Speaker Pelosi Goes from Slow-Walking to Sprinting

/350 Comments/in , , , , /by

This morning, Nancy Pelosi announced she’s asking Jerry Nadler and Adam Schiff to draw up articles of impeachment against Donald Trump.

Both reports on scheduling from members of HJC and Congress generally as well as reporting from CNN suggest Pelosi intends a very quick schedule for this process: articles drawn up this weekend, a vote in HJC next week, then a full vote before Christmas.

This is a mistake, in my opinion. I think Pelosi should bump this schedule out to early February. I say this not out of any fondness for delay, but because several things will or are likely to happen in the interim that would make impeachment more thorough.

The first is a ruling on Don McGahn’s testimony. I think the case on impeaching Trump for obstructing the Mueller investigation should most importantly focus on his abuse of the pardon power, not least because preventing a Trump pardon may give Paul Manafort and Roger Stone reason to grow more chatty. But McGahn’s testimony, describing how Trump asked him to falsify a record to cover up the fact that the President asked him to get Mueller fired in summer 2017, would be important for other reasons. Jonathan Turley cited McGahn’s testimony, for example, as the clearest case in the Mueller Report supporting impeachment (though of course he claims it doesn’t reach the level of abuse that Turley claimed lying about a consensual blowjob did back when Clinton did it). It would also be powerful to have a key player in Republican politics — they guy helped Trump stack the courts — play a key role in his impeachment.

While there’s little hope the Democrats could force the testimony of the key witnesses in the Ukraine investigation (including McGahn’s one-time deputy, John Eisenberg) without long delay, they’re more likely to get a ruling requiring McGahn’s testimony.

Then there’s the high likelihood of a superseding indictment in the Lev Parnas case. At a hearing Monday, prosecutors made it clear they’re very likely to supersede the current indictment against Rudy Giuliani’s grifters, possibly including other targets of the probe.

Prosecutor Zolkind signaled that a grand jury would probably level more charges.

“We think a superseding indictment is likely, but no decision has been made, certainly,” Zolkind said.

Repeatedly emphasizing that the government’s investigation is ongoing, the prosecutor referred obliquely to possible other targets by explaining that redactions on search warrants do not relate to the charged case. Zolkind also explained that disclosing witness statements prematurely could risk compromising the probe.

While the judge in the case, Paul Oetken, signaled his willingness to share information from this probe with impeachment investigators, and Parnas and his lawyers indicated that they’d like to comply with HPSCI’s subpoena (probably in an attempt to leverage immunity), that may take some time, perhaps two months. But I think any evidence from this case will be stronger if it comes with a grand jury indictment alleging that more of the underlying activities in this grift were probably a crime.

The next hearing in this case is February 3. That’s why I think Pelosi should hold off on until February.

Those are just two of the reasons I think Pelosi should slow things down a bit — at least on the vote in the entire House — to allow other pieces to fall into place.

Share this entry

Republican Complaints about Phone Records Back Democratic Impeachment Case

/59 Comments/in , , , /by

Way back in 2001, Victoria Toensing wrote an article justifying the subpoena of phone records of her future client, John Solomon, to find out who leaked details to him that Democratic Senator Robert Torricelli had been picked up on a wiretap of a mob figure. In it, she justified serving limited subpoenas, approved by Robert Mueller, on a third party carrier to find out who had committed a crime. She emphasized there was nothing political about the subpoena of Solomon’s phone records.

By ensuring that journalists not be subpoenaed every time they possess evidence, the department was demonstrating its respect for the press’s constitutional role.

The guidelines set down specific conditions that must be met before a subpoena can be issued for a reporter’s telephone records: There must be reasonable grounds to believe a crime has been committed; the information sought must be essential to a successful investigation; the subpoena must be narrowly drawn; all reasonable alternative steps must have been pursued, and the attorney general must approve the decision. The department has 90 days to notify the reporter of a subpoena to a third party, such as a telephone company.

Were those conditions met in Solomon’s case? Clearly, yes. His articles state that wiretap information was disclosed. The subpoena was limited, asking for home phone records for a period of six days, May 2 through 7. The U.S. attorney, Mary Jo White, certified that all alternative steps had been taken. Then-Acting Deputy Attorney General Robert S. Mueller III (now the FBI director) approved the subpoena — Ashcroft having recused himself. Solomon received his timely notice.

There is one other guideline factor: whether negotiations are required with the reporter before a subpoena is issued. The AP has argued — incorrectly — that the guidelines were violated because there were no negotiations. But negotiations are mandated only when the subpoena goes directly “to the reporter.” The guidelines do not require them if the subpoena is to a third party and the department concludes negotiations might be detrimental to the investigation.

Eighteen years later, Toensing is outraged that her own phone records were collected by the constitutionally appropriate authority in the investigation of multiple crimes.

A table of the April call records described in the report suggests the subpoena apparently targeted Lev Parnas — someone already indicted for crimes related to this investigation — and Rudy Giuliani — who’s a subject of that same investigation. (h/t Kelly for the table)

Nevertheless, in addition to Toensing and Solomon, the subpoena obtained records showing calls with Devin Nunes, several of the staffers most involved in sowing conspiracy theories, and numbers believed to involve the President (who is the subject of this investigation).

Nunes, of course, has made several efforts in recent years to expand the government’s collection of metadata in national security investigations, which this is. Trump also has favored continued, aggressive use of metadata collection in national security contexts.

The apparent fact that Schiff obtained all these records by targeting two suspected criminals hasn’t comforted the GOP, which is trying to claim that he violated the law or norms in issuing a subpoena.

One particularly delectable version of such complaints comes from Byron York. For some inconceivable reason, York decided to contact John Yoo — who, on multiple occasions in the year after Toensing wrote her column justifying a subpoena, wrote legal memos authorizing efforts to collect all phone records in the US with no legal process. York asked Yoo about whether subpoenaing AT&T for the phone records of two people as part of an impeachment investigation was proper.

John Yoo expressed a heretofore unknown respect for privacy. Even while he admitted that this presents no attorney-client problems, he suggested it would be proper for the White House to try to pre-empt any such subpoena.

There is certainly a constitutional privacy issue here, but I don’t think an attorney-client privilege issue. The attorney-client privilege covers the substance of the communication, but it doesn’t protect the fact that a communication took place.

For example, when one party to a lawsuit has to hand over documents to the other party, it can redact the content of the document if it is attorney-client privileged or withhold the document itself, but not the fact of the document’s existence (there is usually a log created that sets out the from, to, date information, etc.).

That is a separate question from whether Giuliani and Nunes had any constitutional rights violated by the House when it obtained these records. I am surprised that Giuliani and the White House did not think this would come up and sue their telecom providers to prevent them from obeying any demands from the House for their calling records.

York then quotes a policy from Reporters Committee for Freedom of the Press that shows this subpoena — which did not target Solomon — does not fall under RCFP’s stated concern for subpoenas used to find out a journalist’s sources.

Courts…have begun to recognize that subpoenas issued to non-media entities that hold a reporter’s telephone records, credit card transactions or similar material may threaten editorial autonomy, and the courts may apply the reporter’s privilege if the records are being subpoenaed in order to discover a reporter’s confidential sources.

The subpoena didn’t discover Solomon’s sources; it just demonstrated Parnas and Rudy’s outlets.

Most remarkable of all, York quotes Rudy providing direct evidence supporting impeachment.

Schiff, Pelosi, Nadler have trashed the U.S. Constitution and are enabled by a pathetic fawning press. They have proceeded without respect for attorney-client privilege, including threats of contempt and imprisonment.

Here’s the thing. Either Rudy Giuliani was acting as a person the President appointed to pursue the foreign policy of the United States — something Republicans have, at times, argued in their attempts to defend the President.

Or, Rudy was acting as the President’s personal lawyer. Here, he asserts he was acting as the President’s lawyer. If that’s the case — and Rudy says it was — it confirms a key allegation made by Democrats: that Trump demanded concessions from Ukraine purely for his own personal benefit.

As Yoo notes, Rudy (and Jay Sekulow and Toensing) would not have an attorney-client claim over metadata in any case. But Rudy nevertheless claims Trump’s privilege has been implicated in these call records.

With that claim, he confirms that his client violated his oath of office.

Share this entry

The Republican Pre-Buttal Spins Republican and Non-Partisan Facts as a Democratic Plot

/69 Comments/in , , , /by

I’ll have a bit more to say about the Republican pre-buttal to the HPSCI Impeachment Report put out last night. But a good summary of the report looks like this:

  1. Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat
  2. Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat
  3. Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat
  4. Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat
  5. Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat
  6. Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat
  7. Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat
  8. Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat
  9. Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat
  10. Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat
  11. Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat
  12. Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat
  13. Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat
  14. Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat
  15. Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat
  16. Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat
  17. Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat
  18. Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat
  19. Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat
  20. Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat
  21. Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat
  22. Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat Democrat
  23. Democrat Democrat Democrat Democrat Democrat Democrat

The report uses the word “Democrat” 226 times, all part of a ploy to suggest that facts presented in the impeachment hearing were a partisan plot.

It fails to acknowledge, however, that zero of the witnesses who testified were Democrats. Two (Jennifer Williams and Tim Morrison) testified they were partisan Republicans. Gordon Sondland didn’t testify to the point (indeed, in his statement he highlighted his past work with Democrats), but he got his position by dumping $1 million into Trump’s inauguration. The rest testified to being non-partisan.

Three of the witnesses — Kurt Volker, Morrison, and Sondland — were Republican witnesses. The testimony of the three of them, plus that of Bill Taylor, fully substantiates that Trump demanded investigations before he’d release aid to Ukraine.

The facts presented in the impeachment inquiry are not Democratic claims. They are non-partisan or Republican facts.

But in the Republican party in 2019, every fact that is damning to Donald Trump — even those shared by Republicans — is treated as a partisan conspiracy.

Share this entry

The Government Prepares to Argue that Transmitting Information *To* WikiLeaks Makes the Vault 7 Leak Different

/19 Comments/in , , , /by

In a long motion in limine yesterday, the government suggested that if Joshua Schulte had just been given a “prestigious desk with a window,” he might not have leaked all of CIA’s hacking tools in retaliation and caused what the government calls “catastrophic” damage to national security.

Schulte grew angrier at what he perceived was his management’s indifference to his claim that Employee-1 had threatened him. Schulte also began to complain about what, according to him, amounted to favoritism toward Employee-1, claiming, for example, that while the investigation was ongoing, Schulte was moved to an “intern desk,” while Employee-1 had been moved to a “prestigious desk with a window.”

[snip]

The Leaks are the largest illegal disclosure of CIA information in the agency’s history and, as noted above, caused catastrophic damage to national security.

Along the way, the motion provides the most detailed description to date about how the government believes Schulte stole the Vault 7 files from CIA. It portrays him as an arrogant racist at the beginning of this process, and describes how he got increasingly belligerent with this colleagues at CIA leading up to his alleged theft of the CIA’s hacking files, leading his supervisors to recognize the threat he might pose, only to bollox up their efforts to restrict his access to CIA’s servers.

The motion, along with several other submitted yesterday, suggests that the government would like to argue that leaking to WikiLeaks heightens the damage that might be expected to the United States.

Along with laying out that it intends to argue that the CIA charges (stealing the files and leaking them to WikiLeaks) are intertwined with the MCC charges (conducting “information war” against the government from a jail cell in the Metropolitan Correction Center; I explained why the government wants to do so here), the government makes the case that cybersecurity expert Paul Rosenzweig should testify as a witness about WikiLeaks.

Rosenzweig will testify about (i) WikiLeaks’s history, technical and organizational structure, goals, and objectives; (ii) in general terms, prior leaks through WikiLeaks, in order to explain WikiLeaks’s typical practices with regard to receiving leaked classified information, its practices or lack thereof regarding the review and redaction of sensitive information contained in classified leaks, and certain well-publicized harms to the United States that have occurred as a result of disclosures by WikiLeaks; and (iii) certain public statements by WikiLeaks regarding the Classified Information at issue in this case.

Rosenzweig’s testimony would come in addition to that of classification experts (probably for both sides) and forensic experts (again, for both sides; Steve Bellovin is Schulte’s expert).

The expert witnesses were allowed to testify as to the background of the organization Wikileaks; how the U.S. Government uses certain markings and designations to identify information that requires special protection in the interests of national security; the meaning of certain computer commands and what they would do; how various computers, servers, and networks work; how data is stored and transferred by various computer programs and commands; and the examination of data that is stored on computers and other electronics.

The only motion in limine Schulte submitted yesterday objected to Rosenzweig’s testimony. Schulte argues that the government’s expert notice neither provides sufficient explanation about Rosenzweig’s intended testimony nor proves he’s an expert on WikiLeaks. More interesting is Schulte’s  argument that Rosenzweig’s testimony would be prejudicial. It insinuates that Rosenzweig’s testimony would serve to substitute for a lack of proof about how Schulte sent the CIA files to WikiLeaks (Schulte is alleged to have used Tor and Tails to transmit the files, which would leave no forensic trace).

In Mr. Schulte’s case, the government has no reliable evidence of how much information was taken from the CIA, how it was taken, or when it was provided to WikiLeaks. The government cannot overcome a lack of relevant evidence by introducing evidence from other cases about how much information was leaked or how information was leaked in unrelated contexts. The practices of WikiLeaks in other contexts and any testimony about alleged damage from other entirely unrelated leaks is completely irrelevant.

Schulte’s claimed lack of evidence regarding transfer notwithstanding, that’s not how the government says they want to use Rosenzweig’s testimony. They say they want to use his testimony to help prove that Schulte intended to injure the US.

The Government is entitled to argue that Schulte intended to harm the United States, by transmitting the stolen information to WikiLeaks, because he knew or had reason to know what WikiLeaks would do with the information. The fact that WikiLeaks’ prior conduct has harmed the United States and has been widely publicized is powerful evidence that Schulte intended or had reason to believe that “injury [to] the United States” was the likely result of his actions—particularly given that the Government will introduce evidence that demonstrates Schulte’s knowledge of earlier WikiLeaks disclosures, including his own statements.

It does so by invoking WikiLeaks’ past leaks and the damage those leaks have done.

Accordingly, proof that it was foreseeable to Schulte that disclosure of classified information to WikiLeaks could cause “injury [to] the United States” is a critical element in this case. Indeed, the Senate Select Committee on Intelligence has explicitly stated “that WikiLeaks and its senior leadership resemble a non-state hostile intelligence service.” S. Rep. 115-151 p. 10. In order to evaluate evidence related to this topic, the jury will need to understand what WikiLeaks is, how it operates, and the fact that WikiLeaks’ previous disclosures have caused injury to the United States. The Government is entitled to argue that Schulte intended to harm the United States, by transmitting the stolen information to WikiLeaks, because he knew or had reason to know what WikiLeaks would do with the information.

Notably, the government motion invokes the Senate’s recognition that WikiLeaks resembles “a non-state hostile intelligence service.” That may well backfire in spectacular fashion. That statement didn’t come until over a year after Schulte is alleged to have stolen the files. And the statement was a follow-up to Mike Pompeo’s similar claim, which was a direct response to Schulte’s leak. If I were Schulte, I’d be preparing a subpoena to call Pompeo to testify about why, after the date when Schulte allegedly stole the CIA files, on July 24, 2016, he was still hailing the purported value of WikiLeaks’ releases.

The thing is, showing that the specific nature of the intended recipient of a leak is an element of the offense has never been required in Espionage leak cases before. Indeed, the government’s proposed jury instructions are based off the instruction in the Jeffrey Sterling case. While the government flirted with naming James Risen an unindicted co-conspirator in that case, they did not make any case that leaking to Risen posed unique harm.

Moreover, even before getting into Schulte’s statements about WikiLeaks (most of which have not yet been made public, as far as I’m aware), by arguing the CIA and MCC charges together, the government will have significant evidence not just about Schulte’s understanding of WikiLeaks, but his belief and that they would lie to harm the US. The government also has evidence that Schulte knew that WikiLeaks’ pretense to minimizing harm with the Vault 7 files was false, and that instead WikiLeaks did selective harm in its releases, though it doesn’t want to introduce that evidence at trial.

In other words, this seems unnecessary, superfluous to what the government has done in past Espionage cases, and a dangerous precedent (particularly given the way the government suggested that leaking to The Intercept was especially suspect in the Terry Albury and Reality Winner cases).

That’s effectively what Schulte argues: that the government is trying to argue that leaking to WikiLeaks is particularly harmful, and that if such testimony goes in, it would be forced to call its own witnesses to testify about how past WikiLeaks releases have shown government malfeasance.

This testimony could also suggest that the mere fact that information was released by WikiLeaks necessarily means that it was intended to—and did—cause harm to the United States. These are not valid evidentiary objectives. Instead, this type of testimony would create confusion and force a trial within a trial on the morality of WikiLeaks and the extent of damage caused by prior leaks. If the government is allowed to introduce this evidence, the defense will necessarily have to respond with testimony about how WikiLeaks is a non-profit news organization, that it has previously released information from government whistle-blowers that was vital to the public understanding of government malfeasance, and that any assertion of damages in the press is not reliable evidence.

The government, in a show of reasonableness, anticipates Schulte’s argument about the prejudice this will cause by stating that it will limit its discussion of prior WikiLeaks releases to a select few.

The Government recognizes the need to avoid undue prejudice, and will therefore limit Mr. Rosenzweig’s testimony to prior WikiLeaks leaks that have a direct relationship with particular aspects of the conduct relevant to this case, for example by linking specific harms caused by WikiLeaks in the past to Schulte’s own statements of his intent to cause similar harms to the United States or conduct. Those leaks include (i) the 2010 disclosure of documents provided to WikiLeaks illegally by Chelsea Manning; (ii) the 2010 disclosure of U.S. diplomatic cables; (iii) the 2012 disclosure of files stolen from the intelligence firm Stratfor; and (iv) the 2016 disclosure of emails stolen from a server operated by the Democratic National Committee.

The selected cases are notable, as all of them (with Manning’s leaks seemingly listed twice) involve cases the government either certainly (with the EDVA grand jury seeking Manning and Jeremy Hammond’s testimony) or likely (with ongoing investigations into Roger Stone) currently has ongoing investigations into.

As a reminder: absent an unforeseen delay, this trial will start January 13, 2020 and presumably finish in the weeks leading up to the beginning of Julian Assange’s formal extradition process on February 25. The government has maintained it can add charges up until that point, and US prosecutors told British courts it won’t provide the evidence against Assange until two months before the hearing (so around Christmas).

Schulte’s trial, then, appears to be the opening act for that extradition, an opening act that will undermine the claims WikiLeaks supporters have been making about the journalistic integrity of the organization in an attempt to block Assange’s extradition. Rosenzweig’s testimony seems designed, in part, to heighten that effect.

Which may be why this instruction appears among the government’s proposed instructions.

Some of the people who may have been involved in the events leading to this trial are not on trial. This does not matter. There is no requirement that everyone involved in a crime be charged and prosecuted, or tried together, in the same proceeding.

You may not draw any inference, favorable or unfavorable, towards the Government or the defendant from the fact that certain persons, other than the defendant, were not named as defendants in the Indictment. Do not speculate as to the reasons why other persons were not named. Those matters are wholly outside your concern and have no bearing on your function as jurors.

Whether a person should be named as a co-conspirator, or indicted as a defendant in this case or another separate case, is a matter within the sole discretion of the United States Attorney and the Grand Jury.

As noted, a number of different WikiLeaks supporters have admitted to me that they’re grateful Assange has not (yet) been charged in conjunction with the Vault 7 case, because even before you get to his attempt to extort a pardon with the files, there’s little journalistic justification for what it did, and even more reason to criticize WikiLeaks’ actions as the case against Schulte proceeded.

Yet the obscure proceedings before the EDVA grand jury suggests the government may be pursuing a conspiracy case that starts in 2010 and continues through the Vault 7 releases, with the same variety of Espionage and CFAA charges continuing through that period.

By arguing the CIA and MCC charges in tandem, the government can pretty compellingly make the case that WikiLeaks’ activities went well beyond journalism in this case. But it seems to want to use Rosenzweig’s testimony to make the case more broadly.

Share this entry

Paul Manafort Is the Linchpin in Russia’s Effort to Recorrupt Ukraine

/109 Comments/in , , , /by

Yesterday, a vague NYT report described Senators and their staffers being briefed that Russia was behind the effort to blame the 2016 hack on Ukraine.

Russian intelligence officers aimed part of their operation at prompting the Ukrainian authorities to investigate the allegations that people in Ukraine tried to tamper with the 2016 American election and to shut down inquiries into corruption by pro-Russian politicians in Ukraine, according to a former official.

One target was the leak of a secret ledger disclosed by a Ukrainian law enforcement agency that appeared to show that Paul Manafort, Mr. Trump’s onetime campaign chairman, had taken illicit payments from Ukrainian politicians who were close to Moscow. He was forced to step down from the Trump campaign after the ledger became public in August 2016, and the Russians have since been eager to cast doubt on its authenticity, the former official said.

Intelligence officials believe that one of the people the Kremlin relied on to spread disinformation about Ukrainian interference was Oleg V. Deripaska, a Russian oligarch who had ties to Mr. Manafort. After his ouster from the campaign, Mr. Manafort told his former deputy later in 2016 that Ukrainians, not Russians, stole Democratic emails. Mr. Deripaska has broadly denied any role in election meddling.

The Deripaska role in this may partly explain the vagueness about the briefing. At least per FOIA redactions made in August, there was an ongoing investigation pertaining to Deripaska at the time.

The article is not vague about one thing: the purpose for the disinformation campaign, which (in addition to permitting Trump to deny the role Russia had in getting him elected) has to do with Ukrainian internal politics. Russia wants Ukraine to investigate people that, the conspiracy theories go, “tried to tamper in the 2016 American election and to shut down inquiries into corruption by pro-Russian politicians in Ukraine.”

This explains the nature of the campaign: Rudy’s disinformation packet (including the John Solomon articles that come from his efforts) target Sergii Leshchenko, NABU, and the Anti-Corruption Action Centre. None of those entities should be the focus of an American smear campaign, to say nothing of an impeachment defense. But painting Joe Biden’s efforts to combat Ukrainian corruption as the opposite and dropping the name of George Soros was sufficient to recruit Donald Trump into ordering his Administration to pursue the effort and enticing the fragile-minded Devin Nunes into chasing the conspiracy like a puppy. The US had been using the leverage it had over Ukraine to push it to address corruption. This disinformation campaign appealed to Trump’s weaknesses to get him to reverse that policy, creating conditions to expand corruption, even while tainting the newly elected President elected on an anti-corruption platform.

Still, Paul Manafort is a key part of that. That’s partly because Manafort continues to protect Trump and at least one of his associates — in part by lying about a meeting on August 2, 2016 where he discussed his ties with both Deripaska and pro-Russian Ukrainian oligarchs as well as carving up Ukraine to Russia’s liking. It’s also because legitimate concerns raised in 2016 about Manafort’s corruption one of the two main ways Ukrainians commented on the election (the other involves criticism of Trump’s comments on Crimea, comments he has since disavowed under oath). The claim — which is false on several levels — is that because Leshchenko publicized the Black Ledger, it led to Manafort’s resignation (Leshchenko has published a second piece making this clear). And, as I and Leschenko keep noting, Manafort knew he was in the Black Ledger months before it became public. If anyone should be held responsible for any taint the publication of his inclusion in the Black Ledger, it’s him; if it was a problem, he should have disclosed that problem to the candidate.

With all that said, then, I want to note something that happened with Rudy’s disinformation packet, which I unpacked in detail here. As I noted, there are two versions of three sets of notes from January 2016, one of a phone interview with Viktor Shokin conducted on January 23, 2019, and two of an in-person interview with Yuriy Lutsenko conducted in NY on January 25 and 26. The first set appears to be what Rudy gave Pompeo. The second may reflect Pompeo’s notes on them, which include some proofreading, stars for emphasis, remarks on timing.

But as I noted, the original version appears to have come with underlines already included.

The only annotation added to that section was to circle Leshchenko’s name (which is not transliterated as he does it, so this could either be emphasis or one of several really nitpicky notations of errors in the notes).

The reason I’m interested in this is because, while the passage has a bunch of errors (for example, the size of the Black Ledger is wrong, the allegation against Yovanovitch is invented, Leshchenko released something else, that’s not how US media got the story), it does make it clear that Manafort was in the Ledger. That is, even disinformation (which Lutsenko has since recanted) designed to help Trump includes the allegation that Manafort was in the Ledger. It also asserts that Manafort was laundering money through Kyrgyzstan, which is also true.

Furthermore, nothing here refutes the validity of the Ledger more generally.

That might not be clear to someone reading quickly, of course, because of the way the other details were underlined.

Which is why it is all the more inexcusable that Republicans — including but not limited to Rudy and Devin Nunes — continue to suggest that Manafort was unfairly tainted by the ledger, as happened in this exchange between Nunes and David Holmes last week.

Nunes: [Leshchenko] provided widely known as the black ledger, have you ever heard of the black ledger?

Holmes: I have.

Nunes: The black ledger, is that seen as credible information?

Holmes: Yes.

Nunes: The black ledger is credible?

Holmes: Yes.

Nunes: Bob Mueller did not find it credible, do you dispute what Bob Mueller’s findings were? They didn’t use it in the prosecution or in the Report?

Holmes: I’m not aware that Bob Mueller did not find it credible. It was evidence in other criminal proceedings. Its credibility was not questioned in those proceedings.

Even in Rudy’s own disinformation, which is full of easily identifiable lies, it states clearly that Manafort was in the ledger and was laundering money (the latter allegation of which he has pled guilty to). And yet Republicans are still running around ignoring even their own manufactured dirt to pretend the accusations against Manafort were simply made up.

Perhaps that’s because, without Manafort, Trump’s own stakes in this go down substantially.

Share this entry

Timeline: How Rudy Made It Hard for Mike Pompeo to Show Any Leadership

/18 Comments/in , , , /by

American Oversight FOIAed the documents showing Rudy Giuliani’s campaign to smear Marie Yovanovitch and the Bidens at State. For some of these, this represents another instance where NGOs have successfully obtained documents refused to Congress, but many of these were turned over to Congress by State’s Inspector General Steve Linnick in early October.

I did a thread on the documents here, but wanted to lay out the timeline of what the documents include. What it shows is that Rudy Giuliani and Mike Pompeo spoke twice around the time Rudy delivered a packet of disinformation to the Secretary of State. When Rudy’s campaign started showing publicly, with response from other Ambassadors and Congress, Department of State blew off their concerns.

March 26-29: Rudy shares a packet of information with Mike Pompeo wrapped up with Trump and White House labels

The bulk of these records document Mike Pompeo talking with Rudy Giuliani twice — on March 26 and 29 — and appear to include the materials they talked about, the packet of disinformation Rudy sent to State. The March 26 call does not appear in some of the month-long metrics sheets (see PDF 43), which makes me wonder whether Rudy called out of the blue.

March 26, 9:49AM: S (Pompeo) speaking with Rudy

March 26, 9:53AM: S finished speaking with Rudy

Pages 59-100 appears to be the disinformation packet Rudy sent, as follows:

  • Cover sheet addressing the packet, ostensibly from the White House (59)
  • Trump Hotels cover sheets (60 and 73; 77 and 88)
  • Initial copy of Viktor Shokin notes (61-62)
  • One copy of Yuriy Lutsenko notes, with underlines on section Lutsenko interview (63-66)
  • Annotated copy of Shokin notes (67-68)
  • Annotated copy of Lutsenko notes, incorporating original underlines (69-72)
  • A list of names (including Sergii Luschenko) (74)
  • A March 2016 letter from George Kent on US Embassy in Ukraine letterhead responding to a query about how US assistance was spent, with a post-it titled “Solomon articles” (75-76)
  • Two timelines (in another Trump folder) with no headers or title, ostensibly laying out Obama Administration corruption; the second has a post-it querying about its source (78-87)
  • Four John Solomon articles: one dated March 20 claiming Lutsenko had opened an investigation into how the Black Ledger was released, claiming it was a plot to help Hillary; another dated March 20 reporting Lutsenko claiming Yovanovitch had given him a do not prosecute list; a third dated March 20 reporting Lutsenko’s claim he had opened an investigation into the Black Ledger release; the draft of the March 26 column sent to Lev Parnas, Joe DiGenova, Victoria Toensing, and claiming the US embassy had shut down an investigation into a Soros backed anti-corruption group; the March 26 draft was sent from an unidentified ProtonMail account to someone unidentified (89-100)

That packet seems to show that Solomon wrote his four articles smearing Yovanovitch and Democrats based in part on the notes Rudy took in meetings with Shokin and Lutsenko. The draft status of the last Solomon article suggests that they were shared sometime on March 26, before it was posted.

March 27, 11:28AM: Rudy’s assistant, Jo Ann Zafonte, emails Trump’s then personal assistant Madelein Westerhout, asking for a number for Pompeo

March 27, 11:52: Westerhout asks someone what number she can have.

March 27, 12:03: In response, State gives Westerhout the scheduler’s number.

March 28, 9:27AM: Rudy (apparently, himself) calls to confirm the call on March 29

March 28, 9:34AM: State Ops Center emails someone whose name is redacted to ask if there will be monitors on Rudy’s call to Pompeo

March 28, 9:37AM: The person with redacted name informs David Hale about the call

March 29, 8:14AM: State puts Pompeo through to Rudy on his unsecure cell phone

March 29, 8:18AM: The call ends

April 1, 1:30: Pompeo speaks to Nunes (in one case described as HPSCI “Chairman”) on a secure line

April 8-15: Bill Taylor and other Ambassadors write David Hale about the smear of Yovanovitch

Pages 2-22 show Bill Taylor and other Ambassadors sending a letter decrying the attack on Yovanovitch (it was organized by John Herbst) to David Hale. The letter explained that the attack would not only weaken “the structure of our diplomatic engagement,” but “weaken the alliance” with Ukraine, “making it harder to take effective action against corruption.”

Hale forwarded it to Counselor Thomas Brechbuhl and Philip Reeker, as an FYI. Later that day, Reeker sends Brechbuhl an email memorializing a meeting about the topic which is entirely redacted under a deliberation exemption. The next day, Herbst sent a copy to Brechbuhl and someone else, the latter of whom responded to the FOIA. Herbst explained, “As we offered David, we would be happy to provide further information…” Brechbuhl responded mid-day the next day saying, “Thank you for your concern and offer. It’s much appreciated” — a polite brush-off.

On April 15, Hale sends it to someone whose name is redacted saying, “Not sure what to do with this.”

April 12-Jun 11: State ignores the concerns of Steny Hoyer and Eliot Engel

Pages 27-31 and 34-37 involve an April 12 letter Steny Hoyer and Eliot Engel sent to Pompeo urging him to defend his diplomats, using Yovanovitch as the urgent example. Internally, State (including Charles Faulker, who has been ousted for corruption) note that the Congressmen will not make the letter public. But Mary Elizabeth Taylor, the Legislative Affairs Assistant Secretary, does ask that it be tasked and turned around quickly.

Nevertheless, Taylor does not respond until June 11, in a letter in which she deflects with the Congressmen, claiming that Yovanovitch was due to finish her assignment this summer, and the end of her service coincided with the presidential transition in Ukraine.

Other

This doesn’t fit into the timeline at all, but pages 23-25; 32-33 include details Trident Acquisitions Chairman Edward Verona sent to Mike McKinley (these are included because he makes a reference to Yovanovitch) about a November 2018 visit to Ukraine.

Share this entry
Will Hurd

Will Hurd’s Sparkle Pony Approach to the Solemn Duty of Upholding the Constitution

/97 Comments/in , , , /by

There was yet another stunning impeachment hearing, with Fiona Hill and David Holmes laying out yet more evidence that Trump subordinated the national security of the United States to his own personal needs.

But that didn’t sway Will Hurd, who used his minutes at the end not to ask the question he has asked of many other witnesses, for a list of Ukrainians close to Volodymyr Zelensky with whom Rudy was interacting (Holmes had already made clear the list is much longer than the list Hurd had previously used to dismiss the inquiry).

Instead, he used his time to:

  • Grossly misrepresent the totality of the inquiry to two words in Trump’s call
  • Admit that this is a terrible precedent (one that Trump has already repeated with other countries)
  • Affirm that Trump’s actions harmed national security
  • Grossly misrepresent crystal clear messages to Ukraine, pretending they were unclear to the Ukrainians
  • Call willful actions for personal benefit a “bungling” foreign policy
  • Accuse Democrats (and nonpartisan witnesses) of undermining Ukraine for observing its reliance on us
  • Falsely claim there were differences of opinion about the call: no witness expressed having no concern about it
  • Call an investigation in which not a single witness was a partisan Democrat (just Tim Morrison, as a Congressional staffer, and Jennifer Williams, as a George W Bush campaign worker expressed any partisan affiliation) an extremely partisan process
  • Completely ignore Trump’s violation of the Budget Impoundment Act to create his extortion, effectively blessing the usurpation of his own power as a Congressman
  • Remain silent about the Administration’s refusal to cooperate at all in the inquiry, withholding every senior official’s testimony

Most cynically, though, Hurd blamed the focus on the President’s crimes for the distraction from Ukraine, not the President’s crimes itself. He blamed Democrats for the shift of focus, not the Administration’s refusal to respond to very simple, bipartisan requests about Ukraine, most notably on funding.

Then he suggested this investigation was rushed.

The delay is hurting Ukraine (and our own national security), but the inquiry has been rushed, said the former CIA officer.

And then, he laid out what he needed to assess whether this was really a crime: more testimony. Not from Mike Pompeo, Rick Perry, Mick Mulvaney, or John Eisenberg, all of whom can answer key questions that remain unanswered.

But from three people who should not testify:

  • Rudy Giuliani (because he is being criminally investigated for this activity and it’d be insane for him to do so–which is probably why he refused Lindsey Graham’s request for testimony)
  • Hunter Biden (because there has been no credible claim he did anything that Trump’s children aren’t currently doing)
  • The whistleblower (because every other witness has corroborated the whistleblower’s complaint and the President has already been retaliating against him for a month)

In short, Hurd offered up these three impossible witnesses, knowing that neither Democrats nor Republicans would agree to the request, as his condition to consider the matter further.

Hurd admitted in his statement that this is a gravely serious duty under the Constitution. And, having admitted that seriousness, he asked for a Sparkle Pony — something he knew he would not get — to excuse his own cowardice for refusing to do anything about Trump’s abuse of office.

Share this entry

The Gaping Hole in the Impeachment Investigation Where Bruce Swartz Should Be

/28 Comments/in , , , /by

In her testimony Friday, Marie Yovanovitch repeatedly said that, if Trump believed that Burisma needed to be investigated, there were official channels to do so.

That’s a part of the impeachment inquiry that hasn’t received enough attention — but is likely to receive a lot more starting tomorrow, when Kurt Volker testifies.

That’s because his story seems to have a big gaping hole where Bruce Swartz, the Deputy Assistant Attorney General for International Affairs, should be.

There’s a subtle detail about the efforts to get Ukraine to investigate the Bidens that needs more attention — and elucidation: a purported effort by Kurt Volker to get Bruce Swartz to officially ask Ukraine to investigate the Bidens. He would have been in the loop in any normal requests between the US and Ukraine.

As Trump’s people were pressuring Ukraine to open up an investigations for Trump, Andriy Yermak deferred by asking for an official request from the US government to open such an investigation. As an experienced diplomat, Kurt Volker proposed doing what should happen next, calling Bruce Swartz to put such investigations into formal channels. But according to him, this inexplicably never happened.

A Hi, did you connect with Andriy? Yeah.

Q And then what did You say?

A Not yet. Will talk with Bill and then call him later today. Want to know our status on asking them to investigate.

Q Okay. What did you mean by “our status on asking them to investigate”?

A Whether we had ever made an official request from the Department of Justice.

Q And then skipping down later, you say: Hi — this is August 17th, 2019, at 3:02 — Hi, I’ve got nothing. Bill — meaning Bill Taylor, correct?

A Yes.

Q Had no info on requesting an investigation. Calling a friend at DOJ, Bruce Schwartz (ph). Who is Bruce Schwartz (ph) ?

A Bruce Schwartz is a senior official in the Department of Justice responsible for international affairs, someone I’ve known for many years.

Q Did you reach out to Mr. Schwartz (ph) about mentioning these investigations or whether — I’m sorry, strike that. Did you reach out to Mr. Schwartz (ph) about whether the U.S. had ever requested an official investigation in Ukraine about these two issues that we’ve been talking about?

A I reached out to him and we did not connect.

Q So you never spoke with Bruce Schwartz (ph) ?

A At this — not at this — not in — well

Q Not in this context?

A Not in this context and not since then.

Q Did you speak with anyone at DOJ about whether the U.S. had requested an official investigation?

A No, I did not. I did ask I did ask our Charge to also check. And I later understood that we never had. And because of that was another factor in my advising the Ukrainians then don’t put it in now.

Q You told the Ukrainians don’t put it in the specific investigation?

A Yes, yes.

Q Did you speak with the Ukrainians about whether or not the U.S. had ever requested an official investigation?

A It came up in this conversation with Andriy about the statement, and he asked whether we ever had. I didn’t know the answer. That’s why I wanted to go back and find out. As I found out the answer that we had not, I said, well, let’s just not go there.

Q So Mr. Yermak wanted to know whether the U.S. DOJ

A Yes.

Q had ever made an official request?

A Yes. He said, I think quite appropriately, that if they are responding to an official request, that’s one thing. If there’s no official request, that’s different. And I agree with that.

Q And then Ambassador Sondland then asked: Do we still want Zelensky to give us an unequivocal draft with 2016 and Burisma?

A Yes.

Q And you responded how?

A I said: That’s the clear message so far.

Q That’s the clear message from whom?

A From Giuliani and what we had discussed with Gordon. That’s the clear message so far .

[snip]

Q And, to your knowledge, there never was an official United States Department of Justice request?

A To my knowledge, there never was. And about this time, I stopped pursuing it as well, because I was becoming now here convinced this is going down the wrong road.

For his part, Bill Taylor opposed even calling Swartz, because it was so improper to ask Ukraine to investigate an American in the first place.

Q There was a reference to reaching out Department. You mentioned Deputy Assistant Attorney General, which I assume is Bruce Swartz.

A It is.

Q Did you ask Ambassador Volker to reach out to Bruce Swartz?

A He volunteered to do that.

Q Okay. And what was the feedback from Swartz?

A I don’t know that they ever connected.

Q Okay. And was there any followup effort to close the loop with the Justice Department?

A No. I thought the whole thing was a bad idea.

Q You thought it was a bad idea to reach out to Bruce Swartz?

A No. I thought the idea of the Americans asking the Ukrainians to investigate a violation of Ukrainian law was a bad idea.

Q Okay

A But Kurt, for some reason, wanted to pursue that. And when he volunteered to take that question to Bruce Swartz, that was fine with me.

Q Okay. I mean, is it possible that Swartz’s feedback on that issue would have been compelling to the group? Like, why didn’t anyone fo1low up with Swartz?

A No idea.

State’s Special Adviser for Ukraine Catherine Croft, in attempt to distance herself from any role in pushing investigations, seems to have filled in a key detail here. Or perhaps created a huge void. She says she did reach out to Swartz. She doesn’t know whether he and Volker connected, but doesn’t think so.

But she thinks that Volker didn’t really want to talk to Swartz.

He wanted to speak with Bill Barr.

A No. No. I had no involvement in anything related to — the one exception is, I did send one email to Bruce Swartz at DOJ relaying Ambassador Volker’s request for a meeting with the Attorney General.

Q Okay.

A And when asked what the topic was, I said 2016 elections.

Q Okay.

A But that’s where my involvement in that ended. I just related that, and then I understood those two to be in contact.

Q Do you know if Ambassador Volker had tried to call Bruce Swartz?

A I believe he did.

Q And do you know if Bruce Swartz replied?

A I don’t know.

Q And he instructed you to email Bruce Swartz to see about the viability of Ambassador Volker meeting with the Attorney General?

A He just sort of gave me a vague direction to get him a meeting with the Attorney General, so that was my job.

Q 0kay. So you emailed Bruce Swartz?

A Yes.

Q Did you call Bruce Swartz?

A No, I don’t think so. I think I just — I think I just emailed him.

Q Did he email you back?

A Yes. And then I put him in touch with Kurt and then I was out of the —

Q You put him in touch with who?

A With Ambassador Volker.

Q And did they having a meeting?

A I don’t know.

Q So you don’t know —

A I don’t think so. I don’t think. But not that I’m aware of. [my emphasis]

This should raise all sorts of questions. Because if Volker — by whatever means — bypassed Swartz and instead made the request of Barr, then it would make Barr (yet again) more central to this story. And it might explain how all his narrow denials (he never spoke to Ukraine directly, he never made a request of Ukraine directly, but nevertheless some Ukrainian “volunteers” bearing “evidence” did get to John Durham can be true.

Moreover, it would be consistent with what Barr was doing in the same time period, flying around the world asking foreign countries to invent dirt on Democrats.

There’s a reason this request never got to Bruce Swartz. And that goes to the core of the impropriety of this ask.

And there’s an enormous irony (or one might say, a hypocrisy) about this.

Along the frothy right’s complaints about the contacts that Russian organized crime expert Christopher Steele had with organized crime experts at DOJ like Bruce Ohr, they’ve also complained that Ohr passed Steele’s information (almost certainly pertaining to Paul Manafort) onto other organized crime experts.

Including Bruce Swartz. Here’s John Solomon’s version. Kimberley Strassel’s. Sara Carter’s. Mollie Hemingway’s. And Fox News.

In short, a key complaint about Christopher Steele’s sharing of information is that the ways it got shared at DOJ include the experts and official channels who should handle such things.

Precisely the opposite has occurred with Bill Barr’s witch hunt. And yet none of the frothy right are complaining that Bill Barr’s investigation doesn’t meet the standards that Christopher Steele’s did.

Share this entry

The Trump-Mueller Answer the Stone Trial Really Implicates: Pardoning Assange

/13 Comments/in , , /by

A bunch of media outlets responded to Rick Gates’ testimony in the Roger Stone trial — describing how Donald Trump got off a call with Roger Stone on August 31, 2016 and told him WikiLeaks would release more emails — by arguing that Gates’ testimony is proof that Trump lied to Robert Mueller about the subject.

I recall that in the months leading up to the election there was considerable media reporting about the possible hacking and release of campaign-related information and there was a lot of talk about this matter. At the time, I was generally aware of these media reports and may have discussed these issues with my campaign staff or others, but at this point in time – more than two years later – I have no recollection of any particular conversation, when it occurred, or who the participants were.

I do not recall being aware during the campaign of any communications between the individuals named in Question II (c) [Roger Stone, Donald Trump, Jr., Paul Manafort, or Rick Gates] and anyone I understood to be a representative of WikiLeaks or any of the other individuals or entities referred to in the question.

[snip]

I was in Trump Tower in New York City on October 7, 2016. I have no recollection of being told that WikiLeaks possessed or might possess emails related to John Podesta before the release of Mr. Podesta’s emails was reported by the media. Likewise, I have no recollection of being told that Roger Stone, anyone acting as an intermediary for Roger Stone, or anyone associated with my campaign had communicated with WikiLeaks on October 7, 2016.

I do not recall being told during the campaign that Roger Stone or anyone associated with my campaign had discussions with any of the entities named in the question regarding the content or timing of release of hacked emails.

I spoke by telephone with Roger Stone from time to time during the campaign. I have no recollection of the specifics of any conversations I had with Mr. Stone between June 1.2016 and November 8, 2016. I do not recall discussing WikiLeaks with him, nor do I recall being aware of Mr. Stone having discussed WikiLeaks with individuals associated with my campaign, although I was aware that WikiLeaks was the subject of media reporting and campaign-related discussion at the time.

But these are very carefully crafted answers, as they disclaim any memory of the requested details rather than — ever — claiming they didn’t happen. Unlike Trump’s answers on Trump Tower Moscow, he did not subsequently make clear he has distinct memories of Roger Stone’s boasts about having advance knowledge of WikiLeaks releases, both publicly and in private calls with Trump.

So I don’t really think that’s the most important Trump response given evidence presented at the Stone trial. Rather, a more potentially damning one pertains to the way a shared support for Julian Assange lurks behind the relationship between Randy Credico, Margaret Ratner Kunstler, and Roger Stone.

Credico wanted — and still wants — to rebut any “collusion” claims

Credico had long been hostile to any investigation of Stone’s ties to Assange. When Jerry Nadler started asking questions (of Jim Comey) about Stone’s ties to Assange in September 2016, Credico accused Nadler of McCarthyism.

In early January, 2018, Credico texted to Stone that he would do an interview with Michael Isikoff to make it clear that Assange was “not colluding.”

Much later — indeed, to this day — Credico would go to great lengths to try to rebut claims that Assange was “colluding.”

Credico’s WikiLeaks focus in responding to the subpoena

When HPSCI asked for first voluntary then compelled testimony. Credico responded by sharing the subpoena with a network of people — including Craig Murray, Ray McGovern, Jess Radack, Thomas Drake, Bill Binney, Stefania Maurizi, Colleen Rowley, and Noam Chomsky — with an affinity and in many cases close ties to WikiLeaks. Stone was, at that point, just one of 18 people Credico thought to alert, and the defense made much of the other recipients of Credico’s email releasing the subpoena.

Credico would go on to do as Stone had requested in response to the subpoena, plead the Fifth to avoid testifying before the House Intelligence Committee. On the stand at trial, Credico explained that a “lot of people” had a role in that decision, “amongst them, Mr. Stone.”

The defense, however, tried to suggest that Kunstler (who testified she represented WikiLeaks as an organization and had represented Sarah Harrison for four years) had a role in this decision. They got Credico to admit that Kunstler gave him legal advice, but was not his lawyer. And they got Kunstler to admit that she said she was at a meeting with several lawyers when Credico got a subpoena. That falls far short of saying she advised him to dodge the subpoena, but that’s certainly what the defense tried to insinuate.

Even if she had suggested that Credico, who is a friend of hers, should avoid testifying, none of that is untoward (it’d be the equivalent of bmaz telling me to shut the fuck up about any of my own legal issues, which he does constantly). It just suggests that Credico’s immediate focus in 2017 was on protecting Assange, not necessarily protecting Stone.

The shared interest in pardoning Assange

But this whole relationship was intertwined with an apparent shared interest in pardoning Assange. Right in the middle of Credico’s claims about what WikiLeaks was up to in early October 2016, for example, on October 3, he pushed Stone to get Trump to back asylum for Assange.

Then there are the exchanges on the topic that MoJo reported on a year ago from early January 2018.

In the wake of Stone’s successful effort to get Credico to plead the Fifth, the President’s rat-fucker suggested that if Credico publicly revealed that he couldn’t be Stone’s back channel, it might screw up efforts he claimed he was making to get Assange a pardon.

They resumed the discussion about a pardon several days later, when Stone sent Credico Jerome Corsi’s story on Ecuador’s grant of a diplomatic passport to Assange.

Remarkably, given what has transpired since, Credico informed Stone that the British government was not honoring the diplomatic passport, observed that “Infowars ” — which in this case would be Corsi — “doesn’t know what they’re talking about,” then taunted, ‘Maybe your back Channel knows more than I do.”

The current operative story, of course, is that Corsi was the backchannel, though Credico wouldn’t have known that at the time.

It’s certainly possible that Stone was blowing smoke, raising something he knew Credico cared deeply about, pardoning Assange, to get him to toe the line. It’s likely, too, he was just taking reporting on efforts made in late 2017 to liberate Assange and claiming credit for it.

But at the very least, it shows that Stone used a pardon for Assange — something Credico still spends a lot of time pushing — as leverage to try to get Credico to sustain his cover story.

Kunstler was a key point of pressure for Stone

Which is one of the reasons I find the new details about how Stone’s threatened Kunstler to be interesting.

Per evidence submitted at trial, Stone used several different tactics to pressure Credico to testify (or not) in certain ways, including:

  • Telling him to take the Fifth
  • Telling him to pull a Frank Pentangeli (meaning, to testify falsely)
  • Offering to pay for his lawyer in late 2017
  • Sending him some work in early 2018
  • Threatening Bianca (a threat Credico said he didn’t take very seriously)
  • Making threats of violence of exposure
  • Threatening Margaret Kunstler

Ultimately, per his testimony, Credico changed his stance on testifying so as not to be Stone’s fall-guy (and because he didn’t want to be blamed for Trump’s election). But according to (live texts of) his testimony, a really big part of that change was that Stone threatened Kunstler. Credico testified he, “didn’t want to drag her name though this.”

On March 10, 2018, Stone responded to Credico alerting him that he was going to go on Chris Hayes’ show by forwarding the September 2016 email chain in which Credico feigned helping Stone figure out if WikiLeaks had certain Libya-related emails and threatening, “If you go on with Chris Hayes be sure to mention this,” which would have exposed that Credico did at least appear to respond to Stone’s request for help. On May 21, 2018, Stone responded to a Credico email saying “you should have just been honest with the house intel committee” by threatening, “Keep running your mouth and I’ll file a bar complaint against your friend Margaret.”

Mostly, raising Kunstler would invoke two details Stone knew about. First, some time on or before August 25, 2016, Kunstler passed on Credico’s request to have Assange on his drive time show. She was the person who got WikiLeaks to consider the August 25, 2016 interview that lay a the core of Credico and Stone’s wavering claims that Credico might have inside knowledge. On the stand, Kunstler said that was the first and only time she passed on a request to WikiLeaks on Credico’s behalf.

Then, after some badgering from Stone, on September 2016, Credico sent her the package of information Stone had shared on what he claims was an effort by Hillary to prevent Moammar Qaddafi from stepping down to avoid the Libyan war, BCCing Stone. Significantly, Stone’s lawyers made a point of getting Kunstler to clarify that she did not learn that email had been BCCed with Stone until prosecutors showed it to her in an interview. And it’s true that nothing about the package would have identified it as a Roger Stone smear.

Kunstler testified that she ignored the email and got pretty pissed about it, because that’s not the kind of thing she would do with clients.

Those two details made it clear that Kunstler was Credico’s link to Assange, that she had succeeded in sharing a request from Credico when it served Assange’s interest, but that she wouldn’t consider serving as a source of information about Assange and upcoming leaks.

But in a little noticed response, Credico revealed that he put Stone in touch with Kunstler after the election to talk about a pardon for Julian Assange. I double checked. That happened in late 2016.

Again, there’s absolutely nothing untoward about this. Kunstler represented WikiLeaks and any smart lawyer would push for a pardon for her client. Credico’s relationship with Stone was already public (though it’s unclear whether Kunstler knew of the whole back channel stuff yet, given that she may not  have known the Libya request came from Stone). But it adds an important wrinkle to the year-long Trump flunkie effort to get Assange a pardon.

We know that sometime after the October 2016 WikiLeaks dump, Mike Flynn was part of a conversation where Trump’s team discussed reaching out to WikiLeaks (something that didn’t get mentioned at all at Stone’s trial). Credico’s introduction of Kunstler to Stone would have come around the same time that Assange himself DMed Don Jr asking to become an Ambassador of sorts.

Hi Don. Hope you’re doing well! In relation to Mr. Assange: Obama/Clinton placed pressure on Sweden, UK and Australia (his home country) to illicitly go after Mr. Assange. It would be real easy and helpful for your dad to suggest that Australia appoint Assange ambassador to DC “That’s a really smart tough guy and the most famous australian you have! ” or something similar. They won’t do it, but it will send the right signals to Australia, UK + Sweden to start following the law and stop bending it to ingratiate themselves with the Clintons. 12/16/16 12:38PM

Assange renewed that request as part of his Vault 8-based extortion in November 2017.

All of which is to say there’s one more instance where someone in Trump’s orbit discussed a pardon for Assange. Because it involved Kunstler, it tied the discussion even more closely to Stone’s claims to have optimized WikiLeaks’ releases.

That may be one explanation for Stone’s lawyers’ efforts to make it clear that Kunstler couldn’t have known that Stone had made a request that got presented to her, because that would make it look like a quid pro quo, a request for Stone to return the favor.

Trump may have told the truth — but that doesn’t rule out a quid pro quo with WikiLeaks

Which leads me to the Mueller question that I think most enticingly ties to details revealed at trial.

Trump was asked whether he had ever discussed a pardon for Julian Assange before his inauguration, and he offered the same kind of non-responsive answer he offered to all the other Mueller questions.

Did you have any discussions prior to January 20, 2017, regarding a potential pardon or other action to benefit Julian Assange? If yes, describe who you had the discussion(s) with, when, and the content of the discussion(s).

I do not recall having had any discussion during the campaign regarding a pardon or action to benefit Julian Assange.

Notably, however, because Trump adhered to a practice he inconsistently used (in answering questions only as they applied to the campaign, but not the transition), his answer doesn’t actually deny a key possibility: that he and Stone (and Don Jr) discussed a pardon for Assange during the transition period.

This doesn’t even have to be an instance where Trump did not recall something that happened during the election. If Trump entertained a Stone brokered pardon request in the months after Assange helped him win the election, it would be easily the most damning of Trump’s many abuses of clemency, because it would appear to be a clear quid pro quo for election assistance.

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

Share this entry

BREAKING: The First Amendment Is Part of Something Called the Constitution

/104 Comments/in , /by

There’s been a weird phenomenon during the Trump presidency, where journalists and media organizations loudly defend one small part of the Constitution — the one that benefits them personally, the First Amendment — but seem to believe it would be partisan to defend the Constitution and rule of law more generally.

That’s been evident for some time, as news outlets treat the White House arbitrarily revoking credentials as a major news story but treat Trump’s flouting of other limits built into the Constitution as a big old partisan game.

That, to me, is the real problem with this widely panned Jonathan Allen piece deeming yesterday’s impeachment hearing boring. It wasn’t quite so bad as this Reuters piece in the same vein; unlike Reuters, NBC eventually did get around to telling readers about the most shocking news from the hearing, that Gordon Sondland got on an unsecure line to call the President the day after the July 25 call and learned that the only thing Trump cared about was the investigations into his political opponents.

NBC included that news, but placed it in paragraph 17, then dismissed it as a “footnote,” without explaining that this means Sondland got caught, for the second time, lying in his sworn statement to Congress.

Taylor did create a stir when he told the committee one of his aides overheard an ambassador at the center of the story, Gordon Sondland, talking to the president about Ukraine on the phone. Afterward, Sondland told the staffer that Trump cared more about getting Ukraine to open investigations into Biden, a 2020 Democratic presidential candidate, and his son Hunter than about any issues that mattered to the Ukrainians.

But that served as more of a footnote than a headline.

Thirteen paragraphs before he buried the lead, however, Allen pitched yesterday’s events this way, as a measure of whether Democrats had achieved their goal of ousting the president.

But at a time when Democrats are simultaneously eager to influence public opinion in favor of ousting the president and quietly apprehensive that their hearings could stall or backfire, the first round felt more like the dress rehearsal for a serious one-act play than opening night for a hit Broadway musical.

Allen did that in a piece where he emphasized that witnesses Bill Taylor and George Kent spoke from their “nonpartisan roles in government,” and judged that “Republicans poked no real holes in witness testimony.”

In other words, he did that in a piece where he conceded that nonpartisan experts had presented evidence that Trump had improperly tried to extort political benefits from Ukraine by withholding duly appropriated funds. Allen deemed this hearing to be a battle between Democrats and Republicans in a piece where he conceded that the evidence presented showed that President Trump committed a crime, bribery, that the Constitution explicitly says merits impeachment.

Yes, it is the case that not one Republican took a stand for the Constitution yesterday. Even more embarrassing, not a single Republican took a stand to defend their own Constitutional authority, the power of the purse, which Trump also violated when he withheld funding without explaining to Congress why he did so, a violation of the Impoundment Act that Mick Mulvaney has already confessed was a crime.

That seems newsworthy to me, for any journalist whose ability to be one relies on the limits on authority enshrined in the Constitution.

Don’t get me wrong, Allen is not alone in treating support for the Constitution — except, of course, the part journalists have a vested interest in, the First Amendment — as a partisan spat. It’s a general feature of reporting during the Trump Administration that the press picks and chooses which parts of rule of law they will both-sides, and which they will fiercely defend as an unquestioned value.

Just 15 minutes into this hearing, well before poor Jonathan Allen got bored and tuned out, Adam Schiff reminded of when,

Benjamin Franklin was asked what kind of country America was to become. ‘A Republic,’ he answered, ‘if you can keep it.’ The fundamental issue raised by the impeachment inquiry into Donald J. Trump is, can we keep it?

That’s what Adam Schiff said this hearing was about. Not ousting the President. But keeping our Constitutional government.

If the facts were in dispute, this might be fairly deemed by jaded journalists like Allen a partisan attack.

But the facts are not in dispute, as he himself agrees. Which means he utterly mistook the two sides in this matter, in pitching it as a fight between Democratic and Republican strategists. It’s not. It’s a fight between those defending the Constitution and the Republican party.

Share this entry