Rudy Giuliani Attacks Biden as SDNY Sifts Through His Comms for Ukraine Foreign Agent Investigation

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Among the many Trump allies suggesting that the former President was better on Russian issues than the current, Rudy Giuliani attempted to attack President Joe Biden with a Tweet dripping with projection.

Just over four weeks ago, the Special Master Barbara Jones delivered the latest tranche of records seized from Giuliani’s phones to prosecutors in SDNY, the US Attorney’s Office that Rudy once led.

While the scope of the review exceeds the scope of the known warrants, those known warrants target Rudy’s role in getting Maria Yovanovich fired in 2019 as part of an effort to get campaign dirt on Joe Biden.

Indeed, for six of Rudy’s devices, the latest review focused on the period from December 1, 2018 through May 31, 2018, which would cover the following events.

Late 2018: Rudy Giuliani participates in a Skype call with the former top Ukrainian prosecutor, Viktor Shokin, who was ousted from office after multiple Western leaders, including former Vice President Joe Biden, pressed for his removal. Leaders complain Shokin was failing to tackle corruption. It’s around this time that Giuliani says he first learned of a possible Biden-Ukraine connection.

January 2019: Giuliani meets in New York with the top Ukrainian prosecutor at the time, Yuriy Lutsenko. This is when, Giuliani says, his investigation into the Bidens began.

A man named Lev Parnas has said he attended the meeting with Lutsenko and arranged the call with Shokin. Parnas told NPR he attended at least two meetings Giuliani had with Lutsenko. Parnas and an associate, who also worked with Giuliani, are later arrested and charged with violating campaign finance law in a separate matter.

March 31: The first round of presidential elections take place in Ukraine. Zelenskiy, a comedian who once played a president on television, comes out ahead of incumbent President Petro Poroshenko. The race goes to a runoff.

April 7: In an interview on Fox News, Giuliani, unprompted, brings up a Biden-Ukraine connection. He says that while investigating the origin of the Russia investigation, “some people” told him “the story about [gas company] Burisma and Biden’s son.” Giuliani suggests that as vice president, Biden pressed to remove Shokin because he was investigating Burisma, a Ukrainian gas company that had Biden’s son Hunter on its board for several years. There is no evidence to support this claim.

April 21: Zelenskiy is elected president of Ukraine and Trump calls to congratulate him. A White House readout of the call says Trump “expressed his commitment to work together with President-elect Zelenskyy and the Ukrainian people to implement reforms that strengthen democracy, increase prosperity, and root out corruption.”

April 25: Trump calls in to Sean Hannity’s TV show and says he has heard rumors about Ukrainian “collusion.” He tells the Fox News host he expects Attorney General Bill Barr to look into it. “I would imagine he would want to see this,” Trump says.

May 6: Marie Yovanovitch, the U.S. Ambassador to Ukraine and an Obama appointee, ends her assignment in Kyiv. According to the whistleblower complaint filed against Trump, she had been “suddenly recalled” to the U.S. by senior State Department officials a week earlier.

Giuliani later says in an interview that she was removed “because she was part of the efforts against the President.” Yovanovitch tells Congress that she learned from the deputy secretary of state “there had been a concerted campaign against me, and that the Department had been under pressure from the President to remove me since the Summer of 2018,” according to prepared remarks reported by multiple outlets.

May 9: Giuliani tells The New York Times he will travel to Ukraine “in the coming days” to push for investigations that could help Trump. Giuliani says he hopes to meet with President-elect Zelenskiy to push for inquiries into the origins of the Russia investigation and the Bidens’ involvement with Burisma.

“We’re not meddling in an election, we’re meddling in an investigation, which we have a right to do,” Giuliani tells the Times.

“There’s nothing illegal about it,” he says. “Somebody could say it’s improper. And this isn’t foreign policy — I’m asking them to do an investigation that they’re doing already and that other people are telling them to stop. And I’m going to give them reasons why they shouldn’t stop it because that information will be very, very helpful to my client and may turn out to be helpful to my government.”

Among the members of Congress criticizing Biden, Tulsi Gabbard voted present to impeach Trump on his related extortion attempt; virtually all Republicans voted not to impeach Trump, including Biden critics Paul Gosar and Scott Perry. Of Republican Senators, just Mitt Romney voted to convict the President.

Trump was not serious about Ukraine. He viewed it as nothing more than a political football. Almost his entire party backed him in that effort.

And his former attorney, wailing on Twitter about the ‘CLEAR AND PRESENT DANGER” posed by “mentally deteriorating [men], who [were] of limited intelligence even before [] dementia” remains under criminal investigation as an unregistered agent of Russian-backed Ukrainians for his role in politicizing Ukraine.

Judge Mehta Observes that Roger Stone’s Role on January 6 “May Prove Significant in Discovery”

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Bennie Thompson filed his original lawsuit against Donald Trump on February 16, 2021. He amended it on April 7, 2021 to account for the legal dissolution of the Proud Boys, to add plaintiffs, and to add more details.

That means the allegations addressed in Judge Amit Mehta’s order rejecting Trump’s motion to dismiss are over ten months old and entirely predate the foundation of the January 6 Select Committee. The amended complaint was filed just days after DOJ arrested Joe Biggs’ co-travelers (providing the first documentary visibility on his second breach of the building) and similarly shortly after the first Oath Keepers superseding indictment to incorporate the Grand Theft Golf Cart chase by those who had been at the Willard the morning of the attack. In other words, the allegations addressed in Friday’s opinion were laid out an eternity ago in our understanding of the insurrection.

As Trump described it in his response to the amendment complaint, the only new things added pertained to Roger Stone and a public report that the FBI had found communications between a Trump associate and the Proud Boys.

The Amended Complaint added little in the way of additional material allegations. In paragraphs 70 and 71, Plaintiffs cryptically claim that someone associated with the White House communicated with the Proud Boys, without specifying who. They also try guilt by association. They claim to show a conspiracy to incite the January 6 riot by suggesting that at the “end of December” President Trump communicated with Roger Stone, who they then allege also communicated with members of the Proud Boys. Am. Compl. ¶ 71. Of course, they do not allege what conspiratorial statements were supposedly exchanged between any of the parties, other than to say that Mr. Stone met with Mr. Trump to ensure he “continues as our president.” Plaintiffs incredibly and without any detail also claim that Mr. Trump “knew” of the planning of the violence at the U.S. Capitol because of statements by supporters found on the dark corners of the Internet, seeking to implausibly impute his awareness of those statements. Id. at ¶¶ 66, 56-62.

Here’s that language from the amended complaint.

70. The White House was also in contact with the Proud Boys. An FBI review of phone records showed that, in the days leading up to the rally, a person associated with the Trump White House communicated with a member of the Proud Boys by phone.

71. At the same time, Defendant Trump was in contact with long-time associate Roger Stone, who was in contact with both the Proud Boys and the Oath Keepers. Mr. Stone posted on the social media website Parler that, at the end of December, he met with Defendant Trump to “ensure that Donald Trump continues as our president.” Proud Boys leader Enrique Tarrio confirmed that he called Roger Stone in early January. Members of the Oath Keepers agreed to serve as Mr. Stone’s security detail during the January 6 protests.

Judge Mehta, of course, has had front row seats as DOJ has continued to supersede the Oath Keeper indictments. That’s why his treatment of this exchange bears close notice.

The President also dismisses two allegations as weak and speculative that purport to tie him to the Proud Boys and the Oath Keepers. The court relies on neither at this juncture but thinks one may prove significant in discovery. The first is an allegation that “a person associated with the Trump White House communicated with a member of the Proud Boys by phone.” Thompson Compl. ¶ 70. The court agrees that this is a speculative allegation and has not considered it. The other concerns the President’s confidant, Roger Stone. Stone posted on Parler in late December that he had met with the President “to ensure that Donald Trump continues as our president.” Shortly thereafter, Stone spoke with Tarrio, and later he used the Oath Keepers as his security detail for the January 6 Rally. The court does not rely on these allegations to establish the President’s knowledge of the Proud Boys or the Oath Keepers. Other alleged facts make that inference plausible. That said, Stone’s connections to both the President and these groups in the days leading up to January 6th is a well-pleaded fact. Discovery might prove that connection to be an important one.

He’s not relying on either of these allegations, and doesn’t think much of the first one.

I have always suspected that was a reference to Rudy Giuliani, who posted then immediately deleted and reposted newly-cropped communications with Proud Boy affiliate James Sullivan a week after the riot. In it, Sullivan proposed blaming the entire riot on his brother John. But Sullivan also spoke of at least five people who had participated in the riot (an “agent,” three Utahns, and Kash Kelly).

Kash Kelly remains charged by complaint over 13 months after his arrest. And other judges (Emmet Sullivan for John Sullivan, and possibly Randolph Moss for the most likely Utahns) are presiding over the cases in which this exchange might have shown up in some manner.

So unless Landon Copeland (also from Utah) is one of Sullivan’s Utahns, then Mehta would have little separate means to understand this reference, if it is even the one that came up in FBI toll records.

But even the public record of the Oath Keeper case has shown how close the ties between Stone and the Oath Keepers are, both in the weeks leading up to the insurrection in Florida and in the repeated calls from the Willard Hotel that morning. Indeed, Mehta may be persuaded of the plausibility of a conspiracy between the Oath Keepers and Proud Boys because of what he has seen of Stone’s role linked to the two, including in Kelly Meggs’ claims to have brokered a Florida-based alliance in December 2020.

And Mehta has almost certainly seen more of Stone’s role than what can be read through the redactions, particularly now that DOJ has spun off the part of the Oath Keeper conspiracy that most closely implicates Stone’s actions that day.

Judge Mehta didn’t rely on what he may know of Stone’s role in this conspiracy. But as the person with more familiarity about what the evidence is than anyone else, he suggested there’s a there there.

Update: Fixed “Utahan,” which is a misspelling I adopted from Sullivan before and which as someone who loved Utah when I lived there I really regret.

Related Posts

How Judge Amit Mehta Argued It Plausible that Trump Conspired with Two Militias

Judge Mehta’s Ruling that Donald Trump May Have Aided and Abetted Assaults on Cops Is More Important Than His Conspiracy Decision

Judge Mehta’s Ruling that Donald Trump May Have Aided and Abetted Assaults on Cops Is More Important Than His Conspiracy Decision

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As I laid out here, Judge Amit Mehta rejected Trump’s motion to dismiss three lawsuits against him last week. Click through for my explanation of why it matters that Judge Mehta — among the most respected of DC judges — issued this decision.

But there’s another reason why it matters that Mehta issued this ruling.

I was, frankly, unsurprised that Mehta ruled for plaintiffs on their claims that Trump entered into a conspiracy with two militias to attempt to prevent the vote certification. I’ve been laying out all the evidence Trump could be included in a conspiracy with the militias to obstruct the vote count for some time. And on a motion to dismiss, the judge must  assume all the alleged facts were true and only tests those claims for plausibility. Mehta didn’t rule that Trump did so; he ruled that plaintiffs will have a chance to make that case.

I was far more surprised that Judge Mehta also ruled it plausible that Trump aided and abetted the actual and threatened physical assaults committed by the rioters. Here’s how Eric Swalwell’s suit argued that Trump abetted the threatened attacks on Members of Congress, including Speaker Pelosi:

240. Many individuals in the mob either carried weapons or used objects such as poles and fire extinguishers as weapons before and after entering the building. Some individuals in the mob also carried restraints such as plastic handcuffs and rope.

241. The mob also unlawfully and intentionally entered non-public areas of the Capitol building, including the members’ private offices. Members of the mob damaged and vandalized personal and public property and stole documents, electronics, and other items from some members’ offices.

242. As the mob made its way through the Capitol looking for Members, participants threatened to kill numerous individuals, including, but not limited to, Vice President Mike Pence and Speaker of the House Nancy Pelosi. The mob terrorized and injured scores of people inside and outside of the Capitol, including the Plaintiff.

[snip]

248. Before directing the mob to the Capitol, the Defendants instructed them to “fight like hell,” “start taking down names and kicking ass,” and that it was time for “trial by combat.”

249. The Defendants intended these words to be taken literally.

250. For several hours after the mob had stormed the Capitol, the Defendants refused to communicate anything to the mob that might discourage continued unlawful action.

251. The Defendants knowingly and substantially assisted in the assault that was perpetrated upon the Plaintiff. The Defendants riled up the crowd and directed and encouraged the mob to attack the Capitol and seek out members of Congress and assault them.

Here’s how Capitol Police officer Sidney Hemby, described being assaulted while trying to protect the East doors of the Capitol in his lawsuit with James Blassingame.

63. Officer Hemby ran to the East Front stairs to try to stop the crowd, but it was too late, and the crowd was too large and aggressive.

64. The crowd chased him and his fellow officers to the top of the stairs and forced them against the doors.

65. At 1:49 p.m. 1 , after Trump had returned to the White House, and was reportedly watching on TV as events were unfolding at the Capitol, he tweeted out the entirety of his speech:

66. At 1:59 p.m., insurrectionists pushed Capitol Police to the top of the east Capitol steps, and by 2:10 p.m., insurrectionists began attempting to break into the building through windows on the west side.

67. Officer Hemby was crushed against the doors on the east side trying to hold the insurrectionists back. Over and over, he tried to tell the insurrectionists that the doors opened outward and that pressing him into the door would do no good.

68. But the insurrectionists continued to scream, “Fight for Trump,” “Stop the Steal,” and various other slogans, as they struck him with their fists and whatever they had in their hands. Things were being thrown at him, and he was sprayed with chemicals that irritated his eyes, skin, and throat.

Judge Mehta rejected Trump’s bid to dismiss those arguments.

Next, the court takes up Plaintiffs’ common law assault claims based on an aiding-andabetting theory of liability. Swalwell Compl. ¶¶ 237–252; Blassingame Compl. ¶¶ 163–168. President Trump’s motion in Swalwell does not separately address the aiding-and-abetting-assault claim, but he extensively addresses it in his Blassingame motion. See generally Swalwell Trump Mot.; Blassingame Trump Mot. at 33–40. The court will exercise its discretion and consider those arguments in both cases.39

Halberstam v. Welch remains the high-water mark of the D.C. Circuit’s explanation of aiding-and-abetting liability. The court there articulated two particular principles pertinent to this case. It observed that “the fact of encouragement was enough to create joint liability” under an aiding-and-abetting theory, but “[m]ere presence . . . would not be sufficient.” 705 F.2d at 481. It also said that “[s]uggestive words may also be enough to create joint liability when they plant the seeds of action and are spoken by a person in an apparent position of authority.” Id. at 481–82. A “position of authority” gives a “suggestion extra weight.” Id. at 482.

Applying those principles here, Plaintiffs have plausibly pleaded a common law claim of assault based on an aiding-and-abetting theory of liability. A focus just on the January 6 Rally Speech—without discounting Plaintiffs’ other allegations—gets Plaintiffs there at this stage. President Trump’s January 6 Speech is alleged to have included “suggestive words” that “plant[ed] the seeds of action” and were “spoken by a person in an apparent position of authority.” He was not “merely present.” Additionally, Plaintiffs have plausibly established that had the President not urged rally-goers to march to the Capitol, an assault on the Capitol building would not have occurred, at least not on the scale that it did. That is enough to make out a theory of aiding-and-abetting liability at the pleadings stage.

39 President Trump contends for the first time in his Swalwell reply brief that aiding and abetting a tort is not a recognized cause of action under District of Columbia law. Swalwell Trump Reply at 25–26. That argument comes too late, and the court declines to consider it.

Again, this is just the first step. It will be appealed. This is not a final ruling. But Mehta’s decision means that both sets of plaintiffs may get a chance to hold Trump accountable for the violence attempted or committed by people who responded to the President’s command to, “fight like hell.”

This part of Mehta’s ruling is far more important than the conspiracy side. To understand why, consider some of the cases over which Judge Mehta is presiding, which would be what he might have in mind when he thinks of what it means that Trump may have abetted assaults.

Landon Copeland

Landon Copeland is an Iraq War veteran with PTSD that has contributed to some epic meltdowns in court hearings. He traveled to DC on January 6 from the Four Corners region of Utah, taking a full week off work. He said he made the trip, he told the FBI, because President Trump ordered him to be there.

The defendant said that he traveled to the Capitol in part because former President Trump ordered him and others to be there.

Copeland went to Trump’s rally, then went with the crowd to the Capitol. He’s a really big guy and is accused of several assaults at the first barricades.

At the front of this crowd, the defendant shouted at the officers; he was visibly angry. Shortly thereafter, another rioter approached a police officer, began shouting at the officer, and put his hands on or around the officer’s neck. Copeland pushed that other rioter, from behind, into the officer, causing that officer to fall to the ground. After this, other officers stepped forward in an apparent attempt to protect the fallen officer. Copeland grappled with and pushed them, grabbing onto one officer’s riot shield, another officer’s jacket, and then pushing against the riot shields of two other officers.

Thomas Webster

Thomas Webster is a former Marine and retired NYPD cop who traveled to DC from New York with a revolver, a bullet-proof vest, and some MREs. While he claims he left the revolver in his hotel room, he wore his bullet proof vest to the rally at the Ellipse, then walked to the Capitol, carrying a Marine flag. After verbally attacking one of the cops at a barricade, he pushed over it, wrestled the cop to the ground, and grabbed his helmet, seemingly (though not in fact) gouging the cop’s eyes.

Shane Woods

Shane Woods drove to DC from Illinois on January 5. Like the others, Woods went to the Trump rally and then walked with the crowd to the Capitol.  In some of the early fighting at the west side of the Capitol he is accused of tripping a female cop.

Then, a few hours later, Woods was involved in a group attack on some media, allegedly tackling a cameraman in similar fashion to the attack on the cop.

Peter Schwartz

Peter Schwartz is a violent felon who traveled to DC while out on release from prison because of COVID. Schwartz is accused (along with a woman I believe to be his partner) of involvement in a range of assaults on cops protecting the Lower West Terrace and the Tunnel on January 6, including stealing mace from and then using it on cops and throwing a chair.

On January 7 he described his actions as being part of “What happened yesterday was the opening of a war. I was there and whether people will acknowledge it or not we are now at war.”

The Oath Keepers

As I’ve noted repeatedly, Mehta is also presiding over the Oath Keepers, who all entered the East door and therefore would be among those kitted out people who violently pushed past Sidney Hemby. A few of the Oath Keepers are individually accused of assault. For example, video shows veteran Joshua James fighting with a cop in the Rotunda, screaming, “Get out! … This is my fucking Capitol!”

But members of the Stack who pushed past Hemby as he was protecting that door are suspected of far more serious plans for assault. As Mehta noted in ruling for the pre-trial detention of Stewart Rhodes on Friday — the same day he issued this ruling — once the Stack broke into the Capitol, they split up, with part of the group trying to make it to the Senate and the other part going to Nancy Pelosi’s office.

The latter is of particular concern because, on Election Day, Kelly Meggs told his wife and kid he was “gonna go on a killing spree … Pelosi first.”

Then after he had gone to her office, he told someone (probably his kid again), that “we looked for[] her.”

Judge Mehta has good reason to suspect (and likely knows far more about how serious this plot was) that the Oath Keepers, after busting into the Capitol past Hemby, took steps to hunt down Nancy Pelosi, and possibly someone in the Senate, like Pence.

When Judge Mehta says he thinks it is plausible that Donald Trump abetted assaults and threatened assaults at the Capitol, he’s not speaking abstractly. Judge Mehta has a very specific understanding of the kinds of assaults that happened that day. Those were  violent attacks on cops — several allegedly committed by military veterans and one by a retired NYPD cop. Those include a gratuitous attack on the media. It includes an attempt to hunt down the Speaker of the House.

With this ruling, Trump may be on the hook for such assaults civilly.

But given that the judge presiding over some spectacularly violent assaults that day has judged that Trump’s actions may rise to an aid and abet standard, it may make DOJ more seriously consider Trump’s exposure for such acts criminally.

Related Post

How Judge Amit Mehta Argued It Plausible that Trump Conspired with Two Militias

Judge Mehta Observes that Roger Stone’s Role on January 6 “May Prove Significant in Discovery”

John Durham Accuses One of His Key Fact Witnesses — Sergei Millian’s Twitter Account — of “Misinterpret[ing] Facts”

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As I documented the other day, John Durham responded to the uproar over his conflicts filing stunt by claiming to have had nothing at all to do with the “third parties” who “overstated, understated, or otherwise misinterpreted facts contained in the Government’s Motion.”

If third parties or members of the media have overstated, understated, or otherwise misinterpreted facts contained in the Government’s Motion, that does not in any way undermine the valid reasons for the Government’s inclusion of this information.

The claim that the uproar was created by “third parties” is so obviously false it raises conflict problems for Durham himself.

Durham falsely claims those pushing lies are “third parties” to his investigation

As I laid out, one of the key perpetrators of the false claims — including the false claims (1) that Hillary paid Rodney Joffe, (2) that Joffe had “infiltrated” the White House, and (3) Joffe had done so when Trump was President — was Kash Patel, the originator of this entire line of inquiry in December 2017, and someone who for years had means to learn that those claims were false.

John Ratcliffe, whom Durham was meeting rather than interviewing Hillary staffers who could substantiate or debunk his accusations that Michael Sussmann was coordinating with the campaign, made these unsubstantiated claims in a TV appearance earlier this week:

  • There was a “Hillary Clinton campaign plan to falsely accuse Donald Trump of collusion with Russia”
  • Rodney Joffe used DNS data “for an unlawful purpose”
  • Sussmann “pitched” information “to the FBI as evidence of Trump-Russia connections that simply weren’t true and that the lawyer, Michael Sussmann, and the tech executive knew not to be true”

Donald Trump, who personally nominated John Durham as US Attorney and whose demands for criminal investigations led to Durham’s appointment as Special Counsel, asserted that his “presidency [was] spied on by operatives paid by the Hillary Clinton campaign in an effort to develop a completely fabricated connection to Russia.”

These are not “third parties.” These are:

  • The originator of the allegations against Sussmann
  • A self-described repeat Durham witness
  • The man who nominated Durham to be US Attorney and, ultimately, was his boss for almost 3 years

But there’s actually another key player in the effort to magnify Durham’s conflicts filing stunt who is even more central to Durham’s work: One of his most important “witnesses,” Sergei Millian’s twitter account.

The pipeline from online conspiracy theorists through former investigators to the former President

Yesterday, Glenn Kessler attempted to trace how the filing became a propaganda tool. The timeline he laid out looks like this (these times are ET):

11:33PM: Filing hits PACER.

12:43AM: Whispers of Dementia screencaps the filing, noting Durham claimed “Sussmann is likely to be in an “adversarial posture” against Perkins Coie.”

9:24AM: emptywheel notes that Durham is criminalizing lying to the FBI about traffic involving Trump Tower, which Trump himself did at the time.

9:25AM: Hans Mahncke links and screencaps the filing and claims,

Rodney Joffe and his buddies at Georgia Tech monitored Trump’s internet traffic *while* he was President of the United States.

9:39AM: Kessler’s gap

9:45AM: emptywheel RTs Mahncke and notes that this is about cybersecurity.

10:25AM: Techno Foggy tweets that,

DNC/Perkins Coie allies – Rodney Joffe, et al. – Joffe et al, “exploited a sensitive US govt arrangement” to gather intel on the “Executive Office of the President of the U.S.” They spied on Trump.

11:11AM: House Judiciary GOP [so a Jim Jordan staffer] RTs Foggy’s tweet, claiming:

We knew they spied. But it was worse than we thought.

11:44AM: Techno Foggy tweets out his Substack with the claim,

Clinton allies used sensitive data from the Office of the President to push false Trump/Russia claims to the CIA

Why did they risked jail to link Trump to Russia?

Maybe because the origin of their fraud was the “Russian hack” of the DNC.

2:27PM: John Ratcliffe responds to House Judiciary tweet with claim, “And now you’re finding out why…,” thereby seemingly endorsing the “spying” claim, and linking the Durham release with his own cooperation with Durham’s inquiry.

3:24PM: Mark Meadows RT’s Foggy’s tweet, claiming,

They didn’t just spy on Donald Trump’s campaign.

They spied on Donald Trump as sitting President of the United States.

It was all even worse than we thought.

5:51PM: Center for Renewing America tweets out Kash Patel statement making numerous false claims.

6:47PM: Trump’s spox tweets out his claims of spying.

This timeline is damning enough: It shows how these false claims went from “sleuths” who spend much of their time spinning Durham’s conspiracy theories, through Techno Foggy (a self-described lawyer who has for years interacted openly with lawyers like Sidney Powell and Billy Barr’s spox Kerri Kupec), to Jim Jordan’s staffer to Ratcliffe to Mark Meadows to Kash Patel to Trump. Every single one of these current and former officials have played a central role in these investigations; none is a “third party.”

Sergei Millian’s twitter account calls it spying

But there’s a very key step in Kessler’s timeline that is missing. At 9:39AM (the time shown here is Irish time) — which I’ve marked above in red — Sergei Millian’s twitter account tweeted, “They were spying on the White House, folks!!.”

This claim was before Techno Foggy made the spying claim. The first person to have made the “spying” claim in this timeline, then, was Sergei Millian’s twitter account.

In fact, the next day, Millian’s twitter account insinuated to have started all this in the first place — that the twitter account “had a direct line into the White House” via which it “told them who was working against them.”

Thanks for identifying this phone call, Sergei, because Igor Danchenko will now have cause to demand details of it in discovery, which will mean, on top of the other unprecedented discovery challenges Durham has taken on in prosecuting Danchenko, he’s now going to have to get Trump records from the Archives. Michael Sussmann, too, likely now has cause to demand those records.

The Millian twitter account RT of Mahncke to belatedly explain the spying claim makes it clear it is an active participant in the “Sleuths Corner” that drives many of the false claims about Durham. In fact the Millian twitter account even advertises it on the twitter account.

Durham says his key witness “misrepresented the facts”

This all amounts to Durham himself discrediting one of his witnesses, perhaps fatally.

As I have noted, when John Durham charged Igor Danchenko with four counts of lying about believing that he had spoken to Sergei Millian back in July 2016, Durham didn’t actually claim to have obtained testimony from the human being named Sergei Millian. Durham did not appear to have required that Millian show up and make statements for which he could be legally held accountable.

Instead, Durham presented an unverified twitter account to the grand jury and based on that, claimed “Chamber President-1 has claimed in public statements and on social media that he never responded to DANCHEKNO’s [sic] emails, and that he and DANCHENKO never met or communicated.”

I refer to this entity as “Sergei Millian’s twitter account” to emphasize that there is not a scrap of evidence in the public record showing that Durham did anything to confirm that Millian, the person, even operates it exclusively. While I have no reason to doubt that he does, from a legal standpoint, Durham is at least publicly relying on nothing but an unverified account, something journalists have been loathe to do for years with Millian.

And this claim attributed to an unverified twitter account is a very important piece of evidence. There’s nothing else in the public record that shows Durham affirmatively ruled out that Danchenko and Millian really did have a phone call.

When I first realized how reckless that was, I though it impossible for Durham to have been that negligent. But we’ve since learned that he accused Sussmann of coordinating with Hillary’s staffers without ever first interviewing a single full-time staffer. So perhaps it is, in fact, true that Durham charged a man based off the unsubstantiated claims of a twitter account.

Danchenko appears to have obtained a pre-trial subpoena on February 8; I have wondered whether it was for the Millian twitter account. If so, the subpoena might well obtain the traffic of what has happened in recent days.

As it stands, though, Durham makes no claim to have anything else.

Just that twitter account.

And that twitter account is part of a pipeline that took Durham’s filing and made egregiously false claims about it. Durham is now on the record claiming that that twitter account “misinterpreted the facts.” But Danchenko will have good reason — and abundant proof, given the details of last week’s little propaganda explosion — to argue that Sergei Millian’s twitter account is willing to make false claims to create a scandal around the Durham investigation.

That shreds the credibility of the only claimed “witness” that the call never happened.

The Durham Investigation Has Lasted 50% Longer than the Mueller Investigation

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It seems like just days ago we were celebrating a big milestone in the life of the Durham investigation: the 1,000 day mark.

Time flies when you’re unethically making accusations designed to rile up the frothy base, because Durham hits another major milestone today.

Today makes day 1,011 for Durham. The Mueller investigation lasted 674 days, total. So as of today, John Durham has been investigation for 50% longer than the entire Mueller investigation he was hired to undermine.

I had to highlight the end date for Mueller because it gets lost when compared to the Durham timeline.

In 22 months, Mueller got convictions of Trump’s Coffee Boy, his National Security Advisor, his Campaign Manager and the Campaign Manager’s Deputy, Trump’s personal lawyer, as well as another American and the son-in-law of Alfa Bank Oligarch German Khan. On a referral, a second Konstantin Kilimnik partner, Sam Patten pled guilty. Mueller charged 25 Russian involved in attacks on the country, as well as Kilimnik himself in a conspiracy with Manafort (though not the conspiracy for trading campaign strategy for debt relief). With another eight months, DC’s US Attorney would win Roger Stone’s conviction. None of those things — not the George Papadopoulos guilty plea, not the guilty plea of Khan’s son-in-law Alex Van der Zwaan, and not Michael Cohen’s plea to covering up the communications he had (on Trump’s behalf) with the Kremlin — derives from either the Steele dossier or the Alfa-Bank anomalies.

In half again that time span, John Durham has won the guilty plea of Kevin Clinesmith (whose misconduct DOJ Inspector General Michael Horowitz found), charged Michael Sussmann for lying about coordinating with Hillary staffers he didn’t coordinate with, and charged Igor Danchenko for lies that Durham’s prosecutors created, at least in part, with cut-and-paste failures. All because he’s sure — and he’s going to keep going until he finds proof — that the abundant prosecutions Mueller obtained were the fruit of stuff that Durham is working hard to criminalize and not the criminal conduct that all those Trump flunkies but Stone admitted to.

With the addition of a new financial crimes prosecutor yesterday to the Michael Sussmann prosecution team, I feel like Durham is barely getting started. Why not double the length of time it Mueller took to investigate rather than avoid admitting you can’t substantiate any of your conspiracy theories?

Six Data Points about the CIA Dragnet

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Last week, Ron Wyden and Martin Heinrich released a declassified letter they wrote last April, describing a CIA bulk program that had not been fully briefed to the Intelligence Committees, which violated the spirit and understanding of efforts to shut down bulk collection.

This history demonstrates Congress’s clear intent, expressed over many years and through multiple pieces of legislation, to limit, and in some cases, prohibit the warrantless collection of Americans’ records, as well as the public’s intense interest in and support for these legislative efforts. And yet, throughout this period, the CIA has secretly conducted it own bulk program [redacted]. It has done so entirely outside the statutory framework that Congress and the public believe govern this collection, and without any of the judicial, congressional or even executive branch oversight that comes with FISA collection.

I’ve been hesitating writing about it. That’s true, because it’s not the least little surprise to me. I’ve written a series of pieces describing how the self-congratulatory pieces claiming legislation passed in the wake of Snowden’s leaks won’t do what they say. I pointed out some of what PCLOB was likely to find when they started this review.

Then there’s bullet 4, which suggests CIA and/or NSA are collecting “within the United States or from U.S. companies.”

With regards collection “within the US,” Mayer’s post is helpful here too, pointing to loopholes for wireless and satellite communication.

The law that results is quite counterintuitive. If a communication is carried by radio waves, and it’s one-end foreign, it falls under Executive Order 12333. If that same communication were carried by a wire, though, it would fall under FISA. (Specifically, the Section 702 upstream program.)

As for how this Executive Order 12333 authority might be used beyond satellite surveillance, I could only speculate. Perhaps intercepting cellphone calls to or from foreign embassies?12 Or along the national borders? At any rate, the FISA-free domestic wireless authority appears to be even broader than the Transit Authority.

As far as collection outside the US, this may simply be a reference to providers voluntarily providing data under 18 U.S.C. § 2511(2)(f), as we know at least some of the telecoms do.

I pointed out that a consideration of the risks of surveillance under EO 12333 to US persons had to consider CIA’s use of it (then got yelled at because I pointed out enormous blindspots in “expert” reports). I noted that when cautioning about the dragnet Donald Trump would wield, you had to consider EO 12333.

I mean, there’s been a whole lot of self-congratulation since Snowden. And it has all been just that, something to brag to donors about. Because EO 12333 was always out there, and it was always possible to do virtually all of what Snowden exposed in the Section 215 program via EO 12333.

Add that to the list of unpopular things I have said over the years that leads “experts” to prefer to ignore me.

So I assume this will be ignored like all those other warnings of precisely this moment.

Here’s where I would propose to go find the CIA dragnet.

CIA always wanted to restore its Stellar Wind component

First, remember there was a CIA component to Stellar Wind, the first dragnet set up for counterterrorism (which this program is). CIA had to do its own IG Report on Stellar Wind.

Remember that one of Bill Binney’s gripes about how NSA repurposed his surveillance was that they eliminated the encryption hiding US person identifiers, effectively making it easy to spy on US persons.

Now consider that on July 20, 2004, the CIA took the lead on pushing for the adoption of “supplemental procedures” allowing the analysis of US person metadata under EO 12333. July 20, 2004 was days after Jack Goldsmith, who had shut down parts of Stellar Wind, resigned, and the agencies immediately moved to start turning all the programs he had shut down (including both surveillance and torture) back on.

It took years to restore that access to US person data (I have a theory that Alberto Gonzales was fired because he refused to reauthorize it). But starting in 2007, expanding  in 2009 (at a time when the Section 215 program was under threat), and then fully implementing in 2011 (after NSA had to shut down the PRTT program knowing full well it violated John Bates upstream order), SPCMA was rolled out.This meant that, so long as data was collected via whatever means overseas, US person metadata could be included in the analysis.

The government has been preserving its ability to use 18 U.S.C. § 2511(2)(f)

Over a series of IG Reports written by Glenn Fine, I honed in a memo that David Barron (the OLC head who, under Obama, played a similar role as John Yoo did for George Bush) wrote seemingly authorizing using 18 U.S.C. § 2511(2)(f) to get “international” data from telecoms provided voluntarily. In 2013, David Kris confirmed that that had been happening.

In March 2021 — so before he wrote the letter just declassified but after he was briefed by PCLOB on the report on the CIA dragnet — the Congressional Research Service wrote a report on 18 U.S.C. § 2511(2)(f) for Senator Wyden. It describes how it works as an exception to FISA and other criminal laws.

Accordingly, Section 2511(2)(f) identifies two broad categories of government activities that are exempt from Title III, the SCA, the Pen Register statute, and section 705 of the Communications Act of 1934:27 (1) the “acquisition by the United States Government of foreign intelligence information from international or foreign communications”; and (2) “foreign intelligence activities conducted in accordance with otherwise applicable Federal law involving a foreign electronic communications system.” These two categories are further qualified so that the exception only applies if: (3) the acquisition or the foreign intelligence activity is not “electronic surveillance” as defined under FISA; and (4) an “exclusivity” clause states that ECPA, the SCA, and FISA shall be the exclusive means by which electronic surveillance and the interception of domestic wire, oral, and electronic communications may be conducted. Each of these clauses is discussed in more detail below.

It describes that some things don’t count as an “acquisition” under FISA, such as something obtained from a telephone instrument being used in the ordinary course of business.

Therefore, some intelligence activities that qualify as “acquisitions” for purposes of Section 2511(2)(f) may not qualify as “electronic surveillance” under FISA because the acquisition is not accomplished through an electronic, mechanical, or other surveillance device. Although FISA does not define this phrase, ECPA provides a definition of “electronic, mechanical, or other device” to mean “any device or apparatus which can be used to intercept a wire, oral, or electronic communication.”46 However, this definition expressly excludes “any telephone or telegraph instrument, equipment or facility, or any component thereof” that is “being used by a provider of wire or electronic communication service in the ordinary course of its business.”47

This is the kind of language that was used to treat bulk metadata as a mere business record under Section 215 after the government stopped relying exclusively on voluntary production. The bulk telephony data of all Americans was just a business record.

The report written for Ron Wyden during the same period he was writing the now unclassified letter also notes that “exclusivity” only applies to “domestic” communications, not stuff acquired overseas.

The exclusivity clause is first directed at interception of domestic communications, which would not appear to be affected by the previous disclaimers regarding acquisition of foreign and international communications or foreign intelligence activities directed at foreign electronic communications systems.

In other words, if telephone companies want to voluntarily give the records they otherwise keep to the IC for the purpose of foreign intelligence, it fits in this loophole. And given the realities of telecommunication, a huge percentage of “domestic” communications can be obtained overseas.

In 2013, NYT reported that AT&T was providing CIA call records

In 2013, as a bunch of different dragnets were being disclosed while everyone was looking exclusively at Section 215 and right after Kris had confirmed this application of 18 U.S.C. § 2511(2)(f),  Charlie Savage described that the CIA had its own dragnet based on telephone records purchased from AT&T.

The C.I.A. is paying AT&T more than $10 million a year to assist with overseas counterterrorism investigations by exploiting the company’s vast database of phone records, which includes Americans’ international calls, according to government officials.

The cooperation is conducted under a voluntary contract, not under subpoenas or court orders compelling the company to participate, according to the officials. The C.I.A. supplies phone numbers of overseas terrorism suspects, and AT&T searches its database and provides records of calls that may help identify foreign associates, the officials said. The company has a huge archive of data on phone calls, both foreign and domestic, that were handled by its network equipment, not just those of its own customers.

Legally, this dragnet would fit solidly in the 18 U.S.C. § 2511(2)(f) loophole.

Obama’s codification of EO 12333 in his final days

Insanely, Obama finished the process of reconstituting the Stellar Wind program in his final days. He did so, I’ve been told, in an effort to put guidelines in place (for example, Loretta Lynch adopted rules that you couldn’t use EO 12333 data for political purposes, as if that would restrain Donald Trump). But I emphasized then precisely what Wyden and Heinrich are emphasizing now. There’s no oversight.

Which brings us to whether the EO sharing procedures, as released, might bind Trump anymore than EO 12333 bound Bush in 2001.

In general, the sharing procedures are not even as stringent as other surveillance documents from the Obama Administration. The utter lack of any reasonable oversight is best embodied, in my opinion, by the oversight built into the procedures. A key cog in that oversight is the Department of National Intelligence’s Privacy and Civil Liberties Officer — long inhabited by a guy, Alex Joel, who had no problem with Stellar Wind. That role will lead reviews of the implementation of this data sharing. In addition to DNI’s PCLO, NSA’s PCLO will have a review role, along with the General Counsels of the agencies in question, and in some limited areas (such as Attorney Client communications), so will DOJ’s National Security Division head.

What the oversight of these new sharing procedures does not include is any statutorily independent position, someone independently confirmed by the Senate who can decide what to investigate on her own. Notably, there is not a single reference to Inspectors General in these procedures, even where other surveillance programs rely heavily on IGs for oversight.

There is abundant reason to believe that the PATRIOT Act phone and Internet dragnets violated the restrictions imposed by the FISA Court for years in part because NSA’s IG’s suggestions were ignored, and it wasn’t until, in 2009, the FISC mandated NSA’s IG review the Internet dragnet that NSA’s GC “discovered” that every single record ingested under the program violated FISC’s rules after having not discovered that fact in 25 previous spot checks. In the past, then, internal oversight of surveillance has primarily come when IGs had the independence to actually review the programs.

Of course, there won’t be any FISC review here, so it’s not even clear whether explicit IG oversight of the sharing would be enough, but it would be far more than what the procedures require.

I’d add that the Privacy and Civil Liberties Oversight Board, which provided key insight into the Section 215 and 702 programs, also has no role — except that PCLOB is for all intents and purposes defunct at this point, and there’s no reason to believe it’ll become operational under Trump.

I guess I was wrong about PCLOB. It did get reconstituted, and seven years after the EO 12333 review started we’re getting dribbles about what it found!

And in fact if this whole discussion didn’t make me crabby, I’d point out details from the PCLOB report that suggest things aren’t as bad as I thought they’d get in 2017, when this dragnet was handed over to Donald Trump.

So I’m not entirely a pessimist!

PCLOB only has authority over counterterrorism programs

The only problem with being proven wrong about PCLOB, however, is even though there were efforts to expand its mandate during the Trump years, those efforts failed.

It can only look at counterterrorism programs.

So there could be a parallel program used for counterintelligence (indeed, the sharing rules make it quite clear there’s a CI purpose for it), and we’d never get oversight over it. So Wyden and Heinrich should be pushing to get a full briefing on the CI version of this, because it’s there, I would bet you a lot of money.

Anyway, if you want to find the CIA dragnet, you can look at my warnings over the last 9 years (or Charlie Savage’s report on it from 2013). Or you can look at the loophole that 18 U.S.C. § 2511(2)(f) creates, Ron Wyden was exploring closely when he was writing this letter. Another place you might look is AT&T’s earnings statements.

John Durham Chose to Meet with John Ratcliffe Rather than Witnesses Necessary to His Investigation

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The evidence continues to mount that John Durham has done an epically incompetent investigation. I’ll pull together all that evidence later this week.

But one that I find hilarious and shocking can’t wait.

A piece written by the Fox News propagandist who played a key role in magnifying Kash Patel’s false claims over the weekend credulously continues the Murdoch effort to jack up the frothers by claiming that — rather than letting statutes of limitation expire with no charges — Durham has instead sped up his investigation. Fox also cites a single source claiming that Durham’s investigation has been run very professionally.

Special Counsel John Durham’s investigation has “accelerated,” and more people are “cooperating” and coming before the federal grand jury than has previously been reported, a source familiar with the probe told Fox News.

The source told Fox News Monday that Durham has run his investigation “very professionally,” and, unlike Special Counsel Robert Mueller’s investigation, his activities, and witness information and cooperation status are rarely, if ever, leaked.

Fox unsurprisingly doesn’t cite the part of a recent filing that makes it clear that April Lorenzen doesn’t think it has been run professionally.

In fact, this piece demonstrates that no one who would actually know whether Durham’s investigation has been conducted professionally would talk to them:

Durham’s Feb. 11 filing says that the “FBI General Counsel” will “likely be a central witness at trial.”

Baker did not immediately respond to Fox News’ request for comment.

Durham also provided grand jury testimony from “the above-referenced former FBI Assistant Director for Counterintelligence.” It is unclear to which official Durham is referring, but the title could be a reference to Bill Priestap, who served as the FBI’s assistant director for counterintelligence from 2015 to 2018.

Priestap did not immediately respond to Fox News’ request for comment.

Durham also lists “a former FBI Deputy Assistant Director for Counterintelligence.” It is unclear to whom Durham is referring.

[snip]

Strzok, who was part of the original FBI investigation into whether the Trump campaign was colluding with Russia to influence the 2016 presidential election, and later in Special Counsel Robert Mueller’s office, was fired from the FBI in 2018 after months of scrutiny regarding anti-Trump text messages exchanged with former FBI General Counsel Lisa Page. Their anti-Trump text messages were uncovered by the Justice Department inspector general.

Fox News was unable to reach Strzok for comment.

[snip]

Elias’ law firm, Perkins Coie, is the firm that the Democratic National Committee and the Clinton campaign funded the anti-Trump dossier through. The unverified dossier was authored by ex-British Intelligence agent Christopher Steele and commissioned by opposition research firm Fusion GPS.

A spokesperson for Elias did not immediately respond to Fox News’ request for comment. [my emphasis]

But somebody who would speak with Fox News is John Ratcliffe, the former AUSA who misrepresented his record to get elected but who nevertheless got to be Director of National Intelligence for a short period because Ric Grenell was so much more unsuited to hold the position.

As DNI, Ratcliffe made false claims about Chinese intervention in the election as a way to downplay Russia’s ongoing efforts to help Trump. Ratcliffe is currently spending a lot of time denying that his politicized views (and delay of) a mandated election interference report played some role in January 6 conspiracy theories.

We now know that Ratcliffe should be happy to make those denials to the January 6 Committee directly and under oath — because he has apparently been very happy to chat with Durham’s investigators.

Meanwhile, this week, sources told Fox News that former Director of National Intelligence John Ratcliffe met with Durham on multiple occasions and told him there was evidence in intelligence to support the indictments of “multiple people” in his investigation into the origins of the Trump-Russia probe.

Ratcliffe’s meetings with Durham are significant (beyond suggesting he may be the single source who told Fox News this isn’t a shitshow investigation) because, days before Billy Barr made Durham a Special Counsel, Ratcliffe unmasked Hillary’s identity in foreign intercepts and burned collection on Russian internal intelligence analysis in order to release a report trying to insinuate that Hillary’s fairly unsurprising decision to tie Trump to Russia is what led the FBI to investigate Trump’s ties to Russia.

At issue is a report from John Ratcliffe, sent on September 29, 2020, explaining that,

In late July 2016, U.S. intelligence agencies obtained insight into Russian intelligence analysis alleging that U.S. Presidential candidate Hillary Clinton had approved a campaign plan to stir up a scandal against U.S. Presidential candidate Donald Trump by tying him to Putin and the Russians’ hacking of the Democratic National Committee. The IC does not know the accuracy of this allegation or the extent to which the Russian intelligence analysis may reflect exaggeration or fabrication.

The following week, presumably in an attempt to dredge up some kind of attack out of an absurd attack, Ratcliffe released the underlying reports that, he claimed in his original report, show the following:

According to his handwritten notes, former Central Intelligence Agency Director Brennan subsequently briefed President Obama and other senior national security officials on the intelligence, including the “alleged approval by Hillary Clinton on July 26, 2016 of a proposal from one of her foreign policy advisors to vilify Donald Trump by stirring up a scandal claiming interference by Russian security services.”

On 07 September 2016, U.S. intelligence officials forward an investigative referral to FBI Director James Comey and Deputy Assistant Director of Counterintelligence Peter Strzok regarding “U.S. Presidential candidate Hillary Clinton’s approval of a plan concerning U.S. Presidential candidate Donald Trump and Russian hackers hampering U.S. elections as a means of distracting the public from her use of a private mail server.”

By releasing the exhibits, Ratcliffe should raise real questions about his credibility. For example, I’m not at all sure this date, from Brennan’s notes, reads July 26 and not July 28, a critical difference for a ton of reasons.

The FBI report has a slew of boilerplate making it clear how sensitive this report was (for obvious reasons; effectively it shows that the CIA had some kind of visibility into Russian intelligence analysis), which makes it clear how utterly unprecedented this desperate declassification is. Former CIA lawyer Brian Greer discusses that in this Lawfare post.

Plus, Ratcliffe left out an unbelievably important part of the report: the role of Guccifer 2.0 in the Russian report. Intelligence collected in late July 2016 claimed that Hillary was going to work her alleged smear around neither the GRU (which had already been identified as the perpetrator of the DNC hack) nor WikiLeaks (which had released the DNC files, to overt celebration by the Trump campaign), but Guccifer 2.0, who looked to be a minor cut-out in late July 2016 (when this intelligence was collected), but who looked a lot more important once Roger Stone’s overt and covert communications with Guccifer 2.0 became public weeks later.

The report suggests Hillary magically predicted that days after this plot, President Trump’s rat-fucker would start a year’s long campaign running interference for Guccifer 2.0. Not only did Hillary successfully go back and trick George Papadopoulos into drunkenly bragging about Russian dangles in May 2016, then, Hillary also instantaneously tricked Stone into writing propaganda for Guccifer 2.0 days later.

The report never made any sense. As I noted at the time, to be true, it would require Hillary to have gone back in time to trick the Coffee Boy to learn of and pass on Russia’s plans. Worse still, the claim suggested that Roger Stone — whom FBI has evidence was in contact with the Guccifer 2.0 persona starting in spring 2016 — started parroting the same line the Russians were pushing, even before the FBI learned of it. In other words, read in conjunction with the actual evidence about 2016, the intelligence report on Russia actually suggested that Stone’s ties to Russian intelligence may have been far more direct than imagined.

But John Ratcliffe was too stupid to understand that, and everything we’ve seen about John Durham suggests he is too. That Durham has been repeatedly interviewing Ratcliffe suggests he buys Ratcliffe’s theory that this should have undermined the very real reason to investigate Trump. It also explains why, on the Sussmann indictment, Durham was so squishy about the July 2016 timeline: he needs this report to be more important than the fact that Trump stood up in public and asked Russia to hack some more (which is what led the researchers to look twice at this anomalous data).

Nevertheless, it appears that rather than interviewing witnesses who would be necessary to vet the charges he filed against Michael Sussmann, such as a single Hillary staffer, Durham has, instead, just kept going back to serial liars like Ratcliffe to renew his own conspiracy theories.

Ah well, this disclosure gives Michael Sussmann cause to subpoena Ratcliffe, just like this stunt has given him reason to subpoena Kash Patel. It’s increasingly clear that these addle-brained Republicans fed these conspiracies into Durham’s investigation, and now are magnifying them as Durham’s investigation gets exposed as incompetent, without disclosing that they’re the ones who provided the conspiracy theories in the first place.

“Fill the Silence:” On Obstruction, Listen to DOJ and Merrick Garland

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Happy Valentines Day, the day on which TV lawyers proclaim that DOJ has let the statutes of limitation on Trump crimes expire, in this case, Trump’s request of Jim Comey that he let the Mike Flynn investigation go.

As I noted in a relevant post last week, Randall Eliason wrote a column last week demanding that the “Biden Justice Department [] issue a report on the Mueller report.”

Today, Ben Wittes and Quinta Juercic wrote a worthwhile piece positing five different possibilities for how Garland dealt with the Mueller Report. Those five are:

  1. “Garland considers the matter closed as a result of Barr’s having closed it.”
  2. DOJ “review[ed] Barr’s judgment but agrees with him on any of a number of legal positions that would make a prosecution of the former president nearly impossible.”
  3. DOJ “quietly reopened the matter, at least for paper review—that is, not for investigation but to review the conclusions based on the collected evidence—and agreed with Barr’s judgments on the facts.”
  4. DOJ “quietly began reviewing Barr’s judgment and is letting certain statutes of limitations lapse because it considers the later fact patterns more plausible criminal cases than the earlier ones.”
  5. “The Garland-run Justice Department never even considered the question of whether to, well, consider the question.”

It’s a worthwhile piece because it gets inside the brain of a DOJ institutionalist and attempts to game out how they might think.

But their discussion is absolutely silent about several pieces of public evidence showing Garland’s DOJ taking action, even while demanding that Garland, himself, “fill the silence.”

That is, they make the mistake of claiming DOJ has been entirely silent. It has not been. They simply haven’t listened to what DOJ has already said.

“The matter” was not closed as of November 2020

Jurecic and Wittes treat “this matter” as a self-evident whole, without defining what they mean by it. I assume when they use the term, “this matter,” they’re referring to Trump’s obstructive actions described in the second Volume of the Mueller Report.

Such shorthand is why, in my own post, I pointed out that most people engaging in this discussion (and I include Jurecic and Wittes in this group), account for the fact not all of Trump’s criminal exposure was in the second Volume. Materials unsealed in September 2020, for example, confirm that DOJ continued to investigate Trump for a big infusion of cash from an Egyptian bank in September 2016 until that summer (CNN’s reporting on it confirmed that timing).

A footnote unsealed (and therefore buried and still all-but unreported) the day before the 2020 election revealed that the investigation into whether Roger Stone conspired with Russia continued after Mueller shut down. Redactions that (in an earlier release) were identified as relating to the Stone matter treated that matter as an ongoing investigation in November 2020.

Similarly, in October 2020, DOJ treated the investigation into a pardon dangle for Julian Assange as an ongoing investigation. In fact, one of the issues that Lawfare treats as exclusively a matter of obstruction –Trump’s direction to Corey Lewandowski to order Jeff Sessions to shut down the entire Russian investigation — likely relates closely to the pardon dangle to Assange, because it came days after Stone told Assange he was intervening with the highest level of government to alleviate Assange’s woes.

We don’t know how many of the ten referrals still redacted in November 2020 remain ongoing; when DOJ released information to Jason Leopold last week, they just chose to release the four pages covered by a DC Circuit order and not a full reissued report. But we do know that “the matter” of the Mueller investigation was not closed as recently as November 2020.

DOJ IG was investigating follow-on obstruction

Both before Trump was ousted by voters and since, reports confirmed that DOJ’s Inspector General was investigating things that should be treated as follow-on obstruction, most explicitly Billy Barr’s efforts to undercut the Roger Stone prosecution but also Barr’s preferential treatment of Paul Manafort as compared to Michael Cohen (the latter will be part of Michael Horowitz’s review of BOP COVID response). Given DOJ IG’s past work, it’s not clear that this will be very critical of Barr’s own role.

One way or another, though, we have weeks-old confirmation that some of it remains under review. Depending on what DOJ IG finds, it’s possible (though unlikely) that might provide predicate to reopen past decisions.

But such a review also means that, because DOJ IG reviews add years to any investigative process, there will be a significant delay before we hear about such matters.

Merrick Garland has told you what he thinks about the OLC memo on prosecuting a President (and, to a lesser extent, OLC memos generally)

Two of Lawfare’s possibilities, especially the second, rely on a deference to OLC, including the declination memo that Amy Berman Jackson partially unsealed (and about which further unsealing the DC Circuit is currently considering).

We know that Garland’s DOJ will defer to most previous OLC memos, in part because his DOJ did so in fighting further unsealing of this memo. But we know even more about what Garland thinks of the memo prohibiting charging a president from an exchange on the topic Garland had with Eric Swalwell in October.

Garland: Well, Office of Legal Counsel memoranda, particularly when they’ve been reviewed and affirmed by Attorneys General and Assistant Attorneys General of both parties, it’s extremely rare to reverse them, and we have the same kind of respect for our precedents as the courts do. I think it’s also would not normally be under consideration unless there was an actual issue arising and I’m not aware of that issue arising now. So I don’t want to make a commitment on this question.

Swalwell: I don’t want to talk about any specific case but, just, in general, should a former President’s suspected crimes, once they’re out of office, be investigated by the Department of Justice?

Garland: Again, without, I don’t want to make any discussion about any particular former President or anything else. The memorandum that you’re talking about is limited to acts while the person was in office, and that’s all I can say.

Swalwell: And should that decision be made only after an investigation takes place before deciding beforehand a general principle of we’re not going to investigate a former President at all? Would you agree that if there are facts, those should be looked at?

Garland: Again, you’re pushing me very close to a line that I do not intend to cross. We always look at the facts and we always look at the law in any matter before making a determination.

In the exchange, Garland makes quite clear that, “it’s extremely rare to reverse” OLC memos because, “we have the same kind of respect for our precedents as the courts do.” Garland also explained that memo and any others (including Barr’s declination memo), “would not normally be under consideration unless there was an actual issue arising and I’m not aware of that issue arising now.”

One reason the memo is not at issue right now is because, “The memorandum that you’re talking about is limited to acts while the person was in office.” But as has often been ignored (though I pointed it out last month), the most recent known version of an OLC memo prohibiting the indictment of a sitting president is significantly premised on the constitutionality of a President being prosecuted after he leaves office even if he was acquitted by the Senate for the same conduct in an impeachment trial.

Randolph Moss, serving as Assistant Attorney General for OLC in 2000, famously wrote the following:

Our view remains that a sitting President is constitutionally immune from indictment and criminal prosecution.

Less famously, however, the first 11 pages of that more famous memo rely on this earlier OLC memo from Moss:

We conclude that the Constitution permits a former President to be criminally prosecuted for the same offenses for which he was impeached by the House and acquitted by the Senate while in office.

By stating that those odious OLC memos remain valid — that is, by deferring to OLC precedent — Garland was in the same breath saying that a former President can be indicted, including for things he was acquitted of in the Senate.

Obviously, Mueller’s findings never made it to the Senate. But Trump’s attempt to coerce Ukraine did and Trump’s attempted coup did.

There are four relevant investigations that tell you how Garland’s DOJ has approached this

In their piece and podcast, Jurecic and Wittes speak as if what Garland would do is entirely hypothetical, as if we don’t know what DOJ would consider palatable regarding earlier criminal exposure.

Except we do know, a bit, because four of the eight investigations into Trump flunkies that have been publicly confirmed provide some insight. For example:

  • Tom Barrack: Barrack confirmed in a recent filing what prior reporting had laid out: this investigation arose out of the Mueller investigation. “As early as December 2017, Mr. Barrack voluntarily produced documents and met with prosecutors in the Special Counsel’s Office investigation, which was led by Robert Mueller and included prosecutors from the Eastern District of New York.” It’s possible it was the first of those ten referrals that remained sealed in November 2020. If it was, it is an indication DOJ would pursue a prosecution arising out of the Mueller investigation that was substantially complete before Trump left, though even in that case it took four months after Garland was sworn in.
  • Erik Prince: It’s not clear whether the investigation into Erik Prince that Billy Barr shut down in 2019-2020 arose out of the Mueller investigation (though it is clear that any Mueller investigation into Prince had been closed by September 2020). I first alluded to a renewed investigation into Prince in this post, and NYT has since publicly confirmed it. I’m no more certain about the scope of the renewed investigation than the NYT, but I do know it is in a different District and it does overlap with the prior investigation, at least somewhat. That doesn’t tell you what DOJ would require to reopen a closed Mueller investigation, but it does show that Lisa Monaco would permit a prior, closed investigation to be reopened, perhaps with a new hook or newly acquired evidence.
  • Rudy Giuliani: The confirmed investigation into Rudy pertains to his Ukraine influence-peddling with a scope from May 2018 through November 2019. As such, except insofar as those actions were a continuation of efforts Paul Manafort had started in 2016, they say nothing about how Garland would treat a continuing Mueller investigation. But we do know one utterly critical fact and another key detail: First, the warrants to seize Rudy’s phones were approved on Monaco’s first day in office. That’s a pretty compelling piece of proof that Garland’s DOJ is not going to shy away from Trump’s closest flunkies. Significantly, SDNY successfully fought to get a privilege waiver spanning from January 1, 2018 (so before Rudy started Trump obstruct the Mueller investigation) through the date of seizure, April 28, 2021 (so through the attempted coup). This tells you that Garland’s DOJ could investigate Rudy for any of his suspected criminal actions, and no one would know about it.
  • Robert Costello: Costello is the lawyer through whom, the Mueller Report describes, Rudy was dangling a pardon for Michael Cohen for back in April 2018 (so within the scope of the privilege review). Currently, he is both Rudy’s lawyer overseeing that privilege review and Steve Bannon’s lawyer. After getting Bannon out of his Build the Wall fraud indictment with a pardon (sound familiar?), Costello helped Bannon walk into a contempt indictment based off non-cooperation with the January 6 investigation. All that background establishes that Costello is just tangential to the Mueller Report (though where he appears, he appears as part of the efforts to obstruct the investigation). But the details of DOJ’s seizure of Costello’s toll records after he made some contradictory claims in FBI interviews on the Bannon contempt case are worth examining closely. That’s because DOJ’s interest in the toll records cannot pertain solely to the January 6 subpoena to Bannon; the scope of the seizure not only predates the subpoena, but predates the establishment of the committee entirely (and happens to cover the entirety of the privilege review Costello oversaw). It’s tough to know what to make of this, but it is indication, like the approval of warrants targeting Rudy, that Garland’s DOJ will take fairly aggressive action pursuing obstruction and other crimes.

Trump is likely on the hook for other obstructive actions

The Lawfare piece claims that, aside from the pardons of Manafort, Stone, and Flynn, there’s no new evidence pertaining to Mueller-related obstruction (and other crimes).

And it’s not like new evidence has emerged since Mueller issued his reports—save the 2020 pardons of Manafort, Stone and Flynn.

But that’s not true. On top of whatever evidence DC USAO obtained on Stone after Mueller shut down (one of which was Andrew Miller’s long-awaited testimony), the government appears to have obtained more evidence on the other example of direct conspiracy with Russia. In the years since Mueller finished, the government has apparently developed new certainty about two details Mueller expressed uncertainty about: Konstantin Kilimnik is a “known Russian Intelligence Services agent,” and he, “provided the Russian Intelligence Services with sensitive information on polling and campaign strategy” in 2016. That suggests DOJ obtained new evidence (and may be why FBI put a $250,000 reward out for Kilimnik’s arrest in summer 2020). Whatever new details are behind this increased certainty, it could change DOJ’s understanding of Manafort’s actions as well. Add in the fact that Treasury accuses Kilimnik of continuing such information operations into the 2020 election — when Rudy was the pivot point — and Trump’s three big scandals may be converging.

But there may well be other obstructive acts, pertaining to the Mueller crimes, as well. Amid all the discussion of Trump’s destruction or removal of classified Presidential Records when he left the White House, for example, there has been little consideration about whether any of those documents pertain to Mueller or the other two investigations Trump obstructed. The January 6 Commission has already confirmed, for example, that some of the Trump documents they obtained were ripped up, and since the investigation into January 6 started immediately, it is highly likely the attempted document destruction happened while the investigation was pending. CNN’s most recent update on Trump’s stand-off with the Archives (in which someone who sounds like Impeachment One Defense Attorney Pat Philbin refused to turn over a document NARA knew to come looking for) is consistent with obstruction, possibly tied to the original Perfect Transcript.

None of this is proof of discrete new evidence on obstruction. Rather, it looks more like the never-ending wave of obstruction all runs together, with the pardons for Stone and Flynn (either, like Stone, known to be under investigation or closely tied to someone, Sidney Powell, known to be)  linking the obstruction of Mueller with the implementation of the coup attempt.

I can’t explain what, precisely, Garland’s DOJ is doing with the Mueller Report (besides prosecuting Trump’s top donor as a foreign agent on a referral from it). But it is simply false that DOJ has been silent about it.

Where DOJ has been speaking, however, is in active dockets and not in a three year old report.

Kash Patel Knew, and Did Nothing, about the Latest Durham-Related Frenzy

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As predicted, the latest Durham filing has jacked up the frothy right. It even led the Former President to claim these actions should be “punishable by death.”

But the oddest statement came from “Former Chief Investigator for Russia Gate [sic]” and current key witness to an attempted coup, Kash Patel, sent out by the fake Think Tank that hosts some of the former Trumpsters most instrumental in covering up for Trump corruption.

Taken literally (which one should not do because it is riddled with false claims), the statement is a confession by Kash that he knew of what others are calling “spying” on Trump and did nothing to protect the President.

Let’s start, though, by cataloguing the false claims made by a man who played a key role in US national security for the entirety of the Trump Administration.

First, he claims that the Hillary Campaign, “ordered … lawyers at Perkins Coie to orchestrate a criminal enterprise to fabricate a connection between President Trump and Russia.” Thus far, Durham has made no claims about any orders coming from the Hillary Campaign (and the claim that there were such orders conflicts with testimony that Kash himself elicited as a Congressional staffer). The filing in question even suggests Perkins Coie may be upset about what Sussmann is alleged to have done.

Latham – through its prior representation of Law Firm-1 – likely possesses confidential knowledge about Law Firm-1’s role in, and views concerning, the defendant’s past activities.

In fact, in one of the first of a series of embarrassing confessions in this prosecution, Durham had to admit that Sussmann wasn’t coordinating directly with the Campaign, as alleged in the indictment.

Kash then claims that “Durham states that Sussmann and Marc Elias (Perkins Coie) … hired .. Rodney Joffe … to establish an ‘inference and narrative’ tying President Trump to Russia.” That’s false. The indictment says the opposite: Joffe was paying Perkins Coie, not the other way around. Indeed, Durham emphasized that Joffe’s company was paying Perkins Coie a lot of money.  And in fact, Durham shows that the information-sharing also went the other way. Joffe put it together and brought it to Perkins Coie. Joffe paid Perkins Coie and Joffe brought this information to them.

Kash then claims that “Durham writes that he has evidence showing Joffe and his company were able to infiltrate White House servers.” Kash accuses the Hillary Campaign of “mastermind[ing] the most intricate and coordinated conspiracy against Trump when he was both a candidate and later President.” This betrays either real deceit, or ignorance about the most basic building blocks of the Internet, because nowhere does Durham claim that Joffe “infiltrated” any servers. Durham, who himself made some embarrassing technical errors in his filing, emphasizes that this is about DNS traffic. And while he does reveal that Joffe “maintain[ed] servers for the EOP,” that’s not infiltrating. These claims amount to a former AUSA (albeit one famously berated by a judge for his “ineptitude” and “spying”) accusing a conspiracy where none has been charged, at least not yet. Plus, if Joffe did what Kash claims starting in July 2016, as Kash claims, then Barack Obama would be the one with a complaint, not Trump.

Finally, Kash outright claims as fact that Joffe “exploited proprietary data, to hack Trump Tower and the Eisenhower Executive Office Building.” This claim is not substantiated by anything Durham has said and smacks of the same kind of conspiracy theorizing Louise Mensch once engaged in. Only, in this case, Kash is accusing someone who has not been charged with any crime — indeed, a five year statute of limitation on this stuff would have expired this week — of committing a crime. Again: a former AUSA, however inept, should know the legal risk of doing that.

Curiously, Kash specifies that the White House addresses involved were in the Eisenhower Executive Office Building. That could well be true, but Durham only claims they were associated with EOP, and as someone who worked there, Kash should know that one is a physical structure and the other is a bureaucratic designation. But to the extent Kash (who has flubbed basic Internet details already) believes this amounted to hacking the EOP, it is based off non-public data.

So, like I said, the piece is riddled with false claims, but with two claims that go beyond anything Durham has said.

The statement is all the stranger given that Kash Patel knew about these allegations four years ago, at a time when he was one of the most powerful Congressional staffers on matters pertaining to intelligence.

And he did nothing about them.

Well. He did do something.

He started this line of inquiry — brought it up entirely out of the blue — in an interview of Michael Sussmann largely focused on Sussmann’s response to a hostile attack by Russia.

About a quarter of the way into an interview on December 18, 2017, after Sussmann debunked the frothy right’s conspiracy theory about the DNC being unwilling to share information with the FBI (which was a central focus of the interview), a staffer veered away from that line of questioning and asked about other meetings. Sussmann answered the questions that someone interested in cybersecurity would have wanted to know: how does the government share information with a high-profile victim of a nation-state attack?

Q Thats helpful. Thank you Going over to – moving on from CrowdStrike and the FBI, did you ever have any interactions with any other government agencies in relation to the DNC hack, Russian involvement in the 2016 elections, or anything like that, or any members of any government agencies?

A So.yes. For the intrusion, I believe our contacts initially and for a while were only with the FBI. And there came a time when we got involved with the Department of Homeland Security, and had a variety of ongoing meetings with them for various purposes. We reached out to State officials, to the State — Association of Chief Information Officers from the States.

But that’s not what this staffer was interested in. This staffer was thinking big.

Q Did you meet with anybody else, any members of the Intelligence Community, either officially or unofficially, to discuss these matters?

MS. RUEMMLER: With respect to the DNC?

Q The DNC, the 2016 Russia election, all things that fit under that sort of general big title.

Sussmann, perhaps sensing this staffer was about to deliver a gotcha, noted that he didn’t always know who was in a room.

A So let me provide one general exception. I had meetings and calls with the FBI when there were a lot of people in the room, and I don’t necessarily know —

Q Yeah, I don’t mean that.

A — who was there.

That’s not what this staffer was after either. The staffer wanted to know about a meeting Sussmann had with the CIA.

Q I don’t mean the FBI. I don’t mean those big conference calls or anything like that. I mean, did you have any engagements with any members of the Intelligence Community, not the FBI, one-on-one, or in small groups, or telephone calls, or communications with folks, say, such as the Central Intelligence Agency?

Sussmann responded as to the subject of the interview, the DNC hack: no, all the meetings were with FBI or DHS. That’s when the staffer in question revealed he wanted to know about other topics.

A I think as regards to the I think all of the hacking ~ I think all of the hacking stuff was limited to the FBI and DHS.

Q Okay. So you never had any communications with members of the CIA [redacted] discussing the ~ not only the hack, but also the possible Russian intrusion and Russian involvement in the 2016 election?

That’s when Kathryn Ruemmler, representing Sussmann, referred to the staffer in question by name: Kash. This line of questioning was done by Kash Patel (which isn’t surprising, seeing as how at the time he was the “Chief Investigator for Russia Gate [sic].”

MS. RUEMMLER: Kash, just to clarify, you’re talking about the 2016 timeframe here? [my emphasis]

The staffer now identified as Kash continued, making it clear he already knew the answer to the question he was asking. He already knew about this meeting.

Q Well, that’s when that incident occurred. I’m asking if you ever have from that time until today?

A So I have — I have various contacts with members of law enforcement and the Intelligence Community on behalf of a number of different clients. So I’m not sure how to —

Q Sure. I’ll narrow it down for you. Fair enough. As it relates to what you and I have been talking about here today

A Right

Q –that is, the DNC hack, the Russian involvement in the 2016 election, and any information that was derived therefrom, did you meet or discuss with any members of the Intelligence Community outside of the FBI to provide information, talk to them about these matters? Did they reach out to you? Did anything like that ever happen in 2016 or 2017

With her client having been asked about a topic that wasn’t among the topics he had prepared to discuss or among the clients whose privileged matters he had gotten prior authorization to discuss and apparently worried about ethical issues, Ruemmler asked if she and Sussmann need to take a minute to confer.

MS. RUEMMLER: Do you want to confer for a second?

MR. SUSSMANN: I just want to talk about the range of – I have a lot of different clients, and since we’ve just spoken —

MS. RUEMMLER: As long as you don’t reveal identity of them, which You’re not permitted to do under the rules, or any content.

MR. SUSSMANN: Can we step outside and talk about how to deal with the range of clients?

MS. RUEMMLER: Yes.

[Discussion off the record.]

MR. SUSSMANN: Thank you.

At this point, if Sussmann were really hiding this stuff (as John Durham claims), he could have refused to answer the question, citing that privilege and the off-topic question. But Sussmann didn’t do that. He consulted with Ruemmler (something that Durham is now making a stink about), then came back in the room, noted that Kash had asked an off-topic question, but nevertheless answered honestly.

[The reporter read the record as requested.]

MR. SUSSMANN: So I’m not clear as to the scope of what you’re asking your question, but I’m going to be sort of more expansive in my answer, because there’s nothing — you said in relation to the things that we discussed today, and this is not something we’ve discussed today.

But I did have — I don’t believe I had — s0 two things. I don’t believe I had — I didn’t have direct contact with [NSA] butI can relate to you some indirect contacts with [NSA]. And I had a meeting [at CIA] as well.

That’s what Kash was looking for.

Okay.

Sussmann explained, noting that this was classified.

A The [NSA] contact related to specifically my representation of the DNC, and my contact [with CIA] did not relate to my specific representation of the DNC, or the Clinton campaign, or the Democratic Party. And I also — I’m not — I will do the best that I can with you. I think there are limits to what I can discuss in an unclassified setting.

Kash asked about the CIA meeting.

Q Okay, fair enough. What was your contact [with CIA] about?

A So the contact [with CIA] was about reporting to them information that was reported to me about possible contacts, covert or at least nonpublic, between Russian entities and various entities in the Untied States associated with the — or potentially associated with the Trump Organization.

Q And when did that contact [with CIA] occur, month and year?

A February 2017.

Q Where did you get that information from to relay to [CIA]?

A From a client of mine.

Q Why did you go [to CIA]

After Ruemmler interrupted again to remind Sussmann not to violate privilege, he explained that he reached out on this front because he knew of Obama’s effort to get a review of potential Russian involvement in the election.

Q You did say, right, that you had — you’d received information from a client — I’m not asking who — that may be germane to the 2016 election and associates of the Trump campaign or people affiliated with the Trump campaign.

So my follow-up question was, why did you go to [CIA] with this information?

A Oh, I’m sorry. And I apologize. I remember what I was going to say. It was — it was, in large part, in response to President Obama’s post-election IC review of potential Russian involvement in the election. And in that regard, I had made outreach prior to the change in administration in 2016. And for reasons known and unknown to me, it took a long time to — or it took — you know, it took a while to have a meeting, and so it ended up being after the change in administration.

The line of questioning continued later with someone else, because Kash had to leave. In those questions, Sussmann factually answered the information came from a client he had represented before the DNC, and admitted he had the information prior to the election. He explained his motive for sharing the information with James Baker (which led the FBI to be able to intervene and prevent the NYT from publishing, something Durham didn’t bother to investigate before indicting Sussmann) and CIA. He admitted that Perkins Coie still represented the DNC when he met with the CIA, though he wasn’t doing work for them anymore. And, in a passage that will be a focal point of the trial, he described how he and Joffe decided together to share this information.

Q Okay. I want to ask you, so you mentioned that your client directed you to have these engagements with the FBI and [CIA] and to disseminate the information that client provided you. Is that correct?

A Well I apologize for the double negative. It isn’t not correct, but when you say my client directed me, we had a conversation, as lawyers do with their clients, about client needs and objectives and the best course to take for a client.

And so it may have been a decision that we came t0 together. I mean, I don’t want to imply that I was sort of directed to do something against my better judgment, or that we were in any sort of conflict, but this was — I think its most accurate to say it was done on behalf of my client.

In other words, Kash and his colleagues have known the outlines of this for over four years.

At the time, and in his next job at NSC, Kash would have had ready access to the CIA for more details about the meeting — indeed, he came into this interview knowing about it already.

At the time, and in his next job at NSC, and in his next job as DOD Chief of Staff, Kash would have had knowledge of Rodney Joffe’s contracts with FBI and NSA.

At the time, and in his next job at NSC, and in his next job as DOD Chief of Staff, Kash would have had access to the DARPA contract, which got extended afterwards.

In his comment, the Former President said that “those who knew about this” should be subject to criminal prosecution. And Kash Patel was, at all moments between December 2017 and January 2021, not only aware of the outlines and the players, but he did nothing.

Whatever else this kerfuffle has done, it has made Kash’s exposure as a witness in this case quite dicey. Because not only is Kash a witness that Sussmann was not hiding what he did, but he is someone who for years was in a position to do something about it, and he did nothing.

Mueller Found Probable Cause, but Did Not Charge, Don Jr for Misdemeanor Hacking

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I didn’t move quickly enough yesterday to see what correct reading of newly released Mueller Report materials Byron York deleted. But Byron got literally everything wrong with this tweet, purportedly a correction.

Sadly, Byron is not the only one making this error. Daily Beast did so, as well. Even BuzzFeed’s coverage of this is misleading.

Parts of the Mueller Report that BuzzFeed have liberated — both this most recent unsealing and a prior one in November 2020 — now show that:

  • Mueller had sufficient evidence to charge Don Jr with a misdemeanor CFAA charge, but once he ruled out a felony charge, did not charge Jr, because he correctly determined that would be an asinine prosecutorial decision
  • Mueller had outstanding questions about whether Roger Stone conspired with Russia, and so declined to charge him in July 2018 but did refer those questions for ongoing investigation (an investigation which, if claimed exemptions are any guide, was still ongoing in November 2020)

Mueller didn’t charge Jr because his likely crime amounted only to a misdemeanor

As newly unsealed language explains,

The Office also considered whether Donald Trump Jr. intentionally accessed a protected computer without authorization, in violation of [CFAA … by] us[ing] a password, supplied to him by WikiLeaks … to access the website “putintrump.org” in September 2016.

Mueller found that Don Jr’s conduct met each element — (1) access without authorization and (2) obtain information from (3) a protected computer (4) intentionally — of a misdemeanor CFAA violation (meaning, there was probable cause he had committed the crime):

  1. Trump Jr. received the password from WikiLeaks and then wrote to others that “it worked” when he tried it; that evidence would support a conclusion that he “accesse[d] a computer without authorization.”
  2. Trump Jr’s statement in an email that he had seen the website’s contents likely sufficed to demonstrate that he “obtained information” from the computer, since the word “obtain” in this provision “includes mere observation of the data.”
  3. The computer accessed with the password likely qualifies as “protected” under the statute, which reaches “effectively all computers with Internet access.”
  4. The same course of conduct, and Trump Jr’s email admissions afterwards, also suggested that Trump Jr acted “intentionally.”

That language establishes that, contra Byron, Don Jr did probably commit a crime, something that one of the leading experts on CFAA, Orin Kerr, laid out in 2018.

But Mueller didn’t charge it. Legalistically, Mueller didn’t charge it because prosecutors couldn’t prove that Jr’s conduct was serious enough to merit a felony charge because he didn’t get $5,000 of value from the information or try to commit another crime with the information.

In this instance, Trump Jr. accessed the website shortly before it went public using a “guessed” password that, although it was sent to him individually, had also been posted by WikiLeaks to its public Twitter account, such that anyone following WikiLeaks could have gotten the same purview of the website that Trump Jr. did. That fact, among others, would make it difficult to prove that Trump Jr. acted to further any crime or tort or that he obtained information valued at more than $5,000–which are the kind of circumstances that can trigger felony punishment under the statute.

Colloquially, this language means that Mueller determined the conduct was so minor that it would be asinine to charge. That was undoubtedly the correct decision.

Incidentally, this is a perfect example of what I discussed in my Ratfucker Rashomon series about ways the genre of the Mueller Report — a report on prosecutorial decisions — obscures the real significance of the investigative findings. This conduct was interesting for Mueller not because it was ever going to be charged as a crime (though it was one of the things cited to get the contents of Assange’s Twitter account in 2017), but because WikiLeaks and Assange fairly obviously repeatedly cultivated Jr, including:

  • In October 2016 when they tried to conduct outreach to the campaign via him rather than Roger Stone
  • The day after the election, when they pitched Don Jr on ways to contest a Hillary win
  • In December 2016, when they again tried to shift the pardon discussions ongoing with Stone to Jr
  • In July 2017, when Assange encouraged Don Jr to release his own June 9 meeting emails and to reach out to the go-between Stone was using, Margaret Kunstler
  • In November 2017, when Assange implicitly threatened Don Jr with release of more CIA source code

All this is important for understanding how WikiLeaks was pressuring Trump and likely played a huge role in Trump’s pivot on an Assange pardon after he realized Mueller was investigating it. But much of it is not criminal (and it’s not clear whether Jr encouraged it at all). So none of it appears in the Mueller Report, which is limited to prosecutorial decisions.

This misdemeanor CFAA declination, then, hides far more interesting investigative threads Mueller pursued that would never show up in a declinations report.

Mueller didn’t charge Stone because DOJ was still investigating

Because the four pages released yesterday include two of a number of discussions of the prosecutorial decisions regarding Stone, multiple people (including Byron) are stating that Mueller found that Stone did not conspire with Russia’s hack-and-leak campaign. That’s based on this language:

Separately, Russian intelligence officers who carried out the hacking into Democratic Party computers and the personal email accounts of individuals affiliated with the Clinton Campaign conspired to violate, among other federal laws, the federal computer-intrusion statute, and they have been so charged. See United States v. Netyksho, et al., No. 18-cr-215 (D.D.C.). The evidence was not sufficient to charge that former Trump Campaign member Roger Stone joined or participated in the hacking conspiracy.

[snip]

Therefore, the Office did not seek charges against WikiLeaks, Assange, or Stone for participating in the computer-intrusion conspiracy alleged in Count One of the Netyksho indictment.

Both these references discuss a prosecutorial decision made in July 2018.

But a footnote to the CFAA declination released in the material BuzzFeed liberated in November 2020 reveals that Mueller made multiple referrals regarding this issue to DC’s US Attorney Office.

The Office determined that it could not pursue a Section 1030 conspiracy charge against Stone for some of the same legal reasons. The most fundamental hurdles, though, are factual ones.1279

1279 Some of the factual uncertainties are the subject of ongoing investigations that have been referred by this Office to the D.C. U.S. Attorney’s Office.

A warrant targeting Stone after the Netysko indictment in 2018 explained that, “It does not appear that Stone is currently aware of the full nature and scope of the ongoing FBI investigation.” Warrants from this same period (some of which were originally withheld from Stone) make clear the investigation pertained to his foreknowledge of Guccifer 2.0’s operation, not WikiLeaks. The efforts to hide parts of the investigation from Stone appears to have worked, as he appears to have believed that the charges against him for lying, obstruction, and witness tampering pertaining to WikiLeaks was the end point of the investigation, which may have been why Andrew Miller ended his challenge to a Mueller subpoena after the Report was released.

In fact, a number of other declination decisions don’t include all of Stone’s exposure. The most substantive Stone-related declination in the report addresses contacts with WikiLeaks (but not Guccifer 2.0) and addresses campaign finance crimes.

The individual declinations of a conspiracy don’t address the section of the report that addresses Stone’s conduct:

That particular section is silent about declining a conspiracy related to Volume I Section III, which is where everything Stone-related appears, even his contacts with Henry Greenberg, which was effectively another outreach from a Russian, which otherwise should appear in Section IV.

In other places, too, the report discusses “Trump Campaign officials” or members, rather than discussing people associated with it or a former campaign official as it does elsewhere, a distinction with Stone (who left the campaign in 2015) that Mueller sustained.

Further, the evidence was not sufficient to charge that any member of the Trump Campaign conspired with representatives of the Russian government to interfere in the 2016 election.

[snip]

As a result, the Office did not charge Gordon or any other Trump Campaign official with violating FARA or Section 951, or attempting or conspiring to do so, based on contacts with the Russian government or a Russian principal.

All of which is to say that Mueller did not charge Roger Stone in July 2018 when he indicted the Russian hackers. Likewise, he did not charge Stone for receiving an illegal campaign donation by optimizing the WikiLeaks releases. But the other declinations in the report stop short of addressing Stone’s conduct, and a footnote (as well as referrals that were explicitly labeled as Stone-related in the second release of the report) makes clear that the investigation into Stone continued past the end of the Mueller investigation.

That doesn’t mean DC prosecutors ultimately found that Stone committed a crime. He has not been charged (at least not publicly). But at the time the report was written in March 2019, the investigation into whether Stone conspired with Russia remained ongoing.