Stefan Halper Wasn’t Downstream from the Steele Dossier

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As you’ve no doubt heard, Devin Nunes and Paul Ryan continue to extort DOJ, ostensibly to find evidence of FISA abuse, but by all appearances, to review intelligence on behest of Trump, delegitimize the Mueller investigation, and create some excuse to start impeaching the people overseeing it.

A Chuck Ross article on the latest effort ends with a reference to Stefan Halper, a dual US-UK citizen who was a Cambridge professor in 2016.

House Republicans are again battling with the Justice Department over information related to the Russia investigation, this time over documents the intelligence community said involves a top-secret source who has provided information to the CIA and FBI.

The mysterious source has also gathered information that was given to Special Counsel Robert Mueller as part of his investigation into Russian interference in the 2016 election, according to The Washington Post.

WaPo reported Justice Department and intelligence community officials issued a stark warning to the White House on May 2 against a request from House Intelligence Committee Chairman Devin Nunes. Nunes had submitted a subpoena to the Justice Department on April 24 for records related to the Russia probe.

Justice Department and intelligence community officials argued to White House Chief of Staff John Kelly that complying with the subpoena would reveal the identity of a top-secret source and would undermine protocol regarding intelligence sources, according to WaPo.

WaPo provided one small clue about the source: he or she is American.

[snip]

TheDCNF reported that in Sept. 2016, he was approached out of the blue by Stefan Halper, a University of Cambridge professor and former U.S. government official.

Other right wing sites appear sure that Halper is the source in question.

In 2016, Halper resigned from the Cambridge Intelligence Seminar along with Richard Dearlove (Christopher Steele’s old boss) out of concerns Russia had started funding it, which is to say he has close ties with a lot of the spooks that the Republicans are obsessed by. Halper would fit as an American. And as someone at the overlap between MI6, the FBI, and CIA, any information he discovered would ultimately get shared with Mueller.

When Ross first broke the story of weird meetings between Halper and Trump aides in March (a month before Nunes made the mysterious request), he provided very specific descriptions of when Halper spoke with each of three campaign officials (though he kept the identity of the third secret).

Halper first met Carter Page at conference on July 11 and 12 in London (the meeting would have been on the way back from his trip to Moscow), then remained in contact thereafter.

Halper met campaign foreign policy adviser Carter Page at a July 2016 symposium held at Cambridge regarding the upcoming election, Page told TheDCNF. The pair remained in contact for several months.

Halper met with the third, unnamed campaign advisor on August 31 or September 1, though did not mention Papadopoulos at the meeting.

Halper also requested and attended a one-on-one meeting with another senior campaign official, TheDCNF learned. That meeting was held a day or two before Halper reached out to Papadopoulos. Halper offered to help the campaign but did not bring up Papadopoulos, even though he would reach out to the campaign aide a day or two later.

Halper first reached out to George Papadopoulos on September 2, then met with him over several days in London in mid-September.

Halper first contacted Papadopoulos by email. In a Sept. 2, 2016, message sent to Papadopoulos’s personal email account, he offered the Trump aide $3,000 to write a policy paper on issues related to Turkey, Cyprus, Israel and the Leviathan natural gas field. Halper also offered to pay for Papadopoulos’s flight and a three-night stay in London.

[snip]

Papadopoulos and Halper met several times during the London trip, including at the Connaught Hotel and the Travellers Club — a classic 19th century club foreign diplomats and politicians frequent. Halper’s research assistant — a Turkish woman named Azra Turk — also met with Papadopoulos. The Connaught Hotel meeting was scheduled for Sept. 13, 2016, and the Travellers Club conclave was two days later.

While discussing the policy paper Papadopoulos was to write, Halper made an out-of-left-field reference to Russians and hacked emails, according to a source with direct knowledge of Papadopoulos’s version of events.

From these meetings and ties to Dearlove, Republicans have gotten themselves worked up to believing that Halper was working off the Steele dossier, perhaps because Ross ties Halper to people in terms of the dossier [see below for explanation that he did not intend to suggest this tie]:

Halper is a close associate of Sir Richard Dearlove — the former MI6 chief.

In December 2016, Halper, Dearlove and espionage historian Peter Morland made international news when they announced they were leaving an organization called the Cambridge Intelligence Seminar due to concerns Russian operatives had infiltrated the group.

Months earlier, in early fall 2016, Dearlove reportedly met with dossier author Steele. Steele sought out Dearlove’s advice on how to proceed with information he gathered on Trump’s ties to Russia, The Washington Post reported. Former MI6 Moscow station chief Steele had been told Trump campaign members were colluding with Kremlin operatives to release emails stolen from the DNC.

Steele’s dossier does not mention Papadopoulos, though the former spy was made aware of the Trump campaign aide while he was working on his anti-Trump document. FBI agents asked Steele during an October 2016 meeting in Rome if he was aware of Papadopoulos. Steele did not have information on Papadopoulos, the former spy said.

But Papadopoulos does have at least one possible connection to the dossier. During the campaign, Sergei Millian approached him. Millian is a Belarus-born businessman who was allegedly an unwitting source for some of the most salacious claims in the dossier.

While it’s possible Halper got wind of the counterintelligence concerns via intelligence sources in London, it doesn’t make sense that his information came via the dossier.

The first dated report on Page is in a report submitted July 19, after Page had already made his trip to Russia (and stopped by London where he met Halper). Both of the sources on the report are Russian, not American or British, so not Halper himself. And the report was reported contemporaneously, meaning Halper wouldn’t have been the only outside source that could have told Steele about the trip, nor would Halper have needed Steele’s sources to learn about it.

So if Halper sought out Page out of counterintelligence concerns, it likely had as much to do with the concerns FBI had in March 2016 (the ones that never appeared in the dossier) as it does July trip, much less any discussions between Steele and Halper about that trip. And if Halper is as spooked up as Republicans want to suggest, by the time of his subsequent communications with Page, he would have known of both those concerns.

Similarly, the timing on the ties between Sergei Millian and Papadopoulos wouldn’t support a tie between Halper’s interest in him and the dossier. The Steele reports believed to tie to Millian date to June (including, possibly, the pee tape) and July. But July is around when Papadopoulos and Millian first met (I suspect, on July 22). So to the extent Millian really was a source for Steele, it would have largely preceded the time he met, much less became close with, Papadopoulos.

But all that happened around the time the Australians informed the US of Papadopoulos’ drunken May ramblings.

So by the time Halper met with Papadopoulos (and met the other aide, possibly as background to the Papadopoulos meeting), the US would have already had official notice of Papadopoulos via the Australians.

If anything, it’d be far more likely that Halper gave the US soft notice of the Downer meeting before the Australians did so formally than that Halper learned of Papadopoulos via some Steele channel.

Admittedly, some nut jobs are wailing about Halper totally independent of the Steele dossier, because they’re outraged, apparently, that the the US sought to chase down whether the unvetted people with troubling ties to suspected Russian spies working for Trump for free were real concerns or not. I’ll return to that in a follow-up. But as background to laying out precisely how ridiculous the Republicans are getting here, understand that it is unlikely whatever investigation, if any, Halper was conducting was based off the Steele dossier.

Update: Ross has taken issue with my claim that he ties Halper to the dossier. I base that claim not just on Twitter exchanges with his readers who make the allegation but on these details (for example, this one that claims Papadopoulos was a source for Millian before they met and that May and September are the same time). Ross introduces the dossier by claiming Page was a central figure in HPSCI’s investigation because of allegations made against him in the dossier, though the reality is that it’s because the dossier was included in his FISA applications.

Page is also a prominent figure in the investigation due to allegations made against him in the infamous Steele dossier. Page’s trip to Moscow in early July 2016 is a central piece of the dossier. Christopher Steele, the author of the Democrat-funded report, alleges Page met secretly with two Kremlin insiders as part of the Trump campaign’s collusion effort.

Page attended the Cambridge event Halper set up, four days after that trip to Moscow.

Then there’s the insinuation, in the passage cited above, that because Halper took an anti-Russian stance with Dearlove in December and Dearlove had a tie to the Steele dossier in September, there must be some continuity between the two events.

Halper is a close associate of Sir Richard Dearlove — the former MI6 chief.

In December 2016, Halper, Dearlove and espionage historian Peter Morland made international news when they announced they were leaving an organization called the Cambridge Intelligence Seminar due to concerns Russian operatives had infiltrated the group.

Months earlier, in early fall 2016, Dearlove reportedly met with dossier author Steele. Steele sought out Dearlove’s advice on how to proceed with information he gathered on Trump’s ties to Russia, The Washington Post reported. Former MI6 Moscow station chief Steele had been told Trump campaign members were colluding with Kremlin operatives to release emails stolen from the DNC.

Ross could have avoided any mention of the dossier by simply saying that Halper and Dearlove took that anti-Russian stance together, but he didn’t.

Finally, there’s the bizarre effort (noted above) to tie Papadopoulos to the dossier via Millian.

I’m glad Ross has now made clear he did not intend to suggest a tie between Halper and the dossier, because (as I think I show here) they make no sense. I do hope his readers who do suggest there’s a tie understand he has disavowed any such suggestion.

My goal with this post (as I suggest above) is to lay groundwork showing that the GOP basis for delegitimizing the investigation — that it purportedly started from oppo research paid for by Democrats — does not have a tie to the next stage, Halper. It seems whatever Ross wrote months ago, he and I are now in agreement that it does not have such a tie.

Update: Ross is still cranky that I suggested his six references to the dossier in a story that’s not about the dossier hasn’t led anyone to imagine a connection. Yesterday morning, Jack Posobiec, with his 300,000 followers, was already suggesting a tie based on a link to Ross’ more recent report.

The Sekulow Questions, Part Six: Trump Exacerbates His Woes

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In this series, it feels like time is marked by big Russian meetings and key firings.

I’m talking, of course, about my efforts to use the Mueller questions as imagined by Jay Sekulow to map out what the structure of the investigation (at least as it pertains to Trump personally) might be. Thus far, I’ve shown:

  • Russians, led by the Aras Agalarov and his son, cultivated Trump for years by dangling two things: real estate deals and close ties with Vladimir Putin.
  • During the election, the Russians and Trump appear to have danced towards a quid pro quo agreement, with the Russians offering dirt on Hillary Clinton in exchange for a commitment to sanctions relief, with some policy considerations thrown in.
  • During the transition period, Trump’s team took a series of actions that moved towards consummating the deal they had made with Russia, both in terms of policy concessions, particularly sanctions relief, and funding from Russian sources that could only be tapped if sanctions were lifted. The Trump team took measures to keep those actions secret.
  • Starting in January 2017, Trump came to learn that FBI was investigating Mike Flynn. His real reasons for firing Flynn remain unreported, but it appears he had some concerns that the investigation into Flynn would expose him personally to investigation.
  • After a failed attempt to quash the investigation into his Administration by firing Flynn, Trump grew increasingly angry that Jim Comey wouldn’t provide a quick exoneration without conducting an investigation first, leading to his firing.

May 10, 2017: What did you mean when you told Russian diplomats on May 10, 2017, that firing Mr. Comey had taken the pressure off?

Trump fired Comey just in time to report to Russian Ambassador Sergey Kislyak and Foreign Minister Sergey Lavrov in a meeting the next day that doing took the pressure off he felt because of Russia.

“I just fired the head of the F.B.I. He was crazy, a real nut job. I faced great pressure because of Russia. That’s taken off.” Remarkably, he also felt the need to reassure the Russians that, “I’m not under investigation.”

The reports that Trump’s lawyers need to have clearance because of the inclusion of this meeting in the list of questions suggests Mueller wants to learn more about the meeting beyond the public reports. That may include Trump’s sharing of classified information provided by the Israelis.

May 11, 2017: What did you mean in your interview with Lester Holt about Mr. Comey and Russia?

The day after meeting with the Russians, he told Lester Holt he was going to fire Comey regardless of what Rod Rosenstein recommended. [These are excerpts and a little rough; here’s a partial transcript that leaves out a lot of the Russian comments]

He’s a showboat, he’s a grand-stander, the FBI has been in turmoil, you know that. I know that. Everybody knows that. You take a look at the FBI a year ago, it was in virtual turmoil. Less than a year ago. It hasn’t recovered from that.

[in response to a question about Rosenstein’s recommendation] What I did was I was going to fire Comey. My decision. I was going to fire Comey. There’s no good time to do it, by the way. I was going to fire regardless of recommendation. [Rosenstein] made a recommendation, he’s highly respected. Very good guy, very smart guy. The Democrats like him. The Republicans like him. But regardless of recommendation I was going to fire Comey. Knowing there was no good time to do it.

And in fact when I decided to just do it, I said to myself, I said you know, this Russia thing with Trump and Russia is a made-up story, it’s an excuse by the Democrats for having lost an election that they should have won. And the reason they should have won it is the electoral college is almost impossible for a Republican to win. Very hard. Because you start off at such a disadvantage. So everybody was thinking, they should have won the election. This was an excuse for having lost an election.

I just want somebody that’s competent. I’m a big fan of the FBI. I love the people of the FBI.

As far as I’m concerned, I want that [investigation] to be absolutely done properly. When I did this now, I said I’ll probably, maybe confuse that. Maybe I’ll expand that, you know, lengthen the time because it should be over with, in my opinion, should have been over with a long time ago. ‘Cause all it is, is an excuse but I said to myself, I might even lengthen out the investigation, but I have to do the right thing for the American people.

[in response to question about why he put he was not under investigation in his termination letter] Because he told me that, I mean he told me that. I’ve heard that from others. I had a dinner him, he wanted to have dinner because he wanted to stay on, we had a very nice dinner at the White House very early on. [He asked to have dinner?] A dinner was arranged. I think he asked for the dinner. And he wanted to stay on as the FBI head. And I said, I’ll consider, we’ll see what happens. We had a very nice dinner. And at that time he told me you’re not under investigation. I knew anyway. First of all, when you’re under investigation, you’re giving all sorts of documents and everything. I knew I wasn’t under — and I heard it was stated at the committee, at some committee level, number one. Then during the phone call he said it, then during another phone call he said it. He said it at dinner, and then he said it twice during phone calls.

In one case I called him, in one case he called me.

I actually asked him, yes. I said, if it’s possible, would you let me know, am I under investigation? He said you are not under investigation. All I can tell you is that I know that I’m not under investigation. Personally. I’m not talking about campaigns, I’m not talking about anything else. I’m not under investigation.

[did you ask him to drop the investigation] No. Never. I want the investigation speeded up. Why would we do that? Iw ant to find out if there was a problem with an election having to do with Russia, or anyone else, any other country, I want it to be so strong and so good.

I want somebody that’s going to do a great job.

I think that looking into me and the campaign, I have nothing to do, his was set up by the Democrats. There’s no collusion between me and my campaign and the Russians. The other things is the Russians did not affect the vote.

If Russia hacked, If Russia had to anything to do with our election, I want to know about it. If Russia or anybody elseis trying to interfere with our elections I want to make sure that will never ever happen

[wiretapping] I was surprised [Comey said no spying] but I wasn’t angry. There’s a big thing going on right now, spying, to me that’s the big story.

I want a great FBI Director. I expect that [they will continue investigation].

[Flynn’s access to secrets] My White House Counsel it did not sound like an emergency. She didn’t make it sound that way either in the hearings the other day. It didn’t sound like it had to be done immediately. This man has served for many years. He’s a general. In my opinion a very good person. It would be very unfair to hear from someone we don’t even know to immediately run out and fire a general. We ultimately fired, but we fired for a different reason. Everything plays into it. We fired him because he said something to the Vice President that wasn’t true. He had clearance from the Obama Administration. I think it’s a very unfair thing that the media doesn’t talk about that.

I just sent a letter from one of the most prestigious law firms in the country that I have nothing to do with Russia, I have no investments in Russia, I don’t have property in Russia. I’m in total compliance in every way.

I had the Miss Universe Pageant in Moscow a long time ago. I have a certified letter. I’m not just saying that. I assume he’s gonna give the letter out. No loans, no nothing.

I never thought about it [optics of Lavrov meeting]. What difference does it make.

When I spoke with Putin he asked me whether I’d see Lavrov. I think we had a great discussion having to do with Syria, having to do with the Ukraine. Maybe that discussion will lead to peace.

Ultimately, Trump said several things here (aside from putting into the public record the meetings with Comey, though he got details that can almost certainly be proved wrong wrong). He differentiated between an investigation into himself personally and others, denied asking to halt the investigation into Flynn, provided his bogus self-exoneration claim of not having business ties with Russians. He also reiterated the claim he had been spied on.

May 12, 2017: What was the purpose of your May 12, 2017, tweet?

By this point, Trump and Comey were in a war of credibility. And Trump suggested that he might have tapes of his meetings with Comey.

The White House answers about whether there were tapes have dodged some, so it’s possible.

May 17, 2017: What did you think and what did you do in reaction to the news of the appointment of the special counsel?

In the wake of reporting that Comey had documented a request from Trump to halt the investigation into Flynn, on May 17, Rod Rosenstein appointed Robert Mueller to investigate any links between the Russian government and individuals associated with Trump’s campaign and “any matters that arose or may arise directly from the investigation.” The latter phrase made it clear that by firing Comey, Trump had put himself under investigation for obstructing the investigation in chief.

In the middle of a meeting with Sessions, Don McGahn, Mike Pence, and several others on replacing Comey, Rosenstein called McGahn and told him he had appointed Mueller. Trump took it out on Sessions, calling him an idiot and telling him he should resign. Sessions left and sent a resignation letter, but Pence, Steve Bannon, and Reince Priebus convinced him to hold off on accepting it. This piece describes Priebus’ side of that story.

May 31, 2017: Why did you hold Mr. Sessions’s resignation until May 31, 2017, and with whom did you discuss it?

Mueller has received testimony from most of the people who counseled Trump not to fire Sessions, including McGahn, Bannon, and Priebus (but not Pence). He has also gotten Sessions’ testimony on this point.

I’m particularly interested in whether Trump consulted with people not listed in the NYT story on this, such as Jared Kushner and Stephen Miller (who had counseled him to fire Comey in the first place). I also suspect that Trump had already reached out Flynn by this point to talk pardons.

June 8, 2017: What did you think about Mr. Comey’s June 8, 2017, testimony regarding Mr. Flynn, and what did you do about it?

On June 8, Comey testified to SSCI. The night before, he released a statement that reviewed much of what appeared in his memos. The hearing consisted of senators from each party trying to spin Comey’s report of being asked to drop the Flynn investigation, with little news  — though Comey did make clear the investigation covered false statements.

BLUNT: On the Flynn issue specifically, I believe you said earlier that you believe the president was suggesting you drop any investigation of Flynn’s account of his conversation with the Russian ambassador. Which was essentially misleading the vice president and others?

COMEY: Correct. I’m not going to go into the details but whether there were false statements made to government investigators, as well.

Comey refuted Trump’s claim that he didn’t ask him to stop the investigation into Flynn.

KING: In his press conference May 18th, the president responded, quote, no, no, when asked about asking you to stop the investigation into general Flynn. Is that a true statement?

COMEY: I don’t believe it is.

Comey said he viewed the Flynn investigation and the Russian one as touching, but separate, though raised the possibility of flipping Flynn.

KING: Back to Mr. Flynn. Would the — would closing out the Flynn investigation have impeded the overall Russian investigation?

COMEY: No. Well, unlikely, except to the extent — there is always a possibility if you have a criminal case against someone and squeeze them, flip them and they give you information about something else. But I saw the two as touching each other but separate.

Comey also revealed that he had shared memos memorializing his conversations with Trump with a friend.

BLUNT: You said something earlier and I don’t want to fail to follow up on, you said after dismissed, you gave information to a friend so that friend could get that information into the public media.

COMEY: Correct.

BLUNT: What kind of information was that? What kind of information did you give to a friend?

COMEY: That the — the Flynn conversation. The president had asked me to let the Flynn — forgetting my exact own words. But the conversation in the Oval Office.

Much of the hearing covered Sessions’ non-involvement. Comey deferred a number of questions to the closed session.

Trump used the Comey hearing — and his confirmation that at the time he left the president wasn’t under investigation — to have Marc Kasowitz make a statement claiming Trump never impeded the investigation and never demanded loyalty.

I am Marc Kasowitz, Predisent Trump’s personal lawyer.

Contrary to numerous false press accounts leading up to today’s hearing, Mr. Comey has now finally confirmed publicly what he repeatedly told the President privately: The President was not under investigation as part of any probe into Russian interference. He also admitted that there is no evidence that a single vote changed as a result of any Russian interference.

Mr Comey’s testimony also makes clear that the President never sought to impede the investigation into attempted Russian interference in the 2016 election, and in fact, according to Mr. Comey, the President told Mr. Comey “it would be good to find out” in that investigation if there were “some ‘satellite’ associates of his who did something wrong.” And he did not exclude anyone from that statement. Consistent with that statement, the President never, in form or substance, directed or suggested that Mr. Comey stop investigating anyone, including suggesting that that Mr. Comey“let Flynn go.” As he publicly stated the next day, he did say to Mr. Comey, “General Flynn is a good guy, he has been through a lot” and also “asked how is General Flynn is doing.”

Admiral Rogers testified that the President never “directed [him] to do anything . . . illegal, immoral, unethical or inappropriate” and never “pressured [him] to do so.” Director Coates said the same thing. The President likewise never pressured Mr. Comey. .

The President also never told Mr. Comey, “I need loyalty, I expect loyalty” in form or substance. Of course, the Office of the President is entitled to expect loyalty from those who are serving in an administration, and, from before this President took office to this day, it is overwhelmingly clear that there have been and continue to be those in government who are actively attempting to undermine this administration with selective and illegal leaks of classified information and privileged communications.

Kasowitz also accused Comey of leaking in order to lead to a special counsel investigation.

Mr. Comey has now admitted that he is one of these leakers. Today, Mr. Comey admitted that he unilaterally and surreptitiously made unauthorized disclosures to the press of privileged communications with the President. The leaks of this privileged information began no later than March 2017 when friends of Mr. Comey have stated he disclosed to them the conversations he had with the President during their January 27, 2017 dinner and February 14, 2017 White House meeting. Today, Mr. Comey admitted that he leaked to friends his purported memos of these privileged conversations, one of which he testified was classified. He also testified that immediately after he was terminated he authorized his friends to leak the contents of these memos to the press in order to “prompt the appointment of a special counsel.” Although Mr. Comey testified he only leaked the memos in response to a tweet, the public record reveals that the New York Times was quoting from these memos the day before the referenced tweet, which belies Mr. Comey’s excuse for this unauthorized disclosure of privileged information and appears to entirely retaliatory. We will leave it the appropriate authorities to determine whether this leaks should be investigated along with all those others being investigated. .

In sum, it is now established that there the President was not being investigated for colluding with the or attempting to obstruct that investigation. As the Committee pointed out today, these important facts for the country to know are virtually the only facts that have not leaked during the long course of these events.

This sort of kicked off the official campaign to discredit Comey and those who would back his story.

June 12, 2017: What did you think and do in reaction to the news that the special counsel was speaking to Mr. Rogers, Mr. Pompeo and Mr. Coats?

Public reports date Rogers and Coats’ interviews with Mueller to the week of June 12, 2017, so Pompeo’s must have been around that same time. Rogers and Coats, at least, testified that Trump tried to get them to state publicly that there was no collusion. They said the interaction was odd and uncomfortable, but that he did not order them to interfere.

Clearly, Trump responded to public reports of their being called as witnesses, though we don’t know what the response was. It’s possible that’s when Trump threatened to fire Mueller, only to back off when Don McGahn threatened to quit.

July 7, 2017: What involvement did you have in the communication strategy, including the release of Donald Trump Jr.’s emails?

I’ve laid out that I believe the evolving June 9 story is a limited hangout orchestrated by Agalarov lawyer Scott Balber. The strategy would have begun when Jared Kushner wrestled with the need to disclose the meeting, both in response to congressional investigations and for his clearance. Manafort, too, turned over emails backing the event about a month before the story came out publicly. This post talks about the response the weekend of the G-20 in Hamburg, including Ivanka sitting in on a meeting so Trump could strategize, and Hope Hicks suggesting the emails would never come out.

As a reminder, on the same day Trump had a second hour long meeting with Putin, he dictated Putin’s propaganda line that the meeting pertained to adoptions. Importantly, he hid what I’ve suggested was the quo in the quid pro quo, sanctions relief. Mueller undoubtedly would like to know if Putin helped him come up with that message, which would be really damning.

Mueller also wants to know about the decision to leak Don Jr’s emails. Bannon suspects that a Jared aide leaked the emails (his then lawyer Jamie Gorelick would cut back her work with him shortly thereafter). But remember: in a DM, Assange proposed that he give Wikileaks the email.

There’s clearly far more back story to the leaked email we don’t know yet.

If Trump’s involvement here involves coordination with Russians (like the Agalrovs, to say nothing of Putin) or Assange, it would provide damning evidence not of obstruction, but of collusion, an effort to coordinate a story about a key meeting. Trump’s lawyers have always suggested questions about Trump’s role in this statement are improper, which is itself a telling indicator that they don’t understand (or want to spin) the risk of the original June 9 meeting.

July 20, 2017: After the resignations, what efforts were made to reach out to Mr. Flynn about seeking immunity or possible pardon?

Mike Flynn tried to get Congressional immunity in March 2017, with Trump’s backing the effort in a tweet.

Mueller’s question seems to suggest even at that earlier period, someone from Trump’s camp reached out and discussed immunity with Flynn. Shortly before April 25, Trump also sent Flynn a message to “stay strong.” (h/t TC)

On July 20, the WaPo reported that Trump’s team was researching pardons. The NYT report first revealing that Trump offered pardons to Mike Flynn (and Manafort, who is curiously not mentioned in this question) describes it happening after John Dowd took over, in the wake of the revelation of the June 9 meeting and the Kasowitz firing. Dowd denied any such thing was happening on July 21, which is probably a good sign such discussions were taking place.

July 25, 2017: What was the purpose of your July 2017 criticism of Mr. Sessions? What discussions did you have with Reince Priebus in July 2017 about obtaining the Sessions resignation? With whom did you discuss it?

In late July, 2017, Trump accused Sessions of several sins: failing to crack down on leaks, failing to prosecute Hillary, and failing to fire Andrew McCabe. That must be the same time when Trump ordered Priebus to get Sessions’ resignation, which he dodged by stalling, which probably answers the “what was the purpose” question: to lay predicate to fire Sessions.

I’m particularly interested in the question about who Trump discussed this with, particularly given the provocative timing — the days before George Papadopoulos’s July 26 arrest and Paul Manafort’s July 27 condo search (using a warrant that, unlike a warrant from a May 27 storage unit search, invoked the June 9 meeting). It’s possible Trump had advance knowledge of this stuff (which would be alarming), but likely it’s a coincidence.

In any case, Mueller clearly has reason to believe Trump learned something about the investigation and discussed it with people that led him to try, again, to stop it by firing someone.

What was the purpose of the September and October 2017 statements, including tweets, regarding an investigation of Mr. Comey?

On September 1, Trump responded to reports that because Comey had a declination written before interviewing Hillary, he rigged the outcome of the investigation. In mid-October, in the wake of the Manafort indictment and George Papadopoulos plea, Trump returned to this attack. Rudy Giuliani has renewed this attack in recent days, which is presumably an attempt to undercut Comey’s credibility.

What discussions did you have regarding terminating the special counsel, and what did you do when that consideration was reported in January 2018?

The NYT report that Trump tried to fire Mueller in June 2017 made it clear that Mueller had received testimony about it (presumably from McGahn and others). Clearly, Mueller has reason to know that Trump did something else in response. Note that this report came out in the wake of the Michael Wolff book, which would give Mueller an excuse to call several of the relevant witnesses (such as Mark Corallo and Steve Bannon) as witnesses. This time period also closely follows the increasingly aggressive response in Congress.

What is the reason for your continued criticism of Mr. Comey and his former deputy, Andrew G. McCabe?

The assumption is that Trump continues to attack Comey and McCabe because doing so might harm their credibility with regards to an obstruction investigation, and that’s surely true (made all the worse by McCabe’s firing and his criminal referral).

But I increasingly believe (particularly given that the other contemporaneous witnesses to Comey’s concerns, like James Baker, are not named) that’s not the only reason Trump is doing this. My guess is it’s an attempt to undermine their decision to investigate Flynn. We now know, for example, that McCabe set up the interview with Flynn on Comey’s direction. So in addition to discrediting key witnesses against him, it seems possible that Trump is also trying to discredit the decision, at a time when  FBI was about to close a counterintelligence investigation into Flynn, to instead interview him, leading to the exposure of Trump’s efforts to undermine US policy during the transition period.

RESOURCES

These are some of the most useful resources in mapping these events.

Mueller questions as imagined by Jay Sekulow

CNN’s timeline of investigative events

Majority HPSCI Report

Minority HPSCI Report

Trump Twitter Archive

Jim Comey March 20, 2017 HPSCI testimony

Comey May 3, 2017 SJC testimony

Jim Comey June 8, 2017 SSCI testimony

Jim Comey written statement, June 8, 2017

Jim Comey memos

Sally Yates and James Clapper Senate Judiciary Committee testimony, May 8, 2017

NPR Timeline on Trump’s ties to Aras Agalarov

George Papadopoulos complaint

George Papadopoulos statement of the offense

Mike Flynn statement of the offense

Internet Research Agency indictment

Text of the Don Jr Trump Tower Meeting emails

Jared Kushner’s statement to Congress

Erik Prince HPSCI transcript

THE SERIES

Part One: The Mueller Questions Map Out Cultivation, a Quid Pro Quo, and a Cover-Up

Part Two: The Quid Pro Quo: a Putin Meeting and Election Assistance, in Exchange for Sanctions Relief

Part Three: The Quo: Policy and Real Estate Payoffs to Russia

Part Four: The Quest: Trump Learns of the Investigation

Part Five: Attempting a Cover-Up by Firing Comey

Greenberg Traurig Fires Rudy on the One Year Anniversary of the Comey Firing

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For the last few weeks, Rudy Giuliani has been on a temporary leave from his firm Greenberg Traurig in a quest to negotiate the end of the Mueller probe of Donald Trump within weeks. As part of that goal, he has been badmouthing his former AUSA Jim Comey, calling him a disgraceful liar and a very perverted man.

GT’s Chair Richard Rosenbaum just issued a statement explaining that,

When Rudy Giuliani took an unpaid leave of absence from the firm, his intent was to play a limited role, for a short period of time, to address specific matters for President Trump. After recognizing that this work is all consuming and is lasting longer than initially accepted, Rudy has determined it is best for him to resign from the firm, effective May 9th.

Let’s be clear: this was not Rudy’s decision. The reputational cost of Rudy’s antics to the firm surely drove it.

Which is to say Rudy was made to resign. He was fired, effective May 9th.

What I especially love about it is the irony of the date: Rudy was fired on the one year anniversary of Comey’s firing.

 

Ron Wyden Makes It Clear Gina Haspel Pushed for Torture to Continue in 2005

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Among the many, many damning details of Gina Haspel’s confirmation hearing, one sticks out. Ron Wyden asked her whether, during the 2005 to 2007 period, whether she ever asked for the torture program to be continued or expanded. She didn’t answer. Instead, she dodged:

Haspel: Like all of us who were in the counterterrorism center and working at CIA in those years after 9/11, we all believed in our work, we were committed, we had been charged with making sure the country wasn’t attacked again. And we had been informed that the techniques in CIA’s program were legal and authorized by the highest legal authority in our country and also the President. So I believe, I and my colleagues in the counterterrorism center were working as hard as we could with the tools that we were given to make sure that we were successful in our mission.

Wyden: My time is short and that, respectfully, is not responsive to the question. That was a period where the agency was capturing fewer detainees, waterboarding was no longer approved, and especially in light of that Washington Post story, I would really like to have on the record whether you ever called for the program to be continued, which it sure sounds to me like your answer suggested. You said, well we were doing our job it ought to be continued.

This makes it clear that Haspel was involved in reauthorizing torture in 2005, in a process that was as rife with lies to DOJ as the original authorization process had been.

It also makes Haspel directly responsible for the torture of people like Abu Farj al-Lbi, which the torture report describes this way.

On May 2005, one day after al-Libi’s arrival at DETENTION SITE BLACK, CIA interrogators received CIA Headquarters approval for the use of the CIA’s enhanced interrogation techniques on Abu Faraj al-Libi. CIA interrogators began using the CIA’s enhanced interrogation techniques on Abu Faraj al-Libi on May 28, 2005, two days before the OLC issued its memorandum analyzing whether the techniques violated U.S. obligations under the Convention Against Torture.891

The CIA interrogated Abu Faraj al-Libi for more than a month using tlie CIA’s enhanced interrogation techniques. On a number of occasions, CIA interrogators applied the CIA’s enhanced interrogation techniques to Abu Faraj al-Libi when he complained of a loss of hearing,repeatedly telling him to stop pretending he could not hear well.892 Although the interrogators indicated that they believed al-Libi’s complaint was an interrogation resistance technique, Abu Faraj al-Libi was fitted for a hearing aid after his transfer to U.S. military custody at Guantanamo Bay in 2006.893 Despite the repeated and extensive use of the CIA’s enhanced interrogation techniques on AbuFaraj al-Libi, CIA Headquarters continued to insist throughout the summer and fall of 2005 that Abu Faraj al-Libi was withholding information and pressed for the renewed use of the techniques. The use of the CIA’s enhanced interrogation techniques against Abu Faraj al-Libi was eventually discontinued because CIA officers stated that they had no intelligence to demonstrate that Abu Faraj al-Libi continued to withhold information, and because CIA medical officers expressed concern that additional use of the CIA’s enhanced interrogation techniques “may come with unacceptable medical or psychological risks.894 After the discontinuation of the CIA’s enhanced interrogation techniques, the CIA asked Abu Faraj al-Libi about UBL facilitator Abu Ahmad al-Kuwaiti for the first time.895 Abu Faraj al-Libi denied knowledge of al-Kuwaiti.896

That Haspel appears to have pushed to use torture with al-Libi is significant for multiple reasons. First, as noted, the CIA tortured al-Libi immediately after taking him into custody. There was no show of seeing whether he would cooperate. The CIA used his claim of hearing problems — a claim that turned out to be true — as an excuse to do more torture. CIA apparently kept asking to resume torture with him, even though it didn’t work.

Really importantly for the legacy of the torture program, al-Libi not only didn’t reveal the identity of Abu Ahmad al-Kuwaiti while he was being tortured, he continued to lie about it after he was tortured.

But Haspel’s involvement in this might be most problematic given the timing of it. As noted, the CIA asked for custody of al-Libi while they were still getting torture reauthorized; the first two Bradbury memos, authorizing torture and then their use of them in combination, were approved on May 10. As further noted, however, CIA started torturing al-Libi before the last Bradbury memo was signed on May 30. We know from Jim Comey’s memos about that process that DOJ was pushed very hard to approve them. Critically important, however, is that Alberto Gonzales made a case against reapproving torture at the May 31 principals meeting. In spite of DOJ concerns, the principals committee reapproved all the techniques.

That’s because CIA had already started torturing al-Libi. Effectively, CIA (so, presumably, Haspel, among others), rushed to torture al-Libi so that the government would have no choice but to reauthorize it.

The Sekulow Questions, Part Five: Attempting a Cover-Up by Firing Comey

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In this series, I have been showing a framework for the investigation that the Mueller questions, as imagined by Jay Sekulow, maps out. Thus far I have shown:

  • Russians, led by the Aras Agalarov and his son, cultivated Trump for years by dangling two things: real estate deals and close ties with Vladimir Putin.
  • During the election, the Russians and Trump appear to have danced towards a quid pro quo agreement, with the Russians offering dirt on Hillary Clinton in exchange for a commitment to sanctions relief, with some policy considerations thrown in.
  • During the transition period, Trump’s team took a series of actions that moved towards consummating the deal they had made with Russia, both in terms of policy concessions, particularly sanctions relief, and funding from Russian sources that could only be tapped if sanctions were lifted. The Trump team took measures to keep those actions secret.
  • Starting in January 2017, Trump came to learn that FBI was investigating Mike Flynn. His real reasons for firing Flynn remain unreported, but it appears he had some concerns that the investigation into Flynn would expose him.

This post lays out the questions on obstruction that lead up to Comey’s firing on May 9, 2017.

February 14, 2017: What was the purpose of your Feb. 14, 2017, meeting with Mr. Comey, and what was said?

On February 13, Trump fired Mike Flynn. The explanation he gave was one of the concerns Sally Yates had given to Don McGahn when she told him about the interview, that Flynn had lied to Mike Pence about having discussed sanctions relief with Sergey Kislyak on December 29, 2016. Except, coming from Trump, that excuse makes no sense, both because he had already shown he didn’t care about the counterintelligence implications of that lie by including Flynn in the January 28 phone call with Putin and other sensitive meetings. But also because at least seven people in the White House knew what occurred in Flynn’s calls, and Pence probably did too.

Against that backdrop, the next day, Trump had Jim Comey stay late after an oval office meeting so he could ask him to drop the investigation into Flynn. Leading up to this meeting, Trump had already:

  • Asked Comey to investigate the pee tape allegations so he could exonerate the President
  • Asked if FBI leaks
  • Asked if Comey was loyal shortly after asking him, for the third time, if he wanted to keep his job
  • Claimed he distrusted Flynn’s judgment because he had delayed telling Trump about a congratulatory call from Putin

After Trump asked everyone in the meeting to leave him and Comey alone, both Jeff Sessions and Jared Kushner lingered.

While the description of this meeting usually focuses on the Flynn discussion, according to Comey’s discussion, it also focused closely on leaks, which shows how Trump linked the two in his mind.

Here’s what Comey claims Trump said about Flynn:

He began by saying he wanted to “talk about Mike Flynn.” He then said that, although Flynn “hadn’t done anything wrong” in his call with the Russians (a point he made at least two more times in the conversation), he had to let him go because he misled the Vice President, whom he described as “a good guy.” He explained that he just couldn’t have Flynn misleading the vice President and, in any event, he had other concerns about Flynn, and had a great guy coming in, so he had to let Flynn go.

[a discussion of Sean Spicer’s presser explaining the firing and another about the leaks of his calls to Mexican and Australian leaders]

He then referred at length to the leaks relating to Mike Flynn’s call with the Russians, which he stressed was not wrong in any way (“he made lots of calls”), but that the leaks were terrible.

[Comey’s agreement with Trump about the problem with leaks, but also his explanation that the leaks may not have been FBI; Reince Priebus tries to interrupt but Trump sends him away for a minute or two]

He then returned to the topic of Mike Flynn, saying that Flynn is a good guy, and has been through a lot. He misled the Vice President but he didn’t do anything wrong on the call. He said, “I hope you can see your way clear to letting this go, to letting Flynn go. He is a good guy. I hope you can let this go.” I replied by saying, “I agree he is a good guy,” but said no more.

In addition to providing Trump an opportunity to rebut Comey, asking this question might aim to understand the real reason Trump fired Flynn.

March 2, 2017: What did you think and do regarding the recusal of Mr. Sessions?  What efforts did you make to try to get him to change his mind? Did you discuss whether Mr. Sessions would protect you, and reference past attorneys general?

On March 2, citing consultations with senior department officials, Sessions recused himself “from any existing or future investigations of any matters related in any way to the campaigns for President of the United States,” while noting that, “This announcement should not be interpreted as confirmation of the existence of any investigation or suggestive of the scope of any such investigation.” At that point, Dana Boente became Acting Attorney General for the investigation.

Note that this question isn’t just about Trump’s response to Sessions’ recusal — it’s also about what he did in advance of it. That’s likely because even before Sessions recused, Trump got Don McGahn to try to pressure the Attorney General not to do so. He also called Comey the night before and “talked about Sessions a bit.” When Sessions ultimately did recuse, Trump had a blow-up in which he expressed a belief that Attorneys General should protect their president.

[T]he president erupted in anger in front of numerous White House officials, saying he needed his attorney general to protect him. Mr. Trump said he had expected his top law enforcement official to safeguard him the way he believed Robert F. Kennedy, as attorney general, had done for his brother John F. Kennedy and Eric H. Holder Jr. had for Barack Obama.

Mr. Trump then asked, “Where’s my Roy Cohn?”

In the days after the Sessions recusal, Trump also kicked off the year-long panic about being wiretapped.

On Thursday, Jeff Sessions recused from the election-related parts of this investigation. In response, Trump went on a rant (inside the White House) reported to be as angry as any since he became President. The next morning, Trump responded to a Breitbart article alleging a coup by making accusations that suggest any wiretaps involved in this investigation would be improper. Having reframed wiretaps that would be targeted at Russian spies as illegitimate, Trump then invited Nunes to explore any surveillance of campaign officials, even that not directly tied to Trump himself.

And Nunes obliged.

Don McGahn and Jeff Sessions, among others, have already provided their side of this story to Mueller’s team.

March 2 to March 20, 2017: What did you know about the F.B.I.’s investigation into Mr. Flynn and Russia in the days leading up to Mr. Comey’s testimony on March 20, 2017?

As Sekulow has recorded Mueller’s question, the special counsel wants to know what Trump already knew of the investigation into Mike Flynn before Comey publicly confirmed it in Congressional testimony. This may be a baseline question, to measure how much of Trump’s response was a reaction to the investigation becoming public.

But there are other things that went down in the weeks leading up to Comey’s testimony. Devin Nunes had already made considerable efforts to undermine the investigation; he would have been briefed on the investigation on March 2 (see footnote 75), the same day as Sessions recused.Trump went into a panic on March 4, just days after Sessions recusal, about being wiretapped; I’m wondering if there’s any evidence that Trump or Steven Bannon seeded the Breitbart story that kicked off the claim of a coup against Trump. Also of note is Don McGahn’s delay in conveying the records retention request about the investigation to the White House, even as Sean Spicer conducted a device search to learn who was using encrypted messengers.

March 20, 2017: What did you do in reaction to the March 20 testimony? Describe your contacts with intelligence officials.

On March 20, in testimony to the House Intelligence Committee, Comey publicly confirmed the counterintelligence investigation into Trump’s campaign.

I have been authorized by the Department of Justice to confirm that the FBI, as part of our counterintelligence mission, is investigating the Russian government’s efforts to interfere in the 2016 presidential election and that includes investigating the nature of any links between individuals associated with the Trump campaign and the Russian government and whether there was any coordination between the campaign and Russia’s efforts. As with any counterintelligence investigation, this will also include an assessment of whether any crimes were committed.

In addition to questions about the investigation (including the revelation that FBI had not briefed the Gang of Eight on it until recently; we now know the briefing took place the day Jeff Sessions recused which suggests FBI avoided letting both Flynn and Sessions know details of it), Republicans used the hearing to delegitimize unmasking and the IC conclusion that Putin had affirmatively supported Trump.

Sekulow’s questions (or NYT’s rendition of them) lump the hearing, at which Admiral Mike Rogers also testified, in with Trump’s pressure on his spooks to issue a statement that he wasn’t under investigation. Two days after the hearing, Trump pressured Mike Pompeo and Dan Coats to intervene with Comey to stop the investigation.

It’s possible that the term “intelligence officials” includes HPSCI Chair Devin Nunes. On March 21, Nunes made his nighttime trip to the White House to accelerate the unmasking panic. Significantly, the panic didn’t just pertain to Flynn’s conversations with Sergey Kislyak; it also focused on the revelation of Mohammed bin Zayed al Nahyan’s secret trip to New York and probably other conversations with the Middle Eastern partners that have become part of this scandal.

The day after Nunes’ nighttime trip, Trump called Coats and Rogers (and probably Pompeo) and asked them to publicly deny any evidence of a conspiracy between Trump’s campaign and Russia; NSA documented the call to Rogers.

It’s now clear that the calls Nunes complained about being unmasked actually are evidence of a conspiracy (and as such, they probably provided an easy roadmap for Mueller to find the non-Russian conversations).

March 30, 2017: What was the purpose of your call to Mr. Comey on March 30?

On March 30, Trump called Comey on official phone lines and asked him to exonerate him on the Russia investigation. According to Comey, the conversation included the following:

He then said he was trying to run the country and the cloud of this Russia business was making that difficult. He said he thinks he would have won the health care vote but for the cloud. He then went on at great length, explaining that he has nothing to do with Russia (has a letter from the largest law firm in DC saying he has gotten no income from Russia). was not involved with hookers in Russia (can you imagine me, hookers? I have a beautiful wife, and it has been very painful). is bringing a personal lawsuit against Christopher Steele, always advised people to assume they were being recorded in Russia. has accounts now from those who travelled with him to Miss Universe pageant that he didn’t do anything, etc.

He asked what he could do to lift the cloud. I explained that we were running it down as quickly as possible and that there would be great benefit, if we didn’t find anything, to our Good Housekeeping seal of approval, but we had to do our work. He agreed, but then returned to the problems this was causing him, went on at great length about how bad he was for Russia because of his commitment to more oil and more nukes (ours are 40 years old).

He said something about the hearing last week. I responded by telling him I wasn’t there as a volunteer and he asked who was driving that, was it Nunes who wanted it? I said all the leadership wanted to know what was going on and mentioned that Grassley had even held up the DAG nominee to demand information. I said we had briefed the leadership on exactly what we were doing and who we were investigating.

I reminded him that I had told him we weren’t investigating him and that I had told the Congressional leadership the same thing. He said it would be great if that could get out and several times asked me to find a way to get that out.

He talked about the guy he read about in the Washington Post today (NOTE: I think he meant Sergei Millian) and said he didn’t know him at all. He said that if there was “some satellite” (NOTE: I took this to mean some associate of his or his campaign) that did something, it would be good to find that out, but that he hadn’t done anything and hoped I would find a way to get out that we weren’t investigating him.

Trump also raised “McCabe thing,” yet another apparent attempt to tie the retention of McCabe to public exoneration from Comey.

Given the news that Sergei Millian had been pitching George Papadopoulos on a Trump Tower deal in the post-election period, I wonder whether Trump’s invocation of him in conjunction with “some satellite” is a reference to Papadopoulos, who had already been interviewed twice by this time. Nunes would have learned of his inclusion in the investigation in the March 2 CI briefing.

On top of the clear evidence that this call represented a (well-documented, including a contemporaneous call to Dana Boente) effort to quash the investigation and get public exoneration, the conversation as presented by Comey also includes several bogus statements designed to exonerate him. For example, Millian had actually worked with Trump in past years selling condos to rich Russians. Trump never did sue Steele (Michael Cohen sued BuzzFeed and Fusion early this year, but he dropped it in the wake of the FBI raid on him). And the March 8 letter from Morgan Lewis certifying he didn’t get income from Russia is unrelated to whether he has been utterly reliant on investment from Russia (to say nothing of the huge sums raised from Russian oligarchs for his inauguration). In other words, like the earlier false claim that Trump hadn’t stayed overnight in Moscow during the Miss Universe pageant and therefore couldn’t have been compromised, even at this point, Trump’s attempts to persuade the FBI he was innocent were based off false claims.

March 30, 2017: Flynn asks for immunity

Mike Flynn first asked Congress for immunity on March 30, 2017, with Trump backing the effort in a tweet.

A later question deals with this topic — and suggests Trump may have contacted Flynn directly about immunity at this time, but that contact is not public, if it occurred.

April 11, 2017: What was the purpose of your call to Mr. Comey on April 11, 2017?

At 8:26AM on April 11, Comey returned a call to Trump. Trump asked again for Comey to lift the cloud on him.

He said he was following up to see if I did what he had asked last time–getting out that he personally is not under investigation. I relied that I had passed the request to the Acting AG and had not heard back from him. He spoke for a bit about why it was so important. He is trying to do work for the country, visit with foreign leaders, and any cloud, even a little cloud gets in the way of that. They keep bringing up the Russia thing as an excuse for losing the election.

[snip]

He then added, “Because I have been very loyal to you, very loyal, we had that thing, you know.”

[snip]

He then said that I was doing a great job and wished me well.

April 11, 2017: What was the purpose of your April 11, 2017, statement to Maria Bartiromo?

On April 12, Fox Business News broadcast an interview with Maria Bartiromo (Mueller must know it was recorded on April 11, so presumably after the call with Comey). There are three key aspects of the interview. First, in the context of Trump’s failures to staff his agencies, Bartiromo asks why Comey is still around [note, I bet in Hope Hicks’ several days of interviews, they asked her if these questions were planted]. Given public reports, Trump may have already been thinking about firing Comey, though Steve Bannon, Reince Priebus, and Don McGahn staved off the firing for weeks.

TRUMP:  I wish it would be explained better, the obstructionist nature, though, because a lot of times I’ll say why doesn’t so and so have people under him or her?

The reason is because we can’t get them approved.

BARTIROMO:  Well, people are still wondering, though, they’re scratching their heads, right, so many Obama-era staffers are still here.

For example, was it a mistake not to ask Jim Comey to step down from the FBI at the outset of your presidency?

Is it too late now to ask him to step down?

TRUMP:  No, it’s not too late, but, you know, I have confidence in him.  We’ll see what happens.  You know, it’s going to be interesting.

On the same day he had asked Comey to publicly state he wasn’t being interviewed, Trump said he still had confidence in Comey, even while suggesting a lot of other people were angling for the job (something he had also said in an earlier exchange with Comey).  Trump immediately pivoted to claiming Comey had kept Hillary from being charged.

TRUMP: But, you know, we have to just — look, I have so many people that want to come into this administration.  They’re so excited about this administration and what’s happening — bankers, law enforcement — everybody wants to come into this administration.  Don’t forget, when Jim Comey came out, he saved Hillary Clinton.  People don’t realize that.  He saved her life, because — I call it Comey [one].  And I joke about it a little bit.

When he was reading those charges, she was guilty on every charge.  And then he said, she was essentially OK.  But he — she wasn’t OK, because she was guilty on every charge.

And then you had two and then you had three.

But Hillary Clinton won — or Comey won.  She was guilty on every charge.

BARTIROMO:  Yes.

TRUMP:  So Director Comey…

BARTIROMO:  Well, that’s (INAUDIBLE)…

TRUMP:  No, I’m just saying…

BARTIROMO:  (INAUDIBLE)?

TRUMP:  Well, because I want to give everybody a good, fair chance.  Director Comey was very, very good to Hillary Clinton, that I can tell you.  If he weren’t, she would be, right now, going to trial.

From there, Bartiromo asks Trump why President Obama had changed the rules on sharing EO 12333 data. Trump suggests it is so his administration could be spied on, using the Susan Rice unmasking pseudo scandal as shorthand for spying on his team.

BARTIROMO:  Mr. President, just a final question for you.

In the last weeks of the Obama presidency, he changed all the rules in terms of the intelligence agencies, allowing them to share raw data.

TRUMP:  Terrible.

BARTIROMO:  Why do you think he did this?

TRUMP:  Well, I’m going to let you figure that one out.  But it’s so obvious.  When you look at Susan Rice and what’s going on, and so many people are coming up to me and apologizing now.  They’re saying you know, you were right when you said that.

Perhaps I didn’t know how right I was, because nobody knew the extent of it.

Undoubtedly, Mueller wants to know whether these comments relate to his comments to Comey (and, as I suggested, Hope Hicks may have helped elucidate that). The invocation of Hillary sets up one rationale for firing Comey, but one that contradicts with the official reason.

But the conversation also reflects Trump’s consistent panic that his actions (and those of his aides) will be captured by wiretaps.

May 3, 2017: What did you think and do about Mr. Comey’s May 3, 2017, testimony?

On May 3, Comey testified to the Senate Judiciary Committee. It covered leaks (including whether he had ever authorized any, a question implicated in the Andrew McCabe firing), and the hacked email raising questions about whether Lynch could investigate Hillary. Comey described his actions in the Hillary investigation at length. This testimony would be cited by Rod Rosenstein in his letter supporting the firing of Comey. In addition, there were a number of questions about the Russia investigation, including questions focused on Trump, that would have driven Trump nuts.

Along with getting a reaction to the differences between what Comey said in testimony and Trump’s own version (which by this point he had shared several times), Mueller likely wants to know what Trump thinks of Comey’s claim that FBI treated the Russian investigation just like the Hillary one.

With respect to the Russian investigation, we treated it like we did with the Clinton investigation. We didn’t say a word about it until months into it and then the only thing we’ve confirmed so far about this is the same thing with the Clinton investigation. That we are investigating. And I would expect, we’re not going to say another peep about it until we’re done. And I don’t know what will be said when we’re done, but that’s the way we handled the Clinton investigation as well.

In a series of questions that were likely developed in conjunction with Trump, Lindsey Graham asked whether Comey stood by his earlier claim that there was an active investigation.

GRAHAM: Did you ever talk to Sally Yates about her concerns about General Flynn being compromised?

COMEY: I did, I don’t whether I can talk about it in this forum. But the answer is yes.

GRAHAM: That she had concerns about General Flynn and she expressed those concerns to you?

COMEY: Correct.

GRAHAM: We’ll talk about that later. Do you stand by your house testimony of March 20 that there was no surveillance of the Trump campaign that you’re aware of?

COMEY: Correct.

GRAHAM: You would know about it if they were, is that correct?

COMEY: I think so, yes.

GRAHAM: OK, Carter Page; was there a FISA warrant issued regarding Carter Page’s activity with the Russians.

COMEY: I can’t answer that here.

GRAHAM: Did you consider Carter page a agent of the campaign?

COMEY: Same answer, I can’t answer that here.

GRAHAM: OK. Do you stand by your testimony that there is an active investigation counterintelligence investigation regarding Trump campaign individuals in the Russian government as to whether not to collaborate? You said that in March…

COMEY: To see if there was any coordination between the Russian effort and peoples…

GRAHAM: Is that still going on?

COMEY: Yes.

GRAHAM: OK. So nothing’s changed. You stand by those two statements?

Curiously (not least because of certain investigative dates), Sheldon Whitehouse asked some pointed questions about whether Comey could reveal if an investigation was being starved by inaction.

WHITEHOUSE: Let’s say you’ve got a hypothetically, a RICO investigation and it has to go through procedures within the department necessary to allow a RICO investigation proceed if none of those have ever been invoked or implicated that would send a signal that maybe not much effort has been dedicated to it.

Would that be a legitimate question to ask? Have these — again, you’d have to know that it was a RICO investigation. But assuming that we knew that that was the case with those staging elements as an investigation moves forward and the internal department approvals be appropriate for us to ask about and you to answer about?

COMEY: Yes, that’s a harder question. I’m not sure it would be appropriate to answer it because it would give away what we were looking at potentially.

WHITEHOUSE: Would it be appropriate to ask if — whether any — any witnesses have been interviewed or whether any documents have been obtained pursuant to the investigation?

Richard Blumenthal asked Comey whether he could rule Trump in or out as a target of the investigation and specifically within that context, suggested appointing a special counsel (Patrick Leahy had already made the suggestion for a special counsel).

BLUMENTHAL: Have you — have you ruled out the president of the United States?

COMEY: I don’t — I don’t want people to over interpret this answer, I’m not going to comment on anyone in particular, because that puts me down a slope of — because if I say no to that then I have to answer succeeding questions. So what we’ve done is brief the chair and ranking on who the U.S. persons are that we’ve opened investigations on. And that’s — that’s as far as we’re going to go, at this point.

BLUMENTHAL: But as a former prosecutor, you know that when there’s an investigation into several potentially culpable individuals, the evidence from those individuals and the investigation can lead to others, correct?

COMEY: Correct. We’re always open-minded about — and we follow the evidence wherever it takes us.

BLUMENTHAL: So potentially, the president of the United States could be a target of your ongoing investigation into the Trump campaign’s involvement with Russian interference in our election, correct?

COMEY: I just worry — I don’t want to answer that — that — that seems to be unfair speculation. We will follow the evidence, we’ll try and find as much as we can and we’ll follow the evidence wherever it leads.

BLUMENTHAL: Wouldn’t this situation be ideal for the appointment of a special prosecutor, an independent counsel, in light of the fact that the attorney general has recused himself and, so far as your answers indicate today, no one has been ruled out publicly in your ongoing investigation. I understand the reasons that you want to avoid ruling out anyone publicly. But for exactly that reason, because of the appearance of a potential conflict of interest, isn’t this situation absolutely crying out for a special prosecutor?

Chuck Grassley asked Comey the first questions about what would become the year-long focus on Christopher Steele’s involvement in the FISA application on Carter Page.

GRASSLEY: On — on March 6, I wrote to you asking about the FBI’s relationship with the author of the trip — Trump-Russia dossier Christopher Steele. Most of these questions have not been answered, so I’m going to ask them now. Prior to the bureau launching the investigation of alleged ties between the Trump campaign and Russia, did anyone from the FBI have interactions with Mr. Steele regarding the issue?

COMEY: That’s not a question that I can answer in this forum. As you know, I — I briefed you privately on this and if there’s more that’s necessary then I’d be happy to do it privately.

GRASSLEY: Have you ever represented to a judge that the FBI had interaction with Mr. Steele whether by name or not regarding alleged ties between the Trump campaign and Russia prior to the Bureau launching its investigation of the matter?

COMEY: I have to give you the same answer Mr. Chairman.

In a second round, Whitehouse asked about a Trump tweet suggesting Comey had given Hillary a free pass.

WHITEHOUSE: Thank you.

A couple of quick matters, for starters. Did you give Hillary Clinton quote, “a free pass for many bad deeds?” There was a tweet to that effect from the president.

COMEY: Oh, no, not — that was not my intention, certainly.

WHITEHOUSE: Well, did you give her a free pass for many bad deeds, whatever your intention may have been?

COMEY: We conducted a competent, honest and independent investigation, closed it while offering transparency to the American people. I believed what I said, there was not a prosecutable case, there.

Al Franken asked Comey whether the investigation might access Trump’s tax returns.

FRANKEN: I just want to clarify something — some of the answers that you gave me for example in response to director — I asked you would President Trump’s tax returns be material to the — such an investigation — the Russian investigation and does the investigation have access to President Trump’s tax returns and some other questions you answered I can’t say. And I’d like to get a clarification on that. Is it that you cant say or that you can’t say in this setting?

COMEY: That I won’t answer questions about the contours of the investigation. As I sit here I don’t know whether I would do it in a closed setting either. But for sure — I don’t want to begin answering questions about what we’re looking at and how.

Update: Contemporaneous reporting makes it clear that Trump was particularly irked by Comey’s admission that “It makes me mildly nauseous to think that we might have had some impact on the election,” as that diminished Trump’s win. (h/t TC)

May 9, 2017: Regarding the decision to fire Mr. Comey: When was it made? Why? Who played a role?

The May 3 hearing is reportedly the precipitating event for Trump heading to Bedminster with Ivanka, Jared, and Stephen Miller on May 4 and deciding to fire Comey. Trump had Miller draft a letter explaining the firing, which Don McGahn would significantly edit when he saw it on May 8. McGahn also got Sessions and Rosenstein, who were peeved about different aspects of the hearing (those focused on Comey’s actions with regards to Hillary), to write letters supporting Comey’s firing.

Given that Mueller has the original draft of the firing letter and testimony from McGahn, Rosenstein, and Sessions, this question will largely allow Trump to refute evidence Mueller has already confirmed.

RESOURCES

These are some of the most useful resources in mapping these events.

Mueller questions as imagined by Jay Sekulow

CNN’s timeline of investigative events

Majority HPSCI Report

Minority HPSCI Report

Trump Twitter Archive

Jim Comey March 20, 2017 HPSCI testimony

Comey May 3, 2017 SJC testimony

Jim Comey June 8, 2017 SSCI testimony

Jim Comey written statement, June 8, 2017

Jim Comey memos

Sally Yates and James Clapper Senate Judiciary Committee testimony, May 8, 2017

NPR Timeline on Trump’s ties to Aras Agalarov

George Papadopoulos complaint

George Papadopoulos statement of the offense

Mike Flynn statement of the offense

Internet Research Agency indictment

Text of the Don Jr Trump Tower Meeting emails

Jared Kushner’s statement to Congress

Erik Prince HPSCI transcript

THE SERIES

Part One: The Mueller Questions Map Out Cultivation, a Quid Pro Quo, and a Cover-Up

Part Two: The Quid Pro Quo: a Putin Meeting and Election Assistance, in Exchange for Sanctions Relief

Part Three: The Quo: Policy and Real Estate Payoffs to Russia

Part Four: The Quest: Trump Learns of the Investigation

Part Five: Attempting a Cover-Up by Firing Comey

Part Six: Trump Exacerbates His Woes

On the TS Ellis Show and the Lies about Lying

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The last words in the transcript of the hearing held Friday in Paul Manafort’s Eastern District of Virginia bank fraud and tax crime case go like this:

THE COURT: Mr. Asonye, I’m glad to see you here.

MR. ASONYE: I’m glad to see you as well, Your Honor.

Uzo Asonye is an Assistant US Attorney in EDVA who has prosecuted fraud cases before TS Ellis. Mueller’s team added Asonye to the EDVA case at the suggestion of Ellis. Ellis returned to his pleasure that Mueller had heeded his suggestion several other times over the course of the hearing, starting from his first comment after Michael Dreeben introduced himself.

THE COURT: Okay. And, Mr. Asonye, I’m glad to see you here. I indicated that the special counsel should have local counsel, and that’s you.

[snip]

MR. DREEBEN: The second point here is that we are within the Department of Justice. To the extent that Mr. Manafort is suggesting that we’re analogous to the independent counsels that operated under the old statute, that’s not right. Our indictment was reviewed and approved by the Tax Division, by the National Security Division. We operate within a framework of the Department of Justice. We’re not different from the U.S. Attorney’s Office in that respect. We’re all part of the same Department of Justice.

THE COURT: You resisted my suggestion to have someone here, and Mr. Asonye showed up. When did you ask Mr. Asonye to join you?

[snip]

MR. DREEBEN: Thank you, Your Honor. We took your admonition to heart, and we are very happy to have Mr. Asonye join us.

THE COURT: Good. I think that’s important for communications as well. Plus, you never know. If you have to try this case, you will have to try it before me. Mr. Asonye has some experience here. Is that right, Mr. Asonye?

MR. ASONYE: Yes, Your Honor.

THE COURT: And before me as well.

MR. ASONYE: Yes, Your Honor.

THE COURT: So he can tell you some interesting things.

[snip]

THE COURT: Of course, the difference is that if you did assign it to the Eastern District of Virginia, it wouldn’t come, Mr. Asonye, with a $10 million budget; would it?

You wouldn’t know that though, because most of the reports from the hearing have focused on exchanges like this, from Fox News:

Mueller’s team says its authorities are laid out in documents including the August 2017 scope memo – and that some powers are actually secret because they involve ongoing investigations and national security matters that cannot be publicly disclosed.

Ellis seemed amused and not persuaded.

He summed up the argument of the Special Counsel’s Office as, “We said this was what [the] investigation was about, but we are not bound by it and we were lying.”

He referenced the common exclamation from NFL announcers, saying: “C’mon man!” [my emphasis]

To be sure, Ellis was undeniably confrontational with Dreeben, in this and several other exchanges. But the Fox line, which it picked up from early reports, tells a distorted view of the hearing (even ignoring Ellis’ well known schtick of being confrontational in the court room).

First, the Fox representation is factually inaccurate in two ways. Here’s the transcript of the exchange Fox claims to have quoted directly.

DREEBEN: So it is not really appropriate to assume that the (b)(i) description is the factual statement that the regulations contemplate.

THE COURT: Well, I understand your argument, but let me characterize it and see if you find it as satisfying as you appear to indicate that you think it is: We said this is what the investigation was about. But we’re not going to be bound by it, and we weren’t really telling the truth in that May 17 letter.

I don’t watch pro football, but I used to enjoy the program that came beforehand where a bunch of players would get on and essentially make fun of everybody. But they would put on some ridiculous thing, and then they would all say in a chorus, Come on, man. [my emphasis]

Ellis was referring, explicitly, to the May 17 letter appointing Robert Mueller as special counsel and not, as Fox suggests, the August 2 Rosenstein memo that lays out what the Deputy Attorney General had included in Mueller’s scope by that point in time. The distinction is significant for the matter before the court, a two-part argument Manafort made that 1) the initial Mueller appointment was limited to Russia’s tampering and obstruction thereof, but the permission in the appointment to investigate anything “arising out of” that Russia investigation — which this prosecution had to be — was improper, and 2) that the August memorialization of Mueller’s authority incorporating the Ukrainian money laundering did not authorize this indictment because Mueller had improperly claimed the pre-existing investigation arose out of, rather than was subsumed into, the Russia investigation.

In a dispute in which the first issue is the memo appointing Mueller, Ellis is accusing Rosenstein of not incorporating everything he appointed Mueller to do in his May 17 statement, which Dreeben explained was done to hide the scope of the counterintelligence concerns from targets. That’s a claim backed by the government’s brief and the public Rosenstein testimony it cites.

Recognizing the need for confidentiality about the investigation, id. at 30, the Acting Attorney General “discussed that with [the Special Counsel] when he started” and has continued to have “ongoing discussion about exactly what is within the scope of his investigation,”

[snip]

The regulations do not provide that the factual statement must be made public.

The government brief argues that, because of his role in the campaign and his ongoing ties to Russians — including Oleg Deripaska, by name — the Manafort investigation falls under the original grant of authority. They make the “arises out of” argument only secondarily.

[E]ven assuming that paragraph (b)(i) does not cover all of the conduct charged in the Indictment—and, in the government’s view, it does—the conduct would fall within the scope of a matter that “arose or may arise directly from the investigation.”

Ellis’ concern that Rosenstein didn’t lay everything out in that first memo or might be hiding an ulterior motive of flipping Manafort go to two concerns that Dreeben (and Asonye’s presence) addressed head on. First, Ellis was concerned the Mueller team might be asserting it had unlimited power.

What we don’t want in this country is we don’t want anyone with unfettered power. We don’t want federal judges with unfettered power. We don’t want elected officials with unfettered power. We don’t want anybody, including the president of the United States, nobody to have unfettered power. So it’s unlikely you’re going to persuade me that the special prosecutor has unlimited powers to do anything he or she wants.

Though (again, given his reputation for beating up the side he plans to decide with) this line might be better understood as Ellis wanting to demonstrate a concern with the possibility that Mueller might think he has unfettered power.

Note, he includes the president in there.

Ellis also misstated, right as the discussion started, that the special counsel was not the government.

Let me ask the government — or not the government — the special counsel a few questions, Mr. Dreeben.

In correcting Ellis’ suggestion Mueller was not representing the government, Dreeben clarified that the Special Counsel was not operating under the Independent Counsel law that Ellis had elsewhere raised and seemed to be thinking of when suggesting they didn’t represent the government.

This is not the Independent Counsel Act that Your Honor was referring to in the conference that you spoke of. This is not a separate court-appointed prosecutor who’s operating under statutory independence. We are within the Department of Justice. We’re being supervised by an acting attorney general who has conferred upon us specific jurisdiction and who regularly is in a position to describe to us the metes and bounds of that.

To further establish this point the government notes — in both their brief and the hearing — that the Mueller team worked closely with the rest of DOJ in bringing the charges.

As explained above, every key step in this case has been authorized by the Acting Attorney General through ongoing consultation. Additionally, under the applicable rules, the Tax Division approved the tax-related charges. See 28 C.F.R. § 600.7(a) (Special Counsel must comply with DOJ rules, regulations, procedures, and policies); USAM § 6-4.200 (Tax Division must approve all criminal tax charges). And the Senior Assistant Special Counsel in charge of this prosecution is a long-time, career prosecutor with the internal authority to conduct this prosecution, separate and aside from his role in the Special Counsel’s Office.

While Ellis certainly made a public show of scolding the Mueller team claims, he did so in a hearing bracketed by his observation that Mueller had already done something — bring in Asonye — to assuage Ellis’ concerns about operating outside of normal DOJ procedure.

And while I hesitate to predict how Ellis will rule, I find the bracketing of the entire hearing with a focus on Asonye significant for two reasons. First, Ellis’ proposed remedy, if Mueller’s investigation were invalid, was to have EDVA prosecute the case (to which Downing suggested that that would make the search of his storage facility and home invalid, which for better and mostly worse is not how fourth amendment rulings work).

THE COURT: Let’s assume for a moment your argument that this delegation is in some way illegal. Why isn’t the right result simply to give to the Eastern District of Virginia’s U.S. Attorney’s Office — give it back to them and let them prosecute this indictment? Why isn’t that the right result?

MR. DOWNING: Well, the right result may be for the Department of Justice to finish the investigation they had started and make a determination as to whether or not to charge Mr. Manafort. But if, in fact, this order is defective, then Mr. Mueller did not have the authority of the U.S. Attorney to conduct a grand jury investigation, to get search warrants, or to return and sign an indictment.

THE COURT: All right. I think I understand.

Additionally, although many Manafort partisans view Ellis’ order that Mueller’s team give him an unredacted copy of the August 2 Rosenstein memo laying out everything that could be investigated as of that date as victory for Manafort, that actually falls far short of what Downing wanted, which was to have any other documentation showing the discussion behind appointing Mueller and approving subsequent steps thereafter.

MR. DOWNING: Just briefly, Your Honor. The one thing we would ask this Court to do before deciding the motion before the Court is to ask the government for what anybody who has had any experience with the Department of Justice knows exists, which is the written record. Where is the written record before Mr. Mueller was appointed? Where is the written record about the decision —

THE COURT: What do you mean by the written record?

MR. DOWNING: Mr. Rosenstein had a process he had to go through in order to determine that there was a conflict that gave rise to the appointment of special counsel, the specific matter that the special counsel was going to investigate in any additional jurisdiction he granted. It would all be written down somewhere. That’s how the Department of Justice works.

[snip]

THE COURT: All right. Is that what you’re — the record of identifying the conflict?

MR. DOWNING: I believe identification of the conflict, the matter that needed to be referred to a special counsel in order to — because of the conflict and the scope of the special counsel’s investigation, including any additional jurisdiction.

THE COURT: The May and August letters are the scope.

MR. DOWNING: That’s after the fact. You would expect that the Department of Justice, especially Mr. Rosenstein, would have had a memo before.

THE COURT: Why do you say that?

MR. DOWNING: Because in the Department of Justice generally, just in any situation —

THE COURT: Did you serve in the department?

MR. DOWNING: Fifteen years, five of which was under Mr. Rosenstein’s management. Mr. Rosenstein is a stickler for memos being written, for there to be a written record for the actions of the Department of Justice

In Rosenstein’s testimony and the government’s brief, they actually identify what the latter documents are: Urgent Reports documenting each major step, surely including the two searches on Manafort’s property.

The Special Counsel has an explicit notification obligation to the Attorney General: he “shall notify the Attorney General of events in the course of his or her investigation in conformity with the Departmental guidelines with respect to Urgent Reports.” 28 C.F.R. § 600.8(b). Those reports cover “[m]ajor developments in significant investigations and litigation,” which may include commencing an investigation; filing criminal charges; executing a search warrant; interviewing an important witness; and arresting a defendant.

So Downing specifically asked for (though not by name) the documentation that would have shown the back and forth discussions between Mueller and Rosenstein (and would have reflected Mueller’s compliance with the Urgent Reports requirement.

And Ellis didn’t grant that request. He asked only for the August 2 memo, not the Urgent Reports. That’s unsurprising — asking for the latter would have been a fairly breathtaking incursion on prosecutorial discretion.

But that suggests, at least thus far, Ellis is treating what he’s seeing as proper exercise of prosecutorial discretion.

The Quest: Trump Learns of the Investigation (Part Four)

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In this series, I’m analyzing the Mueller questions as understood by Jay Sekulow and leaked to the NYT to show how they set up a more damning investigative framework than commentary has reflected.

This post laid out how the Agalarovs had been cultivating Trump for years, in part by dangling real estate deals and close ties with Vladimir Putin. This post shows how during the election, the Russians and Trump danced towards a quid pro quo agreement, with the Russians offering dirt on Hillary Clinton in exchange for a commitment to sanctions relief, with some policy considerations thrown in. This post laid out how, during the transition period, Trump’s team took a series of actions they attempted to keep secret that moved towards consummating the deal they had made with Russia, both in terms of policy concessions, particularly sanctions relief, and funding from Russian sources that could only be tapped if sanctions were lifted.

This post will look at Mueller’s reported investigative interest in Trump’s reaction to discovering the “Deep State” was investigating the election year operation, including the actions his team had tried to keep secret. Note, I have put all of the events leading up to Flynn’s firing here (not least because I think the firing itself often gets treated improperly as obstruction), though just some of the Jim Comey events. I will repeat the timeline of events in the next post, which overlaps temporally, for clarity.

January 6, 2017: What was your opinion of Mr. Comey during the transition?

This is a baseline question for Trump’s firing of Jim Comey. At a minimum, Trump would need to explain his decision to keep Comey. It also provides Trump an opportunity to rebut Comey’s claim that, in the January 6 meeting, Trump told Comey he:

had conducted myself honorably and had a great reputation. He said I was repeatedly put in impossible positions. He said you saved her and then they hated you for what you did later, but what coice did you have? He said he thought very highly of me and looked forward to working with me, saying he hoped I planned to stay on. I assured him I intended to stay. He said good.

January 6, 2017: What did you think about Mr. Comey’s intelligence briefing on Jan. 6, 2017, about Russian election interference?

One key detail Comey (and the other representatives of the intelligence community) would have detailed for Trump that day is not just that Russia interfered in the election, but their basis for concluding that “We also assess Putin and the Russian Government aspired to help President-elect Trump’s election chances,” a conclusion Republicans have objected to repeatedly.

In his book, but not his memos, Comey describes that immediately after the briefing, Trump first asked for assurances Russian interference hadn’t affected the outcome and then, with his team, started strategizing how to spin the conclusions so as to dismiss any outcome on the election.

‘I recall Trump listening without interrupting, and asking only one question, which was really more of a statement: “But you found there was no impact on the result, right?” The intelligence team said they had done no such analysis.

‘What I found telling was what Trump and his team didn’t ask. They were about to lead a country that had been attacked by a foreign adversary, yet they had no questions about what the future Russian threat might be.’

Instead, Trump and his team immediately started discussing how they would “spin” the information on Russia as if the intelligence officers were not in the room. ‘They were keen to emphasize that there was no impact on the vote, meaning that the Russians hadn’t elected Trump.’

This reflects the same concern expressed in the KT McFarland email from just days earlier (which probably reflected detailed Trump involvement) that acknowledging Russian involvement would “discredit[] Trump’s victory by saying it was due to Russian interference.”

January 6, 2017: What was your reaction to Mr. Comey’s briefing that day about other intelligence matters?

In its analysis of the questions, NYT takes this question to be exclusively about Comey’s briefing on the Steele dossier, and it may be. But in Obama’s January 5 briefing covering the same issues, according to Susan Rice, Comey and others discussed concerns about sharing classified information with the Trump team, especially Mike Flynn.

The memorandum to file drafted by Ambassador Rice memorialized an important national security discussion between President Obama and the FBI Director and the Deputy Attorney General. President Obama and his national security team were justifiably concerned about potential risks to the Nation’s security from sharing highly classified information about Russia with certain members of the Trump transition team, particularly Lt. Gen. Michael Flynn.

Even though concerns about Flynn came up in that Obama briefing, the FBI counterintelligence investigation did not. It’s possible that this passage from Comey’s memo, which describes the main part of the briefing and not that part dedicated to the Steele dossier, pertained to the counterintelligence concerns about Flynn,which Obama had already shared with Trump the previous fall; such a warning may or may not have included Flynn’s conversations with Sergey Kislyak.

If Comey briefed anything to do with Flynn, it would significantly change the importance of subsequent events.

As for the Steele dossier conversation, which surely is included with this question, Comey has claimed that Trump first tried to convince Comey is wasn’t true that he would need to “go there” to sleeping with prostitutes, “there were never prostitutes,” even though Trump’s reference to “the women who had falsely accused him of grabbing or touching them” actually undermined his defense.

Comey has also claimed that Trump seemed relieved when he said (in the context of the Steele briefing), that the FBI was not investigating him. Importantly, this took place after Comey had said he didn’t want people to claim the information came from the FBI.

I said media like CNN had them and were looking for a news hook. I said it was important that we not give them an excuse to write that the FBI has the material or [redacted] and that we were keeping it very close-hold.

[snip]

I responded that we were not investigating him and the stuff might be totally made up but that it was being said out of Russia and our job was to protect the President from efforts to coerce him. I said we try to understand what the Russians are doing and what they might do. I added that I also wanted him to know this in case it came out in the media.

He said he was grateful for the conversation, said more nice things about me and how he looks forward to working with me and we departed the room.

January 12, 2017: What was your reaction to news reports on Jan. 12, 2017?

On January 12, in the context of a discussion of Trump aiming for better relationships with Putin, David Ignatius reported revealed that Flynn had called Sergey Kislyak “several times,” asking whether but not asserting that it might be an attempt to undercut sanctions.

Trump said Wednesday that his relationship with President Vladimir Putin is “an asset, not a liability.” Fair enough, but until he’s president, Trump needs to let Obama manage U.S.-Russia policy.

Retired Lt. Gen. Michael T. Flynn, Trump’s choice for national security adviser, cultivates close Russian contacts. He has appeared on Russia Today and received a speaking fee from the cable network, which was described in last week’s unclassified intelligence briefing on Russian hacking as “the Kremlin’s principal international propaganda outlet.”

According to a senior U.S. government official, Flynn phoned Russian Ambassador Sergey Kislyak several times on Dec. 29, the day the Obama administration announced the expulsion of 35 Russian officials as well as other measures in retaliation for the hacking. What did Flynn say, and did it undercut the U.S. sanctions? The Logan Act(though never enforced) bars U.S. citizens from correspondence intending to influence a foreign government about “disputes” with the United States. Was its spirit violated? The Trump campaign didn’t immediately respond to a request for comment.

The report neither revealed the FBI had intercepts of the conversation nor confirmed an investigation. But it may have alerted Trump that the actions he was probably a party to weeks earlier might have legal consequences.

January 24: FBI interviews Mike Flynn and he lies about talking about sanctions

January 26 and 27, 2017: What did you know about Sally Yates’s meetings about Mr. Flynn?

According to Sally Yates’ public testimony, she met with Don McGahn to discuss Mike Flynn’s interview with the FBI on January 26, 2017. She framed it by describing that DOJ knew Mike Pence’s January 15 comments about Flynn’s conversations with Kislyak were not correct.

YATES: So I told them again that there were a number of press accounts of statements that had been made by the vice president and other high-ranking White House officials about General Flynn’s conduct that we knew to be untrue. And we told them how we knew that this – how we had this information, how we had acquired it, and how we knew that it was untrue.

And we walked the White House Counsel who also had an associate there with him through General Flynn’s underlying conduct, the contents of which I obviously cannot go through with you today because it’s classified. But we took him through in a fair amount of detail of the underlying conduct, what General Flynn had done, and then we walked through the various press accounts and how it had been falsely reported.

We also told the White House Counsel that General Flynn had been interviewed by the FBI on February [sic] 24. Mr. McGahn asked me how he did and I declined to give him an answer to that. And we then walked through with Mr. McGahn essentially why we were telling them about this and the first thing we did was to explain to Mr. McGahn that the underlying conduct that General Flynn had engaged in was problematic in and of itself.

Secondly, we told him we felt like the vice president and others were entitled to know that the information that they were conveying to the American people wasn’t true. And we wanted to make it really clear right out of the gate that we were not accusing Vice President Pence of knowingly providing false information to the American people.

And, in fact, Mr. McGahn responded back to me to let me know that anything that General Flynn would’ve said would have been based — excuse me — anything that Vice President Pence would have said would have been based on what General Flynn had told him.

We told him the third reason was — is because we were concerned that the American people had been misled about the underlying conduct and what General Flynn had done, and additionally, that we weren’t the only ones that knew all of this, that the Russians also knew about what General Flynn had done.

And the Russians also knew that General Flynn had misled the vice president and others, because in the media accounts, it was clear from the vice president and others that they were repeating what General Flynn had told them, and that this was a problem because not only did we believe that the Russians knew this, but that they likely had proof of this information.

And that created a compromise situation, a situation where the national security adviser essentially could be blackmailed by the Russians. Finally, we told them that we were giving them all of this information so that they could take action, the action that they deemed appropriate.

I remember that Mr. McGahn asked me whether or not General Flynn should be fired, and I told him that that really wasn’t our call, that was up to them, but that we were giving them this information so that they could take action, and that was the first meeting.

Then there was a follow-up meeting on January 27. Among the five topics discussed, McGahn asked if Flynn was in legal jeopardy, and if “they” (presumably meaning he and the Associate WHCO in the meeting) could see the underlying intelligence.

WHITEHOUSE: Did you discuss criminal prosecution of Mr. Flynn — General Flynn?

YATES: My recollection is that did not really come up much in the first meeting. It did come up in the second meeting, when Mr. McGahn called me back the next morning and asked the — the morning after — this is the morning of the 27th, now — and asked me if I could come back to his office.

And so I went back with the NSD official, and there were essentially four topics that he wanted to discuss there, and one of those topics was precisely that. He asked about the applicability of certain statutes, certain criminal statutes and, more specifically,

[snip]

And there was a request made by Mr. McGahn, in the second meeting as to whether or not they would be able to look at the underlying evidence that we had that we had described for him of General Flynn’s conduct. And we told him that we were inclined to allow them to look at that underlying evidence, that we wanted to go back to DOJ and be able to make the logistical arrangements for that. This second meeting on the 27th occurred late in the afternoon, this is Friday the 27th. So we told him that we would work with the FBI over the weekend on this issue and get back with him on Monday morning. And I called him first thing Monday morning to let him know that we would allow them to come over and to review the underlying evidence.

By the time the materials for review became available on January 30, Yates had been fired, nominally because she refused to defend Trump’s Muslim ban.

The HPSCI report (particularly content newly unredacted on May 4; see PDF 63 ff) reveals there were several concerns about Flynn’s contradictory comments (which Republicans bizarrely present as conflict). First, there had been a counterintelligence investigation into Flynn still active in December 2016, though FBI may have been moving to shut it down. The interview may have been sparked by Logan Act concerns, or it may have been Flynn’s public comments to Pence (the Republican report ignores that this would pose a blackmail problem). Comey told HPSCI that the agents found Flynn — a lifetime intelligence officer — exhibited no physical signs of deceit, but made it clear the Agents did find his statements plainly conflicted with known facts.

When Mueller asks the President what he knew about the meetings, he likely wants to know (and already has answers from McGahn and likely the Associate) whether they told him about the Flynn interview, if so when, and in how much detail. If they did tell Trump, Mueller may also want to know about whether McGahn’s questions on the 27th (including whether Flynn was in legal jeopardy) reflect Trump’s own questions.

Obviously, one other subtext of this question pertains to whether Yates’ pursuit of Flynn contributed to her firing.

The other critical point about whether and what Trump knew of Yates’ meetings with McGahn: on January 27, he had his first creepy meeting with Jim Comey. Then, on January 28, he had his first phone call with Vladimir Putin, a call Flynn attended.

January 27, 2017: What was the purpose of your Jan. 27, 2017, dinner with Mr. Comey, and what was said?

At lunchtime on January 27 — so after McGahn had called Yates to set up a follow-up meeting and indicated concerns about Flynn’s legal jeopardy, but before that meeting happened — Trump called Comey and set up dinner that day. According to Comey, several minor things that would recur later came up, including questions about Andrew McCabe and Trump’s exposition of the Hillary email investigation.

In addition, five other key things happened at the meeting.

He invited the FBI to investigate “the Golden Showers” thing to prove it was a lie:

At this point, he turned to what he called “the golden showers thing”

[snip]

He said he had spoken to people who had been on the Miss Universe trip with him and they had reminded him that he didn’t stay over night in Russia for that. [this is not true]

[snip]

He said he thought maybe he should ask me to investigate the whole thing to prove it was a lie. I did not ask any questions. I replied that it was up to him, but I wouldn’t want to create a narrative that we were investigating him, because we were not and I worried such a thing would be misconstrued. Ii also said that is very difficult to disprove a lie. He said ‘maybe you’re right,’ but several times asked me to think about it and said he would also think about it.

He asked if the FBI leaks:

He asked whether the FBI leaks and I answered that of course in an organization of 36,000 we were going to have some of that, but I said I think the FBI leaks far less than people often say.

He asked if Comey wanted to keep his job, even though they had discussed it twice before:

He touched on my future at various points. The first time he asked “so what do you want to do,” explaining that lots of people wanted my job (“about 20 people”), that he thought very highly of me, but he would understand if I wanted to walk away given all I had been through, although he thought that would be bad for me personally because it would look like I had done something wrong, that he of course can make a change at FBI if he wants, but he wants to know what I think. There was no acknowledgement by him (or me) that we had already talked about this twice.

I responded by saying that he could fire me any time he wished, but that I wanted to stay and do a job I love to and think I am doing well.

He asked for loyalty:

He replied that he needed loyalty and expected loyalty.

[snip — this comes after the request for an investigation]

He then returned to loyalty, saying “I need loyalty.” I replied that he would always get honesty from me. He paused and said that’s what he wants, “honest loyalty.” I replied, “you will get that from me.”

He claimed to suspect Mike Flynn’s judgment because he had delayed in telling Trump about Putin’s congratulatory phone call:

He then went on to explain that he has serious reservations about Mike Flynn’s judgment and illustrated with a story from that day in which the President apparently discovered during his toast to Teresa May that [Vladimir Putin] had called four days ago. Apparently, as the President was toasting PM May, he was explaining that she had been the first to call him after his inauguration and Flynn interrupted to say that [Putin] had called (first, apparently). It was then that the President learned of [Putin’s] call and he confronted Flynn about it (not clear whether that was in the moment or after the lunch with PM May). Flynn said the return call was scheduled for Saturday, which prompted a heated reply from the President that six days was not an appropriate period of time to return a call from the [President] of a country like [Russia]. (“This isn’t [redacted] we are talking about.”) He said that if he called [redacted] and didn’t get a return call for six days he would be very upset. In telling the story, the President pointed his fingers at his head and said “the guy has serious judgment issues.” I did not comment at any point during this topic and there was no mention or acknowledgement of any FBI interest in or contact with General Flynn.

Trump would be hard pressed to argue the meeting was unrelated to the Yates meeting and the FBI investigation. Which would mean one thing Trump did — in a meeting where he also lied to claim he hadn’t had sex in Moscow — was to disclaim prior knowledge of the Putin meeting the next day (even while emphasizing the import of it).

Of course, the claim he thought Flynn had poor judgment didn’t lead him to keep Flynn out of the phone call with Putin the next day.

January 28: Trump, Pence, Flynn, Priebus, Bannon, and Spicer phone Vladimir Putin

February 9, 2017: What was your reaction to news reports on Feb. 8-9, 2017?

According to Jim Comey, he went for a meet and greet with Reince Priebus on February 8. While he was waiting, Mike Flynn sat down to chat with him though didn’t mention the FBI interview. Then, after clarifying that the conversation with Comey was a “private conversation,” he asked if there was a FISA order on Flynn. Comey appears to have answered in the negative. Priebus then took Comey in to meet with Trump, who defended his answer in an interview with Bill O’Reilly released on February 6) that “There are a lot of killers. You think our country’s so innocent?” After Comey criticized that part of the answer, Trump, “clearly noticed I had directly criticized him.” (h/t TC for reminding me to add this.) Since Yates had told McGahn how they knew Flynn had lied, Priebus’ question about a FISA order suggests the White House was trying to find out whether the collection was just incidental, or whether both sides of all Flynn’s conversations would have been picked up.

On February 9, the WaPo reported that Flynn had discussed sanctions, in spite of public denials from the White House that he had.

National security adviser Michael Flynn privately discussed U.S. sanctions against Russia with that country’s ambassador to the United States during the month before President Trump took office, contrary to public assertions by Trump officials, current and former U.S. officials said.

Flynn’s communications with Russian Ambassador Sergey Kislyak were interpreted by some senior U.S. officials as an inappropriate and potentially illegal signal to the Kremlin that it could expect a reprieve from sanctions that were being imposed by the Obama administration in late December to punish Russia for its alleged interference in the 2016 election.

Flynn on Wednesday [February 8] denied that he had discussed sanctions with Kislyak. Asked in an interview whether he had ever done so, he twice said, “No.”

On Thursday [February 9], Flynn, through his spokesman, backed away from the denial. The spokesman said Flynn “indicated that while he had no recollection of discussing sanctions, he couldn’t be certain that the topic never came up.”

Officials said this week that the FBI is continuing to examine Flynn’s communications with Kislyak. Several officials emphasized that while sanctions were discussed, they did not see evidence that Flynn had an intent to convey an explicit promise to take action after the inauguration.

In addition to tracking Flynn’s changing claims, it also noted that on January 15, Mike Pence had denied both any discussion of sanctions in the December call and discussions with Russia during the campaign.

On February 10, Trump was asked by reporters about Flynn’s answer. Trump played dumb: “I don’t know about that. I haven’t seen it. What report is that? I haven’t seen that. I’ll look into that.” (h/t TC)

Presumably, Mueller wants to know how surprised Trump was about this story (which actually builds on whether McGahn told him about the Yates conversation). But given Trump’s earlier question about FBI leaks, I also wonder whether Mueller knows that Trump knew this was coming. That is, some of the leaks may have come from closer to the White House, as an excuse to fire Flynn, using the same emphasis that the story (and Yates) had: the claim that Flynn had lied to Pence.

Except Mueller probably knows that the effort to soothe Russia’s concerns about sanctions made in December were a surprise to few top aides in the White House, least of all Trump.

February 13, 2017: How was the decision made to fire Mr. Flynn on Feb. 13, 2017?

We have remarkably little reporting on how and why Flynn was actually fired — mostly just the cover story that it was because Flynn lied to Pence — though after Flynn flipped last year, Trump newly claimed he had to fire Flynn because he lied to the FBI (something that, if the claims about the original 302 are correct, FBI hadn’t concluded at the time Trump fired him).

The thing is, neither story makes sense. It’s virtually certain that many people in the White House knew what Flynn had said to Sergey Kislyak back in December 2016; Tom Bossert was included in KT McFarland’s emails to Mike Flynn, and he sent it to Reince Priebus, Stephen Bannon, Sean Spicer, and at least two other people. All of those people, save Bossert, are known to have provided testimony to Mueller’s team.

But it also makes little sense to argue that Trump had to fire Flynn because he lied. If so, he would have done so either immediately, before the Putin meeting, or much later, after FBI actually came to the conclusion he had lied.

One logical explanation is that Flynn lied because he was told to lie, in an effort to continue to hide what the Trump Administration was doing in the transition period to pay off its debts to Russia. But faced with the prospect that the FBI would continue to investigate Flynn, Trump cut him out in an effort to end the investigation. Which explains why things with Comey proceeded the way they did.

Update: This post has been updated with new details surrounding February 8-10 and newly unredacted details from the HPSCI report.

RESOURCES

These are some of the most useful resources in mapping these events.

Mueller questions as imagined by Jay Sekulow

CNN’s timeline of investigative events

Majority HPSCI Report

Minority HPSCI Report

Trump Twitter Archive

Jim Comey March 20, 2017 HPSCI testimony

Comey May 3, 2017 SJC testimony

Jim Comey June 8, 2017 SSCI testimony

Jim Comey written statement, June 8, 2017

Jim Comey memos

Sally Yates and James Clapper Senate Judiciary Committee testimony, May 8, 2017

NPR Timeline on Trump’s ties to Aras Agalarov

George Papadopoulos complaint

George Papadopoulos statement of the offense

Mike Flynn statement of the offense

Internet Research Agency indictment

Text of the Don Jr Trump Tower Meeting emails

Jared Kushner’s statement to Congress

Erik Prince HPSCI transcript

THE SERIES

Part One: The Mueller Questions Map Out Cultivation, a Quid Pro Quo, and a Cover-Up

Part Two: The Quid Pro Quo: a Putin Meeting and Election Assistance, in Exchange for Sanctions Relief

Part Three: The Quo: Policy and Real Estate Payoffs to Russia

Part Four: The Quest: Trump Learns of the Investigation

Part Five: Attempting a Cover-Up by Firing Comey

Part Six: Trump Exacerbates His Woes

Trump Repeats the “Tapp” Story Line from Season One

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Last March 4, as it became clear the FBI was investigating him, President Trump wrote a bunch of tweets that claimed, falsely, that he had been wiretapped.

He even called for a “good lawyer” to make a case out of the “fact” that Obama was tapping his phone.

Today, Day Two of the Don and Rudy show, NBC has an exclusive story reporting that Michael Cohen’s phones were tapped before he was raided by the FBI a few weeks ago.

It’s certainly possible that the story is true. After all, prosecutors already revealed that “the USAO-SDNY has already obtained search warrants – covert until this point – on multiple different email accounts maintained by Cohen.” They also referred to some [redacted] reason to be concerned that Cohen was destroying evidence. So it’s certainly feasible SDNY had probable cause and reason to want to wiretap mob lawyer Michael Cohen.

But within minutes of the story breaking, Rudy was on the phone with Robert Costa, making false claims that if the wiretap picked up a conversation between Trump and Cohen, as the NBC report claims based off a single source, the FBI would need to notify Trump.

Giuliani tells me he can’t confirm there were wiretaps, hasn’t been informed. But when read NBC report, he was furious. “If they picked up the president, they would have had to notify him.” Said if true, wld be a “mockery” of attorney-client privilege and “gov’t misconduct”

And Giuliani’s concerns echo advice he gave Trump as the Cohen story was breaking, to stay off the phones with Cohen because they might be tapped. something the story itself describes, attributed to “sources close to” Rudy.

After the raid, members of Trump’s legal team advised the president not to speak to Cohen, according to a person familiar with the discussion.

Two sources close to Trump’s newest attorney, Rudolph Giuliani, say he learned that days after the raid the president had made a call to Cohen, and told Trump never to call again out of concern the call was being recorded by prosecutors.

Why would this detail be included in this NBC story? It’s like a Chekhov suicide pill, unnecessary to the story in chief but useful for giving a story additional dramatic meaning [yes, I made that term up, but I’ve got a PhD in literature, so am taking license to do so].

Incidentally, Corey Lewandowski was dining with Rudy last night before he went on Hannity.

As to the report about the wiretap itself, the NBC story is sourced to:

” two people with knowledge of the legal proceedings involving Cohen” [a kind of code often used to describe defense lawyers, though there are so many involved in this wiretap that it could be any of many]

“one person with direct knowledge”

“the person ” [that is, with direct knowledge — this is the confirmation that a call to the White House got picked up]

Nowhere does the story explain why someone with knowledge of a wiretap would want to burn it.

Certainly, there are explanations that given the people involved might explain the story. Michael Avenatti has claimed to know quite a bit about the surveillance of Michael Cohen; certainly, he has had communications with prosecutors involved, not least about whether he can intervene in the case. Alternately, Rudy is still quite close to some of NY’s more unethical FBI Agents, and it’s certainly possible one of them leaked the news.

By all means, let’s entertain the distinct possibility that the President’s personal lawyer, with all his mob ties, got treated like a mob lawyer. But let’s remember that Rudy appears to have made promises he can end the investigations into the President in the short term. He’s a liar. And Trump has specifically lied about being wiretapped before. So even if Cohen was wiretapped, beware serial liars making claims about the impact of such wiretaps on the President himself.

The President who cried “wiretap” once too often should be treated with a great deal of skepticism, particularly given the way Rudy immediately used this story to attack the investigation into Cohen.

Update: And now Rudy is using the alleged wiretap to call for Sessions to investigate those who were investigating  Cohen.

Rudy Giuliani called for Attorney General Jeff Sessions to intervene in the Michael Cohen case and put the people behind the probe “under investigation” in a phone call with The Hill on Thursday.

“I am waiting for the Attorney General to step in, in his role as defender of justice, and put these people under investigation,” Giuliani said, reacting to an NBC News report that phones belonging to Cohen, President Trump’s longtime personal attorney, had been tapped by investigators.

He gives up the game when he complains that FBI didn’t inform “us” of the alleged wiretap.

But Giuliani said that a wiretapping of Cohen would amount to “gross misconduct” by the government. He further alleged that “this case has been surrounded by numerous acts” that fit that description.

Giuliani added sarcastically, “And they don’t even notify us? I mean, he’s only the president of the United States.”

Rudy wasn’t representing Trump when the raid occurred.

Update: Rudy again gives up the game when he suggests only the FBI, the independent counsel, or DOJ would know about this wiretap.

Giuliani said that he found out about the wiretap news from NBC News’ report, which cited “two people with knowledge of the legal proceedings,” and not from Cohen himself. He believed someone in the Justice Department was behind the leak.

“Nobody else would know about it,” Giuliani said. “Cohen didn’t know about it, so it has to be the FBI, the independent counsel, or the Justice Department.”

“Anybody who says that I’m exaggerating when I say that this is an out-of-control investigation and they’re acting like storm troopers––give me a break, baby! They prove it every day.”

As I’ve already suggested, Avenatti is one other outsider who might have a whiff of this, if true. But in any case, the raid, and therefore the wiretap, is understood to have involved an independent investigation conducted by SDNY, not Mueller’s team. If true, there’s no way Mueller would know about it either. And yet Rudy uses it to suggest the Mueller investigation is out of control.

Update: … and NBC has retracted the story. FBI had a pen register on Cohen, not a wiretap. Which of course they would, because that’s one thing they use to decide which emails — which we know they collected — to read.

The Quid Pro Quo: a Putin Meeting and Election Assistance, in Exchange for Sanctions Relief (Part Two in a Series)

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As I explained in Part One of this series, I think the Mueller questions leaked by the Trump people actually give a far better understanding of a damning structure to the Mueller investigation — one mapping out cultivation, a quid pro quo, and a cover-up — than the coverage has laid out. This post will lay out how, over the course of the election, the Russians and Trump appear to have danced towards a quid pro quo, involving a Putin meeting and election assistance in exchange for sanctions relief if Trump won (as noted, the Russians dangled real estate deals to entice Trump based on the assumption he wouldn’t win).

April 27, 2016: During the campaign, what did you know about Russian hacking, use of social media, or other acts aimed at the campaign?

Given the structure of George Papadopoulos’ plea, it’s highly likely Mueller knows that Papadopoulos passed on news that the Russians had thousands of Hillary emails they planned to release to help Trump to people in the campaign. Papadopoulos could have passed on that news to Stephen Miller and Corey Lewandowski as early as April 27. On the same day, Papadopoulos helped draft Trump’s first foreign policy speech, which Papadopoulos reportedly told Ivan Timofeev signaled a willingness to meet.

Between the time the GRU first exfiltrated DNC emails in April and the election, Trump invoked “emails” 21 times on Twitter (usually to refer to emails from Hillary’s server). The first of those times came on June 9, less than an hour after the Trump Tower meeting. The most famous of those came on July 27, when Trump addressed Russia directly.

Earlier in the day, Trump had called on Russia to release the emails not to the FBI, but to the press.

Russia, if you’re listening, I hope you’re able to find the 30,000 emails that are missing. I think you will probably be rewarded mightily by our press.

The timing may reflect awareness among some in the campaign that the call to Russia was a step too far legally. (h/t TC for the addition)

That Trump’s email comments pertain mostly to Hillary’s home-based server doesn’t actually exonerate him. Right after the DNC release (and therefore the July 27 Trump tweet), GOP rat-fucker Peter Smith started reaching out to Russian hackers in hopes of finding hacked versions of those emails. His support documents named Steve Bannon, Kellyanne Conway, Sam Clovis, and Mike Flynn. If those people actually learned of the effort (there’s reason to believe Smith was just overselling the ties to the campaign), it’s possible that Trump learned about it as well.

As to social media, while it has gotten virtually no attention, the reference to three Florida-based Trump campaign officials in the Internet Research Agency indictment suggests further investigative interest in them.

[T]here are three (presumed) Americans who, both the indictment and subsequent reporting make clear, are treated differently in the indictment than all the other Americans cited as innocent people duped by Russians: Campaign Official 1, Campaign Official 2, and Campaign Official 3. We know, from CNN’s coverage of Harry Miller’s role in building a cage to be used in a fake “jailed Hillary” stunt, that at least some other people described in the indictment were interviewed — in his case, for six hours! — by the FBI. But no one else is named using the convention to indicate those not indicted but perhaps more involved in the operation. Furthermore, the indictment doesn’t actually describe what action (if any) these three Trump campaign officials took after being contacted by trolls emailing under false names.

So Mueller may be pursuing whether there was state-level coordination going on, and if so, how far up the campaign chain of command knowledge of that coordination extended.

May 31, 2016: What discussions did you have during the campaign regarding any meeting with Mr. Putin? Did you discuss it with others?

On June 16, 2015, the day Trump announced his campaign, the Agalarovs offered to serve as an intermediary between him and Putin.

Then, starting at least as early as March 31, 2016 (with Trump’s first foreign policy meeting), his aides started floating pitches for meetings with increasingly senior campaign officials that would hypothetically lead up to one between Trump and Putin.

Those include at least:

  • The George Papadopoulos thread, spanning from March 21 through August 15
  • The Carter Page thread, including his Moscow trip in July, and possibly continuing through his December Moscow trip
  • The NRA thread, focusing on the NRA meeting in Kentucky in May; NRA’s longer outreach includes Trump associates John Bolton and David Clarke

We know Trump was present and did not object when Papadopoulos pitched this in the May 31 meeting. Several of the other entrees went through Don Jr. Many of the offers got briefed at least as far as Jared Kushner and Paul Manafort. We don’t know how many of the other offers he learned about. We just know that years earlier he had joked about becoming Putin’s best friend, and over the course of the campaign, Russian intermediaries made repeated, persistent efforts to work towards a meeting between Trump and Putin, with a meeting between Agalarov representatives (who, again, had offered to serve as intermediaries with Putin when Trump kicked off the campaign) and the most senior people on the campaign happening just as Trump sealed up the nomination.

May 31, 2016: What discussions did you have during the campaign regarding Russian sanctions?

This is an open-ended question that might pose particular problems for Trump given the misleading statement claiming the June 9 meeting was about adoptions and not the Magnitsky sanctions. More interesting still are hints that Mueller sees a signaling going back and forth involving Papadopoulos; some of this may have involved signaling a willingness to provide sanctions relief.

Both Aras Agalarov and Natalia Veselnitskaya followed up after the election pushing for sanctions relief.

June 9, 2016: When did you become aware of the Trump Tower meeting?

Sam Nunberg has suggested Trump probably learned of the Trump Tower meeting before it happened. While he is unreliable on that point, the original June 3, 2016 email Rob Goldstone sent to Don Jr suggests reaching out to Trump’s assistant Rhona Graff.

I can also send this info to your father via Rhona, but it is ultra sensitive so wanted to send to you first.

Democrats suspect that between two calls Don Jr had with Emin Agalarov about the meeting on June 6, 2016, he called his dad.

Trump Jr.’s phone records show two calls to and from the same Russian number on June 6, 2016.62 The first call occurred at 4:04 pm on June 6, 2916 – just 21 minutes after Goldstone emailed Trump Jr. to say that Emin Agalarov was “on stage in Moscow but should be off within 20 minutes so I am sure can call. [emphasis added]” 63 At 4:38 pm, Trump Jr emailed Goldstone, “Rob, thanks for the help.”64

This documentary evidence indicates that a call likely took place between Trump Jr. and Emin Agalarov. During his interview, Trump Jr. confirmed that the Russian phone number belonged to Agalarov, though he claimed to not recall whether he actually spoke with him. Rather, despite one of the two calls reflecting a two-minute connection, Trump Jr. suggested that Agalarov may have left voice messages.65

The phone records also show a “blocked” number at 4:27 pm, between the two calls to and from Emin Agalarov. Trump Jr. claimed he did not know who was associated with the blocked number.66 While the Committee has not pursued leads to determine who called Trump Jr. at this crucial time from a blocked number, Corey Lewandowski told the Committee that Mr. Trump’s “primary residence has a blocked [phone] line.” 67

Mueller, of course, almost certainly has the phone records the Democrats weren’t able to obtain.

Finally, Steve Bannon has stated that he’s certain Don Jr “walk[ed] these jumos up to his father’s office on the twenty-sixth floor” on the day of the meeting. There’s reason to believe Ike Kaveladze and Goldstone could have done so, including the new piece of evidence that “Kaveladze left [a meeting with Rinat Akhmetshin and Natalia Veselnitskaya] after a few minutes to take a call from Agalarov to discuss the meeting.”

The day after the meeting — and four days before Trump’s birthday — Agalarov sent Trump an expensive painting as a present.

The June 9 meeting is, as far as is public, the most important cornerstone in a presumed quid pro quo. Russians offered unnamed dirt that Don Jr seemed to know what it entailed even before speaking to Emin Agalarov personally. Having offered dirt, four Russians — including two representatives of Trump’s long-time handler Aras Agalarov — laid out a pitch to end the Magnitsky sanctions. And less than a week later, a presumed Russian agent released the first dirt stolen from Hillary Clinton.

July 7, 2016: What knowledge did you have of any outreach by your campaign, including by Paul Manafort, to Russia about potential assistance to the campaign?

We don’t have many details on what Mueller knows about Manafort’s requests for help on the campaign. We do know he remained in close touch with Russians via someone the FBI believed was a Russian intelligence agent, Konstantin Kilimnik, through whom he remained in communications with Russian oligarch Oleg Deripaska. Deripaska is named in some court documents in a way that suggests his relationship with Manafort may be the still hidden third prong of investigation into Manafort approved by August 2, 2017.

Starting in April, Manafort and Kilimnik (whom Rick Gates and therefore presumably Manafort knew was a former GRU officer), exchanged a series of cryptic emails, suggesting that Manafort might be able to pay off the $20 million he owed Deripaska with certain actions on the campaign. In an email sent on July 7, Manafort offered to provide briefings on the campaign to Deripaska. On or around August 2, Manafort and Kilimnik met in person at the Grand Havana Club, in Kushner’s building at 666 5th Avenue. Both deny that anything about the campaign came up. Shortly after this meeting, one of Deripaska’s jets came to Newark, and Russian opposition figure Viktor Navalny has claimed to have proof the jet went from there to a meeting between Deripaska and Russian deputy prime minister Sergei Prikhodko.

An August 2017 report describes intercepts picking up “Russian operatives discussing their efforts to work with Manafort, … relay[ing] what they claimed were conversations with Manafort, encouraging help from the Russians.”

There’s one more area of potential assistance I find of interest. Since January, we’ve been getting hints that Oleg Deripaska has some tie to the Steele dossier, possibly through a lawyer he and Steele share. I’ve raised repeated concerns that the Russians learned about the dossier and found ways to feed Steele disinformation. If they did, the disinformation would have led Democrats to be complacent about the hacks that targeted them. And whether or not the dossier is disinformation (and whether or not Deripaska had a role in that, if true), Paul Manafort coached Reince Priebus on how to attack the dossier as a way to discredit the investigation into the campaign’s ties with Russia.

With regards to this Manafort question: remember that Rick Gates flipped on February 23, and the questions date to early March. So Gates may have proffered confirmation about these details. In any case, Mueller likely has learned far more about them two months after Gates flipped.

July 10-12, 2016: What involvement did you have concerning platform changes regarding arming Ukraine?

The Majority HPSCI Russia Report explains that the RNC platform was changed by staffers at the convention based off Trump’s public statements on sanctions.

[Rick] Dearborn generated a memorandum, dated August 1, 2016, outlining a detailed sequence of events that occurred between July 10 and 12, 2016. As part of that memo, J.D. Gordon created a timeline that noted candidate Trump’s policy statements–including at a March 31, 2016, national security meeting–served as the basis for the modification of [Diana] Denman’s amendments. Gordon’s timeline made it clear that the change was initiated by campaign staffers at the convention–not by Manafort or senior officials.

J.D. Gordon has not confirmed that he was asked about this, but he surely was. I would expect Mueller to have tested the timeline Gordon laid out in summer 2016 (when the platform change was a big political issue) against the testimony and communications records of everyone else involved.

Of course, by asking the question in this fashion, Mueller doesn’t reveal what he has already confirmed about the platform changes.

August 5, 2016: What did you know about communication between Roger Stone, his associates, Julian Assange or WikiLeaks?

After multiple public statements that the Russians were behind the hack-and-leak, on August 5, 2016 (after traveling from NY to LA to his home in FL), Roger Stone wrote a column claiming to believe that Guccifer 2.0 was a hacktivist with no ties to Russia. Stone’s purportedly changed beliefs about Guccifer 2.0 coincide with an August 4 claim he made in an email to Sam Nunberg that he had met with Julian Assange the night before. Stone’s claimed belief that Guccifer 2.0 is not Russian is key to his denials of any involvement or pre-knowledge of hack-and-leak events. It also kicked off an alternative story that others, up to and including Trump, have adopted to excuse their own embrace of the stolen emails. In other words, a key prong in the plausible deniability the Russians built into the hack-and-leak campaign came from long-time Trump associate Roger Stone, after a dramatic and unexplained change in beliefs (Lee Stranahan, who used to work for Breitbart and now works for Sputnik, has claimed some credit for the change, and given how lucid the August 5 column is, someone had to have helped Stone write it).

Ten days later, after Stone had called on Twitter to let him out of Twitter jail, Guccifer 2.0 and Stone started exchanging (fairly innocuous) DMs.

There are events both before and after that which suggest Stone — probably through more interesting go-betweens than Randy Credico — sought information on what dirt Assange and Wikileaks had, and what and when planned to do with it.

Much has been made, especially in the DNC lawsuit, about Stone’s seeming prediction that “it would soon be Podesta’s time in the barrel.” Perhaps that’s true (and Stone’s explanation for the tweet is garbage), but any explanation of Stone’s supposed prediction needs to acknowledge that he more often predicted Wikileaks would release Clinton Foundation emails, not Podesta ones, that he got the timing somewhat wrong, and that he didn’t dwell on the Podesta emails at all once Wikileaks started releasing them (preferring, instead, to talk about Bill Clinton’s lady problems). Still, that may reflect Stone involvement in the Peter Smith operation, and efforts to get WikiLeaks to release purported Clinton Foundation emails passed on via hackers.

That Mueller is even asking this suggests (if the several grand jury witnesses in recent months dedicated to it don’t already) that Mueller has a pretty good idea that Stone’s communications were more extensive than his denials let on. That he thinks Stone may have shared that information with Trump is all the more interesting.

All of which is to say that the known answers to Mueller’s questions map out a quid pro quo set up during the election, in which Russians offered a Putin meeting and dirt on Hillary, with the expectation that Trump would lift the Magnitsky sanctions if he won (and would get a Trump Tower in Moscow if he lost). I suspect there are other pieces to the quid pro quo, dealing with Ukraine and Syria. But certainly the June 9 meeting set up an understanding: dirt in exchange for Magnitsky relief. The release of the Guccifer 2.0 emails may indicate the Trump camp provided some signal they had formally accepted the offer.

Update: Fixed syntax in last paragraph, h/t LT.

RESOURCES

These are some of the most useful resources in mapping these events.

Mueller questions as imagined by Jay Sekulow

CNN’s timeline of investigative events

Majority HPSCI Report

Minority HPSCI Report

Trump Twitter Archive

Jim Comey March 20, 2017 HPSCI testimony

Comey May 3, 2017 SJC testimony

Jim Comey June 8, 2017 SSCI testimony

Jim Comey written statement, June 8, 2017

Jim Comey memos

Sally Yates and James Clapper Senate Judiciary Committee testimony, May 8, 2017

NPR Timeline on Trump’s ties to Aras Agalarov

George Papadopoulos complaint

George Papadopoulos statement of the offense

Mike Flynn statement of the offense

Internet Research Agency indictment

Text of the Don Jr Trump Tower Meeting emails

Jared Kushner’s statement to Congress

Erik Prince HPSCI transcript

THE SERIES

Part One: The Mueller Questions Map Out Cultivation, a Quid Pro Quo, and a Cover-Up

Part Two: The Quid Pro Quo: a Putin Meeting and Election Assistance, in Exchange for Sanctions Relief

Part Three: The Quo: Policy and Real Estate Payoffs to Russia

Part Four: The Quest: Trump Learns of the Investigation

Part Five: Attempting a Cover-Up by Firing Comey

Part Six: Trump Exacerbates His Woes

After Reiterating Orin Kerr’s Arguments, MalwareTech Asks for the Indictment to be Dismissed with Prejudice

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In a post explaining that MalwareTech (Marcus Hutchins) had gotten a last minute continuance before an evidentiary hearing last month, I linked to my thread on the government’s weak responses to a bunch of motions he had submitted. Here’s how I described the original motions:

The five filings are:

  1. A motion for a bill of particulars, basically demanding that the government reveal what 10 computers Hutchins and his alleged co-conspirator conspired and intended to damage
  2. A motion to suppress the statements Hutchins made after he was arrested, requesting an evidentiary hearing, based on the fact that Hutchins was high and exhausted and didn’t know US law about Miranda warnings
  3. A motion to dismiss the indictment, arguing on three different grounds that,
    • The CFAA charges (one and six) don’t allege any intent to cause damage to a protected computer (because the malware in question steals data, but doesn’t damage affected computers)
    • The Wiretapping charges (two through five) don’t allege the use of a device as defined under the Wiretap Act, but instead show use of software
    • The sales-related charges (one, five, and six) conflate the sale of malware with the ultimate effect of it
  4. A motion to dismiss the indictment for improper extraterritorial application and venue, effectively because this case should never have been charged in the US, much less Milwaukee
  5. A motion to dismiss charges two and six based on suspected improper grand jury instruction failing to require intentionality

Yesterday, Hutchins submitted his replies to the government’s arguments, in which he argues:

1.The government needs to explain what kind of proof of damage to 10 computers that Hutchins and his co-defendant conspired to damage it will offer and provide discovery on it.

2. [Hutchins offered no new response to the government’s Miranda response]

4. Because the government didn’t include the legitimate (purchase by an FBI Agent of the malware) and specious (sharing a binary with someone in CA and discussing the malware in online forums) bases that tie Hutchins’ activities to Eastern District of Wisconsin or even the US in the indictment itself, the indictment is an improper extraterritorial application of the law and lack venues in EDWI.

5. Because the government doesn’t include intentionality where the statute requires it, it should dismiss the related counts with prejudice (note, this argument has evolved from a grand jury error to a more fundamental problem assault on the indictment).

While I’m not sure all of these will succeed on their own (indeed, I think the motion on venue with respect to CFAA might fail in the absence of the rest of this), these motions form an interlocking argument that there’s no there there.

Which the defense argues at most length is the motion reiterating that selling software does not amount to either CFAA (damaging 10 computers) or wiretapping (which requires a device), an argument Orin Kerr made just after the charges were released in August. I get the feeling the defense thought that, having had access to Kerr’s argument all these months, the government might have responded better. The two substantive parts of their argument are here, addressing the point that CFAA violations require doing (or attempting to do) actual damage to computers, not just code that has the ability to damage them.

[T]he government suggests that its characterization of Kronos as “malware” should satisfy the pleading standard, claiming that it is “common knowledge” that malware is “written with the intent of being disruptive or damaging.” (Gov’t Response at 4 (citing Oxford English Dictionary 2018).) But the CFAA does not make so-called malware illegal—it is not some form of contraband. In fact, the term “malware” does not appear anywhere in the statute. The CFAA is not concerned with what software is called, but what an actor uses it to do. Artificial labels aside, the question before the Court is whether the indictment adequately pleads a case that Mr. Hutchins and his co-defendant conspired or attempted to “knowingly cause[] the transmission of a program, information, code, or command, and as a result of such conduct, intentionally cause damage without authorization, to a protected computer.” 18 U.S.C. §§ 371 & 1030(a)(5)(A).

The only definition of “malware” relevant to that question is one offered in the indictment. The indictment, at paragraph 3(d), defines “malware” as “malicious computer code installed on protected computers without authorization that allowed unauthorized access to the protected computer.” Nothing in this definition involves “intentionally caus[ing] damage without authorization, to a protected computer,” which is necessary to violate § 1030(a)(5)(A). The indictment’s “unauthorized access” language seems to be borrowed from other provisions of the CFAA that have not been charged in this case, such as §§ 1030(a)(2), (5)(B), and (5)(C)—all of which include additional elements beyond “unauthorized access.” Even if Kronos precisely meets the definition of “malware” offered by the government in the indictment, that functionality alone would not constitute a violation of § 1030(a)(5)(A) or any other provision of the CFAA.

There are, I think, cases where malware sellers have been convicted — but only after their customers were busted doing damage. Here, the only customer mentioned in the legal case thus far was an FBI Agent that no one has alleged actually used the malware (the malware was used in other countries, including Hutchins’ home in the UK, about which the government has been completely silent since the initial indictment).

Here’s the language arguing that software, sold without a computer, is not a device as defined in the wiretapping statute charged.

[T]hose cases all involved claims that the defendants acquired communications using software running on a computer. Under those circumstances, a court has no reason to draw a distinction between the two because the software and computer are working together: the operation of one depends on the other. Indeed, the cases cited by the government discuss computers and the software installed on them as one unit. See, e.g., Zang, 833 F.3d at 633 (“[O]nce installed on a computer, WebWatcher automatically acquires and transmits communications to servers”); Klumb, 884 F. Supp. 2d at 661 (“The point is that a program has been installed on the computer which will cause emails sent at some time in the future through the internet to be re-routed[.]”); see also Shefts, 2012 WL 4049484, **6-10 (variously referring to servers, email accounts, software, and BlackBerry smartphones as interception devices).

For purposes of the § 2512 charges in this case, however, the distinction between software and computer is important. In Counts Two through Four, there is no computer, which would not be true in any scenario involving an actual interception. As noted in Potter, software alone is incapable of intercepting anything. 2008 WL 2556723, at *8. “It must be installed in a device, such as a computer, to be able to do so.” protected computer,” which is necessary to violate § 1030(a)(5)(A).

In both cases, the defense is basically arguing that not only do Hutchins’ actions not meet the terms of the statute, but the indictment was also badly written in an unsuccessful attempt to make those statutes apply.

These are alleged crimes for which the government has refused to identify victims, provided none of the requisite evidence of intentionality, applied to software that doesn’t obviously qualify under either of the charged laws. Some of that is a problem with the indictment, as written. Much about this case suggests the government assumed Hutchins would plead quickly, obviating the need to write an indictment that could hold up to a trial. As I noted, in its response a few weeks ago, the government claimed (after threatening that it might) it was planning on obtaining a superseding indictment.

The government plans to seek a superseding indictment in this case, and in doing so will correct this drafting error and moot Hutchins’s argument.

Two weeks later, there’s still no sign of the indictment that fixes the aspects the government admits are flawed, much less the other scope issues. And so now Hutchins is asking for the indictment — all counts of it, between one challenge or another — be dismissed with prejudice.

I’m not sure that will happen — judges have proven the ability to interpret CFAA to include all manner of bad hacker stuff. But an outright dismissal might put the government out of the misery it brought on itself with a case it should never have charged.