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Amid Claims of Witness Tampering, Revisiting Peter Navarro’s Alleged Contempt

July 1, 2022/97 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

Last week, Steve Bannon engaged in a stunt, claiming that a Carl Nichols order requiring DOJ to provide official documents on things like executive privilege and testimonial immunity must cover DOJ’s declination decision with respect to Mark Meadows and Dan Scavino.

The stunt itself isn’t all that interesting.

Bannon claimed that he refused to testify in part on the same basis that Mark Meadows and Dan Scavino did, and so understanding how DOJ had distinguished them (whose prosecution DOJ declined) from him (who got charged) would reflect official policy.

The letters Trump lawyer Justin Clark sent to Meadows and Scavino made one difference clear, however (which the Bannon filing obliquely acknowledges). In instructing Meadows and Scavino to refuse to testify to the January 6 Committee as much as possible, Clark included language invoking testimonial immunity, on top of Executive Privilege.

Furthermore, President Trump believes that Mr. Meadows is immune from compelled congressional testimony on matters related to his official responsibilities. See Testimonial Immunity Before Congress of the Former Counsel to the President, [citing the Don McGahn OLC opinion]

The letter that Clark sent Bannon on the same day, October 6, had no such language on testimony immunity.

Indeed, after Robert Costello kept making claims about Trump instructing Bannon not to testify, Clark emailed him twice more, the first time to resend the same letter, and the second time to explicitly say that they didn’t think Bannon had testimonial immunity.

In light of press reports regarding your client I wanted to reach out. Just to reiterate, our letter referenced below didn’t indicate that we believe there is immunity from testimony for your client. As I indicated to you the other day, we don’t believe there is. Now, you may have made a different determination. That is entirely your call. But as I also indicated the other day other avenues to invoke the privilege — if you believe it to be appropriate — exist and are your responsibility.

Effectively, Trump’s team told Bannon to stall, but gave him no legal tools to do so. Bannon didn’t entirely ignore testimonial immunity. In a footnote, he accused Carl Nichols of misapplying the law with respect to immunity and privilege.

Finally, on this question, the Court’s oral Order of June 15, 2022, appears to indicate a view by the Court that Justin Clark’s view on the question of “immunity” is either relevant or somehow undercuts the invocation of executive privilege. It certainly is not relevant – immunity, unlike, executive privilege is not a legal concept for the President to invoke or confer and his view on “immunity” is of no consequence at all on the question of whether executive privilege was invoked. It was.

But he said the common invocation of Executive Privilege was itself enough to merit a more formal comparison (ignoring, of course, that Meadows provided some materials to the Committee that did not involve the President, whereas Bannon withheld even his public podcasts).

Though some of the news reports he cites name Peter Navarro, Bannon doesn’t invoke his case. In Navarro’s now-withdrawn lawsuit against the Committee, he invoked both testimonial immunity and Executive Privilege. But he cites no letter from Trump; instead, he relies on the same Don McGahn OLC opinion Bannon invoked in his filing. Of course, by the time Navarro was subpoenaed — February 9, as compared to the September 23 subpoenas for Bannon, Meadows, and Scavino (as well as Kash Patel) — SCOTUS had already ruled against Trump’s privilege claim.

So it may be that DOJ’s decision tree regarding charges looks like this:

Bannon’s filing may be a stunt, but he may be right that DOJ didn’t charge Meadows and Scavino because they could claim to have been covered by both Executive Privilege and testimonial immunity (and in Meadows’ case, even attempted to comply with non-privileged materials).

Given the evidence in Tuesday’s hearing that Trump and his associates continued to try to influence Cassidy Hutchinson’s testimony at least through March 7, I want to return to something I noted before: because Navarro didn’t lawyer up, whatever communications he exchanged with Trump’s lawyers would not be privileged.

After Bannon got indicted for contempt, DOJ obtained the call records for his lawyer, Robert Costello’s, communications going all the way back to when Costello’s previous representation of Bannon ended. If they did that with Navarro, they could get more than the call records, though.

Whatever else DOJ did with their charging decision, they also allowed themselves the greatest visibility into ongoing obstruction, while sustaining the case in chief.

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The Men Disputing Cassidy Hutchinson’s Retelling of Trump’s SUV Lunge Got Warnings about Plans to Flood the Capitol

June 30, 2022/432 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

Since Cassidy Hutchinson’s startling testimony on Tuesday, credulous journalists have reported anonymous sources pushing back against one of her most dramatic stories: that when told he was not going to the Capitol on January 6, Donald Trump lunged towards the steering wheel of the SUV taking him back to the White House and then went after the clavicle of the head of his detail, Bobby Engel.

On top of being anonymous, the pushback never disputed Hutchinson’s claim: that she was told this story by Tony Ornato, the Secret Service Officer that Trump elevated into an important political position at the White House, Deputy Chief of Staff, in front of Engel, who did not dispute the story. Plus, Alyssa Farrah has described that Ornato, in the past, has disputed things she said under oath (about Trump’s stunt in Lafayette Square), without himself going under oath.

Nevertheless, that anonymous pushback has distracted from a far more alarming detail in Tuesday’s testimony that Ornato and Engel have not disputed, neither on or off the record: that they got warnings about plans to occupy buildings in DC and, implicitly, warnings about Proud Boy involvement.

That revelation came just before Hutchinson affirmed a detail I’ve been almost alone in reporting for over a year: Not just Roger Stone, but also Rudy Giuliani, had links to the Proud Boys.

Cheney: US Secret Service was looking at similar information and watching the planned demonstrations. In fact, their Intelligence Division sent several emails to White House personnel, like Deputy Chief of Staff Tony Ornato and the head of the President’s protective detail Robert Engel, including certain materials listing events like those on the screen.

Cheney: The White House continued to receive updates about planned demonstrations, including information regarding the Proud Boys organizing and planning to attend events on January 6. Although Ms. Hutchinson has no detailed knowledge of any planning involving the Proud Boys for January 6, she did note this:

{video}

Hutchinson: I recall hearing the word[s], “Oath Keeper,” hearing the word[s], “Proud Boys,” closer to the planning of the January 6 rally when Mr. Giuliani would be around.

The reference to Ornato and Engel is among the first in Tuesday’s hearing: while Cheney had previewed Hutchinson’s interactions with Ornato and the Secret Service in her introduction, this reference was the first substantive description of Ornato’s activities. That description, as well as Hutchinson’s explanation of how she told Trump’s National Security Advisor Robert O’Brien that Ornato had had a conversation with Mark Meadows about the warnings of violence, came even before Cheney cued Hutchinson to explain what an important role the Deputy Chief of Staff played.

Some time later, the hearing revealed texts between Hutchinson and Ornato reflecting the latter’s awareness that Trump’s supporters were trying to avoid the metal detectors.

Importantly, Cheney mentioned something about this text exchange that doesn’t appear in the texts shown on the screen: a discussion between the two of them — Hutchinson and Ornato — about an “OTR,” an “off the record” movement to get Trump to the Capitol. The Committee appears to be withholding precisely what those texts say — involving Trump personally, and so colorably covered under Executive Privilege.

That may not be the only thing the Committee withheld from its presentation: note in my transcription above that Cheney doesn’t say Ornato and Engel received the warnings that were flashed on the screen. She says they received, “certain materials listing events like those on the screen.” [my emphasis] Particularly given the reports that the Committee met in a secure facility in advance of this hearing, that phrasing could allow for other records, records too sensitive to show publicly, tying the Proud Boys to plans to occupy buildings on January 6.

The story of Trump lunging in the SUV is a distraction, and Ornato, a loyal Trumpster, is likely using his pushback to distract from far more damning details of Hutchinson’s testimony:

Both Engel and Ornato had warnings of plans to occupy buildings
Hutchinson linked Rudy Giuliani in advance of the attack to both militias that attacked the Capitol
Ornato discussed these warnings in advance with Mark Meadows, who pushed Hutchinson away twice during the early moments of the attack
In spite of foreknowledge of a plan to occupy buildings and the involvement of militias, Ornato nevertheless continued to plan to take Trump to the Capitol

Secret Service loyalists, for all their anonymous pushback, are denying none of these far more damning details, details that put them — and Meadows and Trump — in far more complicit position with respect to the attack.

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“All Texts Demanded!” Right Wingers No Longer Worried about “Wiped” Phones, John Eastman Edition…

June 28, 2022/30 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

As noted in the last thread, more than twelve hours later on the same day that federal agents conducted a search on Jeffrey Clark’s home in Virginia, FBI agents seized John Eastman’s phone as he was leaving a restaurant in Santa Fe. He has launched a bozo lawsuit attempting to get the phone back. And as part of that, he released the warrant used to seize his phone.

Orin Kerr has a long thread treating the bozo lawsuit seriously here — noting among other things that Constitutional law professor John Eastman forgot he was in New Mexico and therefore in the Tenth Circuit, not the Ninth. File411 has a post treating it like the bozo suit it is here.

But I’m interested in the warrant itself. As many people have noted (including Eastman himself), the warrant is from DOJ IG’s Cyber Division, not DC USAO. CNN has a helpful explanation for that: at least on the Eastman search, DOJ IG is engaged in fairly unusual coordination with the USAO (which explains all the squirreliness about which Federal agents had searched Clark’s home).

Federal agents from the Justice Department’s Office of Inspector General, which is coordinating with the wider FBI and US attorney investigation into January 6, 2021, last week raided the home of former DOJ official Jeffrey Clark, a source familiar previously told CNN. That search — during which the Justice Department inspector general’s participation had not been previously reported — came the same day as Eastman’s.

The inspector general investigates accusations of legal violations by Justice Department employees and has the ability to conduct searches and seizures. After investigating, the inspector general can refer possible criminal matters to prosecutors.

That makes a reference in the search warrant more interesting. This is just a seizure warrant, not a warrant authorizing the search of the phone. And it states that agents will bring the phone either the DOJ IG forensic lab in Northern Virginia or to some unidentified location in DC; it doesn’t mention the FBI’s Quantico facility, though that is also in NoVA and even experts on DOJ IG aren’t aware of any dedicated forensic lab DOJ IG has.

This warrant would be consistent with use in parallel investigations, the DC (or Main) investigation into Trump and Eastman as well as a DOJ IG investigation into January 6 that Michael Horowitz announced in early 2021. I’ve been wondering whether DOJ IG’s investigation(s), which can be quite slow, have delayed the review of DOJ’s conduct. This may be the solution: coordinated investigations. In his January 2021 announcement, Horowitz addressed that concern.

The DOJ OIG is mindful of the sensitive nature of the ongoing criminal investigations and prosecutions related to the events of January 6. Consistent with long-standing OIG practice, in conducting this review, the DOJ OIG will take care to ensure that the review does not interfere with these investigations or prosecutions.

In other words, this seizure may actually reflect at least two underlying search warrants, and as such may be an attempt to obscure (like the original Rudy Giuliani warrants would have) the focus of the underlying January 6 investigation. That is, DOJ IG could hand Eastman a warrant for an investigation into Jeffrey Clark, and that would be sufficient to answer his demands for a warrant, even if there were a more substantive warrant for the DCUSAO investigation.

That’s why the timing is of interest. As File411 notes, it was authorized on June 17, so after the Big Lie January 6 Committee hearing, but five days before it was executed on June 22. If this warrant was a response to the January 6 Committee hearings, it wasn’t a response to the hearing focused on Jeffrey Clark, but rather on one focused on Eastman.

In the days ahead, you will hear wailing about how poor Constitutional attorney John Eastman had his privacy abridged — that’s the point of the bozo lawsuit, just like Russian oligarchs do. But the very same people who’ll be whining were huge fans of DOJ IG’s best known cyber work — a 2018 report explaining why the FBI’s text archiving system hadn’t captured 19,000 texts between Peter Strzok and Lisa Page.

That investigation, like this one, appears to be focused on a DOJ employee who has already resigned (though the earlier report was started when Strzok and Page were still at FBI). And given the seizure of devices, it may be focused on inappropriate politicization of DOJ — the allegation at the core of investigations into Strzok and Page, yet for which DOJ IG never substantiated proof.

Both Rudy and Trump are on the record supporting such DOJ IG investigations into phones for evidence of improper politicization. Chances are they’re going to be less enthusiastic now that the subjects of the investigation are John Eastman and Jeffrey Clark.

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Jeffrey Clark: Physics Takes Over the Investigation Now

June 27, 2022/155 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

Last Thursday was an exciting day for those who have doubted Merrick Garland’s DOJ was really investigating top officials for matters pertaining to January 6.

Not only did multiple outlets describe Republicans involved in the fake elector scheme receiving subpoenas or even, in at least three cases, search warrants for their devices, but Jeffrey Clark’s home in Virginia was also searched on Wednesday. As part of that, according to the hysterical account Clark gave on Tucker Carlson, whatever agency did the search used an electronics sniffing dog and seized all the electronics in the house.

And that makes it a really good time to talk some more about how investigations work in the era of encrypted applications. It’s likely to be months — likely at least six months — until anything comes out of last week’s seizures.

The reason has to do with physics (and law).

We can be fairly certain that Clark — and probably some of the fake electors on whom warrants were served — used Signal or other encrypted apps. That’s because Mark Meadows and Scott Perry were conducting some of this conspiracy over Signal too, as was made clear in a slide in Thursday’s hearing.

Indeed, one reason Clark may have been raided is because he makes an easier target, for now, than Meadows or the Members of Congress who were involved. All of Clark’s communications directly with then President Trump bypassed DOJ’s contact guidelines and most can be shown to be part of a plot to overturn the election, whereas many of Meadows’ communications will be protected by Executive Privilege and Perry’s by Speech and Debate (though as I keep repeating, DOJ will be able to piggyback off the privilege review that the January 6 Committee has done).

To obtain Signal conversations that haven’t been saved to the cloud, one needs at least one of the phones that was involved in the conversation. That assumes the texts were not deleted. In the James Wolfe investigation, the FBI demonstrated some ability to recover deleted Signal texts, but in the Oath Keeper investigation, their Signal deletions forced investigators to seize a whole bunch of phones to reconstruct all parts of the communications.

By law, the government should have some of these Signal texts accessible. Under the Presidential Records Act, Mark Meadows had a legal obligation to share any such texts with the Archives. But because he replaced his phone in the months after the insurrection, at a time he knew of the criminal investigation, he may not have been able to comply. If DOJ can prove that he deleted Signal texts, he might be on the hook for obstructing the DOJ investigation.

So one thing DOJ may have been trying to do, by seizing the phones of at least four players in the fake electors plot on the same day, was to obtain phones sufficient to reconstruct any Signal threads about the plot. Those served subpoenas, both in this and an earlier round of subpoenas, will have to turn over Signal texts too, if they meet the terms of the subpoena. If DOJ were trying to reach the far higher bar of obtaining a warrant against someone protected by Speech and Debate or other privileges — like Perry — they likely would need to use such threads to meet that higher bar.

So back to the physics.

The table below shows how the investigations into a number of high profile investigative subjects have proceeded. While there are exceptions (investigations where the FBI has some excuse or urgency to conduct an interview, as with Mike Flynn and George Papadopoulos, are different), investigators often first obtain readily accessible cloud content with a gag order, then use the information from a person’s cloud content to obtain probable cause for a warrant to seize phones. Under that pattern, the phone seizure will alert a subject of an investigation to that investigation. In most cases (the first round of January 6 arrests and Roger Stone are exceptions, each for different reasons), the search of phones precedes any arrest by months if not years.

Whereas, during the Mueller investigation, the FBI could exploit phones in four months time, of late, it has been taking closer to six months to exploit cell phones, even without any kind of special review. Part of this delay is physics: if a person uses any kind of secure password, it takes the FBI time to crack that password (and still more time if someone uses additional security features, as Enrique Tarrio did). In many cases, the DOJ will have to use a filter team to exclude data that is somehow privileged; in all cases, DOJ will then do a scope review, ensuring that the investigative team only gets material responsive to the warrant. When a special review is required, such as the attorney-client privilege review for Rudy or the “journalistic” review for Project Veritas, that process can take much longer. Because DOJ will have to conduct a fairly exhaustive filter review for an attorney like Clark, it might take closer to nine months to exploit the devices seized last week.

This pattern suggests several things about the investigation into Jeffrey Clark (and the fake electors). First, DOJ likely obtained their first probable cause warrants against Clark and the fake electors months ago, probably pretty close to the time (though hopefully before) Lisa Monaco confirmed the investigation into the fake electors in January. In Clark’s case, an investigation may have come from a referral from DOJ IG. So contrary to what many outlets have reported, such as this example from James Risen at the Intercept, the searches of Clark and others are not proof that an investigation is beginning or that DOJ only recently established probable cause. Rather, they suggest DOJ has been investigating covertly for months, at least long enough to obtain probable cause that even more evidence exists on these phones.

But it’s also likely that it will take DOJ some months — until Christmas at least — to exploit Clark’s phone. This investigation will not move as quickly as you might think or hope that this point, and that’s partly dictated by the constraints of cracking a password — math and physics.

All that said, several prongs of an investigation that could implicate Trump may be much further on. As I’ll show in a follow-up (and as I’ve mentioned in the past), the investigation into Stop the Steal is undoubtedly much further on than people assume given Ali Alexander’s grand jury appearance last week. And the FBI has ways of getting content via the Archives, much as they obtained content from Trump’s transition from GSA, that bypass pattern laid out above.

What the government had to have been able to prove before it searched Clark and others last week was not just that that had probable cause against those subjects, but that the cloud content otherwise available to them showed that aspects of the crime were committed using materials only available on people’s phones, likely encrypted messaging apps.

Update: Several people have asked why there would be a privilege review for Clark’s phone, since he would have been a government attorney through January 6. I’m not certain there would be, but if a warrant covered the time since January 6 (which I think likely given what DOJ has done with warrants elsewhere), then any lawyering he has done since he left would be privileged.

Update: As noted in comments, also on Wednesday, the FBI seized John Eastman’s phone. The warrant is from DOJ IG, not DC USAO and bears a 2022 case number. DOJ IG opened an investigation into Clark in 2021, but perhaps something they saw in the Jan6 Committee hearings led to a new prong of the investigation, leading to this search? Given the squirreliness regarding what agency did the search of Eastman, I wonder if both these investigative steps were DOJ IG.

Background material

This annotated file shows the unsealed Mueller warrants, with labels for those warrants that have been identified.

This post shows how the Michael Cohen investigation started with Russian-related warrants in the Mueller investigation then moved to SDNY, including a crucial detail about preservation orders for Cohen’s Trump Organization emails served on Microsoft.

This post shows how the investigation into George Papadopoulos developed; his is the outlier here, in that overt actions took place closer to the beginning of the investigation — but in his case, DOJ used a series of informants against him to obtain information.

This post describes how Trump’s team only discovered Mueller had obtained transition devices three months after Mueller obtained them, via Mike Flynn’s statement of offense.

This post shows that the seizure of Roger Stone’s phones with his January 2019 arrest was just one step in an ongoing investigation.

This post uses the Michael Cohen example to explain how the Rudy investigation might work.

This post shows how the investigation into Project Veritas developed.

This post shows how it took almost an entire year to crack Enrique Tarrio’s password, with a filter team delaying access for another month.

This post describes how the sheer volume of Stewart Rhodes’ Signal texts delayed his arrest.

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Bill Barr’s Attempt to Corrupt EDNY May Have Saved the Republic

June 24, 2022/40 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

Almost all of the witnesses the January 6 Committee has relied on are deeply conflicted people. The same Trump attorney, Justin Clark, who allegedly coached Steve Bannon to withhold information from the Committee about communications with Rudy Giuliani and Mike Flynn appeared on video claiming to have qualms about using fake electors in states where the campaign did not have an active legal challenge. Ivanka claimed to believe Bill Barr’s claims that voter fraud couldn’t change the election, but the Committee just obtained video of her saying otherwise. And Bill Barr himself has gotten credit for fighting Trump’s false claims of voter fraud even though he spent months laying the groundwork for those claims by attacking mail-in ballots.

But yesterday’s hearing was something else.

After Liz Cheney invited watchers to imagine what it would be like to have a DOJ that required loyalty oaths from lawyers who work there — a policy that Alberto Gonzales had started to implement in the Bush-Cheney Administration — Adam Kinzinger led former Acting Deputy Attorney General Richard Donoghue through a narrative about the Republican Party and the Department of Justice they might like to belong to.

The whole thing was a flashback. In May 2007, I was tipped off to cover Jim Comey’s dramatic retelling of the first DOJ effort to push back on Presidential — and Vice Presidential, from Liz Cheney’s father — pressure by threatening to quit. Only years later, I learned how little the 2004 Hospital Hero stand-off really achieved. So I’m skeptical of yesterday’s tales of heroism from the likes of Jeff Rosen and Steve Engel.

But that’s also because their record conflicts with some of the things they said.

For example, check out what Engel — someone who played an absolutely central role in Bill Barr’s corruption of the Mueller investigation, and who wrote memos that killed the hush payment investigation into Trump and attempted to kill the whistleblower complaint about Volodymyr Zelenskyy — had to say about politicization of investigations.

Kinzinger: Mr. Engel, from your perspective, why is it important to have a [White House contact] policy like Mr. Rosen just discussed?

Engel: Well, it’s critical that the Department of Justice conducts its criminal investigations free from either the reality or any appearance of political interference. And so, people can get in trouble if people at the White House are speaking with people at the Department and that’s why, the purpose of these policies, is to keep these communications as infrequent and at the highest levels as possible just to make sure that people who are less careful about it, who don’t really understand these implications, such as Mr. Clark, don’t run afoul of those contact policies.

Or consider how Special Counsels were described, as Kinzinger got the witnesses to discuss how wildly inappropriate it would have been to appoint Sidney Powell to investigate vote fraud. Here’s how Engel explained the limited times there’d be a basis to appoint one:

Kinzinger: So during your time at the Department, was there ever any basis to appoint a Special Counsel to investigate President Trump’s election fraud claims?

Engel: Well, Attorney General Barr and [inaudible] Jeffrey Rosen did appoint a Special Counsel. You would appoint a Special Counsel when the Department — when there’s a basis for an investigation, and the Department, essentially, has a conflict of interest.

Engel is presumably referring to John Durham with that initial comment. But Durham fails both of those tests: there was never a basis for an investigation, and for most of the time Durham has been Special Counsel, he’s been investigating people outside the Department that present absolutely no conflict for the Department. [Note: it’s not clear I transcribed this properly. The point remains: Rosen and Barr appointed a Special Counsel that violated this standard.]

In other words, so much of what Engel and Rosen were describing were abuses they themselves were all too happy to engage in, up until the post-election period.

Which is why I’m so interested in the role of Richard Donoghue, who moved from EDNY to Main Justice in July 2020, to be replaced by trusted Bill Barr flunkie Seth DuCharme. It happened at a time when prosecutors were prepared to indict Tom Barrack, charges that didn’t end up getting filed until a year later, after Merrick Garland and Lisa Monaco had been confirmed. The 2020 move by Barr looked just like other efforts — with Jessie Liu in DC and Geoffrey Berman in SDNY — to kill investigations by replacing the US Attorney.

That is, by all appearances, Donoghue was only the one involved in all these events in 2020 and 2021 because Barr was politicizing prosecutions, precisely what Engel claimed that DOJ, during his tenure, attempted to avoid.

That’s interesting for several reasons. First, in the context of explaining the January 3 stand-off in the White House, Donoghue described why environmental lawyer Jeffrey Clark was unqualified to be Attorney General.

Donoghue: Mr. President, you’re talking about putting a man in that seat who has never tried a criminal case. Who has never conducted a criminal investigation.

Well, neither had regulatory lawyer Jeffrey Rosen (or, for that matter, Billy Barr). That is, in explaining why Clark should not be Attorney General, Donoghue expressed what many lawyers have likewise said about Barr, most notably during Barr’s efforts to undermine the Mike Flynn prosecution (the tail end of which Donoghue would have been part of, though DuCharme was likely a far more central player in that).

In the collective description of the showdown at the White House on January 3, it sounds like before that point, Donoghue was the first one who succeeded in beginning to talk Trump out of replacing Rosen, because it was not in Trump’s, or the country’s, interest.

Mr. President, you have a great deal to lose. And I began to explain to him what he had to lose. And what the country had to lose, and what the Department had to lose. And this was not in anyone’s best interest. That conversation went on for some time.

Donoghue also seems to have been the one to explain the impact of resignations in response to a Clark appointment.

Mr. President within 24, 48, 72 hours, you could have hundreds and hundreds of resignations of the leadership of your entire Justice Department because of your actions. What’s that going to say about you?

To be clear: Rosen would have pushed back in any case. As he described,

On the one hand, I wasn’t going to accept being fired by my subordinate, so I wanted to talk to the President directly. With regard to the reason for that, I wanted to try to convince the President not to go down the wrong path that Mr. Clark seemed to be advocating. And it wasn’t about me. There was only 17 days left in the Administration at that point. I would have been perfectly content to have either of the gentlemen on my left or right to replace me if anybody wanted to do that. But I did not want for the Department of Justice to be put in a posture where it would be doing things that were not consistent with the truth, were not consistent with its own appropriate role, or were not consistent with the Constitution.

But Rosen had already presided over capitulations to Trump in the past, including events relating to the first impeachment and setting up a system whereby Rudy Giuliani could introduce Russian-brokered disinformation targeting Joe Biden into DOJ, without exposing Rudy himself to Russian Agent charges. Repeatedly in yesterday’s hearing, I kept asking whether the outcome would have been the same if Donoghue hadn’t been there.

Plus, by all appearances, Donoghue was the one providing critical leadership in the period, including going to the Capitol to ensure it was secured.

Kinzinger: Mr. Donoghue, we know from Mr. Rosen that you helped to reconvene the Joint Session, is that correct?

Donoghue: Yes sir.

Kinzinger: We see here in a video that we’re going to play now you arriving with your security detail, to help secure the Capitol. Mr. Donoghue, thirty minutes after you arrived at the Capitol, did you lead a briefing for the Vice President?

Donoghue: I’m not sure exactly what the time frame was, but I did participate in a call and participate in a briefing with the Vice President as well as the Congressional leadership that night. Yes.

Kinzinger: Where’d you conduct that call at?

Donoghue: I was in an office, I’m not entirely sure where it was. My detail found it, because of the acoustics in the Rotunda were such that it wasn’t really conductive to having a call so they found an office, we went to that office, and I believe I participated in two phone calls, one at 1800 and one at 1900 that night, from that office.

Kinzinger: What time did you actually end up leaving the Capitol?

Donoghue: I waited until the Senate was back in session which I believe they were gaveled in a few minutes after 8PM. And once they were back in session and we were confident that the entire facility was secured and cleared — that there were no individuals hiding in closets, or under desks, that there were no IEDs or other suspicious devices left behind — I left minutes later. I was probably gone by 8:30.

Kinzinger: And Mr. Donoghue, did you ever hear from President Trump that day?

Donoghue: No. Like the AAG, the acting AG, I spoke to Pat Cipollone and Mark Meadows and the Vice President and the Congressional leadership but I never spoke to the President that day.

So it seems possible, certainly, that one of the few things that held DOJ together in this period is Donoghue, seemingly installed there as part of yet another Bill Barr plot to corrupt DOJ.

Congresswoman Cheney, who in her opening statement talked about how outrageous it was for Trump to demand that DOJ make an announcement about an investigation into voter fraud (but who voted against the first impeachment for extorting Volodymyr Zelenskyy for exactly such an announcement), ended the hearing by inviting those who had put their trust into Donald Trump to understand that he had abused that trust.

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Rudy Giuliani Launched a Lynch Mob over a Ginger Mint

June 22, 2022/172 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

I find it harder to describe the details of yesterday’s January 6 Committee hearing, covering pressure Trump put on states to alter the vote, than the earlier hearings. That’s because the testimony about Trump’s bullying of those who upheld democracy — particularly election worker Shaye Moss and Arizona Speaker of the House Rusty Bowers — elicited so much emotion. This is what Trump has turned great swaths of the Republican Party into: bullies attacking those who defend democracy.

Trump’s bullies attacking anyone defending democracy

Bowers described how a mob, including an armed man wearing a 3%er militia patch, came to his house as his daughter fought a terminal illness.

Moss described how a mob descended on her granny’s house, hunting for her and her mother, Ruby Freeman. At least one member of the mob targeting those two Black women who chose to work elections betrayed self-awareness off their regressive stance: Moss testified that one of the threats targeted at her said, “Be glad it’s 2020 and not 1920.”

And Adam Schiff got Moss to explain a detail that formed the core of a video Rudy Giuliani used to summon his mob. Rudy had claimed that when Ms. Freeman passed Shaye something, it was a thumb drive to replace votes.

It was actually a ginger mint.

Schiff: In one of the videos we just watched, Mr. Giuliani accused you and your mother of passing some sort of USB drive to each other. What was your mom actually handing you on that video?

Moss: A ginger mint.

Moss testified that none of the people who had been working with her full time on elections in Fulton County, Georgia are still doing that work. They’ve all been bullied out of working to uphold democracy.

Tying the state violence to the January 6 violence

Early in the hearing, Schiff tied these threats of violence to Stop the Steal, the organization behind the purported speakers that formed the excuse to bring mobs to the January 6 attack. He explained, “As we will show, the President’s supporters heard the former President’s claims of fraud and the false allegations he made against state and local officials as a call to action.” Shortly thereafter, investigative counsel Josh Roselman showed a video from Ali Alexander predicting at a protest in November 2020, “we’ll light the whole shit on fire.”

Much later in the hearing, Schiff tied the takeover of state capitals to the January 6 riot with a picture of Jacob Chansley invading Capitols in both AZ and DC.

Chansley already pled guilty to attempting to obstruct the vote certification, and one of the overt acts he took was to leave Mike Pence this threatening note on the dais.

So one thing the hearing yesterday did was to tie the threats of violence in the states to the expressions of violence on January 6.

Showing obstruction of the vote certification, including documents

A second video described the fake electors scheme, developing several pieces of evidence that may help DOJ tie all this together in conspiracy charges.

The video included testimony from Ronna McDaniel acknowledging the RNC’s involvement. (Remember that McDaniel joined in the effort to censure Liz Cheney when she learned the committee had subpoenaed Kathy Berden, the lead Michigander on that fake certificate; Berden has close ties to McDaniel.)

Essentially he turned the call over to Mr. Eastman who then proceeded to talk about the importance of the RNC helping the campaign gather these contingent electors in case any of the legal challenges that were ongoing changed the result of any of the states. I think more just helping them reach out and assemble them. But the — my understanding is the campaign did take the lead and we just were … helping them in that role.

The video also cited Trump’s own campaign lawyers (including Justin Clark, who represented Trump in conjunction with Steve Bannon’s refusal to testify) describing that they didn’t believe the fake electors scheme was prudent if the campaign no longer had legal challenges in a given state.

In a videotaped deposition, former campaign staffer Robert Sinners described himself and other workers as, “useful idiots or rubes at that point.” When ask how he felt upon learning that Clark and Matt Morgan and other lawyers had concerns about the fake electors, Sinners explained, “I’m angry because I think in a sense, no one really cared if … if people were potentially putting themselves in jeopardy.” He went on, “I absolutely would not have” continued to participate, “had I known that the three main lawyers for the campaign that I’ve spoken to in the past and leading up were not on board.”

And electors in individual states claimed to have been duped into participating, too. Wisconsin Republican Party Chair Andrew Hitt described that, “I was told that these would only count if a court ruled in our favor.” So using them as an excuse to make challenges on January 6, “would have been using our electors, well, it would have been using our electors in ways that we weren’t told about and we wouldn’t have supported.”

In the wake of yesterday’s hearing, one of MI’s fake electors, Michele Lundgren, texted reporters to claim that they had not been permitted to read the first page of the form they signed, which made the false claims.

As the video showed the fake certificates next to the real ones, Investigative Counsel Casey Lucier explained that,

At the request of the Trump campaign, the electors from these battleground states signed documents falsely asserting that they were the duly elected electors from their state, and submitted them to the National Archives and to Vice President Pence in his capacity as President of the Senate.

[snip]

But these ballots had no legal effect. In an email produced to the Select Committee, Dr. Eastman told a Trump campaign representative [Boris Epshteyn] that it did not matter that the electors had not been approved by a state authority. Quote, the fact that we have multiple slates of electors demonstrates the uncertainty of either. That should be enough. He urged that Pence act boldly and be challenged.

Documents produced to the Select Committee show that the Trump campaign took steps to ensure that the physical copies of the fake electors’ electoral votes from two states were delivered to Washington for January 6. Text messages exchanged between Republican Party officials in Wisconsin show that on January 4, the Trump campaign asked for someone to fly their fake electors documents to Washington.

A staffer for Wisconsin Senator Ron Johnson texted a staffer for Vice President Pence just minutes before the beginning of the Joint Session. This staffer stated that Senator Johnson wished to hand deliver to the Vice President the fake electors votes from Michigan and Wisconsin. The Vice President’s aide unambiguously instructed them not to deliver the fake votes to the Vice President.

Lucier made it clear, though, that these fake electors were delivered to both Congress (Johnson) and the Executive Branch (the Archives).

This video lays out critical steps in a conspiracy to obstruct the vote certification, one that — because it involves a corrupt act with respect to fraudulent documents — would even meet Judge Carl Nichols’ standard for obstruction under 18 USC 1512(c)(2).

The Court therefore concludes that § 1512(c)(2) must be interpreted as limited by subsection (c)(1), and thus requires that the defendant have taken some action with respect to a document, record, or other object in order to corruptly obstruct, impede or influence an official proceeding.

Understand, many of these people are awful and complicit (and bmaz will surely be by shortly to talk about what an asshole Rusty Bowers is). But with respect to the fake electors scheme, the Committee has teed up a parade of witnesses who recognize their own criminal exposure, and who are, as a result, already rushing to blame Trump for all of it. We know DOJ has been subpoenaing them for evidence about the lawyers involved — not just Rudy and Eastman, but also Justin Clark.

DOJ has also been asking about Boris Epshteyn. He showed up as the recipient of an email from Eastman explaining that it didn’t matter that the electors had no legal legitimacy.

As Kyle Cheney noted, the Committee released that email last month, albeit with Epshteyn’s name redacted.

The Republican Party has not just an incentive, but a existential need at this point, to blame Trump’s people for all of this, and it may do wonders not just for obtaining cooperative and cooperating witnesses, but also to change how Republicans view the January 6 investigation.

Exposing Pat Cipollone’s exceptional unwillingness to testify

Liz Cheney continued to use the hearings to shame those who aren’t cooperating with the Committee. In her opening statement, she played the video of Gabriel Sterling warning of violence, where he said, “All of you who have not said a damn word [about the threats and false claims] are complicit in this.”

Then after Schiff talked about the threat to democracy in his closing statement …

We have been blessed beyond measure to live in the world’s greatest democracy. That is a legacy to be proud of and to cherish. But it is not one to be taken for granted. That we have lived in a democracy for more than 200 years does not mean we shall do so tomorrow. We must reject violence. We must embrace our Constitution with the reverence it deserves, take our oath of office and duties as citizens seriously, informed by the knowledge of right and wrong and armed with no more than the power of our ideas and the truth, carry on this venerable experiment in self-governance.

Cheney focused on the important part played by witnesses who did what they needed to guard the Constitution, twice invoking God.

We’ve been reminded that we’re a nation of laws and we’ve been reminded by you and by Speaker Bowers and Secretary of State Raffensperger, Mr. Sterling, that our institutions don’t defend themselves. Individuals do that. And we’ve [been] reminded that it takes public servants. It takes people who have made a commitment to our system to defend our system. We have also been reminded what it means to take an oath, under God, to the Constitution. What it means to defend the Constitution. And we were reminded by Speaker Bowers that our Constitution is indeed a divinely inspired document.

That set up a marked contrast with the list of scofflaws who’ve obstructed the Committee.

To date more than 30 witnesses called before this Committee have not done what you’ve done but have invoked their Fifth Amendment rights against self-incrimination. Roger Stone took the Fifth. General Michael Flynn took the Fifth. John Eastman took the Fifth. Others like Steve Bannon and Peter Navarro simply refused to comply with lawful subpoenas. And they have been indicted. Mark Meadows has hidden behind President Trump’s claims of Executive Privilege and immunity from subpoena. We’re engaged now in litigation with Mr. Meadows.

Having set up that contrast, Congresswoman Cheney then spent the entire rest of her closing statement shaming Pat Cipollone for refusing thus far to testify.

The American people in our hearings have heard from Bill Barr, Jeff Rosen, Richard Donoghue, and many others who stood up and did what is right. And they will hear more of that testimony soon.

But the American people have not yet heard from Mr. Trump’s former White House counsel, Pat Cipollone. Our Committee is certain that Donald Trump does not want Mr. Cipollone to testify here. Indeed, our evidence shows that Mr. Cipollone and his office tried to do what was right. They tried to stop a number of President Trump’s plans for January 6.

Today and in our coming hearings, you will hear testimony from other Trump White House staff explaining what Mr. Cipollone said and did, including on January 6.

But we think the American people deserve to hear from Mr. Cipollone personally. He should appear before this Committee. And we are working to secure his testimony.

In the wake of this, someone “close to Cipollone” ran to Maggie Haberman and sold her a bullshit story, which she dutifully parroted uncritically.

Cheney had just laid out that the “institutional concerns” had been waived by other lawyers (and were, legally, in the case of Bill Clinton). And any privilege issue went out the window when Sean Hannity learned of the White House Counsel complaints. Plus, White House Counsel lawyer Eric Herschmann has testified at length, including about matters — such as the call Trump made to Vice President Pence shortly before the riot — involving Trump personally.

Given Cheney’s invocation of those who pled the Fifth, I wonder she suspects that Cipollone’s reluctance has less to do with his claimed excuses, and more to do with a concern that he has personal exposure.

He may! After all, he presided over Trump’s use of pardons to pay off several key players in the insurrection, including three of the people Cheney invoked to set up this contrast: Flynn, Stone, and Bannon (though I suspect Cipollone had checked out before the last of them). And these pardons — and the role of pardons in the planning for January 6 more broadly — may expose those involved, potentially including Cipollone, in the conspiracy.

Whether or not Cheney shames Cipollone into testifying, including with her appeal to religion, he may not have the same luxury of refusing when DOJ comes calling.

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Forty Feet: Trump Sicced a Murder Weapon on Mike Pence

June 17, 2022/175 Comments/in 2020 Presidential Election, emptywheel, January 6 Insurrection /by emptywheel

Harry Litman observed after yesterday’s January 6 Committee hearing that you might be able to charge Trump with the attempted murder of Mike Pence.

This was not new news yesterday though.

I reported on the DOJ and the Committee’s mutual focus on the targeting of Pence on January 5. In a piece that described that Marc Short had not yet agreed to cooperate and Pence might never cooperate, NYT reported on the same focus of DOJ filings days later. Though, as sometimes happens, NYT got the timeline wrong; Gina Bisignano swore to her focus on Pence in August (and has not reneged on that point even as she attempts to withdraw her guilty plea), and Josiah Colt described how he and two co-conspirators responded to news that Pence would not stop the vote count by breaching the Senate in July 2021, almost a year ago.

DOJ has been focused on the effect of Trump’s targeting of Pence for over a year. In fact, to substantiate the seriousness of the threat facing Pence that day, the Committee cited witness testimony that has been public since January 13, 2021, in Proud Boy Dominic Pezzola’s original arrest affidavit.

W-1 further stated that members of this group, which included “Spaz,” said that they would have killed [Vice President] Mike Pence if given the chance. According to W-1, the group said it would be returning on the “20th,” which your affiant takes to mean the Presidential Inauguration scheduled for January 20, 2021, and that they plan to kill every single “m-fer” they can.

The allegation actually doesn’t show up in the Proud Boy sedition indictment, though Proud Boy Matthew Greene’s plea allocution talked about how the militia swarmed the Capitol with the intent of adding pressure to Pence.

To be sure, yesterday’s hearing laid out the following additional pieces of proof that Trump was specifically targeting Pence:

Jason Miller and Greg Jacob’s description of Trump’s deliberate misrepresentation, overnight on January 5, falsely claiming Pence agreed with him about the vote count
Descriptions about Trump calling Pence on around 11 on January 6 and calling him a whimp and a pussy, a call that distressed Ivanka because, “It was a different tone than I’ve heard him take with the Vice President before”
Trump’s addition references to Mike Pence in his January 6 speech, both in the prepared script and ad-libbed along the way
Details from White House aides confirming that Mark Meadows had informed Trump about the violence at the Capitol and how, instead of a tweet calling for calm, Trump instead “pour[ed] gasoline on the fire” (as Former White House Deputy Press Secretary Sarah Matthews described it) by calling out Pence again in a tweet at 2:24 the day of the insurrection
Greg Jacob’s testimony about tensions with the Secret Service about evacuating the Capitol
Marc Short’s description of conversations with Kevin McCarthy expressing frustration that Trump wasn’t taking the circumstances seriously
Reconfirmation that Trump never called Pence to check on the Vice President’s safety
Tracking of Jacob’s “Thanks to your bullshit we are now under siege,” to events at the Capitol

Committee member Congressperson Pete Aguilar explained that at the moment Pence was evacuated from his ceremonial office, he and the mob were just forty feet apart.

The Committee looked at the threat posed by the Proud Boys to Pence.

It doesn’t look at something far more substantive, though potentially far more complex. Immediately after Trump’s tweet, the Oath Keepers indictment describes communications between Roger Stone associate Kelly Meggs and Stewart Rhodes, followed by a conference call involving those two and operational lead Mike Simmons. The Oath Keepers converged, and then the first Stack and the second (made up of men who had been providing security to Roger Stone that morning) breached the East doors, along with Joe Biggs and the mob brought by Alex Jones.

Once inside, the first Stack broke up, with Meggs and others heading towards Speaker Pelosi’s office to hunt her down.

103. Shortly thereafter, WATKINS and other members ofStack One exited the Rotunda through the northbound hallway toward the Senate Chamber.

104. Around this time, a member of Stack One yelled “the fight’ s not over” and waved !rioters down the hallways toward the Senate Chamber.

105. At 2:45 p.m. and afterward, WATKINS and other Stack One members joined the imob in pushing against a line of law enforcement officers guarding the hallway connecting the Rotunda to the Senate Chamber, as WATKINS commanded those around her to “push, push, !push,” and to, “get in there, get in there,” while exclaiming, “they can’t hold us.” When officers responded by deploying a chemical spray, the mob-including WATKINS and other Stack One members-retreated.

106. At 2:45 p.m., MEGGS, HARRELSON, HACKETT, MOERSCHEL, and other Stack One members walked southbound out of the Rotunda and toward the House of Representatives in search of Speaker Pelosi. They did not find Speaker Pelosi.

The others attempted to get to the Senate, whence Mike Pence had, minutes earlier, been evacuated.

As I’ve noted, with the sedition indictments, DOJ also added 18 USC 372 charges, conspiracy “to prevent, by force, intimidation, or threat, any person … from discharging any duties thereof.”

DOJ may never show that Trump and the mob he sicced on his Vice President conspired to kill him, or even that Trump’s 2:24PM tweet aided and abetted the attempts to find and assassinate Pence — though the judge presiding over the Oath Keepers case has deemed the possibility Trump could be held accountable for aiding and abetting to be plausible, at least for a lower civil standard. But there’s little doubt that Trump, his lawyers, two militias, and the mob entered into a common effort to prevent Pence from doing his duty that day. And with the militias, you can draw a line between Trump, his rat-fucker, Alex Jones, and the men at the Capitol to the threat and intimidation Trump sicced on his Vice President.

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Junkets In Lieu of Investigation: John Durham Charged Igor Danchenko without Ever Interviewing George Papdopoulos about Sergei Millian

June 15, 2022/16 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

Recently, Roger Stone invited George Papadopoulos onto his show to talk about how, even though Michael Sussmann was acquitted, it’s still proof of a grand conspiracy involving Hillary Clinton.

Stone invited Papadopulos to talk about how Durham and Billy Barr chased Papadopoulos’ conspiracy theories to Italy, which both the Rat-Fucker and the Coffee Boy seemed to take as proof that those conspiracies were true, even though Barr has publicly stated there was no there there.

The biggest news from Mr. Durham’s probe is what he has ruled out. Mr. Barr was initially suspicious that agents had been spying on the Trump campaign before the official July 2016 start date of Crossfire Hurricane, and that the Central Intelligence Agency or foreign intelligence had played a role. But even prior to naming Mr. Durham special counsel, Mr. Barr had come to the conclusion that he didn’t “see any sign of improper CIA activity” or “foreign government activity before July 2016,” he says. “The CIA stayed in its lane.”

Seemingly in hopes of finding details that Durham was ignoring, Stone asked Papadopoulos whether Durham had ever spoken to the Coffee Boy. Papadopoulos babbled for some time about his House testimony, then Stone followed up to get him to state that, no, Durham had never spoken to him.

Never.

Stone: You make a very good point. The fact that the Attorney General was on the trip means that he knows the origins of the Russian collusion fraud far earlier than other people realize. George, have you specifically met with either John Durham or representatives of his office to tell them what you know?

Papadopoulos: So, that’s a good question. In 2018, I was one of five witnesses who was invited by–under oath, behind closed doors–in front of the House Oversight Committee. And the other four witnesses, besides myself, were Rod Rosenstein, Sally Yates, uh, Jim Comey, and Loretta Lynch. Now, back in 2018, and there’s a Washington Post article, I think it’s called “Papadopoulos and Rosenstein about to testify behind closed doors,” back in 2018, people were scratching their heads, why on earth is George Papadopoulos one of four, one of five witnesses who is going to testify to both John Ratcliffe and Mark Meadows. Back then, obviously, before Mark Meadows was Chief of Staff at the White House and Ratcliffe was the head of DNI, they were Congressmen. They were in charge of the House Oversight Committee. During that testimony back then, both of those individuals who later served in senior White House, uh, Administrative capacities were asking me questions about wiretaps. They were asking me if I was being monitored while I was in Europe. They were asking me whether my lawyers were ever given so-called exculpatory information about any of, about Joseph Mifsud, any of these other type of operatives, both domestic and foreign. And I basically let them know, under oath, that I’m telling you. How I met him, what my background was, why I believe there was this target on my back, why I think it followed me all the way from the beginning, all the way until the summer of 2017, where they were, the FBI was trying to set me up while I was in Israel with this other bizarre exchange that I had, that I talk about in my book. So that testimony, I believe, was used with the Durham team, to help get this entire thing started, that’s how Durham and Barr flew to both to Rome, to talk to Italian intelligence services — not the FBI — to learn about Mifsud, and I believe — that’s why NBC has also been quoted as saying that Western intelligence officials have gone on the record and stated that it’s Papadopoulos’ breadcrumbs, if you want to call it that, that have led to Durham’s real conspiracy case that he’s trying to uh–

Stone: So, but to go to my direct question, have you had any direct contact with Durham or his office, or your attorneys?

Papadopoulos: No, I haven’t. No no no, no I haven’t. But my understanding is that that testimony, 2018, was used by the Durham, that’s my understanding.

This is fairly shocking — and damning news.

Papadopoulos’ testimony was not only not under oath (though committee staffers admonished the sworn liar not to do it to them), but it was a shitshow.

I’ve cataloged all the ways it was a shitshow below. But the fact that Billy Barr and Johnny D jumped on a plane together for their junket to Rome based off such a shitshow matters for two reasons.

First, it shows that they did no vetting of the conspiracy theories the Coffee Boy repeated in the hearing — which as I show below were really just rewarmed conspiracy theories parroted by John Solomon and Chuck Ross — before hopping on a plane for their junket. Importantly, one of those conspiracy theories was spread by Joseph Mifsud attorney Stephen Roh, who himself is suspected of sketchy ties to Russia.

The other reason it matters is because Durham’s Igor Danchenko prosecution treats Danchenko, whom the FBI found credible in 2017 and afterwards, as less credible than Sergei Millian. But George Papadopoulos, whose testimony Durham considered sufficiently credible to hop on a flight to Rome for, described Millian — in the context of details about his offer to hire him so long as he also worked in the Administration — as “a very shady kind of person.”

Q I guess there’s just one follow-up, because you said some kind of consultancy work for some — someone that Sergei Millian knew in Russia. What would have been the nature of that work? Like, what topic would the work have been on?

A My current understanding — and this is what I think it is, because this is a very shady kind of person — was that it was a former minister of some sort who had money and wanted to do PR work. But then, of course, we met in Chicago, and I felt that, you know, he was — I don’t know. I just felt that when he proposed this deal to me face-to-face that he might have been wearing some sort of wire. And he was acting very bizarre. And I don’t know what that was. Maybe I’m a paranoid person. But there were certain other events regarding Sergei Millian that made — that make me believe that he might have actually been working with the FBI.

Durham shouldn’t be able to have it both ways. If Papadopoulos’ testimony was deemed sufficiently credible, without any more vetting, to justify a taxpayer-paid trip to Rome, then his judgment that Millian is a “very shady person” the likes of whom might lie about a call with Igor Danchenko, then Durham should not rely on Millian’s unsworn Twitter ramblings for four charges against Danchenko.

In short, the fact that Durham hasn’t interviewed Papadopoulos at all, either before or after the junket, is yet more proof that Durham is hesitant to test any of his conspiracy theories with actual investigative work.

Catalog of Coffee Boy Testimony Shitshowery

One key piece of proof that Papadopoulos’ testimony before the Oversight Committee was a shitshow designed to elicit conspiracy theories about Mueller’s investigation rather than useful information is that the committee didn’t ask him for any emails or other records in advance — emails that Papadopoulos had earlier withheld from SSCI, with which request he only partly complied in 2019. Papadopoulos told the committee on at least 18 occasions he had emails or other records that would allow him to answer their questions — about when he joined the campaign, his communications with Olga Polanskaya, Joseph Mifsud, and Ivan Timofeev, his communications with Steve Bannon, Stephen Miller, Mike Flynn, KT McFarland, and Walid Phares, his communications with Sergei Millian, his meetings with Stefan Halper, his interactions with suspect Israelis — accurately, but that he couldn’t without those records. [Note the last several of these are out of order because I just kept finding more examples.]

1. Mr. Breitenbach. Is there any paperwork that you might have indicating when you actually began on the Trump campaign?

Mr. Papadopoulos. I believe we might have, we might have those emails.

Ms. Polisi. We have emails. We don’t have any official documentation.

Mr. Papadopoulos. I mean, if the emails would suffice, I think we have emails suggesting that I would be joining the campaign on this day, or Sam Clovis was telling me you’re on board, good job, or something like that.

[snip]

2. And I remember I even — where I’m going at is I don’t think I was talking to the same person [Olga Polanskaya]. That’s what I’m trying to say.

Q When you say talking?

A I mean writing back and forth.

Q By email? By text?

A Email. Email. And I remember there was even a point I messaged this person on Skype. And I said, are you the same person that I met a couple months ago or so? You know, it was just very odd. I think I, you know, I wrote that to her on Skype. Nevertheless, I think we could provide these emails of my interactions with this individual and Joseph Mifsud. What it seems was going on was that Mifsud was using her as some sort of Russian face or person.

[snip]

3. I could get into the details about what was going on with [Ivan Timofeev] or however —

Q Sure. A So I saw him as potentially the person that could, you know, introduce not only me, but the campaign to the people in the Russian Ministry of Foreign Affairs and then act as the key point man for this potential Trump-Putin submit. We exchanged emails. We could provide those emails to you.

[snip]

4. Q Did you arrange for anyone else to travel to Russia? Let’s just keep it specifically —

A Yeah.

Q — based on your contacts with Mifsud at this point.

A Yes. I reached out directly to Paul Manafort, you know, and Corey Lewandowski and the top — the heads of the campaign, and openly told them I’m trying to arrange this. I mean, they were fully aware of what I was doing. This is all in emails. I’m not sure if you have those emails. I’m happy to provide them to you. That I’m trying to set up this meeting. Are we interested or are we not interested.

[snip]

5. Mr. Meadows. Are you indicating that there are some things that were reported that are not accurate?

Mr. Papadopoulos. That’s a kind way to say it. Okay. Let’s go back to April. I can’t remember exact dates in April, but April, and maybe we can send emails and when could corroborate certain things. I’m in talks with an Israeli diplomat named Christian Cantor, who was introduced to me through, I guess a friend at the Israeli embassy in D.C. named Dore Shapiro, who was an economic counselor. And you have to remember I was very connected to Israel and what was going on. So that was my network.

[snip]

6. Q So how often was that, would you say? Like how often would you be sending an email? I mean, I know it’s a rough estimate, but —

A It depends on the timing. I mean, there was a point where it was very frequent, and then I took a pause, then started up again. I can’t give a number. I really can’t. But there’s a lot of emails, and those are all documented.

Q Okay. So when the transition started, you said that you became introduced to Michael Flynn and K.T. McFarland.

A Over email.

Q Over email.

[snip]

7. Q And what was that project that you were discussing with Sergei Millian?

A Well, this — I never properly understood exactly what we were talking about. I believe I was asking him for a contract. And I have to go back, and I could share notes later on, but I — just giving off my current memory, that he wanted to do some sort of PR or consultancy for a friend of his or somebody that he knew in Russia. And I believe the terms of the agreement would have been $30,000 a month and some sort of office space and in New York. But then I felt that he wasn’t who he seemed to be and that he was working on behalf of somebody else when he was proposing this to me. And — I mean, we could get into that.

[snip]

8. Q With regard to Olga, you mentioned that she discussed sanctions with you in your correspondence. Does that ring a bell?

A I believe she did over email.

Q And what was the position on sanctions that she expressed over email?

A I can’t remember exactly, but we are happy to share them with — we have those emails in case you don’t. And are more than happy to share them with you.

[snip]

9. Q Did [Timofeev] correspond with you about any geopolitical issues in email?

A We certainly exchanged some emails. I can’t remember exactly what’s in those emails, but I’m more than happy to provide them to the committee.

[snip]

10 and 11. Q I’d also like to ask you about some of the communications that you referenced earlier with Trump campaign officials. You said earlier that you provided notes on President Trump’s — then candidate Trump’s big foreign policy speech to Stephen Miller?

A Yes.

Q What was the substance of those comments?

A I can’t remember but I’m more than happy to share them, because it is all in an email form.

Q And you said that you communicated with Steve Bannon by email as well. Is that right?

A Yes.

Q Would you be —

A Email and a couple of phone calls. What was that?

Q Would you be willing to share those emails with Steve Bannon with us as well?

A I’m more than happy to share whatever emails I have with the campaign with the committee.

[snip]

12. Q You mentioned a number of emails where both of you would have been copied. Did you and Mr. Phares have any direct communication just the two of you?

A We met face to face at the TAG Summit. And then we obviously met at the March 31st meeting. And I can’t remember if we met another time in person or not. But we certainly were in correspondence for months over email.

Q Did you discuss your efforts to set up the Putin-Trump meeting with Mr. Phares?

A I’m not sure he was copied on those particular emails, but I could send whatever emails I have with him to the committee. It’s fine with me.

[snip]

13. Q Did you reach out to anyone on the Trump campaign that day?

A That particular day? Like, I think, Steve Bannon, you know, just to say we did it or something like that. I can’t — like I said, I could provide all these emails, I just don’t know. I really can’t remember exactly what I did on that specific day.

[snip]

14. A Sergei Millian reached out to me out of the blue on LinkedIn around sometime in late July 2016. I can’t remember exactly how he presented himself, but he basically stated that he’s an American of Belarusian origin who worked for Trump or his organization, and he could be helpful in understanding the U.S.-Russia relationship, and he might be a good person to get to know. So I thought this was probably one of Trump’s people and he’s reaching out to me. That’s a good sign. I have the message somewhere. I could always present it to the committee here. And then we met shortly after that in New York.

[snip]

Mr. Meadows. Do you know when in July of 2016, what the date was?

Mr. Papadopoulos. I’m not 100 percent sure, but I think it was around July 22nd. Mr. Meadows. And do you recall the date that you actually met with him?

Mr. Papadopoulos. I’m not even 100 percent sure of exactly the day in July. I could always go back in my records and provide that.

Mr. Meadows. That would be helpful. Those dates would be helpful, but when did you meet with him, in July or in August?

[snip]

15. You explained previously that Mr. — that Professor Mifsud had a connection to and introduced you to Ivan Timofeev. Is that right? A Via email, yes.

Q And did he explain at the time what the purpose of that introduction was?

A I assume he did. I just can’t remember exactly the language, the specific language of the introduction. But I have those emails and am more than happy to share that — those interactions with the committee.

[snip]

16. A I — as I’ve stated, I never met Timofeev in my life face-to-face, so I’m just trying to go back in my memory to see if he actually copied any Russian nationals on an email. I don’t recall that. But as I stated, I’m more than happy to share all communication I have with this person.

Q Great. Thank you.

A Yes.

Q Do you recall him introducing you to any other people in the emails or when you spoke to him by phone?

A I — I don’t recall. But they — but the emails should be in our possession, and we’re more than happy to provide them.

[snip]

17. Q Real quick, just following up on Congressman Ratcliffe’s questions in terms of timing with your conversation with Mr. Halper. You had mentioned it was sometime between September 13th through the 15th. But then you said that you had left London by flight, I suppose. So you might have a record on the day that you left?

A Yes.

Q And you think you met with him the day before you left.

A Yes.

Q Is that something you could provide to us?

A I believe so, yes. It shouldn’t be too hard.

[snip]

18. Mr. Meadows. So I want to follow up on one item from the previous hour, where you had talked about Mr. Tawil. I guess you had not heard from him about the $10,000. And then all of a sudden, you get an email, I assume an email out of the blue saying he wants his $10,000 back. Is that correct?

Mr. Papadopoulos. My memory of the past year, and any interactions I had with this individual — I’m more than happy to share his emails with the committee — was that he would reach out to me indirectly through contacts of mine, and ask how was George doing, what’s his news, even though I was all over the global media at that time. And I don’t remember him ever asking for his money back, even though I had offered to give him his money back, shortly after I left him in — wherever I left him. And going back into my records, I just looked at my email, and we can provide this to you, I think 2 days after I was sentenced, I think — so, September 9th of last month, he sends me an email and he says, not only am I thinking about suing you, but I want my money, and let’s act like we never met. Something along those lines.

Without these emails, the testimony was guaranteed to be useless with respect to 2016, but it gave Papadopoulos the opportunity to engage in wild conspiracy theorizing. The Coffee Boy didn’t much remember the events of 2016, but he did remember what he read in the Daily Caller, the Hill, and the NYT in the weeks before his testimony, which is what he spent much of his testimony telling Congress about.

A You know, I don’t want to espouse conspiracy theories because, you know, it’s horrifying to really think that they might be true, but just yesterday, there was a report in the Daily Caller from [Joseph Mifsud’s] own lawyer that he was working with the FBI when he approached me. And when he was working me, I guess — I don’t know if that’s a fact, and I’m not saying it’s a fact — I’m just relaying what the Daily Caller reported yesterday, with Chuck Ross, and it stated in a categorical fashion that Stephan Roh, who is Joseph Mifsud’s, I believe his President’s counsel, or PR person, said that Mifsud was never a Russian agent.

In fact, he’s a tremendous friend of western intelligence, which makes sense considering I met him at a western spying school in Rome. And all his interactions — this is just me trying to repeat the report, these are not my words — and when he met with me, he was working as some sort of asset of the FBI. I don’t know if that’s true or not. I’m just reporting what my current understanding is of this individual based on reports from journalists.

[snip]

But I guess the overwhelming evidence, from what I’ve read, just in reports, nothing classified, of course, because I’m not privy to anything like that, and considering his own lawyer is saying it, Stephan Roh, that Mifsud is a western intelligence source. And, I guess, according to reports yesterday, he was working with the FBI. I don’t know if that’s true or not. I’m just here to, you know, maybe, you know, let you — direct you in certain directions of what I’ve read and maybe, in case you haven’t read it.

[snip]

Mr. Meadows. Are you aware of any potential exculpatory evidence that would exist that you just have not seen or your counsel have not seen?

Mr. Papadopoulos. I read John Solomon’s report, like I think probably everyone in this room did from The Hill a couple days ago, about Stefan Halper, which is another person. But in regarding Downer, no, I haven’t seen anything like that.

[snip]

Q Were you — are you aware of any other transcripts or recordings or exculpatory materials as Mr. Meadows referenced?

A This is what I currently understand. I read the John Solomon report about the Stefan Halper, I guess, tapes or recordings of some nature. And so — my old lawyer or — all I — my understanding is that they had a — that they gave me, my old lawyers, a passing reference to something about — I said about treason, and I am — no, about the exculpatory.

[snip]

A My current memory makes me believe that he was stating it as a fact, and I took it as well.

Q And did you believe him at the time?

A At the time, yeah.

Q And so —

A But at the time, also, I thought he was validating rumors. So that was really my impression of him. I mean, you have to understand this is a person who sold himself as the key to Moscow but then really couldn’t deliver on any one of real substance except Putin’s fake niece and the think tank analyst, and then now he’s drooping this information on me. It was very confusing. You can understand how confusing this process was over the month.

Q Do you not believe him now, given what you’ve learned, or do you — you know, do you continue to believe that he was given information that the Russians had Hillary Clinton’s emails?

A I’m not a conspiracy theorist. Everything I’ve ever tweeted or — probably, if that’s what you’re referring to, it’s just backed by things I’ve read in the media. And it’s not my job to dig into this person, because I really don’t care about this person. And legally, I’m not even allowed to talk to him directly or indirectly. So all I can do is read reports, read what his lawyer is saying, and take it with a grain of salt and just share that information with you that his lawyer, yesterday, said that he was working with the FBI. Was he? Is his lawyer a crazy person who’s slandering his client, or was he really working with the FBI and this was some sort of operation? I don’t have the answer to that, and I’m not sitting here telling you I do have the answer to that.

[snip]

Mr. Papadopoulos. Just who I am, my background in the energy business, because everyone was curious about my background in the energy business in Israel. And that’s another thing we’ll get to about what I think why I had a FISA on me, but I don’t know. She then apparently — I don’t remember it, I’m just reading The New York Times. She starts asking me about hacking. I don’t remember her actually asking me that, I just read it in The New York Times. Nevertheless, she introduces me the next time to Stefan Halper.

Mr. Meadows. She asked you about hacking?

Mr. Papadopoulos. I don’t remember it. I just — I think I read that particular —

Mr. Meadows. You’ve read that?

Mr. Papadopoulos. Yes, that’s what I — I think I read it in The New York Times.

[snip]

Mr. Meadows. You say a transcript exists. A transcript exists of that conversation?

Mr. Papadopoulos. That’s I guess what John Solomon reported a couple days ago.

Mr. Meadows. So are you aware of a transcript existing? I mean — Mr. Papadopoulos. I wasn’t aware of a transcript existing personally.

Mr. Meadows. So you have no personal knowledge of it?

Mr. Papadopoulos. I had no personal knowledge, no.

Mr. Meadows. But you think that he could have been recording you is what you’re suggesting?

Mr. Papadopoulos. Yes.

Having used the stories of Stephen Roh and John Solomon — key players in Russian influence operations — to float conspiracy theories about the Coffee Boy being set up, both Mark Meadows and John Ratcliffe then cued Papadopoulos to attack the Mueller investigation.

For example, Meadows suggested that the FBI had not read Papadopoulos his Miranda rights and had improperly searched his bags.

Mr. Meadows. They told you — I guess, they gave your Miranda rights?

Mr. Papadopoulos. I don’t remember that. I don’t remember that. I’m sure there might be the video or a transcript of what was going on. You have to understand, I had just come off a trans-Atlantic flight.

In fact, when Papadopoulos told agents he was still represented by an attorney, they told him they would ask no further questions, read his rights and marked the Miranda form as waived. But even after being warned not to say anything without his lawyer present, he kept offering unsolicited comments. And in spite of Meadows’ insinuations, while in FBI custody Papadopoulos thanked the FBI agents for treating him well.

Meadows also found it deeply suspicious that the FBI would ask Papadopoulos to wear a wire to record Joseph Mifsud.

Mr. Meadows. Now, this is the same agent that said that he knew that you had said something. Is that the same person?

Mr. Papadopoulos. Same guy.

Mr. Meadows. And so, he was the one that said you had definitely — I want to make sure that we’re accurate with this. If you’ll — because the name keeps coming back. When you said you didn’t know what you had said to Mr. Downer, it’s the same agent that said, Oh, yes, you said it. Is that correct?

Mr. Papadopoulos. That’s how I remember it, yes.

Mr. Meadows. Okay. So go ahead.

Mr. Papadopoulos. So I told him, I’m not interested in wearing a wire.

Mr. Meadows. So on your second meeting with the FBI, they asked you to wear a wire?

Mr. Papadopoulos. Against Mifsud.

Mr. Meadows. Against Mifsud, who they believed at that time was doing what?

Mr. Papadopoulos. Well, I guess —

Mr. Meadows. Why did they want you to wear a wire for Mifsud?

The reason Meadows is so bothered that the FBI tried to investigate a suspected Russian agent is that he wanted proof that that Papadopoulos himself was taped. He was looking for something specific: transcripts.

Mr. Meadows. So as we look at this, I think getting our head around all of this is just — it’s hard to believe that it happened in the United States of America. And I think that that’s the trouble that I have with it. And I’ve seen nothing in the classified setting. I want to — for the record, I purposely have not gone into a classified setting to see things so that I can try to put this piece of the puzzle together. It is my belief that you were taped at some point or another by one of these officials, whether it be Mifsud or whether it be Downer or whether it be Halper. I don’t know which one of them did it, but I believe that certainly it is my strong belief that you were taped. Has anyone in the Department of Justice indicated to you that they may have a tape of a private conversation that you had with anyone of those three individuals?

The goal of Meadows and John Ratcliffe — probably the entire point of the hearing, which took place in the wake of a John Solomon article reporting on the topic — was to suggest that George Papadopoulos was deprived of exculpatory evidence, transcripts from his interactions with Halper, before he pled guilty and that he wouldn’t have pled guilty had he received it. Coached by Meadows and influenced by things he read at the Daily Beast, Papadopoulos says maybe the whole thing was a set-up.

Mr. Meadows. I guess if they had that, wouldn’t, before you pleaded guilty, wouldn’t that be something that they should have provided to you or let you know that there was exculpatory evidence out there?

Mr. Papadopoulos. Absolutely. And that would have changed my calculus 100 percent.

Mr. Meadows. Okay. So you, perhaps, would not have pleaded guilty if you knew that there was this tape of a private conversation with one of the three individuals that I just mentioned?

Mr. Papadopoulos. That’s correct. I guess, my thought process at the time —

Mr. Meadows. Because it could potentially have been a setup.

Mr. Papadopoulos. Absolutely could have been. And just going back in my memory, I guess the logic behind my guilty plea was that I thought I was really in the middle of a real Russia conspiracy, that this was all real, and that I had to plead out or face life in prison, the way they were making it seem. And after this conversation and after much information that’s come out, it’s clear that my — I was completely off on my calculus?

Here’s how former US Attorney Ratcliffe quizzes Papadopoulos about whether he was asked about his conversations with a confidential informant.

Mr. Ratcliffe. Again, to be real clear, the special counsel investigating collusion, potential collusion, or links between the Trump campaign and the Russian Government never asked you, the person around which this investigation was opened and centered, about any communications you had with an individual where you expressed that there was no collusion between the Trump campaign and the Russian Government?

Mr. Papadopoulos. That’s what I remember, yes.

Mr. Ratcliffe. The reason I’m asking these questions, Mr. Papadopoulos, is your credibility is at issue, and will be at issue, because you have pled guilty to an 18 U.S.C. 1001 charge of lying to the FBI. And so there will be those that will call into question the truthfulness of your testimony. If you’ve lied to the FBI before, how do we know that you’re telling us the truth? But if there is a transcript of a conversation that you had where you expressed that you had no knowledge about collusion, that might corroborate your testimony. It might also raise obligations, obligations to you as a defendant, to your lawyers as defense counsel, and to various judges as arbiters of material facts.

Here’s how Meadows asked the same question.

Mr. Meadows. Both. I mean, obviously if the special prosecutor is trying to get to the truth and you’re having substantial conversations with Stefan Halper and they don’t ask any questions about it, I find that curious. Do you find that curious?

Mr. Papadopoulos. Now I do.

There are a few problems with Meadows and Ratcliffe’s story. First, Papadopoulos made clear that his lawyers did get the substance of the transcript in question, where Papadopoulos likened what Roger Stone did to treason.

Mr. Meadows. About recordings or transcripts of Mr. Halper?

Mr. Papadopoulos. I never saw anything, but my lawyers, to be clear, they had made a passing remark about something that I said about treason —

Worse still, when Meadows asked Papdopoulos about his conversation with Halper, the Coffee Boy tried to claim his purported disavowal of “collusion” was made to someone he never imagined could be investigating him.

Mr. Meadows. So when you pushed back with Stefan Halpern [sic], and you said, Listen, this is, you know, I’m not going to do that and colluding with the Russians would not be something that I would do. It would be against the law — I don’t want to put words in your mouth — you had no knowledge of being under an investigation at that particular time, is that correct?

Mr. Papadopoulos. So, that’s absolutely correct, and if I had even a scintilla of proof or belief that Stefan Halper was an FBI agent, there’s no way I would have be going and talking to him — I just wouldn’t, I don’t think I would. I don’t think anybody would be running into some sort of operation against themselves.

That’s false. According to the DOJ IG Report, he told another informant he thought Halper would tell the CIA what he said.

Papadopoulos said he believed Source 2 was going to go

and tell the CIA or something if I’d have told him something else. I assume that’s why he was asking. And I told him, absolutely not …. it’s illegal, you know, to do that.. .. [my emphasis]

That is, Papadopoulos admitted to a second FBI informant that he said what he had to Halper precisely because he believed Halper might share what he said with the IC.

Which is among the reasons the FBI believed his answer was a rehearsed cover story in real time.

Now, Papadopoulos’ claim that he never imagined Halper might tell the FBI what he said when in fact he said the nearly the opposite in real time is not the only false claim he made to Congress before Billy Barr and Johnny D went on their junket chasing his conspiracy theories.

This answer, for example, is mostly word salad. But it hides that Papadopoulos continued to pursue a meeting with Russia until September 2016, months after he reached out to Paul Manafort. The word salad obscures a topic — his later effort to set up a meeting with Russian — that Papaodpoulos refused to explain to Mueller.

And to the best of my understanding, that’s when, you know, I really stopped engaging about this Trump-Putin potential meeting.

[snip]

Q Were there other interactions with Mifsud about, I think I read about possibly setting up a trip to Russia about campaign officials? Is there other things you worked on with him aside from the Putin summit? A Yeah, I think what we were trying to do is bring — I was trying to bring the campaign, I think Sam Clovis and Walid Phares and I, we were talking about potentially going to Europe and meeting officials together. And I was trying to see who Mifsud potentially knew in the U.K., or in other parts of Europe that could facilitate that meeting. Of course, we never did it. I think Sam Clovis ended up telling me I can’t make it, I’m too busy, but if you and Walid want to go to this, whatever you’re trying to put together, go ahead. That’s what I remember.

Q And did that trip ever happen?

A I never traveled with Walid Phares, no.

Q Did you arrange for anyone else?

A What was that?

Q Did you arrange for anyone else to travel to Russia? Let’s just keep it specifically —

A Yeah.

Q — based on your contacts with Mifsud at this point.

A Yes. I reached out directly to Paul Manafort, you know, and Corey Lewandowski and the top — the heads of the campaign, and openly told them I’m trying to arrange this. I mean, they were fully aware of what I was doing. This is all in emails. I’m not sure if you have those emails. I’m happy to provide them to you. That I’m trying to set up this meeting. Are we interested or are we not interested. So Corey Lewandowski was informed, Paul Manafort was informed, Sam Clovis was informed about what I was doing and what my progress, I guess, if you want to call it that, was.

“It is a lot of risk,” the notes that Papadopoulos refused to explain appear to have said about a September meeting with Russia, originally scheduled for the same dates as he met Halper.

And when Democratic staffers tried to get back to the gist of the issue — away from the transcripts capturing coached answers Papadopoulos told because he thought the answer might get back to the CIA and to the charged conduct — Papadopoulos’ lawyer refused to let him answer.

Q Is it your position here today that you did not lie to the FBI during your first interview?

Ms. Polisi. I’m just going to advise my client not to answer that.

In several such interactions, the Democratic staffers identified material discrepancies between what Papadopoulos said to a Committee of Congress and what he had sworn to in his guilty plea.

So Mr. Papadopoulos, why did you lie to the FBI and claim that your interactions with Professor Misfud occurred before you became a foreign policy adviser to the Trump campaign?

Ms. Polisi. I’m going to object to this line of questioning.

Ms. Shen. What’s the objection based upon?

Ms. Polisi. We are here on a voluntary basis. We have answered all of your questions thus far. It is my advice to him that he not talk specifically about the offense conduct.

[snip]

Q Can you please turn to page 4. Mr. Papadopoulos, I believe earlier in this round, we were asking about your interviews with the FBI, and I believe that you said that you had brought up to the FBI the — the professor and your conversation with him. Is that correct?

A That is what I remember.

Q So if you could take a look at footnote 2 on this page, page 4, in the second paragraph, it reads, “To the contrary, the defendant identified the professor only after being prompted by a series of specific questions about when the defendant first learned about Russia’s disclosure of information related to the campaign, and whether defendant had ever, quote, ‘received any information or anything like that from a Russian government official’ unquote. In response, while denying he received any information from a Russian Government official that further identified the professor by name, while also falsely claiming he interacted with the professor ‘before I was with Trump though.'” Mr. Papadopoulos, what you just said earlier today during this interview doesn’t seem to jive with the information in this footnote. Can you explain the discrepancy?

Ms. Polisi. I’m still going to object to this line of questioning. I disagree with your characterization of his previous testimony. What’s written is written, you read it into the record.

Ms. Shen. Well, he just agreed with my characterization.

Ms. Polisi. No, he did not. He did not. He did not agree with your characterization.

Ms. Shen. I asked him if what we talked about earlier was correct — on the record.

Ms. Polisi. That is correct.

Ms. Shen. And then I read the paragraph from his sentencing memorandum, and you are not allowing him to respond to that.

Ms. Polisi. Correct, I’m not allowing him to respond to that.

I guess it makes sense that Durham would not interview Papadopoulos after this performance. It’s not actually clear whether he could tell the truth, and if he did, the truth — that the Coffee Boy was still pursuing a risky back channel to Russia even after the investigation into him was opened — would utterly destroy the objective of the Durham investigation.

So in the same way that Durham never subpoenaed Jim Baker before basing an entire indictment on his testimony, Durham never spoke to Papadopoulos, who would testify that in the same weeks when — Durham claims — Danchenko believed he had a sketchy call with Millian, Papadopoulos started having similar calls with the “very shady person” that Durham has made the centerpiece of his case against Danchenko.

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On Josh Schulte’s Continued Attempts to Hack the Judicial System

June 12, 2022/25 Comments/in Cybersecurity, emptywheel, WikiLeaks /by emptywheel

Last June, I argued that accused Vault 7 leaker Josh Schulte’s decision to represent himself involved a plan to “hack” the judicial system, not with computer code, but by introducing commands into the legal system to make it malfunction.

Joshua Schulte attempted to complete a hack of the court system yesterday.

I don’t mean that Schulte used computer code to bring down the court systems. His laptop doesn’t connect to the Internet, and so he does not have those tools available. Rather, over the 3.5 years he has been in jail, he has tested the system, figured out which messages can be used to distract adversaries, and which messages have an effect that will lead the system to perform in unexpected ways. He identified vulnerabilities and opportunities — SDNY arrogance, the pandemic and related court delays, Louis DeJoy’s postal system, and even the SAMs imposed on him — and attempted to exploit them.

[snip]

It is almost without exception an insanely bad idea for a defendant to represent themselves, and this is probably not that exception. Still, there are advantages that Schulte would get by representing himself. He’s brilliant, and clearly has been studying the law in the 3.5 years he has been in prison (though he has made multiple errors of process and judgment in his own filings). He has repeatedly raised the Sixth Amendment problems with Special Administrative Measures, notably describing how delays in receiving his mail make it impossible for him to respond to legal developments in timely fashion. So I imagine he’d prepare a Sixth Amendment challenge to everything going forward. He’d be able to demand access to the image of the server he is alleged to have hacked himself. By proceeding pro se, Schulte could continue to post inflammatory claims to the docket for sympathetic readers to magnify, as happened with a filing he submitted earlier this year. And after the government has made clear it will reverse its disastrous strategy from the first trial of making the trial all about Schulte’s conflicts with the CIA, by questioning witnesses himself, Schulte would be able to make personality conflicts central again, even against the government’s wishes. Plus, by not replacing Bellovin, Schulte would serve as expert himself. In that role, Schulte would present the false counter story he has been telling since he was jailed, but in a way that the government couldn’t cross-examine him. So it would probably be insanely detrimental, but less so than for most defendants that try it. It certainly would provide a way to mount the defense that Schulte clearly wants to pursue.

I also noted the signs that what Schulte really wanted to do was act as co-counsel with his attorneys, something prohibited by precedent in the 2nd Circuit.

Much of this has held up (though not regarding Steve Bellovin, Schulte’s superb expert; Schulte has effectively just waited for Bellovin to become available again). Schulte has engaged in the legal equivalent of a DDOS attack, with dozens of motions in the last year, many serial repeats of the same arguments rejected already, and seventeen appeals of one sort or another.

It appears that Schulte may still be attempting to have hybrid counsel. In a New Yorker profile that came out this week, his attorney, Sabrina Shroff, described how by going pro se, Schulte will not be bound by the legal ethics she is (particularly if he’s willing to face further charges for whatever he does at trial — his potential sentence is already so long any additional contempt or leaking charges might make little difference).

When you consider the powerful forces arrayed against him—and the balance of probabilities that he is guilty—Schulte’s decision to represent himself seems reckless. But, for the C.I.A. and the Justice Department, he remains a formidable adversary, because he is bent on destroying them, he has little to lose, and his head is full of classified information. “Lawyers are bound,” Shroff told me. “There are certain things we can’t argue, certain arguments we can’t make. But if you’re pro se ”—representing yourself—“you can make all the motions you want. You can really try your case.”

Nevertheless, Schulte recently wrote a letter inquiring about whether Shroff could cross-examine some of the witnesses and issue objections for him.

I fully expect Schulte to make his contentious relationship with his colleagues a central feature of the trial (Schulte even attempted, unsuccessfully, to exclude the one CIA witness who remained on good terms with him, which would have made it easy to portray his targeting as a vendetta by colleagues who hate him). I expect Schulte to disclose information about his colleagues — perhaps including that Jeremy Weber, a pseudonym, appears under his real name in the Ashley Madison hack, an allegation Schulte seemed primed to make in 2018. Whatever else Schulte does, he will attempt to raise the costs of this trial on the CIA.

Stipulating stipulations

No doubt he has other stunts planned. Schulte claimed this week that the government is refusing to stipulate to things from official custodians (like Google).

This doesn’t make sense, unless Schulte is trying to undermine the regularity of this evidence with stipulations.

All that said, I think I may have underestimated Schulte when I suggested he only intended to use legal filings as the code with which he would hack the judicial system.

When dropping a laptop alters its BIOS

On June 1, Shroff wrote the court informing Judge Jesse Furman that a guard had accidentally dropped Schulte’s discovery laptop, but asking for no further relief.

We write to inform the Court that a guard at the MDC accidently dropped Mr. Schulte’s laptop today, breaking it. Because the computer no longer functions, Mr. Schulte is unable to access or print anything from the laptop, including the legal papers due this week. The defense team was first notified of the incident by Mr. Schulte’s parents early this afternoon. It was later confirmed in an email from BOP staff Attorney Irene Chan, who stated in pertinent part: “I just called the housing unit and can confirm that his laptop is broken. It was an unfortunate incident where it was accidentally dropped.”

Given the June 13, 2022 trial date, we have ordered him a new computer, and the BOP, government, and defense team are working to resolve this matter as quickly as possible. We do not seek any relief from the Court at this time.

I think Shroff is a formidable defense attorney and she has no patience for the carceral regime that her clients face, particularly someone under strict measures like Schulte. Which is why I find it so odd that she was so blasé about what might be viewed as intentional retaliation against Schulte, just days before trial, especially given Schulte’s recent complaints about his access to the law library. A month earlier, after all, Shroff had described that efforts at détente with the jail had failed.

I’m especially puzzled about Shroff’s response given the discrepancy between her explanation — sourced to Schulte’s parents and the prison attorney, not anyone who could be held accountable for a false claim — and that of the government.

On June 6, DOJ explained its resolution of the laptop. Their explanation sounds nothing like a dropped laptop, at all. It sounds like an attempted hack.

First, with respect to the defendant’s discovery laptop, which he reported to be inoperable as of June 1, 2022 (D.E. 838), the laptop was operational and returned to Mr. Schulte by the end of the day on June 3, 2022. Mr. Schulte brought the laptop to the courthouse on the morning of June 3 and it was provided to the U.S. Attorney’s Office information technology staff in the early afternoon. It appears that the laptop’s charger was not working and, after being charged with one of the Office’s power cords, the laptop could be turned on and booted. IT staff discovered, however, that the user login for the laptop BIOS1 had been changed. IT staff was able to log in to the laptop using an administrator BIOS account and a Windows login password provided by the defendant. IT staff also discovery [sic] an encrypted 15-gigabyte partition on the defendant’s hard drive. The laptop was returned to Mr. Schulte, who confirmed that he was able to log in to the laptop and access his files, along with a replacement power cord. Mr. Schulte was admonished about electronic security requirements, that he is not permitted to enable or use any wireless capabilities on the laptop, and that attempting to do so may result in the laptop being confiscated and other consequences.

All the more so given one of the new details disclosed in the New Yorker profile: that in his moments of desperation to keep his contraband cell phone charged in jail back in 2018, Schulte figured out how to hot-wire the phone to the light switch.

Schulte figured out a way to hot-wire a light switch in his cell so that it worked as a cell-phone charger. (The person who knew Schulte during this period praised his innovation, saying, “After that, all M.C.C. phones were charged that way.”)

In recent months, Schulte has been making technical requests, such as for his own printer or a write-capable DVD which (he explicitly said) he wanted to use to transfer “other binary files” in addition to trial exhibits, that seemed an attempt to acquire equipment that could be used for other purposes. Here, in the guise of an accident caused by a guard, Schulte got his laptop, with its BIOS alteration, its encrypted compartment, and apparent attempts to use wireless capabilities, into the office of the people prosecuting him, then got it returned with a new power cord.

Among the things Schulte worked on at CIA was a tool to jump an air gap and compressing and exfiltrating data.

The expanding Pompeo subpoena

Then there’s the way information has gotten to Schulte, who is under strict Special Administrative Measures that would normally limit news about his own case from getting shared with him (the following is not a commentary about the humanity or constitutionality of SAMs, which are arguably not either; it is an observation that they may not be working). In a filing purporting to represent Schulte’s views as to why he needs to call Mike Pompeo as a witness, his stand-by attorneys laid out the following justification:

Secretary Pompeo was Director of the CIA in May 2017 when WikiLeaks began disclosing Vault 7 and Vault 8. As noted in prior briefings to the Court, [1] Mr. Pompeo was immediately debriefed about the WikiLeaks disclosure and specifically informed that Mr. Schulte was an early suspect. He was also told that Mr. Schulte had a disciplinary history. Further, less than a week after the disclosure, Secretary Pompeo approved the substance of the first search warrant application, authorizing the FBI to make various statements therein, at least some of which later proved untrue.

As such, Secretary Pompeo took an active role in the investigation against Mr. Schulte and has non-hearsay information that is relevant to the charges. Mr. Schulte also seek to inquire of Secretary Pompeo whether he directed his staff to consider charges against Mr. Schulte to the exclusion of anyone else or contrary to existing exculpatory evidence

Further, while the government has sought to establish the grave harm caused by the leak, just months after it allegedly occurred, [2] Secretary Pompeo championed WikiLeaks’ publication of the stolen DNS [sic] emails on social media. This disconnect, too, is ripe for examination.

Finally, as recently as September 2021, [3] Secretary Pompeo continued to voice his views on the prosecution of leaks from WikiLeaks, see https://nationalpost.com/news/trump-pompeo-and-cia-agents-discussed-kidnappingassassinating-assange-in-revenge-for-vault-7-leak. Secretary Pompeo’s evolving stance on the prosecution of leaks is relevant to the issues at trial. Accordingly, Mr. Schulte asks this Court to deny the government’s application to preclude Secretary Pompeo’s testimony. [my numbering]

In the past, I have argued that calling Pompeo as a witness is a reasonable request, for what I’ve marked as reason 2, above. As House Intelligence Chair, Mike Pompeo cheered WikiLeaks’ release of emails by Russia from the DNC. He did so in July 2016, months after Schulte is alleged to have transmitted the CIA files in early May 2016. That Pompeo’s support of WikiLeaks, even when he had access to intelligence about them, did not prevent him from being confirmed as CIA Director undercuts claims about Schulte’s perception of the particular damage leaking to WikiLeaks might do.

But the other two reasons are more suspect. Reason one, Pompeo’s approval of early steps in the investigation, is only a measure of what he got briefed, and the briefer would be the more direct witness to the substance of that briefing (and given the seniority of some of the witnesses who testified at his first trial, likely already appeared as witnesses. But Pompeo’s presumed briefing of the case to Donald Trump — before Trump almost blew the case by sharing those details with Tucker Carlson on the very day the FBI first searched Schulte — is another issue. I’m acutely interested in Trump’s treatment of the attack on the CIA by a Russian-associated outlet in 2017, but it really doesn’t indicate anything about Schulte’s guilt or innocence.

The last reason — the claim published by Yahoo but never matched by another outlet that Pompeo responded to the initial Vault 7 release by asking about the possibility of assassinating Julian Assange — is a more dubious argument still. Remember: This is Schulte’s standby counsel writing this filing. They’re not under SAMs, Schulte is, but they’re only his standby counsel, and so should only be posting things he can be privy to. The rationale for calling Pompeo is presented as Pompeo’s comments, from September 2021, responding to the Yahoo story. Except the story linked — to a Canadian story on the Yahoo story published a day before Pompeo’s response — doesn’t reflect those 2021 comments from Pompeo at all. If Pompeo were really asked to testify about this, he would debunk parts of it, as his actual public comments about the story did. If the Yahoo story became an issue at trial, it might come out that the story repeats a claim (though nowhere near the most inflammatory claim of the story) made publicly by a WikiLeaks surrogate in 2020, but never (AFAIK) made publicly elsewhere, and that Michael Isikoff had persistently suppressed details from the Stone prosecution that debunk large parts of the Yahoo story. That is, if the Yahoo story became an issue at Schulte’s — or anyone else’s — trial, it could easily be discredited, like several of the other stories used in WikiLeaks’ campaign against Assange’s extradition. But Schulte, who has purportedly read about this in spite of his SAMs, would like to make it an issue at his trial.

A minute note in the docket may indicate that the two sides settled this issue on Friday. So we’re likely to be deprived of Pompeo’s testimony for a second Schulte trial.

The [redacted] discovery

I find reasons one and three particularly interesting given a series of documents that presumably relate to a broader-than-publicly understood investigation into WikiLeaks. Schulte was provided materials from that investigation in discovery on April 6 or 8. Schulte sent Judge Furman a request on April 29 (perhaps not coincidentally, after a UK judge approved Assange’s extradition, though the actual extradition decision remains pending before Priti Patel) asking to obtain all the discovery from that case, have it excluded from the protective order so he could use it at trial, and asking Furman to give Schulte an investigator so he could learn more about that investigation. In response to an order from Furman, the government responded on May 16. All the materials were docketed on May 25.

The materials are so heavily redacted as to offer little illumination to the subject. They do say, however, that the investigation “is neither known to the public nor to all of the targets of the investigation,” suggesting that at least one of those targeted is aware of it, and that DOJ is working with targets, not subjects. DOJ asserts that Schulte’s claims about the utility of the evidence for his trial conflict. It also describes that Schulte wants to argue — falsely, DOJ asserts — that this evidence proves the Vault 7 materials were obtained by hackers. Given the original discovery letter and subsequent treatment, it is unclear to me whether this information is considered classified, or just confidential. But the government, unsurprisingly, argues that the material shouldn’t be released.

[B]ecause the [redacted] Investigation Materials relate to an ongoing criminal investigation, and their disclosure could cause serious harms to that investigation and other law enforcement interests.

The argument for Pompeo’s testimony, above, came after DOJ responded to Schulte’s request for more information. That is, Schulte’s defense stretched beyond a completely legitimate claim that Pompeo’s actions prove that even the CIA did not consider support for WikiLeaks disqualifying at the moment Schulte allegedly leaked the files, to claims that are little more than repetitions of Trumpist and WikiLeaks propaganda.

Meanwhile, Schulte is asking for a two day adjournment of trial after jury selection starting tomorrow, partly on account of the laptop, partly because the government has shifted the order in which they’ll present witnesses, this time starting with Richard Evanchec, one of the FBI Agents who originally investigated the leak, rather than Schulte’s colleagues at the CIA (among other things, doing so will foreground Schulte’s easily debunked cover story, which he plans to tell himself in court).

Sometime this week, Schulte will have his moment in court, this time running his own defense and exploiting whatever hacks — digital or legal — he has succeeded in launching over the last year or four. As Shroff says, Schulte’s not bound by professional ethics in any way that would limit what arguments he makes. Schulte will undoubtedly attempt to feed the jury the kind of code that the legal system normally doesn’t expect. We will then get to see whether such code causes the system to malfunction.

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“Something Like This Has 0 Repercussions if You Mess Up:” John Durham Debunked the Alfa Bank Debunkery

June 8, 2022/67 Comments/in 2016 Presidential Election, emptywheel, Mueller Probe /by emptywheel

As you know, John Durham failed spectacularly in trying to use a false statement charge against Michael Sussmann to cement a wild conspiracy theory against the Democrats.

But Durham did succeed in one thing (though you wouldn’t know it from some of the reporting from the trial): He utterly discredited the FBI investigation into the Alfa Bank allegations. Lead prosecutor Andrew DeFilippis even conceded as much in his closing argument.

Now, ladies and gentlemen, you have heard testimony about how the FBI handled this investigation. And, ladies and gentlemen, you’ve seen that the FBI didn’t necessarily do everything right here. They missed opportunities. They made mistakes. They even kept information from themselves.

That’s a fairly stunning concession from DeFilippis. After all, DeFilippis asked the guy who was responsible for some of the worst failures in the investigation, Scott Hellman, to be his expert witness, even though Hellman, by his own admission, only “kn[e]w the basics” of the DNS look-ups at the heart of the investigation. Along with Nate Batty, Hellman wrote an analysis of the Alfa Bank white paper in less than a day that:

Misstated the methodology behind the white paper
Blew off a reference to “global nonpublic DNS activity” that should have been a tip-off about the kinds of people behind the white paper
Falsely claimed that the anomaly had only started three weeks before the white paper when in fact it went back months
Asserted that there was no evidence of a hack even though a hack is one of the hypotheses presented in the white paper for the anomaly at Spectrum Health (Spectrum itself said the look-ups were the result of a misconfigured application)

Later testimony showed that, after speaking to Hellman and before even checking whois records, the Chicago-based agent who had a lead role in the investigation told a supervisor that “we’re leaning towards this being a false server.”

Within hours, Miami-based agents had confirmed with Cendyn that was false.

In spite of being so egregiously misled from the start by the guys in Cyber, agent Curtis Heide testified in cross-examination by Sussman’s attorney, Sean Berkowitz, that Hellman’s analysis was one of the four things that he believed supported a finding that the anomaly was not substantiated.

Q. Okay. I think near the end of your examination by Mr. Algor he questioned you about your basis for concluding that there was — that the allegations were unsubstantiated. And I think you gave four reasons. I’m going to run through them. If there’s more, that’s okay. Number one, you said the assessment done by Agents Hellman and Batty. Correct?

A. Yes.

Q. Two, the review of the logs. Correct?

A. Yes.

Q. Three, the Mandiant conclusion. Correct?

A. Yes.

Q. And four, the discussions with Spectrum Health about the TOR node. Correct?

A. Yes.

Q. Anything else that you can recall, sir, as to why it was that your investigation, or rather the investigation that you oversaw, suggested that the allegations were unsubstantiated?

A. The only other thing I can think of would be my training and experience with — relating to Russia and cyber investigations.

Q. And is there anything in particular about that that you recall today?

A. With respect to the white paper, it didn’t — when I read through it initially, I had several questions, and it didn’t appear to be consistent with Russian TTPs.

Another thing Heide relied on was the analysis from Mandiant, which Alfa Bank hired to investigate after NYT reached out. According to Franklin Foer’s story, Lichtblau reached out to Alfa on September 21, after Sussmann had given the FBI a heads up but before the FBI asked Lichtblau to hold the story on September 26, so in the window when the FBI had a chance — but failed — to protect the investigation.

One of the truly insane parts of this investigation, by the way — which was conducted entirely during the pre-election window when overt actions were prohibited — was that FBI big-footed to Cendyn and Listrak before sending NSLs to them. And by that point, Alfa Bank was calling the FBI.

A report that was not explained amid the primary resources from the investigation, but which was concluded by October 3, reveals that Chicago’s conclusion was almost entirely based on what Alfa told the FBI and Mandiant.

There was nothing in the case documentation until a 302 for a March 27, 2017 interview done in association with Alfa’s 2017 claims of spoofed DNS traffic (the interview may have been done with Kirkland and Ellis) that documented that, when Mandiant arrived the previous year to investigate, there were no logs to investigate.

Indeed, Heide testified on cross-examination that he had never learned of that fact. At all.

Q. And were you aware, while you were doing the investigation, that Mandiant, when it went to talk to AlfaBank to look into these allegations, did not have any historical data, that Alfa-Bank did not provide any historical data to Mandiant? Did you know that?

A. No

We now know that at a time when “Executives at the highest level of ALFA BANK leadership” had been hoping to “exonerate them[selves]” in 2017, Petr Aven had already started acting on specific directives from Vladimir Putin, including trying to open a back channel to Trump.

Plus, at least as far as Listrak could determine, while the marketing server had sent materials to Spectrum, it had never sent anything to Alfa Bank. The stated explanation that this was spam, then, conflicts with what FBI was seeing in the logs.

As for Spectrum — another of the reasons Heide pointed to — there’s no evidence of anyone reaching out to them (as compared to interactions with agents in Philadelphia and Miami who reached out to Listrak and Cendyn, respectively).

It’s true that the anomaly at Spectrum was not a Tor node (something that researchers came to understand themselves around the time Sussmann shared the allegations with the FBI). But it’s also true that, per Cendyn (which only looked back a month), the identified IP address at Spectrum was reaching out to the Trump server.

The IP address in question showed up in traffic that may be associated with Chinese hacking.

This then might have corroborated the hypothesis, from the white paper, of a hack of Spectrum, but by this point, Hellman had long before decided there was no evidence of a hack and this was, “just garbage.”

That leaves the logs, Heide’s fourth reason for believing FBI had debunked the Alfa Bank allegations. As far as the logs in question, former agent Allison Sands (who was assigned the investigation as a brand new case agent) told one of the tech people on September 26 that, “the end user [possibly Cendyn] is willing to provide logs but they dont have what we need.” Cendyn did share details of their own spam filter, which wouldn’t address the DNS look-ups themselves.

Then, on October 12, Sands told Heide that,

the ‘logs’ we got from Listrak were not network logs

they basically just confirm that trump org is one of their email clients, but they dont show destination email addresses or IPs or anything that we can use to[ ]determine any communications

[snip]

it was two excel spreadsheets

that was all we got

The FBI did get something. Sands testified that the FBI obtained upwards of 600,000 records (she described obtaining records from Cendyn, Listrak, and GoDaddy, but not Spectrum or Alfa Bank). But it’s not clear how useful those records really were. There’s a reference to the “take” elsewhere (see below), and redacted entries that look like intelligence targeting, plus a reference to an OGA partner reporting “no attempts.” (Here’s a reference to the OGA analysis that is redacted in other versions of the same email chain.) So it seems any useful logs came from another agency. But if that’s right, it would be targeted overseas.

In trial testimony, Sands described that her task was to prove that the allegation wasn’t true, not to explain what the anomaly was.

I knew still I had to rebuild from scratch and prove that this allegation wasn’t true.

In real time, too, she saw her task as disproving that emails had been shared, not even disproving that covert communication had occurred.

I have a few more logs to definitely prove there are no emails, and then Im putting it to bed

That’s a particularly problematic description given that the FBI had been told via other channels that there was some activity reflecting more than DNS look-ups.

That leaves, according to Heide’s judgement, just the observation that the DNS traffic was not consistent with known Russian techniques. Newbie agent Sands said something similar to Chris Trifiletti, Joffe’s handler and apparently sensitive for some other reasons. In response, he mused about whether Russia was “trying other things now that look more non traditional.”

We don’t know the answer to that, because the FBI didn’t try to figure it out.

Scott Hellman, the cyber agent who insisted at every opportunity he got that this was garbage was wrong about how long the anomaly had lasted, but he was right about one thing. On October 4, he advised newbie agent Sands that,

any chance you get to work something like this that truly has 0 repercussions if you mess it up ….take those opportunities

He did mess it up. It wasn’t just his own analysis; his repeated insistence that this was “garbage” appears to have made all the other investigators less careful, too. Six years later, we’re still no closer to understanding what happened.

Hellman was right about facing “zero repercussions if you mess it up.” By all appearances, he’s one of the few people who escaped any consequences for trying to investigate Russia in 2016. We know that several people — including Jim Comey, Andrew McCabe, Peter Strzok, and Bruce Ohr — were fired for their efforts to investigate Russia. We learned at the trial that Ryan Gaynor was threatened with criminal investigation for not answering questions the way Andrew DeFilippis wanted. Curtis Heide remains under FBI Inspection Division investigation for things he did in 2016. Rodney Joffe was discontinued as an FBI informant, according to him, at least, because he refused to cooperate with Durham’s investigation. Everyone who actually tried to investigate Russia in 2016 has faced adverse consequences.

But Hellman appears to have suffered none of those adverse consequences for fucking up an investigation into a still unexplained anomaly. On the contrary, he’s been promoted; he’s now a Supervisory Special Agent, leading a team of people who will, presumably, similarly blow off anomalies that might be politically inconvenient to investigate.

That’s the lesson of the Sussmann trial then: The only people who face zero consequences are the ones who fuck up.

Update: Corrected spelling of Hellman’s last name. Added Comey and McCabe to the list of those fired for investigating Russia. Removed Lisa Page–she quit before she was fired. In this podcast, Peter Strzok said that all FBI agents named in the DOJ IG Report are still under investigation.

Update: All the links to exhibits should be live now.

Update: Added detail that Listrak says Trump never sent marketing mail to Alfa Bank.

Timeline

I’ve put (what I believe are) all the exhibits about the FBI investigation below.

These times are surely not all correct. Durham consistently shared evidence without marking what time zone the evidence reflected. Importantly, some, but probably not all of the FBI Lync messages reflect UTC time; where I was fairly certain, I tried to reflect the time in ET, but in others, the timeline below doesn’t make sense (I’ll keep tweaking it). Some of the emails reflect the Chicago time zone.

September 19, 2:00PM: Sussmann Meeting

September 19: Priestap notes

September 19: Anderson notes

September 19, 3:00PM: Strzok accepts materials

September 19, 4:31PM: Gessford to Pientka: Moffa with info dropped off to Baker

September 19, 5:00PM: Sporre accepts materials

September 20, 9:30AM: Nate Batty to Jordan Smith: A/AD has two thumb drives.

September 20, 12:29PM: Batty accepts materials

September 20, 4:54PM: Batty and Hellman re analysis

September 21, 8:48AM: Batty to Hellman: at least look at the thumb drives [Batty Lync]

September 21, 4:25PM: Pientka Lync to Heide: People on 7th floor fired up about this server

September 21, 4:46PM: Batty to Heide and others: initial assessment

September 21, 1:10PM [time uncertain] Sands to Pape: Director level interest

September 21, 4:57PM: Norwat to Todd: Not a cyber matter

September 21, 5:06PM: Todd to Heide, cc Pientka

September 21, 5:52PM: Pientka to Heide: Nat [sic] Batty ha the thumb drives

September 22, 4:58AM: Hubiak to Heide: Let me know if you need anything from PH

September 22, 8:09AM: Todd to Marasco [noting thumb drives came from DNC, suggesting tie to debate]

September 22, 8:33AM: Pientka to Heide: Less than 24 hours to investigate, determine nexus, before losing traffic, watched by Comey

September 22, 9:30AM: Pientka to Moffa: Cyber, ugh. Read first email.

September 22, 9:59PM: Hellman to Heide: can you talk on link

September 22, 10:23AM: Marasco to Pientka: FYI

September 22, 11:13AM: Sands to Hubiak: Suspect email domain hosted on Listrak server — if you can help out with a knock and talk it would be great.

September 22, 11:14AM: Baker to Comey and others: Reporter is Lichtblau

September22, 11:34AM: Hubiak to Sands: Will start working on this now

September 22, 12:02PM: Batty to Wierzbicki: We think it’s a setup

September 22, 12:10PM: Heide to Pientka: We’re leaning to this being a false server.

September 22, 2:00PM: Pientka to Hubiak: Thanks for all your efforts. The CROSSFIRE HURRICANE Team greatly appreciates you running this to ground.

September 22, 4:22PM: Sands to all: open full investigation, summary of Hellman’s conclusions [OGA partner targeting Alfa?]

September 22, 5:33PM: Heide to Pientka: it’s a legit domain

September 22, 4:53PM: Sands to all: Cendyn agrees to cooperate, legit mail server

September 23, 8:26AM: Sands to Hubiak: Cendyn willing to cooperate and provide logs

September 23, 1:09PM: Heide to Sands: once we get that case opened, let’s cut a lead to the MM division requesting assisting with the interview, etc.

September 23, 1:53PM: Sands to others: Cendyn, as of this morning no longer resolves, picture of Barracuda spam filter

September 23, 4:04PM: Heide to Gaynor: Cyber’s review

September 23: EC Opening Memo [without backup]

September 26: Gaynor notes

September 26: Intelligence Memo

September 26, 8:02AM: Lichtblau to Kortan: You know what time we’re meeting?

September 26, 9:29AM: Kortan to Lichtblau: Baker’s tied up until later this afternoon.

September 26, 10:02AM: Lichtblau to Kortan: planning to bring Steve Myers

September 26, 10:15: Heide to Pientka: We want to interview the source of the whitepaper?

September 26, 12:09: Kortan to Baker and Priestap: some kind of recap later today?

September 26, 12:29: Sands to Hubiak: I’m writing a justification for an NSL to GoDaddy

September 26, 4:19PM: Heide to Shaw: apparently it’s going to hit the times?

September 26, 4:55PM: Heide to Hellman: We think it’s a bunk report still…

September 26, 5:02PM: Soo to Sands: searching current and historical lists of Tor exit nodes

September 26, 6:20PM: Sands to all, cc Heide: Spectrum hit at Cendyn, NSLs for Listrak, GoDaddy, redacted, Tor results

October 2, 12:02PM: Grasso to Wierzbicki: Two IP addresses

October 2, 7:02PM: Heide to Hellman: Check this out….

October 3: Tactical Product

October 3: Communications Exploitation

October 3, 1:48PM: Gaynor to Heide: Did white paper start with person of interest?

October 3, 2:49PM: Heide to Gaynor and Sands: Interview source

October 3, 3:00PM: Wierzbicki to Gaynor, cc Moffa: I agree with Heide, interview source

October 4: Kyle Steere to Wierzbicki and Sands: Documenting contents of thumb drive

October 4, 8:26AM: Sands to Hellman: 2 random IP addresses we got from tom grasso

October 4, 8:28AM: Sands to Hellman: we got a report on the Alfa Bank side that they also think this is nothing

October 4, 8:43AM: Hellman to Sands: any chance you get to work something like this that truly has 0 repercussions if you mess it up ….take those opportunities [alt version]

October 4, 10:00AM: Gaynor to Wierzbicki et al, cc Moffa: We need to know what we can learn from the logs [CT version]

October 4, 9:50PM: Grasso to Sands: SME who can help give context to the data we discussed

October 4, 11:08PM: Sands to Grasso: Sounds great.

October 5, 1:20PM: Trifiletti to Sands: i reminded him once more that he has never proceeded with anything when he wasnt absolutely sure

October 5, 1:33PM: Hosenball request for comment

October 5, 3:02PM: Strzok to Gaynor, forwarding Hosenball with Mediafire package

October 5, 4:08PM: Sands to Trifiletti: We need to speak to Dave dagon now too

October 5, 5:07PM: Sands to all: Update on CHS conversation — redacted explanation for why Alfa changed

October 5, 6:58PM: Grasso to Sands: I told Dagon that you would be able to protect his identity so that his name is not made public

October 6: Gaynor notes and drawing [alt version, more redacted]

October 6, 4:20PM: Materials to storage

October 6, 4:28PM: Christopher Trifiletti: CHS report (Spectrum: misconfigured server)

October 6, 4:54PM: Trifiletti to Sands: Actual text of 1023 submitted

October 6, 6:21PM: Wierzbicki to Gaynor: CHS debrief

October 7, 8:59AM: Sands to Trifiletti

October 12, 8:01AM: Sands to Heide: the “logs” we got from listrak were not network logs

October 13, 5:45PM: Gaynor to Wierzbicki: Mediafire (includes link)

October 19, 8:05AM: Sands to Heide: we spoke to mandiant and that we are talkingt o [sic] the tech people at the ISP today

October 19, 10:15AM: Gaynor to Wierzbicki: 2 IP addresses, Mediafire, Dagon author?

November 1, 3:09PM: Sands to Trifiletti: I have a few more logs to definitely prove there are no emails, and then Im putting it to bed

November 14, 2:52PM: Steere to Sands: [report on September 30 receipt of logs from Cendyn]

January 18, 2017: Closing Memo

March 27, 2017: Sands 302 with Alfa reports that Mandiant reported no historic data

July 24, 2017: Moffa to Priestap: Includes several other reports

July 24, 2017, 3:10PM: Sands accepts custody

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Amid Claims of Witness Tampering, Revisiting Peter Navarro’s Alleged Contempt

The Men Disputing Cassidy Hutchinson’s Retelling of Trump’s SUV Lunge Got Warnings about Plans to Flood the Capitol

“All Texts Demanded!” Right Wingers No Longer Worried about “Wiped” Phones, John Eastman Edition…

Jeffrey Clark: Physics Takes Over the Investigation Now

Background material

Bill Barr’s Attempt to Corrupt EDNY May Have Saved the Republic

Rudy Giuliani Launched a Lynch Mob over a Ginger Mint

Trump’s bullies attacking anyone defending democracy

Tying the state violence to the January 6 violence

Showing obstruction of the vote certification, including documents

Exposing Pat Cipollone’s exceptional unwillingness to testify

Forty Feet: Trump Sicced a Murder Weapon on Mike Pence

Junkets In Lieu of Investigation: John Durham Charged Igor Danchenko without Ever Interviewing George Papdopoulos about Sergei Millian

Catalog of Coffee Boy Testimony Shitshowery

On Josh Schulte’s Continued Attempts to Hack the Judicial System

Stipulating stipulations

When dropping a laptop alters its BIOS

The expanding Pompeo subpoena

The [redacted] discovery

“Something Like This Has 0 Repercussions if You Mess Up:” John Durham Debunked the Alfa Bank Debunkery

Timeline

Interesting links

Pages