I’m working on a longer post about the sentencing submissions (McGonigal; SDNY) for Charles McGonigal’s SDNY case — the former head of counterintelligence for FBI’s New York Field Office. He will be sentenced in that case on Friday; he will be sentenced in his DC case in February.

The submission for McGonigal submitted by former Bill Barr flunkie Seth DuCharme argued that McGonigal’s crime, researching a rival oligarch for Oleg Deripaska after he retired in 2018, is no big deal because DOJ has sanctioned Deripaska’s rival, Vladimir Potanin, since that time.

[W]hen compared to other conduct for which the government has brought criminal charges, it bears repeating that here the crime was clearly malum prohibitum rather than malum in se—in other words, the defendant’s intent in agreeing to provide an SDN with information to be used for business competition purposes is far less serious than the criminal conduct in other IEEPA-related cases. [links added]

DuCharme asks for a probation sentence.

As you can imagine, SDNY has a lot to say about that in response. DuCharme, whom PACER does not show as having taken many, if any defendant, through sentencing since he left DOJ in 2021, really invited SDNY to throw a lot of damaging information at McGonigal.

One thing SDNY did was explain why McGonigal knew working for Deripaska was more damaging than that. One thing they note is that in January 2018, before he left the FBI, McGonigal reviewed a list of oligarchs, including Deripaska, under consideration for sanctions.

McGonigal knew full well that Deripaska was sanctioned. As SAC, McGonigal supervised and participated in investigations of Russian oligarchs, including Deripaska. (PSR ¶ 19).

[snip]

And in January 2018, McGonigal received and reviewed a then-classified list of Russian oligarchs with close ties to the Kremlin who would be considered for sanctions to be imposed as a result of Russia’s 2014 attack on Ukraine. (PSR ¶ 19).

That detail was in the indictment.

As SAC, McGonigal supervised and participated in investigations of Russian oligarchs, incl uding Deripaska . Among other things, in 2018, McGONIGAL , while acting as SAC, received and reviewed a then-classified list of Russian oligarchs with close ties to the Kremlin who would be considered for sanctions to be imposed as a result of Russia ‘ s 2014 conflict with Ukraine .

But there’s a detail DOJ has since gotten declassified, one of those “other things” only alluded to in the indictment: before McGonigal started pursuing ties with Albania while still at FBI, he received a report “stating that Deripaska was associated with a Russian intelligence agency.”

Among other things, in May 2017, McGonigal received a then-classified email stating that Deripaska was associated with a Russian intelligence agency, and possibly involved in that agency’s coup attempt in another country. (PSR ¶ 19).

By context, the agency must be GRU and the attempted coup must be Montenegro, a country implicated in McGonigal’s other prosecution — one where Paul Manafort had an extensive history with Deripaska and one mentioned in Andrew Weissmann’s Team M report. See also this post Rayne wrote on related topics.

In other words, this strongly suggests that in the same month when Rod Rosenstein appointed Robert Mueller to investigate how GRU tampered in the 2016 election, McGonigal received a report tying Deripaska to the GRU.

Then he went on to agree to work for Deripaska anyway, hoping to make millions from a guy with a key role in the 2016 attack on American democracy.

And Bill Barr’s flunkie, Seth DuCharme — the guy who helped set up a way for Rudy Giuliani to share information from Russian-backed Ukrainians to be funneled to the Hunter Biden investigation — thinks that McGonigal should be sentenced to probation as a result.