Imagine if DOJ Used the Hunter Biden Inquiry to Get Testimony against Rudy Giuliani…

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I’m going to return to my argument that The Laptop is functionally equivalent to the Steele dossier. But until I do, I want to return to the parallels between the Ukrainian influence peddling investigation of Hunter Biden and that of Rudy Giuliani.

First, take a look at this passage from the Ken Vogel-bylined NYT story that inflated new life in The Laptop story.

People familiar with the investigation said prosecutors had examined emails between Mr. Biden, Mr. Archer and others about Burisma and other foreign business activity. Those emails were obtained by The New York Times from a cache of files that appears to have come from a laptop abandoned by Mr. Biden in a Delaware repair shop. The email and others in the cache were authenticated by people familiar with them and with the investigation.

Elsewhere, the NYT story reports that the investigation into Hunter Biden turned to his influence peddling in 2018, well before the laptops in question were purportedly dropped off at a blind computer repairman’s shop.

The investigation, which began as a tax inquiry under the Obama administration, widened in 2018 to include possible criminal violations of tax laws, as well as foreign lobbying and money laundering rules, according to the people familiar with the inquiry.

The contents on The Laptop were iCloud content, which the FBI could have and would have preferred to obtain with a warrant. We know the emails in question weren’t deleted by all parties because sources for stories describe still having them.

In other words, it’s unlikely that The Laptop played a critical role in the FBI investigation into the President’s son, because the FBI had other, better ways to obtain the same content and because the FBI had already turned to these matters well before the laptop got shared with the FBI on December 9, 2019.

So let’s go back to the way that Vogel-bylined NYT article reflated The Laptop story. The passage I quoted says three things:

  1. Prosecutors have looked at emails in question.
  2. NYT had obtained emails from what it credulously calls The Laptop.
  3. The “Laptop” emails were authenticated by “people familiar with them and with the investigation.”

The source for the first claim is likely someone who was a witness in the DE investigation (and we know that witnesses who have offered up their testimony have been part of the recent Murdoch-driven campaign to reflate it). The second claim is simply NYT’s ham-handed effort to make it clear the emails they received were part of the same campaign as the original NY Post story.

The third claim, however, is interesting. Written as it is, it suggests there are people who are familiar with both the investigation and the email cache. That would seem to suggest that some of the very limited universe of people involved with The Laptop — Rudy Giuliani, Steve Bannon, Robert Costello, and Mac Isaac — believe they know something about the Hunter Biden investigation.

Let’s focus on Robert Costello for the moment: He loves to be a cut-out. And when Billy Barr set up a special back channel to ingest Ukrainian-provided Russian dirt on Hunter Biden, Costello was that back channel. In other words, the lawyer that Rudy and Steve Bannon share is one possible source for that third claim, but if he were, it would suggest investigators in Delaware had spoken with him as a witness because he knew of the process by which he came to be in possession of a sketchy laptop.

Whatever testimony the source of that third claim offered could be shared with SDNY, which is investigating Rudy’s own influence-peddling scandal with Ukraine.

With all that mind, take a look at this passage of Philip Bump’s excellent summary of all the ways that laptop story is sketchy.

Giuliani was central to that effort. In late 2018, he began exploring the idea that Biden, as vice president several years before, had improperly tried to influence Ukraine to block an investigation of Burisma, a company for which Hunter Biden served as a board member. This story, promoted by an investigator targeted for termination by the U.S. government, was later debunked, but it seemed a promising line of attack. On April 1, 2019, a writer linked to Giuliani named John Solomon wrote the first of several stories about the allegations.

On April 12, the laptops were dropped off at Mac Isaac’s repair shop. Mac Isaac is legally blind and was not able to identify Hunter Biden by sight. One of the laptops, though, bore a sticker for the Beau Biden Foundation, an organization dedicated to Hunter’s late brother.

At some point in the middle of this month, Hunter Biden left Burisma’s board. Presumably he was by that point aware that questions were being asked about his role. If not, it became very clear on May 1, when the Times elevated the Burisma question in its coverage.

In the meantime, Volodymyr Zelensky had been elected president of Ukraine, and efforts to pressure him to announce an investigation into Biden began. In early May 2019, Giuliani planned a trip to Ukraine to dig up information that might damage Biden — a plan that was covered in the press. After broad outcry, he scrapped the trip. But the signal was sent: Giuliani was seeking information deleterious to Biden.

Later that month, someone in Kyiv was approached about buying Hunter Biden’s emails. This was not reported until Oct. 21, 2020, a week after the Post’s story about the laptop.

This time period — December 2018 until May 2019 — is precisely the time period that prosecutors asked Special Master Barbara Jones to prioritize for her privilege review of the last set of Rudy’s phones (as well as the one phone from Victoria Toensing).

In the initial incarnation of this investigation — the one charged in 2019, before Lev Parnas started running his mouth — the focus of this investigation was exclusively on how Rudy got Marie Yovanovitch fired.  But in September 2020, that part of the investigation was put on hold to await Rudy.

Yovanovitch’s name doesn’t appear in Bump’s summary at all. Yet it happened in the same month — May 2019, the culmination of this effort — when Rudy was going to go to Kyiv to dig up dirt on Hunter Biden, and when someone was wandering around Kyiv offering to sell what looks like what ended up packaged as The Laptop.

Whether or not Rudy’s effort to solicit what ended up being dirt that looked just like The Laptop was originally the focus of the investigation, DOJ has now obtained a privilege review of Rudy’s comms from that time period when he was soliciting it.

The Lesson Marina Ovsyannikova Offers to Chuck Todd and Lester Holt

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Yesterday, an editor at Russia’s official Channel One news, Marina Ovsyannikova, came onto a live broadcast and held up a sign condemning Russia’s war on Ukraine.

Predictably, she was quickly detained; thus far, her attorneys have been unable to locate her (though one outlet has said she’ll be charged under Russia’s new crackdown law).

Shortly after her detention, a pre-recorded video was released, in which she explained her actions. She spoke of the shame she feels about her past involvement in Putin’s lies.

What is happening right now in Ukraine is a crime and Russia is the aggressor. And the responsibility for this aggression lies on the conscience of only one person. This man is Vladimir Putin. My father is Ukrainian. My mother is Russian. And they were never enemies. And this necklace on my neck is a symbol of the fact that Russia must immediately stop the fratricidal war and then our brotherly peoples will still be able to reconcile.

Unfortunately, in recent years I have been working on Channel One, working for Kremlin’s propaganda. And I am very ashamed of it. I am ashamed that I was letting them tell those lies from the screen. I’m ashamed that I allowed to “zombify” the Russian people.

We kept silent in 2014, when all this was just in the beginning. We didn’t go to rallies when the Kremlin poisoned Navalny. We just silently watched this inhumane regime.

And now the whole world has turned away from us, and even 10 generations of our descendants will not be enough to wash away the shame of this fratricidal war. We are Russian people — thoughtful and smart. It’s up to us to stop this madness. Come out to rallies. Don’t be afraid of anything. They can’t imprison all of us.

It was an incredibly brave — and because she planned her actions in advance — well-executed protest.

But make no mistake. Ovsyannikova is not, like another brave journalist who spoke up this week, Yevgenia Albats, someone who has criticized the regime in the past, someone whose witness now is a continuation of years of brave reporting.

Rather, Ovsyannikova is someone who, a profile describes, “was a cog in a big machine of Channel One’s news production.” She was part of the the production of official truth. And as she describes, hers is the lesson of regret for that complicity, someone who will forever own a part of Putin’s crimes because she took the comfortable route of contributing to and participating in Putin’s exercise of power. She will almost certainly pay a stiff price for her speech, but she is also someone who did nothing, up till now, as Putin kept raising the price of speaking freely.

While Ovsyannikova’s protest will likely resonate for some time, I would hope that complicit journalists in countries where it’s not too late to defend democracy reflect seriously on Ovsyannikova’s shame. Even as Russia rains bombs down on Ukraine, journalists like Chuck Todd and Lester Holt invited Bill Barr onto their TV to tell lies about Russia’s attack on democracy in the United States, to tell lies about Trump’s extortion of Ukraine, to tell lies about his role in an attack on democracy. Like Ovsyannikova, Todd and Holt sit, comfortable, polished, and complicit, as Barr told lies that were a direct attack on democracy and rule of law.

And like Ovsyannikova, they are doing nothing to rebut the lies of authoritarianism before it’s too late.

Update: Ovsyannikova has surfaced and is thus far facing only administrative crimes, so days, not years, in jail.

Update: Ovsyannikova was fined 30,000 rubles and released, but that apparently only covers the social media video, not the protest on TV.

Now that DOJ Has Rudy Giuliani’s Phone Contents, Lev Parnas Prepares to Plead

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Back on January 21, Special Master Barbara Jones reported on the status of her privilege review of Rudy Giuliani’s devices. For eight of Rudy’s devices, she had turned over over 27,000 items that post-dated January 1, 2018. For eight others, she had turned over the 3,000 items dated between December 1, 2018 and May 31, 2019.

While she had started to turn over materials as early as November, Jones turned over the balance on January 19. From there, a filter team at the FBI would have to scope the contents to make sure the investigative team only got items covered by whatever warrants the government has gotten.

The one known warrant that SDNY has covers Rudy’s efforts — assisted by Lev Parnas — to get Maria Yovanovitch fired in 2019. Those charges were included on the original October 2019 indictment against Parnas, but removed when the charges against him were superseded in September 2020.

If DOJ is going to charge Rudy for ousting Yovanovitch at the behest of Yuri Lutsenko and others, they are probably preparing to do so now.

Which makes it interesting that yesterday, Parnas asked for a change of plea hearing on the remaining already-charged count for which he still has to stand trial.

Remember: Back in March 2020, Parnas tried, unsuccessfully, to flip.

Lev Parnas spent much of January 2020 claiming to want to cooperate with the impeachment inquiry — though those claims were often suspect. At the same time, SDNY seemed to want to stall those efforts. The Senate acquitted Trump in February.

Only after that, on March 5, 2020 (and apparently just March 5), did Parnas proffer testimony in what he had been publicly claiming for some time was an interest in cooperating. But apparently after making statements that support the government case against him at trial next month, nothing came of the proffer.

On March 5, 2020, Parnas and his counsel met with members of this Office and the FBI, to proffer Parnas’s potential testimony about the charges at issue here and other matters. In advance of the proffer, the Government provided a written proffer agreement to Parnas’s counsel, setting forth the terms under which statements Parnas made during the proffer could and could not be used against him.

[snip]

During a lengthy proffer, Parnas made several statements that tend to prove the charges at issue here, or facts underlying those charges. An FBI agent took detailed notes of the proffer, and later produced a formal report memorializing it (the “302”). Those notes, and the 302, have been provided to Kukushkin and Parnas.

In a pretrial hearing last October, Parnas’ lawyer Joseph Bondy revealed that at that early point, SDNY had insisted Parnas plead to all the charges against him (which at that point still included the Yovanovitch charge).

But now that DOJ has — after 30 months of work — obtained all Rudy’s communications about the Yovanovitch plot (and already facing prison based off his October 2021 guilty verdict), Parnas appears to have a deal that’s worth pleading guilty to.

Remember: When Parnas was previously trying to flip, it wasn’t just the Yovanovitch plot he wanted to cooperate on. He also wanted to help SDNY prosecute obstruction of the investigation into that effort, including efforts to delete iCloud content as impeachment started. Parnas has receipts — not just against Rudy (and Mike Pompeo), but also videos implicating Trump.

Meanwhile, as Parnas prepares to plead guilty, Yovaovitch is using her book tour to highlight the damage done by autocrats like Putin and Trump.

It Is Not News that Bill Barr Lied to Protect Kleptocracy

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Let’s talk about what Bill Barr did in his second tenure as Attorney General.

Even before Jeff Sessions was fired, Barr decided — based on the false claims he saw on Fox News — that the allegations against Donald Trump were bullshit. He wrote up a memo suggesting that it was okay for the President to fire the FBI director to cover up his own crimes. And based on that audition, he was nominated and confirmed as Attorney General.

When the investigation into the aftermath of that firing shut down weeks after he was confirmed, Barr lied to downplay the degree to which the President had enthusiastically welcomed the help of a hostile country to get elected. Among the things his lies did was to hide that the investigation into whether Roger Stone conspired with Russia — with Trump’s full knowledge — remained ongoing, a detail that remains unreported everywhere but here. Barr also issued a prosecution declination for crimes still in progress, Trump’s ultimately successful effort to buy the silence of witnesses against him with pardons.

Barr poured whiskey to celebrate his old friend Robert Mueller’s frailty before Congress.

Then Barr turned to protecting Trump, Rudy Giuliani, and Sean Hannity when a whistleblower objected that Trump was extorting Volodymyr Zelenskyy for help on his reelection campaign. He did so in a number of ways, including interfering in legally mandated congressional and election oversight. He also stripped the whistleblower complaint to ensure that investigative steps put into place to protect national security in the wake of 9/11 wouldn’t tie Trump’s extortion attempt to an ongoing investigation into Ukrainian efforts to exploit Rudy Giuliani’s corruption to protect (Russian-backed) Ukrainian corruption. Barr’s efforts to hide the national security impact of Russian-backed Ukrainian efforts to corrupt American democracy gave Republicans cover — cover that every single Republican save Justin Amash and Mitt Romey availed themselves of — to leave Trump in place even after he put his own personal welfare above national security.

Then Barr turned to undoing the work of the Russian investigation. After Judge Emmet Sullivan ruled that the case against Mike Flynn was sound and Michael Horowitz concluded that the Russian investigation was not a partisan witch hunt, Barr assigned multiple investigators — John Durham and Jeffrey Jensen — to create a new set of facts claiming it was. He intervened to minimize the punishment against Stone, in the process claiming that threats against a witness and a judge — involving the same militias that would go on to lead an attack on the Capitol on January 6 — were mere technicalities. In his attempt to shield Stone from punishment, Barr ensured that the then-ongoing investigation into Stone’s suspected conspiracy with Russia would go nowhere. Barr’s efforts to attack Emmet Sullivan for refusing to rubber stamp Barr’s corruption resulted in a death threat against the judge. Barr’s effort to invent excuses to dismiss the prosecution against Flynn included altering documents and permitting an FBI agent who had sent pro-Trump texts on his FBI device to make claims in an interview that conflicted with the agent’s own past actions.

Barr used COVID as an excuse to let Paul Manafort serve his sentence in his Alexandria condo until such time as Trump pardoned his former campaign manager for lying about the help from Russia he used to get elected.

Barr took several measures to protect Rudy Giuliani from any consequences for his repeated efforts to get help for Donald Trump from Russian-backed Ukrainians, including outright Agents like Andrii Derkach. He ensured that the existing SDNY investigation into Rudy could not incorporate Rudy’s later efforts to solicit Russian-backed Ukrainian help. He attempted to fire Geoffrey Berman. He set up a parallel process so that DOJ could review the fruits of Rudy’s influence peddling for potential use against Trump’s campaign opponent.

This is just a partial list of the false claims that Bill Barr mobilized as Attorney General to ensure that the United States remained saddled with a President who repeatedly welcomed — at times extorted — Russian-backed help to remain as President.

It is not news that Bill Barr corrupted DOJ and lied to protect kleptocracy — in its American form of Donald Trump, but also, by association, in Putin’s efforts to exploit American venality to corrupt democracy.

Nevertheless, multiple outlets have decided that now — during Russia’s unprovoked attack on Ukraine — is a good time to invite Bill Barr onto TV or radio to tell further lies to spin his own role in protecting kleptocracy, Russian and American. They appear to think they’re clever enough to catch a shameless liar in a lie — or perhaps believe the news value of having Barr explain that he’d prefer a competent fascist to Trump but if Trump is all he gets, he prefers that to actual democracy.

You cannot win an interview with Bill Barr. Gaslighters like Barr are too skilled at exploiting our attention economy. The mere act of inviting him on accords a man who did grave damage to the Department of Justice and the Constitution in service of kleptocracy as a respectable member of society. Even assuming you’re prepared enough to challenge his lies (thus far none of the journalists who interviewed Barr has been), he’ll claim your truth, the truth, is just partisanship designed to smear those who believe kleptocracy is moral. More likely, you’ll end up like Savanah Guthrie did, letting Barr claim, unchallenged, that the allegation that Russia conducted a concerted effort to compromise Trump is a lie.

Before Russia invaded a peaceful country, it attempted to achieve the same ends by cultivating Trump, by trading him electoral advantage for Ukrainian sovereignty. Bill Barr was a central part in letting that effort continue unchecked until January 20, 2021.

If you invite him on to do anything other than apologize to Ukraine and the United States, you are part of the problem.

The Single-Legged Stool of the Horseshoe Left’s Apology for Putin

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All too often, both the Putin-apologist horseshoe left and some good faith members of the anti-war left have adopted a single frame to think of Vladimir Putin’s decision to invade Ukraine: NATO.

In the sloppiest versions, the idea is that Bill Clinton provided “guarantees” to Putin that NATO would not expand, and since NATO has expanded, the US bears all the responsibility for Putin’s invasion of Ukraine.

NATO is undoubtedly a big part of Putin’s grievance. Fiona Hill describes that this moment has been coming since 2007.

Hill: I think there’s been a logical, methodical plan that goes back a very long way, at least to 2007 when he put the world, and certainly Europe, on notice that Moscow would not accept the further expansion of NATO. And then within a year in 2008 NATO gave an open door to Georgia and Ukraine. It absolutely goes back to that juncture.

Back then I was a national intelligence officer, and the National Intelligence Council was analyzing what Russia was likely to do in response to the NATO Open Door declaration. One of our assessments was that there was a real, genuine risk of some kind of preemptive Russian military action, not just confined to the annexation of Crimea, but some much larger action taken against Ukraine along with Georgia. And of course, four months after NATO’s Bucharest Summit, there was the invasion of Georgia. There wasn’t an invasion of Ukraine then because the Ukrainian government pulled back from seeking NATO membership. But we should have seriously addressed how we were going to deal with this potential outcome and our relations with Russia.

But it’s not just NATO. For years, Putin has portrayed any popular uprising for democracy as a CIA plot, a claim that many anti-imperialists championed, thereby denying those calling for democracy any agency. And the 2014 ouster of Viktor Yanukovych (which more complicit members of the horseshoe left claim was simply a coup led by Nazis) set off a concerted plan that incorporated support for Brexit, an attack on US elections in 2016, all conducted in parallel with relentless targeting of Ukraine.

This invasion is the continuation of not just the annexation of Crimea and persistent war in Ukraine’s East, but also the hybrid attacks on Ukraine’s power grid and, via NotPetya, on anyone paying taxes in Ukraine and therefore any international business doing business with it.

Russia’s efforts to cultivate Tories in the UK, populists in the EU, and the Trumpist right, including a good deal of disinformation capitalizing on Trump’s narcissism, was always closely connected to Russia’s closer goals in Ukraine (and, indeed, involved the participation of some of Trump’s closest allies, starting with Paul Manafort and Rudy Giuliani. in Ukraine).

The horseshoe left can’t acknowledge this, of course, because it would amount to admitting that they have been lying in Russia’s service since 2016, conflating their own manufactured “RussiaGate” for Russia’s real attack on US democracy in 2016 and afterwards, debunking the former while repeating Russia’s lies about the latter. Because the horseshoe left can’t admit they were duped into being mouthpieces gleefully attacking democracy, they have real incentive to ignore the ways the Ukrainian invasion is not just a reaction against NATO, but also an attack on democracy, on a rules-based order, on the European project that always aspired (however imperfectly) to improve on the hypocritical liberal aspirations of the United States.

The thing I don’t understand, though, is how little of the horseshoe left’s criticism is about Neoliberalism. If you’re going to attack Bill Clinton, why not attack the way the US pushed shock therapy on former Soviet states, including Russia?

To be sure, Putin is not unhappy with the results of that, and so is not complaining about the imposition of a form of capitalism that allowed Oligarchs to loot the state, and through them, Putin to accumulate power. Putin has made the most of the organized crime that filled the vacuum of the state.

But as the EU has moved with remarkable (though selective) swiftness to pressure Putin through those networks of Oligarchs, as Germany, Italy, and Cyprus took steps it wasn’t clear they would take, a critique of American-led failures of capitalism is especially important, not just to ensure that the Oligarchs do get sanctioned and in hopes that the UK begins to wean itself of Russian dirty money.

Ukraine, with Europe, needs to survive this attack, find a way to rebut the invasion and build a path forward.

But whatever else this moment has done, it has made it clear how easy it was for Russia to pervert democracy in the places proudly claiming to practice it with the least little bit of Oligarch cash. Having ripped off the bandaid of Russian influence, Europe (at least) has the opportunity to formalize protections against purchased influence.

Such lessons, of course, extend beyond Russia to America’s own failed imperial catastrophes, most notably in Afghanistan, where US-backed corruption made it easy for the Taliban to regain credibility by comparison. US hegemony is on the wane because of Green Zone thinking about capitalism, which fostered the kind of corruption that made Putin powerful.

Such lessons extend, as well, to America’s own fragile democracy, subjugated in recent years to endless supplies of corporate cash, which led in 2016 to the election of a man who aspired to impose a kleptocracy every bit as corrupt as Putin’s.

Vladimir Putin has gotten a large swath of anti-imperialist American leftists to parrot a claim that he invaded Ukraine because of NATO, and only because of NATO. Not only has that made them willful apologists for the kind of imperialism they claim to abhor, even while ignoring the direct assault on democracy and the greater aspirations to human rights adopted by Europe. But it has led them to ignore an obvious critique of US and Russian power that would be a necessary component of building a new, more resilient order if we survive this war.

Questions for Bill Barr about His Cover-Ups Pertaining to Ukraine and Russia, Starting with: Who Withdrew the Red Notice for Yevgeniy Prigozhin?

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Billy Barr’s effort to launder his reputation with a book tour has started, kicked off with a supine WSJ review that includes just one “some said” clause treating as debatable the provably false claims he made in his book about intervening to eliminate all consequences for Trump’s top associates for lying to cover up their interactions with Russia during the 2016 election.

During much of Mr. Barr’s time in the Trump administration, some said he protected the president at the expense of the Justice Department’s independence, especially over his handling of special counsel Robert Mueller’s investigation of Russian interference in the 2016 election.

Mr. Barr issued his own summary of Mr. Mueller’s investigative report depicting the results in a way that Mr. Mueller and others described as misleading or overly favorable to Mr. Trump. He also worked in the ensuing months to undermine some of the prosecutions spawned by the Mueller investigation. An example was his decision to drop the criminal case against Michael Flynn, Mr. Trump’s former national security adviser.

Mr. Barr has said that he intervened to correct what he saw as overreach by the prosecutors and flaws in the department’s approach to those cases, a stance he maintains in his book.

Barr’s book tour happens at the same time, the Times reports, as 400 Wagner mercenaries sent by Putin to Kyiv are trying to hunt down the elected President of Ukraine.

More than 400 Russian mercenaries are operating in Kyiv with orders from the Kremlin to assassinate President Zelensky and his government and prepare the ground for Moscow to take control, The Times has learnt.

The Wagner Group, a private militia run by one of President Putin’s closest allies and operating as an arm-length branch of the state, flew in mercenaries from Africa five weeks ago on a mission to decapitate Zelensky’s government in return for a handsome financial bonus.

Information about their mission reached the Ukrainian government on Saturday morning and hours later Kyiv declared a 36-hour “hard” curfew to sweep the city for Russian saboteurs, warning civilians that they would be seen as Kremlin agents and risked being “liquidated” if they stepped outside.

This makes me wonder whether Viktor Medvedchuk — the guy Putin would like to install as a puppet — had help escaping from house arrest.

People’s deputy from the Opposition Platform – Pri Life party, Putin’s godfather Viktor Medvedchuk, escaped from arrest.

Source : information from the ZN.UA edition , obtained from the Office of the Prosecutor General, Advisor to the Minister of Internal Affairs Anton Gerashchenko

Details : According to sources, on February 26, the Prosecutor General’s Office instructed the National Police to check the presence of Medvedchuk at the address where he is under house arrest.

The National Police fulfilled the order: Medvedchuk was not at the scene.

The coincidence of Putin’s invasion with Barr’s attempt to launder his reputation led me to put together a partial list of questions Barr should be asked (hopefully by Lester Holt) as he attempts to pretend he didn’t pervert justice — in part — to protect Trump from his attempt to extort Ukraine. For example:

  • Why didn’t Barr recuse himself from the review of the whistleblower complaint against Trump given that Trump told Zelenskyy Barr would contact him during the Perfect Phone Call? (This post provides more details of how Barr’s DOJ mishandled that referral.)
  • Why did Barr only refer the transcript of the call, and not the entire whistleblower complaint, the latter of which would have led Public Integrity to see the tie between Trump’s call and Rudy’s successful effort to get Maria Yovanovich fired (for which Rudy remains under active investigation)?
  • Why did OLC, first, write a memo refusing to share the whistleblower complaint and, once they did, overclassify passages of the call to hide Barr’s own role?
  • Why did Barr personally warn Rupert Murdoch before Sean Hannity got on a plane to fly to Vienna as part of Rudy’s grift?
  • Why did Barr try to fire Geoffrey Berman at a time it was investigating Rudy Giuliani’s role in all this?
  • Why did Barr ask one of his most politicized US Attorneys, Scott Brady, to serve as an intake point for Russian disinformation from Andrii Derkach?
  • Why did Barr separate the investigation into Derkach from the one in which Rudy, who met with Derkach after he had been IDed as a Russian agent, was already under investigation?

Had Barr not intervened in all these ways, the US would have been better able to protect its own democracy from Trump (and Giuliani’s) attempt to corrupt Ukraine’s democracy. Instead, Ukraine is schooling America about what it takes to defend democracy.

But given the assassins hunting down Zelenskyy even as Barr attempts to launder his reputation, there’s perhaps a more urgent question. Why did Bill Barr’s DOJ let the Red Notice for Yevgeniy Prigozhin’s arrest drop in September 2020?

In March 2020, DOJ dismissed the case against two of Prigozhin’s companies that had interfered in the 2016 election, but not Prigozhin himself. As I wrote, the decision was not as suspect as some of Barr’s other interventions in Mueller prosecutions (though it happened at the same time). Because Prigozhin’s corporate persons, but not his biological person, showed up to contest the charges, the Prigozhin defense became substantially an effort to learn FBI’s sources and methods. A Dabney Friedrich decision on the protective order exacerbated that, and another required DOJ to start naming US persons affected. Dropping the case against two corporate persons was not, itself, suspect. DOJ did not drop the case against Prigozhin or his trolls.

Even though the charges against the biological person Prigozhin had not been dropped, in September 2020, Interpol removed Prigozhin from the list of those who could be arrested, citing the dismissal against his corporate persons. This allowed Prigozhin to make several trips to jurisdictions, including Germany, from which he could have been extradited.

It’s certainly possible Billy Barr had no role in this decision and that DOJ tried to point out that, in fact, the charges against Prigozhin remained (and still remain). But given that he gave a screed that seemed to attack the prosecution as a whole at the time, perhaps DOJ affirmatively let Prigozhin slide.

But as his book tour takes place against the backdrop of assassins hunting for Zelenskyy, it seems like a good time to ask him if he did intervene to let the owner of Putin’s paid killers travel free from any risk of direct legal consequences for his intervention in America’s own democracy.

Putin’s Playmates Trump and Tucker Remind Trumpsters They’ve Been Trained to Love Putin

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As I’ve been watching Putin expand his war in Ukraine, I’ve been thinking a lot about his timing. Why launch it now rather than two years ago, when Trump would have facilitated it, or another year from now, when Republicans are expected to control at least one house of Congress?

I suspect there are a lot of things that dictate the timing. Any invasion was going to come in winter. It’s easier for heavy tanks to move, but more importantly, winter temperatures make it easier to use gas prices to impose a cost on Europe.

I think it happened this year, under Biden’s first full winter rather than 2021 or even 2020 because, up until Biden’s inauguration, Putin’s investment in Trump might still have paid off by allowing Putin to achieve his objectives without launching a war. He almost did, in the insurrection, which was undoubtedly led by MAGAts but which included the participation of some key Russian projects (such as Patrick Byrne).

To be sure, there are European reasons, even beyond the gas squeeze. Boris Johnson is fighting to keep power. Angela Merkel’s retirement surely led Putin to hope that the EU would be left without a strong leader (or that he could more easily manipulate Emmanuel Macron, especially in an election year).

But I believe this invasion represents the culmination of a plan not just to reassert what he imagines is Russian greatness, but also to end US hegemony, which Putin has pursued for a decade.

Ukraine has been a part of that and starting in 2010, Paul Manafort was useful to giving his puppets the patina of legitimacy. After Viktor Yanukovych’s ouster, Ukraine was useful as a testing ground for various kinds of hybrid warfare, most spectacularly with the NotPetya attack in 2018.

Ukraine — the partnership of Konstantin Kilimnik and Oleg Deripaska, along with their leverage over Paul Manafort — was also whence Russian launched its 2016 attack (I need to find the reference, but they knew they could place Manafort as campaign manager before the end of 2015). As I have written (in a piece on my understanding of the role of using the Steele dossier as a vehicle for disinformation), Russia’s interference in 2016 is best understood as a win-win. If Hillary won, Roger Stone would have rolled out the same Stop the Steal plan that was used in 2020 back in 2016 to destabilize the US in 2017 rather than 2021, as happened.

Trump’s win was an unexpected bonus.

As part of the 2016 operation, Russia also did unprecedented damage to the NSA (through the Shadow Brokers operation) and the CIA (in the way that WikiLeaks rolled out the Vault 7 release).

The failure of Russia’s attempt to blame its 2016 interference on a false flag thwarted Russia’s best laid plans — which would have involved Kilimnik calling in the quid pro quo made with Manafort on August 2, 2016 and getting Trump to help carve up Ukraine in the same way Russia is currently doing with tanks.

Even still, the Russian investigation paid huge dividends and, given Putin’s long game, to date has surely been more than worth it. That’s because the FBI-led investigation into Trump’s cooperation with Russia, over time, came to train Republicans to trust Putin more than they trust Democrats.

Republicans genuinely believe, falsely, that the FBI deliberately attempted to take Trump out (entirely memory holing Jim Comey’s role in getting Trump elected, much less that the FBI Agents running informants on the Clinton Foundation during the election were explicitly anti-Hillary). The dossier disinformation project proved so wildly successful that most Republicans genuinely believe, falsely, that there wasn’t abundant proof of cooperation between Trump and Russia, including communications directly with the Kremlin during the election that Michael Cohen lied to hide. Republican members of Congress genuinely came to believe — because they had to! — that criticism of Trump’s refusal to spend the money in support of Ukraine they had appropriated was just another Democratic attack on Trump and not an attempt to save the integrity of American democracy. All this culminated in Stop the Steal 2.0, a literal attack on American democracy; Republican fealty to Trump forced them — more reluctantly at first and driven in large part by real terror — to defend an assault on Congress.

By February 13, 2021, the date the Senate voted to acquit Donald Trump of inciting an attack on Congress, Republicans had put loyalty to Donald Trump over defense of the country and the Capitol in which they worked.

Sure, Putin didn’t get Trump to carve up Ukraine as President. But he got so much more from Trump’s presidency.

Putin did get Trump to do real damage to NATO. He got Trump to largely abandon Syria. Trump made a humiliating deal with the Taliban that would result in the US withdrawing its military from Russia’s back door. After years of Russia having to work hard to highlight American hypocrisy on human rights, Trump did things like pardon war criminals, forever tainting America’s claim to be exceptional.

And through it all, Trump created his own authoritarian-supporting militias, heavily armed troops inspired by resentment who have the ability to make the United States ungovernable. Trumpist Republicans are making localized efforts to dismantle democracy. Trump’s Supreme Court nominees have abandoned legal precedent.

Which brings us to this moment.

I think Putin faced a moment of diminishing returns. Republicans are finally beginning to wake up from their Trump cult. If COVID subsides and the US economy takes off, Democrats might surprise at midterms. I wouldn’t be surprised, either, if Russia expected some details of what it has done over the last decade — involving Julian Assange, involving 2016 (with the prosecution of Vladislav Klyushin), possibly even involving Trump — to become public in the near future. And so Putin chose this moment to launch a war to try to solidify the efforts he has made over the last decade.

Thus far, however, things haven’t gone Putin’s way.

I believe that Putin thought he could demonstrate Five Eyes fragility by conducting war games off the Irish coast without inciting the nationalism of a bunch of Irish fisherman. I believe Putin expected the US and/or Europe would fail to fully incorporate Ukraine in its planning, thereby discrediting Volodymyr Zelenskyy. I believe that Putin expected he would be able to peel away France and Germany (after Olaf Scholz’s initial announcement that it is halting Nord Stream 2, there seems to be some hesitation). I believe Putin expected his false flags would work. I believe Putin believed he’d be able to blame someone else for this invasion. I agree with Dan Drezner, thus far Biden has done just about everything right.

I believe that Putin believed his invasion would split NATO, the EU, and the US. Thus far it has had the opposite effect.

Which brings us to the weird pivot that Trump and his top Fox associates: white nationalist Tucker Carlson, Chief of Staff Sean Hannity, and Laura Ingraham.

Yesterday, Trump hailed Putin’s actions as genius.

“I went in yesterday and there was a television screen, and I said, ‘This is genius.’ Putin declares a big portion of the Ukraine — of Ukraine — Putin declares it as independent. Oh, that’s wonderful,” Trump told conservative podcaster Buck Sexton.

I said, ‘How smart is that?’ And he’s gonna go in and be a peacekeeper. That’s strongest peace force… We could use that on our southern border. That’s the strongest peace force I’ve ever seen. There were more army tanks than I’ve ever seen. They’re gonna keep peace all right,” Trump continued. “Here’s a guy who’s very savvy… I know him very well. Very, very well.”

Last night, Tucker did a chilling monologue, suggesting that Americans have been trained to hate Vladimir Putin.

Tucker suggested that Putin’s invasion is just a border dispute. He’s suggesting that Biden is doing this to pay off imagined debts to Ukrainian Oligarchs. Tucker laid out Putin’s plan for costs to impose on Americans, in terms of energy costs. Tucker included every single false claim about Ukraine that Russia has been planting since 2016. Every single one.

This is the monologue you’d expect of a man who believes there are two years of records showing Russian and Hungarian sources trying to set up one meeting between him and Putin.

To win this war, Putin needs to achieve both goals at once: splitting the US so that he can take Ukraine. One goal serves the other.

And in days ahead, Putin undoubtedly plans to take great risks to impose some costs on European and American voters. In gas prices, sure, but probably also with some ambitious cyberattacks and efforts to support another insurrection. Those costs, I imagine Putin plans, will lead American and European voters to lose patience with support for Ukraine, to forget that this is about the ability to enjoy real democracy.

But to get away with that, Putin has to ensure that it won’t backfire by overcoming the polarization he has invested great effort to encourage in the last five years.

Via whatever means last night, Putin’s two biggest assets in the US (speaking in terms of advantages, not recruited assets, but I don’t rule it out) went out and reminded Trump supporters that they’ve been trained to like Putin more than they like their own country.

Update: Philip Bump notes that Republicans like Putin more than Biden.

The Eight Trump Associates Whom DOJ Is Investigating

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Exactly a month ago, I did a post noting that the TV lawyers claiming there was no proof that DOJ was investigating anyone close to Trump were either ignorant of or ignoring six Trump associates who were being investigated. I wanted to update that post with developments from the last month, because (in addition to the contempt prosecution for Steve Bannon), we’ve learned of investigations into at least two more Trump associates.

Note that four of these — Sidney Powell, Alex Jones, Roger Stone, and Mark Meadows — definitely relate to January 6 and a fifth — the investigation into Rudy Giuliani — is scoped such that that it might include January 6 without anyone knowing about it.

Tom Barrack

Last week, Trump’s top donor, Tom Barrack, filed a motion to dismiss his indictment for serving as an unregistered agent of the Emirates.

As he did in a prior status hearing, that motion complained that Billy Barr’s efforts to undermine this investigation failed.

[T]he government’s unjustified two-year delay in charging Mr. Barrack also warrants dismissal of the indictment. The government had all the evidence on which the indictment was based in 2019. The indictment pleads the conspiracy terminated in April 2018, and the alleged false statements occurred in June 2019. Why the government waited more than two years, and until after a change in administration, is a question only it can answer, but it should answer it especially given the paramount First Amendment interests at stake. Had the government brought this case when its investigation was complete in 2019, recollections regarding Mr. Barrack’s June 2019 interview would have been fresh and the harm from the government’s failure to make a contemporaneous record might have been mitigated. The lengthy delay has also prejudiced Mr. Barrack’s ability to identify, preserve, and secure documentary evidence and obtain evidence from witnesses whose memories have faded. The government has provided no explanation for its delay, and the specter that the government intentionally delayed bringing this case for political reasons or tactical advantage hangs heavily over this case. Because Mr. Barrack has been deprived of a fair opportunity to defend himself, the indictment should be dismissed. [my emphasis]

Barrack and DOJ are also fighting over whether Barrack can unseal discovery in an attempt to discredit this investigation.

Barrack filed the specified materials in connection with pretextual arguments in his motion to dismiss, and he all but acknowledges that he seeks their unsealing in a bid to improperly influence public opinion.

As noted before, according to reporting from 2019, this investigation was a Mueller referral, so it’s proof that Garland’s DOJ will pursue such referrals. According to CNN reporting, the indictment was all ready to go in July 2020, a year before it was actually charged. That provides a measure of how long it took an investigation that was deemed complete at a time when Barr seemingly prohibited filing it to be resuscitated under Garland: at least four months.

Barrack’s prosecution proves that DOJ can indict a top Trump associate without leaks in advance. But it will also be an early test about a Trumpster’s ability to discredit the notion that any of them can be held accountable.

Jury selection for Barrack’s trial is now scheduled to start on September 7.

Rudy Giuliani

Since my last post on this topic, Special Master Barbara Jones reported on the progress of the privilege review of 16 devices seized from Rudy Giuliani on April 28, 2021.

Here’s a summary of what that review and the earlier known seizures of Rudy’s communications in the Ukraine-related investigation into Rudy:

The known warrants for Rudy’s phones pertain to whether, in the lead-up to Trump’s impeachment for trying to coerce Ukraine’s assistance in the 2020 election, Rudy was acting as an unregistered agent of Ukraine.

There’s good reason to believe DOJ could show probable cause to access Rudy’s phones from April 2018 (before he formally became Trump’s lawyer), because during that period he was attempting to buy Michael Cohen’s silence with a pardon. There’s equally good reason to believe that act of obstruction is one of the referrals still redacted in the Mueller Report.

On or about April l 7, 20 l 8, Cohen began speaking with an attorney, Robert Costello, who had a close relationship with Rudolph Giuliani, one of the President’s personal lawyers. 1022 Costello told Cohen that he had a “back channel of communication” to Giuliani, and that Giuliani had said the “channel” was “crucial” and “must be maintained.” 1023 On April 20, 2018, the New York Times published an article about the President’s relationship with and treatment of Cohen. 1024 The President responded with a series of tweets predicting that Cohen would not ” flip” :

The New York Times and a third rate reporter . . . are going out of their way to destroy Michael Cohen and his relationship with me in the hope that he will ‘flip. ‘ They use nonexistent ‘sources’ and a drunk/drugged up loser who hates Michael, a fine person with a wonderful family. Michael is a businessman for his own account/lawyer who I have always liked & respected. Most people will flip if the Government lets them out of trouble, even if it means lying or making up stories. Sorry, I don’t see Michael doing that despite the horrible Witch Hunt and the dishonest media! 1025

In an email that day to Cohen, Costello wrote that he had spoken with Giuliani. 1026 Costello told Cohen the conversation was “Very Very Positive[.] You are ‘loved’ … they are in our corner … . Sleep well tonight[], you have friends in high places.”1027

Similarly, there’s good reason to believe DOJ could show probable cause to access Rudy’s phone for his involvement in Trump’s attempted coup, not least because Rudy himself tweeted out some texts he exchanged with a Proud Boy associate discussing specific insurrectionists in the aftermath of the attack.

We wouldn’t know if DOJ had obtained warrants for those separate periods, because those periods will be covered by Jones’ review one way or another.

But because of the temporal scope Judge Paul Oetken approved last year, Jones has completed a privilege review of all communications that date between January 1, 2018 through April 28, 2021 on 8 of the devices seized from Rudy (April 28 was the day the devices were seized). We can’t know what dates during which Rudy was using those 8 devices. It could well be that they were older phones with nothing recent.

But we know that of the communications on the phone with the most texts and chats — the phone designated 1B05 — the government received 99.8% of any communications dated between January 1, 2018 and April 28, 2021 and they received those communications no later than January 21.

Of particular note, Rudy at first tried to claim privilege over 56 items from phone 1B05. He thought better of those claims in 19 cases. And then, after Jones deemed 37 of them not to be privileged, he backed off that claim as well. During a period when Jones and Rudy’s team would have been discussing those 37 items, Judge Oetken issued a ruling saying that the basis for any privilege claims (but not the substance of the communications) would have to be public. After precisely the same kind of ruling in the Michael Cohen Special Master review, Trump backed off his claim of privilege for Cohen’s recording about the hush payments. That may be what persuaded Rudy to withdraw his claim of privilege over those materials here, as well.

And whether or not DOJ has already accessed the communications Rudy conducted during 2020 and 2021 on any of the 16 devices seized from him, we know all the phones Rudy was using in April 2021 are in DOJ’s possession and that Judge Oetken has already approved a privilege review to cover those communications.

In any case, the details of the Rudy investigation show, at a minimum, that Barr went to extraordinary lengths to attempt to kill this investigation (and may have even ordered that FBI not review the materials seized in 2019). It took mere weeks after Garland took over, however, for the investigation to take very aggressive steps.

It also shows that SDNY managed to renew this investigation without major leaks.

Robert Costello

Last Friday, Steve Bannon revealed that DOJ had seized the toll records of his lawyer, Robert Costello, the same guy that would be at the center of any predication for any investigation into Rudy’s attempts to obstruct the Mueller investigation. Some outlets are claiming that this was just part of the investigation into Bannon, but that cannot be right, for several reasons. First, DOJ didn’t ask for the most intrusive set of those records — email metadata from between March 5 and November 12, 2021 — until the day they indicted Bannon. The returns on those requests could not have been presented to the grand jury, because DOJ didn’t receive them until December 7. Plus, scope of that request not only dates back to before the September 23 subpoena that is the basis for the Bannon contempt prosecution, it dates back before the January 6 Committee that issued the subpoena in the first place. DOJ obtained those Internet toll records for a reason that extends beyond the subpoena fight; they cannot pertain (just) to the known prosecution of Bannon.

It may well be they relate to obstruction related to Rudy though. Here’s DOJ’s letter responding to Bannon’s complaints about this seizure, which given some confusion bears further discussion.

We write in response to your January 6, 2022, letter requesting information about internal deliberations and investigative steps relating to Mr. Costello and any other attorneys who have represented Mr. Bannon. As you are aware, and as we discussed in a phone call with Mr. Corcoran and Mr. Schoen on December 2, 2021, Mr. Costello represented Mr. Bannon before the January 6th Select Committee (“the Committee”) in relation to the subpoena it issued to Mr. Bannon and is, therefore, a witness to the conduct charged in the Indictment. We understand that attorney Adam Katz also represented Mr. Bannon with respect to the Committee and, therefore, also is a potential witness. We are not aware of any other attorneys who represented Mr. Bannon with respect to the Committee.

Aside from the information that Mr. Costello voluntarily disclosed on behalf of Mr. Bannon during the investigation of this matter, the Government has not taken any steps to obtain any attorney work product relating to any attorney’s representation of Mr. Bannon or to obtain any confidential communications between Mr. Bannon, Mr. Costello, and Mr. Katz, or between Mr. Bannon and any other attorneys.

We have provided all discoverable material in the prosecution team’s possession, custody, or control relating to Mr. Costello’s and Mr. Katz’s involvement in the conduct charged in the Indictment.

The first paragraph explains a warning DOJ gave when Costello first raised noticing an appearance in the contempt prosecution for Bannon (it’s likely Costello had been tipped off by his firm that DOJ had obtained his toll records by that point). DOJ makes clear that, by voluntarily sitting for two meetings at which FBI agents were present, Costello made himself a witness about the basis for which Bannon gave for blowing off the Committee subpoena. As I have noted, Costello gave materially inconsistent answers at that meeting, likely giving the FBI probable cause to investigate whether he had made false statements; the easiest and least intrusive way to test whether his claims were true was to test whether his claims about the existence and timing of communications with Trump’s lawyers were true or not — thus the toll record seizure.

The remaining two paragraphs disclaim any impact on Bannon. Call records are not work product and, while sensitive, are not treated as privileged (and in any case, date to a period in which Costello was not representing Bannon criminally). The interviews were work-product, claims about the advice Costello gave Bannon (including the email Costello described in which he told Bannon to be BEWARE because he was likely to be referred to DOJ for prosecution). But Costello shared that work-product voluntarily. DOJ has not otherwise obtained the work-product or confidential content of Costello pertaining to Bannon.

That paragraph says nothing about Costello’s representation of Rudy, though.

And the following paragraph makes it more likely this statement intentionally stops short of covering all of Costello’s work product. It limits the statement about materials in its possession to the prosecution team (excluding, for example, SDNY prosecution teams). It doesn’t address confidential communications between Rudy and Costello. And for good measure, it limits its statements to Costello’s involvement in the January 6 subpoena, not other matters.

Costello may not count as a Trump associate directly. But this is all about Trump’s extended effort to obstruct investigations into his conduct. And because of the way Costello has, on at least two occasions, been the weak link that pierced privilege covering such cover-ups, may be a key investigative target.

Sidney Powell

Sidney Powell may be another key lawyer who pierced privilege.

Several different outlets have reported that there is a grand jury investigation into Sidney Powell’s grifting off lies about election fraud.

Since my last post on investigations into Trump’s associates, Sidney Powell’s lawyer revealed she is “cooperating” in that investigation, though in contemplating “cooperation” with the January 6 committee, she is reserving privilege claims about “advice” to Donald Trump.

A lawyer for Sidney Powell, a well-known, Trump-connected attorney, acknowledged that her organization’s fundraising connected to the 2020 election is subject to an ongoing federal criminal investigation.

Powell’s lawyer, Howard Kleinhendler, told CNN that his client “is cooperating” with the investigation into her organization, Defending the Republic, by the US Attorney’s Office in the District of Columbia. That cooperation includes “rolling productions” of documents.

[snip]

Still, when the committee asks Powell about communications she had with Trump, that is “going to get a little hairy,” Kleinhendler told CNN.

He said Powell believes that the times Trump called her to ask for legal advice may be covered by attorney-client privilege — even if he never paid her to be his or his campaign’s lawyer. Powell never worked as a lawyer for the former President personally or for the Trump campaign, Kleinhendler said.

“We’ll have to deal with that, and we’ll have to try to discuss with the committee to see how” to handle privilege issues, Kleinhendler said.

But Powell can’t claim privilege for the bulk of the period during which she was helping Trump steal the election. After Trump claimed Powell represented him on November 15, 2020, Rudy stated as clearly as he can manage on November 22 that, “Sidney Powell is practicing law on her own. She is not a member of the Trump Legal Team. She is also not a lawyer for the President in his personal capacity.”

With that statement, Rudy effectively waived privilege for any communications implicating both of them from that date forward, long in advance of a December 18 meeting at which Powell purportedly told him about all the communications she sent him in the interim.

Similarly, most of these events post-date the time, November 25, when Powell can credibly claim to be representing Mike Flynn in an effort to nullify the consequences of his lies and foreign agent work, because that’s when Trump pardoned Flynn. Certainly, Powell’s claim to be criminally representing Flynn ended no later than December 8, when Emmet Sullivan dismissed the case. So she may want to claim privilege, but well before the critical meeting between Rudy, Powell, Flynn, and Patrick Byrne on December 18, all visible basis for that claim was affirmatively gone, and for anything seized from her email provider, she’s likely not going to be involved in making that claim anyway.

Mark Meadows

In a number of posts, I have argued that DOJ would be better off treating the January 6 contempt referral as, instead, a referral into obstruction of justice for the way Mark Meadows withheld or deleted evidence pertaining to the coup attempt.

I can’t prove that has happened.

What is certain, however, is that Deputy Attorney General Lisa Monaco confirmed that DOJ is investigating the fake electors.

“We’ve received those referrals. Our prosecutors are looking at those and I can’t say anything more on ongoing investigations,” Monaco said in an exclusive interview.

And the January 6 contempt referral made clear that communications in Meadows possession show that he was at the center of that effort.

Mr. Meadows received text messages and emails regarding apparent efforts to encourage Republican legislators in certain States to send alternate slates of electors to Congress, a plan which one Member of Congress acknowledged was ‘‘highly controversial’’ and to which Mr. Meadows responded, ‘‘I love it.’’ Mr. Meadows responded to a similar message by saying ‘‘[w]e are’’ and another such message by saying ‘‘Yes. Have a team on it.’’34

34Documents on file with the Select Committee (Meadows production).

Meadows has been frantically trying to ensure whichever of these communications occurred on his personal accounts get shared with the Archives. Which means DOJ now knows they can learn details of the fake elector conspiracy by obtaining those records from the Archives.

Alex Jones

Over the last year, DOJ has collected a great deal of evidence that the Oath Keepers, the Proud Boys, and an alarming number of former Marines worked together to open a second breach on the Capitol via the East doors. Instrumental to the success of this breach were a large number of MAGA tourists who joined in the breach. DOJ has proof that at least some of them were there because Alex Jones had lured them there by lying about a second Trump speech on the East side of the building.

DOJ has already arrested two of Jones’ employees: videographer Sam Montoya in April and on-air personality Owen Shroyer in August.

In a November DOJ response in the Shroyer case, Alex Jones was referred to as Person One, as numerous others believed to be under active investigation have been described. That filing debunked the cover story that Shroyer and Jones have used to excuse their actions on January 6. Judge Tim Kelly, who is also presiding over the most important Proud Boys cases, is currently reviewing Shroyer’s First Amendment challenge to his arrest.

This strand of the investigation has likely necessarily lagged the exploitation of former Alex Jones’ employee Joe Biggs’ iCloud and phone, which were made available to Biggs’ co-travelers in August. This post has more on the developments in the Montoya and Shroyer cases, including that a different prosecutor recently took over Monotya’s case.

Roger Stone

Roger Stone, who has close ties to both the Oath Keepers and Proud Boys who coordinated the attack on the Capitol, has shown up repeatedly in the Oath Keeper conspiracy. In March, DOJ debunked Connie Meggs’ claim not to know her co-conspirators by including a picture of an event she did with Roger Stone and Graydon Young (this was close to the time that Connie’s husband Kelly organized an alliance between Florida militias).

In a May 25 FBI interview, Mike Simmons, the field commander for the Oath Keepers on January 6, appears to have been specifically asked why Simmons had so many conversations with Joshua James, who was providing security for Roger Stone at the Willard the morning of the insurrection. Simmons appears to have explained that James called him every time Stone moved.

In June, Graydon Young, the Floridian who attended that Stone event with Connie, entered a cooperation agreement. Also in June, Mark Grods, one of the Oath Keepers who had been at the Willard that morning, entered a cooperation agreement. In September, Jason Dolan, a former Marine from Florida who also interacted with Stone in advance of the insurrection and who was waiting there on January 6 as the other Oath Keepers, a number of Proud Boys (including former Alex Jones employee Joe Biggs) and Alex Jones himself all converged at the top of the East steps just as the doors were opened from inside, entered a cooperation agreement.

Erik Prince

In my last post, I described a grand jury investigation into a powerful Trump associate that had subpoenaed witnesses in the investigation in the second half of last year. NYT just disclosed that investigation, which is into Erik Prince.

Mr. Prince is separately under investigation by the Justice Department on unrelated matters, according to people familiar with the case. The scope of that investigation is unclear.

The investigation reflects a reopening of an investigation Billy Barr shut down in 2019-2020. What’s interesting about it is the scope seems somewhat different and the investigating District is different than the earlier investigation. That may suggest that, for investigations that Barr shut down, DOJ would need to have a new evidence to reopen it. But the existence of this investigation shows, again, that Garland’s DOJ will go after powerful Trump associates.

In any case, I keep laying all this out, and TV lawyers keep angrily insisting that this public evidence does not exist.

I can’t guarantee that any of these investigations will lead to charges (or, in the case of Bannon and Barrack, convictions). Investigations alone will not save democracy.

But there is abundant evidence that DOJ is not shying away from aggressively investigating the suspect criminal conduct of Trump flunkies.

Special Master Barbara Jones Turns Over Rudy’s Chats

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After much delay, the Special Master reviewing Rudy Giuliani’s phones, Barbara Jones, has released an update. It reveals that she released a bunch of materials to DOJ on January 19.

Those include:

  • The balance of 25,629 chats and messages that post-date January 1, 2018 from one of Rudy’s cell phones
  • From that same phone, 56 chats and messages that Rudy had initially claimed privilege over but for which he either withdrew or chose not to challenge Jones’ designation that they were not privileged
  • 3,204 chats and messages from between December 1, 2018 and May 31, 2019 from Rudy’s other devices, none of which he said were privileged (there should be eight devices; FBI seized 16 devices total)

These releases are in addition to 2,223 items from seven phones reviewed last year.

I find the last bullet most interesting. The known scope of the Ukraine warrants targeting Rudy go from August 1, 2018 through December 31, 2019; the review described in this update doesn’t even cover the full time frame of those warrants. The timeframe of this review is more consistent with a review covering the tail end of the Mueller investigation than the Ukraine investigation.

But they might prioritize such reviews if they were worried about tolling statutes of limitation.

In any case, by my read, all of Rudy’s texts and messages from that period — December 1, 2018 through May 31, 2019 — would have been reviewed for privilege.

Update: TF has convinced me the narrowed date for the most recent review might better reflect a narrowed period of the known Ukraine warrants — that is, just the six most interesting months. I think his argument may be more persuasive than mine in the italicized language, above.

Rudy’s Phones Defy Guarantees We’d Know of an Investigation into Trump

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I’m certain, when people assert that if DOJ were investigating Donald Trump, there would be some visible sign, they’re wrong.

I say that because I’m among the people who have followed the proceedings surrounding the Special Master review of Rudy Giuliani’s phones most closely. And I can’t even tell you what the status of that review is, much less whether DOJ obtained warrants for phone-based content for investigations beyond the foreign influence-peddling investigation for which the phones were first seized.

I’m not saying that has happened. I’m saying that if it had happened, none of us would know.

We know Rudy was Trump’s key facilitator in several other crimes Trump committed besides the foreign influence peddling described on the warrants: both obstruction of the Mueller investigation and Trump’s attempt to overthrow the election. There is already public evidence that Rudy would be a subject in any investigation into both those crimes. After all, he (and his current lawyer) dangled a pardon in an attempt to buy Michael Cohen’s silence in April 2018, and in the days after the insurrection, Rudy appears to have been in contact, using his phone, with a Proud Boy associate, James Sullivan, who coordinated with some of the perpetrators.

If Rudy were a subject in these investigations, prosecutors could obtain the content of his phones with no public notice. The people keeping that secret would be the same people who kept the warrants targeting his cloud accounts in 2019 secret for 18 months, and the same people who kept warrants targeting Cohen secret for three months, including one of the very same prosecutors, Nicolas Roos.

Before I explain what we know about Rudy’s phones, let me explain what we learned from Michael Cohen’s investigation, Rudy’s predecessor as Trump’s fixer whose phones got seized by SDNY (Cohen’s criminal docket is here and the Special Master docket is here).

The very first warrant targeting Michael Cohen — a warrant for his Google email that Mueller’s team obtained on July 18, 2017 — described how he set up Essential Consultants not for real estate purposes, as he had claimed to his bank, but instead to pay off Stormy Daniels. But the campaign finance crime that Cohen eventually pled guilty to was not among the crimes listed on that original warrant. Instead, the warrant focused on his lies to his bank, which would be included in his eventual charges, and foreign agent charges, which were not. It wasn’t until April 7, 2018 that the hush payment was included in a warrant for the campaign finance crime to which Cohen eventually pled guilty. Importantly, that warrant, obtained by SDNY, asked to access content obtained with most (but not all) of the warrants targeting Cohen up to that date (the exception was a warrant for Cohen’s Trump Organization email). Those warrants included:

What that April 7 warrant asked to do, then, was to access three devices on which Cohen’s previously-seized content was stored, but to do so in search of evidence of  campaign finance crimes not covered by the earlier warrants. (SDNY had expanded the crimes included on the warrants once already in February 2018.) It was only two days later, when SDNY executed searches on Cohen’s residences and phones, that anyone would discover that the government had shown probable cause to obtain warrants targeting Trump’s personal lawyer for crimes including conspiracy, lying to a bank, and campaign finance violations. It was over a year later before the foreign agent warrant searches were publicly disclosed.

This process offers several lessons for this discussion about Rudy’s phones and therefore for discussions about whether DOJ is investigating Trump. First, the government can — and did in the case of two of Donald Trump’s personal lawyers — obtain probable cause warrants without news of the warrants leaking. It’s only when the government conducts an overt search that an investigation would become public. In the interim, and even after the overt search, the government can simply conduct a filter team review of the seized material and store it at FBI. If prosecutors find probable cause to access the already collected content for different crimes, they can do that. They just need to get another warrant. In Michael Cohen’s case, they did that twice.

These three posts — one, two, three — explain how what we’ve learned of the searches on Rudy thus far; this is the docket for the Special Master review of Rudy’s phones).

They show that the government is currently in possession of the contents of Rudy’s email and his iCloud account from roughly May 1, 2018 (three months before the August 1, 2018 start date of the warrants targeting his phone) through November 4, 2019. The FBI did a filter team review of this content that was almost completed in April when they seized Rudy’s phones. So not only has FBI been reviewing that content for evidence of illegal foreign influence peddling with Ukraine since April, if SDNY or some other unit of DOJ could show probable cause that those emails or that iCloud content probably included evidence of other crimes, they could have obtained and executed a search warrant for that, too. We wouldn’t know if they had.

That information would slightly post-date the period in April 2018 when Rudy Giuliani’s (and Steve Bannon’s) own current lawyer, Robert Costello, was writing Michael Cohen implying that Trump would pardon him to buy his silence; because those conversations were with a then-third party, Costello,  and preceded the time Rudy was formally representing Trump, they likely would not have been filtered. The discussions that Rudy Giuliani had with Paul Manafort’s attorney in fall 2018 that led Manafort to renege on his cooperation agreement would be covered in that time period, though probably would have been filtered as privileged. Discussions Rudy had with Manafort about Ukraine when he was in prison likely would not be privileged.

If Lev Parnas’ redaction fail is to be believed (and thus far his claims have been utterly consistent with what prosecutors and Judge Paul Oetken have said), on April 13, 2021, DOJ also obtained historic and prospective cell site data for Rudy, as well as Victoria Toensing. While this was probably done to pinpoint the location of the phones targeted in the overt search conducted on April 28, in Rudy’s case that cell site data might have useful information about where Rudy was during or in the aftermath of the January 6 attack. (This is likely to be a fairly circumscribed time period tied to specific events shown in the still-sealed affidavit, but when Mueller obtained historic cell location data on Roger Stone in 2018, it covered a five month period.) This warrant, covering whatever period, would also provide information about with whom Rudy was in contact, though the government would have had some of that without even requiring a warrant.

It’s Rudy’s phones where things begin to get interesting. The FBI seized 16 devices from Rudy. Once he got to review the material extracted from his phones, Rudy claimed that the content dates back to 1995, though the government relayed that Special Master Barbara Jones reported that the bulk of the data dates to 2010 and later. Both Rudy and Toensing pointed to the vast scope of initial data obtained and asked Jones to limit her review to the materials dated within the scope of the warrant, which for Rudy is August 1, 2018 through December 31, 2019. The government responded that this would put Jones in the role of conducting not a privilege review, but also a responsiveness review, something which is a clear government role.

The Letters conflate the scope of the Special Master’s review for privileged material with the scope of the Government’s eventual review for material responsive to the Warrants. The Letters present extensive argument concerning only the latter, yet seek relief concerning the former. That is, the Letters contend that the Government’s search for responsive materials must conform to certain limits, then leap from that conclusion to request limits on the Special Master’s initial screening for privileged items. (See Giuliani Let. 4-24 (arguing Government can review only materials dated August 1, 2018 to December 31, 2019); id. at 1, 25 (requesting order that Special Master review only materials from the same period)). The Letters thus ask the Special Master to conduct a responsiveness review: To identify and withhold from Government investigators documents that are in no way privileged, based on a determination that they fall outside the scope of the Warrants. Neither the Warrants, nor this Court’s order appointing the Special Master, contemplate that an arm of the Court, rather than Government investigators, would conduct such a review. (See, e.g., Dkt. 25 (order appointing Special Master)). The Letters’ attempt to limit the materials to which investigators will have access thus appears to be an attempt to relitigate Giuliani’s and Toensing’s meritless efforts to limit the search contemplated by the Warrants ex ante, which this Court already rejected. (See Dkt. 20 at 3-6 (Court rejecting motions for pre-charge (indeed, pre-search) suppression and return of property)).

The government noted that under the terms of the (known) warrants, they are entitled to anything created, accessed, or deleted in that time frame (the government knows from the Parnas investigation that he deleted information from his iCloud in 2019 and Parnas predicted that Rudy and Toensing did as well). And so the government generously offered to have Special Master Jones limit her privilege review to files created on or after January 1, 2018, arguing that such a limitation is akin to the initial scoping that FBI would do.

SDNY further argued that there is no basis, at this time, to delete any of the older material, because the government might later discover that the material is actually responsive to the investigation.

This Court should not, however, grant the Letters’ requests to destroy or return any data at this time. The Court has already rejected motions for exactly that relief. (See Dkt. 20 at 3-6). Moreover, the Government is entitled to retain a complete copy of the seized data, so that it can authenticate any portion of the data ultimately offered in evidence. See Ganias, 824 F.3d at 215. Data that clearly predates January 1, 2018 should thus simply be put aside, and not reviewed by the Special Master or the Government. It may be that the Government’s eventual review of the materials post-dating January 1, 2018 reveals reason to believe that some of the segregated material is in fact responsive. If that is so, then the Government would have reason to search it—just as an FBI agent might return to that 2013 filing cabinet if his search of other files revealed that documents in the searched office were often filed under the wrong dates. At that point, the Government could then request the privilege review which it is now willing to forego for efficiency’s sake.

Without asking for this explicitly, DOJ’s argument had the effect of asking that Jones conduct a privilege review of content that includes the foreign influence peddling for which SDNY showed probable cause occurred between August 1, 2018 and December 31, 2019, but also content that would cover the entirety of the time that Rudy Giuliani was helping Trump obstruct the Mueller investigation and the entirety of the time that Rudy played the leading role in helping Trump attempt to overthrow an election.

As I have shown, the government sought (and is paying for) a Special Master review in this case because they have reason to believe, presumably based on their earlier search and the investigation into Parnas, there are crime fraud-excepted communications in this content. This very same Special Master, Barbara Jones, provided SDNY with a way to access to Michael Cohen’s communications discussing a campaign finance crime with Trump, and SDNY seems to believe they will obtain communications of Rudy discussing crimes with Trump, as well.

Let me interject and note that Judge Paul Oetken knew of the earlier search on Rudy’s cloud content — indeed, he authorized the gag keeping it secret. And in the 18 months between that search and the time Rudy got notice of it, Oetken likewise issued orders that helped the government cordon off parts of the investigation, such as the initial foreign influence peddling charge against Parnas and Igor Fruman tied to their efforts to fire Marie Yovanovitch, until such time as SDNY was able to access the information in question. That is, Oetken has been persuaded to allow SDNY to protect their investigation into Rudy, even during a period when Billy Barr was actively trying to thwart it, and part of that involved keeping warrants secret not just from the public, but from Rudy, as well.

If SDNY or some other component of DOJ obtained additional warrants for this same content, Oetken would undoubtedly know of it and probably would have had to approve it.

Whether or not there are other warrants and whether or not Oetken knows of them, though, he ruled to give the government access to the content that spans Rudy’s involvement in Trump’s obstruction, his own foreign influence peddling, as well as Rudy’s lead role in attempting to overthrow the election. In mid-September, Oetken ordered Jones to limit her review to materials post-dating January 1, 2018, which is tantamount to ordering her to include in her review everything covering all the potential Trump-related exposure that might be under investigation. And he explicitly denied, for a second time, Rudy and Toensing’s request to delete or return everything else.

That means that at the end of Special Master Jones’ review, the government will have all the unprivileged or crime fraud-excepted contents from Rudy’s 16 devices covering the period when he helped Trump obstruct justice, when he solicited campaign help from foreigners, and when he attempted to overthrow the election (as well as any pardon-related discussions from the post-election period). That doesn’t mean they’ve gotten warrants targeting that content. We would not know whether they had, one way or another. But the content would be available, having already undergone a privilege review, if they did get those warrants.

What we do know is this: Of 2,226 items found on seven of Rudy’s 16 seized devices reviewed by Jones thus far, he claimed privilege over just three items. But even with respect to his privilege claim over those three items, Jones has reserved judgment, meaning she may doubt his claim they can be withheld (perhaps because they are crime fraud-excepted).

The Government has provided Seized Materials from 16 electronic devices seized from Mr. Giuliani. On September 28, 2021, I directed that Mr. Giuliani complete his review of the data contained on seven of these devices by October 6, 2021, which was later extended to October 12, 2021. These seven devices contain 2,226 items in total dated on or after January 1, 2018. Mr. Giuliani designated 3 items as privileged, and I am reserving decision on those 3 items. The remaining 2,223 items have been released to the Government.

Additional documents for review have been assigned to counsel for Mr. Giuliani, with the next set of designations due to me on November 5, 2021.

So as of a month ago, the government had started getting materials — covering the period from January 1, 2018 through April 21, 2021 — from Rudy’s phones.

Jones and her staff were able to conduct privilege review on that content over two weeks time, and they were supposed to have had a second tranche of materials to review a month ago, meaning they likely have reviewed an even larger quantity of material since.

But that’s it! That’s all we know. Jones has reported less frequently than she did during her Cohen review, though assuming she will issue monthly reports now that she is reviewing in earnest, one should be due shortly.

We don’t know how much of the content on Rudy’s phones is evidence of a crime and how much is evidence of drunken blathering to reporters. We don’t know if any entity of DOJ has obtained warrants for those other Trump crimes in which Rudy was centrally involved. We don’t know why Jones has reserved judgement on the few privilege claims that Rudy has made thus far, six months into a Special Master review.

We know just two things. First, if there is evidence of crimes on Rudy’s 16 devices, DOJ will have a way of getting to it. And we would not have anyway of knowing that they had.

Update: In related news, a pre-taped interview I did for NPR was on Weekend Edition this morning.