The Conspiracy to Defraud the United States Backbone of the Internet Research Agency and Manafort Indictments

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In this post, I suggested there was an important parallel between the structure of the Internet Research Agency indictment rolled out Friday and the Paul Manafort and Rick Gates indictment.

Both use a conspiracy to defraud the US (of its ability to enforce campaign finance and transparency law) as their backbone.

Just as way of comparison, Charge 1 in the IRA indictment alleges conspiracy to defraud the US because defendants impaired the lawful functions of the FEC, DOJ, and State in administering disclosure about foreign involvement in US politics.

From in or around 2014 to the present, in the District of Columbia and elsewhere, Defendants, together with others known and unknown to the Grand Jury, knowingly and intentionally conspired to defraud the United States by impairing, obstructing, and defeating the lawful functions of the Federal Election Commission, the U.S. Department of Justice, and the U.S. Department of State in administering federal requirements for disclosure of foreign involvement in certain domestic activities.

Charge 1 in the Manafort indictment alleges conspiracy to defraud the US because the defendants impaired the lawful functions of DOJ and Treasury to require disclosures about foreign political activity in US politics.

From in or about and between 2006 and 2017, both dates being approximate and inclusive, in the District of Columbia and elsewhere, the defendants PAUL J. MANAFORT, JR., and RICHARD W. GATES III, together with others, knowingly and intentionally conspired to defraud the United States by impeding, impairing, obstructing, and defeating the lawful governmental functions of a government agency, namely the Department of Justice and the Department of the Treasury, and to commit offenses against the United States, to wit, the violations of law charged.

Whatever else is true, both indictments start there, and go onto other related crimes (compellingly money laundering for Manafort and identity theft for IRA) from there.

Several people have already commented on the use of the conspiracy to defraud as backbone in the IRA indictment. Jamil Jaffer (not the Knight Foundation civil liberties guy, but the hawkish former DOJ NatSec guy) argued that this structure might provide a way to charge Americans who help foreigners interfere with our elections.

Today’s indictment also represents a significant step forward for the Mueller investigation and, in many ways, breaks new ground for a federal indictment. The conspiracy charge is significant because if upheld by a federal court, it shows how additional conspiracy charges might be brought against individuals–even Americans–that help foreigners interfere with our electoral system.

The Democrats’ campaign finance guru Bob Bauer laid this out in considerable more depth. He starts by observing that while evidence of campaign finance violations is abundant, Mueller instead uses only the backbone.

The indictment alleges facts that support charges of federal campaign finance law violations—such as the prohibition on foreign national contributions—but does not charge any such offenses. This is clearly not for want of evidence, since the indictment sets out in considerable detail the millions in foreign national spending to influence the 2016 election.

While it’s not clear that this is why Mueller approached it this way, Bauer notes that foreigners aren’t going to comply with campaign finance laws and the FEC is largely dysfunctional anyway.

Now, of course, those engaged in illegal campaign finance activity, such as spending from foreign national sources, won’t ever make an exception and comply with self-incriminating reporting requirements. And the irony of the premise–that the FEC would get the job done if given the needed facts–will not be lost on those who have observed the agency’s decline.

So, while in that paragraph, he didn’t go that far, Bauer implies that Mueller couldn’t charge campaign finance violations because the legal infrastructure for enforcing our country’s campaign finance laws has been shredded.

When I pointed out this parallel on Twitter, Jaffer argued the difference was that the Manafort indictment charged FARA violations (counts 3 through 6) in addition to the conspiracy to defraud backbone.

Plus in the Manafort case, it isn’t just a pure bootstrap because they they also charge the underlying crimes. Here, not so.

But let’s look at what Paul Manafort lawyer Kevin Downing argued after his arraignment: the surprising thing about the Manafort indictment is that Mueller charged Foreign Agents Registration Act, because it had so rarely been charged before and only once led to a conviction.

Today, you see an indictment brought by an office of Special Counsel using a very novel theory to prosecute Mr. Manafort regarding a FARA filing. The United States government has only used that offense six times since 1966 and it only resulted in one conviction.

Downing doesn’t dispute the letter of the law. He instead credibly disputes that Manafort could be expected to believe the law means what it says because it has never been enforced.

Admittedly, immediately after the indictment, there was a surge of compliance with FARA.

The number of first-time filings like SCL Social Limited’s rose 50 percent to 102 between 2016 and 2017, an NBC News analysis found. The number of supplemental filings, which include details about campaign donations, meetings and phone calls more than doubled from 618 to 1,244 last year as lobbyists scrambled to avoid the same fate as some of Trump’s associates and their business partners.

But that is, itself, testament to the fact that, at least when charged, no one believed FARA was a law. FARA, like other prohibitions on foreign campaign donations, didn’t work because those donating the money didn’t give a fuck and the agencies — FEC, DOJ, State, Treasury — mandated with protecting us from foreign tampering couldn’t do their jobs without the required reporting.

So we have a range of dysfunctional campaign transparency and finance laws, and two indictments charged as conspiracy to defraud the agencies empowered to oversee those laws, and only thereafter substantiated with more traditional crimes like money laundering and identity theft.

You see the parallel yet?

After arguing that FEC doesn’t work anymore anyway, Bauer argues you’re not going to charge foreigners with campaign finance violations because that would break too much legal ground.

Mueller and his team may have concluded that straight statutory campaign finance allegations rest on too much untested ground and would complicate what may well be the next phase of their investigation.  This consideration would not affect the foreign national side of the case: Foreign nationals are plainly prohibited from spending in the manner detailed in the indictment. But how the law reaches American co-conspirators is less certain, and the special counsel’s theory of the case, pleading the campaign finance aspect of the case through conspiracy-to-defraud, may allow more securely for the prosecution of American actors.

So to sum up thus far: campaign finance expert Bob Bauer, after admitting the FEC has been gutted, further argues that the theory of the conspiracy to defraud is necessitated by the involvement of foreign actors. His argument is based largely on the exclusion of FEC charges.

Yet Bob Mueller omitted any direct charge for violations of the Federal Election Campaign Act.

Instead, the indictment builds the campaign finance issues into a conspiracy to defraud the United States—it alleges that the Russians conspired to obstruct the capacity of the Federal Election Commission (FEC) to enforce the law.  The act of obstruction was a failure to report their illegal expenditures. If the FEC did not know about the expenditures, it could not enforce the law.

Click through to read that part of Bauer’s argument. Bauer seems to argue (I’m not convinced) that Mueller left off the FEC violations because he was only indicting foreigners.

But Bauer turns immediately to an invented necessity (having already proven that the underlying law is basically defunct) of sucking in Americans’ complicity that otherwise might hypothetically be covered by FEC.

If, however, Mueller possesses evidence of Americans’ complicity in these violations, he may have decided on a different theory of the campaign finance case that more reliably sweeps in U.S. citizen misconduct.

On the face of it, the law prohibits a U.S. campaign or person from “soliciting” something “of value” from a foreign national, and it bars rendering “substantial assistance” to illegal foreign national spending. It seems clear that the facts known to date implicate these rules. It is also true that there is little precedent and arguably an increased risk of a defense grounded in the “vagueness” of these prohibitions.  Some commentators have expressed unease about the constitutional limiting principle that would govern the enforcement of these provisions. I do not share this view, but it is held strongly in some quarters and, therefore, appropriately and respectfully noted.

The Mueller indictment is conceivably one way to solve this problem.

Bauer argues, breathtakingly, that instead of using America’s defunct campaign finance and transparency law, Mueller can use America’s insanely overbroad conspiracy law.

It alleges a conspiracy to prevent the FEC from taking up and addressing the regulatory issues, and American co-conspirators may be brought in on any overt act in furtherance of this illegal scheme. Any U.S. citizen who intentionally supported the Russian electoral intervention could be liable. Examples would include U.S. citizens engaged in conversations like those in Trump Tower in summer of 2016, or Don, Jr.’s communications with WikiLeaks about the timing of the release of stolen emails.  The conspiracy to defraud the United States could also envelop any Americans who helped cover the Russians’ illegal electoral program by lying to federal authorities about the campaign’s Russian contacts.

That is, Bauer is imagining Mueller might charge Trump associates in a conspiracy with IRA because they did really attenuated things — things like meeting with Russian lawyers in Trump Tower — that are associated with the conspiracy. That’s effectively what Jaffer argued, thought not in as unattenuated a way. “It shows how additional conspiracy charges might be brought against individuals–even Americans–that help foreigners interfere with our electoral system. ”

Maybe Bauer, who has the advantage of actually being an expert and a lawyer and a muckety muck, is right on this point.

But my guess is Mueller is, thus far, doing something more modest and more exciting.

To understand why, consider what Manafort is both alleged, in his indictment, to have done, and what is hanging over his head. He is alleged to have laundered both political influence (via some subordinate lobbying firms, including Tony Podesta’s) and money. The allegation is that this money and influence stems from misrepresenting the interests of his pro-Russian Party of Regions work in influence-peddling in the United States.

It is illegal to act as an agent of a foreign principal engaged in certain United States influence activities without registering the affiliation. Specifically, a person who engages in lobbying or public relations work in the United States (hereafter collectively referred to as lobbying) for a foreign principal such as the Government of Ukraine or the Party of Regions is required to provide a detailed written registration statement to the United States Department of Justice. The filing, made under oath, must disclose the name of the foreign principal, the financial payments to the lobbyist, and the measures undertaken for the foreign principal, among other information. A person required to make such a filing must further make in all lobbying material a “conspicuous statement” that the materials are distributed on behalf of the foreign principal, among other things. The filing thus permits public awareness and evaluation of the activities of a lobbyist who acts as an agent of a foreign power or foreign political party in the United States.

Effectively, the Manafort indictment argues that Manafort illegally hid the influence of Russian money and persuasion on US politics — in the form of face-to-face lobbying, among other things — in the same way that IRA obscured the financial backing and persuasion of Russia in the 2016 operation. The hidden object, Russian money and influence, is the same in both conspiracies to defraud the US indictments.

One of the biggest complaints from Republicans about the Manafort indictment, including from the President, is that Manafort’s Party of Regions work has nothing to do with his campaign. But once you define it as a conspiracy to hide Russian involvement in our politics, it goes right to the heart of whether the people running the Trump campaign, via their one-time campaign manager Paul Manafort, were honest about whose interest the campaign served.

Which brings us to the stuff hanging over Manafort’s head, the stuff Mueller seems to be trying to flip him to get. Manafort is suspected of acting as Trump’s campaign manager during key periods of staffing and policy commitment while serving the interests of Russia via some oligarch cut-outs, notably but not exclusively Oleg Deripaska.

It’s not clear how you’d charge this, in an era where campaign finance and transparency are dead. Particularly given that Manafort worked for free, bypassing every law imposed on actual donations, and therefore making it really easy for a foreign country to pay you to run a campaign.

Until you get to the conspiracy to defraud framework, to Manafort’s role in a conspiracy to hide the fact that the Russians were actually paying him to ensure Trump got elected.

I don’t actually think Don Jr will be charged (as Bauer surmised might be possible) with conspiracy to defraud based off the IRA indictment because he attended that June 9 meeting; the campaign’s data people might be different.

Which is to say that Mueller is not going to name Trump or his spawn in a conspiracy to defraud the government based off really attenuated claims that the conspiracy all derived from the IRA operation. The import of the Manafort charges (even in the limited form they exist) is that Mueller seems to be larding on the “conspiracy to defraud” charges from multiple directions, from Russians and whatever co-conspirator intermediaries to those who paid Manafort’s bills for getting Trump past the challenge of the Republican convention. Though I expect once that Marine running SCO gets all his leverage points into place they might all have that conspiracy to defraud structure. Including, I suspect, the foreign policy priorities implemented, at Jared Kushner’s direction, immediately after the election.

There are many acts, starting with the June 9 Trump Tower meeting, where principals might have criminal liability directly. But the IRA indictment made me realize why the Manafort indictment was so solidly within the scope of Mueller’s authority: because the larger project is to demonstrate that, by bypassing the agencies mandated with preventing foreign sabotage of our democratic process, the Russian-backed efforts broke a more fundamental law.

And I’m certain they’ll get there with far more evidence than Mueller laid out in the IRA indictment. But I suspect they all will use that conspiracy structure as backbone.

Update: Cleaned this up for clarity purposes.

What Did Mueller Achieve with the Internet Research Agency Indictment?

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Back during Nunes Week, Trey Gowdy described the importance of Robert Mueller’s investigation by stating that we were only seeing half of what he was doing. The other half of his work, Gowdy said, was the counterintelligence side, the investigation into what Russia did to the US in 2016.

Friday, Rod Rosenstein rolled out the first glimpse of the other half of that investigation, an indictment of 13 Russians tied to the Internet Research Agency, the Russian troll factory. The indictment accuses IRA of 8 crimes: criminal conspiracy to defraud the United States, conspiracy to commit wire fraud and bank fraud, and five counts of aggravated identity theft.

In the wake of that indictment, the court unsealed a February 7  plea agreement with Californian Richard Pinedo, for identity theft (basically, selling bank account numbers; the information doesn’t identify the users who purchased the bank account numbers as IRA personnel who used them to set up “American” identities, but that is clearly what happened).

The 13 Russians charged in the IRA indictment — which include Yevgeniy Prigozhin, the close Putin associate who owns the company, those in charge of the operation (which was not limited to US targeting), down to a few of the analysts who did the troll work — will never be extradited to the US, though the most senior among them will surely be sanctioned. Nor will Putin in any way retaliate against them — they were doing work he approved of! Further, by criminalizing “information warfare” (as the Russians admitted they were engaged in, and as we do too, under the same name) we risk our own information warriors being indicted in other countries.

So what purpose did the indictment serve? Here are some thoughts:

Creating a paper trail

Rosenstein and Chris Wray have both said they believe investigators should speak through indictments and other official documents, not through Comeyesque press conferences. Here we have an indictment that serves as a record of what Mueller’s team has found.

We would probably have gotten it in any case, as Jeff Sessions’ DOJ has emphasized bringing more cybersecurity related indictments.

But that we did get it addresses one of the questions we’ve gotten about the Mueller investigation: whether we’ll get to read a report of what he has found.

To the extent that something is indictable, even if that indictment would name Russians or others located overseas, I guess we should expect more of the same.

Establishing bipartisan credibility for the larger investigation

The reason I keep pointing to Gowdy’s statements in support of the investigation in the last several weeks is because his actions seem to reflect one of the most partisan Republicans reacting soberly to an attack on the country, rather than just one party.

And while the details of the indictment — most notably that the trolls affirmatively supported Bernie Sanders as well as Trump — have resurfaced the old primary recriminations, for the most part, the indictment has provided a way for people from both parties to agree to the reality of the attack. Trump said Mueller did a good job with the indictment (admittedly, he may be currying favor). Trump’s National Security Advisor HR McMaster responded to the indictment by declaring the evidence that Russia interfered in the election “incontrovertible.” This indictment offers a way for even self-interested Republicans to start acknowledging the reality of what happened.

The indictment also gave Rod Rosenstein an opportunity to own this investigation with a press conference announcing it. None of the prosecutors tied to the case appeared (since I track these things, know that Jeannie Rhee, Rush Atkinson, and Ryan Dickey are on the docket), just Rosenstein. Hopefully, tying him to this non-offensive indictment will make it harder to fire Rosenstein, and thereby further protect Mueller.

Reiterating the crime of conspiracy to defraud the United States

The most interesting of the three crimes charged in the IRA indictment is the first, the conspiracy to defraud the United States. The indictment describes the conspiracy this way:

U.S. law bans foreign nationals from making certain expenditures or financial disbursements for the purpose of influencing federal elections. U.S. law also bars agents of any foreign entity from engaging in political activities within the United States without first registering with the Attorney General. And U.S. law requires certain foreign nationals seeking entry to the United States to obtain a visa by providing truthful and accurate information to the government.

Effectively, Mueller is saying that it’s not illegal, per se, to engage in political trolling (AKA information warfare), but it is if you don’t but are legally obliged to register before you do so. That’s an important distinction, because much of what these trolls did is accepted behavior in American politics — all sides did this in 2016, including people employed by campaigns and others expressing their own political opinions. Trolling (AKA information warfare) only becomes illegal when you don’t carry out the required transparency or reporting before you do so.

The charge of a conspiracy to defraud the United States has a very important parallel elsewhere in this investigation, in the first charge in the Paul Manafort and Rick Gates indictment. The indictment explains,

It is illegal to act as an agent of a foreign principal engaged in certain United States influence activities without registering the affiliation. Specifically, a person who engages in lobbying or public relations work in the United States (hereafter collectively referred to as lobbying) for a foreign principal such as the Government of Ukraine or the Party of Regions is required to provide a detailed written registration statement to the United States Department of Justice. The filing, made under oath, must disclose the name of the foreign principal, the financial payments to the lobbyist, and the measures undertaken for the foreign principal, among other information. A person required to make such a filing must further make in all lobbying material a “conspicuous statement” that the materials are distributed on behalf of the foreign principal, among other things. The filing thus permits public awareness and evaluation of the activities of a lobbyist who acts as an agent of a foreign power or foreign political party in the United States.

The Manafort indictment then argues that by hiding that the lobbying work they were doing was on behalf of Ukraine’s Party of Regions they, “knowingly and intentionally conspired to defraud the United States by impeding impairing, obstructing, and defeating the lawful governmental functions of a government agency, namely the Department of Justice and the Department of the Treasury.” I’ll have more to say about this parallel in coming days, but suffice it to say that Mueller is alleging that Manafort is the mirror image of the troll farm, engaging in politics while hiding on whose behalf he’s doing it (he was arguably doing the same in Ukraine). [Update: see this post for more on how this might work.]

In both cases, the indictments substantiate the conspiracy by naming a variety of crimes, like money laundering and identity theft.

I suspect we’ll be seeing more of this structure going forward (and suspect it’s something the numerous appellate specialists on Mueller’s team have been spending a lot of time thinking about).

Laying out how Americans might be involved with or without “colluding”

Much has been made of Rosenstein’s line, “There is no allegation in the indictment that any American was a knowing participant in the alleged unlawful activity.” I don’t read too much into that. Rather, I think Rosenstein included it because the indictment does explicitly and implicitly describe actions many Americans and possible Americans took that were part of this conspiracy. That includes:

Illegal compensated acvitities

  • Richard Pinedo: Selling Russian trolls (and others) bank account numbers they can use to conduct identity fraud
  • Unknown persons: Providing social security numbers and fake US drivers licenses of Americans
  • Unknown persons: Selling stolen credit card information

Presumptively legal compensated activities

  • Unknown Americans: Renting servers in the US to run VPNs to hide their foreign location
  • Yahoo, Gmail, Paypal: Providing email and PayPal accounts the Russians used as the basis for social media accounts
  • Twitter, Instagram, Facebook: Providing those social media accounts
  • Twitter, Instagram, Facebook: Selling advertisements on social media
  • Unknown Trump associates: Paying for IRA rally expenses
  • Paid providers: Building a cage, acquiring a costume, and posing as Hillary in prison stunt at a FL event
  • Unknown US person: Providing posters for a Support Hillary, Save American Muslims rally
  • Unknown American: Holding a sign in front of the White House on May 29, 2016

Uncompensated activities

  • Unknown Americans: Interacting with Aleksandra Krylova and Anna Bogacheva when they traveled to the US sometime between June 4 and June 26, 2014 to conduct reconnaissance and another co-conspirator that November
  • Members of the media: Accepting tips and promoting IRA events
  • A member of a real TX-based Tea Party organization: Advising the conspirators to focus on the purple states “like Colorado, Virginia & Florida”
  • Unwitting members, volunteers, and supporters of the Trump Campaign involved in local community outreach, as well as grassroots groups that supported then-candidate Trump: Distributing IRA materials through existing channels of those groups
  • Administrators of large social media groups focused on U.S. politics: Promoting IRA events
  • Trump volunteer: Providing signs for the March for Trump event and otherwise recruiting for it
  • A Florida-based political activist identified as the “Chair for the Trump Campaign” in a particular Florida county: Advising on more locations and logistics for the Florida Trump event
  • Campaign Officials 1, 2, and 3: discussing the Florida events

Later the indictment describes a database of 100 real US persons whom the trolls treated as recruiting targets, complete with profiling.

On or about August 24, 2016, Defendants and their co-conspirators updated an internal ORGANIZATION list of over 100 real U.S. persons contacted through ORGANIZATION-controlled false U.S. persona accounts and tracked to monitor recruitment efforts and requests. The list included contact information for the U.S. persons, a summary of their political views, and activities they had been asked to perform by Defendants and their co-conspirators.

Here’s the important thing about all this. While Pinedo pled guilty and faces 12-18 months even with his cooperation agreement (and even there, while the information makes it clear he knew he was dealing with foreigners, his lawyer has made it clear he didn’t know who or what he was dealing with), there are only two other known illegal roles in this conspiracy, and there’s no reason those roles would have had to be carried out by Americans. Perhaps Mueller has others cooperating, perhaps those other criminals are unknown. But as for the rest, they are (as Rosenstein made clear) not guilty of any kind of conspiracy with Russia.

DOJ just rolled out an indictment in which probably 20 Americans can recognize themselves (many of whom were likely interviewed), about as many as all the Trump officials named in one or another plea agreement so far. Yet, as far as Mueller knows, none of these people did anything but conduct business or engage in sincerely held politics. They almost certainly had far less reason to be suspicious of the trolls they were being used by than Facebook and Twitter. Those actions have been tainted now through no fault of their own.

Which is something to remember: I’ve seen Hillary supporters, in the same breath, criticize Bernie or Jill Stein supporters because their preferred candidate was treated favorably by the trolls, yet in the same breath suggesting the black and Muslim activists targeted are innocent victims.

Obviously, Hillary and her supporters are victims. But everyone is, even the Trump volunteers. Because to the extent they had honestly held beliefs, the Russian operation tainted those beliefs, it diminished the weight of their honestly held beliefs. They were used by Russian trolls, most of them without the same profit motive that led Facebook and Twitter to allow themselves to be used. And we should remember that.

Hinting at what the US has

There are, however, a few tactical things this indictment does, starting with hinting at what other evidence the US has. This indictment was relatively easy, in that Adrian Chen (in a June 2015 article that still gets too little attention), Facebook and (to a lesser extent) other social media outlets, the Daily Beast, and SSCI generally have already laid out what IRA did. The indictment slaps some criminal charges on fraudulent behavior that enabled it, and without showing much about any additional evidence Mueller collected, you’ve got a showy indictment.

There are two hints, however, of the additional evidence used (which, given that the named conspirators will never face trial, will never need to be disclosed or explained). First, in a passage about how IRA started to cover their tracks after Mueller started focusing on this activity, there’s the reference to Irina Kaverzina.

On or about September 13, 2017, KAVERZINA wrote in an email to a family member: “We had a slight crisis here at work: the FBI busted our activity (not a joke). So, I got preoccupied with covering tracks together with the colleagues.”

Kaverzina was just a low-level troll and this may be nothing more than Section 702 collected email off GMail or Yahoo, or it may be a more formal intercept. But Mueller obtained communications from at least one of the indictees. Emails from more senior people, such as Prigozhin or his more senior managers (or the IT guys buying server space in the US) would be more interesting.

Plus, Mueller likely obtained cooperation from one IRA employee, the unnamed person who traveled to Atlanta in November 2014 for reconnaissance. Had that person not cooperated, he or she would have been named in the indictment.

Nevertheless establishing the political stakes

I said above that none of the hundred-plus Americans who were unknowingly used by trolls should be considered anything but victims. Their chosen political views, loathsome or not, have now been tainted, and not because of anything they’ve done except perhaps show too much trust or credulity.

But there are hints that Mueller is using this indictment to set up a more important point.

For example, the indictment (perhaps because of Mueller’s mandate) focuses on political activities supporting or opposing one or another 2016 candidate. Even where topics (immigration, Muslim religion, race) are not necessarily tied to the election, they’re presented here as such. Unless Facebook’s public reports are wrong, this is a very different emphasis than what Facebook has said the IRA focused on. Which is to say that Mueller’s team are focusing on a subset of the known IRA trolling, the subset that involves the 2016 contest between Trump and Hillary.

And there are several events, in particular, that may one day serve as details in a larger conspiracy. Most interesting, for the timing and location, are the twin anti-Hillary and pro-Trump events in NYC in June and July 2016.

In or around June and July 2016, Defendants and their co-conspirators used the Facebook group “Being Patriotic,” the Twitter account @March_for_Trump, and other ORGANIZATION accounts to organize two political rallies in New York. The first rally was called “March for Trump” and held on June 25, 2016. The second rally was called “Down with Hillary” and held on July 23, 2016.

a. In or around June through July 2016, Defendants and their co-conspirators purchased advertisements on Facebook to promote the “March for Trump” and “Down with Hillary” rallies.

b. Defendants and their co-conspirators used false U.S. personas to send individualized messages to real U.S. persons to request that they participate in and help organize the rally. To assist their efforts, Defendants and their co-conspirators, through false U.S. personas, offered money to certain U.S. persons to cover rally expenses.

c. On or about June 5, 2016, Defendants and their co-conspirators, while posing as a U.S. grassroots activist, used the account @March_for_Trump to contact a volunteer for the Trump Campaign in New York. The volunteer agreed to provide signs for the “March for Trump” rally.

[snip]

On or about July 23, 2016, Defendants and their co-conspirators used the email address of a false U.S. persona, [email protected], to send out press releases to over thirty media outlets promoting the “Down With Hillary” rally at Trump Tower in New York City.

The description of a IRA-organized event at Trump Tower the day after WikiLeaks dropped the DNC emails, in particular, suggests the possibility of a great deal of coordination, coordination with people in the US.

Similarly, the extended descriptions of events in Florida may also take on added relevance in the future, particularly coming as they did in tandem with Guccifer 2.0’s release of DCCC data targeting FL. (And this, in turn, should focus even more attention on the FL congressmen like Matt Gaetz and Ron DeSantis who’re leading the pushback on Mueller’s investigation.)

Using the term “co-conspirator” 119 times

Perhaps most interesting, given the tiny nods to what other intelligence Mueller might have, are the 119 uses of the word “co-conspirators.” Almost all of these uses seem to necessarily mean unnamed IRA employees working from the same St. Petersburg location described as trolling. Several times the co-conspirators are clearly described as located in Russia. So it may be that all references to co-conspirators here are just a way to refer to the 70 other people involved in this operation at IRA. But that’s not necessarily the case.

Other uses of “co-conspirator” involve wider knowledge, perhaps an outsider’s knowledge of a go-between role Prigozhin might have had.

But others are things that might have involved a stateside co-conspirator, such as the mention of co-conspirators helping to set up the May 29, 2016 Prigozhin birthday tribute in front of the White House, co-conspirators tracking US social media use, co-conspirators engaged in identity theft, co-conspirators promoting claims of voter fraud, co-conspirators destroying data. Several of those things (such as tracking US social media use or claiming Hillary was going to steal the election) are things we know Trump associates were also doing. Others might be facilitated by someone stateside. So those uses of the term could be people not employed by IRA.

Which is to say, this indictment might be (probably is) intended to address just the activities of those employed by IRA. But that’s not necessarily the case.

Update: added the public indictment part.

New Right Hook: Mike Flynn Lied When He Admitted to a Judge He Lied to the FBI

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Apparently, the latest Grassley-Graham effort to spin a very understandable reaction to the discovery that the incoming National Security Advisor might be compromised by Russia — to have a meeting about whether that requires a change in the government’s investigative approach and then memorialize the meeting — as a Christopher Steele plots is not an isolated event. To accompany the Grassley-Graham effort to obscure, the right wing is now seeing a conspiracy, best captured in this Byron York piece with follow-ups elsewhere, in Mike Flynn’s guilty plea.

At issue is leaked March 2017 testimony from Jim Comey (in a piece complaining about the leak of Flynn’s FISA intercepts) that the FBI agents who interviewed Flynn on January 24, 2017 believed any inaccuracies in Flynn’s interview with the FBI were unintentional.

In March 2017, then-FBI Director James Comey briefed a number of Capitol Hill lawmakers on the Trump-Russia investigation.

[snip]

According to two sources familiar with the meetings, Comey told lawmakers that the FBI agents who interviewed Flynn did not believe that Flynn had lied to them, or that any inaccuracies in his answers were intentional. As a result, some of those in attendance came away with the impression that Flynn would not be charged with a crime pertaining to the Jan. 24 interview.

From that, York spins out a slew of laughable claims: Mike Flynn would have no reason to address the FBI amid swirling coverage of lies about Russian ties! The Deputy Attorney General “sends” FBI agents to conduct interviews! DOJ “effectively gave” Jim Comey authority to decide Hillary’s fate but then fired him for usurping that authority! They lead up to York’s theory that DOJ may have overridden the FBI agents in forcing Flynn to sign a plea admitting he made false statements.

It could be that the FBI agents who did the questioning were overruled by Justice Department officials who came up with theories like Flynn’s alleged violation of the Logan Act or his alleged vulnerability to blackmail.

[snip]

To some Republicans, it appears the Justice Department used a never-enforced law and a convoluted theory as a pretext to question Flynn — and then, when FBI questioners came away believing Flynn had not lied to them, forged ahead with a false-statements prosecution anyway. The Flynn matter is at the very heart of the Trump-Russia affair, and there is still a lot to learn about it.

Along the way, York feigns apparent ignorance of everything he knows about how criminal investigations work.

For example, York pretends to be unaware of all the pieces of evidence that have surfaced since that time that have changed the context of Flynn’s January 24 interview. There’s the weird dinner Trump invited Comey to on January 27, a day after Sally Yates first raised concerns about the interview with White House Counsel Don McGahn, where Trump told Comey “I need loyalty, I expect loyalty.” There’s the more troubling meeting on February 14, where (after asserting that Flynn had indeed lied to Mike Pence) Trump asked Comey to drop the Flynn investigation.

He repeated that Flynn hadn’t done anything wrong on his calls with the Russians, but had misled the Vice President. He then 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.”

There’s the March 30 phone call in which the President complained about the “cloud” of the Russian investigation. There’s the April 11 phone call where the President complained about that “cloud” again, and asked for public exoneration. There’s the newly reported Don McGahn call following that conversation, to Dana Boente asking for public exoneration. There’s Comey’s May 9 firing, just in time for Trump to tell Russians on May 10 that firing that “nut job” relieved pressure on him. There’s the letter Trump drafted with Stephen Miller’s help that made it clear Comey was being fired because of the Russian investigation.

Already by the time of Comey’s firing, the White House claim that Mike Flynn got fired because he lied about his conversations to Sergey Kislyak to Mike Pence, was falling apart.

Then, in August, the Mueller team obtained the transition emails that transition lawyers had withheld from congressional requests (and therefore from Mueller), including those of Flynn himself, Jared Kushner, and KT McFarland. The transition would go on to squawk that these emails, which didn’t include Trump and dated to before Trump became President, were subject to executive privilege, alerting Mueller that the emails would have been withheld because the emails (some sent from Mar-A-Lago) reflected the involvement of Trump. Not to mention that the emails tied conversations about Russia to the “thrown election.”

Then there’s Jared Kushner’s interview with Mueller’s team in the weeks before Mike Flynn decided to plead guilty. At it, prosecutors asked Jared if he had any information that might exculpate Flynn.

One source said the nature of this conversation was principally to make sure Kushner doesn’t have information that exonerates Flynn.

There were reports that Flynn felt like he had been sold out just before he flipped, and I would bet this is part of the reason why. In addition to instructions regarding the sanction calls with Kislyak, which were directed by KT McFarland, Flynn’s statement of offense describes someone we know to be Kushner directing Flynn to call countries, including Russia, to try to persuade them to avoid a vote on Israeli West Bank settlements.

On or about December 22, 2016, a very senior member of the Presidential Transition Team directed FLYNN to contact officials from foreign governments, including Russia, to learn where each government stood on the resolution and to influence those governments to delay the vote or defeat the resolution.

Granted, Mueller’s team didn’t make the point of the lies as obvious as they did with the George Papadopoulos plea, where they made clear Papadopoulos lied to hide that he learned of the “dirt” on Hillary in the form of emails after he started on the campaign and whether he told the campaign about those emails (not to mention that he had contacts with Ivan Timofeev).

Mueller’s not telling us why Flynn’s lies came to have more significance as Mueller collected more and more evidence.

But what they make clear is that the significance of Flynn’s lies was not, as it first appeared, that he was trying to hide the subject of the calls from Mike Pence. I mean, maybe he did lie to Pence about those calls. But discussions about how to work with the Russians were not secret; they included at least Kushner, McFarland, Tom Bossert, Reince Priebus, Steve Bannon, and Sean Spicer. Some of those conversations happened with McFarland emailing while at Mar-A-Lago with the President-Elect.

So given the weight of the evidence collected since, Flynn’s lies now appear neither an effort to avoid incriminating himself on Logan Act charges, nor an effort to cover up a lie he told others in the White House, but the opposite. His lies appear to have hidden how broadly held the Russian discussions were within the transition team, not to mention that he was ordered to make the requests he did, possibly by people relaying orders from Trump, rather than doing them on his own.

That, by itself, doesn’t make the Flynn conversations (as distinct from the lies) illegal. But it means Trump went to great lengths to try to prevent Flynn from suffering any consequences for lying to hide the degree to which negotiations with Russia during the transition period were the official policy of the Trump team. And when Trump (or rather, his son-in-law) stopped protecting Flynn on that point, Flynn decided to admit to a judge that he had been knowingly lying.

It doesn’t take a conspiracy to realize that the FBI Agents who interviewed Flynn in January had none of the evidence since made available largely because Trump tried so hard to protect Flynn that he fired his FBI Director over it. It takes looking at the evidence, which makes it clear why those false statements looked very different as it became clear Flynn, after acting on Trump transition team instructions, got sold out as other senior Trump officials started trying to protect themselves.

On the Grassley-Feinstein Dispute

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In a podcast with Preet Bharara this week, Sheldon Whitehouse had the following exchange about whether he thought Carter Page should have been surveilled. (after 24:30)

Whitehouse: I’ve got to be a little bit careful because I’m one of the few Senators who have been given access to the underlying material.

Bharara: Meaning the affidavit in support of the FISA application.

Whitehouse And related documents, yes. The package.

Bharara: And you’ve gone to read them?

Whitehouse: I’ve gone to read them.

Bharara: You didn’t send Trey Gowdy?

Whitehouse: [Laughs] I did not send Trey Gowdy. I actually went through them. And, so I’ve got to be careful because some of this is still classified. But the conclusion that I’ve reached is that there was abundant evidence outside of the Steele dossier that would have provoked any responsible FBI with a counterintelligence concern to look at whether Carter Page was an undisclosed foreign agent. And to this day the FBI continues to assert that he was a undisclosed Russian foreign agent.

For the following discussion, then, keep in mind that a very sober former US Attorney has read the case against Carter Page and says that the FBI still — still, after Page is as far as we know no longer under a FISA order — asserts he “was” an undisclosed foreign agent (it’s not clear what that past tense “was” is doing, as it could mean he was a foreign agent until the attention on him got too intense or remains one; also, I believe John Ratcliffe, a Republican on the House Judiciary Committee and also a former US Attorney, has read the application too).

With that background, I’d like to turn to the substance of the dispute between Chuck Grassley and Dianne Feinstein over the dossier, which has played out in the form of a referral of Christopher Steele to FBI for lying. In the wake of the Nunes memo theatrics, Grassley released first a heavily redacted version of the referral he and Lindsey Graham sent the FBI in early January, followed by a less-redacted version this week. The referral, even as a transparent political stunt, is nevertheless more substantive than Devin Nunes’ memo, leading some to take it more seriously.  Which may be why Feinstein released a rebuttal this week.

In case you’re wondering, I’m tracking footnote escalation in these documents. They line up this way:

  • 0: Nunes memo (0 footnotes over 4 pages, or 1 over 6 if you count Don McGahn’s cover letter)
  • 2.6: Grassley referral (26 footnotes over 10 pages)
  • 3.6: Schiff memo (36 footnotes, per HPSCI transcript, over 10 pages)
  • 5.4: Feinstein rebuttal (27 footnotes over 5 pages)

So let me answer a series of questions about the memo as a way of arguing that, while by all means the FBI’s use of consultants might bear more scrutiny, this is still a side-show.

Did Christopher Steele lie?

The Grassely-Graham referral says Steele may have lied, but doesn’t commit to whether classified documents obtained by the Senate Judiciary Committee (presumably including the first two Page applications), a declaration Steele submitted in a British lawsuit, or Steele’s statements to the FBI include lies.

The FBI has since provided the Committee access to classified documents relevant to the FBI’s relationship with Mr. Steele and whether the FBI relied on his dossier work. As explained in greater detail below, when information in those classified documents is evaluated in light of sworn statements by Mr. Steele in British litigation, it appears that either Mr. Steele lied to the FBI or the British court, or that the classified documents reviewed by the Committee contain materially false statements.

On September 3, 2017 — a good three months before the Grassley-Graham referral — I pointed to a number of things in the Steele declaration, specifically pertaining to who got the dossier or heard about it when, that I deemed “improbable.”

That was the genius of the joint (!!) Russian-Republican campaign of lawfare against the dossier. As Steele and BuzzFeed and Fusion tried to avoid liability for false claims against Webzilla and Alfa Bank and their owners, they were backed into corners where they had to admit that Democrats funded the dossier and made claims that might crumble as Congress scrutinized the dossier.

So, yeah, I think it quite possible that Steele told some stretchers.

Did Christopher Steele lie to the FBI?

But that only matters if he lied to the FBI (and not really even there). The UK is not about to extradite one of its former spies because of lies told in the UK — they’re not even going to extradite alleged hacker Lauri Love, because we’re a barbaric country. And I assume the Brits give their spooks even more leeway to fib a little to courts than the US does.

The most critical passage of the referral on this point, which appears to make a claim about whether Steele told the FBI he had shared information with the press before they first used his dossier in a Page application, looks like this.

The footnote in the middle of that redacted passage goes to an unredacted footnote that says,

The FBI has failed to provide the Committee the 1023s documenting all of Mr. Steele’s statements to the FBI, so the Committee is relying on the accuracy of the FBI’s representation to the FISC regarding the statements.

1023s are Confidential Human Source reports.

I say that’s the most important passage because the referral goes on to admit that in subsequent FISA applications the FBI explained that the relationship with Steele had been terminated because of his obvious involvement in the October 31, 2016 David Corn story. Graham and Grassley complain that the FBI didn’t use Steele’s defiance of the FBI request not to share this information with anyone besides the FBI to downgrade his credibility rankings. Apparently FISC was less concerned about that than Graham and Grassley, which may say more about standards for informants in FISA applications than Steele or Carter Page.

The footnote, though, is the biggest tell. That’s because Feinstein’s rebuttal makes it quite clear that after Grassley and Graham made their referral, SJC received documents — which, given what we know has been given to HPSCI, surely include those 1023s — that would alter the claims made in the referral.

The Department of Justice has provided documents regarding its interactions with Mr. Steele to the Judiciary Committee both before and after the criminal referral was made. Despite this, the Majority did not modify the criminal referral and pressed forward with its original claims, which do not take into account the additional information provided after the initial January 4 referral.

Feinstein then goes on to state, several times and underlining almost everything for emphasis, that the referral provides no proof that Steele was ever asked if he had served as the source for Isikoff.

  • Importantly, the criminal referral fails to identify when, if ever, Mr. Steele was asked about and provided a materially false statement about his press contacts.
  • Tellingly, it also fails to explain any circumstances which would have required Mr. Steele to seek the FBI’s permission to speak to the press or to disclose if he had done so.

[snip]

But the criminal referral provides no evidence that Steele was ever asked about the Isikoff article, or if asked that he lied.

In other words, between the redacted claim about what Steele said and Feinstein’s repeated claims that the referral presents no evidence Steele was asked about his prior contacts with the press, the evidence seems to suggest that Steele was probably not asked. And once he was, after the Corn article, he clearly did admit to the FBI he had spoken with the press. So while it appears Steele blew off the FBI’s warnings not to leak to the press, the evidence that he lied to the FBI appears far weaker.

Does it harm the viability of the FISA application?

That should end the analysis, because the ostensible purpose of the referral is a criminal referral, not to make an argument about the FISA process.

But let’s assess the memo’s efforts to discredit the FISA application.

In two places, the referral suggests the dossier played a bigger role in the FISA application than, for example, Whitehouse suggests.

Indeed, the documents we have reviewed show that the FBI took important investigative steps largely based on Mr. Steele’s information–and relying heavily on his credibility.

[snip]

Mr. Steele’s information formed a significant portion of the FBI’s warrant application, and the FISA application relied more heavily on Steele’s credibility than on any independent verification or corroboration for his claims. Thus the basis for the warrant authorizing surveillance on a U.S. citizen rests largely on Mr. Steele’s credibility.

These claims would be more convincing, however, if they acknowledged that FBI had to have obtained valuable foreign intelligence off their Page wiretap over the course of the year they had him wiretapped to get three more applications approved.

Indeed, had Grassley and Graham commented on the addition of new information in each application, their more justifiable complaint that the FBI did not alert FISC to the UK filings in which Steele admitted more contact with the press than (they claim) show up in the applications would be more compelling. If you’re going to bitch about newly learned information not showing up in subsequent applications, then admit that newly acquired information showed up.

Likewise, I’m very sympathetic with the substance of the Grassley-Graham complaint that Steele’s discussions with the press made it more likely that disinformation got inserted into the dossier (see my most recently post on that topic), but I think the Grassley-Graham complaint undermines itself in several ways.

Simply put, the more people who contemporaneously knew that Mr. Steele was compiling his dossier, the more likely it was vulnerable to manipulation. In fact, the British litigation, which involves a post-election dossier memorandum, Mr. Steele admitted that he received and included in it unsolicited–and unverified–allegations. That filing implies that implies that he similar received unsolicited intelligence on these matters prior to the election as well, stating that Mr. Steele “continued to receive unsolicited intelligence on the matters covered by the pre-election memoranda after the US Presidential election.” [my underline]

The passage is followed by an entirely redacted paragraph that likely talks about disinformation.

This is actually an important claim, not just because it raises the possibility that Page might be unfairly surveilled as part of a Russian effort to distract attention from others (though its use in a secret application wouldn’t have sown the discord it has had it not leaked), but also because we can check whether their claims hold up against the Steele declaration. It’s one place we can check the referral to see whether their arguments accurately reflect the underlying evidence.

Importantly, to support a claim the potential for disinformation in the Steele dossier show up in the form of unsolicited information earlier than they otherwise substantiate, they claim a statement in Steele’s earlier declaration pertains to pre-election memos. Here’s what it looks like in that declaration:

That is, Steele didn’t say he was getting unsolicited information prior to the election; this was, in both declarations, a reference to the single December report.

Moreover, while I absolutely agree that the last report is the most likely to be disinformation, the referral is actually not clear whether that December 13 report ever actually got included in a FISA application. There’s no reason it would have been. While the last report mentions Page, the mention is only a referral back to earlier claims that Trump’s camp was trying to clean up after reports of Page’s involvement with the Russians got made public. So the risk that the December memorandum consisted partially or wholly of disinformation is likely utterly irrelevant to the validity of the three later FISA orders targeting Page.

Which is to say that, while I think worries about disinformation are real (particularly given their reference to Rinat Akhmetshin allegedly learning about the dossier during the summer, which I wrote about here), the case Grassley and Graham make on that point both miscites Steele’s own declaration and overstates the impact of their argued case on a Page application.

What about the Michael Isikoff reference?

Perhaps the most interesting detail in the Grassley-Graham referral pertains to their obsession with the applications’ references to the September 23 Michael Isikoff article based off Steele’s early discussions with the press. Grassley-Graham claim there’s no information corroborating the dossier (there’s a redacted Comey quote that likely says something similar). In that context, they point to the reference to Isikoff without explaining what it was doing there.

The application appears to contain no additional information corroborating the dossier allegations against Mr. Page, although it does cite to a news article that appears to be sourced to Mr. Steele’s dossier as well.

Elsewhere, I’ve seen people suggest the reference to Isikoff may have justified the need for secrecy or something, rater than as corroboration. But neither the referral nor Feinstein’s rebuttal explains what the reference is doing.

In this passage, Grassley and Graham not only focus on Isikoff, but they ascribe certain motives to the way FBI referred to it, suggesting the claim that they did not believe Steele was a source for Isikoff was an attempt to “shield Mr. Steele’s credibility.”

There’s absolutely no reason the FBI would have seen the need to shield Steele’s credibility in October. He was credible. More troubling is that the FBI said much the same thing in January.

In the January reapplication, the FBI stated in a footnote that, “it did not believe that Steele gave information to Yahoo News that ‘published the September 23 News Article.”

Let’s do some math.

If I’m doing my math correctly, if the FISA reapplications happened at a regular 90 day interval, they’d look like this.

That’d be consistent with what the Nunes memo said about who signed what, and would fit the firing dates of January 30 for Yates and May 9 for Comey, as well as the start date for Rosenstein of April 26 (Chris Wray started on August 1).

If that’s right, then Isikoff wrote his second article on the Steele dossier, one that made it clear via a link his earlier piece had been based off Steele, before the second application was submitted (though the application would have been finished and submitted in preliminary form a week earlier, meaning FBI would have had to note the Isikoff piece immediately to get it into the application, but the topic of the Isikoff piece — that Steele was an FBI asset — might have attracted their attention).

But that’s probably not right because the Grassley-Graham referral describes a June, not July, reapplication, meaning the application would have been no later than the last week of June. That makes the reauthorization dates look more like this, distributing the extra days roughly proportionately:

That would put the second footnote claiming the FBI had no reason to believe the September Isikoff piece was based on Steele before the time when the second Isikoff piece made it clear.

I’m doing this for a second reason, however. It’s possible (particularly given Whitehouse’s comments) Carter Page remains under surveillance, but for some reason it’s no longer contentious.

That might be the case if the reapplications no longer rely on the dossier.

And I’m interested in that timing because, on September 9, I made what was implicit clear: That pointing to the September Isikoff piece to claim the Steele dossier had been corroborated was self-referential. I’m not positive I was the first, but by that point, the Isikoff thing would have been made explicit.

Does this matter at all to the Mueller inquiry?

Ultimately, though, particularly given the Nunes memo confirmation that the counterintelligence investigation into Trump’s people all stems from the George Papadopoulos tip, and not Page (particularly given the evidence that the FBI was very conservative in their investigation of him) there’s not enough in even the Grassley-Graham referral to raise questions about the Mueller investigation, especially given a point I made out in the Politico last week.

According to a mid-January status report in the case against Manafort and his deputy, Rick Gates, the government has turned over “more than 590,000 items” to his defense team, “including (but not limited to) financial records, records from vendors identified in the indictment, email communications involving the defendants, and corporate records.” He and Gates have received imaged copies of 87 laptops, phones and thumb drives, and copies off 19 search-warrant applications. He has not received, however, a FISA notice, which the government would be required to provide if they planned to use anything acquired using evidence obtained using the reported FISA warrant against Manafort. That’s evidence of just how much of a distraction Manafort’s strategy [of using the Steele dossier to discredit the Mueller investigation] is, of turning the dossier into a surrogate for the far more substantive case against him and others.

And it’s not just Manafort. Not a single thing in the George Papadopoulos and Michael Flynn guilty pleas—for lying to the FBI—stems from any recognizable mention in the dossier, either. Even if the Steele dossier were a poisoned fruit, rather than the kind of routine oppo research that Republicans themselves had pushed to the FBI to support investigations, Mueller has planted an entirely new tree blooming with incriminating details.

Thus the point of my graphic above. The Steele dossier evidence used in the Carter Page FISA application to support an investigation into Cater Page, no matter what else it says about the FISA application process or FBI candor, is just a small corner of the investigation into Trump’s people.

 

Are There Other Emails about the June 9 Meeting?

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Something has been bugging me about this NYT story from last week reporting that, in a conference call with Mark Corallo on July 9, 2017 (see the timeline of events below), Hope Hicks told him emails on the June 9, 2016 Trump Tower meeting between Don Jr, Paul Manafort, and Jared Kushner and Natalia Veselnitskaya, Rinat Akhmetshin, Ike Kaveladze, and Rob Goldstone would never come out.

Corallo is planning to tell Mr. Mueller about a previously undisclosed conference call with Mr. Trump and Hope Hicks, the White House communications director, according to the three people. Mr. Corallo planned to tell investigators that Ms. Hicks said during the call that emails written by Donald Trump Jr. before the Trump Tower meeting — in which the younger Mr. Trump said he was eager to receive political dirt about Mrs. Clinton from the Russians — “will never get out.” That left Mr. Corallo with concerns that Ms. Hicks could be contemplating obstructing justice, the people said.

[snip]

In Mr. Corallo’s account — which he provided contemporaneously to three colleagues who later gave it to The Times — he told both Mr. Trump and Ms. Hicks that the statement drafted aboard Air Force One would backfire because documents would eventually surface showing that the meeting had been set up for the Trump campaign to get political dirt about Mrs. Clinton from the Russians.

According to his account, Ms. Hicks responded that the emails “will never get out” because only a few people had access to them.

As the story describes, the emails in question were already prepped (by the lawyers with whom Corallo worked on a day to day basis) to send to Congress, which would have made it really hard for anyone to withhold the emails.

Congress had requested records from Paul Manafort, Mr. Trump’s campaign chairman; Mr. Kushner; and other Trump campaign officials about meetings with Russians. And lawyers had already copied and stamped the emails for delivery to Capitol Hill.

But elsewhere in the story, the NYT admits that even as (or shortly after) that meeting transpired it already had the emails Don Jr released that day and was going to publish them itself.

The younger Mr. Trump ultimately released the emails after being told The Times was about to publish them.

The original story (as well as the second one) described that the meeting was discovered when Kushner disclosed it on one of his many revisions to his security clearance application and in a response from Paul Manafort to congressional inquiries.

The Trump Tower meeting was not disclosed to government officials until recently, when Mr. Kushner, who is also a senior White House aide, filed a revised version of a form required to obtain a security clearance.

[snip]

Manafort, the former campaign chairman, also recently disclosed the meeting, and Donald Trump Jr.’s role in organizing it, to congressional investigators who had questions about his foreign contacts, according to people familiar with the events.

But nothing in that description would mean Congress would have gotten the emails yet, which is where investigative materials normally get leaked to the press (though it’s possible Manafort had already turned them over).

Michael Wolff’s book reports the Bannon suspicion that a Jared aide (presumably Josh Raffel), who was in the initial meeting where Trump forced everyone else to say the June 9 meeting dealt primarily with adoptions, leaked the emails to the NYT.

Indeed, the best guess by many in the West Wing was that the details of the meeting had been leaked by the Kushner side, thus sacrificing Don Jr. in an attempt to deflect responsibility away from themselves.

[snip]

The lawyers, and spokesperson Mark Corallo, had been working to manage this news. But while in Hamburg, the president’s staff learned that the Times was developing a story that had far more details about the meeting—quite possibly supplied by the Kushner side—which it would publish on Saturday, July 8.

But it describes the Jared team as leaking details, not the emails themselves. Plus, it’s hard to see how the emails don’t also implicate Jared, unless he’s going to bank on having left the meeting as his means to defend himself even in light of all the other damning evidence he was willing to chat up Russians later in the year.

Furthermore, given that Jared was an active player in that first meeting, it’s hard to understand how Hicks wouldn’t have known that Jared would have to disclose any emails that involved him personally.

There’s one other detail of note. The NYT makes it clear that the lawyers (and Corallo) in DC were kept out of the loop on the panic on Air Force One and that they didn’t know the NYT was working on a story. Though it’s unclear where the Circa story that those lawyers (and Corallo) did contribute to came from, then, as it feels like an effort to pre-empt the NYT with a friendly outlet.

Significantly, the Circa story is the source of the claim that Trump didn’t know about the meeting that I noted here (which the lawyers are said to have believed, which is why the Trump and his family weren’t consulting with the lawyers).

President Trump was not aware of the meeting and did not attend it, according to the lawyers.

It’s also significant, though, because it adopts the line Paul Manafort seems to have convinced Reince Priebus to adopt, pointing to problems with the dossier and Fusion GPS as a way to discredit the entire investigation.

“We have learned from both our own investigation and public reports that the participants in the meeting misrepresented who they were and who they worked for,” said Mark Corallo, a spokesman for President Trump’s legal team. “Specifically, we have learned that the person who sought the meeting is associated with Fusion GPS, a firm which according to public reports, was retained by Democratic operatives to develop opposition research on the President and which commissioned the phony Steele dossier. ”

“These developments raise serious issues as to exactly who authorized and participated in any effort by Russian nationals to influence our election in any manner,” Corallo said.

I raise all this to highlight two possibilities: that the emails are all that exist, but that they were leaked by someone — Manafort? Bannon? Corallo? — to punish the White House for its first misleading lies about the meeting. Perhaps Gorelick leaked them, which might explain why she stopped representing Jared days later?

But there’s another possibility: that more emails exist, between Don Jr and Rob Goldstone (indeed, we know Goldstone sent follow-up emails involving Vkontakte). Or that there are communications between other players. In which case the release of the current emails might serve to distract from a fuller set that Hicks did succeed in burying.

In any case, not only is Corallo prepping his meeting with Mueller’s team, but Steve Bannon seems intent on meeting with Mueller before HPSCI has an opportunity to run interference with him.

A source familiar with the matter added that Bannon would instead answer all of special counsel Robert Mueller’s questions as part of his investigation.

So whatever particular complaints the Corallo/Kasowitz/Bannon/Priebus crowd has about the way things went down may soon be shared with Mueller.

Early July 7: NYT approaches WH officials and lawyers; WH schedules a conference call w/NYT for next morning.

July 7: Trump chats up Putin at dinner. (Note, whenever Melania decides it’s time to get revenge on Trump for treating her like shit, she can go tell Mueller what she overheard of this conversation.)

July 8, morning: Conference call doesn’t happen. NYT submits 14 questions about the meeting to the WH and lawyers of Trump campaign aides who attended the meeting (do these aides include all of Don Jr, Kushner, and Manafort?); Trump and his aides develop a response on Air Force One, with Hicks coordinating with Don Jr and his lawyer Alan Garten, who were both in NY, via text message.

July 8, afternoon: Jamie Gorelick provides a statement describing his revisions to his security clearance forms.

He has since submitted this information, including that during the campaign and transition, he had over 100 calls or meetings with representatives of more than 20 countries, most of which were during transition. Mr. Kushner has submitted additional updates and included, out of an abundance of caution, this meeting with a Russian person, which he briefly attended at the request of his brother-in-law Donald Trump Jr. As Mr. Kushner has consistently stated, he is eager to cooperate and share what he knows.

July 8, evening: Garten issues a statement in Don Jr’s name stating,

It was a short introductory meeting. I asked Jared and Paul to stop by. We primarily discussed a program about the adoption of Russian children that was active and popular with American families years ago and was since ended by the Russian government, but it was not a campaign issue at that time and there was no follow up. I was asked to attend the meeting by an acquaintance, but was not told the name of the person I would be meeting with beforehand.

July 8, 5PM: NYT publishes story.

July 8, slightly later: Circa publishes different story based on Mark Corallo’s statement, admitting Magnitsky Act discussion.

July 9, morning: Hope Hicks calls Corallo, with Trump in the room, accusing him of trafficking in conspiracy theories. It is this call, according to the NYT, where Hicks said the emails would never come out.

July 9: Don Jr issues a new statement.

After pleasantries were exchanged, the woman stated that she had information that individuals connected to Russia were funding the Democratic National Committee and supporting Mrs. Clinton. Her statements were vague, ambiguous and made no sense. No details or supporting information was provided or even offered. It quickly became clear that she had no meaningful information.

July 14: Jamie Gorelick quits representing Kushner on Russian issues.

July 20: Mark Corallo quits.

July 21: Marc Kasowitz quits.

 

Some lawyers and witnesses who have sat in or been briefed on the interviews have puzzled over Mr. Mueller’s interest in the episode. Lying to federal investigators is a crime; lying to the news media is not. For that reason, some of Mr. Trump’s advisers argue that Mr. Mueller has no grounds to ask the president about the statement and say he should refuse to discuss it.

Remaking the World

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Trying to exercise my way though my inevitable decline

“94…,” he thinks for a moment. “94.7% chance of remission.”
I chuckle. “I’m going to need two more significant figures, at least.”
He laughs as well, but continues “The figure is real…”
“But you can’t apply a statistic to any individual case…,” I interrupt.
“Of course…”
We both have the body language of people who are explaining something to each other that both understand, looking for an exit to the next conversation point.
“I’m also happy to accept ‘high,’ the odds of remission are high,” I say. We both smile.

I am sure this man understands my body well enough that I am willing to place it in his hands. I am going to let him cut my throat, and still, I also know that he can’t understand what he’s proposed doing to my life.

A few minutes after this moment my partner and I walked along the slick streets of Paris, making our way to the train station from south of the Seine. It was dark, but Paris is never dark. It is a riot of lights and colors and people and cars coexisting, but barely.

“I am scared of everything” I loud-whispered to him repeatedly. He got a little in front of me, where he gets when he thinks I might absentmindedly walk into traffic. He listened, and I explained that it wasn’t just that I couldn’t see my future, I couldn’t even imagine it. Whatever sense I had yesterday for who I would be in six months, for who I would be for the rest of my life, it had slipped away as we had walked out of that office. All that was left was a warm, indecipherable fog.

“I am scared of everything.”

I have what they call invisible disability. I’m not in a wheelchair, I have no obvious physical flaws. I turn my head to the right a lot, but it took a neurologist to notice this is not a voluntary motion, not even I had noticed. Everything else about me looks like the average small middle-aged woman.

Inside my skin is a different story. Inside, I am broken in many and fascinating ways. Not very well understood genetic problems, a lifetime of mental and physical scars, pain and blood, sometimes far too much blood, sometimes coming out of the wrong bits of me. All of this is my experience of being me. I promise, I won’t get graphic. I will say this: my digestive system doesn’t work right. My joints are meh. I get a lot of infections. My lungs are iffy, at best. My cycles are unusual. My mind and brain, whatever they are together, can be a slippery customer. But none of these things have made me seek out this man and his scalpel.

The bits where the vertebrae touch — that’s not supposed to be like that.

What has brought me to this office happened eleven years ago. My normal life function had declined, and then, I stopped functioning at all. Not all at once, and I fought it as hard as I could with exercise and good living, which as it turned out was not very hard at all. In the end I couldn’t move much. I had daily migraines. I was bearing unbearable pain and I didn’t know why. There were doctors, and more doctors, and tests, and big humming MRI machines. What had happened was that the vertebrae in my neck and the discs between had started pressing on my spinal cord and the nerves as they left my spine. No one knew why.

My neurologist was a straight talker. When I asked him what had caused this, he waved dismissively. “We usually ask if you’ve been in a car accident, and if you say yes, we say that did it.”
“You don’t know?”
“We don’t know,” he replied.

That was when I began to understand how clinicians see attribution and cause, and even began to agree with them. It doesn’t matter what caused something, unless knowing that helps you fix it. And it wasn’t going to help him fix me. Tell the patient it’s a car accident, and help us move on to the next step.

The thing is, I have that clinician’s instinct myself. I am a fixer. So for me, the next step was figuring out how to fix this problem so I could get my old life back.

That neurologist was a wise man, so he let me go see more doctors, and get more tests, and do more research so that I would be able to hear what he had to tell me next: that there was no fixing this. I would decline inevitably. No one knew how fast or how much, but there was no way to stop this, much less reverse it. Treatments like muscle relaxants and Botox could make my life more comfortable, but this was over. This part of my life was over. I would never sit down with a good book again. I would never do a pull-up. In time, I would not be able to carry groceries home anymore. I could not safely lift a child. I would never again go backpacking. One day, I might not be able to put on a backpack. One day, I might not be able to type anymore. No one could be entirely sure how bad it would get, but it would get bad. Maybe the pain would come and go, but I would not be able to fix this.

In moments like these, you don’t simply adjust a set of routines. Moments like these break who you are. They have to, and you have to let them if you’re going to have any future. I thought about suicide. But in a way, suicide was redundant. The person who would have rather died than have my body already had my body. The future that I had imagined all my life was already dead. What I had now was a stranger’s future, and the job of becoming that stranger. I discovered I had no malice towards this stranger, and proceeded to become her, which sounds so much simpler than it was.

I cried a lot. I spent a lot of time pretending it wasn’t true. I was scared of everything. But bit by bit, over the next two years, I learned to be who I am now. I learned how to let computers read to me. I learned to love the voices of Alex and Ava on my Mac. I pushed myself too far and ended up in bed, or not far enough, and ended up frustrated. I made an unsteady peace with this future. I learned to live again, I learned the grace within pain. I even learned to be happy, to love who I was now, even while I couldn’t love how I got here.

I taught the people around me what I could and couldn’t do. That is how my partner got to know me – different than the other girls he’d known. Free in some ways, but not so much in others. My daughter learned she had to help me if we were going to get certain things done, much sooner than I would have liked. I apologize a lot for this thing that I can’t change.

But things always change anyway. Over the last 18 months, the bad thing got worse. I didn’t understand that for a while, because I didn’t want to. Each unproductive day, every headache, every clenched shoulder, they stood alone. I didn’t put them together. I tried to work harder, pushing through. I spiraled into depression and pain. I went to bed, I got up and tried again. I didn’t want to see it: just try harder, and it will go away. I think now that I thought if I couldn’t see the future, maybe it wouldn’t be here. I messed up commitments, and apologized and hated myself for it. I went to the data to fix myself, like I always do. I started keeping a daily log of how I was doing.

That’s when I couldn’t not see it anymore. The decline they’d promised had come. I had gotten a pretty good decade, but the future was here. I wasn’t so much scared as I was angry and sad. My determination had carried me as far as it could, and it was time to shift again. I started using voice dictation. I started recalibrating everyone’s expectations, including my own, of what I could really get done. I got another neurologist. I admitted that I was sick, and that I wasn’t going to get better. I moved into my life again. There was more lying in big humming MRI machines, scanners, and X-rays.

Then, my new neurologist looked over the images, and referred me to a surgeon. One of the last things a specialist had said to me 11 years ago, as I was leaving his office was, “Well, maybe they’ll invent a prosthetic.” I went and looked it up at the time, and they were working on one, but it wasn’t finished or approved for medical use. I put the whole business out of my mind when I lost my insurance, and didn’t think about it again. I had to spend my energy on learning to be me in a body I hadn’t expected, and I knew counting on future medical research often leads people to disappointment and depression, waiting to live in a future that might never come.

But my neurologist referred me to a surgeon because they had invented a prosthetic. I went to one surgeon. We chatted, little models of spines in hand, gestures at the tiny bones, explanations. I was hesitant. My partner and I talked about it a lot. He found another surgeon, one who had worked on probably a thousand people with my particular disability. We got on a train to Paris under a gray rainy sky. We sat with him, another little model of a spine between us, and we chatted. My eyes flicked between the little delicate bones between us, and the doctor. I glanced sideways to see my partner watching me. The prosthetic is called the Mobi-C, and the doctors are pretty damn sure they can fix me.

And so, on that Monday night, as I wandered across the Seine, thousands of miles and many years from where this story began, my future died again. My identity was breaking again. “I am scared of everything.” I whispered to my partner. “That man doesn’t know what he’s proposed to do to me,” despite the fact that this man was a world expert in what he was proposing to do to me. Who was this me that might read a physical book again? That might go backpacking, do a push-up, dance again? What if I can’t make myself into that person? What if I fail this new future? How could I not fail this future, when I don’t even understand its shape?

Even as I write this, a date is getting set. A hospital stay is being scheduled, paperwork is getting passed around. Sometime soon I will go to Paris again, and lie down on a table. A man will cut my throat carefully, to save me. And in doing so, he will kill me. And I will wake up, in a bed, thousands of miles and many years from where I was born, and I will not know my future, or how to live in it. They invented something, and everything will change for me, again.

I have a meeting today. As I write this, I’m still disabled. Coordinating my hands well enough to type is difficult. When I leave the house to go to my meeting, I will do so as a disabled person. I will carry things strapped to my hip rather than my back. I will cradle my arm so that it doesn’t swing when I walk. Politically, socially, physically, and in my own mind, that’s how I will move through the space between me and my meeting in a few hours.

Is this one of the last meetings I’ll ever go to, as this version of me? My identity is getting ready to change, to die, my mind is trying to prepare, but I don’t know who I’ll be when I have all these new abilities. To move though the world without constant pain, to carry things, to be expected to work and live without the sleepless nights, the instability in my hands, the scraping sounds in my neck. I don’t know how to do that, I’ll have to learn. It’s not what I’ve practiced for most of my adult life, and I’m scared I’ll be bad at it.

I am often amused by the fights over what is called “identity politics.” Identity is the unifying theme of my life’s work, and it’s what I think about every damn day. As someone who can reasonably claim some expertise in how human identity works, trust me when I say: it’s all identity politics. Maybe what people mean by “identity politics” is just being plain about what makes politics, because there are no politics separate from identity. Identity shapes how you move through the world, what you expect from it, and what you expect from yourself and others. The constituents of identity are the building blocks from which we create individualism, or collectivism. It’s where we get class and race, sure, and also taste, morality, custom, and justice. When you construct yourself, you construct the world. I don’t mean in a post modern we-can’t-know-anything kind of way, although that can be part of it. I mean that you pay attention to your world based on the way you see yourself, and that attention, in aggregate, makes the world.

Where your troubles began.

Understanding this can help make sense of the world right now. Our identities are running into our technologies and getting broken by all these new powers we have. If you have never considered yourself someone who might one day speak to millions, you might not craft what you say on social media to cater to an audience of millions. Then, one day, maybe you do find yourself in front of an audience of millions. And if that day comes, your future as you knew it dies, much like mine has and is doing again. In truth, our futures die many times in our lives. Tiny deaths accompanied by futures we don’t know how to live in. We pretend it didn’t happen and push on, or when that fails, we change. Eleven years ago, I changed, losing a future and gaining the identity of a disability. Now, I am facing the loss of that disability, the loss of who I am. I’ll be needing a new identity soon.

Looking around me, I see the flavor of my own anxiety everywhere. We all have access to the bulk of human knowledge now, we can find nearly anyone and speak to them. We can make things appear, and make ourselves disappear, all with an ease that we couldn’t explain to our own great-grandmothers. We can spend our days alone, locked in our houses, listening to the inner thoughts of hundreds of people thousands of miles away. Our thoughts and words make and change the physical world. No wonder we’re so obsessed with wizards and superheroes these days — they describe our lives to us more accurately than our literature does.

Who are we to have these powers? We don’t know what to do with them, who they should belong to. We’re tourists playing at being minor deities, except we don’t get to stop playing; this is our future now. Who do we have to become, now that we have all these new powers? What if we can’t make ourselves into the people worthy and able to use the technologies we invented? What if we fail this future? How could we not fail this future, when we don’t understand what it is?

You are reading this far from where you were born, in an unexpected world, on a device that didn’t exist a decade ago, facing a future none of us know how to live in yet. You are not disabled in a way that you once were, a disability you didn’t know you had is being pried away from you, and you don’t know who you are becoming. We don’t know where we are now, except that it’s many miles from home, and we have to make the future now.

We are scared of everything.

Conversations are from notes or recalled to the best of my ability. They are mostly right, but may not be exact wording. 

My work for Emptywheel is supported by my wonderful patrons on Patreon. You can find out more, and support my work, at Patreon.

On Disinformation and the Dossier

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By all accounts, the House will vote to release the Nunes memo tonight, even while Adam Schiff pushes to release his countering memo at the same time. Perhaps in advance of that, Andrew McCabe either chose to or was told to take leave today until such time as his pension kicks in in mid-March, ending his FBI career.

Since we’re going to be obsessing about the dossier for the next while again, I want to return to a question I’ve repeatedly raised: the possibility that some or even much of the Christopher Steele dossier could be the product of Russian disinformation. Certainly, at least by the time Fusion and Steele were pitching the dossier to the press in September 2016, the Russians might have gotten wind of the project and started to feed Steele’s sources disinformation. But there’s at least some reason to believe it could have happened much sooner.

Former CIA officer Daniel Hoffman argues the near misses are a mark of Russian disinformation

A number of spooks had advanced this idea in brief comments in the past. Today, former CIA officer Daniel Hoffman makes the arguement at more length at WSJ.

There is a third possibility, namely that the dossier was part of a Russian espionage disinformation plot targeting both parties and America’s political process. This is what seems most likely to me, having spent much of my 30-year government career, including with the CIA, observing Soviet and then Russian intelligence operations. If there is one thing I have learned, it’s that Vladimir Putin continues in the Soviet tradition of using disinformation and espionage as foreign-policy tools.

Hoffman points to what I consider the dossier’s abundance of near-misses (such as events involving the correct person in the wrong place or time) on correct information to back his case.

The pattern of such Russian operations is to sprinkle false information, designed to degrade the enemy’s social and political infrastructure, among true statements that enhance the veracity of the overall report. In 2009 the FSB wanted to soil the reputation of a U.S. diplomat responsible for reporting on human rights. So it fabricated a video, in part using real surveillance footage of the diplomat, that purported to show him with a prostitute in Moscow.

Similarly, some of the information in the Steele dossier is true. Carter Page, a Trump campaign adviser, did travel to Moscow in the summer of 2016. But he insists that the secret meetings the dossier alleges never happened. This is exactly what you’d expect if the Kremlin followed its usual playbook: accurate basic facts provided as bait to convince Americans that the fake info is real.

John Sipher, in our joint interview with Jeremy Scahill admitted such a thing was possible, though that the dossier still tied the hack to “collusion.”

The Russians are the best in the world at this disinformation and deception. I don’t think, based on what we saw in the June, the first of his reports, that the Russians would have controlled all of those sources and controlled that whole narrative. It just doesn’t seem to make sense to me. And if in fact they did control the information that was given to Mr. Steele at that time, you have to wonder what was the point. If they were trying to send a message that they had compromising information on Mr. Trump, that might be that they wanted Mr. Trump to know what they had so he would act accordingly. In terms of using kompromat you don’t have to go to the person and make the quid pro quo, you just have to let them know that you have the information and they’ll do the right thing. So, I do agree, as time went by, and as she mentioned, for example, that what GPS Fusion information had in the connections they had there’s, it’s certainly possible that the Russians could have come across some of these sources and provided disinformation especially as time went by. I don’t think that that’s out of the realm of possibility.

Nevertheless Sipher argued in response to Hoffman that the content of the dossier would rule against it being disinformation.

[Hoffman] did not address the content. If was disinformation, it was designed to hurt Trump.

The content of the dossier would have led Democrats to be complacent about the hacking

But I can think of several ways the information in the dossier, if it was disinformation, would help Trump. I have already noted how, if Democrats had used the intelligence provided by Steele in the very earliest reports in the dossier to gauge the risk posed by the hack, they would have been lulled into complacency, because Steele’s first reports clearly said any kompromat the Russians wanted to dump was old intercepts from Hillary’s trips to Russia, and even Steele’s first report after the WikiLeaks dump would not only not confirm Russia was behind the release, but would also contradict a year of public reporting on APT29 to claim that Russia had not had success breaching targets like the State Department and Hillary.

On June 20, Perkins Coie would have learned from a Steele report that the dirt Russia had on Hillary consisted of “bugged conversations she had on various visits to Russia and intercepted phone calls rather than any embarrassing conduct.” It would also have learned that “the dossier however had not yet been made available abroad, including to TRUMP or his campaign team.”

On July 19, Perkins Coie would have learned from a Steele report that at a meeting with a Kremlin official named Diyevkin which Carter Page insists didn’t take place, Diyevkin “rais[ed] a dossier of ‘kompromat’ the Kremlin possessed on TRUMP’s Democratic presidential rival, Hillary CLINTON, and its possible release to the Republican’s campaign team.” At that point in time, the reference to kompromat would still be to intercepted messages, not email.

On July 22, Wikileaks released the first trove of DNC emails.

On July 26 — days after Russian-supplied emails were being released to the press — Perkins Coie would receive a Steele report (based on June reporting) that claimed FSB had the lead on hacking in Russia. And the report would claim — counter to a great deal of publicly known evidence — that “there had been only limited success in penetrating the ‘first tier’ foreign targets.” That is, even after the Russian hacked emails got released to the public, Steele would still be providing information to the Democrats suggesting there was no risk of emails getting released because Russians just weren’t that good at hacking.

In fact, in his testimony to the House Intelligence Committee, in one of the few instances in either congressional appearance where he admitted that Steele was hired at almost precisely the same moment the Democrats were trying to get the FBI to make a public statement attributing the hack to Russia, Glenn Simpson explained that the Democrats did use Steele’s intelligence to “manage” the aftermath of the hack.

MR. SIMPSON: Well, this was a very unusual situation, because right around the time that the work started, it became public that the FBI suspected the Russians of hacking the DNC. And so there was sort of an extraordinary coincidence. It wasn’t really a coincidence but, you know, our own interest in Russia coincided with a lot of public disclosures that there was something going on with Russia.

And so what was originally envisioned as an original — as just a sort of a survey, a first cut of what might be — whether there might be something interesting about Donald Trump and Russia quickly became more of an effort to help my client manage a, you know, exceptional situation and understand what the heck was going on.

I also think it’s creepy that Guccifer 2.0 promised what he called a dossier on Hillary on the same day Steele delivered his first report, June 20, and delivered documents he claimed to be that dossier the next day.

There are multiple ways the Russians may have learned of the Steele dossier

Hoffman lays out a number of the reasons I believe Steele’s production process might have been uniquely susceptible to discovery.

There are three reasons the Kremlin would have detected Mr. Steele’s information gathering and seen an opportunity to intervene. First, Mr. Steele did not travel to Russia to acquire his information and instead relied on intermediaries. That is a weak link, since Russia’s internal police service, the FSB, devotes significant technical and human resources to blanket surveillance of Western private citizens and government officials, with a particular focus on uncovering their Russian contacts.

Second, Mr. Steele was an especially likely target for such surveillance given that he had retired from MI-6, the British spy agency, after serving in Moscow. Russians are fond of saying that there is no such thing as a “former” intelligence officer. The FSB would have had its eye on him.

Third, the Kremlin successfully hacked into the Democratic National Committee. Emails there could have tipped it off that the Clinton campaign was collecting information on Mr. Trump’s dealings in Russia.

I’d flesh out another, one the Republicans have been dancing close to for the last year. Because Fusion GPS did business with both the Democrats and, via Baker Hostetler, anti-Magnitsky lobbyists Natalia Veselnitskaya and Rinat Akhmetshin at the same time, it created a second source via which the Russians might learn that Hillary had a dossier. In addition to Simpson himself,  Fusion researcher Edward Baumgartner also worked with both Baker Hostetler and the Democrats at the same time. Simpson tried to minimize the overlap and the possibility for revealing the dossier, especially in his Senate testimony.

Q. We had talked about work for multiple clients. What steps were taken, if any, to make sure that the work that Mr. Baumgartner was doing for Prevezon was not shared across to the clients you were working for with regard to the presidential election?

A. He didn’t deal with them. He didn’t deal with the clients.

But the publicly released financial data shows a clear overlap in those projects and Baumgartner’s comments to BI show he worked quite closely with Veselnitskaya.

Baumgartner, a fluent Russian speaker, said he was hired by Fusion to serve as “an interface” with Veselnitskaya, who does not speak much English. They worked “very closely” together in Washington and Moscow, Baumgartner said, reviewing documents and finding witnesses who could bolster Prevezon’s case.

Simpson attended a dinner in DC on June 10, attended by both Veselnitskaya and Akhmetshin, in the aftermath of the Trump Tower meeting at which (per Simpson) “we had drinks before;” Baumgartner’s vague memory suggests he did too. When asked if Baumgartner knew Akhmetshin, which is virtually certain, Simpson said, “I don’t know.” So there were at least opportunities where people working on both campaigns might have disclosed details about the project for the Democrats (though both Simpson and Baumgartner said Baumgartner didn’t know about the Steele part of the project).

One other detail makes it more likely that Russians succeeded in planting at least some disinformation: both Luke Harding (who worked closely with Steele on his book) and Simpson describe Steele’s sources drying up as the focus on Trump’s ties to Russia grew. Simpson’s statement on this grossly understates (as he often does) how much focus there already publicly was on the Russian hack by the time he hired Steele.

So, you know, when Chris started asking around in Moscow about this the information was sitting there. It wasn’t a giant secret. People were talking about it freely. It was only, you know, later that it became a subject of great controversy and people clammed up, and at that time the whole issue of the hacking was also, you know, not really focused on Russia. So these things eventually converged into, you know, a major issue, but at the time it wasn’t one.

So if Steele’s regular sources were drying up, it makes it far more likely any new ones would be easy to compromised.

Russians seem to have planned to use the dossier to discredit the investigation — just as they are using it

Finally, I want to turn to another reason why I think parts of this may be disinformation. At least two of the reports — the Alfa Bank report (which was pretty clearly a feedback loop on another dodgy story) and the depiction of what should have been the Internet Research Association but was instead targeted at Webzilla, seem custom made to prepare the kind of lawfare that has discredited the dossier. Indeed, Alfa Bank and Webzilla’s owners both sued, suggesting they feel like they can survive discovery.

Look, now, at this detail from the letters Chuck Grassley sent out to the DNC, its top officials, and the Hillary campaign, and its top officials, trying to find out how much they knew about and used the dossier. Grassley also asks for any communications to, from, or relating to the following (I’ve rearranged and classified them).

Fusion and its formal employees: Fusion GPS; Bean LLC; Glenn Simpson; Mary Jacoby; Peter Fritsch; Tom Catan; Jason Felch; Neil King; David Michaels; Taylor Sears; Patrick Corcoran; Laura Sego; Jay Bagwell; Erica Castro; Nellie Ohr;

Fusion researcher who worked on both the Prevezon and Democratic projects: Edward Baumgartner;

Anti-Magnitsky lobbyists: Rinat Akhmetshin; Ed Lieberman;

Christopher Steele’s business and colleagues: Orbis Business Intelligence Limited; Orbis Business International Limited.; Walsingham Training Limited; Walsingham Partners Limited; Christopher Steele; Christopher Burrows; Sir Andrew Wood,

Hillary-related intelligence and policy types: Cody Shearer; Sidney Blumenthal; Jon Winer; Kathleen Kavalec; Victoria Nuland; Daniel Jones;

DOJ and FBI: Bruce Ohr; Peter Strzok; Andrew McCabe; James Baker; Sally Yates; Loretta Lynch;

Grassley, like me, doesn’t believe Brennan was out of the loop either: John Brennan

Oleg Deripaska and his lawyer: Oleg Deripaska; Paul Hauser;

It’s the last reference I’m particularly interested in.

When Simpson talked about how the dossier got leaked to BuzzFeed, he complains that, “I was very upset. I thought it was a very dangerous thing and that someone had violated my confidences, in any event.” The presumed story is that John McCain and his aide David Kramer were briefed by Andrew Wood at an event that Rinat Akhmetshin also attended, later obtained the memo (I’m still not convinced this was the full memo yet), McCain shared it, again, with the FBI, and Kramer leaked it to Buzzfeed.

But Grassley seems to think Russian oligarch Oleg Deripaska was in on the loop of this. Deripaska is important to this story not just for because he owns Paul Manafort (he figures heavily in this worthwhile profile of Manafort). But also because he’s got ties, through Rick Davis, to John McCain. This was just rehashed last year by Circa, which has been running interference on this story.

There is a report that Manafort laid out precisely the strategy focusing on the dossier that is still the main focus of GOP pushback on the charges against Trump and his campaign (and Manafort).

It was about a week before Trump’s inauguration, and Manafort wanted to brief Trump’s team on alleged inaccuracies in a recently released dossier of memos written by a former British spy for Trump’s opponents that alleged compromising ties among Russia, Trump and Trump’s associates, including Manafort.

“On the day that the dossier came out in the press, Paul called Reince, as a responsible ally of the president would do, and said this story about me is garbage, and a bunch of the other stuff in there seems implausible,” said a personclose to Manafort.

[snip]

According to a GOP operative familiar with Manafort’s conversation with Priebus, Manafort suggested the errors in the dossier discredited it, as well as the FBI investigation, since the bureau had reached a tentative (but later aborted) agreement to pay the former British spy to continue his research and had briefed both Trump and then-President Barack Obama on the dossier.

Manafort told Priebus that the dossier was tainted by inaccuracies and by the motivations of the people who initiated it, whom he alleged were Democratic activists and donors working in cahoots with Ukrainian government officials, according to the operative.

If Deripaska learned of the dossier — and obtained a copy from McCain or someone close to him — it would make it very easy to lay out the strategy we’re currently seeing.

Update: Welp, here’s why Grassley wants to know who among the Democrats spoke with Cody Shearer.

The FBI inquiry into alleged Russian collusion in the 2016 US presidential election has been given a second memo that independently set out many of the same allegations made in a dossier by Christopher Steele, the British former spy.

The second memo was written by Cody Shearer, a controversial political activist and former journalist who was close to the Clinton White House in the 1990s.

[snip]

The Shearer memo was provided to the FBI in October 2016.

It was handed to them by Steele – who had been given it by an American contact – after the FBI requested the former MI6 agent provide any documents or evidence that could be useful in its investigation, according to multiple sources.

The Guardian was told Steele warned the FBI he could not vouch for the veracity of the Shearer memo, but that he was providing a copy because it corresponded with what he had separately heard from his own independent sources.

Among other things, both documents allege Donald Trump was compromised during a 2013 trip to Moscow that involved lewd acts in a five-star hotel.

Why Did Trump Tweet an “In the Ball Park” Accurate Number for Hillary’s Total Staffers on June 9, 2016?

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In this post, I showed how the George Papadopoulos filings suggest there was a signaling process that went on during 2016, as he and other staffers sent public signals to the Russians that may have suggested further commitment to a deal of some kind. In this post, I laid out a bunch of circumstantial evidence suggesting that the current, public story about the June 9, 2016 meeting is just a limited hangout, one that hides more damning details about what happened after Natalia Veselnitskaya and Rinat Akhmetshin left the meeting. I also examined the first Guccifer 2.0 documents and noted that, in addition to responding to and debunking the June 14 WaPo story, they might serve well to lay out (arguably, to oversell) the breadth of what the Russians had stolen.

With those details in mind, I want to return to a detail many others have already noted, Donald Trump’s tweet, just 40 minutes after the Trump Tower meeting started, referencing Hillary emails (albeit the ones she deleted off her server, not the still secret stolen ones).

Given that George Papadopoulos seemed to treat other public statements from the campaign (most notably Trump’s April 27 foreign policy speech) as signals to the Russians the campaign was prepared to take the next step, could this tweet be the same? A response, seemingly from the candidate himself, accepting a deal presented in the meeting?

The tweet may have involved one or another of the campaign’s data guys

Mind you, as Pseudonymous in NC noted, the tweet was done on an iPhone — this is the period from before Trump had switched to iPhones — meaning someone else, perhaps either Brad Parscale or Dan Scavino, tweeted it. PINC lays out reasons either one of Trump’s data guys might be of particular interest:

Per the Bloomberg pre-election “bunker” story, Parscale was one of the few with credentials to the boss’s account. Pre-written tweets during events like the debates went through the web client, but my guess is that Scavino and Parscale represent most of the ‘Twitter for iPhone’ tweets in 2016 and early 2017. Some of them are RTing Scavino’s personal account, and Caddy Dan is that kinda guy. Parscale has consistently used an iPhone, including the June 8th photo from the Tower.

Remember that Feinstein is interested in Scavino’s contacts with, er, VKontakte, and that’s before considering Parscale’s data op. Pretty much everything tweeted out during 2016 that relates to the specifics of hacked emails is sent from an iPhone.

And the intermediary for the VK connection was Goldstone, going back to January 2016. It’s interesting that neither Scavino nor Parscale have apparently been called in for chats with investigators, or if they have, we haven’t heard about it.

[snip]

What I’m thinking is that if there was indeed an after-meeting about “dirt in the form of emails”, Scavino or Parscale may have been brought into the room. And Goldstone had been put in touch with Scavino earlier that year.

This story revealing Goldstone’s communications about his role in brokering the VK contact doesn’t support the possibility that one of the data guys was brought into the room. Rather, Goldstone’s emails suggest he discussed the idea with Don Jr and Paul Manafort, presumably on June 9, but that Scavino was not included in the meeting, even though he had been looped in during earlier discussions about it.

The newly disclosed emails show that Goldstone was in contact with the campaign about two weeks after visiting Trump Tower.

“I’m following up on an email [from] a while back of something I had mentioned to Don and Paul Manafort during a meeting recently,” Goldstone wrote to Scavino on June 29. Goldstone wrote that his client, Emin Agalarov, and a “contact” at VK wanted to create a “Vote Trump 2016” promotion.

“At the time, Paul had said he would welcome it, and so I had the VK folks mock up a basic sample page, which I am resending for your approval now,” Goldstone wrote. “It would merely require Mr. Trump to drop in a short message to Russian-American voters or a generic message, depending on your choice, and the page can be up and running very quickly.”

In any case, the discussion about VK is yet another detail that makes it pretty likely Goldstone, at least, arrived early or stayed after Natalia Veselnitskaya and Rinat Akhmetshin left (in the WaPo story on this, Scott Balber denies VK came up at any meeting Ike Kaveladze attended).

One other possibility for who sent that Tweet, though: It would not be surprising if Don Jr had access to Pop’s account. At least recently, he has alternated between an iPhone and the web client to send his own tweets, so it’s possible any tweets he sent on Dad’s behalf would also be from an iPhone.

Where’s Trump get that number, 823? And why’d he use it?

But I’m at least as interested in why Trump (or rather, Scavino or Parscale or Don Jr) used the number “823” in the tweet. In the aftermath of the John Sipher interview Jeremy Scahill did, Sipher suggested to me might be some kind of signal, a code; he’s the pro–maybe he’s right.

But I was wondering whether it might, instead, reflect real-time knowledge of the Hillary campaign’s finances and resources. That is, I wondered whether that number might have, itself, reflected the sharing of some kind of data that could verify the Russians had compromised Hillary’s campaign (or at least researched it substantively enough to know more than the Trump camp did). The public use of the number, then, might serve as a signal that that message, and the inside data, had been received.

While the specific number is difficult to check, I’ve been told the 823 number would have been at least “in the ball park” of the real number of Hillary’s campaign staffers on June 9, 2016.

Politico’s analysis of the Hillary campaign’s May 20 FEC filing showed Hillary had 732 staffers at the time of the report. The day after the June 9 meeting, Philip Bump did a story comparing Hillary and Trump’s staffing (a slew of such stories in the weeks after the June 9 meeting was one reason Corey Lewandowski got replaced as campaign manager), referencing the tweet. But his analysis reflected the month’s long lag in FEC filings. Without doing cleanup (to figure out who got paid that frequently, whether anyone got paid monthly rather than bi-monthly), Clinton’s FEC filings seem to show 587 individual payroll disbursements at her headquarters on June 15, 2016.

I talked to a couple of people on the campaign who remember thinking about the tweet, and its use of the 823 number, in real time. Someone who was working on responding to such issues told me he thought, when the tweet came out, that it might have been just a guess (though now thinks it might come from misreading a report). But another Hillary staffer described taking note of the specific number in real time. That person did about 10 minutes of follow-up at the time, checking real-time FEC filings, and concluded that it might be an accurate number. Between headquarters staff, working (policy) teams, advance, and field staff, the person believes the 823 number could very well represent a close to real number of staffers Hillary had “working” on her campaign.

Of course, none of this would mean the number came from the Russians. Such estimates are done by (competent) political campaigns all the time. So it could have come from Trump’s data people — the same people who could have tweeted the tweet in Trump’s name — itself.

That said, in none of the other Trump tweets using the 30,000 or the 33,000 email number does he include a similarly specific detail — the closest comparison is one invocation of Chelsea’s wedding. Note, too, just one other of those tweets also came from an iPhone — the equally suspicious one on July 27, 2016 asking Russia to release those emails (though one of the others came from the web client).

One more point on the number: That night, at 8:22PM ET, someone on Reddit’s The_Donald thread posted, “Hillary has a staggering 823 staffers on her campaign; Donald Trump  has over 142,000.” Best as I understand it, the comment was almost immediately removed by moderators. I find that worth noting.

The Government Built Its Criminal Case against MalwareTech Off Incidental Collection

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The government has responded to MalwareTech’s (Marcus Hutchins) demand for more evidence by refusing everything. Along the way, they reveal that the bulk of the case against Hutchins arises from him being incidentally collected off two other criminal suspects, Tran (his co-defendant) and Randy (an informant who provided testimony against him in conjunction with his own criminal exposure).

Twenty-somethings claiming they’re not drunk occifer

As for rebuttals of the points made in his demand, the government has two rebuttals as to the substance of Hutchins’ argument, versus the law. First, they claim that Hutchins told the FBI he wasn’t drunk when they arrested him, contrary to the claim made to support a demand for materials on the surveillance of him leading up to his arrest.

Before the interview started, Hutchins told agents that he was not under the influence of alcohol.

Apparently they made a separate 302 (of unknown date) to memorialize their claim he told them he wasn’t drunk.

In addition to those materials, the government recently disclosed an additional FBI 302 report memorializing the defendant’s statement that he was not under the influence of alcohol at the time of his arrest,

The filing also reveals that there are,

two reports detailing limited surveillance of the defendant on July 26, 2017, and August 2, 2017.

Note, while August 2 is the day Hutchins left Las Vegas, the 26th was not the day he arrived; that was July 21. So they conducted surveillance of him on at least one day while he was in the US hanging out with other hackers at Black Hat, but won’t tell him if they conducted surveillance on the other days.

The government’s “intentional” fuckups may lead to superseding indictments

The government seems to cede Hutchins’ suggestion that it flubbed the language on “intention” versus “knowledge” on at least one and maybe a second charge against him.

Hutchins claims that the indictment is defective because Count Two of the indictment states that the defendant acted “knowingly” instead of “intentionally.” 3 Likewise, despite the fact that Count Six charges an attempt, Hutchins argues Count Six fails to allege that defendant “intentionally” attempted to cause damage to a protected computer.4 This, however is not an allegation of “error in the grand jury proceedings” under Rule 12(b)(3)(A)(v). It is an allegation of a defect in the indictment under Rule 12(b)(3)(B)(v). Thus, if Hutchins truly believes Counts Two and Six are facially defective, he can file a motion dismiss those counts under Rule 12(b)(3)(B)(v).

3 Count Two appears to contain a drafting error because Counts Three and Four, which also allege violations of 18 U.S.C. § 2512, state that the defendant acted “intentionally” rather than “knowingly.” This further undermines Hutchins’ speculation that the grand jury was erroneously instructed.

4 According to Seventh Circuit jury instructions, an attempt means to take a substantial step towards committing the offense, with the “intent to commit the offense.” Therefore, because Count Six is charged as an attempt to violate section 1030, including the word “intentionally” before “attempted” would be unnecessary and redundant.

But they generously offer to fix that problem in a superseding indictment.

The government has already explained to the defense that it will likely seek a superseding indictment in this case. That superseding indictment would address any possible drafting errors noted by the defense.

Given that elsewhere they say the informant, Randy, who provided information against Hutchins, discussed “involvement in creating the Kronos banking Trojan, among other criminal conduct” [my emphasis] with him in online chats, they seem to be suggesting that if the defense makes too big a deal about this they’ll add charges against Hutchins.

Incidentally collected defendants get nothing

Perhaps most interesting, this filing demonstrates the degree to which Hutchins’ prosecution stems from his incidental collection in investigative efforts targeting Tran and Randy. In fact, precisely because he was incidentally collected and not personally targeted, the government claims it doesn’t have to provide affidavits that might explain how — and more importantly, why — they decided to arrest Hutchins.

For example, the government argues Hutchins can’t have the MLAT requests, which are used to ask other countries to provide information for a criminal prosecution. In this case, MLATs obtained  information on Tran, the guy who sold the Kronos malware Hutchins is alleged to have helped write. The government refuses to hand these over, in part, because they don’t get signed by FBI Agents, but instead get signed by lawyers.

Here, the defendant relies on Rule 16(a)(1)(E)(i) in seeking disclosure of MLATs and search warrant applications. But that Rule is inapplicable. With regard to MLATs, they are not signed or attested to by law enforcement agents. Instead, they are signed by an attorney representing the United States. Information received in response to an MLAT that is subject to disclosure under Rule 16 has been, and will continue to be, turned over to the defense in this case. Indeed, the defendant acknowledges that he has received materials responsive to an MLAT request. Doc. #44 at 17. The MLAT request itself, however, is not subject to production. In fact, MLAT requests (rather than the responsive materials) are explicitly excluded from production under Rule 16(a)(2).

Moreover, because the MLAT was targeted at Hutchins’ co-defendant, and not him, he doesn’t get it.

Moreover, the MLAT request submitted in this case related to Hutchins’s codefendant and not Hutchins. As noted above, the government has disclosed materials received in response to the MLAT, but the MLAT itself is not subject to production under Rule 16, Giglio, Brady, or § 3500.

There is one still undisclosed search warrant affidavit in the case. But because that was used to incriminate Randy, the informant, Hutchins won’t get that either.

With regard to search warrant materials, the government has explained to Hutchins that no search warrants were executed that focused on Hutchins’ activities. There was a search warrant executed in an unrelated case that revealed statements made by Hutchins to CS-1, and those statements were turned over in discovery under Rule 16. But, there is no authority supporting the production of that search warrant affidavit or other documents relating to that warrant. The warrant was executed at a residence in the United States and did not involve Hutchins’ property or privacy interests. The affidavit is not subject to disclosure under 18 U.S.C. § 3500 because it was made in connection with an unrelated investigation. Given the separation between this case and the other investigation, the government does not believe at this time that the affiant’s statements in the affidavit supporting that warrant “relate to the subject matter of the testimony” to be presented in this case. 18 U.S.C. § 3500.

The government seems pretty lackadaisical towards Hutchins’ co-defendant

The government’s unwillingness to turn over information on the other alleged criminals in this case is particularly interesting given how uninterested they seem in him. The filing reveals that someone working undercover for the FBI did have discussions with Tran about Kronos (again, this is malware that had no significant US victims in the form Hutchins is alleged to have been involved in it), and they collected postings on it off the Darkode forum.

In support of this request, Hutchins asserts that such items “must be material to preparing Mr. Hutchins’ defense” because the indictment alleges a conspiracy; that “the government may be withholding information that could exculpate Mr. Hutchins”; and that he has a right to “locate the codefendant.” Doc. #44 at 8-9. Because the government has disclosed information relating to the codefendant, and there is no authority supporting the defendant’s request for additional information, his motion to compel the production of this information should be denied.

Of note, Hutchins’ codefendant has not yet been arrested in connection with this case. And, the government has disclosed certain information relating to the codefendant to Hutchins. This includes (1) the codefendant’s name; (2) materials responsive to an MLAT request that included a redacted copy of the codefendant’s passport; (3) undercover chats between the codefendant and the FBI related to the marketing, sale, and distribution of Kronos; and (4) various Internet postings related to Kronos that are attributable to one of the aliases used by the codefendant, including on the now shuttered Darkode forum.

But the government hasn’t obtained any information about the other things Tran was selling on dark markets.

Hutchins’ speculation that “the government must be withholding substantial additional information in its possession,” including information that may show the codefendant acted independently of Hutchins, is not supported. Doc. #44 at 8. While it might be true that the codefendant was involved in criminal activity in addition to distributing Kronos with Hutchins, the government is not suppressing that information. It simply does not possess such information. If additional records in the government’s possession are identified and deemed material, the government will provide those records to the defendant.1

That suggests he’s not really the target here.

More interesting still, the government claims it hasn’t yet identified any records from its AlphaBay seizure pertaining this malware they claim is so important they’ve arrested the guy who stopped the WannaCry malware attack.

1 In his motion, Hutchins states that “the government likely has records of the codefendant’s activities on AlphaBay.” Doc. #44 at 9. The government is still pursing information from the AlphaBay marketplace, but it has not yet located any materials subject to disclosure.

It seems virtually impossible that they wouldn’t find information in the seized servers,  if it was, at all, a priority. Which seems to suggest the opposite — not finding anything — may be a priority.

By providing evidence that suggests the government simply isn’t all that interested in Tran (if, as his name suggests, he’s Vietnamese, he may be beyond any extradition treaty), the government dismisses the possibility that Hutchins or his friends could find Tran (not an unreasonable possibility, because that’s how hackers roll).

[Hutchins] told agents that he knew his codefendant only by various online aliases; his dealings with his codefendant were all online; and he has never met his codefendant in person or even seen a photograph of the codefendant. It therefore makes no sense for Hutchins to claim that, if provided the requested “materials and communications,” he will be able to locate the fugitive codefendant and obtain exculpatory information from that individual.

But along the way, this prevents Hutchins from arguing that this case is all trumped up to go after him, for some reason.

Hiding Randy and the carding charges he’s working off

More interesting, still, the government is going to some lengths to hide Randy, the informant they call CS-1 who provided information on Hutchins.

The list of what they have provided in discovery provides some outline of how they got to Randy.

In reality, the government has produced the following materials related to CS-1: (1) A redacted proffer letter between the government and CS-1; (2) undercover chats between a government cooperator and CS-1 regarding the sale of stolen credit card numbers; (3) chats between CS-1 and Hutchins regarding Hutchins’ involvement in creating the Kronos banking Trojan, among other criminal conduct; and (4) a redacted FBI 302 report (which Hutchins refers to in his motion) memorializing a FBI interview of CS-1 regarding Hutchins and others.

It seems that a third part (the “government cooperator,” who himself may be an informant working off criminal charges) provided the FBI chats showing discussions with Randy of carding activity. This led to the FBI to go after Randy. He, in turn, made a proffer to the government offering to cooperate, presumably in exchange for leniency in his own case. That led to an interview with the FBI where Randy provided information on Hutchins “and others.”

Note that the government doesn’t tell us when all this happened?

The government argues that Randy is a mere tipster who wasn’t (yet) being controlled by the FBI at the time, and so they won’t have to let Hutchins question Randy about these underlying circumstances unless they put Randy on the stand, even though they concede he might (as someone working off his own criminal exposure) might actually be a transactional witness.

CS-1’s position in this case is more of a like a “mere tipster” than a transactional confidential informant. Hutchins sent a copy of the Kronos malware to CS-1 in 2015, but CS-1 was not acting as an agent for the government at that time. If the government called CS-1 as a witness at trial, his/her primary role would be to testify about the third-party admissions Hutchins made during chats with CS-1. Even if the Court found CS-1 acted more like a transactional witness, that finding does not automatically justify disclosure of CS-1’s identity. United States v. McDowell, 687 F.3d 904, 911 (7th Cir. 2012). The defendant would still need to establish that knowing CS-1’s identity is “relevant and helpful to his defense or is essential to a fair determination of a cause,” Wilburn, 581 F.3d at 623. Here, his request for disclosure of CS-1’s identity is based on speculation, which is insufficient. See Valles, 41 F.3d at 358 (“The confidential informant privilege ‘will not yield to permit a mere fishing expedition, nor upon bare speculation that the information may possibly prove useful.’” (quoting Dole, 870 F.2d at 373)).

The government argues that Hutchins is only speculating that learning who Randy is would be material to his defense, and uses that to argue that they don’t have to reveal Randy’s name so Hutchins can test whether it’s material to his defense.

The government generously agrees to give Hutchins Randy’s real name if they call him to testify, but then boast that Hutchins’ jail phone calls mitigate the need to put Randy on the stand.

Nonetheless, the government agrees to disclose CS-1’s identity to the defense if it determines that CS-1 will be a testifying witness at trial.2

2 To be sure, it might not be necessary to call CS-1 as a witness at trial because the defendant was shown the chats he had with CS-1 during his post-arrest interview and the defendant admitted that he was one of the parties in those conversations. Later, the defendant made phone call from jail in which he described the chats as “undeniable.” Therefore, the admissions Mr. Hutchins made to CS-1 are admissible non-hearsay statements, which Mr. Hutchins previously identified as accurate.

There are a slew of reasons Randy’s identity is of particular interest. Not least, that unknown entities engaged in serial credit card fraud to try to disrupt Hutchins’ defense fundraisers. As I’ve suggested, that means that entities engaged in probable criminal credit card fraud made a concerted effort to thwart Hutchins’ ability to mount the most robust defense.

Is the FBI even investigating who disrupted Hutchins’ defense fundraising efforts? Would they do so if it would hurt their case?

All of which leaves the distinct impression that the government isn’t all that interested in the two suspected criminals implicated in the case against him, but are very interested in ratcheting up the pressure on Hutchins himself.

And because they got to Hutchins via incidental collection — and not direct targeting — they might succeed in doing so.

 

Sergei Millian and the Simpson Testimony

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Glenn Simpson’s testimony to the House Intelligence Committee was actually far more informative than that he gave to the Senate Judiciary Committee. I get the feeling we all might have been better served had Simpson released Fusion’s own research on Trump rather than the Steele dossier (and it might have avoided all the drama over the dossier).

I was particularly interested in Simpson’s extended comments about Sergei Millian, who ran a sketchy Russian-American chamber of commerce organization (here’s a David Corn profile that surely is influenced by Fusion), who has been alleged by many outlets (WSJ, ABC, WaPo) to be one (D) or another (E) source for the Steele dossier (note, Steele’s labels for sources in the dossier were not consistent, and other figures must be one or another of those letters in some reports).

Simpson described that his own, unpublished research showed that Millian had ties to the Trump camp going back years, first in conjunction with an effort to help Trump brand vodka under his own name in Russia.

And there was, prior to the 2013 Miss Universe fair, there.was an earlier Trump vodka marketing project in Russia that later became something that we were very interested in.

[snip]

MR. SIMPSON: Well, one of the guys who organized this trip was a guy who’s currently known as Sergi Millian. And he’s been in the press a good bit, I think, although not recently. And, you know, he came up in connection with that, and then he came up in connection with Chris’ work as one of the people around Trump who had a Russian background, and unexplained, you know, a lot of unexplained things. So when we looked at him, we found that he ran a sort of shadowy kind of trade group called the Russian-American Chamber of Commerce, which is — Russians are known to use chambers of commerce and trade groups as fronts for intelligence operations.

And this guy, his name – his real name or his original n_ame that he came to the United States wasn’t Sergi Millian. It was Siarhei Kukuts, and that’s a pretty different name.

And he changed his name when he got to Atlanta. And when we looked at him some more, we found two different resumes for him. In one resume he said he was from Belarus and he went to Minsk State; and then in another he was from Moscow and went to Moscow State. In one he said he worked for the Belarussian Foreign Ministry; in the other, he said he worked for the Russian Foreign Ministry.

He was a linguist, also an interesting thing about his background. And as time went on, yeah, we found other things about him.

Simpson also described Millian dealing Trump condos to Russians.

We found a picture of him with Donald Trump. He boasted to people that he had sold hundreds of millions of dollars in Trump condos, Trump real estate to Russians, that he was some kind of exclusive agent for Trump in Russia and that he organized this trade fair.

That may refer to Millian’s involvement in the Trump Hollywood project. Simpson describes him playing a role that has been alleged of others in Trump’s Soho project — falsely claiming there were more buyers for the project than there really were.

MR. SCHIFF: And tell me about the Trump Hollywood project. That was an example of the latter or the former? Did they get the financing from what you could tell because they got a bunch of Russians to pre-sale, or did they go to a bank and say these are our investors, or how did they go about that?

MR. SIMPSON: Well, eventually, I mean, they lost the project. It went under. I, can’t – I’m not – I’m sure we did look at who the creditors were, who the lenders were. This is the project that Sergi Millian appears to have been involved in, and there’s a picture of Jorge Perez, Donald Trump, and Sergi Millian.

And he tells a story about meeting Donald Trump at the golf — at a racetrack, drinking a bottle of Crystal with him, seems — he gave him some Crystal. And that was in the early phases of the project. So it was clear that Donald Trump — so the equity partner was the related group. It was clear that this Russian had been brought into this with Trump, and what you can surmise from that is that he’s there to say there are buyers. We can bring you buyers for this property. And that’s what a developer needs to know is that he’s got buyer interest.

MR. SCHIFF: And how does it work? Let’s say Sergi Millian or someone else lines up the Russian buyers. The Russian buyers sign pre-sale agreements. Trump can then get financing for the res! of the project. Do the buyers go through and buy the properties, or is that no longer necessary, once you’ve obtained the bank financing you can actually sell them to real people?

Simpson describes Millian’s role in an NGO that — public reporting had revealed years earlier — had been investigated by the FBI as a recruiting organization.

And then, I guess, last but not least, he, you know – as we became more and more interested in his background and the press started to write stories about him, it came out that he was associated with this Russian friendship entity called Rossotrudnichestvo, and that he was involved in organizing a junket to Moscow for some American businessmen that was the subject of an FBI investigation, because it was a suspected recruiting operation. And the FBI had questioned people who were involved in this trip about whether they were recruited by the Russians when they went to Moscow.

So it was that kind of thing.

Finally, Simpson claims his research established ties between Millian and Trump lawyer Michael Cohen (though it’s not clear whether this involved anything beyond Twitter exchanges) that Cohen subsequently tried to downplay.

And then, you know, as further time went on, we found he was connected to Michael Cohen, the President’s lawyer. And eventually, after boasting about a lot of this stuff on camera, on tape, to the TV network, he backed away from all of it suddenly when the Russia controversy began to get hot.

And Michael Cohen was very adamant that he didn’t actually have a connection to Sergi, even though he was one of only like 100 people who followed Sergi on Twitter. And they — we had Twitter messages back and forth between the two of them just – we just pulled them off of Twitter.

There are two reasons this is interesting.

First, as the NYT noted, in the wake of Trump’s victory, Millian proposed a business deal with George Papadopoulos, with whom he had gotten close in the previous six months.

Mr. Trump’s improbable victory raised Mr. Papadopoulos’s hopes that he might ascend to a top White House job. The election win also prompted a business proposal from Sergei Millian, a naturalized American citizen born in Belarus. After he had contacted Mr. Papadopoulos out of the blue over LinkedIn during the summer of 2016, the two met repeatedly in Manhattan.

[snip]

Mr. Millian proposed that he and Mr. Papadopoulos form an energy-related business that would be financed by Russian billionaires “who are not under sanctions” and would “open all doors for us” at “any level all the way to the top.”

One billionaire, he said, wanted to explore the idea of opening a Trump-branded hotel in Moscow. “I know the president will distance himself from business, but his children might be interested,” he wrote.

I think Millian’s cultivation of Papadopoulos likely explains this reference in the affidavit supporting Papadopoulos’ arrest, showing Papadopoulos asking Ivan Timofeev over Facebook on July 22, 2016 for any information he had on someone he was about to meet for the first time (see my timeline here).

“If you know any background of him that is noteworthy before I see him, kindly send my way.”

That would say that, on the same day WikiLeaks released the DNC emails — which itself took place a day after Papadopoulos signaled something about Trump’s RNC speech to Timofeev — Millian started cultivating Papadopoulos, who apparently had started spending more time in NYC.

And, according to the NYT, that cultivation ended up right where Michael Cohen had started in November 2015, discussing a deal for a Trump Tower in Moscow which inexplicably related to Trump winning election, with oligarchs who could evade US sanctions.

Cohen to Millian to Papadopoulos full circle, in the course of one year.

And if I’m right that that Facebook message that Papadopoulos tried to delete indicates a Timofeev role in Millian’s cultivation of Papadopoulos, it suggests a good deal of  orchestration on that front.

Which brings me to Simpson’s comments about Millian and the dossier.

In the first exchange about Millian, Simpson dodges on whether — as had been publicly reported, perhaps even based on sources close to Simpson — Millian was one of the sources for the dossier.

MR. SCHIFF: To your knowledge, was Mr. Millian one of the sources for Christopher Steele in the dossier?

MR. SIMPSON: I’m not in a position to get into the identity of the sources for the dossier for security reasons, primarily.

But there’s a more interesting exchange later, where, in response to a Mike Quigley question about Simpson’s non-public production, Simpson first offers up the non-sequitur that Fusion didn’t leak the dossier to BuzzFeed, then offers a seemingly different non-sequitur about the import of Sergei Millian.

MR. QUIGLEY: The dossier was published. Other elements were published. What wasn’t published? Are there still documents? Is there still information that was garnered by either Mr. Steele or others that the public isn’t aware of at this point, on this point?

MR. SIMPSON: Well, to just put it on the record, we were not the ones that gave this document to Buzzfeed, and I was not happy when this was published. I was very upset. I thought it was a very dangerous thing and that someone had violated my confidences, in any event. I think the story is largely known and that there’s very little that was left on the cutting room table from that time. I think, you know, there’s a little bit of, you know, color, I would say. You know, this guy that we were talking about earlier, Sergi Millian, isn’t named in the dossier, but is someone who was important.

In this bizarre series of non-sequiturs, Simpson appears to connect Millian with the leak of the dossier, which led to the lawfare that in turn led to the campaign to discredit the entire Mueller investigation by focusing on the dossier.

He almost certainly wasn’t the leaker; John McCain associate David Kramer almost certainly was.

But I wonder if, as part of the plan (in which former McCain campaign manager Paul Manafort may have been involved) to use the dossier to undercut the investigation, someone in Millian’s orbit encouraged its leak?