What was Mr. Trump’s reaction to the video becoming public at that time and was he concerned about the impact of that video on the election?

Mr. COHEN. The answer is yes. As I stated before, I was in London at the time visiting my daughter, who is studying there for a Washington semester abroad, and I received a phone call during the dinner from Hope Hicks stating that she had just spoken to Mr. Trump and we need you to start making phone calls to the various different news outlets that you have relationships with, and we need to spin this. What we want to do is just to claim that this was men locker room talk.

Ms. NORTON. Was the concern about the election in particular?

Mr. COHEN. The answer is yes. Then, couple that with Karen McDougal, which then came out around the same time. And then on top of that the Stormy Daniels matter.

Ms. NORTON. Yeah, and these things happened in the month before the election and almost one after the other. The Stormy Daniels revelation where prosecutors and officials—the prosecutors learned of that—of that matter and prosecutors stated that the officials at the magazine contacted you about the story. And the magazine, of course, is the National Enquirer. Is that correct, that they did come to you?

Mr. COHEN. Yes, ma’am.

Ms. NORTON. Were you concerned about this news story becoming public right after the Access Hollywood study in terms of impact on the election?

Mr. COHEN. I was concerned about it, but more importantly, Mr. Trump was concerned about it.

Ms. NORTON. That was my next question. What was the President’s concern about these matters becoming public in October as we were about to go into an election?

Mr. COHEN. I don’t think anybody would dispute this belief that after the wildfire that encompassed the Billy Bush tape, that a second followup to it would have been pleasant. And he was concerned with the effect that it had had on the campaign, on how women were seeing him, and ultimately whether or not he would have a shot in the general election.

Frankly, it may well be that everyone is mixing up the many sex-related scandals Trump was fighting in October 2016. Or it may be that Hicks, Cohen, and Trump responded to the Access Hollywood video by deciding that they had to try to chase down all of the potential sex scandals — the long-simmering pee tape allegations, the several hush payment demands, among others — and preemptively quash them. That would be consistent with Steve Bannon’s claim that Marc Kasowitz was chasing down hundreds of scandals. If such a discussion took place (which might explain why all three would get on the phone together), then Hicks might otherwise have forgotten knowing about the hush payments earlier, or she locked in testimony denying that knowledge in December 2017 when she testified, and continues to tell a partial truth to avoid further legal jeopardy.

I mean, maybe Hicks is outright lying to protect earlier lies she told in 2017, before the whole hush payment story broke wide open. But it is certainly possible that if you work for Donald Trump all the sex scandals merge into one, either in fact, or in years old memories.

Update: Because people are asking, this is something that Mueller could have chased down. Hicks’ testimony was December 7, 2017 and March 13, 2018; as noted above, Rtskhiladze testified on April 4 and May 10, 2018. The interviews in which Cohen is believed to have told the truth all took place on September 12, 2018 or later. But since this was referred out (for reasons that are unclear, since it was part of the Mueller investigation for 7 months), he may not have had jurisdiction anymore. But SDNY certainly may have chased it down.

The Steele Dossier and the Mueller Investigation: Michael Cohen

Update: I’m reposting this on July 20 because these warrants have been re-released in less redacted form. As noted below in the update on Section C, that previously redacted section does pertain to Michael Cohen’s hush payments to Stormy Daniels, meaning the only mention of the Steele Dossier in the earliest warrant on Cohen is just to a post-dossier WSJ article used exclusively to explain Cohen’s own description of how he served as Trump’s fixer. 

Because the frothy right thinks it’s an important question but won’t actually consult the public record, I’m doing a series on what that public record says about the relationship between the allegations in the Steele dossier and the known investigative steps against Trump’s associates. In this post, I argued that the way the Steele dossier influenced the Carter Page investigation may be slightly different than generally understood: it appears that the dossier appeared to predict — just like George Papadopoulos had — the release of the DNC emails on July 22. From that point forward, Page continued to do things — such as telling people in Moscow he was representing Donald Trump in December 2016, including on Ukraine policy — that were consistent with the general theory (though not the specific facts) laid out in the Steele dossier. That is, Page kept acting like the the Steele dossier said he would. That said, the government had plenty of reason before the Steele dossier to investigate Page for his stated willingness to share information with Russian spies, and his ongoing behavior continued to give them reason.

I’m more interested in the example of Michael Cohen.

The Steele dossier eventually describes Michael Cohen as the villain of coordination with Russia

The dossier makes allegations against Cohen four times, all after the time when Steele and Fusion GPS were shopping the dossier to the press, increasing the likelihood Russia got wind of the project and were shopping disinformation.

The first three mentions came on three consecutive days (probably based on just two sub-source to Kremlin insider conversations), all apparently sourced to the same second-hand access to a Kremlin insider, and evolving significantly over those three days.  Importantly, the sub-source is also the source for the claim that Page had been offered the brokerage of the publicly announced Rosneft sale, meaning this person purportedly had access to Igor Sechin and a Kremlin insider, and if this source was intentionally feeding disinformation, it would account for the most obviously suspect claims in the dossier.

October 18, 2016 (134): A Kremlin insider tells the sub-source that Michael Cohen was playing a key role in the Trump campaign’s relationship with the Kremlin.

October 19, 2016 (135): The Kremlin insider tells his source that Cohen met with Presidential Administration officials in August 2016 to discuss how to contain Manafort’s Russia/Ukraine scandal and Page’s secret meetings with Russian leaders. Since that August meeting Trump-Russian conversations increasingly took place via pro-government policy institutes.

October 20, 2016 (136): In a communication that “had to be cryptic for security reasons,” a Kremlin insider tells a friend on October 19 that the reported meeting with Cohen took place in Prague using Rossotrudnichestvo as a cover. It involved Duma Head of Foreign Relations Committee Konstantin Kosachev. This is notably different from the PA claim made just the day before.

Then there’s the final report, which Steele has claimed was provided for “free,” dated after David Corn and Kurt Eichenwald’s exposure of the dossier, after the election, after the Obama Administration ratcheted up the investigation on December 9, and after Steele had interested John McCain in the dossier. In addition to offering a report that seems to project blame onto Webzilla for what the Internet Research Agency did, this report alleges what would be a veritable smoking gun, missing from the earlier reports: that Cohen had helped pay for the hackers.

December 13, 2016 (166): The August meeting in Prague was no longer about how to manage the Manafort and Page scandals, but instead to figure out how to make deniable cash payments to hackers (located in Europe, including Romania, where the original Guccifer had come from, not Russia), who were managed by the Presidential Administration, not GRU.

This December report is really the only one that claims Trump had a criminal role in the hack-and-leak, but the claims in the report all engage with already public claims: situating the hackers where the persona Guccifer 2.0 claimed to be from, Romania, suggesting the hackers were independent hackers who had to be paid rather than Russian military officers, and blaming Webzilla rather than Internet Research Agency for disinformation. That is, more than any other, this report looks like it was tailored to the Russian cover story.

The way this story evolved over time should have raised concerns, as should have other obvious problems with the December report. But it’s worth noting that there are two grains of truth in it. Cohen had been the key interlocutor between the Trump campaign and the Presidential Administration during the campaign, but to discuss the building of a Trump Tower in Moscow in January, not how to steal the election in October. Few people (at least in the US) should have known that he had played that interlocutor role; how many knew in Russia is something else entirely. Cohen was also someone that people who had done business with Trump Organization, like Giorgi Rtslchiladze and people associated with Aras Agalarov’s Crocus Group, would know to be Trump’s fixer. That fact would have been far more widely known.

Nevertheless, by the end of it, Cohen was the biggest Trump-associate villain in the Steele dossier. If the Steele dossier had been directing the investigative priorities of the FBI, then Cohen should have been a focus for his role in the hack-and-leak as soon as the FBI received this report. Nothing in the public record suggests that happened. Indeed, at the time the FBI briefed the Gang of Eight on March 9, 2017, Cohen was not among the people described as subjects. Just Roger Stone had been added to the initial four subjects (Page, Manafort, George Papadopoulos, and Mike Flynn) by that point. Congress, including the Devin Nunes-led House Intelligence Committee, would focus closely on Cohen more quickly than the FBI appears to have.

That’s true even though Cohen was doing some of the things he would later be investigated for, including — immediately after the election — establishing financial ties with Viktor Vekselberg even while Felix Sater pitched him on a Ukraine deal.

Suspicious Activity Reports and the investigation into Cohen

The investigation into Cohen appears to have started — given this July 18, 2017 warrant application — as an investigation into suspicious payments, both Cohen’s payments to Stormy Daniels and payments from large, often foreign companies, particularly Columbus Nova, with which Viktor Vekelsberg has close ties, but also including Novartis, Korean Airlines, and Kazkommertsnank. The investigation probably started based off a Suspicious Activity Report submitted by First Republic Bank, where Cohen had multiple accounts, including one for Essential Consulting, where those foreign payments were deposited.

Cohen opened that Essential Consultants account on October 26, 2016, ostensibly to collect fees for domestic real estate consulting work, but in fact to pay off Stormy Daniels. His use of it to accept all those foreign payments would have properly attracted attention and a SAR from the bank under Know Your Customer mandates, particularly with his political exposure through Trump. Sometime in June 2017, First Republic submitted the first of at least three SARs on this account, covering seven months of activity on the account; that SAR and a later one was subsequently made unavailable in the Treasury system as part of a sensitive investigation, which led to a big stink in 2018 and ultimately to charges against an IRS investigator who leaked the other reports. The language of the third one appears to closely match the language in the warrant applications, including a reference to Viktor Vekselberg’s donations to Trump’s inauguration.

The first warrant application against Cohen

On June 21, the FBI served a preservation request to Google for his Gmail and to Microsoft for Cohen’s Trump Organization emails (see this post for the significance of Microsoft’s role). Generally that suggests that already by that point, FBI decided they would likely want that email, but needed to put together the case to get it. The preservation order on Microsoft suggests they may have worried that people at Trump’s company might destroy damning emails. It also suggests the FBI knew that there was something damaging in those emails, which almost certainly came in part from contact information the bank had and call records showing contacts with Felix Sater and Columbus Nova; it might also suggest the NSA may have intercepted some of Cohen’s contacts with Russians in normal collection targeting those Russians.

That July 2017 warrant (confirmed in later warrants to be the first one used against Cohen) lists Acting as a Foreign Agent (18 USC 951) and false statements to a financial institution. It explains:

[T]he FBI is investigating COHEN in connection with, inter alia, statements he made to a known financial institution (hereinafter “Bank 1”) in the course of opening a bank account held in the name of Essential Consultants, LLC and controlled by COHEN. The FBI is also investigating COHEN in connection with funds he received from entities controlled by foreign governments and/or foreign principals, and the activities he engaged in in the United States on their behalf without properly disclosing such relationships to the United States government.

In other words, the predicate for the investigation was his bank account — one in conjunction with which he would eventually plead guilty to several crimes — not the dossier. Had Cohen told the truth about why he was opening that bank account (to pay off the candidate’s former sex partners!), had he not conducted his international graft with it, had he been honest he was going to be accepting large payments from foreign companies, then he might not have been investigated. It’s possible that the public reporting on the dossier made the bank pay more attention, but his actions already reached the level that the bank was required to report it.

In the unredacted parts of the application, there is one citation of the dossier, but only to the title of a WSJ report on Cohen written in the wake of the dossier release, “Intelligence Dossier Puts Longtime Trump Fixer in Spotlight.” It uses the article in a section introducing who he is to cite Cohen explaining that he’s Trump’s “fìx-it guy . . . . Anything that [then-President-elect Trump] needs to be done, any issues that concern him, I handle,” not to describe any allegations in the dossier.

From there, it introduces the bank account, Essential Consulting.

Redacted section C

Update, 7/19: These warrants have now been unsealed, and — as media outlets originally reported — this section is about the hush payment to Stormy Daniels. The section also confirms that much of this investigation came from the KYC work of Cohen’s bank. I’ve marked the paragraphs that consider the possibility this section pertains to Russia with strike-through text.

The next section, C, is six paragraphs long (¶¶13 to 18), and remains entirely redacted. If the substance of the dossier appears in the warrant application, it would appear here. But such a redacted passage does not appear at all in a search warrant application for Paul Manafort from May, and no redacted passage appears as prominently in a Manafort warrant application from ten days later — which describes his relationship with three Russian oligarchs and the June 9 meeting — though there is a six page redaction describing the investigative interest in the June 9 meeting. The difference is significant because the dossier alleged that Manafort was managing relations with Russia until he left the campaign (including during June), so if there were redacted language about the dossier on Cohen, we would expect it to play a similar role in applications on Manafort, but nothing public suggests it does.

Some background on this redacted section. We got the Mueller-related warrants on Cohen because a bunch of media outlets asked Chief Judge Beryl Howell to liberate them on March 26, the week after Mueller officially finished his investigation. At first, Jonathan Kravis, the DC AUSA who has taken the lead in much of the ongoing Mueller word, noticed an appearance to respond. But it was actually Thomas McKay, one of the SDNY AUSA who prosecuted Cohen there, who responded to the request, along with another SDNY attorney.

Although the Warrant Materials were sought and obtained by the Special Counsel’s Office (“SCO”), the Government is represented in this matter by the undersigned attorneys from the United States Attorney’s Office for the Southern District of New York (“SDNY”), as the SCO’s investigation is now complete.

They argue that they’re willing to release the warrant materials under terms consistent with the terms used in SDNY, where information about the FBI affiants and information we know deals with the hush payments investigation got redacted.

Judge Pauley ruled that “the portions of the Materials relating to Cohen’s campaign finance crimes shall be redacted” to protect an ongoing law enforcement investigation, along with “the paragraphs of the search warrant affidavits describing the agents’ experience or law enforcement techniques and procedures.” Cohen, 2019 WL 472577, at *6. By contrast, Judge Pauley ordered that the portions of the materials that did not relate to the campaign finance investigation be unsealed, subject to limited redactions to protect the privacy interests of certain uncharged third parties. Id. at *6-7. Judge Pauley’s decision in these respects is also consistent with prior decisions of this Court, which have recognized the distinction between law enforcement interests in ongoing, as opposed to closed, investigations, as well as the importance of respecting privacy concerns for uncharged third parties. See, e.g., Matter of the Application of WP Company LLC, 16-mc-351 (BAH), 2016 WL 1604976, at *2 & n.2 (D.D.C. Apr. 1, 2016).

Consistent with the foregoing, the Government does not oppose the Petitioners’ request for partial unsealing, but respectfully requests that the Court authorize redactions consistent with those authorized by Judge Pauley in the SDNY litigation.

Because of this language, some people assume the redacted passage C relates to the hush payments, which were, after all, the reason Cohen opened the account in the first place. That may well be the case: if so, the logic of the warrant application would flow like this:

A: Michael Cohen

B: Essential Consultants, LLC

C: Use of Essential Consultants to pay hush payments

[Later warrants would include a new section, D, that described Cohen’s lies about his net worth to First Republic]

D: Foreign Transactions in the Essential Consultants Account with a Russian Nexus

i. Deposits by Columbus Nova, LLC

ii. Plan to Life Russian Sanctions

E: Other Foreign Transactions in the Essential Consultants Account

That would explain McKay’s role in submitting the redactions, as well as his discussion of redacting the warrant consistent with what was done in SDNY, to protect ongoing investigations. (The government will have to provide a status report in August on whether these files still need to be redacted.)

That said, it was not until April 7, 2018 that anyone first asked for a warrant to access Cohen’s email accounts in conjunction with the campaign finance crimes. And some SARs submitted in conjunction with the hush payments, such as one associated with the $130,000 payment on October 27, 2016 to then Daniels lawyer Keith Davidson and one from JP Morgan Chase reflecting the transfer from the Essentials Consulting account to Davidson’s were not restricted in May 2018 in conjunction with a sensitive investigation (nor was the third one reflecting the foreign payments described above), suggesting they weren’t the most sensitive bits in May 2018. Of note, the Elliot Broidy payments to Essential Consulting would post-date this period of the investigation.

That leaves a possibility (though not that likely of one) that Section C could describe the Russian investigation. The next passage after the redacted one describes the “foreign transactions in the Essential Consultants Account with a Russian nexus” (though, as noted, subsequent warrants describe Cohen’s lies in the following paragraph). It describes the $416,664 in payments from Columbus Nova, and describes the tie between Columbus Nova and Vekselberg. After introducing the payments, the affidavit describes the public report on a back channel peace plan pitched by Felix Sater on behalf of Ukrainian politician Andrii Artemenko.

Another possibility is that it describes Trump’s inauguration graft, which embroils Cohen and Broidy (though the investigation into Broidy is in EDNY, not SDNY).

Perhaps most likely, however, is that that section just describes other reasons why that Essential Consulting account merited a SAR. For example, it might describe how Cohen set up a shell company to register the company, something that doesn’t show up in the unredacted sections, but which is a key part of the hush payment prosecution.

If the section does not mention the Russian investigation generally (and the dossier specifically), then it means there is no substantive mention of it in the warrant at all, meaning it played at most a secondary role in the focus on Cohen.

As the timeline of the investigation into Cohen below shows, that redacted section would grow by one paragraph in the next warrant application, for Cohen’s Trump Organization emails, obtained just two weeks later. It would remain that length for all the other unsealed Mueller warrants.

Felix Sater and the investigation into Cohen

The way in which Sater is mentioned in the warrants against Cohen presents conflicting information about what might be in that redacted section. Significantly, Sater (described as Person 3) is introduced as if for the first time, in the discussion of the Ukrainian deal that appears after the redaction. That means that he doesn’t appear in the redacted material. That’s important because Sater would be one other possible focus of any introduction to why Cohen would become the focus of the Russian investigation (aside from the dossier).

The next warrant would also note numerous calls with Sater, reflecting legal process for call records not identified here (the government almost certainly had a PRTT on Cohen’s phones by then). But those calls, as described, were in early 2017 (tied to the suspected Ukrainian peace plan), not in 2015-2016 when the two men were discussing a Trump Tower Moscow.

Mueller interviewed Sater on September 19, 2017, the first of two FBI interviews (he also appeared before the grand jury on an unknown date).

One of the most interesting changes to the Mueller warrants happens after that: In warrant applications submitted on November 13, the unredacted discussion of the Ukraine peace deal gets dropped. It’s unlikely Mueller’s investigation of it was eliminated entirely, because Mike Flynn, who allegedly ultimately received that deal, is not known to have been cooperating yet (his first known proffer was three days later, on November 16), and Mueller was still interested in interviewing Andrii  Artemenko — the Ukrainian politician who pitched the deal — in June 2018.

In addition, based off the details in the Mueller Report cited to Sater’s September interview, Mueller was already investigating the Trump Tower deal. That suggests both topics — the Trump Tower deal and the Ukranian peace pitch — could appear in the redacted passage. Indeed, while the unredacted passages don’t explain it, one important reason to obtain the earlier emails would be to obtain the communications between Sater and Cohen during that period.

None of these warrants explain why Mueller became convinced that Cohen had lied to Congress, but by the second December interview of Sater, he presumably knew that Cohen had lied. But he probably didn’t have all the documents on the deal until he subpoenaed Trump Organization in March 2018.

All of which is to say, the treatment of the warrants’ Sater’s ties to Cohen, so important in any consideration of Cohen’s ties to Russia, ultimately don’t help determine what’s in that section.

If Mueller obtained Cohen’s location data, it was only second-hand

Finally, there’s one other detail not shown in the Mueller warrants you might expect to have if the Steele dossier was central to the Cohen investigation: a concerted effort to confirm his location during August 2016, when the dossier claimed he had been in Prague.

Granted, by obtaining records from Google, Mueller would get lots of information helpful to confirming location. For example, Google would have provided all the IP addresses from which Cohen accessed his account going back to January 2016. He would have obtained calendar data, if Cohen used that Google function. The warrant (as all warrants to Google would) asks for “evidence … to determine the geographic and chronological context of account access” and describes the various ways investigators can use Google to ID location (though it doesn’t specifically talk about location data in conjunction with Google Maps).

Mueller would get even more information from the Apple warrant obtained on August 7, 2017. The warrant for Cohen’s iCloud account on August 7 focused on a new iPhone (a 4s!!!) he obtained on September 28, 2016 and used for a function that gets redacted (which, again, could be the hush payments). It described his use of Dust and WhatsApp on the phone (Dust was what he used with Felix Sater), meaning one reason they were interested in the account was not for Cohen’s Apple content, but for anything associated with the apps he used on his phone (remember that Mueller got Manafort’s otherwise encrypted WhatsApp chats from Apple; the Apple specific language notes that some users back up their WhatsApp texts to iCloud). That said, the language on Apple (as all warrants on it would) specified that users sometimes capture location data with the apps on their phones.

Apple allows applications and websites to use information from cellular, Wi-Fi, Global Positioning System (“GPS”) networks, and Bluetooth, to determine a user’s approximate location.

This is a way the FBI has increasingly gotten location data in recent years, via the apps that access it from your phone. So the FBI would have gotten information that would have helped them rule out a Cohen trip to Prague in 2016.

That said, it’s not until April 7 that the government obtained the only known warrant for cell location data. That warrant focused only on the campaign finance crimes, and it obtained historical data only started on October 1, 2016 — pointedly excluding the August 2016 period when Steele’s dossier alleged Cohen was in Prague.

In short, along the way, Mueller obtained plenty of information that would help him exclude a Prague meeting (and subpoenas and other government information — such as his Homeland Security file — could have helped further exclude a meeting). But there’s no sign in the public record that Mueller investigated the Steele dossier Prague meeting itself.

To sum up: while it’s possible the redacted portions discuss Russia and therefore potentially the dossier. But there are a lot of reasons to think that’s not the case. It is hypothetically possible that between March (when FBI wasn’t investigating Cohen) and May (when Mueller took over) the FBI had done something to chase down the dossier allegations on Cohen. But, there’s no evidence that Mueller investigated them. On the contrary, it appears that the investigation into Cohen arose from the Bank Secrecy Act operating the way it is designed to — to alert the Feds to suspect activity in timely fashion.

In another world, that should placate the frothy right. After all, they complain that the dossier was used in Carter Page’s FISA application. You’d think they’d be happy that, in the eight months between the time FBI obtained that order and started investigating Cohen aggressively, they hadn’t predicated an investigation into the dossier. By that time, there were overt things — like Vekselberg’s donation to the inauguration and the Ukraine plan — that were suspect and grounded in direct evidence.

Timeline

May 18, 2017: Possible date for meeting involving Jay Sekulow, Trump, and Cohen.

May 31, 2017: Cohen and lawfirm subpoenaed by HPSCI.

June 2017: A SAR from Cohen’s bank reflects seven months of suspicious activity in conjunction with this Essential Consulting account

June 2017: Federal Agents review Cohen’s bank accounts.

June 21, 2017: FBI sends a preservation request to Microsoft for Cohen’s Trump Org account.

July 14, 2017: FBI sends a preservation request to Microsoft for all Trump Org accounts.

July 18, 2017: FBI obtains a warrant for Cohen’s Gmail account focused on FARA charges tied primarily to the Columbus Nova stuff, but also his other foreign payments). ¶¶13-18 redacted.

July 20, 2017 and July 25, 2017: Microsoft responds to grand jury subpoenas about both Cohen’s account and TrumpOrg domain generally.

August 1, 2017: FBI obtains a warrant for Cohen’s Trump Org email account (which they obtained from Microsoft), adding bank fraud, money laundering, and FARA (as distinct from 951) to potential charges. ¶¶13-19 redacted. ¶¶20 to 24 note irregularities in claims to First Republic. ¶28 details how Cohen and Andrew Intrater started texting in large amounts on November 8, 2016, showing over 230 calls and 950 texts between then and July 14, 2017. ¶30 includes email reflecting visit to Columbus Nova. ¶31 reflects probable subpoena to bank (rather than just SARs). ¶32 describes Renova paying Cohen through Columbus Nova. ¶36 reflects phone records showing 20 calls with Felix Sater between January 5, 2017 and February 20, 2017, and one with Flynn on January 11, 2017. ¶39, ¶41 include new evidence from Google search.

August 7, 2017: FBI obtains a warrant for Cohen’s Apple ID (tied to his Google email). ¶¶14-20 redacted. ¶50-54 describes Cohen obtaining a new Apple iPhone 4s on September 28, 2016 and using it for a redacted purpose. It describes Cohen downloading Dust (the same encrypted program he used with Felix Sater) the day he set up the phone, and downloading WhatsApp on February 7, 2017.

August 17, 2017: FBI obtains second warrant on Cohen’s Gmail, not publicly released, but identified in second Google warrant. It probably added wire fraud to existing charges being investigated.

August 27-28, 2017: Cohen conducts a preemptive limited hangout on the Trump Tower story feeding WaPo, WSJ, and NYT.

August 31, 2017: Cohen releases the letter his attorney had sent — two weeks earlier — along with two earlier tranches of documents for Congress.

September 19, 2017: FBI interviews Sater. Cohen attempts to preempt an interview with SSCI by releasing a partial statement before testifying, only to have SSCI balk and reschedule the interview.

October 4, 2017: Additional SAR restricted because of ongoing sensitive investigations.

October 20, 2017: Cohen included in expanded scope of investigation.

October 24, 2017: HPSCI interviews Cohen.

October 25, 2017: SSCI interviews Cohen.

November 7, 2017: Mueller extends PR/TT on Cohen Gmail.

November 13, 2017: FBI obtains Cohen’s Gmail going back to June 1, 2015 and his 1&1 email. Adds wire fraud. ¶14-20 redacted.¶23a-25 adds Taxi medallion liability. Eliminates Ukraine/sanctions plan in unredacted section. Adds section F, payments in connection with political activities (associated with AT&T, expand Novartis, add Michael D Cohen and Associates.

December 15, 2017: FBI interviews Sater.

January 4, 2018: Mueller extends PR/TT on Cohen Gmail.

February 8, 2018: Mueller provides SDNY with Gmail and 1&1 email returns.

February 16, 2018: SDNY obtains d-order for header information on 1&1 account.

February 28, 2018: SDNY obtains warrant for emails sent after November 14, 2017 and warrant for emails Mueller handed over in conjunction with different conspiracy, false statements to a bank, wire fraud, and and bank fraud charges.

March 7, 2018: Mueller provides SDNY with iCloud returns.

March 15, 2018: Press reports that Mueller subpoenaed Trump Organization.

April 5, 2018: After CLOUD Act passes, SDNY applies for Google content that had been stored overseas and withheld in February 28 warrant.

April 7, 2018: FBI obtains warrant for cell location for two cell phones, tied only to illegal campaign donation investigation (the FBI would use this to use a triggerfish to identify which room he was in at Loews). FBI obtains warrant to access prior content for use in campaign donation investigation. This is the first warrant that lists 52 USC 30116 and 30109 as crimes being investigated.

April 8, 2018: FBI obtains warrant for cell location for two cell phones, tied only to illegal campaign donation investigation.FBI obtains warrant to search Cohen’s house, office, safe deposit box, hotel room, and two iPhones.

April 9, 2018: FBI obtains a warrant to correct Cohen’s hotel room.

June 20, 2018: Cohen steps down from RNC position.

July 27, 2018: Sources claim Cohen is willing to testify he was present, with others, when Trump approved of the June 9 meeting with the Russians.

August 7, 2018: First Cohen proffer to Mueller.

August 21, 2018: Cohen pleads guilty to SDNY charges. Warner and Burr publicly note that Cohen’s claim to know about the June 9 meeting ahead of time conflicts with his testimony to the committee.

September 12, 2018: Second proffer.

September 18, 2018: Third proffer.

October 8, 2018: Fourth proffer.

October 17, 2018: Fifth proffer.

November 12, 2018: Sixth proffer.

November 20, 2018: Seventh proffer.

November 29, 2018: Cohen pleads guilty to false statements charge.

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

Democrats Are Setting Themselves Up to Fail on Mueller Hearings

In a House Judiciary Committee hearing about the most controversial topic of the day 12 years ago, Robert Mueller provided testimony that sharply contradicted the sworn testimony of the Attorney General. He confirmed that the March 10, 2004 hospital confrontation between Jim Comey and the White House concerned a disagreement about the legality of the Stellar Wind warrantless wiretapping program, contrary to the earlier claims of Alberto Gonzales.

“I had an understanding that the discussion was on a N.S.A. program,” Mr. Mueller said in answer to a question from Representative Sheila Jackson Lee, Democrat of Texas, in a hearing before the House Judiciary Committee.

Asked whether he was referring to the Terrorist Surveillance Program, or T.S.P., he replied, “The discussion was on a national N.S.A. program that has been much discussed, yes.”

Mr. Mueller said he had taken notes of some of his conversations about the issue, and after the hearing the committee asked him to produce them.

[snip]

In a four-hour appearance before the Senate Judiciary Committee on Tuesday, Mr. Gonzales denied that the dispute arose over the Terrorist Surveillance Program, whose existence was confirmed by President Bush in December 2005 after it had been disclosed by The New York Times. Mr. Gonzales said it centered on “other intelligence activities.”

That event, like Russian investigation, involved a constitutional crisis and uncertain matters of law. It involved issues made more controversial by Jim Comey’s at times imperfect efforts to uphold principle. Mueller’s testimony specifically confirmed suspicions about the deceit and criminal exposure of the Attorney General, possibly contributing to his resignation a month later.

Sheila Jackson Lee — who remains on HJC — asked the question, and Mueller answered truthfully, and then provided evidence to back up his testimony.

And yet, even after studying Mueller’s past testimony to Congress (presumably including that hearing), House Democrats have themselves convinced that Mueller won’t be all that forthcoming in his hearing next week.

“I don’t think Mr. Mueller, based on everything I know about him, that anyone should expect any major departure from the contents of the report,” said Rep. David Cicilline, a Rhode Island Democrat on the Judiciary Committee. “I do think the contents of the report are so significant and so damning that when Mr. Mueller brings them to life and actually tells the American people … it will have an impact.”

The committees recognize that Mueller is a reluctant witness, and has stated he does not intend to answer questions beyond the contents of his report. The committee aides said they planned to respect Mueller’s desires but noted Congress isn’t bound by such limits. The aides anticipate questions will go beyond what’s written in the report, such as asking Mueller whether certain episodes detailed would have been crimes had they not involved the President — after Mueller said that his office followed Justice Department legal opinion that a sitting president cannot be indicted.

[snip]

Mueller’s long government career has given the two committees plenty of material to study from Mueller’s past congressional appearances. The bottom line is they don’t expect Mueller to readily volunteer information, aides say, particularly given that he doesn’t want to testify before Congress.

As Jackson Lee demonstrated years ago, a properly phrased question will elicit an honest answer from Mueller.

But that’s not my main complaint about the reported preparations for Mueller’s testimony next week: it’s that Democrats have locked themselves into a division of labor — with HJC focusing on the evidence showing Trump obstructed justice and the House Intelligence Committee focusing on details of Trump’s enthusiasm for the Russian attack — that leaves out the larger framework of the investigation (and aftermath), may not touch on the area that, given the focus of his press conference, Mueller’s likely to be most forthcoming about (the extent of the Russian operation), and threatens to make a weaker case for both obstruction and “collusion.”

I hope to finally write my narratology of the Mueller Report to lay out the latter point. My questions for Mueller (which I’ll update before next Wednesday) include some that — like the Jackson Lee question twelve years ago — are factual questions that may do more to illuminate the actions of others than questions designed solely to get Mueller to recapitulate what’s already in the report.

But one of the biggest reasons I’m concerned about this approach is that Democrats are adopting a structure Mueller did –separating Trump associates’ efforts to obstruct an investigation into a possible conspiracy from Trump’s own efforts to obstruct an investigation into a conspiracy — that serves to water down the impact of the report.

This report was not, as most people commenting on it seem to believe, a report “of what Mueller found.” Rather, it is strictly limited to prosecutorial decisions, and as such doesn’t include evidence Mueller obtained that’s not important to explain why he chose to charge people or not.

His report produced the following prosecutorial decisions: 

As noted with the shading the break between Volume I and Volume II is not actually a break between the conspiracy investigation (Russia’s interference in the election and Trump Associates’ ties with Russia) and the obstruction investigation (matters arising from the investigation). Prosecutorial decisions relating to the cover-up appear in both Volume I and Volume II. It’s unclear why Mueller organized it like that (this would actually be an interesting question); perhaps he did it because he didn’t reach a prosecutorial decision about Trump or perhaps because he wanted to provide an impeachment referral for Congress.

But the effect of the organization is that it severs the discussion of the suspicious actions from the efforts to cover up those actions.

To illustrate why this is important, consider the June 9 meeting. The actual events behind that are:

  • Don Jr willingly accepted dirt on Hillary offered as part of the Russian government’s support for Trump
  • According to two witnesses, Trump probably knew about the meeting ahead of time (but did not plan a speech around it, as some suspected)
  • Don Jr and Emin Agalarov had several conversations about what the meeting would be
  • At the meeting, Don Jr agreed to consider sanctions relief even after he grew fed up that the dirt wasn’t very interesting
  • When the Trump team identified this meeting as an area of focus for Congressional and other investigations, Trump repeatedly responded in a way that — according to Hope Hicks — was totally uncharacteristic; either he or she also considered withholding the evidence from investigators
  • Trump personally issued a blatantly misleading statement on the meeting (after talking with Putin about that cover story, though that detail doesn’t show up in the report, which is another thing worth asking about)
  • Although he willingly sat for interviews with three Congressional committees — even after the report came out — Don Jr refused to appear before the grand jury
  • Emin Agalarov canceled an entire concert tour to avoid being questioned about the meeting or — more importantly — what he told Don Jr on those phone calls

From the point of view of the crime of obstruction of justice, the June 9 meeting is the weakest case, in part because Don Jr avoided getting caught in a lie about it (and so was not charged in parallel with Flynn and Stone). Given their focus on treating Volume II as an obstruction of justice impeachment referral rather than the complete cover-up, HJC is not treating this incident. But it’s one of the most damning examples showing that Trump and his family acted to accept Russian help.

And consider how Manafort’s sharing of polling data will get watered down with this approach to questioning. One of the most obvious ways to illustrate the impact of Trump’s obstruction is to lay out that Mueller was never able to establish why Manafort was trading Ukraine away at a meeting where he also discussed how to win MI and WI. It looks like a smoking gun, but Mueller was never able to fully investigate it (Manafort’s use of encryption helped things along here, too). And one key reason why he was never able to investigate it is because Manafort believed Trump would pardon him if he lied, and he did lie.

Note, too, that while Mueller notes that Manafort lied in footnotes, unless he’s the redacted person who lied to the grand jury in the prosecutions section, Mueller did not describe his prosecutorial decision not to charge Manafort for lying to the grand jury in that section.

As laid out (according to these reports), HPSCI is going to investigate the equivalent of the Watergate burglary, while HJC will investigate the cover-up of the burglary. Worse, HJC will go first, so it’s not like people watching the entire day will have been reminded about the burglary before HJC delves into the cover-up of it.

In other words, dividing the questioning the way reports say the committees will separates a discussion of the cover-up from the actions Trump covered up. That, in turn, makes it a lot harder to show that one reason Mueller didn’t collect enough evidence to charge a conspiracy is because of that cover up.

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